This article is written by Anubhab Banerjee, from School of Law, Alliance University. It deals with the provisions regarding cancellation of instruments under the Specific Relief Act, 1963.

Introduction

The legal system in India provides for certain duties and obligations which are to be performed by each party to a contract. A party found in breach of any such duty or obligation is punishable under law. Along with these duties, the laws also provide for certain reliefs to the parties to a contract, in cases where a contract can be held questionable under law. One such relief is the Cancellation of Instruments, which has been mentioned under the Specific Relief Act, 1963. This article would help the reader understand the different issues associated with the Cancellation of Instruments under the Specific Relief Act, 1963.

Cancellation of instruments

In simple language, cancellation of instruments means the nullification of a written document which is proof of a transaction between the parties that are part of the transaction. An instrument being every document by which any right or liability is, or purports to be created, transferred, limited, extended or extinguished as per the Indian Stamps Act, 1899. 

Cancellation of documents is dealt with under Sections 31, 32 & 33 of the Specific Relief Act, 1963. If there is an instrument, which is void or voidable due to some reason and a party to such an instrument has enough reasons to believe that the said instrument has the potential to act against him and may even cause serious injury to him, then such a person can file a suit with regards to the cancellation of such an Instrument. This is a discretionary relief and the reason behind such is defined in the later stages of this article.

Cancellation of Instruments can be done in two ways, as follows:

• Complete cancellation where the court decides to cancel the whole instrument.
• Partial cancellation where only a part of the instrument is cancelled out. These types of cancellations are mentioned under Section 32 in the Specific Relief Act and have been further explained later in this article.

Main requirements for cancellation

The cancellation of an instrument can be done by the Civil Courts on request of a party to a transaction only after considering certain requirements. A suit for cancellation of an instrument filed by a party, shall be entertained only if any of the following requirements are met:

• If the instrument against which the cancellation suit is filed by the party is void.
• If the instrument against which a cancellation suit is filed by the party is voidable.
• If the instrument against which a cancellation suit is filed has the potential to cause injury/harm to the party filing the suit.
• If the party who has filed a suit for cancellation of an instrument is under reasonable apprehension of an injury being caused to him/her due to the performance of the instrument.
• When the instrument whose cancellation is requested by the party has already caused enough damage/injury to the requesting party.
• In the view of all the circumstances of the case, the Court must be satisfied that such cancellation of an instrument is reasonable and would serve justice to the parties coming to the courts for such claims.

If any of the above conditions/requirements are satisfied, then a person may successfully proceed with a suit for the cancellation of an instrument.

When cancellation is ordered

The Specific Relief Act, 1963 under Section 31 tells us about when the cancellation of an instrument may be ordered by a court. To begin with, this Section under its first clause tells us that any person who is aggrieved by the performance of a particular instrument and feels that such an instrument has become void or voidable, or believes that the instrument has the potential of causing injury/harm to him if such a transaction is continued may file a suit at a Civil Court to have such an instrument declared to be void. Once such a suit is filed it is upon the Court to decide whether such an instrument should be declared void or not. The Court has complete discretion in such matters. Thus, the Court can order for the cancellation of such an instrument if the above-mentioned requisites are fulfilled.

The second clause of Section 31 tells us that if an instrument which has been put up in front of the Court for cancellation is a document which has been registered under the Indian Registrations Act, 1908, then a copy of such a decree containing details about the cancellation of the instrument is required to be sent to the officer under whom the instrument/document had been registered. Such a decree is sent for the convenience of the officer and to keep his register updated. Upon receiving the instructions/decree from the court, the officer is required to mark the copy of the documents as “cancelled” in his register.

Partial cancellation of instruments

The process of partial cancellation of instruments is mentioned under Section 32 in The Specific Relief Act, 1963. 

This section says, that when a particular part of an instrument is up for a question of cancellation in front of the court or when such an instrument has several rights and obligations required under it, the court upon its discretion may cancel only a part of that instrument and let the rest of it stay as it is. Partial cancellation basically means that a part of the instrument which is inconsistent, void or voidable shall be cancelled by the court and such cancellation shall not have any effect upon the performance of the other rights and obligations associated with the instrument.

Power to require benefit or compensation

The provisions with regards to the power of the Court, to require restoration of benefits received and fair compensation which are supposed to be made when an instrument is cancelled are provided under Section 33 in the Specific Relief Act, 1963. The primary aim of this section lies in serving justice to the participants of a particular instrument/contract in case such is cancelled by the court.

This Section firstly tells us that when the court decides to cancel an instrument either completely or partially, then the party towards whom such relief is granted is required to either restore/claim any benefits which he/she may have received from the other party or to make the required amount of compensation for it. Such conditions are put forth by the act with an intention to deliver justice to the parties, as a court is a place that is responsible for delivering justice to the people who approach it.

This Section also provides/states/lays the conditions under which, a defendant to a suit for the performance of an instrument/contract may claim for the cancellation of such an instrument/contract. The conditions mentioned in Section 33 are as follows:

• When a plaintiff files a suit to enforce a contract against a defendant and the defendant tries to resist the contract by claiming such a contract to be voidable. In such a case if the court is also of the opinion that the contract/instrument under consideration is voidable, then the court may order for the cancellation of such an instrument/contract.
• When a plaintiff files a suit to enforce a contract against a defendant and the defendant tries to resist the contract by claiming such contract to be void because of the defendant not being competent to participate in a contract under Indian Laws. Competence to enter into a contract is defined under Section 11 in the Indian Contracts Act, 1872. Competence to enter into a contract can be judged by conditions such as age, soundness of mind, etc. In such a case the instrument/contract shall be cancelled by the court.

With regards to the above-mentioned conditions if an order of cancellation is passed by the court with regards to an instrument, then the defendant shall have to restore the benefits he/she has received from the other party while the performance of such contract/instrument and the defendant shall also be asked to compensate the other party i.e. the plaintiff accordingly, to satisfy the purpose of the court in serving justice.

Case laws for cancellation 

These provisions with regards to the cancellation of an instrument under the Specific Relief Act 1963 can be better understood by the decisions given with regards to the cancellation of an instrument by the Indian Courts. A few interpretations of the judgements given by the Indian Courts are given below.

• Vellayya Konar and another v. Ramaswami Konar and another 

This case is relevant to our topic as in its Judgement, his lordship Wordsworth.J. has distinguished between the cancellation of an instrument and a declaration that the instrument is not binding on the plaintiff.

This judgement tells us that a suit for cancellation of an instrument can only be filed by parties who are a part of such a transaction and such a suit can be held for cancellation at the discretion of the court. If a third party who shares concerns regarding a transaction/instrument i.e. if such third party feels that he/she is unfairly treated because of the performance of the obligations of such an instrument by the parties to it, then such third party cannot file a suit for the cancellation of the instrument. The court said that in such a case the concerned third party would have to sue for declaration decree and not cancellation of an instrument. 

• Jeka Dula v. Bai Jivi (1937) 

This case helps us to understand the importance of Court intervention with regards to the cancellation of an instrument as well as the logic used by the courts for such cancellations. The judgement talks about the importance of justice to be served by the court. Justice to be served by the court is hence linked with the aspect of cancellation of an instrument. 

If an instrument is being used unfairly by any of the parties to a transaction, which is causing harm or is intended to cause harm to the aggrieved party who has approached the court, then such an instrument should be cancelled at the discretion of the court for the purpose of serving justice.

The cancellation of an instrument is a protective measure under the Specific Relief Act, 1963 for the protection of such parties who are at a fear of being harmed by the other party through the performance of an instrument of which they are a part of.

• Ram Karan v. Bhagwan Das

The Hon’ble Court, in this case, interpreted the consequences of misrepresentation or fraud on the cancellation of a document. The Hon’ble Justice considered misrepresentations in a particular document/instrument to obtain certain benefits to be an act which makes the performance of the obligations of the document/instrument/contract voidable and not void. The court, in this case, has said that since the obligations of the contract were voidable. The defendants to the case should have sought relief under the provisions with regards to Cancellation of an Instrument under the Specific Relief Act, 1963 and such a claim shall be instituted within the period of Limitation for such claims as mentioned under the Limitation Act, 1963.

• Prem Singh & Ors v. Birbal & Ors. (2008)

The Hon’ble Supreme Court, in this case, has talked about Section 31 in the Specific Relief Act, 1963. The Hon’ble Court was of the opinion that cancellation of an instrument can be entrusted upon when either the document is a void document or a voidable document.

The Hon’ble Court held that as far as void documents are considered the aggrieved party may not be required to file a suit for cancellation of an instrument/document under Section 31 in the Specific Relief Act, 1963. Though when a similar concern is raised with regards to a voidable document/instrument then a suit for such shall be required to be filed under Section 31 in the Specific Relief Act, 1963 for the purpose of cancellation of the instrument.

Conclusion

The purpose of cancellation of instruments by the courts in India under the Specific Relief Act of 1963 has always been with an intent to serve justice to the parties who are in a fear of being harmed or are actually being harmed by the other party due to the performance of such instrument/contract. The court serves justice in such situations by way of cancellation of the instrument/contract. Thus it can be said that provisions with regards to the cancellation of instruments under the Specific Relief Act, 1963 is commendable and falls in line with the purpose of Courts to serve justice.

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This article is written by Akarsh Tripathi, a student of Symbiosis Law School, Noida. Through this article, we will learn about the impact of the COVID-19 outbreak on global law firms and how they can strategize their work structure for the next few months.

Introduction

Be it the 19th century or the 21st century, the requirement of physical interaction in the corporate or the legal world has never reduced. Even after the unparalleled development in the tech systems of the world; lawyers and other professionals prefer the in-person meeting to discuss even the smallest detail of a transaction.

However, the time has come where law firms need to adopt new practice like work from home, e-conferencing and an agile working system programmed to protect itself from the problems created by crises, like that of the COVID-19 pandemic. Law Firms across the globe are deciding to close their offices due to the coronavirus crisis. Baker Mckenzie, Blank Rome, Hogan Lovells and many other law firms have shut down most of their offices claiming that their lawyers and staff are “fully prepared to work remotely” and that their tech systems are capable of managing the disturbances. But, there still are few law firms who are not closing their law offices despite the novel corona outbreak. The Chicago office of Clark Hill has not been closed even after a case of COVID-19 positive came forward, which was in the same building at the Prudential Plaza.

Pandemic- COVID 19

Apart from the obvious health repercussions which occur due to any health disease outbreak, COVID-19 has managed to draw the attention of everyone by the means of panic and fear which has been ‘created’. The rate at which this trepidation is occurring is faster than the rate of spread of this novel virus. We use the word ‘created’ here because it is true that the only ones responsible for such panic are the public, who spread information as well as rumours. Now here comes the duty of government authorities, the World Health Organization (WHO) and various other organizations to make sure that proper and clear advisories are released. The global crisis has hampered the working of both the blue-collar as well as the white-collar sectors of the ecosystem.

Impact of Coronavirus on law firms

Contractual issues

The outbreak of novel coronavirus has disrupted and deranged almost every industry of the world. Hotel industries, airline industries and various other sectors are facing severe impacts of the State Emergencies and lockdowns being imposed to contain the spread of COVID-19. 

Such owners and operators should not face these disruptions and they shall also be excused from the performance of various contracts they are obligated to. 

Even if laws vary from country to country, the fundamentals and basics are similar. A contract may not be performed due to reasons, which can be justified and thus excuse the party(or parties) from the obligation of performance of the contract. Some of them are:

Nowadays, Companies are continuously seeking the advice of law firms and in-house counsels related to matters of ‘force majeure’. The word literally means “superior force” in French. It’s a clause in a contract which helps the parties to free themselves from the liability of performance of the contract. It can be solicited in case of any unforeseeable circumstance becoming a hindrance for the parties to fulfil their contractual obligations. There is great uncertainty as to the applicability of the law, due to which various industries are consulting commercial law firms to assess the risk and liability associated with the contractual obligations. 

It is important to note here that at times, such clauses are overlooked by legal counsels in the agreements, and thus during these unusual and unexpected times, such clauses shall be given some extraordinary importance and special attention.

The doctrine of impossibility of performance of a contract can be applied if there is an unexpected and unforeseeable change of circumstances due to which the contract cannot be performed. Provided that such a change in circumstances was not due to the intervention of either of the parties to contract. 

For eg: There is a contract between two parties to organise an event at a club of Amsterdam. However, due to the potential threat of terrorism in Amsterdam, the authorities prohibit any such gathering, then the condition shall lead to impossibility of performance of such contract. 

In addition to the doctrine of impossibility, the doctrine of frustration shall also be looked upon by law firms to consult their clients and help them in evaluating every possible outcome of their contractual compliance. Although this doctrine is sometimes called a “companion” of the doctrine of frustration, there is a difference between both of them. The doctrine can be applied and used in the case where even if a contract can be performed, the performance might produce a totally different result than that of what was agreed by both the parties.

Thus, it again falls upon the duty of the law firm and the legal counsels of the companies to utilize these defences in the best possible manner. 

Law firms are continuously advising their clients about the claims that the risks associated and losses incurred by the outbreak of coronavirus is included in the clause of force majeure. However, the companies and the parties to a contractual agreement who don’t have a clause of force majeure included in their agreements are at higher risk as they have no proper excuse of non-performance of the contract, which may later make them liable for breach of contract.

Which is the most affected area of legal practice during this time?

The most affected area of legal practice due to the spread of novel coronavirus pandemic is litigation. This is because, for a hearing to take place, the witnesses, judges, lawyers and court staff are required to be physically present. Hearings tend to be postponed because of unavailability of one or more such people. This impedes the working of the court and also the work of firms to work for their clients. 

Due to the global outbreak of novel coronavirus, the U.S. Supreme Court has decided to postpone the hearing until further notice, and hearing on urgent matters will be done in Court. Many other jurisdictions including that of India’s have decided to close the courts until further notice. The European Court of Justice and the General Court of the European Union has also closed its doors and will hear only urgent matters, with the aim of reducing in-person interaction in courts and avoiding public gatherings.

Effect of COVID-19 on the Recruitment Prospectus 

When we talk about the financial difficulties faced by global law firms and various other impacts of this pandemic, we should also need to look upon how the lawyers, paralegals and any other legal professionals are affected due to the chaos occurring within the firm. Although law firms are currently coy about their plan of action with regards to any hiring freeze, it can easily be predicted that sooner or later, law firms will start considering pay cuts of partners and even associates. The most vulnerable are the underperforming attorneys and the lawyers who are close to their retirement age. 

Other difficulties 

There are many issues which haven’t been discussed yet and need proper study so as to clear the ambiguity present in the legal system. Some of these issues which are faced by companies and law firms are based on the following questions:

1. Giving more validity to Electronic Digital Signatures: Since people across the world have begun to adopt the practice of work from home, there needs to be more recognition given to e-signatures, for instance, giving them cross-border validity so that people or organisations from two different countries don’t face problems in entering into transaction amid the quarantine laws and lockdown imposed in their countries.
2. Issues in the Insurance Sector: The losses faced by companies during this time are often covered by some or the other insurance policies. However, disputes may arise regarding the applicability and relevance of such risk and losses covering insurance policy.
3. Uncertainty of the legal implications: Even if we discuss and plan out many strategies and analyse its effect on the law firms, we need to understand the fact that the impact of COVID-19 is uncertain. No plan is tried and tested. There are critical questions which law firms are finding answers to, like for instance, how long will it take for them to get back at their earlier pace? When will the courts and the judicial system be back on the tracks? 

Whether the current situation is boon or bane

Throughout the world, lawyers and legal counsels have begun to suffer from some kind of economic crisis. This is not because of a lack of demand for such professionals but because of the delayed payments made by clients and companies. These companies are trying to minimize their expenses as a result of the devastating economic impacts caused by the coronavirus pandemic. Due to such reductions in the legal fees of law firms and in-house counsels, the lawyers and legal professionals take a hit and suffer financial havoc created.

Much to our surprise, there is still a rising need for legal personnel to consult companies during and after the outbreak. There has been a sudden upsurge for the demand of lawyers and law firms, to help clients with their queries, in finding them ways so that they can back out from the contract they were legally obligated to, or so that they can ensure that their deals and agreements don’t fall apart. Many mergers and acquisitions especially the ones involving China-based companies, and which were in the middle of their transactions are worried about the disruptions caused to them and are thus modifying their M&A clauses. This is done to ensure that no one backs out of a deal by using the spread of coronavirus and the pandemic as an excuse. 

Thus, we can say that this current is having both a favourable and an unfavourable impact on global law firms. On one side there is a hit which has been taken by law firms, and on the other hand, there is a rapid increase in the demand of law firms, to consult companies and industries regarding their mitigation of legal liabilities and obligations.

Conclusion

We need to be ready with solutions and strategic planning to address the risk issues which may arise due to the rapid spread of a global disease that, at this point of the time, has no vaccine and cure. Also, it is not only the law firms which need to take action but the judiciary and legislature should allow practices ensuring the smooth functioning of these corporate law firms, lawyers and other professionals who are connected with the legal strata.

1. Firms need to restrict any international travel and any non-essential domestic travel of their employees.
2. All in-person meetings should be replaced with e-conferencing systems. 
3. Firms should also create a strategic plan, which helps them in dealing with any kind of future scenarios and difficulties. 
4. An expedition of the development of tech systems is required in law firms so that lawyers and clients don’t face any difficulties despite the lockdowns and quarantine imposed throughout the world.
5. The communication channel needs to be improved within the law firm, and within the different law firms, where everyone including the clients, lawyers, in-house counsels, etc are kept in a loop so as to discuss any legal issues which one may face due to this pandemic. 

The impact on law firms should neither be underestimated nor overestimated, as the crisis may hit any law firm at any time, and to any extent. Thus, it is more reasonable for global law firms to make sure that they are able to deal with the anxiety and panic amongst their clients. At the same time, they need to prepare themselves to minimize the health risks within the law firm.

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The article is written by Amandeep Singh.

A Career in Uttar Pradesh Judicial Services

“Where there is a Will, There is a Way”

Making a career in the judiciary is the goal of many law students. Some come to law schools with a predetermined mind of becoming a judicial officer and help improve the judicial system. Some build up this thought in law school itself. The Judicial System of our country is structured in such a way that it provides a wide range of opportunities to law students. Judiciary is the third pillar of democracy and it is said to be the most important pillar. Being a part of this pillar is highly honourable and respectable and it provides a plethora of financial and social benefits.

How to become a Judge in the State of Uttar Pradesh?

There are two ways of recruitment as a Judge in the State of Uttar Pradesh. They are as follows:

By competing and qualifying the lower judiciary competitive exam conducted by Uttar Pradesh Public Service Commission and;

By competing and qualifying the entry-level competitive exam to Higher Judicial Services after 7 years of experience as an Advocate.

However, this article will be focusing upon the lower judiciary services of the State of Uttar Pradesh which will help the candidates to get a clarity of thoughts and a clear idea as to how they should be preparing for the exam in a holistic manner.

Frequency of occurrence of the exam

It depends upon the number of vacancies estimated by the High Court of Uttar Pradesh. There are years when the exam does not even take place because there is no vacancy. In the last five years, the exam took place just two times due to lack of vacancy. The dates for the preliminary exam tentatively fall between the months of October – February or December – January.

Number of seats

Uttar Pradesh is a big State with around 75 Districts and that is why the number of seats are more in comparison with the small states of the country. But in any case there is a need to finish the pendency of the cases which are increasing on a day to day basis and for this reason there is an urgent need to fill up the vacancy of judges in subordinate courts. The number of seats is determined by the State Government in consultation with the High Court. It depends upon the vacancy. In the notification of the year 2018, the total seats were around 650. The number of seats vary from around 200 – 700 every time the exam is held.

Eligibility criteria

Only those candidate would be eligible to appear for the lower judiciary examination who fulfill the following criteria:

• Candidate must be an Indian Citizen.
• Candidate must have a Bachelor Degree of Law of a University established by law in Uttar Pradesh or of any other University established in India recognised for this purpose by the Governor of the State of Uttar Pradesh.
• Candidate must be enrolled as an Advocate under the provisions of Advocates Act, 1961 and is entitled to practice in the Courts. (It may also include: a Barrister of England or Northern Ireland or a Member Faculty of Advocates in Scotland)
• Candidate must possess a thorough knowledge of Hindi in Devnagri Script.
• Candidate must be between 22 years and 35 years of age (both included). Age relaxation for SC/ST category is 5 years and for OBC is 3 years.

Mode of application

Though the exam is held offline, the application for the exam is received online. Application for permission to appear in the exam shall be invited by the Uttar Pradesh Public Service Commission in the prescribed manner. A candidate interested shall register as a “new user” on the website of Uttar Pradesh Public Service Commission i.e. (http://uppsc.up.nic.in/) and submit the application form. Those who have already registered are required to click on “Submit application form” after opening the above link.

Fee Payment can only be made on or after Registration through e-payment methods which includes Net Banking, Debit and Credit card payments. (Rs. 125/- for General Category and OBC, Rs. 65/- for SC/ ST Category and Rs. 25/- for Handicapped).

Centres of Examination

The list of exam centres is released along with the notification of the exam by Uttar Pradesh Public Service Commission (UPPSC). The prelims and mains exam is generally conducted in approximately 1166 centres in around 19 districts of the State. The candidates can choose the centre according to their preference and the allotment of centres would reflect in the admit cards of the applicants. The 19 districts include:

• Agra
• Varanasi
• Ayodhya
• Azamgarh
• Barabanki
• Bareilly
• Jhansi
• Ghaziabad
• Gorakhpur
• Jaunpur
• Kanpur
• Lucknow
• Mathura
• Meerut
• Mirzapur
• Moradabad
• Prayagraj
• Rae Bareli
• Sitapur

Scheme of the Exam

The Preliminary Exam consists of 2 papers of 2 hours each. They are:

• General Knowledge (200 Marks)
• Law (300 Marks)

Both the papers are held on the same day.

The results of the Preliminary Exam is declared within 20 days approximately and a candidate has around 30 days to prepare for the Mains exam after the Preliminary exam.

For the Mains Exam, there are 5 papers, each for 3 hours. Each paper is of 200 Marks. They are:

• Paper I – General Knowledge
• Paper II – Language
• Paper III – Law 1 – Substantive Law
• Paper IV – Law 2 – Procedure and Evidence
• Paper III – Law 3 – Penal, Revenue & Local Laws

If one qualifies the Preliminary and the Mains Exam, the next stage is Interview which contains 100 Marks.

The Preliminary Exam is an objective exam and the Mains Exam is the subjective one. The cutoffs decide whether a candidate has qualified for the exam or not.

Syllabus

The Syllabus and Pattern for Preliminary and Mains Exam are slightly different. For convenience, I have bifurcated them with the help of below charts.

For Preliminary Exam

For Mains Exam

Weightage of each subject and specific strategy

Preliminary Exam

There are two papers in the Preliminary Exam:

• General Knowledge
• Law

Law consists of 300 Marks and accordingly, it contains more weightage. Most of the questions every year have been asked from:

• Indian Constitution
• Indian Penal Code
• Jurisprudence

This does not mean that other statutes or syllabus is not important. Another part of the syllabus of Preliminary Exam which is important is General Knowledge. It sub parts i.e. Static and current G.K. is very important and time and again, questions have come from these parts.

Mains Exam 

Every paper carries equal marks in the Mains Exam. But the most relevant portions of each paper have been discussed below:

Paper – I: Static General Knowledge, Current National Issues and Indian Economy are the most important part of this paper and most of the questions have been asked from this sphere.

Paper – II: Hindi in Devanagari script is the most important language in the paper as most of the papers in the State of Uttar Pradesh are in Hindi. Focus on Hindi a bit more than you focus on English. Language plays a role in this Paper.

Paper – III: It is also a very important paper but you can prepare it at the end. The Core of this paper is comprised of Law of Contracts, Hindu and Mohammedan Law and Law of Torts.

Paper – IV: This Paper is the most important paper of all. It mainly consists of situation based questions based on practicality. It is considered to be the toughest paper in U.P. Judiciary. The most important part of this paper is Civil Procedure Code, Law of Evidence and Criminal Procedure Code. Basically this paper as a whole is important.

Paper – V: This paper mainly comprises of the Bare Act language and you have to study bare act and learn it by heart if you want to qualify this paper. Important part consists of Indian Penal Code and Rent Laws.

Level of Competition

The level of competition can be estimated by looking into the number of seats in the exam and the number of students opting law in society. The candidates appearing for Judiciary are hundred times more than the vacancies. In Uttar Pradesh, a candidate who comes from a family of Judges gives a try to the Judiciary at least once. The level of competition can be seen when I say that there is 0.005 percent chance of getting through it. Increasing awareness among the masses has become the main reason for increase in candidates appearing for the judicial services.

The number of candidates increases every year but the number of seats vary. If the number of seats increases, the possibility of getting selected is high. But if the number of seats decreases, there is a very less possibility of a candidate being selected.

Ideal time to start preparation

The ideal time to start preparing is the time when you get serious and sincere about qualifying the exam where the success ratio is 1: 200 or a mere 0.005 per cent. The sooner the preparation starts, the better it is. Strategy is the most important part and dividing time for the subjects make the core of your strategy.

Preparation for Judicial services can be started in law school only if the candidate diligently reads all the landmark cases and read the Bare Acts carefully. As the language of the Bare Act is of utmost importance in the exam. One should also cultivate the habit of being rational and reasonable and have independent ideas free from any bias.

This exam needs hard work, will power and dedication. If you prepare with all these three things for a minimum of one year, you will be able to qualify the exam.

How to Prepare?

The best way to prepare for the judicial services is to prepare smartly and with a strategy. The strategy not followed is a strategy wasted. One should prepare those subjects properly which contain more weightage than the others. For Example, Constitutional Law, Civil Procedure Code, Local Laws, etc.

Step by step guide to preparation

The following steps will help you to prepare well for the exam:

• Read the law of the land i.e. the Indian Constitution. Prepare it very carefully and learn it by heart.
• Collect all the Bare Acts and start reading them one by one with the explanations and provisos.
• Cover the lengthy and diverse subjects first, like Civil Procedure Code and Criminal Procedure Code which will consume most of your time.
• Do not forget to revise what you studied.
• Convert one passage from English to Hindi and Hindi to English everyday within the stipulated time.
• Read Newspaper daily and make notes.
• Study Indian Penal Code, Evidence Act and Criminal Procedure Code together.
• Study Local Laws relating to Real Estate together.
• Jurisprudence shall be read as a whole.
• Read and understand law rather learning it.
• Read all the latest amendments and latest important judgements on the subject you are studying.
• Practice answer writing to questions which have been frequently asked in the exam.
• Make 50 Multiple Choice Questions daily on the topics you have studied.
• Attempt situation based questions as they cover most of your exam.
• Solve previous year papers as much as you can as they will give you an idea about how the paper will be. It will also boost up your confidence.
• Create notes for revision and update them regularly.
• Learn 10 new words from Hindi Language in Devanagari everyday.

Mistakes to avoid while preparing

• Avoid wasting time. Always remember “A stitch in Time saves Nine”.
• Avoid Socializing if you get disturbed easily.
• Avoid referring to different materials on one topic.
• Always use authentic source of information.
• Reading Newspaper all day.
• Not loving what you are doing.
• Long discussions with friends.
• Thinking just about the Interview stage.
• Over Confidence.

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This article is written by Rohit Raj, a student currently pursuing B.A.L.L.B.(Hons.) from Lloyd Law College. This is an exhaustive article which deals with all the aspects of Declaratory decree and what will be the effect of Declaratory decree and is there any existence of discretion of the court in it.

Introduction

If you’ve ever wondered why the Concept of ‘declaratory decree’ emerges and for whom it comes into the picture, here’s everything you need to know. This whole article deals with the concept of ‘declaratory decree’ and what are the essentials of filing declaratory suit, whether the court can exercise its discretion in the case of the declaratory decree and if yes, under what circumstances. This article also deals with other aspects of ‘declaratory decree’.

Declaratory decrees

The declaratory decree is the edict which declares the rights of the plaintiff. It is a binding declaration under which the court declares some existing rights in favour of the plaintiff and declaratory decree exists only when the plaintiff is denied of his right which the plaintiff is entitled to. After that specific relief is obtained by the plaintiff against the defendant who denied the plaintiff from his right. 

According to Section 34, of the Special Relief Act, 1963, any Person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. 

Declaratory decree provisions bring out to merely perpetuate and strengthen the Plaintiff in case of an even adverse attack so that the attack on the Plaintiff can not weaken his case and it is mentioned in the case of Naganna v. Sivanappa. And by the arguments made in this case, it encourages the plaintiff to come forward to enjoy the rights which they are entitled to and if any Defendant denied the Plaintiff from providing any rights for which the Plaintiff is entitled, then it gives them the power to file the suit and get special relief.

Discretion of court as to declaration of status 

As in the Section 34 of Special Relief Act, 1963 the condition mentioned for the declaration of status or right i.e. (1) the plaintiff at the time of suit was entitled to any legal character or any right to any Property (2) the defendant had denied or was planning or interested in denying the rights of the plaintiff (3) the declaration asked for should be same as the declaration that the plaintiff was entitled to a right (4) the plaintiff was not in a position to claim a further relief than a mere declaration of his rights which have been denied by the defendant. But, it is not compulsory that even after the fulfilment of all the four essential conditions required for declaration, the specific relief will be provided through a declaration to the plaintiff. It is totally on the discretion of the court whether to grant the relief or not to the plaintiff. The relief of Declaration or specific relief cannot be asked as a matter of right, it is a total discretionary power which is in the hands of the court.

In the case of Maharaja Benares vs. Ramji khan, it was declared that if the suit is filed and the necessary party is absent then the court will dismiss the suit for the declaration. So, it is necessary that both parties should be available. There is no specific rule to decide whether the discretionary power of the courts should be granted or not, the discretionary power of the court is being exercised according to the case and there are no specific criteria to decide in which cases the court will exercise its discretionary power.

Essentials of a declaratory suit

There are a total of four essential elements considered for a declaratory Suitor for the valid suit for Declaration and all the four elements are mentioned below. 

• The plaintiff at the time of suit was entitled to any legal character or any right to any Property.
• The defendant had denied or was planning or interested in denying the rights of the plaintiff.
• The declaration asked for should be the same as the declaration that the plaintiff was entitled to a right.
•  The plaintiff was not in a position to claim a further relief than a mere declaration of his rights which have been denied by the defendant.

Requisites

According to the Section 34 of the Special Relief Act, 1963 it put forward certain conditions which are to be fulfilled by the plaintiff to file a valid suit for declaration for the rights which is denied by the defendant. In the case of the State of M.P. vs. Khan Bahadur Bhiwandiwala and co., The court observed that in order to obtain the relief of declaration the Plaintiff had to fulfil the four conditions as mentioned above. 

The object of Section 34 of the Special Relief Act, 1963 to provide a perpetual bulwark against adverse attack on the title of the Plaintiff and to prevent further litigation by removing the existing cause of controversy. If any of the essential elements are missing then the court will not provide any relief of declaration. The Plaintiff has to prove that the defendant has denied or is interested in denying to the character or title of the Plaintiff and the Plaintiff has to establish that there must be some present danger to his interest. The denial must be communicated to the Plaintiff in order to give him a cause of action. The court must exercise their rights while granting declaratory decree and only in proper cases, this legal remedy should be granted so as to avoid multiplicity of suits and to remove clouds over legal rights of a rightful person.

Legal Character

We have talked about the requisites that a person should be entitled to the legal character. So, what we mean about the Legal Character. Legal character is attached to an individual’s legal status which shows the person’s capacity. Legal character by names itself denotes character recognized by law. In the case of Hiralal v. Gulab, it was observed that variety of status among the natural person, can be referred to the following listed causes i.e. Sex, minority, rank, caste, tribe, profession any many more list.

Person Entitled to any Right to Property

The second condition which is to be fulfilled by the Plaintiff for the successful relief of Declaration or we can just say that for getting Special relief which should be related to Plaintiff Right to Property. A person seeking special relief has a condition that they must have a right to any property, only then they can go for special relief under Special relief Act, 1963. The Bombay High Court has made a distinction in ‘Right to Property’ and ‘Right in Property’ and it has been held that to claim and go for a declaration the Plaintiff need not show the right in Property. The Plaintiff only has to show that he has Right to Property from which he has been denied.

Declaration asked should be the same as the declaration that the plaintiff entitled.

The third condition is to be fulfilled by the Plaintiff for the Declaration and for Special relief. This is considered as essential because it is very necessary to look that the Plaintiff asking for the declaration from the Court should be the same as the declaration to which the Plaintiff is entitled under the right to any Property. 

Plaintiff should claim only for mere Declaration

The fourth and the last one which is to be fulfilled by the Plaintiff is that the suit filed by the Plaintiff should claim only for mere declaration and he is not entitled to more than that. Excess relief seeking suits will not be entertained by the court in any manner and there is no restriction or any hard and fast rule to entertain such cases where the suit filed is seeking relief more than just mere declaration.

When suit for declaration is not Maintainable

A suit for the declaration will not be maintainable under some circumstances which are to be mentioned below. 

• In the case of a declaration that the Plaintiff did not infringe the defendant’s trademark.
• For a declaration that during the lifetime of the testator, the will is invalid.
• No one can ask for a declaration of a non-existent right of succession.
• A suit by a student against a university for a declaration that he has passed an examination. 

If any person is seeking for a mere injunction without seeking for any declaration of title to which the Plaintiff is entitled so, then the suit will not be maintainable and will not be laid down within its ambit. In the case of P. Buchi Reddy and Others vs. Ananthula Sudhakar, it was held that the Plaintiff’s suit for a mere injunction without seeking a declaration of the title is not maintainable.

‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the case of the bare injunction, Plaintiff and Defendant both are claiming the title on which effective possession cannot be proved. And the suit for bare injunction is not maintainable under Section 41(h) of the Specific Relief Act, 1963.

‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the case of the bare injunction, Plaintiff and Defendant both are claiming the title on which effective possession cannot be proved. And the suit for bare injunction is not maintainable under Section 41(h) of the Specific Relief Act, 1963.

Effect of declaration

Before going into an in-depth analysis of what is the effect of the Declaration, first, we should look at what it is according to Section 35 of the Special Relief Act, 1963. According to this Section, a declaration made under this section is binding on both the parties to the suit and the persons claiming through them respectively and, where any of the Parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees. 

Lets understand how the effect of the declaration is being in process with the help of an illustration i.e. Ram, a Hindu, in a suit to which Komal, his alleged wife, and her mother, are defendants, seeks a declaration that his marriage was duly commemorated and an order for the restitution of his conjugal rights. The court makes the declaration and order. Shumbham claims that Komal is his wife, then sues Ram for the recovery of Komal. The declaration made in the former suit is not binding upon shubham.

Case laws

There are several case laws related to the declaratory decree under the Special relief Act, 1963 in which several aspects of the Declaratory decree has been covered up and Judgment have been declared on that and were setting precedents to be followed up in the new cases of Declaratory Decree. 

Some of the Cases are mentioned below with their judgment related to Declaratory decree for the sake of convenience of Reader. 

• Tarak Chandra Das vs. Anukul Chandra Mukherjee, it was held that the court had absolute discretion to refuse the relief if considered the claim to be too remote or the declaration if given, would be ineffective. In this same case, it was observed that the term mentioned above in this article ‘Right to Property’ showed that Plaintiff should have an existing right in any property, not the mere interest in that property would lead to special relief. 
• Ram Lal vs. Secretary of Staten this case was held that by virtue of section 35 of Special relief Act, 1963, a judgment is binding only upon the inter partes, which is not in rem and does not operate as res-judicata. No other party who is not the party of the suit does not come under the ambit of Section 35 of Special relief Act, 1963. 

Conclusion

Declaratory decree is a provision which focuses on the rights of the Plaintiff and gives immense power to the Plaintiff to deal effectively against the defendant. How the court uses their discretionary power under what circumstances and other aspects analysis helps the reader also to analyse and understand the Declaratory decree concept in the simplest way. According to my opinion and analysis, Declaratory decree is a concept which is to be wider and covers more aspects than it currently does and the main thing according to my opinion should be amended in a long-term is that there should be a limitation on the use of discretionary power by the different courts and fixation should be done in which cases or in which type of cases, the discretion of court can be used.

Really good attempt, good article and well written.

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This article is written by Sushmita Choudhary.

Introduction 

India acquires the 10th position amongst all the countries in terms of forest area. According to the India State Forest Report 2017, “the total forest cover of the county is 708,273 sq km, which is 21.54% of India’s geographical area. The tree cover of the country has been estimated to be 93, 815 sq km, which is 2.85%”.

Understanding Reserved, Protected and Village Forests

Reserved forests constitute more than half of the total forest area of India. It has a certain degree of protection. They are protected by the respective state governments unlike wildlife sanctuaries and national parks which are supervised by the Government of India. It is considered as the most valuable type of forest from the perspective of conservation. Rights to activities like collecting timber or grazing cattle or hunting and public entry are banned in these forests. 

Protected forests are of two types: demarcated and undemarcated. They have a limited amount of protection. These are looked after by the government but certain activities like hunting, grazing or timber collecting are allowed to people who live on the boundaries of forests and are partially or wholly dependent on the forest resources for livelihood, provided they don’t cause severe damage to the forests. 

Village forests are protected and managed by village communities which are assigned by the state governments. The local communities may use it for timber or other forest produce, pasture, recreation, plantation and so on under prescribed conditions by state governments. 

A Glimpse of Efforts and Prior Legislations

The efforts for conservation of forests arose first in South India when a commission for enquiring into the availability of teak in Malabar forests was set up in 1880. By looking into the report by the commission, it was decided that trees below 28 inches of girth should not be felled. In 1885, a Forest Committee constituted for determining the capacity of forests found out that more accessible forests had been exhausted which led to a declaration that teak trees had royalty rights in the south and no unauthorized felling of these trees was permitted. 

Brandis, an Inspector General of Forests with Cleghorn as his assistant did their research and came to a conclusion that a separate legislation was necessary in order to not only protect forests but also to ensure proper management by vesting different authorities in different employees of the forest department. Basically, division of work was the need of the hour along with a proper legislation. Subsequently, the first Indian Forest Act was passed in 1865 and came into effect on 1st May, 1865. It empowered the British India government to take over any forest and conserve it but the Act did not extend to Madras presidency because its Board of Revenue held that the villagers had rights over the forests and the government could not take absolute control of it. 

Later in 1878, a newer revised version of Indian Forest Act was passed which aimed at removing the drawbacks of the prior Forest Act, 1865. It classifies the forests into three kinds- Reserved forests, Protected forests and Village forests. It also empowered the government to exercise control over all the forest area except for Madras and some other areas. 

Present Legislations

Indian Forest Act, 1927

The Indian Forest Act, 1927 was passed in 1927 which overrode all previous laws making them invalid. This Act was more effective in nature having 86 sections divided into 13 chapters. Its aims were as follows:

1. Consolidating laws relating to forests.
2. Transit of forest-produce.
3. Levying duties on timber and other forest-produce.

This Act empowers the government to take authority of private forests owned by private owners if it is “needed for a public purpose” as given under section 4 (Land Acquisition Act, 1894). This Act does not define the term “forests”. 

Section 2 of the Forest Act, 1927 has given the meaning of certain words like cattle, forest produce, forest officer, forest offence, river, timber and tree which is effective in determining the true definition of these words leading to accuracy of the legislation. The word “forest produce” does not include “ivory” in its definition. Under section 77 of the Act, “Any person contravening any rule under this Act, for the contravention of which no special penalty is provided, shall be punished with imprisonment for a term which may extend to one month, or fine which may extend to five hundred rupees, or both”. 

This Act laid an example for framing State Forest Acts. It boosted the government tax revenue also by laying imposition of duty on timber. 

Cons of Indian Forest Act, 1927 

This Act was apparently made in order to ease the process of conservation of forests and improving the management for the same. However, a thorough probation signifies that it emphasizes on:

1. Extensive cutting down of trees legally.
2. Making profit from felling the trees and the products made out of it.

It deprived the poor and tribal sections of the society of their ancestral and acquired lands. This Act paved a way for the government to make profit out of the forests by legally using its authority over people thus making them helpless and needy. Even after independence, the profit oriented attitude continued. 

Forest Conservation Act, 1980

Article 48 a of the Indian Constitution says that the state government shall make efforts to protect the environment and improve it and also make sure to safeguard the forests and wildlife of the country. A legislation was enacted by the president mainly to check the rapid cutting of trees and growing deforestation. This Act came to be known as Forest Conservation Act, 1980. This was mainly to conserve more forest areas. A prior approval was to be taken from the government based on stringent grounds in order to de reserve or cut the trees from reserved forest. The approval was to be given by the government on the advice of a committee setup who decided the grounds. 

This Act reduces the diversion of forest areas to non forestry use which is in the interest of our ecosystem. It checked the rapid conversion of forest land or resources into profit making sources to maintain a proper balance between rational requirements of the country and the conservation of forests. 

According to the Press Information Bureau of India, “The effective implementation of the Forest (Conservation) Act, 1980 has successfully brought down the average annual rate of diversion of forest land for non-forestry purposes from about 1. 37 lakh hectare per annum during the thirty years period immediately before its enactment, to about 0. 37 lakh hectare per annum during the same period i.e. thirty years, of its existence”. 

This Act monitors the needs for diversion of forest land based on the severity of water projects, power projects, transmission lines, mining, etc. which are inevitably necessary for the human population as given under the rules and guidelines of the Forest Conservation Act, 1980. The Act also deals with the idea of compensatory afforestation. As per this Act, whenever a forest area needs to be granted approval for diverting it to non-forestry purposes, the same proportion of forest land has to be identified for compensatory afforestation. The funds to meet the afforestation process is also important to be mentioned. Any private or government body in order to carry on a project must apply for approval from the Ministry of Environment and Forests (MoEF). The proposal for forest land acquiring should be submitted to the respective department which should include the details of the degraded forest land mentioning its area map, yearly statistics about forestry operations, details of species and cost analysis of all the operations. If it obliges to the rules and guidelines laid by this Act, then compensation for the degraded forest area is decided by the ministry and concerned forest department. 

Forest Right Act, 2006

The government in order to redress the injustices done to the forest dwelling communities since colonial times, enacted a law called the Forest Rights Act which asserts them to their rights over the forestland on which they were always dependent. This Act also included provisions for increasing conservation and making it more effective. Some basic features of the Act are as follows:

1. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act was enacted on 18th December, 2006 and it came into force January 1, 2008. 
2. It aims at protecting the rights of forest dwelling communities by giving them access to forest land and resources and hence conserving their lands. 
3. It gives them the title over their lands to protect their culture and tradition by recognising their community ownership over a larger landscape. 

Types of rights under this Act

1. Title rights- Ownership of the land would be given to tribals or forest dwellers who have cultivated or farmed it until the date of 13 December, 2005. The forest land shall not exceed 4 hectares. No new land would be granted after the given date. 
2. Use rights- They are entitled to use water bodies, grazing areas, pastoralist routes which they have been doing since before. 
3. Relief and development rights- They have the rights to rehabilitation in case someone forces them illegally to evict their lands or basic amenities. They are however subject to reasonable restrictions. If they wish to convert old habitation, unsurveyed villages or other parts of forest into revenue forest, they are entitled to do that. 
4. Forest management rights- They have the right to protect, conserve or regenerate any forest produce that they have been traditionally doing. They are entitled to manage and conserve forests. 

This Act has been the subject of considerable controversy in India. 

Supporters of the Forest Right Act, 2006

The supporters of this Act claim that it is not a land distribution measure as no new land after the date of 13 December, 2005 would be granted. The tribals and forest dwellers have been deprived of their lands and met with injustices since historical times. Therefore to redress to their rights over their ancestral lands over which they have been traditionally dependent, this Act is justified. Forest dwellers have been victims of forceful evictions to serve the purpose of commercial and developmental projects like dams, industries and power plants, so they are not the reason for degrading forests and its resources. Supporters have argued that rights given to the forest community will actually improve conservation of forests. 

Opposition of Forest Right Act, 2006

Many environmentalists and wildlife activists have shown concern over this since beginning. Most of them view it as a land distribution measure and also look from the perspective that it will create human presence in wildlife conservation. The Ministry of Environment and Forests expressed its view terming this Act as a perfect recipe for destroying India’s forests and wildlife by”legalizing encroachments”. Tiger preservation was an enhanced concern of the wildlife conservationists. 

Madras Forest Act, 1882

This Act was made with a view to provide for the constitution of eminent forests as State reserves under the Madras presidency. The objective was to obtain forest lands either by providing arrangements or due compensation to private proprietors or else give them such rights which would make encroachments in the future impossible. This was an effective measure for conservation of forests. This Act is the first forest act in this presidency. The Act borrowed ideas from the Indian Forest Act of 1878 and Burma Forest Act of 1881 with considerable and convenient modifications. 

This Act empowered the government to appoint Forest Settlement Officers to look into the matter and record all concerned private rights that could be exercised by proprietors of selected forest lands. Upon the assessment given by these officers, appeals could be made regarding forest land within 30 days for claims involving proprietary rights. For the claims regarding forest use such as rights of way, rights to pasture or rights to water bodies, appeals could be made within 60 days before the Revenue Officer. After the settlement of all the claims and enquiries, the government would take control of the forest land for preservation of forests and would be declared as ‘reserved’. 

This Act gave power to the government of interference with private forests. The government facilitated its conservation by placing it under Government management. The government got the right to transport timber and use it for whatever purpose it deemed necessary, undergoing rules and regulations so as to prevent smuggling of forest revenue. The Act deals with penalties but the drawback here is that a police officer or forest officer by giving special notice could arrest any person for a forest offence without orders from the Magistrate. 

The Tamil Nadu Preservation of Private Forests Act, 1949

After being enacted as a temporary act, this was made a permanent act in 1965. The Tamil Nadu Forest Act, 1882, had provisions of regulating private forests under section 29 which were adequate enough to attain the objectives set out in this Act. Also considering the provisions of this Act, there was not much need of making a new act that is The Tamil Nadu Preservation Act, 1949 for private forests. In case of additional provisions, respective amendments could have been inserted in the 1882 Act itself. 

This Act brought the requirement of continuous land area from 12 to just 2 hectares which affected the small farmers. Also, it did not mention any specific reason or guidelines for the declaration of ceasing private land to make private forests. 

Even if additional provisions were required to be enacted, suitable amendments could have been incorporated in the Act of 1882. Earlier, land of more than twelve hectares of continuous area was covered by the Act and in 1979 it had been brought down to two hectares. A more rational requirement could have been prevention of natural disaster or defeating soil erosion. But without any such criteria, it failed to contribute to the welfare of people and went against the principle of natural justice. Even in colonial times when the Tamil Nadu Prevention Act was enacted, the issue of notice to the owner was provided before any regulation on private land but under this Act, the government could deprive the owner of land without any warrant or rationale. 

The Tamil Nadu Hill Areas (Preservation of Trees) Act of 1955

This Act came into force on September 2, 1955 as a result of indiscriminate cutting down of trees in hill areas which led to deforestation resulting in soil erosion. As a result, the government of Tamil Nadu made this Act including provisions for reducing felling of trees and ongoing cultivation. This Act resulted in forming committees for checking the cutting of trees, cultivation of cereals, rubbers and other cash crops. It also included penalties for breaching the guidelines. A prior written permission was required by the committee to cut or fell any tree if it constituted danger to life and property. The committee in order to make the decision upon it should take at least two months meeting which was utterly redundant and insensitive to public interest. 

Conclusion

As can be derived from the above explanation of legislations regarding conservation of forests, the main objective of the colonial government was to make profit out of the extensive forest land and forest produce. The first step taken for the conservation of forests was taken in the form of Indian Forest Act, 1927 which issued guidelines and limitations on government for directly acquiring forest land from owners. It laid down some ground rules for making private forests and reserved forests. However, the state interfered in private land to a great extent. 

A great shift however took place after independence with the enactment of Forest (Conservation) Act in 1980 which primarily focused on reducing the diversion of forest land to non forest-purposes. Also the Forest Right Act having its own pros and cons proved somewhat effective in conservation of wildlife and forests. But on the other hand, due to liberal implementation of the conservation acts, large tracts of forest areas still continue to be used for agriculture, construction of dams, industries, etc. What I find is that we should implement the laws in a stricter manner and its implementation should be thoroughly checked by the forest officials, otherwise these laws would be just redundant. 

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So today is the day! We are finally announcing the winner of our Blog Writing Competition of 4th week of February 2020 (From 24th February 2020 To 1st March 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! 

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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.

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This case summary is written by Anmay Agarwal, a first-year law student at Symbiosis Law School, Noida.

Introduction

The justice was served by Justice L Nageswar Rao[1], Chief Justice of India (CJI), TS Thakur[2] and Justice DY Chandrachud[3] in the case of Karma Dorjee v. Union of India (UOI) and others [4] on 14th December 2016. The petitioner himself representing the case argues about the atrocities and discrimination that the people from North eastern states are facing. He further wants the honourable supreme court of India to suo moto take the cognizance of the matter and direct the then government to take reasonable appropriate steps for the betterment of the people of north eastern states so that they could live intrepidly in all the parts of the country.

Summary of facts

The petitioner wants to put forward the point that the people from north eastern states are being discriminated by people, keeping in mind article 32 (2) of the Indian constitution[5]. He also added that it was ironical to see such type of atrocities, even in twenty first century. His petition is an eye-opener on how people from the north eastern states are deprived of basic amenities and there is no equitable distribution of resources such as state of the art hospitals, job opportunities and transportation and how the people from the rest part of India look down upon them. It is like adding salt to the wound when the petitioner in order to support the plea with factual details the petitioners have adverted to instances which were reported in the various print media since 2009. On 26 October 2009, a  woman was burnt to death in the kitchen of her home by a stalker who was unwelcomed. On 17 April 2012, a young student from Manipur is alleged to have died after being assaulted, by a group of armed people, in her college hostel. In Karnataka, the panic was created amongst a particular community after the circulation of threat messages. On 29 May 2013, a young Manipuri girl is alleged to have been murdered in two bedrooms rented apartment in the national capital region. Two young women from north eastern states were subject to racial taunts and molestation and subsequently, a young student in an area near Lajpat Nagar was brutally assaulted. 

Prayers by the petitioner

1. The union government should constitute a committee headed by an erstwhile supreme court judge to look into the discrimination caused.
2. To lay down the procedure and mechanisms in which cases pertaining to discrimination should be dealt with.
3. Various schemes and mechanisms should be devised to manifest awareness and promote equality along with a sense of brotherhood with the help of various steps by the government, both at union level as well as state level.

Pleadings by the petitioner

The petitioner at the very beginning of the petition mentions Article 15 from the Indian constitution [6] and begs to draw a parallel picture (as to what government says) to the conditions being faced by the people of north eastern states in the different parts of the country. International convention on the elimination of discrimination was adopted by the united nations in the year 1965. On 4 January 1969, the convention came into force in India. The convention according to article 2, imposes an obligation on the states to take measures and stop all forms of discrimination that the people are facing. India being a signatory to this convention is bound by the convention. Moreover, Article 15 of the Indian constitution makes an attempt to safeguard people from any sort of discrimination.

In order to deal with the concerns dealing with the north eastern people, the Union Government initiated a Committee on 5 February 2014. The Committee was chaired by a man named M P Bezbaruah, a member of the North-eastern Council. After talking to various stake holders, the Committee submitted its report to the Union Ministry of Home Affairs. The Committee categorised its recommendations into the following categories:

• Facilities for legal assistance and providing speedy justice by setting up special courts.
• Strengthening of law enforcement agencies and give them autonomy, charge and power
• Special police initiatives including proactive regional action and special patrolling at the odd hours of the day and special pick up and drop facility to women and girls.
• Utilising the ability of sports and developing national universities that will facilitate and enable them to pursue sports as their career and will be able to get coaching at minimal costs.
• Education of the people about the north eastern states by establishing schools at various levels like district and state levels.
• Greater focus on the northeast on Broadcasting and providing correct and accurate information to the people of north eastern states in minimal time and establishing various government broadcasting centres.
• Appointment of IAS level officers by each state government and provide Accommodation related issues including problems of rent.

Historical aspect – Formation of North Eastern states

Northern eastern states consist of eight neighbouring states that have boundaries touching with China, Bhutan, Bangladesh and Myanmar. There is a land connection between India and Bangladesh so cross border Illegal immigration is a common phenomenon since time immemorial. So, the north eastern states consist of people from various walks of life and different ethnic background from countries like Bhutan, Thailand etc. Even during the British regime, north eastern was an integral and strategic point because of China. The British formed a separate province, that is, Assam province in 1874. The Bengal eastern frontier regulation was passed by the British in the year 1873, a system introduced to save the indigenous groups in the hilly areas of Assam by restricting outsiders. The British divided that region into “restricted area” and “partially restricted area”. British first started isolation of north eastern schools from the rest of the world.

Afterwards in independent India in 1962 when India china conflicts occurred, it became an integral part of because of national security reasons. Anyone who rebelled was declared anti-national and the government used excessive force to suppress the people causing trouble to the people and labelling them as anti-social elements disturbing the peace of the country.

Historical Jurisprudence[8]

This school believes that the laws are made to cater to the ever-changing need of the people. The basic emphasise is that laws are made because of changing habits and customs of the region.

Using this school, a special memorandum of settlement[9] (MoS) was signed between the then prime minister, Rajiv Gandhi and the leaders of the Assam movement. After this MoS, various steps were taken by the government like roads near the borders, quicker development to the area near the border, providing better facilities for the people like hospitals, educational institution and developing various sectors of the state.

The law and the settlement made between the parties were based on the changing demand of the people customs and tradition, this is the perfect example as to how law changes its course according to the need of the people.

The Relevant laws

The petitioner mostly referred to the Constitution of India[10],  International Convention on the Elimination of Racial Discrimination (CERD) [11], the Assam accord [12], and the Bengal eastern regulation Act[13].

The Constitution of India

Article 15

In the supreme court’s judgement of Navtej Singh Johar v. Union of India[14], the honourable justice Chandrachud stated that “discrimination on the basis of sex will fall under the ambit of Article 15 of the constitution of India.”

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

It is a United Nations convention. The Convention also includes a private complaints mechanism, effectively making it enforceable against its parties. This has led to the event of a limited jurisprudence on the interpretation and implementation of the Convention. As of April 2019, it has 88 signatories and 182 parties.

Assam accord

The Assam Accord was a Memorandum of Settlement (MoS) signed between leaders of the Assam Movement and representatives of the Government of India. The then Prime Minister Rajiv Gandhi signed it in New Delhi on 15 August 1985. In the year 1986, the Citizenship Act was amended for the first time. The protesters demanded the identification deportation of the illegal Bangladeshi immigrants. These protests ended with the death of several people and with Assam Accord.

The Bengal eastern regulation Act 

The [State Government] can by notification restrict all [citizens of India or any class of such citizens], or any persons residing in or passing through such districts from going beyond such line without a pass under the hand and seal of the chief executive officer of such district, or of such other officer as he can authorize to pass grant, and the state government has the power to cancel or restrict from time to time.

Judgement (Ratio and Obiter)

The author of the judgement, Justice DY Chandrachud observed that the discrimination of the people from north eastern state is an issue related to enforcement of the law. The mindset of the people ranging from schools to colleges to universities to jobs and another place need a brainwash. A sense of brotherhood and pluralism should be fostered. People should belong to different ethnic group and embrace the rich culture and traditions that the country has to offer. The problems faced by the people from north eastern states ranging from unemployment, poverty needs to be addressed now. Every person in the world has a right to life with dignity.

He further said that the home minister needs to address the issue right now and has to take appropriate corrective actions.

A two-member committee was appointed by the home minister which constituted of one member nominated by the government of India and one person nominated who is a local public figure.

The nature of the work was also explicitly mentioned by the supreme court stating:

1.   To monitor the overview of the implementation of the MP Bezbaruah committee.
2.   To monitor the government initiatives against atrocities.
3.   To receive an action plan in case of such discrimination.
4.   To raise the issue to the concerned state authorities.

Critical analysis of the judgement

The above judgement which is authored by Justice DY Chandrachud is a well-written judgement, but it requires some immediate changes. There are a few aspects that the honourable supreme court fails to address that are very crucial:

• Apart from the committee being formed, fast track courts and redressals should be set up for the speedy disposal of the cases pertaining to the discrimination. Also using technology like Artificial Intelligence would aim to give speedy justice in similar related cases.
• Bringing the change in the education system so that there can no discrimination and also educating people about the rights available to them as remedy and punishment if they discriminate.
• The most pivotal part is to lay down the procedure that needs to be followed by the person who faces such discrimination. A proper mechanism should be made so that guidelines are clear and there is uniformity with respect to the procedure followed.
• People should be saved from illegal migrants from the other countries by forming a special Migrants task force that will specifically take care of the illegal migrants from the other countries and deport them back to their own country.
• Allocating special budget and funds to carter the special needs of the north eastern states. More expenditure on education and hospital that will help to create awareness and eventually lead to less discrimination.

Conclusion

The above-mentioned steps along with the steps suggested by the honourable supreme court should be kept in mind and implemented as soon as possible. This will eventually lead to a non-discriminating society and less harassing of the people by racist comments and other ways of discrimination. This will enable people to understand different culture and traditions and also lead to a better condition for people to live and create a sense of unity among the people of India. As India is a perfect example of “unity in diversity”, and pluralism is definitely regarded as the fourth pillar of the Indian democracy.

References

• https://indiankanoon.org/
• https://www.lexisnexis.com/

Notes 

[1] The Seventh person elevated from the bar, sworn on May 13th, 2016.

[2] Forty-third chief justice of India.

[3] Sitting supreme court justice, former Allahabad high court chief justice.

[4] AIR 2017 SC 113.

[5] The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

[6] The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Nos citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition.

[7] Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.

[8] This school of jurisprudence believes that the laws are made according to the changing need of the people. The law comes into force because of the basic changes and continues evolution and to meet the needs of dynamic nature.

[9] Information taken from the official website of government of Assam.

[10] Supreme law governing written document of India.

[11] Formed to eliminate discrimination, with headquarters in New York, came into force on 9th January, 1969.

[12] Signed between Assam leaders and prime minister Rajiv Gandhi on 15th August, 1985, for peace between Assam and other states.

[13] This bill was passed under the British regime in 1973.

[14] AIR 2018 SCC 1187.

[15] United Nations official website.

[16] The following judgement has been read from the SCC (Supreme Court cases) website.

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This article is written by Shivam Garg, from Faculty of Law, Aligarh Muslim University.

Article 25 and 26, Essential Religious Practice Test

Part III of the Constitution of India, the chapter on Fundamental Rights encompasses the rights to (i) Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii) Freedom of religion (Articles 25 to 28); (iv) Cultural and educational rights (Articles 29 and 30); and (v) Constitutional remedies (Article 32). Our Constitution along with rights to equality, life and liberty provide freedom of religion as an indispensable fundamental right. The preamble of our Constitution which sets forth and provides broad sweep to its content also secures to all its citizens the “liberty of belief, faith and worship.” The Indian Constitution recognizes the felt need of our multi-religious society and respects the old age traditions of religious people; it purposes to establish a secular, social order and to permit free exercise of religion within the framework of the constitution. The operation of religious freedom in India has a direct bearing on the establishment of the secular polity and the modernization of society and often cases of religious freedom involve conflict between the old age traditions and the evolving fundamental civil rights of an individual, and raise a serious problem which the Constitutional Courts have to solve.

Article 25(1) of our constitution guarantees every person, citizen or non-citizen, the “freedom of conscience” and right freely to “profess, practice and propagate religion” but these rights are not absolute and are made subjected to public order, health, morality and other provisions of Part III. While Article 25 confers the particular rights on all persons, Article 26 gives special protection to religious denominations. Article 26(b) provides that every religious denomination or a section has the right to manage its own affairs in matters of religion.  However, rights under Article 26 are subject to public order, morality and health but unlike Article 25 not to the other provisions of Part III.  Though the term ‘religion’ has not been defined in our constitution, the Hon’ble Supreme Court many a time has widely interpreted this term. In The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt[1] it was held that ‘religion’ is a matter of faith which has its basis in a system of beliefs and doctrines. The religion may not only lay down a code of ethical rules for its followers but also prescribe rituals and observances, ceremonies and modes of worship which are regarded as an integral part of that religion. Thus, the constitution also extends protection to such practices which are essential and integral parts of a religion. However, in Durgah Committee, Ajmer v. Syed Hussain Ali[2], J. Gajendragadkar in a “note of caution” observed that there may be practices which are religious but may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Therefore, to decide what practices are essential and integral parts of a religion, this Court rather allowing the religious denomination ‘complete autonomy’ has entrusted the task of scrutinizing such practices in the light of scriptures and precedents of such religion to itself.[3]

In Commissioner of Police v. Acharya Jagdishwarananda Avadhuta[4], the majority held:

Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.

Further, the Court held that there cannot be any alteration to such part as it may be the very essence of that religion and will change its fundamental character. It is such permanent essential parts which are protected by the constitution. Therefore, such practices are saved under Article 25 and 26 of our Constitution.

Essential Religious Practice and Constitutional Values

Now the question arises whether these essential practices can be allowed to transgress the constitutional values? The answer to this question is negative. Article 26, though may not be subjected to other freedoms provided under Part III expressly, cannot exist as a discrete element divorced from other freedoms. Freedom of religious denomination or protection to essential religious practices under Article 26 must be read in a manner which equally preserves individual freedom which may be impacted by its unrestrained exercise. In Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.[5], J. Chandrachud dealing with this question observed that it is the duty of the court to ensure that what is protected as the essentiality of practice is in the conformity with the fundamental constitutional values. While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together, these three values combine to define a constitutional order of priorities.[6] Therefore, the exclusion of women from religious worship, though founded in religious text and proved to be an ‘essential religious practice’ under Article 25 and Article 26,  is subordinate to the constitutional values of Liberty, Dignity and Equality.

In a country like India, which is a multi-religious society and of which religion is indispensable part, there may be various practices in a religion discriminatory to either women or men but are well embodied in scriptures of that religion and abrogation of which may change its fundamental character. Such practices though discriminatory may not always transgress the constitutional values as not all types of discrimination hamper it. Discrimination based upon intelligible differentia and rational nexus is very well protected under Article 14. Therefore, the answer to the question, whether all practices in all faith which are discriminatory to either man or woman will be declared as contrary to the constitutional values and will be made penal offences, is in negative. The court, in individual case, should enquire whether a particular discriminatory practice either to man or woman is an essential religious practice. If the answer to the first question is in positive the enquiry must move further whether such practice transgresses any fundamental constitutional values. Once the court is satisfied that a practice though discriminatory is an essential religious practice and does not transgress any fundamental constitutional values, such practice need not to be interfered with. 

However, the above-stated position may or may not be considered as final since in Kantaru Rajeevaru v. Indian Young Lawyers Association Thr. its General Secretary and Ors.[7], or Sabrimala’s review petition, the 5 judge bench with the majority of 3:2 has referred to bench of nine judges certain questions concerning the freedom of religion under Article 25 and 26 of the Constitution of India. These questions relate to the interplay between freedom of religion and other fundamental rights, ascertainment of the sweep of terms such as ‘public order, morality and health’, definition or scope of terms like ‘morality’ and ‘constitutional morality’, the extent of judicial review in the matters of faith, extent of the protection of “essential religious practices” to a religious denomination or to a non-denominational section and lastly the locus-standi of non-believer through PIL to question religious practices of a denomination or a section to which he does not belong. Therefore the question whether a discriminatory essential religious practice must also qualify the test of constitutional morality in order to get the constitutional protection is still an open question of law.

This reference to the larger bench is due to the no conclusive definition or the scope of broader terms such as ‘essential religious practices’ and ‘constitutional morality’. Analysis of various judgments shows no uniform application of ‘essential religious practice test’ which is now made subject to another test of ‘constitutional morality’ of which also the contours are not defined in the constitution. The effect of which is that the concept of ‘Constitutional Morality’ was invoked by two different judges of the same bench in Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.[8] to arrive at opposite conclusions. Therefore, the contours of such broad terms are required to be defined lest they become subjective. Further, the questions are often raised about subjecting the customs or practices traditionally followed by religious denominations to the tests in addition to what is being provided in the constitution under Article 25 and 26. The conclusive adjudication over these issues is still awaited since the matter is pending before the Apex Court. Once these issues are finally decided by the Supreme Court, the fate of other discriminatory religious practices such as the ban on entry of Muslim Women in Durgah/Mosque and the Parsi Women married to a non-Parsi into the holy fireplace of an Agyari and of the practice of female genital mutilation in Dawoodi Bohra community will be decided accordingly.    

[1] (1954) SCR 1005 (India).

[2] (1962) 1 SCR 383 (India).

[3] Sri Venkataramana Devaru v State of Mysore, (1958) SCR 895 (India).

[4] (2004) 12 SCC 770 (India).

[5] 2018 SCC online SC 1690(India).

[6] Supra note 5.

[7] Review Petition (Civil), 3358 of 2018.

[8] 2018 SCC online SC 1690(India).

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This article is written by Suman Chatterjee, Team LawSikho.

After finishing up with yesterday’s email, all exhausted and unloaded, I ended up watching a movie that I have already watched multiple times before.

Mr and Mrs Smith. Brangelina at their best! 

Apart from being an awesomely attractive pair, they possess this raw charisma that made a thinly plotted, over-actionated and almost ludicrous storyline glamorous.

For this email though, I will focus on a particular bullet-heavy scene where the Smiths survives a treacherous attack and fight off a band of assassins all while bickering over their fighting styles and discovering new personal secrets about each other. (I am not going to tell the whole story here. Go watch the movie if you will.)

What struck me was the dynamic between the two individuals. How they were coordinating with one another. How they complemented one another. How they acted towards a common goal seamlessly and in tandem with one another. 

Suddenly, I saw the essential ingredient that goes into making any relationship successful and almost memorable—it starts with the letter ‘V’.

Can you guess already?

No? 

Well… the secret word to every great relationship is:

V-A-L-U-E

Would it be as attractive if one of them were just a bystander while the other was sweating and huffing from the couch to the stairs through a flurry of fiery bullets flying at him or her? Nope.

Would it be as appealing if one were to come up all the crazy ideas while another would be looking dumbfounded, like a deer in front of headlights? Nope.

Would it be such an ‘epic’ if there was ZERO coordination between the individuals and both would topple over one another, every fight scene after another? Nope.

If you ask my opinion, the beauty of this film is how two individuals bringing something to the table and how they were making “shit” happen together. It was like a symphony. 

Trust me, it does not matter whether you are a man or a woman, the ultimate deciding factor of whether a relationship is going to last the end of times is whether the parties are offering equal value to each other (or in the relationship). 

If two persons decide to invest their resources, physical, mental or spiritual, into a relationship, there is no way that relationship is going to go wrong ever. 

To make a relationship work, always remember to give, give and give. 

Only then you can expect something in return.

Hold on! Why am I talking about relationships all of a sudden?

Because every budding lawyer enters into a relationship too…

Whether you are a budding lawyer looking for an internship opportunity or a junior to a senior litigation lawyer or a legal professional for a mid-life career shift…

You have to understand that you are essentially entering into a professional relationship with either your senior who’s mentoring you or the law firm or the company that’s hiring you on its payroll. 

The keyword here is ‘relationship’. 

And this is exactly where most of us, lawyers, go wrong. We don’t look at it as a relationship. As a result, we start to feel like it’s an obligation on part of the organization or the individual practitioner to take us under their wing and train us, and on top of that, PAY US too!

The problem is that we take them for granted. A BIG mistake!

In Adam Grant’s book, Give and Take, he talks about the three different types of personalities: givers, takers and matchers. 

Givers give more than they take. They are focused on how they can satisfy other people’s needs. 

Takers take more than they give. They are focused on how their own needs can be satisfied.

Matchers believe in the ‘tit for tat’ philosophy and aim for an even exchange.

Now Adam goes on to say how givers, when they are strategic about their giving, can end up more successful than the takers and the matchers. 

What I am trying to say is, the first question you should ask yourself, as a law student, practicing advocate or a corporate legal professional, is how you are going to offer value to the opposite party. Remember that they are taking you in under them—or entering into a professional relationship with you—because they expect some value from your end. 

Click Above

Instead of acting as a taker and thinking about what how much stipend you are going to receive or whether you will finally get the promotion or not, why not start by asking yourself, “How can I add value to them?”

However, the most common answer to this question is by adding more and more skills to your legal arsenal. The more skills you possess, the more valuable you will be to the person or entity you are entering into a relationship into.

What legal skills can help you score full points in your professional career?

To be honest, legal positions vary greatly in scope. One thing is for certain, you would need to put in your 100 per cent and then some more, physically and mentally, to survive in this demanding profession.

Also, don’t be like every other lawyer and treat your clients as if they are bags of money ready to be picked up on the street. Empathize with their problems, figure out the best-case and worst-case scenarios, and prepare the most optimum solution for them.

Having said that, there are a few legal skills that are common for almost all kinds of lawyers. They are as follows:

Great communication skills: If you can’t speak or write well, this profession will not suit you in the long run. The ability to speak clearly, concisely and persuasively, or drafting structured and convincing arguments is the hallmark of a great lawyer. 

Whether it is preparing a memorandum or a resolution, or presenting a case before NCLT, you need to know how to communicate like a pro.

Legal research: As a junior or a new associate, the bulk of your work might involve conducting research on case laws, judicial decisions, statutes, regulations and notifications. 

You must be able to use legal research software, be adept in statutory interpretation and also reasonably good at legal citation. Understanding legal concepts, especially around controversial sections and articles, is of utmost importance too.

Client handling: A senior partner of a tier-II law firm once told me during a job interview that client handling and service is an art and that’s the most vital part of a job as a lawyer, especially if you are flying solo or joining a law firm. 

Rainmaking and customer development is held in high regard in this client-focused legal industry. 

So, how much would you rate yourself on a scale of 1 to 10 on this? 

Time management: The legal business runs on the billable hour basis. It means, productivity equals to financial gain. As a lawyer, you would have to juggle competing urgencies, have an unbreakable work ethic and be a multi-tasking superstar. The more you work in the minimum time possible, the higher your billable hour rate will be. 

In case, you are thinking this applies only to the junior level, you are wrong. The work responsibilities and thus, work pressure increases immensely as you rise up the ladder. Perhaps, it is a bit relaxed in the corporate legal world but at times, even the corporate world can demand crazy deadlines and late working hours. 

Teamwork: Being super social and able to work with different people is perhaps the most underrated legal skill amongst all. Starting from the clerk to the partners to the peshkars, you have to be equally proficient in dealing and collaborating with everyone around you. 

Building a good working relationship and getting your work done requires tact. You might have won a gold medal at your university but if you can’t work with others, you have no role to play in the legal profession.

Good knowledge of law and legal procedure: Last but not least, you are a lawyer and you might even joke with your buddies how you passed the Jurisprudence exam without even buying a textbook for the same. 

But when you enter the profession—if you are an experienced one, you probably know this—you need to have a deep understanding of substantive law. You need to be well versed in the legal procedures. How can section 9 of the Arbitration and Conciliation Act be invoked? What’s the first step to filing an insolvency petition? How to tie and attach the back page of an execution application? 

You need to know all this stuff! Why? Because the judge or your boss will most likely be in a sour mood and you will be the one facing him. Oops!

The only way to advance in your career and make it large (yo, McDowells No. 1!) is to keep upskilling yourself and make yourself valuable.

Talking of upskilling and adding value, we at LawSikho do this only. We post articles. We hold webinars. We counsel students and professionals. Everything we do is to help you get what you want—whether it is an internship or get a promotion or start a business.

Through our 45+ courses spanning over every important area of practice consisting of non-stop high quality content, we serve one crore readers through our blog per year, and over 200 new LawSikho students join the rank of thousands of existing students every month.

But it all starts by asking what you want. Confused?

NEED HELP? Talk to our experts by calling at 011 4084 5203 or comment with “Hi, I need help with my career.” below to this article. 

Will be waiting to hear from you.

To your success.

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.

Today’s webinar schedule:

TOPIC: Essential soft skills expected from every lawyer

Hosts: Sahiba Singh Dhupar and Anubhav Garg

Time: 4:00 PM

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Hosts: Ruchika Motwani, Associate at Lawsikho, Subject matter expert (Criminal Law) and Ravish Zamindar

Time: 8:00 PM

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This article is written by Vandana Shrivastava, a student of Institute of Law, Nirma University, Ahmedabad. This article narrates different ways in which a law firm can increase and track the productivity of the work performed by its employees.

Introduction

A part of me always wished for an unforeseen announcement of a holiday. The wish is granted, but not the way I imagined it. As hard as it is to believe, everyone needs to accept that they are on lockdown. They still need to work, but from home. With family around, and the atmosphere being as comfortable as a Sunday afternoon, finishing the tasks becomes a task itself. But when duty calls, a person is expected to perform their tasks.

I am going to elucidate how law firms in India can boost the productivity of their employees while they work from home. In a general corporate environment, employees are habitual to their work being tracked and supervised by their superiors. The same is immensely reflected in the productivity of the employee. Therefore, I shall also explain simple ways through which a law firm in India can track productivity and work status of their employees.

Various ways the law firms can increase and track the productivity

Fixed working timings

The management of every law firm knows its employees the best. They are aware of their skills and weaknesses. To increase employee productivity, the management would be required to frame the working hours of the employees while they work from home. For this purpose, it is advised that employees’ suggestions are taken into consideration for two reasons- they’re adults and they know their way around and they know their house routine better than office management. With different things going on in their homes, it becomes quite difficult to work, since there is no other place to go to. 

Laying specific work hours would ease working from home (WFH).

• A planned day would make them efficient because they would have time for themselves and their family.
• There would not be an excessive workload at one juncture.

Setting fixed work hours does not imply that the employees are required to finish all the work in one sitting. The hours could be flexible, but the firm could set a specific number of work hours in a day, or they could set particular timings, but give breaks to their employees. A break is very important while working, as exhaustion decreases the productivity of people.

Constant communication

The management must check up on employees from time to time. They should assist the employees with whatever it is that they’re having difficulty dealing with. Cooperating with employees is of utmost importance if the firm wants them to give their best. Communicating with them shows that the firm cares and is ready to take responsibility even when there is no physical presence. Efficient communication is the key to productivity. Mere assignment of tasks to employees would not suffice. In order to communicate, the management could send emails, text messages or WhatsApp messages to employees. They could reach employees on the phone, if possible. With current technological advancements, employees could be contacted via video calls. 

The management should try to put itself in their shoes. When a person is struggling with everything, a single message/email from their boss saying, “Hello, I hope you are doing well. I understand that it must be difficult to work from home instead of the office. Contact me if you are stuck anywhere. I will assist you.” Few kind messages are sufficient to boost someone’s morale.

Employees must be convinced to believe that their workplace understands and supports them. When employees are relaxed, they will work without stress and will give more output.

Submission of reports to track day to day productivity

The management could set deadlines for each employee. There are some helpful softwares which enable the management to keep a track of their employees’ work. ActivTrak and Teramind mind are two of the fastest emerging softwares in the genre. They have flexible user privacy settings so that there is not a breach of employees’ right to privacy. They will assist in monitoring employees’ work at individual, team and departmental level. There are customizable charts to show the productivity of employees at a juncture.

Finishing the assigned tasks on time is significant to employees as it increases their chances of getting a promotion, and contributes to their skills. School and college students often become more productive when their exams are close, or when the date of their assignment submission comes close. This is human nature, and it applies to adults as well. 

A deadline pushes people to work fast. If employees would be allowed to work as per their desire, most of the work would never be finished. For the sake of uniformity and productivity, it is necessary to set certain deadlines. Law firms could set personalised deadlines for employees and could impose minor penalties for non-completion of work. The subconscious mind of humans makes them more productive as the deadline of a certain task approaches.

Assignment of tasks and keeping a record of them

The management of the law firm could send a specimen of time and task table to their employee and could ask them to fill these and revert back. A simple table would be the easiest to understand. Therefore, there is one below for understanding. This could be used by employees at their individual level too, to sort their tasks according to work hours.

Once the aforementioned step is finished, the firm could use the software mentioned in the previous point and track the status of the task(s) performed by the employees. It will support in identifying productive and non-productive employees. The management could then focus on the improvement of the work performed by non-productive employees.

Prioritize among tasks

When someone has a habit of working in their office every day, it becomes their work environment. A sudden shift in the workplace takes time to adjust. It is necessary to prioritize among different tasks at hand. It will boost the speed of work, and prove out to be fruitful for the firm. Employees have numerous tasks to do. Legal research, arguments, filing cases, client counselling are few basic tasks which almost all law firms are required to perform. Once the Courts reopen, a lot of paperwork would have to be filed as well.

Overload of work creates panic. Therefore, employees must start with the task they are most comfortable with. Once they speed up, the tricky tasks would appear to be easier than before. Thereafter, they should continue with easier tasks. Here’s a suggestion on performing tasks:

Easy task, followed by a difficult task, followed by an easy task, and so on. It would take less energy at a time, because easy tasks will allow the brain to rest.

Of all things, forming arguments requires more time. Legal research is comparatively easy. An employee who has to form arguments could start with research work. The memory of fresh research would still be in their mind, and would contribute immensely in forming arguments. These are little things which act as a catalyst in increasing the productivity of employees, no matter what their status or age is.

Providing incentives to support the employees

Performing the same work and following the same routine becomes tedious. If management introduces a creative way, it would persuade the employees to work better. For the same, online competitions could be organised. For instance, an online quiz based on the application of the law in the practice area of the could be organised. The winner would get to delegate one of their tasks to their colleague or they could be asked to compete in a manner that whosoever completes their assigned task first would get a day off.

The incentives offered to the employees should be such, which would not develop enmity between employees, but improve their relations with each other. Also, the incentives shall help to increase the productivity of the firm as a whole. If an incentive is working adversely for the firm, it should be dropped right away.

Providing holidays on weekends

Legal work is exhaustive. For efficiency, lawyers need to take a break or it affects their work adversely. Employees who work from home should get a holiday on weekends. Management of all law firms should recognise the need for giving their employees some time to focus on their personal lives.

For accomplishing that purpose, the management should give an off for a day or two on weekends. It relieves the employees of all the work stress they carry and freshens them up for the upcoming week.

Reading, online courses and workshops

Employees should be asked to read new landmark judgments associated with their area of work, so that they remain updated with new provisions and interpretations. This will help in dealing with potential cases of similar nature. Writings of eminent jurists will also increase the knowledge possessed by the employees and assist in their work.

Firms conduct workshops and seminars for improving the skills of their employees, and to keep them updated with advancements in their profession. The physical presence of work from home employees is not possible, but their skills need to be polished too. There are various online courses and workshops organised by reputed organisations and online education platforms. In India, LawSikho and Coursera are growing fast. LawSikho is immensely helpful in learning practical aspects of law, which are majorly not taught in law schools. 

The firms could make it mandatory for their employees to take a specific course which falls under the area of operations of the firm. Employees specialise in different tasks. They could be made to take courses or workshops of the areas which are concerned with their individual work too. The employees could be asked to create a list of all the new things they learnt in the workshop. It would help in checking whether the employee really learnt something, and important updates could be circulated among all the employees in the firm.

Access to Counsellor

All employees have different work capacities. Some could undertake more than others at one point in time. Emotional issues are common among the current generations. It does not mean that these issues could be taken lightly. It affects a person both, emotionally and academically. There are certain issues which are private, and people feel uncomfortable about sharing them with people who are familiar to them.

Online platforms for counselling are constantly emerging. The firm could hire a counsellor to assist the employees whenever they are in distress. Conversation between a counsellor and an employee is a private affair. It provides mental support to employees, making them better at their work.

YourDOST is an online counselling and emotional wellness coach. A person could chat with them anytime they desire. They are available via call too, but a prior appointment has to be made to talk to a counsellor via call. For consulting a counsellor who is physically available, one could Google it or find it on Quora.

Conclusion

Management of a firm could make numerous efforts from their end to increase employee productivity in their firm. However, a firm would prosper only when employees will give their best to their work. For the same, the employees need to have a sense of belonging towards their workplace. Management shall inculcate that sense by increasing employee participation in important administrative affairs of the firm.

Efforts have to be made by both the management and employees with cooperation from everyone. If steps from one end are not reciprocated by the other end, the entire process would prove out to be a failure. The firm will function smoothly when all the members, employers and employees will show equal interest and dedication towards their work.

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This article 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

Many of the law aspirants might have idolized Harvey Specter from Suits or Bobby Donnell from the Practice, and dreamed about becoming an associate or a partner at a popular law firm. However, for an aspirant working at a law firm, there might be variation in the experiences they earn from the T.V series or films as to what they experience in actuality. Also, working at a law firm differs in terms of experiences accrued from working under a litigator or for a company. So let us now learn in detail about various law firms, what they are, what they do and many other relevant facts.

About Law firms

A law firm is a business entity, formed by an association of lawyers who are engaged in legal practice. In general, the members of a law firm share a variety of clients, and the profits are thereby accrued by providing services to those clients.

The obvious question that might be arriving by now in the mind of the reader is why would the lawyers come together for working in a group, when they can work independently as a litigator or solely for a company ? Well the lawyers do this purporting to provide more and specialized services to the clients, while working under the same roof. Also, by coming together, the lawyers are able to share various resources, such as- rents, staff, furniture, technology, internet, library, and all other benefits.

Conventionally, the law firms were based on partnership. However, with changing times, they are organized in different ways, dependent upon the jurisdiction of their operations.

Law firms provide a variety of specialized legal services to individuals, or associations, or companies. The primary service of a law firm is being an advisory to the clients about their legal rights and liabilities, and representing them in matters related to civil, criminal, business transactions, intellectual properties, real estate, taxation and all others in which their assistance is sought.

Based on their arrangements, law firms can be of the following types:

• Sole Proprietorship 

This law firm consists of only one lawyer who is responsible for all profits, loss, and liabilities arising out of such firm.

• General Partnership 

In this type of law firm, all the lawyers who are members in the firm jointly share the profits, losses, and liabilities accrued therein.

• Professional Association 

This type of law firm operates in a manner similar to a business corporation and issues stocks to the lawyers or advocates.

• Limited Liability Company 

Here the advocate-owners are regarded as members but are not directly liable to third party creditors of the law firm.

• Limited Liability Partnership 

In this form of law firm there exists a partnership among the advocate-owners with each other. However, there is neither any liability of a lawyer member towards the creditor of the law firm nor any responsibility for any negligence caused on part of another member. The LLP is taxed as a partnership firm while being a beneficiary of the liability protection of a corporation.

Working structure

Now we shall look into the working structure of a typical law firm, consisting of the following persons:

• Partners/CEO 

They are the joint owners and business directors of the legal operation.

• Associates 

They are the employees in a law firm, looking forward to becoming partners. Generally, junior advocates who are new to the legal domain start their career as associates at a law firm. Depending upon the nature of the firm, they may be categorized into junior associates & senior associates.

• Interns 

They are usually the law students from various law schools who come for acquiring relevant practical knowledge and skills necessary for pursuing a career in their area of interest. Sometimes, even fresh law graduates who are yet to obtain the enrollment go for interning at the law firms. Simply put, these interns are the ones who may although have theoretical or bookish knowledge but in need of developing the imperative and requisite practical skills. They look forward to obtaining a PPO (pre-placement offer) and thereby becoming an associate at a law firm of their choice.

Works assigned to every member:

• The Partners being joint owners hold ownership interest in the firm. Also, being business directors in designation they supervise various organizational and other activities of the firm.
• The Associates usually deal with the clients of the firm and deal with the cases coming to the firm. In terms of experience the Senior Associates look into the more complex matters, while the junior associates introspect matters involving lesser complexity and expertise.
• The interns are assigned with various assistantial works like checking case lists, drafting assistance, preparing drafts, research and analytical tasks, etc. Sometimes they may have to perform menial tasks like obtaining a photocopy, or a print out.

Service Provided by Law Firms

Depending upon the nature of a law firm, it may either provide legal service in a specific legal domain or as in case of big law firms it may render various forms of services in different legal areas.

Here we shall look into some of the major areas, in which a typical and multipurpose law firm usually renders its services:

Administrative law

It is a parcel of public law dealing with the governing activities of the administrative agencies of the Government, such as- rule making, adjudication, or enforcing a specific regulatory agenda. Administrative law pivotally deals with the decisioning of administrative units of the Government as tribunals, boards and commissions which are branches of a national regulatory scheme in areas such as police law, manufacturing, international trade, immigration, taxation, etc.

Arbitration

This involves settlements outside the courtrooms on Civil and Commercial matters. The disputing parties agree and present a matter before a single arbitrator who then decides upon the matter which the parties have already agreed to comply with. It is increasingly common in international disputes in a pre-agreed jurisdiction instead of turning to litigation.

Aviation law

This area involves matters related to air travel and international law. It also involves maritime law but the International Civil Aviation Organization largely regulates the commercial aspects of air travel. Space law is an emerging field which is predominantly based on aviation law.

Banking & Financial law

This is a diverse legal area which involves the regulation of financial activities and products, and primarily centered on loan transactions. A financial lawyer is involved in works ranging from advising on simple bank loans being granted to companies, to working on highly structured financial agreements across various jurisdictions. This area requires a practitioner to be highly commercially minded and capable of considering the business as well as legal consequences of every business deal.

Competition law

This area involves promotion and maintenance of market competition by regulation of counter-competitive practices by the corporate bodies. Implementation of the competition laws is done through various public and private enforcement agencies. Competition law is known in different names in different nations. In the USA, it is known as Antitrust law; in China and Russia, it is called anti-monopoly law; in the European Union, it is remarked as both the antitrust law and competition law; in Australia and UK in recent times it has come to be known as trade practices law.

Corporate law

This is also known as business law, or enterprise law or company law. It is an organ of the legal body dealing in rights, relations, and behavior of individuals, businesses, companies and organizations Corporate law encompasses the area related to formation, funding, governance and death of a corporation.

Criminal law

It is the area of law dealing with criminal acts and omissions. It specifies conducts which are threatening, harmful or otherwise perilous to an individual and his or her property, health, safety, and moral well being of people. Criminal law deals with violators, punishment, and rehabilitation.

Contract Law

This area deals with various forms of agreements, contracts, merger and acquisitions between different parties. The basis of civil and commercial laws have their plinths in the contractual law.

Constitutional law

A Constitution is the paramount enactment of a sovereign State. All other laws, whether statutory or procedural, originate from the Constitution. Thus it is imperative to be well versed with constitutional knowledge and being able to solve various matters involving constitutional significance.

Environmental law

Various enactments have been made and various guidelines have been issued by the Government to preserve the ecological balance and extend environmental protection. Issues relating to violation of these rules and guidelines by individuals or the industries come within the ambit of the environmental law.

Intellectual Property Law

Ever heard of issues like copyright infringement, design theft, trademark violation, patent infringement and all? Well all these issues come under the scope of intellectual property laws. Intellectual properties being a creation of human intellect are abstract and incorporeal in nature but in no way are they denied the legal protection because of such abstractness.

Property and Real Estate laws

Sale, gift, mortgage, lease or other transferable modes of an immovable property lie within this domain. Also, rights relating to ownership, possession, tenancy, encumbrances, etc are guided by the property laws.

Thinking about investing in real estate or just wanting to rent a shop in a newly constructed shopping mall? This is where the property and real estate laws come into play.

Labor law

Disputes are a common occurrence between the workmen and the management, in an industry. Again providing a safe working environment for the employees or the workmen is incumbent upon the employers in an industry. All these and other resembling issues are dealt in accordance with the provisions of the Labor laws.

Information and Technology law

With advancement in science and technology, the internet has been turned into another essential of the modern lifestyle.

Therefore, alongside the development of internet technology, various financial, banking, commercial, and transactional activities are now occurring in the virtual space. Also, criminal activities are occurring online, such as hacking, data theft, pornography, privacy violation, cyber terrorism, cyber fraud by the use of internet-capable communication devices. Information and Technology law endeavors towards dealing with all of these issues.

Taxation Laws

Government taxes its citizens either through indirect taxation or direct taxation. Apart from the citizens the Government also imposes taxes upon various commercial organizations, both national and foreign. Taxation is done by the Government so as to earn revenue from different sources which it spends towards paying its employees, funding areas like education, healthcare, defense, construction, science, telecom, etc.

Every matter related to tax filings, income tax returns, tax benefits, tax assessment, etc or disputes relating to tax evasion, tax planning, tax default, etc are guided by tax laws and come under the domain of taxation laws.

This list is inexhaustive; there are several other areas which are also practised by the law firms. This list contains the areas which are usually being taught in law schools. The reader shall get a brief idea about them through this article. 

Special features of the firms

Many law aspirants or law students who are yet unsure or reluctant in pursuing a career in a law firm. They must firstly be acknowledged about the special characteristics of a successful law firm.

Partnership relations 

This is a pivotal foundation of a successful law firm. There is a healthy partner culture in a successful law firm, where:

• The partners share common vision and purpose.
• The partners possess respect towards one another. 
• The partners deal fairly and honestly with each other.
• And lastly, there is involvement of the members in problem solving discussions for dealing with varying issues and difficulties.

Leadership

The second rudimentary feature of a successful law firm is dependent upon the leadership. This leadership can be achieved by a sole person or a core member group, and not necessarily arrive from the formalized management structure of the firm.

This leadership behavior includes:

• Development and empowerment of people.
• Ability to influence others.
• Encouragement of team play.
• Introspecting multiple options.
• Taking calculated and intelligent risks.
• Feeling passionate towards work.
• Being a clear and strong visionary.

Leadership makes things happen and pushes a firm forward, facilitates new directions and helps in attaining new goals, and brings flexibility to cope with the dynamic competitive climate of the present day.

Management

This is the third plinth of a successful law firm. Law firms which are successful, already contain a good governance system and well placed management structure for the purpose of effective management, which includes the following:

• Productive activities which include individuals and also the whole firm.
• Economic, qualitative, and quantitative soundness of the work.
• Formation of determinant policies which would display the character of the firm.
• Development of business and marketing.
• Systems for partner compensation and profit distribution.

Remuneration of the partners

This is the fourth plinth of a successful law firm. A well placed partnership remuneration system is what the successful law firms already have.

A well paid person is more passionate towards their work. Thus an employee with better payment feels more enthusiastic in performing better at his work.

Planning 

This is the fifth plinth of successful law firms which is already well placed behind their success.

An effective business plan should include:

• Decision as to directing the law firm.
• Data collection and reviewing.
• Chalking out action plans.
• Implementation and follow-up mechanisms.

Client Service

Successful law firms which deliver outstanding client service not only focus on the expectations of their clients but also on surpassing those expectations.

Delivering great client service is highly crucial in today’s market. While an increasing number of lawyers and law firms are competing for fewer clients with drop in the client loyalty. It is insufficient in the present day legal environment to simply be competent or an expert in the legal domain. A successful law firm is determined through a client’s work experience with that firm and not solely upon the quality of work done by such firm.

Marketing 

This is the seventh rudiment of a successful law firm.

Those days are a thing of the past when the advocates or lawyers were simply involved in legal practice. Presently they experience cut-throat competition, shrinking service demand and increasing supply of professional talent, availability of substitutes, and marketing of professional services. Therefore, marketing is vital for a successful firm to survive in the future.

Advantages of working in a Law Firm

Now being acknowledged about the special features of a successful law firm, let us introspect the advantages which a law firm associate has over an independent litigator and compare the working of law firms with the independent practice and litigator.

Monetary Security

Working in a law firm means having a pay cheque signed on your name every month. So as long as you are an associate at a law firm you are guaranteed a certain monthly remuneration. On the contrary, as an independent litigator, there is no fixed earning. You earn depending on the number of clients you get. There might be times when you earn tenfold than a firm’s associate, again there might be situations when you do not have any earning.

Job Security

As long as you are an associate at a law firm you have a job. Whereas, as an independent legal practitioner, you do not have any fixed job. Whether you get to work on a case is dependent upon how many clients are coming to you.

Diverse Client Base

In a law firm, there is an abundant and diverse client base. So even if a client decides on moving his case to somewhere else, it shall not affect the firm financially. Whereas, as a litigator where you have already have no of getting clients, any such decision on the client’s part is bound to affect you financially.

Office

Working in a law firm means that there shall be an office of the firm for the associates, partners and other employees to work in. Expenditure for such an office shall go from the firm’s funding and not from your wallet. Contrarily, if you are a litigator, then although you can have your chamber but for that, you will have to spend your dime which can be strenuous most of the time, at least in your initial years.

Training Programs

Law firms often go for investing in comprehensive training and mentoring programs for their employees, especially the associates. Such training programs may include- detailed summer associates program, onboard training for new employees, in-house educational programs, continuing educational backing, etc.

On the opposite, working as a litigator you cannot avail this kind of training. You learn from your experiences which usually takes a long time. 

Well-credentialed colleagues 

Getting to work at a law firm as an associate or an intern means having an opportunity to work with accomplished, successful, and credentialed colleagues. Contrarily, as an independent practitioner having these opportunities are not guaranteed.

Advancement Opportunities

Most law firms work on the hierarchical order. The better you perform there, the better is your opportunity. You may join as a junior associate and depending on your performance you may become a partner where there are new experiences and responsibilities in waiting. Simply put, you experience growth throughout.

However, as a litigator, there is no such scope. The only matter concerned here is how many clients you get which in turn determines your earning.

Diversity in experiences

As a member of a law firm, you have to work with a diverse client base and thus deal in complex, diverse, and technical legal matters. Thus you have the scope of diverse experience in your professional life. Whereas, as a litigator, such experiences are scanty to nil.

Conclusion

Thus, from the aforesaid assertions, it can be ascertained that working with a law firm has manifold advantages and scopes for a young law graduate, fresh out of the law school. However, aside from the advantages, we must be aware of the disadvantages of working at a law firm.

• Many law firms are personality driven organizations rather than being institutionally run. This means a higher than normal dose of ego and politics in the workplace.
•  Work timings can be insane in case of a law firm. There can be jovial phases when you arrive at the office at 10 am and leave at 7:30 pm. Again there are horrendous ones when you may have to work until late 1 am of the night. This in turn tells upon your health and destabilizes your work-life balance.
• Usually a law firm job is by nature a desk-job throughout which means sitting before a computer for extensive hours, thereby affecting your body.
• Even senior employees who fail to manage teams or bring in clients are fired. So although you have a job security that does not mean it is permanent.

Thus after comparing all the features, pros, and cons of working in law firms the readers are now expected to make a clear decision. However, one suggestion on the end note- everything in life comes with both pros and cons. So before you make a decision, ascertain your goals, your skills, etc. then decide and attempt to remain dedicated to it. 

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This article is written by Rajat Chawda from the Institute of Law, Nirma University, Ahmedabad. This article explains the legal consequences which will arise due to the coronavirus outbreak. 

Introduction

Coronavirus has adversely affected the global economy. The pandemic has caused almost every country to go into lockdowns to save its citizens from the virus. The lockdown has caused people to remain closed in their house, crumble the economies, halting down businesses that are incurring losses.

Amidst such lockdowns, there are many agreements and promises, which were to be fulfilled but because of the current situation, the same has not been possible. This article explains the legal position of such agreements and explains whether a virus outbreak can constitute an Act of God or not.

Legal Consequences

Breach and Non-performance of Contracts

A breach of contract occurs when either of the parties to a contract refuses or fails to comply with conditions accepted in the agreement.  

Section 37 of the Indian Contract Act, 1872 makes it mandatory on part of the parties to obey the terms of the agreement. 

When a legally binding contract is breached by either of the parties, a ‘right to sue’ vests with the other party to claim damages or compensations from the party at fault. 

These rights have been defined in Chapter VI of ICA, titled ‘Of the consequence of the breach of contract’.

This section also provides for two exceptions:

1. When the contract has been already performed,
2. When the person is excused under the law (defences).

Defences for Breach of Contract

Defence against a suit for breach of contract discharges the party in fault from any sort of liability. Broadly, there are three defences for the breach of contract:

1. Force Majeure

Any Act of God or unforeseen circumstances that prevent either of the parties to perform and honour obligations of the contract is a defence to breach or non-performance.

Illustration: ‘A’ comes into a contract with ‘B’ to build a house at a specified location but because of a landslide in that area, it is now impossible to build the house. Here, ‘B’ cannot claim damages or compensation from’ because of the defence of the ‘Act of God’.

2. The Frustration of Contract

A contract, whereby subsequent of its formation, the performance becomes impossible or unlawful due to other circumstances unforeseeable by both of the parties. 

Illustration: ‘A’ comes into a contract with ‘B’ to paint the house of ‘B’. Before he could render his services, the municipal board demolished his house. The contract is said to become frustrated.

3. Justification

When a party at fault can justify the reasons for the breach or non-performance of the contract.

Illustration: ‘A’ comes into a contract with ‘B’ to provide a thousand quintal of wheat but before the performance, the grains became bad for consumption.  Here, ‘A’ justified his non-performance by stating that the grains agreed to be delivered were not fit for the performance and therefore such non-performance occurred.

Force majeure

The Principle in the UK

Since England is a common law country, the parties are at flexibility to choose which acts and circumstances will be considered as an act of force majeure. The principle also includes under it acts of human intervention apart from the act of God. Under this scenario, the burden of proof lies on the party claiming the defence of force majeure. The party has to prove that the occurrence of an unforeseen event lies under the doctrine of force majeure. 

Three tests for Force Majeure:

1. Externality

If it was not in the hand of the parties to control such an event.

Example: Landslides, Floods cannot be controlled by humans. 

2. Unpredictability

There was little anticipation for the happening of such an event and there is an element of shock and surprise that it occurred.

Example: Weather changes cannot be predicted, War with a nation cannot be predicted, Emergency cannot be predicted.

3. Irresistibility

The parties cannot, at any cost avoid such circumstances.

Example: If due to war, the government has imposed a curfew, all the parties cannot avoid it but to follow the orders.

Force Majeure under ICA

Under ICA, the term ‘Force Majeure’ is not expressly and properly defined but its essence can be inferred from Sec 32 and Sec 56 of the Act. 

Section 32 defines ‘contingent contracts’, in which enforceability of a contract depends on happening or not happening of an event. If in the future, the happening of an event becomes ‘impossible’, the contract is said to be ‘void’.

Section 56, defines the principle of the frustration of contract under which subsequent impossibility of happening of an event exempts a person from his contractual obligations.

In India, since the force majeure is not expressly defined anywhere, the defence can only be taken, when parties have incorporated this clause in their agreement. Since the legislation expressly defines the frustration of contract under Sec 56 of ICA, the principle of force majeure is loosely recognized in India per se.

Does a Virus Outbreak constitute an ‘Act of God’?

A party claiming the defence of force majeure is not available, defence of frustration of contract can be claimed. The words which are used in defining every clause of the ‘Act of God’ like ‘unusual’, ‘unforeseeable’, ‘grave and sudden’, ‘extraordinary’, etc try to describe the general requirements which a circumstance or phenomenon has to fulfil to qualify as an act of God. It must be unusual or extraordinary that it is very hard to foresee such a turn of events.

It cannot be conclusively stated whether COVID-19 will be considered as an ‘Act of God’ by the court. It shall be determined by the court in the near future, whether this virus qualifies as an Act of God fulfilling the appropriate requirements to be considered as one or not. 

What adds gravity to its discourse is that the WHO’s Directed General declared it as pandemic and stated in his speech that, “We are in uncharted territory. We have never before seen a respiratory pathogen that is capable of community transmission, but which can also be contained with the right measure.”

This statement will somewhat add gravity to consider this virus as an Act of God.

Frustration of contracts

The frustration of the contract defined under Section 56 of ICA is a minor version of force majeure. If the principle of force majeure is not available, the defence can be claimed under the principle of the frustration of the contract. This principle is based on the Latin maxim, ‘les non cogit ad impossibilia’ meaning, a man cannot be compelled by law to do what he cannot possibly perform.

There are three necessary conditions to claim this defence:

1. A contract must be existing between two parties which is valid and enforceable.
2. The contract must be executed partially, meaning there is some part of the contract which is yet to be performed.
3. The contract becomes impossible to perform after it is entered into.

While dealing with the present scenario of COVID-19, this principle cannot be considered as a good defence as firstly, this defence is claimed under the circumstance where the subject matter of the contract is dissolved because of the subsequent impossibility. Secondly, the defence is only available when partially, the contract has been executed.

Therefore, between the defence of Force Majeure and Frustration of Contract, Force majeure is comparatively a better defence because of its wider application and interpretation. 

Justification

Justification is a recognized defence under tort law but is not directly recognized under the law of contracts. Since the Law of Contracts has evolved from case to case basis under the common law jurisprudence, therefore, justification can also be considered as a good defence under contract law. 

‘Justification’ of any act or omission is to provide reasons for performance or non-performance. If the reasons are justifiable the person justifying his actions is exempted from any sort of liability. This defence is always available on the grounds of justice, equity, and good conscience.

In the present scenario of coronavirus, the non-performance or breach of contract can be justified on the grounds of 

(1) The government declaring lockdown, which expressly prohibited the functioning of every kind of business because of health safety, except the businesses dealing with essential commodities. 

(2) When the entire country is under lockdown, it is impossible to perform the terms of a contract efficiently and effectively. Therefore, on this ground defence for non-performance can be claimed. 

It is on the court to analyze and adjudge the justification provided, circumstances present, and the gravity of the matter from case to case basis.

Categories or sectors that are affected

A report of the UN Conference on Trade and Development stated that the outbreak of the corona pandemic might cost the global economy $1-2 trillion in 2020. An article stated that along with the other countries, India is also entering into a recession. The lockdowns have adversely affected the global supply chain. The 21-day lockdown of India will too have an adverse impact on the Indian economy as the major business sectors will soon reflect in their perspective reports.

The major industries and businesses to be impacted include the travel industry, the hotel industry, manufacturing sectors, small skill sector, consumer & durable market, poultry & seafood markets. 

Amongst these sectors, the hardest category to be impacted by this pandemic is the group consisting of daily wage earners and unskilled labour. Because the earnings of these people depend on the daily work they do, the lockdown has resulted in continuous unemployment, with little or no money in hand. If these groups are not looked after, they will die of hunger before corona catches them.

Current Legal Status of the Contracts

If one analyzes the situation and the statutes carefully, he would understand that the contracts have not become impossible or unlawful to perform. The word ‘unlawful’ means something which lacks the sanctioning of the State & ‘impossible’ means not able to be done, to occur or exist. But prior to this pandemic almost all of the contracts had the legal backing and were possible to be executed. 

They have become impossible to execute because of the ongoing lockdowns and unlawful because repercussions will be there if one does not obey the State’s decision of lockdown. Therefore, the contents or deed of the contact has not become impossible or unlawful per se but the present scenario has made them seem like this.

In light of the above paragraph, these contracts should be considered as ‘difficult’ to perform, not ‘impossible’ or ‘unlawful’ to perform. Under the current circumstance when in a state almost every other activity is halted and it is difficult to trade even essential commodities, these contracts should be considered as lapsed for a subsequent duration of time, until the conditions become normal again and the businesses resume their function. 

Conclusion

People enter into contracts daily either directly or indirectly. For every work, an individual performs there is an incentive attached either for himself or for others. In this circumstance of a pandemic where there is a global lockdown seen for the first time in human history, the global economy is falling into recession, businesses are going down and there is also a scarcity of essentials in the market. It should be rationally understood that in a situation like this, it is difficult for a person to honour and perform his part of the obligations of the contract. In such a situation, we all should stay together as someone rightly said, ‘We should hang together in a desperate situation, otherwise we will all hang separately’.

References

https://blog.ipleaders.in/enforceability-force-majeure-clause-india-uk/

https://www.livelaw.in/know-the-law/force-majeure-act-of-god-doctrine-of-frustration-under-india

https://www.nortonrosefulbright.com/en/knowledge/publications/844d7cf4/contract-performance-

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 Yash Singhal from Vivekananda Institute of Professional Studies, New Delhi. This is an article on the negative implication of national lockdown on legal professionals along with the efforts of the Bar Council in minimising them.

Introduction

Prime Minister Narendra Modi announced a nationwide lockdown in India for 21 days from 24 March to 14 April 2020 amid the spread of COVID19. The scare over spreading of the virus through human contact has forced the country to observe a national lockdown with movement limited to emergency situations. The essential commodities have been made available to the citizens for their survival.

All the offices, schools, colleges, malls, gymnasiums and other places which are prone to crowding have been shut with immediate effect. The employers and their employees have accepted the concept of ‘work from home’ as the norm to cover most of the official assignments. The adaptability to staying at home at all times with no social interaction at a social setting has been an issue that has further affected the physical and mental health of the individuals.

The real issue is with the identification of infected individuals who do not feel any symptoms instantly and continue to follow the usual lifestyle of social interaction, infecting several other people who come in contact with the infected person. Also, the infected are hiding without informing the concerned authorities due to the fear of isolation while putting the health of related persons at stake.

The pandemic is yet to be controlled and if predictions are to be followed, there are chances of even longer lockdown in the future until any significant improvement in the situation is observed. All professions except those dealing with essential commodities have experienced a slowdown with lack of consumers or clients to consume their services. 

How lockdown affects legal professionals?

The lockdown has forced people to adopt the strategy of ‘work from home’ which requires the division of work among all the office staff briefing them on the quality of work expected out of each of them. The legal professionals have also been facing similar issues with the realisation of learning digital skills to handle the technology at their disposal for the benefit of all. 

Established legal professionals in firms/courts 

The legal firms are electronically communicating with the employees to get the work completed within the prescribed time limit. The firms that are engaged in online legal counselling would be benefited with their experience in handling technology. Also, the demand of the legal professionals during the period being low, the ones with special skills in providing home-based legal assistance would be favoured over others. The senior advocates and the judges have to acquaint themselves with the know-how of electronic courts after all Courts have been shut on the orders of the Government. The courts have shifted to video conferencing with the Supreme Court only addressing important matters through video conferencing.

The instant shift to digital communication would be difficult for those professionals who have never used technology in their work and are helpless with the changing scenario. The quick adaptability to the scenario is easier said than done. The professionals that could adapt themselves to the digitisation method would succeed. The lawyers as well the judges have quite a bit of uncertainty as to the feasibility of the video conference in delivering instructions or pronouncing verdicts. The contracts of the firms which they entered before the lockdown will also be affected. 

The Bombay High Court ordered lawyers to file only those matters that require urgent attention, failing which high or exemplary penalty to be imposed on the litigants. The lawyers are limited in their authority to file suits on matters lowering the number of cases with them and reducing the work of all lawyers.

Young Lawyers 

The young lawyers who have just entered the professional world will find it difficult to cope due to lack of work. They need to train themselves under an accomplished lawyer which would not be possible with the current work from home culture.. Those employed with established lawyers have their own issues due to fewer chances of proving themselves in front of their employers to be provided with any significant work. Those who are self-employed have their own set of drawbacks.

They have also missed out on learning from an accomplished lawyer through observing their mode of work or hearing them argue in a court. The practical training in such a professional field is crucial for the overall development of these young lawyers.. Apart from this professional loss, the economic impact would be even greater with these young lawyers earning less income in the period which might discourage the young lawyers to continue in the field. Also, the condition of the economy in the lockdown would result in recession after the end of lockdown. This will snatch away the employment of the already distressed young lawyers. They will not get adequate chances to prove themselves and would be subjected to even worse situations later.

The self-employed young lawyers require time to establish themselves for people to approach them with cases, but during the lockdown, the lack of cases has impacted them professionally and economically.

The other requirement being immediate knowledge of technology by these young lawyers to contribute to the work of the firm in any manner whatsoever or even have training sessions over the internet with the senior lawyers at the firm. All social interactions are possible through technological means and anyone who is not comfortable using it would suffer.

Law aspirants 

The law aspirants preparing for entrance examinations would feel the effect of the lockdown. Most of the law aspirants join coaching classes for law entrance exam preparations and with the lockdown in place, the coaching centres have been shut down and the students are suffering with no guidance from the experts. The aspirants would have no other option than self-study or take online classes or courses, provided the coaching classes have adequate resources to carry out online teaching.

The urban regions have technological resources with computers and the internet at their disposal but the rural regions are bereft of any such resources which are basic amenities in the present situation. 

Law aspirants thrive on the quality of books available in the library near their residence. Library access has also been restricted during the lockdown, with the only option to obtain law books being e-commerce websites such as Amazon or Flipkart. Not all students can afford to purchase every book. This would be disadvantageous on the part of the aspirants who are determined for the course but do not have the resources to obtain these books.

Law students 

The law students who are currently pursuing their course are suffering due to shutting down of all institutes/colleges/universities. The online teaching methods have been adopted to make sure students do not miss out on the course syllabus. The internship opportunities and moot court competitions are paramount to the development of the law students but no such activity is possible in this time period. 

The frequent court visits is a way through which law students can make contacts and obtain necessary information about court functioning. The courts being shut down during the period have left them with no option but to remain at home.

Freshly graduated lawyer 

The freshly graduated lawyers are inexperienced and need a well established lawyer to guide them through court proceedings. In a firm, they need to learn from senior advocates on the requirement of professional skills to get successful in their field. All the lawyers are going through the period of less work which has, in turn, reduced their employment of young lawyers who have just graduated. The requisite training under a senior lawyer is a must for these freshly graduated lawyers which they would not get owing to the shutdown of courts and lack of fresh cases. 

The practical experience in the natural environment in the courts is unmatched and any video conferencing, when all the professionals are struggling with the clarity over the use of technology to get the proceedings underway, would be far from similar to the actual court proceedings. In a court, the cross-examination, the art of argumentation, the observation of witness, and upholding principles of justice are the skills which are learnt by the lawyers while physically being present there. 

Efforts by the Bar Council of India in this regard

Every profession in India is on a standstill during this lockdown period due to lack of demand in the market and restricted movement with all offices closed. Even though professionals have adopted the ‘work from home’ approach to cover the work, it has not been able to arrest the decline in demand for work. No policy has been formulated as such by the government to support those who will suffer in the lockdown. 

Bar Council of India has advised the Prime Minister and Chief Ministers to grant a subsistence allowance of INR 20,000 per month to young lawyers during lockdown. This provision is specifically forwarded for those who belong to the economically weaker section of the society and are incapable of surviving without any income for the time being. The funds are to be issued from the Centre Funds, the State Government Funds or jointly. This is by either providing for the same directly or through the Advocate Welfare Fund of the respective State Bar Councils.

Bar Council of India identifies the situation to be a grave one and while the country is passing through difficult times, all professions have gone down during the lockdown except those involved in providing essential service. They identify advocacy as a noble profession which defends human rights, fundamental rights, and constitutional rights of every individual. Therefore, their support at the times of emergency is a duty of the government. The young lawyers who are working under the senior lawyers are yet to make an individual mark in the market, thus, would find it difficult to get much work during this time. It is an effort of the Bar Council of India to not let the spirits of the young lawyers go down by advising the government to provide assistance in the form of subsistence allowance.

They stated a stat regarding the proportion of advocates who are in a position to survive and subsist without any earning during the lockdown accounted for merely 10%, with the rest lacking any social security and facing risks of financial crisis. These people who are not a part of that 10% subsist on regular earnings of the week, but the restricted court functioning has impacted their earnings. 

The Bar Council of India contends that the advocates’ community are the highest taxpayers in the country and that it is the duty of the government to protect its taxpayers. It requests the government to make arrangements for those who fulfil their social duties by fighting for their clients in order to bring them justice should not be left in dire situations where they could not earn their bread and butter. 

Conclusion

The nationwide lockdown imposed by the Prime Minister of India on the 24th of March, 2020 has restricted the movement of the individuals, forcing the people to adopt the strategy of work from home to complete their pending work. All professions have suffered a major setback due to low demand in the market for their services except the essential commodities service providers. The legal professionals are adapting to the changes after the guidelines from the courts to shift to video conferencing and the Supreme Court only taking up important matters. The Bar Council of India has advised the government to protect the advocate community by issuing subsistence allowance. The lack of work, adaptability to digitisation and low practical experience are major problems being faced by the legal professionals amid the lockdown. 

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This article is written by Ilashri Gaur, from Teerthanker Mahaveer University (CLLS). This article deals with the possibility to work from home with its pros and cons. 

Introduction

In the beginning of 2020, the world is battling against a pandemic. In the midst of coronavirus, entire countries have been locked down for controlling the situation of a pandemic. Even during the situation of complete lockdown, we must keep working and the most effective way to work these days is to ‘work from home’. For many people working from home was a far fetched dream, until we are forced to do so by the pandemic. 

In this article, we will be discussing how firms can be operated during the lockdown and also the advantages and disadvantages of work from home. Jobs that let you work from home, an arrangement known as telecommunicating. Work from home jobs are much more realistic. 

Just imagine your room is your office and your couch is your office chair. Think about this dream? But, it’s no longer a dream. The pandemic has occurred and there is a complete lockdown due to which people are forced to work from home. Working from home affords a lot of flexibility to us but at the same time, it demands a lot from you in return. 

There are pros and cons of everything. Is there a possibility of running a law firm from home; yes, it is possible. Everyone is working remotely whether employees, lawyers, companies, or firms; working remotely is more common nowadays than ever before. 

Pros and Cons of working from home for a lawyer

While working from home for a lawyer sounds really great, we must keep in mind the pros and cons regarding the same. Here are some advantages and cons:

Pros 

1. The benefit of working in your own comfort zone. Working from home can help us develop qualities like self-motivation, focus, self-discipline, and concentration. For example, a lawyer who has to work on a case at home, it is difficult to work in a comfort zone but they develop such qualities to finish their work on time.
2. You can actually become more productive with fewer interruptions and allow more focus to work.
3. The employees who are working from home can lead to an improvement in their health and well-being. People working from home get more time to take care of their health and personal hygiene as compared to those who work in the office while working long hours from an office. 
4. Working from home makes employees happier which reduces the chances of employees quitting their jobs. 
5. Employees will be more loyal towards that firm or company as who wouldn’t want to work from home.
6. You have the flexibility to make appointments and run errands.
7. There is no commute time or expenses.
8. Living in a less stressed life.

Cons

1. People might think that working from home means doing less but in fact, it’s just the opposite. When you don’t go to the office your working time collides with your family time or your own personal time.
2. Working from home means a lot of communication problems which in turn increases the feeling of isolation.
3. It is difficult to maintain team spirit when employees are working from different places.
4. When you don’t have full access to technology, it causes difficulty in work. It means that while working from home, there is full use of technology. Like if any lawyer has to draft something and he/she doesn’t know how to draft a thing by a particular app, so here comes the drawback that a lot of time is wasted to learn that thing and then work on it. 
5. It causes an increase in telephone bills or broadband bills.
6. It creates difficulty in maintaining staff development and upgrading skills.
7. If you are working remotely, it’s possible you are putting sensitive information at risk.
8. It creates difficulty to play different roles at the same time. When employees do work at home, sometimes they cannot manage the time for their family as well as work. 

Need for work from home

Working from home has become a necessity due to the coronavirus outburst. A recent survey of 2,000 working professionals and 1,000 hiring managers, conducted by Linkedin found that 82% of working professionals would like to work from home one day per week or more, with 57% wanting to work from home 3 or more days.

The coronavirus which first emerged in the Chinese city of Wuhan, has become one of the biggest threats to the economy and the financial market. Social distancing has become the need of the hour. This virus has caused so many deaths all over the world that more than 100 countries have been affected by this pandemic. But, even in this situation, lawyers or employees of law firms do work from home.    

This virus is spreading vigorously all over the world which has made social distancing necessary and all the companies, firms, courts, etc are shut down as people continue to work from home.

India is in a complete lockdown which is affecting the economy and creating problems for daily wage workers. There is a downfall in the share market. Tax collections are dropping. The money which is used by the government as well the other people are only used in the medical healthcare services.

The companies are working remotely and employees are getting paid for their work.  For the lawyers or the employees of law firms who are working from home, it becomes their need to accomplish their task.

How can law firms be operated during quarantine?

It is very much possible to work from home in lockdown days with fewer expenses and with more freedom, feasibility and with the help of virtual connectivity. There are some firms that allow their employees to work from home. Meetings with clients are conducted either at the firm’s office or through video conferencing. However, not every work of a law firm can be done from home. 

A litigating practitioner may still be required to go through heavy paperwork and appear before the court. There are some benefits of running a law firm from home. Remote work is a more popular flex option among both male and female lawyers at every level. Whether you have a big or small firm, every firm should be prepared for pandemics such as the novel coronavirus and other unforeseen circumstances that could require a complete lockdown. How can law firms really work from home in quarantine:

• Care for employees 

Employees are among your most important considerations because every employee is a representative and crisis manager for your organization, whether you want to be or not. As in lockdown days, you should not cut their salary or fire them from the firm.

• Educate your firm members

Some people like to work in an office as compared to home as they are habitual of that, so during lockdown days it becomes difficult for them to work from home, so you must educate them about the importance of staying at home in such a pandemic situation. Most of us are habituated with working in an office, so working from home can be sometimes difficult for most people. 

An employer must educate their employees, the importance of staying at home and the ill effects of stepping out. Working from home doesn’t mean that you are on a vacation, work must be delegated on a regular basis to keep the employee busy and in touch with their jobs.  

• Communication 

Communication is the key to maintaining a healthy relationship with the help of virtual devices or we can say with virtual connectivity. There are various ways to communicate like emails, WhatsApp, Skype, and many more apps. Whatsapp groups help us to connect with more than one client or with other employees.

We can make spreadsheets to keep track of employee’s work progress. Employee time tracking is used by large and small companies, agencies, remote teams, and growing startups, as it provides a quick and easy way to improve the productivity of your firm. Timesheets are a way to log what employees were working on for every hour. This way you can know what everyone is up to.

• Electronic-filing of cases and appeals

Electronic-filing of cases and appeals are done in Supreme Court and High Courts. The Supreme Court of India has provided the facility of e-filing so that it is easy for everyone to file a case, appeal or an application. The electronic court filing is the automated transmission of legal documents from an attorney, party or self-represented litigation to a Court, from a Court to an attorney. E-filing is really helpful for the lawyers in the lockdown days as instead of running to the Courts to submit their case or to file the case they can just file their cases through e-filing by sitting at home only. Swapnil Tripathi vs Supreme Court Of India (2018): this case is regarding the facilities provided for e-filing, video conferencing of cases by the Supreme Court.

• Video conferencing 

Video conferencing is very helpful in lockdown days as when a trial begins the lawyers with their clients are supposed to be present in the court, but, due to quarantine and complete lockdown, the cases are being heard via video conferencing.

It can be used in any legal matter including remand hearing, bail application and even in civil matters like matrimonial disputes, criminal proceedings, etc., the requirement of the court is that the court just requires the oral evidence to be made before it. 

Even the Supreme court said that all work will be formally done via video conferencing. The judges and the lawyer who will appear before them will be in separate rooms. If there is an emergency the Courts remain open but one should take certain care and precautions while going to Court.

• Online arbitration

Online arbitration is really helpful; whenever there is any dispute between the two parties, the arbitrator helps them to solve their dispute. As he is the neutral third party from both sides, fair judgment is passed by him. With the help of technology, arbitration can be done while sitting at home. It is easier than the traditional arbitration, as if we have to choose an arbitrator or for due process or for binding decisions. The entire process is conducted by emails, video conferencing or by web communication.

• Work from home for researchers 

For any employee of a law firm, legal research is very important. Technology makes everything easy for us as we do not need to refer to huge books and printed journals for research. Online research has become the most efficient and effective way and the contents which are available are broad. One can even file an RTI from home using the internet; and due to the internet, the majority of work can be done from home and there is no need for going to the office. Researchers use online resources to investigate cases and find information for the same.

• Work from home for drafters

In a legal firm, the drafter has a work to frame legal documents such as will, contract, agreement, complaints, drafting for insurance, etc related to civil as well as criminal matters. Legal drafting is important as it ensures that the legal document is properly structured because an unstructured document without balance lacks effectiveness. With the help of the internet, we can easily do drafting from home. It is far easier than hand drafting. Even if the person doesn’t know how to draft then they can use the internet to learn that. 

Difficulties caused

The difficulties that occur during working from home are:

You might think that when you work at home there are fewer chances of interruption but that’s not true. I can give an example of mine only when your family member continuously interrupts in between your work.

• The problem regarding internet connectivity, sometimes the internet doesn’t work which creates problems to complete your work.
• Working from home is not effective when it comes to communication between the client and the employee.
• In this lockdown situation when almost everyone is using websites and working online, sometimes websites crash due to excessive internet traffic.
• Due to this lockdown situation, justice is being delayed because court proceedings are not taking place.
• It also creates a lack of discipline as not everyone is self-controlled or disciplined due to which it results in incomplete work.
• This creates a situation of isolation and you will be more isolated than before. Research shows that people who work from home are promoted less often and get small raises.
• Staying at home means devoting your fewer hours for work. If you complete your work within a limited hour then you are free. Stick to a set schedule if you don’t want to keep those working hours from expanding and eating up the whole day.
• It can be tough to be professional while working from home. It creates a situation like the sound of your pets or baby or maybe your dressing style was not appropriate during a video conferencing meeting.
• Sometimes it creates problems in your relationship with your family, friends or your loved ones due to the busy schedule as there is no boundation of time.
• There are problems regarding tax but your taxes look fairly similar whether you are working from home or from the office.

Conclusion 

According to me, working from home should be encouraged because the advantages overcome the disadvantages. If people began to do work from home, it would be really helpful for our pollution-free environment as during working hours, a large number of the population uses vehicles for their office use which creates a lot of noise pollution and air pollution and which further results in the breathing problem and various other diseases. 

And people can also save further expenses related to transportation cost, office expenses, bills on air conditioners, etc. Nowadays, men work like a machine; they do not have time for their family members, but work from home provides time to manage your work time and family time equally.

People may think that working from home is the right thing. If you want to work remotely you should have the following qualities: 

• You must have the quality of time management.
• You must be focused and do not get distracted easily.
• You should be self-disciplined.
• You need to be organized and structured.
• You need to be okay with working alone and spending most of the time alone.
• You need to be able to work on your own without the constant supervision of your employer.

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 Shreya Mehta, a student of Symbiosis Law School, Pune.

Introduction

Whenever an imbalance is caused within the society, punishment is used as a tool to take revenge to bring peace in the society and correct the offender. However, it has been observed that the children when found to be treated as par with other adults, the whole objective of reformation is demolished and make the children in conflict with law more driven to the criminal activities. Thus, a separate juvenile legislation exists in order to punish them for the crimes committed by them in India as well as other countries across the globe.

The infamous case of Nirbhaya Delhi gang rape case which shook the entire country brought in certain amendments to the existing laws pertaining to delinquency. One of the major changes which were brought in the Juvenile Justice (Care and Protection of Children) Act, 2015 is that trial of delinquent above the age of sixteen as an adult in Sessions Court from Children’s Court on commission of a heinous crime. The Juvenile Justice Board which comprises a Metropolitan Magistrate or Judicial Magistrate of First Class and two social workers, after a preliminary assessment which decides whether the juvenile delinquent to transfer the case to Children’s Court or Sessions Court whereby the child is tried as an adult.

The Board assesses the mental and physical capacity of delinquents falling under this category of age who are going to be tried as adults in the criminal justice system. Moreover, the child who is alleged to be in conflict with law may also be released on bail on surety of certain conditions under the supervision of a probation officer or under the car of a fit person. Section 18 of the Act of 2015 lays down that the child in conflict with law may be released on probation on good conduct and the child who is kept under Children’s Home or Special Home can also be released from the institutional home on certain conditions which shall be discussed thoroughly in the present paper.

Transfer of Child under the Act

Punishment governs mankind and it protects the individuals in engaging further into such illegal activities which hamper the social and peace balance in the society. The laws dealing with children’s rights, protection and care, education must not be blurred with the laws pertaining to adults and that is why there lies a separate jurisprudence and legislation when it comes to dealing with the crimes committed by a child below the age of eighteen years. However, with changing times and the incidents to which children are being exposed these days, does not leave them with all innocence but has corrupted their mind at a large extent. This can be illustrated with many examples wherein it can be seen that the juveniles have been involved in commission of heinous crimes like rape of a woman, crimes against the nation, murder and many other serious crimes.

One such incident on a cold evening of 2012 which shook the entire nation wherein a young para- medical student was brutally gang- raped by five people out of which one was of seventeen years. The law in relation to juveniles at that point was Juvenile Justice (Care and Protection of Children) Act of 2000 which protected all the children below eighteen who were in conflict with law to be tried before the Children’s Court with no exception. The earlier law was not able to be proved effective as it was not able to curb the criminal behaviour among the criminals who had attained maturity to understand the nature of the crime and yet were involved in heinous crimes. However, it is worth noting that law being dynamic, needs to be changed with catering needs of society. Thus, a dire need to amend the Juvenile legislation arose where such juvenile delinquents cannot hide behind the blanket of protection as offered by the Act. This inadequacy of law came to be resolved when children in conflict with law who belong to the age group of sixteen to eighteen but have committed a crime which has punishment of seven years or more shall be treated as par as adults in the criminal justice system.

The present Act of 2015, divides the crime into three categories namely petty offences, serious offences and heinous offences with an intention of trying delinquent juveniles above the age of sixteen but below eighteen if found allegedly engaged in commission as adults in the Sessions Court. The judges who bear the sword of justice must not hesitate in awarding the sentence if the offence demands so. The principle behind introduction of such amendments in the Act of 2000 was that the ‘juvenile in conflict with law’ must not be spared solely on the grounds of juvenility and such criminal tendencies as exhibited by the juveniles must be segregated and must not be allowed to hide behind the shield of this benevolent legislation.  

As per Section 15 of the Act along with Section 18(3) of the Act, the Board conducts an assessment which further decides on the question of sending a delinquent to the sessions Court or not. These particular Sections are applicable only to juvenile delinquent who fulfils two conditions, firstly the alleged crime must constitute a ‘heinous crime’ as per definition clause of the Act and secondly the alleged crime must be constituted by a child between sixteen years of age to eighteen years at the time of commission of the offence. The transfer to Sessions Court for the conduct of their illegal acts is necessary when they are able to understand the nature of the act as committed by the delinquent. The assessment by the Board is done only after the FIR is filed against the juvenile. 

In case of production of the child before the Board, the assessment as per the maturity level with regards to understanding the nature of offence has to be completed within the span of three months from the first production of child before the Board. The intention behind the Justice Juvenile Act is to achieve betterment of the juvenile offenders and not provide them a shelter home where they can be exempted for the crime they have engaged themselves into. Such transfer to the Sessions Court has grave implications and consequences with regards to the punishment on the juveniles above sixteen years for having been charged for heinous crimes.

However, there exists a discrimination with these two sections which is also pertinent to notice at this juncture. As per the preliminary enquiry as held by the Board two persons belonging to the age group of sixteen to eighteen years can be tried in two different courts for the same nature of commission of heinous crime, just on the basis of the report as assessed by the Board. This clearly violates the principle of fair trial and thereby Article 21 of the Constitution of India. 

Release of Child under the Act

The objective of having a separate legislation for the juveniles is to reform and rehabilitate these young offenders. The intent of the legislature behind enacting the Special Act is; and not retributive, providing for care, protection, development, rehabilitation and reintegration of children in conflict with law into mainstream society. The Board is also entrusted with the responsibility of releasing the child irrespective of their age and crime committed to be released on probation of good conduct.

As per Section 18(e) and (f) the release on probation of good conduct is to be done under the care of parent, guardian or any other fit person on the execution of a Bond with or without surety as the Board may require for the well- being of the child for any period but such period shall not exceed three years. The approach which shall be prevailing in the criminal justice system is reformation rather than branding an offender as criminal for the rest of his life. The approach which the present Act follows is no more different where primary importance is given to protection, reformation and rehabilitation of the child is given. Periodic annual evaluation of the child needs to be undertaken by the probation officer or District Child Protection Unit or a social worker on the well- being of the child.

Even when the child in conflict with law but not done with serving of his punishment, attains the age of twenty one years, he can either be released or be directed to complete the remainder of punishment in the jail; but this is done in accordance with the Children’s Court wherein the probation officer or District Child Protection Unit or a social worker is to evaluate the progress of the delinquent. While evaluating the progress certain parameters are considered like the reformation of the juvenile delinquent. Each State Government shall also maintain a list of monitoring authorities and monitoring procedures as may be prescribed. Thus, it is imperative that these social workers must visit observation homes, special homes and other institutions where the juveniles are kept. The goal is to achieve reformation and rehabilitation of the young offenders after serving their punishment and mingling them with the society. They work as reformers and healers for the betterment and colourful future of the child. 

When the Board considers the release of the child either absolutely or on such conditions as it may think fit to impose, permitting the child to live with parents or guardian or under the supervision of any authorised person named in the order, willing to receive and take charge, educate and train the child, for some useful trade or calling or to look after the child for rehabilitation and on failure of fulfilment of such conditions, the authorities can put back the young offender back in the institution. If the child is released on temporary basis, then such release shall be inclusion of his serving time in the institution as an offender, and failing to fulfil the conditions shall place the juvenile back in the shelter home or other institutions. 

Conclusion

In words, of Justice Krishna Iyer, “If every saint has a past, every sinner has a future, and it is the role of law to remind both of this.” The young offenders shall not be protected behind the shield of the Act which proves to be quite in favour of them irrespective of the gravity of the delinquency. The shield of such benevolent Act must be given to the children who are unable to understand the seriousness of the crime committed. Thus, with the new amendments brought in now young offenders having the knowledge and maturity of the heinous crime committed be charged as an adult, such amendment proves of utter importance in the time where due to exposure to things children have lost their innocence and are matured enough to understand the nature of the crime. However, such strict provisions do take away the chance of care, protection and reformation of the young offenders thus the Act is still entrusted with the release of the juvenile delinquents. The restorative justice system shall be the paramount objective of this special legislation. 

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“This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies (VIPS). This is an exhaustive article that describes the various kinds of things that are keeping lawyers busy during the lockdown.”

Introduction

The pandemic, COVID-19 has brought a drastic change in the trajectory of human lives within a few weeks. Probably for the first time in history, a lockdown due to a pandemic has forced all the businesses to shift from offline to online. One thing which is clear is that the lockdown can take away the routine of going to the office for work but it can never be an excuse for bringing the work to a still. During this tough phase of pandemic COVID-19, lawyers are still managing to keep themselves busy with the work. This article provides a gist about the things that are keeping lawyers busy during the lockdown. It is just dealing with the legal profession.

Kinds of legal work which are keeping the lawyers busy

Work from Home

The country is under a lockdown which means that all the in-house offices, law firms, Legal NGOs, etc. are closed. However, all the lawyers are working from home to prevent the disruption of services. The kind of work is the same as done in the offices. Lawyers are making agreements, researching, preparing files, drafting legal documents. The working method has changed to a certain extent because now the senior leaders have to provide a detailed structured kind of work to the juniors. 

It is easier to keep a check on the work while working in an office but now to receive the desired work, double-checking, conference calls, etc. are playing a crucial role. An economic downturn is definitely expected. The lawyers are trying to provide a buffer system to the companies to prevent them from crashing down, this includes advising on various ways to reduce costs like – by layoffs, reducing the work hours and thus the income, etc.

Moreover, firms like Shardul Amarchand Mangaldas, L&L Partners, Cyril Amarchand Mangaldas, etc. have recently provided the bonus early to the employees despite the disruption caused due to COVID-19. As a concept of Management, to keep employees motivated by providing monetary benefits always helps the employees to work better. From giant law firms to boutique firms everybody is working from home.

Managing different Contracts and Agreements

It is an obvious fact that due to COVID-19, performances under various contracts and agreements will be cancelled, disrupted and delayed. Corporate lawyers are experiencing a dramatic surge in work as companies seek ways to prevent the deals they have already made from falling apart. Various companies are also seeking ways to back out of contracts. On the other hand, certain lawyers are working to prevent acquirers from backing out of Mergers & Acquisitions (M&A) deals by revising M&A documents. This has led to a drastic increase in the number of calls and client queries.

A major setback for India is that the Indian Contract Act is silent on the concept of ‘force majeure’ (an unforeseeable event or circumstance that prevents somebody from fulfilling a contract). In various countries like Germany and France, the term ‘force majeure’ is already coded in civil laws. An agreement for an ‘impossible’ act is considered as void under the Indian Contract Act; however, the inclusion of pandemic in it remains a doubt. 

Another remedy can be ‘frustration of contract’ (Section 56 of the Indian Contract Act). It is a situation where it becomes impossible or unlawful to fulfil a contract after its execution. Even if the clause of the frustration of contract is not mentioned in the contract still it can be applied with regard to the Indian Contract Act as the principles of law overrides the contract. Lawyers believe some cases can be resolved whereas in others litigation is inevitable. 

Every case is being handled based on its own merit and facts and whether the language of force majeure clause in the contract includes a pandemic situation. The cases are believed to spread across sectors: International Trade, Real Estate, Plant Joint-venture, Engineering, procurement & construction agreements, and M&A deals.

Once the lockdown due to the pandemic is over and things start to get restored then a huge number of potential lawsuits can be seen coming our way depending on the gravity of the matter as many contracts have already been breached unless they find solutions through mediation or negotiation. A continuous re-negotiation of contracts can be seen.

Addition in policies

Companies are approaching lawyers inquiring about adding ‘coronavirus’ clauses to their employment policies. The given policy to include sick pay leave, quarantine leaves and obligation of employers to protect their employees. Lawyers are figuring out rules about absence and sickness in case of self-isolation by the employee. Lawyers are being asked to frame a remote work policy that allows work from home while continuing operations. 

The employers have various kinds of questions that are being answered by the lawyers. One such question is, for this lockdown, can the employees be asked to use their accrued annual leave? The answer to which is a no, an employee can use accrued annual leave on his will and discretion.

The lawyers are continuously working to tell the clients about various directions being issued by different government departments. For instance, the Ministry of Home Affairs has directed that no employer can deduct the income of an employee or evict workers, landlords cannot ask for rent. After RBI issued the instructions related to a moratorium on EMI, lawyers were flooded with queries from clients including banks, payees, etc.

Approaching clients via Video Conferencing

The pandemic is a curse indeed but it is providing some benefits to different groups of people. For instance, a lawyer from a smaller town is able to approach and build a connection/ relationship with a client based in a Tier 1 city in the same manner as a local lawyer, based in the Tier 1 city itself. 

Virtual meetings on Zoom, Skype, etc. have made it easier, cost-effective and time-saving for lawyers to approach new clients and stay in touch with the existing ones. The void of physical availability in the office is being fulfilled by using technical tools. The tool is being used to answer the queries of the existing and new clients, helping them understand the legal implications on their businesses in the future.

Stock market

The world stocks suffered from their worst fall since the 2008 financial crisis. A continuous decline in the Indian stock market due to the pandemic is visible despite various government measures. Currently, a lawyer who usually handles work on stock market listings, or public offerings(IPOs) is nowadays being asked to provide ways to rescue deals. Recently, in the course of a joint venture of Nippon Steel Corporation and Arcelor Mittal, a $5.15 billion loan deal has been signed with Japanese banks. 

Managing online interns

This time is being wisely used not just by the lawyers but also by the law students. Online internships have become a trend in the last few weeks. Along with handling their own work, the lawyers are providing instructions, research questions, reviewing the work of the interns as well. Various big law firms, in-houses have also converted the offline internships into online internships. 

Lawyers are motivating young lawyers, law students to write articles, blogs, research papers, etc. and are providing them with the opportunity to get their work published at their websites, journals. Unlike LawSikho, LexLife, etc. who already have an experience of handling online interns, many companies including the giant law firms are new to this concept. 

Urgent Matters

Various High Courts and Supreme Court have issued a notification stating that extremely urgent proceedings may be conducted online via video conferencing. For instance, the Registrar General of Calcutta High Court issued a notification describing the procedure to file cases for urgent hearing and filing of the cases, once normalcy is restored. The litigators are working on their petitions as scanned copies have to be sent to the Registry for urgent hearing via email. 

The whole process of e-filing of petitions, documents, replies from lawyers, intimation from the registry about the hearing dates via email, etc. has kept the lawyers busy. Insurance-related disputes are taking a high jump and are expected to go higher as the number of cases is increasing on a daily basis.

For instance, on 29th March Punjab & Haryana High Court heard a matter via video-conferencing relating to an order of the administration of Chandigarh Union Territory dated 27 March 2020 which allowed the opening of shops selling essential commodities. The court upheld the decision of the Chandigarh administration stating it was issued for the larger public interest.

Arbitration Proceedings

Arbitration is proving to be an effective solution and to prevent a backlog of cases in the future. Lawyers are conducting arbitration proceedings from their homes via video conferencing. Both international emergency Arbitration and National emergency Arbitration proceedings are being conducted with the help of technological methods. 

One of India’s renowned arbitration lawyers posted on LinkedIn a few days back about how he and his team managed to get an approval for an emergency International arbitration proceeding via video conferencing under the rules of the Japan Commercial Arbitration Proceeding Association, seated in Tokyo. This is just one example, there are plenty of others.

Preparing Wills

The pandemic has caused terror in the hearts and minds of the people. People are afraid of being infected by the virus and even the risk of losing their lives. Many lawyers were approached by the people regarding the procedure of preparing the will, its implementation, registration, etc. 

The process of making a will includes making an inventory of assets, then deciding who will inherit the assets and choosing a trustworthy executor. Then a will is drafted by a lawyer, followed by the execution of the will and having it attested by two witnesses. If required, it can be registered; however, it is not compulsory to register the document(will) under Section 17 of the Registration Act, 1908. A recent article on the website of Cyril Amarchand Mangaldas also talks about the increased demand for preparation of the wills and other succession matters by the clients.

Human rights 

Various Human Rights NGOs and legal NGOs are continuously working to protect people’s rights from being violated. The recent cases of stigmatization of individuals and a rise in vigilante violence have caused alarming situations for a human rights lawyer. The recent incidents where people were forced to hold the placard stating that I am an enemy of the nation because I will not stay at home, has increased the threat of arbitrarily punishing the people and public shaming them. 

Various cases of discrimination against airline workers and healthcare workers have also come to the notice. Lawyers are working on the matter to defend such people from the offence of assault. Many lawyers are asking the State to arrange for food, shelter and medical facilities for migrant workers.

Webinars, Podcasts and Interactive Seminars

There is nothing better than being able to give back to the world. Many lawyers are using this time to share their knowledge about various topics. LawSikho, Legalfoxes, etc. are conducting webinars by inviting different lawyers for different topics. The purpose behind it is to share their knowledge, expertise, experience, and learnings with young lawyers, law students and the rest of the world. Law firms have ramped up the production of digital media methods for information provisions- podcasts, webinars, and other interactive sessions. In some places, it is being done to actually meet the client demand and at others to compete with fellow firms. 

Polishing their legal skills

Many lawyers are using this time to polish their legal skills, either by doing some diploma courses, certificate courses available online or revising the old concepts, joining various webinars as an attendee, working on technology contracts. 

Writing articles, research papers, books, etc.

Many lawyers are utilising this time to get into the writing business other than just the petitions, contracts or agreements. Almost all the big firms like Cyril Amarchand Mangaldas, JSA, AZB, etc. have created a separate column about the COVID-19 on their official websites where they post regularly different articles, news or other pieces of writings to keep the clients and people updated about the legal situation. Many lawyers are writing blogs for different sources, some are writing their research papers. Earlier also lawyers used to do this but the only thing that has changed is the extent and increase in the number of writers.

Conclusion

Making the most of this time is necessary to keep the future conditions stable. What the future holds is very uncertain at the moment. Whether the lockdown will be extended or not? However, looking at the situations in various affected countries suggest that it is not ending anytime soon. The things mentioned in the article are more or less equally applicable in and outside India especially in countries like the USA, UK, France. A lockdown due to a pandemic can stop you from going to the office but it can never be an excuse to stop working for the company or on yourself.

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

The post What kind of legal work is keeping lawyers busy during the lockdown? appeared first on iPleaders.

This article has been written by Mridul Tripathi who is currently pursuing BBA LLB from Vivekananda Institute of Professional Studies. This is an exhaustive article that deals with challenges faced by the law firms while making the employees work from home and some suggestions to resolve the same. 

Introduction

Who’d have thought that we would have such a start to the year 2020? Starting with the protests that turned violent at the universities to the communal riots and now the ongoing worldwide war against COVID-19 where it seems like the entire human race is advised to self-isolate and practice social distancing, everybody has latched their spirits to the four-letter word ‘hope’. 

India, like multiple other countries, is facing a complete lockdown due to the pandemic and people here, if at all working, are working from home. Where it is blissful and easy for some, others find it utterly difficult to work remotely from their homes. 

While the major Indian law firms have already implemented work from home policy and also assured fully equipped structure to support the same, but for the policy to work well for lawyers, indubitably they need to have stark technology backing that could enable smooth day to day tech related transactions like conference telephone or video calls.

This article is written to exhaustively cover the challenges that the law firms are facing in making their employees work from home which will end up either transforming the traditional law firms or prove to be a moratorium.

Challenges faced by law firms

Less physical interaction

The most basic of the hindrances that are caused due to work from home is – very little to no physical interaction. When it comes to a law firm there is generally a multi-faceted chain of command that is to be followed. The associates according to their ranks and experience have to coordinate with the senior associates who in turn coordinate with the partners. All of a sudden this has become too cumbersome due to this shift and it becomes more time taking as an employee might not always be available over the phone due to unavoidable reasons such as no access to the mobile network. Also, a lot of law firms still follow the in-house contact as it keeps the lawyers and the staff connected. 

Many firms still have paper-based file systems and hire clerks for their management. In India, where cases linger on for years, sometimes a client’s files are as old as time itself and their unavailability can prove to be a problem. A break in daily physical interaction between the employees can also weaken the interpersonal bonds between departments and chain of hierarchy as well.

Distraction due to personal works

Grant Walsh (managing partner) of the Culhane Meadows Haughian & Walsh, a global law firm, belongs to the school of thought that sees a silver lining in this shift and says that it has enabled him to be present more in the lives of his family.Where one might be glad at performing his duties more efficiently at home, this type of informal setting has added a risk of setting unprofessionalism into the working environment. An employee might be able to meet the deadline and submit his work but the unquiet environment at home will surely affect the efficiency of the work submitted.Even for an attorney to focus and work effectively on a day to the day conference call, there needs to be an atmosphere of silence that could help him focus on what is being said over the phone. An employee who is accustomed to the deskwork on a daily basis is bound to face logistical issues.

Many employees find it difficult to motivate themselves to start working as they are conditioned to see their homes as a place to rest after long hours of work at the office. Not only the distractions affect the productivity and harm the employer, but they also affect the physical health of the employees.Some might choose to start working on a legal draft right after they get up with a crouched back while being still in bed and some might munch all the way through the long hours of work and not take a proper lunch break. There might not be part-time working spaces at every household in the country. The majority of the homes don’t even have separate rooms for each family member. In such a situation, it is a tough task to focus on work in addition to maintaining and leading a disciplined life. 

Threat to confidentiality

Work from home poses risks to client confidentiality as telephonic conversations can be easily overheard by the family members or anyone passing by. The ministry of corporate affairs has formally told the corporates to implement work from home but the policy lacks provisions to ensure that the client’s confidentiality is not lost. With a profession as that of a lawyer, one of the greatest risks that work from home poses is regarding the confidentiality of the information provided by the client. It is very difficult to track the telework performed by the employee when they start working from home. Indemnification that the staff will provide for working from home due to any of the loss caused by him to the client in absence of supervision and his negligent work should be clearly mentioned, adhered to and decided in advance. Personal networks are prone to phishing attacks especially during the times of COVID-19 because some IT departments fail to provide secured networks which results in the business getting conducted through personal networks thereby resulting in an increase in the number of attacks. The firm needs to ensure that  important files are not sent through insecure networks.   

Difficulty in providing internet servers

As the entire country sits home, the internet service providers witnessed a huge surge in the traffic over the internet. The surge is so huge that the only possible solution could only be to divert the network services to priority areas and sectors by shutting down the internet at other places.Providing safe servers and prepping up the IT department to cope up with this shift seems like a Herculean task. One of the major problems with personal servers is to ascertain their reliability. With a surge, this great and no adequate time to come up with a robust safe structure, establishing it and smoothly kickstarting it has proven to be a big challenge.Even after it kickstarts, is the IT department competent enough to quickly resolve equipment-related issues? In a country like India, there are areas where there are still no wifi servers available. 

There are complaints of the server drop on a daily basis. Virtual meetings and conferences on poor strengths of the servers can be a nightmare as the parties struggle and waste their time in getting their voices across each other. If at all any data related phishing incident occurs, the firm needs to be equipped with a department to tackle such issues which is difficult to build at such a short span of time.

Cybercrimes

Cybercriminals are always on the lookout to hack into servers and unlawfully gain an advantage by gaining information. Working from home makes it very difficult to maintain the attorney-client privilege as the work becomes susceptible to high-risk phishing cyber attacks.There have been reports of a new cyber virus recently that has phished data from many US law firms which goes by the name of the ‘maze ransomware’. The hacker group, Maze, sends an email containing the virus to a lawyer and a single click on the link enables it to phish info on important clients. The Hackers then upload a piece of the document on a public site and demand ransom in return for not uploading the rest of the document and putting down the name of the company from the site.With most of the work now being conducted online, the attorney-client privilege seems at great risk if the computers aren’t installed with highly upgraded security software.  

Other Necessary Materials not accessible

Good research becomes a tough task when a person doesn’t get access to relevant material. In order to make a research work comprehensive and exhaustive, employees depend upon legal periodicals and other materials that are available at the workplace in hard copy, that are too expensive to be bought for personal use. 

Working at home affects the quality of the work when the necessary matter becomes inaccessible. There is already a lot of hue and cry in the market to understand the legal ramifications of the myriad problems that have taken birth due to the lockdown, like what will happen to the ongoing contractual undertakings or where will the concept of ‘force majeure’ apply, or if it will be applied at all or not.The more number of problems make it all the more necessary for good research and the tools not being accessible thus turns out to be a bigger problem.

Unaccounted periods of work

One of the guidelines requires the employer to maintain an accurate and updated record of hours worked at home daily within the span of working hours to keep a watch and motivate the employees, this again turns out to be a tough task as verification of hours actually worked is difficult to be ascertained when one is working from home.

Even if the associate has been given a deadline-based work, there is a risk of him exhausting himself as the burden of the work might prove to be too much to handle along with what is going on at his place. This might result in less or no resting hours and the employee somehow coping up to complete the work in time.

Difficulty in maintaining competency 

With no physical supervision, employees working on the client matters can mess up the situation when it comes to direct dealing with the clients. To ensure that this does not happen and the client is satisfied, the firms should rely on e-learning as a mode of training the employees and holding virtual meetings as well as conferences to ask for continuous periodical updates on the client matter at hand. 

The International Bar Associations has recently held webinars where they have dealt with various issues at hand and have come up with ways through which they can bring about a change starting with adding a window in the site that is only devoted to COVID-19. 

Possible steps that could be taken to counter these challenges

• Make sure that the IT structure of the law firm is robust enough to support enough remote working. 
• Ensure clear and periodical communication through webinars virtual meetings, make sure that the message gets delivered through any possible mode. 
• Framing work from home agreements where it is expressly mentioned as an imperative for the employee to make him available during the working hours, failing which the employees would be liable to be subjected to appropriate action.
• Provide secured laptops, secured servers, authorizations and make sure that the employees are updating their systems to the latest security patch.
• Make sure that the provisions included in the agreements are exhaustive to ensure the safety of clients’ confidential documents by penalising the negligent conduct on behalf of the employee.
• Ensure that the work from home employees feel connected to the company by regular and consistent communication and advice as to how they can improve their work, workspace so that they see possible growth.
• Ensure that the employees are using enough measures to log in their daily hours of work and not overburdening them with tasks just because they are working from home.
• A firm should beef up the staff or create a department that is supposed to deal with the crisis and help the employees contact the person that would help them with even the minuscule of problems related to that of the internet or other logistical needs. 
• If the firm is into litigation, then make sure to get dates from the courts of the matters that will not be heard during the lockdown period and proactively take up the matters to the court that are deemed to urgently taken like that of interim reliefs.
• A law firm should keep a positive outlook towards this shift in the workspace. They need to ensure that their attorneys don’t start feeling insecure about their jobs and that this doesn’t affect their efficiency as well.

Conclusion

It can be said indubitably that in a short span of time, things have taken a sharp curve. It is also due to the unpredictability of the situation in which we have found ourselves today has left most of the sectors of the economy unprepared.

Many of which were solely dependent on human interaction and physical work are rendered cold. This long term COVID-19 crisis will definitely prove to be a phase of transformation for the traditional law firms and the key to debugging the ongoing problems is to positively transform rather than shooting for adapting to the changes.

The post What are the challenges law firms are facing while the employees are working from home appeared first on iPleaders.

This article has been written by Abhay Thakur, a student of Kirit P Mehta School of Law.

Introduction 

There had been a major loophole in the law to protect women’s lives for cases of daily domestic violence, which was limited to the private sphere. Domestic Violence Act, 2005 resulted as a tool to eliminate this lacuna and the horror of domestic abuse. Domestic Violence Act, 2005 is India’s first major effort to recognize domestic violence as a criminal offence. In addition to providing remedies, the act has created various openings and prospects for the abuse and misuse of the law. The Act certainly provides for the safety of women in a relationship from any domestic abuse. In addition to legal remedies, it expands its protections to live in-relationships and also allows for claimant’s emergency relief. This was achieved by establishing the office of the Protection Officer and acknowledging the role of the service providers. 

The government has been tasked with constructive duties to provide legal aid, medical services and shelter houses in the expectation that women will be in distress due to violence perpetrated on her. The Legislation is a statement of State’s determination that violence against women will not be accepted. And all the credit goes to the architect of the act Indira Jaising who included several significant regulations to make sure that the state provides the necessary support and services (counseling, shelter, legal assistance, service providers) and protection officers to help individuals obtain their fundamental right to a life free from violence. 

Background

The source of the Act is provided for in Article 15(2) of the Indian Constitution, which clearly states that “State can make special provisions for women and children” for the realization of the right to equality. Women’s rights activists have been taking a stand since the eighties to bring in progressive and a meaningful legislation as an answer to domestic violence. 

The Lawyers’ Collective devised the “Domestic Violence against Women (Protection) Bill” in 2001 which took into account many prevalent types of domestic abuse within the family and suggested a procedure for women to petition in the court for a security order to stop further abuse and to make sure that they need not leave their home. Over the years, comprehensive discussion among members of various NGOs such as the Lawyers’ Collective, the National Commission for Women and the Ministries of Home Affairs, Social Justice and Empowerment, Elementary Education, Justice and Legal Affairs, Health and Family Welfare, the NHRC and the Legislative Department contributed to the drafting of the bill. On 26 October 2006, the Indian Government brought into force the Protection of Women from Domestic Violence Act, 2005, which aimed to resolve the legal vacuum. Parliament passed the Act in August 2005 and the President approved it on 13 September 2005.

Different aspects of the Act 

Recognizing that domestic violence hurts women on a range of issues, it needed an organized multi-facet strategy that can provide long-term and short-term effective solutions and remedies for victims. Therefore, an essential feature of this law is the way it envisions functionality, connectivity and activity of nodal agencies at the district, state and national level (women and children (overall implementation), home dept. (police), social welfare/defense department (accountable for hiring and training of protective officers, registration of service providers etc and health (related to counseling and the provision of healthcare facilities) and of course raising the awareness about the preparation, supervision and provision of specialized services by courts, judiciary and NGOs. 

For the very first instance, it explicitly describes domestic violence not only in terms of physical violence and brutality, but also in terms of a broad description of violence including emotional, sexual and economic misconduct. It mandates for the state to establish the basic infrastructure system that ensures the presence of key facilities (counseling, shelter, legal assistance) and the appointment, registration and training of key persons like protection officers, counselors and service providers to perform their duties and functions as laid down in this Act. 

It identifies and calls for an instant and rapid multi-agency approach to a victim who has contacted one department, also advises the police to communicate with other agencies such as legal assistance, shelter, police etc., and offers temporary and ex parte measures so that the victim can get immediate safety if needed. It introduces the notion of residence measures based solely on the fact that for fear of being vulnerable, many women remained in abusive ties. It expands the implementation of domestic violence law to live-in relationships and all women living in a joint household in a domestic relationship, not just spouses, unlike previous legislation dealing with family relationships that were confined to married women. 

Role of Protection Officers and Service Providers

The PWDVA permits complaints of domestic abuse to be brought by the aggrieved victims themselves, protection officers or service providers. The aim of the act was to provide adequate protection to women who suffer from domestic violence of any kind and it would be nullified if the act was not adequately and efficiently enforced due to inadequate protection officers and protection officers lacking the resources and climate needed to fulfill their role under the act. Acknowledging that an individual needs guidance with legal proceedings and other means of help, the PWDVA encourages Protection Officers to be appointed and acknowledges the role of Service Providers in providing medical, housing, legal, therapy and other support services. The Protection Officer is the person responsible for assisting women in making use of such services, as well as assisting them in securing the correct order under the Act.

Duties and functions of Protection Officers

Protection officer shall help the Magistrate in the execution of his duties under this Act by reporting to the Magistrate a domestic violence incident in the form and manner specified, upon receipt of an allegation of domestic violence and transmit copies thereof to the police officer in charge of the police station within the limits of the local jurisdiction of which domestic violence is the responsibility. An application should be in the form and manner provided to the Magistrate, if the aggrieved party so desires, seeking relief for the issuance of an order of defense. He must ensure that legal assistance is given to the grieved individual under the 1987 Legal Services Authority Act, and make available the specified form in which a complaint is to be made available free of charge. 

He must keep a list of all service providers offering legal help or therapy, shelter homes and medical services in a particular area under the Magistrate’s jurisdiction. He must make a secure shelter home accessible if the grieved person so needs and forward a copy of his report to the police station and the Magistrate having authority in the region where the shelter is located. He will immediately assess the grieved woman if she has suffered physical injury and forward a copy of the medical report to the police station and the Judge with authority in the area where the domestic violence is claimed to have occurred. In accordance with the procedure prescribed by the Code of Criminal Procedure, 1973, he must ensure that the order for monetary relief under section 20 is complied with and executed. The Security Officer shall be under the Magistrate’s authority and supervision and shall perform the duties levied on him by the Magistrate and the Government by, or under, this Act.

Suggestions

A minimum requirement for each state is to conduct simple district wise research to ensure that women in the most remote areas can access a protective officer and that protection officers are not so crowded that women are not required to wait months until they can receive the assistance. This must be done as soon as possible and appropriate protection officers must be appointed with minimum tenure security of three years to perform their duties effectively district wise in each state and their workload must be checked every few months and the data on the number of cases each protection officer submits in each district should be in the public domain. Delays may occur simply because the security officers did not provide the requisite paperwork. Another problem of course is to ensure that the survivor is heard by the security officers with the requisite admin support and private room. 

There are cases of protection officers who are unable to do their job because they do not have the help of the secretariat and tools including computers to word-process. Survivors are asked to have their report written up for security officers to file, which simply means charging privately that many women are unable to afford. Another choice for filing PWDVA cases in many states is to do so through a private lawyer, or through licensed service providers. Many women are unable to pay advocates legal fees and are uncertain which service providers to choose from.  

Unclear obligation and inadequate official assets, Security Officer has the duty to render domestic incident reports (DIR) in specified form and to appeal to the Magistrate according to the Domestic Violence Act. Service providers do have the right to record the DIR, if the person concerned so wishes. In reality, the duties of each position still remain ambiguous after so many years of implementation. In the consultation on the Domestic Violence Act and Reproductive Rights (29-30 November 2008), advocates across India voiced their concern about the un-specialized officers of the security. Numerous advocates pointed to the lack of training of police officers and magistrates on the provisions of the Act and its intent, as well as the lack of awareness training on the topic of domestic abuse, an old evil phenomenon in Indian culture, but newly recognized. 

This lack of preparation has resulted in the re-victimization of women in the justice system, either by police failing to respond to requests for support, by returning women home to their abusers by portraying their victimization as mere domestic disputes, or by magistrates allowing countless cases to proceed, by prolonging the court process and requiring victims to return to court to face their traumatic period. There are primarily two legal options for women who have experienced domestic abuse, one is filing for divorce via Family Court, and the other is filing an application to the Magistrate under DV Act that may go via Criminal Legal System. Often the dual system makes the legal process much more complicated and boring for them. Even, every approach’s social impression puts some stress on them. 

Conclusion

India’s entrenched and pervasive sexism against women, rooted in the patriarchal social system, makes it impossible that any strictly legal remedy would reduce rates of violence against women because violence against women is widely enforced by Indian cultural norms. Second, many fail to identify domestic violence as an unacceptable form of women’s power. Indian culture, though refusing to acknowledge the true cause of domestic abuse, expects and tolerates a certain degree of violence against women. Though Western literature regards domestic violence as a means of exercising power over the woman, in India this view does not prevail. Instead, the cause of domestic abuse is sometimes cited as “maladjustment”. 

The Act will not be successful in reducing overall rates of violence until Indian society’s patriarchal mentality is broken, Indian women are encouraged to agree that violence is intolerable, and police, security officers, service providers, and magistrate enforcement training, sensitization, and cooperation is available. In addition to enforcing the conditions set out in the Act, additional measures must be taken by NGOs and the Government to ensure that the Act is successful in protecting women. Such measures include the completion of gender sensitization training for all security officers, police, lawyers, judges and all other parties interested in enforcing the Act; the provision of advertising and legal education; the increase in the number of lawyers eligible to offer legal services to victims of domestic violence; the introduction of shelters; empowerment of women; monitoring and amending the Act as necessary; and interpretation of the Act in compliance with obligations under international treaty. While the Act is a great achievement for Indian women, NGOs and government must track the implementation of the act carefully. They should work together to eradicate the patriarchal mentality that threatens to make the Act ineffective. 

The post Power and Duties of Protection Officers under Protection of Women Against Domestic Violence Act appeared first on iPleaders.

The article is written by P.Hariharan, from Central law college, Salem, Tamil Nadu.

Introduction

In recent trends both in civil and criminal trial, forensic science acts as an aid and lead to many successful police investigations and decisions taken by judiciary. 

When there is any ambiguity in a case, the opinion of a forensic expert gives a pathway for trial and police investigation to proceed. 

Hence, the aid of forensic acts as a legal evidence in judiciary which determines one’s fate on acquittal or conviction in criminal cases and also determines the ownership rights on property and thereof in civil cases on the basis of documentary evidence produced. Thus, there are many techniques that are utilized by forensic for the determination of evidence in criminal cases and one among them is ‘Optography’. Earlier this method was adopted in forensic in many murder trial. The uniqueness of this method is the retina of the deceased victim is seized immediately and retrieves the ‘Last Seen Image’ by the deceased victim at the moment of the death. Though contemporarily Optography is absolutely neglected due to certain flaws and drawbacks, this strategy proved to be very effective earlier as it retrieves the image of the accused that is imprinted in victim’s retina at the moment of the victim’s death/ murder caused by the accused. Thus, this aided judiciary to bring a conclusion to many criminal cases. Therefore, ‘Optography’ which earlier took forensic to its zenith, is now a forgotten phase of forensic.

Optography

The concept of retrieving the last seen image in the retina at the moment of death was first put forth by a Jesuit Friar named ‘Christopher Schiener’ in 17th century because he claimed that he saw a faint image imprinted upon the retina of the Dead Frog, perhaps it did not made any far-reaching effect.

Later in 1840, photography was discovered, where the people regarded the way a camera worked was similar in many respects to the way the human eye worked i.e. human eye could capture image and be recorded in retina just as photography.

On the inspiration of Franz Christian Boll’s discovery of Rhodopsin (a pigment within the Rods of retina which are sensitive to light and enables vision, where it fixes a Photographic Negative in retina even after Death), a German Physiologist named ‘Wilhem Kuhne’ performed numerous experiments on Optography, later it was proved as a scientific approach.

Kuhne experimented on numerous animals to refine the process of fixing the image on the retina, where he successfully obtained Optogram from an Albino Rabbit by decapitating it. Thus, on the application of Optography technique on the rabbit he obtained a distinct image of the barred windows (Fig.1).

Fig.1: Albino Rabbit’s last seen image

Of course, his real goal was to test this process on a human being and he also attempted to obtain the ‘Human Optogram’ from the executed convict on November 16, 1880. As soon as he obtained the retina of the convict, he applied the Optography technique and he successfully obtained a distinct image of the blade of the Gullitone and it was regarded as the first obtained Human Optogram (Fig.2). Yet, this fact was disputed by many scientist claiming that it appears like a steps which leads to the platform of the Gullitone and not exactly the Gullitone. However, the experiments proved to be very popular and was pursued throughout the 19th and 20th centuries.

Fig2: Kühne’s drawing of the optogram he saw in the eye of an executed man in 1880. 

Optograhy: As a Legal Evidence in Judiciary

Earlier Optography was regarded as a scientific approach, but now it is criticised due to its flaws. Further, its technique is not now recognized as a scientific approach. During the golden period of Optography which existed earlier, this technique was significantly used by judiciary in trial and also by police in investigating the case. Thus, this aided them to identify the accused at the earliest. 

Earlier, Optography was regarded as a ‘Legal Evidence’ by the judiciary. Where an instance in an American case Eborn vs. Zimpleman, 47 Tex. 503 (1877) it was held that:

“Every object seen with the natural eye is only seen because photographed in Retina. In life the impression is transitory; it is only when death is at hand that it remains permanently fixed on the retina. Thus, we are secure in asserting that no witness ever swore to a thing seen by him, without swearing from a Photograph. What we call sight is but the impression made on the mind through the Retina of the eye, which is Nature’s Camera. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death…………We submit that the Eye of the dead man would furnish the best evidence that the accused was there when the deed was committed.“

Moreover, this forensic technique was also used as a legal evidence in murder trial held in Germany, where a merchant ‘Fritz Angerstein’ was charged with killing eight members of his family. So, the Jury directed the Prof. Doehne, professor at the University of Cologne, to retrieve the Optographic image from the deceased eye, and he successfully obtained it. In that Optographic image, it yielded Angerstein’s face and an Axe he used to kill. Thus, the Optographic image was regarded as a legal evidence in that case for which he was tried and executed on the basis of that Optographic image.

Further, a famous murder trial case held in England, where Constable P.C. Gutteridge was shot dead and his eyes were also shot down by the accused, so that there were no possibilities to retrieve the Optographic image and thus it was difficult to find the accused. Hence, this depicts that earlier some parts of the world recognised Optography as a Forensic Science and also as a ‘Legal Evidence’ in Judiciary.

In addition to that, Optography was instrumental to many police investigations and sometime this method was adopted unofficially to crack the mystery behind the criminal cases. Earlier, it is said that police done investigation only on the basis of Optographic image retrieved from the deceased eye and thus this decides the fate of the cases. Moreover, it is said that this Optography technique was unofficially utilized in famous case named “Jack the Ripper” (which was held in England) and the Serial killer was found out. The same technique was also applied in catching the murderer “Dr. Crippen”. Thus, earlier this was regarded as one of the best method in forensic. 

The very first downfall in Optography occurred in an American murder trial. In this case, a young woman named Theresa Hollander was murdered by his boyfriend Anthony Petras. Since her eyes were wide open in utter horror there was a strong hope that through the process of retrieving the Optograhic Image from the deceased eye, Petras would be convicted. Perhaps, it led to utter failure because the image retrieved were faded and blurred. So, the results proved inconclusive and thus acquitted the accused.

Flaws and Criticisms on Optography

In the passage of time, the popularity of Optography as a potential forensic tool faded. Further, W.C. Ayers, an American Physician, in his Article named “New York Medical Journal” and Dr.Alexandridis, professor at University of Heidelberg, in his work in “The Pupil and Electro Diagnostic Opthalmology” had pointed out certain flaws which are the reason for rejecting the theory of Optography:

1. The victim’s eyes had to be removed immediately as soon as the death occurred. However, it is impracticable since there are certain murder cases which comes to knowledge only after a couple of days.     
2. Though the eyes were removed immediately and credible procedures were employed to retrieve the optographic image, the images retrieved were too hazy, faded or blurred, which made it is impossible to have clarity in the findings. 

Thus, these are the major flaws and defects that made the concept of Optography to fade away in the Sands of Time. 

Conclusion

Thus, earlier Optography which was regarded as a forensic method is now rejected and disregarded due to its flaws and drawbacks, and therefore it has become ‘The Forgotten phase of Forensic Science’.

Sometimes something that looks like a breakthrough technology may turn out to be a disappointment later. Optography’s decline shows why we should not take every shiny new technology without a pinch of salt – until we have conclusive evidence about the efficacy of the same.

Note: To know about the procedure to retrieve an optographic image, visit:

1. Last sights of the Dead: The weird Science of Optography, Brent Swancer https://mysteriousuniverse.org/2017/01/last-sights-of-the-dead-the-weird-science-of-optography/.
2. Optograhy, Wikipedia https://en.m.wikipedia.org/wiki/optography.

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This article has been written by Anshika Chadha, a student of National Law University, Jodhpur.

There exist four main categories of torts which lead to an invasion of one’s privacy. These are misappropriation, intrusion, the publication of one’s private facts, and false light. In this article, the focus will be on the tort of false light, which essentially protects the public when offensive and false facts about them are stated to others. This tort has been applied in multiple states in the U.S., however, it is yet to be used in Indian law. 

What is the tort of false light?

False light claims arise when certain material having false implications is published about a person, with the knowledge or in reckless disregard of whether the information was false or not. Ordinarily, such material is highly offensive to a reasonable person and presents the person in question in a false light. The role of this tort is to protect people from such false and unpleasant insinuations about them being spread in public. It deals with damages to persons due to personal humiliation, pain and suffering and public embarrassment. In the U.S., false light is codified in Sections 652A and 652E of the Restatement (Second) of Torts.

Claims for false light are usually brought against the media when they publish captions or headlines next to photographs of individuals, implying untrue things about them. The usage of this tort has been diverse in different states of the U.S. The threshold for bringing a satisfactory false light claim also differs in all states that recognize this tort in the first place. 

The following elements are generally present for a false light claim to arise:

1.  Falsehood

For bringing a claim, it is extremely important that the implication of the material published about the plaintiff was false. It is obvious that true statements would not be actionable. The kind of falsehood required here is a bit different. False statement of a fact is not the prerequisite here. Instead, what is needed is that the implication the material accompanies is false. 

2. Offensiveness

The published material should be suggestive of something highly offensive to a reasonable person. It is not enough that the plaintiff was personally offended by the material. Rather, any reasonable person should be offended by it. This was highlighted in the case of Fellow v. National Enquirer, Inc., wherein the defendant had published a picture of the plaintiff with the actress Angie Dickinson, captioned as “Angie Dickinson- Dating a producer.” The accompanying article insinuated that the two were in a relationship, which was not only false but highly offensive since the plaintiff had been married for a number of years.

3. Identification of Plaintiff 

The published material should sufficiently identify the plaintiff. The extent to which the plaintiff must be identified also differs under different jurisdictions in the U.S. For instance, California courts have held that it is not necessary that the plaintiffs were identified by name in the material. An instance of this is the case of Gill v. Curtis Publishing Co., where a picture of the plaintiffs was published in a journal, featured with an article criticising ‘love at first sight’ along with the cation, “publicized as glamorous, desirable, ‘love at first sight’ is a bad risk.” The plaintiffs brought a claim against the journal and succeeded, even though they were not named in the article. This was because the implication created about them in the minds of the readers, i.e. the love between them is ‘wrong’, was clearly false.

4. Public Disclosure of Statement

The plaintiff must show that the defendant publicly released the falsehood about him. There is some ambiguity related to the number of people that must receive the information for it to be considered a public disclosure. It is reasonable to state that publishing material on the internet will be disclosing it to the public. Accordingly, privately stating something to one person is not public disclosure. 

5. Fault

Finally, the last element to be satisfied generally is that of fault. The plaintiff must satisfy the court that he was placed in a false light publicly due to the defendant’s fault. There are differences between claims brought by public figures and those who are not public figures. In Solano v. Playgirl, it was held that public figures must show actual malice on part of the defendant in false light claims. 

False Light v. Defamation

To understand the concept of false light it is necessary to differentiate it from the offence of defamation. Both appear to be quite similar at first glance. However, one key difference between the two is that a statement need not be defamatory in nature to be actionable under the category of false light. It simply needs to be false. Moreover, defamation focuses on the damage done to the plaintiff’s reputation in society. Contrary to this, false light is more concerned with the impact of the material on his emotional well-being and feelings.

Claims for false light and defamation arise from the same facts, and hence usually overlap. Then, why should a person bring a claim for false light when they could file a suit for defamation? This is because false light offers some advantages over defamation:

1. Keeping in mind that the tort of false light has not been properly developed or codified in the U.S., there are far lesser restrictions on recovery in such cases. False light claims are not even recognized in some of the states, further boosting the first advantage. This means that if the plaintiff wins his false light case, he is liable to recover much more in the form of damages.
2. A false light claim is usually easier to bring than a defamation claim. In defamation cases, the defendant is at a more advantageous position compared to the plaintiff. Defences like truth, the statement being a matter of opinion or no statement actually being made about the plaintiff are widely and successfully used by defendants. False light is beneficial to plaintiffs because the concerned material is judged in the context it was published in.
3. False light claims are governed by a different statute of limitation. This implies that a claim for defamation which has expired may still be actionable via false light.
4. Truth acts as a complete defence in defamation claims. This is not the case in false light claims. The defendant’s statement about the plaintiff may be true and still have no use as a defence if the implication it brings is false.
5. Defamation is aimed at protecting the reputation of the plaintiff. But a statement that is embarrassing to the plaintiff may not necessarily harm his reputation. In such cases, where defamation will be of no use, plaintiffs can use false light, since the latter is concerned with the personal humiliation suffered by the plaintiff.

If a person brings a claim for defamation, the following elements have to be proved in a court of law:

• The defendant made a statement about the plaintiff to another person, i.e. statement was published.
• The statement published caused damage to the plaintiff’s reputation.
• The statement published was false.
• The statement is not protected by any privileges (for instance, a witness testifying in court and making a false and injurious statement is immune from any claim of defamation).

On the contrary, when making a claim of false light, on the other hand, the following things will have to be established:

• The defendant disclosed information about the plaintiff to the public.
• The material published by the defendant presented the plaintiff in a false light.
• The material was highly offensive and humiliating to a reasonable person.
• The defendant acted with reckless disregard to the offensiveness or falsity of the disclosed material.

False Light: Usage in India

There has been practically no application of the concept of false light in the context of privacy torts in India. Literally speaking, the term ‘false light’ is used only once in the Indian Penal Code, 1860, in Section 281, which is related to displaying any false signal so as to mislead the navigator of a vessel.

Besides this, the closest usage of this term in the context of invasion of one’s privacy can be found in cases such as Dr. D. Dhaya Devadas v. Indian Bureau of Mines, K.S Bedi v. Income Tax Department, and Anil Chintaman Khare v. A.K Garg. In all these cases, false light is used to merely allude to the spread of certain falsehood. A few extracts from these cases give a better understanding of this usage:

Chief Information Commissioner A. N. Tiwari, in his judgement in Dr. D. Dhaya Devadas v. Indian Bureau of Mines, states:

“Appellant believes that the plea of current investigation was only a subterfuge to deny to the appellant information that would show the officers of the public authority in a false light.”

In Anil Chintaman Khare v. A.K Garg, it was stated:

“The VCA would not like that its Income Tax Returns and assessment be allowed to get into the hands of the people such as the appellant, who could distort and misrepresent the same to show VCA in a false light.”

In addition to this, there is hardly any existing academic writing that discusses this doctrine in India. Till now, the term “false light” has not been used to refer to the doctrine applied in the U.S., rather it is simply used as an indicator of some falsehood being circulated. Hence, it is fair to say that this doctrine is not in use in India. The question that now arises is whether this doctrine should be used in India or not? 

Incorporating ‘False Light’ in India

In Indian society, the doctrine of false light will prove to be extremely useful. It is a nation where various orthodox customs and taboos are still prevalent and hold influence over the general public. People rely on the media and are quick to pin blame on people and ridicule them based on information received through such sources. Almost every day, there is some news becoming ‘viral’. At times like these, when instant messaging services allow large groups of people to disclose any material they wish to others in a second, the task to protect one’s privacy becomes exceptionally difficult. The scope of defamation appears too narrow to deal with such issues, and one novel solution to protect unsuspecting victims from false impressions being created about them is the doctrine of false light.

Before applying this doctrine in Indian cases, a few necessary changes will be needed for it to be a success. Since false light claims arise because victims wish to separate themselves from the false impression they are associated with, all such cases should happen ex curia. In this way, the truth of the matter is made public knowledge and consequently, the victim’s name is cleared in the society. 

The punishment inflicted by a successful false light claim should be appropriately decided so as to prevent such incidents from taking place again. This will also ensure that the media is careful with what they publish and realizes their duty towards the public. Since false light claims are easier to bring in comparison to defamation, the victims will be less hesitant to move the court.

Over the past few years, the internet has gained a wider reach compared to the traditional media sources. Everything happens with just one click. Accordingly, false light would further have to be expanded to include cases relating to the viral news and images that are spread via the internet. 

One hurdle to be tackled is in cases of instant messaging services. False messages mechanically forwarded over such applications will have to be curtailed, but taking the legal route of false light will prove cumbersome. At the same time, it will be difficult for the victim to find the starting point of a misleading message about them that is being circulated in such messaging groups in order to file a suit against them. In addition to this, prior to the introduction of such a new concept in Indian law, the actors involved, especially practicing lawyers would have to be made aware about this. If every lawyer cannot differentiate between false light and defamation on his own, then he would not be able to guide his client either. Thus, the use of this doctrine will not be devoid of any issues.

Conclusion

In an orthodox and traditional society like India, where a false claim or viral picture can haunt a person for the rest of his life, the doctrine of false light will prove to be instrumental to circumvent public humiliation, reiterate the truth and keep a check on the media to prevent exaggerated articles.

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