Quantcast
Channel: iPleaders
Viewing all 14289 articles
Browse latest View live

Blog Competition Winner Announcement (Week 1 January 2020)

$
0
0

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 1st week of January 2020 (From 30th December 2019 To 5th January 2020) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj MukherjeeAbhyuday AgarwalHarsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and has been crowned the winners!

S.no

Name

About Author

Article

1

Aarif Shah

Guest Post

Right to Strike

2

Lakshmi. V. Pillai

Intern at LawSikho

Implications of IBC (Second Amendment) Bill, 2019 on a Lawyer’s Practice

3

Ayush Verma

Intern at LawSikho

Registration of unauthorised colonies in Delhi

4

Vartika Jain

Guest Post

Suicide: Religious, Sociological and Legal Perspective

5

M.Arjun

Intern at LawSikho

Essentials of Memorandum of Understanding: A guide

 

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj MukherjeeAbhyuday AgarwalHarsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

S.no

Name

About Author

Article

6

Karan Jayesh Shah

Student of Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com

Legal Framework Regulating Foreign Contribution To Start-ups In India

7

Shruti Singh

Intern at LawSikho

Article 12 of the Indian Constitution- Definition of State

8

Miran Ahmed

Intern at LawSikho

Revision under Code of Civil Procedure, 1908 

9

Sachi Ashok Bhiwgade

Intern at LawSikho

Salient Features of Limitation Act, 1963

10

S. Aditya

Intern at LawSikho

An overview of E-commerce under Cyber Law

 

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

The contestants have to claim their prize money by sending their account details at uzair@ipleaders.in within 1 month (30 days) of the date of declaration of results and not afterwards. Certificates will be sent on the email address given by the contestant while submitting the article. For any other queries feel free to contact Uzair at 8439572315 LawSikho credits can be claimed within three months from the date of declaration of the results (after which credits will expire).

Congratulations all the participants!

Regards,

Team LawSikho


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Blog Competition Winner Announcement (Week 1 January 2020) appeared first on iPleaders.


All You Need to Know about Chit Funds

$
0
0

This article is written by Pearl Narang, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here she discusses “All You Need to Know about Chit Funds”.

Introduction 

When a person has money, all he wants is a good investment scheme. But, how does he identify a good investment scheme? A scheme which generates high returns and also allows the investor to withdraw money whenever he needs, would qualify as a good investment scheme. Chit fund is one such scheme that allows even people of lower income bracket to invest and earn interest on their deposits.

Understanding Chit Funds

Chit Funds is a kind of investment scheme where people agree to deposit a certain sum of money from time to time in a fund. One of the subscribers of the fund is chosen by drawing a lot. The subscriber who wins the lot will receive the price amount from the fund.

Let’s take an example: 

There are 20 members in a particular chit fund. They agree to deposit Rs. 1000 per month. Members will pay 1000 Rupees each. The total value of the fund is 20,000 Rupees. Every month a chit would be drawn and the person who wins the chit will get the 20,000 Rupees.

Section 2(b) of the Chit Funds Act, 1982 gives the definition of chit funds. It states that a chit fund is an agreement in which one person agrees with other contributors to deposit a certain sum of money for a certain duration of time and each contributor shall be entitled to the prize money by way of tender or auction as agreed in the agreement. 

Other Names for Chit Funds

Chit funds are known by a number of names. 

  1. Internationally, chit funds are known as Rotating Savings and Credit Associations (ROSCA), this is because they provide a facility of saving and borrowing simultaneously.
  2. In India, they are called, 
  1. chit, or
  2. chitty, or 
  3. Kuree. 

After the amendment of the Chit Funds Act in 2019, the following names have also been added. These are, 

  1. Fraternity Fund, or 
  2. Rotating Savings, or 
  3. Credit Institutions.

Features of Chit Funds

Chit funds have the following features:

  1. They have a predetermined value and duration. 
  2. They work like microfinance institutions.
  3. They combine both, credits and savings in a single scheme.
  4. They cater to the financial needs of low income households.
  5. They allow the deposits made by the contributors to be turned into a lump sum. This is done by three mechanisms.
  1. Safe Deposits: A person can deposit the money in the present and enjoy the lump sum in future.
  2. Loans: A person can take a loan in the preset and continue to make payments in the future.
  3. Insurance: Allows the depositor to enjoy the lump sum in case of an emergency.

    6. They offer loan at a lower interest rate than moneylenders.

What are Chit Funds Used For?

Chit funds are used for the following reasons:

  1. They address consumption needs.
  2. They help in case of an emergency such as a daughter’s marriage.
  3. They help a person to pay for education of their children, purchase property etc.
  4. They help pay for costlier loans from moneylenders.
  5. They address capital needs of small businesses.

How does a Chit Fund Work?

Let’s understand how a chit fund works through an illustration. 

Illustration: Rohan and Abhishek were friends. 

Rohan was well educated and had a good job. Additionally, Rohan was also planning to start a business to sell fresh food to corporates online. For his business venture, Rohan needed capital. But banks and financial institutions charged too high rate of interest on a loan and required Rohan to fulfil a number of formalities. Rohan needed a capital of 8,00,000 rupees immediately. He couldn’t afford to wait to start his venture. He was stuck between Private money lenders and banks. These options require asset as collateral. They also accrue hefty amount interest. 

Abhishek had a PhD. and was in a well paying job. He had no intention to start a venture but he was looking to save his earnings in a medium, where he can earn good interest and can withdraw money whenever he wants to. Abhishek was also finding it difficult to get an investment scheme that would allow him to deposit cash and withdraw money without any losses. No options were apt. Bank Accounts and Fixed Deposits had their own limitations. And investing in mutual funds and shares involved a lot of risks. 

Chit Funds are a unique combination of saving cum loan investment. Investors can invest money in them and withdraw it anytime the need arises. Moreover, there is no interest charged on borrowings. The person can borrow anytime and for any purpose. A group of people pool in a fixed sum of money every month. Every month through competitive bidding, a contributor gets to win the pool. A contributor can win the pool only once. 

Rohan and Abhsehk decided to invest in a government funded chit funds scheme. The scheme included 20 members who contributed 40,000 each month for 20 months. The jackpot being 8 lakhs every month which would go to one member via competitive bidding till all members get to take the pot home once. Rohan and Abhsihek contributed 40,000 each in the first month. Since Rohan needed 8,00,000 for his capital he decided to participate in the bidding process in the first month itself. Rohan decided to forgo the maximum limit permitted which was 2,00,000 rupees or 25% of the total amount. Thereby taking back 6,00,000 rupees. The remaining 2,00,000 rupees was with the foreman. The foreman kept his fixed monthly commission that is 40,000 or 5% of the chit fund value, and distributed the remaining 1.6 lakh among all the 20 members. 

https://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolution

Click Above

Rohan opened his restaurant he couldn’t bid for the remaining months but he continue to deposit 40,000 every month. Abhishek, on the other hand, waited entire 40 months and got to take back the entire pot minus the foreman’s commision of 40,000 rupees. This way Abhishek earned extra amount since he didn’t have to forgo any amount and also earned the monthly dividends from the amount forgone by other bidders. 

Cash Flow For Abhishek 

 

Cash Flow For Rohan 

Thus, chits funds helps people in a number of ways. 

  1. They give freedom to the person use the funds however he wants. 
  2. It provides a lump sum in case of emergency. 
  3. It gives handsome returns in terms of dividends.
  4. It helps by inculcating the habit of saving money. 

Types of Chit Funds

Chit funds are of different kinds. These are:

Organized Chit Funds: In northern India, a common type of chit fund is where small paper chits with each member’s names are gathered in a box. When all the members come together for a monthly gathering, the person who is in charge in front of all the present members picks a chit from the box. The member so selected gets to take home the day’s collection. Afterwards, that person’s chit is removed from the box. The person who was previously selected comes to the meetings and pays his/her share, but his/her name will not be selected again.

Special Purpose Funds: Some chit funds are organized for a specific purpose. For example, Christmas gifts fund which has a very specific end date which is about a week before Christmas. Such a fund can reduce the cost and relieves the members from extra work in the busy festival season. Nowadays, such special purpose chit funds are conducted by, ladies wear shops, jewellers etc. to promote their goods.

Online Chit Funds: With the popularity of e-commerce, Chit funds are being organized online as well. Online chit funds are conducted online, and contributors can make their monthly contributions and receive the prize through online transactions including electronic funds transfer system. Each member gets his or her own online account to manage and circulate chit funds.

Registered Chit Funds: Registered chit funds are those funds which are registered with the state government under the Chit Funds Act,1982. There are over 10,000 registered chit funds in India.

Unregistered Chit Funds: Unregistered funds are those which are not registered with any state government. They are not regulated under any law. 

Relevant Statute Governing Chit Funds

The Supreme Court has classified chit funds as contracts and also held that chit funds are a part of the Concurrent List of the Indian Constitution; hence both the centre and state can frame legislation regarding chit funds. 

There are a number of legislations that regulate chit funds. They are:-

  1. Chit Funds Act, 1982, is the Act of Central Government which provides a uniform law for governing chit funds.
  2. In addition to this, some states and union territories in India have passed their own chit funds legislation as well. These are: 
  1. The Kerala Chitties Act, 1975,
  2. The Maharashtra Chit Funds Act, 1974,
  3. The Tamil Nadu Chit Funds Act, 1961 as in force in the state of Tamil Nadu and in the Union territories of Chandigarh and Delhi,
  4. The Uttar Pradesh Chit Funds Act, 1975,
  5. The Goa, Daman and Diu Chit Funds Act, 1973, and
  6. The Pondicherry Chit Funds Act, 1966.
  1. Since SEBI is the regulator and controller of the securities market, it regulates and manages collective investment schemes.  But the SEBI Act, 1992 specifically excludes chit funds from their definition of collective investment schemes.
  2. Prevention of Money Laundering (Amendment) Act, 2012 has recognized Chit Funds in Section 2(l).
  3. Under the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 ‘Conventional Chit, ‘i.e., the chit has been defined in Section 2(a). In the Act, another kind of chit has also been defined under Section 2(e). These are known as ‘Prize Chit’ they are banned in India. Prize chit is different from conventional chit as prize chit involves the sale of certificates, units, and other financial instruments and also includes an admission fee.

Chit Funds Act, 1982

Important definitions in the Act

Chit Funds Act defines a number of important terms. They are:

  1. Chit Agreement: It is defined as a document which contains the articles of agreement between the foreman and the subscribers of the chit.
  2. Chit Amount: It is the sum-total of all the subscriptions payable by all the subscribers for any instalment of a chit without any deduction of discount.
  3. Discount: It is the sum of money which a prized subscriber is, under the terms of the chit agreement, required to forego and which is set apart under the said agreement to meet the expenses of running the chit or for distribution among the subscribers or for both.
  4. Foreman: The person who under the chit agreement is responsible for the conduct of the chit and includes any person discharging the functions of the foreman under section 39 of the Act.

Features of the Act

  1. The Act states that all registered chit funds should contain either of the words “chit fund”, “chitty”, or “Kuri” as part of their name. These names can only be used by chit funds, no other person or entity has the right to use these names.
  2. Registered chit funds are not allowed to conduct any business other than chit businesses. 
  3. The foreman is allowed to start or run several chits simultaneously. However, prior approval of the state government is required before starting each chitty.
  4. It prohibits every kind of fund that does not have prior permission of the respective state government.
  5. The foreman needs to deposit 100% of the chit value with the Registrar of Chits prior to the commencement of the chit scheme. This deposit will be refunded to the foreman on the successful completion of the chit cycle.
  6. All Chit funds registered under this Act needs to have its accounts audited by a qualified Chartered Accountant. 
  7. The Act requires that all registered chit funds impose a 40% cap on the bidding amount. This 40% is calculated on the chit value of the scheme. This bid-cap is administered to ensure that the bid does not rise uncontrollably leading to subsequent default by the bidder. 

Chit Funds Amendment Bill, 2019

  • Application of the Act

Before 

The Act did not apply to:-

(i) any chit started before the enactment of the Act, and

(ii) any chit (or multiple chits being managed by the same foreman) where the amount is less than Rs 100. 

After 

The Bill removes the limit of Rs 100, and also allows the state governments to specify the base amount over which the provisions of the Act will apply. 

  • Addition of names for chit funds

Before

The Act specified various names which may be used to refer to a chit fund. These include chit, chit fund, and Kuri. 

After

The Bill additionally inserts three more names, Fraternity Fund, Rotating Savings, Credit Institutions.

  • Video-Conferencing

Before

The Act specifies that a chit will be drawn in the presence of at least two subscribers. 

After

The bill has a provision which allows subscribers to join through video conferencing.

  • Foreman’s Commission 

Before

Under the Act, the foreman is entitled to a maximum commission of 5% of the chit amount. 

After

The Bill seeks to increase the commission to 7%. The Bill also allows the foreman a right to a lien against the credit balance from subscribers.

  • Total Amount of Chit Funds

Before

The Act, chits may be conducted by firms, associations or individuals. The Act states the maximum amount of chit funds which may be collected.  These limits are: 

(i) one lakh rupees for chits conducted by individuals, and for every individual in a firm or association with less than four partners, and 

(ii) six lakh rupees for firms with four or more partners. 

After

The limit of chit fund has been increased to three lakh rupees and 18 lakh rupees.

  • Substitution of Terms

Before

The Act defines certain terms in relation to chit funds. It defines: (a) ‘chit amount’, ‘dividend’, ‘prize amount’.

After

The Bill changes the names of these terms to ‘gross chit amount’, ‘share of discount’ and ‘net chit amount’, respectively.

Advantages and Disadvantages of Chit Funds

Advantages

  1. Chit funds are easy to join.
  2. They promise high returns.
  3. The rate of interest of borrowing from chit funds is low.
  4. People of lower income households can also participate.
  5. Helps micro-enterprises to develop.

Disadvantages

  1. High transaction cost.
  2. Chit funds have known to be vulnerable to scams. 
  • Saradha Chit Fund Scam: The scam was run by Saradha Group. The group collected 200 to 300 billion rupees before it collapsed in 2013.
  • Rose Valley Chit Fund Scam: The Rose Valley scam was a bigger financial fraud than the Saradha scam, more than Rs 15,000 crore was reportedly collected from depositors all across India.

    3. Associated with a number of risks. They are:
  1. The biggest risk involving a chit fund is the misuse of the pooled funds by the foreman. 
  2. Sometimes members stop paying the dues and have already taken the first bid.
  3. In certain chit funds, discount rate is rigged, and a desperate member ends up paying a higher discount.

Things to Keep in Mind while Investing in Chit Funds

When a person invests in chit fund, they should keep the following things in mind:

  1. Make sure the chit fund is registered: Before investing in a chit fund, a person should make sure that the chit fund is registered. This can be done by checking the certificate of registration from the Registrar of Companies.
  2. Check if the certificate is genuine: The certificate and registration number issued by the Registrar should also be checked.
  3. Check if the chit is approved: Every new chitty started by the chit fund should have prior approval.
  4. Know the promoters: Go through the list of the director of the Company to check whether the fund is financially sound.
  5. Complaints against the Fund: Complaints about the fund can be verified from the Office of the Registrar. 

Rights available to a Subscriber of the Chit Fund

The subscriber has a right to:

  1. Get a proper receipt and copy of chit agreement for the payment of subscription.
  2. Get the amount when the chit is prized in his favour.
  3. Attend auction and bid during an auction.

Conclusion 

Therefore, even though chit fund is a great investment avenue, one has to be cautious before participating in it.


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post All You Need to Know about Chit Funds appeared first on iPleaders.

What can a Consumer do if Builder is Delaying Delivery of a Flat Excessively

$
0
0

This article is written by Karan Jayesh Shah, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “What can a Consumer do if Builder is Delaying Delivery of a Flat Excessively”.

Introduction

Time is money and delay in delivery of flat by the developer/builder will attract both civil and criminal penalty. The hard earn money of an individual is invested in the flat and delay in delivering the flat would make them suffer both monetary and also in non-monetary form. The laws are very stringent after the passing of Real Estate (Regulation and Development) Act, 2016 (hereinafter RERA) and so the developer/builder is obliged and must deliver the possession within the pre-decided time to avoid any legal consequences.  

The Consumer i.e. home buyer can take resort under India’s civil, criminal and consumer laws, to take action against the developer/builder. The recent judicial announcements dictated by the court are mostly in favour of the consumer and very severe punishment against the builder is announced.   

What is Delayed Possession?

In simple terms, it means that delay in delivery of the possession of the flat to the home buyer within the stipulated time period set out in the agreement. The Agreement can be in the form of a builder – buyer agreement.  

It is observed that certain mal-practices such as shortage of funds, financial hiccups, altering the plans/ designs of the property without the consent or knowledge of the buyer to accompany the project within the stipulated time period are followed. 

The delay takes place after the exhaustion of the extended time period that might be set out in the agreement or is given by the operation of law. The liability is accounted only when the delay is caused due to the builder’s fault.  In case of natural calamity or any situation beyond human control, then the builder can’t be held liable for delay in delivery of possession of the flat up to a certain extent.

Actions Against the Developer in Case of Delay in Delivery

Before the passing of Real Estate (Regulation and Development) Act, 2016, there was no specific statute providing punishments and provisions for the delay in delivery by the developer of the flat. The following are the actions and remedies set out by the operation of different laws and acts:

1. RERA (REAL ESTATE REGULATORY AUTHORITY ACT)

Regulatory Authority needs to be established by each state under Real Estate (Regulation and Development) Act, 2016, which is a special body set up to deal with the matters that are connected to and ancillaries to the real estate sector.

The below mention are the important provisions given under Real Estate (Regulation and Development) Act, 2016, that can help ensure justice to the home buyer- 

  • Home Buyer’s right to withdraw from the project:  If the developer is not able to deliver the flat on the agreed time period set out in the agreement then the home buyer has right to withdraw himself from the project.  
  • Home Buyer’s right to compensation after withdrawing:   Once the home buyer withdraws himself from the project, he/she has right to be compensated for the entire amount paid till date, along with the interest. The right is vested with the home buyer only after the expiry of the time period set out in the agreement for the delivery of the flat. The home buyer directly can’t go to the court of law, the first thing that needs to be done is to give notice or request the developer to pay the amount and only on non-fulfilment, the home buyer can exhaust the other remedies available under the law.   
  • Home Buyer’s right to compensation without withdrawing: If the home buyer doesn’t want to withdraw himself from the project and want to continue the project irrespective of the fact that there is a delay in delivery of project then the developer is obliged to pay interest for each day or for each month of delay in delivery. The interest rate or compensation to be paid shall be as set out in the agreement or as per the operation of law.
  • Right to file a complaint against builder: When the developer is not ready to compensate for the delay even after request or notice, the home buyer can file a complaint against him. The complaint is filed before the Regulatory Authority, who is required to appoint an officer for the purpose of discharging the function of the judge. The officer has to conduct enquiry and pass such necessary order as he deems fit.  

The home buyer can either appear in person or appoint a representative. The Complaint needs to be disposed within 60 days, however, if required can be extended beyond the stipulated period but have to give a reason for doing so. 

The appeal can be filed within 60 days of passing of the order by the officer and for this; each state has to set up an appellate tribunal. 

The RERA is the recent development of law and is yet to be implemented in all the states and so in few states, Regulatory Authorities or Appellate tribunals might not be constituted yet and therefore in that case the home buyer need to seek other remedies as stated below.

2. Consumer Complaint in Case of Delay

The purpose for which the property is brought places a crucial role in deciding the jurisdiction of the consumer court. If it’s a source of income for the home buyer .i.e. getting rent out of it, or is the place of residence than the delay in delivery of the flat would attract the jurisdiction of the consumer court, instead of going to RERA.  

A home buyer can file a complaint in consumer forum for deficiency of service by the developer and it can be filed in the District, State or National Consumer Courts, depending upon the value of the subject matter and the compensation that the home buyer is claiming.

As the breach of contract takes place, the complaint should be filed at the earliest opportunity available with the home buyer, as it is seen in the past that the consumer court aids in getting faster relief than other authorities.    

The usual practice that is followed to file a written complaint about the delay in delivery to the appropriate consumer court is to take the help of a lawyer in drafting the appropriate documents. The following are the steps to be followed to file a complaint against the developer in the appropriate consumer court. 

  • Legal Notice: The first and foremost step is to send a legal notice to the developer and ask for the compensation for the delay or other reliefs that are available under the law.  
  • Response: The second step is to wait for a specific period so that the developer can respond.  
  • Complaint: The third step is to prepare a petition/complaint depending upon the unsatisfactory response or on the basis of no response stating all the facts, evidence, etc. 
  • Filing of the Complaint: The next step is to approach the appropriate consumer court and file the complaint/petitioner against the developer.

3. Civil Suit/Writ Petition in High Court

The right to file a civil suit or writ petition in the high court is only available when there is no appropriate regulatory authority in that particular state. It should be filed where the defendant resides or carries on his business or where the property is located.

4. Arbitration

The right to refer the dispute to arbitration can only arise if a clause for arbitration exists in the agreement. So it will be the first remedy available with a party which would be required to be exhausted to use the other remedies. In Arbitration, the Arbitrator will be the one to decide whether the builder has deviated from the agreement or not and would pass such award as he/she deems fit.

https://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolution

Click Above

The arbitrator will decide the amount of compensation liable to be paid by the developer for deviating from the terms of the agreement and to execute the award or to enforce it; appropriate civil court needs to be approached.

5. Criminal Case

The home buyer in certain cases or instances can also approach a criminal court for example when the developer is deliberately not handing the possession of the property and is thereby causing delay and is also not ready to pay back the amount of money paid by the home buyer.  The developer can be sued for cheating and dishonestly inducing delivery of property u/s 420 of the Indian penal code, 1860 and/or for criminal breach of trust u/s 405 of the Indian penal code, 1860.

In the criminal court, if the developer is found guilty then he/she might be made liable to pay some amount of penalty and/or compensation to the home buyer and/or would be sent to jail.     

Conclusion

The Real Estate (Regulation and Development) Act, 2016 is the recent development of law and is yet to be implemented in all the states and so in few states, Regulatory Authorities and Appellate tribunals might not be constituted yet and therefore in that case the home buyer need to seek other remedies. The implementation of RERA across all the states of India is the need of the hour. So that the Regulatory Authority and Appellate Tribunal could be constituted for each state for dealing with the issues connected with the delay in delivery of property and for other matters related to it. 

Before signing any contract, buyers should read all the points, including the disclaimers and check the builder’ financial credibility.


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post What can a Consumer do if Builder is Delaying Delivery of a Flat Excessively appeared first on iPleaders.

Bill of Sale: All You Need to Know

$
0
0

This article is written by Nirali Shah, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here she discusses “Bill of Sale: All You Need to Know”.  

Bill of Sale

In practical sense, a bill of sale is known as a document that includes the details of a sale of goods in written form or transfer of property from one person/ party to another person/ party. It is accepted as legal evidence to prove that the full consideration has been paid to conclude a transaction and also, to acknowledge that the seller has transferred the rights attached to the asset(s) as mentioned in the bill of sale documented to the buyer.  

A bill of sale is the document used commonly to record the transactions relating to the sale of automobile, aircraft, motorcycle and also, it can be used to record the transactions relating to sale of animal, furniture and personal property as well. Generally, a bill of sale is used while transferring title of property from one person to another person.

As a rule, the Bill of Sale shall be issued/ drafted by the seller which includes the mode, particulars of the transaction and consideration. It helps to protect both parties to the transaction, if any disagreement arise in near future. 

A Bill of Sale can also include warranties (promises and assurances as to the condition).

Indian Bill of Sale

In India, a Bill of Sale is considered similar to a Sales Agreement. It is used as documentary evidence to record a transaction where a buyer has bought and paid for one or more specific items (worth more than INR 500/-) from the seller and is entitled to ownership of such item(s). The transactions relating to sale of tangible assets such as car, animal, electronics, furniture are recorded. In addition to the consideration, the time and place of purchase, mode of payment and other related details are also included. Depending on the jurisdiction of buyer or seller, a Bill of Sale may be required as a condition to transfer title to the buyer. 

What qualifies a Bill of Sale? 

  • A Bill of Sale is accepted as legal document that stands as evidence to recognize a complete sale/purchase transaction; 
  • It is valid in any Court of Law;
  • The bill of sale is generally drawn by the seller of the goods similar to other negotiable instruments;
  • The basic information recorded in the bill of sale is “transfer of ownership/ property”;
  • Depending on the type of transaction, a Bill of Sale can be simple or complex;
  • To qualify a document as a Bill of Sale it should record private transactions involving valuable items like art, machinery, vehicles or any other tangible assets except immovable property etc.

How a Bill of Sale works?

Depending on the type of transaction, a Bill of Sale can be simple or complex. A retail purchase or sale receipt from the buyer or seller respectively, can be considered as a bill of sale, as it includes the details relating to specific goods that have been sold to the buyer at a specific price which was agreed between both the parties and paid respectively. 

For example the holder of a futures contract is generally given a delivery instrument, which acts as a bill of sale, in that it can be exchanged for the underlying asset when the futures contract expires.

Kinds of Bill of Sale

There are two kinds of Bill of Sale – ‘Absolute Bill’ and ‘Conditional Bill’ which is explained as follows:

1. Absolute Bill: An Absolute Bill of Sale does not represent any form of security, but it is simply, a document evidencing transfers, assignments and other assurances of personal assets, which are materially covered by the common law of contract and the sale of goods law.

A bill of sale is referred to as absolute when the property transfer is completed in one go, totally without any condition, restriction, part payment or payment due after the transaction is concluded/finished. For example, in a sale, you can call an absolute bill of sale if you are buying a used car and paying the full consideration at the time of transfer. Once the transaction is complete, you are the owner of that car and the seller has no right to it and can make no further monetary demands.

An absolute bill of sale also includes mentioned mode of payment, monetary consideration/amount and payment types.

2. Conditional Bill: A Conditional Bill of Sale does represent any transfer or assignment of personal assets to a person by way of security/surety/condition for the payment of money. The conditional bill of sale creates security in favor of the grantee of the bill whereby the grantee/buyer is given the right of a seizure by giving the right to a security interest. It is known as possessory right in favor of grantee by grantor/seller.

For example, a puppy breeder may establish the condition that dogs be spayed or neutered at six months of age. Any breeding that occurs with the dog may be subject to a predetermined fee. Other requirements may include not giving the dog to an animal shelter and notifying the seller of the dog’s new home address if given away.

Is a Bill of Sale required?

A bill of sale is considered as proof of purchase/ sell.  In many states, it is required while transferring a title with your state’s DMV (Department of Motor Vehicles) or when buying and selling branded livestock, including horses or any other intangible assets.

https://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolution

Click Above

In a sale of motor vehicle, the automobile bill of sale represents the transfer of the actual RIGHT to ownership while the vehicle’s certificate of title represents ACTUAL ownership and is required in every state. In exchange for the signed auto bill of sale and a small title transfer fee, the purchaser can apply for a title in his/her name at the state’s DMV.

Who provides the Bill of Sale?

A Bill of Sale is a record of a sale/ transaction/ transfer of property, stating that an item was sold by a particular seller on a particular date, at a particular place and for a particular value of money or other valuable property. Both parties should sign a bill of sale but, in many instances, only the seller needs to sign it and it is acceptable by the court of law.

Difference between Bill of Sale and a Deed?

A Bill of Sale

A Bill of Sale is a document issued in a written form as a receipt used to transfer the ownership of an item/ material object. It typically mentions important information about the purchase or sell transaction such as the names of the buyer and seller, contact information, item description, item price, consideration, payment methods and terms/warranty/ conditions. As a seller or purchaser of a particular transaction, one can use a bill of sale for a used car, or for any other personal property such as a laptop or bike or any tangible fixed assets which are movable property.

When should I use a Bill of Sale?

  • Sell off own motor vehicle or other property (not real estate) 
  • Buy an automobile or other items from a private seller 

When shouldn’t a Bill of Sale be used?

  • For Real Estate
  • For Services
  • For Small Sales

A Bill of Sale includes the following information:

  • Date of purchase
  • Name and address of seller and of buyer
  • Amount paid for the transfer of ownership
  • Description of the assets being transferred
  • Guarantee that the item is free from all claims and offsets
  • Representations or warranties
  • Signatures of seller, of buyer, and of a notary public

A Deed

Anciently deed was known as ‘evidence’. A Deed is any legal document/instrument in written form which affirms/confirms/ passes a right, an interest or property and that is attested, signed and delivered and also it should be sealed. It is commonly associated with conveyancing or to transfer the title of property from one person to another. A deed can be unilateral or bilateral. Deeds include the following documents: 

  • conveyances
  • commissions
  • patents
  • diplomas
  • licenses
  • conditionally powers of attorney
 

 

As mentioned above, signed, sealed and delivered of a deed is referred to the practice of sealing; generally, attesting witnesses have replaced seals to some extent for ease of transaction. In the United States of America, agreements under seal are known as Contracts by Deed or Specialty; whereas, a Specialty can be enforceable without consideration. 

In some jurisdictions, specialities have a clause related to a limitation period of double that of a causal contract and it allows a third-party beneficiary to enforce an undertaking in the deed, thereby overcoming the doctrine of privity. 

As a form of contract, Specialty deeds are bilateral deeds and can, therefore, be distinguished from covenants, which are basically being unilateral promises.

At common law enforceable by any court of law and held to be valid, a Deed must meet several requirements:

It must state on its face that it is a deed, using wording like “This Deed…” or “executed as a deed”. It must indicate that the instrument itself conveys some privilege or thing to someone.

The grantor as specified in the deed must have the legal ability to grant the privilege and the grantee must have the legal capacity to receive it. It must be executed by the grantor in presence of the prescribed number of witnesses, known as “Instrumentary Witnesses”.

In some jurisdictions, a seal must be affixed to it. In earlier times, affixing seals made person/parties to the deed and signatures optional, but recently, in present times, seals have been outdated, so the signatures of the grantor and witnesses are primary and mandatory.

It must be delivered to (delivery) and in some jurisdictions must also be accepted by the grantee (acceptance).


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Bill of Sale: All You Need to Know appeared first on iPleaders.

The Amendment of the Constitution: Article 368 

$
0
0

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

Introduction

The constitution of Indian is one of the most fascinating documents on this planet. No other country has a constitution as comprehensive as ours and is the largest constitution in the world. But despite being so comprehensive, the reason why this document is so interesting is due to the fact that it is extremely flexible. The fathers of our constitution made it so, they wished that the constitution would not only aid the country to grow but it would also grow alongside it. Thus, the government can amend the constitution depending on various issues brought up. These powers are given by Article 368. 

But one must ask the question, Isn’t it the constitution that gives power to the government? If that is so, how can the Government have such a power over a document which gives its authority?

In this article, we will be exploring the extent to which the government can amend, the process of amendment, the essential judicial questions pertaining to it, and various landmark cases in hopes of answering these questions. 

The necessity of Amending provisions in the Constitution

There is a reason why the fathers of our constitution made the constitution as flexible as it is today. This is to ensure that the document evolves and grows along with the nation. Thus, under Article 368, the powers of the Parliament to amend the constitution is unrestricted with regards to sections of the constitution they wish to amend.

But the Parliament having absolute power over amending the constitution is dangerous. Instead of being the backbone of our democracy, the constitution will be reduced to a tool to establish Parliament’s totalitarianism. The government will amend various provisions to make sure it’s powers are unfettered.

While this is a scary thought, it is not far away from the truth. The government in multiple amendments such as the 39th Amendment and in the second clause of the 25th Amendment has tried to establish a state where the legislative is supreme.

That is why the judiciary through various landmark cases has established The Basic Structure Doctrine of The Indian Constitution. 

What is the Basic Structure?

The Basic Structure Doctrine states there are certain fundamental structures and founding principles of the constitution which make the backbone of the constitution. In simple terms, they are ideologies of the constitution which are essential for the survival of the constitution. Some examples are Free and Fair Election, the Federal nature of the Nation, Judicial review and Separation of Power. The government is restricted from touching these contours of the constitution through amendment.

The Supreme Court has not given us a list of these ideologies. It is up to the courts to decide what they are when certain judicial questions are presented before them. But if one wants to describe the nature of the structures, it can be said that if these ideologies are violated, then not only democracy but the entire working of this country will fall flat on its face. The country will either fall into total anarchy or totalitarianism. It is because of these mechanisms that India is still one of the largest democracies in the world.

Thus, while Parliament has unrestricted powers to amend various sections of the constitution, but they cannot touch amend, repeal or add sections into the constitution which would affect its basic structure in the process.

Below are a few more cases to understand this concept further.

Kesavananda Bharati v. State of Kerala, 1973

Facts

The plaintiff,  Swami Kesavananda Bharati was the leader of Edneer Matt, a Hindu monastic institution which is located in Kerala. He challenged the two-state Land Reform Act, imposed by the Kerala government which sought to restrict the way his property was managed.  He stated that his fundamental rights under Articles 25 (Freedom of conscience and free profession, practice, and propagation of religion), Article 26 (Freedom to manage religious affairs), Article 14 (Equality before law), Article 19(1)(f) (Right to property which has been omitted) and Article 31 (the right of private ownership without restrictions) had been violated.

The case was handled by a 13 Judge Bench. It came to be one of the most important cases in Indias and established the Basic Structure Doctrine of the constitution. In the case, they considered the constitutionality of the 24th, 25th, and 29th amendments.

24th Amendment

Changes made to Article 13 are as follows:

Article 13 regulates government policy-making and checks that the laws made by parliament that infringe on the rights of the people. 

The amendment made changes to Article 13. Clause (4) was inserted.  It stated that any amendment done under Article 368 would not be subject to Article 13.

Changes made to Article 368

Changes were made to the power of Parliament to amend. 

It stated that despite whatever is mentioned in the constitution, the Parliament would be able to add, repeal and amend any section of the constitution according to the procedures set down by Article 368, even provisions mentioned in the proviso of Article 368. After being passed by a majority, such a Bill or Act merely required the assent of the President. 

25th Amendment

Changes made to Article 31

Article 31 states that no one shall be deprived of his property. Clause (2) was inserted.

The clause stated that any law which allowed the state to take property for a certain amount, that amount would not be questioned by a court of law. 

Clause 9(b) after (2A) was inserted that nothing mentioned in Article 19 (1)(f) shall affect such laws. 

Insertion of Article 31C

This was with regard to laws that enforced the fundamentals of the Directive Principles. It stated that laws made to ensure Directive Principles were enforced would not be subject to the scrutiny of Articles 14, 19 and 31. They shall not be declared void if they abridged such rights. 

This is only if the law has been passed by state legislation and has got the assent of the President. 

29th Amendment

The Kerala Land Reforms Act, 1963 (Act 1 of 1964) and other such land reform Acts were added to the Ninth Schedule.

Arguments of the Petitioners

They argued that restructuring Parliament’s powers amending are a part of the Basic Structure of the Constitution. He also stated his fundamental rights to property were being violated. He pleaded to the court to receive recourse.

Issue

  1. The constitutional validity of the 24th, 25th, and 29th Amendment Act.
  2. The extent of the powers of the Parliament to amend the constitution.

Held

The court upheld the 24th Amendment and stated that the 2nd part of the 25th Amendment was ultra vires.

The court in this judgment answers an extremely important question that was left unanswered in  Golak Nath v. State of Punjab i.e. the extent of Parliament to amend. The court observed that such a power should be a balance between the Parliaments’ duty to follow the constitution and its duty to perform socio-economic duties. 

To answer this question, they established the Doctrine of Basic Structure. While they admitted that the Parliaments’ power to amend the constitution was unrestricted with regards to the portion of the constitution they wished to amend, there were certain contours of the constitution that should be left untouched. Hedge.J and Mukherjee.J in their opinions stated that the Indian constitution was more of a social document based on social philosophy than a political document. Just like every philosophy, the constitution contains certain basic features that should not be touched.

The majority bench left it up to the courts to decide what the basic features of the constitution were because, in their opinion, they were not exhaustive.

The major findings of the court are as follows:

  1. There is a difference between an amendment and ordinary laws.
  2. Overruled Golak Nath v. State of Punjab by stating the power of Parliament to Amend is not unfettered. It can’t violate the Basic Structure of the Constitution.
  3. They established the extent of amendment under Article 368 and stated that it was restrictive and they could not make fundamental changes.
  4. It stated that parliament can amend any provision in the constitution, including fundamental rights. But this was again subject to the fact that they could not alter the basic structure
  5. The court mentioned a few basic structures which they could locate such as “Free and Fair Elections” and the “Federal Structure of the Nations”. They also stated that the list was not exhaustive and it was up to the courts to decide whether it was a basic structure or not.
  6. The court upheld the 24th Amendment and struck down the second part of the 25th Amendment. However, the 25th Amendment was to be subjected to two conditions-
  • The word ‘amount’ does not only relate to compensation and it should be related to the market value of the property at that time.
  • The part which barred judicial review was struck down as ‘no law can prevent scrutiny by the courts’.
  1. By validating the first part of the 25th Amendment, the courts recognized the Parliaments’ duty to fulfill their socio-economic duties. They also saved the citizens from parliamentary totalitarianism by striking down the second part which barred legal remedy. 
  2. They stated that the judgment was an improvement from Golaknath as:
  • Golak Nath v. State of Punjab was only restricted to the protection of fundamental rights.
  • By preventing the Parliament from amending the fundamental Rights, it made the constitution rigid. The concept of Basic Structure is an improvement.  

Procedure to Amendment 

Article 368

Article 368 lays down the process by which the Parliament can amend the constitution. The process is as followed.

Step 1

The Bill is introduced in either house of the parliament. 

Step 2 

The Bill must be passed by a total majority(irrespective of vacancies or absentees) and by a majority, not less than 2/3rd of people present and voting by both the houses. There is no provision of joint sitting if there is a disagreement between both the houses. 

Step 3

After acquiring the majority, the Bill is presented to the President who will then give his assent to the Bill. 

In the case of amendment of provisions mentioned in Article 368, It needs to be ratified by not less than half of the states. Ratification should be done by a resolution passed by the state legislature. However, this must be passed before the amendment Bill is presented to the President for his assent. 

Amendment of Fundamental Rights

The backbone of human rights in this country is the fundamental rights stated in Part III of the constitution. The judiciary of this country in numerous landmark cases have proved time and again that the fundamental right of an individual or private organization is not something that can be tampered with. These rights have been given preference in numerous cases with regards to the other sections of the constitution and it can be said that they make up an extremely important part of it.

But given that the parliament has the power to amend the constitution, could they also amend the fundamental rights of the constitution? And do they constitute the basic features of the constitution? By analyzing the case of Sajjan Singh v. State of Rajasthan and Golak Nath v. the State of Punjab, we shall answer the following questions. 

Sajjan Singh v. State of Rajasthan, 1965 

In this case, it was held that fundamental rights could be amended as long as they were indirect, incidental or insignificant on the power given under Article 226, the article under which the High Court received its powers.  

Facts

In order to back up several legislatures with regard to agrarian reforms done by various states, the parliament had amended certain sections of the constitution. This was done through Acts such as the Constitution (First Amendment) Act, 1951, Constitution (Fourth  Amendment) Act, and the  Constitution (Seventeenth Amendment) Act 1964. The Constitution (Seventeenth Amendment)Act 1964, an Act that was questioned had amended 31A (acquisition of the estate by the state) and added 44 Acts to the Ninth Schedule. 

The contentions of the Petitioners

The petitioners who were aggrieved by the legislatures stated that none of these legislatures could be allowed as the Constitution (Seventeenth Amendment) Act was unconstitutional. They contended:

  • The powers prescribed by Article 226 will be affected by the Seventeenth Amendment and thus the Act should follow the special provisions set down by Article 368.
  • The decision held in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar should be reconsidered. 
  • The Seventeenth Amendment Act deals with land. Parliament has no right to make laws with respect to land and thus the Act is invalid.
  • The Act went against decisions of courts of competent jurisdiction and was thus unconstitutional. 

Issues

  1. Whether the Acts violated the powers prescribed by Article 266?
  2. Should the decision of Sri Sankari Prasad  Singh Deo v. Union of India and State of Bihar be considered?
  3. Whether the Acts deal with the land?
  4. Can Parliament validate laws that have been ruled as invalid by the courts?

Held

Laws did not affect Article 226

If the effect of the Act on the powers of Article 226 is indirect, incidental or insignificant, then it shall not be governed by the provisions under Article 336. In order to understand the effects of the Act, one must analyze the pith and substance of the Act. 

The Act solely wishes to amend the fundamental rights with the goal of removing obstacles in the fulfillment of socio-economic policies. Thus its effects on the powers of 266 are incidental and insignificant and do not invoke the procedures under 336.

Sri Sankari Prasad shall not be reopened

In order to review the decisions of a previous case, the court must ask itself, “Is it absolutely necessary and essential that a question already decided should be reopened?”. One must analyze the harm done by the decision, its effect on the public good, the validity of the question and how compelling the question is.

It was held by the bench that according to the guidelines placed, the case should not be reopened. Besides, it shall gravely endanger the laws passed under the amendment Act.

Parliament made no laws on land

The court held that through these Acts, Parliament did not make any laws regarding land. They merely validated land-legislatures which were previously passed. 

Parliament can validate laws that were ruled invalid 

The power given under Article 368 can be done both prospectively and retrospectively. Thus, the parliament can validate laws that have been called invalid by the courts. 

Importance

The dissenting opinion of Justice J.R. Mudholkar theorized the ‘basic features’ of the Indian constitution for the first time. It was his dissent that was used in the famous Kesavananda Bharati case.

He asked “it is also a matter for consideration whether making a change in a basic feature of the constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the constitution; and if the latter, would it be within the purview of Article 368 ?”

He questioned whether one could harmonize a duty to the constitution and the power to amend it. 

He further observed that it was strange that rights stated to be fundamental to one’s self can be so easily amended. He believed that while Article 368 stated the provision and process to amend the constitution, it did not necessarily give the power or the right to amend it.

He also stated that the preamble is the greatest indicator of the basic features of the constitution. 

He went on to question, whether Article 368 provides the power to amend any of the basic features stated there.

https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
        Click above

I. C. Golaknath & Ors vs State Of Punjab & Anrs., 1971 

This case went and reversed the judgment of Sajjan Singh v. the State of Rajasthan. It stated that the parliament does not have the power to amend fundamental rights. 

Facts

The petitioner filed a writ petition against Constitution (Seventeenth Amendment) Act, 1964, which included in the Ninth Schedule, among other Acts, the Punjab Security of Land Tenures Act, 1953 (Act 10 of 1953), and the Mysore Land Reforms Act (Act 10 of 1962) as amended by Act 14 of 1965. 

Issue

Could fundamental rights be amended?

Held

Articles 245, Article 246 and Article 248 of the constitution deal with the power of parliament to amend. Article 368 merely talks about the procedure to amend.

Along with this, an amendment can only become a law if it abides by  Article 13 of the constitution. Thus, if a certain amendment takes away or abridges any rights mentioned in Part III, it is considered void. 

However, the difficulty that the court had to face was the Acts in question may have abridged fundamental rights, but they were considered valid by previous judgments. They used the doctrine of prospective overruling and stated for those laws, the amendment will still be considered. But they also explicitly stated that from the date of the judgment onwards, Parliament would not have the power to amend any provisions of Part III of the constitution.

Importance

While the ratio of this case was reversed in the case of Kasavananda Bharati, some of Golak Nath’s arguments were used in the case. 

It was ruled that there were no limitations on amending under Article 368. But this was with the restriction that “Parliament cannot do indirectly what it cannot do directly.” That is amending is strictly a legislative power, not a constitutional one. 

Is the Theory of Basic Structure a limitation on Amending Power?

The government has a duty to perform certain socio-economic goals. To achieve them, they must sometimes amend the constitution. But what happens when these amendments mess with the basic structure. Shall duty to perform socio-economic duties trump their duty to abide by the constitution. The following cases answer that question. 

Indira Nehru Gandhi vs Shri Raj Narain & Anr, 1975 

When this case was filed to the High Court, Indira Gandhi was at the height of power and her party was enjoying the majority in Parliament. But later on, Indira Gandhi was found guilty for electoral malpractices. She called emergency and passed certain amendment Acts, one of them being Article 329-A which barred judicial review. What needed to be asked was whether judicial review was a part of the Basic Structure of the Indian Constitution. The court held that the emergency was passed in mala fide and Article 329A passed under the amendment Act was unconstitutional. 

Facts

In the 1971 Indian general election, Raj Narain contented against Indira Gandhi in a constituency of Uttar Pradesh. The results of the elections were that Indira Gandhi was re-elected and that the Indian National Congress won a sweeping majority in the Parliament. 

Raj Narain filed a petition to appeal to the Allahabad High Court with the appeal to reverse the elections. He blamed Mrs. Gandhi for using unfair means such as bribery and misusing government machinery to win the elections. 

The Allahabad High Court held that Mrs. Gandhi was guilty of election malpractices. The election in that constituency was declared null and void. It was also held that she could not stand in elections in that constituency for 6 years.  

Aggrieved, Mrs. Gandhi tried to move to the Supreme Court but they shifted the judgment to a future date as the court was on vacation. This led to Indira Gandhi calling for an emergency. President Fakhrudeen Ali when declaring emergency stated it was because of internal emergencies. But in reality, the real reason was the judgment of the Allahabad High Court.

The Supreme Court tried to stop this order and shift deliberations against it to a future date, but  Parliament added Article 329-A to the 39th Constitutional (Amendment) Act, 1975 which made such matters out of the jurisdiction of the court. 

Thus, the 39th Constitutional (Amendment) Act, 1975 was challenged in the court. 

39th Amendment

Clause 4 of Article 329 A

This was with regard to the election of Prime Minister to the Parliament. It stated that the election of the Prime Minister or the Speaker of the House of the People would not be questioned by any authority other than the ones mentioned in the law made by the Parliament. It was also stated that the validity of such laws will not be questioned by the courts. Arguments of the Respondents

  1. Relying on the judgment of Kesavananda Bharati, the respondents argued that the amendment in question violated the basic features of the constitution.
  2. Parliament under Article 368 was only able to lay down general principles governing the organs of the state. 
  3. The question of whether the elections were valid or not depends on the judiciary under Article 329 and Article  136. Thus, such an amendment is violative of the democratic structure of India. 
  4. The amendment is violative of the principle of equality as it states no rational basis for the need to demarcate between people who hold high offices and others.
  5. It goes against democracy as it makes The Representation of the People Act, 1951 inapplicable  to the election of the Prime Minister and the Speaker
  6. Cancellation of the Allahabad High Court judgment is a denial of political justice which is a basic feature in the constitution. The amendment is a slap on the face to not only judicial review but the Separation of Power. 

Issue

Is the 39th Constitutional (Amendment) Act, 1975 constitutional valid?

Held

The court upheld the ratio of the Kesavananda Bharati case and stated that Clause 4 of Article 329 as unconstitutional.  

The majority bench stated that the clause tore at the fabric of democracy. A free and fair election is a part of the Basic Structure of the Constitution. To take that away from the people of India is a huge infringement of their rights. The bench also found it violated other basic features of the constitution such as rule of law (restriction of arbitrary power by law) and principles of natural justice i.e. Audi Alteram Partem.

The opinion of Justice Chandrachud J.

Justice Chandrachud J. also added that the Act was violative of the policy of Separation of Power as it gave the parliament, powers of the Judiciary. He also believed that it was violative of Article 14, as it created an unequal advantage for some considering despite not being under the scrutiny of a free and fair elections, they could hold such a powerful office. 

Minerva Mills Ltd. & Ors vs Union Of India & Ors,1980 

In case, the court examined the implication of the government being able to amend articles in the constitution which gave them the power to amend. They also examined the relationship between Directive Principles and fundamental rights. The bench ruled Clause 5 of 368 (expanded their powers of amendment), Clause 4 of 368 (removing judicial review) and Section 4 of the Amendment Act of 1976 (removing judicial review) to be unconstitutional. 

Facts

In order to save mills that are being managed in a way detrimental to public interests, the government passed the Sick Textile Undertakings (Nationalisation) Act, 1974. By this Act, the government could take over the management of these mills. 

Minerva Mills, a limited company dealing with textiles was accused of being a ‘sick industry’ by the government. A committee was set up to investigate the matter. The report claimed that the company was ‘sick’. Thus, under Section 18A in The Industries (Development and Regulation) Act, 1951 the company was put under the management of the government.

The mill questioned the constitutionality of such an Act that was made possible under the Constitution (Forty Second Amendment) Act, 1976. Due to this, the constitutionality of the amendment Act came into question.

Issue

The constitutionality of  Constitution (Forty Second Amendment) Act, 1976

Held

Clause 5 of the Article of 368

The amendment included clause 5 of Article of 368 stated that the parliament had no limitation on what part of the constitution which they wished to amend. The bench ruled that the newly introduced amendment was unconstitutional. It expanded the government’s limited power to absolute power. Such expansion was against the social, political, and economic justice of the people. Thus, Parliament cannot expand its powers and ruin the Basic Structure of the Constitution. 

Clause 4 of Article 368

The amendment also included clause 4 of 368 which stated that no amendment made under Article 368 could be reviewed by the court. The court also ruled this to be unconstitutional. There is an important balance between the three wings of the government- namely the legislative, the executive and the judiciary. If this clause is to be valid then the judiciary would not be able to markdown any amendment passed under this provision, even if it goes against the Basic Structure of the Constitution. It would the legislature that would decide the validity of the law. That power belongs to the judiciary. 

Thus, this clause gives a power to the legislature which clearly belongs to the judiciary. By destroying this separation of power and depriving the common person of a source of redressal, they go against the fabric of democracy. 

Section 4 of the Amendment Act of 1976

The section tries to isolate Article 14 (equality before law) and Article 19 (freedom of speech) from Article 31(C). After amendment, Article 31(C) stated that any law giving effect to certain Directive Principles shall not be said to be invalid if it violates Article 14 and 19. No court will be able to question such laws.  The court ruled this amendment to be unconstitutional. These two rights that have been violated by these laws are not only an essential part of the Universal Declaration of Human Rights but also essential to the Basic Structure of the Constitution. It was also said that by the ratio of the Kesavanda Bharati case, they cannot be emasculated by these amendments. 

Relationship between Part III and IV of the Constitution

The court also explains the relationship between Part III and Part IV of the constitution,i.e., the fundamental rights and the directive principles. They stated that both created the foundation of the constitution and if one was to be given preference over the other, it would shake the foundation of the constitution and make it weak. They must both be read in harmony.

Dissent

Bhagwati J. dissented with regard to the amendment to Article 31(C). He was of the opinion that one should not rule a law to be unconstitutional at first glance and should first analyze its pith and substance before ruling against it.  

Waman Rao And Ors vs Union Of India (UOI) And Ors.1981

In this case, the ratio of Minerva Mills Ltd. v. Union of India was reversed. It also cleared major doubts in the Kesavananda Bharati case such as; Validity of Acts passed before the judgment. 

Facts

The Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962 violated several fundamental rights. The amendment Act that not only made The Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962 valid but also introduced  Articles 31A and 31B had on the Basic Structure of the Constitution. The 42nd Amendment Act was questioned in the Bombay High Court but the appeals were dismissed. In Dattatraya Govind Mahajan & Ors. vs State Of Maharashtra & Anr, the same issues were presented in the court but the court dismissed the appeal. But the judgment came out during the emergency, so there was an appeal to review the judgment. This case is a review of Dattatraya Govind Mahajan & Ors. vs State Of Maharashtra & Anr,.

Articles in question

Article 31(A)

This Article protects laws that violate Articles 14 (equality before law) and Article 19 (right to freedom) with regards to the acquisition of estate. The law states that laws dealing with:

  • Acquisition of state that led to the extinguishment or modification of any right,
  • Taking over management of property for public interest or for proper management,
  • The amalgamation of estates for public interest or for proper management,
  • The encroaching of rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof,
  • The encroaching of rights for a license for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or license.

shall not be deemed to be void if they are inconsistent with Article 14 and Article 19. 

This was provided that the laws in question were not only formulated by the legislature of the state but had also got the assent from the President.

It also stated land that is under one’s own personal cultivation can not be taken by the State above the ceiling limit applicable to him. But if the State does take land above the ceiling limit, then the State must provide compensation which shall not be less than the market value. 

Article 31(B)

This Act stated that no Act or regulation in the Ninth Schedule shall be deemed to be void on the grounds that it violates any fundamental right, regardless of an order or judgment from any court in this country. 

It shall be the job of the legislature to repeal or amend such Acts.

Article 31(C)

This Act was established to protect laws that secured and furthered the goal of the Directive Principles. It stated that regardless of the guidelines put down by Article 13 ( ensured protection against draconian laws), if the laws secured the principles of the Directive Principles, then even if they violated Article 14 and Article 19, they would be considered to be valid. 

This was provided that the laws in question were not only formulated by the legislature of the state but had also got the assent from the President.

Arguments of the parties

The appellants argued that the protective shield like nature of Articles 31-A, B and C, which prevented any law to be challenged, is unconstitutional. 

Issue

  1. Whether by facilitating their power to amend the constitution under Article 31(a), The government transgressed their power of constitutional amendment?
  2. Whether Article 31(A) is a shield to laws that transgress Article 14, Article 19 and Article 31? 
  3. Whether Article 31(B) can be challenged on the grounds that it infringes on the fundamental rights of the citizens?
  4. Whether Article 31C can be challenged on the grounds that it infringes on the fundamental rights of the citizens? 
  5. Whether the emergency was proclaimed in bad faith and whether the 40th amendment is valid or not?
  6. Whether the doctrine of stare decisis ( the doctrine of looking at previous precedents to guide one’s judgment) can apply on the validity of constitutional Articles or on the laws that are protected by the Articles?

Held 

Issue 1 and 2 Article 31(A)

Article 31(A) went with the dissenting opinion of Bhagwati J in Minerva Mills Ltd. v. Union of India and analyzed the pith and substance of the law. They looked at the 1st amendment Act of the Constitution and believed that the law was placed to aid the zamindari abolition laws and other difficulties that may arise. They also observed that in the process to abolish socio-economic disparities, it may make way for other small inequalities that might be impossible for the government to address.

Thus, the court held that Article 31(A) does not jeopardize the Basic Structure of the Constitution.  

Issue 3- Article 31(B) 

Several Acts by state legislatures were put into the Ninth Schedule and Article 31(B) protected these laws from the scrutiny of the court. 

The bench used the ratio of the Kesavananda Bharati case. They said that Acts put into the Ninth Schedule prior to the Keshavananda Bharati case would receive protection from Article 31(B). But Acts and laws inserted in the Ninth Schedule after the case would be open to scrutiny by the courts. They shall only pass their scrutiny if they do not infringe the Basic Structure of the Constitution. 

Issue 4- Article 31(C)

The court upheld the majority view in the Kesavananda Bharati case and ruled Article 31(C) was not unconstitutional. They stated this Article was closely linked to Article 39 (Guidelines in order to ensure the betterment of public interest). 

Issue 5- Emergency

The House of People (Extension of Duration) Act extended the normal tenure of parliament by one year. The House of People (Extension of Duration) Amendment Act extended the period by another year. 

The bench held that the emergency was constitutional. The evidence against the emergency was insufficient and reasonable safeguards were taken under Article 352 Clause (3) were applied when declaring it.

The court held there was a genuine threat to the security and sovereignty of the country and thus, there was an apt reason for the president to declare an emergency.  

But, the court also ruled that the President could no longer declare an emergency unless the Union Cabinet communicated it to him in writing. 

Issue 6-  Doctrine of Stare Decisis

The court held it was the laws protected by the Article that would be examined by the doctrine of stare decisis and not the Article itself.

The three reasons it gave were:

  • Article 31(a) stands constitutionally valid on its own merits and rests on the foundation of the constitution.
  • There are numerous cases which uphold the validity of Article 31(a).
  • Stare Decisis is not only rigid, but it is limited as well. It would not be wise to apply it to the constitution as it would be deprived of its flexibility. 

S.P. Sampath Kumar Etc vs Union Of India & Ors, 1987

While it has been established that judicial review is a Basic Structure of the Constitution, what happens when judicial review needs to be sacrificed in order to secure goals essential to democracy, such as speedy justice? In this case, the court held that while tribunals were exempt from the jurisdiction of the High Court, it was necessary in order to secure speedy justice. 

Facts

The petitioners appealed to the courts against Section 6 & 28 of the Administrative Tribunals Act, 1985. This Act facilitated the appointment of a tribunal court to handle matters relating to servicemen and the appointment of members on the board. 

Sections of the Act in question

Article 323-A

Clause (1) of this section allowed Parliament to legislate laws for adjudication or trials by administrative councils regarding disputes and complaints about recruitment and conditions of individuals appointed to public service. 

Clause 2(d) stated that such matters will be out of the jurisdiction of all courts, except the Supreme Court under Article 136.  

Section 28 of the Administrative Tribunals Act, 1985

Enacted under the ambit of Article 323-A, the jurisdiction of the Supreme court for such matters has been codified under Article 32, with regards to original jurisdiction and Article 136, with regards to appeals.  

Section 6 of the Administrative Tribunals Act, 1985

This section deals with the qualifications needed to be on the tribunal court.

Subsection (1) of the Act lays down the qualification of the Chairman for such tribunals. The qualifications are:

  • Has been a Judge of a High Court;
  • Has held the office of Vice Chairman for at least 2 years;
  • Has held the office of Secretary of the Government for at least 2 years.

Subsection (2) of the Act states the Vice-Chairman should have at least been:

  • A judge of the high court.
  • Held office of Secretary of the Government for at least 2 years. 
  • For a period of not less than three years been a Judicial Member of an Administrative Tribunal.:

Subsection (3) states that the Judicial member should at least be: 

  • Qualified to be a Judge of a High Court;
  • For at least 3 years been a member of the Indian Legal services.

Subsection 3(A) states a person to be appointed as an Administrative Member should:

  • For at least two years have held the post of Additional Secretary to the Government of India.
  • Been the Joint Secretary to India for at least three years. 

Contentions of the Parties

They contended that the exclusion of the High Court in service matters under Article 226 and Article 227 was unconstitutional. They also questioned the validity of the prescribed mode of appointment. They believed it was outside the powers of parliament under Article 323-A, as they were appointing non-jurist men.

Issue

The constitutional validity of the Administrative Tribunals Act 1985.

Held

The court held that such tribunals are necessary to ensure principles such as speedy justice, uniformity in the decision and predictability of the decisions. Even if it came at the cost of such tribunals remaining out of the jurisdiction of the High Court.

It was also important that along with jurists, esteemed members with specialized knowledge of the subject should also be appointed. They will be able to add points of view and inputs which the judiciary will not be able to provide. Thus, the indiscriminate appointment of such esteemed members will have little to no effect on the workings of the tribunals. 

L. Chandra Kumar vs Union Of India And Others, 1997

This case continues from the S.P. Sampat Kumar case

Facts

Before the administrative tribunal was even established, several writ petitions had been filed. The following case deals with the issues raised in the S.P. Sampath Kumar case

Articles in Question 

Article 323 B

The Act set up tribunals for other matters. The certain matters were:

  • Levy, assessment, collection and enforcement of any tax;
  • Foreign exchange, import, and export across customs frontiers;
  • Industrial and labor disputes;
  • Land reforms by way of acquisition by the state of any estate as defined in Article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of the ceiling on agricultural land or in any other way;
  • The ceiling on the urban property;
  • Elections to either House of Parliament or the House or either House of the Legislature of a state, but excluding the matters referred to in Article 329 and Article 329A;
  • Production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this Article and control of prices of such goods;
  • Offences against laws with respect to any of the matters specified in sub-clause (a) to (g) and fees in respect of any of those matters;
  • Any matter incidental to any of the matters specified in sub-clause (a) to (h)

Issues

The doubts, arguments, and contentions regarding the Administrative Tribunal were grouped under three large issues:

  1. Whether the power upon the Parliament under Article 323-A and upon the State by Article 323-B to exclude the jurisdiction of all courts other than the Supreme Court opposes the power of judicial review of the High Court?
  2. Can these tribunals competently test the constitutional validity of a statute or a rule?
  3. Can the tribunals be said to be effective substitutes of the High Court for judicial review? What changes should be made to the tribunals in order to make them suitable substitutes?

Held

Issue 1- Article 323(A) and 323(B)

In the final hearing of the Sampath Kumar case, the jurisdiction of the Supreme Court was amended to be saved not under Article 136, (Special leave to appeal) but Article 32 (under this article, one can move to the Supreme Court when one’s rights have been unduly undermined). 

In this case, the court did not address the issue of whether Article 323A (2) needed a similar amendment. But they did mention that the main intention of the Act was to provide for a body for speedy justice, and made clear that the tribunals performed a substitution role, not a supplementary one. 

They took into view the suggestions of the learned counsel who stated that Article 323A (2) (d)   and Article 323B (3) (d) should be declared unconstitutional as they shield themselves from the scrutiny of the learned court. Another counsel stated that the power of judicial review can not be entrusted to newly formed quasi-judicial courts that are vulnerable to executive influences. 

They also came to the conclusion that judicial review is a basic feature of the constitution and that Article 25 (corresponding to Article 32) was the very soul of the constitution. 

Issue 2- Constitutional Competence of Tribunals

The court ruled that tribunals have the constitutional competence to rule a statute or rule as constitutional or unconstitutional.

With regard to the power of judicial review, the court took help from American precedents as they stated that judicial review in America and India are very similar. In America, all courts regardless of their rank had judicial review. No court, other than the US Supreme Court has the power to prevent granting of judicial review. 

If the power given to the Supreme Court through Article 32 can be conferred to other courts, there is no reason that the same can not be done with the powers given to the High Court through Article 226. However, it is important to note that the original jurisdiction of the Supreme Court and the High Court remain and the tribunals Act as supplementary bodies. 

They said that tribunals should have the power of judicial review for the following reasons:

  • It is important to clear the backlog cases. 
  • Even though the tribunals have underperformed, it is wrong to blame their founding principles on their performance. The reasons why such tribunals were established are still at large and the existence of tribunals can help rectify those wrongs. 

 But such tribunals would be subject to review of the High Court under Article 266/ Article 277.

Issue 3- Tribunals as Complementaries to the High Court

The court stated that tribunals are not substitutes but complementaries to the High court. They suggested the following changes:

  • Decisions of the tribunals will be subject to review before division bench of the High Court.
  • The appointment of a mix of jurists and experts in the field is beneficial to the tribunals.
  • Tribunals shall be made subject to the supervisory jurisdiction of the High Court.
  • In order to keep tabs on the tribunals, the Ministry may be able to appoint supervisory bodies. 

M. Nagaraj & Others vs Union Of India & Others, 2007

Facts

Several write petitions against The Constitution (Eighty-fifth Amendment) Act, 2001 was filed. 

Arguments of the Petitioners

  1. The petitioner’s aggrieved by The Constitution (Eighty-fifth Amendment) Act, 2001, pleaded to the court to quash the amendment Act with regards to Article 16(4A) (that provides for reservation in promotion with consequential seniority).  They say that such an Act is violative of the basic structure and is unconstitutional. 
  2. They also contend that the Article reverses the decisions of various previous cases. By reversing the decisions of such judgments, the petitioners contended that they have acted like a judiciary body. The use of such powers is violative of the Basic Structure of the Constitution.
  3. The amendment also sought to alter the fundamental right of equality. By attaching “consequential senior” to “accelerated promotion” under Article 16(1), it violates Article 14 (equality before law).
  4. They argued that adding the clause “consequential senior” impairs efficiency.
  5. The petitioners’ questioned The Constitution (Seventy-Seventh Amendment) Act, 1995. They contended that if accelerated seniority is given to roster point promotees, they would have an unprecedented advantage. For example- A roster-point promotee in the graduate stream would reach the 4th level by the time he attains the age of 45 years. On the other hand, the general merit promotee would reach the 3rd level out of 6 levels at the age of 56.

Issue

The issue was the constitutionality of the Constitution (Eighty-fifth Amendment) Act, 2001.

Held

The amendments to Article 16 were considered to be valid and did not alter the structure of Article 16.

I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors, 2007

Facts

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari), Act, 1969, was struck down by the court as it was not a form of agrarian reform protected by Article 31-A. Similarly  Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was also struck down as being not only arbitrary but also unconstitutional. 

Consequently, by The Constitution (Thirty-Fourth 34th Amendment) Act, and The Constitution (Sixty-Sixth 66th Amendment) Act, the Janman Act, and the West Bengal Land Holding Revenue, Act. 1979 were inserted into the ninth schedule.

Contentions of the Petitioners 

The contention was:

  • To insert a provision in the ninth schedule that has been ruled to be unconstitutional is against a judicial review that is a basic feature of the constitution
  • To insert an Act which has been stated to violate the fundamental rights of an individual is against the Basic Structure of the Constitution.  

Issues

  1. Can the 9th Schedule be immune to judicial review of the Supreme Court? 
  2. Whether judicial review of Ninth Schedule laws would include the basic structure test on the touchstone of fundamental rights?

Held

Issue 1- Judicial Review

The 9th Schedule can not be immune to judicial review of the constitution and every Act inserted in the Ninth Schedule has to pass the test of fundamental rights. If review that such Acts do not comply with fundamental rights, then such an Act will be considered invalid.

In the Kesavananda Bharati case, it was observed that the Parliament did not have the power to make any law that transgressed the fundamental rights. If the Parliament did have such powers, that would go against the Basic Structure of the Constitution. 

Ninth Schedule is a part of the Indian constitution and no additions can be made to it that is against the basic structure. Article 368 cannot be amended to allow that. 

Issue 2- Judicial Review as a Basic Structure

It was held by the court that the Basic Structure of the Constitution would include judicial review of the Ninth Schedule, read with the fundamental rights.

Using the Kesavananda Bharati case, they stated that all sections of the constitution are open to amendment other than the contours of the basic structure, and judicial review is one of them. Including an Act in the Ninth Schedule does not exclude it from the scrutiny of the court. 

If the Act passes the test of The basic structure then it shall be stated as valid, but if it does not pass the test, it shall be stated as void to avoid Parliamentary Totalitarianism.

Such a test would check the impact and effect of the law i.e the pith and substance, not the law itself.  

They also stated the principles of fundamental rights should not be violated by such laws’ While Article 13 ensures this, Parliament still goes unchecked in establishing laws contrary to the fundamental rights. These rights have always enjoyed a special place in the constitution, thus it is necessary that laws in the Ninth Schedule abide by them. 

Constitutional Amendments in 2019

Name of Amendment

Amendment

Objective

103rd

Added Clause (6) to Article 15

Added Clause (6) to Article 16

Clause (6) states that individuals from economically weaker sections of society can seek reservation from educational institutions, including private institutions. This is notwithstanding minority institutions

Clause (6) of Article 16 established reservation of individuals from economically weaker sections in government posts.   

104th

Amended Article 334

  • The abolishment of Legislative councils in mentioned States.
  • Dual Citizenship for Indian origin outside the country.
  • Quota to educationally backward classes
  • Quota for religious minorities in government service. 

Conclusion 

Through this article, we explored the amendment of the constitution. We found that there is something called the Basic Structure of the Constitution and it is against the basic principles of justice to breach it. The judiciary was at first of the opinion that the preamble was what constituted the basic structure of the constitution but later on, it was ruled that other aspects of the constitution such as judicial review could also be the aspects of the Basic Structure of the Constitution.

The government in many landmark cases tried to amend the constitution in order to make it easier to ensure the best for the public interest. The judiciary was absolutely against the whole idea, in later judgments we see the judges opening up to the idea of the executive being able to override certain aspects of the basic structure in order to ensure the best for the public interest. But in later on judgments, unless the judiciary was absolutely convinced that such Acts would be beneficial in ensuring greater public welfare, they were strict about amendments that violated the basic structure.

What we must realize is that the constitution is the backbone of this democracy. While it was revolutionary of the fathers of our constitution to provide provisions to amend the constitution, it is essential that such provisions are not misused. Misuse could result in excessive power of the legislative or the executive which could tear the fabric of our democracy.


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post The Amendment of the Constitution: Article 368  appeared first on iPleaders.

Anti-Doping Laws for Cricketers

$
0
0

This article is written by Dhruv Vatsyayan of Law School, BHU pursuing his 1st year of B.A.LL.B and is a cricket enthusiast by passion. This article deals with anti-doping laws for cricketers with a special focus on ICC’s Anti-Doping Code.

Introduction

In June 2019, when the news of Indian Cricketing wunderkind, Prithvi Shaw’s involvement broke into national news, the whole cricketing fraternity was left in shock.

Another Big name in Indian Cricket, Yusuf Pathan was also charged under anti-doping laws along with Prithvi Shaw, which according to Dr. Abhijeet Salvi, Anti-Doping manager of BCCI, has happened due to casual approach of players as well as of the support staff and lack of awareness towards Anti-Doping provisions and setbacks of being involved in Doping. 

Now, in today’s scenario when both, International Cricket Council and Board for Control of Cricket in India has become intolerant regarding doping in the sport, it’s a necessity for every Cricketer and people involved in the management of Cricket to be aware of Anti-Doping provisions in India, particularly in Cricket.

In this article, we will be discussing briefly about Anti-Doping in Cricket, Provisions of BCCI’s Anti Doping Code and it’s execution.

The Anti-Doping Laws

Whenever we hear about Doping, the first thing that comes to our mind is using steroids and performance-enhancing drugs by sportspersons. To a certain extent, it’s true that doping is about the usage of forbidden drugs, however, it also includes using biological methods like gene doping and blood transfusions.

To keep the spirit of sports alive and intact, it’s necessary to prohibit Doping among the sportspersons.

So, in the year 1999, the World Anti-Doping Agency (WADA) was established to realize the goals of the Lausanne Declaration on Doping in Sports, with a motto of creating a world where every sports person can compete in a doping-free environment.

WADA publishes an annual list of drugs and methods which are prohibited to be used by the athletes and the list is contained in World Anti-Doping Code. All the signatories of WADA including India are expected to abide by the code and legislate their respective anti-doping laws.

The organization which carries forward the task of conforming with the rules and regulations of WADA in India is the National Anti-Doping Association, i.e. NADA.

The main functions of NADA, as specified on their website are:

  • Implementation of Anti-Doping Code to ensure compliance by all the sports associations in India.
  • To conduct Dope testing programs.
  • To encourage Anti-Doping research and education.
  • To adopt best practice standards and systems to enable effective implementation and continuous improvement in the program.

However, Doping and Anti-doping mainly fall under the purview of Sports Management and Sports Physiology, but in this article, we will keep ourselves to the legal aspects of the Doping and will discuss Anti-doping laws in cricket.

Anti-Doping in Cricket

Now, one may question how a highly skill-based sports like cricket can be affected by the menace of doping. With the past decade witnessing the emergence of shorter versions of the game like Twenty-20 and T-10 cricket, cricket has now become more of a game of strength and power.

The Fast bowlers and pinch-hitters are most likely to use these doping drugs and methods as their skill requires a certain threshold of strength too.

In the words of former Indian cricket team physio John Gloster, in modern cricketing times, you can’t survive on technique and skill alone, as cricket is an endurance-based sport which sometimes also requires short bursts of power and strength. Thus, the cricketers have also become Doping prone.

Thus to combat the challenge of Doping in cricket, the apex body in the world cricket, i.e. International Cricket Council, became a signatory of WADA in the year 2006.

However, ICC had been conducting anti-doping tests since as early as 2002, but becoming a signatory of WADA was a turning point as from now on, ICC had to strictly adhere by the World Anti-Doping Code.

To pursue the same, ICC has adopted an ICC Anti-Doping Code, which is consistent with the WADA Code.

So, now let us take a deeper look into the ICC Anti-Doping Code.

Anti-Doping Code by ICC

To maintain the integrity of the sport and to keep the sport free from doping, ICC has adopted an Anti-Doping Code in accordance with the code adopted by the World Anti Doping Agency as part of compliance policy due to being a signatory of WADA since the year 2006.

So, let us discuss the code in brief.

Scope

Scope, particularly here, means that who are the people coming in the ambit of this code.

Article 1 of this code exhaustively deals with the scope and application of the code and creates an onus on the players and the other staff to acquaint themselves with the code.

So, any player who has participated in any international match, either as a player in the playing XI or as a substitute player in the past 24 months, i.e. 2 years will automatically bound by the Code and shall need to comply with it.

For illustration, let us suppose a dope test is scheduled for 21st January 2020, and there is this player Milind Deshpande, who has not played any international matches since 20th January 2017. So, he remains out of the scope of this code. 

However, it doesn’t set its jurisdiction over the domestic level players across the world and thus it provides for the duty of the Nation specific cricketing body to organize such dope tests in their territory.

Article 1.2.2 of this code also provides for a provision that once a player is retired from international cricket, he will not be bound by the code unless they didn’t notify ICC of their retirement in writing.

Coaches, trainers, medical staff and other support staff also come under the purview of this code and are expected to comply with the code and make themselves acquainted with the same. Article 1.4.7 clearly states that using and even possessing such prohibited substances by the officials and support staff would amount to a violation of the code and will be punishable.

Now, let us discuss in what ways the code could be violated which would aware the cricketers to refrain from being involved in such activities.

Violation of the Code

According to this code, there are various acts imbibed in this code which would amount to doping. Let us discuss them.

Following are the ways in which this code could be violated:

  • Presence of a prohibited substance or its traces in the player’s sample.
  • Using prohibited substances without establishing that such use is for means of Therapeutic Use Exemption.
  • Failing to submit or dodging sample collection as per notification of the authority.
  • Failing to provide whereabouts details.
  • Muddling with or attempting to muddle with any part of the doping control.
  • Possession or trafficking of prohibited substances or methods.
  • Association with any organization or person, which directly or indirectly promotes doping.

Now let us understand these all one by one.

https://lawsikho.com/course/diploma-entrepreneurship-administration-business-laws
           Click Above
  • Presence of a prohibited substance or its traces in the sample of the player.

This code creates a duty upon the player to ensure that none of the substances from the prohibited list enters his/her body. For example, If Fluoxymesterone, which is a prohibited substance according to the latest updated list in the year 2019, is found in the sample of a player, then he must be treated as and would be charged for violation of the code. Also, lack of knowledge, fault or intent will not amount to any defense for anti-doping violations and neither they are required to establish the violations.

  • Using Prohibited substances or methods without establishing that such use is for means of Therapeutic Use Exemption.

Let us first understand what is the Therapeutic Use Exemption. It is exemptions provided by WADA in such situations where using a prohibited substance becomes essential for therapeutic reasons.

So, this clause establishes that unless it is allowed under the Therapeutic Use Exemption, a player can not use or even possess any prohibited substance.

For illustration, Desmopressin, which is a prohibited drug, is clinically used for preventing night bedwetting but, can also be used to control and decrease the frequency of dehydration. Thus, unless it is not necessary for therapeutic use, any trace of Desmopressin found in players’ samples will amount to a violation of the code.

  • Failing to submit or dodging sample collection as per notification of the authority.

According to this proviso, any player who dodges sample collection or fails to submit his/her sample in due time as per the latest ICC notification, then it will amount to a violation of the code and will constitute doping.

  • Failing to provide whereabouts details.

Firstly let us understand what is whereabouts details.

As defined in the code, whereabouts details are details of the player’s location when with the team or otherwise and it facilitates ease in conducting the doping tests by the Authority, here, ICC. This is to provide a daily 60 minutes testing slot during tours and travel in compliance with the regulations and notification of the WADA.

Following are the things covered under whereabout details:

  1. Overnight hotel location when with team
  2. Location
  3. The full address of the location
  4. Specific dates and time
  5. Whereabouts during team training, all the matches, and tours
  • Muddling with or any attempt to muddle with any part of doping control.

This part of the code deals with tampering with the doping control process or any attempt to tamper with the doping control and establishes that this will also lead to violation of the code.

It includes interfering or bribing the doping control officer, providing fraudulent information or interfering with a potential witness or evidence. For example, if a player is addicted to inhaling a prohibited substance and then his fellow teammate sees the same but due to his seniority in the team, the player accused easily intimidated with the witness player, then it will also amount to a violation of the anti-doping code.

  • Possession or trafficking of prohibited substances or methods.

Even possession of the prohibited substances is restricted under this code and so is the trafficking of such substances or methods. This too will amount to a violation of the code.

Burden of Proof

Under this code, the onus of establishing the proof of violation of the code lies with ICC itself. The standard of proof according to Article 3.1.1, is less than what constitutes proof beyond any reasonable doubts. However, when ICC code places a burden of proof on the player or any other person, then the standard of proof shall be a balance of probability.

Methods of establishing the Facts

As enlisted in Article 3.2 of the code, the following methods are there to establish the facts and the presumptions:

  • Analytical methods after consulting respective scientific officers and experts.
  • Compliance with the international standards as laid down in the WADA’s code of anti-doping.
  • Sample analysis by the laboratories approved by WADA.
  • Facts established by a Court or any other disciplinary tribunal having competent jurisdiction over the player or person in question.

Prohibited List of Substances and Methods

By virtue of the ICC Code, ICC prepares the prohibited list and regularly updates it in accordance with the prohibited list as set out in WADA’s code.

It includes those drugs and methods which have great clinical and medical importance but also can be used as a supplement to enhance the performance of an individual in the sporting arena.

However, a player may be granted permission to use an entry in this list subject to the Therapeutic Use Exemption.

The latest updated prohibited list is available on the following link:

https://icc-static-files.s3.amazonaws.com/ICC/document/2019/01/03/63d4c1cf-cda6-4f3c-aad5-9f4494a6be58/2719-18-ICC-AD-Downloadable-Guide-2019.pdf

Analysis of the Sample

The Samples Collected by ICC to carry forward a dope test, shall be analyzed according to certain rules and norms. These are:

  • Analysis to be done in Approved Laboratories: For the purpose of analysis of the sample, only WADA approved laboratories shall be used. However, the choice shall exclusively be determined by the ICC.
  • Purpose of Analysis: The samples shall be analyzed only to detect prohibited substances or usage of prohibited methods and to assist ICC with the sample results and would serve no other purpose. Also, samples can be collected and stored for further analyses in the future too.
  • Restrictions: All the samples collected thereon shall be the property of ICC and it will be entitled to determine all matters regarding the samples and analyses. However, the sample would not be used for research purposes without the consent of the respective player.
  • Further Analysis: The samples collected for analysis according to the ICC code, may be used in the future for further analysis as the case may be.

Fair Hearings

For further proceedings, ICC shall constitute an Anti-Doping panel which would be presided over by an attorney and would have 6 other members in it. The members of the panel shall be independent of ICC.

In such cases, when a player or person refuses allegations made by ICC, the case shall be transferred further to the Appellate Tribunal for adjudication. The tribunal will consist of 3 members who would be appointed by the president of the Anti-Doping Panel.

The proceeding shall go on in the ICC headquarters at Dubai or any other place as specified by ICC itself.

As stated in Article 8.1.6 and 8.1.7 of the Code, it gives the right of fair hearing to the accused and doesn’t proceed on as Ex Parte hearings, following the doctrine of Natural Justice.

Sanctions

Following are the sanctions which can be imposed upon the player if found guilty:

  • Disqualification of any individual results in any ICC events: If the player is found to be involved in doping during any of the ICC events then all the results due to that individual player shall be canceled and the medals and any kind of other awards shall be seized. The Rankings and points achieved would stand canceled.
  • The imposition of a period of Ineligibility: As specified in Article 10.2.2 of the Code, the period of ineligibility shall be of 2 years and during this period the player would be banned from participating in any ICC events. However, the punishment can be quashed midway after observing the response of the guilty during the first year of the ban.
  • Elimination of period of ineligibility: Later if the player proves that he/she was not involved in doping and proves no fault then the disqualification and ban would be eliminated retrospectively thereafter.

Appeal

Article 13 of the code sets out the provisions for an appeal against decisions in Anti-Doping cases. Decisions that established that an Anti-Doping rule was violated and such decisions where the person involved was punished with sanctions and bans can be appealed against.

According to Article 13.2.2, Following are the persons entitled to appeal:

  • The player or person subject to the decision
  • The other party in the case
  • National Anti-Doping Organization of the person’s country
  • WADA

Appeals against sanctions imposed can be appealed to the CAS of ICC by the WADA itself or person’s National Anti-Doping Organization. 

So these were the most important provisions of the code and in my next article, I’ll be elaborating the Anti-Doping Code by BCCI. 

Conclusion

So, due to highly frequent activities regarding doping in sports and especially in cricket one needs to be aware of the Code explained above and should participate in the sport following the same.

To keep the Gentlemen’s spirit of Cricket alive, implementation of such Anti-Doping Codes in necessary and hopefully the article will help to create awareness against doping involved in the sport and ensure the longevity of the Gentlemen’s spirit.


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Anti-Doping Laws for Cricketers appeared first on iPleaders.

Essentials of a Consultancy Agreement

$
0
0

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. This article delves into the essential elements and clauses of a Consultancy Agreement.

Introduction

Imagine you’re going about your day, enjoying a nice cup of tea while tucked in your bed, and then suddenly, you have a eureka moment and get a wonderful business idea.

The trouble is, you’re a Philosophy professor at a university, with no background in business management, finances, marketing, etc. What do you do?

You go to an expert in the field, of course. Such a person is called a consultant, because he or she advises us on a particular subject. A consultant sees the world from our point of view, understands our problems, and then provides us with adequate solutions. The person who consults them is called a client.

Like any other business transaction, the provision of consulting services also requires a contract or an agreement between the two parties. In this article, we shall understand what a consultancy agreement is, and examine the essential elements that a good consultancy agreement must have, in order to cater to the needs of both the consultant and the client.

What is a Consultancy Agreement?

Consultancy Agreement refers to a contract that defines the terms of service between a consultant and the client. It is drawn up when a consultant is called to provide services to an individual or a business organization. By clarifying all the agreed-upon demands of both parties to the transaction, it helps in protecting their interests and ensuring that the agreement is complied with.

Why do you need a Consultancy Agreement?

The question that might arise is, why do we even need a written agreement? Can’t both parties just discuss what they want from the deal, and be done with it?

Unfortunately, the simplicity of an oral agreement also brings with it certain problems. It does not suffice as proof of the transaction, and moreover, it may leave things uncertain. Having a written agreement that is signed by both parties means that they can protect their interests in case of non-payment, failure to deliver services, or problems that arise between the consultant and the client.

To understand this better, let’s have a look at the major benefits of a Consultancy Agreement, which are as follows:

  • Defines the scope of work: A Consultancy Agreement explains exactly what the consultant has been hired for and what services he is required to perform. This eliminates any confusion that might arise later in the transaction process. It also specifies the exact duration for which the services are hired.
  • Defines the business relationship: A consultant is typically not an employee of the organisation, but an independent individual or entity who acts on his own discretion. It is important to define the exact relationship between the client and the consultant, which in turn has a bearing upon their work, the payment, etc. This is done by the consultancy agreement.
  • Specifies the payment terms: It is necessary to specify the compensation that the consultant will receive for his services before the transaction begins, and that too in writing, so that there is no confusion or dispute regarding the same later on. A consultancy agreement specifies the details regarding the payment of compensation to the consultant.
  • Binding legal document: An agreement helps to protect the parties in case of a dispute. It acts as a legal document enforceable by law and presentable in court, so in case there is any breach of the agreement by either party, it can be used to enforce the terms of the agreement upon them. This makes the transaction more secure and prevents potential loss.
  • Indemnifies the parties: In many cases, the agreement may also indemnify the parties. This means that if any loss, harm or liability is caused to one party by the other, the former compensates the latter for it. This protects the parties from potential financial burdens.
  • Protects Intellectual Property: Consultancy agreements generally describe the rules surrounding ownership of intellectual property, maintaining the confidentiality of business processes, etc. which prevents any encroachment upon one’s trade secrets.

Clearly, a consultancy agreement acts as an advantage in a consulting situation because it addresses all the requirements of the business beforehand and sets out the goals or targets to be achieved. This removes any ambiguity from the transaction and helps ensure project success. However, for this to happen, the agreement itself must be drafted carefully, keeping in mind all the elements to be included in it to make it precise and informative. This brings us to the essential elements of a good consultancy agreement, which are discussed in the next section.

Essential Elements of a Consultancy Agreement

Every consultancy agreement is designed according to the needs of the parties involved and the surrounding conditions and hence, there is no fixed template for such an agreement. However, here are all the essential elements that can make your consultancy agreement more useful and clear.

  • Name of the Parties: First and foremost, the agreement should clearly specify the parties between whom it is drawn, i.e. the consultant and the client. This clause would also specify the exact business the two parties are engaged in. 
  • Scope of Work: As one of the most important clauses, this part of the agreement defines the nature and scope of the work which is required to be performed under the agreement. It describes the services and the manner in which they have to be provided by the consultant. For eg. will the consultant help you solve a productivity issue that you’re having, or will he advise you on how to raise money for the business and facilitate fund mobilization? Thus, the agreement gives a detailed description of the services. This clause helps to ensure that there is no confusion regarding the work before or during its performance. Thus, it brings clarity to the transaction.
  • Term: This clause specifies the exact duration for which the services will continue. That includes the start date as well as the finish date. It is also desirable to include relevant timelines by which time you plan to complete critical tasks with the consultant during the process of consultation. Timelines can help you plan and measure progress regularly.
  • Termination: Usually, an agreement is terminated when there is a breach by either party, but some agreements may also allow it to be terminated in other circumstances. This clause specifies certain situations, if any, where either party has the right to terminate the contract. It also explains the procedure to be followed in such a case as well as the notice period, if required. 
  • Compensation: One of the most important clauses is, of course, the compensation clause, which decides beforehand the exact amount of money that the client shall pay to the consultant for his or her services. It also specifies the method of payment as well as the date on which it is to be made.
  • Relationship of the Parties: This clause specifies the business relationship between the consultant and the client. A consultant is typically not an employee of the client organisation, but rather an independent individual or organisation who works on their own discretion. This means that though they have certain powers, they are not entitled to employee benefits of the client company. They also have to pay their own taxes. To determine such factors, it is necessary to determine the relationship between the parties.
  • Confidentiality: Every business has information about its client lists, operation strategies, future plans, etc. which needs to be kept confidential. When two separate organisations work together under a contract, like a consultant and a client, they get access to some sensitive information about the other party. Thus, every agreement has a confidentiality clause, which obligates each party to the agreement towards non-disclosure of the other party’s information without their consent, to protect it from competitors, the general public, etc.
  • Intellectual Property Rights: This clause includes all sorts of provisions for the protection of the Intellectual Property of the parties. It describes which party will have the rights to the work produced through consultation. Usually, such work is considered “work for hire” and its rights belong to the client. Apart from that, the clause also prevents the consultant from improperly using the trademarks of the client organisation.
  • Indemnity: The indemnification clause defines the responsibilities of each party towards the other in the face of unexpected problems and determines what protection each party will have from the other’s negligence. This means that if any loss, harm or liability is caused to one party by the other, the former will compensate the latter for it in the manner prescribed. This protects the parties from potential financial burdens.
  • Liability: When a client and a consultant work together, it may create a situation where the results might not come out as expected. For eg., you hire a consultant to help you increase the productivity of your company, but the final productivity has not increased as much as targeted. In this case, you might want to sue the consultant. Similarly, the consultant may want to sue you in certain situations. Each party, though, would want their liability to be as less as possible. Therefore, the best solution is to have a clear and detailed clause which determines the liability of each party towards the other.
  • Dispute resolution: Disputes between parties to an agreement are almost inevitable. How should such a dispute be resolved? This is determined by the dispute resolution clause. It explains the mediation process that should be opted by the parties, which is more cost and time effective than court proceedings – especially in small disputes. 
  • Conflict of Interest: This clause prevents conflict of interest for the consultant by restricting them from providing their services to a competitor of the client while they are still working with the client.
  • Expenses: As the consultant is working to provide services to the client, any expenses are undertaken by him during the service period which is necessary for the performance of the work that should be paid for by the client. Thus, this clause establishes this principle and describes the procedure by which the consultant will receive reimbursement for the expenses.
  • Non-modification: This clause states that no modifications can be made to the existing terms of the service unless they have been made officially and in writing. This helps to ensure that no party can take up unscrupulous or unfair means and try to dupe the other party for their own benefit.
  • Signature of both parties: In the end, both parties must sign the document and write the date on which it was signed. This completes the document and gives it legal value. The signature indicates that the parties have read and understood the terms of service and agree to them. Therefore, once signed, the parties cannot later refuse to abide by any rules given in the agreement.
https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
       Click above

Do’s and Don’ts of a Consultancy Agreement

Prior to this, we saw the various elements and clauses that are advisable to include in our consultancy agreement. Besides that, there are certain things that we should keep in mind while drafting and signing a consultancy agreement. The Do’s and Don’ts of joining a Consultancy Agreement are listed below for your easy understanding.

Do’s

  1. Before completing or signing a consultancy agreement, decide what your goals are. This would have a direct bearing on what the agreement includes. Any agreement should at least describe the consultant’s goals or tasks, payment terms and the amount to be paid, deadlines, etc. as well as the client’s rights and expectations.
  2. Read the entire agreement carefully and understand the meaning of each and every term, as well as the implication of each and every clause. 
  3. Make sure that the contract is correct on all key terms so that both the consultant and the client share the same expectations concerning their commitments and obligations. There should be no room for misunderstandings.
  4. Revise the document or renegotiate the terms of either party feels it is not in their best interests or that it is too restrictive. It is important to do this beforehand so that there are no disputes or bad blood down the road.
  5. Sign two copies of the document, one for each party. Preserve the agreement in your business records so that it can be revisited easily whenever required. 

Don’ts

  1. Never sign an agreement before reviewing it in detail, just by relying on the trust you might have in the other party.
  2. Never assume certain terms are agreed to unless they are explicitly stated in the agreement. No aspect of the service process should be assumed to exist, and therefore each term should be specified in the agreement.

Conclusion

A Consultancy agreement benefits both the client and the consultant. It covers all the aspects related to the services to be provided within a given period of time, which helps to avoid misunderstandings between the two parties. Through this article, we have understood the essential elements that are required in each consultancy agreement to enable it to best cater to the needs of the consultant and the client.

References


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Essentials of a Consultancy Agreement appeared first on iPleaders.

Strategic rationale behind Google’s acquisition of Motorola mobility for $12.5 Bn and sale at $2.91 Bn

$
0
0

This article is written by Srishti Kaushal, a first-year student from Rajiv Gandhi National University of Law, Punjab, pursuing B.A. LLB. (Hons.). In this article, she discussed the reasons behind Google’s acquisition of Motorola Mobility and its sale to Lenovo at an apparent loss of $10 Billion.

Introduction

The world was left in shock in 2011 when Google announced that it will be acquiring Motorola Mobility for $12.5 Billion. This was the largest acquisition by Google which completely baffled its shareholders. Further, in 2014 Motorola Mobility was sold to a Chinese technology firm, Lenovo at the price of $2.91 Billion. On the face of it, this seems to be one of the biggest losses that Google has ever incurred. However, in reality, this was a master-play in which Google emerged as a winner. 

In this article, we will look into Google’s rationale behind this deal and whether this acquisition was actually a loss for Google.

But before moving forward, let’s understand what the companies Google Ltd. and Motorola Mobility are all about.

Google Ltd.

Google Ltd. is an American multinational company that specializes in Internet-related services. It is considered to be one of the biggest technology companies in the world. Though initially, it started as a core search engine, its massive growth triggered a number of partnerships and acquisitions, which continues to grow today.

Google is the proud owner of the Android mobile operating system (OS), which has been the best selling OS in smartphones since 2011. Along with this, Google also offers services like Google Maps, Google Calendar, Google Drive, etc, that come along with the Android software.

Motorola Mobility 

Motorola Mobility is a consumer electronics and telecommunication company. It primarily produces smartphones and other mobile devices, which are based on Android operating software, which is developed by Google. It was formed after a split of Motorola into 2 segments, Motorola Solutions (focusing on companies enterprise-oriented business units) and Motorola Mobility.

Google and Motorola Business Deal

On 15th August 2011, Google announced, through a blog post on its site, that it acquired Motorola Mobility for $12.5 billion. It paid $40 per share for this. This amount was 63% more than the price at which Motorola Mobility closed on August 12. This deal was unanimously approved by the directors of both companies, but it still took a lot of regulatory efforts before Google was allowed to move ahead with the acquisition.

Google’s acquisition of Motorola resulted in a vertical merger. A vertical merger is a merger of 2 or more companies involved at different stages in the supply chain for a common good. In this case, the common good was the smartphone. While Google provided the software to go into the mobile phone, i.e., Android, Motorola Mobility provided the hardware, i.e, the mobile phone itself. Google announced that it would run Motorola Mobility as an independent company and finally received approval from the United States Department of Justice and the EU on 13th February 2012, and from the Chinese authorities on 22nd May 2012.

Why did Google acquire Motorola Mobility?

This deal is one of Google’s biggest buys. Let’s understand what were the possible reasons that encouraged Google to follow with this deal.

  • Google is one of the greatest names in the software industry and with more than 80 years of service, Motorola Mobility is a great hardware company. Between 2010 and 2011, the smartphone industry observed an increase in the shipment from 4.1 million units to 5.1 million units. Because of this, Google saw a high potential in the smartphone market. The Motorola acquisition allowed Google to enter into the mobile-hardware manufacturing industry without having to work from scratch. 
  • Google realized that no Operating system is worth anything unless there is a handset. The Android Market was dominated by Samsung, which owned approximately 50% of the market share. Google realised the danger this posed. If Samsung decided to leave Android and develop its own OS (which it was trying to do) or partner with a different OS, Google would be left in a loss. Acquiring Motorola allowed it to increase its interference in the hardware manufacturing market and lessen Samsung’s threat.
  • Motorola Mobility has been involved in the development of intellectual property and innovation in communication technology for a long time. In fact, it is responsible for the introduction of the world’s first portable cell phone. With this acquisition, Google acquired 24,500 patents at a rate much less than their actual price.
  • Google has many creative ideas to modernize its software and thereby the smartphones. Ron, the former product head at Google had said that because of the unaccommodating hardware of the manufacturers, Google has not been able to implement its creative ideas like getting an instant signal when the phone owner walked into a restaurant and start streaming menus and reviews. 

This acquisition allowed Google to implement its creative ideas as it got control over the hardware of Motorola and thus got an opportunity to integrate its software and hardware capabilities. This can be understood by looking at features the Moto X(the phone Motorola and Google created together) had. It included a virtual ear that got enabled with the words okay, Google Maps, Mail, Search etc. 

  • Many of Google’s Android partners had started to alter the android. Samsung, the biggest android user, for instance, had begun degrading it by switching out various parts like video and music player, phone dialer, notification centre, calendar, etc. It also started to hide Android and thus Google’s role in its smartphones. This was done using ‘TouchWiz’, a skin that was developed by Samsung itself and sued to paint all over Android. The instalment of this skin further undermined and degraded Android’s performance as it slowed down Android and wasted storage space.

The smartphones which Google developed alongside Motorola enabled it to install a pure android system in the phones, which showed technologically advanced features of Android. 

Moreover, this step showed that Google can use this partnership to ramp up its own hardware business, promote Android and easily gain greater market share. Hence, it sent out a warning to the other partners to stop messing around with Android.

  • Avoiding taxes was another reason for this acquisition. When Google acquired Motorola, it was a loss-making, money-bleeding company, with carried forward taxes. Google set off these losses with its profits and thereby avoided huge amounts of taxes.
  • It also enabled Google to build better relations with television manufacturers, owing to Motorola’s set-top box system.
https://lawsikho.com/course/insolvency-bankruptcy-code-ibc-nclt-sarfaesi
              Click Above

Why did Google sell Motorola Mobility?

On January 29th 2014, Google announced that it sold Motorola to the Chinese technology firm, Lenovo for $ 2.91 billion (out of which $750 million were given by way of shares). While selling Motorola Mobility, Google retained its Advances Technologies and Projects Unit, which was integrated with the original Android team, and almost all the acquired patents. Let’s understand why this sale was made.

  • In the Android phone hardware business, the margins are very less (not more than 2 to 3%). Google realized that unless it is a dedicated electronic manufacturer, it would be very hard for it to gain success in this industry. 
  • Under Google, Motorola’s operating losses were increasing. In fact, between the 2nd quarter in 2012 and 3rd quarter in 2013, its operating expenses amounted to $1.94 billion. Because of lesser margins, Google observed that it is impossible to turn it into a profitable business for at least a few more quarters.
  • As a result of the acquisition, fear was created in the minds of the Android partners that Google would compete with them directly. They thus started to create or buy their own operating software. For instance, Samsung created Tizen and LG WebOS. By selling Motorola Mobility, Google reappeared as a neutral, honest Operating Software (Android) broker to the world.

Was the sale of Motorola Mobility truly a loss to Google?

Though on the face of it, the sale of Motorola Mobility appears to be a loss of nearly $10 million to Google, reality might be a little different. Let’s understand Google’s rationale behind this move.

  • Financially speaking, Google actually made a profit out of this deal. 
    • When Google acquired Motorola Mobility, it had inherited a cash pile of $3.2 Billion and deferred tax assets of $ 2.4 Billion, the net acquisition becoming $6.9 Billion ($12.5 Billion – $ 2.4 Billion – $ 3.2 Billion)
    • Further, Google sold Motorola’s set-top box business to the Arris Group for $2.3 Billion. It also sold Motorola’s factories to Flextronics for $ 75 million. This reduced the total acquisition to 3.85 Billion dollars. ($6.9 Billion – $2.3 Billion – $75 million)
    • At the end of this acquisition and sale, Google retained patents worth $5.5 Billion. 
    • Thus, even after accounting for the loss of $2 Billion caused because of the operating expenses of Motorola Mobility, Google was still left with a profit of approximately $2 Billion. (-$3.85 Billion – $2 Billion + $5.5 Billion)
  • This deal enabled Google to design a smartphone of wide appeal and transform Motorola Mobility into a healthy competition for Samsung and other Android smartphone makers, especially in the low-cost market. 

Moreover, because of Lenovo’s amazing international presence ( it is the 4th largest smartphone seller worldwide), Motorola got an opportunity to reach the Asian markets, where cheaper phones are in high demand, and compete with Samsung and other Smartphone manufacturers there as well.

  • Moreover, if we take into consideration the fact that Google sold the Motorola branded Android phones at the cheapest possible rates, it becomes evident that Google never wanted to maximize its profit through Motorola Mobility. Its actual aim was to get more people to use Android and thereby Google services, the way Google actually makes money. This aim was achieved by Google through this deal.
  • Because of this deal, Google paid less than a billion dollars for patents worth $5.5 Billion. These patents would help Google in defending the Android ecosystem in the midst of the intellectual property battles.
  • The deal forced Samsung and other Android smartphone manufacturers to reduce their android alterations. This is evident in the deal signed between Google and Samsung on 27th January 2014. Though this deal was a wide-ranging patent deal which will last a decade, in the provisions of this deal another important deal was hidden whereby, Samsung agreed to tone down TouchWiz, refocus on core Android apps and stop unnecessary customization. 

This deal also strengthened the position of Android as a mobile platform. Thus making it tougher for hardware manufacturing firms like Samsung to launch its own OS like Tizen or LG to create its OS, WebOS.

Conclusion

Google’s strategy of acquiring Motorola at $12.5 Billion and selling it off to Lenovo at $2.91 came to be a masterpiece. It didn’t only gain monetarily despite the massive acquisition fee, but also created phones that pushed technology and promoted Android and the other Google services. Thus, it used the android platform which Motorola Mobility used and made it a gateway for its own promotion and advertisement. 

Through this, it smacked down upon the Android smartphone manufacturers like Samsung who tried to take all the credit of the system and prevented them from hiding Google’s contributions. Moreover, the sale to Lenovo allowed Google to leave Motorola in the hands of a company that would be able to use it to offer competition to other manufacturers all around the world, especially in the Asian market.

Lastly, through this deal, Google acquired a lot of patents and also Motorola’s talented research division. The usefulness of these patents is still doubtful, but it can not be denied that Google made a profit worth billions of dollars by acquiring these.

Hence, clearly, Google played an amazing game through this deal and came out as the ultimate winner at the end.

References


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Strategic rationale behind Google’s acquisition of Motorola mobility for $12.5 Bn and sale at $2.91 Bn appeared first on iPleaders.


The Union Territories and Tribal Areas: Articles 239, 240, 241 and 244 Under the Indian Constitution

$
0
0

This article is written by Aarchie Chaturvedi, a 1st-year student currently pursuing BA-LLB from National University of Study and Research in Law, Ranchi. This is an exhaustive article covering provisions of Article 239, 240, 241 and 244 of the Indian Constitution and including some landmark judgments.

Introduction

The contrasting arguments of the public, the discrete claims of the parties to the suit and the varied methods of reasoning and logic presented by the judges during the case of NCT of Delhi v/s Union of India have yet again attracted the attention of the masses towards understanding the provisions of Article 239  of the Indian Constitution. There were various disputes in this case as to whether the Lieutenant governor of the National Capital Territory of Delhi was bound by the aid and advice of the Council of Ministers of the Delhi Government, whether Delhi was a Union Territory or not, whether provisions of Article 73 were applicable to NCT of Delhi or not. However, all the voices were silenced, after the judgment of the Supreme Court, which held that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of the Delhi Government and also has the power to disagree to the Council of Ministers if needed. Now to understand the constitutionality or the rationale behind this judgment we need to know in detail about the nitty-gritty of Article 239 of the Indian Constitution.

In addition to this, in this blog, we will also be dealing with Article 244 of the Indian Constitution, which makes some different laws for yet another region of India i.e the Scheduled Areas.

Administration of Union territories

Article 239 which deals with the administration of Union Territories like Delhi, is our exponent of study here. Now before beginning with the administration of Union Territories, it is essential to know what constitutes the Union Territories.

States and territories under the First Schedule, in Part C and Part D respectively were replaced by the Union Territories, under Part II of the First Schedule. This was done in the 7th Amendment Act, 1956. 

At that time Union Territories were six in number namely, Delhi; Himachal Pradesh; Manipur; Tripura; Andaman & Nicobar Islands; Laccadive, Minicoy and Amindivi Islands.

However after successive Amendment Acts, the following belong to the list of Union Territories:

  1. Andaman & Nicobar Islands;
  2. Chandigarh;
  3. Dadra & Nagar Haveli;
  4. Delhi;
  5. Daman and Diu;
  6. Lakshwadeep;
  7. Puducherry;
  8. Jammu & Kashmir;
  9. Ladakh.

The need for forming of the Union Territories was safeguarding the rights of indigenous cultures, averting political turmoil related to governance matters, etc. For these reasons the status of “Union Territory” may be assigned to an Indian sub-jurisdiction.

Now coming back to what Article 239 talks about. Article 239 begins by stating that the administration of every Union Territory shall be done by the President to such extent as he thinks fit. An administrator can also be appointed by the President and when he feels. Clause (2) of the same article states that the President can appoint the Governor of a State as the Administrator of an adjoining Union Territory and after such an appointment, the Governor may exercise his power and execute his functions independently of his Council of Ministers.

Creation of legislature or Council of Ministers for Union territories 

Moving forward to Article 239 A(1) of the Indian Constitution which states that a Parliament through law can enact a body that can function as a Legislature for the Union Territory of Puducherry consisting of:

  • elected or partly elected or partly nominated persons,
  • or can make a body consisting of the Council of Ministers,
  • or can create both of these with the constitutional powers and functions vested to the Parliament.

Clause (2) of Article 239A further states that irrespective of anything mentioned in the above-stated Clause (1), that has the effect of amending the Constitution or is any amendment to the Constitution by the way of Article 368, shall not be deemed to be an amendment or a change to the constitution.

Special Provisions with respect to Delhi

Special provisions are enshrined for the creation of Legislature or for the creation of a Council of Ministers under Article 239 AA of the Constitution with regards to Delhi. It states that from the beginning of the Constitution (69th Amendment) Act, 1991, Delhi shall be called the National Capital Territory of Delhi and the administrator then appointed shall be referred to as the Lieutenant Governor.  

At present, the Government of Delhi is the authority governing the National Capital Territory of Delhi and its 11 districts. The body of the Government of Delhi consists of the judiciary, legislature, and executive headed by the Lieutenant Governor.

Legislative Assembly for National Capital Territory

Clause (2) (a) of Article 239 AA further also states that a Legislative assembly will be formed in the NCT of Delhi whose members will be selected by the process of direct election from territorial constituencies. 

The total number of members, the reservation of the members of the Scheduled Castes, the division of National Capital Territory into territorial various constituencies, the basis for dividing NCT of Delhi into constituencies and all other such matters relating to the functioning of the Legislative Assembly are under the direct supervision and control of the Parliament as stated in Clause (2) (b) of Article 239AA.

It is also mentioned in Clause (2) (c) of Article 239 AA that the provisions of Article 324 to 327 and 329 as they apply to a State, the Legislative Assembly of the State, and the members of the Legislative Assembly of the State, will also, in the same manner, apply to NCT of Delhi, Legislative Assembly of Delhi, and the members thereof.

The Legislative Assembly is also empowered to make laws for matters listed in the State List and the Concurrent List, as far as any such matter is relevant to the Union Territories except for matters in relation to Entries 1, 2 & 18 of the State List and matters of Entries 64, 65 and 66 of the same list if they are in relation to Entries 1, 2 &18.

However, Clause (3) (b) of Article 239 AA states that nothing in the above-mentioned clause shall prevent or hinder the powers of the Parliament from making any law in relation to the matters of the Union Territories or any part.

Yet the powers of the Legislative Assembly are restrained by Clause (3) (c) of Article 239 AA which states that any law made on any matter which is unacceptable to the law of the Parliament, or any other earlier law, shall to the extent of such unacceptability be void. Even when, after the law passed by the Legislative Assembly a law is passed by the Parliament, and the law passed by the Legislative Assembly then holds to be unacceptable as per the law passed by the Parliament, then that law to the extent of unacceptability shall be void. 

Nonetheless, if some law made by the Legislative Assembly is waiting for the assent of the President and the President gives his assent to it then that law shall prevail in the National Capital Territory of Delhi.

Provided further in this sub-clause is that nothing shall then also limit the Parliament from making any law so as to add or to vary from or to amend or repeal the law made by the Legislative Assembly.

https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy
             Click Above

Council of Ministers

Clause (4) of Article 239 AA talks about the Council of Ministers in relation to the National Capital Territory of Delhi. 

  • It states that the total strength of the Council of Ministers shall not exceed more than 10 percent of the Legislative Assembly.
  • The Chief Minister shall be the head of such a body of the Council of Ministers.
  • The Chief Minister shall be assigned by the President and the other Ministers shall also be assigned by the President on the advice of the Chief Minister and shall hold their offices during the pleasure of the President (Clause (5) of Article 239 AA). 
  • The Council of Ministers so elected shall remain responsible collectively to the legislative assembly (Clause (6) of Article 239 AA). 
  • The Chief Minister’s duty includes aiding and advising the Lieutenant Governor in the execution of his functions until and unless the Lieutenant Governor is himself empowered to make laws at his discretion. If there is a dispute regarding the difference of opinion between the Lieutenant Governor and his Ministers than the dispute should be referred to the President whose decision would be final and binding. Still, in urgent situations, where the Lieutenant Governor feels that waiting for the President’s decision could have a worsening effect than in those situations, the Lieutenant Governor is empowered to take immediate action till the further orders of the President.

Parliament’s power to give effect to or to supplement the aforesaid provisions 

Parliament under Clause (7) (a) of Article 239 AA has the power to make laws to augment or to provide strength to any of the provisions explained above or in relation to any matter resulting thereto.

However, Clause (7) (b) also states that any law made under the above-mentioned clause shall not be an amendment to the Constitution under Article 368.

Clause (8) of this section further states that the provisions of Article 239B will apply to NCT of Delhi, the Lieutenant Governor and the Legislative Assembly in the same way as it applies to the Union Territory of Puducherry, the Administrator of Puducherry and the Legislature of Puducherry respectively. It also mentions that any reference to Clause (1) of Article 239A will be deemed to be a reference to this article (i.e Article 239 AA) and Article 239AB as the case may be. 

NCT of Delhi  v/s Union of India

Now, after explaining the provisions of Article 239 AA which deals with Delhi, let’s come back to the famous case of NCT of Delhi v/s Union of India, mentioned at the beginning of the blog and try to understand its basics. As per Article 239 AA, public order, police, and law are under the jurisdiction of the Central Government whereas the other matters in the State List or the Concurrent List as far as they are applicable to the Union territories fall under the jurisdiction of the Legislative Assembly. 

In the current scenario, Delhi is divided into 3 scales of governance:

  • First area being under the control of elected Central Government through a LG exists as the administrator;
  • Second area under the supervision of elected representatives (MLAs) of Delhi Assembly; 
  • Third being areas falling under elected representatives (Mayor & Corporators) of municipal bodies, of which the management and control are in the hands of Commissioners appointed by the Central Government.

The root of the case lies in the appeal filed by Aam Aadmi Party (the government of Delhi) against the Delhi High Court’s decision stating that the Lieutenant Governor is the region’s sole administrator. The Center passed a word on May 21, 2015, granting some rights to the Lieutenant Governor which according to the Aam Aadmi Party’s claim were “unprecedented powers”. From then on there were clashes between the Aam Aadmi Party and the Lieutenant Governor followed by strikes, protests, etc. which lead to this suit, being ultimately filed in the year 2018 in the Supreme Court for hearing for the request of justice.

The judgment  pronounced by the Supreme Court  had the following main points:

  • While giving the judgment in this regard, Chief Justice Misra observed that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of the Government of Delhi. He cannot act on his own. The Council of Ministers has to convey its decision to the Lieutenant Governor, but this does not mean that the Council of Ministers is bound by the recommendation of the Council of the Lieutenant Governor. All five judges off the bench also agreed to this point.
  • Justice Chandrachud commented that the Lieutenant Governor’s consent was not compulsory to be obtained in every matter. Justice Ashok Bhushan also added his viewpoint on this aspect that the opinion and decision of the elected government has to be respected, but the Constitution does not provide that the Lieutenant Governor must agree with all decisions of the government
  • The judges said that “the status of NCT of Delhi is sui generis (unique) and the status of the Lieutenant Governor is also not that of a Governor. He remains an administrator, in a limited sense only. These factors only, according to the judges gave special status to Delhi as the NCT. The bench also held that stating that the region will be under the control of the Lieutenant Governor.

Justice Chandrachud added to this point that the court must continue with the values of democracy. He said that the real power and substantive accountability are vested in elected representatives in democratic governance. The sovereignty of the people, the democratic way of governance and secularism are intrinsic to the Constitution. The basic structure places constraints on the exercise of constituent power which according to him must also be kept in mind in this case.

Points of difference between the Lieutenant Governor & the Governor of Delhi & Puducherry respectively

Both Delhi and Puducherry have quite similar administrations and management. However, while talking about the functioning of the Lieutenant Governor in the context of both of these places there are few differences. The differences can be explained as below:

Lieutenant Governor of Delhi

Governor of Puducherry

The Lieutenant Governor of Delhi enjoys more power than the Governor of Puducherry.

The Governor of Puducherry has lesser power than the Lieutenant Governor of Delhi.

The Government of National Capital Territory of Delhi Act, 1991, and the Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, guide the Lieutenant Governor of Delhi.

Governor of Puducherry is guided by the Government of Union Territories Act, 1963.

The Legislative Assembly of Delhi has the power to make laws on all subjects except law and order. In Delhi, the role of the Center is more important in contrast with the role of the Lieutenant Governor who acts as the eyes and ears of the Center. 

The Legislative Assembly in Puducherry can legislate on any matter under the State Lists and the Concurrent Lists however it must not be in contravention to the law. 

Provisions in case of failure of Constitutional Machinery

Article 239 AB talks about the provision in cases of failure of constitutional machinery. Now in order to understand this, it is important to understand what is constitutional machinery.

Constitutional machinery refers to a body of the elected persons or the government of a particular territory who are/is obliged to manage the affairs of the particular territory according to the provisions of the constitution of that land. However if under certain circumstances there is a failure of the constitutional machinery, the President has to take action then.

The President on receiving a report from the Lieutenant Governor or if he is otherwise satisfied that certain situation has arisen under which it is difficult to carry on with the administration of the National Capital Territory of Delhi under Article 239 AA or under any law made agreeable to it, or for the appropriate administration of NCT of Delhi it is a necessary and requisite condition to do so, may then suspend any operation done under Article 239 AA or under any provision made agreeable to it for a specified period and under specified conditions provided in such law. The President can also make any provisions resultant of such law as may deem fit to him for the proper administering of National Capital Territory of Delhi under Article 239 A and Article 239 AA. 

Power of administrator to promulgate Ordinances during recess of Legislature: Article 239 B

To understand the functioning of this article one needs to know what is an ordinance. An Ordinance is a law that can be enacted by a city, a commission or a country for purposes that are not mentioned in federal laws or state laws. Some examples are safety and building regulations.

Promulgate on the other hand means to put in action a law (or an ordinance here) by official proclamation.

Now, if we move on to understanding Article 239 B we see that it states that except any time when the Legislature of [the Union Territory of (Puducherry)] is in session, if the administrator feels so or is satisfied that such circumstances exist which make it essential for him to take immediate action, then the administrator may promulgate such ordinances as he feels are required. 

However, no ordinance shall be allowed to be promulgated if a decision is given by the President in that particular matter for which the ordinance was required to be promulgated.

This clause further also mentions that the administrator during the period of dissolution or suspension of Legislature shall not promulgate an ordinance if such suspension or dissolution of Legislature was in accordance with Clause (1) of 239A or under any other such law.

Clause (2) of Article 239 B whereas talks about those ordinances which are promulgated after following the directions of the President under his supervision. This clause says that all such directions shall be assumed to be the Act of the Legislature of the Union Territory. But every such Ordinance:

  • Should be laid before the Legislature of the Union Territory and should after the expiry of six weeks from the time of reassembly of the Legislature come to an end.
  • And any such ordinance as it was passed under the guidance of the President can be abnegated by the administrator on receiving the assent from the President for such withdrawal.

There is one more clause in this article which is Clause (3) under which it is mentioned that when an Ordinance is not valid if enacted in the Legislature of the Union Territory and has been made after observing the provisions in that behalf contained in Clause (1) of Article 239 A or any other such law, then that ordinance shall be void.

Power of President to make regulations for certain Union territories

These powers of the President are discussed under Article 240 of the Constitution. The President may make regulations for the peace, progress and good government of the Union Territory of:

  1. Andaman & Nicobar Islands;
  2. Lakshadweep;
  3. Dadra and Nagar Haveli;
  4. Daman and Diu;
  5. Puducherry.

Still, there is a restriction to the powers of the President in this regard. The President shall only exercise his powers when the Legislature of the Union Territory is suspended or disbanded in relation to any law in accordance with Clause (1) of Article 239 A. The President shall also not exercise his power after the Legislature has been created i.e. from the date approved for the first meeting of the Legislature after its creation.

Clause (2) of Article 240, on the other hand, states that any law made for the Union Territory for the time being, in order to amend any Act made by the Parliament, when promulgated by the President shall have the same effect on the Union Territory as any Act of Parliament.

High Courts for Union Territories 

According to  Article 241 of the Constitution, Clause (1), the Parliament may by law constitute a High Court for a Union Territory or make a court in the territory to be the High Court for any such purposes made by the Constitution.

Clause (2) of Article 241 further states that the provisions of Part V and Part VI shall apply to High Courts of Union Territories as mentioned in the above clause, in a similar manner as they apply to other  High Courts under Article 214 unless any provision or specification as Parliament may by law provide.

Moving on to Clause (3), it states that every High Court that exercises jurisdiction on any Union Territory immediately before the formation of the Constitution will carry on to do so subject to the provisions of the Constitution or any law made by the Legislature. However, nothing prevents the Parliament from making any law to extend or to keep out the jurisdiction of the High Court of a State upon any Union Territory or any part thereof [Clause (4) of Article 241)]. 

Scheduled and Tribal areas                                                                                                                         

Coming on to the second main component of this blog, which is Scheduled Areas and Tribal Areas. Scheduled Areas and tribal areas presently exist in the states of Andhra Pradesh (including Telangana), Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan. 

As provided for in paragraph 6(1) of the Fifth Schedule to the Indian Constitution the specification of “Scheduled Areas” in relation to a State shall be, after consultation with the Governor of that State, notified by the order of the President. Pursuant to the provisions of paragraph 6 (2) of the Fifth Schedule of the Constitution of India, the President may, after consultation with the Governor of that State, increase the area of any Scheduled Area in a State and make fresh orders redefining the areas to be Scheduled Areas in relation to any State. The same applies to any alteration, increase, decrease, incorporation of new areas or withdrawal of any Orders relating to “Projected Areas”

There are no criteria for the creation of scheduled areas but some conditions that have become well known are:

  • Prevalence of tribal population;
  • Compactness and reasonable size of the area;
  • A feasible working unit such as a district block or Taluk;
  • Economic backwardness of this area as compared to the surrounding areas.             

This component of Scheduled and Tribal Areas is also dealt with in Part X of the Constitution of India.                                                                                               

Article 244 which talks about these, begins with Clause (1)  stating that the provisions of the 5th Schedule of the Constitution shall apply to the management and control of the Scheduled Areas and Scheduled Tribes in any State other than the state of Assam, Meghalaya, Tripura, and Mizoram. Clause (2) of the same article, however, states that the 6th Schedule of the Constitution shall apply to the administration of tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram.

Article 244 A further talks that irrespective of anything stated in the Constitution, Parliament has the power  by law to form any free state from within the State of Assam consisting of all or any of the Tribal Areas specified in Part I of the table appended to paragraph 20 of the 6th Schedule and thereof create a body consisting of:

  •  elected  or partly elected or partly nominated persons;
  •  Or can make a body consisting of the Council of Ministers;
  • Or can create both of these with the constitutional powers and functions vested upon the Parliament.

Clause(2) of this article further states that any such law as referred to Clause (1) may in specific:

  • Express the matters of the State List or the Concurrent List which the Legislature of the autonomous State( or free state)  will have the power to make laws upon, for the whole state or any part thereof, and whether it would be keeping out of the Legislature of the State of Assam or not.
  • Elucidate the matters to which the autonomous powers of the state shall extend.
  • Provide that any tax imposed by the State of Assam shall be assigned to the autonomous State in so far as the proceeds are attributable to the autonomous State.
  • Provide that any mention of State in the constitution shall include the autonomous state also.
  • Construct such provisions as are subsidiary or consequential or as are deemed necessary as the need of the hour.

An amendment or change in any law as to the provisions mentioned in the above clause shall have no effect unless the amendment is passed by the 2/3rd majority of the house present and voting. An exception to this is any amendment to sub-clause (a) or sub-clause (b) of Clause (2). This provision is stated in Clause (3) of Article 241.

And the last clause, Clause (4) states that irrespective of anything mentioned in this article, that has the effect of amending the Constitution or is any amendment to the Constitution by the way of Article 368, shall not be deemed to be an amendment or a change to the constitution.

Conclusion

The Constitution of India creates a law that is binding on every citizen of India. The laws are the same throughout the country, but keeping in view the special circumstances of a particular region or territory of India, different laws governing those areas were created. Laws like these are covered in Article 239 and 244 of the Indian Constitution. In this blog, beginning from the need for such provisions to the nitty-gritty of such provisions everything is explained in detail. This blog tries to prevent any misinterpretation or miscommunication or misconception with regards to the provisions of these Articles. And it is essential to explain these articles as they are the ‘talk of the hour’ in a country whose political awakening is increasing day by day.

References

  1. http://www.aaptaxlaw.com/constitution-of-india/article-239-239a-constitution-administration-union-territories-creation-local-legislatures-council-of-ministers-for-union-territories-article-239-239a-of-constitution-of-india-1949.html
  2. http://delhiassembly.nic.in/constitution.htm
  3. http://delhiassembly.nic.in/constitution.htm
  4. https://indiankanoon.org/doc/1144754/
  5. https://indiankanoon.org/doc/1823046/
  6. https://indiankanoon.org/doc/1364341/
  7. https://indiankanoon.org/doc/1624304/

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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post The Union Territories and Tribal Areas: Articles 239, 240, 241 and 244 Under the Indian Constitution appeared first on iPleaders.

This is how much you can earn by drafting a single contract! 

$
0
0

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

Many law students and litigators ask me how much a corporate lawyer can earn, especially if they practice independently or start a new law firm. 

I think the pricing of a Shareholders’ agreement (SHA) is one of the most fascinating subjects that can give you a good glimpse into the earning potential of corporate lawyers.

A shareholders’ agreement contains certain specific, important and practical rules relating to the company and the relationship between the shareholders. In more than one practice area of a law firm, the majority of the partners do SHA related work for a vast majority of their time. This is something that contributes a lot to the revenues of the law firms, possibly more than a non-corporate lawyer would imagine. 

M&A, Private Equity and Venture Capital work largely include drafting SHA or SSPA (Share Subscription and Purchase Agreements) apart from due diligence and a bit of deal compliance.

Outsiders think that there must be a price range. Insiders know that the answer is much more complex.

In the course of doing research on this article, I spoke to around 6 lawyers, including law firm partners, individual practitioners, founders of boutique law firms that specialize in investment deals and young lawyers who frequently work with startups at considerably low rates. The range I got was Rs. 30,000 to Rs. 40,00,000. Pricing varies wildly, not only from one service provider to another service provider but also from one deal to another.

At the bottom of the food chain, there are individual lawyers who would work on a small deal. They may draft an SHA for INR 30,000, usually for early-stage investment in a startup. I’ve never heard of a smaller number and finding someone who will competently draft and negotiate an SHA at that rate is quite hard. You have to find a very young lawyer to do it at that rate. A more likely number would be something above Rs. 60,000. However, it seems there are significant undercutting and competition going on at this level, and prices fluctuate a lot.

In recent times, the market has been flooded by lawyers looking for this kind of work. Since the advent of the startup economy in India, a lot of lawyers who earlier worked for big law firms and handled big deals, have moved into the startup market to build an independent practice. With a wider supply base, the price has significantly come down.

https://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolution

Click Above

The boutique law firms that are known for investment law work will easily charge much more. Some of them will aim for 1% of the deal value as the fee, which means they will get 1 lakh for per crore of investment. This is on the higher side though. Some of them refuse to negotiate on price because reducing the price to get a client can send long-lasting wrong signals to the market.

Boutique law firms tend to get high quality, specialized work, the partners are known for their specialization, and often command better hourly rates than some of the bigger law firms, especially compared to junior partners at these big law firms.

Such boutique law firms will easily charge 3-4 lakhs for a 10 crore investment or acquisition. It is rare to be able to charge over 5 lakhs for a transaction by these firms unless they are combined with extensive due diligence.

Of course, with the complexity of deals, prices also increase. If there are several groups of investors involved, that increases the number of negotiation points, markups, the volume of paperwork, and the number of moving parts to track in a deal. Therefore, the price goes up significantly. Usually, such late-stage investment deals involving many investors, are handled by more mature firms with more experienced hands on deck.

Next comes the full-service law firms, with specific teams and partners for M&A, PE, VC, who are responsible for growing these practice areas. These law firms, especially if not tier 1 firms, tend to be aggressive in matters of pricing. They offer very cheap rates especially to bag long-term clients, as they tend to have many mouths to feedback at the firm, where they are trying to grow the team and reputation.

Earlier all the big deals, where hundreds of millions of dollars were being invested or huge corporations were being acquired, used to exclusively go to the 7-8 big law firms. Things have since changed. The newer law firms often referred to as 2nd or 3rd tier law firms, have really dented the market by offering cheaper prices and comparable service levels. Also, the big companies and their in-house legal teams, have come to appreciate that these newer crops of law firms although much cheaper, are no less in service quality than their expensive counterparts.

Big law firms are able to charge up to 30-40 lakhs in some large deals for negotiating the SHA or SSPA. However, 8-10 lakhs are more realistic targets for them as well. In many of these matters, a fixed fee has become the norm through law firms prefer an hourly billing model. 

Why is it so expensive to get an SHA drafted or negotiated?

The jurisprudence around SHA is not really settled. There are a whole lot of standard clauses in a typical SHA, such as tag along, drag along, reverse vesting, Right of First Refusal, etc, which are yet to be tested in the court of law. It is dangerous territory for even in-house counsels, and they are not ready to put their neck on the line on how these will be decided in the future. It is much safer to hand off the responsibility to outside counsels who do this work day in and day out.

Also, SHA or SSPA are complex documents, often running into hundreds of pages. This kind of work is quite rare in most companies. The exclusive knowledge and experience needed to do this work, therefore, develops only in law firms that handle M&A and investment-related work. If a new lawyer who did litigation all his life jumps in to do an investment deal, he will be quite out of depth and there will be a huge learning curve.

Also, those with a better understanding of venture capital, PE and even specific technology industries and insider knowledge of these enterprises, tend to do much better in negotiations.

Most other contracts over time tend to become standardized. For example, IP assignment agreements. There was a time when these kinds of agreements were unusual in India, and very few lawyers had the skill set to draft or negotiate them. Law firms used to charge a premium to draft assignment agreements. However, over time enough lawyers and law firms worked on it, and now it is a staple agreement, and every company with IP and a legal team probably has several templates which they reuse every time there is an assignment of IP.

This never happened with M&A or investments. The agreement you sign when there is a majority shareholder investing additional money, and the agreement you sign when there is an investor with 5% buying another 10%, will look completely different. The situations are complex and they differ every time. Every company has a unique set of opportunities and risks. Every fund has a different objective than another. Investors have a different stomach for risk and every founder has different priorities and unique ways to negotiate. Highly customized solutions become necessary in these circumstances. And this inability to standardize the documentation around deals is perhaps the biggest reason that the drafting and negotiating of SHA is one the best paid legal work.

This is why big companies and funds started by outsourcing this kind of work to law firms, and it became the norm over time. Some big companies have begun to hire their own in-house M&A lawyers now, especially when they plan on many acquisitions or strategic investments in years to come. But it is still the exception rather than a trend.

What does the future hold?

If you want to be an M&A lawyer or investment lawyer, you must learn to draft and negotiate SHAs. We teach this skill not only in our Diploma Course on M&A, Investment and Institutional Finance (Enrolment closes on 30th January 2020) course.

SHAs and a plethora of other relevant contracts like the Software Development Agreement, Co-Founders Agreement, Share purchase agreement are taught in our Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution. You can check out the course page to see the elaborate list of contracts in the course. (Enrolment closes on 14th January 2020).

We dedicate a significant portion of the course, in teaching you how to draft and negotiate SHAs.

You don’t just read some study materials or watch some videos. You have to work extensively on exercises that deal with realistic scenarios you will face when you begin to do this sort of work IRL. In real life.

And yes, this is an area of work which holds a lot of promise in the future. Investment in the Indian economy is not about the slow down, and neither will consolidation be achieved through M&A. This is the sort of legal work that will always be the domain of experts than generalists. So by learning to draft SHA you are likely to do very well in the long term. This is a very, very useful skill to learn.

Just make sure you are well prepared with knowledge, basics, and concepts for the opportunities that will show up. Let us know if we can help you with that preparation. All you need to do is comment below and request a consultation call.

Here are the other courses you might be interested in where the enrolment is closing soon:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting


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

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post This is how much you can earn by drafting a single contract!  appeared first on iPleaders.

Types of Agreements related to Film Production

$
0
0

This article is written by M.Arjun, a 5th-year student studying in Government Law College, Thrissur. This article deals with the Types of Agreements Related To Film Production.

Introduction

India boasts of being the second-largest film industry in the world. A record number of over 1200 Indian movies are released every year driving annual revenue of more than 180 billion dollars. The hectic process of filmmaking often involves an army of men working foreground and background in the industry. Furthermore, the art of filmmaking involves a lot of promises, transactions, and commitments. It is quite important that these relationships are regulated by law. Hence, the need for a wide variety of legal agreements throughout the operations of filmmaking comes into play.

Stages in Film Production

The process of moviemaking involves 5 different stages:

  1. Film Development: This is the first stage of the process where the idea for the movie is developed, the preliminary budget is decided and the necessary rights are secured. So once all the arrangements are made, the project goes through the pre-production phase.
  2. Pre Production phase: In this phase, all the arrangements such as preparing the detailed cast, developing complete budgets and selecting the locations for the shoot are done.
  3. Production phase: This is the phase where the film is actually captured or shot. It involves the effort of a large number of people working hand in hand.
  4. Post Production– After the film is shot, all the editing, dubbing, sound mixing, and visual effects(VFX) works are done during this stage. 
  5. Distribution: In this phase, the producers distribute the movie to various distribution channels for releasing the movie to the masses.

Importance of Legal Agreements for the film industry

A lot of written agreements are required during each of the above five phases. From the script to the screen, the process of filmmaking involves a lot of Intellectual property rights. Moreover, a lot of content creators and artists form part of a movie. Hence it is quite obvious that the needs for differentiation and protection of intellectual property rights of various entities come into play. There can be negotiations between content creators and producers in relation to the various IP rights. These are recorded through various contracts. 

After all, movies are a form of business. A lot of capital and other resources are involved in business transactions. Failure to document these transactions by written agreements can lead to uncertainties and heavy losses. Moreover, investors and banks have started to mandate the producers to have written contracts with them as well as with the cast and crew of the film. Various liabilities arise during production due to non-performance of duties and negligence of crew members.  Hence, the liability in the process of film development is also to be clarified.

The entire process of moviemaking is time-bound as time is one of the crucial factors affecting the commerciality and success of the film. Earlier, the film industry could not enforce its rights due to the absence of written agreements. But, now the media and entertainment industry went through a significant change so as legal awareness. The industry takes its contractual and intellectual property rights seriously. At present lawsuits, litigation and contentious matters are nothing strange for this robust industry. Legal agreements facilitate the parties to approach the court and other dispute resolution mechanisms to protect their IP rights and contractual rights. 

Types of agreements used in film-making

There are various kinds of agreements used in different stages of moviemaking. It is not essential that all of these agreements shall be used in a particular movie. It depends on various circumstances related to a movie. We will discuss some of these agreements below: 

Film Director Agreement

A director is the soul of a movie. Hence, a director’s agreement deserves great significance. Director services agreements are executed between the production company or producer and the director. The motive of this agreement is to lay down the terms and conditions in connection with the services provided by the director. 

The main contents of this agreement include:

  • The main objective required to be fulfilled by the director shall be highlighted under this agreement. All the services rendered by the director will be included. The budget of the film shall be agreed by the producer and the director to avoid uncertainties at any stage of the movie.
  • The salary of the director and the time period for such payments will be agreed upon by the parties. Provisions for other remunerations such as profit sharing and royalties shall also be provided in this agreement. The parties may agree upon conditions such as if the film crosses gross revenue of a prescribed amount, the director shall be provided with a bonus of a prescribed value. 
  • The agreement also provides the rights and duties of both the producer and director in detail. Rights of the producer such as dubbing the movie in other languages, planning the sequel of the movie, etc are included. The obligation of the producer includes providing necessary funds as per the agreed budget, obtaining necessary rights for the film and so on. Whereas, the rights of the director include matters like deciding the technicalities of filmmaking, approving the final version of the film, monitoring the post-production works, and appointment of associate directors. The exclusivity of the director during various stages of production shall be agreed on. It means that the parties should decide upon whether the director can work on other projects simultaneously. 
  • The agreement shall also refer to the term of appointment of the director and conditions for termination of his service. The various time periods for completion of each task such as pre-production, post-production and filming period will be mentioned in the agreement. All the matters in relation to the movie where both parties ie the producer and director is required to make a joint decision should be expressly provided in the agreement. This includes matters such as deciding the location, key cast & crew members, marketing plans, budgeting and so on. The parties can even negotiate on matters such as on-screen credit, review of the progress of the film, etc can be made in the agreement. 

Co-Production Agreements

There may be instances in which a producer cannot meet the funds required for funding a movie project. In such cases, the producer collaborates or enters into a tie with another producer or production company. The Co-Production agreements combine two or more producers for the creation of the film. 

The agreement should clearly mention the name of the movie as well as parties and the purpose for which a co-production is undertaken. The total budget for the project will be agreed upon. In addition, the contribution of each party along with time limits for raising such money will be provided in this agreement. If the other party is given the role of an executive producer, it should be expressly mentioned in the agreement. 

The control of each party on the creative and business aspects of the project will be laid down under this agreement. This is an important section of the confidential obligation through a clause in the Co-Production Agreement.

The Co-Production agreement also deals with the distribution of profits among the producers. Provisions for recoupment (recovery of expenses) and division of net profit between the producers are dealt with in the agreement. The right and obligation of parties such as the right to audit the production process and maintenance of books of accounts also form a part of the Co-Production Agreement. Dispute resolution mechanisms and conditions for termination of co-production will also be added to the agreement. 

It is very difficult to share certain aspects such as the IP rights connected with a movie. Hence there is a common practice between the Co-Producers to form a separate entity such as a joint venture for the purpose of producing the movie. 

Actor Services Agreement

An actor is the face of a film. The role of actors especially the main actors are so crucial to the process of filmmaking. So it is quite essential that the services provided by the actor are documented in detail. An actor services agreement is entered between the producer and the actor. It includes various varieties of clauses. 

The term of employment of the actor should be precisely recorded. All the working days including the hours of work should be provided. The agreement can contain an exclusivity clause which prevents the actor from acting in any other movie for the agreed time period.

The agreement also imposes certain rights and obligations upon the actor and the producer. The producer can mandate the actor in connection with his appearances such as the preservation of a particular hairstyle or beard style. In addition, the producer can have requirements relating to the role of the actor in the promotion and marketing activities of the movie. All the amenities provided by the producer such as food, accommodation, transportation, and clothing will be mentioned in this agreement. The producer will also provide the actor with public liability insurance for covering the damages caused due to an accident.

Actors are also subjected to strong non-disclosure clauses to protect the confidentiality of various aspects of the film. The salary provided to the actor, other bonuses and provisions for profit-sharing also make its place in the Actor-Services Agreement. The salary can be fixed or it may be as per the profits made by the producer. Conditions for termination of the contract and dispute resolution mechanisms are also added to the agreement.

https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
      Click above

Location Agreements

Locations play a prime role throughout the process of actual production. Locations and sets are heavily relied on by the filmmakers. A location agreement governs the use of a particular property for the process of filmmaking. A location agreement is executed by the location manager or the producer and the owner of the location.

The exact uses of the property are laid down in agreement. All the portions and areas within the location, availed and used for the purpose of production will be set out in the agreement.

The time for access, the duration of use of the location along with provisions for the extension of the time period is added. The rights and obligations of both parties are important. All the rights in relation to the ‘right to access’ should be expressly provided. The permission to use certain equipment, and the right to make modifications and alterations to the location hired forms some of them. The property owner’s right to file an injunction to prevent the use of the location is provided if the location shoot is not as per the contract or if any physical damages are caused to the location.

The payment provided to the owner of the location and the time period for making the payment is agreed upon by the parties. The agreement also has an indemnity clause where the location owner indemnifies all the damages caused to any shortcomings or drawbacks in the location or set provided by him. The producer indemnifies the location owner for all damages caused to him in connection with the use of the location. 

The price for hiring the location forms an integral part of the agreement. Nature, mode time period for making the payment is also included. 

Distribution Agreements

The process of filmmaking is said to be completed only when the film is distributed to the public. A film is distributed through various methods such as through theatres, OTT platforms, DVDs and so on. A distribution agreement is negotiated between a production company and the distributor. 

The distribution agreement specifies the territory in which the movie is planned to be released. Territory can be worldwide or may be limited to a particular region or country. The length of the term of distribution is added. The agreement mentions the number of theatre/screens in which the movie will be exhibited. It also lays down the duties and rights of each party. The promotional and advertising activities which the parties agree to is provided in detail. 

The agreement also will have a detailed clause on the collections and remuneration of each party. For instance, if it is a theatrical release, the agreement clearly prescribes the amount or percentage of daily collection that the distributor, producer and theatre owner is entitled to receive. Such amounts can be varying in accordance with the number of days the film is played in the theatre. 

Screenplay Agreements

The foundation of a movie lies in the screenplay commonly called a script. Normally the screenplay of the movie is created by the director or a separate scriptwriter. The owner of the screenplay enters a screenplay agreement with the producer. Generally, the producer acquires an exclusive right to lock in a script until the production of the movie begins.

The conditions for termination of the above-mentioned rights will be specified in the agreement. All the remuneration and services provided to the writer is also agreed upon by the parties. All the provisions with regards to changes in the script are mentioned in detail. The situations when rewriting of the script requires additional compensation for all the rewrites and changes will be sorted out in the agreement. The right of a director, producer or any other crew member to review and make changes to the script should be specified.

There might be circumstances in which an additional scriptwriter is hired to rewrite or make changes to the script. In such cases, the parties shall negotiate on matters relating to the credit of the screenplay. If the writer has an exclusive right to prepare the sequel or remake of the script, such right will be explicitly provided in the agreement.

Conclusion

Apart from the agreements listed above, there are various other agreements such as finders agreements, cast and crew agreements, marketing agreements, work for hire agreements, investment agreements and so on. The modern film industry deals with a lot of agreements for specific purposes. From cinematographers to catering providers, services are often documented. There can be several NOCs signed between the creators and producers for the use of the intellectual property. In addition, a lot of agreements for the protection and licensing of IP rights are executed. Confidentiality and non-disclosure provisions form part of almost every agreement as confidentiality is of prime significance throughout the process of movie production. 

A film always involves a lot of crew members working at different levels. Services contracts are essential for the performance of their functions. Most of the agreements are sometimes covered in a master service agreement with a detailed scope of work. It is also quite common that certain crew members perform multiple functions. For example, the actor and producer of the movie may be the same. In such cases, the contractual requirements also vary. Hence, It is difficult to standardize the agreements essential for a particular movie as there is a wide variety of agreements which depends a lot on the context of the movie.

Reference

  1. https://www.hg.org/legal-articles/entertainment-law-film-and-tv-production-agreements-52851
  2. https://movielaw.net/
  3. https://www.filmdaily.tv/template/film-contracts-and-agreements-protect-your-film

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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Types of Agreements related to Film Production appeared first on iPleaders.

Procedure for Copyright Registration under Indian Copyright Act, 1957

$
0
0

This article is written by Srishti Kaushal, a first-year student from Rajiv Gandhi National University of Law, Punjab, pursuing B.A. LLB. (Hons.). In this article, she discussed the reason why copyright registration is beneficial and explains the procedure for copyright registration.

Introduction

What if you write a new book. It is a literary masterpiece that can fetch you a lot of money, but you are scared and wonder what would happen if on releasing it, people copy it and sell it under their name? What do you need to do to prevent this and protect your rights?

The answer is easy. You need to get your work registered with the Registrar of Copyrights. Copyright is a right given by the law to the creators of original work in the areas of literature, drama, music, art etc. A registered copyright legally protects your work and prevents its unauthorised usage. 

Between 2017 and 2018, there were nearly 40000 copyright disputes and discrepancy examinations. To avoid this you must understand the requirements for copyright registration and what the process entails. 

In this article, we will understand the types of work you can obtain a copyright for, the people who are entitled to get a copyright for a piece of work, the essential documents you must have when you are trying to get a copyright and the procedure involved in the copyright registration process.

What kind of work can be registered using a copyright?

In India, copyright can be taken for original works that fall in the area of:

  • Musical works,
  • Literary works like books and manuscripts,
  • Cinematography films,
  • Fashion designs,
  • Artistic works like paintings,
  • Performances,
  • Software and other computer programs and compilations, etc.

However, it must be remembered that copyright does not protect titles, names, ideas, concepts, slogans, methods, and short phrases.

Why do you need a copyright?

When you create original work then copyright is acquired automatically. The question which then arises is why do you need to get it registered. To answer this, let’s look at an illustration.

Suppose A made a painting after working day and night and putting in a lot of sweat and effort into it. He then put it up on his website for others to see. After a few months, A noticed that someone else had copied it and was making money off it. What did he do? Of course, he sued the person in the court of law. Now, because he had copyright, he could use it as evidence in the court and prove that it is his painting and the infringer must be punished.

Through this illustration, we can observe that registered copyrights protect your work and prevent others from using it to their own advantage. 

Let’s discuss some benefits of getting copyright registered for your work:

  • Copyright registration creates a public record. It tells the world that your work is protected by copyright and also enables a person who wants to licence your work to find you.
  • It enables you to file a lawsuit and take legal action against someone who infringes your copyright, say by selling copies of your work without your permission. 
  • It provides you with economic benefits by entitling you to use your work in various ways like making copies, performing in public, broadcasting your work etc, and availing appropriate reward for it. Thus, it provides you with a reward for your creativity.
  • It allows you to sell or pass the rights of your work.
  • It allows you to get legal evidence of your ownership. So if someone prevents you from using your work, you can just use your copyright to prove that it’s your work and you have a right to use it.
  • It allows you to change the form of your work. For example, it allows you to make a sequel or revise or update the work.

Who can register a piece of work with the Registrar of  Copyrights?

If you made a new painting using your mind and talent. Can anyone get a copyright for it? Of course not. Let’s see who is legally entitled to get a copyright for his/her work. 

The following people are entitled to submit an application to get a copyright:

The author

The author of the work is:

  1. Either the person who actually created the work, or
  2. If made during the scope of employment, then the employer. This is considered as ‘work made for hire’.
  3. Such an author is legally allowed to get a copyright for his/her work.

The owner of exclusive rights

The copyright law can grant a person exclusive rights to control and use and distribution of an original work. These rights include the right to reproduce or make copies of the original work, the right to distribute copies of the work, the right to publicly display the work, the right to perform the work and the right to alter the work and make derivatives of the original work. The owner of such exclusive rights is permitted to apply for registering his or her claim in the work. 

The copyright claimant

This is either:

  1. The author, or
  2. A person or an organization that has obtained ownership rights from the author through a written contract, will etc.

The authorized agent

This refers to any person authorized to act on behalf of either:

  1. The author, or
  2. The copyright claimant, or
  3. The owner of an exclusive right.

It must also be mentioned here that there is no age bar for getting a copyright and a minor is also entitled to register a copyright. This is because copyright law recognised creativity and understands that age cannot be a restriction on creativity. Also, in case the work is created by two or more people then the creators of the work are co-owners unless they have agreed otherwise.

https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
      Click above

Essential documents required for copyright registration

Before we discuss the procedure which you must follow if you want to get your work registered under the Indian Copyright Act, 1957, we must look into the essential documents that you require for smooth registration. 

Though there are some special requirements for different kinds of work, broadly the essential requirements are:

  • 3 copies of the work if the work is published;
  • If the work is not published, then 2 copies of manuscripts;
  • If the application is being filed by an attorney, then special power of attorney or vakalatnama signed by the attorney and the party;
  • Authorization in respect of work, if the work is not the work of the applicant;
  • Information regarding the title and language of the work;
  • Information regarding the name, address and nationality of the applicant;
  • Applicant must also provide his mobile number and email address;
  • If the applicant is not the author, a document containing the name, address and nationality of the author, and if the author is deceased, the date of his death;
  • If the work is to be used on a product, then a no-objection certificate from the trademark office is required;
  • If the applicant is other than the author, a no-objection certificate from the author is required. In this case, an authorization of the author may also be required;
  • If a person’s photo is appearing in the work, then a no-objection certificate from such person is required;
  • In case the publisher is not the applicant, a no-objection certificate from the publisher is required;
  • If the work is published, the year and address of first publication is also required;
  • Information regarding the year and country of subsequent publications;
  • In case of copyright is for software, then source code and object code are also required.

Procedure for registering a copyright

Now that we understand who is entitled to get a copyright and what essential documents they must have to get it registered, let’s see how you can register your original work with the copyright registrar under Chapter X of the Indian Copyright Act,1957 and Rule 70 of the Copyright Rules’ 2013.

The steps involved in the registration process are:

Step 1: File an Application

In the first step :

  • The author of the work, copyright claimant, owner of an exclusive right for the work or an authorized agent file an application either physically in the copyrights office or through speed/registered post or through e-filing facility available on the official website (copyright.gov.in).
  • For registration of each work, a separate application must be filed with the registrar along with the particulars of the work. Along with this, the requisite fee must also be given, Different types of work have different fees. 

For example, getting the copyright for an artistic work registered, the application fees is INR 500, while for getting the copyright for a cinematograph film registered is INR 5000. The application fees range from INR. 5000 to INR. 40000. It can be paid through a demand draft (DD) or Indian postal order (IPO) addressed to the Registrar of Copyright Payable at New Delhi or through e-payment facility. This application must be filed with all the essential documents. 

At the end of this step, the registrar will issue a dairy number to the applicant.

Step 2: Examination

In the next step, the examination of the copyright application takes place.

Once the dairy number is issued, there is a minimum 30 days waiting period. In this time period, the copyright examiner reviews the application. This waiting period exists so that objections can arise and be reviewed. Here the process gets divided into two segments:

  • In case no objections are raised, the examiner goes ahead to review and scrutinize the application to find any discrepancy.
    1. If there is no fault and all the essential documents and information is provided along with the application, it is a case of zero discrepancies. In this case, the applicant is allowed to go forward with the next step.
    2. In case some discrepancies are found, a letter of discrepancy is sent to the applicant. Based upon his reply, a hearing is conducted by the registrar. Once the discrepancy is resolved, the applicant is allowed to move forward to the next step.
  • In case objections are raised by someone against the applicant, letters are sent out to both parties and they are called to be heard by the registrar.
    1. Upon hearing if the objection is rejected, the application goes ahead for scrutiny and the above-mentioned discrepancy procedure is followed. 
    2. In case the objection is not clarified or discrepancy is not resolved, the application is rejected and a rejection letter is sent to the applicant. For such applicant, the copyright registration procedure ends here.

Step 3: Registration

The final step in this process can be termed as registration. In this step, the registrar might ask for more documents. Once completely satisfied with the copyright claim made by the applicant, the Registrar of Copyrights would enter the details of the copyright into the register of copyrights and issue a certificate of registration. 

The process registration of copyright completes when the applicant is issued the Extracts of the Register of Copyrights (ROC).

Conclusion

Creativity is the most essential requirement to enable progress in society. Encouraging creativity enables economic and social development of a society. Copyright protects the creativity of people and becomes a source of motivation for the artists, authors, etc. Registering your work with the Registrar of Copyrights provides you with the right to reproduce it, the right to adapt the work, right to paternity and right to distribute the work. 

Though it looks easy, the copyright registration process is a lengthy but important process which can take up to 10 to 12 months. It is always advisable to get your copyright registered. This is because it can go a long way in protecting your rights for years, even after your death. 

Once your copyright is registered, it becomes much easier to move to the court and get the person who illegally copied your work punished. To provide adequate protection to copyright holders, the Copyright Act, 1957 provides imprisonment from six months to three years and a fine of not less than INR 50,000 in case your right is infringed by someone.

References

  1. https://www.ipfilings.net/copyright-guide/who-can-register-a-copyright
  2. http://copyright.gov.in/Documents/handbook.html
  3. https://www.indiafilings.com/learn/copyright-registration-process-procedure/
  4. http://copyright.gov.in/Documents/CopyrightRules1958.pdf
  5. http://www.depenning.com/about_copyrights.htm
  6. http://copyright.gov.in/Documents/Check_List-WorkWise.pdf

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Procedure for Copyright Registration under Indian Copyright Act, 1957 appeared first on iPleaders.

Article 101 and 102 TFEU: Private Enforcement in the Courts of Member States

$
0
0

This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with Articles 101 and 102 TFEU: private enforcement in the courts of Member States.

Introduction

As we may know, competition amongst different companies is widespread all across the world. The European Union has the largest market share in the entire world, which is even larger than that of the US. So, this leads to increased competition amongst various market operators in which they want to be on the top of the pecking order and would do anything to topple their competitors and because of this, sometimes these market operators resort to unfair trade practices.

So, because of this, the National Competition Authorities (NCAs) are empowered to apply Articles 101 and 102 of the Treaty fully, to ensure that competition is not distorted or restricted. National courts may also apply these provisions to protect the individual rights conferred on citizens by the Treaty. Building on these achievements, the communication on Ten Years of Antitrust Enforcement identified further areas to create a common competition enforcement area in the EU.

EU Law: Actions for an Injunction as well as Damages 

A directive is a request given by some managerial body whereby somebody is required to perform or shun playing out a specific activity. The order mandate guarantees the protection of the aggregate premiums of customers in the inward market. It expresses that all the EU nations have order methods to stop encroachments of the EU customer rights.

Right to Damages under Articles 101 and 102 

Courage Ltd v Crehan

Three interests of the comparable causes were found, Crehan (see COURAGE V. CREHAN: JUDICIAL ACTIVISM), Langton and Byrne (see Byrne v Entrepreneur Beer Supply Co. Ltd ) and two different applications. All these were concerned with the legitimacy of lager ties, who was under an occupancy of an open house consequently were required by the provisions of his rent to buy all or a large portion of the lager required available to be purchased in the premises from the owner or a selected brewer at costs endorsed by the provider.

Requests were raised with regards to the best possible development and utilization of the square. Exception conceded by the European Commission in regard of selective obtaining understandings which incorporated these sorts and the court’s discoveries is same announced independently in Byrne v Inntrepreneur Beer Supply Co. Ltd (1999).

In every one of different cases, the inhabitant griped that the merchant had offered brew to publicans who were not dependent upon a lager tie at considerably lesser costs that were charged to occupants.

They professed to be qualified for this on the grounds that either the tie or the occasions paving the way to its burden were said to add up to purposeful practices, established infringement of Article 85 (presently Article 81) EC Treaty, or in light of the fact that the more significant expense charged to the tied occupant when these were contrasted with those accused of a loosened inhabitant it was a rupture of a term to be inferred in the rent to the tied inhabitant. The following were the issues:

  • Regardless of whether the brew ties contained in the leases to tied occupants were denied by Art. 85.
  • Regardless of whether the plans between a brewer and the landowner of tied houses, as exemplified by the Beer Procurement Agreement, were disallowed by Article 85. 
  • Regardless of whether an occupant could set-off any obligation to him emerging from the utilization of Article 85, or break of the inferred term against his risk for lease due under his rent. 
  • Regardless of whether any and if so which, purposes of Community law ought to allude to the ECJ under Article 177. 
  • Regardless of whether the square exclusion managed by Reg.1984/83 applied to the tie in Byrne. 
  • Request Dated: 16 July 1999, it was received at the Court on 30 November 1999, the Court of Appeal alluded to the Court for a primer decision under Article 234 it had questions identified with the understanding of Article 85 of the EC Treaty. 

The Court observed as under:

  • That a party to a contract responsible to keep under control the competition within the meaning of Article 85 can depend on the contravention of that provision to obtain relief. The fruitfulness of Article 85  would be put in danger if it is not open to anybody to claim damages for loss caused due to a contract or by conduct liable to restrict or distort competition. The existence of such a right boosts the working of the competition rules and deject such practices  which twist competition.
  • Article 85 prohibit a regulation of national law under which a party to a contract liable to restrict or distort competition within the meaning of that provision is barred from claiming damages for loss caused by the performance of that contract on the sole ground that the claimant is a party to that contract.
  • However, in the absence of Community rules, it is for the local legal system of each Member State to nominate the courts having jurisdiction for laying down the detailed rules provided that such rules should not be less favourable than those dealing with same local matters. 
  • It is for the domestic court to determine whether the party who contends to have suffered loss through a contract that is liable to restrict or distort competition found himself in a somewhat feeble position than the other party, such as seriously to compromise or even banish his freedom to settle the terms of the contract and to avoid the loss or reduce its extent.

Apart from these the court reiterated the connection between the Art. 85 claim and the claim for rent to be too tenuous as already stated in the decision in Gibbs Mew (supra) to be right. Even if the ECJ were to conclude that Art.85 conferred on a tenant of tied premises a right for the breach of which he was entitled to damages from his landlord, that cross-claim could not go to reduce or extinguish the tenant’s liability to his landlord in respect of the rent for the tied premises.

https://lawsikho.com/course/diploma-entrepreneurship-administration-business-laws

Click Here

Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA [2006] ECR I – 6619 

Activity for harms was brought by Vincenzo Manfredi vs Lloyd Adriatico Assicurazioni SpA, by Antonio Cannito against Fondiaria Sai SpA and, individually, by Nicolò Tricarico and Pasqualina Murgulo against Assitalia SpA (‘Assitalia’). This request was against those insurance agencies for reimbursement of the expansion at the expense of protection identifying with mishaps brought about by engine vehicles, vessels and mopeds paid on account of the increment done by these organizations under an agreement which is proclaimed unlawful by the national challenge authority.

The Court observed that in relation to the cooperation between the Court and the national courts under Article 234 EC, it is the domestic court, before which the dispute has been brought to determine in the light of the particular circumstances of the case both the need for an initial ruling so as to deliver judgment and the relevance of the questions which it submits to the Court. 

Quantum

In case of Courage Ltd v Crehan; Walker Cain Ltd v McCaughey observed that the link between the claim under Article 85 claim and rent was too insubstantial. Even if it was to be concluded that Article 85 conferred on a tenant of tied premises a privilege for the breach, he was entitled to damages from his landlord, and any cross-claim would not reduce or finish the tenant’s liability towards his owner in respect of the monthly rent for the tied premises.

In Case of Vincenzo Manfredi v. Lloyd Adriatico Assicurazioni SpA, it was observed that as per the principle of equivalence if it is possible to give specific damages, such as disciplinary damages, in local actions similar to actions founded on the Community competition rules, it is also feasible to award such damages in actions founded on Community rules.

However, state law does not avert national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them. The Court observed that Article 81(1) EC produces a direct result in the connection between individuals and creates rights for the individuals concerned which the domestic courts must safeguard.

It means that any individual can rely on the invalidity of a contract prohibited under Article 81 EC and can claim compensation for the harm suffered where there is a causal relationship between that harm and the prohibited agreement.

In the absence of Community rules, it is for the national legal system of each member state to set the formula for determining the extent of the damages for harm caused by an agreement or practice prohibited under Article 81 EC, provided that the principles of equivalence and effectiveness are observed. 

The right of individuals to seek compensation for loss caused by a contract or by conduct liable to restrict or distort competition that injured persons must be able to seek compensation not only for actual loss but also for loss of profit plus interest.

The ‘Passing-On’ defence and the position of indirect purchasers

Prior to the adoption of the Directive, there was no case identified with the guard of passing on in the field of Competition Law. Be that as it may, as indicated by subsection 4.2.2, this defence began to get acknowledged in different regions of EU law by the CJEU, and the contentions of low enhancement were utilized. It appeared as though the guard of passing on could either be conceded or banned in National Law.

No case laws were either from the CJEU or in EU Legislation which the Member States required to make this sort of barrier accessible to respondents in rivalry law cases yet there were no cases like these discovered before which restricted the utilization of this kind of protection. Article 3(3) of the Directive expresses that the privilege of full remuneration will not prompt expiration.

This is a Policy Statement instead of a legitimate standard which would be too wide to even think about working as a positive lawful guideline. The arrangement explanation in Article 3(2) is anyway grown further in resulting portions of the Directive. Article 12(2) of the Directive gives that the Member States will set down procedural standards that are appropriate to guarantee that overcompensation is kept away from.

Article 12(2) accordingly leaves the procedural guidelines regarding this matter to the tact of the Member States as per the standard of procedural self-governance. However, the principles of equivalence and effectiveness must be taken into account when the outer boundaries for how these procedural rules may be constructed. 

Article 13 expresses that the Member States will ensure that the respondent may summon the way that the offended party passed all in all or part of the cheat that came about because of the encroachment of rivalry law as a barrier against a harms guarantee. Along these lines Article 13 is an extra prerequisite next to the necessities of adequacy and equality that the Member States’ procedural principles must consent to.

No case law was there on passing on safeguard in the territory of rivalry law preceding the reception of the Directive. Hence the Directive adjusts EU law and the Member States are required to permit the barrier of passing on. Which has now made an expanded plausibility for infringers to protect themselves from harms claims utilizing this barrier of passing on?

The limitations to the cautious utilization of passing on that have been built up in different territories of EU law, which is talked about in subsection 4.2.2, and these were excluded from the arrangements on passing on in the Directive. In the Commission Proposal, the Commission recommended confinement to the utilization of the safeguard of passing on in Article 12(1).

To the extent that the cheat has been given to people at the following degree of the inventory network, for which it isn’t lawfully conceivable to guarantee remuneration for the mischief they have endured, the respondent ought not to be permitted to conjure the barrier of passing on. This arrangement was, be that as it may, avoided from the last form of the Directive. Subsequently, it appears as though the Directive sets no restrictions to when the resistance of passing on might be utilized by an infringer of rivalry law.

Be that as it may, there is by all accounts a characteristic utmost or a conclusion to the utilization of the barrier of passing on when the inquirer is a last purchaser, subsequently inventory network closes there. The infringer ought to in this manner not effectively have the option to utilize the giving guard to escape obligation when the inquirer is a last purchaser.

The conundra/problem 

Multiplication of the total la social welfare loss created by the illegal behaviour of the cartels. One of the ways to limit social welfare loss resulting from the cartel. Worth fixing practice is by obliging the passing on itself. At first, the right irritated gatherings must be picked for this antitrust situation when they find upstream worth fixing. Along these lines it should keep any probability to benefit by conceding the suit. Second, the passing-on boundary will be allowed.

Exactly when most of the associations start passing on the cartel cheat after their first ordinary evaluation of data costs which prompts re-esteeming, and fundamentally it in like manner depends on when they become aware of the credibility of upstream worth fixing.

With the availability of passing-on security, direct purchasers will be incited to start an assessment of cartel lead as they would think about the damages and that the respect would involve triple the cheat that has not been passed on, subsequently they would go up against a choice i.e Direct purchasers can either to pass on the cheat and impede the revelation so they can accumulate what they lost until the re-evaluating decision and most extreme assessment and arraignment costs.

Or of course, considering the probability of cartel nearness, direct purchasers can by chance hold the cheat and later accumulate triple of the impressive number of cheats appropriately absorbed up by the court controlling, which, by virtue of productive case, will be more than they save through passing on.

Position in the US 

The passing-on-defence isn’t recognized under US government antitrust law nor is the staying of underhanded purchasers.The rejection of indirect purchaser’s stand is a direct consequence of refusing the passing-on-defense since the indirect purchaser’s present their claim on the basis that an overcharge was passed on to them and allowing indirect purchaser stand would threaten multiple liability and multiple damages for the same act and it would not be possible for the defendant to rely on the fact that the damage may have been passed on. 

In most cases, indirect purchasers, i.e., those that do not buy directly from the alleged price-fixing conspirators, cannot recover.  Correspondingly, in most cases the alleged price fixers are prohibited from claiming that the direct purchasers have not suffered on the bais that the illegal overcharge was passed onto downstream purchasers.

Most of the  data suggests that indirect-purchaser suits have a negative overall effect on deterrence than a positive one, and that—even if there is a positive effect—it’s minimal at best.

EU case law 

The Clayworth case was a suit by retailers. The drug producers, Pfizer et al., offered their products to wholesalers, who in this way offered them to Mr. Clayworth and distinctive medication stores. The business chain included makers (Pfizer et al.), wholesalers, retailers (the medication stores of Clayworth et al.) and last customers. The passing on issue appeared in two changed manners. On one hand, it has been ensured that Clayworth et al. given the cheats to the last customers.

Mr. Clayworth, on the other hand, to show harm, would need to proclaim that wholesalers gave the cartel’s cheats to him. However, because Clayworth was granted the standing of a direct purchaser, the court did not need to solve the conundrum of how to both allow the offensive use of passing on and forbid the defensive use of passing on Pfizer raised the passing-on defence against Clayworth. Court showed and it was undisputed that the medication stores’ esteeming practices drove them to give the entire cheat to the last customers. 

The court reported that the passing-on obstruction was generally not permitted in light of the fact that right off the bat, the legitimate history of the Cartwright Act, which doesn’t provide guidance on the availability of passing-on, prescribes that amendments made considering Illinois Brick (empowering the underhanded purchaser to sue) show a managerial plan to join the administration rule of Hanover Shoe (no passing-on boundary). 

Second, the California antitrust law decidedly underscores the demoralization objective, together with ensuring full “regurgitating of any inadequately gotten proceeds” that would be undermined by allowing the passing-on protect for this circumstance. 

Third, the hazard of twofold recovery by different classes of affronted parties isn’t unfathomable enough to deal the counteractive action and pay (or rather the full extraction) goals of California antitrust law. Finally, paying little heed to whether direct purchasers pass overall cheat, regardless of all that they may suffer harm (for instance, by losing bargains). 

Regardless of the way that the court ordinarily restricted the passing-on watch, it chose conditions under which the passing-on shield could be allowed: first, the cost notwithstanding contract exception of Hanover Shoe is significant under California state antitrust law moreover. Second, in a suit, when both quick and indirect purchasers are productive in setting up esteem fixing by the prosecutor, the court will hinder twofold recovery by permitting the passing-on obstruction by the respondent. The resulting extraordinary case is of the most outrageous centrality.

Since a prompt purchaser can’t assess the condition early, he needs to depend on the more lamentable circumstance, that is destined to be, that generally, the passing-on protect is satisfactory. As demonstrated via Landes and Posner, that will incite a decreasing of the inspiration for direct purchasers to place assets into cartel disclosure and case, and the level of antitrust usage will lessen.

The Harris-Sullivan assessment reinforces this point by setting up that quick purchasers are most likely going to pass in general cheat (notwithstanding an edge) to their customers. The assessment above, regardless, shows that passing on is basically deferred until the accompanying typical re-evaluating appraisal by a quick purchaser and that altogether builds the cheats caused so far is a satisfactory driving force.

The passing-on protection in the Member States 

The utilization of passing on is in four European Union Member States: Germany, France, Italy, and the UK have been picked for logical examinations. These wards are the ‘greatest economies’ inside the Union and in this manner they address the essential areas where one would expect the greatest number of occasions of private approval of EU competition law. The assorted national procedural rules make different forces for solicitors to get a damage movement court; as further discussed underneath in territory 3 while private approval of competition law is decently made in UK and Germany, this isn’t the circumstance in Italy and France. 

Along these lines, the differentiations among national procedural standards make it worth an assessment among different regions. The UK has been associated with the close to assessment regardless of the way that on 29 March 2017 the British Government set off the use of Article 50 TEU, by along these lines starting the methodology of ‘Brexit’.

The Damages Directive 

Due to the complexities in its estimation, the US Supreme Court has even-mindedly banned the utilization of the passing on in US antitrust law since the 1970s. In Europe, the CJEU has seen that ‘any individual’ on a fundamental level has legal remaining in case he exhibits to have suffered incident achieved by a burst of EU competition rules. 

EU Commission fragile law and the Damages Directive have later avowed the ‘far reaching’ approach sought after by the CJEU with respect to locus standi. Territory second discusses about the EU acquis on passing on, including CJEU case law, EU Commission fragile law and the game plans in the Damages Directive in regards to this issue and it battles that passing on can be considered as a general standard of EU law. the British Parliament requested the law completing the Damages Directive, which also transposes the courses of action of the Directive concerning passing on.

For each picked ward the article examines the national case law concerning passing on in antitrust inquiries, similarly as the present status of execution of the Damages Directive. On 9 March 2017, the British Parliament approved the law realizing the Damages Directive, which furthermore transposes the game plans of the Directive concerning passing on.

To energize private approval of EU contention law, the Damages Directive upsets the heaviness of proof both in association with passing on the obstruction and presents suppositions concerning the legal surviving from the underhanded customer. Article 13, in reality, expresses that “the heaviness of showing that the cheat was passed on can’t abstain from being on the respondent”.

In any case, Article 14 extensively grows the genuine surviving from roundabout customers and along these lines, it addresses one of the major remembered estimations of the Damages Directive for appearing differently in relation to the earlier EU acquis on passing on.

Aggregate change

The Commission suggests the introduction of two proportional instruments of total audit: first, delegate exercises brought by qualified components, for instance, client affiliations, state bodies (like U.S. parens patriae exercises) or trade affiliations; and, second, select in total exercises, in which terrible setbacks unequivocally decide to join their individual cases into one single action (while the U.S. class movement system keeps the quit standard).

The extent of total change is in like manner to be seen as critical for the general cognizance of the results in allowing the meandering purchaser standing. Given the difficulty of cartel disclosure by circumlocutory purchasers, the Commission expects that total audit action would be grasped in the majority of the cases after the open prosecution of a cartel, that is, after the test experts of the EU Member States or the Commission itself issue an extreme end finding an antitrust encroachment. 

Total change ought to be a potential measure in competition cases, the national courts should have the choice to mastermind social occasions to divulge relevant confirmation, decisions of NCA will share the status of confining check for all intents and purpose methodology and demanding danger for hurts in contention cases should apply. Further, full compensation should be open for losses of contention infringement covering genuine incidents just as lost advantage and interest.

Interim relief

Judgment requesting interval measures can be a basic apparatus for rivalry specialists by guaranteeing that while an examination is on-going no unsalvageable harm is caused to rivalry, which can’t be helped by any choice which might be taken at the finish of the procedures. The endorsement of interval measures may likewise keep away from that the ability to make choices at the finish of rivalry requirement procedures gets insufficient. 

Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2003 on the usage of the standards on rivalry set down in Articles 81 and 82 of the Treaty 2 (EU/Competition/Article 82 of the EC Treaty (ex Article 86) explicitly empowers national challenge specialists to embrace between time estimates when applying Articles 101 and 102 TFEU.

Many jurisdictions have made the use of this tool to date in a variety of zones, including energy, telecommunications, and distribution of motor vehicles, food, postal services, newspapers, advertising, and pharmaceuticals.

In terms of the type of infringements for which interim measures have been adopted, it seems that interim measures have most often been imposed in the abuse of most of the dominated cases, especially in refusal to supply cases. Interim measures have also been taken with respect to other types of violations, most notably, with respect to vertical restraints. Some Authorities have taken into consideration the interim measures which will be useful in cases of decisions of associations of undertakings recommending that their members change prices or limit supplies.

In general, most jurisdictions provide for an explicit legal basis which permits Authorities to adopt interim measures. In order to ensure that this is the case through-out the ECN, it is desirable all jurisdictions expressly provide for the adoption of interim measures by law.

In proceedings which may lead to the adoption of interim measures, the rights of defence of the undertakings concerned should be ensured and addressees of decisions ordering interim measures should have the right to effective judicial review, in accordance with Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union where applicable. Such judicial review should take into account the urgency inherent in situations where interim measures are granted.

Numerous jurisdictions have utilized this apparatus to date in an assortment of zones, including vitality, broadcast communications, and appropriation of engine vehicles, nourishment, postal administrations, papers, publicizing, and pharmaceuticals. 

As far as the sort of encroachments for which break measures have been received, it appears that between time measures have frequently been forced in the maltreatment of the majority of the commanded cases, particularly in refusal to supply cases. Between time measures have additionally been taken concerning different kinds of infringement, most quite, as for vertical limitations.. 

When it is all said and done, most purviews accommodate an unequivocal lawful premise which grants Authorities to receive break measures. In procedures which may prompt the appropriation of break quantifies, the privileges of guard of the endeavors concerned ought to be guaranteed and addressees of choices requesting between time measures ought to reserve the option to viable legal survey, as per Article 6 of the European Convention on Human Right (Article 6 of the European Convention on Human Rights) and Article 47 of the Charter of Fundamental Rights of the European Union where material. Such legal audit should assess the desperation intrinsic in circumstances where between time measures are allowed.

Most jurisdictions share comparative substantive necessities for the selection of break measures.

To guarantee the adequacy of the between time measure device, it is alluring that all Authorities ought to be capable, at least, to receive break estimates where the accompanying combined necessities are met:

(i) earnestness because of the danger of genuine and hopeless mischief to rivalry; and

(ii) there are sensible grounds to speculate that an encroachment has happened. This Recommendation isn’t expected to prohibit the utilization of more extensive criteria for the award of the between time measures. The prescribed standard which is suggested depends on the accompanying contemplations. 

Between time measures, by their tendency, are brief and defensive. In accordance with the rule of proportionality, they should be confined to what is important in the conditions of the case. 

Inside the ECN, there is an extent of approaches concerning the length of between time measures. A couple of districts have set cutoff focuses, for example, a fourth of a year, a half year or one year. In various areas, there isn’t a period limit, anyway ordinarily, a foreordained timespan is set in the decision mentioning interim measures.

Finally, in specific structures, the decision mentioning break measures is real until the completion of the strategies or the allotment of the decision on the advantages of the case by the Authority. In a couple of districts, it is possible to energize or haul out the execution of between time measures. 

The Authorities should have the alternative to get decisions mentioning interim extents of a range which is convincing to keep up a key good ways from veritable and miserable fiendishness to competition.

A decision mentioning break measures should simply be genuine until the completion of the systems or the determination of the decision on the advantages of the case by an Authority or until a higher model revokes the decision on interim measures. To improve the ampleness of break measures, decisions permitting between time measures should be unlimited to the degree that is basic and fitting for every circumstance.

According to the criticalness natural in picking whether to permit break measures, ensure that the frameworks relating to interim measures are fruitful and powerful. 

In certain purviews, interval measures are allowed ex officio, while in others, applications for the selection of between time measures can be made by singular characteristic or lawful people to secure their inclinations. It is attractive that the particular requirement frameworks administering break measures are adequately adaptable to enable the Authorities to manage cases that are brought to the consideration of more than one Authority.

Observing consistence with choices requesting break measures is critical to ensuring the viability of this authorization device. The Authorities ought to have available to them viable powers so as to screen the execution of their interval estimates choices.

Viable checking systems may include:

(i) ex-officio observing by the Authority; 

(ii) checking dependent on grumblings or data from advertise members;

(iii) ordinary announcing by the gatherings which are the addressees of the between time estimates choice; (iv) observing dependent on collaboration with area controllers;

(v) utilization of trustees. The decision of instrument to be utilized relies upon the current case and may incorporate a mix of various apparatuses.

In instances of rebelliousness with choices requesting break gauges, most of Authorities has available to its methods for endorsing, for instance, the likelihood to force managerial fines. A few Authorities may, furthermore, put constraints by way of intermittent punishment installments.

To support the adequacy of between timely measures, it is basic that compelling approvals might be forced for rebelliousness with choices requesting interval measures and that powerful means are at the transfer of Authorities so as to urge consistence.

Private enforcement and Regulation 1/2003

Article 15: cooperation with national courts

Requests by national courts for information or an opinion

In procedures for the utilization of Article 81 or Article 82 of the Treaty, courts of the Member States may request that the Commission transmits to the data as it would see it on questions concerning the use of the Community rivalry rules.

Submission of judgements to the Commission

Competition specialists of the Member States, following up on their own drive, may submit composed perceptions to the national courts of their Member State on issues identifying with the utilization of Article 81 or Article 82 of the Treaty.

With the authorization of the court being referred to, they may likewise submit oral perceptions to the national courts of their Member State. Where the cognizant use of Article 81 or Article 82 of the Treaty so requires, the Commission, following up on its own drive, may submit composed perceptions to courts of the Member States. With the authorization of the court being referred to, it might likewise mention oral objective facts.

Observations by national competition authorities and the Commission

With the end goal of the preparation of their perceptions, the competition authorities of the Member States and the Commission may demand the concerned court of the Member State to transmit or guarantee the transmission to them of any reports vital for the evaluation of the case.

Wider national power

This Article is without preconceived notion to wider ability to make statement before courts conferred on competition authorities of the Member States under the law of their Member State.

Article 16: uniform application of EU competition law

The effect of Commission decisions

At the point when national courts rule on understandings, choices or practices under Article 81 or Article 82 of the Treaty which are as of now the subject of a Commission choice, they can’t take choices contradicting the choice received by the Commission.

They should likewise abstain from giving choices which would strife with a choice thought about by the Commission in procedures it has started. With that impact, the national court may evaluate whether it is important to remain its procedures. This commitment is without bias to the rights and commitments under Article 234 of the Treaty.

Parallel proceedings

At the point when competition authorities of the Member States rule on understandings, choices or practices under Article 81 or Article 82 of the Treaty which are as of now the subject of a Commission choice, they can’t take actions which would oppose the choice embraced by the Commission.

Access to evidence

Access to the file

EU substantive standards in regards to access to record and classification treatment are all around portrayed in various authority reports, considering the pertinent case-law in such manner. Through the fundamental decision method, national courts went to the ECJ so as to get an explanation on the most ideal approach to manage access to document’s solicitations guaranteeing the privilege to guarantee harms and the assurance of secret data gave over by infringers to national challenge specialists ensuring open antitrust authorization with regards to mercy programs.

Regulation 1049/2001

Transparency is an essential of good administration: it engages residents and enables them to examine and assess the exercises of the public authorities and to demand an explanation from them. Access to EU foundations’ records fortifies their popularity based qualifications and shuts the gap between them and the residents.

The focal instrument in the EU to that intention is Regulation 1049/2001 of the European Parliament and of the Council, setting out the modalities for a privilege of access to EU records and controlling straightforwardness of divulgence techniques. The methodology embraced in Regulation 1049/2001 relates to the Nordic idea of community to archives. Article 4 of Regulation 1049/2001 contains a rundown of special cases which may legitimize controlling access to records and places the weight of evidence on the establishment to which the solicitation is tended to.

This can be hazardous as it would recommend that entrance to reports which contain individual information ought to be considered under Regulation 45/2001 on information security, rather than Regulation 1049/2001, this affects national arrangements just where it sets down states of access to Member States’ records.

Pfleiderer, Donau Chemie and leniency material

In the case of Pfleiderer AG, 14 June 2011 the Court avowed, first, that the national courts, based on their national law, have the obligation to decide the conditions under which such access must be allowed or denied by gauging the interests ensured by EU law; second, that such evaluation must be done dependent upon the situation; and, third, that every pertinent factor for the situation must be considered. Essentially, not at all like the Advocate General, for this situation, the Court unmistakably didn’t avoid access to data given with regards to mercy programs. 

Two years later, the Court reaffirmed the significance of the gauging test in  Donau Chemie, 6 June 2013, expressing that: “the contention that there is a hazard that entrance to prove contained in a document in rivalry procedures which is fundamental as a reason for harm activities may undermine the adequacy of a mercy program can’t legitimize a refusal to allow access to that proof.” 

One of the targets and core values distinguished in the Proposed Directive is ‘enhancing the connection’ 11 among open and private authorization of rivalry law. Regarding the divulgence of tolerance archives, the Proposed Directive sets out the accompanying trade off arrangement:

  • Least Requirement. 
  • Levels of insurance against divulgence. Supreme security. 
  • Transitory security. 
  • No particular insurance.

Access to the Commission’s decision

The EU Member States consented to give two commands to the Commission to take part in worldwide dealings to improve cross-fringe access to electronic proof in criminal examinations. The Council consented to furnish the Commission with arranging orders for arrangements with the United States and for the Second Additional Protocol to the Council of Europe “Budapest” Convention on Cybercrime. 

Before an understanding can be marked and closed, the Commission should get a different authorisation from Member States. The European Parliament will likewise be educated and should assent before an understanding can be marked and closed. 

Additionally, the Commission’s target stays to initially finish the EU’s inside rules on cross-fringe access to electronic e-proof before concluding global understandings. 

In the April 2015 European Agenda on Security, the Commission carried out to audit impediments to criminal examinations. Following the deplorable occasions in Brussels on 22 March 2016, EU Ministers for Justice and Home Affairs organized passing measures to verify and get advanced proof all the more productively and adequately. The issue has since been talked about a few times by EU Ministers and in April 2018 the Commission proposed new rules for cross-fringe access to electronic proof.

Foreign discovery

The way toward acquiring proof in common law nations is essentially extraordinary. The utilization of the expression “disclosure” isn’t fitting, on the grounds that the pre-preliminary revelation as comprehended in the U.S. for all intents and purposes doesn’t exist. The private gatherings or their lawyers have not conceded powers that would enable them to urge the contradicting party or different observers to create the proof legitimately to them. It is the legal official through whom the proof is acquired.

The procedure is not the same as the initiation of the activity when the protest, after its recording, is served upon the respondent by the court, not by the offended party. In the Czech Republic, the offended party in the objection, and the respondent in the appropriate response, has an obligation to assign and in this way produce its very own proof that supports her case or protection. The approval, or rather result, for not conforming to these obligations by the gathering with the weight of verification is lost the case. After the claim is started, the proof is delivered legitimately to the court, not to the restricting gatherings.

Ordinarily, the gatherings use proof that is as of now accessible to them. To force the restricting party to deliver certain proof that the primary party isn’t in control of, the main party has two alternatives: either move the weight of verification to the contradicting party, for example, in claims asserting segregation; or propose to present a narrative proof and assign an individual who has a command over the report. That individual at that point might be requested to deliver the record to the court.

In the event that that individual doesn’t agree to the request, the court may force fiscal approvals. On the off chance that there is a hazard that the proof won’t be accessible at the hour of the preliminary, a gathering may likewise request of the court to verify the proof before the preliminary starts. Notwithstanding, if a gathering doesn’t know about the presence of some data or archive, it has no instrument to find it. Angling campaigns are not by any means a distant chance. As it were, the proof that may harm the case will by and large not be unveiled to the contradicting party. 

The distinctions in the way to deal with proof taking are self-evident. While in the United States it is the obligation of the gatherings that are talented wide revelation powers, in Europe the taking of proof is seen as a legislative job. “Endeavors by U.S. defendants to assemble proof abroad for U.S. case have been seen as usurping remote power,” particularly when the extent of these endeavors far surpasses what might be allowable in nearby prosecution.

A blocking resolution is by its definition a “law authorized in one purview to discourage the neighborhood (extra-jurisdictional) use of a law ordered in another ward. Be that as it may, to have the blocking impact on the revelation of proof, the resolutions don’t need to be constantly instituted with this impending reason.

On account of the distinctive origination of social affair proof, European laws basically don’t foresee expansive disclosure demands. Subsequently, the blocking resolutions can be of different nature and can force different assents for their break. The seriousness of the approvals and whether they are of a common or criminal nature have been perceived by U.S. courts as one of the variables in deciding if an individual ought to be pardoned from the consistence with a court request.

The duty of national courts

National courts assume a key job in the authorization of European challenge arrangement. They might be called upon to apply Article 101 as well as 102 TFEU to an assortment of situations.

A few courts have locale over claims between private gatherings, for example, activities identifying with agreements or activities for harms; some go about as open implementers (for example in Finland, Ireland and Sweden); what’s more, some go about as survey courts, hearing interests which are brought against choices of the national challenge specialists.

Guideline 1/2003 gave national courts a more extensive job to uphold Articles 101 and 102 TFEU in full. Besides, if national courts apply national challenge law, they likewise need to apply EU competition law where there is an impact on an exchange between the Member States.

Cooperation with the Commission

The Commission is focused on helping national courts Articles 101 and 102 TFEU so as to guarantee the intelligible use of those arrangements all through the EU. This expands on the common obligation of steadfast participation accommodated by Article 4(3) Treaty on European Union (TEU).

Subtleties of this collaboration are set out in the Notice on participation with courts of the EU Member States in the utilization of [Articles 101 and 102 TFEU], expanding on Article 15 of Council Regulation 1/2003 Council Regulation. The Commission revised the Notice in 2015 so as to adjust the principles appropriate to the divulgence of archives in the Commission’s document with the standards of the Directive on Antitrust Damages Actions. See likewise solidified forms of the Notice:

  • Article 15 of Regulation 1/2003 explicitly accommodates the most regular methods for participation. The Commission can: transmit data in its ownership or of procedural data (Article 15(1)); 
  • give its assessment on questions in regards to the use of the EU rivalry rules Article 15(1), and; 
  • the Commission (and national challenge specialists) can submit perceptions to national courts as amicus curiae (Article 15(3)). 

Moreover, under Article 15(2), national courts are obliged to submit to the Commission a duplicate of any composed judgment where Article 101 or Article 102 of the Treaty has been applied (Article 15(2)). 

The Commission likewise works an awards program devoted to the preparation of national judges in EU rivalry law and legal collaboration between national judges.

Requests for information or opinion vs. preliminary rulings (Article 267 TFEU)

The privilege of a national court to approach the Commission for a feeling according to Article 15(1) of Regulation 1/2003 doesn’t partiality to the plausibility or the commitment of the national court to approach the Court of Justice for a starter controlling under Article 267 TFEU. 

The legitimate understanding of EU law by the Court of Justice is authoritative on the national court, as opposed to the non-restricting character of Commission conclusions. 

A fundamental decision by the Court of Justice concerns the elucidation of the law of the European Union and the legitimacy of demonstrations of auxiliary enactment, though a national court may approach the Commission for its supposition compliant with Article 15(1) of Regulation 1/2003 on financial, accurate and lawful issues.

The Damages Directive

The EU Damages Directive came into power in December 2014. One of its destinations is to guarantee the viable private authorization of rivalry law by encouraging harms guarantees in the courts of the EU Member States. 

Article 3

Right to full compensation

  1. Part States will guarantee that any regular or lawful individual who has endured hurt brought about by encroachment of rivalry law can guarantee and to get full remuneration for that mischief. 
  2. Full remuneration will put an individual who has endured hurt in a situation in which that individual would have been had the encroachment of rivalry law not been submitted. It will, accordingly, spread the privilege to pay for genuine misfortune and for loss of benefit, in addition to the instalment of intrigue.
  3. Full remuneration under this Directive will not prompt overcompensation, regardless of whether by methods for corrective, various or different kinds of methods.

Article 4

Principles of effectiveness and equivalence:

In accordance with the principle of effectiveness, Member States shall ensure that all national rules and procedures relating to the exercise of claims for damages are designed and applied in such a way that they do not render practically impossible or excessively difficult the exercise of the Union right to full compensation for harm caused by an infringement of competition law.

In accordance with the principle of equivalence, national rules and procedures relating to actions for damages resulting from infringements of Article 101 or 102 TFEU shall not be less favourable to the alleged injured parties than those governing similar actions for damages resulting from infringements of national law.

Article 5

Disclosure of evidence;

  1. Member States will guarantee that in procedures identifying with an activity for harms in the, endless supply of a petitioner who has displayed a contemplated legitimization containing sensibly accessible certainties and proof adequate to help the credibility of its case for harms, national courts can arrange the litigant or an outsider to unveil significant proof which lies in their control, subject to the conditions set out in this Chapter. Part States will guarantee that national courts are, endless supply of the litigant, to arrange the inquirer or an outsider to uncover pertinent proof. This passage is without partiality to the rights and commitments of national courts under Regulation (EC) No 1206/2001.
  2. The Member States will guarantee that national courts can arrange the revelation of determined things of proof or important classifications of proof encompassed as absolutely and as barely as conceivable based on sensibly accessible realities in the contemplated avocation.
  3. Member States will guarantee that national courts limit the revelation of proof to that which is proportionate. In deciding if any divulgence mentioned by a gathering is proportionate, national courts will consider the authentic interests all things considered and outsiders concerned. They will, specifically, consider: (a) the degree to which the case or resistance is upheld by accessible realities and proof defending the solicitation to uncover proof; (b) the extension and cost of divulgence, particularly for any outsiders concerned, including counteracting vague scans for data which is probably not going to be of pertinence for the gatherings in the method; (c) regardless of whether the proof the exposure of which is looked for contains secret data, particularly concerning any outsiders, and what game plans are set up for securing such private data.
  4. Member States will guarantee that national courts have the ability to arrange the divulgence of proof containing secret data where they think of it as important to the activity for harms. Part States will guarantee that, when requesting the divulgence of such data, national courts have available to them powerful measures to secure such data L 349/12 EN Official Journal of the European Union 5.12.2014.
  5. The enthusiasm of endeavors to keep away from activities for harms observing an encroachment of rivalry law will not establish an intrigue that warrants assurance.
  6. Member States will guarantee that national courts give full impact to material legitimate proficient benefit under Union or national law when requesting the exposure of proof.
  7. Member States will guarantee that those from whom divulgence is looked for are given a chance to be heard under the steady gaze of a national court orders revelation under this Article. 
  8. Without bias to sections 4 and 7 and to Article 6, this Article will not avert Member States from keeping up or acquainting rules which would lead with more extensive exposure of proof.

Article 6-7

Exposure of proof remembered for the record of a challenge authority: 

  1. Part States will guarantee that, with the end goal of activities for harms, where national courts request the revelation of proof remembered for the document of a challenge authority, this Article applies notwithstanding Article 5. 
  2. This Article is without preference to the guidelines and practices on community to reports under Regulation (EC) No 1049/2001
  3. This Article is without partiality to the guidelines and practices under Union or national law on the assurance of inner archives of rivalry specialists and of correspondence between rivalry specialists. 
  4. While evaluating, as per Article 5(3), the proportionality of a request to reveal data, national courts will, also, think about the accompanying: (a) regardless of whether the solicitation has been detailed explicitly as to the nature, topic or substance of reports submitted to a challenge authority or held in the record thereof, instead of by a vague application concerning archives submitted to a challenge authority; (b) Disclosure of evidence included in the file of a competition authority.
  5. Member States will guarantee that, with the end goal of activities for harms, where national courts request the revelation of proof remembered for the document of a challenge authority, this Article applies notwithstanding Article 5. 
  6. This Article is without partiality to the principles and practices on free to records under Regulation (EC) No 1049/2001. 
  7. This Article is without bias to the standards and practices under Union or national law on the assurance of inward reports of rivalry specialists and of correspondence between rivalry specialists. 
  8. While evaluating, as per Article 5(3), the proportionality of a request to unveil data, national courts will, likewise, think about the accompanying: (a) regardless of whether the solicitation has been figured explicitly with respect to the nature, topic or substance of archives submitted to a challenge authority or held in the record thereof, instead of by a vague application concerning reports submitted to a challenge authority; (b) whether the gathering mentioning revelation is doing as such in connection to an activity for harms under the steady gaze of a national court; and (c) in connection to sections 5 and 10, endless supply of a challenge authority in accordance with passage 11, the need to shield the viability of the open implementation of rivalry law. 
  9. National courts may arrange the revelation of the accompanying classes of proof simply after a challenge authority, by embracing a choice or something else, has shut its procedures: (a) data that was set up by a characteristic or legitimate individual explicitly for the procedures of a challenge authority; (b) data that the challenge authority has attracted up and sent to the gatherings over the span of its procedures; and (c) settlement entries that have been pulled back.
  10. Members States will guarantee that, with the end goal of activities for harms, national courts can’t whenever request a gathering or an outsider to unveil any of the accompanying classifications of proof: (a) tolerance explanations; and (b) settlement entries.
  11. A petitioner may show a contemplated solicitation that a national court get to the proof alluded to in point (a) or (b) of passage 6 for the sole reason for guaranteeing that their substance relate to the definitions in focuses (16) and (18) of Article 2. In that appraisal, national courts may demand help just from the equipped challenge authority. The creators of the proof being referred to may likewise have the likelihood to be heard. For no situation will the national court grant different gatherings or outsiders access to that proof. 
  12. In the event that lone pieces of the proof mentioned are secured by section 6, the rest of the parts thereof will, contingent upon the class under which they fall, be discharged as per the significant passages of this Article. 
  13. The exposure of proof in the document of a challenge authority that doesn’t fall into any of the classifications recorded in this Article might be requested in activities for harms whenever, without partiality to this Article. 
  14. The Members States will guarantee that national courts demand the revelation from a challenge authority of proof remembered for its document just where no gathering or outsider is sensibly ready to give that proof. 
  15. To the degree that a challenge authority is happy to express its perspectives on the proportionality of revelation demands, it might follow up on its own drive, submit perceptions to the national court before which an exposure request is looked for.

Limits on the use of evidence obtained solely through access to the file of a competition authority are as follows:

  • Member States will guarantee that proof in the classifications recorded in Article 6(6) which is gotten by a characteristic or legitimate individual exclusively through access to the document of a challenge authority is either regarded to be forbidden in activities for harms or is generally secured under the relevant national principles to guarantee the full impact of the points of confinement on the exposure of proof set out in Article 6.
  • Part States will guarantee that until a challenge authority has shut its procedures by embracing a choice or something else, proof in the classifications recorded in Article 6(5) which is acquired by a characteristic or lawful individual exclusively through access to the document of that challenge authority is either esteemed to be prohibited in activities for harms or is generally secured under the material national standards to guarantee the full impact of the cutoff points on the revelation of proof set out in Article 6. 
  • Part States will guarantee that proof which is gotten by a characteristic or lawful individual exclusively through access to the document of a challenge authority and which doesn’t fall under passage 1 or 2, can be utilized in an activity for harms just by that individual or by a characteristic or legitimate individual that prevailing to that individual’s privileges, including an individual that procured that individual’s case.

Article 9

Impact of national choices

  1. Member States will guarantee that an encroachment of rivalry law found by an ultimate conclusion of a national challenge authority or by looking into court is esteemed to be certainly settled for the motivations behind an activity for harms brought under the watchful eye of their national courts under Article 101 or 102 TFEU or under national challenge law.
  2. Member States will guarantee that where an official conclusion alluded to in section 1 is taken in another Member State, that ultimate choice may, as per national law, be introduced under the steady gaze of their national courts as at any rate by all appearances proof that an encroachment of rivalry law has happened and, as suitable, might be surveyed alongside some other proof shown by the gatherings. 
  3. This Article is without bias to the rights and commitments of national courts under Article 267 TFEU.

Effect of national decisions

  1. Member States will guarantee that an encroachment of rivalry law found by a ultimate choice of a national challenge authority or by an exploring court is regarded to be unquestionably settled for the motivations behind an activity for harms brought under the steady gaze of their national courts under Article 101 or 102 TFEU or under national challenge law.
  2. Member States will guarantee that where a ultimate choice alluded to in section 1 is taken in another Member State, that official conclusion may, as per national law, be displayed under the watchful eye of their national courts as at any rate by all appearances proof that an encroachment of rivalry law has happened and, as fitting, might be evaluated alongside some other proof cited by the gatherings. 
  3. This Article is without bias to the rights and commitments of national courts under Article 267 TFEU.

Article 10

Limitation periods

  1. The Member States will, as per this Article, set down rules material to confinement periods for bringing activities for harms. Those standards will decide when the constraint time frame starts to run, the term thereof and the conditions under which it is hindered or suspended. 
  2. Confinement periods will not start to run before the encroachment of rivalry law has stopped and the petitioner knows, or can sensibly be relied upon to know: (a) of the conduct and the way that it establishes an encroachment of rivalry law; (b) of the way that the encroachment of rivalry law made damage it; and (c) the personality of the infringer. 
  3. Part States will guarantee that the confinement periods for bringing activities for harms are in any event five years. 
  4. Member States will guarantee that a confinement period is suspended or, contingent upon national law, hindered if a challenge authority makes a move with the end goal of the examination or its procedures in regard of encroachment of rivalry law to which the activity for harms relates. The suspension will end at the most punctual one year after the encroachment choice has gotten last or after the procedures are generally ended.

Article 11

Joint and a few obligation 

  1. Member States will guarantee that endeavours which have encroached rivalry law through joint conduct are mutually and severally subject for the damage brought about by the encroachment of rivalry law; with the impact that every one of those endeavours will undoubtedly make up for the mischief in full, and the harmed party has the privilege to require full remuneration from any of them until he has been completely redressed.
  2. By method for discrediting from section 1, Member States will guarantee that, without preference to one side of full remuneration as set down in Article 3, where the infringer is a little or medium-sized endeavour (SME) as characterized in Commission Recommendation 2003/361/EC (1), the infringer is at risk just to its own immediate and circuitous buyers where: (a) its piece of the overall industry in the pertinent market was underneath 5 % whenever during the encroachment of rivalry law, and (b) the utilization of the ordinary standards of joint and a few obligations would hopelessly endanger its financial practicality and cause its advantages for losing all their worth.
  3. The discrediting set down in passage 2 will not make a difference where: (a) the SME has driven the encroachment of rivalry law or has forced different endeavours to take an interest in that, or (b) the SME has recently been found to have encroached rivalry law. 
  4. By method for criticism from passage 1, Member States will guarantee that an insusceptibility beneficiary is mutually and severally subject as pursues: (a) to its immediate or circuitous buyers or suppliers; and (b) to other harmed parties just where full remuneration can’t be gotten from different endeavours that were engaged with a similar encroachment of rivalry law. Part States will guarantee that any restriction period material to cases under this passage is sensible and adequate to enable harmed gatherings to bring such activities. 
  5. Member States will guarantee that an infringer may recoup a commitment from some other infringer, the measure of which will be resolved in the light of their relative obligation regarding the damage brought about by the encroachment of rivalry law. The measure of commitment of an infringer which has been allowed invulnerability from fines under a mercy program will not surpass the measure of the damage it caused to its very own immediate or aberrant buyers or suppliers. 
  6. Member States will guarantee that, to the degree, the encroachment of rivalry law made mischief harmed parties other than the immediate or backhanded buyers or suppliers of the infringers, the measure of any commitment from an invulnerability beneficiary to different infringers will be resolved in the light of its relative duty regarding that damage.

Article 12-16

Giving of cheats and the privilege to full pay 

  1. To guarantee the full adequacy of the privilege to full remuneration as set down in Article 3, Member States will guarantee that, as per the standards set down in this Chapter, pay of damage can be asserted by any individual who endured it, independent of whether they are immediate or roundabout buyers from an infringer, and that pay of mischief surpassing that brought about by the encroachment of rivalry law to the inquirer, just as the nonappearance of risk of the infringer, is evaded. 
  2. So as to keep away from overcompensation, Member States will set down procedural standards proper to guarantee that pay for genuine misfortune at any degree of the inventory network doesn’t surpass the cheat hurt endured at that level. 
  3. This Chapter will be without bias to one side of a harmed gathering to guarantee and acquire pay for loss of benefits because of a full or fractional passing-on of the cheat. 
  4. Member States will guarantee that the guidelines set down in this Chapter apply likewise where the encroachment of rivalry law identifies with a stockpile to the infringer. 
  5. Member States will guarantee that the national courts have the ability to appraise, as per national methods, the portion of any cheat that was passed on.

Article-13: Passing-on defence

Member States will guarantee that the litigant in an activity for harms can conjure as resistance against a case for harms the way that the petitioner passed overall or part of the cheat coming about because of the encroachment of rivalry law. The weight of demonstrating that the cheat was passed on can’t avoid being on the litigant, who may sensibly require exposure from the inquirer or from outsiders.

Article 14: Indirect purchasers 

  1. Member States shall ensure wherein an action for damages the existence of a claim for damages or the measure of remuneration to be granted relies upon whether, or to what degree, a cheat was given to the inquirer, considering the business practice that cost expands are passed on down the production network, the weight of demonstrating the presence and extent of such a passing-on will rest with the petitioner, who may sensibly require exposure from the litigant or from outsiders. 
  2. In the circumstance alluded to in section 1, the aberrant buyer will be esteemed to have demonstrated that a giving to that roundabout buyer happened where that backhanded buyer has indicated that: (a) the respondent has submitted an encroachment of rivalry law; (b) the encroachment of rivalry law has brought about a cheat for the immediate buyer of the litigant, and (c) the circuitous buyer has bought the products or administrations that were the object of the encroachment of rivalry law or has acquired merchandise or administrations got from or containing them.

This passage will not make a difference where the respondent can show believably as per the general inclination of the court that the cheat was not, or was not so much, gave to the backhanded buyer.

Article 15: Actions for damages by claimants from different levels in the supply chain 

  1. To dodge that activities for harms by petitioners from various levels in the store network lead to numerous risk or to a nonappearance of obligation of the infringer, Member States will guarantee that in surveying whether the weight of confirmation coming about because of the utilization of Articles 13 and 14 is fulfilled, national courts seized of an activity for harms are capable, by implies accessible under Union or national law, to assess any of the accompanying: (a) activities for harms that are identified with a similar encroachment of rivalry law, however that are brought by inquirers from different levels in the inventory network; (b) decisions coming about because of activities for harms as alluded to in point (a); (c) significant data in the open space coming about because of the open requirement of rivalry law. 
  2. This Article will be without preference to the rights and commitments of national courts under Article 30 of Regulation (EU) No 1215/2012. Article 16 Guidelines for national courts.

The Commission will give rules for national courts on the best way to appraise the portion of the cheat which was given to the roundabout buyer.

Article 17: Quantification of harm 

  1. Member States will guarantee that neither the weight nor the standard of confirmation required for the measurement of mischief renders the activity of the privilege to harms for all intents and purposes incomprehensible or exorbitantly troublesome. Part States will guarantee that the national courts are enabled, as per national systems, to gauge the measure of damage on the off chance that it is set up that a petitioner endured hurt however it is for all intents and purposes unimaginable or unnecessarily troublesome accurately to evaluate the mischief endured based on the proof accessible. 
  2. It will be assumed that cartel encroachments cause hurt. The infringer will reserve the option to counter that assumption. 
  3. Member States will guarantee that, in procedures identifying with an activity for harms, a national challenge authority, endless supply of a national court, help that national court concerning the assurance of the quantum of harm where that national challenge authority believes such help to be fitting.

Article 18

Suspenseful and different impacts of consensual question goals 

  1. Member States will guarantee that the restriction period for bringing an activity for harms is suspended for the term of any consensual debate goals process. The suspension of the constraint time frame will apply just with respect to those gatherings that are or that were included or spoke to in the consensual contest goals. 
  2. Without preference to arrangements of national law in issues of intervention, Member States will guarantee that national courts seized of an activity for harms may suspend their procedures for as long as two years where the gatherings thereto are engaged with consensual question goals concerning the case secured by that activity for harms. 
  3. A challenge authority may consider pay paid because of a consensual settlement and before its choice monumental a fine to be a relieving factor.

The availability of damages in the UK courts

Articles 101 and 102 of the Treaty on the Functioning of the European Union (TEFU) disallow against focused strategic policies. Extensively, Article 101 disallows business understandings or game plans which forestall, limit or misshapen rivalry inside the inner market and influence exchange between Member States.

The UK courts had built up over 30 years back, as in the renowned instance of Garden Cottage Foods v. Milk Marketing Boards, how encroachment of Articles 101 and 102 takes into consideration accessibility of harms to counterbalance the mischief caused. On the off chance that we pursue the Crehan and Manfredi decisions, harms are without a doubt accessible, despite the fact that the Competition Act, 1998 doesn’t unequivocally give a privilege to harms when the denials set down in Chapter I and II of the Act are encroached. 

Be that as it may, there must be no irregularity between the choice of the court and the standards set somewhere around the Treaty and the European Court according to Section 60(2) of the Competition Act, 1998. Harms are additionally accessible according to Section 47A which accommodates claims for harms, procedures of which are directed before the court and the accompanying Section 58A, wherein a case is brought before the Tribunal under Section 47A or 47B in regards to encroachment choices.

Jurisdiction of the High Court and the Competition Appeal Tribunal

A petitioner may bring a challenge guarantee either under the watchful eye of the High Court (the court of the first case for high‑value claims) or the Competition Appeal Tribunal (the UK’s pro challenge discussion). The High Court has locale over England and Wales. The locale of the CAT reaches out to the entire of the UK. 

An inquirer can bring an ‘independent’ activity in the Chancery Division of the High Court, demonstrating an encroachment of the challenge rules. Be that as it may, the inquirer in such a case can’t depend on a comparable earlier choice by an open position or where the Competition and Markets Authority (CMA), an area controller or the European Commission has arrived at a choice in accordance with an encroachment of European Union or the UK Competition Law.

An inquirer can likewise bring a ‘pursue on’ activity in the High Court or the Competition Appeal Tribunal (CAT). Additionally, by the ideals of Consumer Rights 2015, the new position of the law is that the CAT has now been deliberated with the ward to hear both independent and pursue on cases.

Private international law

One needs to allude to the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (the Brussels Regulation) when the purview of the Member States’ courts must be chosen concerning a challenge law case.

Article 4 of the Brussels Regulation expresses that the litigant ought to be sued at the spot he has a habitation of. There are a few exemptions to this standard as well, for example, Article 7 ensures bringing an activity at a spot where the destructive demonstration happened or where the damage was endured. The fundamental principle according to the Regulation on the Law Applicable to Non-Contractual Obligations, in any case, remains that the law of where the market is influenced or liable to be influenced ought to be applied.

In any case, the High Court or the CAT has seen the initiation of numerous worldwide dimensioned cases. This is on the grounds that disputing in England and Wales is beneficial instead of suing in the other Member States considering, the viable case the executives’ strategies, supportive principles for exposure of proof and significant experience of taking care of complex global prosecution. 

Stay litigants

A fascinating jurisdictional probability was uncovered by the High Court’s judgment on account of Roche Products Ltd v Provimi Ltd. The petitioner looked for harms as a result of damage claimed to have been exacted upon it by Vitamins Cartels. Procedures were initiated against Roche Products Ltd of the UK (Roche UK), based on Article 4 of the Brussels Regulation, having a house in the UK. Provimi contended that Roche UK had encroached Article 101 (10 by actualizing the cartels went into it by its Swiss Parent Company, Roche Vitamin Europa AG). 

The High Court likewise surrendered to Provimi’s solicitation to join the Swiss organization as indicated by Article 8 of the Brussels Regulations which enables different elements to participate in the event of cases being firmly interconnected, making it convenient to hear and decide them together with the goal that the danger of unique decisions emerging out of independent procedures can stay away from. Henceforth, it pursued that the nearness of a backup in the UK could be utilized to set up locale over a non-UK parent. In such conditions, the UK backup is known as the “grapple respondent”. 

Italian torpedo 

To start with, we should comprehend the significance of “torpedo”. A torpedo is an oceanic weapon utilized for holding and in this way halting or if nothing else hindering a ship. In its lawful sense, the Italian torpedo is a method used to defer a case brought under the law of the European Union (EU). In a patent or break of copyright case (normally) the litigant for a situation of rupture of copyright can carry an activity to proclaim that the supposed activity isn’t in actuality unlawful. He can do this in a nation other than that in which the first activity is brought.

The guidelines of EU law direct that if a case is being gotten one purview, the case can’t be heard somewhere else. Thus, if the litigant gets his activity a Member State infamous for its moderate legitimate procedures (e.g., Italy or Belgium) he can adequately stop the break of copyright activity for such a long time that regardless of whether fruitful it is to a great extent futile. 

Indeed, even restrictive purview provisions have not had the option to completely shield parties from torpedo activities. In the 2003 instance of Gasser v MISAT, the courts managed an agreement containing an understanding that if there should arise an occurrence of debates, Austrian courts would have purview.

Regardless of such a decision of-court understanding, MISAT documented an activity in Italy looking for an affirmation that its agreement with Gasser had been ended. Gasser then brought a case against MISAT in Austria for the extraordinary instalments. The European Court of Justice held that since the Austrian court was the place the suit was documented later, it needed to hold up until the Italian court chose whether it had a ward, despite the gatherings’ consent in actuality.

The cause of action

For filing of the suit, regardless of whether in the common courts or the Competition Appeal Tribunal, a case must be brought within a specific time from when the encroachment happened. This is known as the impediment time frame. 

Cases for a rupture of rivalry law acquired the High Court in England and Wales and Northern Ireland High Court should, for the most part, be brought inside six years from the date on which the reason for activity emerged (which in rivalry cases will ordinarily mean when the petitioner endured misfortune). Where a respondent has covered basic certainties identifying with the encroachment, the six-year time frame may not begin until the inquirer finds the basic realities. 

Comparable cases acquired a Sheriff Court or the Court of Session in Scotland must be brought within five years from the date the petitioner endured misfortune. Activities in the CAT where the case emerged after 1 October 2015 are dependent upon a similar impediment period as in the standard courts (six years in England and Wales and Northern Ireland, five years in Scotland). Where a case emerged before 1 October 2015, the constraint time frame is two years according to Rule 31 of the 2003 CAT Rules.

Burden and standard of proof

Compliant with the Council Regulation (EC) No 1/2003, the weight of demonstrating an encroachment of Article 101(1) of TFEU Article 101 falls on the individual charging its infringement. At that point, the endeavor guaranteeing the advantage of Article 101(3) TFEU will bear the weight of demonstrating that the conditions endorsed in that are fulfilled. Under this common division of the lawful weight the European Commission is answerable for building up that the understanding or purposeful practice being referred to comprises a limitation of rivalry by item or impact.

When a finding of infringement has been adequately illustrated, the gatherings are given a last opportunity to get away from the disallowance of Article 101(1) TFEU by demonstrating the presence of efficiencies that exceed the prohibitive impacts found by the Commission.

Interim relief

Under Article 8(1) of Council Regulation (EC) No 1/2003, which classified the point of reference previously set out in the 1980 instance of European Court of Justice Camera Care v European Commission, the Commission has the ability to arrange between time quantifies based on an at first sight finding of encroachment where there is a pressing need to react to a danger of genuine and unsalvageable harm to rivalry. 

The Commission has as of late gone underweight, from both national challenge specialists and scholastics, to utilize its forces to force interval cures, especially in connection to the quick-moving advanced economy. Thus, in the UK the Furman Report charged by the Competition and Markets Authority additionally prescribed expanded utilization of break gauges as a way to guarantee increasingly successful challenge law authorization in computerized markets. 

As per this, in almost two decades, On 26 June 2019, the European Commission declared that it has opened a conventional examination to decide if US chipmaker, Broadcom, is manhandling its purportedly predominant situation in the business sectors for modem and TV chipsets through its inconvenience of selectiveness necessities on clients (among other affirmed breaks of rivalry law).

In parallel, the Commission gave a Statement of Objections telling Broadcom of its goal to force an interval estimates request limiting its purportedly exclusionary works on pending finish of the examination. Broadcom marks the first run through since the IMS Health case in 2001 (and the first run through since the death of Regulation 1/2003) that the Commission has looked to depend on these forces.

The ‘passing-on’ defence and indirect purchasers in the UK Courts

The passing on defence allows a defendant to argue that a claimant’s loss has been reduced or negated by the claimant has passed on to his customer (the indirect purchaser) all, or a proportion of, any overcharge resulting from the defendant’s actions.

The context of this is that governments and competition authorities around the world are keen to encourage the victims of anti-competitive practices to sue for damages, to compensate for their losses, for example, a customer using a supplier which had been involved in a price-fixing agreement for its losses, on the grounds that the prices it had to pay were, as a result of the agreement, higher than they would otherwise have been. However, a difficulty arises in determining who is entitled to the damages. This is where the “passing-on” defence becomes relevant. 

If a manufacturer of consumer goods has participated in a price-fixing cartel, a retailer which bought the goods from the manufacturer might wish to sue the manufacturer for damages, because the prices paid to the manufacturer were higher as a result of the price-fixing cartel. The retailer would be seeking damages to compensate for its losses as a result of having to pay the higher prices. But what if the retailer had passed on those higher prices by way of increased retail prices that the retailer charged to the consumer?

In that case, the retailer would not have borne any losses (although its consumers, the indirect purchasers, would have done so), and therefore arguably should not be entitled to any damages – it has sustained no losses which should be compensated. In those circumstances, if the retailer does sue the manufacturer for damages, the manufacturer might seek to rebut the claim with the defence that no damages are due to the retailer, because the retailer has not suffered any loss; the retailer has passed on the increased price to the consumer. This is the “passing-on” defence.

Causation

Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. In the English law of negligence, causation proves a direct link between the defendant’s negligence and the claimant’s loss and damage. 

Causation is a question of fact; only direct damage caused by the infringement, may be claimed (but including loss of profits or out of pocket expenses where causation proven) (for instance, the Crehan case).

The English tort rules distinguish direct loss from consequential damage but in the context of economic torts such as infringement of Articles 81 and 82 of the European Community Treaty, the question of remoteness of damage overlaps with causation, as interpreted by the European Court of Justice i.e., there must be a causal link and the same has to be proved for damage to be recoverable. Evidence must be adduced to establish a causal link between the breach and the damage and normally the claimant need only show that the breach materially contributed to the harm.

Quantum

In the case of Articles 81 and 82 of the European Community Treaty, anyone who suffers loss as a result of a breach of statutory duty may claim damages. Claims for breach of statutory duty are subject to the general rules applicable to tort. To prove a claim for damages, therefore, it has to be established that the loss suffered is directly attributable to the alleged breaches of Articles 81 and 82. 

The evidential test is a balance of probabilities. Normally, as in the Crehan case, the court will assess the reliability of the expert evidence relating to the assessment of the quantum of loss. In the Crehan case, the Court of Appeal and Park J assessed the damages by reference to the expert witness’s calculations and expert opinion on the nature of the loss (e.g. closure of a pub because of loss of profits on beer sales caused by the price of).

Contribution

It is well established that the introduction of the rules of competition in the Treaty of Rome was the result of requests from the United States with strong support from German scholars and officials. However, umbilical cord with the US was cut early on and EU competition law enforcement developed a distinctive European flavour. The historical records have traced American and German influence in the early years.

It is harder to pinpoint the precise contribution that the UK has made to competition law and policy since its entry into the common market in 1973. Having said that, two figures stand out whose contribution to the European Union project can hardly be doubted and who have had an important impact on competition law: the late Sir Leon Brittan (Commissioner for competition between 1989 and 1993) and Sir Francis Jacobs (Advocate General at the Court of Justice of the European Union from 1988 to 2006). 

Also, on closer inspection, it is found out that it is the EU that influenced the UK, in particular since the Labour government took office in 1997. Moreover, given the paucity of enforcement action by the Office of Fair Trading (“OFT”) first and the Competition and Markets Authority (“CMA”) now, it is also quite hard to see what a particularly British view of competition law is all about even today. At the same time, in judgments of the British courts and in some enforcement activities of the OFT and CMA we can detect what will be labelled as ‘critical deference’ to the approach to competition law found in the EU institutions. This has never led to a major fracture between the British and the EU approach.

Interest

A third party or a representative body showing a sufficient interest in a decision of the CMA under the Competition Act may also appeal that decision to the Competition Appeal Tribunal. The CAT determines the question of “sufficient interest”. A third party with a sufficient interest may further appeal the decision of the CAT to the Court of Appeal, but only on a point of law. Appeals, whether by addresses of the CMA decision or by interested third parties, must be made within two months of the notification or publication of the decision, whichever is the earlier.

Exemplary damages

One of the most controversial remedies in private law is that of punitive (or exemplary) damages. According to Ernest Weinrib, the remedy is ‘encased in controversy’. Punitive damages are extra-compensatory damages the aim of which is to punish the defendant for his wrongful conduct and to deter him and others from acting similarly in the future.

Since Lord Devlin’s landmark speech in Rookes v Barnard [1964] AC 1129 (HL), the remedy has been confined to just three categories of case. Those are cases of oppressive, arbitrary or unconstitutional conduct by government servants acting in that capacity (Category 1), cases of conduct aimed at making a profit in excess of the compensation payable to the claimant (Category 2), and cases where statute authorises an award of punitive damages (Category 3). The award of punitive damages is particularly relevant (and of particular concern) to corporate defendants given the extension of the award to Category 2.

However, much ink has been spilt following two: Travel Group PLC (in liquidation) v Cardiff City Transport Services Limited (2012) CAT 1 and Albion Water Ltd. v Dŵr Cymru Cyfyngedig (2013) CAT 6 on the subject of competition litigation in Europe. An axiom with varying justification is that European competition litigation must not embrace exemplary damages. This sits oddly with the decisions of the Competition Appeal Tribunal (CAT) to award exemplary damages for the first time in Cardiff Bus and to follow similar analysis in Albion Water. Could it be that despite all objections exemplary damages are already available?

Sections 58 and 58A of the Competition Act 1998: Findings of fact and findings of infringements

Section 58: Findings of fact

Section 58 of the competition act pertains to finding of fact by the CMA. It states that unless the court, tribunal or the OFT has decided to take further actions in the proceedings, the finding (finding of fact by the CMA during conducting the investigation) by the court in part 1 of the proceedings will be final and binding on the parties if the time for filing an appeal has expired and no appeal has been brought or the decision on the appeal confirms such findings.

Section 58A: findings of infringement

Section 58(A) deals with claims of infringement decisions which are brought in proceeding before the court or the tribunal under 47A or 47B. It states that the infringement decision becomes binding on the court or tribunal once it becomes final. The provision further talks about when the decision under section 47A (6)(a)(b) and section 47A (6)(c) becomes final.

Under section 47A(6)(a)(b), the decision becomes final:

(1) if the time for appeal against the decision has expired and no appeal has been filed;

(2) when any other appeal regarding the decision has been decided or ended otherwise or;

(3) the time for appeal against the result of appeal has expired and no such appeal has been filed. 

Under section 47A(6)(c), the decision becomes final when the time for appeal against decision or time for appeal against the result of appeal has expired in European courts and no such appeal has been filed.

Costs and funding arrangements

In High Court proceedings, the general rule is that “costs follow the event”. That is, the successful party can recover from the losing party the majority of the costs it has incurred. Costs include court fees, lawyers’ and experts’ fees, and certain other expenses incurred in connection with the litigation. Whilst the court has some discretion to depart from this general rule (for instance, where the successful party’s conduct has been unreasonable), this is exceptional. Nonetheless, the High Court regularly varies the exact amount that the successful party can recover. 

It does so to discourage poor behaviour (most notably, failure to behave reasonably and comply with the procedural rules). Accordingly, the court takes account of the parties’ conduct over the entire course of the proceedings when deciding the exact amount the successful party can recover. The rules in the CAT are more flexible. The CAT has the discretion (at any stage in proceedings) to make such an order as it thinks fit in relation to the payment of costs. There is no specific “costs follow the event” rule, and the CAT may take into account all the conduct of the parties in relation to the proceedings when determining costs.

Limitation rules

Generally, competition claims in the High Court and the CAT can only be brought in respect of loss suffered up to six years from the date on which the cause of action accrued (which in competition claims will normally mean when the loss was suffered). The start of this six-year period can, however, is deferred where the defendant has deliberately concealed essential facts about the infringement (so that time only starts to run from the point when the claimant discovers the relevant facts). 

This will often be relevant in cartel damages actions since concealment is an inherent part of any cartel. Following implementation of the Damages Directive, where both the infringement and the harm occur after 9 March 2017, time does not start to run until: 

(i) the infringement has ceased or 

(ii) the claimant knows (or can reasonably be expected to know) of the infringement, the identity of the infringer and that they have suffered a loss, whichever is the later. The limitation period is also now to be suspended while a competition authority’s investigation is ongoing and for at least one year after the investigation has been concluded. The combined effect of these changes is that claimants will be able to bring claims for even larger sums at an even later stage.

Mediation

This usually involves a neutral third party who helps identify the issues in dispute, explore options for resolution, and attempts to bring about agreement between the parties. Mediation is typically facilitative, that is the mediator’s role is primarily to help the parties reach an agreement. It is, however, possible in certain instances for the mediator to evaluate a claim and their determination may or may not be binding. At a more general, and visible, level, a recent development is the use of mediation as an adjunct to the public enforcement of competition law and regulatory disputes. 

This has been seen, for example, in merger cases in which a regulator, such as the European Commission, approves a merger subject to commitments. These may include so-called behavioural commitments where the merging parties agree to maintain supply arrangements with third parties. Where the regulator may previously have stipulated that arbitration be used in the event of non-compliance by the merging parties with these commitments, we are now seeing a provision on mediation or quasi-adjudication. 

Duty to inform the court of contact with competition authorities

Standalone actions in the High Court

A claimant will need to bring a stand-alone claim where there is no prior infringement decision from a competition authority or where the scope of an infringement decision is not sufficiently broad. The claimant will need to prove the breach of competition law in addition to showing that they suffered loss as a result of that breach and the quantum of that loss. Stand-alone (and follow-on) actions for damages and/or injunctive relief can be brought before the High Court on the basis of the tort of breach of statutory duty. 

Under section 2(1) of the European Communities Act 1972, Articles 101 and 102 TFEU have legal effect in the UK (Garden Cottage Foods Ltd v Milk Marketing Board; Crehan v Entrepreneur Pub Co [2004]), and the Competition Act provides the statutory basis for the Chapter I Prohibition and the Chapter II Prohibition.

Successful claims

The case-law of the Court of Justice of the European Union provides that any person can claim compensation for harm suffered where there is a causal relationship between that harm and an agreement or practise that is prohibited (Cases C-295/04 to C-298/04 Manfredi & Others v Lloyd Adriatico Assicurazioni SpA & Others).

Unsuccessful claims

The CJEU has confirmed that EU law does not preclude national law from denying a party the right to obtain damages where that party is found to bear “significant responsibility” for the distortion of competition. This is on the basis that a party must not benefit from its own unlawful conduct (Courage Ltd v Crehan).

Follow-on actions in the CAT and the High Court

Section 47A: monetary claims before the CAT

Section 47A created a right of third parties to bring claims for damages and other monetary claims before the CAT for loss or damage suffered as a result of an infringement of either UK or EC competition law.  

“Follow-on” claims in the CAT -  ‘Any claim for damages, or any other claim for a sum of money which a person who has suffered loss or damage as a result of the infringement of a relevant prohibition may make in civil proceedings brought in any part of the United Kingdom’, according to section 47A(1) of the Competition Act. 

A ‘relevant prohibition’ for this purpose is of course defined as any of the Chapter I and II prohibitions or the prohibitions in Articles 101 and 102 of the Treaty. The most obvious section 47A claim is a claim in tort for breach of statutory duty.

Section 47B: claims brought on behalf of consumers

Section 47B of the CA permits specific consumer groups to bring damages claims on behalf of at least two individuals, provided that an infringement of competition law had been established (i.e., follow-on claims only) and provided that each of the individuals concerned has consented to bring or continue the claim (i.e. the claim is on the “opt-in” basis only).

Only the consumer organisation which received the special status that enables it to bring such claims, only one such claim has ever been brought, and that case settled before the effectiveness of the provision could be fully tested.

A group of claimants can obtain compensation through collective proceedings. These collective proceedings operate on the principle that a representative from the class of claimants brings the damages claim on behalf of the entire class of claimants.

Section 47B CA is replaced by a new provision which permits collective proceedings in the form of both follow-on claims and standalone claims, and in the form of an “opt-in” or an “opt-out” collective action.

“Opt-in” collective proceedings are brought on behalf of each class member except where any class member opts in by notifying the representative that the claim should be included in the collective proceedings.

“Opt-out” collective proceedings are brought on behalf of each class member except (i) where a class member has opted out by notifying the representative that the claim should not be included in the collective proceedings, and (ii) any class member who is not domiciled in the UK at a specified time and who does not opt in the claim.

Importantly, for collective proceedings to be brought it is not necessary that all of the claims are against all of the defendants; the collective proceedings may combine individual claims (brought under s. 47A) with the consent of the individual who made that claim with those that have not.

Follow-on actions in the High Court

Under section 47A of the Competition Act 1998, a person who has suffered loss or damage by virtue of a relevant infringement of EU or UK competition law is entitled to bring a claim for damages or other relief. English law characterises the claim in tort as a breach of statutory duty (see Case C-453/99 Courage Ltd v Bernard Crehan and joined cases C-295/04 and C- 298/04 Manfredi).

A relevant infringement for these purposes is either:

  • A European Commission finding that that either Article 101(1) or Article 102 of the Treaty on the Functioning of the European Union (TFEU) has been infringed.
  • A decision by a UK competition authority that Article 101 or 102 TFEU and/or Chapter I or Chapter II of the Competition Act 1998 has been infringed.

A follow-on claim must relate to precisely the same facts as the infringement decision of the competition authority. Where claims are brought on this basis, the competition authority’s infringement decision acts as proof of the existence of an infringement (sections 47A( 9) and 58A, Competition Act 1998). In other words, in follow-on actions, claimants do not need to establish an infringement (which has already been established by the infringement decision itself) and therefore need only demonstrate causation and loss.

Consumer Rights Act, 2015

The specific antitrust provisions of CRA 2015 came into force on 1 October 2015. CRA 2015 sought to, among other things; make it easier for consumers and businesses to obtain redress where there has been an infringement of antitrust law. Section 81 of CRA 2015 brought into force Schedule 8, which amended both the CA 1998 and EA 2002, to allow the CAT to:

  • hear stand-alone cases;
  • introduce collective proceedings and procedures for collective settlements;
  • harmonise limitation periods with those of the High Court;
  • provide schemes for voluntary redress approved by the Competition and Markets Authority (CMA), and;
  • introduce a fast-track scheme for SMEs.

In addition, as described above, a number of changes were introduced by the revision of the CAT Rules. These changes are discussed in further detail below.

Competition Law as a Defence

Article 101(2) TFEU

Article 101(2) TFEU states that agreements or decisions prohibited pursuant to Article 101(1) shall become automatically void. It applies to agreements and decisions infringing Article 101(1) TFEU and not satisfying the requirements of Article 101(3) TFEU.

In the case of concerted practices, the act of concentration is not a legal action so there is no need to declare it void. The validity of any legal acts concluded between one of the concerting undertakings and one or more third parties is not a matter of EU law, but of national law.

The Sanction of voidness

Article 101(2) TFEU provides that “any agreements or decisions prohibited pursuant to [Article 101(1)] shall be automatically void”. The principle of sanction of voidness is debatable when it comes to the extent of application to concerted practices. It merely refers to agreements and decisions to the exclusion of concerted practices.

This is because of the possibility that concerted practices somewhat have informal coordination that does not have any binding effect and therefore it cannot be abrogated. ECJ has basically concerned itself to building up a lot of essential general principles concerning this principle but has left the practical application of these to the national courts.  

Eco Swiss China Ltd v Benetton

This judgment ideally represented the European Union version of “Second Look” doctrine that was first developed in the USA. It’s a 1999 judgment which justifies the significance of the sanction of voidness in the legal system of the EU where if an agreement infringes Article 101(1), voidness becomes an important result. Arbitration tribunals may rule on competition law claims between private parties, but should a party initiate an annulment action on the basis that an award is in breach of competition rules, the ordinary courts may look into the competition law issue again.

The ‘problem’ of Article 101(3) and the Commission’s former role in relation to individual exemptions

The fact that only Commissions could apply Article 101(3) to individual agreements gave rise to numerous problems as to the enforceability of agreements between the parties majorly on the rules of notification, the retrospective of individual exemptions, the concept of provisional validity and parallel Commission and national court proceedings.

Under regulation 17 of 1962, the Commission had the sole power to grant individual exemptions to agreements on the basis of the criteria in Article 101(3) this monopoly over the grant of individual exemptions meant that commission had the opportunity to develop its policy towards various types of agreements over a period of time.

The monopoly had many drawbacks, the commission was overburdened with notifications, many of which concerned agreements that had no serious anti-competitive effects with the consequence that it was distracted from other tasks such as the pursuit of the cartel and abusive behaviour which are of much greater significance for the public interest. Regulation 1 of 2003 was carried into effect by the white paper on the modernisation of 1999 proposed abolition of the

process of notification altogether, hence, solving “the problem” of monopoly over the grant of individual exemptions.

The classic ‘Euro-defence’

Judicial thinking is unsusceptible with regard to Article 101(2).  ‘Pacta sunt servanda’ meaning contracts should be honoured comes into play when an undertaking connotes impunity from the contractual obligation on ‘technical grounds’ under Competition Law.

Cases like The George Micheal case, Oakdale  (Richmont ltd. V. National Westminster Bank plc )  dealt with release from contractual obligations to record songs for studios and restrictive terms on all money debentures arrangement respectively,  the landmark case of Deutsche bank v. Unitech global limited dismissed the argument contesting credit and swap agreements with huge investments were void on the mere assumption that they were  ‘connected’ with alleged arrangements between banks fixing LIBOR but the cases of Calor Gas Ltd. V. Express Fuels Ltd. And Jones v. Rico UK Ltd. Clearly show that despite the failure of several euro-defences, Article 101(2) is enforceable and is not a failed provision.

Severance

Impediments in litigation arise over the voidness effect regarding the remaining portion of the agreements. It was held by the Court of Justice that if it is possible severe the violative provisions of the contract from the rest of its remaining terms, the latter will be enforceable. But this principle’s enforceable mechanisms remain to be decided in accordance with the native law of each member state.

Issues under Rome II and the Brussels Regulation arise, as a result, the former dictates the applicable law contractual disputes while the latter determines litigation’s correct place in civil and commercial disputes. The Brussels Regulation comes into play regarding the outcome of litigation only because some EU Members have different methods to severe faulty contractual restrictions. In English law, severance is allowed in specific circumstances.

In Camillus wave in ltd. Vs. Societe, the court held that the provisions regarding minimum royalties were enforceable, regardless of whether other parts of the agreement might infringe Article 101(1). The judgment has been applied in several cases, such as  English Welsh and  Scottish Railway Ltd. V. EON UK plc where it was held that the terms of a coal carriage agreement were illegal under Article 102 and if altered or removed, would change the essence of the contract making it unenforceable in totality. 

Void or illegal?

In Gibbs Mew plc v Gemmell, the Court of Appeal concluded that an agreement that infringes Article 101(1) is not only void and unenforceable but also illegal. This has serious consequences: for example, a party who has paid money to another under an illegal agreement cannot recover the money unless it can be shown that the parties were not in pari delicto.

In Crehan v. Courage Ltd. a case concerning Article 101 TFEU referred to the Court of Justice by the Court of Appeal under Article 267 TFEU, the Court held that it would be contrary to the effective application of Article 101 for national law to impose an absolute bar on an action by one party to an agreement that restricts competition against another party to it. However, EU law does not prevent national law from denying a party who has significant responsibility for the restriction of competition the right to obtain damages from the other contracting party.  The principles in Courage Ltd v. Crehan would presumably be applied in a case that would come up with the question of an agreement to be void or illegal.

Transient voidness

On this issue that came before the Court of Appeal is whether the provision in Article 101(2) is transient as per their validity or not. In Passmore v. Morland plc, the Court of Appeal maintained the Chancery Division’s judgment that an understanding could move from voidness to legitimacy and back again as per the impact that it may be having on market available at a specific point in time.

Article 102 TFEU

Article 102 TFEU prohibits anti-competitive behaviour by dominant undertakings, and, together with Article 101 TFEU, stands in the centre of the competition policy of the EU. The concepts of dominance and abuse are the Article’s pivots and have been reinterpreted over the course of the history of the EU. 

For example, a contract to procure a particular product from a superior firm is quite likely to violate Article 101 and Article 102 as it can prohibit the access to the market for competitors, irrespective of the fact that they voluntarily accepted to abide by the obligation.

Likewise, a system of loyalty returns may amount to abuse even though there is a lack of contractual clause to refrain from buying from competitors in the contract but has the same impact. It can be assumed that the bar stipulated under Article 102 entails that the unlawful provisions are void, even though prima facie Article 102 might sound legal unlike Article 101(2).  

Hoffmann-La Roche v. Commission

Hoffmann – La Roche v. Commission Case 85/76 [1979] ECR 461 held that Art 82 dominant position did not apply to oligopolistic markets where there are a number of undertakings holding market power and who react to each other conduct in a parallel way. This case also provided a definition of dominance and said:

“The dominant position thus referred to relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers. Such a position does not preclude some competition, which it does where there is a monopoly or quasi-monopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment. A dominant position must also be distinguished from parallel courses of conduct which are peculiar to oligopolies in that in an oligopoly the courses of conduct interact, while in the case of an undertaking occupying a dominant position the conduct of the undertaking which derives profits from that position is to a great extent determined unilaterally.

Third-party as defendant

On several occasions where the case concerns Article 102 of TFEU, the competition rules are raised as a defence by a third party. In most of the cases where the owner of the IPR such as patent, copyright or registered design has brought an action against a defendant for infringement and the defendant has then claimed that it has a defence under Article 102 on the basis that the claimant is guilty of abusing its dominant position. In particular, the defendant may claim that by refusing to grant a license of the IPR in question, it is guilty of an abuse under Article 102.

However, if the claimant is abusing his dominant position then this will not in itself confer on the defendant a valid defence. The courts have established that there should be a sufficient nexus between claimant’s abusive behaviour and defendant to entitle it to rely on Article 102 that a defence is given only in those cases where there is exercise or existence of that right creates the abuse will the court refuse to give the exercise of the right.

Arbitration

Arbitration of disputes is very often provided by Commercial agreements and so is the case for competition law issues. The European Commission is always conscious of the amount of arbitration and also the other forms of alternative dispute resolution that is being carried on. Case C-126/97 Eco Swiss China Time Ltd ν Benetton … – CURIA

In the case of eco Swiss China Time Ltd v. Benetton International NV, the Hon’ble Court of Justice was requested to take into consideration the impact of the competition rules on arbitration proceedings. A trademark license was granted to Eco Swiss to market watches under the ‘Benetton’ tag. Subsequently, their aforesaid license was terminated by Benetton and the matter was referred to an arbitrator under Dutch Law by Eco Swiss, in compliance with the agreement.

Under the Dutch Law, an arbitration award may be challenged before the courts, in the case of absence of agreements between the parties limited to grounds of public policy only. It was held by the Dutch Supreme Court that the enforcement of competition rules did not amount to public policy in Dutch Law, so Benetton would have been unsuccessful in a purely domestic matter. However, as the Benetton’s case rested on the EU rules of competition, the matter was referred to the Court of Justice under Article 267.

As can be seen above that the Court of Justice stressed particularly upon the fundamental importance of rules of competition in the treaty and also the importance of sanction of voidness in ensuring compliance with them. On a distinctive point, the Court of Justice recognised that domestic rules of procedure that prescribe time limits for the challenging of awards through arbitration may have the effect of prevention of an appeal as per the rules of competition, provided there were no fierce time limits in order to infringe the requirement of effective application of rules of competition as they would themselves be valid.

The intention of arbitration is to enable parties to disputes to reach a reasonably rapid and cheap settlement of disputes. If the competition law points are ignored by the arbitrator, these can subsequently be raised on appeal as, subject to the time limit, in Eco Swiss, the cheap and speedy conclusion of cases would be undermined. It is important that the arbitrator must apply his or her mind to the issue, however, the Court of Justice Judgement in the case of Van Sachijndel, it was established that there is no obligation upon a court of nation proactively to root out infringements of the competition rules.

Conclusion

Thus, we can see that Article 101 and 102 of the TFEU promises fair trade practices amongst all the market forces in Europe. With this, it ensures equal competition for all and no one gets an unfair advantage so that it helps all the market forces. 

References 


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


 

The post Article 101 and 102 TFEU: Private Enforcement in the Courts of Member States appeared first on iPleaders.

From the Creation of Article 370 and 35A to Abolition

$
0
0

This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers the story from the Creation of Article 370 and 35A to Abolition and tries to discuss the history, fact and provision of the constitution related to it.

Introduction

Article 370 and Article 35A were very important provisions for the State of Jammu and Kashmir. Article 35A was a unique provision included in the Indian Constitution that provides Legislature of Jammu and Kashmir complete freedom to make provision for permanent residents of the State. It provides special rights and privileges regarding the acquisition of property, providing job in the public sector, scholarships and other public welfare. Article 370 gave special status to the state of Jammu and Kashmir within India. Article 370 was the most controversial provision in the Constitution of India. Article 370 was a temporary provision. The President of India could declare by public notification to cease Article 370 to exist and can modify this Article also.

Story of creation of Article 370

  • When Pakistan did an attack on Jammu and Kashmir in 1947, then Maharaja Hari Singh (King of Jammu and Kashmir) demanded assistance from Indian Government. But, Jammu and Kashmir was not part of India at that time. On this matter, there was an instrument of accession signed on dated 26th October, 1947 between Maharaja Hari Singh and Indian Government. From that day, Jammu and Kashmir become an integral part of India.
  • After that, the Indian Government sent armies to Jammu and Kashmir and forced the Pakistan armies to go back.
  • Pakistan did not accept Jammu and Kashmir as an integral part of India even after the instrument of accession at that time. They blamed that instrument of accession was not signed in the free consent of Maharaja Hari Singh.
  • Then, the Indian Government approached the United Nation to solve that dispute. UN declared Jammu and Kashmir as a disputed area by giving very less value to the instrument of accession.
  • In order to solve the dispute of Jammu and Kashmir, the UN suggested a way of Plebiscite in which people of Jammu and Kashmir will vote that where they want to merge (Pakistan or India). But there are some preconditions put by the UN, in order to conduct Plebiscite. Conditions are:
  1. Pakistan has to remove its army from the area of Jammu and Kashmir.
  2. India has to reduce the volume of the army in the area of Jammu and Kashmir.
  • But, both countries were not ready to remove the army from the area of Jammu and Kashmir at that time, and Plebiscite did not happen.
  • A new personality named ‘Sekh Abdullah’ stood in the State of Jammu and Kashmir during that time. Sheikh Abdullah had a party named ‘National Conference’. This Party represents issues and problems of the suppressed and majority of the class of Jammu and Kashmir. During that time, he was emerging as a hero of Jammu and Kashmir.
  • There was a meeting held between the Indian Government and Sheikh Abdula named as Delhi Agreement. In this meeting, Instrument of accession was discussed and Article 370 was introduced in the Constitution of India for the incorporation of this instrument of accession.

Article 370

Article 370 of the Indian Constitution discusses temporary provisions with respect to the state of Jammu and Kashmir. Article 370 broadly covers three areas:

  • Laws making power of parliament for the state of Jammu and Kashmir: Generally, Parliament has the power to make laws for all the matters of the central list and the Concurrent list. But Article 370 restricted the law-making power of Parliament for the state of Jammu and Kashmir. According to Article 370, parliament can only make laws for Jammu and Kashmir on the concurrent and central list which was decided while signing the instrument of accession. There were three areas in which parliament can make law for Jammu and Kashmir, i.e. Defence, Communication and External Affairs. These three areas cover 31 matters of central and State list. If Parliament wants to extend its scope beyond 31 matters, then the permission of the Jammu and Kashmir government is required. Generally, When parliament makes any laws such as RTI, GST etc, it applies to every state directly except Jammu and Kashmir. But in case of Jammu and Kashmir, any laws passed by parliament should be ratified by state assembly of Jammu and Kashmir. If State assembly ratifies that law, then only it will apply to the State of Jammu and Kashmir.
  • Provisions of the Indian Constitution which are applicable in the state of Jammu and Kashmir: Article 1 and Article 370 of the Indian Constitution will be applicable in the State of Jammu and Kashmir. Along with these two articles of the Indian constitution, provisions of the constitution which was specified by the order of President in 1954 will be applicable in State of Jammu and Kashmir. This order of President is modified from time to time. Remaining parts and provisions of the Constitution of India will not be applicable to the State of Jammu and Kashmir.
  • Procedure to cease Article 370 of the Indian Constitution: When does Article 370 cease to exist? Answer to this question is also given in Article 370 of the Indian Constitution. If Constituent Assembly of Jammu & Kashmir agrees that Article 370 should be ceased and President of India declares the same by the public notification, then only Article 370 will cease to exist. But Constituent Assembly of Jammu and Kashmir was dissolved in 1957.

Story of creation of Article 35A

  • During the Treaty of Amritsar in 1846, the British Government has given Jammu and Kashmir to Maharaj Gulab Singh and Jammu and Kashmir was treated as Princely state. Legal provisions were made between 1912 to 1932 for Jammu and Kashmir.
  • After the adoption of Article 370 in the Indian Constitution, the citizenship of India was also extended to people of Jammu and Kashmir, but leaders and constituent assembly of Jammu and Kashmir wanted that existing laws and state subject of Jammu and Kashmir should be afforded different treatment.
  • For fulfilment of the desire of leaders and constituent assembly of Jammu and Kashmir, Dr Rajendra Prasad has introduced Article 35A in the Indian Constitution with the help of presidential order, 1954 by Delhi Agreement.

Article 35A

Article 35A defines the Rights of the Permanent Residents of Jammu and Kashmir. These residents are then eligible for special rights and privileges which the legislature can provide. According to this Article:

  • Definition of a permanent resident of Jammu and Kashmir will not change even after any such provision is given in Indian Constitution regarding this or any existing law in force in the State of Jammu and Kashmir or any law enacted by the legislature of the State.
  • Nothing in Article 35A will be void even after other citizens of India suffers a violation of their rights in respect of employment in the State of Jammu and Kashmir, or acquisition of immovable property of the state, or settlement in the state or right to scholarships and such other forms of aid as the State Government may provide.
https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy
                Click Above

Story of the Abolition of Article 370 and 35A

You must have heard about the fact via. TV, Newspaper or other social media that the Government has abolished Article 370 and Article 35A of the Indian Constitution. But, have you ever thought that by what procedure and by which bill, this abolition is made? Name of the bill was “The Jammu and Kashmir Reorganisation Bill, 2019” which was introduced by the minister of home affairs Amit Shah in Rajya Sabha on 5th August 2019. The bill was passed in Rajya Sabha on the same day and passed by Lok Sabha on 6th August 2019. Assent of President was also given to this bill on dated 9th August 2019. “The Jammu and Kashmir Reorganisation Bill 2019” was that bill by which passes results abolition of Article 370 and Article 35A of the Indian Constitution.

The Jammu and Kashmir Reorganisation Act, 2019

The Jammu and Kashmir Reorganisation Act, 2019 is an act of the Indian Parliament. It was introduced in Rajya Sabha on dated 5th August 2019 by Ministry of Home affairs. The main features of this Act are:

  • Reorganisation of the State of Jammu and Kashmir: This Act gives provision for reorganisation of Jammu and Kashmir into two Union Territory, i.e., Union territory of Jammu and Kashmir (consists of Kargil and Leh districts) and Union territory of Ladakh (remaining territories of the state of Jammu and Kashmir except for Kargil and Leh districts).
  • Lieutenant Governor: These two Union territories will be administered by the President, through a Lieutenant Governor (appointed by the President).
  • Legislative Assembly: This Act provides the concept of new Legislative Assembly for the UT of Jammu and Kashmir and says about the various characters of the same.
  • Total number of seats- 107 seats.
  • 24 seats out of 107 seats will remain vacant as their areas are occupied by Pakistan.
  • Seats of Assembly will be reserved for SCs and STs according to their population in UT.
  • Lieutenant Governor can nominate any two members for the representation of women to Legislative Assembly if they are not sufficiently represented.
  • The Assembly term will be of five years and it is mandatory for Lieutenant Governor to summon the assembly at least once in six months.
  • The Legislative Assembly can makes laws for any part of UT of Jammu and Kashmir which is related to:
  1. Matters mentioned in State list of the constitution, except “Police and Public Order”.
  2. Matters which are in Concurrent list applicable to UT.
  • Parliament has the power to make laws for Union Territory of Jammu and Kashmir.
  • Council of Ministers: The UT of Jammu and Kashmir has Council of Ministers of not more than 10% of members in the Legislative Assembly. The COM will advise Lieutenant Governor in the matter of making laws. The Chief Minister has to communicate each and every decision of COM to Lieutenant Governor.
  • High Court: There will be only one High Court for both Union Territory. UT of Jammu and Kashmir will have an Advocate General who will give legal advice to the Government of UT.
  • Legislative Council: The Legislative Council of the State of Jammu and Kashmir will be abolished and all bills which are pending in Legislative Council will lapse.
  • Advisory Committees: The Central Government will appoint Advisory Committees for various purposes, such as-
  1. Distribution of assets and liabilities of the state into two union territories.
  2. Issue of generation and supply of electricity and water.
  3. Issue of State Financial Corporation.
  • The extent of laws: 106 central laws of the Schedule lists will be applicable in both UTs from dated which is notified by the central government. These include:
  1. The Aadhaar Act 2016;
  2. The Indian Penal Code 1860;
  3. Right to Education Act 2009; etc.

From the Creation of Article 370 and 35A to Abolition

In this composition, the complete story of issues is given from creation to abolition. Summary of the above story follows:

  • In 1947, the Instrument of Accession was made.
  • In 1949, Article 370 is taken into consideration that it will be in the constitution of India.
  • In 1950, the Constitution of India came into force.
  • In 1954, Article 35A came to exist by the 1st Presidential order.
  • In 1956, the Constitution of Jammu and Kashmir came in force.
  • In 1990, the Armed Forces Special Powers Act imposed.
  • In 2018, Presidential rule was declared in State of Jammu and Kashmir.
  • In 2019, Abolition of Article 370 and Article 35A.

Views of people of Jammu and Kashmir who were against this Bill

There were some people who were opposing The Jammu and Kashmir Reorganisation Bill 2019 on the basis of their different views as follows:

  • The recent CM of Jammu and Kashmir, Mehbooba Mufti said it the “blackest day of democracy in India”. She said that the Indian Parliament will snatch away everything from the state of Jammu and Kashmir.
  • Former CM Omar Abdullah said the Government’s move as “unilateral and shocking”. According to him, the decision of the Government is a betrayal of the trust of people of Jammu and Kashmir.
  • According to Asgar Ali Karbalai (former Chief Executive Councillor of Kargil’s Hill Development Council), it is undemocratic to divide the state on the basis of “religion, language or region”.

Views of people of Jammu and Kashmir who were in support of this Bill

There were some people who were supporting The Jammu and Kashmir Reorganisation Bill 2019 on the basis of their different views as follows:

  • Jamyang Tsering Namgyal (a member of Lok Sabha for Ladakh constituency) support this Bill and hoping the move of Government will encourage jobs and development in their areas.
  • Leaders of the Kashmiri Hindu community (who were displaced from the Kashmiri Valley) were in support of this Bill and hoping for the justice to their communities.

Conclusion

The issues related to Article 370 and Article 35A were very sensitive and complex issues which were raised in India. It was a Historical decision that Indian Government cancelled the special status which was granted under Article 370 to Jammu and Kashmir, which has been a matter of dispute among India, Pakistan and China since 1947.

References


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post From the Creation of Article 370 and 35A to Abolition appeared first on iPleaders.

All you need to know about a Book Publishing Agreement

$
0
0

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. This article explores all the aspects of a book publishing agreement you should know about, including its meaning, importance, and essential elements.

Introduction

Books are our best friends, and some people are especially gifted with the ability to create them. However, how can you, an author, put your creation out there for the world to see? A book doesn’t publish itself, after all – and that is why you need a publisher.

Like any other business transaction, the publishing of an author’s book by a publishing house requires an agreement between the two of them. In this article, we shall understand what a book publishing agreement is, and why it is necessary. We shall examine the essential elements that a good book publishing agreement must have, in order to cater to the needs of both the author and the publisher. 

What is a Book Publishing Agreement?

A book publishing agreement is a legally binding agreement between an author of a book and a publisher which specifies all the terms of their deal to publish the book, like the payment to be made, the timeline to be followed, etc. By clarifying all the demands of both parties that have been agreed-upon, the agreement ensures that the interests of both the author and the publisher are protected and that the agreement is complied with.

https://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolutionClick here

Why do you need a Book Publishing Agreement?

You might think, why do we even need a written agreement? Can’t both parties just discuss how and when the book will be published, and be done with it?

Unfortunately, while an oral agreement is simple and easy, it also causes certain problems to arise. It does not suffice as proof that the two parties entered into a transaction, and moreover, it may not properly clarify the terms of the deal. Having a written agreement that is signed by both parties means that they can protect their interests in case any issues come up, such as non-payment of compensation, failure to deliver on their promises by any party, etc.

To understand this better, let’s have a look at the major benefits of a Book Publishing Agreement.

  • Describes the work involved: A Book Publishing Agreement explains exactly what the author is going to deliver in the form of a book, as well as all the operations that the publisher is going to undertake in the process of development and publication of the book. This eliminates any confusion that might arise later in the process.                        
  • Specifies the compensation terms: One of the most important things that a book publishing agreement does is specify the compensation that the author will receive for his work before the transaction begins. It is necessary to do this beforehand, and that too in writing, so that there is no confusion or dispute regarding the payment later on. A book publishing agreement also specifies details like the date of payment, the form of payment, etc.                                                                                                             
  • Binding legal document: An agreement helps to protect the parties in case of a dispute because it acts as a legal document enforceable by law and presentable in court. Therefore, in case there is any breach of the agreement by either party, the agreement can be used as proof of the terms that were agreed to, which can then be enforced upon the party. This makes the transaction more secure and prevents potential loss.                   
  • Protects Intellectual Property: Book publishing agreements describe the rules surrounding ownership of the intellectual property that is created by the author and to what extent and in what ways the publisher holds rights over them. Thus, it facilitates the protection of the intellectual property of the author and prevents its copying or unfair use by another.

A book publishing agreement is beneficial for both parties because it addresses all the terms of the deal beforehand and sets out the goal to be achieved. This leaves no room for ambiguity or misunderstanding in the transaction and helps to ensure the successful and timely publishing of the book. However, for this to happen, the agreement itself must be drafted carefully, keeping in mind all the elements that should be included in it. This brings us to the essential elements of a good book publishing agreement, which are discussed in the next section.

Essential Elements of a Book Publishing Agreement 

Every book publishing agreement is designed according to the needs of the parties involved, the type of book to be published, etc. and hence, there is no fixed template for such an agreement. However, here are all the essential elements that can make your book publishing agreement more useful and clear.

  • Details of the parties: First and foremost, the agreement should clearly specify the parties between whom it is drawn, i.e. the author and the publisher. This clause would also specify the exact business the two parties are engaged in, and also mention the address of their offices.                                                                                                
  • Description of the Work: The Work refers to the book that you have written, or that you are being contracted to write. It is essential to have a clause in the agreement that specifies the nature of the Work and completely describes the book that is targeted to be published. If there arises any misunderstanding in this regard, it could lead to an unwanted surprise for the publisher upon delivery of the manuscript. This can cause problems in the publication deal.                                                                                  
  • Grant of Rights: These refer to the rights granted by the author to the publisher. It mainly includes three things. First, it includes the rights in terms of media – this specifies across what media the publisher can publish the book. This usually means rights to hardcover or softcover books, and maybe even audiobook or e-book rights. Second, it includes the rights related to the ‘term’ i.e. the period for which the publisher can continue to publish the author’s book. This generally extends till the duration of the author’s copyright over the book (which, in India, means his or her lifetime plus 60 years). Third, it includes the rights related to territory, i.e. the area in which the published book can be distributed by the publisher.                                                       
  • Manuscript delivery: This clause specifies the exact date on which the author has to submit the completed manuscript of the book to the publisher for review, as well as the manner and format in which it has to be submitted. Along with this, the clause also specifies the consequences that will take place if the author fails to comply with the terms prescribed.                                                                                                        
  • Copyright ownership: Authors have copyright over their Work so that it can’t be unfairly copied by others. In the publishing agreement, the author transfers this copyright completely or partially to the publisher (depending on the needs of the situation), so that he can legally publish the work.                                                                                                                                 
  • Indemnity: This clause specifies the responsibilities of each party towards the other in the face of unexpected problems that can arise in the publication process. It also determines what protection each party will have if the other is negligent. This means that if any loss, harm or liability is caused to one party by the other, he should compensate them in the given manner. This protects the parties from potential financial burdens.                                                                                                                                   
  • Publication details: This clause clearly states how and when the publishing will take place. It may specify the requirements for publishing (layout, paper quality, bookbinding requirements, etc.). Some publishing agreements leave it to the publisher to determine the details of the publication on his own. However, this is less desirable, and so the details should preferably be agreed-upon beforehand.                                                         
  • Payment: The publisher pays the author for his or her Work, that the former is using in his business of publication. The payment consists of two types of compensation – royalties and advances. Royalties refer to the amount of money that is paid to the author for every unit of the book that is sold by the publisher. Advances, on the other hand, refer to the money paid to the author based on how much the author thinks the book will earn. It is paid in installments, like on contract signing, on manuscript delivery, etc. This clause decides beforehand the amount of compensation to be paid to the author. It also specifies the method of payment as well as the date on which it is to be made.         
  • Advertising and Promotion: This clause specifies how the publisher will undertake the advertising and promotion of the book to increase its sales – what the marketing budget will be, whether a publicity tour would be organised, etc.                                                                 
  • Revised editions: A book may need to be revised frequently and then distributed to the general public. This is especially so if the book relates to topics that are constantly evolving, like technology and science. It might also be required in fictional books, to make them more compatible with changing times or to rectify errors in them. Therefore, it is necessary to decide the terms for revision of the book, such as how frequently it is to be done and by whom, how the sale of the revised editions will be managed, etc.         
  • Non-modification: This clause states that the existing publishing agreement cannot be modified unless this has been done officially and in writing. This helps to ensure that no party can take up unscrupulous or unfair means or try to dupe the other party for their own benefit.                                                                                                                
  • Termination: Usually, an agreement is terminated when there is a breach of the same by either party, but some agreements may also allow the deal to be terminated in other circumstances. This clause specifies certain situations, if any, where either party has the right to terminate the agreement. For eg. the agreement may be terminated if the book sales are low or if it is out of print. The clause also explains the procedure to be followed in such a case as well as the notice period, if required.                                                                                                           
  • Out of Print: This clause states that if the publisher decides to cease further publication of the book after a specified period of time, all rights regarding the book shall revert to the author.                                                                                                                 
  • Signature of both parties: In the end, both parties must sign the document and write the date on which it was signed. This completes the document and gives it a legal value. Once the parties have signed the agreement, they cannot later refuse to comply with any terms given in it. This is because their signature indicates that they have read and understood the terms of publication and they agree to them. 

Procedure involved in a Book Publishing Agreement

Step 1- Deal between author and publisher

The first step to any book publishing agreement is for the author to approach a publishing house for publishing his book, or for the publisher to offer to publish the author’s book. In either case, when one party accepts to enter into an agreement with the other for the purpose of publishing a book, it results in a deal between the two parties. At this stage, the author and the publisher decide the major deal points like the amount of money the author will receive for his work, the date on which the completed book is to be submitted, etc.

Step 2- Negotiating and Drafting the Book Publishing Agreement

The next step is to draft the written agreement. For this, the two parties need to discuss a wide variety of terms of the deal and negotiate upon them to result in a final agreement that will benefit both parties. The structure and the content of the agreement may vary according to the needs of the parties and the type of book being written, but there are some general clauses that every agreement should have (which we discussed in the previous section).

After the agreement has been drafted by the publishing house, it is sent to the author or his agent who reviews it. Each clause and provision is carefully studied, and any changes that are felt necessary may be made at this stage through discussion with the publisher. 

Step 3- Executing the Book Publishing Agreement

After the agreement is final, the author and the publisher sign it. This makes the agreement official and legally binding on both parties. This stage is called the execution of the agreement. Both parties get a copy of the signed agreement. Any advance money that has been agreed to be paid at this stage is taken care of. Now that the agreement between the author and the publisher has come into existence, the process of publishing the books starts.

Do’s and Don’ts of a Book Publishing Agreement

Earlier, we saw the various elements and clauses that should be included in our book publishing agreement. Besides that, there are certain other principles we should keep in mind while drafting and signing such an agreement. The Do’s and Don’ts of drafting a Book Publishing Agreement are given below.

Do’s

  1. Before drafting or signing a book publishing agreement, decide what your goals or future intentions regarding the work are. This will greatly impact what the agreement includes. It is especially crucial with regards to copyright over the Work and how much of it is transferred to the author for publication.
  2. Read the entire agreement carefully. Understand the meaning of each term and the implication of each clause given in the agreement.
  3. Ensure that the agreement is accurate and in line with the terms agreed-upon so that both the author and the publisher share the same expectations regarding their rights and responsibilities. There should be no room for misunderstanding by either party.
  4. Revise the agreement or renegotiate the terms at the review stage itself, in case either party feels that it is not in their best interests. It is necessary to do this before the agreement is signed so that there are no disputes down the road.
  5. Sign two copies of the document, one for each party. Preserve the agreement so that it can be revisited easily whenever required. 

Don’ts

  1. Never sign an agreement without reviewing it carefully. Don’t just rely on the trust you might have in the other party.
  2. Never assume that any term is agreed to unless it is explicitly stated in the agreement. No aspect of the publishing process should be assumed to exist, and therefore each term should be expressly specified in the agreement.

Conclusion

A Book Publishing Agreement with a publisher is a very important part of an author’s journey towards putting out his or her work for the world to see. Therefore, it is crucial that the author understands its importance and the various aspects of the publication process that the book publishing agreement should address. A good book publishing agreement is useful for both the author and the publisher. Through this article, we have looked at all the information regarding the drafting of a book publishing agreement that you should know about if you are looking to publish your own book.

References


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post All you need to know about a Book Publishing Agreement appeared first on iPleaders.


How to make a career as a Consultant for prevention of sexual harassment at workplace?

$
0
0

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

What is written below is not only relevant for those who want to practice as POSH consultants alone but all sorts of legal consultants. So read on even if you do not do POSH related work but want to build a law practice or consultancy business of any kind.

****

A Prevention of Sexual Harassment Consultant!?

Wait, is that even a career?

A lot of lawyers would have reacted this way when they heard about prevention of sexual harassment at workplace (POSH) consultants, until recently. But things have rapidly changed in 2019. 

“There is an internal complaint committee (ICC) in every workplace, then what would a POSH consultant do?”

You can start a full-fledged consultancy business as a POSH expert. There are small firms doing only POSH work and still, there are not enough experts out there. 

You will get to conduct sensitization events in different locations, such as the factory-floor, with off-site consultants and vendors and employees in the office. You will be guiding and training members of ICCs of different companies, help in investigations and evidence collection efforts, assist in drafting and implementing policies as well as create training programs for vulnerable employees or top executives.

A simple Google search would lead you to a honeycomb maze for information relating to various organizations providing POSH training as well as consultancy services.

There was a time when sensitization and sexual harassment policy were just buzzwords, and everything companies did were only focused on compliances for reducing liability.

But then some industry leaders began to understand that it is critical to create workplaces that are truly conducive to women. When investors began to lose their money invested in promising startups because of toxic work culture where women were exploited, leading to media disasters and business losses, especially in the light of #metoo, the industry changed its collective opinion about how important it is to have a sexual harassment-free workplace.

Stopping sexual harassment is now a top business priority for media companies, startups, finance industry, hospitality businesses, educational institutions, and government bodies. 

And that means they are ready to adequately compensate external experts who can help with making a real difference in terms of implementing their sexual harassment policy.

The workplaces now take deliberate measures to go beyond the basic legal compliances relating to POSH to promote healthier working environments. This, in turn, offers POSH consultants a number of opportunities to provide their services to the workplaces and build a strong career in this arena.

At LawSikho, our team has trained thousands of sexual harassment experts over the years who are now helping the industry to change how sexual harassment laws are implemented, and we have seen how things changed in the last couple of years. 

However, still, the number one concern of many aspiring POSH consultants we speak to every day is this:

How can they get new clients? 

There are a few more questions you should ponder about along with the above question if you are a new or wannabe POSH consultant.

What makes a client decide to go ahead with a particular consultant for POSH implementation? 

How can they convince clients to pay a premium for their services? 

How can you present yourself in a way that a company wants to hire you rather than anyone else? Should you have marketing collaterals like brochures? How do people find out about your track record and previously successful projects?

How do you handle your first meeting? What impression are you creating in the first meeting on your client?

Where do you get your leads from? How do potential clients find out about you and how do they then approach you?

After working with several Fortune 500 companies, technology startups, construction and infrastructure companies, industry bodies and government departments on POSH implementation and training other POSH consultants on obtaining consultancy work, at LawSikho we have identified three major barriers which come up for POSH consultants:

#1 You must provide a Structured Engagement Plan that is easy to start with and aims at building trust

A client, usually a company with 10+ employees that approaches a POSH Consultant has few pointers or necessities with respect to the kind of consultancy in the arena of the prevention of sexual harassment at the workplace which it requires, specifically. 

The number of such POSH Consultancy firms has grown immensely with the change in times and the market need. Now how would an organization be willing to take the expertise of a POSH consultant mostly depends on the value they are going to offer them on the basis of their requirement. 

Does the POSH consultant simply undertake basic POSH compliance or are they able to create value in the process, apply customization to the way POSH is implemented in the organization depending on the different work environments is what would be the tipping point in hiring the services?

Do they even understand the unique requirements of an organization? What are the unique challenges this particular client may face?

So, how does a POSH Consultant demonstrate higher value and better understanding to the organization that seeks his/her expertise in the entire process?

The answer is very simple. 

A structured engagement plan is to be created that would ensure a deeper engagement, instead of a mere surface-level plan that matches the necessities and the working environments of specific organizations.

Components of a structure engagement plan could include a process detailed for engagement. For example, a predetermined list of questions can be sent to the organization to identify the details of the requirements and nuances. This list is to be consciously thought out for each type of client. We call this a ‘requirement analysis form’.  It forms the basis for preparing a watertight proposal as the next step. 

When we work with our corporate clients at LawSikho, for example with a law firm to create a customized training program for them, we start by sending them a Requirement Analysis Form, followed by a detailed call trying to understand what value we can bring them and what is the exact nature of the problem they are trying to solve.

When you send the requirement analysis form, it can be coupled with a profile, but not a specific proposal, until you have the requirements in.  

Next, a process for starting the engagement is necessary. Some consultants have a minimum charge, let’s say of INR 50,000 for a particular kind of work. They refuse to work if they are paid anything less than that. 

This leads to the failure of a lot of prospective deals. When you are starting and do not have credibility or trust, you need to build that first, and you often have to do that by starting and charging small and providing sachet size services. 

You can have a phased engagement plan so that you can commence work for different types of clients in a small way. 

How about a service where employees can reach out to you by phone whenever they have a doubt? Sort of a helpline? And you charge Rs. 500 per call. 

Companies are facing major problems with queries of employees or victims who need initial support. Even if they do not hire you for everything else, you can get a foot in the door by offering such a small service that they may not be planning to buy otherwise.

This format helps in building trust. Once the client experiences your service and is satisfied, he or she may move to the next phase and rope you in for a larger engagement. 

When you have a large practice or business, it may not make sense to do small engagements though. For example, we don’t accept any corporate engagement below 1 lakh no matter how small a project is or what is the margin. In fact, at LawSikho we try to avoid taking any assignments below 5 lakhs and make an exception in very few cases. In months to come, we may stop working on projects below 5 lakhs if any customization is required.

https://lawsikho.com/course/diploma-intellectual-property-media-entertainment-laws

Click Above

Ignoring the small deals helps us to focus on the bigger ones more intensely. However, when we got started, we would even take an order for INR 20,000! That was the phase where we built our initial reputation and knowledge base.

The key here is to be able to identify the different aspects of implementation and the challenges which the client will face beforehand and map it into the proposal document, which is why the requirement analysis process is very crucial. 

If you have done a thorough job, the client will realize the difference in value which you provide in comparison to other consultants sooner or later. 

#2 How can you demonstrate the flexibility to cater to unique client needs?

No matter how experienced or successful you are, you will always find situations you have not faced earlier. Clients will come up with the most unique kinds of scenarios. 

New situations and new client demands will arise and you will need to cater to them.

You may need to revamp your entire engagement plan and brochure from time to time. It is literally a continuously evolving document for you. 

You cannot be rigid about how you render your service or how you charge your clients or what you charge for. 

You cannot blindly implement the text of the law. You will need to identify how it applies to specific situations, especially those which are not directly covered under the law. Many lawyers hesitate to risk into this territory, but as a consultant, you need to identify creative ways for the organization to move forward after highlighting the risks.

You also cannot hope to standardize your entire service offering. There is a limit to the amount of standardization possible. 

A product company will want to standardize everything, but as a consultant, if you want to earn more, you will have to be flexible and focus on customization and experience. In fact, you want to work with those organizations that want customized services rather than the ones who want just a commodity. 

A consultant earns a premium because of the customization and the client’s satisfaction and experience.

Let me share another example of being rigid. Some consultants refuse to cooperate with the company’s HR if it organizes software-based training from third-party vendors and does not engage them for training.

They have an all or none approach – either engage them fully or not at all.

These are not win-win scenarios and can damage your prospects.

Instead, why not deliver the greatest experience to a client in whatever they ask you to do so that they come back to you for more?   

If you win their trust, you can do a lot more work for them and even earn referrals. 

Let us take another example of rigidity. 

A few companies will come up with specific requirements for the POSH consultants like holding separate sessions for men and women employees while some would want a joint session. 

In most cases, a POSH consultant, given the sensitive nature of the provisions of the act can try to explain the company for the pros of holding a session together for both male and female employees, but in cases where the workplace doesn’t agree, it is for the POSH consultant to leverage their training session in such a way that the employees are able to accrue maximum value out of it instead of declining the project straightaway. 

Flexibility and adaptability are a sine qua non for POSH consultants.

#3 Do not send vague or weak proposals

Before POSH Consultants can secure a project from companies, the scope of what the organization expects out of the consultant is necessary to be agreed upon and reduced to writing. However, even before you send a proposal, you should have a professionally designed brochure you can share with them.  

Several POSH consultants do not have a brochure they can send a prospective client quickly. Some of them send a one-size-fits-all brochure/ PPT which does not attract the imagination of the client about how they can extract maximum benefit from the service provider.

What does the client want? How can you get them there? That needs to be the highlight of your proposal. 

Usually, money is a minor issue if you understand what the client wants and if you can show them how you can help them to get there.

If a client cannot appreciate the value of the service or its relevance after going through the proposal, that is a dead-end for you. 

Second, any specific modifications that may be needed based on the organization’s nature of work and industry sector must be pre-identified. This is your greatest opportunity to identify new areas of value addition. This is where you can differentiate yourself from competitors and also ensure a higher fee. 

Maybe the client wants a specific module for what are the dos and don’ts for interacting with work-from-home consultants.  Or maybe the client has not thought of the same, and you are going to advise that.

Maybe the client needs specific training for staff which is customer-facing. Probably they would not ask for it, but you should suggest it in your proposal. 

Maybe factory-workers need a different kind of training than employees working from the corporate office and the branch office. Can you point that out in your proposal and accordingly recommend the scope of work? Are you pointing out the challenges the customer will eventually face and suggesting solutions and prices based on that?

Maybe the sensitization program needs some translations.

Maybe the ICC needs a specific standard operating procedure to deal with complaints. 

The ability of a POSH consultant is put to the test here. 

Have you faced any of the situations above? Did you have a good deal fall through because of any of the above scenarios?

Write back and let us know.   

How can you address the barriers above?

You will notice that it requires a high level of exposure and practical skills, along with some practice on how to render services and pitch to a client. 

Apart from what we have written about here, there is a lot more to learn!

At LawSikho, we teach you not only legal skills but also how to succeed as a consultant. You can find more about it in this course.

You can also enroll in the Certificate Course in Prevention of Sexual Harassment at the Workplace. 

There is also a course on Legal Practice Management that could be of your interest.

If you’re an HR personnel, who wants to understand various kinds of labour laws, along with POSH, you can check out Certificate Course in Labour, Employment and Industrial Laws for HR Managers.

We are taking enrolment in the following courses:

DIPLOMA

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 Advanced Criminal Litigation & Trial Advocacy

Certificate Course in Real Estate Laws

Certificate Course in Insolvency and Bankruptcy Code

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

Certificate Course in Legal Practice Development and Management

Certificate Course in Arbitration: Strategy, Procedure and Drafting

Certificate Course in National Company Law Tribunal (NCLT) Litigation


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post How to make a career as a Consultant for prevention of sexual harassment at workplace? appeared first on iPleaders.

Citizenship Amendment Act: 133.92 crores in dilemma!

$
0
0

This article is written by Sayani Das and Pubali Chatterjee, second year student pursuing BBA.LLB(H) from Amity Law School, Kolkata.

Abstract

133.92 Crores in dilemma!

In literal sense what dilemma means can actually be subsumed into innumerable kinds of interpretations.

But, in this current scenario it is not possible for any researcher to put forward the numerous interpretations, rather the method of deduction can be applied and 3 deduced views can be put forward:

  1. the first form of deduction can be in the form of some being against;
  2. the second form can be so that some can be in favour; and,
  3. the last category being neutral talking about the pros and the cons.

Society itself is dynamic in nature and law being the part and parcel of the society has to polish its adaptive side. Society is comprised of humans, so whatever law is made has to be in compliance to the needs and requirements of humans. Therefore, the lawmakers has to keep in mind that if people reside, then only law can reside. 

Actually it is high time that people should become more welcoming to new laws and the lawmakers understand that formation and implementation of a law is totally a different concept altogether.

Introduction

The 42nd Amendment Act of the Constitution, 1976 is the most questionable and debatable amendment of India.

It happened to change the Preamble of India which was earlier the “Sovereign, Democratic, Republic” to “Sovereign, Socialist, Secular, Democratic, Republic”.

It was done by the Indian National Congress headed by Indira Gandhi and it is referred to as the most controversial amendment because it had wholly come up to meet the personal ambitions at the period of emergency.

This emergency era had been widely unpopular and the 42nd amendment was the most controversial issue.

For a bill to pass it requires a two thirds majority but the whole Act was done during the emergency period without the majority vote.

SECULARISM is now challenged after citizenship amendment bill came in but the question arises that whether the establishment of that very secularism had any legal validity or not?

India should not be talking about Secularism because India already divides the communities into different castes and provided reservation for those who are backward.

There is no equal protection of the rights of individuals, how can it establish secularism?

How can CAA be against a concept which is actually not validated?

The concept of secularism is questioned then and there when reservations were fixed according to the caste divisions. Thus, CAA is not only the reason where Secularism is questioned it has already been questioned much before this.

https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
         Click above

Breaking myths

1) Will the citizenship amendment bill provide citizenship to Hindus?

Ans) The citizenship amendment bill not only talks about the people from Afghanistan, Pakistan, and Bangladesh but also about the communities which belong to Buddhists, Jains, Sikhs, Hindus, Christians, and Parsis who have immigrated before 31st December, 2014.

The Citizenship amendment bill doesn’t refer to any person who is already a citizen of India and have inherited it legally.

2) Will the Bill enhance infiltration from Bangladesh?

Ans) The fact standing that most of the minorities who had come from Bangladesh have already migrated to India.

Benefits any of such that the under the citizenship amendment bill was not available for members of the religious communities.

Another pertinent question that arises is whether the citizenship amendment bill has to pass through Article 14 test or not?

It is said that the bill discriminates Muslims. It is more specifically said that CAA is specifically being unconstitutional under Article 14.

Article 14 quotes that the state should not deny any person equality before the law or the equal protection of laws within the territory of India.

Equal protection refers to any person being treated the same before the law.

The very link must be traced to the Partition of India in 1947.

Muhammad Ali Jinnah demanded a totally separate country for the Muslim community.

But the Indian leaders declared India a Secular country without making it a Hindu nation. Thus there was a need for a fundamental right to give equality to everyone under Article 14 and the right to profess any religion as the freedom.

It has to be kept in mind while scrutinizing Article 14 carefully that any person does not refer to any citizen of India but actually it refers to any person within the territory of India.

Citizenship Amendment Bill: the other side

Just the way a coin has two sides, i.e., a head and a tail, the same way the Citizenship Amendment Bill which has now become an act after getting the President’s assent also has both pros and cons attached to it. 

Basically, the Citizenship Amendment Bill (Act) grants citizenship to Non-muslims of Afghanistan, Pakistan and Bangladesh. Bharatiya Janata Party which is the ruling party of India was the main advisor as well as a supporter of the proposal. Along with them, the bill was also supported by the JD(U), SAD, AIADMK, BJD, TDP and YSR-Congress. The CAB paves way of Indian citizenship to lakhs of immigrants who identify themselves with Hindus, Sikhs, Christians, Buddhists, Jains and Parsis- from Afghanistan, Pakistan and Bangladesh who arrives in India before 31st December, 2014. 

Despite everything the Citizenship Amendment Bill has created a total fuss in the country and nothing else. To point out the ‘fuss’, it has to be substantiated with points which are explained below:

  1. The Central Government have spelled out their own logic behind the passing of the bill, but the logic is absolutely not relevant to what they have actually done in reality. The bill totally goes against the spirit and essence of the Constitution. To quote the lines of Mr. Shashi Tharoor- “cynical political exercise to single out and disenfranchise an entire community in India into Hindutva version of Pakistan”. 
  2. As it is mentioned earlier as well that it totally destroys the essence of the constitution, to emphasize more on this fact it is relevant mention here that it surpasses the tenets of equality and religious non-discrimination allocated to Article 14 and 15 of the Constitution.
  3. Taking reference from the above mentioned point, it is very much pertinent to specify that how the centre created the inequality by granting citizenship to members of all persecuted religion except Islam. 

Let us go a bit deeper into the definition of religious persecution. Religious persecution is the ill-treatment offered to an individual or a group of individuals as a response to their religious beliefs or affiliations or their lack thereof. Therefore, the main concept around which the religious persecution revolves is the ‘ill-treatment received’ and this needs to be curbed. But, the centre has created a bigger space for this ‘ill-treatment’ by barring the Islamic religion.

  1. The bill (rather it can be referred to as an act because it already came into effect from 10th January, 2020) introduced a multiple rules for citizenship, which has proved to be anti-constitutional and anti-tribal. 

Anti-constitutional, which has been discussed earlier as well because it goes against the essence of the constitution and violates the Article 14 and Article 15 of the Constitution and anti-tribal because the Citizenship Amendment Act does not apply to sixth schedule of the Constitution – which deals with autonomous tribal-dominated regions in Assam, Meghalaya, Tripura and Mizoram. The bill will also not apply to states that have the inner-line permit regime (Arunachal Pradesh, Nagaland and Mizoram).

Another reason behind CAA being called as anti-tribal is because of the fear and trauma that is being faced by the North-eastern people especially by the people of Assam about the threat to their linguistic and cultural identities by the Bengali Hindu migrants from Bangladesh, if they are regularized under CAA. This is a grievous situation that has been put upon the state of Assam and identity-crisis is the one thing that can destroy anybody very quickly.

  1. According to the Citizenship Act of 1955, an illegal immigrant is one who enters India with fake or forged documents and/or does not have a valid passport and also a person who stays beyond the visa limit.

The mention of this ‘illegal immigrant’ is important because now in India the concept of ‘Citizenship by Naturalisation’- the Constitution of India provides for people who have lived in India for the past 12 months and for 11 of the past 14 years. It also provides for people whose parents or grandparents were born in India to become Indian citizens. Therefore, when the Government has implemented this CAA to give a space for the persecuted religion in turn it has also smoothed the way for illegal immigrants to become a citizen of India.

  1. Before the mention of this issue, the agenda of linguistic and cultural differences has already been discussed with respect to the state of Assam. But, this agenda is not only restricted to the North-eastern states, especially the state of Assam, rather it has spread like fire to the whole of India as they are fearing that this might work against the cultural and linguistic identity of the indigenous people.
  2. Another great disadvantage that the CAA poses is that of wrong signalling. This means that through the implementation of CAA, the Muslims are being categorised as 2nd rated citizens of our country which in turn is destroying the essence of Preamble of the Constitution wherein it is mentioned that India is sovereign, socialist, secular, democratic and Republic country. CAA in reality is disfiguring the Republic of India. 

Scenario all over

Fights against the Citizenship Amendment Act had raised the nation over the previous week. Thursday saw various dissent rallies in the Capital and in urban communities the nation over. There have been detainments of political pioneers and erudite people voicing their dissent against the CAA. 

The blood vessel streets in the Capital were blocked with nonconformists rampaging and the police protesting in the streets. IndiGo Airlines needed to drop and reschedule flights, with team and travelers trapped in congested driving conditions. Sixteen metro stations over the Capital were shut. 

The fights against the CAA and the police activity in Jamia Millia Islamia likewise reverberated the nation over. 

In Delhi, Internet suppliers were asked to close down certain applications somewhere in the range of 9AM and 1PM. Telecom/Internet specialist co-ops, for example, Bharti Airtel, Reliance Jio and Vodafone-Idea have been advised by the Center to close down their Internet till 1PM, sources affirmed. 

While authoritatively, the administrators including Airtel, Voda-Idea and Jio have declined to remark, sources from the organizations have affirmed the improvement. 

“Voice, information, SMS shutdown from 9AM to 1PM in certain parts just” said one of the sources from an administrator.

The spots where the Internet has been closed down incorporate Jamia Nagar, Shaheen Bagh, Okhla, Seelampur, Jaffrabad and Mandi House, sources said. 

The fights in Delhi-NCR have ascended in the course of the most recent two days and as indicated by reports Section 144 has likewise been forced in the Capital.

Hyderabad: Several understudies and nonconformists from the Universities of Osmania, Maulana Abul Kalam Azad and Hyderabad Central were arrested as they were challenging the Citizenship Amendment Act (CAA) and in solidarity with understudies in Delhi and different pieces of the nation. 

The Hyderabad Police has precluded authorization for holding from claiming any type of dissent or rallies and parades inside as far as possible. 

In the interim, conspicuous essayists, scholastics, columnists and social equality activists organized a ‘Quiet Protest’ against the CAA, which they guaranteed damaged the common and fair soul of the constitution. The dissenters accumulated at the Makhdoom Mohiuddin statue on the Tank Bund in Hyderabad under the flag of the Progressive Writers’ Association and Urdu Writers’ Association, Telangana.

Conclusion 

The CAA has created a space which can be criticized on many levels and in reality it has also been criticized on a multifarious level. But to add a positive angle to the CAA, it can be interpreted in a different way.

The CAA does not snatch away the status quo of any present citizen of India. In simple terms it provides a legal authority or in other terms a kind of legitimacy to the persecuted religious minorities who are already residing or have been forced to seek refuge in India and were compelled to flee from their “home” countries after facing religious persecution. Since, Muslims are not considered to be minorities in Afghanistan, Pakistan and Bangladesh, therefore, they have been excluded from the purview of CAA. People of our country are exploiting the essence of Right to Protest by burning trains, going on strike, blocking the roads and destroying the public property unnecessarily.

In any event, in a democracy, protest and a recourse to the judiciary are options that are legitimately available to the people. Indeed, to dissent or protest is the lifeline of a democracy. But, what is the judiciary supposed to do when society as a whole is protesting? In such a scenario, as is playing out now, there is no clear line that can be drawn between declaring protestors as good or bad.

Last, but not the least, the people of our country should be more open to changes with respect to any law and should also give a good thought to anything and everything before perceiving a notion and reacting to the same.


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Citizenship Amendment Act: 133.92 crores in dilemma! appeared first on iPleaders.

The State Legislature: Article 168 to 212 under Indian Constitution

$
0
0

This article is written by Aniket Tiwari, a 1st-year student at Law School, Banaras Hindu University. This article is about the State Legislature and includes all the Articles related to it which is mentioned in the Constitution of India.

Introduction

The Constitution of India is regarded as one of the lengthiest written constitutions in the whole world. Our Constitution gives us a federal structure where the powers between the Central Government and the State Government are divided. Most of us know about the working of the Central Legislature and the powers related to the Central Legislature. Part VI of the Constitution deals with the State Legislature. In this article, we will discuss this part of the Indian Constitution in detail. Here we will discuss the unicameral and bicameral legislature. The creation and abolition of these Houses of the State Legislature. The qualification of a person to be a member of the State Legislature. Ultimately, we will discuss Articles 168 to 212 of the Indian Constitution. It is quite complex to understand the working and procedure of work in State Legislature but after going through the Constitution of India it becomes easier for one to understand it. 

Bicameral and Unicameral Legislature

Before discussing what is a bicameral and unicameral legislature, let us first discuss what is the legislature. The legislature is the law-making body of the State. It is first among the three organs of the state. It can make laws as well as administers the government. As mentioned in Article 168 of the Indian Constitution, a state can have a unicameral legislature (It should be Legislative Assembly) as well as a bicameral legislature (Legislative Council and Legislative Assembly). According to Article 168 of the Indian Constitution, there shall be legislature in every State and it shall consist of the Governor. 

Unicameral Legislature

Unicameral legislature refers to having only one legislative chamber which performs all the functions like enacting laws, passing a budget, and discussing matters of national and international importance. It is predominant in the world as most countries have a unicameral legislature. It is an effective form of the legislature as the law-making process becomes easier and reduces the possibility of obstacle in lawmaking process. Another advantage is that it is economically feasible to maintain a single chamber of the legislature. It is the most prevailing system in India as most of the States of India have a unicameral legislature. The members of the unicameral legislature (Legislative Assembly) elected directly by the citizens of the State.

Bicameral Legislature

By bicameral legislature, we refer to the State having two separate law-making Houses to perform the functions like passing the budget and enacting laws. India has a bicameral legislature at the Centre level while the State can make the bicameral legislature. In India, only 7 States have a bicameral legislature. It may be seen that a bicameral legislature may not be as effective as a unicameral legislature. However, it works as a barricade in some cases as it somehow makes the law-making process more complex.

Abolition or Creation of Legislative Councils

In our country, the Legislative Council (also known as Vidhan Parishad) is the Upper House of a bicameral legislature. The creation of which is given in Article 169 of the Indian Constitution and can also be abolished according to Article 169 of the Constitution.

Article 168 mentions about the Legislative Council in some of the States of our country. There is no rule of having a bicameral legislature in the State of India. It is because our Constitution framers knew that it will not be possible for every State to have a bicameral legislature ( due to financial or any other reason).   

Article 169 talks about the creation or abolition of the Legislative Council. For the creation or abolition of the Legislative Council, the Legislative Assembly must pass a resolution that must be supported by more than 50% of the total strength of the assembly. It must be supported by more than 2/3rd of the total members present in voting. Therefore it talks about the absolute and special majority. The resolution to create or to abolish the Legislative Council needs the assent of the President as well.

Composition of the Houses

Article 170 of the Indian Constitution talks about the configuration of the Legislative Assemblies. This Article simply put emphasis on what will be the structure of the Legislative Assemblies in the state. On the other hand, the configuration of the Legislative Council is given in Article 171 of the Indian Constitution. 

Legislative Assembly (Vidhan Sabha)

According to Article 170, there should be a Legislative Assembly in every State of India. However, these assemblies should be according to the provisions of Article 333 of the Indian Constitution. The Legislative Assembly of state can have at most 500 constituencies and at least 60 constituencies. These constituencies would be represented by the members who would be selected through the process of direct election. However, the division of territorial constituencies would be determined in such a manner that it becomes dependent on the population of that constituency. Here by the term “ population” we mean population which has been published in the precedent census. The composition of the Legislative Assembly in any state can change according to the change in the population of that state. It is determined by the census of population. However, there are several exceptions to the composition of the Legislative Assembly. Let’s take the example of Mizoram, Sikkim, and Goa which has less than 60 constituencies.      

The tenure or duration of the Legislative Assembly is mentioned in Article 172 of the Indian Constitution. The Legislative Assembly should work for a time period of five years. Its tenure starts from the day of its first meeting. However, it can be dissolved earlier by the special procedure established by the law. However, there can be an extension in the tenure of the Legislative Assembly. This can be done during the National Emergency. During the period of the National Emergency, the Parliament can extend the tenure of the Legislative Assembly for a period of maximum one year. Also, this extension should not be more than six months after the proclamation has ceased to operate.

Legislative Council (Vidhan Parishad)

The composition of the Legislative Council is given in Article 171 of the Indian Constitution. The total members in the Legislative Council should not exceed one-third of the total members in the state Legislative Assembly. There is another criteria for the composition of the Legislative Council. The member in the Legislative Council should not be less than 40 in any case. There is an exception in the composition of Vidhan Parishad. The Legislative Council of Jammu and Kashmir has only 36 Member in Legislative Council, unlike the other Legislative Council. 

The composition of the Legislative Council can be further divided in the following way:

  • One-third of the members of the Legislative Council should be elected from the district boards, municipalities and other local authorities which is specified by the Parliament according to law. 
  • One-twelfth of its members shall be elected from the person who has been residing in the same state for the time period of at least three years and graduated from the university which is in the territory of India.
  • One- twelfth of its total member should be elected from the person who is engaged in the teaching profession for at least three years in the educational institution of the state itself.
  • One third should be elected by Legislative Assemblies and none of them should be a member of the Legislative Assembly.
  • The remainder of the members should be nominated by the Governor according to the established law.
https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
      Click above

Qualifications of Membership

After this much of knowledge on both the Houses of Legislations, we can move further on the next topic. Here we will discuss what are the qualifications that one requires for being a member of the Legislative Assembly/Council. 

The qualification of membership is given in Article 173 of the Indian Constitution. For the membership or for filling a seat in the legislature of the State, a person must be a citizen of India. A person will not be granted membership if he/ she is not a citizen of that country. Also, the qualification of the membership is somewhat similar to the qualification to the membership of the center legislature. The member of the Legislative Assembly should be more than 25 years. For being a member of the Legislative Council one should be more than 30 years. Also, a necessary condition for being a member of legislatures includes that he/she must be a voter from any of the constituencies of the state.

Disqualifications of Membership

After being elected/ nominated as a member of the legislature, one can not be a permanent member of the legislature. There are certain reasons mentioned in the Constitution by which a person may be disqualified from his/her membership to the Legislature. Article 191 talks about the disqualification of the members of the Legislature.

Disqualification of MLA/ MLC can be made on the following grounds:

  1. If one holds the office of profit under the state or central government. 
  2. If one is of unsound mind and is declared so by the competent court.
  3. If one is an undischarged insolvent.
  4. If one is not a citizen of the country anymore or when he/ she voluntarily took the citizenship of another country.
  5. If one is disqualified by the law of the Parliament. Example- Anti defection law.

Decisions on disqualifications

Article 192 of the Indian Constitution talks about the decision on the disqualification of a member of the state legislature. If any question arises about the disqualification of a member of the House of the legislature on any ground mentioned in Article 191 in the Indian Constitution, then Article 192 comes into play. Article 192 mentions that in such cases the decision about disqualification would be determined by the Governor of that state and his/ her decision would be final. However, the Governor needs to consult the Election Commission for the same and he/she needs to act accordingly. Here, grounds of disqualification would be the same as mentioned in Article 191.

Sessions of the State Legislature

Moving further on the next topic we will discuss the sessions of these State Legislatures. Its time of prorogation and dissolution will also be discussed by us here. Also, one thing is quite clear after a lot of analysis of State Legislature is that the Legislative Assembly is somehow similar to the House of the People (Lok Sabha) while the Legislative Council is similar to the Council of State (Rajya Sabha). Their sessions are also quite similar. Article 174 of the Indian Constitution gives the power to the Governor to summon these Houses of the State Legislature. He/ She can summon these bodies to meet at places and at such times which he/ she thinks fit or appropriate. But a necessary condition should be kept in mind is that the time period between the two sessions of these Houses should not exceed six months. Also as mentioned in Article 174 of the Indian Constitution, the Governor has the power to prorogue either House and to dissolve the Legislative Assembly.

Speaker and Deputy Speaker

There is a need for head or in charge of every legislative part. The Speaker and Deputy Speaker serve the same purposes in the Legislative Assembly. Article 178 of the Indian Constitution talks about the same. According to this article, there should be a Speaker and Deputy Speaker should be chosen from the Legislative Assembly. In this, it is also mentioned that the condition where if the office of Speaker and Deputy Speaker becomes vacant then it becomes the duty of the Legislative Assembly to choose the new Speaker and Deputy Speaker respectively.

Powers and Functions of Speaker

Article 178 gives the power to Speaker to preside over the sessions of the Legislative Assembly of the state. Similar powers are given to the Speaker of the Lok Sabha, as mentioned in Article 93 of the Indian Constitution. The power and position of an Indian Speaker are quite similar to the Speaker of the House of Commons in England.

The most important function of the Speaker is to preside over the sessions of the Legislative Assembly and also to maintain discipline and order in the assembly. Within the assembly, the Speaker is the master. He has the power to decide whether the Bill is a Money Bill or not. Also, the decision of Speaker cannot be challenged in a court of law. Money Bills are sent to the Legislative Council with the approval of the Speaker. The salary of Speaker is given from the Consolidated Fund of State.

The other functions/ powers of the Speaker are as follows:

  • He/she does not participate in the debate of the assembly.
  • Only votes when there is a condition of a tiebreak.
  • He/She sees whether there is a necessary quorum.
  • He has the power to adjourn or suspend the sitting of the Legislative Assembly when there is not a necessary quorum and also to maintain the discipline of House.
  • He/She has the power to suspend or to expel the member for his/ her unruly behaviour.  

Chairman and Deputy Chairman of the Legislative Council: Article 182,183,184,185

The working of the Legislative Council is quite complex. The process of membership, the appointment of its head and the power of the Legislative Council is also quite difficult to understand. According to Article 182 of the Indian Constitution, the Legislative Council must choose its two members as Chairman and Deputy Chairman. It also mentions that the Legislative Council must choose the Chairman and Deputy Chairman of the Legislative Council as soon as their office becomes vacant.

The offices of Chairman and Deputy Chairman becomes vacant very often. However, the reason for their removal/ resignation is mentioned in Article 183 of the constitution. The reasons are as follows:

  1. Should not hold their post if they are not a member of the Legislative Council.
  2. By sending the written resignation letter to each other.
  3. They can be removed by passing a resolution in the Council. However, there should be a majority of members in support of this resolution. An important point to be remembered while passing a resolution that a notice of the intention of resolution should be given before 14 days.

Now imagine a condition when there is a vacancy in seat of Chairman of the Legislative Council.  Then, the question which would strike us would be related to the replacement of his/ her place in the Legislative Council or who will look after the working of the Legislative Council. The answer to the second part of the question is given in Article 184 of the Indian Constitution. According to this Article, the Deputy Chairman has the power to perform the duties and to act as Chairman of the Legislative Council. According to Article 184, if there is a vacancy in the office of Chairman then all duties of Chairman would be performed by the Deputy Chairman and in case if the office of Deputy Chairman is also vacant then the duties of Chairman would be performed by the person appointed by the Governor.

Talking about Article 185 of the Indian Constitution, it puts certain restrictions on Chairman or Vice-Chairman when their impeachment resolution is under consideration. It simply tells that a Chairman or Vice-Chairman can not preside the Council when the resolution for their impeachment is under consideration. Here in this condition, Article 184 will be applied. Also, it is given in Article 185 that when such resolution is under consideration then the Chairman has all the right to attend the proceedings of the Legislative Council and he/she will have all the right to speak during such proceedings. Here, the Chairman has the right to vote in the first instance of the proceedings but he/she will not be able to vote in the condition of equality of votes.

Legislative Procedure: Article 196

The main purpose of Legislature is to make laws, pass a bill etc. To understand the working of Legislature or Legislative Procedure let us first discuss the term “Bill”. By Bill, we mean a draft of the legislative proposal. This bill after getting assent from both the Houses of Legislature becomes an Act after getting assent from the Governor. Article 196 of the Indian Constitution tells us about the provisions of the introduction and passing of the Bill. Except for the Money Bill and the Financial Bill ( procedure of passage of these bills are given in Article 198 and 207), the other bills can be introduced in either Houses of the legislature. Any bill is said to be passed only when it got assent from both the Houses of the legislature. Here both the Houses should agree on the amendment made to the bill. A bill would not lapse when it is pending in the House and there is the prorogation of that House. A bill pending in the Legislative Council of any state which is not passed by the Legislative Assembly shall not lapse even on the dissolution of the Legislative Assembly. Also, there is a condition mentioned in Article 196 which states that if there is a bill pending in the assembly and at that time the assembly dissolute, then the bill will also lapse ultimately. The bill will also lapse if it is passed by the assembly and is pending by the Council.

Ordinary Bills

The provision or the procedure related to Ordinary Bill is discussed in Article 196 of the Indian Constitution. The main purpose of the State Legislature is law-making as already being discussed in this article earlier. The legislature can make laws on State List as well as on Concurrent List. Ordinary Bill can be introduced in either of the Houses. The process given in Article 196 is applied here and once it gets the sign from the Governor it becomes law. The Governor has the power to issue ordinance when there is a need of any law and the legislature is not in session.   

Money Bills

A Money Bill is a bill that is concerned with government spending or taxation. The procedure to pass a Money Bill is quite different from the Ordinary Bill. Its procedure is given in Article 198 of the Indian Constitution. According to this Article of the Constitution of India, the Money Bill can only be introduced in the Lower House i.e. in Legislative Assembly. After the Money Bill is passed by the Legislative Assembly and in that state, then this bill would be forwarded to the Legislative Council for its recommendations. The same bill should be returned to the assembly within fourteen days from the date of receiving the bills. The assembly can either accept the recommendation or can deny any recommendations according to the discretion of the assembly. The same bill is then again sent to the Council and the Council has a time period of fourteen days to pass the bill. In case the Legislative Council fails to do so, then it is deemed to be passed by both the Houses.       

Assent to Bills: Article 200

Till now we have seen how a Bill gets assent from Houses of the state legislature. After this, Article 200 comes into play. As mentioned in Article 200, the bill after getting assent of both Houses and is then sent to Governor. It then comes under the discretion of the Governor whether to give assent or withhold his assent. He/she can also reserve assent for the consideration of the President.

Here the Governor has to return this bill to the State Legislature as soon as possible with the message of recommendation. Here again, these recommendations can be either accepted or rejected by the legislature and once again this bill is again sent to the Governor for his confirmation. Now he has only two options left with him, he can either give assent to this bill or can reserve it for further consideration from the President. 

Bills reserved for President’s consideration: Article 201

The bill which is reserved for the consideration of the President should have reasonable grounds for being reserved. Any bill can be reserved by the Governor which he/ she thinks is against the law. The further procedure of this Bill is given in Article 201 of the Indian Constitution. The Bill which is reserved for the President for his/her consideration should either be given assent by him/her. The President can also withhold his/her assent. The President then directs the Governor to return the bill to the House/Houses of Legislature with a message which was sent earlier by the Governor (according to Article 200 of the constitution). This bill should be reconsidered by the State Legislature within a period of six months. And again if the bill is passed by both Houses, then it is again presented before the President for its consideration.

An example of the contradiction to this Article came in the case of K.P. Kochanujan Thirumulpad vs State Of Kerala where a petition was filed and a question was asked on the legality of a bill which was passed before any direction came from the President during the period of reconsideration. Here the petition was rejected and it was held that there are certain restrictions/ grounds on which Article 201 does not apply.   

Language to be used in the Legislation: Article 210

All the proceedings in the State Legislature like the law-making process should be in the official language or in the language of the state or in Hindi or in English. It is given in Article 210 of the Indian Constitution. Here, under the special circumstances the Chairman or Deputy Chairman may allow the member to use other languages (who cannot express himself/herself in any of the languages as mentioned above in this article). Here, the role of language which is to be used in the legislation becomes very vital. However, there is a provision that determines that if the State Legislature does not make any law for using the English language even after fifteen years, then the word English from Article 210 will get eliminated by itself.    

Procedure in Financial Matters: Articles 202 to 207

The State Legislature of every state follows a special procedure in the matters related to finance. These procedures are given in Article 202 to Article 207 of the Indian Constitution. The procedure which is mentioned in these articles are as follows: 

  1. Article 202 (Annual Financial Statement): It is the duty of the Governor to lay down the estimated receipts and expenditure of the State for that year. It is known as the Annual Financial Statement.
  2. Article 203 (Procedure in the legislature related to estimates): The estimates that relate to expenditure from the Consolidated Fund of a State should not be submitted to a vote of the Legislative Assembly. But nothing mentioned here should be construed as preventing the discussion of the Legislatures that relates to those estimates. Demand for a grant can be made only on the recommendation of the Governor.
  3. Article 204 (Appropriation Bill): After making the grants under Article 203, the assembly shall introduce a bill that will provide for the appropriation out of the Consolidated Fund of the State for the matters related to money which is granted by the assembly.
  4. Article 205 (Supplement, Additional or excess grants): In this Article, the Governor can allow supplement grants (when the expenditure is more than what was estimated) and he/ she has the power to extend the granted money for any particular service.
  5. Article 206 (Vote on Accounts, Votes of Credit or Exceptional Credits): This Article talks about the power or authority of the Legislative Assembly to grant in the given situation.
    • In advance in respect of the estimated expenditure for a part of any financial year pending the completion of the procedure given in Article 203.
    • To make a grant for meeting an unexpected demand upon the resources of the State.
    • To make exceptional grants which are not a part of the current financial year.
  6. Article 207 (Special Provisions related to Financial Bills): Financial Bill should not be introduced in the Legislative Council and without the recommendation of the Governor.

General Rules of Procedure

It is important for every organ of the State to make certain rules and regulations for its proper functioning. Similarly, there are some general rules of procedure made for the smooth functioning of the State Legislature. These are given from Article 208- Article 212 of the Indian Constitution. All the provisions under these Articles are explained below:- 

  • Article 208– Houses of the State Legislature has the power to make rules and regulations for its conduct, its procedure and the conduct of its business.
  • Article 209– Regulation by law of procedure in the Legislature of the State in relation to financial business.
  • Article 210– It talks about the language which is to be used in the Legislature.
  • Article 211– It is about the restriction of the topic on which there will be no discussion in the Legislature.
  • Article 212– This Article tells that Courts can not inquire into proceedings of the Legislature.

Conclusion

In this article, we have discussed all the aspects of the State Legislature. One of the loopholes is that it is not compulsory for the states to have Council and it disturbs the uniformity in State Legislature of different States.. I think there should be uniformity in the State Legislature system. But this can sometimes be considered as the beauty of the Indian Constitution as it gives the chance to the State Assembly to decide on the same issue. Part VI of our Constitution has made it very clear about the functions, way of functions and the various power given to the State Legislature.

References

  1. http://legislative.gov.in/sites/default/files/COI-updated-as-31072018.pdf
  2. DD Basu -An introduction to the Constitution of India
  3.  https://timesofindia.indiatimes.com/topic/state-legislature

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post The State Legislature: Article 168 to 212 under Indian Constitution appeared first on iPleaders.

Basis & Purpose of Charge under Criminal Procedure Code

$
0
0

This article is written by Arushi Gupta, a 4th-year law student of DES Law College, Pune University. This is an exhaustive article which covers all the aspects relating to Charge under CrPC.

Introduction

Section 2(b) of the Criminal Procedure Code defines charge as any head of a charge when the charge contains more heads than one. 

The legal definition mentioned in the code is not inclusive enough for a layman to decipher. However, the definition could simply be interpreted to mean as an “accusation”. It is the concrete accusation as recognised by the Magistrate or the Court, based on the prima facie evidence adduced against the accused. 

Purpose of Charge

Under the Code of Criminal Procedure, an accused should be informed of the offence of which he is charged. The basic purpose of the charge is to let the accused know of the offence that he is charged with so that he can prepare his defence. The accused should be informed of the charge against him at the very beginning. Every accused has the right to know what the prosecution has against him.

The underlying principle of the criminal law on informing the accused of the charge against him is to provide an equal opportunity to each and every individual to prepare his defence and avail justice. It must be noted that in case of serious offences, the statute requires the charge to be reduced to writing precisely and clearly and must be read to the accused and explained with precision and clarity.

In the case of V.C. Shukla vs. State, Justice Desai, while delivering the conclusive judgement opined, “the purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of the accusation that the accused is called upon to meet in the course of a trial.”

https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy

Click Here

Types of Cases Where Charges are Framed 

The question of framing a charge against the accused arises only when the accused is not entitled to a discharge under Section 277 and 239 of the Criminal Procedure Code. 

Section 277 deals with the discharge of the accused in sessions cases. It states that if the judge, after hearing the accused and the prosecution and after considering the record of the evidence and the documents submitted herein, consider that there are not sufficient grounds to proceed against the accused, then the judge shall discharge him and record the reasons for doing so in writing.

Section 239 of the code deals with the discharge of the accused in warrant cases. It states that the Magistrate shall discharge the accused if, after considering the police report and the documents submitted under section 173 of the Code, comes to the conclusion that the charge against the accused is groundless. The Magistrate shall give the opportunity of being heard to the accused and the prosecution and record the reasons in writing. 

In the following types of cases the charges are framed under the Criminal Procedure Code:

  • Sessions cases under Section 228 of the Code;
  • Warrant cases instituted on police reports under Section 240 of the Code;
  • Warrant cases instituted otherwise on police report under Section 246(1) of the Code.

Sessions Case

Section 228 of the Code deals with the framing of charge in case of a trial before the Court of Sessions. In such a case, the charge is framed against the accused only when the accused is not entitled to discharge under Section 227 of the Code.

Section 228 of the Code states that:

If the Judge is of the opinion that the accused has committed an  offence which is:

  1. Not triable by the Court of Session, the Judge may frame the charge against the accused and may order to transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and he may order the accused to appear before such Magistrate on such date as required, and thereupon such Magistrate shall try the offence in accordance with the procedure for trial of warrant cases instituted on a police report;
  2. Exclusively triable by the Court, the Judge shall frame the charge against the accused in writing, in the case of which the charge shall be read and explained to the accused and shall ask the accused whether he pleads guilty of the offence he is charged with or claims to be tried.

Warrant Cases Instituted on Police Report

Section 240 of the Code deals with the framing of charges in case of warrant cases tried by a Magistrate instituted on police reports. It states that if the Magistrate, after consideration, examination and hearing, is of the opinion that there are sufficient grounds for presuming that the accused has committed an offence triable under this chapter, which the Magistrate is competent to try and is of the opinion that the accused of such offence could be adequately punished by him, he shall frame the charge in writing against the accused.

Warrant Cases Instituted Otherwise on Police Report

Section 246 of the Code states that when in any warrant case otherwise than on a police report, the accused is brought before a Magistrate and the Magistrate upon examination and hearing, is of the opinion that there are sufficient grounds to presume that the accused has committed the offence, then the Magistrate shall frame the charge against the accused in writing. 

In all the above cases, when the charge is framed against the accused, it is important the said charge is read and explained to the accused precisely and accurately. It shall also be important to ask the accused if he pleads guilty or if he has any defence to make. 

Contents of Charge

The initial requirement under the code for a free and fair trial is to inform the accused precisely and accurately, of the offence he is charged him so as to give him a fair opportunity to prepare his defence.

Section 211 and 212 of the Code prescribe the forms and contents of the charge. However, when the nature of the case is such that the offence in question cannot be described properly by the particulars as mentioned in the aforesaid sections, so as to give the accused sufficient notice of the offence with which he is charged, then the manner in which the offence was committed by the accused shall also be contained in the particulars of the charge.

This shall be considered sufficient for the purpose of providing sufficient notice to the accused of the offence with which he is charged.

According to Section 211 of the Criminal Procedure Code, every charge under the code shall include the following:

  • The offence with which the accused is charged;
  • If any law gives the offence any specific name, then the description of that charge by that name only;
  • The definition of the offence, under the law that does not give any specific name to the offence, so as to give notice of the matter to the accused of which he is charged;
  • The law and the section of the law against which the offence is said to have been committed.

Illustration (a) of this Section explains the above as follows:

If A is charged with the murder of B, it means that the offence is equivalent to the statement that the act of A fell within the meaning of the definition of Murder which is mentioned in Section 299 and Section 300 of the Indian Penal Code (45 of 1860). It also means that the act of A did not fall within any of the General Exceptions which are mentioned in the Indian Penal Code. It also means that it did not fall in any of the five exceptions to Section 300 or that, if it did fall within Exception 1 or one or more than one of the three provisions to that exceptions applied to it.

This means that when a charge is framed against an accused, then it is equivalent to the statement that the accused while committing the said offence has fulfilled every legal condition required to constitute the said offence in the particular case. Also, the said charge shall be written in the language of the Court.

Particulars as to Time, Place and Person

According to Section 212 of the Code, in order to give sufficient notice of the matter to the accused of which he is charged, then the charge shall contain the following components:

  • Time and place of the alleged offence;
  • The person (if any) against whom the offence was committed;
  • The thing (if any) in respect of which the offence was committed by the accused.

It should be noted that in case an offence is committed which is of the nature of the criminal breach of trust or dishonest misappropriation when the exact amount in question cannot be determined, then, in the said charge it shall be sufficient to specify the gross sum of money or movable property, as the case may be, in respect of which the offence was committed. 

In addition, the dates between which the said offence was committed shall also be mentioned in the charge sheet. It shall also be noted that it shall not be necessary to specify the exact items in question or the exact dates, provided that the time included between the first and the last date of such dates does not exceed one year.

Error in Charge

In order to understand the provisions in case of an error in charge Section 215 and 216 must be read with Section 464 of the Code.

Effect of Error

According to Section 215 of the Code, any error in stating the offence or any error in stating the particulars required to be mentioned in the charge shall not be material at any stage of the case. In addition, any omission to state such offence or the particulars of the charge shall be immaterial. However, if such error or such omission has misled the accused or if it has occasioned the failure of justice, then such error or omission shall be considered material.

When Court Can Alter or Amend a Charge

Section 216 states the conditions under which the Court can alter or amend or add to any charge:

  • Before the judgement is pronounced, the Court can alter or amend any charge;
  • Such alteration or addition has to be read and explained to the accused;
  • If in the opinion of the Court, the addition or alteration to the charge does not prejudice the accused in his defence or the prosecutor in the conduct of his case, then the Court may alter or amend the charge and proceed with the trial according to its discretion;
  • But if the Court is of the opinion that the alteration or addition to the charge is likely to prejudice the accused or the prosecutor as aforesaid, then following the alteration or amendment, the Court may, at its discretion either direct a new trial or adjourn the trial for such period as it may consider necessary;
  • If the previous sanction is necessary to be obtained for the prosecution of the offence stated in the altered or added charge, then the Court shall not proceed with the case until such sanction is obtained. 

Effect of Omission to Frame, or Absence of, or Error in Charge

Section 464 of the Code states the following:

(1) Any finding, sentence or order by a Court of competent jurisdiction shall not be deemed invalid merely on the ground that:

  • No charge was framed;
  • Any error, omission or irregularity in the charge, including misjoinder of charge.

Such finding, sentence or order of the Court shall be deemed invalid only when it is in the opinion of the Court of appeal, confirmation or revision, there has been a failure of justice.

(2) When the Court of appeal, confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, then – 

  1. In case there is an omission in the framing of the charge, the said Court may order that the charge may be framed and that the trial may be commenced again from the point immediately after the framing of the charge;
  2. In the case of an error, omission or irregularity in the charge, direct that a new trial to be commenced upon a charge framed in whatever manner that the Court may think fit.

Provided that if the Court is of the opinion that the facts of the case are of such a nature that no valid charge could be preferred against the accused in respect of the facts of the case proved, the said Court shall quash the conviction of the accused.

Reference may be made in this regard to the case of Tulsi Ram and Ors. vs. State of Uttar Pradesh. In this case, the Court considered these aspects and laid down that the appellants completely understood the charges against them and they never raised a complaint at an appropriate stage of the trial that they were confused or bewildered by the charge against them. Therefore, the Court refused to accept any grievances raised by the accused regarding the framing of charges against them.

Recalling of Witness When Charge is Altered

According to Section 217 of the Code, whenever the charge has been altered after the commencement of the trial, the accused and the prosecutor shall be allowed:

  1. To recall or re-summon a witness who has already been examined and examine him in reference to such alteration or addition;
  2. However, if the Court is of the opinion that the prosecutor or the accused is recalling or re-examining the witness with the view of vexing or delaying or defeating the ends of justice, then the Court may, by providing reasons in writing refuse to allow to re-examine such witness;
  3. To call any further witness that the Court may deem material for the case.

Basic Rule as to Charge and Trial of Charge

Section 218 to Section 224 of the Code deal with the Joinder of charges (which means that in certain cases more than one accused may be tried for the charge of the same offence).

Section 218 of the Code deals with the basic rule as to the trial of the accused. Sections 219, 220, 221 and 223 of the Code deal with the exceptions to the basic rule. Section 222 provides for the circumstances under which the accused can be convicted of an offence he was not charged with at the beginning of the trial. Section 224 deals with the withdrawal of remaining charges when one of the several charges has received a conviction. 

Section 218 of the Code states that for every offence the person is accused of, there shall be a separate charge and each of that charges shall be tried by the Magistrate separately. However, if the accused person desires and requests the Magistrate in writing and the Magistrate is of the opinion that such a person would not be prejudiced in the case, the Magistrate may try together all the charges or any number of charges as he may deem fit.

Exceptions to the Basic Rule

Trial of Three Offences of the Same Kind Within a Year

Section 219 of the Code states that when a person has committed more than one offence of the same kind within a span of twelve months from the first to the last offence, whether in respect of the same person or not, he may be charged with or tried at one trial for any number of offences, which shall not exceed three.

Trial for More Than One Offence

  • According to Section 220 of the Code, when the series of acts are such that they are so connected that they form part of the same transaction and more than one offence is committed by such series of acts, then the accused may be charged with and tried for every such offence in one trial.;
  • In case the person is charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219 of the Code, and when the person is accused of committing one or more offences of falsification of accounts for the purpose of facilitating or concealing the commission of that offence, then he may be charged with every such offence and may be tried for all such charges at one trial;
  • If the acts mentioned above constitute an offence falling within two or more separate definitions of any law for the time being in force then the accused person may be charged with such offences and tried for them at one trial;
  • In case of several acts when either one act by itself or more than one of those acts by themselves constituting an offence, combine together to constitute a separate offence, then the person accused of them may be charged with the offence constituted by such acts combined or for any offence constituted by one of those acts or more than one of those acts.

When it is Doubtful What Offence has been Committed

Section 221 of the Code states that if a single act or series of acts is of such a nature that it is doubtful which of several offences such acts shall constitute, the accused may be charged with all or any of such offences and any number of those charges may be tried at once. 

If such a case arises when the accused is charged with one offence but the evidence shows that he committed a different offence for which he might be charged with under the provisions of sub-section (1), then he may be convicted of the charge of offence of which the evidence shows to have been committed, even though he was not charged with it at the beginning of the trial.

Persons Who may be Charged Jointly

Section 223 of the Code provides a list of persons who may be charged jointly. It includes the persons accused of:

  • The same offence committed in the course of the same transaction;
  • An offence of abetment of, or attempt to commit an offence;
  • More than one offence within the meaning of Section 219;
  • Different offences committed in the course of the same transaction;
  • an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
  • An offence under sections 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by such offence;
  • any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.

However, when a number of persons are charged with separate charges and they do not fall within the categories of any persons mentioned in section 223, they may apply in writing to the Magistrate or the Court of Sessions, as the case may be, and the Magistrate or the Court of Sessions upon satisfaction that the case would not be prejudiced may try all such persons together.

The provisions regarding the exceptions to the basic rule as mentioned in Section 219, 220, 221 and 223 are only enabling in nature. It is the discretion of the court whether to apply these exceptions and try the charges jointly or not. In the case of Ranchod Lal v. State of Madhya Pradesh, it was held that it is the discretion of the Court whether to allow joinder of charges or not. It is not upon the accused to resort to this right.

Conviction of an Offence Not Charged

Section 222 of the Code mentions the conditions under which the accused may be convicted of an offence of which he was not charged. Such offences include:

  • A complete minor offence constituted by a combination of only some of the particulars of the charge when the combination is proved but the remaining particulars are not proved;
  • The minor offence resulting from the reduction of the offence charged with, when proved by the facts;
  • An attempt to commit the offence charged with.

Withdrawal of Remaining Charges on Conviction of One of the Several Charges

Section 224 of the Code states that in a case, if a charge containing more heads than one is framed against the same person, and when the conviction has been made on one or more of them, then the complainant, or the officer conducting the prosecution, may withdraw the remaining charge or charges with the consent of the Court. However, the Court, on its own accord, may order to stay the inquiry into the charge or the trial of such charge or charges. 

Such withdrawal of the charge or charges shall have the effect of the acquittal of the accused on such charge or charges, unless the conviction is set aside, in the case of which the said Court may proceed with the inquiry into, or trial of the charge or charges so withdrawn. It must be noted that the said inquiry shall be subject to the order of the Court setting aside the conviction.

It is well established that this section applies only to cases where the accused has been convicted of one of several distinct charges before the other charges have been tried.

Conclusion

The Criminal Procedure Code lays downs the basic rule of practice and procedure for framing of charge. Framing of charge is the most basic step of a case. Absolute duty of care must be exercised while framing of the charge as a failure of which may lead to the miscarriage of justice. Every person accused of an offence shall be informed of the charge specifically. It is important for a free and fair trial that the accused is made aware of the charge against him so that he can prepare his case.

The said charge shall be in the form and have the contents as mentioned in the Code so that the accused can understand the charge against him clearly. The Court has the power to alter or add to the charge at any time during the continuity of the case before the judgement is pronounced. But when the Judge or Magistrate is of the opinion that there is no prima facie evidence to establish a case against the accused, then the charge against the accused must be dropped and the accused must be discharged in accordance with the law.


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

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


 

The post Basis & Purpose of Charge under Criminal Procedure Code appeared first on iPleaders.

Right to Equality: Article 16, 17 & 18 under the Indian Constitution

$
0
0

This article is written by Shristi Suman, a second-year student of (BBA.LL.B) Symbiosis Law School, Hyderabad. In this article, the scope, provisions, and different aspects of the Right to Equality under Article 16, 17 and 18 of the Constitution have been discussed.

Introduction

The Indian Constitution contains provisions for Right to Equality in Articles 14 to 18. The Preamble of the Indian Constitution also provides for the right to equal status and opportunity to the citizens of India. Right to Equality forms part of the basic structure of the Indian Constitution which can’t be amended. It is one of the six fundamental rights which is provided to the citizens of India by the Constitution. The Right ensures equality before the law and equal protection of the law irrespective of race, religion, caste, place of birth or gender of the citizens. Article 14 forms the foundation of Articles 16, 17, 18 of the Indian Constitution.

Right to equality of Opportunity in Public Employment: Article 16

Article 16 of the Indian Constitution guarantees equal opportunity to all citizens in matters related to employment in the public sector. Article 16(1) states that there shall be equal opportunity for the citizens in the matter of employment or appointment to any office under the State. The provision of equality is only applicable to the employment or offices which are held by the State. The State is still free to lay down the requisite qualifications for the recruitment of employees for the Government services. The Government can also pick and choose applicants for the purpose of employment as long as the applicants have been given an equal opportunity to apply for the Government service.

Article 16(2) lays down the grounds on which the citizens should not be discriminated against for the purpose of employment or appointment to any office under the State. The prohibited grounds of discrimination under Article 16(2) are religion, race, caste, sex, descent, birthplace, residence, or any of them. The words ‘any employment or office under the state’ mentioned in clause 2 of Article 16 implies that the said provision refers only to public employment and to the employment in the private sector. 

Article 16(1) and (2) lay down provisions for equal opportunity of employment in the public sector. However, it is stated in clause 3 of Article 16 that nothing in this article shall prevent Parliament from making any law which prescribes to the citizens who are appointed to any office under the State in regard to any requirements as to residence within that State or Union territory prior to employment or appointment to any office under the State.

Article 16(4) of the Indian constitution provides for the reservation of services under the State in favor of the backward class of citizens. The State shall decide whether a particular class of citizens is backward or not. Therefore, the State shall lay down acceptable criteria in order to ascertain whether a particular class of citizens is a backward class or not.

Equal Pay for Equal Work

A question of equal pay for equal work was raised for the first time in the case of Indian Oil Corporation vs Chief Labour Commissioner. The case Chemical Mazdoor Panchayat vs Indian Oil corporation was remanded by the Supreme Court in order to get a fresh decision on it by the High Court of Gujarat. The issue before the High Court of Gujarat was whether the contractual laborers of the Indian Oil Corporation were entitled to equal wages like the permanent employees of the Company. In 1992, it was found by the Labour Commissioner that the work which is done by the contractual laborers is similar to the permanent employees and consequently, an order was passed by the Labour Commissioner making Rule 25(2)(v) of the CLRA Rules applicable. In 2013, Gujarat High Court stated that the Labour Commissioner was wrong in only taking into consideration the nature of the work of the contractual laborers and permanent employees. Other aspects such as quality of work, the capability of the individual, qualification, work experience, etc. should have also been taken into consideration.

It was stated by the Court that in order to equate the two sets of employees i.e. laborers on contract and permanent employees not only similarity of designation and work has to be taken into consideration but the mode of recruitment, nature of work, value judgment, responsibility on the individual are also required to be taken into consideration. It was observed by the Court that the permanent employees are required to be qualified according to the job, they need to go through a written examination which the contractual laborers are not required to and there shouldn’t be an obligation on the employer for equal pay for equal work. The labor union then approached the honorable Supreme Court against the judgment given by the Gujarat High Court. 

The case as observed above was now been remanded on the question of the status of the contract laborers. The issue before the Court was mainly dependent on the Constitutionality of Rule 25(2)(v) of the CLRA Rules. 

This Rule states that:

“In case where the worker is employed by the contractor in order to perform the same kind or similar kind of work as a worker who has been directly employed by the principal employer of the establishments, then the wage rates, holidays, hours of work and other conditions of service of the worker who has been employed by the contractor shall be the same as the worker who has been directly employed by the principal employer of the establishment in which the workers are working for the same or similar kind of work.”

It was stated by the Court that it is clear that the parity between contractual laborers and permanent employees under the CLRA Rules is dependent on the similarity of work they perform and not on the mode of recruitment or qualifications. The Supreme Court in order to decide the case referred to the judgment of Randhir Singh vs Union of India, 1982. The case was a landmark judgment on the constitutional validity of equal pay for equal work. Equal pay for equal work is also a Directive Principle in the Indian Constitution. In the said case the Supreme Court grounded equal pay for equal work under Article 14 of the Constitution and stated that in cases where all “relevant considerations are the same“, the government can not deny equal pay for equal work simply by performing the bureaucratic maneuver i.e. by separating the workers into different posts, or to different departments. The example of drivers was taken to decide the case. According to the Court “there is not even the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government“, and hence, equal pay for equal work was attracted.

The phrase “same functions and duties” used by the Court resembles the language of the CLRA i.e. “same or similar work“. However, subsequent to the judgment in the case of Randhir Singh, the Supreme Court broadened the principles by passing a number of judgments. The Court through judgments passed a number of principles on equal pay for equal work including mode of recruitment, qualifications, etc. Equality of work was no longer related only to the kind or character of the work done by the workers but was also related to positions which the workers held in the office. In other words, the Supreme Court effectively converted the requirement for equal pay for equal work.

According to Article 16(2) of the Constitution, there shall not be any discrimination between the citizens on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them in respect of employment or office under the State. The words ‘any employment or office under the State’ makes it clear that the said Article applies only to public employment. In the case of Indira Sawhney & Ors. v. Union of India, the Supreme Court held that there shall be a separate reservation for citizens belonging to other backward classes in central government jobs. The Court ordered the exclusion of citizens belonging to the creamy layer of other backward classes and economically poor citizens of forwarding castes for the purpose of reservation in central government jobs. The Court also stated that the upper limit of the reservations shall be not more than 50%.

The Constitution 77th Amendment Act, 1995

Since 1955 the Scheduled Caste and Scheduled Tribes have been provided with the facility of reservation for the matter of employment and promotion under the office of State. The honorable Supreme Court, in Indra Sawhney and Others vs. Union of India held that the reservation of Government jobs under Article 16(4) is limited to the appointment of the citizens belonging to the said classes and it cannot extend to a reservation in the matter of promotion. However, the Court’s decision in the matter of promotion affected the citizens belonging to Scheduled Castes and Scheduled Tribes adversely as they were not represented well in Government services. Since it is the State’s duty to protect the interests of the Scheduled Castes and Scheduled Tribes, the Government decided to continue the existing policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes. In order to carry out the practice which existed before the landmark judgment of Indra Sawhney and Others vs. Union of India, it was necessary to amend Article 16 of the Indian Constitution by inserting a new clause (4A) in the said Article.

For the purpose of reservation in matters of promotion of Scheduled Castes and Scheduled Tribes, Clause (4) was inserted in Article 16 of the Constitution by 77th Amendment. It was stated in Clause(4) that nothing in Article 16 of the Constitution shall prevent the State from making any provision for reservation in matters of promotion to any posts in Government services in favor of the Scheduled Castes and Scheduled Tribes.

https://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolution
             Click Above

Non-exclusion of “Creamy layer” in Backward Class

The ‘creamy layer’ has been defined by the Supreme Court as a class of society that are relatively forward and educated than the other members of the Other Backward Classes. The people who belong to the ‘creamy layer’ are not eligible for government-sponsored educational and professional benefit programs. In Indra Sawhney v. Union of India (II), The Bench analyzed the usage of the terms “caste” and “class”. It was stated that Article 16(4) of the Constitution has to be read together with the rest of the Constitution including Article 15(1) that prohibits the state from discriminating against any citizen on the grounds of caste. Considering the above, employing caste as a determinative factor in ascertaining the backwardness of the citizens is contradictory to the constitutional vision of a casteless society.

The issue which was before the Court was that:

(i) Whether the classification on the basis of caste is permissible;

(ii) Whether there is a rational nexus to such caste-based classification for the advancement of backward classes of citizens.

The Court observed that a classification based on caste is impermissible in light of Article 15(1) of the Constitution. The judgment given by the Court whittled away the distinction between “caste” and “class” upholding the non-exclusion of creamy layer in backward class. 

The Constitution (81st Amendment) Act, 2000

The Government through the 81st Amendment Act, 2000 introduced Article 16(4B). The Amendment allowed reservation in promotion to the 50% upper limit which is set on the regular reservations. The Amendment permitted the Government to carry forward unfilled vacancies from previous years. This Amendment was called as the Carry Forward Rule.

Before 1997, the vacancies which were reserved for the Scheduled Castes and Scheduled Tribes and were not filled up by direct recruitment because of the non-availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes were treated as “Backlog Vacancies”. These vacancies were then treated together as a distinct group and were excluded from the upper limit of reservation i.e. 50%. In the landmark judgment of Indra Sawhney v Union of India, the Supreme Court held that the total number of vacancies to be filled up on the basis of reservations in a year including the reservations by the Carry Forward Rule shall not exceed the upper limit of fifty percent. As total reservations in a year for the Scheduled Castes and Scheduled Tribes along with the Other Backward Classes had already reached forty-nine and a half percent and the total number of vacancies to be filled up in a year was not allowed to exceed fifty percent and so the filling up of “Backlog Vacancies” became difficult. Therefore, in order to implement the said judgment and maintain the upper limit of reservations, an Official Memorandum dated August 29, 1997, was issued which stated that the fifty percent upper limit shall apply to current as well as “Backlog Vacancies”.

Due to the adverse effect of the aforesaid Memorandum on the Scheduled Castes and Scheduled Tribes, various organizations including the Members of Parliament in order to protect the interests of the Scheduled Castes and Scheduled Tribes approached the Central Government. After taking into consideration, the various representations by the organizations and Members of Parliament, the Court reviewed the position and decided to make an Amendment in the Constitution so that the vacancies which were left unfilled can be considered as a separate class of vacancies. Such a class of vacancies shall not be considered together with the other vacancies of the year. It was stated that carry forward rule will be applicable for unfilled (backlog) vacancies but it must not violate the 50% upper limit rule. Together all the reservations must not exceed the 50% upper limit. The Backlog vacancies were thus, allowed but the upper limit of the reservation remained 50%. This Amendment in the Constitution enabled the State to restore the position as it was before passing of the Memorandum dated August 29, 1997.

The Constitution (85th Amendment) Act, 2005

The Government servants who belonged to the Scheduled Castes and Scheduled Tribes enjoyed the benefit of seniority because of the reservation of promotion in Government services. The judgments of the Supreme Court in the cases like Union of India vs. Virpal Singh Chauhan and Ajit Singh vs. State of Punjab led to the issue of the O.M.(official Memorandum) dated 30th January 1997. The Memorandum adversely affected the interest of the Scheduled Castes and Scheduled Tribes in the matter of promotion who worked under Government. Subsequently, many representations were made by various quarters including Members of Parliament to protect the interest of the Government servants who belonged to Scheduled Castes and Scheduled Tribes.

The Government has reviewed the position in the light of views received. The 85th Amendment was introduced in order to extend the benefit of reservation in favor of the citizens belonging to Scheduled Castes Scheduled Tribes in matters of promotion with consequential seniority. The Amendment substituted the words ”in matters of promotion to any class” the words ”in matters of promotion with consequential seniority, to any class” in Article 16 (4) of the Constitution.

M. Nagaraj v. Union of India, AIR 2007 SC 71

The case M. Nagaraj v. Union of India was related to reservation of Scheduled Castes and Scheduled Tribes and dealt with Articles 16 (4A) and (4B) of the Constitution. It was held in this case that in order to grant reservations to Scheduled Castes and Scheduled Tribes, the State must collect ‘quantifiable data’ to demonstrate their backwardness. It was held that the concept of the creamy layer will also apply to the Scheduled Castes and Scheduled Tribes and therefore, they would not be entitled to any such reservations. Further, the decision was altered as it was argued by the Attorney-General of India that both the holdings were incorrect as they were contrary to the judgment which was given in Indira Sawhney vs Union of India (non-exclusion of creamy layer in matters of reservations).

Report of Justice Ram Nandan Committee

Ram Nandan Committee was appointed to differentiate the creamy layer from other backward classes of citizens. A report was submitted by the Committee in 1993 which was accepted. By an Act of Parliament, the National Commission for Backward Classes was established in 1993. The Commission considered inclusion and exclusion of the citizens from the lists of castes that are notified to be backward for the purpose of job reservation. The Commission also evolved a formula in order to determine the criteria which will be applicable to differentiate the creamy layer from other backward classes.

It was stated by Ram Nandan Committee in its report that reservation should not be provided to OBC children of constitutional functionaries i.e. President, Judges of the Supreme Court and High Courts, employees of central and state bureaucracies above a certain level, public sector employees, and members of the armed forces and paramilitary personnel above the rank of colonel. The reservation would not be applicable to the children whose parents are engaged in trade, industry or in professions like medical, law, chartered accountancy, income tax consultancy, financial or management consultancy, engineering, or is a film artist or is involved in any other film profession, or is an author, playwright, sportsperson, sports professionals, media professional or any other vocations of like status, whose annual income is ₹ 100,000 (Rs 1 lakh to Rs 6 lakh for a period of three consecutive years (the amount has been changed from the amount which was specified in the year 1993 by the committee.

Disabled Candidates

The Indian Constitution provides for equal rights and opportunities to the disabled citizens. The disability should be 40% or more and must be certified by a medical practitioner. The disability also includes blindness, visual impairment, hearing impairment, locomotor disabilities, etc. The Constitution aims to put the disabled citizens in an equal position with other citizens. In order to achieve this aim, the Constitution has made provisions under Article 15(1) and (2) for reservation of disabled citizens under Government services and institutions which are run by the Government. 

Article 29(2) of the Constitution provides similar rights to the disabled people in matters of education. It has been stated in the Article that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds only on the ground of disability.

National Commission for Backward Classes

In the case of Indra Sawhney vs Union of India, the Court directed the Government to create a body for inclusion and exclusion of the citizens from the lists of castes that are notified to be backward for the purpose of job reservation. Subsequently, the Parliament passed the National Commission for Backward Classes Act in 1993 and constituted the National Commission for Backward Classes.

The 102nd Constitutional Amendment, 2018 provides a Constitutional status to the National Commission for Backward Classes (NCBC). The Commission has the authority to examine complaints and welfare measures of the citizens who belong to backward classes socially and educationally.

The Commission works for the citizens who belong to Backward classes and monitors all the matters related to it in order to safeguard the backward classes of citizens.

NCBC also performs such other functions which are important for the protection, welfare and development and advancement of the socially and educationally backward classes.

Abolition of Untouchability: Article 17

Untouchability has been abolished by the Indian Constitution through Article 17. The Article states that the practice of untouchability is prohibited in all forms. Article 17 of the Constitution abolishes the practice of untouchability. The practice of untouchability is an offense under the Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) and anyone doing so is punishable by law. This Act states that whatever is open to the general public should be open to all the citizens of India.

Devarajjah v. Padmanna, AIR 1958 Mys 84

In the case of Devarajjah vs. Padmana, the term untouchability was defined. It was stated that the Untouchability Offences Act, 1955 fails to define the word ‘untouchability’. The Court observed that ‘untouchability’ under Article 17 of the Constitution should not be taken in the literal sense but should be understood as a practice that has prevailed and developed in India. The framers of the Constitution had clearly indicated untouchability as a practice that developed historically in this country. The existence and practice of untouchability in this country and the efforts which have been made for its eradication during the past decades are matters of common knowledge and can be taken judicial notice of.

Article 17 of the Constitution which was intended to abolish the practice of untouchability, fails to define the term ‘untouchability’ nor is it defined anywhere else in the Constitution. Through this case, the Court gave a broader interpretation of the word ‘untouchability’ under Article 17 of the Constitution.

Asiad Project Workers Case

In the Asiad Project Workers Case, the PUDR filed a case against the Delhi Administration. People’s Union for Democratic (PUDR) is an organization which was formed for the purpose of protecting the democratic rights of the citizens. It commissioned three social scientists for inquiring about the conditions under which the workmen were working in Asiad Projects. Based on the inquiry, the PUDR addressed Justice Bhagwati by writing a letter about the various violations of labor laws that were taking place in Asiad Projects. The Supreme Court treated the letter as a writ petition and issued a notice to the Union of India, Delhi Administration, and Delhi Development Authority. The violations were as follows:

(i) The provisions of the Equal Remuneration Act, 1976 were violated. The female workers were being paid less than male workers and the amount of wage was being misappropriated by the Jamadars. The workers who belonged to lower castes were treated as untouchables and were forced to work without wages. It resulted in a violation of Article 17 and 23 of the Constitution.

(ii) There was a violation of labor law as well as Article 24 of the Constitution as children below the age of 14 years were employed in the project.

(iii) There was a violation of the Right to life under Article 21 of the workers as they were denied of proper living conditions and medical facilities.

The judgment which was given by the Supreme Court was in favor of the petitioners. The Court observed that it is the duty of the State to protect the fundamental rights of the citizens. A set of guidelines were given for minimum wages and many other provisions were introduced to ensure proper working conditions for the workers.

Abolition of Titles: Article 18

The Article 18 of the Constitution forbids the State from conferring any titles on the citizens of India and also they are prohibited from accepting any title given by a foreign State. However, Military and academic distinctions can be conferred upon. The title which comes along with awards such as Bharat Ratna and Padma Vibhushan do not fall within the constitutional prohibition and thus, they do not fall under the definition of title under Article 18 of the Constitution.

Balaji Raghavan v. Union of India, (1996) 1 SCC 361

In the case of Balaji Raghavan v. Union of India, the petitioners contended that National Awards like Padam Vibhushan, Padam Bhushan, Padam Shri, and Bharat Ratna should not be given to the individuals as it is a violation of Article 18. It was argued in the court that the National Awardees very often misuse the title which is given to them by the Government. The Supreme Court held that National Awards are not subject to titles as per Article 18 and receiving a National Award was not a violation of equality under the Constitution. Article 51(A)(f) of the Constitution speaks about the necessary recognition and appreciation of excellence in the performance of a person’s duty. The Court criticized the Government’s failure in selecting the right candidates for National Award and also stated that the whole criteria for selection were vague and the main object of recognition and appreciation of work was wholly missing.

Designation of Senior Advocate

In the case of Indira Jaisingh vs. Supreme Court of India, the designation of the Senior Advocate was questioned as the appointment of the Senior Advocates were based on different norms and guidelines in different High Courts. Subsequently, the Supreme Court framed a new set of guidelines for the appointment of Senior Advocates. The petitioner Indira Jaisingh filed a petition on the grounds that the guidelines which are set by the Supreme Court for the appointment of Senior Advocates are flawed and need to be rectified. From the year 2015, no lawyer has been with the title of senior advocate by the Supreme Court. The last time the court made the designation of the Senior Advocate was in April 2015. The issue came before the Court when the Senior Advocate Indira Jaisingh filed a petition questioning the biased view when it comes to ‘giving them the gown’. This petition came right after when Supreme Court-appointed 5 new senior advocates in 2015. She contended that this was a violation of the fundamental rights under Article 14 & 15 of the Constitution. She also contended that this led to the monopoly of the senior lawyers in a court of law and the method of appointing senior designation also leads to unhealthy lobbying with the judges. The Courts have stopped the appointment of advocates for the designation of senior advocates after the said petition.

Conclusion 

Right to Equality is not a simple concept as it is perceived to be. The Indian Constitution aims to achieve a society in which all the individuals are provided with an equal opportunity. The developments which have been made in the light of Right to equality under the Constitution have uplifted the Indian society. The framers of the Constitution aimed to achieve a society where all citizens are treated equally. The Courts have given various interpretations through the judgments so as to achieve the aim of equality which the framers of the Indian Constitution intended. 


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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Right to Equality: Article 16, 17 & 18 under the Indian Constitution appeared first on iPleaders.

Viewing all 14289 articles
Browse latest View live


<script src="https://jsc.adskeeper.com/r/s/rssing.com.1596347.js" async> </script>