This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies. This article would serve as an answer to your questions about the Delhi Judicial Services and its entrance exam. 

Introduction

Delhi, being the capital city of India, is a bustling hub of activity. Be it commercial, legal, cultural or any other area, Delhi finds itself at the heart of it all. Speaking about the legal sector, Delhi has all the super important courts and prominent organisations and firms’ headquarters, like the Principal Bench of the National Green Tribunal and that of the National Company Law Tribunal, among others.  

Thus, a lawyer or an aspiring lawyer would probably look to practice in Delhi or even be a judge in Delhi! One cannot deny that this is surely a lucrative opportunity. One can do this by applying to and passing the Delhi Judicial Services Examination. 

What are the Judicial services?

To understand the judicial service system in India, one must first understand the hierarchy of the courts system in India. 

• The Apex Court of India is the Supreme Court, which is in Delhi. It has territorial jurisdiction all over India. It hears cases on appeals from lower courts (High Courts and District Courts), and also hears writs, PILs etc,
• The next type of courts in the hierarchy are the High Courts of each State. They have territorial jurisdiction over that State. Each State’s High Court supervises the members of the subordinate judiciary,
• Then come the District Courts for a district or for a group of districts. Members belonging to the subordinate or district judiciary are commonly called as Judicial Service or the PCS-J ( Provincial Civil Service – Judicial). They occupy the offices of the presiding officers of the Courts up to the level of the District Judge.

Exams are conducted only at the District and the High Court levels. The intricacies of this examination system are given in the next section of this article. 

Plans for an All India Judicial Service have been floated many times, but they have been faced by opposition. However, the government has once again brought up a plan to set it up in 2020. 

How can you become a Judge in the Delhi Judiciary? 

First off, one has to know that there is a State judiciary present in every State and they all conduct their own independent competitive exams for admission to their judiciary. Similar is the case with Delhi.

However, there are actually two ways to become a part of the State judiciary-

• Start your own litigation practice as a lawyer and hope to get elevated to the Bench someday. However, there is no guarantee that you will be elevated to the Bench through following this method. It involves a lot of luck and years of hard work. It also takes a lot of time;
• This is the method which is becoming more preferable day by day. You can apply for the Judicial Services exam conducted by the State where you are interested in making a career as a judge. 

Even inside this, there are two levels of judicial services. 

• Lower judicial services: Fresh law graduates have to apply here and have to pass the entrance exam which is usually conducted by the particular State’s Public Service Commission, but in the case of Delhi, it is conducted by the High Court. 
• Higher judicial services: The higher judicial services exams are open to already practising lawyers with a certain prescribed minimum number of years of litigating. This minimum number of years is usually 7, but it may vary with the state. 

The benefit would lie more on the side of the higher judicial services as someone who gets through their exams would get a senior position at the start of his career whereas a person who gets through the lower judicial services examinations does not get senior-level positions at the beginning of his career. However, the lower judicial services have a fixed quota, on the basis of which elevation to the High Court is decided. However, the figures of this quota depend on the discretion of a state’s High Court. There is no uniformity regarding this.

The Delhi Judicial Services Examination

The Delhi Judicial Services Examination is conducted by the High Court of Delhi to recruit civil judges in the High Court. The exam is conducted in multiple stages. 

Stages of the Delhi Judicial Services Examination

Stage 1: Preliminary Exam: This exam is held in objective multiple choice questions (MCQ) format. The subjects covered under the preliminary exam consist of English,general knowledge and law which includes topics like the Penal Code, Constitution, Evidence Act, Contract Act etc. It also tests the candidate’s command over English and his aptitude for the law. There shall be 200 MCQ questions with deduction of 0.25 marks for each incorrect answer and 1 mark being awarded for a correct answer.

Stage 2: Mains exam:  When candidates qualify the preliminary exam , they become eligible to give the mains exam. This is a subjective exam. The pattern of the Mains exam consists of two sections: namely General Knowledge (100 marks) and the other section is Language and Law,  which also have Civil Law -I, Civil Law-II and Criminal Law as papers. In section II, Language paper has a weightage of 150 marks whereas the others will have a weightage of 200 marks. 

• General Knowledge: Questions in this section are asked from topics such as current affairs
• Language and law: In the language paper, you have questions like translations from English to Hindi and vice versa.
• Civil Law-I: Questions in this section are from the Contract Act, Hindu and Muslim law, Law of Torts, Partnership Act etc.
• Civil Law -II: Questions in this section come from The Civil Procedure Code, evidence law, law of limitation and registration.
• Criminal Law: Questions in this section come from The Indian Penal Code, The Code of Criminal Procedure, The Indian Evidence Act .

Stage 3: Viva voce/ Interview: If the candidates have passed both the preliminary and the mains exams, then they are eligible to give the interview, which would be the final stage of the Delhi Judicial Services Examination, after which they would be shortlisted. This carries a weightage of 150 marks.  Depending upon the combined score, the candidates will be shortlisted for judicial posts. They need to get at least 50% marks in this round to qualify for the shortlisting process. However, the marks of the preliminary exam would not be considered while making the final merit list. 

Here is the syllabus in a tabular form-

When does the exam take place?

It is important to remember that since the judicial service exams are vacancy based, they are not conducted every year. The online application for the exam is usually released a month before the exam is conducted. In 2019, the registration for the exam began in August and ended in September, when the preliminary exam was held. 

Who can apply?

• A citizen of India
• A person having a law degree 
• A person who has practised as an advocate for not less than 7 years.
• A person who is less than 45 years of age as on the 1st day of January of the year for which applications are invited.

Number of seats

The number of seats in each state depends on the vacancies of judges in that state’s High Court. So, if you are looking to join the Delhi High Court, the number of seats would differ per year. However, one thing you could be sure of is that the number of vacancies would usually be large since Delhi is a major legal hub, but the competition would also be higher.  

Mode of applying and mode of conducting the examination

The applications for the Delhi Judicial Services Examination is given through online mode, with an application fee of Rs. 1000, while the exam is conducted in the offline mode. 

Perks of being in the Judicial Services

When you become a judge, you finally know how it feels to be bringer of justice. It gives the opportunity to serve the interests of the people and makes the society a better place to be in. A judge also commands a position of great respect in the society. Apart from your own personal satisfaction, being in the judicial services also gives you benefits like rent free accommodation, subsidised water and electricity, telephone allowances and children’s education bursaries. The quality and quantity of these perks is typically observed to be better than those of civil officers.

With the coming of the 6th Pay Commission, the pay for most judicial officers is good. Judicial officers also are almost always posted in districts, not in remote rural places unlike civil officers.

References

http://www.delhihighcourt.nic.in/writereaddata/upload/Recruitments/OpenPositions/CurrentJobFile_2DLXRVUGIK0.PDF

The post A Career in the Delhi Judicial Services appeared first on iPleaders.

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

Shakespeare wrote Macbeth while he was quarantined and Newton came up with his theory of calculus working quietly in self-isolation. 

In every difficult situation, there are some opportunities hidden, but it takes consistent work to be able to take advantage of those opportunities.

To most people, opportunities just look like daunting tasks. 

The opportunity right now is that you are likely to have a lot of time in your hand to work on yourself, on side projects, on business development, towards putting your business in order, to address important things that day-to-day busywork leaves no room to address.

For example, want to start your own law firm someday? But you don’t get time to think through how you are going to pull it off? 

Great, how about you sit down for a couple of hours and write down the vision, mission and a business plan for your law firm? 

Even if you think you are going to start it many years later, the act of putting your vision down in pen and paper itself is likely to fast forward the process. 

At LawSikho, mandatory work-from-home days have given us an opportunity to catch up on some very important aspects of our business that often get neglected. 

For instance, we are doubling down on building good coordination systems, speeding up the implementation of a visual project management tool called KanBan board, and focus on process rather than just results. The situation is forcing us to prioritize this, although we always knew that this was very important, and at the same time not as pressing or urgent as some other things. 

And now it is pressing too. 

Apart from this, we have taken the opportunity to organize lots of webinars, because our learners are at home and free to attend, while we have access to amazing resource persons who are now relatively free and available at home. So much so that they can participate in a webinar in the middle of the day if we invite them.

So we have decided to take this opportunity to rapidly grow our content repository. 

We are also speeding up the launch of our judiciary and government test prep course, which is called Lord of the Courses (for a very apt reason, and you can read why inside this link) because we know that physical coaching classes may have to be shut down for months and this is a great time for us to make what we are doing available to the students at large.

Look, the storm will pass and you will be standing here when it is all over.

The world by then is going to look quite different though. Are you preparing for what is to come? Are you taking full advantage of the situation so that you come ahead and on top of the situation when the dust settles?

I hope you are thinking this through, and that you develop a good strategy about this. It is going to be critical.

Lenin once said, about the Russian revolution, that sometimes nothing happens in decades, and then sometimes decades happen in weeks. 

These are the weeks ahead. Don’t take this lightly.

We are here to help as usual, with ideas about how you can make the best of even a terrible situation. We need people who would plan ahead and execute through thick and thin. 

We, in LawSikho, will do that anyway. If you are our kind of people, join us in this journey of turning the tides. We will make the world a better place because we will think ahead and invest in solutions that will not only change our own lives but that of those around us, including our clients, colleagues, and bosses. 

You are saving commute time – can you use it for self-development?

When I used to travel to work, it would take me around two hours to go to and come back from the office. These days, those two hours are not wasted inside the bus, playing 8 Ball Pool on my phone or looking at strange passengers every day.

I utilize it by doing yoga for an hour. And then, read a few pages from the Tools of Titans. 

So, how are you going to spend all the free time that you have on your hand? Here are a few tips for you.

Read a book. The more books you read, the more you get to know about yourself and the world. After all, books are concentrated sources of wisdom. A few books that have really helped shape my life are Think and Grow Rich, 7 Habits, Living The 80/20 Way, and Who Moved My Cheese.

Learn a new language. Spanish, French or Chinese—choose anyone you like and put a few minutes into learning it every day. It keeps your brain active and also exposes you to interesting foreign culture and literature. 

Pick up a new hobby. Hobbies are not only for recreation but also to help you grow physically, mentally and spiritually. Football, gardening, programming, dancing, singing—what fancies you? 

Start a new course. Always wished to join that 3-month online course but could not because of lack of time? Now, you do not have the excuse. Go for it.

Develop an exercise routine. Please, please don’t sit on your couch and watch movies on Netflix all day. Do some pushups or pullups, or rope skipping perhaps, every day. Make your body move. 

Write a letter to yourself. What surprises me is that most of us interact with lots of people every day but we never do it with our own selves. Write a letter asking what you really want, or what really bothers you, or discovering where you want to see yourself in a year or two. 

Speak with your Self. It has got a lot to say to you.

These are only a few though. Click here for a massive list of 365 self-improvement tips. 

But when we are talking about self-improvement, how can we not talk about business development, right? In my opinion, for an entrepreneur, it’s a part of his self-improvement even.

How can we do business development from home so we have more clients when the lock-down is lifted?

Yes, yes, I understand that you cannot meet with your clients over a cup of coffee anymore. But if you are really serious about growing your business, you WILL find a way (or, ways for that matter) I am sure.

Why not start with the following list?

Write articles for publications. If you have something to say on a particular topic related to your field, why not write about it? Publish it on your own blog, or better, submit it to be published on a third-party publication with high popularity.

Become active on social media. We are locked in our homes, which means we will spend more time on social media for networking with our friends and family. In other words, your prospective clients are on social media. What about you?

Go live on Facebook or Instagram. Are you camera-friendly? You can always use the world’s biggest social network—yes, Facebook serving 2.37 billion monthly active users—to your advantage. Instagram is arguably the 5th largest social media site in the world and over 200 million people visit business profiles on it at least once daily. 

Run webinars. Do like LawSikho rebels do—webinars every day! Your prospective clients still need your help. Reach out to them via online seminars. Just get Zoom (free) app and start recording.

Click Above

Do YouTube videos. If you are not comfortable with live videos, prepare a script and record a video instead. Submit it on YouTube and rinse and repeat for the next 30 days (or as long as this lockdown sustains). 

Reach out to industry experts and influencers. Talk to them, raise a few questions, and get noticed. Marketing is all about getting the attention of your target audience. Whether you do it online or offline, it does not matter.

However, whatever you choose to do, keep doing it consistently.

Great time to start working on that LLM  or MBA application

LLM and MBA applications normally start around the first week of August or September every year, and it’s only March now. 

So you have around five or six months in hand to prepare for the same.

What are you doing about it? How good are your preparations?

Have you already found out what the admission process at your favourite university is?

Tell me, are you really ready to bell the CAT or crack the LLM admission code of your favourite university?

Buy textbooks, join online coaching classes and start studying while you still have time.

Once this lockdown is over, the daily rush will resume. And you will say those same words again, “Boy, I don’t have enough time.”

Now you do. Utilize it properly.

Can you start a side project on the internet?

Did you always want to write your own bestseller? Go, write it. All you have to do is start putting words on paper or on the Word app. 

Did you want to start your first blogging business? Go, start it. Not as tough as it sounds. Start with a website first. The rest will fall into place, sooner or later.

Wanted to conduct interviews of some of the industry experts in your profession? Go, do it now. They are stuck in their homes like you are, and probably looking for someone to talk to.

Ever thought of building an online community? One of LawSikho’s students did that. He built a WhatsApp group consisting of only men who have been hit by false cases by their wives. While he is providing free advice to such men, they later become his clients when they want to file lawsuits or need protection against one.

Do understand that this time can turn out to be totally unproductive only if you choose it to be. Start investing in yourself during this unplanned, free time, and you will reap the benefits later on.

Can you invest in yourself now, and learn new skills to reap the benefits later?

For me, it is always doing the one thing that helps me in becoming the best version of myself. To achieve my goal, to make my dreams come true.

And for that, I love upgrading myself with new skills every day.

Whether it is reading a poem every day and learning how to string words together in a better way…

Or, joining an Udemy programming course and learning to develop websites…

Or, working with a chess coach to improve my chess playing skills…

I love learning new stuff every single day.

For you, it might be about learning the practical side of the law in order to be able to apply it in your daily professional life.

Start going through legal journals.

Read more case laws every day.

Finish the Common Law volumes.

Or better yet…

Join a LawSikho course. 

With 24/7 online access, weekly live classes, doubt-clearing sessions, practical assignments, personal feedback, unlimited jobs and internship opportunities…

Our courses are 100% unique in nature and focus on preparing you for a lawyer’s life in the most realistic way possible. 

LawSikho helps you to develop a deep understanding of the law with practical insights on real-life clients’ issues.

But you won’t know unless you try any of our courses. 

Do note, all our courses are covered under a 30-day full money-back guarantee. So, you can try 100% risk-free!

BTW, if you are interested in becoming a LawSikho student, do it now. There will be a 20-50% hike in fees of all our courses from April 1st. Even if you plan to start a bit later, it makes sense to book your slot now.

Anyway, the main point of this letter is that you should not treat this lockdown and work-from-home days negatively but rather take it in a positive light.

It’s all in the way you see it.

Glass, half empty or half full.

P. S. Confused about where your career is heading? Want to talk to a career counselling expert who can answer your questions and guide you to take your career to the next level? Give us a call at +91 11 4084 5203 and we will get back to you ASAP.

The post Utilize these lockdown days to get ahead in your career appeared first on iPleaders.

This article is written by Abhishek Dubey, pursuing a diploma in merger and acquisition from Lawsikho.

Introduction

The listing of securities is done through an agreement which is known as a listing agreement. It is an agreement done between the issuing company and stock exchange. The listing agreement is of great importance. It provides the terms and conditions which the company has to follow. The listed agreement has to be executed under the company’s common seal.

The Companies Act, 2013 makes it mandatory for the companies intending to offer share or debenture to list securities on a stock exchange. The listing rules and regulation have been designed to safeguard the interest of the investor and to control the conduct of listed securities. Securities Exchange Board of India Regulation, 2015 and amended in 2020 provides the details about all the recognised stock exchanges where such shares are listed.

Delisting means removing the share from the stock exchange. It is of two types: one is voluntary where the company pays its investor and then gives the option to exit and the other type of delisting is compulsory. Compulsory delisting is when the stock exchange forces a company to remove the shares from the stock exchanges for not following the rules of stock exchanges.

As per Regulation 4 of the Securities and Exchange Board of India  (Delisting of equity shares), 2009 there are certain circumstances where delisting is not permissible:

• Pursuant to buyback of shares.
• When preferential allotment is made by the company.
• Unless 3 years have passed from the date of listing of equity shares when companies want to delist convertible securities.
• When the promoter or promoter group wants to exit.
• When any entity belonging to the promoter or promoters group was sold in six months.

 General Procedure for Delisting

• The company shall appoint merchant bankers, book-running managers etc.
• Before making a public announcement, the acquirer or promoter shall open an escrow account and deposit the total amount of consideration on the basis of a floor price and the number of equity shares outstanding with the public shareholder.
• The escrow account shall consist of either cash deposited with a schedule of a commercial bank or bank guarantee deposit in favour of a merchant banker or both.
• The promoter or acquirers shall, within one working day from the date of receipt of principal approval for delisting from the stock exchange make a public announcement which contains all relevant or material fact information in one English newspaper, one Hindi newspaper and in one regional paper in the concerned area where the recognised stock exchange is located.
• The public announcement should specify the date on which the letter of offer has to be sent and the name of shareholders.
• Before making the public announcement, the promoter or acquirer shall appoint merchant bankers registered with SEBI to ensure compliance with these regulations.
• The associate promoter or acquirer cannot be the merchant banker.
• The acquirer or promoter shall dispatch the letter of offer to the public shareholders no later than two working days from the date of public announcement.
• The letter of offer shall be sent to public shareholders whose name appears in the register of companies as on the date specified in the public announcement.
• The letter of offer should contain the material facts so that shareholders can make accurate decisions.
• The date of the opening offer should not be later than 7 working days from the date of public announcement.
• The offer shall open for a period of working 5 days.
• The acquirer or promoter shall not make a bid in the offer.
• All equity shareholders belonging to public shareholders should participate in the book-building process.
• The offer price shall be determined through the book building after the fixation of a floor price and shall disclose the same in the public announcement and open offer.
• The floor price should be determined according to regulation 8 of SEBI takeover code regulation 2011.
• The date of opening the offer shall not be later than 7 working days from the date of public announcement.
• The company shall not make the application to exchange for delisting.
• The acquirer or promoter may close the escrow account.
• An offer is deemed to be successful only if the post-offer promoter shareholding accepts that offer in bidding at the final price and, 20 per cent of public shareholding has participated in the book-building process.

Types of Delisting

1.  Voluntary delisting

Securities Exchange Board of India gives an option to a company to be delisted itself,  either from all recognised stock exchanges or any one of them. No exit opportunity is to be given in case of delisting from one or more recognised stock exchanges. The equity share will remain listed in the nationwide terminals stock exchange such as Bombay Stock Exchange and National Stock Exchange.

The procedure of voluntary delisting in case no exit opportunity as per Regulation 7 of SEBI Delisting of Equity Shares, 2009 is available

• It shall be approved by the Board of Directors in a meeting.
• The company shall give notice in one English newspaper, Hindi newspapers and one regional paper.
• The company shall make an application to one of the recognised exchanges.
• The public notice shall contain the name of the stock exchange from which it is going to exit and also public notice should contain the reason for being delisted and any other fact of delisting.
• An application shall be disposed of from the stock exchange within 30 days from the date of receipt of application.   

Exit option has to be given in a case where the company is going to be delisted from all recognised stock exchanges including the one having nationwide terminals. The procedure for the same as per regulation 8 of the SEBI delisting of equity shares 2009 is:

• The company who wants to exit must take prior approval from the  director in the meeting as specified in the SEBI delisting of equity shares 2009:
• Approval of shareholders is necessary by special resolution through the postal ballot and also disclosing the material facts and the reason for delisting.
• Making an application in one of the recognised stock exchanges for the principal in approval.
• After passing of the special resolution by the shareholders within one years final application by the board of directors has to be made to the stock exchanges for delisting.

  While considering an application for the delisting the stock exchange shall verify that:

• That the approval of the shareholders has been obtained.
• The resolution of the investor grievances has been made by the company.
• Payment of listing fees has been made by the company from whichever stock listing has been made.
• Any other application as deemed to be fit by the stock exchange may be verified.

The final application needs to be made that the exit opportunity is given as specified in accordance with the SEBI regulations.

2. Compulsory Delisting (Regulation 22 of the SEBI Delisting of Equity Shares, 2009)

A recognised stock exchange may by order, delist the equity shares of the company for any ground mentioned in the Securities Contract Regulation Act, 1956. A recognised stock exchange may delist the securities after recording the reason on any ground specified in this Act.

Securities of companies cannot be delisted unless the important persons such as shareholders, creditors have been given the opportunity of being heard. A listed company investor may file an appeal within 15 working days of decisions of the recognised stock exchange.

Procedure and steps for compulsory delisting

• The decision of compulsory delisting will be taken by the recognised stock exchange in the panel constituted by the stock exchange. the panel will consist of the representative or director appointed by the investor and also one director of the ministry of corporate affairs, secretary of the recognised stock exchanges.
• Public notice of the decision is to be given in one English national newspaper, one Hindi newspaper, and one in the regional newspaper where the stock exchange is located.
• An aggrieved investor may file an appeal within 15 days from the decision of stock exchange.
• Delisting order has to be made by a recognised stock exchange.
• A public notice has to be given in English, Hindi and regional newspapers where the stock exchange is located and the same has to be put on the website of companies.
• When a company is being delisted, the stock exchange should appoint an Independent Valuer to decide the value of the share. 
• The stock exchange should form a panel to decide the independent valuer.

Consequences of compulsory delisting as per regulation 24 SEBI Delisting of Equity Shares, 2009:

Where a company has been delisted as specified in the regulation 22 of the delisting of the equity share i.e. compulsory delisting. The promoter, Board of Directors of companies shall not directly or indirectly access the securities market and also cannot seek a listing of securities for a period of 10 years.

The post Delisting of Equity Share: Key Steps and Approvals Required appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 3rd week of February 2020 (From 17th February 2020 To 23rd February 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 Mukherjee, Abhyuday Agarwal, Harsh 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!

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 Mukherjee, Abhyuday Agarwal, Harsh 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.

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

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

The post Blog Competition Winner Announcement (Week 3 February 2020) appeared first on iPleaders.

This article is written by Abhishek Dubey, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.com. Here he discusses “How will including Merger and Amalgamation under IBC resolution benefit the corporate debtor”.

Introduction

Telecom industry is one of the most profitable and rapidly growing sectors in India. The Telecom sector deals with communication media such as mobile phones, telephones, and fixed-line phones, etc. The merger and acquisition activity is growing in the world and the aim behind this is to attain competitive benefits.

The merger and acquisition in the telecom sector are considered to be horizontal mergers, because both the companies deal in the same line of business.

In the majority of developed and developing countries, mergers and acquisitions in the telecommunications sector have increased which also resulted in the creation of jobs.

India is the second-largest country after China on mobile phone users. There are more than 500 million subscribers. In the last decade, India has witnessed the emergence of at least 15 sectors. 

Specific regulation for merger and acquisition in the telecom sector in India 

The merger and acquisition in the telecommunication sector are supervised by the regulatory authority of that particular country. For example, the Telecom Regulatory Authority of India is a supervisory authority in India. The authority keeps an eye so that no monopoly is formed, telecom sector is subject to many guidelines and provisions, for example, Companies Act 2013, Income Tax Act 1961, etc.

1. Telecom Regulatory Authority of India 

The telecom regulatory authority of India was established in the year 1997. TRAI manages scale and efficiencies and also makes sure that no monopolies are formed.

Recently, TRAI recommended that mobile phone companies could merge their operations if the combined share of the new entity is less than 60 percent. And it has also proposed that in case of merger and acquisition, there should be no spectrum caps and the combined entity will be allowed to hold available 25 percent of airwaves in that region. And it has also asked the government to impose revenue share on telecom tower companies and internet service providers and currently, there is an 8 percent share which will increase the industry output and revenue will be around a thousand crores annually.

Guidelines of the department of telecom: 

The department of telecommunication has been formulating various policies for the growth of the telecommunication sector.

Telecom department reduced the combined share entity to the extent of 35 percent otherwise this could lead to a monopoly situation. It is to be noted that by providing a higher limit on merged entities, we may be permitting indirectly which is not permitted directly.

And it is important to follow the guidelines such as for Delhi-Mumbai 10Mhz and 8 Mhz for other cities and areas.

The specific provision related to merger issue by DOT are: 

• Prior permission has to be taken from the Department of Telecommunication for the merger of license and after submitting the application.
• In normal situations, 4 weeks time needs to be given for finding the department of communication from the date of submission of application.
• The merger of licenses would necessarily be restricted to the same service area.
• Any merger, acquisition, and restructuring leading to monopoly should not be permitted.
• The merger entity shall be entitled to the total amount of spectrum held by the entity.
• In case the merged entity becomes significant market power the SMP operator share should be equal to 30 percent of the relevant market.

The department of telecommunication has also issued guidelines on foreign equity participation and management control of telecom companies:

• The 1994 national telecom policy revised in 1999 has given the cap on foreign investment in the telecom sector for about 49 percent. 
• In 2006 FDI limit in the telecom sector is about 74 percent and other guidelines issued were:
  • The total 74 per cent investment can be made by the resident in holding or operating companies outside India and 26 per cent has to be made by an Indian citizen and management control will also be in the hand of Indian resident.
  • The license would be required to disclose the foreign entity status and certify that foreign investment is made within limits of 74 percent on a half-yearly basis.
  • The chairman, board of directors and chief executive officer shall also be a resident of India and they should be appointed in consultation with serious Indian investors.
  • The license should also provide that any change in the shareholding pattern shall be subject to the statutory requirements.
  • The merger of an Indian company is permitted but at the same time competition cannot be ignored i.e monopoly will not be permitted. 

2. Foreign Exchange Management Act

Foreign Exchange Management Act 1999 also provides the rules, regulation and circulars with the objective of facilitating external trade and payments and promoting the orderly development and maintenance of the foreign exchange market in India.

The provision of FEMA specifies that current and capital account transaction which may be carried out on general or specific permission from RBI. The two most important provisions of the Foreign Exchange Management Act are:

1. Transfer or issue of security by a person resident outside India(2000): The Foreign Exchange Management Act 2000 permits inbound merger or acquisition by a resident outside India in form of share, debenture or convertible notes, etc. IIn certain sector 100 per cent FDI is permitted and in certain sectors, it requires permission from the Foreign Investment Promotion Board.
2. Foreign Exchange Management Act 2004 (Transfer or issue of any foreign security): Outbound investment is regulated by Foreign Security Regulation 2004 by the person living in India but investment outside India. Indian companies are permitted 400 per cent of their net worth under FDI under automatic route in a joint venture or wholly-owned subsidiary.  

3. Securities Exchange Board Of India

Securities Exchange Board Of India: It has also issued guidelines for merger and acquisition of the telecom sector:

Acquisition of share regulation 10: For merger and acquisition in the telecom sector, the public announcement has to be made for acquiring 15 per cent of the voting rights. 

Regulation 11: The person holding less than 75 per cent but more than 55 per cent is required to make a public announcement.

4. Competition Commission of India

The Competition Commission of India is responsible for free and fair competition in the Telecom Sector. The Competition Act made in 2002 and amended in 2007 specify that prior permission has to be taken from the Competition Commission of India for the telecom sector and it may allow or not allow any investment outside India for outbound merger and acquisition. Still, some of the regulations of the Competition Commission of India have still not been notified.

5. Due diligence in the telecom sector

Due diligence is one of the most important areas of the telecom sector. It gives the acquirer the right information about price.

Parts of due diligence are

Commercial due diligence

It examines the current market share, current revenue share, change in the system of license etc.

Financial due diligence

It examines the intangible assets and financial statement of the company etc.

Legal due diligence

It deals with the legal structure of the economy, their impact on the economy, the legal structure of the business, statutory regulations, list of legal cases filed against the company, partner agreement and intellectual property regulation,, etc.

HR due diligence

The investor analyses the total number of foreign employees coming to India, the salary of employees and chances of an increase in salary etc.

SWOT analysis

Analysis of the telecom sector in India:

Strength

India has a large population as well as a huge market base on the internet and therefore foreign players are easily entering the Indian market. 

Weakness

Lack of infrastructure in rural areas results in a large cost for setting up the initial process. Achieving a break in these circumstances can be difficult.

Opportunity 

In the existence of telecom companies are more in the cities, the merger and acquisition players can attract and accommodate more players and one can expect aggressive responses from the companies.

Threat

This sector requires more financial resources in the initial process. Entry fees and struggle to obtain loans from banks remains a threat. So it is important to have a good financial condition for investment in the telecom sector.

Case study of telecom sector

The first deal in merger and acquisition of the telecom sector was a sale of license by MAX group to Hutchison group of Hong Kong. The deal was about half a billion dollars and it brought huge success in telecom ventures. After that many deals happened in India. Vodafone acquisition of 10 percent equity in Bharti Airtel. Maxis acquisition of Aircel for US$ 1 Billion etc.

Conclusion

Thanks to globalization, liberalization as well as technology changes. Business firms now will have to face huge competition not only from India but also from foreign players. Merger and acquisition is a very difficult process as it is not only a merger of two entities but also a union of different cultures, attitudes, etc. Telecom mergers are a result of intense competition. It may be beneficial for the customer because of the constant innovations in the industry.

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

The post Merger and Acquisition In Telecom Sector: Specific regulation to be considered appeared first on iPleaders.

This article is written by Antra Shourya, from the Faculty of Law, University of Delhi. The article focuses on the definition and meaning of accomplice as laid down in The Evidence Act 1872 and various precedents. It delves on whether a testimony given by an accomplice is trustworthy in various scenarios. The article further talks about the nature of corroboration needed in case of accomplice evidence. 

Introduction 

The Black Law’s dictionary defines an “accomplice” as a person who has participated in a guilty act and is liable in a criminal action, by being present at the place where crime has been committed by aiding or abetting in it even when he is absent from the place where crime has been committed, the person participated having advised or encouraged it. 

In layman’s terms, accomplice evidence may appear untrustworthy as accomplices are usually always involved and infamous witnesses, but their evidence is mostly admitted under necessary circumstances because, in these cases, it is not easy to convict main accused without having recourse to such evidence. Thus, accomplice evidence may appear unreliable, but it’s often beneficial and even an invaluable tool in crime detection, crime-solving, and delivering justice and consequently, an essential part of the Law of Evidence. Accomplice and admissibility of accomplice witnesses are mentioned in Section 133 of the Indian Evidence Act,1872. It lays down that an accomplice has to be proved as a competent witness for a conviction, legal to rely upon the uncorroborated testimony of an accomplice.

Who is an Accomplice? 

• To attract Section 133 of The Evidence Act, 1872, a person must be an accomplice. Hence, it’s essential to understand the meaning and significance of the term ‘accomplice.’ Anyone who has taken part in the commission of the crime, along with another or others, is called an accomplice. When the police induce a person to take part in crime for finding evidence against others, he is called a trap-witness. When an accomplice who is a trap-witness is given a pardon, he can be referred to as an approver. Section 133 of the Indian Evidence Act 1872 includes trap witnesses and approvers as a competent witness under the term accomplice used in the section.  
• In the Indian Evidence Act 1872, the word accomplice has not been defined; it can, therefore, be presumed as used in the ordinary sense by the legislature. The judiciary has tried to define who is an accomplice in various judgments. In Chandan v Emperor the Court defined accomplice as one who is associated with an offender or offenders in the commission of a crime or one who knowingly or voluntarily helps and cooperates with others in the commission of the crime. The term ‘accomplice’ may include all particeps criminis i.e., a partner in crime. A person who is a guilty associate in a crime or who has a relation to the criminal act that can be jointly indicated with the principal criminal is an accomplice. 
• The Supreme Court in R.K Dalmia v. Delhi Administration said that an accomplice is a person who takes part in the commission of a criminal act for which the accused is facing trial. He has to be a particeps criminis. However, there are two scenarios where a person can be held to be an accomplice, even when he is not. In cases where a person has received stolen property should be taken as an accomplice of the thieves who stole the property. 
• In Shanker v State of Tamil Nadu, the Court held that when an accomplice becomes an approver, he eventually becomes a prosecution witness. An approver’s evidence has to satisfy two tests. Firstly his evidence must be reliable, and secondly, his testimony should be sufficiently corroborated.

Whether a Witness is an Accomplice or Not?

In the case of Jaganath v. Emperor, it was said that an accomplice is a person who is a guilty associate or a partner in crime, or who in some way or the other is connected with the offence in question or some material fact supports that he was part of the crime. 

In C.M.Sharma v State of A.P, where a contractor who was forced to give bribe to a public servant on the promise of doing or forbearing to do an official act is held to be a partner in crime and guilty associate. To seek corroboration in all circumstances of the evidence of a witness forced to give a bribe may lead to absurd results as the bribe is not taken in public view, and therefore, there may not be any person who could see the giving and taking of a bribe. In this case, the evidence of the contractor was corroborated by his shadow witness who had accompanied the contractor. The submission of the appellant that the contractor should be treated as an accomplice was rejected. He was not an accomplice since money was extracted from him. In the same case, the Court stated that the corroboration of the evidence of a witness is required when his evidence is not trustworthy as of a witness admissible as an accomplice, even if he is not prosecuted and not granted a pardon. 

Competency of Accomplice Witness

When an accomplice is not a co-accused under trial in the same case,” an accomplice is a competent witness.” But this competency that has been given to him by the process of law does not relieve him of the character of an accused. No accused should be forced to be a witness against himself. But in case an accomplice is given a pardon, on the condition that he is speaking the truth, and is not acting under any pressure, and he is not forced to give self-incrimination as is the rule given in Article 20(3) of the Constitution of India, 1950. 

The law of evidence, as laid down in Sections 306 and 308, Code of Criminal Procedure, remains unaffected by this law. When an accomplice is pardoned, he is bound to make a complete and truthful disclosure. If he fails to do so, he would be tired of the charges levelled against him originally, and his statement would then be used against him under Section 308.

• In Haroon Haji Abdulla v State of Maharastra, the Court laid down that an accomplice is a competent witness and his evidence could be accepted and if the court feels that there is enough evidence to support the testimony of the accomplice then an conviction can be based on such a testimony.
• In Ravinder Singh v State of HKaryana, an approver is not the most unworthy friend, if at all and having bargained for his immunity, must be proved in the Court. This test is fulfilled, firstly, if the story given by the accomplice seems to be truly natural and probable according to material facts if given minute details are in accordance with reality and are likely to be true. Secondly, if it is established that the story is reliable, then the story must implicate him in such a manner as to give rise to a conclusion of guilt beyond a reasonable doubt.
• In rare cases, uncorroborated evidence of an approver can be held to be true and reliable by the Court after the Court has taken into consideration all the facts of circumstance and situations governing a particular case. 
• The general rule requires that an approver’s statement has to be corroborated in material, particularly binding the disclosure between the crime and criminal closely. 
• An approver giving minute details or necessary features appertaining directly to an accused if found to be reliable, by the presence of other independent, credible evidence, would make the testimony of the accomplice more credible. 

Categories of Accomplices

A person is an accomplice when he participates in the commission on the same crime. In Jagannath v Emperor the Court said that participation in crime could be done in multiple ways. There are two broad categories of modes of participation in crime, 

(1) Principals in the first degree or second degree, and

 (2) accessories before the fact, or

 (3) after the fact. 

Principals in the first and second degrees

One who actually commits the crime is a principal of first degree while a person who is just present and assists in the perpetration of the crime is a principal of the second degree. Undoubtedly under all the circumstances, these people are accomplices.

Accessories before the fact

When a person incites, counsels connives at, encourages or procures the commission of the crime becomes an accessory before the fact. These are those accomplices who counsel, incite, encourage or procure the commission of the crime. A person is an accessory before the fact if he participates in the preparation of the crime. They are not an accomplice. For a person to be accomplices, he must participate in the commission of the same crime as the accused person is charged with in the trial.

Accessories after the fact

A person is an accessory after the fact when a person with the knowledge that the accused has committed some crime receives him, comforts him or assists him to help escape from punishment a crime or helps him escape arrest, exercising his free will allowing him to escape, or opposes his arrest.

Three conditions must be fulfilled to establish that there was an accessory after the fact; 

(1) the crime must have been completed; 

(2) the person assisting the accused must have the knowledge that the accused committed a criminal act; 

(3) the actions of the accomplice must result in helping the accused escape or avoid consequences of the principal crime. 

Accomplice and Co-accused

• The confession of one of the co-accused cannot be used to corroborate the evidence of an accomplice against the others, because such a confession cannot be put on a higher footing than the evidence of an accomplice and is moreover not given on oath or subject to the test of cross-examination and is guaranteed by nothing except the peril into which it brings the speaker and which it is generally fashioned to lessen. Altered evidence is not made better by being corroborated by other tainted evidence. 
• Section 30 of the Indian Evidence Act says that the Court may consider the confession of co-accused as evidence. 
• It may be noted that the confession of the co-accused must implicate himself as well as some other accused. Further, the confessions made at the previous trial will not be relevant. When they are jointly tried, but for different offences, in those cases, confession is not relevant. Further, the confession should be a free confession. 

A confession by a co-accused cannot be treated in the same way as the testimony of an accomplice:

1. The confession of co-accused is not ‘evidence,’ as it is not given in the presence of the accused, nor is it not recorded on oath, and nor its truth can be subject to cross-examination. 
2. When the accomplice evidence is taken on oath and tested by cross-examination, a higher probative value is thus given to it. 
3. The basis of a conviction cannot be solely based on the confession of the co-accused. There is a need of corroboration of such evidence if such evidence is not corroborated and the court feels that confession of the co-accused is free and natural the court can consider it. A conviction cannot be termed illegal merely because it proceeds upon the corroborated testimony of an accomplice. 
4. The philosophy of Section 30 is that confession of a co-accused gives a degree of sanction to the truth of his confession against others or himself. 

Evidence of a co-accused is very weak evidence. The evidence of co-accused can be used only to corroborate other evidence on record if the confession affects himself as well as some other accused person. 

Accomplice and Approver

An accomplice may be an approver also. The approver is an accomplice who is tendered pardon by the Court on condition that he makes true and full disclosure of the whole circumstances of the case. Approver has been dealt with under the provisions of Section 306 of Cr.P.C. He is known under Cr.P.C as an accomplice to whom the Court grants a pardon. Thus, an “approver” is always an ‘accomplice,’ but an ‘accomplice’ is not necessarily an approver. Section 306 tenders pardon to an accomplice. The approver’s evidence is looked upon with great suspicion as he is some way concerned or associated in commission of the same crime. But if found trustworthy, it can be decisive in securing a conviction.

In the case of Chandan v State of Rajasthan, the evidence of a witness participating in a test identification parade but not examined at trial is not sufficient to corroborate evidence of accomplice approver. Therefore, the conviction was set aside.

In Ravindra Singh v State of Haryana, the Court said that an approver bargains his immunity so he must prove his credibility in Court. This rest is fulfilled,

• Firstly, if the story he relates involves him inthe crime and appears intrinsically to be a natural and probable catalog of events that had taken place. 
• Secondly, the story given by the approver so far as the accused on trial is concerned must implicate him in such manner as to give rise to a conclusion of guilt beyond a reasonable doubt. 

Accomplice and Sexual Crimes

In Rameshwar Kalyan Singh v. the State of Rajasthan the Supreme Court clearly laid down that, in a case of rape, the prosecutrix cannot be treated as an accomplice. The Evidence Act does not say that the evidence given by prosecutrix in a rape case needs to be corroborated. But, the courts have insisted on the need for corroboration of the evidence given by the prosecutrix as a matter of practice. It was further felt that it would be inherently dangerous and impossible to formulate what kind of evidence should or would be regarded as corroboration.

The nature and extent of corroboration must vary with facts and circumstances of every case and further according to the offence and particular circumstances of the offence committed. But the Court has laid down some guidelines in this regard:-

1. It is not compulsory that there should be independent confirmation of every material circumstance in the sense that independent evidence in the case, should in itself be sufficient to sustain a conviction, apart from the testimonies of the complainant or the accomplice. But it’s required that there must be some additional evidence that furnishes that the story of the accomplice or complainant can be held as truth and that it is reasonably safe to act upon it. 
2. The independent evidence must, in some way or the other reason, be able to connect or must tend to connect the accused with it by confirming in some material form the evidence given by the accomplice that the accused committed the crime. A piece of independent evidence cannot be the sole reason to believe that the crime has been committed.
3. Ordinarily, the testimony of one accomplice would not be sufficient to corroborate that of another; thus, the corroboration should come from independent sources. 
4. The corroboration does not have to be the direct evidence that crime has been committed by the accused. Mere circumstantial evidence of a connection with the crime is also sufficient. 

In the State of Madhya Pradesh v. Sheodayal Gurudayal, the Court laid down “a test to determine whether in a certain case, the testimony of the prosecutrix needed to be corroborated.” This test is whether there is genuineness in the story given to by the prosecutrix, if there is no doubt on the account given by the prosecutrix, then there is no need for corroboration. If there are doubts regarding its originality, the testimony will require corroboration. These principles laid down by the courts are to be viewed as guiding principles in the trial of rape cases, but these principles are flexible, depending on the facts and circumstances of the case.

Who is not an accomplice?

In some cases persons are not accomplice:-

• When a person, under threat of death or another form of pressure which he is unable to resist, commits a crime along with others, he is not a willing participant in it but a victim of such circumstances. 
• A person who merely witnesses a crime, and does not give information about it to anyone else out of terror, is not an accomplice.
• In Prakash Chand v State, the Court laid down that detectives, paid ‘informers,’ and ‘trap or decoy witnesses are not accomplices. A court may convict on the uncorroborated testimony of trap witnesses if the Court feels that there is truthfulness in testimony presented by the trap witness. 

As a general rule of an accomplice, it is for the judge to decide and to keep in mind the facts and circumstances of a case whether the testimony of a trap witness is reliable enough to act upon. Judge’s partiality towards prosecution can hardly be ignored. Judges can be helped by knowing the character, background, and the reputation of the witness to appreciate his evidence.

Evidentiary value of an Accomplice 

• When an accomplice makes a testimony, it is not seen as reliable evidence for a conviction, and it has to be verified with other material evidence; this is called corroboration.
• According to Black law’s dictionary, to corroborate means to strengthen, to make a statement or testimony more credible by confirming facts or evidence. Corroborative evidence, in a way, is a supplementary testimony to the already given evidence and tending to strengthen or confirm; additional evidence of a different character to the same point.
• Corroboration does not mean that there should be independent evidence of all facts which have been related by an accomplice. “Indeed, if it were required that the accomplice should be confirmed, every detail of crime evidence would not be essential in the case.” To count as corroboration, it is not enough that a piece of evidence merely supports that the accomplice is credible but must go a little further and implicate the accused. 

The corroboration of an accomplice is of two kinds:

1. The first one is that corroborating evidence which ensures that the approver is trustworthy; and
2. The second which arises for the conclusion to the corroboration in material particulars not only of the commission of a crime but also of the complicity of the other accused persons in the crime. 

Necessity of Corroboration

Corroboration is necessary; in fact, approver evidence has to satisfy the double test: 

• his evidence must be reliable; 
• his evidence should be materially corroborated. 

Every competent witness is not a reliable witness, and an approver has to satisfy the test of reliability before the question of corroboration of his evidence is considered by criminal courts.

Nature and Extent of Corroboration 

The nature and extent of corroboration of accomplice evidence vary in each case according to the facts and circumstances of the case; it is impossible to make a single rule for this subject. But the Court has laid down guiding principles in R v Baskerville. They are:-

1. Independent confirmation is not necessary in every case, with every detail of the crime committed, in the sense that the independent evidence in the case, apart from the testimony of the complainant or accomplice, should itself be sufficient to sustain conviction. All that is required is that there must be “some additional evidence rendering that the story of the accomplice (or the complainant) is true and that it is reasonably safe to act upon it.
2. It is necessary that there is a confirmation in the form of some material evidence that the crime has been committed and that it has been committed by the accused. The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect the accused with it.
3. One accomplice cannot corroborate the evidence of the other accomplice; corroboration has to be done independently; it is to be done with other material evidence. All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’s story that the accused was the one, or among those, who committed the offence.
4. The corroboration does have to be a direct one that the crime has been committed by the accused; it can be a circumstantial one too. There are two basic kinds of evidence that may be admitted in court – direct evidence and circumstantial evidence. Direct evidence does not require any reasoning or inference to arrive at the conclusion to be drawn from the evidence. 

Circumstantial evidence, also called indirect evidence, requires that an inference be made between the evidence and the conclusion to be drawn from it. Circumstantial evidence is often discussed as if it carries less weight than direct evidence.  Under the law – and in life – that is not necessarily true. Any piece of evidence, whether direct or circumstantial, must be evaluated in terms of whether the source of the evidence is reliable. Sometimes direct witnesses are also not a reliable one. While there are certainly differences between direct and circumstantial evidence, reliability is not necessarily one of them.

Appreciation of Accomplice Evidence- The Corroboration Issue

The Supreme Court in Sarwan Singh v. the State of Punjab laid down the law with respect to assessment and appreciation of accomplice evidence and also stated several principles and rules regarding corroboration of accomplice evidence. The Court stated the challenge of the credibility of evidence given by an approver had been presented before the Court many times. But it is not necessary to deal at length with what is the true legal position in this matter. Further, the Court said that an accomplice is a competent witness under the Indian Evidence Act.

Conclusion 

To attract Section 133 of The Evidence Act, 1872, a person must be an accomplice. An accomplice is a person who has taken part in the commission of the crime, along with another or others. If an accomplice is arrested and thereafter has been given a pardon, he is referred to as an approver. 

Under Section 133, the term accomplice includes trap witnesses and approvers as a competent witness. An accomplice can be considered a competent witness if he is not co-accused under trial in the same case. But such competency which has been given to him by the process of law does not relieve him of the character of an accused. 

There is no contrast between Section 133 and Section 114. There is no opposition between Section 133 and Section 114, illustration (b) because the illustration only says that the court ‘may’ presume certain state affairs. It does not put a hard and fast guideline. Section 133 lays down the rule of law. But a rule of prudence is laid down  Section 114, illustration (b). It does not suggest a conclusive presumption. Section 133 gives an authorization to the courts to convict the accused on the corroborated testimony of an accomplice, but since the witness is himself involved in a criminal act, he may not be trustworthy.

When the Court feels that testimony of the accomplice may not be trustworthy then that the courts are guided by the principle laid down in Section 114 that if the Court finds it necessary, it can presume that the testimony given by the accomplice is unreliable unless his statements are supported or verified by some independent evidence. This rule of prudence has now come to be accepted as the rule of law by judicial legislation both in Indian and English law.

Corroboration is necessary in case of testimony of an accomplice. The nature and extent of corroboration of accomplice evidence may necessarily vary with the circumstances of each case. 

References 

https://indiankanoon.org/doc/1953529/

https://indiankanoon.org/doc/445276/

Books: Batuk Lal, The Law of Evidence (27thEdition)

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

The post Why is Evidence given by an Accomplice not Trustworthy? appeared first on iPleaders.

This article is written by Suman Chatterjee, Team LawSikho.

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But I am curious, what would your in-house legal team would have to say about this awesome gift from you?

Waiting to hear back from you.

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This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) in School of law, SASTRA. This article deals with the various provisions related to public documents and presumption as to documents under the Indian Evidence Act.

Introduction

The evidence in criminal cases plays an important role in deciding the case and to bring out justice. The Indian Evidence Act accepts two forms of evidence, documentary evidence and oral evidence. According to the Indian Evidence Act, the documents which are produced for the inspection of the court are called documentary evidence. The documentary evidence is of great help and they are very reliable during the process of investigation. The documents are mainly of two types: private document and public document. This article would deal with the presumption as to the documents and their evidential value.

Public Documents

The interpretation clause of the Indian evidence act defines the term document. According to Section 3 of the Indian Evidence Act, document means any matter expressed or described upon any substance and it can be in various means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording particular information or matter. There are various examples given for documents in the act like map, plan, caricature and letters. Any words which are printed and lithographed are considered to be documents according to the Indian Evidence Act. Section 74 of the Indian evidence act provides the definition of the term Public document. According to this Section, the following documents are considered public documents:

• The documents forming the acts or records of acts of sovereign authority;
• The documents forming the acts or records of acts of official bodies and tribunals;
• The documents forming the acts or records of acts of various officers like public officers, legislative, judicial officers and executive working in any part of India;
• The public records which are kept in the state of private documents also come under this category.

Every other document which does not come under the above-mentioned category is considered as private documents according to Section 75 of the Indian Evidence Act. Section 76 of the Indian Evidence Act provides the power to public officers to provide certified copies of public documents when it is necessary and when the person has the right to demand copies and ask for the copy of the document. 

Presumption as to Documents

Section 79 to Section 90 of the Indian Evidence Act provides various presumptions as to the documents. There are certain presumptions regarding the documentary evidence in this act. According to the Indian Evidence Act, the presumption is of two types. There are certain cases in which the Court “shall presume” and in certain cases, it “may presume”. The terms are defined in Section 4 of the IEA. According to this Section, 

• “May presume” means whenever it is mentioned by this Act that the Court may presume a fact, it may either consider such fact as proved, unless and until it is disproved or may call for proof of it.
• “Shall presume” means whenever it is mentioned in this Act that the Court shall presume a fact, it shall consider such fact as proved, unless and until it is disproved.

Presumption as to the Genuineness of Certified Copies

The certified copies are the copies of public documents that are provided by the authorized officer when it is necessary for inspection. Section 79 of the Indian Evidence Act provides the presumption as to the genuineness of these certified copies. According to this Section, the court presumes the certified copy to be genuine when it comes with a valid certificate. The court also presumes that the officer who has signed the documents holds the official character of the designation mentioned in the certificate. The certified copy of the public document must contain a certificate which is provided by the authorized officer that has to mention that it is the true copy of the document and the officer has to sign the certificate with their name and they also have to mention the date and designation. The certificate should also be sealed whenever it is necessary by the authorized officer.

Presumption as to Documents produced as Records of Evidence

Section 80 of the Indian Evidence Act provides the various presumptions regarding the documents which are provided as evidence.  The Court presumes that the documents which are produced for inspection are genuine. The court also presumes that any statements as to the circumstances under which it was taken, considered to be made by the person signing it, are true and that such evidence, statement or confession was duly taken by following all the procedures. The documents provided for inspection can be a record or memorandum of the evidence that is provided by a witness during the judicial proceeding before the officer authorized by law to take evidence or it can be a statement or confession that is provided by any prisoner or person who is accused, which taken in accordance with the law and the confession must be signed by the magistrate or any other officer authorized by law.

Presumption as to Gazettes, Newspapers, Private Acts of the Parliament and other Documents

Section 81 of the Indian Evidence Act deals with the presumption regarding Gazettes, newspapers, private Acts of the Parliament. The court presumes the following documents to be genuine, according to this Section:

• The document professed to be the London Gazette, or any Official Gazette, or the Government Gazette of any colony;
• The documents which are a dependency of possession of the British Crown;
• Newspaper or journal;
• Copy of a private Act of Parliament of the United Kingdom which is printed by the Queen’s Printer.

The documents must be kept in the substantial form mentioned in the law and also it must be produced from proper custody. The Court also presumes the Official gazettes kept in the electronic form is genuine if it is kept in the substantial form mentioned in the law.

Presumption as to Maps and Plans made by Government authorities

The maps and plans are also a recognized type of documentary evidence. Section 83 of the Indian Evidence Act provides the various presumptions regarding maps and plans made by the authorities of the government. According to this Section, the maps and plans are presumed to be genuine and accurate if it is made by the authority of the Central or State government. 

Presumption as to a Collection of Laws and Reports

Section 84 of the Indian Evidence Act provides various presumptions regarding the laws and reports. According to this Section, the court presumes every book which contains laws and reports of the decisions of the Courts of the country to be genuine if the book is printed or published by the authority of the government.

Presumption as to the Power-of-Attorney

Section 85 of the Evidence Act provides various presumptions regarding the power of attorney. According to this Section, the court shall presume that every document that is considered to be the power of attorney, and that is executed before the authorized officer or Notary Public or any court or before any Magistrate is executed and authenticated.

Presumption as to Books, Maps and Charts

Section 87 of the Indian Evidence Act provides various presumptions regarding the books, maps and charts. The Court presumes that any book which contains any information which contains matters of public or general interest, or any published chart that are in relation with the case or any statements that contain relevant facts which are produced for inspection is written and published by the person mentioned in the book. The court also presumes that the time and place of publication which is mentioned in the book or chart to be true.

Presumption as to Telegraphic Messages

Section 88 provides various presumptions regarding the telegraphic messages. According to the Section, the court presumes “that telegraphic messages to be that a message, which is forwarded from a telegraph office to the person to whom such message which claims to be addressed, is in relation with a message that is delivered for transmission at the office from which the message purports to be sent”. The Section also mentions that the Court does not make any presumption regarding the person by whom such a message was delivered for transmission. The Section is not of any use now as the telegraph services have been stopped by the Indian Government

Presumption as to Electronic Messages

This is a very important Section as a lot of information are transferred in the electronic form in the modern days. Section 88A of the Indian Evidence Act provides various presumptions regarding electronic messages. According to this Section, the Court presumes that an electronic message, which is forwarded by the originator by means of an electronic mail server to the addressee to whom the message claims to be addressed corresponds with the message as fed into his computer for transmission. According to the Section, the terms “addressee” and “originator” has the same meaning as mentioned in the clauses (b) and (za) of sub-section (1) of Section 2 Information Technology Act,2000”.

Presumption as to due Execution of Documents not Produced

Section 89 of the Indian Evidence Act provides various presumptions regarding the due execution of documents not produced. The Court presumes that every document that is called for inspection and the documents are not produced even after the notice period, it is presumed that the documents are attested, stamped and executed in the manner which is prescribed by law.

Presumption as to Documents Thirty years old

Section 90 of the Indian Evidence Act deals with the presumption as to documents that are thirty years old. The Court presumes that any document which is produced for investigation is from proper custody and the signature corresponds to the signature of the person whose custody the document was in. The Court also presumes that any handwriting in the document is the handwriting of the person who has the custody of the document. It is also presumed by the Court that in case if the document attested or executed, that it was duly executed and attested by the persons by whom it professes to be executed and attested. The term proper custody means that the document is with the care of the person and in a place where it would naturally be. For example, ‘A’ has been in possession of a certain property for a long time. He produces from his custody deeds the various documents relating to the land showing his titles to it and the custody is held to be proper.

Presumption as to the Electronic Record of Five years old

Section 90A of the Indian Evidence Act provides the various presumptions regarding electronic records of five years old. According to this Section, the Court presumes that when any electronic record that is above five years old and it is procured from the proper custody for investigation. It is presumed that the digital signature corresponds to the particular person whose custody the record is or the signature belongs to the person who has authorized it.  The term proper custody means that the electronic record is with the care of the person and in a place where it would naturally be. It is also mentioned in the Section that no custody is improper if it is proved that the custody is of legitimate origin in the particular case to render such origin possible.

Conclusion

The Sections regarding presumptions is a very important part of the Indian Evidence Act as they help in the investigation. The presumptions make the investigation easier and fast. The Court has to follow all the presumptions and it can only change its notion on presumptions only when it is necessary. The documents have a lot of evidentiary value and it is important to investigate them properly and also save the Court’s valuable time at the same time. Thus the presumptions regarding the documents is a very essential part of the Indian Evidence Act.

References

• https://indiacode.nic.in/bitstream/123456789/6819/1/indian_evidence_act_1872.pdf

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

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This article is written by Anubhab Banerjee.

The internet is one of the most amazing products of technological development. The advent of the Internet has helped boost communication and connectivity throughout the globe and has hence helped further the idea of globalisation. Rise of the Internet and its constant use in our regular lives have led us to a stage where several commercial and social transactions are performed over the Internet. A lot of these transactions are commenced over the various e-commerce and m-commerce platforms available to us today. Such transactions being performed over the internet have given rise to the concept of e-contracts and accordingly, there are several legal implications attached to it. The presumption of such electronic agreements/e-contracts through the eyes of the Indian Courts concerning their admissibility under the Indian Evidence Act, 1872 has been discussed in this article.

What is e-commerce and m-commerce?

E-Commerce

The term e-commercial is used to define commercial transactions which take place over the Internet through an electronic medium. The buying and selling of goods and services at different online platforms and websites is termed as e-commerce. E-commerce includes the transfer of money and data to carry out the buying and selling of goods available online on such e-commerce websites. Some examples of such e-commerce platforms are Amazon, Flipkart, Snapdeal, etc. 

M-Commerce

The term m-commercial can be said to be a form of e-commerce itself. Though it is a process in which e-commerce transactions i.e. buying and selling of goods online over a platform is done through a portable wireless device such as a Mobile phone, tablet, etc. The only difference between-commerce and m-commerce is that e-commerce is done over a wired device such as a desktop which is fixed at one place and is not easy to carry, while in the case of m-commerce such is done through a portable and wireless device which can be carried by a performer anywhere. Some examples of m-commerce transactions can be the ones which are done through the android or ios applications of the different e-commerce companies such as Amazon, Flipkart, Snapdeal, etc.

What are e-contracts?

The Indian Contract Act, 1872 defines a contract to be a lawful agreement between two parties for buying and selling of goods and services between them for a valid consideration and such an agreement should be entered into by the free consent of both the parties. An e-contract is nothing but an electronic version of such contracts where both the parties agree for the buying, selling or use of certain goods and services which are available over the internet. These e-contracts are mostly used by the e-commerce and m-commerce platforms available online.

The Information Technology Act, 2008 under Section 10 defines e-contracts to be contracts which are formed as a result of communication of proposal, acceptance, counter proposals and acceptances, for performing a particular transaction through digital means. 

Digital Signature

The consent of the parties to an e-contract can be recognised with the help of the digital signatures which should be present on behalf of the parties in these contracts. A digital signature is a code which is attached to every document online to verify the contents of a document and for recognition of the senders’ identity. The digital signature help identify the evidentiary value of an e-contract as the digital signature becomes a proof of consent given by the parties entering an e-contract. Section 67A of the Indian Evidence Act considers the attachment of a digital signature to an e-contract as enough proof for consent, though such needs to be proved if such digital signature is alleged to be affixed without consent. 

Types of e-contracts

E-contracts are categorised under two broad categories namely:

• E-contracts which are formed by way of emails. 

These are the agreements in which consent of the parties is recorded with the help of the communication between them through emails. These types of communications are usually done through a single or a series of emails which can be considered sufficient to prove that considerations had been made for an e-contract, between the parties to such an e-contract. It was in the case of Trimex International FZE Vs Vedanta Aluminium Limited that the Indian Courts recognised the use of e-contracts for the first time.

• E-contracts which are formed through online agreements.

Online agreements are of three types, namely:

1. Browse wrap agreements which are the ones a party enters into by the use of a website.
2. Shrink Wrap Agreements are the ones which parties agree to to use a software which such users buy.
3. Click Wrap Agreements are the ones which are entered into by the parties by clicking on the ‘I Agree” option while surfing the internet.

Can e-contracts be valid evidence by the Indian Courts?

Contacts are considered as admissible evidence in the Indian Courts. The question which arises here is whether the same provisions which apply with regards to the admission of a normal contract are applicable for e-contracts as well? It is answered by Section 92 of the Information Technology Act itself. It is Section 17 of the Indian Evidence Act which deals with admissions and section 17 itself defines admission to be a statement whether oral or documentary or contained in electronic form, which has any kind of inference with any relevant fact of a case. 

It is Section 65A of the Indian Evidence Act that is used by the courts in India to recognise e-contracts as valid evidence. Section 65A of the Indian Evidence Act, says that electronic records can be proved at the court of law by way of complying with the provisions of Section 65B of the Indian Evidence Act. Section 65B deals with the provisions with regards to the admissibility of documents as evidence under the Indian Evidence Act.

Affixing a digital signature to an e-contract is valid proof of consent under the Indian Contract Act, 1872. Such an e-contract with a genuine digital signature attached to it can be admissible evidence under the Indian Evidence Act, 1872. The Indian Evidence Act under section 73A talks about the validity and genuineness of such digital signatures. The section also tells us about the production of a ‘Digital Signature Certificate’ in front of the court in case any doubt arises with regards to the affixed digital signature to an e-contract.

Thus, we can see that e-contracts have valid evidentiary value under the eyes of the Indian Courts under Section 65A of the Indian Evidence Act. Though, the presumption of the Indian courts with regards to e-contracts under the Indian Evidence Act is also important to consider. To get well accustomed with the evidentiary value of e-contracts concerning the Indian Evidence Act, we need to consider the following provisions\sections of the Indian Evidence Act, 1872:

Section 85A

This section specifically talks about the presumptions of the courts in India with regards to electronic agreements and says that the courts shall presume that every available electronic recording which has an electronic signature affixed to it shall be considered to have a valid evidentiary value under the Indian Evidence Act and in the eyes of the courts in India. Though there are a few restrictions on such presumptions which shall be discussed in the following sections.

Section 85B

This section tells us that the court shall presume that the e-contract or documents which are being presented in front of the court have not been tampered with i.e. they are presented in their original form without anyone making any alterations in it, in case it has been proved that such records have been tampered with. The secure status of such information shall be required to be maintained until a specific time. The section also tells us that once a digital signature is affixed to an agreement available online, such shall be presumed by the courts to be an acceptance of such agreements.

Section 85C

This section tells us that if a digital signature is affixed to a particular document then the court shall presume that such document is true and correct.

Section 88A 

The very purpose of this section is to define the terms ‘addressee’ and ‘originator concerning an e-contract. It mainly talks about the power of the court with regards to presumption of the addressee of an electronic communication. The section says that the courts shall presume the ‘addressee’ to be a person to such electronic communication has been directed by the ‘originator’. Though, as per this section, the court does not have any power with regards to the presumption of who the ‘originator’ of the thread of electronic communication is.

Section 90A

This section helps the courts deal with a record which is more than 5 years old. In the eyes of the court and the Indian Evidence Act, if such a record is in proper custody then the court shall presume that the digital signature has been affixed with such document to authenticate its validity.

Section 65B

This section helps us understand the provisions under which an e-contract shall be admissible as evidence in front of a court in India. It says that any information which is recorded through an electronic medium and is available as on a printed paper, stored or copied in optical or magnetic media produced by a computer shall be admissible as an evidence if it satisfies the conditions provided in this section. The conditions set forth under section 65B of the Indian Evidence Act, are as follows:

• The computer output i.e. the electronic information produced as evidence should be from the computer which has been regularly used to process or store such digital information for any activity and such activities are expected to be performed by a person who has lawful control over the use of the computer.
• During the concerned period, the relevant information should have been regularly fed to the computer in the ordinary course of such activities.
• In case the concerned computer was not working properly during the period, it should be notified that such non-functionality did not in any way affect the electronic record or the accuracy of its contents.
• The reproduction of such digital information or the derivations associated with the information should have been fed into the computer during the regular conduct of associated activities.

The section tells us that any such evidence which is provided to the court in the form of e-contract shall be accompanied with a certificate. Such a certificate shall be a confirmation by the person occupying the legally responsible position for processing the information, with regards to fulfilling all the conditions specified under Section 65B of the Indian Evidence Act, 1872. Such a person shall be the one who is responsible for operating the computer which processed all the information related to the concerned activity.

Conclusion

The conduct of commercial and social transactions through e-contracts has had a revolutionary impact on our society. The Indian Evidence Act, 1872 values e-contracts in the same way as it does for written or verbal contracts. The Indian Evidence Act and its relevant provisions help us understand the aspects with regards to the admissibility of electronic contracts in the purview of the India courts. The Indian evidence act also helps us understand the extent of presumptions which can be made by the courts in India under the act concerning evidence recorded by the means of an electronic medium.

The presumptions with regards to certain provisions concerning e-contracts under the Indian Evidence Act, 1872 have been left open for interpretation by the Courts. With the growth in internet-related activities through digital mediums, more precise regulations with regards to e-contracts would be required. As keeping such provisions open for varied interpretations may lead to confusion amongst the members of the legal fraternity while dealing with matters related to processing and admissibility of e-contracts. Though over the period the Indian Legal Regime has adapted itself to deal with technological advancements. There is a lot of scope for improvements in the processes of dealing with e-contracts under Indian law.

The post Presumption as to Electronic Agreements under the Indian Evidence Act, 1872 appeared first on iPleaders.

This article has been written by Vishesh Gupta, a student pursuing B.COM.LLB from Institute of Law, Nirma University, Ahmedabad.

Introduction

Pacta sunt servanda which means agreement must be kept, is the basic and most essential principle of civil law. Every agreement creates an obligation on the parties and non fulfilment of such obligations is justiciable in a court of law. 

However, this principle is not absolute as sometimes it becomes impossible for the parties to fulfil their obligation because of some extraneous forces which are uncontrollable and unpredictable. These extraneous forces are known as the Act of God (Vis Major). 

In Western & Atlantic Railroad v. Hassler, the Court explained that the Act of God is a catastrophe arising from the force of the elements which human intelligence cannot predict nor the ingenuity of man can foretell. The incident must be overwhelming and not merely an ordinary circumstance.

Rylands Vs Fletcher, a landmark judgement in which the concept of strict liability was devised, established 3 essential criteria in order to consider any act as the Act of God. These were:

1. The event must have been a result of some natural cause which is without any human intervention.
2. The event should be unforeseeable as no human could have predicted it. 
3. The damage caused must be in direct relation to the unforeseeable event.

Before proceeding further, it is important to clarify that the Act of God (Vis Major) and Force Majeure should not be used interchangeably. The Act of God includes all inevitable accidents caused by nature and which are not connected or related with agency of man whereas Force Majeure is a broader concept where the accident is not necessarily connected with nature and can be connected to human agency. War is the most apropos example of Force Majeure which is not an act of God. 

Act of God is mentioned in various fields of law. These are:

Commercial Laws

Indian Contract Act, 1872 provides for the provision of the Act of God in the form of impossibility to perform a contract. Sec 32 and 56 of the Act states that when any obligation arising out of a contract is impossible to perform, then the contract becomes void. This is known as frustration of contract where the parties to the contract are unable to perform their duties because of factors which are not controllable or foreseeable by the parties. 

Almost every contract including that of insurance, the parties include the provision of Force Majeure. In most of the cases, it is used for exempting the liability of the parties. In case of contract of insurance, Force Majeure clause is used to exempt the insurer/insurance company from paying damages of insured goods. 

Torts

Act of God can be placed in an inevitable accident which is one of the major defenses for any tort. The term “inevitable accident” means accidents which occur out of nowhere and in the absence of human error. But it is pertinent to note that not all inevitable accidents can be termed as an Act of God. The court in Forward Vs Pittard classified inevitable accidents in 2 classes, first, those incidents which are occasioned by nature and not connected to humans and second, incidents directly or indirectly caused by humans. 

In cases of carriers of good, they have the absolute liability of preserving and delivering the goods except in cases of the Act of God. 

But in tort law, sometimes a defendant might be held liable even if they prove the existence of the Act of God. This happens in the case of absolute liability which was derived by the Supreme Court in the case of M.C. Mehta Vs Union of India, 1987. In cases of absolute liability, the mens rea of the accused is not factored for determining liability and no exceptions including Act of God are applicable. All the exceptions that are available in strict liability are not applicable in cases of absolute liability.

Indian Statutes 

The Railway Act, 1989

Sec 93– This provision provides exemption to the railway administration from liability when there is any loss, destruction, damage or deterioration in transit, or non-delivery of any consignment due to Act of God.

Sec 111– This provision provides exemption to the railway administration from liability when there is an accident at sea due to Act of God.

The Mines Act, 1952

Sec 38- Provides the employer to employee miners in contravention to Sec 28, 30, 31 of the Mines Act in case of Act of God to protect the safety of the mine or of the persons employed therein. 

International Conventions

United Nations Convention on Contracts for the International Sale of Goods, 1988 

It is a multilateral treaty that has established a uniform framework for international commerce. It is ratified by 93 countries and signed by 18 countries. 

Article 79(1)- Any party is not liable for failure to perform any obligation if he/she can prove that reason for failure of performance was due to an impediment beyond his/her control and that he/she could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract. 

Negligence and Act of God

An act of god is an accident which is not reasonably foreseeable and is not controllable. Any damage caused or any non fulfilment directly because of Act of God cannot create liability on the parties to a contract. Negligence is the breach of an obligation or a responsibility to act with care towards or, it is the failure to act as a reasonable and prudent person would act under the similar circumstances. 

While determining the liability in cases where the defendant pleads for the defense of Act of God, the point of determination is whether the damage is directly or indirectly caused by Act of God and whether there was any negligence on the part of the defendant or whether the defendant failed to exercise reasonable precautions for avoiding damages. Because if damage caused involves some contribution of the negligence of the defendant, he will be liable for his negligence. Before an act of God is granted as a defense the defendant has to prove himself to have done everything that a reasonable and a prudent person could do in such a scenario. 

Whether Covid-19 comes under the Act of God or Force Majeur 

The recent outbreak of novel coronavirus also known as Covid-19 has put the world in a state of lockdown. A virus which originated from China’s city, Wuhan, has now spread across the world. No vaccine has yet been developed and the World Health Organization has declared it a Pandemic. The cases of infection are rapidly increasing day by day. Because of this, multiple governments have declared lockdown. India implemented “Janta Curfew” on 22nd March, 2020 to prevent the spreading of disease. Shops, start-up businesses are either closed or the people are working from home. Corona Virus has had a significant impact on the world economy, trade and stock markets. It is to be noted that people bound in contractual obligations would not be able to perform it.

Covid-19 has led to a shortage of raw material, has hit consumption and significantly impacted pre-agreed deadlines, leading to a situation where firms are now exploring various routes to cancel contracts. So, the pertinent question is whether this pandemic or any other pandemic is covered under Act of God or Force Majeure. For a pandemic to be included in Act of God, it has to be proved that the pandemic has originated from nature without any human intervention. virologists who studied coronavirus have stated in The Lancet, a peer reviewed journal, that they have enough evidence the virus came from nature and also that the virus originated in wildlife. But still there are conflicting views related to the origin of the virus as some claim it to be man-made. 

Secondly, foreseeability is an important ingredient to enforce Act of God in a court. Specifically talking about CoronaVirus, few doctors in China speculated about a deadly virus before it became a pandemic. But nothing is written in black and white in cases of pandemic. Therefore, pandemic should not be hastily put under Act of God. But pandemic could be categorized under Force Majeure. 

In China, the legislative body and the judiciary has effectively categorized Corona Pandemic under Force Majeure. The China Council for the Promotion of International Trade issued over 1,600 ‘force majeure certificates’ to Chinese companies in February. The Hubei Provincial High Court advised its lower courts that COVID 19 (and, importantly, related governmental measures) constitute force majeure.

In India, multiple firms are looking for ways to exit contracts after the covid-19 because the Covid-19 outbreak has affected the supply chains that start from or go through China. 

Relevant Case Laws

Indian Cases

Chidambarakrishna Iyer Nataraja Iyer vs. South India Rly. Co: Not every inevitable accident is Act of God. Act of God only includes those acts which can be traced back to natural causes.

Dharnrajmal Gobindram v. Shamji Kalidas:  The Supreme Court of India held that if in a contract, the clause of Force Majeure is not defined then the contract can be deemed void.

Smt. Inacia P. Carvalho v Desk To Desk Courier and Cargo Limited: This case is a landmark judgement in the jurisprudence of Force Majeure principle as the court in this case included professionalism as an exception to force majeure basically with the incident which from the viewpoint of the defendant of the case made the obligation vested on him by contract unable to perform. The hon’ble court concluded that professionalism has certain specialties regarding the purpose or service for which the person/firm was hired and his/her professionalism should understand the seriousness of the task taken, its urgency and importance then only should carry forward the work on another day and mere excuse of a public holiday or strike which was foreseen by him and he can perform that duty and obligation by doing it before that event, can’t absolve his duties and liabilities.

Foreign Cases

Railroad Company v. Reeves:  If no human care, skill, and prudence could have avoided the injury, then such injury would be occasioned by the ‘Act of God’. But if it is believed that the act of the defendant caused damage rather than saving it, Act of God cannot be invoked. 

Lebeaupin v Richard Crispin & Co: Force Majeure is not merely a French version of “vis major” and is wider than it. Force Majeure includes strikes, breakdown of machinery, which, though normally not included in “vis major”. Judges emphasized on the subjectivity of the clause and the discretion of the court to decide whether a situation will be in force majeure or not for that case.

Conclusion

The concept of Act of God as an exception in legal statutes is based on the reasoning that a person should not be liable for an act in which he has no fault. Even though Act of God exception doesn’t apply in the cases of absolute liability, it’s essential ingredients are such that a person has the highest degree of responsibility to contain the dangerous and harmful substance which is detrimental to society. Escape of such substance directly implies negligence on the part of the person. Act of god as a defense is evolving every day and it has become a very common defense for the respondents to escape the liability. The courts should apply this defense carefully and the burden of proof, which is on the respondent, has to be of the highest degree. The biggest consideration for the court is to determine that the damage or loss caused is because of an act of god. A party to a contract cannot take the defense of Act of God when his own negligence is involved. 

Act of god is a very important defense because it saves a person from unnecessary liability in which he has no fault. This principle works in the interest of a distressed party who has faced losses, both physically and mentally and are being tried in a court of law when they have not committed any wrong. 

The post A saviour in times of distress: Analysis of Act of God provisions in law appeared first on iPleaders.

This article has been written by Parul Chaturvedi pursuing LLB from DR. RML law college affiliated to Bangalore and Karnataka State Law University (KSLU) Bangalore.

Introduction 

The Sales of Goods Act, 1930 considers the fundamental standards of contract and makes a clear scrutiny of commercial transactions. Thus, the common regulations applicable to contracts are additionally relevant to contracts of sale of goods and in some distance as they are now non contradictory with the categorical provisions of the Sale of Goods Act. The sale of goods dates to long back when it used to be found by:

Williston that the: “Sale of goods is an agreement wherein the seller transfers the property in goods to the buyer for a price”. 

In Roman law, “Sale” is slated to be “an agreement whereby one individual agrees to transfer to another the absolute ownership of something for consideration”. 

Benjamin said, “to constitute a valid sale, there need to be a concurrence of following the factors in which the Parties are ready to contract with mutual consent, A thing, absolute or usual in which the property is transferred from the seller to the buyer. 

With a view to construct a sale, it is essential that an agreement between the parties for the transferring of title of goods, is presume to be in the scope of the parties to the contract with a valid support of money consideration and actual transfer of the property in the goods within a transaction. 

Agreement of Offer of Goods 

Section 4(1) of the Indian Sale of Goods Act, 1930 describes the agreement of offer of goods in the consecutive aspect: “A agreement of offer of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.” 

According to Sec 5(1), agreement of offer can also grant for Immediate delivery of the goods, or Delivery of goods at some future time or delivery of goods through installments. There may additionally be Immediate payment of price or Payment of price in may provide for future or Payment of price may be provided to be made in installment.

Sec 5(2) provides that, an agreement of an offer might be made in writing or made by means of word of mouth (oral) or made partly in writing and partly through word of mouth or Implied from the conduct of the parties.

Goods sold off or bought on the counter in a shop is an instance of absolute sale 

In a conditional contract of sale, the property in the goods doesn’t go to the buyer promptly yet it will be transferred to fulfill the contentment of specific conditions.

The terms ‘contract or agreement of offer’ is a general term and it incorporates a deal and a consent to sell. Where the seller assigned the proprietorship rights to the buyer instantly on making the agreement, it is an ‘agreement of offeror an offer.’ when the possession rights are assigned on some future date depending upon the satisfaction of certain conditions, then it is called ‘an agreement to sell’.

Fundamentals of contract or an agreement of an offer 

1.  A contract 
2. Between two parties (i.e. the buyer and the seller) 
3. To transfer or agree to transfer 
4. The property in goods 
5. From the seller to the buyer 
6. For a price (i.e. money consideration) 

• A contract– A agreement of an offer is a special type of agreement. It is called a Consensual, Bilateral and Commutative contract. 

1. Consensual contract– The contract implies an agreement enforceable by law. Therefore, all the fundamental elements of a valid contract must be present in a contract of sale. There must be free consent, there must be some consideration and the object must be legitimate. 
2. Bilateral contract– The property in goods needs to transfer from one person to another i.e. the seller and buyer must be persons. 
3. Commutative contract– Is one in which the things given, or act done by one party are regarded as equivalent to money paid or act done by the other. 
4. Contract of insurance– In which the equivalent consists of the chances of gain or loss to the respective parties depending upon uncertain events. 

Case Law: In re Graff v Evan- In this case the defendant was the manager of a club. The club was unauthorized for auction of liquors, inspite these it was provided by the manager to the individual members at the assigned cost. This was held to be not a sale deal but allocation of liquor.

• Two Parties: To create a legitimate agreement of offer, there must be two party’s dealer and purchaser. The dealer and purchaser must be two distinct persons because an individual can’t purchase his own goods.

Case Law in State of Gujarat v. RamanLal & Company- On disintegration of an association firm, the assets of the firm were divided among the associated partners, the Sales Tax Officer needed to impose this tax transaction. It was discovered that it was not a deal anymore. The accomplices being the joint proprietors of those assets cannot be both dealers and purchasers. In any case a part-proprietor can sell his share to another part-proprietor.

• Transfer of property- To represent a legitimate sale, it is important that the vendor should transfer or consent to transfer the property in goods to the consumer. Section 2(11) of the Act characterizes the property to mean “the general property in goods, and not merely an exclusive property”. 

Case Law in Elects B Merril v. James W Hordson- It was held that the delivery of food or drink to customers did not partake of the character of an offer of goods. 

•  Goods According to Sec. 2(7), “ ‘Goods’ means each kind of movable assets other than actionable claims and money and consists of stocks and shares, growing crops, grass and things connected to or farming part of land which are agreed to be severed before sale or under the agreement of offer.” Trademarks, copyrights, patent rights, goodwill, electricity, water, gas are all goods. Money, actionable claims and immovable property are not included in the sale offer in the prescribed meaning of Section 2(7) of the Act.

Case Law In re Associated Hotel of India Ltd the Supreme Court held that there is no deal when food and drinks are offered to guests in the hotel.  In Northern India Caterers v. Lt Governor of Delhi, it was found that the foods provided to the visitors in the club cannot be called a sale deal.

According to Sec 6 of the Act: (1) The goods, which structure the subject of an agreement of an offer can be either existing goods, owned or possessed by the vendors, or future goods.

Characterization of Goods according to Sec 6 Goods, which form subject matter of an agreement of an offer for an existing goods which are possessed by the vendor or Possessed by the seller the future goods or Contingent goods. Thus, goods may be classified into various types as shown below: 

• Conditions
• Warranties

Price- Implies the cost concerned for a sale of the goods as per [Sec. 2(10)]. It is a must for an agreement of an offer or an agreement to sell. Price defines a cost in transaction and is payable in terms of money. 

Illustration: A consents to trade with B 100 quarter of grain at £ 2 for per quarter for 52 bullocks esteemed at 6 for every bullock and pay the difference in cash. It was held that the agreement was an agreement of offer. Consequently, a transaction will be an agreement of offer regardless of whether it is called by some other deal given there is a transfer of property at a cost.

Stipulation 

‘Stipulation’ signifies “a requirement or a particularized goods in an agreement”. 

In an agreement of offer of goods, stipulation alludes to portrayals made by the purchaser and the vendor correspondingly as a piece of negotiation between them before they go into a contract or an agreement. 

If no portrayals or stipulations the principle of caveat emptor implies i.e. ‘let the buyer beware’. 

Types of stipulations

• condition,   
• warranty. 

A stipulation is a condition which is important for the contract. A stipulation is a warranty if it is collateral to the main intent of the contract. 

Stipulation as to Time 

As per Section 11, stipulations as to time of installment are not regarded to be the pith of an agreement of an offer. 

Case Law in Aron & Co. v Comptoir Wegmont

There was an offer of sale of goods c.i.f. Antwerp to be shipped in October. The vendor was not to reject delivery even if there was any difference in the type or value or grade specified. The goods couldn’t be transported till November by virtue of strike at the port. It was held that the purchaser could decline to take delivery of the goods.

Condition and Warranty 

A stipulation in an agreement of offer could also be either a condition or a warranty. 

Definition of Condition According to Section 12 (2) of the Act, 

“A condition is a stipulation important to the main intent for the agreement, the breach of which offers ascend to one side to regard the agreement as denied.

 Definition of Warranty According to Section 12 (3) of the Act, 

“A warranty is a stipulation collateral to the main intent for the agreement the breach of which offers ascend to guarantee for harms yet not an option to dismiss goods and treat the agreement as denied.” Section 12 (4) has laid down that, “Whether a stipulation depends on an agreement of offer is a condition or a warranty.

Case Law

In Baldry v Marshall, 

A consulted a car seller for the acquisition of a car appropriate for touring purposes. The vendor sold a car saying that it will deliver the needs of a buyer. The car ended up being unfit for touring purposes. It was held that the purchaser can restore the car and get back the cost as well as damages, on the ground of breach of condition. In this case, the contract will not be void if the purchaser demands for a good car.

Distinction Between Condition and Warranty

When a condition should to be treated as warranty

Section 13 of the Sale of Goods Act lays down the subsequent two conditions 

Waiver by buyer 

Where an agreement of offer is subject to any condition to be fulfilled by the vendor, the purchaser may: 

1. waive the condition; or 
2. elect to treat the breach of the condition as a breach of warranty. 

Under section 3, the performance of a condition or a warranty is excused in the accompanying cases: 

Refusal to simply accept performance

The buyer is entitled to accomplishment of a deal contract. 

To acknowledge the performance, the buyer makes the contentment of the contract futile. In case if he waives the condition, later he cannot insist on its fulfillment.

Hindrance of performance 

According to Sec 53 of the Contract Act, when one party to the agreement is obviated from performing his duty under the agreement by the other party then the contract becomes voidable and such a party may claim damages for any loss sustained due to the non-performance of the contract.

Disabled himself from performing

Where the completion of the agreement becomes unattainable because of the conduct of one of the parties, then the other party can abandon the contract without earning any liability.

Acceptance of goods by buyer 

Where an agreement of offer is not severable, i.e., it is unified, and the purchaser has acknowledged the goods or part thereof the breach of any condition is to be treated as a breach of warranty. In this case, Sec. 42 provides that the purchaser is presumed to have accepted the goods.

Impossibility of performances

After the creation of the contract the performance becomes preposterous in such case the performance will be excused on the following grounds as mentioned below:

1. By negligence or default of any of the parties to contract. 
2. By occurrence of the supervening occasion. 
3. Inability to perform due to conditions outside his ability to control. 
4. An act is passed by the state, for rendition the performance illicit. 
5. In instance of two promises when one of the promises is not fulfilled the promiser will have the chance to perform the other promises.
6. In case of two promises the promiser has the chance to elect any one of them, if he unable to perform one of the promises he still has the chance to perform other promises.

Express and Implied conditions and Warranties

 The conditions and warranties are either:

• Express 
• Implied 

`Express’ conditions and warranties are those, which have been explicitly agreed upon by the parties at the time of the agreement of offer. 

`Implied’ conditions and warranties are those, which the law includes into the contract unless the party’s stipulate hostile. Sec.62 says Implied conditions and warranties might be call off or diverse by an express agreement or by the advancement of dealings or by usage and custom.

The accompanying perception of Lord Justice Denning on account of:

Karsales (Harrow) Ltd. v Wallis is quite significant

In this connection. “It is presently settled that exception provisos of this sort, regardless how generally they are communicated, possibly benefit the party at the time of carrying out the contract”.

Implied Conditions 

Sections 14 to 17 of the Act set out the implied conditions in an agreement of offer. 

Are as per the following: 

1. Condition as to title [Sec. 14 (a)] 

In each agreement of offer:

1. In instance of a deal, the seller has a right to sell the goods. 
2. In the situation of a consent to sell, the seller has a right to sell the goods during the time when the property is transferred.

Case Laws in Rowland v Divall

P purchased a car from A and used it for several months. later discovered that A had no title to the car as it was a stolen one and P had to return the car to the real owner. It was found that the buyer P can recover the full price from the seller even though he has used the car for several months. 

2. Sale by description (Sec. 15) 

Where there is an agreement of an offer of goods by description, there is an implied condition that the goods shall correspond with the description. 

Meaning of ‘sale by description’ 

It may include the following situations: Where the buyer has never seen the goods and buys them based on the description given by the seller. 

Case Law in Verley v. Whipp,

The seller says that the machine he is selling is brand new. On delivery it was found to be a used one. The buyer can reject the goods.

3. Sale by sample (Sec. 17) 

An agreement of offer is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. 

Case Law in James Drummond & Sons v E H van Ingen & Company., 

In this case the buyer can abandon the contract on discovering the defect in the supplied of cloth by the seller.

4. Sale by sample as well as by description (Sec. 15) 

The buyer can repudiate the contract on finding that the goods supplied correspond with the sample but not match with the description. In case when goods sold as per mentioned sample and description then both should match corresponding item.

Case Law in Wallis v Pratt,

In this case, the buyer could recover loss, as there was a breach of condition on contract for sale of seeds referred to as `Common English Sainfoin’ the seeds supplied to the purchaser were of a different quality.

5. Condition as to quality or fitness [Sec. 16 (1)]

In an agreement of offer there is no implied warranty or condition as to the quality or fitness for any precise motive of items supplied. The usual precept is caveat emptor, i.e. consumer beware, the client ought to purchase the items after fulfilling himself that they will serve his purpose. The first exception to the rule of caveat emptor is that the place the buyer, expressly or by way of implication, makes regarded to the seller the unique cause for which the items are required, so as to exhibit that consumer depends on seller’s ability or judgment and the items are of a description which it is in the path of the seller’s commercial enterprise to grant (whether he is the producer or producer or not), there is an implied situation that the goods shall be moderately fit for such purpose.

Case law in Priest v Last, 

The purchaser bought a hot water bottle from a chemist. It burst and harmed her wife while using. It was found that the implied condition as to fitness was broken and the seller was liable for loss. 

6. Sale under patent or trade name 

Sometimes a buyer may rely more on the trade name of an article than the judgment of the seller. Provision of Sec. 16 (1) provides that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose. Example A person buys ‘Aspro’ to get relief from severe headache, if he does not get any relief, he cannot avoid the contract and the seller of ‘Aspro’ cannot be held liable.

7. Condition as to merchantability 

Where goods are brought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be of merchantable quality.

[Sec.16 (2)]. Even goods sold under a patent or trademark must be of a merchantable quality. 

Case Law in Mareli v Fitch and Gibbons

A buyer bought a Stone’s Ginger Wine. While he was attempting to draw its cork with a corkscrew and with due care, the bottle broke off and injured the hand of the buyer. It was held that the bottle was not of merchantable quality, so the seller was liable. Effect of buyer examining goods If the buyer has examined the goods there shall be no implied condition with regard to defects, which such inspection ought to have revealed. However, the implied condition as to merchantability will continue to apply so far as latent defects in the goods are concerned, since such defects cannot be discovered by ordinary examination of the goods.

Implied Warranties 

Subject to the contract to the contrary, following are the implied warranties in an agreement of an offer of goods: 

1. Warranty of quiet possession 

Unless the circumstances are such as to show a different intention there is an implied warranty that the buyer shall have and enjoy quiet possession of the goods [Sec 14(b)]. 

2. Warranty of freedom from encumbrance

That the goods shall be free from any charge or encumbrance in favour of a third party not declared of known to the buyer before or at the time when the contract is made [Sec. 14 (c)]. 

3. Warranty as to quality or fitness by usage of trade an implied warranty or condition

An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade [Sec. 16 (3)]. 

Case Law in Jones v Bowden

Where drugs were sold by auction and where it is a usage of trade to disclose beforehand any sea-damage such disclosure must be made. In case no such disclosure has been made and the goods are found to be defective, it will be taken as a breach of warranty. 

4. Warranty to disclose dangerous nature of goods 

Where the goods are dangerous, and the seller knows that the buyer is ignorant about the dangerous nature of the goods, the seller should warn the buyer about the probable danger otherwise he will be liable for damages for the injury caused to the buyer because of the dangerous quality of the goods.

Effect of Breach Of Condition 

Sec. 13 lays down that unless the buyer waives condition, the breach of condition entitles the buyer to rescind the contract. The buyer may at his option treat the breach of condition as a breach of warranty also and claim only damages.

[Sec 57]-specific performance of contract. 

[Sec 28] If the aggrieved party is a seller, in appropriate circumstances, he can sue for the price or claim damage for non-acceptance of the goods.

[Sec 50 & 55] Effect of Breach of Warranty

In case of breach of warranty, the buyer cannot repudiate the contract. In terms of the provisions of Sec 59, he may of course, set up the breach of warranty in diminution or extinction of the price and may bring an action against the seller and claim damages for the breach.

Conclusion 

So as to establish a deal, it is vital that there ought to be a contract between the parties for the purpose of transferring the title of goods, which surmises limit of the parties to contract, the backing of money the arrangement of conditions and warranties are given in the Sale of Goods Act, 1930 so as to ensure the purchasers in the event of any extortion by the dealer. Be that as it may, it is seller’s obligation, in any case, to search for the conspicuous imperfections and enquire about the quality of the item before going into an agreement of offer of the seller since a seller can’t be held liable for a buyer off-base decision.

The post Condition and Warranties on sale of goods appeared first on iPleaders.

This article has been written by Naman Sherstra, a student of Department of Law, University of Calcutta.

Chapter II of the Indian Evidence Act talks about the relevancy of opinion of the third person. It is also termed as an expert’s opinion which is broadly provided under Section 45- 51 of the act. The provisions under this section are exceptional to natural rule of law of evidence where the evidence is only that fact which is given by the witness on the basis of his knowledge and belief. This exception states that the court cannot draw its opinion on the technical matters as well as complicated matters which require the special knowledge of the person having acquired expertise on the relative field. The conditions for the demand of the expertise include the situation where the case cannot be solved without the help of the expert. The witness who is expressing its opinion is an expert of the particular field.

Expert explanation

Section 45 of the Indian Evidence Act provides information about the definition of expert. An expert is said to be a person having knowledge or expertise in any of the field like foreign law, science, art, identity of handwriting or finger expression and where such knowledge has been gathered by him by practice, observation, studies. For example- Medical Practitioner, technical experts, chemical and explosive experts, ballistic expert and fingerprint expert. The evidence of points is admissible when he takes the court into complete belief. The opinion of the expert has to be given orally only, certificate as well as report is not accepted as evidence. However, the definition of expert under section 45 is not only extended to the five fields as mentioned in the section. There are also other certain fields where the courts may seek the opinion of the expert.

Duty of the expert

The primary obligation of the expert witness is to assist the court on the cases which fall under the ambit of their expertise. They are not bound to compel the parties to pay their fees who have appointed them. There is a common perception that the clients who appoint the expertise make their expert lean towards themselves hence making their cases favourable. The compromise with the independence of the expert may turn down the appointment.

Expert opinion Value

There are two aspects of the expert evidence. Data evidence and Opinion evidence, generally data evidence, are accepted until they vary the oral evidence. The second one opinion evidence is drawn from the data and it would not get precedence over the direct eyewitness testimony unless the inconsistency between the two is so great as to falsify the oral evidence. In S. Gopal Reddy vs State of Andhra Pradesh the Hon’ble Supreme Court held that the evidence given without any independent corroboration is rather difficult to accept.

Expert evidence is opinion evidence and it cannot replace the substantive evidence. It is the rule of the procedure that the expert witness must be corroborated either by direct evidence or by circumstantial evidence. It is always safe to rely upon such evidence with an independent and reliable corroboration.

Evidence of expert witness v evidence of ordinary witness

The expert witness only provides opinion regarding the handwriting, fingerprinting, nature of injury technical inquiry whereas an ordinary witness states the fact relating to the incident happened. The nature of the expert witness is advisory whereas the witness states the facts to the court. The opinion of the witness is not admissible in the court. The accountability of ordinary witnesses is always considered more over the expertise witness.

Handwriting expert opinion

When the court is of opinion to take the handwriting of any person, or the opinion of any person having expertise of handwriting admissible as evidence the person himself shall have to give the opinion that if the handwriting has been written by him or not.

The handwriting of a person may be proved in the below given ways:

1. Evidence provided by the writer himself.
2. Evidence provided by a person who has seen the person, whose handwriting is in question in writing.
3. A person who has received any document which is written by the person whose handwriting is in question or under the authority of such person addressed to that person.
4. A person who is expert in comparing handwriting.
5. A person who is acquainted with the signatures and writing of that person.
6. A certifying authority who has issued the signature when the court has formed an opinion to the digital signature of the person as mentioned under section 47-A of the Act.
7. When the Court compares the documents in question with the other documents which are proved genuine in the court as mentioned in section 73.
8. In the case of doubtfulness the court may ask the person to write something in the face of court to compare it with the document.

Opinion for electronic evidence

When in a proceeding the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any electronic resource or any other electronic or digital form, the opinion of the person taken in such cases is known as examiner of electronic evidence. The examiner of electronic evidence is known as the expert in such cases. For this section, electronic evidence includes any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the examiner of the electronic evidence referred to in section 79A of the Information and Technology Act, 2000(21 of 2000), is a relevant fact.

Opinion for foreign law

When it is necessary to form an opinion as to the law of the country, statements of such law published in a book published under the authority of the Government of that country and the reports of the cases decided by the courts of that country and contained in the books purporting to be reports of such rulings, are relevant, that is may be referred to by the court. A statement contained in an unauthorized translation of the Code Napoleon as to what the French law is on a particular matter. The opinion of such experts can be taken under Section 4 of the Act. However, the other reports of the ruling of the court can also be taken as relevant which are given in such books of foreign law.

Foreign law in India is always considered as the question of fact. There have been the cases where the court has interpreted personal laws as Indian Laws and thus are the laws of the land. Therefore, the court does not require a person to interpret the laws as the courts can do tasks on their own.

Opinion for fingerprint

The evidence given by a fingerprint expert need not necessarily be corroborated; but the courts must satisfy itself as to the value of the other evidence. Generally, a finger impression expert’s opinion is given more weightage because it remains the same from his birth to his death and no other fingerprint can match with the one. Where the Court has to determine the credibility of the fingerprint expert the court can review his past credential records as well as work records. In case of being found suspicious the court can deny to entertain such evidence. 

The evidence of the fingerprint expert is not substantive evidence. It can only be used to corroborate some items of substantive evidence, which are otherwise on record. Fingerprint studies have been given a higher importance these days but the court has been reluctant to accept that as a piece of evidence. A person who is a fingerprint expert is said to match two fingerprints thereafter the opinion of such expert is relevant and admissible in court.

Opinion for Science and art

The aforementioned words include all subjects on a course where special study and experience is needed to make an opinion. The word science is very broad in practical use and they are not only limited to the higher sciences similarly the term art is also not limited to the fine arts but also it extends to the person having skills of handicraft, trade, profession and skill in work which, with the advance of culture has been carried beyond the sphere of common pursuits of life into that of artistic and scientific action.

To construe that if any expertise comes under the ambit of ‘art’ and ‘science’ the following tests can be applied.

The subject matter of injury such that inexperienced people are not capable of forming a correct judgement without the assistance of the experts.

The character of the science or art is such that it requires a course or a study to obtain a competent knowledge or skill in the field.

The study of certain customs and manners of tribes and castes, of the areas occupied by them and of other connected matter comes under the ambit of the science or art under this section. The tests which may be applied in determining whether a particular question is one of the scientific nature and consequently whether skilled witnesses may pass their opinion upon it are: Is the subject matter of enquiry such that inexperienced men are unlikely to prove capable of forming a correct judgement upon it without the assistance of the experts; that is does it so far partake of the character of a science or art as to require a course of previous habit or study in order to obtain a competent knowledge of its nature, Books dealing with customs and manners of different castes and tribes are admissible in evidence to prove them.

Every science has its own technical terms, which are so much Greek or Hebrew to the average juryman. What would the normal person can answer to the question whether a certain dose of a prescription containing choral would have been dangerous.

Opinion of medical expert

In the medical cases the opinion of the medical expert is required. In criminal matters the victim as well as the accused is examined. When the court requires the opinion of a medical expert in the cases which involve medical technicalities it asks the medical expert to express its opinion on the cases. The medical opinion may involve the physical condition of the person, his age, cause of death of the person, nature and effect of disease, time of death, nature of instrument used for causing death, symptoms and time of death, future consequences of the death. In the case of rape the medical evidence possess a great importance as if the opposite counsel thinks that the rape was consensual the skin cells and scratches on the body may prove an important aspect in the decision of the case. But there is a problem with these experts is that they are always called by a party who are having the evidence in their favour. That is why the court has to rely upon the opinion of the expert though they have to consider being impartial while expressing their opinion.

The Evidentiary value of medical cases is only corroborative and not conclusive and hence in the case of conflict between oral evidence and medical evidence the former is to be preferred unless the medical evidence completely rules out the oral evidence.

Opinion of ballistic expert

Ballistic experts, also known as firearms experts are people who are experts in the study of projectiles and firearms. The Ballistic expert may trace the bullet or cartridge to a particular weapon from which it was fired. The opinion of the ballistic expert is only taken into consideration when he furnishes the report before the court. 

Conclusion

The expert witness is totally different from the ordinary witness. The expert’s opinion can never be questioned in the courtroom. In the case of question over the ability and knowledge of the expert the opinion or report is brought into question. The expert opinion is judged from a different view as he is unaware about the facts of the case and the court is unaware about the field of expertise the case is related to.

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This article is written by Janhavi Sitaram Dudam, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com. Here she discusses “an Overview on the kinds of Relief provided for Violation of Geographical Indication In India”.

Introduction

Geographical Indications Protection is eminently important and mandatory for an Agro-based industry like India. Geographical indications (GI) have emerged in the recent past as a significant type of the issue in Intellectual Property Rights (IPR) within the Indian context.

A Geographical indication is an indication used to identify that a given product originates in a particular geographical area which possesses qualities or reputation or other characteristics due to that area or origin. Most commonly, a geographical indication includes name of the place of origin of that particular good. For example, “Darjeeling Tea” indicates the origin of Tea from Darjeeling, “Kanjeevaram Silk” denotes the origin of Silk from Kanjeepuram in Southern India. Agricultural products usually have qualities deriving from their place of production and identified by local factors such as climate and soil.

Geographical Indication helps a producer distinguish their goods from competitive market products, and create awareness for their products, often at a premium price.

In India, the legal framework for GI protection has recently been developed.

Let us discuss in detail what kind of protection is available for infringement of geographical indication in India and kinds of relief awarded by the Indian courts.

Protection for the holder of Geographical signs when no particular GI protection legislation is available in India

The present geographical indication in India is governed by the Geographical Indication of Goods (Registration & Protection) Act, 1999 and the Rules on Geographical Indication of Goods (Registration and Protection), 2002.

Before this act, there was no separate law specifically applicable to GI protection. However, there were alternative ways which could prevent the misuse of GIs:

1. Passing of Action by the courts; and
2. Certification trademarks.

Among abovementioned laws, In India, “Darjeeling Tea” was the most common geographical name covered under the Certification Trademark scheme prior to the GI Act. A certification mark is known as a mark administered by a proprietor who certifies the products as to their origin, content, manufacturing mode or service efficiency, quality, accuracy or other characteristics, and thus allows the use of the mark. In addition to the Darjeeling Tea, India has recently established a “Silk Mark” to certify the authenticity of silk textiles in India and can be marketed if the product meets the quality standards.

In India, Infringement of GIs have been governed by common law principles, which entitled the aggrieved person to lodge an action of ‘Passing off’ for protection of his right. This action has maintained by the Indian courts for protection of GIs in one of the leading case Scotch Whisky Association v. Pravara Sahakar Shakar Karkhana Ltd.on 18 July, 1991.

In this case, the plaintiff Scotch Whisky Association, a corporation registered under the United Kingdom’s Companies Act initiated the passing off action against the defendant- Pravara Sahakar Shakar Karkhana Ltd. – a producer of various Indian whisky brands such as ‘blended scotch whisky’ or ‘blended with Scotch’ under the different brand names, ‘Drum Beater’ and ‘God Tycoon.’ In this lawsuit, the Bombay High Court held that plaintiff had sufficient interest to restrain the defendant’s passing off of Indian Whisky brand to prevent damage to Scotch whisky’s reputation and goodwill. The defendant passed their product off as a blended scotch whisky which they were not in fact. So, the court granted temporary injunction. The defendant used the words ‘Blended with Scotch’ and indulged in colourable imitation and unfair trade in an attempt to gain unequal profits by appropriating the goodwill of the plaintiff. The defendant was prohibited from advertising or offering for sale or distribution of whisky, which is not Scotch whisky in any territory.

From the aforementioned judgement, it is clear that the Indian judiciary has repeatedly extended the shield of legal protection to GIs even in the absence of the any legislation in effect at that time.

Analysis of Geographical Indication Act

There was no statute in India prior to the enactment of the GI Act for the protection of geographical indication. This act aims at providing for registration and protection of geographical signs relating to goods. It excludes unauthorized user from exploitation of geographical signs.

Unless a geographical indication is covered in the country of origin, there is no requirement for other countries to provide mutual protection under the arrangement provided for in the Article 22 of the TRIPs. In comparison, India would be required to protect goods imported from other countries that provide such protection. Considering the above circumstances, extensive legislation for identification and proper protection of geographical indication is deemed necessary.

However, the Parliament adopted Geographical Indication of Goods (Registration and Protection) Act, 1999 in order to provide better protection for geographical indications that received Indian President’s assent on 30^th December 1999.

Some Relevant Provisions of the Act

Definition under TRIPS

Article 22 (1) of TRIPS defines ‘Geographical Indication’ as “indications which identify a good as originating in the territory of a member or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin”.

Definition under The Geographical Indications of Goods (Registration and Protection) Act, 1999

Sec 2 (e)“geographical indication” in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods or originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.

Which goods are covered under Geographical indication Act?

Sec 2(f) defines the term “goods” means any-

1. Agricultural goods;
2. Natural goods;
3. Manufactured goods or;
4. Any goods or handicraft or of industry and includes foodstuff.

Rights available to the registered user

Sec 21 of chapter IV of the act states the following rights:

1. The registered user shall be entitled solely to use the geographical indication in respect of the products for which the geographical indication is registered. However, all terms and restrictions levied in the registration itself shall be subject to this exclusive right to use.
2. The registered owner or permitted user of the geographical indication shall be entitled to obtain relief in respect of infringement.

Infringement of geographical indication

Section 22 of the act states the laws relating to infringement of geographical indication and this section has to be read with sec 2 of article 22 of TRIPS Agreement which says, in respect of geographical indication, members should provide the legal protection to interested parties to prevent:

1. use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin which confused the public;
2. any use which includes an act of ‘unfair competition’ within the meaning of article 10 of the Paris Convention (1967).

Relief granted by Indian courts for infringement of Geographical Indications

Sec 67 of the act states the Relief provided by Indian courts for violation of geographical indication may be broadly divided into two categories:

Civil remedies

• Injunction

The injunction may either be interim injunction or permanent injunction granted for the disclosure of records, the protection of infringing items, documentation or other facts relating to the subject-matter of the suit. An injunction is granted to restrain the defendant from disposing his assets which may adversely affect the ability of the plaintiff to recover damages, costs or other pecuniary remedies that may finally be granted to the plaintiff.

• Damages or accounts of profits

The court shall not award relief by way of compensation (other than nominal damages) or accounts of profits to the plaintiff in any case where the defendant satisfies the court in the violation proceedings that he was ignorant at the time he started to use the geographical sign in the suit, and had no reason to believe that the plaintiff’s geographical sign was on the registry; and when he became aware of the existence and nature of the right of the plaintiff in the geographical indication, he immediately stop to use the geographical indication for the benefit for which it was registered.

• Delivery-up of the infringing labels and indications for destruction or forfeiture of goods that bear false representation of an existing G.I.

Criminal Treatment

Judicial remedies are more effective than civil remedies since the former can be easily disposed of. Chapter VIII of the Act deals with such crimes and punishments.

Sec 38 to 44 of the Act provides punitive responsibility for violation of various laws relating to the following geographical indications.

• Falsifying and falsely applying geographical indications to goods.
• Selling goods to which false geographical indications is applied.

Punishment- Imprisonment 6 months to 3 years + fine not less that Rs. 50000 but may extend to Rs. 2,00,000.

• Falsely representing a geographical indication as registered.
• Improperly describing a place of business as connected with the geographical indication’s registry.
• Falsification of entries in the registry.

For the second and for every subsequent offence –

Imprisonment of not less than 1yr, extend to 3 yrs. + fine not less than Rs. 1,00,000 but may extend to Rs. 2,00,000.

Case Study

This case study relates to the protection of Darjeeling tea provided by geographic indication (GI) Act at domestic level as well as International level. It tells the story of the illegal use and registration by Japanese companies already licensed by the Tea Board of India of ‘Darjeeling and Darjeeling logo’ in Japan.

India is the world’s largest tea manufacturer, producing about 31 percent of the world’s favourite hot drink with a total output of 846 million kg in 2002.

Among the teas grown in India, Darjeeling tea provides distinctive consistency and taste characteristics, as well as over a century of global reputation. Broadly speaking, there are two aspects that have let to such an excellent and distinctive taste, namely geographical origin and manufacturing.

• Tea Board of India vs. Mitsui Norin KK, Japan

In this case, India’s Tea Board objected to application for ‘Divine Darjeeling’ in Class 30 (Darjeeling tea, coffee and cocoa produced in Darjeeling, India). The opposition was primarily for three reasons-

1. ‘divine’ is a laudatory word and therefore the symbol for which protection is sought is merely ‘Darjeeling’ which is simply not distinguishable;
2. ‘Divine Darjeeling’ is deceptive in so far as ‘Darjeeling coffee and cocoa’ is concerned, because Darjeeling district does not grow coffee and cocoa;
3. Darjeeling tea qualify as a geographical indication in compliance with international convention, including TRIPS, and should be protected as Japan is a member of TRIPS.

Particularly on the ground that the ‘Divine Darjeeling’ mark as a whole was not misleading or deceptive of the nature of the products, the Japan Patent Office Opposition Board rejected the invalidation action brought by the Tea Board of India. However, the non-use cancellation action succeeded because the licensed proprietor was unable to report sufficient evidence to prove the use of the mark in Japan.

Conclusion

Thus, The Tea Board of India has faced a range of obstacles, threats and challenges to protect the ‘Darjeeling’ and the Darjeeling logo in Japan. The main intention behind the use of geographical indication is to facilitate commerce by identifying authentic products of quality to the customer and also defending them from counterfeiting.

References

• http://www.ipindia.nic.in/act-1999.htm
• https://shodhganga.inflibnet.ac.in/bitstream/10603/14514/15/14_chapter%207.pdf
• https://www.wto.org/english/res_e/booksp_e/casestudies_e/case16_e.htm
• https://indiankanoon.org/doc/287529/(AIR 1992 Bom 294, 1992 (2) BomCR 219)
• Dr. B L Wadehra Law relating to Intellectual Property

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

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This article is written by Suman Chatterjee, Team LawSikho.

Black Swan events like pandemics and recessions change the trajectory of human lives in a matter of weeks! In the guise of evil, they can often lead to positive outcomes long awaited for. 

Black Death in the 1300s led to the collapse of the long-established feudal system and made way for an advanced employment structure. 

In the 1600s, a critical economic recession, caused by a 100-year war between England and France, resulted in an unprecedented innovation that brought about a complete overhaul of the agricultural sector. 

Even the SARS pandemic of 2002-2004 resulted in the rise of one of the biggest ecommerce sites in the world, Alibaba. (You have probably heard about it, right?)

This COVID-19 crisis is yet another “black swan” event.

The world is going digital, without any doubt.

Remote working will not be a matter of choice anymore.

Online shopping and doorstep delivery is on the rise.

In short, good, prosperous times for online businesses and tech companies.

The rise in such online businesses and tech companies will inadvertently spur HUGE demand of tech lawyers once this ordeal is over.

Lawyers who are well-versed with technology contracts and already mastered the subtle art of drafting and negotiating specialized contracts can expect to see a windfall in the months and even years ahead because things have accelerated in this front thanks to Covid.

One slight gaffe in end-user license agreement can lead to millions of dollars in losses. 

Violation of GDPR costs Google millions of euros in fine every alternate month, often because the contracts under which data is collected or transferred prove inadequate.

Even a little ambiguity in the non-disclosure agreement can result in ZERO protection in data leakage issues. Phew! 

The risk for tech companies is all the more intense during these times as a potential global recession looms large and still clients are lining up for services, and digital transformation is going to pick up a new pace once lockdown is lifted.

Legal risks during COVID-19 crisis …for Tech Companies

With complete lockdown going on in all major economies, you can expect delays and defaults on part of tech product or service providers. 

What happens then?

You may have studied a bunch of concepts in contract law in law school which you never thought will prove useful, such as novation, impossibility, frustration, Act of God or Force Majeure – all of those concepts are suddenly becoming super relevant.

Lawyers are brushing up on concepts like anticipatory breach of contract, contributory negligence, and figuring out if there is any way they can get their contracts renegotiated or terminated without incurring too much liability.

Many contracts have already been breached and other contracts may be frustrated or simply that one party is in no position to accept delivery of services or goods. 

A huge number of potential lawsuits will have to be filed once this lockdown is officially over unless people can find solutions through negotiation and mediation.

To protect the tech companies during these times of peril, tech lawyers would have to be skilled enough to navigate a complex web of commercials and legalities.

They would not only need a deep understanding of technology laws but also the ability to untangle domain-specific complications. They would have to draft clever contracts and get out of some using legal loopholes.

For the bright lawyers with the right skills, the aftermath of this crisis period will see an unprecedented level of work lasting from several months, or more likely a few years in cases of large and hairy disputes.

Click Above

People will be evaluating existing contracts, renegotiate a lot of them, get into disputes, and try to resolve them through mediation and litigation. Many contracts will inevitably land up in litigation.

Fast-growing digital businesses will also have a great demand for drafting and negotiating new contracts because people will take these agreements and their legal sanctity a lot more seriously.

So, how are you going to learn the ins and outs of technology laws and contracts? 

How can you help these companies re-negotiate and draft their ‘cloud computing’ agreements, or advise them on the use of ‘open-source software’ for a project?   

How can you help them restructure deals, claim indemnity or invoke Force Majeure and save millions of rupees?

How can you help these tech and ecommerce businesses during this period of turmoil, and continue doing that in the good times ahead?

Want to become the go-to tech lawyer for all these companies in need?

We have something for you.

ONLY FOR YOU.

Bringing to you our new and exclusive Certificate Course in Technology Contracts

We already had an advanced drafting-oriented technology contract course in our catalogue before. So, why this? 

After interacting with hundreds of our students and followers, we felt the immense need of a drafting course that focused only on the technology sector and offers live classes. You also told us that you need a course that is very short, and we listened. 

We give you a technology contract drafting course that is just 1-month long, has live classes and assignments and you get personal attention from the teacher.

This comprehensive course is highly detailed and practice-oriented in nature. It is developed in such a way as to help you not only get a conceptual understanding of the technology laws but also give you hands-on experience of drafting and negotiating common tech domain-specific contracts.

Primarily focused on contract drafting, this one-month certificate course deals with this specialized category of contracts related to software development, technology services, SaaS products, licensing, cloud computing, terms of use, GDPR related issues in contracts, privacy policies and other specific contracts—related to IT, digital business and tech infrastructure. 

In other words, you will spend the next month polishing your technology contract drafting skills to perfection.

Who is this course for?

• Lawyers working for technology companies such as Google, Facebook, Amazon, Uber, Flipkart, etc
• Lawyers who want to specialize in technology law or work in technology law firms
• Lawyers who want to work in the technology team of corporate law firms 
• Lawyers who want to build an independent technology law practice
• CS and CA who want to upsell additional services to their tech domain clients  
• Contract managers and procurement managers who regularly procure technology-related services,  work on software development contracts or service level agreements 

How will this course benefit you?

If you take up this course and pursue it seriously, I guarantee you will be able to:

• draft key technology contracts and licenses such as outsourcing agreement, technology transfer agreements, music license agreement, ebook publishing agreement, affiliate agreements, video game development agreement, non-disclosure agreements, and more.

• create appropriate licenses for end-users and distributors to maximize intellectual property protection

• define key performance indicators (KPIs) and service levels, invoicing and payments-related clauses, and software audit provisions

• minimize damage in case of data leakage and implement incident management frameworks

• deal with material breach, refunds and credits under SLAs

• protect sensitive data and comply with local data protection regimes through appropriate data management and security clauses

• protect developer and client from mischief by implementation of escrow mechanisms 

And much more.

In this course, you will have to attend two live classes and finish four drafts per week. You will also receive 24/7 online access to study materials, doubt clearing sessions, personal feedback, CV enhancement and networking training, and unlimited jobs, client referrals and internship opportunities.

Care to spend at least 12-16 hours per week? I promise we will help you shine a lawyer with great domain knowledge of technology contracts. This skill will help you during and post COVID-19 lockdown.

Just drop a mail to all your existing clients and ask them if they need help in understanding the implications of the lockdown on their contracts and business continuity, and see how many positive responses you get.

Hurry now … the enrollment closes in 5 days only.

Click here to sign up for the course right now

Still thinking? 

All our courses are covered by an iron-clad 30 days full money-back guarantee. No questions asked. The only condition is that you have to put in your effort for at least a month, that’s it.

So you could do the entire course and ask for a refund. We are taking the risk so you don’t have to worry. Just read the refund policy properly. You need to attend all classes and submit all assignments in order to be eligible for a refund. 

This course is jam-packed with as much VALUE as was possible in a one-month period. Starting from data management and data protection to boilerplate clauses to the taxation of software and statement of work, this course covers almost EVERYTHING related to technology laws. 

If you are interested in technology laws and don’t want to pay our hiked course fee later on, about to increase from April 1st, I would urge you to take action now.

Also, we are doing this one batch as an experiment because we do not offer one month executive certificate courses with full classes and assignments ever. We do not know if there will be another batch, or if at all there will be one.

So don’t miss the bus.

Read on for full details here.

P. S. LawSikho is running hour-long webinars every day. Want to learn how to improve your learning skills? Prepare an LLM application to a foreign university? Career opportunities in new, upcoming areas of law? Don’t miss these high-quality webinars with industry and academic experts. Join our WhatsApp group to get instant updates on your phone.

Here is the webinar schedule for today:

TOPIC: What are the new job prospects for young lawyers and how to exploit them?

Hosts: Nipun Bhatia and Anubhav Garg

Time: 12:00 PM

TOPIC: Career opportunities in Trademark Prosecution and Litigation

Hosts: Abhyuday Agarwal and Niharika Malhotra

Time: 2:00 PM

TOPIC: How companies are tackling COVID-19 and lockdown

Hosts: Ramanuj Mukherjee and Parveen Mahtani

Time: 5:00 PM

P. P. S. If you are not interested in technology laws, here are a few other courses that you might like (enrolment closes in 5 days):

DIPLOMA

Diploma in Companies Act, Corporate Governance and SEBI Regulations

Diploma in Business Laws for In-House Counsels

EXECUTIVE CERTIFICATE COURSES

Certificate Course In Technology Contracts

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

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Arbitration: Strategy, Procedure and Drafting

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Trademark Licensing, Prosecution and Litigation

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

P. P. P. S. Till 31st March 2020, you can enrol in your favourite course at its current pricing. From 1st April, the fees of all LawSikho courses are due to increase by 20-50% without further delay. Do note that we have enrolment for ALL courses available on our portal for the next few days, so that anyone who wants to enrol at the current pricing may do so. Even if you want to pursue the course, later on, it makes sense to book your slot today. Enrol in a course right now >>>

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

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This article is written by Pulkit Rathi, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com. Here he discusses “unconventional trademarks”.

Trademarks – an introduction

Trademarks are generally used to protect the goodwill of a product or kind which has been established by a brand over years from being exploited by the third parties. Many brands have their own market value and encash the same, like Apple has made its own goodwill over the period of time and has an ardent set of buyers. To protect such brand value from third party’s exploitation, many companies tend to obtain trademark to safeguard its brand value. This is a major form of intellectual property and is governed by Trademarks Act 1999 and Trademark Rules, 2017.

Unconventional trademarks

An unconventional trademark is nothing but trademark of items other than goods or brand’s name. They majorly include sound, colours, olfactory mark, motion mark etc…. If we interpret the requirements to register a trademark as defined in 2(zb) of the Act[1], It states that trademark is a mark capable of being distinguished from other goods and has procured an identity of its own and the marks which are considered to be unconventional are also capable of being distinguished and has a distinct identity, thus it is not wrong to say that unconventional trademarks also form a part of regular trademarks only. The check here is the graphical representation of these marks, the regular trademark can be registered using its distinct features either by design or alphabet but the same is not easy for these unconventional marks. These marks have taken a statutory recognition and boom in India majorly due to the advent of Trademark Rules of 2017[2] as they have legitimized the marking of sound, colour provided that they are capable of being graphically represented[3]. The word Graphical representation has also been defined under the rules which states that it refers to the representation of the mark either in paper or in digitalized form so that it can have its distinct identity[4] and facilitates for infringement claim if graphically represented.

Development of Unconventional Trademarks

The development in the area of unconventional trademarks must be credited to Trade Related Aspects to Intellectual Property Rights (TRIPS) agreement. It is an international convention on Intellectual Properties which sets standardized legal standing in this regard. They have included colour trademarks, shape trademarks, hologram trademarks, etc.. and India being a signatory to both TRIPS agreement and Paris agreement is under obligation to inculcate the guidelines set in these conventions.

In USA, there have been several instances in the past where unconventional trademark wer registered as Lanham Act of 1946 though did not include unconventional trademarks explicitly but did not place any bar on it either as even the graphical representation of the mark need not be shown, the distinctiveness of the mark was alone required to be shown. In the case of Qualitex Co. v. Jacobson Products co.[5] the court held that under Lanham Act, subject to usual conditions a colour is registrable as a trademark. USA generally has a liberal outlook towards registration of unconventional trademarks as compared to other countries. The scent of Plumeria was registered in the year 1990.

In a landmark judgment passed by European court of justice in the case of Dr. Ralf Sieckmann v. Duetsches Patent und Markenamt[6] the court stated that a trade mark may consist of a sign which is not in itself capable of being perceived visually, provided that it can be represented graphically, particularly by means of images, lines or characters, and that the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective.

In another landmark judgment given by European Court of Justice in the case Shield Mark BV v. Joost Kist[7] which was later termed as shield doctrine, the court while conforming the standards to be maintained for qualifications of graphical representations , the court analysed the same taking into consideration various kinds of trademark, primarily keeping into mind the registration of sound mark by written description/ graphical representation the court held that it lacked the required precision and cannot be construed as graphical representation. Regarding on Onomatopoeia, the ECJ noted that there was a difference between the sound sought to be trademarked and the onomatopoeia, once pronounced. Therefore, there was no precision and clarity; hence it did not constitute graphical representation.

Laws in India

The laws relating to trademark in India have developed in a high pace in last 10 years primarily due to the change in International conventions, TRIPS agreement[8] etc.. The introduction of Trademark Rules 2017 has given a different dimension to the trademark laws in India. By bare reading of Section 2(1)(zb) and 2(1)(m) of Indian Trademark Act, 1999[9] and Rule 26 and 2(k) of  Trademark rules 2002, we can infer that these are inclusive definition and brings under their ambit all kinds of trademark registration provided they satisfy the below mentioned criteria.

Requirements

Certain conditions are required to be fulfilled to register an unconventional trademark-

• The mark should be intrinsically distinctive.
• The mark should be able to distinguish a particular product from other products.
• The mark should be capable of graphical representation.

The requisites for graphical representation

1. A graphical representation can precisely determine what the sign is;
2. The graphical representation can substitute the mark used by the applicant because it represents that sign and no other; and
3. It is reasonably practicable for a person inspecting the register, or reading the Trademark Journal, to understand what the trademark is.

Instances of registration in India

It is important to note that there are 2 procedural requirements especially for registering an unconventional trademark. The first requirement is representing/flagging such unconventional trademark so as to give the distinct identification to the mark. This is to be complied so that there arises no dispute in the future and its importance has been well explained in the OHIM’s examiner manual as “The categorization of marks (word, figurative etc.) serves a number of functions. Firstly… it establishes the legal requirement for the mark to be represented, secondly, it can help understand what the applicant is seeking to register and finally it facilitates research in our database”.[10] The second requirement is limited to the registration of such trademarks which are not explicitly mentioned in the act or the rules and in such form of unconventional trademarks where the examiners and registrars of trademark can ask the person to file more information on the mark like the written description of the mark etc… though this is not a mandatory provision but is usually preferred to avoid any kind of confusion in the future. In India there have been 3 major registrations of such unconventional trademarks which are as follows

• Yahoo’s pronunciation as ‘Yodel’ was the first unconventional trademark being registered in India and it was graphically represented through musical notes[11].
• The second one being trademark for a shape of ‘Zippo lighter’ and its legality was upheld by the court where its trademark was challenged stating that a shape can be trademarked provided that it is peculiar and distinctive.[12]
• The last one being a sound mark registered by a German company which registered the sound ‘Allianz Aktiengesellschaft’. [13]

These are the unconventional trademarks which have been registered in India till date and by the drastic development in the field of trademark, it is expected to boom the registration of such unconventional trademarks in near future.

Conclusion

There exists no constructive distinction between normal trademarks and unconventional trademarks in theory but the fact that the trademarks are to be graphically represented for the description, so the laws relating to such extent should be liberalized so that the arena for unconventional trademarks expand. In this era of startups, it’s only the innovation which paves way for success of any business and the innovation and creativity can arise in any form and such brand image plays a very important role and to safeguard the interest of such creative ideas, there is an immediate necessity to strengthen the laws relating to the registration of such trademarks and the granting of trademark in the above instance has paved the way for improvement in this arena and trademark laws being a universal field has to cope up with international requirements and must be more dynamic and inclusive

[1] https://indiankanoon.org/doc/1190072/

[2]http://www.ipindia.nic.in/writereaddata/Portal/IPORule/1_69_1_312_1_TRADE_MARKS_RULES_2017__English.pdf

[3] Rule 26 of Trademark Rules, 2017

[4] Rule 2(k) of Trademark rules , 2017

[5] Qualitex Co. v. Jacobson Products co. 514, U.S 149

[6] Dr. Ralf Sieckmann v. Duetsches Patent und Markenamt  Case C (273/00)

[7] Shield Mark BV v. Joost Kist Cae C (283/01)

[8] https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

[9] https://indiankanoon.org/doc/117176/

[10]  OHIM Examiner’s Manual (Jun 2009), at 2.7.1.

[11]  Peter Ollier, Yahoo Yodels into India’s TM Registry, 183 MANAGING INTELLECTUAL PROPERTY 14 (2008)

[12]  Zippo v. Anil Manchandani (unreported, CS (OS). 1355/2006)

[13] Santosh Singh, Yet Another Sound Mark Granted, SPICYIP, 30 July 2009,

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

The post Unconventional Trademarks appeared first on iPleaders.

This article is written by Yash Singhal, a second-year student of Vivekananda Institute of Professional Studies, New Delhi. This is an exhaustive article on the provisions of The Surrogacy (Regulation) Bill, 2019 along with a critical analysis while providing arguments from each side.

Introduction

Surrogacy as a practice in India has been carried out from centuries to help those unfortunate couples who are unable to conceive due to natural problems like infertility, same-sex couple, age factor. The government realised the requirement of regulating the practice of surrogacy so as to protect the interests of all parties involved in the procedure staying within the reasonability clause while imposing restrictions. The Surrogacy (Regulation) Bill, 2019 was introduced for such regulation purposes by the Ministry of Health and Family Welfare.

What is Surrogacy?

An artificial procedure to conceive a baby in the womb of a surrogate mother by the use of medical expertise and available medical technology. There are two types of surrogacies identified:

• Traditional Surrogacy – The procedure includes the artificial insemination of the sperm of the intended father into the body of the surrogate mother to let it fuse with her egg. In such a procedure, the baby so conceived would be biologically related to the surrogate mother and the donor father with genes from both individuals.
• Gestational Surrogacy – This procedure is more complicated among the two but widely accepted in modern times. The egg of the intended mother and the sperm of the intended father are fused in a laboratory and the embryo is placed in the body of the surrogate mother. There is no genetic relation of the surrogate mother with the baby.

Why Surrogacy?

Every couple has a desire to expand their family with children yet some couples are unable to conceive due to infertility of either or both the partners. The couple has an alternate option of hiring a surrogate mother to conceive a baby for the couple in her womb and get monetary or non-monetary benefits in return. This is the most common reason for surrogacy.

Other reasons include same-sex couples who naturally cannot conceive a baby due to their limitations which pushes them towards surrogacy. 

Age is another reason for surrogacy as couples lose their ability to conceive. Couples with decreased fertility favour surrogacy.

The adoption procedure being complicated and lengthy drives the couples to adopt surrogacy over adoption. There is a preference for a blood-related child over any adopted child with traditional beliefs of blood-relations and natural acceptance.

Surrogacy (Regulation) Bill, 2019

The Ministry of Health and Family Welfare introduced The Surrogacy (Regulation) Bill, 2019 on July 15, 2019, in the Lok Sabha. The Act, when enacted, would extend to the whole of India except the region of Jammu and Kashmir. This bill was introduced to regulate the practice of surrogacy for the benefit of the surrogate mothers who are exploited in this ‘rent a womb’ business. The government identifies the issue with commercial surrogacy which is characterized as a practice of renting the womb on the promise of monetary benefits exceeding medical expenses. 

Purposes for which Surrogacy Permitted

Section 4(ii) of the Bill has provided with the conditions exclusively under which the surrogacy is permitted in India:

1. The intending couple who wish to practice surrogacy must suffer from proven infertility through medical reports.
2. Only altruistic surrogacy to be permitted which is for genuine help of intending couples without any monetary return except for the medical expenses.
3. It restricts commercial surrogacy which is practiced by surrogate mothers for the purposes of monetary returns.
4. The children born out of surrogacy must not be subjected to any sort of exploitation, prostitution or sale to other persons.
5. The couple suffers from any disease or condition as specified under regulation.

Intending Couple Eligibility

Section 4(iii)(a) of the Bill states that eligibility criteria for the intending couple has been established under the bill for them to undergo surrogacy. The couple needs to gather a ‘certificate of essentiality’ and a ‘certificate of eligibility’. 

• Certificate of essentiality is obtained by the intending couple on the fulfilment of certain conditions: 

1. Certificate of proven infertility of the couple issued by District Medical Board
2. Custody of the child passed to the couple by Magistrate Court
3. 16 months of insurance to maintain the surrogate mother for her medical expenses which include healing procedures.

• Certificate of eligibility is issued on the fulfillment of other set of requirements:

1. The couple is to be of Indian nationality 
2. The couple is to be married for at least 5 years
3. The wife should be between 23 to 50 years and the husband should be between 26 to 55 years.
4. The couple does not have any other surviving child through adoption, surrogacy or biologically unless the child is mentally or physically challenged. Any child suffering from any life threatening disorder or disease is excluded from this condition.
5. Any other condition specified by the regulations

Surrogate Mother Eligibility

Section 4(iii)(b) of the Bill states that certification of eligibility by appropriate authority is required by the surrogate mother under fulfilment of the following conditions placed by the bill:

• The surrogate has to be a close relative of the couple;
• The surrogate mother must be a married woman who has a child of her own;
• The woman shall be 25 to 35 years old;
• Only once in a lifetime a woman can be a surrogate;
• Certificate of physical and psychological fitness for surrogacy.

National and State Surrogacy Boards

Chapter V of the Bill advocates for the establishment of National and State Surrogacy Boards by the Central and State Governments.

These National Surrogacy Boards are constituted under Section 14 of the Bill, provided with the task of advising the Central government on the matters related to surrogacy, laying down guidelines of accepted conduct of surrogacy clinics, and supervising the work of State Surrogacy Boards.

Under Section 23 of the Bill, the State Surrogacy Boards have functions to review the authorities concerned with surrogacy matters and recommend action against them, to monitor implementation of the Act in states, and to send all the reports as to activities undertaken by the state to the National Surrogacy Board. 

Penalties for Offences

In Chapter VII of the Bill, the offences have been identified under this bill and penalties prescribed for commission of such offences.

Involvement in commercial surrogacy through advertising or practicing, exploitation of the surrogate mother in any manner whatsoever, abandoning or exploiting a surrogate child by the couple, and selling or buying the embryo or gametes for surrogacy are the offences under this Act. Every offence under this Act is cognisable, non-bailable, and non-compoundable.

The punishment for commission of these offences is imprisonment for 10 years and a fine up to 10 lakh rupees.

Arguments favouring the Bill

The Surrogacy (Regulation) Bill, 2019 has been passed in Lok Sabha but is currently pending in the Rajya Sabha. The Ministry of Health and Family Welfare introduced the Bill to support the intending couples along with the surrogate mothers while placing certain reasonable restrictions on the practice of surrogacy.

The commercial surrogacy that was prevalent in the past was a practice that was taken advantage of by the intending couple to obtain the surrogate child by renting a womb on a commercial basis. The foreign nationals would visit India to undergo commercial surrogacy with the overall cost of the whole procedure of surrogacy is lower here than any other country, also the availability of surrogate mothers in need of monetary benefits in return of their womb is high in India making it a hub for foreign infertile couples. The legality of commercial surrogacy in India allows the couples from countries with opposite treatment to surrogacy, to travel to India and undergo surrogacy. 

The mandatory condition of the intending couple to be of Indian nationality with 5 years of legal marriage eligible to undergo surrogacy procedure has protected the practice from being exploited. The ethical altruistic surrogacy from related persons that are allowed under this Bill, would prevent the oppression of ‘rent a womb’ industry by affluent families. The surrogacy clinics have been reported of mistreatment to the intending couple or the surrogate mother due to lack of legislation in the matter, which would be resolved with the enactment of the said Bill. The unethical activities of selling or forcing the surrogate child into prostitution to earn has been banned by the provisions of the bill, as it violates the right to a dignified life of the child under Article 21 of the Constitution of India.

Baby Manji Yamada v. Union of India

This case was about a child who was born in India to a surrogate mother for a Japanese couple. The Japanese couple separated a month before the birth of the child. The Japanese father wanted to take the child with him to Japan but lack of legal framework on such regard in Japanese laws restricted the travel of the child to Japan. The Supreme Court of India decided the matter allowing the grandmother to take the child out of the country. 

This case drove the government to make strict regulations on the practice of surrogacy.

Criticism of the Bill

The bill has faced criticism from all corners with its restrictive approach in matters of surrogacy. The specific clauses regarding the age limit permissible for the intending couple or the surrogate mother, ban on commercial surrogacy, only heterosexual couples with 5 years of marriage are allowed to undergo surrogacy, have been in contravention with the Fundamental Rights. The government has the power to impose reasonable restrictions on the Fundamental Rights but the restrictions placed in this bill have gone beyond such permissible limits. The usage of terms like ‘close relatives’ without any clear distinction as to the proximity of which relations would be taken into consideration. The lack of clarity on some issues has rendered the Bill ineffective. 

Constitutionality of Surrogacy Bill 

Article 14

Article 14 of the Constitution of India states equality before law and equal protection of law. The Doctrine of Reasonable Classification has been interpreted to be under the provisions of Article 14 through judgements, mentions that the class legislation shall be forbidden while enacting a law, also, the classification shall stand the test of intelligible differentia with the object of the Act being in nexus to the classification made. The legislation must not make improper discrimination by conferring privileges upon a ‘class of persons’ or arbitrarily selected persons without special characteristics that differentiate them from the rest.

The Bill places such restrictions which do not qualify the test of reasonable classification due to the limited and conditional access to some married couples falling within the prescribed age limit for the intended couple and the surrogate mother. The Bill also disqualifies people from undergoing surrogacy on the basis of their nationality, marital status, time period of marriage, age of the people involved, sexual orientation and other such parameters.

Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar

The case states that the intelligible differentia provided in the doctrine of reasonable classification shall be decided on the fulfilment of certain guidelines formulated in the case. Any law in violation of such guidelines would be deemed violative of Article 14.  

Under the Bill, any individual who has been discriminated against on being falling into the restrictions placed can also be treated as a class, also the vagueness of the terms used would reduce the legislation’s capacity to impose restrictions.

Article 21

The Constitution of India does not directly deal with surrogacy but has been included in the widest ambit of Article 21 through various judicial pronouncements. The right over own body along with right over reproduction has been provided under Right to privacy, which is identified as a fundamental right by the Supreme Court of India under Article 21. 

R. Rajgopal v. State of Tamil Nadu

The case states that the ‘right to life’ includes ‘right to privacy’. An individual has the right to decide over matters such as family, marriage, procreation, motherhood, childbearing among other things.

B.K. Parthasarthi v. Government of Andhra Pradesh

The case states that the right over decision of reproduction falls with the right to privacy. The right over control of the body on reproductive matters is the personal choice of the individual.

When the concept of privacy is extended to matters of procreation, state’s interference or restrictions on procreation amount to a direct encroachment on one’s privacy.

Justice K.S. Puttaswamy v. Union of India

The case states that the reproductive choices of the women is their constitutional right citing personal liberty under Article 21 of the Constitution of India.

The government has imposed restrictions on certain categories of individuals from undergoing surrogacy according to this bill. Surrogacy is an individual choice that shall not be subjected to limitations on the basis of age of people involved in the practice which is immaterial ground to be concerned with. The right of informed decisions over one’s own body should be provided to every individual who understands its body more than any other person.

Conclusion

The Surrogacy (Regulation) Bill, 2019 has been a matter of countrywide debate due to the restrictive nature of its provisions. The bill has made limitations as to what are the necessary requirements to be indulged in the practice of surrogacy. The proponents of the Bill contend it is within the reasonable limitations to safeguard the surrogate mothers and children from any sort of exploitation in the hands of the intended couple. The opponents raise the issue of the Bill violating the Fundamental Rights of the individuals by going beyond the authority held by the government while enacting laws.

References

https://www.prsindia.org/

http://www.legalserviceindia.com/

https://www.indiatoday.in

https://indiankanoon.org/

https://www.barandbench.com/ 

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

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This article is written by Shalu Gothi, B.A.LLB(Hons.) from FIMT, School of Law, New Delhi. This article talks about the law governing arbitration in India i.e., The Arbitration and Conciliation Act, 1996.

Introduction

In India, at present, the arbitration is governed by the law of arbitration which is mainly provided under the Arbitration and Conciliation Act, 1966. Before this Act, there were 3 Acts that governed the law of arbitration such as;

1. The Arbitration (Protocol and Convention) Act, 1937
2. The Arbitration Act, 1940 
3. The Foreign Awards (Recognition and Enforcement) Act 1961 

These aforesaid Acts were repealed by the Arbitration and Conciliation Act in 1996, in order to exercise the duty provided under the Constitution of India in its Article 51. However, the Model Law which was adopted on 21 June 1985 by the United Nations General Assembly on the recommendation of the United Nations Commission on International Trade Law (UNCITRAL). It also contributed in drafting and implementing the provisions of the Arbitration and Conciliation Act, 1966.

The Arbitration and Conciliation Act,1966

The Arbitration and Conciliation Act of 1966 is the main governing law for arbitration in India. This was enacted with the objective of “to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of the foreign award, and also to define the law relating to the conciliation”

This Act is divided into 4 parts:

• Part-1 (Section 2 to 43) This part sets out general provisions of both types of arbitration, domestic as well as international commercial arbitration in India;
• Part-2 (Section 44 to 60) This part sets out rules regarding the enforcement of foreign awards;
• Part-3 (Section 61 to 81) This part sets out rules regarding conciliation; and
• Part-4 (Section 82 to 86) This part sets out certain supplementary provisions.

This Act is a composite piece of the legislature, Parts I and Part II are the most significant parts that govern both domestic and international arbitration in India.

Part 1(Section 2 to Section 43)

Part 1 of this Act deals with any arbitration (domestic as well as international) which was majorly based on UNCITRAL Model law. This part describes the following provision.

Definitions

•  Arbitration

In this Act, arbitration includes any form of arbitration whether it is administered by permanent arbitration or not.

•  Arbitration agreements

An arbitration agreement means the agreement between the parties under which they agree to submit their dispute to the arbitration.

•  Arbitration tribunal

The arbitration tribunal may consist of a sole arbitrator as well as the panel of arbitrators.

•  Court

In this Act, the word ‘Court’ means;

• The District Courts and High Courts; In the cases of arbitration other than international commercial arbitration, 
• The High Courts and the Supreme Court, in the cases of international commercial arbitration.

•  International Commercial  Arbitration

International commercial arbitration is an arbitration agreement under which the parties constitute a legal relationship between them which is commercial in nature where at least one party is:  

• Either an individual who is the national or habitual residence of any country other than India; or
• A body corporate incorporated in a foreign country other than India; or
• An association of person or a body of individuals who are controlled and managed by another country other than India; or 
• The authority is managed by the government of any foreign country. 

•   Arbitration award

In this Act, an arbitration award is defined inclusively which says that it includes interim awards however what exactly is an award is not fined. Generally, it is considered as adjudication and final decision of arbitrator which is based on the contention of the disputing parties.

Receipt of written communication

According to this Act, any receipt of written communication is deemed to have been received when it is delivered to the residential or business place of the person concerned. And if in any case his place is not described under the agreement then the receipt is sent to the addressee’s last known place of work and habitual residence. 

Arbitration agreement

An arbitration agreement is a written document upheld by the parties of arbitration in order to settle their dispute outside the Court by the process of arbitration. There is no specified form  given under which such agreement is required to be drawn, however, in order to constitute a valid arbitration agreement, the following attributes are necessary:

• The agreement must contemplate that the decision of the tribunal will be binding on the parties;
• The agreement must contemplate that the jurisdiction of the tribunal or rights of the parties must derive either from the consent or from the order of the Court;
• The agreement must contemplate that  parties substantive rights must be determined by the agreed tribunal,
• The agreement must contemplate that the tribunal will impartially and in judicial manner determine the rights of parties;
• The agreement must contemplate that the arbitration agreement of the parties must be intended to be enforceable in law;
• The agreement must contemplate that the tribunal will make a decision upon a dispute which is already formulated at the time when a reference is made to the tribunal.

Number of arbitrators

This Act leaves at parties to decide the number of the arbitrator with a condition that such number shall be an odd number. In case parties fail to determine the number the arbitrator shall consist of a sole arbitrator.

Appointment of the arbitrator 

According to this Act, there are two ways to appoint an arbitrator. First, if the parties have agreed upon any specific procedure for the appointment then the dispute between them is decided in accordance with that and recourse to the Chief Justice or his designate cannot be taken straightway, however, if they fail to decide the said procedure, then the Chief Justice or any person or institution designated by him shall have to appoint an independent and impartial arbitrator.

Grounds for challenging the appointment

This Act requires a prospective arbitrator to disclose any circumstances likely to give rise to justifiable doubts in the minds of the parties about his independence and impartiality. It seems to be an obligation upon the appointed arbitrator to make such disclosure even during the arbitral proceeding proclaim the unambiguous legislative disapproval of the appointment or continuance of a person against whom circumstances exist giving rights to justifiable doubts as to his independence and impartiality.

Equal treatment of parties

This Act imposes a dual-duty on the arbitral tribunal, firstly it will act in an impartial manner and should give equal treatment to each party. Secondly, the arbitral tribunal should give each party a full opportunity to present its case.

Determination of rule of procedure

This Act expressly excludes the applicability of The Code of Civil Procedure, 1908 in an arbitration proceeding that is required to be concluded and resolved by the arbitration tribunal and, if it fails to do so, the arbitration tribunal will conduct its proceeding in the manner in which it considers appropriate. However, in the case of Municipal Corporation of Delhi v. International Security and Intelligence Agency Ltd 2003, the Apex Court said that “the applicability of the Code of Civil Procedure to the arbitral proceeding under the Arbitration and Conciliation Act 1996 shall be subjected to effecting any rights of the party under a special law or local law in force which relates to the arbitration proceedings”.

Place of arbitration

In this Act, the parties are free to agree to a place of arbitration, however, in case of failure of the parties to agree to a place of arbitration, the arbitral tribunal after considering the circumstances of the case and convenience of the parties will determine the place for holding the arbitral proceedings.

Language of arbitration

In this Act, the parties have the freedom to decide the language or language to be used in arbitral proceedings by agreement. In case of no agreement on it. then power to determine the language has been vested in the arbitral tribunal.

Rules applicable to the arbitration proceeding

In this Act, excepting arbitration other than international commercial arbitration, an arbitral tribunal shall decide the dispute submitted to it for arbitration in accordance with the substantive law for the time being in force in India. However, in case of international commercial arbitration, the arbitral tribunal shall decide the dispute according to the law or legal system specified by the parties unless otherwise agreed, as referring directly to the substantive law of the specified country and not to its conflicts of laws, rules. If no law is specified by the parties, the arbitral tribunal shall apply the rules considered to be appropriate according to the overall circumstances of the dispute.

Settlement

In this Act, it is the duty of the arbitral tribunal to encourage the party to settle their dispute by using conciliation, mediation or any other procedure at any time during the arbitration proceeding. And if the parties agree for settlement, the arbitral tribunal shall terminate the proceedings and record such settlement in the form of an award made in accordance with Section 31 of this Act. This award will have the same status and force as an award on merit i.e. an award made after completion of arbitration proceedings.

Form and content of the arbitral award

In this Act, an arbitral award is considered as the determination of arbitrator in the arbitral proceeding. It must be written and signed by parties. It also contains the following attributes:

1. The reason for passing the award; 
2. The date and place of arbitration;
3. The amount of money if imposing on any party; 
4. The parties who bear or who entitled for such amount of money; and
5. Any other information considered necessary by the arbitrator.  

Termination of proceedings

In this Act, the arbitral tribunal is empowered to terminate the proceeding of arbitration through passing the final arbitral award or any other order. The termination shall be made in the following cases:

1. When the claimant withdraws his claim,
2. When the parties agreed on the termination of proceedings,
3. When the arbitral tribunal finds that continuation of proceeding has become unnecessary and impossible.

Correction and interpretation of awards

This Act gives the following powers to the arbitration tribunal with respect to the award made by itself:

• To correct any computation errors, clerical errors, typographical errors or any other similar errors of similar nature accruing in the award,
• To interpret any specific or part of the award,
• To make any additional arbitral award in respect of claims already presented to the tribunal in the arbitral proceeding but omitted by the arbitral tribunal.

These powers are exercised either on request present by parties or on its own initiative within 30 days from the date of the award.

Part -2 (Section 44 to Section 60)

This part specifically deals with enforcement of foreign awards. The provisions of this part are based on The New York Convention and The Geneva Convention respectively. This part describes the following important provisions:

Meaning of Foreign award 

In this Act, the foreign award is defined as an award of dispute which arises due to the legal relationship between the parties whether contractual or not but commercial in nature. In order to apply the provision of an arbitration agreement for enforcement of foreign award, it is necessary that; 

1. It should be made on or after 11 October 1960 in pursuance of an agreement in writing for arbitration to which the convention set forth in the first schedule applies, and
2. It should be made on one of such territories as the central government may, by intimation in the official gazette, declare to be territories to which the said Convention applies.

Enforcement of foreign award

This Act merely empowers the Court to declare that the foreign award is enforceable under the provisions of its chapter 2. At the moment such declaration is granted, an award shall be deemed to be a decree of the Court, it is open to the parties to seek its execution in accordance with the provisions of the code of civil procedure, 1908.   

Condition for enforcement

For the enforcement of the foreign award made under this Act, the following conditions shall be necessary:

1. The award has been made in accordance with the submission made by the party for arbitration; 
2. The award must be settled on such subject matter applicable for arbitration in India;
3. The award must be made according to the submission declared in the manner and governing laws;
4. The award will become final in the country in which it is made in this sense it will not be on appeal;
5. The enforcement of such awards is not contrary to any law or public policy of India.

Conclusion 

In recent years, the arbitration and other ADR mechanisms have gained more importance than the traditional judicial method due to low risk and time factors and the Arbitration and Conciliation Act,1966 has not left any stone untouched to simplify the procedure for it. However, time to time amendment is necessary for its effective implementation.   

References

• https://r.search.yahoo.com/_ylt=AwrPh9b1.GxeAU4AbsC7HAx.;_ylu=X3oDMTByYmpmZjA4BGNvbG8Dc2czBHBvcwMzBHZ0aWQDBHNlYwNzcg–/RV=2/RE=1584228725/RO=10/RU=https%3a%2f%2fwww.advocatekhoj.com%2flibrary%2fbareacts%2farbitrationandconciliation%2findex.php%3fTitle%3dArbitration%2520and%2520Conciliation%2520Act%2c%25201996/RK=2/RS=5AGW1Qg2G23m3UyOSSHWfhsJkso-
• https://r.search.yahoo.com/_ylt=AwrPh9ZR.WxeED8Ahwi7HAx.;_ylu=X3oDMTByaW0wdmlxBGNvbG8Dc2czBHBvcwMyBHZ0aWQDBHNlYwNzcg–/RV=2/RE=1584228817/RO=10/RU=https%3a%2f%2fwww.wipo.int%2fedocs%2flexdocs%2flaws%2fen%2fin%2fin063en.pdf/RK=2/RS=X5ksf4oPFGqFffWzX88vSduKQ1c- 
• https://r.search.yahoo.com/_ylt=Awrxi88xC21eSXYAamK7HAx.;_ylu=X3oDMTBycWJpM21vBGNvbG8Dc2czBHBvcwMxBHZ0aWQDBHNlYwNzcg–/RV=2/RE=1584233394/RO=10/RU=https%3a%2f%2fwww.thestatesman.com%2findia%2farbitration-law-in-india-everything-you-want-to-know-1502757528.html/RK=2/RS=UVbhvjWC8KT7K64u9mrECByy4fM-
• https://r.search.yahoo.com/_ylt=Awrxi88xC21eSXYAbGK7HAx.;_ylu=X3oDMTByaW0wdmlxBGNvbG8Dc2czBHBvcwMyBHZ0aWQDBHNlYwNzcg–/RV=2/RE=1584233394/RO=10/RU=https%3a%2f%2fwww.vakilno1.com%2flegal-news%2flaw-of-arbitration-in-india-in-a-nutshell.html/RK=2/RS=oIsOvIoDIbRAkmMrlBrOqOyNK6g-

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This article on Facts which need not be proved under the Indian Evidence Act has been written by Arkadyuti Sarkar, a student currently pursuing his B.A. LL.B from Shyambazar Law College under the University of Calcutta.

Introduction

As a general rule of law, the party to a suit is required to establish his cause before the Court by adducing either oral or documentary evidence which includes electronic evidence. However, under certain scenarios, provided under the Indian Evidence Act, 1872, where the parties to a suit are not required to provide evidence in favor of their assertions.

Section 56 to Section 58 of the Indian Evidence Act contains the provisions related to non-imperativeness of admission of evidence by the parties to the suit before the Court to endorse the credulity of their statements.

Facts which are judicially noticeable need not be proven

According to Section 56 of the Indian Evidence Act, 1872, the facts of which the Court will take judicial notice need not be proved.

Simply put, any judicially noticeable fact does not require to be proven before the Court. Now for comprehending this statement, first understanding the meaning of the clause “taking judicial notice” is necessary.

This expression means recognizing something without proof of being existing or truthful. Judicial notice is the acknowledgement by the Court on certain matters which are so infamous or transparently established that their existential evidence is deemed inessential. The clear reason behind this is that such facts are expected to be within the ambit of knowledge of the Judge and therefore any attempt of proving them would indirectly undermine the judicial competency.

According to Lord Stephen, certain facts are so notorious by nature or have such authentic assertion and accessible publications that they do not require any proof. The Court, if it is unknown to such facts, can inform itself about them, in prior to taking evidence. These facts are deemed to be judicially noticed.

This Section has to be understood in unison with Section 57, reckoning the instances when the Court shall take judicial notice such that adducing any evidence would be unnecessary.

Facts of which the Court must take judicial notice

According to Section 57 of the Indian Evidence Act, 1872, the Court shall judicially notice the following facts:

• All existing laws within the territory of India;
• All previously enacted legislations or future legislations made by the UK Parliament, and all local and personal legislations made under its direction;
• Articles of war for the Indian Army, or Navy, or Airforce;

This refers to the Articles contained in the Army Act (XLVI of 1950), for soldiers, officers, etc.

The Parliamentary proceedings of the United Kingdom, the Indian Constituent Assembly, and any other provincial or State Legislature;

This refers to all legislative and other proceedings by the Parliament of the United Kingdom. Indian Constituent Assembly referred to the Central Legislature of the British India, however, subsequent to Independence it refers to the legislative and other proceedings held in the Upper House and the Lower House of the Parliament. The provincial or the State Legislatures refer to the Legislative Assemblies located in all the States constituting the Union of India. For Eg: the State of West Bengal, Andhra Pradesh, Maharashtra, etc.

• The accession and the sign manual of the existing Sovereign of the United Kingdom and Ireland;

Accession refers to the attainment or acquisition of a position of rank or power; and Sign Manual is the signature of the Sovereign, by affixation of which it expresses its pleasure either by order, or commission, or warrant. Here the Sovereign refers to the King or Queen of the United Kingdom.

• The Seals of all the Indian Courts, the seals of all the Courts outside India established under the jurisdiction of the Central Government or the Representative of the Crown, the Seals of the Admiralty Courts and of Public Notaries, and all other seals which any person is authorized of using under the Constitution or a Parliamentary Act of the U.K. or an Act or Regulation having a legal operation in India;
• The accession to office, names, titles, functions, and signatures of the persons occupying any public office, in any state, if the fact of their appointment has been declared by notification in the Official Gazette;
• The recognition of the existence, title, and national flag of every State or Sovereign by the Government of India;
• The time divisions, the geographical divisions of the world, public festivals, facts and holidays which are promulgated by notification in the Official Gazette;
• The territories which are located under the paramountcy of the Government of India;
• Any “notification” related to commencement, continuance, and termination of animosity between any other State or body of persons and the Government of India;

In simpler words, any declaration by the Government of India in relation to the beginning of hostility, continuation of hostility, and end of such hostility. For Eg: Declaration of War, continuation of war, and end of war.

• The identity of the judicial officers and members, including their deputies, subordinate officers, assistants, including all the officers acting towards executing the judicial process. Also of all the advocates, the attorneys, the proctors, the vakils, the pleaders and other persons legally authorized to appear or act before the Court;
• The rule of the road, either at land or at sea.

In case of road, the horses and all other forms of vehicle should keep to the left side of the road. At sea, it is the rule that ships and steamboats, on coming across, shold port their helms for passing on the port or left side of each other; steam boats should stay away from the route of sailing ships; and every vessel, while overtaking another vessel should stay away from its way.

In all these cases, including all matters related to public history, literature, science or art, the Court may refer to appropriate books or documents.

On being called upon to take judicial cognizance by any person, the Court may refuse to do so unless and until that person produces any such book or document which it may consider necessary to enable it to do so.

Facts admitted need not be proved

According to Section 58, no fact requires to be proved in any suit which the parties to the suit, or their agents agree of admission at the hearing, or which they agree to admit in writing, prior to the hearing or which they under any existing rule of pleading are deemed to have been admitted through their pleadings.

However, the Court by exercising its discretionary potency may require the admission of such facts in some other way for submission.

Thus, this Section contains three circumstances:

1. Facts which the parties to the suit or their agents agree to admit at the hearing.
2. Facts which the parties to the suit or their agents agree to admit, prior to the hearing, in writing.
3. Facts deemed to be already admitted by the parties to the suit through pleadings. 

Case laws

Onkar Nath and Ors v. the Delhi Administration 

In this case, the appellants were Union Leaders of the Northern Railwaymen’s Union. They were accused of instigating other workmen towards striking and were booked under Rules 118 & 119 of the Defence Of India Rules, 1971. They were sentenced with 6 months of rigorous imprisonment by the Metropolitan Magistrate of Delhi. The conviction order was upheld in a Revision Appeal by the Additional Sessions Judge of the Delhi High Court.

However, the previous judicial decisions were set aside by the Supreme Court, which observed that mere summary instead of the exact words cannot be deemed as the ground for conviction. The statement of the only witness may although be truthful cannot be relied upon, in absence of the exact words which were delivered at the meeting by the accused. The list of facts of which the Court shall take Judicial notice under Section 56 to be read with Section 57 is non-exhaustive, and shall, therefore, depend upon the discretion of the Court and vary from case to case.

S. Nagarajan v. Vasantha Kumar & Anr. 

Here, in this case, the respondents were husband and wife by relation and had 2 shops located at Trivandrum. Their residences were also located in the vicinity of those shops.

The petitioners, i.e. the Officers of the Customs Preventive and Intelligence Unit, on obtaining information that foreign goods were being sold in those shops and also stored in the houses of the respondents, searched the shops and also the house premises and seized them.

A trial was held under the Customs Act, 1962 with the prosecution asserting that the respondents were guilty of committing an offense under Section 135(1) of the said Act.

However, the respondents contended that the seized and confiscated goods were not for sale and also the notifications by the Central Government are not laws for consideration under Section 57(1) of the Indian Evidence Act, 1872, thereby pleading not guilty.

The Trial Court maintained the contention and ordered in favor of the respondents to which the petitioners appealed before the High Court of Kerala.

The High Court of Kerala after making due observations and considerations, overruled the trial Court’s decision and held that Central Government’s notifications are indeed laws within the ambit of Section 57(1) and therefore the respondents were held guilty.

Subhash Maruti Avasare vs State Of Maharashtra  

In this case, the appellant along with the accomplices of four others were found guilty of murdering one Babdya and were convicted under Section 323 of the Indian Penal Code by the Trial Court.

The appellant was a friend of the main accused Subhash Maruti Avasare and was also acquainted with the family of the deceased. The appellant had gone to inquire of the whereabouts of the deceased at his house and was informed by his mother of the deceased’s absence at that time. The deceased after returning had been informed about it and then he allegedly disclosed to her mother that the accused no. 3 (Rakesh Tukaram Pawar) had asked for a bottle of beer from him and on his refusal had slapped him. He further disclosed that an attempt of assault with a knife was also made on him but he had managed to escape.

On 30.10.1996 at about 6:30 PM, i.e the day of the incident, the deceased had gone to a clinic of a doctor with his wife for medical check-up of their ailing son. After some time, the victim’s wife runningly returned home and informed the witness no.1 (the deceased’s mother) that some people had picked up a quarrel with her husband in front of the hospital of Dr. Babar.

The prime witness went to the spot with her daughter-in-law and witnessed her son being mortally stabbed by the appellants. By this time the victim’s father and his son had also arrived at the spot, and the accused-appellants escaped in the meantime. The deceased was first taken to a local hospital and then transferred to the Sassoon hospital, where he died due to his injuries.

A post mortem was conducted and the cause of death was deemed to result from 7 succumbed external injuries and 5 internal injuries.

The Trial Court after observing the reports and testimonies of the accused persons and witnesses of the cases convicted the accused persons. The decision of the Trial Court was maintained both by the High Court of Maharashtra and the Supreme Court.

Conclusion

In the light of the above provisions from the Indian Evidence Act and the judicial decisions, it can be concluded that facts judicially noticeable by the Courts, such as laws operating in India; articles of war; governmental seals; facts related to legislative, executive and judicial proceedings in India or any other Sovereign or State recognized by the government of India; the rule of the road, at the land or at sea, etc; need not be proved by the parties to a Suit.

It is imperative for providing evidence under Section 57 that exact words and not the gist of the assertion is necessary for the purpose of conviction as mere gist is insufficient. Also, every notification or order made by the Central Government under the empowerment of any legislation is deemed as an operating law under Section 57.

Also, the facts admitted by the parties to a suit either prior to or at the hearing by themselves or their agents need not be endorsed with evidence. Such admission includes written admission.

References

Books 

The Law of Evidence by Ratanlal & Dhirajlal (26th Edition), Published by LexisNexis in 2017.

Online Sources 

1. www.indiakanoon.org
2. lawyerservices.in
3. legalbites.in

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“This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies(VIPS). This is an exhaustive article which deals with various provisions of the Indian Evidence Act which determine the relevance of character in Indian law.”

Introduction 

We often term the habit of judging people based on their character as normal human nature. Judges are also human beings and the question that arises is, doesn’t to know about the character of an individual influence their decision? The next set of questions that arise are, does the character have relevance, especially under the Indian Evidence Act? What is the scope of relevance of character? Answers to all these questions are the takeaway from this article.

The word ‘Character’

The term ‘character’ has not been described in Indian law. The Cambridge dictionary defines conduct as a particular combination of qualities that make a person different from others. Honesty, good-natured, modest, violent temper, etc. are all traits of character.

Section 55 of the Indian Evidence Act provides that the term ‘conduct’ includes both reputation and disposition. It is normally established that reputation is the general opinion about an individual in the eyes of the others whereas disposition is how that person is in real and what are his inherent qualities.

Evidence of character is irrelevant in civil cases

Section 52

Section 52 of the Indian Evidence Act provides that in civil cases, a fact pertaining to the character of an individual is not relevant. It lays the principle that the character of a party as a piece of evidence can’t be used to manifest that conduct attributed to him is probable or improbable. 

Illustration- 

• ‘A’, a businessman is charged with fraud. 
• In this case, no evidence of the fact can be treated as relevant which states that he is an honest man i.e. the character is such that he can never commit fraud.
• Neither can the opposite party present evidence of the fact that A’s character had been so trickery that he must have committed the fraud.

The reasons behind the irrelevance are that a case has to be decided based on the facts of the case and not the character of the parties. Evidence of conduct doesn’t just delay the proceedings but also hampers and impairs the mind of the judge. In civil cases, previous convictions of the accused person are irrelevant.

There are a few exceptions to Section 52-

• Section 55 of the Evidence Act provides that in civil cases, evidence of the good or bad character of the person that is to receive the amount of damages is relevant. The character of the original plaintiff is relevant. 

For example- In a case of the action of damages for rape or seduction, the character of the plaintiff is relevant as it is likely to affect the damages that the plaintiff ought to receive.

• When the character of the party is itself a fact in issue then the evidence pertaining to the character of that party is relevant.  

For example- if divorce is sought on the ground of cruelty of husband, in such case evidence pertaining to the character of the husband will be relevant as the cruel character is itself a fact in issue.

In the case of Scott v. Sampson, the court held that the term ‘character’ should mean a man’s reputation and nothing more than “general evidence of reputation”.

Evidence of previous good character is relevant in criminal cases 

Section 53

Unlike civil cases where the character is irrelevant, in criminal cases it is relevant. Section 53 of The Indian Evidence Act provides that in criminal cases, the good character of the accused person is relevant. The reason behind this is the basic human psychology that a person of good character will not generally resort to a criminal act. If goodness is proved it helps in a presumption of non-commission of the offence by that individual. 

Evidence of good character is always admissible. In a doubtful case, it may be used to tilt the balance in favour of the accused but in a case where there is positive evidence of guilt of the accused then the good character cannot outweigh the positive evidence. It depends on the discretion of the court that how much weight the evidence of the good character has to be given while deciding the case.

In the case of Habeeb Mohammad v. State of Hyderabad, the Supreme Court held that in criminal proceedings, the character of the accused can help in determining the innocence or guilt of the accused. It can help in either making him suspicious or free from all the suspicions. Accused is allowed to prove general good character in the question of punishment.

Evidence of character or previous sexual experience not relevant in certain cases  

Section 53A

Section 53A of the Indian Evidence Act was inserted by Act 13 of 2013. This section provides that in cases where the offence is committed under the following sections of Indian Penal Code-

• Section 354 (Assault or criminal force to woman with intent to outrage her modesty), 
• Section 354A (Sexual harassment and punishment for sexual harassment), 
• Section 354 B (Assault or use of criminal force to woman with intent to disrobe),
• Section 354 C (Voyeurism),
• Section 354 D (Stalking), 
• Section 376 (Rape), 
• Section 376 A (Intercourse by a man with his wife during separation), 
• Section 376 B (Intercourse by public servant with woman in his custody), 
• Section 376 C (Intercourse by superintendent of jail, remand home, etc.), 
• Section 376 D (Gang Rape), 
• Section 376 E (Punishment for repeat offenders) and,
• an attempt to commit such offences 

and the consent or quality of consent is in question, then neither the character of the accused nor the victim is relevant. Evidence pertaining to previous sexual acts of the victim is also irrelevant.

Previous bad character not relevant, except in Reply  

Section 54

According to Section 54 of the Indian Evidence Act, evidence pertaining to the fact that the accused has a bad character is not relevant in criminal cases. In other words, the prosecution cannot present evidence of the accused’s bad character as a part of the main case. 

There are certain exceptions to this section-

• When the accused has submitted any evidence of his good character, in such a case to rebut, the prosecution can present evidence pertaining to the bad character of the accused.
• Explanation 1 to Section 54 provides that when the character is itself a fact in issue then evidence of bad character can be submitted. 

Illustration: In a defamation case, the character of the plaintiff becomes a fact in issue. Section 110 of the Code of Criminal Procedure provides that if a person is by habit a robber, a housebreaker, etc. then he is to be bound down.

In the case of B. Vasanthi v. Bakthavatchalu, the characters of both the plaintiff and the defendant were facts in issue and the court considered evidence of the character of both to decide in the best interest, the custody of the children.  

Bad character isn’t defined in Indian law but it amounts to the general meaning as interpreted by the society. Explanation 2 of section 54 provides that evidence showing any previous conviction is also relevant as evidence of bad character in criminal cases. According to Section 71 of the Indian Penal Code, any person who is already a previous convict should be sentenced a longer term of imprisonment than that is awarded ordinarily.   

Character as affecting Damages: Section 55

Section 55 of the Indian Evidence Act states that in cases of civil nature, the character of the person who is ought to receive the amount of damages is relevant. This section is an exception to Section 52 mentioned above. The evidence pertaining to the good or bad character of the accused is irrelevant whereas evidence of the good or bad character of the victim is relevant.

For instance, in cases of seduction or rape or defamation, the evidence of the good or bad character of the original plaintiff is relevant to decide the amount of damages that the plaintiff is ought to receive. This is generally used to reduce the amount of damages. 

Explanation of this section states that the term character which is used in sections 52, 53, 54 and 55 includes both reputation and disposition.

• Disposition is often referred to as what a person is in a person’s reality. A person’s inherent qualities which he had obtained through education, upbringing or any material condition in life is called disposition. A bad reputed person may have a good disposition.
• Reputation is often referred to as the general estimation of a person. It is what other people think about that individual. It is to be noted the evidence of those who do not know the individual but have heard of his reputation is not admissible in court.

Illustration: In the show ‘Suits’, the character Harvey Specter had a reputation of an arrogant and selfish individual whereas he had a disposition of a highly confident, self-motivated, practical thinker and focused individual. Both of these things combinedly defined the character of Harvey Specter.

Distinction Between Relevancy of character in Criminal and Civil Cases 

In order to differentiate the first thing to note is that the Indian Evidence Act talks about two types of characters- good and bad character. 

In cases of civil nature, the evidence pertaining to character is irrelevant as per Section 52 of the Evidence Act. There are two exceptions to this rule: first, when the character of the party is a fact in issue then evidence of character is relevant and second, the character of the person who ought to receive the amount of damage is relevant(Section 55). 

Whereas in cases of criminal nature, the previous good character of the accused person is relevant(section 53) but the previous bad character is not relevant(section 54). Evidence of the bad character of the accused is relevant in two cases: first, to rebut the evidence of good character presented by the prosecution and second, when the character of the party is itself a fact in issue.

Case laws

• Bharpur Singh v. Parshotam Dass on 2 November 2015

In this case, the Court described the scope of sections 52 and 54 of the Indian Evidence Act. This case was filed to resist an action for recovery brought on a promissory note. While deciding the scope of Section 52, the Court observed that this section refers to a situation where evidence of character is relevant in a civil case. Normally any evidence of character cannot render the probability or improbability of any conduct and is irrelevant in civil cases. If the character is a fact in issue then evidence of character is relevant. 

Section 54 observed that previous bad character can be relevant only in case of rebuttal to good character evidence or when the character is a fact in issue.

• Sardar Sardul Singh Caveeshar v. State Of Maharashtra on 18 March 1963

This case is also referred to as the Empire Conspiracy Case. The Court answered the question of what is the evidentiary value of the character of an accused in a criminal case. It observed that Section 53 mentions that the good character of the accused is relevant in cases of criminal nature. 

Section 55 of the Act makes it clear that general reputation and general disposition in criminal cases are relevant. The Court also explained the difference between reputation and disposition. It stated that disposition is ‘inherent qualities of a person’ whereas reputation is ‘general credit of the person amongst the public’. A man may have a good reputation but in reality, may have a bad disposition. The value of evidence depends on the cleverness of the person to hide his real traits, and the witness’s opportunity to observe the accused. 

The court quoted Wigmore’s proposition which stated that evidence can be used in a doubtful case to tilt in favour of the accused but it can’t outweigh a piece of evidence which shows the guilt of the accused. Evidence of good character is a weak evidence but can be used in criminal cases.

Conclusion 

It is concluded that according to the Indian Evidence Act, in civil cases, the evidence pertaining to character isn’t relevant subject to certain exceptions. In criminal cases, the evidence pertaining to good character is relevant but evidence depicting the bad character isn’t relevant subject to certain exceptions. Various countries like the USA, UK and many more also deal with the relevance of character as evidence.

References 

1. https://www.myadvo.in/blog/character-as-evidence-under-the-indian-law
2. https://indiankanoon.org/
3. https://dictionary.cambridge.org/dictionary/english/character

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

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This article is written by Ilashri Gaur, a law student pursuing B.A LLB(Hons.) from Teerthanker Mahaveer University (CLLS). This article deals with the relevancy of the judgments of the court of justice.

Introduction

Let us first understand the actual meaning of judgement under the code of civil procedure, 1908. The section 2(9) of CPC defines it as a decision which is given by the judges in a court regarding the rights, duties and liabilities of an individual. The basic theory of law is whether the previous judgements or the following judgements are not relevant, as every case is decided by its own facts. The judgement depends upon the facts of the case of particular parties and not by the references to the judgement of other cases.  

Judgment is of two types: –

1. Judgement in rem
2. Judgement in personam

1. Judgement in rem: – When a judgment is given on a particular subject matter, it will not only remain between the two parties but also be applicable to the entire world.
2. Judgement in personam: – When a judgment is given on a subject matter, it will remain between the parties. It means the judgment will be against an individual.

‘’Relevancy of judgement,” it means that every judgement is based upon the facts of each particular case. If we understand it in a simple way, it says that each and every case has its own importance. The judgement of each case is based upon the subject matter and it is not necessary that the judgment of one case is interrelated with another case.

A civil judgement is not relevant to a criminal trial though arising out of the same fact. A judgement in a civil case for defamation is not relevant to criminal prosecution. The previous judgment is not relevant to the subsequent case. More importance is given to the facts of the cases and on the basis of which judgement is given.

The Indian Evidence Act, 1872

The law may be divided into 2 parts i.e. substantive law and procedural laws. Substantive laws are those laws which define the right, duties, punishments and offences for the same, for e.g. I.P.C., and procedural laws are those by which the procedure of substantive law is regulated, for e.g. C.R.P.C. So the procedural law includes the Evidence Act. The existence of proof or evidence  is necessary in procedural law. The Indian Evidence Act was originally passed by the Imperial Legislative Council in 1872 in India, during the British Rule. It contains a set of rules and provides, inter alia, how a fact is to be proved.

It includes sections regarding the judgment of court of justice when relevant from Section 40 to Section 44 which talks for the same.

Section 40- Previous judgments relevant to bar a second suit or trail

Under the Indian Evidence Act, 1872, Section 40 defines that, the existence of any judgment, will be relevant even in a second trial. Here the rule of ‘res judicata’ applies. It simply means that if any judgement which prevents the court from giving attention to such a suit or petition then it will be a relevant fact.              

The question arises: what is “res judicata”?

Many of you may have heard about this word. “Res” means “subject matter” and “judicate” means “already decided”. So, it says that the matter is already decided. It is defined under Section 11 of Cr.P.C.

 For Example: – ‘A’ and ‘B’ are two parties, ‘A’ sues ‘B’ for matters related to property. But the court dismissed the suit and then again ‘A’ filed a suit against ‘B’. So it was said that once the judgement was given by a court over a particular subject matter then that court does not have the jurisdiction and the formulae of res judicata applies.

Similarly, the Criminal Procedure Code bars a second trial of a person once tried or convicted. Thus, the judgment by which he was convicted will be relevant to every case or proceeding in which he is charged with the same offence.

Shrinivas Krishnarao Kango v. Narayan Devji Kango And Others (1954)

This case belongs to a member of a joint undivided family. Both Siddopant and Krishnarao were members of the Kulkarni family. Krishnarao died in 1897 and left behind a widow (Rukminibai) who was the sixth defendant. Siddopant died in 1899 leaving his son Gundo. Gundo died in 1901 leaving behind his widow (Lakshmibai) who was the fifth defendant. Lakshmibai adopted a son Devji, who died in 1935 leaving his three sons. The three sons and a widow (Akkubai) who was the fourth defendant. In 1944, Rukmanibai adopted the plaintiff and now that adopted son was the Petitioner in this case and the Respondent was Devji. So, the Plaintiff was claiming for the half share from the family property. But the Defendant denied the truth and validity of the plaintiff’s adoption. They further said that the only ancestral property belongs to the family of Watan’s Land. In this case, the court held that the adoption of the plaintiff was valid or true and also said that this question was no longer in dispute. The trial court held that the plaintiff was entitled to the share. 

Section 41- Relevancy of certain judgment in probate, etc, jurisdiction

The Indian Evidence Act, 1872 says that a final judgment, order, decree or ruling of a court exercising probate (relating to will), matrimonial (marriage, divorce), admiralty (war claims) or insolvency jurisdiction is relevant.

This section consist of two parts: 

1. It deals with judgement in rem i.e. a kind of declaration about the status of a person and is effective to the entire world whether he was a party or not.
2. A judgement in personam is when a judgment is given to the parties (e.g. a tort or a contract action) which binds only the parties and is not relevant in any subsequent case.

Such judgment is conclusive proof. It refers to a presumption of a particular set of facts which cannot be overruled or changed by additional evidence or argument.

Syed Askari Hadi Ali Augustine  v. State (Delhi Administration) & Anr (2009) 

In this case, Shamim Amna Imam was a Testatrix (a person who made a will or gave a legacy). She was the owner of the properties in question. She executed a will in favour of the appellant i.e Syed Askari Hadi Ali on 3.5.1998 and after that, she died on 23.5.1998. Syed Askari Hadi Ali filed an application regarding the will. He also applies for a grant of mutation in respect of the property but the request for mutation could not be accepted due to certain reasons:-

1. The appellant could not produce the original copy of the will.
2. The property which was in question was under possession.
3. And the Title Suit which was filed by the Testatrix against the appellant was pending in the civil court.

So, after this many appeals were made and due to lack of proof which was essential in this case; finally the court said that it is not a fit case where we should exercise our discretionary power or jurisdiction under Article 136 of the Indian Constitution have regard to the facts of the case and the circumstances regarding the same.

Kinds of jurisdiction: –

• Probate jurisdiction 

It exercises the power of probate, surrogate, or orphan’s court. It includes the establishment of wills; settlement of a decedent’s estate; supervision of guardianship of infants.

Goutam Shantilal Shah vs State of West Bengal on 9 May, 1996 

In this case, a question arose, whether district delegates under section 276 of Indian succession act 1925 can entertain an application for grant of probate of a will in respect of immovable property. But in the end, it was held that if any application is made for grant of probate of the will, such application shall be decided in accordance with the law.

• Matrimonial jurisdiction

It exercises the power of marriage, divorce, et thoro, the nullity suit.

Santhini vs Vijaya Venketesh on 9 October, 2017 

This case deals with section13 of Hindu marriage act, in this case, it was held that video conferencing is not allowed in matrimonial matters. In the circumstances, issue notice on the review petition.

• Admiralty jurisdiction

It exercises the power of law over cases concerning ships or the sea and other navigable waters.

Gobind Ram vs Gian Chand on 27 September, 2000 

This case deals with the matter in admiralty court. The respondent who was alleged to have committed breach of contract in London, the admiralty court’s jurisdiction was invoked in England.

• Insolvency jurisdiction

It exercises the power of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings.

Krishnaswami Iyer and … vs T.V. Swaminatha Iyer on 26 August, 1924

This case deals whether vakils have a right of audience in the insolvency of the court at the Presidency Town of Madras. G. Krishnaswami Iyer was the appellant and  T.V. Swaminatha Iyer was the respondent. After all the discussion it was decided that vakils had no right of audience in the insolvency court. 

Section 42- Relevancy and effect of judgments, orders, decrees, other than those mentioned in Section 41 of the Indian Evidence Act

The effect of judgment or order will be relevant, except those which are mentioned in section 42. 

• Judgements are relevant if they are related to matters of public nature.
• But such judgment, order or proclamation is not conclusive proof of which they state.

Illustration: – X  sues Y for the murder of his brother i.e. Z. Y alleges the existence of a public right of a licensed gun which he used for his protection against Z. The existence of an order in favour of the defendant. Similarly in a suit by B against A for the murder of C in which A alleged the existence of the same right of way, is relevant but it is not conclusive proof that the right way of existence.

 Vishnu Dutt Sharma v. Daya Sapra on 5 May, 2009  

In this case, the Respondent who was Daya Sapra had borrowed a sum of rupees 1.5 lakhs from the Appellant Vishnu Dutt Sharma on 10-August,1999. After reminder by appellant to respondent, the respondent issued a cheque on 20-October,1999, but the cheque received by the appellant with remark of insufficient funds. Then he filed a petition against the respondent. Earlier it was said that it was the matter of ‘Res Judicata’ but the final judgement was given that it was not the matter of ‘Res Judicata’. So the appeal is allowed however the facts, issues and circumstances of this case, there shall be no order as to costs.

Section 43- Judgments, etc, other than those mentioned in Section 40 to 42, when relevant

Judgment, order or decree are irrelevant other than those mentioned in section 40, 41 and 42. In this, the previous judgments are not relevant with concern with the subsequent proceeding.

Let us understand with an illustration. ‘X’ prosecutes ‘Y’ for stealing his horse from him. ‘Y’ is convicted. Afterwards ‘X’ sues to ‘Z’ for the horse which ‘Y’ had sold to ‘Z’ before his conviction. As between ‘X’ and ‘Z’, the judgment which was against ‘Y’ is irrelevant.

In the case of The Duchess of Kingston’s Case, it was held that the Dowager Duchess of Kingston, Countess of Bristol, was tried and found guilty of the charge of bigamy by her peers, the members of the House of Lords. 

Admissibility of judgments in civil and criminal matters

Admissibility of judgments means that the quality of being acceptable or valid, especially as evidence in a court of law. So here is some admissibility of judgment in civil and criminal matters: –

• The principle of ‘Res Judicata’ may apply between the parties in civil suits.
• If the proceedings of civil and criminal cases are for the same cause or reason, then the judgment of the civil court would be relevant if the conditions of any sections regarding 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in section 41.
• In a criminal case, section 300 of C.r.P.C, it is said that once a person is convicted, he may not be examined again for the same offence if the conditions which are mentioned there are satisfied. 

Emperor vs Bhagwandas Tulsidas on 20 August, 1945 

In this case, it was held that the accused murdered Dharamsey and Mr. Haji, and he says that the matter will come under Section 42 of the Indian Evidence Act under matters related to public policy. But it was held that the matter related to such an unnatural death will not come under public concern. Hence, the examination of certain facts is not relevant under any provision related to the Indian Evidence Act and therefore unacceptable in evidence.     

Section 44- Fraud or collusive in obtaining judgment, or incompetency of court, may be proved

Section 44 of Indian Evidence Act says that if the previous judgment is proved fraud, collusion (secret or illegal cooperation) or incompetency of court then such judgement does not have the effect of res judicata. 

• There are at least 2 parties to a suit or proceeding.
• If any party may show a judgment, order, or decree which is relevant under section 40, 41, or 42.
• The act only provides that the value of a judgment may be ineffective if these three things are present in that case that are: –

1. Incompetency of the court
2. If there is fraud
3. If there is collusion

Asharfi Lal vs Smt. Koili (Dead) By L.Rs. (1995)

This case is related to the land reform dispute and Zamindari abolition as in this case, Raja Ram was the brother of Smt. Koili and husband of Smt. Nanki. And here the Asharfi Lal who was an appellant and he said that he was the only heir of Raja Ram and said for the possession of agricultural land of Raja Ram but the Smt. Koili denied that the Asharfi lal was the son of Raja Ram. Earlier the judgment was in the favour of Smt. lal but afterwards the evidence of record which were produced in the consolidation proceedings the Deputy Director has found that Ashrafi lal was the son of Raja Ram and the only heir. 

Conclusion

According to me, judgment should totally be on the basis of the facts and the issues raised in the court. The court is also required to determine what principles of law should control the case. But there is also a criticism regarding this that there is always a scope for improvement. The judges said that the system which is developed and applicable in one jurisdiction is not necessary to be applicable in the jurisdiction of other countries. After all, no system is fool-proof. Once it is said by Justice Sikri, that we all learn from our experiences and mistakes.

References

• Shrinivas Krishnarao Kango vs Narayan Devji Kango And Others on 23 march, 1954
• Syed Askari Hadi Ali Augustine … vs State (Delhi Admn.) & Anr on 3 March, 2009
• Goutam Shantilal Shah vs State of West Bengal on 9 May, 1996
• Santhini vs Vijaya Venketesh on 9 October, 2017
• Gobind Ram vs Gian Chand on 27 September, 2000
• G. Krishnaswami Ayer and … vs T.V. Swaminatha Iyer on 26 August, 1924
• Emperor vs Bhagwandas Tulsidas on 20 August, 1945
• Asharfi Lal vs Smt. Koili (Dead) By L.Rs. on 20 April, 1995
• Vishnu Dutt Sharma vs Daya Sapra on 5 May, 2009

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