This article is written by Team LawSikho.

How about spending an hour with the best legal minds in the country, every single day?

With them sharing their unique learnings and experiences with you and even replying to your questions?

On top of it all, what if it was absolutely free of cost—without paying a single rupee out of your pocket? 

That’s what we are offering you.

Daily webinars with India’s best legal experts and academicians.

Stretching over an hour, these webinars focus on multiple aspects of law, whether theoretical or practical in nature, and every question related to it is discussed in-depth with the subject matter expert. 

We are basically picking the best legal brains in the country on the subjects they specialize in. How good is that?

And we are running THREE such webinars per day on average.

Choose the one you would like to watch.

Click Above

Here are a few of the topics that we have covered so far.

How to write a law book and publish it.

How to start and sustain your independent legal practice.

Which universities are best to do LLM from.

How companies are tackling with COVID-19 and lockdown.

How to get legal work under IBC without giving the insolvency examination.

How lawyers should plan their career ahead in light of COVID-19. 

A career in White Colour Crimes: everything you want to know.

All these questions and many more have been covered in our webinars. 

You keep sending the questions, and we will keep running the webinars forever.

You can check the complete list of past webinars here.

Following are the legal experts who have been on our shows:

• Bharat Chugh, ex-Judge, Partner at L&L partners
• Vivek Narayan Sharma, ex-Joint Secretary, SC AOR Association
• Nitin Potdar, M&A Partner at J. Sagar Associates
• Dr Pavan Duggal, Advocate at SC, Entrepreneur
• Divya Mehta, Legal Recruiter
• Sameer Jain, Managing Partner PSL
• Tariq Khan, Principal at Advani & Co.
• Zarir Bharucha, Partner ZBA 
• Niloufer Lam, Partner ZBA
• Nilesh Tribhuvann, Managing Partner, White & Brief
• Ajar Rab, Partner, Rab & Rab Associates LLP, International Arbitration
• Nitish Sharma, Partner at Gaggar & partners, Solicitors & Advocates
• Anirudh Krishnan, Founder PArtner at AK Law Chambers
• Subhash Bhutoria, Partner, Krida Legal
• Nipun Bhatia, VP, League Legal Consulting
• Anirudh Rastogi, Founder at Ikigai Law
• Deepak Kumar Thakur, Partner, Luthra & Luthra 
• Mohit Rai, Jharkhand Judiciary, Rank 45 (2019)
• Prateek Dadheech, Civil Judge cum metropolitan magistrate 30 ain Jaipur metro sessions court
• Sunil Agarwal, Senior Standing Counsel Tax, Govt of India
• Parveen Mahtani, Head Legal and Compliance at Tata Realty & Tata Housing

And many more are in the pipeline, waiting to be interviewed.

100% free for every lawyer, legal professional and law students…

If it were an event hosted and sponsored by some NLU, the same session would have cost you a few thousand rupees. 

But we at LawSikho have decided make all these enlightening sessions accessible at no extra cost at all.

Just install Zoom, log in to the meeting at the specified time and enjoy the session.

Interested? 

Don’t want to miss the next webinar session with an industry expert? 

 Click here to join our Whatsapp group to get instant updates on your phone. 

if you are not able to join the group as it may fill up fast, send a message to this number so we can add you manually: 8397056632.

The post [FREE] Pick the brains of the best legal minds in India appeared first on iPleaders.

This article is written by Suman Chatterjee, Team LawSikho.

It’s that time of year again. The clock is ticking and the judiciary exams are about to be conducted in the coming few months. 

The sparkle in the eyes. The gritting of teeth. The butterflies in the stomachs. Aah! The classic concoction of emotions. To reach the pinnacle of success in our legal career.

To gain immense prestige, unbridled power, and unimaginable glory along with it…

I have yet not met any law student or even practising lawyer who does not want to sit on the big chair, wear the wig and wield the hammer, so to speak. 

However, it’s a thirst left unquenched, a dream unfulfilled for most. 

Why? Here are my commonly observed 10 most common challenges that every Judicial Service aspirant faces.

Today’s article is tagged #NoExcuses because we aim to provide the ultimate answer for all these challenges and excuses and help you make your dream come true (if and only if you truly desire to do so).

Challenge #1. What to study? 

The first biggest hurdle to begin this journey starts with the big fat question- “what all should you study?” The state notification only lists out the subject papers to be covered in the exam and that all the exam takers can simply resort to are the textbooks and bare acts. 

A few books and mock test papers, specifically written for those who aspire to take the exam, do exist for sure, but they are too generic and do not provide any specific exam strategy at all. 

One thing is for sure, you cannot pass the Judicial Service exam just by memorizing a few questions and answers. Rather, you shall be tested on your deep understanding of both substantive and procedural law.

Top-quality study material which covers all the topics in a precise manner is the only remedy to cover the entire syllabus in a timely manner, and if you don’t get proper study materials at hand, the journey is going to be rather tough for you.

Challenge #2. Too much to study

I will admit that even I am guilty of this one. I backed out of the Judicial Service race because I feared the vast syllabus covered in the exam. Even my friends used to say, “God! It requires spending 16-18 hours a day to crack the exam.” Don’t you ever do that! 

First, accept the fact that everything worthwhile takes a lot of effort and time to get. Otherwise, it would not be worth it.

What I didn’t know at the time though was that you can spend a mere 8-10 hours per day and very well be on the path to crack the Judicial Service code. It’s not about how many hours you put in but how much output results from those hours.

There are two types of students commonly found—one who work hard and the other who work smart. But it is only the third type i.e. those who smartly work hard are the ones who make it to the top chair! This is the motto that every judiciary aspirant should remember.

Challenge #3. No proper guidance

I totally agree with this one. Look around yourself and you will find multiple coaching centres for IAS, CLAT, IIT-JEE or CA/CS aspirants. 

But what about Judicial Services? Except a few local ones, only a handful of reputed ones with proven results.

Therein lies another problem. The very few renowned ones established in big metro cities are already flooded with students. The more popular a coaching centre is, the higher the number of students it takes in.

As a result, personal attention and feedback go down the drain.

And this is not only for JS coaching centres. One of my CA friends told me that the average number of students in a single class (session) in one of the premier CA coaching centres in Kolkata would reach as high as four hundred! 

Do you think the tutor provided personal attention to each of the students in the class? No doubt, for the students, many questions were left unasked and unanswered. 

The same with top coaching centres across the country.

The problem lies in that if your mentor does not personally guide YOU to fill up YOUR gaps and enhance YOUR strengths, how would you ever become better?

In light of the above, it can be said that most Judicial Service aspirants are finding it an arduous task to spot a good coaching centre with excellent faculty and great track record.

But even if they do…

***

Want to know how to start your preparation for the Judiciary exam? Check the video below:

***

Challenge #4. Coaching is too expensive

Most of the time, it turns out that the coaching centres are charging over a lakh or two in fees. Oops! Here you are, already spending lakhs of rupees on your LLB degree and then, on top of that, you have to spend another lakh or more to take the Judicial Service exam.

It is definitely a challenge for many. I totally agree.

However, it should be noted that hiring high-quality teaching staff, offering state-of-the-art learning facilities, and developing and updating study material year over year, does cost money, often more than we think. 

In my opinion, this is a necessary evil. The only solution to this is, self introspection and ask yourself if you truly want this or not. If the answer is yes, ask yourself if the coaching centre will even be able to deliver worth to you. If yes, go ahead without second thoughts, my friend.

Come to think of it, high fees are only a problem if you do not get any return out of your investment. Would you feel the same if that little amount really helps you become a judge? 

Of course, not!

Challenge #5. Coaching in a different city

Then again…

For many, paying high tuition fees is not an issue. They have got it covered. But for them, it might be that there are simply no coaching centres where they stay. 

For instance, there are no reputed coaching centres in Kolkata except a few local ones run by college teachers or private tutors. Here in Delhi though, you have got Rahul’s or Pahuja that almost everybody is aware of.

The problem is, not many would find it feasible to leave everything back in their hometown and shift to a different city to pursue their judiciary dreams. Even those who had packed their bags and planned to move are now stuck as the Covid outbreak has only added to the misery.

A biggish obstacle to your dreams certainly.

Challenge #6. Dreaded language and GK papers

I studied in an English medium school—yet another disadvantage for Judicial Service aspirants! Why? Let me tell you about my experience. While I was thinking of attempting the WBJS exam, the biggest challenge I faced was probably to write an essay in the vernacular language paper (that is, Bengali). Why o’ why?

Unfortunately, I was not so well versed in the vernacular language and to be able to write a full-fledged piece in it, I would have had to hit Bengali fiction books and follow Bengali newspapers daily. Something I sincerely dreaded, to be honest.

Moreover, honestly speaking, how many of us get the time to dedicatedly brush up on our general knowledge or keep up with the current affairs around the world daily? Not many. 

For example, I keep up with the legal news regularly but if you ask me about who won the World Billiards Championship last year, you would receive a blank expression. 

(BTW the ones who do, I salute you.)

Challenge #7. No state-wise strategy

Another important challenge that no one rarely talks about is, the strategy needs to go hand in hand with the state-wise exam requirements. Whether it is due to the types of questions posed or the subject papers covered, the exams differ in scope since they are state-level exams and not national level exams. 

Now therein lies another problem. Let’s say, there are no decent coaching centres in your city. Can you go to a different city for coaching instead? Even if you could afford it or travel to another state, that coaching centre would not prepare you for the exam in your state. 

You can either keep searching for a local coaching centre or decide to take the Judicial Service exam in the state you are taking the tuitions from. 

Disclaimer: I am not saying you won’t find any coaching centre in Delhi that prepares you for RJS but the odds are against you. 

Challenge #8. Not enough real-life practice

Taking a test at your coaching centre is nothing compared to sitting inside the big hall and taking the biggest academic test of your life on D-Day. 

Your hands are sweating, you are looking nervously at the person sitting next to you, and watching the wristwatch again and again. 

You knew the answer to this question but it is just not coming to you now. You will flunk this attempt too.

Do you know why this happens? Because you did not attempt enough mock tests. In my opinion, all these competitive exams are more about exam-taking skills and less about your ability. 

The more mock tests you take, the better prepared you will be. 

The tension, the excitement and the rush will be familiar to you. You would have faced D-Day many times before.

Challenge #9. Working full-time!

It’s not that only law students harbour the dreams of becoming a judge one day. Many experienced advocates and legal professionals covet it too. But they feel strapped for one commodity that nobody can buy … Time, the dearest of all. 

And I sympathize with them. Slogging for over 10 hours per day and tackling the ever-burgeoning workload … it’s a miracle that they still harbour and nurture their dream. Hats off to these guys. 

But that does not relieve them from the fact that they still need to put in a minimum amount of effort to pass the Judicial Services exam.

It’s a big, EXTREMELY BIG challenge for anyone, and as a matter of fact, you surely can’t do it alone this time. For the working professionals, you will need proper guidance and help from those who have been there and done that. 

Challenge #10. Can’t handle stress

I have seen many aspirants fail at the exam consistently, lose every pinch of self-confidence, and eventually get confused and lost along the way. They can’t handle the tremendous stress and they end up bursting like a bloated balloon. My heart cries out for them. 

It’s true that the Judicial Service exam is one of the toughest competitive exams in the country, and perhaps, lakhs of students vie for a handful of seats. 

What’s more? If you get a low ranking in the CAT exam, you might get into a low-tier college and still acquire your MBA degree. However, for exams like the IAS or the JS, you either pass or fail the exam. There is no grey area in between.

On top of that, the number of attempts is limited in the case of Judicial Service exams. And within those few attempts, you have to lift up the mighty hammer if you can. 

These are the top challenges almost every judicial aspirant faces.

So, I promised you a solution for the same, right?

Here you go.

Click here to find out about the solution.

I will give you an idea about what it is though.

We recently released our new, exclusive test prep course for judiciary aspirants—we named it ‘Lord of the Courses’.

With top-notch, super high-quality study materials, coupled with highly experienced and competent faculty, this course is one of its kind. I can guarantee you that this course goes one step further than most offline and even online courses out there. 

What makes it truly unique?

Here are a few things that set this course apart.

100% online course. Staying in a different city? No issues. Are you a working professional? No issues. Study at your own pace, at your own convenience.

Personal guidance. None of our students is left ignored or neglected. We pay individual attention to everyone and work personally with you.

State-specific exam strategies. Not only do we teach you strategies but also provide you with essential resources to help with state-specific statutes and questions.

Unique content format. Every study material is presented with notes and colour-coded format to help you learn much faster than usual.

Past-year question papers analysis. Broken up in various charts to figure out the question patterns, the most important topics, and how best to tackle them. 

Essay and judgment writing. Practice essay writing on frequently asked topics within a specified time limit. Scared of judgment writing? Our step-by-step methodology will help you grow your legal writing skills multifold.

Language papers. No more fumbling with grammatical questions, precis or translations anymore. Our language teaching faculty is here for you.

Free access to our litigation courses. Additional access to our litigation courses including criminal litigation, civil litigation, arbitration, IBC, NCLT, etc.

Free access to our contract drafting, cyber law and IPR courses. Tech-smart judges are the need of the hour. Also, you might get freelancing work for a little side income while you pursue this course. 

Mock interview sessions. Many students are rejected in the interview round, after toiling for the preliminary and mains rounds. 

All India Ranking. Get a rough idea where you stand among the other LawSikho judiciary students (potential exam candidates). You will know what your strengths and weaknesses are, and how to get on top of the charts.

And much more.

If you are looking for an all-around, in-depth legal test prep course that not only prepares you for the judiciary examination but also for other exams like UGC NET, Bank SO, Assistant Prosecutor, etc, this is the one for you.

Introductory Special Discount Offer
*Save Rs 1,00,000 on your purchase

Considering the VALUE you get out of this course, the regular price is fixed at Rs 1,50,000. BUT…

Since this is the first batch of judiciary examination training starting this April 2020, we aimed to draw the top talent from all over the country. For that, we decided to lower the price to Rs 50,000 only.

At a massive 67 percent discount!

For anyone who signs up now, they get to save Rs 1,00,000 on their purchase.

However, as you can understand, we could not extend this discounted offer to anyone and everyone. 

So, we limited the number of seats to mere 50 (of which 10 were already pre-booked even before the course was launched).

And the rest of the seats are getting filled up faster every day.

Do note that the enrolment closes in the next 3 days or as soon as there are no more seats left, whichever is earlier.

What are you still waiting for?

Don’t you want to crack the judiciary code and make your ultimate wish come true? Don’t you want to make your parents proud of your biggest achievement in life? Don’t you want the prestige, the power and the glory attached to it?

If yes…

Click here to enrol now before the offer expires forever.

Looking forward to seeing you inside the classroom.

If you have any query, give us a call at 011 4804 5203 or reply to this email stating “I want to become a judge”. We will get back to you urgently.

Cheers to you becoming a judge.

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.

NOTE: if the above group is already full, join here. If you face any problem in joining the WhatsApp group, kindly reply back with your name and WhatsApp mobile number and we would add you to the relevant group manually.

P. P. S. All our premium courses are covered under an unwavering 30 days full money-back guarantee. If you feel like it is not working out for you, maybe you are not getting enough value out of it or it is not meeting your expectations, just get in touch with us. We will refund every rupee you paid for the course.

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

The post Cracking the judiciary code against all odds!! #NoExcuses appeared first on iPleaders.

The article is written by Prasoon Shekhar, from ICFAI Law School, Dehradun.

“The child is the beauty of God present in the world, that greatest gift to a family.”

-Mother Teresa

Introduction

It is a natural thing that one who has taken birth has to die, but an act leading to the death of an unborn or newborn child is not cogitable. One of the very probable reasons for the said offence is the desire of having a male child as it is considered that a male child will take care of his parents in their older days. It is a harsh reality that we live in a country where goddesses are prayed but girl children are killed in the womb or in their very starting days of birth.  

Also, India is ranked 102 in hunger index as of 2019 Global Hunger Index Results. It makes clear that there is a large number of people who do not get adequate amounts of food despite the continuous efforts made by the government. This is a major reason why most poor parents are forced to kill their children in the womb or during the very initial days of birth.

Offences Against unborn newborn Child

The offences related to the homicide of unborn or newborn child are dealt in Sections 312 to 318 of Chapter XVI of the Indian Penal Code, 1860 i.e, causing miscarriage, act done with intention of causing death, causing death, exposure or leaving of a child with the intention to abandon & concealing birth by secretly disposing of a dead body.

Causing Miscarriage

The term ‘miscarriage’ is not defined under this code. In legal terms, miscarriage refers to the deliberate termination of woman’s pregnancy (expulsion of human fetus) before entire development of the child (generally between 12th to 28th weeks of pregnancy). It can also be referred as spontaneous abortion.

These offences are defined under Section 312 to 314 of the Code. It deals with causing of miscarriage on the basis of its gravity. The punishment under section 312 differs for ‘woman with child’ i.e, being pregnant[i] and ‘quick with child’ i.e, advanced stage of pregnancy when movement of fetus can be felt[ii] but the punishment under section 313 has no effect whether the lady was ‘with child’ or ‘quick with child’. Punishment also differs with the element consent of the women. Miscarriage under section 312 is bailable, non-cognizable and non-compoundable but Miscarriage under section 313 is non-bailable, cognizable and non-compoundable.

The essentials to constitute the offence of miscarriage under Section 312 and 313 are as follows:

1. Voluntarily causing a woman to miscarry;
2. Causing miscarriage without women’s consent; or
3. Miscarriage is not done in good faith to save life of women.

Punishment for Miscarriage

In the case of Sharif v State of Orissa[iii], it was held that termination of pregnancy of a minor girl does not attract Section 312 as the same was done in order to save her mother’s life. The accused haven’t instructed the minor to go for termination of pregnancy but the minor went on his own to avoid the shame in society.

Death of women during Miscarriage

It is provided under Section 314 of IPC. Having knowledge of the consequence is not essential for an act to fall under this section. If miscarriage was being done with the consent of women then it can be punished with imprisonment up to three years and fine. But, if miscarriage was done without the consent of women then punishment can extend up to life imprisonment or imprisonment up to three years and fine.

Exception to Miscarriage

• Medical Termination of Pregnancy Act, 1971: The objective of the act was to eliminate the excessive large number of illegal abortions. Section 3 of the Act lays down the grounds under which the pregnancy can be terminated by registered medical practitioners i.e, when life of women is at risk, pregnancy due to rape, threat to mental and physical health of women, risk of abnormal or handicapped child to be born out, failure of precautionary tools used by couples to limit number of children.

It also provides that if the length of pregnancy does not exceed the period of 12 weeks, then termination of pregnancy can be done by a medical practitioner but if the length of pregnancy is in between 12 to 20 weeks then two medical practitioners are required.

In the case of Suchita Srivastava v. Chandigarh Administration[iv], it was held that if the termination of pregnancy was done in accordance to the provisions of MTP Act, 1971, the same would not constitute an offence.

• Good Faith: If miscarriage is done in good faith (as under Section 52 of IPC), it will not constitute an offence.

In the Case of Dr. Jacob v. State of Kerela[v], the charges against the doctor was upheld by the Supreme Court and held that a person can be held liable for abortion if the same was not done in good faith for saving the women’s life.

In the case of State of Maharashtra v. Flora Santuno Kutino[vi], the accused had an illicit relationship with the lady who later became pregnant. Accused, to hide the proof of their relationship tried her miscarriage to be done in which she died. The accused was held liable as the miscarriage was not done in good faith.

Injury to Unborn Child

Sections 315 and 316 are related to the birth of an unborn child. Section 315 is aimed at foeticide i.e, a condition in which the fetus in the womb takes a human form (normally in six months). The difference with infanticide is that infanticide is committed after delivery but foeticide can be committed before delivery. The offence under section 315 is non-bailable, non-cognizable and non-compoundable 

Essentials of Section 315 are as follows:

1. Act must be done before the death of the child; 
2. Intention to prevent child from being born alive or to die after death;
3. Child not be born alive or the death of a child after its birth.

Exception: Act done in good faith to save the life of mother won’t come under this section.

In the case of Alka Verma v. State[vii], the accused were charged with Section 315 of IPC despite the child having taken birth. It was held by the Delhi High Court, that when the child has taken birth, the accused cannot be charged u/s 315.

In the case of Hirdanbai and Others v. State of Maharashtra[viii], the accused was acquitted of the charge under 315 of IPC and the court held that there must be sufficient proof that the accused has done such an act to prevent the child from being born alive or to die after death and the act done must result in child not being born alive or death of child after his birth. Then only a person can be acquitted under Section 315 of IPC.

Section 316 is a much graver section. It is done with intention or knowledge to commit an offence of culpable homicide (against mother), to cause the death of quick unborn child and is punishable for a term of imprisonment upto 10 years and fine, but if the act causes the death of the mother, then the person will be punishable for culpable homicide. It is non-bailable, cognizable and non-compoundable. 

It can be read along with Explanation 3 of Section 299 of IPC. It states that liability under culpable homicide does not arise if a child dies inside the mother’s womb, but it arises when any party of the child’s body has come out. 

In the case of Jabbar v. State[viii], it was held that an act comes under the purview of Section 316 only when the act was done with intention or knowledge to commit an act of culpable homicide against the mother. Only on the basis that acts were directed towards the mother and death of a quick unborn child has taken place, a person cannot be held liable under the present section. It was further observed that if the act would have been done with knowledge or intention to commit the act of culpable homicide against the mother, and even the mother would have survived but the child in the womb died, then it would constitute an offence under the present provision.  

Abandonment and Exposure of an Infant

Section 317 of the IPC deals with the exposure or leaving of a child with intention of deserting. The offence under the present section 317 of IPC is bailable, cognizable and non-compoundable. The terms ‘expose and leave’ means not giving the child proper protection i.e, food, shelter etc., leaving the child in danger.

The Section requires the following essentials:

1. The person in question must be father, mother or person taking care of child;
2. The child must be under 12 years of age; and
3. The child must be intentionally be exposed or left in a place for deserting. 

This provision gives equal importance to schools, orphanages as they are dutybound to take care of the child. The punishment under this provision can extend upto imprisonment of seven years or fine or both.

The explanation of the section provides that if the act of leaving the child or exposing him with an intention to desert the child, if the death of the child occurs, the person accused shall be held liable for murder or culpable homicide as the case may be.

Illustration: ‘A’ is the illegitimate child of a lady. She deserted the child as to circumstances that he does not obtain food for 5 days. The child dies the next day due to natural death. Here, the lady can’t be made liable under murder. 

Concealment of Birth of a Child

Section 318 of the IPC, deals with the persons accused of concealing the birth of the child by secretly disposing or burying the dead body of the child. It is punishable with imprisonment up to two years or fine or both.

The essential elements of the section are as follows:

1. Intention to conceal the child’s birth;
2. Secretly burying or disposing the dead body of the child; and
3. The child may die before, during or after its birth.

In the case of State v. Kehari Singh[ix], the accused was acquitted of the charge as the court held that when the birth of the child had taken place, it was known to most of the villagers and disposing of the dead body of the child is not with the intention of concealing his birth and hence the accused can’t be made liable under Section 318 of IPC. 

In the case of Radha v. State of Rajasthan[x], it was held that if the child is alive at the time of secretly disposing, no offence under this section will be made out.

Conclusion

The MTP Act, 1971 was enacted long ago and with changing time changes should be introduced. It provides that termination of pregnancy should be done within 20 weeks but in many cases the abnormalities in foetus come in light after 20 weeks and it also happens sometimes in cases of rape. Also, there is ambiguity when unmarried couples despite using the precautionary tools, the lady turns to be pregnant. Also, the government has enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, so that gender of child is not known before birth. This has definitely led to decrease of killing of girl child inside womb but still, the stereotypical people illegally come to know about the sex of child in womb through corrupt doctors. The government is also taking various other actions. Lastly, I would like to say that all these things are of no use until the mentality of people in society changes.

References 

1. Queen-Empress v. Ademma ((1886) ILR 9 Mad 369).
2. In Re: Malayara Seethu vs Unknown (AIR 1955 Kant 27).
3. 1996 Cr LJ 2826 (Ori).
4. (2009) 14 SCR 989.
5. 1994 SCC (3) 430.
6. 2007 (109) Bom L R 652.
7. 129 (2006) DLT 642.
8. AIR 1966 Allahabad 590.
9. AIR 1952 MP 124.
10. 1973 (6) WLN 709.

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

The post Offences Relating to Newborn or Unborn Child appeared first on iPleaders.

This article is written by Zohra Mistry.

Introduction

I was shocked in the month of November when instead of “No Shave November” selfies, the media was full of how Karvy as a Stock Broker duped investors and raised a whopping Rs 1200 crore to divert into its real estate. Before dwelling into what was Karvy Stock Broking Scandal and its impact on the Investment Industry, what happened after and before that, let’s first understand the basics like What is Stock Broking? Who is a Stockbroker? What is a Demat Account? What is the lifecycle of Trading and What is Loan against Securities?

• In India, a retail investor cannot directly buy or sell shares on the Stock Exchange, they need an intermediary known as Depository participants/Stockbroker who assists to execute the transactions and have them electronically accounted for. 
• The electronic accounting happens in Demat Account unlike in ancient times where Physical Share Certificate was issued but in 1996 these physical certificates were replaced to electronically record the transactions.
• The Demat Account is like bank account and is linked to the Depositories who acts as the custodian of shares and in India, we only have two depositories: NSDL(National Securities Depository Limited; deals with “National Stock Exchange” (NSE)) and CDSL (Central Depository Securities Limited; deals with Bombay Stock Exchange (BSE)).
• In India, Stockbrokers are governed by the Securities and Exchange Board of India Act (SEBI), 1992 and brokers must register with the Securities and Exchange Board of India.
• Stock Broking is a service which enables retail or for that matter institutional investors to buy and sell securities with the help of an intermediator called Stockbroker who in exchange for his service charges a fee called Commission.
• For Stockbroker to work on behalf of investors after every market transaction he needs to sign Delivery in Slip to register the stocks in Demat. To make this process hassle-free in today’s world when you open a Demat Account, a Power of Attorney is signed which enables brokers to act independently.
• All the workings of the stock market and for that matter stockbrokers are managed and regulated by the guidelines provided by the Securities and Exchange Board of India.

Role of Depositories

• Depositories are the institutions that hold the securities which include shares, debentures and mutual funds electronically in the dematerialize form called Demat Account.
• Depositories are the safe keeper of the securities and record everyday transactions.
• Depositories provide security and liquidity, and offer a fund transfer system.

Role of Depository Participants

• A depository interacts with customers with the help of agents called as Depository Participants i.e. if the investors want to buy or sell shares, debentures and mutual funds it should be done through them.
• In order to be a Depository Participant, the institution should obtain certification as per the  SEBI regulations laid down in 2018.

What is a Demat Account?

• A Demat account is like a Bank’s Saving Account in function. A bank account is used to store money from paper currency to electronic money in the same way in a Demat Account the physical shares are converted into electronic form which is known as Dematerialization.
• In order to open a Demat Account, similar to how we approach a Bank for opening the account, we approach Depository Participants; they take proof of identity to open this account and then they become intermediaries for transacting in stock markets.

What is the Power of Attorney?

• A Power of Attorney is a legal document that gives authority to act for another person in matters relating to both financial and non-financial matters. Thus, in case of Demat account, it is used to carry out trading functions.
• As per SEBI, Power of Attorney is not mandatory but if it’s not available, investors need to keep signing the Delivery Instruction Slip similar to a Cheque for withdrawing shares. This is just to ease the process.
• Power of Attorney for Demat should be a specific one that doesn’t give Depository Participants the right to make investment decisions and is used only to withdraw shares when sold or pledge security in order to cover the margins shortfall for trading derivatives with a clause to take a consent before doing so. By limiting the rights, you save yourself from falling prey to any kind of future mishaps.

Lifecycle of Trading

Loan against Security

We in our daily life need money for our various needs and these needs sometimes cannot be fulfilled with the income that we earn. We then seek assistance through a Financial Institution called as Banks. These Banks lend us money for a charge known as Interest against a security known as Collateral. The Collateral can be in the form of any tangible asset like property or intangible asset like Securities in Demat Account.

This could best be explained with our day to day hearing of a loan known as House Loan. When you take the house loan, the house that you purchased is mortgaged with the bank until you fulfill your obligation to pay back. Thus, the house is collateral and in loan against security, the house is replaced with securities in dematerialized form to create a margin for loan.

Thus, Loan against security in simple terms refers to pledging the security with the bank as collateral for the money that will be lent by the bank. The money will be lent only on the shares available in the Demat Account.

Karvy Stock Broking Scam

Now, as we have understood the basics, we will understand in detail what Karvy as Stockbroker did that caused a scam of around Rs. 1200 Crore.

Karvy is one of the biggest stockbroking firms and has millions of clients who it serves. These clients instruct Karvy on a day – to – day basis to execute their market transactions. Karvy needs a Depository Participants account to execute these transactions after which these are transferred to Client’s Account. To enable Stockbroker here Karvy to seamlessly carry out these transactions, Client had signed a Power of Attorney authorizing Karvy to do the process. Karvy took undue advantage of this situation opening another Demat Account in its own name and transferred all the securities in its fake account using the Power of Attorney and delaying the payout to clients citing the reason of technical glitches.

Once the securities were transferred to its fake account under the name of Karvy, Karvy approached various financial institutions to raise money and in turn utilised these amounts for its real estate business named Karvy Realty.

Using this unethical method Karvy raised around 1200 crores, when some clients complained about the delayed payouts to SEBI, a forensic audit was carried out by SEBI wherein the issue of fund diversion by Karvy came in light where it acted in bad faith. Karvy’s license was cancelled and it was ordered that all the shares pledged with Financial Institutions be returned to the Clients of Karvy. Till now 90% of the shares are transferred and the Demat with Karvy was to be closed and securities to be transferred to the new account.

Why did the Karvy Scam happen?

Karvy Scam is an eye-opener to the Investors that not only money in banks is at risk, but money invested is also risked. It’s not what SEBI does to protect you as a Regulator, it’s also about what you do as investors to manage the biggest cycle, a world in its own self. It’s a vicious cycle, if gone from hand will be like the virus that can engulf the whole world into economic depression. A depression that can bring back the time when we evolved from apes to humans.

Scams doesn’t happen because the fraudster is smart but because of the ignorance of people getting duped. It only happens when you forget to be vigilant or place trust blindly. Let us understand in four pointers why the Kary Scam happened. It happened as:

• Karvy acted in bad faith by mis-utilising the Power of Attorney granted to it by Clients for ease of transactions.
• Clients granted full access in Power of Attorney without linking their Demat Account to the Depositories to know their actual shares in the account.
• Financial institutions never questioned the authority or authenticity on the ownership of the shares.
• Karvy was successful in delaying payouts as investors never doubt or made themselves aware of the deadlines for settlement or market functioning.

What did SEBI do after the scam?

Once this scam in light, SEBI issued 11 points guidelines which are as follows:

1. Pay-out to be received in the Shareholder’s Demat account within 1 day or according to the market settlement cycle.
2. As per SEBI, execution of Power of Attorney(POA) is not mandatory but if a shareholder is executing it, he should carefully specify all the rights that the stockbroker can exercise and timeframe for which POA is valid.
3. Instead of executing POA, shareholders can register for online applications viz Speed-e and Easiest which is provided by Depositories for online delivery of securities.
4. Shareholders need to ensure that he/she receives the Contract Notes within 24 hours of trades and Statement of Account at least once in a quarter from the Stockbroker.
5. Shareholders should be cognizant of the fact that the securities provided by them towards margin are not permitted to be pledged by your Stockbroker for raising funds.
6. If a Shareholder has opted for a running account, he should ensure that the stockbroker settles his/her account regularly and not later than 90 days (or 30 days if you have opted for 30 days settlement).
7. Do not keep funds and securities idle with the Stockbroker. Always transfer the excess to your savings account.
8. Shareholders should regularly login in to their account to verify balances and Demat statements received from depositories for correctness. 
9. Always check messages received from exchanges on a monthly basis regarding funds and securities balances reported by the trading member and immediately raise a concern if you notice a discrepancy.
10. Always keep your contact details namely Mobile number/ Email ID updated with the stockbroker and take up the matter with Stockbroker/ Exchange if you are not receiving the messages from Exchange/ Depositories regularly.
11. If you observe any discrepancies in your account or settlements, immediately take up the same with your stockbroker and if the Stockbroker does not respond, with the Exchange/Depositories.

What you should do as an Investor?

• Be proactive in checking whether the Demat account is handled carefully or not.
• Be vigilant.
• Don’t just sign any documents without understanding the reason for it.
• If you have multiple Demat accounts or single, do make sure you are registered with the Depositories.
• Make sure you keep yourself well informed about the Market and its settlement.
• Don’t leave excess amount in Demat, always have it transferred to the Saving Bank.
• Always shout when in Doubt.

Just like you call your Phone Banker or Bank Branches to inquire about your savings account balances, update your passbook regularly and you keep yourself awake to see no fraudulent transactions happen. Treat your Demat Account as well in the same manner.

So, to conclude I would say don’t be a learned fool who just does things as they ought to be done. Do verify the documents that you sign, ask if any amends or legal changes can be made in the documents that are specified mandatory. Ask a field expert for help when you are in doubt. I don’t say all Depository Participants are frauds, but no fraudster will say I am a Fraud. Being cautious, taking preventive measures to avoid losses, knowing your rights and obligation doesn’t make you over smart. It’s always wise to be smart. 

• Do link your Demat Accounts to Depositories.
• Do frequently check your Demat Account.
• Do raise it in case of Discrepancy.
• Don’t panic and be worthy Investors. 

Let me share with you my  3 D’s principle that I follow when it comes to managing the trading account, it goes as follow:

• Divert excess amount to savings accounts.
• Divulge to Regulators for delayed payouts.
• Drop in to your Demat Account to see the balance.

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This article is written by Vasu Manchanda and Kshitij Dahiya, students of Faculty of Law, Delhi University.

“There are three eras of currency: Commodity based, politically based, and now, math-based.”

– Chris Dixon

Introduction

Virtual Currency (“VC”) is basically a type of unregulated digital currency, available only in electronic form. According to a report titled “Virtual Currencies-Key Definitions and Potential AML/CFT Risks” issued by the Financial Action Task Force (“FATF”) in 2014 [1], it is defined as a digital representation of the value that can be traded digitally and functioning as a unit of account, store of value, and/or a medium of exchange, but without having a legal tender status. [2] 

It fulfils the aforementioned functions only by an agreement with the users and is not issued by any jurisdiction. It is stored and transacted over secure and designated software through digital wallets on a computer or mobile phone application. Transactions occur over the internet through dedicated and secure networks. Further, it is considered to be a part of digital currency groups which also includes cryptocurrencies. 

According to the same report issued by FATF, cryptocurrency is defined as a math-based, decentralised convertible VC that is protected by cryptography, by relying on private and public keys, in order to transfer value from one user to another. It is signed cryptographically each time it is transferred. [3] The defining elements of cryptocurrency are as follows:

• Transaction anonymously takes place between public keys that are uniquely assigned to every participant. Thus, the identities of the participants remain cryptic;
• Participants have access to an unalterable record of transactions carried on the network;
• There is no centralised control and;
• The value is solely dependent on market sentiments. There is no underlying asset.

How does Cryptocurrency work?

Several cryptocurrency exchanges exist from where the users can buy and sell cryptocurrencies for Dollars, Euros, etc. It is then kept in the digital wallets on a computer or mobile phone. Through the digital wallets, their transaction can be done by the users for buying any commodity available on platforms that accept cryptocurrencies as a medium of exchange. 

The network is further secured by individuals known as ‘Miners’ who verify transactions and are rewarded newly generated cryptocurrencies in return. After being verified, they are recorded in a transparent public ledger that is easily accessible to participants.

An important judgment delivered by the Supreme Court of India (“Supreme Court”) in the case of Internet and Mobile Association of India v. Reserve Bank of India [4], that can shape the future of cryptocurrencies and have a revolutionary impact on the crypto industry in India, is analysed as follows. 

Case overview

The advent of bitcoin in India led to the setting up of various cryptocurrency exchanges which were majorly operating without any laws or regulations prohibiting or regulating their use. However, on April 6, 2018, Reserve Bank of India (“RBI”) issued a circular not prohibiting the use of cryptocurrencies itself but prohibiting banks and financial institutions regulated by RBI from dealing in or providing services for facilitating any artificial legal entity or individual dealing in cryptocurrencies such as bitcoin, libra, etc. 

Thereafter, on March 4, 2020, the Supreme Court quashed the said circular on the ground of proportionality and held it to be a disproportionate regulatory action. The three-judge bench held that the virtual currencies should be subject to regulation instead of blanket prohibition, under the Indian law.

Issues

Three broad and major issues about the regulation or prohibition of cryptocurrencies addressed by the Supreme Court, in this case, are as follows:

• Whether the RBI has the capacity to regulate matters pertaining to (VCs)?
• Whether VCs amounted to money?
• Whether the circular issued was within the purview of the power of RBI?

Contentions

The petitioners (Cryptocurrency exchanges Koinex, CoinDCX, Throughbit, and CoinDelta) raised the following major contentions challenging the RBI’s circular. They contended that:

• The RBI exceeded its power granted under the Banking Regulation Act, 1948, Payment and Settlement Systems Act, 2007, and the Reserve Bank of India Act, 1934, to issue the circular, as VCs were not subject to the above-mentioned acts and regulations.
• The legal character of VCs is not the same as money or other legal tenders as they neither have the same degree of acceptance to function as an acceptable medium of exchange nor can they be utilised to settle a debt. It is rather a good or tradable commodity. Thus, RBI had no role in regulating or prohibiting it.
• Even if it is to be assumed that the RBI had the powers to regulate virtual currencies; still they cannot prohibit banks and other financial institutions from dealing in them altogether.
• What RBI could not do directly, it did indirectly, i.e. “colourable exercise of power”. The indirect effect of the circular was shutting down of VC exchanges; something that RBI had already admitted was beyond the scope of its powers.
• The approach of RBI was not in synchronization with that of other regulators under whose purview, the subject matter rested. Money laundering came under the purview of the Department of Economic Affairs, and evasion of tax comes under the purview of the Central Board of Direct Taxes. None of these regulators asked for a complete ban on VCs initially.
• Other jurisdictions, especially the non-authoritarian ones, had adopted measures to regulate VCs instead of banning them outrightly.
• When proper safeguards such as anti-money laundering practices, Know Your Customer (KYC) measures, etc had already been adopted by the VC exchanges, there was no need to prohibit banks and other financial entities regulated by RBI from dealing in them.
• The fundamental right of the petitioners guaranteed under Article 19(1)(g) of the Constitution to carry on occupation, business or trade is violated.
• RBI exercised its power to issue a circular, guaranteed to it under a statute that cannot be equated with the same judicial acceptance as is given to executive or legislative action.

RBI contended that:

1. It derived its power from the Banking Regulation Act, 1948, Payment and Settlement Systems Act, 2007, and Reserve Bank of India Act, 1934, to issue the circular.
2. It was not a decision made in haste. Rather it was a proportionate response to the perils posed by VCs.
3. VCs were being used in a manner similar to the legal currency of the country in purchasing products available on Amazon.
4. There was a possibility to remit money abroad without the supervision of regulators.
5. It had the inherent duty to protect the payment system of the country from being compromised.
6. The fiscal and economic policies enunciated by RBI had the statutory force of law, and should not be interfered with by the courts.
7. It submitted extensive literature on VCs on which it relied on issuing the circular.

Observations and Decision

The Supreme Court refuted the first contention raised by the petitioners and held that the VCs are competent in performing almost all the functions of real currency and constitute a digital representation of value. They are competent to function as a unit of account, a store of value, and/or a medium of exchange. 

Thus, irrespective of the fact that VCs are not legal tender and do not form a part of the payment system, RBI still has the power to regulate them as they affect the financial system of the country. And, anything that has an impact or poses a threat to the financial system can be regulated or prohibited by RBI.

The Supreme Court observed that RBI through the circular did not impose a blanket ban on all trade in VCs but only directed banks and other legal entities that are regulated by RBI to not provide services to any artificial legal entity or individual dealing in or settling VCs. Thus, it can be inferred that the citizens who had taken up the trade of dealing in VCs were not prohibited from using cryptocurrencies stored in their digital wallets in making payments for purchasing commodities. 

Thus, though the circular had a crippling effect on the trade of VCs it could not be equated with a blanket ban. It was further observed that RBI had not made a decision overnight and had applied its mind after taking financial stability reports, and the Inter Regulatory Working group’s report on Fintech and Digital Banking, 2017 into consideration.

The contention of the petitioners alleging RBI of indulging in “colourable exercise of power” that resulted in collateral damages suffered by VC exchanges was also refuted. It was held that the decision of RBI was motivated by the need to protect the public interest and it had exercised its power over the legal entities it had jurisdiction over.

Furthermore, concerning other regulators, it was observed by the Supreme Court that every regulator, agency or department has a different function to perform. Thus, it was observed that RBI cannot be held wrong for adopting a different approach from other regulators. 

Similarly, with respect to comparative analysis with other jurisdictions, the Supreme Court held that the approach adopted by other jurisdictions, especially more developed ones, only had persuasive efficacy and could not direct what the RBI could or could not do.

However, having answered the first two issues in affirmative, it was whilst addressing the third issue that the test of proportionality was applied by the Supreme Court. Regarding the contention of the petitioners of their right to trade under Article 19(1)(g) of the Constitution, the Supreme Court held that VC exchanges that provide services such as buying, selling and storing of VCs in digital wallets were dearly affected as they would not be able to survive without having to access the banking channels. 

Thus, petitioners’ right to trade guaranteed under Article 19(1)(g) of the Constitution was infringed. However, as it is well-established that any restriction on trade needs to pass the test of reasonableness; similarly, RBI had to pass the test of proportionality to justify its action. The doctrine of proportionality relies on the following factors:

• There are no less invasive measures;
• Measures adopted are connected to the fulfilment of the intended purpose;
• There is a relation between the need for achieving the required objective and restricting the right, and;
• The measure adopted is designated for the intended purpose.

The Supreme Court held that there were less invasive means of achieving the same objective that was not considered by RBI at the time of issuing the circular, and it failed to provide data showing any resemblance of damage suffered by the financial entities regulated by it. Further, as per the proposals made by the European Parliament, and Crypto-Regulation Bill 2018, blanket ban on VCs was not advocated. 

Rather, the functioning of VCs was suggested to be brought within the purview of regulation. Thus, it was held that the circular could not be termed as a proper measure as it was adjudged to have failed the test of proportionality. Hence, it was quashed.

Impact of the judgment on the crypto industry

The Supreme Court’s decision might just be an interim respite to the crypto industry in India rather than a full-fledged relief. As of today, the banks and financial entities cannot deny providing services to VC exchanges. VC exchanges have regulatory approval to access banking and other allied banking services. Hence helping them facilitate the demand for VCs and attract foreign investments. However, it is pertinent to note that nothing has been said by the Supreme Court regarding the regulation of trade in cryptocurrencies. The lack of regulation remains a major constraint to the proliferation of VC ventures in India.

There is a possibility that the government because of the judgment might reconsider its latest draft bill on cryptocurrencies entitled “Banning of Cryptocurrency and Regulation of Official Digital Currency Bill, 2019” which seeks a ban on VCs. If such a law is enacted, it would disseminate the budding crypto industry in India which would also have an adverse impact on the fintech sector. RBI is even capable of issuing a new circular which does not violate the Supreme Court’s decision, on the premise that a new position of harm has been found while dealing with VCs.

However, the judgment would give impetus not only to the VCs rather related to blockchain technology and the entire crypto ecosystem as well. For instance, the Global decentralized cryptocurrency exchange Finance Group has formed a $50 million blockchain technology fund for the Indian market, within days after the judgment was pronounced. [5] On the administration front, ongoing state government initiatives like the Blockchain District by Telangana State Government and the 100 Smart Cities Mission of India will also get a stimulus. [6]

Further, despite the Supreme Court’s decision, an increase in investment by the investors and users is unlikely as the price of bitcoin has fallen drastically from its December 2017 peak and the global cryptocurrency market lost more than $50 billion over fears of recession due to the Coronavirus outbreak, owing to its inherently speculative and volatile nature. [7]

Suggestions and way forward

There needs to be a retrospective analysis by the government on the findings of two of its committees with one (Crypto Regulation bill, 2018) seeking to regulate VCs and the other (Banning of Cryptocurrency and Regulation of Official Digital Currency Bill, 2019) seeking to ban it. The government rather than banning it to curb the mischief of money laundering, KYC process, and other related issues should instead calibrate growth, innovation and risk involved to avoid the creation of underground channels and provide regulatory mechanisms for the same. In this regard, the following suggestions are made:

• The government should place VCs under the exclusive umbrella of RBI to ensure that there is clarity in provisions for the regulation of VCs.
• The government should set up an advisory council consisting of lawmakers, regulators, service providers, national and international crypto operators who would formulate policies and advise on intricate issues pertaining to cryptocurrencies. [8]
• The Income-tax department must issue guidelines on how to tax VCs differently based on the function exercised by the user. It can be held as stock-in-trade being transferred. It can act as consideration on the sale of goods and services and as an investment being transferred in exchange for real currency. For instance, if it is a self-generated capital asset in the form of mining then it would fall under Section 55 of the Income-tax Act, 1961, which is completely silent on the issue since the cost of acquisition of a VC cannot be determined yet. [9]
• The government should set up a government-backed VC exchange. This would give rise to a Public-Private Partnership model striking the chord of compliance and privity of transactions between users. This would also ensure the necessary KYC process compliance by the regulator to its required standard and give the users the concurrence of privacy of their transactions. This move could also give confidence to domestic and foreign investors who are still wary of the government’s decision. 
• The Deposit Insurance and Credit Guarantee Corporation (DICGC) is a wholly-owned subsidiary of RBI which insures bank deposits up to Rs. Five Lakhs in case a bank fails, similarly, mandatory provision can be imposed upon VCs, once it manifests into a widely accepted form of investment and exchange. A materiality threshold for the same should be configured by the government, to ensure stability. The materiality threshold must be commensurate to the value of the market and updated from time to time.
• Like China is planning to launch a sovereign cryptocurrency- the Digital Currency Electronic Payment (DCEP) as an alternative to the US dollar as a reserve currency. [10] Probably India could have its sovereign cryptocurrency too. This would solve many problems such as control over the supply of cash by the Central bank, tracking the currency, and would also avoid the creation of a parallel economy.
• VCs should be included in RBI’s sandbox to facilitate ideas for Research and Development.
• Capital gain and loss on liquidation of VCs need to be assessed by the authorities.
• Either adequate amendment needs to be made to the Indian Contract Act, 1872, Sale of Goods Act, 1930, the Indian Evidence Act, 1872, Securities Contracts (Regulation) Act, 1956, Payment and Settlement Systems Act, 2007 and all others that regulate contractual obligations of the parties, or new act on VCs should be legislated.
• The jurisdiction in case of cross country disputes needs to be ascertained because presently all the VCs are being developed by companies like Facebook, JP Morgan, etc that are global in nature.
• Provisions need to be made to assess the impact of the valuation of VCs globally on the domestic crypto industry.
• The legislature should delve into the possibility of VCs being transacted as shares.
• There should be mandatory registration of miners with RBI and periodical declaration of VC obtained through mining to Income Tax authority or the authority concerned.
• The Personal Data Protection Bill, 2019 needs to take into its ambit the data of the users stored by VC exchanges or on the public ledger. Laws to be legislated for data processors and social media intermediaries should also apply to VC exchanges registered in India.
• The applicability of the existing inheritance laws in India on the VC stock held by individuals also needs to be taken into consideration by the policymakers. 

Conclusion

The Supreme Court’s decision has only provided a temporary respite to the nascent cryptocurrency industry in India. It has not deliberated on the issue of its legality as it was never in question. It was clear in the judgement that since the legislature had not yet passed the draft bill and no actual damage had been suffered by the financial entities regulated by RBI, thus, the ban was unreasonable. However, there is no denying the fact that the risks identified by RBI of anonymity, money laundering, the complexity of the KYC process, and the need for protection of users and investors persist. 

Thus, a sound regulatory framework incorporating all stakeholders, and striking the equilibrium of protection of user’s interests as well as market sentiments must be introduced. The government instead of eliminating the future of the fintech industry must capitalise on the opportunity while ensuring the safety of the financial and payments system of the country.

References

[1] Writ Petition (Civil) No. 528 of 2018

[2] Financial Action Task Force, “Virtual Currencies- Key Definitions and Potential AML/CFT Risks” (June 2014)

[3] Ibid

[4] Writ Petition (Civil) No. 528 of 2018

[5] Aditi Shrivastava, “Cryptocurrency exchange Binance sets up $50 million Indian blockchain fund”, ET Rise, March 17, 2020, available at https://economictimes.indiatimes.com/small-biz/startups/newsbuzz/cryptocurrency-exchange-binance-sets-up-50-million-indian-blockchain-fund/articleshow/74665232.cms (last visited on April 1, 2020)

[6] inc42, available at https://inc42.com/buzz/telangana-aims-to-be-indias-blockchain-capital-with-new-incubators/ (last visited on April 1, 2020)

[7] Supra note 4

[8] Yahoo! Finance, available at https://finance.yahoo.com/news/cryptocurrencies-got-life-india-policymakers-052147742.html (last visited on April 1, 2020)

[9] Clear tax, available at https://cleartax.in/s/bitcoins-taxes-india (last visited on April 1, 2020)

[10] Barclay Bam, “Inside China’s Mission to create an all-powerful cryptocurrency”, Wired, February 4, 2020, available at https://www.wired.co.uk/article/china-digital-currency-crypto (last visited on April 1, 2020)

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This article is written by Maaz Akhtar Hashmi, a student, Faculty of Law, AMU. This is an exhaustive article that aims to explain different aspects of social media & copyright.

Introduction

In copyright, Fair Use is a limitation on the rights by a copyright owner to keep others from reproducing or using their work. This limitation on the tight hold of those rights is a way for the law to acknowledge that sometimes it’s not fair to allow the owner of the work to restrict its use. Let others play with it too. Often that use pertains to the public good.

Generally, exceptions and limitations to copyright are subject to a three-step test set out in the Berne Convention for the Protection of Literary and Artistic Works. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if:

1. it covers special cases,
2. it does not conflict with the normal exploitation of the work,
3. it does not unreasonably prejudice the legitimate interests of the author.

Standard exceptions and limitations vary from country to country in their number and scope. 

Provisions under the Copyright Act, 1957

In India, the provisions of Section 52 of the Copyright Act, 1957  provide for certain acts, which would not constitute an infringement of copyright namely fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purposes of:

• private use, including research;
• criticism or  review;
• reporting current events in any print media or;
• by broadcast or in a cinematographic film or by means of photographs;
• reproduction for the purpose of a judicial proceeding or of a report of a judicial proceeding;
• reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;
• the reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;
• the reading or recitation in public of any reasonable extract from a published literary or dramatic work;
• the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions;
• the making of sound, if made by or with the license or consent of the owner of the right in the work.

Doctrine of Fair-Use

The term “fair dealing” has not been defined in the Act. It is a legal doctrine, which allows a person to make limited use of copyrighted work without the permission of the owner. 

Whether a person’s use of copyright material is “fair” would depend entirely upon the facts and circumstances of a given case. The line between “fair dealing” and infringement is a thin one. In India, there are no set guidelines that define the number of words or passages that can be used without permission from the author. Only the Court applying basic common sense can determine this. It may, however, be said that the extracted portion should be such that it does not affect the substantial interest of the Author. Fair dealing is a significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the economic impact it has on the copyright owner. Where the economic impact is not significant, the use may constitute fair dealing.  

Factors

The fair nature of the dealing depends on the following four factors:

1. the purpose of use,
2. the nature of the work,
3. the amount of the work used,
4. the effect of the use of the work on the original.

There are four main factors that are considered when determining if the use is a copyright infringement or if it falls under the fair use doctrine:

• The purpose and character of the usage: This factor looks at whether the use is for a commercial purpose or whether it is primarily educational. Educational uses are more likely to be considered fair use, so posting a brief excerpt from an academic journal on a college class website would most likely be acceptable.
• The nature of the copyrighted work: A quote taken from a textbook and shared in an online study group would be more likely to be fair use than posting someone else’s cat video on your personal feed because the textbook, but not the cat video, is educational in nature, as is the use.
• How much of the work is used in relation to its length? A 10-second clip of a two-hour movie posted on Instagram is more likely to be considered fair use than reposting a full three-second meme because the former is a smaller percentage of the overall work.
• How the use impacts the market or value of the work? If reuse makes it harder for the creator to sell or license the work, it’s likely not to be fair use. For example, pasting the entire text of a blog post on your Facebook timeline might cause the author to lose clicks or traffic and may also make it harder for the author to resell that work elsewhere, which would make the situation fall outside the criteria of fair use.

Social Media & Copyright

A copyright protects the owner of one kind of intellectual property (created by an individual but having no form or substance). Only certain kinds of works which fall within the U.S. Copyright Act can be copyrighted. 

The copyright process has become fairly simple with traditional works like books, plays, movies, and theatre. But copyright is a little more difficult with the advent of the internet. 

For example, bloggers must be aware of what they write, to avoid copyright, trademark, and libel issues. And before you use an image from the internet you need to be sure to get a license or find public domain images. This article looks specifically at various social media sites and their copyright policies.

How Copyright works with Social Media

When you post your creative work on social media, you continue to own the copyright, if the work is eligible, for example, tweets on Twitter. No one can use the work without your permission, nor does the platform take ownership. However, there is an exception: by posting on a platform such as YouTube or Twitter, you are agreeing to the site’s terms of use, which often give the site a license to use your work. More importantly, you are also allowing other users to share the work within the platform (if your settings are configured to allow shares). As a user of social media, you need to understand the terms of service you are agreeing to and then comply with them.

Posting your work on social media does not mean that others can use it without attribution. For example, if you create a meme and post it to Twitter, other users can retweet it. However, if someone merely copies the meme, without attribution, and posts it on their own feed or even somewhere outside of social media, it does not automatically constitute fair use and most likely does not comply with the terms of service for the platform.

It is also important to understand that you cannot post a copyrighted work to a social media site without permission. Courts have held that the mere act of posting a photograph online, for example, is not transformative. Users should post only creative works that are in the public domain, works that qualify for fair use, work for which they have received permission to post, or their own work.

Because copyright is created as soon as you produce work, you do not have to post a copyright notice with your work. However, if you are posting work to social media, it can be useful to include a copyright notice, such as ©2019 Bob Jones, as a reminder to other users that you own it.

Because copyright and social media is an evolving area, it’s important that users pay attention to changes in the law. To protect your creative interests, registering your copyright is advisable.

Now, let us have a look at some of the famous social media platforms where the users post stuff and how the third parties are debarred from using this content exhaustively while in other cases the concerned third party without any restrictions can use posts, images and write-ups created by others. So, it really depends as to what is the content and where it is published. The platforms which are in popular use, now, include Facebook, Instagram, Whatsapp, Pinterest, Twitter, Quora, LinkedIn and many more as such where such copyright violations take place. It is a matter of great concern and measures should be taken to curb these practices.

Social media, like Facebook, Twitter, and Pinterest, allow online posting of material that may be copyrighted. The social media site does not own the work that has been posted on their site; the copyright is still retained by the owner. But by agreeing to post works on the site, you sign an agreement that gives the site a license to use the work. In these cases, the license is given without payment.

Twitter and Copyright

The Twitter Terms of Service state that:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

In other words, Twitter users grant Twitter a license to make Tweets available to other Twitter users.

Facebook and Copyright

The Facebook Terms are similar, stating that you (the Facebook user) own “all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.” In addition, for content protected by intellectual property rights, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). When you leave Facebook, all content is deleted.

Pinterest and Copyright

Pinterest is a social media site that allows members to post photos from their websites and other places. Pinterest’s terms of service says that Pinterest does not take your copyright to photos. But, by signing up for Pinterest and agreeing to their terms and privacy notice, you have agreed to give Pinterest a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), rearrange, and distribute your user content on Pinterest for the purposes of operating and providing the service to you and to our other users.

In other words, Pinterest can use your content on its site because you have agreed to give them a license to use it as described in this agreement, without payment. The​ ​Pinterest copyright statement includes a link where you can file a complaint against someone you feel has violated your copyright.

Protecting Your Own Content on Social Media

The best way to protect your intellectual property from being appropriated on social media is to not put it up there in the first place. Although you own the content you place on one of these social media sites, you have granted a license to the media site to use the content and for others to view it.

To protect content, include a copyright statement on the file for photos. And be aware that your property might get appropriated by someone (not associated with the social media site). You must be vigilant to keep track of possible violations and be quick to file complaints. If you are not vigilant, you may not be able to support your claims in a lawsuit.

Who owns the Content on Social Media?

There is a general-albeit mistaken-belief that everything that is on social media sites and, on the Internet, maybe used freely to the extent that everything that is found there is usually freely accessible and easily available, and also free of charge. Many believe that all the content posted on social media ‘belongs to everyone and is free for all’. However, this is not the case. When content is posted on social media sites (either on a person’s user profile or on the page related to a product brand or a company), it is simply being published. But this does not mean that the rights of social media users are automatically assigned to others to allow anyone to use the content as they see fit.

The confusion regarding this situation may be influenced, or even caused, by the fact that social media sites include a ‘limitation of intellectual property rights’ in their terms of use, which are agreed to by users upon registration. But these licences on intellectual property rights are limited in scope. They are usually non-exclusive and authorise the use of the content posted by users on social media sites by social media or by other users. Nevertheless, a key point is that the content is normally authorised to be used only within the social media site or in connection with it, or with the services provided by it. Therefore, no other use or purpose is permitted. The terms of the licences applied by each of the social media sites must be considered in order to confirm the authorised uses in each case and at any given time.

Infringement of Copyright

In light of the above, as it is to be expected, there are constant infringements of intellectual property rights. The content posted by users on social media sites including mainly videos, photos, songs, illustrations, etc. are used by third parties on a daily basis, both by individuals and companies, whether or not they are users of social media, without being previously authorised by the owner of the rights. This practice constitutes a violation of the intellectual property rights inherent to such content.

Posting Photographs on Social Media

As a matter of example, the use of third party photographs was precisely the subject of a lawsuit in the United States which resulted in a judgment of liability for copyright violation. It was the dispute between Haitian photographer Daniel Morel and press agencies Agence France Presse and Getty Images. The facts were that Daniel Morel, who was in Haiti at the time of the earthquake in 2010, took several photographs there and posted them on his TwitPic account, the Twitter application for users to share images. Through a third user, the referred press agencies had access to the images and sold them to media companies around the world, without the authorisation of the photographer and without mentioning him as the author of the same.

The matter in the court lasted 3 years, with the subsequent costs, and the federal jury presided over by Judge Alison Nathan finally ordered the agencies to pay $1,200,000 as compensation for violation of intellectual property rights. Copyright was deemed to have been infringed precisely on the grounds that, contrary to the argument posed by the agency (that everything that is published on Twitter may be used without any authorisation being required), Twitter‘s licences do not include the right to use users’ content for commercial purposes.

Similar situations have also taken place in Spain. For example, there have been several cases in which companies in the fashion industry have used photographs that they had found on Instagram without the authorisation of their respective authors and printed them on some of the clothes in their collections. These matters, although they have not reached the court system, have been the object of claims submitted by the authors involved and resulted in settlement agreements, including, in some cases, a public apology by the companies for their unauthorised use of photographs. The repercussion of these disputes, both on social media sites and on the general media, may have a serious impact on the image and reputation of the companies involved.

Consequently, even though it may seem obvious to say that authorisation must be requested to use third party content, reality shows that infringements are very often committed.

Twitter and Tweets

So far reference has been made to the content posted by users and shared on social media, such as photographs, videos, illustrations, texts, etc. which in principle are deemed to be protected by intellectual property rights.

However, what about messages created and posted by users on social media sites? We are talking about, for example, messages posted on Facebook or tweets in the case of Twitter. These messages are usually very short and, although they are contents created by users, it is not so clear whether they must be considered to be worthy of protection.

The debate on this question recently started on the basis of the following issue: only a few days ago, a prestigious publishing company decided to withdraw from the market its book entitled “Les Perles des Tweets et du net”. The book consisted of a compilation of tweets which, apparently, the company was about to publish without having obtained the authorisation of the authors. Besides, the tweets were reportedly going to be published with no indication of the authors’ names, which would not only have affected their economic rights but also their moral rights. In view of the irate reactions apparently triggered by the announcement of the publication of this book, the company has seen no other option but to publicly announce the withdrawal of the book from the market. Furthermore, the publisher announced such withdrawal through its Twitter account.

A debate on the matter is assured: Can we really consider tweets to be works subject to copyright protection? That is, do tweets meet the necessary requirements to that effect?

Let us remember that tweets are short messages that cannot exceed 140 characters. This obviously greatly limits the authors’ freedom to create them and questions whether tweets can meet the legal requirements to be protected by copyright, namely, a level of creativity and originality. Given the exceedingly short length of tweets, the threshold of the level of creativity and originality required in these cases would be extremely low. Consequently, it is not clear whether a tweet would ultimately deserve the same protection as other literary works.

Despite the above, and even though this is still an arguable issue, in order to avoid a potential judgment against it, the publisher decided to withdraw its compilation of tweets from the market, given the lack of case law on the matter to date.

Conclusion

One thing is clear that when we operate through social media,  we must be aware that intellectual property law applies to any contents that meet the necessary requirements to be considered works capable of being protected. In other words, the same law that we apply to the analogical world is also applicable to the online world in the context of social media sites. Apparently, the prestigious publisher referred to above temporarily forgot about it.

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This article is written by Devanshu Anada. The article revolves around the pandemic of Coronavirus and whether the Indian legal provisions are capable of handling with this pandemic or not.

Introduction

It was unimaginable for the government of most of the countries that a pathogen not even visible to a naked eye would have a potential to bring even the most developed countries down to their knees and their economies to a virtual standstill. As unprepared the immunity system of our bodies was to the novel coronavirus, more unprepared were the legal systems of many countries including India to deal with a grave situation of a pandemic. The author will endeavour to critically examine the legal framework within which India is dealing with the said pandemic and whether it is equipped with necessary provisions to deal with the present situation.  

A 21-day lockdown imposed by the government through a order under the Disaster Management Act, 2004 (hereinafter ‘DMA’) however a laudable step to curb the spread of the pathogen, it raises several questions as to the legality of the same. The lockdown enacted through the said notification is although in the best interests of the people and it seems to have public and political consensus, it does not mean that we should not examine the legal framework under which it was brought in and whether it stands the test of the constitution as the freedoms once relinquished are difficult to get back. More importantly, the matter of concern is whether the laws in force in India are well equipped to deal with this rapidly spreading pandemic.

Legal Issues surrounding the Lockdown

The Fundamental Rights which are suspended as a result of the lockdown put in place are that of Article 19(1)(d) and Article 19(1)(g) of the Indian Constitution which are freedom to move freely throughout the India and freedom to practise any profession, trade or business respectively. It also affects Article 21 as the right to earn basic livelihood of the daily wage workers is taken away by enforcing a measure like this. According to the 2011 Census India has around 41 million migrant workers.  It is true that reasonable restrictions in the interest of general public can be put in place by any existing law by the virtue of Article 19(5) and 19(6). Whether the said restrictions are reasonable or not and whether the suspension of certain fundamental rights by the government without declaring an emergency under Article 352 are matters of serious concern which may be addressed by the courts if the actions of the government are challenged. 

After the 44th Constitutional Amendment Act, 1978, Article 21 cannot even be suspended even at the time of an emergency, then how can one justify suspending it on the basis of orders and guidelines under any Act. Moreover, Article 39(a) lays down an obligation upon the government to ensure that men and women enjoy adequate means of livelihood. The present lockdown can result into a situation which is contrary to such DPSP. It is also true that the union had a very little of a choice in imposing such a lockdown as the life of thousands if not millions were at stake and as it is laid down that “necessitas non habet legem” –necessity knows no law. But the question that now arises is even after the sacrifice of all such Fundamental rights whether the legal framework under which the government is at present operating is effective to lead India out of these dark and difficult times. This had been analysed in the following part.

Which laws are resorted to enforce Social Distancing and Lockdown Measures?

The lockdown declared by the government invoking the provisions of the Disaster Management Act, 2004 (which are critically discussed in the next head) is not the same as a curfew as the enforcement agencies like police cannot arrest any person without taking the permission of a competent court. The lockdown is however being enforced under various provisions of IPC like:

1. Section 188 IPC – Disobedience to order duly promulgated by public servant. The punishment in cases where such disobedience causes danger to human life, health or safety the punishment is simple imprisonment extending to six months or fine extending to ₹1000. Section 3 of the Epidemic Disease Act, 1897 which is the penalty clause also directs that punishment be given under Section 188 in case of any violation of its provisions. The offence is cognizable and the police with the help of this section have been arresting persons violating the lockdown order by the Central government. One of the essentials for Section 188 IPC is that the public servant must be legally empowered to promulgate the order. The order that was passed under Section 10(2) of the DMA lack legal basis as the provision itself does not empower the government to pass such an order. This has been discussed in detail in the latter part of this paper.
2. Section 269 IPC – Negligent act likely to spread infection of disease dangerous to life. The punishment is simple imprisonment extending to six months or fine or both.
3. Section 270 IPC – Malignant act likely to spread infection of disease dangerous to life. The difference between Section 269 and 270 is that the act contemplated under section 270 must be done with an evil motive or with knowledge of the harm. The punishment prescribed is imprisonment extending to 2 years or fine or both.
4. Section 271 IPC– Disobedience to quarantine rule. If a person were to escape from the quarantine imposed upon him by the public health authorities and he escapes such quarantine then he can be booked under this section. The maximum punishment is 6 months of imprisonment or fine or both.

Along with the said provisions as per the consolidated guidelines by Ministry of Home Affairs any person violating the containment measures will be proceeded under Sections 51 to 60 of the DMA. The said sections provide for, inter alia, punishment for false claim, false warning, obstruction in the work of a public servant and refusal to comply with the direction given by Central Government. The said sections of the DMA are virtually ineffective in addressing the issue and enforcing social distancing as well as other public health measures because of two reasons. 

Firstly, the punishments provided in the said sections are disaster centric as it involves punishments for acts like false warning or false claim with an intention of obtaining relief assistance, repair, reconstruction, etc or punishment for misappropriation of materials meant for providing relief in a threatening disaster situation. All the circumstances for which punishment is prescribed are likely to occur at the time of a disaster and not an infectious disease outbreak. Therefore, as has been seen, the authorities have resorted to sections of Indian Penal Code for effecting arrests and punishing the outliers to enforce the quarantine and lockdown rules. 

Secondly, Section 60 of the DMA provides that even for taking cognizance of any offence committed under the act, either the complaint needs to made by the National or State Disaster Management Authority or a notice of minimum 30 days have to be given to the said authorities. This can hinder the quick action which is crucial at the time of an epidemic. Thus, the punishments provided under the DMA have largely remained dormant and unused.

Ineffectiveness of existing Legal Framework to deal with the Pandemic in India

The Epidemic Disease Act, 1897

Aside from the punishments, what is to be seen importantly is whether the legal tools at the disposal of the government are sufficient to deal with an extraordinary and a testing situation like of now. The state governments have put in place lockdowns by utilizing the power conferred upon it by The Epidemic Disease Act, 1897 (hereinafter ‘EDA’) which is a century old colonial law containing four sections. In its Section 2 it provides very narrow powers to the state government regarding inspection of any person suspected of being infected with a disease and inspection of a ship or vessel arriving at any port. Various state governments have passed orders and issued guidelines under this very law viz. The Delhi Epidemic Diseases COVID 19 Regulations, 2020; the Maharashtra Epidemic Diseases COVID-19 Regulations, 2020, etc.

The archaic law does not even define the word “epidemic” leave alone specifying any effective containment measures to contain the same. It is understandable as it was enacted in a haphazard manner to control a bubonic plague outbreak in Mumbai in 1896 and to prevent people from gathering in large numbers. The regulations enacted under the act are clearly exceeding the scope of the act which may invite the doctrine of substantive ultra vires which may render the subordinate regulations as void. Without paying heed to the legal consequences the states are framing regulations one after the other to be followed by the people failing which punishment under Section 188 of IPC can be imposed on the violators. Thus, the EDA is a grossly unequipped legislation to effectively deal with the present situation.

Current Lockdown Measures and the Disaster Management Act, 2004

At the central level the government through the Ministry of Home Affairs has notified a 21-day lockdown by a passing an order exercising powers under section 6(2)(i) and have issued directions/guidelines under section 10(2)(I) of the Disaster Management Act, 2004. The section empowers the government to. “lay down guidelines for, or give directions to, the concerned Ministries or Departments of the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster.” The guidelines that are issued by the government inter alia provide for closing down of commercial and private establishments, suspension of transportation services, closure of places of worship, etc. It is evident that, the authority to lay down guidelines under section 10 is limited to directions to departments of government as seen in the text of the section quoted above and cannot be imposed upon private individuals or establishments. This puts all the orders passed by the government open to nullification under doctrine of substantive ultra vires. 

This also puts a question on all the arrests being made by the police in the country under section 188 IPC because if the government was not legally empowered under section 10 to promulgate such an order the essentials of section 188 IPC as discussed previously do not get fulfilled. In fact, no such provision for imposing a control of this kind on private individuals, shops or establishments can be found in the DMA as the makers of the act never envisaged that this legislation would be resorted to at the time of an epidemic. 

It all started when the Home Ministry declared the Coronavirus outbreak as a “notified disaster” under the definition of “disaster” as per Section 2(d) of the DMA. It is another question of debate that whether an epidemic caused due to spread of pathogen be included in the definition of a disaster to bring into play the provisions of the DMA but as it seems the government of India had a very little choice in doing so. The issue becomes contention when you take into account the order issued by Ministry of Home Affairs under DMA directing the landlords to not demand for rent for one month and the employers to make payment of wages during the period of lockdown. As noble and good the intention of the government maybe for issuing such order but it has no valid legal basis to emanate from.

The most perturbing features of the guidelines/orders are that the executive has taken upon the role to essentially legislate on certain matters under an Act which nowhere provides the executive the powers to do so. The DMA and EDA are being utilized by the government as if they grant them emergency powers to act of limitless amplitude. This trend seen in the recent days till it is being utilized for the welfare of the people may not lead to any difficulty but it may raise many brows if used in a reckless fashion. Even when emergency is declared under Article 352 there is parliamentary supervision as it need to be ratified within a month by the parliament. Running of the government as if it is operating in emergency by bypassing the constitutional mandate may cause more harm than good to the people.

Lastly, if the present trend continues as there are absolutely no provisions in the DMA or EDA to handle more grave and unfortunate situations if they were to arise in the future like direct appointment of medical staff without following the ordinary procedure, strict quarantine of any specific area, suspension of visas of certain suspected people, etc. The order issued by the MHA also does not provide for any restrictions for preventing the people from steeping out of the house it only restricts itself to closure of establishments and suspension of services because there are no such provisions in the DMA. Hence, the provisions of DMA are clearly not legitimate enough to address the present situation of our country.

Conclusion – Is there a way around?

Thus, the best tool the government has to address the situation is a 123-year-old law which was hurriedly drafted by the British and a law which was made with an object of disaster management having no provisions whatsoever to deal with a disease outbreak. As the existing strategy of the government are not seemingly capable to effectively address the coronavirus pandemic one may wonder if declaring an emergency might be the solution. But it is also not possible to declare an emergency as the present situation does not fall under war, external aggression or armed rebellion which are the key essentials when it comes to declaring an emergency under Article 352. 

There is absolutely no existing framework of laws which prescribes for response measures in a public health emergency including distribution of vaccines or drugs and which provide for guidelines to be followed for contact-tracing, etc. No punishments or fine whatsoever has been prescribed under any law for providing false details regarding their travel history or adversely affecting the process of contact tracing by not disclosing correct information. Identifying and quarantining suspected cases and setting up a robust testing mechanism is crucial to overcome this epidemic as illustrated by South Korea and China.

There arises a need for a specific legislation to address an epidemic like situation. This need was recognised by the centre and Public Health (Prevention, Control and Management of Epidemics, Bio Terrorism and Disasters) Bill, 2017 was introduced by the parliament however it has not been ratified till date and the 1897 legislation still continues to be in force. The Public Health Bill, 2017 specifically aims to control and management of epidemics, public health consequences of disasters, acts of bio terrorism as evident from its object clause. The said bill can be effective as it provides checks and safeguards on the government as opposed to the guidelines/orders issued by the government as per its will. A law similar to this can be promulgated by the president in the form of ordinance under Article 123 till the parliament gets in session. Letting the government to continue function under the DMA or the archaic EDA and depriving the people of their liberties as per their creative interpretations of the law may lead to deplorable consequences.

We must remember that however noble the intentions of government maybe but as held by Lord Atkin in Liversidge v. Anderson, “Law speaks the same language in the times of war as it does in peace.”

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This article is written by Rohit Raj, a student currently pursuing B.A.LLB (Hons.) from Lloyd Law College. This is an exhaustive article which deals with the different resolutions adopted by the UN General Assembly relating to outer space.

Introduction

“Earth may even be a village with several neighborhoods throughout a very huge universe.”

                                  -Bokkos Garan

“You’re about to find out why there’s a need for passing resolutions for outer space.” The reason behind the adoption of the resolution by the United Nations General Assembly is mentioned in this article. This article is related to the various resolutions adopted by the United Nations General Assembly. The United Nations General Assembly adopted completely different resolutions associated with outer space to encounter any chaos and upcoming problems and thus lead to international cooperation for the peaceful use of outer space to tackle the matter of property development.

The United Nations General Assembly inspired member states to come forward and coordinate their effort in order to implement the United Nations General Assembly treaties on the Outer space.

Resolutions adopted by UN Assembly

The resolution was adopted by the United Nations General Assembly on outer space in Resolution 2222 (XXI). It had been approved by the General assembly in 1966 and thought of as the foremost necessary and essential treaties adopted by the United Nations General Assembly. This resolution was adopted by the United Nations General Assembly which added a replacement provision for the governance of the activities of the various United Nations states and the exploration and use of outer space. This new provision was adopted by the United Nations General Assembly in the year 1963 in Resolution 1962 (XVIII).

The 1967 Resolution on Principles was formed, governing the activities of states of the United Nations on exploration and use of outer space, including celestial bodies and for the peaceful use of outer space and for the introduction of law which regulate the activities on outer space, developing space law for all the States of UN with the help of International cooperation and mutual help in current scenario as well as in near future.

1963 Declaration of Legal Principles governing the activities of states in the Exploration and Use of Outer Space

This Declaration has been adopted by the United Nations General Assembly in its resolution 1962 (XVIII) of 13th December,1963 and this declaration was adopted through the eighteenth Session of the United Nations General Assembly. Throughout this resolution, the United Nations General assembly felt encouraged by the good possibility of man’s entry into outer space and acknowledged the human race in exploration and use of outer space. 

Afterward, the basic knowledge related to employment and exploration of outer space can profit the different countries and exploration will benefit humankind.

Recalling to resolution 100 (II) of 3rd November, 1947, that recalls information which is designed to prevent threat to the peace of outer space and consider that the said resolution is applicable and binding on outer space. And, declares some Principles by taking into thought its Resolution 1721 (XVI) of 20th December, 1961 and 1802 (XVII) of 14th December 1962, adopted unanimously by the various states members of the United Nations General assembly.

The aforementioned principles that were declared by the United Nations General Assembly once the adoption of Resolution 1721 (XVI) and 1802 (XVII) are mentioned as follows.

• The Exploration and Use of space ought to be tied to the favour of the human race and for his or her profit. 

• All the space bodies associated with celestial bodies are free for exploration and use by all the states on an equal basis and in line with the law of nations and treaties.

• The activities of the UN states leads to exploration and use of space in line with the law of nations within the interest of maintaining international cooperation, peace and security.

• While exploration and use of space, the states are going to be guided by the Principle of Cooperation that every UN states should use and explore the outer space without harming the outer space and other UN states and mutually facilitate and jointly conduct their all activities with reference to space with due regards for the corresponding interest of different states.

• Each state that launches or procures any object in space, that state is internationally responsible for injury caused to a distant state and will be held liable for any harm caused to the other foreign states due to procurement of any object in space. If any test or any launching or any type of exploration is being done and any harm is caused to outer space because of it, then the country carrying out that activity will be held responsible.

• States, in the case of astronauts, render all facilities or help in the case of an accident, emergency landing on foreign territory and in case the astronaut conducts an emergency landing on foreign land, the astronaut should be safely returned by the foreign state.

1982 Principles governing Direct Broadcasting Satellites (DBS)

The General Assembly recalled its Resolution 2916 (XXVII) of September, 1972 for elaborating the principles that have been advised in earlier resolutions which govern the use of the Earth satellites by different UN States for the aim of International Direct Television Broadcasting. It recalled a different Resolution 3182 (XXVIII) of 18th December, 1973 and 3234 (XXIX) of 12th November, 1974 which is set to think about at its 37th session of the adoption of a draft which is set of principles governing the employment of Artificial Earth Satellite for International Direct Television Broadcasting by the States. The UN General Assembly members committee was created for the peaceful exploration and use of space and its legal commission to fit the directives issued by the Head committee with higher resolution. 

The UN General Assembly considers that many experiments are done by the satellites and jointly a variety of direct broadcasting satellites were operational in several countries and it would soon be commercialized for the future use by all the countries. 

UN General Assembly has taken into thought that the operation and use of International direct broadcasting satellites have positive as well as negative implications on all aspects i.e. Political, social, economic and cultural and have an overall and wider impact. They believe that the establishment and exploitation of International direct broadcasting satellites will surely result in higher negotiation and cooperation in this field and jointly strengthen the aim and principles of the Charter.

If we look at the aim and objective behind the 1982 Principles governing Direct Broadcasting Satellites then we can hold these activities that were estimated in the resolution. The resolution is adopted by the United Nations General Assembly to promote the free circulation and mutual exchange of knowledge in cultural and scientific fields and to facilitate academic, social and economic development and jointly enhance the standard of the lifestyle of individuals all over the world. 

These activities were carried out to maintain and enhance the international relations and cooperation among all states and this all leads to international peace and security. Activities of direct broadcasting satellites help in imparting news and information all over the world which helps in better coordination with each other.

1986 Principles relating to Remote Sensing 

This proposal has been adopted by the United Nations General Assembly in its resolution 41/65 of third December, 1986 for the remote sensing of the world from outer space. The United Nation General Assembly recalled its Resolutions 3234 (XXIX) of 12th November, 1974, which suggested that the legal commission of the Committee of Peaceful uses of Outer Space lead to jointly think about the implication of remote sensing of the world from space and will also jointly think about its Resolution 3388 (XXX) of 18th November 1975 and many different resolutions.

The United Nations General Assembly thinks about the report on the peaceful use of outer space and jointly thinks on the text of the draft that set forth the remote sensing of outer space.  On the idea of special deliberation of its legal commission, the committee on Peaceful use of outer space supported the text of draft associated with remote sensing of Earth from the outer space and this all activities of remote sensing of Earth from outer space will definitely result in the strong and mutual international cooperation as per the idea of United Nations General assembly. On this belief, they adopted this proposal of remote sensing of Earth from outer space.

The Purpose behind the remote sensing of Earth from outer space is for the profit and interest of each and every country. Powerful relations no matter what the degree of diversion of economic, social, cultural and scientific & technological development. An issue arises in the mind of the many those who we inclined to outer space units talking about remote sensing continuously, then what it actually means?

‘Remote sensing’ means that the sensing of Earth’s surface from an area by the assistance of properties of magnetism waves emitted, mirrored by the detected object.

1992 Principles on the use of Nuclear Power Sources in Outer Space

This Proposal has been adopted by the United Nations General Assembly in its Resolution 47/68 of 14th Dec, 1992. The United Nations General assembly thinks about the report of the committee on the peaceful use of outer space and therefore the text of the principles relevant to the employment of atomic energy in outer space has been approved by the committee. Also, The UN General assembly accepted that for a few missions that are carried in outer space, nuclear power is most fitted for it or maybe essential for compactness, life long and different things jointly.

By this approval of use of atomic energy sources in outer space, General assembly accepted that it takes place to specialize in those applications which may take the properties of atomic energy and may be benefitted. Another factor that is the most essential factor that has been recognized by the United Nations General Assembly is that the employment of atomic energy sources in outer space should be supported by safety measures, risk analysis so as to cut or reduce the risk of being injured by the sources of the atomic energy employed in that outer space.

In the UN General Assembly, the members come together in order to ensure the safe and correct use of Atomic energy in outer space and lays down some principles.

At the end of the meeting of members of the United Nations the UN General Assembly adopted the principles which were discussed and laid down by the members of the general assembly which were relevant to the employment of atomic energy in outer space and those principles were mentioned below.

• Applicability of law
• Use of Terms
• Guidelines and criteria for safe use.
• Safety assessment
• Notification of re-entry
• Consultation
• Assistance to states
• Responsibility
• Liability and Compensation
• Settlement of Disputes
• Review and Revision.

1996 Declaration on International Co-operation in Outer Space

This has been adopted by the United Nations General Assembly in its Resolution 51/122 of 13th December, 1996. The General Assembly thought of the report of the committee on the peaceful uses of outer space on the work of its ordinal session and also the text of declaration on International Cooperation within the exploration and use of outer space for the profit and within the interest of all the states taking into thought the wants of developing countries.

Recall the provisions of the written agreement on the principles governing the states within the context of exploration and use of space. Additionally recollects the resolution associated with activities performed in space and considering the recommendations of the second UN conference on the exploration and peaceful use of space and also the activities performed on outer space should not harm it.

The proposal contains declarations on international cooperation and the United Nations General Assembly is convinced that there’s necessity and also the significance of strengthening international cooperation and economical and effective collaboration within the context of outer space. Facilitating provisions in order that it may be utilized in the interest of humankind and numerous states no matter what is the status of economic, social and cultural development.

Conclusion

The resolution adopted by the United Nations General Assembly on space is taken into account because it is the most innovative and essential resolution until now because it deals with the matter of outer space and issues connected with the safe use and exploration of outer space and this eventually leads to higher correlation and cooperation among the states and powerful international relations.

According to my view on the employment or use and exploration of outer space, it’s good to use and explore the space however it should be kept in view that no harm should be done to the space and with the help of technological and scientific tools, a much better use of outer space with the lowest risk of harm and deterioration and this definitely helps in developing a much better relation and enough chance to all the nations without any conflict and finally leads to the peaceful relation among all states of world and equal chances of exploration and use of outer space. 

References

1. General Assembly Adopts Resolution Encouraging Stronger International Cooperation for Peacefully Using Outer Space to Drive Sustainable Development, (2018) [online], Available at: https://www.un.org/press/en/2018/ga12083.doc.htm [Accessed 30th March, 2020].
2. Outer Space, (2019) [online], Available at: https://www.un.org/disarmament/topics/outerspace/ [Accessed 30th March, 2020].
3. United Nation Treaties and Principles on Outer Space and related General Assembly resolutions, [online], Available at: https://www.unoosa.org/pdf/publications/st_space_11rev2E.pdf [Accessed 30th March, 2020].
4. United Nation Treaties and Principles on outer space and related General Assembly resolutions and other documents, [online], Available at: https://www.unoosa.org/pdf/publications/ST_SPACE_061Rev01E.pdf [ Accessed 30th March, 2020].
   

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The article is written by Akarsh Tripathi, Symbiosis Law School Noida. In this article, he discusses the future of virtual courts in India and what all has been achieved in this aspect.

Introduction

“When written in Chinese the word ‘crisis’ is composed of two components. One represents danger, and the other represents ‘opportunity’ “ 

– John F. Kennedy 

The COVID-19 pandemic has surely caused an economic depression and various other catastrophes (like that to the health sector and industrial sector). A Similar impact has been made to the legal sector of the country. Due to the nation-wide lockdown, The Supreme Court of India, almost every High Court has been temporarily closed.  

But can this crisis be used as an opportunity? If yes, then how? 

This lockdown period can be used by the Judiciary of India as an opportunity to have a more developed court system and upgrade the use of technology in the judicial system. One of the ways for releasing some burden off the courts is setting up virtual courts. Now, the question that comes in mind is “what is a ‘virtual court’? “Is it different from e-courts?” 

What are Virtual Courts?

As the name suggests Virtual courts are courts that use a remote working system with the help of various software and tools. The aim is to eliminate the requirement of human presence in the court so that the adjudication of cases doesn’t get delayed due to the unavailability of the litigant or the client or the court staff. 

E-courts are kind of a subset to virtual courts, as they refer to the websites, and components used in order to assist the functioning of virtual courts. The websites, mobile applications and various other software used for the computerization of the legal system can be said to be a part of e-courts. 

Milestones Achieved

India is moving towards the attainment of a system, where there would be no requirement to visit a court in-person. Well, it’s not wrong to say that we might not have these courts after all. “Virtual Courts” if implemented properly will provide time-bound and effective delivery of justice to the citizens of the country. Let’s see what all has been achieved until now in the judicial system of our country.

E-courts Project 

The project was launched on the basis of the “National Policy and Action Plan for Implementation of Information and Communication Technology(ICT) in the Indian Judiciary-2005” which was submitted by the e-committee of SC of India. The vision behind this plan is to bring technological advancements in the working of Courts.  The proposed activities of this project were divided into 2 phases:

• Phase-1 of this project, (which started in 2007) the main aim was to initiate the implementation of ICT (Information and Communication Technology) in the judicial system. This was done by providing courts with facilities like computers, working internet connection via LAN (Local Area Network) and required software and hardware (like printers, scanner, etc).

Apart from this, the judges were given laptops with the internet, digital signatures were introduced and district court websites were made functional. Through these websites, citizens could check the status of their case, daily order sheets and final orders too. 

• Phase-2 was enacted with the help and cooperation of the e-Committee, NIC, the DoJ (Department of Justice), DietY and the Ministry of Finance. The infrastructural model was changed and computerization was done in the offices of DLSA (Delhi Legal Services Authority), NJA (National Judicial Academy), SJA (State Judicial Academy) and Taluka Legal Service Committee. 

A common software platform known as CIS (Case Information Software)  has also been created, with which all the court data will be uploaded including the past cases. Video conferencing facilities in courts and jails are in their final stages.

Mobile applications like eCourt services for District and Taluka courts, JustIS Mobile App for judicial officers have also been made. Phase 2 accomplishments also include websites like e-Filing through which citizens can file their case from home, check real-time case status, make court fee payments via ePay facility. 

By the end of Phase 2, there will be discontinuation of manual registers, the introduction of a cloud-based system for all court-related work and digitalization of all cases, whether pending or decided. 

Virtual Courts

On 26th July 2019, Delhi’s first virtual court was launched at the Tis Hazari Court. After that, On 17th August 2019, the Punjab and Haryana High Court introduced the virtual court at Faridabad and the court deals in traffic challan cases of Haryana. This project was launched by the guidance of the e-committee of the Supreme Court of India. 

The procedure followed here is simple and convenient. The case comes directly to the Virtual Court which is presided by a Metropolitan Magistrate. Then, a summon is generated and the same is notified to the accused via email or SMS. Then the accused can go to the website and if he pleads guilty, then the fine amount will be displayed. Once the payment of the fine is made, the case will automatically be disposed of. In case the accused wants to contest the traffic challan, then the case will be dealt with by the Regular court, as per the territorial jurisdiction.

The procedure aids to expedite the disposal of cases, especially in cases where the accused earlier had to visit the court even for pleading guilty. This process also helps in reducing the footfall of the court. 

Recent Developments

Current CJI SA Bobde held a meeting on 15th March 2020, where he discussed the implementation of Video conferencing in Courts, to avoid any type of gathering in Court. This step was aimed to combat the COVID-19 outbreak, and minimize its impact on the functioning of the judiciary in our country. 

In an effort to promote social distancing, and eliminate the requirement of counsels to be present in court, Justice DY Chandrachud who is the chairman of the E-committee of SC announced that e-filing has been made available 24/7, and court proceedings shall take place via video conferencing. 

Earlier a complete shutdown of the top courts was considered to be impossible, but the courts have successfully been able to shut down completely for the next few weeks, in order to contain the spread of novel coronavirus.

It is not a fallacious statement if we say that this development and technological up-gradation had not been possible without the upcoming of this crisis. Well, there is a high possibility that the work was under development and in the pipeline, but the adoption of this system of ‘virtual court’ has received a thrust due to the spread of this monstrous virus. Also, there seems no reasonable explanation to roll back the setting up of online courts, even when the pandemic ends.

Possibility of Virtual Courts in the Near Future

Before we talk about the possibility of virtual courts in India, it’s better to have an idea about what all can be achieved by the establishment and proper functioning of these virtual courts.

Setting up of virtual courts will result in complete computerization of the court system, and the citizens can take the benefits of facilities like video conferencing, e-filing, etc. A virtual court will enable the usage of e-signatures or digital signatures, and a more litigant-friendly user interface can be established in the judicial system of our country by having a proper database of pending cases, orders, etc.

Now, to achieve all this, it is reasonable to analyze the possibility of such virtual courts in the near future and to predict how ‘near’ is this near future that we are talking about. All this can be done after we read about the pros and cons of virtual courts. 

Advantages 

A full-fledged system of online courts with proper implementation will help in eliminating the court expenses such as on infrastructure, staff, security, etc. Parties involved in the cases won’t be required to come to court in-person, which reduces the travel time and makes the procedure cost-efficient. 

Digitization and Computerization of the institutions would also bring accountability and better administration in the working of the judicial system. As we can clearly see that the video conferencing facility introduced to mitigate the spread of COVID-19 in courts, has helped in diverting the courthouse traffic and has moved to footfall to the virtual courts with the help of remote video technology. 

One of the biggest advantages which we will have is the flexibility of the court to work 24/7. There is a huge backlog of cases in court, and the delay in justice leads to a lack of faith by the citizens on the judiciary. With this, the procedure will be given a thrust, and adjudication of cases can be done in a  time-bound manner.

Disadvantages

Everything has its pros and cons. So is the case with ‘virtual courts’ in India. It might seem like the best and the possible way to develop and upgrade the legal community of India, and that it has no disadvantages involved. However, that is not the case. 

There will be various legal problems related to the applicability and authenticity of the identity of witnesses, evidence produced before the court, etc. Even the confidentiality of court proceedings shall be at risk because, in the end, the whole setup involves the use of technology and various other software and tools that might possess some threats related to security and privacy of data. 

Also, another practical problem which is India-specific is that in India, there are 24 High Courts, more than 600 District courts and other subordinate judicial institutions. The cost of setting up and installation of essential features would require a huge amount of investment. To convert the judicial system into a remote-working successful ‘virtual’ world, technological up-gradation and investment in court are quintessential.

Apart from this, one important aspect which gets unnoticed is that, will speedier justice result in deterioration of the quality of justice? We need to make sure that the speedy delivery of justice doesn’t cost us the efficiency and effectiveness of justice. Because to have a more effective justice system, the technology must be accessible to everyone. 

Setup of Virtual Courts among Different Countries

Courts all over the world are switching towards virtual courts with the help of various technological developments being made. Courts in Texas have also started to hear criminal cases and continue with the judicial proceedings via video conferencing so that the inmates don’t have to travel from jail to court.

To analyze and predict the scope of virtual courts in India, we should also observe the development and status of these courts in other countries. This will help us to know what will be the issues brought up by the implementation of internet courts in India, and how can such problems be resolved. 

Virtual Courts in the UK

Online Courts have been in existence and under development in the UK since 2009. Increased use of virtual courts has led to a swifter justice system in the UK and has considerably improved the quality of services and accountability of the judicial system. 

Another benefit which was highlighted by the UK’s judicial officers was that the movement of prisoners, the cost and efforts involved in such movements from prison to the courtroom has been minimized, proving that the idea of ‘virtual justice’ is cost-effective. A ‘live link’ is also used for police officers to appear before the court to give the evidence, This helps them to cut down their travel time for police stations to courts and then return to their other duties. 

Virtual Courts have been set up in the UK amid the novel COVID-19 outbreak. The health secretary had announced that these courts will hear both criminal and civil cases. The proceedings will take place via video conferencing to ensure that justice is delivered to the citizens of the country regardless of the global pandemic and courts are able to continue operating even during this period of uncertainty.

Virtual Courts in China

China’s top court, known as the SPC (Supreme People’s Court) had proposed the idea of ‘Smart Court’ in the year 2015. The pioneering work of the internet courts started in 2017 in the city of Hangzhou which eliminated the requirement of citizens to appear in Court. 

‘Robot Justice’ is the term used widely across the country when they talk about such courts. This is because of the fact that these courts have Artificial Intelligence (AI) powered non-human judges who virtually communicate to the parties involved in the case. Officials say that these internet courts work 24/7 and have proved to be a boon for the working of the judicial system of the country.

Although, the kind of cases that were dealt by these internet courts were limited to only matters related to civil disputes for cases involving trade issues, copyright cases, etc.  Now, these courts are planning to expand their applicability to other areas of law. Also, in 2018, the technology has been brought to Beijing and Guangzhou, and the role of “AI Judge” has helped in reducing the repetitive judicial tasks which were there in the litigation procedures.

As mentioned by Meng Yu, the co-founder of China Justice Observer, “it’s just a matter of time to get this technology nationwide”. 

Conclusion

After analyzing everything in a comprehensive manner, we can be assured of the fact that Yes, Every crisis does bring a new opportunity. An opportunity to develop and upgrade ourselves, an opportunity to make ourselves immune to the problems and hindrances which might come in our way in the future. Similar was the case of the future of ‘virtual courts’ in India. We earlier raised a question, that how ‘near’ is this future. Well, we found the answer. It’s okay to say that the ballpark figure would be 1-2 more years, and we can see a well-established working system of ‘virtual courts’ in our country. 

However, this can be achieved only if we don’t forget the hindrances which are in our way and how we can remove them. The reason why India is still not having a full-fledged system of virtual courts is because of various loopholes that exist in the implementation procedure. It was found that various district and subordinate courts were not updating the National Judicial Data Grid(NJDG) which defeats the purpose of having accountability in the working of the judicial system of the country. 

Also, at times we separate the court system from our legal community. The legal society of our country includes litigants, law firms, judicial officers, and every staff working in this arena. And for the development and advancement of one institution, it’s important for the others also to upgrade themselves. Even law firms need to adapt the technology and more towards setting up for what we call “virtual law firms”.

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This article is written by CA. Chetan Swaroop Monga. He is a practising Chartered Accountant.

Background

Banking sector forms the very base of our economy thus it is of momentous importance to keep this sector healthy and strong. The RBI which regulates the banking sector of the Indian economy keeps an eye on the functioning of the banks in our country and comes up with the rules and regulations keeping a track of current economic, international, social and other factors.

The fact that our banking system is facing conundrums of NPAs is well known and the situation is worsening day by day. The willful defaults, frauds and collapse of the business houses have led to such a situation. The problem of NPAs is becoming dire with each passing day. This ordeal has risen because of the factors stated above but it is pertinent of place in records that the mismanagement and inefficiency by the banks have also contributed to making the situation deplorable.

 All these factors along with the aim of strengthening the banking sector, it was felt to bring a paradigm change in the banking sector which will not only provide the fillip but also curb the lapses in the banking sector.

This brought into picture the mammoth merger of five of the subsidiaries of the State Bank of India with the parent (State bank of India) in 2016. SBI first merged State Bank of Saurashtra with itself in 2008. Two years later, State Bank of Indore was merged with it.

Recent updates in the Banking Sector related to Merger

It is the never-ending desire for growth that keeps every business house running and trying new avenues for growth. This desire for growth has increased the merger and acquisition activities across the board and the Indian Banks too did not stay aloof from this wave of mergers and acquisitions (M&A). Initially, banks were merged to save non-performing banks or non-efficient banks but as time evolved the system evolved too. In recent times mergers and acquisitions have also been made on grounds of business growth, profitability and organizational structure. There were 27 public sector banks in 2017. In 2018, the government of India announced the merger of Vijaya Bank and Dena Bank into Bank of Baroda to create the country’s third largest lender. In August 2019, in the biggest consolidation exercise in the banking arena, the Government announced four major mergers of public sector banks, bringing down their total number to 12 from 27.

The details of the mega merger exercise of public sector banks are as under:

• United Bank and Oriental Bank of Commerce will be merged with Punjab National Bank (referred to as ANCHOR BANK), making the proposed entity the second largest public sector bank with business of 18 lakh crore.
• Syndicate Bank will be merged with Canara Bank (referred to as ANCHOR BANK). The consolidated Canara Bank will be the fourth largest bank with business of Rs 15.2 lakh crore.
• Allahabad Bank will be amalgamated with Indian Bank (referred to as ANCHOR BANK). After subsuming Allahabad Bank, Indian Bank will be the seventh largest state-lender with a business size of Rs 8.08 lakh crore.
• Andhra Bank and Corporation Bank will be consolidated with Union Bank of India (referred to as ANCHOR BANK). The consolidated Union Bank of India will be the fifth largest bank with business of Rs 14.59 lakh crore.

Impact of Mega Merger of Banks on Banking Sector and Indian Economy

Every decision taken by the Government is for the betterment and increasing the robustness of the system but it cannot be denied that it may have some flaws that cannot be predicted at the time the decisions are taken or the negative impact that it may have when those decisions are implemented at the grass root level. Because of this factor, the Government comes up with regular policy changes so that the system becomes stronger than before.

Keeping in mind what has been mentioned above, this mega merger activity in the banking sector will have some positive and negative impact which will be seen as the time passes by. But predominantly what can be seen initially, it is going to have a favorable impact on our economy.

Advantages of the Merger

• Bad Loans/NPAs are one of the biggest problems of our banking system which is creating hindrance in the growth of the economy as a whole. NPAs have been increasing at an alarming rate which has jeopardized the financial system of the country. YES BANK (private sector bank) fiasco is known to everyone. Had RBI not stepped in, YES BANK would have crashed and put the entire economy at halt. By merging comparatively weaker banks with the stronger banks, the Government has made effort to make sure that the weaker bank is not wiped out from the market because of the bad loans/NPAs. By merging the banks, the legal cost and other ancillary costs will comparatively come down as it is seen that the same borrower has taken loan from a number of banks. Every year banks spend hefty amounts in the recovery of the bad loans, by bringing such cost down banks can save significantly. It has also been seen that there are instances of reckless funding. Mergers of banks will also keep a check on this by sharp monitoring and thus reducing the NPAs.
• By merging banks, the banks will become bigger and better as it will be catering a large segment of customers as compared to its current position. Services will be available conveniently to customers through a single bank rather than by approaching different banks. Big customer base will help the banks to have good profitability as the merged bank will enjoy synergies. The merged banks will have the better business portfolio, asset quality, improved market capitalization, risk appetite and risk management strategies. There will be very less chances that the banks will fail. Post merger the public banks will be in a better position to face competition from the private players in the market. The merged banks will enjoy economies of scale and reduction in the cost of doing business. Post merger the banks will be in the better position to finance mammoth projects which earlier they could not finance independently thus making the funding process for those projects quick and easy.
• Even after so many years Indian Banks have failed to have a global presence. There are several reasons for the same including the size of the balance sheet, inadequacy in the operations, not meeting the international banking standards etc. Post merger not only the banks will have the global presence but also will be able to be a prime part of the International banking system. In the pre- merger era RBI had to manage a comparatively  large number of banks thus making it a cumbersome task. Now with comparatively fewer banks to manage, RBI will be able to implement the banking standards followed by the developed economies and thus bringing Indian banks in line with the banks having International presence. Currently, the State Bank of India is in the list of top 50 banks globally. 
• The post-merger era will bring down the operational cost significantly. Cost saving on account of treasury operations, audits, controls, technology, management will help banks to bring the overheads down. Merging will help the banks to pool the resources and use them in an effective and efficient manner. The mergers will result in rationalization of branches, roles and functions getting reduced. However, the Finance Minister has confirmed that there will be no retrenchments and the employees will only benefit with the mergers.

Disadvantages of the Merger

After discussing at stretch about the benefits of the mega merger activity happening in the banking space, there are few apprehensions/ disadvantages that have cropped up which have been listed below:

• Various internal conflicts and disputes may arise with regard to promotion and other potential issues. Different banks have different ideologies and people with different backgrounds which give rise to conflicts. People have apprehensions that they will lose their jobs even though those apprehensions have been put to rest by the respected Finance Minister.
• Merger will no doubt result in benefits which are manifolds but technical execution will be a tedious task in itself. Different banks use different software platforms so aligning them with the merged bank will be a tough nut to crack. Financial consolidation along with other financial matters will have to be pondered upon.
• It is said that when the bank becomes oversized, it becomes tough to manage its functioning and in case the bank starts to fall then the entire economy is jeopardized. Although we all are aware of the quote “TOO BIG TO FALL”, in case any big bank/financial institution collapses the entire economy faces the music. 
• In the short run, not only consolidation of PSBs (public sector banks) may divert a significant proportion of management and employee bandwidth away from growth but it may hurt credit growth, stall recoveries and gift market share to private banks. State Bank of India had reported a sharp drop in loan off take after its associate banks were merged. After the merger of SBI and its associates, the SBI management had said that since a large part of energy was invested by its staff into the merger process, monitoring of credit and lending took a back seat. It is clear that the benefits of the mega merger of these ten public sector banks would accrue only beyond two-three years.
• According to the experts, even though the government has allocated additional capital and is pushing for co-lending, there will be a slowdown in loan growth as witnessed in earlier mergers as well which cannot be good at a time when liquidity flow is severely constrained.

Conclusion

The Government has been taking numerous steps at frequent intervals for the betterment of the country. Some of these accrue results immediately and some of them accrue results  after a certain time. The result of this mega merger is a debatable issue and the future will decide the fate of this merger exercise. Currently, COVID-19 pandemic breakout has brought the entire economy on hold and thrown the country out of gear. Let us unite together by staying at home and fight against this evil together.

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This article is written by Sanchit Singh, from VIPS, New Delhi.

The Power of the Court to examine an accused is provided under Section 313 of the Criminal Procedure Code, 1973.

Significance of Examination of Accused

This Section gives power to the court to examine an accused emphasising on the principle of natural justice- audi alteram partem (no one should be left unheard). Accordingly, the accused may be asked to furnish information regarding the incriminating allegations made against him, which the Court accepts as an explanation from the side of the accused. In the case of circumstantial evidence, it is determined whether the chain of circumstances is complete or not. (Raj Kumar Singh @ Raju @ Batya V. State of Rajasthan; AIR 2013 SC 3150)

Scope and Objective of Section 313, Cr.PC

In the case of Sanatan Naskar & Anr. V. West Bengal, the scope and objective of Section 313 of the code was laid down as:

1. To establish a direct dialogue between the accused and the court: by putting all pieces of incriminating evidence against the accused before him and providing a platform for the accused to provide an explanation.
2. To test the veracity of the Prosecution’s case: The examination of the accused is not a mere procedural formality but is important to check the acceptability of the prosecution’s case so established before the court.

Section 313, Cr.PC provides wide scope by accepting information from the accused’s side after presenting all evidence of the prosecution proving incrimination of the said person accordingly. (Sanatan Naskar & Anr. V. State of West Bengal; AIR 2010 SC 3507)

Section 313, Cr.PC Provision Analysis

Methodology of Recording Statements

In Dehal Singh v. State of Himachal Pradesh, the court observed that the statement of the accused under Section 313, Cr.PC shall not be administered under oath. Accordingly, the statement would not be accepted as evidence under Section 3 of the Indian Evidence Act, 1872.

The same regarding the administration of oath is provided in Section 313(2).

For the purpose of understanding the Section:

“313. Power to examine the accused-

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may, tend to show he has committed.”

By reading the provisions, we can see that question under clause (1)(a) is optional and discretionary. However, clause (1)(b) is mandatory, accordingly providing the accused opportunity to be presented with evidence and explanation of the incriminating charges thereof. (State of Kerala V. Rajappan Nayar; 1987 Cr. L. J. 1256) 

Section 313(1)(b) casts a duty on the court to provide an opportunity of explaining to the accused against the incriminating evidence presented by the prosecution regarding his association with the offence committed. (State of Maharasthra V. Sukhdev Singh; AIR 1999 SC2100)(Sanatan Naskar & Anr. V. State of West Bengal; AIR 2010 SC 3507)

During Enquiry or Trials

An accused can be examined by the court under Section 313, Cr.PC for every enquiry or trial.

Section 2(g) of the Cr.PC defined “enquiry” as:

“enquiry means any enquiry other than a trial conducted under this Code by a Magistrate or Court”

A Trial commences after the charge has been made. An Enquiry does not result in a conviction or acquittal, unlike a trial that commences the procedure resulting in either/or.

Terms defined for the purpose of Section 313, Cr.PC in cases

“Accused”

For the purpose of Section 313, Cr.PC, an accused means someone who is under-trial and under the examination of the court and not a person who has been accused under the same jurisdiction of the court in another case. [Karamalli Gulamalli; (1938) 40 Bom. LR 1092 (1939)]

“Personally”

The term is used to show the opportunity offered to the accused for an explanation based on the incriminating evidence that would have been presented before him during cross-examination by his counsel. Moreover, it would be premature to seek information personally till the time the accused has not exhausted all opportunity to cross-examine the witness. [B. Chainraj v. Asstt. Collector of Central Excise; (1989) (1) Crimes 229, 231 (MAD)]

“At any stage”

The court has the discretionary power to question the accused under Section 313(1)(a) at any time during the trial or enquiry even before a charge is established accordingly. (Emperor v. Genu Gopal; (1929) 31 Bom LR 1134)

Under Section 313(1)(b) the court shall be responsible to present all evidence before the accused which appears incriminating against him and accordingly reply will be sought thereto. (State of Nagaland v. Lipok Ao; 2007 Cr.L.J. 3395 (DB) (Ajai Singh v. State of Maharashtra; AIR 2007 SC 2188)

It is also important to note that the accused is provided with the opportunity to not avail the chance of providing explanation against the evidence incriminating him in the court.(Subhash Chandra V. State of Rajasthan; AIR 2007 SC 2188)

Attention must be brought towards the inculpatory pieces of evidence to give the accused an opportunity to provide an explanation to the evidence presented against him, if he chooses to do so. The court under this section is under a legal obligation to put all incriminating materials and solicit a response from the accused. Circumstances not put before the accused cannot be used against the accused in his examination under Section 313, Cr.PC. (State of U.P. v. Mohd. Iqram & Anr; AIR 2011 SC 2296)

“Examining accused u/s 313, Cr.PC more than once”

If the court has already conducted an examination of the accused, the court has the power to call the accused again to the court for examination and to answer before the court. However, it is stated that after the conclusion of the prosecution’s case, the power of calling on an accused more than once should not be used in a routine or mechanical manner. (Rajan Dwivedi v. CBI; 2008 Cri.L.J.; 1440 (1447) DEL)

If fresh witnesses are examined after the examination of the accused, it is obligatory to further examine the accused under section 313, Cr.PC. (Emperor v. Bhau Dharma; (1928) 30 Bom LR 385)

Provisos of Section 313(1)(b)

‘Summons Case’

In a summons case where the court has dispensed personal attendance of the accused, the entire examination of the accused under the said section may accordingly be dispensed. 

‘Warrant Case’

Question arises on whether the examination of the accused under the section can be dispensed away with in a warrant case?

No discretion has been provided to courts u/s 313(1)(b). However, an exception was highlighted in-  Basavaraj R. Patil v. State of Collector; AIR 2000 SC 3214. The Supreme Court stated that as a general rule, it was mandatory for an accused to be personally present in the court to answer questions under Section 313(1)(b). It was further stated that if remaining present in the court personally created undue hardship and large expense then the court can dispense such examination even in a warrant case, after adopting a measure to comply with the provision provided under the section.

For this purpose, the accused has to file with the court an affidavit sworn-in by himself that he may be allowed to answer the questions without physical presence in the court due to justifiable reasons. It must also contain narration of the situations of hardship and large expenses making personal presence in the court difficult and that no prejudice will be caused by dispensing with his personal presence with an undertaking that the accused will not take any grievance on that accord at any stage of the case. 

It is also observed that the section does not envisage the examination of the Counsel on behalf of the accused.

Questioning and Examination based on Material Circumstance

As previously stated, there is a determination whether the chain of circumstances is complete or not. The prosecution should not link a long series of events and expect the accused to comment on the entire narration presented before him. Rather, the accused should be questioned on each separate material circumstance which is to be used against him.

It is essential that the examination take place in a fair and framed manner where even an illiterate person will be able to appreciate the facts and evidence presented before him. Moreover, during the examination, even a literate person’s mind is apt to be perturbed when facing a trial. Hence, it is important that the questioning takes place in a simple and separate manner such that even an illiterate person can understand and appreciate. (Tara Singh v. State of Punjab; AIR 1951 SC 44)

The practice of putting all evidence against the accused in a single question and accordingly giving the opportunity to explain is improper because it impairs the accused from giving a rational and intelligent explanation, considering the amount of information that needs to be processed. 

The opportunity of examination of the accused under Section 313, Cr.PC is part of the principle of fair trial and if it takes place in an improper manner, it may disrupt the true appreciation of the evidence provided. (Naval Kishore v. State of Bihar; (2004) 7 SCC 502)

An excellent way of ensuring the concept of simple and separate questioning of the accused is highlighted by a practice where the questions and associated answers are recorded separately so as to ensure that the accused was able to comprehend the questions placed before himself and answer them accordingly. [(Nicolau Almeida v. State; 1988 (2) Crimes 774, 781 (Bom) (DB)]

Recording of statements of accused persons simultaneously and putting the same set of questions to the other accused persons may create prejudice against the accused, hence the court held said practice to be improper. [State of Maharashtra v. Goraksha Ambaji Adsul; 2006 Cri.L.J. (NOC) 45]

There will be entire recording of the answers in full and not in a monolithic manner. [Dada Saheb Patalu Misal v. State of Maharashtra; 1987 Cri.L.J. 1512 (BOM) (DB)]

Examination of Accused in Circumstantial Evidence Cases

In Munish Mubar V. State of Haryana; AIR 2013 SC 912, it was obligatory for the court to present all incriminating material associated with the accused, even in cases of circumstantial evidence so as to determine whether the chain of circumstances has been completed whilst taking note of the explanation of the accused against the evidence presented in the court. 

It was further reiterated in Mushir Khan V. State of Madhya Pradesh; AIR 2010 SC 762.

In the Munish Mubar Case (Supra), the court held that “circumstantial evidence is a close companion of actual matrix, creating a fine network through which can be no escape for the accused, primarily, because such facts when taken as a whole, do not permit us to arrive any other inference but one, indicating the guilt of accused.”

Considering the facts of the case:

In this case accused appellant and deceased both having illicit relation with co accused, the car of appellant was found parked at Airport where the deceased was to arrive and the car was moved out of parking area after arrival of the flight, presence of the appellant at the place of occurrence proved by his telephonic records. Articles recovered on disclosure made by the appellant found to contain human blood, the appellant gave no explanation as to the parking of his car at the Airport or about the recoveries made at his instance. Circumstance clearly connects appellant with crime. And merely making the bad statement under section 313 by the accused that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established.

The court held expectation of an answer from the accused on the reason for why the accused had gone to the Airport and why the car was parked there for several hours. 

In Madhu @ Madhurantha and Another v. State of Karnataka; AIR 2014 SC 394– (Dr. B.S. Chauhan and S.A. Bobde, JJ.), the court held that while dealing with “last seen together” cases where the deceased was present with the accused at the time of death, it was obligatory for the accused to explain the occurence of the death and under section 313, Cr.PC provide explanation to the incriminating charges against himself presented during the examination. The court will accordingly note the version presented by the accused in response to the accusations, so as to determine whether the chain of circumstances is complete or not. 

The same judgement was held in Mushir Khan @ Badshah Khan and Another v. State of Madhya Pradesh; AIR 2013 SC 762 and Dr. Sunil C. Dennial; AIR 2013 SC (Cri) 193) with regards to cases where the accused was last seen with the deceased.

Pleas Inconsistent with Section 313, Cr.PC

In State of Madhya Pradesh v. Balu; AIR 2005 SC 222, the court rejected the plea of non-consideration of a plea made by the accused under Section 313, Cr.PC to the effect that there was animosity between the family and the accused with regards to the plea because the defence of consent was taken by the accused. These were inconsistent pleas and were accordingly found unacceptable. 

In Kanchan v. State of U.P.; 1982 CrLJ 1982 All Cr 304 1633, it was held that plea of alibi and private defence at the same time were inconsistent and not acceptable by the court. 

Effect of Non-Compliance with Section 313, Cr.PC

In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra; (1973) 2 SCC 793: (AIR 1973 SC 2622), the court considered the situation where a vital piece of evidence against the accused and accordingly held that the appellate court can question the counsel for the accused as regards the circumstance omitted to be put before the accused and held- 

“…It is trite law, nevertheless fundamental, that the prisoner‟s attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C., the omission has not been shown to have caused prejudice to the accused…”

The same was reiterated in State (Delhi Administration) v. Dharampal; AIR 2001 SC 2924 where it was held- 

“Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate Court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him…”

In Gyan Chand and Others v. State of Haryana; AIR 2013 SC 3395, Dr. B.S. Chauhan and S.A. Bobde, JJ, plea for non-compliance of examination under Section 313, Cr.PC for the first time in the Supreme Court. However, the court could not find any prejudice that was put before the accused persons, if facts of conscious possession were not put to them. Thus the court held that the case was not vitiated by non-compliance of Section 313, Cr.PC.

Mere improper/defective examination under Section 313, Cr.Pc is no ground for setting aside the accusations placed against the accused, unless argument of prejudice in that accord is provided. Unless an examination of the accused is conducted in a perverse way, there can be no prejudice against the accused. (Shobhit Chamar v. State of Bihar; AIR 1998 SC 1693)

In Nar Singh v. State of Haryana; AIR 2015 SC 310, the court held the following while dealing with the question of such non-compliance with the section- 

“…Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. In so far as non-compliance of mandatory provisions of S. 313, it is an error essentially committed by the Trial Court, the same has to be corrected or rectified in the appeal.”

The court further established burden of proof stating- 

“The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of S. 313 has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under S. 313 it cannot be inferred that any prejudice had been caused to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice…”

“…Hence, if all the relevant questions were not put to accused by the trial court and when the accused has shown that prejudice was caused to him, the appellate court is having power to remand the case to examine the accused again under S. 313 and may direct remanding the case again for re-trial of the case from that stage of recording of statement under S. 313 and the same cannot be said to be amounting to filling up lacuna in the prosecution case.”

Important things to take into consideration when an Application under Section 313, Cr.PC is made

• The courts may reply upon the explanation provided by the accused but may find him guilty for an offence based on some other evidence provided to the court led by the prosecution. However, such consideration should not be seen in isolation but in conjunction with the prosecution’s evidence. [Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507]
• Conviction cannot be made solely based on explanations provided before the court by the accused under Section 313, Cr.PC – as previously stated Section 313(2), Cr.PC provides for non-administration of oath for said examination as it does not have evidentiary value under Section 3 of the Indian Evidence Act, 1872. [Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507]

In  Rafiq Ahmad @ Rafiq v. State of U.P.; AIR 2011 SC 3114, the court in this regard held-

“It is true that the statement under section 313, Cr.P.C. cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of evidence…”

• Statements in Bail Petition– the statement of the accused made on his behalf by his Counsel in the bai application cannot be read as his admission as it was not put before him under Section 313, Cr.PC. [Randhir Singh v. State; 1980 Cri.L.J. 1397 (Del – DB)] 
• The statements of Co-accused persons under Section 313 of the code, cannot be used against the main accused considering that there was no opportunity for cross-examining the co-accused in this regard. However, the evidence produced may be used for or against him in any other enquiry or trial.
• In Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150, no matter how weak the evidence of the prosecution, the court is obliged to examine the accused and seek explanation of the incriminating charges and associated evidence from the accused. Also, all circumstances that have not been placed before the accused cannot be used against him and have to be excluded from consideration.
• Does no answer/evasive or untrustworthy answer by the accused under Section 313, Cr.PC justify conviction?

This question was answered in negative in Nagaraj v. State (Tamil Nadu); (2015) 4 SCC 739, where the Supreme Court observed that the impugned High Court judgement had found answers to be evasive and untrustworthy and accordingly held this as another factor of guilt, however not sole factor.

The Supreme Court clarified the legal position by stating-

“In Parsuram Pandey v. State of Bihar; (2004) 13 SCC 18 the Supreme Court has held that section 313, Cr.P.C. is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused and by way of its corollary, it benefits the court also in reaching the final conclusion and its intention is not to nail the accused but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem as explained in Asraf Ali v. State of Assam; (2008) 16 SCC 328.”

In Sher Singh v. State of Haryana; AIR 2015 SC 980, the Supreme Court stated “refusal to answer any question put to the accused by the court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the court to record a finding of guilt on this score. The burden is cast on the prosecution to prove its case beyond reasonable doubt and once this burden is met, the statements under section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version.”

In the case, the High Court was held incorrect for concluding an adverse inference of guilt by mere non answering or unsatisfactory answer because of what he has stated or failed to state under the examination prescribed under Section 313 of the Code of Criminal Procedure.

• Adverse Inference of the accused- In Phula Singh v. State of Himachal Pradesh; AIR 2014 SC 1256 – (Dr. B.S. Chauhan and S.A. Bogde, JJ.), the court held that the accused has the right to remain silent and not answer or even remain in complete denial during examination under Section 313, Cr.PC. However, such silence and denial could be drawn against him.

False denial of evidence established against him may be used as incriminating evidence against the accused. [Munna Kumar Upadhyay @ Munna Upadhyay v. State of Andhra Pradesh; AIR 2012 SC 2470]

As has been held in  “Ram Naresh and Others v. State of Chhattisgarh; AIR 2012 SC 1357, Munish Mubar v. State of Haryana; AIR 2013 SC 912 and Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150, the court held that the accused has a duty to furnish his explanation under section 313, Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under section 313, Cr.P.C. is being accordingly recorded. However, in such circumstances, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with the law. The option lies that the accused maintains silence coupled with simpliciter denial or, in the alternate to explain his version and reasons, for his alleged involvement in the commission of crime.” – Mahboob Ali, HJS

This is the statement which the accused makes without fear or right of the other party to cross examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. [Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507]

An adverse inference can only be taken against the accused when the incriminating evidence against the said accused is fully established and the accused is unable to present an explanation for the same.  [Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150]

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This article is written by Harsh Vardhan Singh, a student of New Law College, Bharati Vidyapeeth University, Pune. In this article, he aims to explain the misconceptions relating to the Citizenship Amendment Act 2019, which led the Country into Darkness and Chaos.

Introduction

There was a widespread discussion going on in the entire country a few weeks before regarding the government’s citizenship amendment and mostly those who were agitating on various grounds were the ones who have misunderstandings related to the Act. The Citizenship (Amendment) Act, 2019 basically seeks to amend the basic structure of how citizenship could be granted to some illegal immigrants. 

The Act will reduce the long twelve years of residence for getting citizenship of India to fast track six years residence. But there are few requisites to get the benefits of this Act and they are that these illegal immigrants should be of Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities who had fled persecution from the neighbouring countries namely Pakistan, Bangladesh and Afghanistan before December 2014. 

People belonging to these religious communities can get fast track citizenship if they have six years of residence except for Muslims as these countries are Islamic-Majority nations or they have written in their Constitution as being an Islamic State. [1] This Act was enacted into law on 12th December though the protests against the CAA started way before. 

But the nation has witnessed widespread violent protests since it has been cleared in the Rajya Sabha as well. Though the concerns of the protesters vary with different communities and areas, much of the concerns of the protesters ostensibly indicates misunderstandings of the actual words of the amendment and provokes the Indian Muslims. 

The protesters had riled up several recent amendments in the law such as revocation of Article 370 and Hon’ble Supreme Court Judgments such as the criminalization of Triple Talaq and Ram Janmbhoomi verdict in an erroneous way that this nation doesn’t accept Muslims. This kind of feeling which riled up average Indian Muslims in a way against the basic idea of the Constitution was feared by many Jurists, Government and Bureaucrats of the nation as well as of the world.

Legislative Background

The Indian Constitution came into power in the year of 1950 which guaranteed legal rights, powers and duties to all the citizens of India at its commencement. India was neither a part of the 1951 UN Refugee Convention nor the 1967 protocol. [2] All the people who have come to India without proper documentation were treated as illegal immigrants. The Citizenship Act was amended in the year 2003 by the NDA led government which prohibited illegal immigrants from getting Indian Citizenship. 

This bill was further introduced to amend in the year 2016 and was passed in the Lok Sabha. However, it could not be passed in the Rajya Sabha as there was a widespread protest in the North-Eastern states as they feared that this amendment would sabotage their indigenous cultural and political rights. The Citizenship Amendment Bill was introduced in 2016 and a Joint Parliamentary Committee was constituted which submitted its report on 7th January 2019. However, due to dissolution of the Lok Sabha, the bill lapsed. 

The Home Ministry introduced the Bill in the Lok Sabha on 9th December 2019 and it was subsequently passed in the Lok Sabha and the bill was further passed by the Rajya Sabha. Finally, the Citizenship Amendment Bill became an Act under the guidelines given in the Constitution of India on the 12th day of December 2019.

What is the need of the Citizenship Amendment Act?

India has always been a peaceful nation and has always stood on and for the humanitarian grounds of the world. By implementing the Citizenship Amendment Bill it has just cleared the same basic idea of standing for humanity. The darkness of uncertainty and illusion has been evaded from the lives of those persecuted in the name of religion in the neighbouring countries of Pakistan, Afghanistan and Bangladesh who have come to India.

These people came to India with a hope that India will provide the long-awaited justice to them from various kinds of religious persecution since there is no other nation which is ready to accept them. Even though 70 years has passed after the partition of India and Pakistan, violence in Pakistan which is officially an Islamic state, against the Hindu minority who are about 1 percent of Pakistan’s 210 million people does not tend to decrease.

In April, an angry crowd destroyed a Hindu temple, they destroyed the idols and also threw the pieces into an open drain. [3] In May, a Hindu veterinarian was alleged of blasphemy in a town, his shop burned to the ground because he was selling medicine wrapped in Islamic religious text, later it was clarified that it was a rumour. [4] The Pakistan Penal Code, the main criminal code of Pakistan, punishes blasphemy against any recognized religion, providing penalties ranging from a fine to death under sections 295-B and 295-C. [5]

During the time of independence, millions of Hindus were left in Pakistan as they couldn’t move out of the Country and many did not want to leave their homeland when the Colonial rulers divided our country into two parts to create an Islamic nation. They did not want to abandon their homes and businesses. But due to the religious persecution which is befalling the Hindus, is leading many Hindus to rethink the choices and fate that left their families on the Pakistani side of the line in 1947.

In quite a similar way like Pakistan, Afghanistan also uses criminal penalty for punishing blasphemy. The punishments are the harshest of all i.e. Capital Punishment for an act of blasphemy by using Sharia as a justification for that punishment. If anyone speaks against the state-religion in Afghanistan i.e. Islam, though as Afghanistan’s Penal Code of 1976 which addresses blasphemy as “Crimes against Religion” but it leaves the penalty on Sharia and as per the Sharia Law, the authorities have the power to give the death penalty. 

The death penalty can be given to anyone, both male and female i.e. if blasphemy is committed by a person of sound mind then he must be punished with the death sentence. The only requisite for the punishment of blasphemy is that a male should be over the age of 18 years and the female should be over the age of 16. If an accused does not recant within three days, the authorities will award the accused with a death punishment. [6]

The Citizenship Amendment Act will not only remove the tag of illegal migrants from the people of these six communities coming from these neighbouring nations but will also provide them with all legal and constitutional rights by getting Indian citizenship after residing in India for five years, instead of the earlier requirement of eleven years. [7] 

The people who get the benefits of this amended act are the ones who have escaped their country mentioned in the act due to religious persecution and since India has always been a peaceful nation and has always stood for humanity, it was a duty of our country to accept these people who were in minority in their country.

Why has the CAA not included few other minority groups?

The CAA has not included few other minority groups like Tamils from Sri Lanka, Ahmedis Muslims from Pakistan etc. and there have been reasons for that. The Tamils have not been included from the Citizenship Amendment Act, 2019 as this Act aims to heal the wounds of the partition of the six minority communities which are mentioned in the act and provide long-awaited justice to them as they had faced religious persecution in their native countries, where Islam is the state religion. 

The CAA takes into account only religious persecution and not ethnic persecution. The Tamils are not religiously persecuted in Sri Lanka. Though with a way it can be taken into account that the Tamils were mostly Hindus and the Sinhalese were Buddhists but the Tamils are not a homogenous group.

Moreover, if Sri Lanka would have added along with the three countries which are already there in the CAA then the Sinhala Buddhists who are already native and Majority in Sri Lanka would fall under the Bill. This would have caused diplomatic and internal tensions in India.

However, it does not mean that the Tamils from Sri Lanka cannot get citizenship in India. They can still apply for Citizenship via LTV through the Standard Operating Procedure i.e. Long Term Visa. [8]

Muslims are not included in the CAA as these three countries are “theocratic” and “Islamic” states and in an Islamic state, at least those who follow the religion of Islam do not face religious persecution. They might face some other persecution but not religious persecution because the religion of that state is Islam.

Constitutional Validity of CAA

The major change that the Central Government has brought to the Citizenship Act, 1955 through the Citizenship Amendment Act, 2019 is special citizenship provision for people belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christianity communities. This particular change has brought into question the constitutional validity of the gazette, stating it to be in violation of Article 14 (Right to equality). 

The Supreme Court won’t strike out CAA, 2019 for its constitutionality for couple of reasons, one being that the exclusive power to legislate ‘foreign jurisdiction’, ‘citizenship, naturalization and aliens’, ‘extradition’ and ‘admission’ into and emigration and expulsion from India rest with Parliament. 

Moreover, the gazette specifically mentions that the citizenship provision is for ‘aliens’ and not ‘citizens’. Although the Right to Equality mentioned in Article 14 of the Constitution is inclusive of aliens in the present situation the State is fulfilling a moral duty, which is also its exclusive right, to allow refugees, which makes it an exceptional case. This is because Right to equality, in the case of ‘aliens’, would only pertain if it is not subjected to any statute/legislation.

One more reason which strengthens the gazette is that at the time of separation, both India and Pakistan agreed to safeguard the rights of minorities. India, through its amendment, is ensuring those rights by giving citizenship to the persecuted minority groups.

CAA and NRC: Is it related or not?

The citizens of India need to know that CAA and NRC are two very distinct topics. All the concerns regarding the constitutional validity of the CAA began to rise due to conflating the two topics. It did not help any community rather it created a sense of fear among the minorities due to the confluence of these two distinct subjects. On December 17th 2019, the Home Ministry in a very clear statement while clearing the doubts of the citizens stated that CAA has nothing to do with NRC. 

The Ministry stated that since 2004, the NRC has different set provisions as guided under the Citizenship Act of 1950. The provisions govern the process of registration of Indian citizens and the issuance of national identity cards to them. CAA is an act which aims to provide citizenship to the people belonging to Hindu, Sikh, Parsi, Christian, Buddhist and Jain who have fled the three neighbouring countries of India i.e. Afghanistan, Pakistan and Bangladesh to escape from religious persecution on them whereas NRC is aimed at deportation of all illegal immigrants irrespective of their religions. 

Furthermore, there are also a set of different statutory laws which were added in 2003 to the Citizenship Act to operationalize the legal provisions. Whilst CAA grants benefit to the refugees of the mentioned communities who entered India on or before 31st December 2014, on the other hand, NRC will aim at registering those who can show residential documentary proof of before 24th March 1971. 

Religious Persecution: The Case of Asia Bibi

Asia Bibi who is a Pakistani Christian woman was convicted of blasphemy by a lower court of Pakistan. The main issue of her conviction was that there were allegations on her of drinking water from the same container from which other Muslim berry-pickers used to drink water. Due to the orthodox and rigid blasphemy laws of Pakistan, the lower court charged her guilty of blasphemy and awarded her the penalty of a death sentence. 

The matter was challenged in the Hon’ble Lahore High Court but was upheld by the Hon’ble High Court. Various petitions were signed for her release, including one which got four lakhs signs. Various governments of other countries appealed to the Pakistan government for her release. In October 2018, the Apex Court of Pakistan acquitted Asia Bibi citing “material contradictions and inconsistent statements of the witnesses” which “cast a shadow of doubt on the prosecution’s version of facts.” [9] 

Despite her release from the Pakistan Supreme Court, the Pakistani government signed an agreement with a political party of Pakistan constrained Asia from leaving the country. Meanwhile, she and her family had to face countless life-threatening issues. After the rejection of a review petition against the apex court’s acquittal in January 2019, Asia could finally leave Pakistan in May 2019. Asia has since found a safe haven in Canada.

Conclusion

Disagreement and Protest are the two factors that nourish the democracy of a State and their non-existence limits a States’ growth. Although, the roots of these factors also play an important role, as they decide whether the factors will amount to nourishment or form deadlock which further causes self-destruction and harm. Similar can be observed in the ongoing protests. The people on roads believe/are made to believe that CAA is an anti-secular law and hits one specific religion. Now the root of protesting being a misunderstanding will only head towards a deadlock. 

Let alone be the method of protesting as it has and will not show any improvement due to its impasse nature, the only way out is budging the court challenging either CAA’s constitutional validity or Government’s action. But the Chief Justice of India has made it clear that you cannot have things in both ways, either approach the courts or continue with the protests which are peaceful no more.

References

[1] In THE CITIZENSHIP (AMENDMENT) ACT, 2019 NO. 47 OF 2019 (http://egazette.nic.in/WriteReadData/2019/214646.pdf).

[2] In the report by UNHCR Global Appeal 2011, https://www.unhcr.org/publications/fundraising/4cd96e919/unhcr-global-appeal-2011-update-india.html.

[3] In the report by Hindu Newspaper, https://www.thehindu.com/news/international/hindu-temple-vandalised-in-pakistan/article18300913.ece.

[4] In the report in BBC, https://www.bbc.com/news/world-asia-48438333.

[5] In the report by Amnesty International July 1994 AI Index: ASA. 33/08/94,https://www.amnesty.org/download/Documents/184000/asa330081994en.pdf

[6] https://www.refworld.org/docid/48d5cbf4c.html.

[7] In THE CITIZENSHIP (AMENDMENT) ACT, 2019 NO. 47 OF 2019 (http://egazette.nic.in/WriteReadData/2019/214646.pdf).

[8] https://pib.gov.in/newsite/PrintRelease.aspx?relid=108152.

[9] Criminal Appeal No.39-L of 2015 of the Supreme Court of Pakistan; In Mst. Asia Bibi Vs. The State etc.(http://pid.gov.pk/site/news_detail/333).

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This article is written by Vishesh Gupta from Institute of Law, Nirma University, Ahmedabad. This article discusses the importance of renegotiations of contracts in the times of COVID-19.

Introduction

The whole world is currently facing one of the biggest crises in the modern era. COVID-19 has spread all around the globe. The World Health Organisation has declared it to be a pandemic and many countries including India, United States of America, Singapore have imposed extreme measures of “Lockdown”.

The novel coronavirus has severely affected the global economy and commercial market. International trade including export and import, the international movement of people from one country to another and businesses have been effectively stopped for an indefinite time.

In these challenging times, one has to think about the impact of the lockdown on his previously entered contractual obligations. Therefore, this article discusses whether a contract could be renegotiated during this COVID-19 crisis. This article also puts light on the importance of renegotiations of contracts during COVID-19.

Why is there a need for renegotiation of contracts? 

The highest law in any commercial contract is the principle of Pacta Sunt Servanda which means that agreements must be kept and must be performed in good faith. However, because of the COVID-19, the world is in a state of lockdown and supply chains have been disrupted and the demand and supply curve has also been reduced. Any import or export is not allowed.

Businesses have been exposed to heightened risks of legal implications which impacts the small companies and manufactures more severely than the large Multinational Corporations. Even these MNCs are not entirely unaffected.

Global trade and the world economy are in shambles and it has a direct consequence on every individual. In these circumstances, it is difficult to conduct business and fulfil any previously entered contractual obligations.

Therefore, parties to the contract seek to absolve, delay, or alter the terms of their contractual obligations so as to minimise any unjust costs and legal implication. 

Can a contract be renegotiated in the light of COVID-19? 

A contract could be renegotiated when the subject matter of the contract becomes impossible to perform. This is a common law principle also known as the frustration of contraction. Further, parties can invoke the clause of Force Majeure (if it is drafted in a contract).

Generally, a well-drafted contract always contains the Force Majeure Clause so as to save the parties from any unforeseeable loss or liability which involves no fault from the parties. 

Force Majeure Clause

Force Majeure is one of the essential clauses in a contract which protects a party from liability for the failure of performance of the contractual obligations because of unforeseeable events which are beyond the control of the parties. 

For instance, In the case of Peter Dixon and Sons, Ltd. v. Henderson Craig and Co. Ltd. (1919) 2 K.B. 778, British ships were no longer available because of the war for carriage of wood pulp from Canada to Grimsby in England. It was held to be a hindrance to the performance of a contract for delivery of pulp and came within the meaning of the force majeure clause in the contract under consideration in that case. It was held that the boilers were not liable for non performance of shipping pulp.

It has not been expressly mentioned in the Indian Contract Act but it derives its authority from the doctrine of frustration which is mentioned in Section 32 and Section 56 of the Indian Contract Act. 

In the case of Energy Watchdog v CERC, (2017) 14 SCC 80, it was clearly stated that force majeure is governed by the Indian Contract Act. If the force majeure clause is mentioned in a contract, it is governed by Section 32 of the Indian Contract Act. However even in the cases where force majeure event is outside the scope of the contract, it will be governed by Sec 56 of the Indian Contract Act. The latter is known as the doctrine of frustration and will be discussed in the next section of the article.

Force Majeure includes the Act of God, war or war-like situations, labour unrest or strikes.

It is pertinent to note that force majeure and Act of God cannot be used interchangeably. Force Majeure is a broader concept than the Act of God as force majeure includes an act of god and any event which involves human agency unlike events in the Act of God. The rationale behind the Force majeure provision is to protect a party from the consequences of a breach of contract on which the party has no control.

Whether COVID-19 is covered under Force Majeure?

There is no universal answer to this, but Indian and Chinese governments have answered this in affirmative. The legislative body and the judiciary of China have effectively categorized COVID-19 outbreak Corona under Force Majeure. The China Council for the Promotion of International Trade issued over 1,600 ‘force majeure certificates’ to Chinese companies in February. 

In India, the Department of Expenditure, Procurement Policy Division, Ministry of Finance issued an Office Memorandum on Feb. 20, 2020, in relation to the Government’s ‘Manual for Procurement of Goods, 2017’. The Memorandum has effectively stated that the COVID-19 outbreak could be covered by a force majeure clause. 

Also, in some cases, the question of whether pandemics, in general, could be covered in force majeure can be answered by expressly including pandemic in Force Majeure clause of the contract. In cases of contract law, a well-drafted contract is essential. Every liability and responsibility is determined based on what is written in the contract.

It may be general in nature where the Force Majeure clause is included in the contract but has not been defined in specific terms. On the other hand, the exact scope of Force Majeure has been expressly written. Proving pandemic as a force majeure event is more difficult in the case where the clause of Force majeure is not defined in specific terms. 

Doctrine of Frustration 

Even if a contract does not contain the Force Majeure clause, parties to the contract can rely on the common law doctrine of frustration as Force majeure derives its authority from this doctrine. 

The doctrine of frustration is embodied in Section 56 of the Indian Contract Act which states that if an act becomes impossible to perform the contract shall be deemed void. 

The court, in the case of Satyabrata Ghose v. Mugneeram Bangur and Co., stated that if the event was outside the anticipation of the contract, Section 56 of the Indian Contract Act would apply and render the contract void even if no implied or express provision regarding Force Majeure was present. In this case, Satyabrata(plaintiff) sued the defendant for wrongfully repudiating the contract of developing the land. Defendant took the defence of frustration as the land which needed to be developed were temporarily requisitioned by the Government under the defence rules for an unspecified period of time. The court declared that the contract had not become impossible to perform as the circumstances of war were known to the parties and the reasonable time in which the contract was to be completed was not mentioned.

What things are to be taken care of before enforcing force majeure?

1. Duty to Mitigate- The provision of Force Majeure has been misused in a plethora of cases as a means to escape the contractual obligations. The party invoking the exception of Force majeure has the burden of proof to show that there were no reasonable measures to mitigate or avoid the consequences of the force majeure event. 
2. Notification requirement- Force Majeure clause contains a time-bound notification requirement. Such provisions are enforceable, and so complying fully with all notice requirements will be important for parties seeking to invoke the exception of force majeure.
3. In cases of the renewable energy sector, companies claiming for time extension shall submit an application to Solar Energy Corporation of India Ltd (SECI) or other implementing agencies. Companies also have to provide all evidence in support of their claim and on reviewing all the evidence, agencies may grant Extension of Time.
4. Defence of economic hardship is not adequate to invoke frustration of the contract. The doctrine of frustration does not relieve a party from performing their contractual obligation simply because the force majeure event has made the performance more difficult or expensive.

Benefits of Renegotiations

The circumstances at the time of the formation of the contract are always fluctuating and sometimes the unexpected events change these circumstances in such a way that the execution of the contract in the new conditions, without the adjustment/renegotiation of contract, makes the performance extremely difficult and unbearable. 

The rapid spread of COVID- 19 around the world was not reasonably foreseeable by anyone. So, any contractual obligation or performance of a contract that seemed possible in December 2019 and January 2020, is now almost impossible to perform because of the complete lockdown.

Breach of contract is justiciable in a court of law and may cause unjust losses to the parties. Renegotiation is an effective way of modifying various aspects of a contract which is more suitable to the prevailing situation of the market and the world in general. 

Looking at the current developments of COVID-19 in India and the rest of the world, there remains huge uncertainty about when the normalcy will prevail again. So any contract, whose performance is due now or in a foreseeable future should be considered for renegotiation of the terms of the contracts. 

Remedies for Force Majeure Event 

The wordings of the contract would determine the future course of Action when the Force Majeure event takes place. 

1. Termination of Contract: Parties may terminate the contract in toto or suspend only a few clauses of an agreement. 
2. Freezing of contract: Some parties may decide to put on hold the contractual obligations until the force majeure event is over.
3. If the force majeure event is prolonged, a clause of termination will be enforced in a certain period of time as prescribed in the contract. 

However, this is not applicable in all cases. For instance, for a contract in which perishable goods are the subject matter, freezing or prolonging the contracts is not reasonable. 

Scope of Re-negotiation clause in contracts 

The concept of renegotiation tries to uphold the principle of pacta sunt servanda. Scope of Renegotiation can be found in the terms of the contract itself. There may be a clause of renegotiation which specifies in which circumstances can the contract be renegotiated. Renegotiation clauses include cancelling/absolving the contract, delaying the obligations till future notice when the contract could be enforced. 

Renegotiation may also exist in different clauses like material adverse change clauses, to limit or exclude liability for non-performance, price adjustment clauses, limitation or exclusion clauses etc.

Material adverse change clauses state that if the status of the subject matter or the status of the parties has adversely changed since the time when the contract was entered, the contract will be deemed to be void. This clause is commonly found in acquisition, merger and lending agreements. 

These clauses provide flexibility to a contract and the main reason for the inclusion of these provisions is to ensure that parties do not face losses and that the contract could be performed, not as originally agreed, but in such a manner as to reduce risk of losses and legal implications.

Renegotiation for different subject matters

In the current scenario, renegotiation shall differ for contracts involving different subject matter. It is important for a party to a contract to decide whether they want to absolve the contract altogether or they want to prepone or postpone the commitment.

1. Essential commodities: As we all are in the state of lockdown, the supply of essential commodities like groceries and medicines are very important and therefore, the contracts of supply of these commodities shall not be absolved. The terms of the contract regarding the time period, jurisdiction covered, mode of performance and consideration can be altered. This is more applicable to those vendors who don’t have a huge supply chain. 
2. Renewable Energy: The government is offering leniency in the renewable energy sector as the renewable energy sector can cite COVID-19 as the force majeure to delay the projects. This is because this sector may face project delays because of COVID-19, which could prove fatal to the country’s flagship 175GW target for 2022.

Absolving the contract in toto should be used in those cases only where the performance cannot be possible for a foreseeable future and in the cases where the time of performance of the contract is of the essence and non-performance at the stipulated time will lead to non-recoverable losses.

Effects of force majeure certificates issued by Chinese government 

The certificates will no doubt be beneficial to chinese companies in the domestic market, but these certificates might not hold up at the global stage as other countries have strict terms for claiming Force Majeure. 

Further, many companies in China have contracts that call either for disputes to be adjudicated in jurisdictions other than the Chinese courts or arbitration forums or to apply laws other than China’s. Outside China, the legal value of those certificates is unknown. 

Conclusion

The crisis that humanity is currently facing has no end date confirmed. No vaccine has been created and the virus is spreading like wildfire. Determining the date when the world will return to normalcy seems implausible. This puts uncertainty in most of the contracts which are currently impossible to perform and this ultimately affects the parties as non-performance leads to losses for the parties involved in a contract.

However, a well-drafted contract can save a party from losses. A well-drafted contract is a contract that anticipates any loss that parties might incur and also don’t put any additional burden on the parties.

Contracts should have the force majeure and renegotiation clause as it provides more flexibility to the contract. In these uncertain times, a contract should be renegotiated in such a way that it becomes possible to perform in these uncertain times.

The role of advocates is of great importance for renegotiating contracts. The intricacies of a contract could be understood by an advocate and he can guide the parties towards amicable discussions for renegotiations. It is advisable to keep an open mind during renegotiations so that parties could make the best of the worst situations.

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This article has been written by Ishaan Banerjee, studying at Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article explores the benefits of AI and its applications in environmental law and policy.

Introduction

We all must have heard about artificial intelligence or AI. AI is the latest game-changer in the field of technology. It has a wide ambit of applications across different fields, ranging from daily household chores to performing quantum level calculations and gathering data that otherwise cannot be gathered easily by humans. In our world, where the environment is being damaged by the use of fossil fuels and ecosystems are being destroyed, one can certainly wonder whether AI would be able to prevent such large-scale destruction of the environment. So how would AI be applied in such instances? This article would provide an insight into such questions.

What are the benefits of using AI?

AI could basically be defined as a mimicry of a human being’s intelligence by a machine. A human’s cognitive functions such as learning or problem solving are copied by the machine. Therefore, one might also define AI as a machine that has the ability to think and solve problems on its own. 

This ability of AI could be of various benefits to humans such as:

• In general, AI would help people to perform better at their jobs and would increase human efficiency, while cutting down costs at the same time by eliminating unnecessary processes. 
• Menial and small tasks such as answering emails and data entry jobs would be taken over by AI. The tasks performed by the AI would be quick and precise and it would save the time. A few examples of AI from our daily lives include search engines, face recognition software and computer chess where your opponent is actually an AI. However, these forms of AI are known as narrow AI since they perform only select narrow tasks. The face recognition software can only recognize human faces and not cars or animals.
• Although the AI being used now, is narrow, its applicability is still ever-expanding. It can be used in healthcare, the automotive industry, finance and economics, cybersecurity, law and many other fields. It can be used to collect various kinds of data that otherwise humans cannot normally collect, or find it extremely difficult to collect.

How is the Legal Field using AI? 

Before this article begins with the applicability of AI to environmental law, it shall explore the AI applications to the law in general:

• AI has not yet deeply penetrated the legal field. However, it will be present in future legal jobs and the legal professionals who embrace AI would be benefited. That is why lawyers must keep up with the technology of their times. 
• Legal Research: Legal research would completely be changed through AI. The AI used in search engines, particularly in legal search engines like Westlaw, would become more advanced and capable of conducting legal research and getting precise results in a matter of seconds, and it has already begun doing so. This task if done by a lawyer would take longer. Therefore, AI in legal research has cut down the costs and resources used in legal research and would be devoid of any human errors. Nowadays, legal tech startups like NearLaw, CaseMine, etc are making Natural Language Processing (NLP) based applications to go beyond simple keyword-based research. 
• Client service: AI is making client service more economical, efficient and innovative. Legal solutions are provided to clients after carrying out predictions on judgments through case analysis run by AI software to increase the chances of success in a case. Firms can implement a performance-based remuneration for lawyers where they would be paid according to their performance and not according to the billable hours. 
• Brand value of firms: AI also helps to establish the brand value of a firm by providing smart legal solutions and better connectivity with clients and other stakeholders across the globe in a way that serves them better. 
• Contract drafting and review: AI has the ability to draft and review contracts and perform due diligence related tasks in the future. A program called ‘Contract Express’ uses a question-answer form to draft a contract through a given set of coded instructions. Contract review through AI is already being done quickly and correctly, where there are no errors involved. Thus, we can see that the firms using advanced technology would have an edge over others. 
• Prediction Technology: AI can be used to analyse arguments, past judgments and even the reasoning of a judge in deciding cases. The AI could even predict the outcome of a case by analysing past judgments and giving a probability. This would help a lawyer to understand how to exactly frame the arguments, and give him an insight into the judge’s mind.
• Legal Analytics: AI helps to provide and point out important questions and issues of law in a case and can provide accurate case law and precedent for use.
• Legal Documentation: AI can help lawyers to prepare legal documents within a matter of minutes. 
• Intellectual Property: Management of IP portfolios is much easier with AI. Registration of trademarks, copyrights, etc, is much easier and quicker, being performed by AI software which would not require the lawyer to go to the Registrar to get it registered.   

AI might also have many more uses that will be seen in the near future. There is a general notion among people that AI may be a threat to jobs. From a legal perspective, AI probably will only completely replace data entry jobs. The main aim of AI would be to make lawyers’ work easier and more efficient.

AI in Environmental Law and Policy

Applications of AI in different fields of Environmental Law and Policy:

Climate Change

• In India, climate change has wreaked havoc, by changing weather patterns that farmers had previously relied upon, to grow their crops. With the changed weather patterns, the farmers can no longer use traditional methods to grow their crops and need to innovate and devise new methods, timings, etc, of harvesting crops. With AI, weather forecasts have been made more accurate and this could help farmers grow crops in favourable conditions. In Andhra Pradesh, an AI has helped to get a 30% higher average yield per hectare. 
• The Intergovernmental Panel on Climate Change (IPCC) uses prediction models to forecast climate patterns. Each model is taken into account and the range of predictions is averaged out. This means that each model is given equal weight. AI takes those models which are predicting more accurately than the others and gives added weightage to them, therefore making better climate predictions. AI can predict weather patterns and extreme weather events because it takes into account real-world data and factors which are otherwise very difficult to collect such as atmospheric, oceanic dynamics and chemistry and many more.
• Through accurate and timely predictions of weather and climate patterns, we might be able to prevent large scale destruction and loss of life due to natural disasters like cyclones and droughts, etc. Our disaster response and management systems may get strengthened and we would also be able to study why a particular cyclone behaved the way it did and what we can do to prevent dangerous future cyclones.
• AI can also be used to reduce the amount of carbon emissions through smart energy usage and can make the use of renewable energy a matter of a future household’s daily life. AI aims to incorporate renewable energy into entire grids by which entire cities will be powered, thus reducing the need for fossil fuels.  An example of smart energy usage is that wind companies have been generating more electricity per rotation from each turbine propeller by incorporation of real-time weather and atmospheric data. In Berlin, the WindNODE project uses AI to control a household’s heating. The house has sensors, which work by increasing the heating when there are residents in the house, and by decreasing it when there are none. Thus, smart energy management will help in reducing harmful emissions and pollutants.

Air Pollution 

• Air pollution is a widespread problem across the world. It is something which directly harms the health of humans. In China, which has some of the most polluted cities in the world, IBM set up its Green Horizon project which uses AI technology to track air pollution levels, forecast air pollution levels, and track the sources of such pollution and provide potential solutions to deal with it. It could deal with potential questions like whether to restrict the number of drivers on the road or whether to close particular power plants, something that would take humans a lot of research and time to answer. Many other such models are being developed which can reduce the emission of air pollutants through safe and smart energy use. Thus, the benefit of AI applications in environmental policy primarily lies in deep data collection and analysis.

Species and Habitat Protection

• In China, the World Wide Fund for Nature (WWF) has used an AI to evaluate thousands of photos to sort out tiger photos that had been taken using automatic photo traps. This system of sorting out the tiger photos is way more efficient and time-saving than people going through the thousands of pictures. It also helps in tracking a particular tiger through image recognition and analysis of the stripes of the tiger, which cannot be done by people. This would help to keep track of the tiger’s movements and protect it from poachers. Furthermore, there will not be the need for tranquilising and attaching a radio collar on the tiger. This task of identification of species is very difficult since the jungle is usually thick and densely covered with vegetation. Further, in rainforests, the canopy is so thick that it is very difficult to spot an animal from above, let alone recognize a species. Here, AI is useful in obtaining high-resolution images and processing them to make them clear.
• AI may also be used to provide habitats for animal and plant species. German researchers and scientists plan to develop ‘weather stations’ for biodiversity to provide better protection to plants, insects, birds and perhaps even large animals. 
• A project called Protection Assistant for Wildlife Security (PAWS), started by the University of Southern California has been using past crime records to predict where future poaching may take place. The algorithm analyses the past poaching records, taking into factors such as location, timing, ranger patrols at that particular time, and then accordingly notifies the rangers to patrol a particular area. With the provision of real-world data, the effectiveness of the machine would improve.   
• AI has the capacity to possibly manage and monitor ecosystems. For example: in Washington, Long Live the Kings, an environmental protection group, is trying to increase the salmon and steelhead population. Supported by Microsoft, they have implemented the use of an AI to monitor and manage marine ecosystems, track the movements of marine species, ensure availability of food for the species and observe and study the behaviour of these species. This will help improve hatchery, harvest and ecosystem management and also help to protect these ecosystems. 

Sustainable Development

• One of the most important issues in our world is sustainable development. Sustainable development has been defined as development in such a way that the needs of the present generations are fulfilled, while not compromising on the needs of the future generations, while at the same time sustaining the environment. Energy wastage is certainly an important aspect of sustainable development, which this article has already explored. The Sustainable Development Goals are a set of 17 goals, ranging from zero poverty to climate action. AI is already helping in setting up sustainable transport systems in Pittsburgh, where sensors have been deployed under an AI system which adjusts traffic lights according to the flow of traffic. This not only helps prevent traffic jams but also helps to limit vehicular pollution by reducing idling by 40%. In the future, autonomous AI-driven vehicles using renewable energy sources like electricity may completely replace the cars of today.
• AI may also revolutionize agriculture. Sensors placed in the field help the AI to monitor the soil composition, fertility, moisture and temperature so that the correct crop can be grown with the correct type of soil. Accordingly, the AI can also help the farmer by giving instructions regarding the best time to water and harvest crops. This will immensely benefit farmers, as they will be unlikely to run into heavy losses. In a country like India, where agriculture takes up a huge part of the people’s livelihood and the GDP, this AI could literally help transform the economy and the lives of these farmers. This may indirectly lead to bumper crops and AI may also help in the efficient allocation of food crops and resources among the people so that the second Sustainable Development Goal (Zero Hunger) is achieved. 
• AI can also reduce food wastage, where the aim is to bring all stakeholders in the food product production, distribution and marketing process together to prevent large scale wastage of food. The REIF project (Resource efficient, Economic and Intelligent Food Chain) aims to achieve exactly this by working on strict product safety requirements, low agriculture predictability, product specific conditions for food processing, etc. 
• AI can help in building entire smart cities where households and industries use smart energy consumption methods and real time data. They can help create a city which can effectively manage disasters through simulations, building ordinances and floodplains using real world data. An urban dashboard might be created for compiling all the available information on energy and water use, topography, demographics, etc. For example: IBM plans to develop a system for smart cities to deal with heat waves, where the AI would run simulations of heat waves in urban areas and find out which areas are impacted severely and accordingly, devise strategies. 
• If AI can help in preventing air pollution, it can help in cleaning the oceans as well. It can monitor and manage marine ecosystems, shipping routes, ocean mining activities, and fishing. AI can follow the spread of invasive species, track large quantities of waste discharged in the oceans, monitor ocean currents and measure pollution levels. It can be used to conduct analytical studies on marine based industries like fishing and oil rigs and can be used to research as to how it affects the marine ecosystem and how the sustainability of both the ecosystems and the industries can take place. 
• In the near future, where the demand for sustainable and environment friendly goods could be high, the businesses which produce these kinds of goods would be able to survive. Blockchain technology, consists of data records that is managed by many computers, could help to compile data on which goods are sustainable or not. Using these emerging technologies, sustainable, cost-effective products could be widely bought and sold. 

 Environmental Compliance 

• In many countries, companies and industrial plants may get away with committing breaches of environmental law, probably because environmental compliance authorities cannot adequately and efficiently allocate resources for checking these plants and corporations. 
• In the US, there is a specific problem on the proliferation of the large-scale, concentrated animal feeding operations (CAFOs) which are believed to cause a substantial amount of air pollution. This proliferation has occurred primarily because environmental authorities need to give permission for operations that actually cause pollution, but not for those operations which have the potential to cause pollution. Furthermore, these operations are difficult to spot and no authority has any official count of the number of such operations across the country. Stanford researchers have been using AI to conduct analysis of images captured by drones and satellites to recognise these CAFOs using image analysis of the barn size and shape and dry manure storages. The researchers have stated that this technology could recognise 95 percent of the CAFOs using fewer than 10 percent of the resources employed to identify them manually. Therefore, AI can allow for efficient resource allocation. 

Risks of Artificial Technology

Although AI might have many applications in environmental law According to the World Economic Forum, there are six risks related to AI use in environmental law and policy:

• Performance: AI might give inaccurate or undesirable conclusions as its conclusions might not be understandable to humans. This could be risky for applications which deal with disaster prediction and management where more certainty is needed.
• Security: There are possibilities of AI systems being hacked, which can cause interference with energy, natural disaster and other systems.
• Control risks: Since AI systems communicate autonomously, this can lead to unpredictable results. For example: two AI systems were communicating in a language that researchers did not understand.
• Economical risks: The economy will become more digitized and technologically dependent in the future. Businesses slow to adapt to technological evolution will be left behind.
• Social risks: AI will probably replace a lot of jobs and make them automated. AI enabled weapon systems will also have the potential to cause large scale destruction which could also impact the environment.
• Ethical risks: AI uses assumptions in its analysis, therefore it can lead to biases in data. 

Conclusion

AI has the potential to change human lives and the environment. It has a large number of applications and this number will increase in the future and has immense benefits. However,there would be some flaws in AI; there might be data biasness issues, and the data might not always be accurate, but that would not undermine the immense benefits offered by it. This is exactly why AI would not fully replace the jobs of environmental lawyers and policy makers since the analysis of data would always require human judgment since it applies to society as a whole and one needs to measure the impact such technology will have on the society.

References 

[1] https://hackr.io/blog/benefits-of-artificial-intelligence

[2] https://en.wikipedia.org/wiki/Artificial_intelligence#Basics

[3]http://www.legalserviceindia.com/legal/article-631-impact-of-artificial-intelligence-on-indian-legal-system.html

[4] https://www.thelawyerportal.com/blog/artificial-intelligence-law/

[5] https://www.ciiblog.in/technology/artificial-intelligence-in-indian-agriculture/

[6] https://blogs.ei.columbia.edu/2018/06/05/artificial-intelligence-climate-environment/

[7]https://www.tuev-nord.de/explore/en/reveals/five-ai-applications-for-environmental-protection/

[8]https://law.stanford.edu/stanford-lawyer/articles/using-ai-to-improve-the-environment/

[9] https://blogs.dal.ca/melaw/2019/01/14/the-future-of-environmental-law/

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This article is written by Paridhi Dave, a student at the Institute of Law, Nirma University. This is an exhaustive article which deals with the intricacies of the Juvenile Justice Board.

Introduction

The Juvenile Justice (Care and Protection of Children) Act, 2015 (Hereinafter JJ Act, 2015) is a new legislation which repeals the Juvenile Justice Act, 2000. One of the primary reasons for the introduction of this act was to address the commission of heinous offences by juveniles aged 16-18. This development comes after the infamous Mukesh & Anr. vs. State of NCT of Delhi and Ors. (Nirbhaya case). Traditional criminal law labelled offenders as ‘delinquent or neglected children’ and proceeded to punish them as criminals but the new law aims at reformative justice for the convicts. 

The primary focus of this Act is on the procedural aspect, with regard to pendency in cases, accountability of the functionaries, etc. It has also highlighted the categories of ‘child in conflict with law’ under Section 2(13) and ‘child in need of care and protection under Section 2(14) of the Act.

The Indian Constitution envisages a welfare state, where the children would be free from abuse and exploitation. The Act derives its constitutional legitimacy from Article 15(3), Article 39(e) and 39(f), Article 45 and Article 47 of the Constitution of India, 1950. These provisions empower the State to ensure the protection of basic human rights and needs of all children. Further, the Act also aims to achieve the objectives laid down in the United Nations Convention on the Rights of the Child, 1989, which was ratified by India in 1992. The National Policy for Children, 2013 and the National Charter for Children, 2003 take this view of child welfare as well. 

In this Article, the intricacies of the Juvenile Justice Board under the Act, 2015 has been discussed.

Juvenile Justice Board

The Juvenile Justice Board is an institutional body constituted under Section 4 of the JJ Act, 2015. According to the division of powers, the subject of administration of criminal justice has been included in the State List (List II, Schedule VII) of the Indian Constitution. Therefore, one or more than one Juvenile Justice Board(s) are established by the State Government for each district. The Board exercises its powers and discharges functions relating to the ‘child in conflict with law’ as has been defined under Section 2(13) of this Act.

Section 4 begins with the ‘saving clause’ which means that an overriding effect over the Code of Criminal Procedure,1973 has been given to this provision. It means that in spite of the provisions mentioned in the Code, the particular clause (S.4 here) would have a full operation. Therefore, S.4 is an enabling provision. The ‘notwithstanding clause’ has been discussed in the case of Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram (AIR 1987 SC 117). 

Under Section 7 of the Act, the procedure in relation to the Board has been laid down. The Board shall meet and carry out transactions of business as may be prescribed. It is the duty of the Board to ensure that all procedures are child friendly and the venue is not intimidating. If a difference of opinion arises among the Board members in the interim or final disposal stage, then there are two options:

Either the majority opinion will prevail or if there is no majority, then the opinion of the Principal Magistrate will prevail.

In those circumstances when the Board is not sitting, a child in conflict with law may be produced before an individual member.  Further, the Board can pass orders even if any Board member is absent and such orders cannot be held invalid by the only reason that any member was absent during any stage of proceedings.

Constitution

The constitution of the Board has been defined in Section 4(2) of the Act.

Composition of Bench under Juvenile Justice Act, 2015

1. Metropolitan Magistrate or Judicial Magistrate First Class (Principal Magistrate herein) [not being Chief Metropolitan Magistrate or Chief Judicial Magistrate]

-Experience Required: 3 years.

2. Two social workers (one being a woman)

-Experience Required: Active involvement for 7 years in health, education or welfare activities pertaining to children; OR 

-A practising professional with a degree in child psychology, psychiatry, sociology or law. 

It was held by the Himachal Pradesh High Court in the case of State of Himachal Pradesh vs. Happy (2019 SCC OnLine HP 700) that judgment passed by a single member of the Juvenile Justice Board is void ab initio. In this case, the impugned order was passed by a single Magistrate, without fulfilling the criteria of the composition required for the functioning of the Juvenile Justice Board. Therefore, the order was set aside.

Powers granted to Juvenile Justice Board

The Bench shall have all the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or a Judicial Magistrate First Class.

Eligibility Criteria for Selection as Member of Juvenile Justice Board

Under Section 4(4) of the Act, the eligibility criteria for selection as a Board member has been listed down. It has been defined in a negative manner.

The person will not be eligible if they:

• Have any past record of violation of human rights or child rights;
• Were convicted of an offence which involved the ground of moral turpitude + such conviction has not been reversed or has not been granted pardon;
• Were removed or dismissed from the services of:

• Either the Central Government or the State Government
• An undertaking/ corporation owned or controlled by the Central Government or the State Government

• Have ever indulged in the acts of:

• Child abuse
• Child labour
• Any other violation of human rights or immoral act

Training for Members of the Juvenile Justice Board

Under Section 4(5), the onus of sensitizing and providing training to all the Board Members lies on the State Government. It is to be ensured that the induction training is provided within a duration of 60 days from the date of appointment.

Term of Office for Members of the Juvenile Justice Board

Under Section 4(6) of the Act, the tenure of office for the Board members and the manner in which they may resign has been discussed.

Termination/Disqualification of Members of the Juvenile Justice Board

Under Section 4(7) of the JJ Act, 2015 – the appointment of any Board member, except the Principal Magistrate, may be terminated post an inquiry by the State Government if they: 

• were found guilty of misuse of power bestowed upon them under this Act; or
• failed to attend the Board proceedings consecutively for three months without valid reasons; or
• failed in attending less than three-fourths of the sittings in a year; or
• Have become ineligible under sub-section 4 during their tenure as a member.

Placement of Persons

The Placement of Persons under the JJ Act, 2015 has been divided into two categories in accordance with Section 5 and 6.

Procedure followed by the Magistrate who is not empowered by the Act

The procedure to be followed in these cases has been listed down in Section 9 of the Act:

1. If any Magistrate who does not have the power to exercise the powers of the Board under this Act, believes that the alleged offender brought before him is a child, then he shall, without any delay:

• Record such opinion; and
• Send the child immediately to a Board having jurisdiction, along with the record of such proceedings.

2. If any alleged offender claims before a Court other than the Juvenile Justice Board, that when the offence was committed:

• He/she is a child;
• He/she was a child.

               OR

If the Court is itself of the opinion that the person was a child when the offence was committed, then the Court shall take the following steps:

• Make an inquiry;
• Take evidence which is essential for determining the age of the person, but this does not include affidavits.
• Record a finding on the matter, which states the age of the alleged offender.

PROVIDED THAT,

Such a claim can be raised before any court and can be recognized at any stage – this includes the stage of final disposal of the case and even after the final disposal.

The claim will be determined according to the provisions of this Act and the rules made thereunder, even if the person has ceased to be a child – on or before the date of commencement of the Act.

3. If the Court concludes that the person who has committed an offence was a child when the offence was committed, then it shall send the person to the Board for passing appropriate orders and sentence in the case. Further, if any orders or sentences have been passed by the Court, the same will be deemed to have no effect on the person.

4. If it is required under this section, that a person should be kept in protective custody, during the process of inquiry regarding the person’s claim of being a child, then the person should be placed in a place of safety.

Powers

The Board constituted for any district shall have the power to deal exclusively with the proceedings under the Act:

• In the area of jurisdiction of the Board,
• In matters relating to children in conflict with the law.

These powers may be exercised by the High Court or the Children’s Court, when proceedings under Section 19 come before them or in appeal, revision or otherwise. It was held in the case of Hasham Abbas Sayyad vs. Usman Abbas Sayyad (2007) 2 SCC 355 that an order passed by a magistrate beyond his jurisdiction would be considered void ab initio.

When an alleged child in conflict with law is produced before the Board, it shall exercise its power to hold an inquiry according to the provisions of this Act and may pass orders as it deems fit under Section 17 and 18 of the JJ Act, 2015. 

The Board is also empowered to inquire into heinous offences under Section 15 of the Act. Such preliminary assessment has to be disposed of within a period of 3 months from the date of first production of the child before the Board.

In the case of Puneet S. vs. State of Karnataka (2019 SCC OnLine Kar 1835), the Karnataka High Court held that only the Juvenile Justice Board has the power to decide whether an offence committed by a juvenile is heinous or not.

Functions

Any child who is in conflict with law cannot be kept in police lock-up or jail under any circumstances. The Supreme Court said that Juvenile Justice Boards should not be ‘silent spectators’, in the case Re: Exploitation of Children in Orphanages in the State of Tamil Nadu vs. Union of India and Ors.

Conclusion

In traditional law, the offenders were dealt with in a strict and harsh manner. The practice of jailing the juveniles with hardened criminals led to further trouble and disintegration of society. 

There are several factors behind the involvement of children in criminal activities, such as poverty, unemployment, broken families, lack of parental control, etc. The new legislation provides a response to these factors through the procedure of reformative justice.

It acknowledges the fact that children require special care and protection instead of treating them in the same manner which led to their engagement in criminal activities.

The Juvenile Justice Board aims to deal with such children in conflict with the law in the best possible manner so that they can be integrated into society as a contributing member at a later stage.

References

• https://shodhganga.inflibnet.ac.in/bitstream/10603/21219/1/10%20chapter-3.pdf
  

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This article is written by Karan Jayesh Shah, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “5 most common Contracts executed by Real Estate or Housing Complex Developers and Financiers.”

Introduction

The Indian Contract Act, 1872 defines the term “Contract” under its section 2 (h) as “An agreement enforceable by law”. In other words, it is a legally binding agreement between two or more parties that creates legal mutual obligations. It can be either an oral or written contract. However, a written contract should be preferred over the oral contracts as they are easy to enforce. A real estate contract is a legally binding agreement between two or more parties for exchange, purchase, or any other type of real estate transaction. This document outlines the terms agreed upon after negotiations have ensued. 

There are different types of contracts that are signed and executed between the parties depending upon the nature of the transaction, service requires, etc. When it comes to the contract executed by real estate/housing complex developers and financiers, the following are the most common types of agreement executed between the parties:  

1. Joint Development Agreement 
2. Tripartite Agreement
3. Loan Agreement 
4. Construction Loan Agreement 
5. Option Agreement

Let us discuss each of the agreements in detail.

• Joint Development Agreement 

Joint Development Agreement is a contract between two or more parties wherein the landowner provides the land and the developer constructs the building on it. The real estate project is carried on by the developer on the landowner land. It would be the responsibility of the developer to obtain approvals, launch and market the project. 

The developer could in lieu of land provide the landowner with certain % of sales revenue of the project, certain % of the newly constructed project and lump sum consideration, depending upon the terms and conditions mutually agreed in the agreement. 

The benefits of entering a joint development agreement is that risk is mitigated, no primary funding is required in the procurement of the land, partial avoidance of stamp duty.

This agreement is very much in use when it comes to land development and in the real estate sector because it’s a win-win situation for both the parties as the resources and efforts of the developer and the landowner are fused together so as to bring maximum productive result post-construction.

The Joint Development Agreement outlines the terms, such as confidentiality, transfer of rights, title and interests of the land and building, duration of the agreement, security deposit, representations, declarations, covenants and undertakings by the landowner and the developer, expansion and development of the property, insurance, force majeure, termination, consequences of termination, waiver, exclusivity, indemnification, intellectual property rights, settlement of disputes, limitation of liability.  

The Supreme Court of India has recently laid down in Bunga Daniel Babu v. M/s Sri Vasudeva Construction that a landowner who entered into a Memorandum of Understanding with a builder for development of his land by construction of a multi-story building, will be deemed to be a consumer within the definition of Section 2(1)(d) of the Consumer Protection Act, 1986. 

• Tripartite Agreement

Tripartite Agreement involves three parties to the agreement i.e. seller/developer, buyer/borrower and financial institution/lender. It is usually executed when the home buyer is in the need of money to complete the transaction with the developer. The financial institution comes into the picture wherein they lend money and if the borrower is not able to repay the money then the property would belong to the financial institution, which the home buyer can’t deny and have to accept them as a new owner of the property. 

All the copies of the original documents need to be attached to the tripartite agreement and this agreement is of utmost importance, especially when the home buyer is buying an under-construction property. 

The tripartite agreement needs to be stamped in the state where the property is situated.

It is the obligation of the developer to set out in the tripartite agreement that the property has a clear title. Furthermore, it should also mention that the developer has not entered into any other or new agreement for the sale of the said property with any other party. 

The details that should be mentioned in the tripartite agreement are: the parties involved in the agreement, objective, possession date, construction details-its stages and progress, rights and remedies, legal norms, borrower’s, bank’s or lender’s or developer’s perspective, final selling price, interest rate, EMI details, as well as details of penalty if the booking gets cancelled.

In the Union of India vs. M/s. D.N. Revri & Co. and Ors., Justice P.N. Bhagwati, observed that the meaning of commercial contracts should be gathered by adopting a common sense approach and it must not be allowed to be thwarted by a narrow, pedantic, legalistic interpretation.

• Loan Agreement 

Loan Agreement is between two parties’ i.e. borrower and lender. When associating the agreement with the real estate sector, it could be in the form of a mortgage loan agreement, real estate loan agreement, simple loan agreement, etc. wherein the borrower could be an individual or trust or corporation and the lender could be a non-banking financial institution [NBFC] or a financial institution.

Prior to entering into a loan agreement, the “borrower” first makes representations about his affairs surrounding his character, creditworthiness, cash flow, and any collateral that he may have available to pledge as security for a loan. These representations are taken into consideration and the lender then determines under what conditions (terms), if any, they are prepared to advance the money.

Only after the execution of the loan agreement, the money is provided by the lender and on failure to repay the money; the security kept with the lender in the form of mortgage is considered as a payment.

It is important to set out all the details explicit in the agreement with regards to the duration of the loan agreement, repayment method i.e. on-demand or in instalments, obligations and rights of the parties, what all action are covered under indemnification by which party, interest rate, the value of collateral involved, guarantees, what shall be considered as default/breach, consequences of default/breach, etc.  

• Construction Loan Agreement 

The Construction Loan Agreement is a legally binding contract between two parties’ i.e. borrower and lender wherein for carrying out the work of construction of the building or for funding of construction project, a short term loan is taken from the financial institution or from non-banking financial institution by the developer of the building.

After entering into the agreement, the borrower needs to pay back the loan amount with interest. The amount can be paid back in instalment or lump sum depending upon what has been mutually agreed by the parties in the agreement. 

The Construction Loan Agreement shall include among other things, construction financing terms that establish how the loan can be drawn based on construction progress, the calculation and imposition of interest and fees based on outstanding loan amounts, obligations and rights of the parties to the contract, duration of the contract, what shall constitute default/breach, the consequence of default/breach, what would be the governing laws, what all actions are covered under indemnification by which party, and the usual provisions found in a corporate or real estate loan agreement. 

• Option Agreement

The Option Agreement will give the right to the party to the contract to the first chance of purchasing a specific piece of property at a specific price at some future date. It is a legally binding agreement between the buyer and seller which is legally enforceable by law. This type of agreement is most commonly used for real estate but can be used for other things, as well. Investors can use real estate option contracts to secure high-profit investments at relatively low risk.

Traditionally, the seller has the right to decide whether to sell their property to a particular buyer but when an option contract is executed between the parties, the buyer gets the exclusive right to buy the property at a predetermined price at some future date but would not be obligated to do so. On the other hand, the seller won’t be able to sell that particular piece of property to any other buyer during the pendency of the agreement or without the prior consent of the buyer. 

The Option Agreement shall include among other things, the location of the property, consideration to be paid by the buyer to seller, duration of the contract, purchase price, what shall constitute default/breach, the consequence of default/breach, governing law, what all actions are covered under indemnification by which party, etc. 

Conclusion

The above list is not exhaustive and there are various other contracts that are executed by the real estate or housing complex developers and financiers. Whenever the developer is in need of money they take help of lenders, investors, buyers, financiers who help them financially in return of some consideration. Usually, in all the dealings, the contracts are signed and executed so that all the rights, duties can be put forth at one place and in case of any dispute or disagreement, the agreement can be referred by the adjudicating agency or court of law.

References

1. 4 TYPES OF REAL ESTATE CONTRACTS: A BEGINNER’S GUIDE (March. 30, 2020, 10:20 AM), https://www.mashvisor.com/blog/types-of-real-estate-contracts/.
2. All that you need to know about a Joint Development Agreement (March. 30, 2020, 10:20 AM), https://www.99acres.com/articles/all-that-you-need-to-know-about-a-joint-development-agreement.html.
3. C.A No. 944 of 2016.
4. All You Need To Know About Tripartite Agreements (March. 30, 2020, 11:20 AM),https://www.proptiger.com/guide/post/all-you-need-to-know-about-tripartite-agreements.
5. All you need to Know about Tripartite Agreement (March. 30, 2020, 11:47 AM), https://www.homeonline.com/home-buying-guide/article/all-you-need-to-know-about-tripartite-agreement/.
6. (1976) 4 SCC 147.
7. What is a Loan Agreement? (March. 30, 2020, 12:50 PM), https://www.debt.org/credit/loans/contracts/.
8. Loan agreement (March. 30, 2020, 2:40 PM), https://en.wikipedia.org/wiki/Loan_agreement.
9. How to Draft a Construction Loan Agreement (March. 30, 2020, 3:51 PM), https://www.wikihow.com/Draft-a-Construction-Loan-Agreement.
10. Project Finance Documents Overview (March. 30, 2020, 4:30 PM) https://globaltradefunding.com/project-finance/project-finance-documents/#loanagreement.
11. What Is a Real Estate Option Contract—and Do You Need One to Buy a House? (March. 30, 2020, 5:55 PM), https://www.realtor.com/advice/buy/basics-of-real-estate-option-contracts/.

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This case analysis has been written by Rishita Gupta and Varsha Agarwal, from Dr Ram Manohar Lohiya National Law University, Lucknow.

Facts

The issue starts with the security advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir stating to cut short their stay and make their safe arrangements to go back. Subsequently, educational institutions and offices were also shut down until further orders. On August 4, 2019 internet services, mobile connectivity and landline were shut down until further orders. 

On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954. On the same day, due to prevailing circumstances, the District Magistrate passed the order restricting the movement and public gathering, apprehending breach of peace and tranquility under Section 144 of CrPC.  Due to this, journalist movements were restricted and this was challenged under Article 19 of the Constitution which guarantees freedom of speech and expression and freedom to carry any trade or occupation.

In this context, in the Supreme Court, legality of internet shutdown and movement restrictions are challenged under Article 32 of the Constitution.

Argument Advanced

Petitioners

• W.P. (C) No. 1031 of 2019

1. 1. 1. The petition was filed by Ms. Anuradha Bhasin, the executive editor of the Kashmir Times Srinagar Edition. She argued that the internet is absolutely essential for modern press and without which print media has come to “grinding halt”. And due to this, she had been unable to publish the newspaper since August 6. She said that the government failed to give the reason as to necessity to pass the order, as required under Suspension Rules. Further, she contended that the orders were passed on mere apprehension of likelihood of danger to law and order. Moreover, law and order are not the same as public order and neither was it at risk when the orders were passed.
      2. An intervenor argued that there is need of balancing the measures necessary to maintain national security and curbing terrorism with the rights of citizens which has been taken up by courts of various jurisdictions. The state is justifying by saying the prevalent situation in Jammu and Kashmir and justifying merits rejections, as it will give the state too broad power to impose restrictions in such situations. It will subsume individual rights over social control. He submitted that restrictions imposed are in contravention of Indian National Telecom Policy, 2012. Lastly, he said that restrictions imposed were temporary in nature but are being imposed for more than 100 days, which should be taken into consideration while deciding the matter.
      3. Another intervenor argued that the necessity to test the order in reference to circumstances on which date the prevailing orders were passed. The necessity to publish order is part of natural justice and it also be made accessible to the public. The state cannot claim any privilege before the court for not producing judgements. Further, he said that the proportionality test was upheld by the court and must be seen that restrictions imposed on fundamental rights of citizens are reasonable or not. He also pointed out that “it is not just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures.”

• W.P. (C) No. 1164 of 2019

1. 1. 1. The petition was filed by Mr. Ghulam Nabi Azad (Member of Parliament). He argued that the state cannot claim any exception or privilege before the courts to produce the orders. Further, he said that national emergency can be declared in limited cases while in the present case neither “internal disturbances” or “external aggressions” was there which is required to declare an emergency. To pass order under Section 144 of CrPC, there must be a “law and order” situation which in the present case there is neither any existing law and order issue nor apprehension. Restrictions imposed should be specifically against the group of people apprehended to breach the peace and not the entire state must be bringing to halt. The state should impose the least restrictive measures and must balance the fundamental rights of citizens with the safety of people. And imposing restrictions on the internet, it impacts not only freedom of speech and expression but also freedom to carry any trade, profession or occupation.

• W.P. (Crl.) No. 225 of 2019

1. 1. Although the petition was withdrawn during arguments, the petitioner submitted the restrictions imposed caused harm even to law abiding citizens which was later on defended by the India’s Attorney General and Solicitor General.

Respondents

• Mr. K.K. Venugopal, learned Attorney General for Union of India

1. 1. 1. The Attorney General submitted that background of terrorism in Jammu and Kashmir has to be taken in account. He submitted that before passing the order, “the cognizance of problem in the state” has to be taken into consideration. It will be foolish not to take any preventive measures knowing cross border terrorism and internal militancy. Knowing the background if the government does not take any measure, there can be a huge violence. Similar measures were taken in 2016 also, when a terrorist was killed.

• Mr. Tushar Mehta, Solicitor General for the State of Jammu and Kashmir

1. 1. The Solicitor General submitted that the first and foremost duty of the State is to protect the citizens. And knowing the history of Jammu and Kashmir, such measures are necessary to be taken. The state is suffering from both physical and digital cross border terrorism. Countered the arguments of petitioners and intervenors, said that they don’t know the exact situation of Jammu and Kashmir and individual movements were never restricted. The restrictions imposed are now gradually being relaxed seeing upon the circumstances of that area. 
   2. The Magistrates of their respective jurisdiction under Section 144 of CrPC passed orders, as they were best to know the actual situation of that area. And now, there is almost 100% relaxation which was earlier imposed on the basis of threat perception. And all televisions, radio channels and newspapers are functioning including from Srinagar where petitioner is situated. There were no restrictions imposed in Ladakh region which shows that there was an application of mind while passing the order and there was no “general clampdown” stated by the petitioners.
   3. The orders passed under Section 144 of CrPC can be preventive in nature in order to the safety of citizens. He submitted that seeing the situation in Jammu and Kashmir, order passed can be justified under the maintenance of “the security of the state”. It is impossible to segregate the troublemakers from the other citizens countering the arguments that restriction should be imposed on specific individuals 
   4. The Magistrate was having sufficient knowledge to pass the orders and there was speculation to make a move against the decision passed. Proactive speeches and messages were transmitted and this is all in public domain. The courts have limited jurisdictions when national security is at stake and there are no mala fide allegations made against the officers.
   5. He submitted that the internet was never restricted in Jammu and Ladakh regions. Through social media, messages can be sent and received to a number of people at ones which can be used to incite violence. Therefore, the use of social media is restricted and the internet can be used to circulate fake news, images and messages. The dark web allows to purchase illegal weapons also and to ban only certain sites on websites on the internet while continuing to access remaining cannot be done as earlier in 2016, it failed. 
   6.  Through newspapers, there is only one-way communication and with the internet, there is two-way communication which makes it very easy to spread and therefore same jurisprudence cannot be allowed. Different reasoning is to be applied while imposing the restrictions on both. And lastly, the orders passed followed the procedure in Suspension Rules and are strictly being reviewed.

Issues Raised

In line with aforesaid facts and arguments, the following questions of law arise for our consideration:

1. Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC and other orders under the Suspension Rules?
2. Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?
3. Whether the Government’s action of prohibiting internet access is valid?
4. Whether the imposition of restrictions under Section 144, CrPC were valid?
5. Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

Court’s decision with reasoning

• Whether the Government can claim exemption from producing all the orders passed under Section 144, CrPC and other orders under the Suspension Rules?

The court held that state had to produce the order placing restrictions before the court. It had cited difficulty in determining the legality of restriction imposed when the state refused to produce the order before the court. On the obligation of the state to disclose information, especially in writ petition, the court cited the judgement passed in Ram Jethmalani v. Union of India, that in order to be Article 32 meaningful, the petitioners should be provided with all the relevant information necessary which is needed to articulate the case, and especially when the state has been in possession of information. Article 19 can be interpreted in such a way where right to information is one of the important facets of freedom of speech and expression. Court added that “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” This obliges the state to protect the fundamental rights and does not away them in a cavalier manner. Further said, that state cannot pass any law in a clandestine manner on mere apprehension of danger. To this, the court adds that James Madison stated “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own Governors must arm themselves with the power which knowledge gives”. The court should take proactive orders in producing before court unless there is special privilege or countervailing public interest. But then, this is to be decided by the court that in every case according to the facts and circumstances that public interest or privilege can override the rights of the petitioner and that part of the order can be redacted. In the present case, initially the state privilege but later on produced some orders citing some difficulty in producing all the orders. Hence, this cannot be a valid ground or reason to refuse to produce the order. 

• Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?

The court held that freedom of expression through the internet is one of the “integral parts” of Article 19(1)(a). The court has emphasized on its earlier judgements in which it has protected new medium of expression. In Indian Express v. Union of India, that freedom of print medium is a fundamental right under Article 19(1)(a). In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana, it was held that it is the right of citizens to exhibit films which is now protected under Article 19(1)(a). The court in, catena of judgements, held freedom in speech as a fundamental right through various means of expression. Nowadays, the internet is one of the major means to disseminate information and therefore, freedom of speech and expression through the internet is a fundamental right under Article 19(1)(a) and restrictions can be put in accordance with Article 19(2). 

The Court does not delve itself in deciding whether the right to access the internet is a fundamental right or not as none of the argued on that. Court said that government can impose restriction as long as they are sanctioned by law, reasonable in nature and for a legitimate purpose, the court further emphasised on the term ‘reasonable’ which is limited to as interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence. The Court in various judgments held that restriction also includes complete restriction but in appropriate cases. In such cases, the restriction imposed complete prohibition, there should be no excessive burden on freedom of speech and the government has to justify why lesser restrictions would be inadequate and lastly complete prohibition is justified is a question of fact which it is to be determined by the court in every case according to the circumstances. To check whether the restrictions are least intrusive is to be determined on balancing and proportionality.

The Court discussed the geopolitical situation that the state has been long plagued by the terrorism. Modern terrorism relies heavily on internet and it is used to raise money, spread their ideologies and recruit people. Solicitor General argued that ‘war on terrorism’ requires such restriction so as to “nip the problem of terrorism in the bud.” And in the past sovereignty and integrity was challenged by the state due to the occurrence of war. 

The Court discussed the U.S. First Amendment to the present day that speech that incites violence does not come from freedom of speech. During U.S. civil war Clement L. Vallandigham who had called war ‘wicked, cruel and unnecessary’. Later he was found guilty and was imprisoned during the war. U.S. enacted Espionage Act, 1917 which penalizes anyone who “wilfully caused or attempted to cause insubordination, disloyalty, mutiny by refusal from duty or naval services.” In Abraham v United States, Justice Holmes said that to punish speech that intends to produce a clear and imminent danger is greater in times of war, as war opens danger which does exist other times. In the case of Brandenburg v. Ohio, the court held that the state cannot punish advocacy of any unlawful conduct unless here it is intended or likely to incite ‘imminent lawless action’. 

The Court in CPIO v Subhash Chandra Aggarwal, define proportionality “…that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question…” It can be easily summed up in Lord Diplock’s aphorism ‘you must not use a steam hammer to crack a nut, if a nutcracker would do?’ In the case of Modern Dental College & Research Centre v. State of Madhya Pradesh, that “no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other, and limiting some rights in public interest might therefore be justified.” Whenever two fundamental rights are in conflict, they must be balanced so that they “harmoniously coexist with the others.” 

The Court in K.S. Puttaswamy held that five sub-components of proportionality must satisfied: (a) legitimate goal (b) the existence of a rational connection (c) necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim (d) necessary to protect them (e) provide sufficient safeguards relating to the storing and protection of centrally stored data. 

The Court added that “the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.” Lastly, the court opposed the state argument that selective internet sites cannot be banned due to lack of technology. As, if it is accepted, then the state has the power to do complete blockage every time and which cannot be accepted. Court would not only observe that while ensuring peace and tranquillity, there is not an excessive burden on freedom of speech and expression.

• Whether the Government’s action of prohibiting internet access is valid?

In the said judgement, the Hon’ble Supreme Court turned its attention to the procedural aspect of law and said procedural justice cannot be sacrificed on the altar of substantive justice. The Hon’ble Court observed that the procedural mechanism laid for restrictions on the internet is two-fold: contractual and statutory. In the present case, the latter part is dealt with because it is more relevant to the case at hand. As the name suggests, statutory restrictions imply restrictions under The IT Act,2000; CrPC, 1973, Telegraph Act.

The Court said that the government cannot justify the shutdown under Section 69A of the Information Technology Act, 2000 read with Information Technology Rules, 2009 for blocking access of information as it blocks access to particular websites on the internet and not the whole of it. 

Prior to 2017, any measure restricting or shutting down the internet was passed under Section 144 of CrPC, granting wide powers to magistrates for passing such orders apprehending danger. But after the passage of Suspension Rules under Section 7 of Telegraph Act, the position has changed. Rule 2 lays down the procedure that’s to be followed for the telecom suspension and merit reproduction in its entirety. A competent authority is specified, under Rule 2(1), who in ordinary circumstances can issue suspension orders. The competent authority is the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government in charge of the Home Department. Also, the sub-rule provides that in certain “unavoidable” circumstances, a duly authorized officer not below the rank of Joint Secretary to the Government of India can also pass the orders to restrict the services. However, the order of the duly authorized officer, that there existed “unavoidable” circumstances, has to be approved by the competent authority otherwise the order will cease to exist. Therefore, the approval of the order by the competent authority is necessary.

Furthermore, Rule 2(2) emphasizes that the order passed, either by competent authority or authorized officer, should be reasoned. The reasoning of the latter must also include what were the “unavoidable” circumstances which led to the passing of the order. Secondly, under Rule 2(2) the reasoned order by the competent authority has to be presented to the Review Committee. The composition of the same is provided under Rule 2(5). Rule 2(6) deals with the procedural aspect of the Review Committee. 

In Hukam Chand Shyam Lal v. Union of India, the SC interpreted Section 5 of the Telegraph Act. Same interpretation was followed in PUCL v. Union of India. The Court laid that for a suspension order to be passed, there should be “public emergency” or for it to be “in the interest of public safety”. The meaning of the phrase “public emergency” can be inferred from its usage in conjunction with the phrase “in the interest of public safety” following it. Also, the SC stated that the definition of “emergency” varies. For example, “Article 4 of the International Covenant on Civil and Political Rights, notes that ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed…’. Comparable language has also been used in Article 15 of the European Convention on Human Rights which says­ “In time of war or other public emergency threatening the life of the nation”. We may only call attention to that the ‘public emergency’ is required to be of serious nature, and needs to be determined on a case to case basis. Another requirement of Section 5(2) is that the authorities should be satisfied that it is necessary or expedient to pass the order. 

However, Suspension Rules doesn’t mention that orders should be made public but the Court said that following natural justice, an order that affects the life, liberty and property of the people must be made available.  Therefore, orders made under suspension rules must be made freely available to people through some suitable mechanism. An aggrieved person has a constitutional right to challenge the order made under Suspension Rules before the High Court under Section 226.

The Court again reiterated the point that “complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.” [para. 99] also, the Court said that there are certain gaps in the Suspension Rules that need to be fulfilled by the legislature.

The Court also noted that there was no maximum duration period of a suspension order. But considering the principle of proportionality the Court held that indefinite suspension is impermissible. Since there was nothing specified in the Suspension Rules about the maximum duration, the Court asked the Review Committee to determine the duration and ensure its extension to a reasonable period. 

There were eight orders placed before the Court. Four were passed by the Inspector General and other four by the Government of J&K. The Court said that any new restrictions have to be passed in accordance with the new order. Since all the orders were not presented before the Court, so the Court accordingly molded the relief in the operative portion.

• Whether the imposition of restrictions under Section 144, CrPC were valid?

The petitioners argued that for the imposition of Section 144 of CrPC, the state needed to prove that there existed a circumstance which was likely to create annoyance, obstruction to any person or might cause disturbance to public tranquility. They said restriction can’t be imposed merely on the basis of apprehension. The State argued that “the volatile history, overwhelming material available even in the public domain about external aggression, nefarious secessionist activities and the provocative statements given by political leaders, created a compelling situation which mandated passing of orders under Section 144.”

The Court said that Section 144 CrPC is one of the mechanisms that enable the State to maintain public peace by taking preventive measures to handle imminent public menaces or threats. But the Section isn’t absolute rather it provides certain safeguards like prior inquiry before the exercising the power, and modifying/rescinding the order when the situation so warrants. The Supreme Court vividly discussed various judicial precedents regarding Section 144 of CrPC. 

In State of Bihar v. Kamla Kant Mishra, the Supreme Court held the latter part of Section 144(6) as unconstitutional, because it didn’t provide constraints on the duration of the order. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, the SC highlighted the power under the Section 144 CrPC must be exercised in urgent situations and “the emergency must be sudden and the consequences sufficiently grave”; it should be exercised in a judicial manner which can withstand judicial scrutiny. Apart from this case, there are several other cases in which the Court reiterated the circumstances when Section 144 can be imposed. 

In Gulam Abbas v. State of UP, the Court said that an order passed under Section 144 CrPC is an executive order which can be questioned in exercise of writ jurisdiction under Article 226 of the Constitution. In Acharya Jagdishwaranand Avadhuta v. Commr. Of Police, Calcutta, the Court reiterated that repetitive powers under Section 144 of CrPC would be an abuse of power. 

The Court held that the power cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. The power under the said Section has to be exercised in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. 

The petitioner contended that ‘law and order’ is of narrower ambit than ‘public order’ and if Section 144 is invoked for ‘law and order’ problem then that would justify ‘public order’ problem as well. In Ram Manohar Lohia v. State of Bihar, the Court distinguished between ‘law and order’ and ‘public order’, former being the larger circle and comprising latter in its ambit. Therefore, the Court held that mere disturbance in law and order may not necessarily lead to a breach of public order. 

The Court said that it is up to the magistrate and the State to decide about the likely threat to public peace & law and order. However, they should state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power. However, it is imperative that the State should make such an order public because there exists a fundamental principle of law that no person should be deprived of his liberty, but if the restriction is placed on this principle so checking reasonableness of the same is palpable. 

To summarize, the Court held that the Section 144 of CrPC can be exercised when there exists present danger as well as apprehension of danger. It can’t be used to suppress legitimate opinion or grievance or exercise of any democratic rights. An order passed under Section 144 should state material facts to enable judicial review of the same. Magistrate is duty bound to apply principle of proportionality on the restrictions and should balance the rights. Repetitive orders would be an abuse of power. 

• Whether the freedom of press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

The petitioners contended that restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties. The Court rejected this plea. The Court began by elaborating on freedom of press and mentioned the case of Channing Arnold v. The Emperor, a Privy Council judgement which for the first time recognized the freedom of press. Therefore, it is unquestioned that freedom of press is one of the quintessential features of a democracy, which is very well protected by the Constitution. 

Here, the petitioners contend that restriction on freedom of press has led to chilling effects on their rights which is protected by the Constitution. However, the Court mentioned that this principle should be used judicially otherwise it may result as a “self-proclaiming instrument”. 

Here, the Court said that the petitioners failed to offer any concrete evidence that the restrictions imposed restricted the freedom of press like publication of newspapers and the distribution of the same. Since the petitioner failed to produce evidence therefore the Court couldn’t distinguish whether it was a legitimate claim for chilling effect or mere emotive argument for the purpose of self-fulfillment. 

Now, the petitioner has resumed publication so the Court doesn’t want to unnecessarily indulge in the matter and therefore, the Court said that as responsible government, it should take care of the freedom of press at all times and journalists should be accommodated reporting and there shouldn’t be a sword hanging on the Press all the time.

Conclusion

In this case, the court passed a number of judgements which left a ray of hope of betterment in this area. To summarize, the court held that the government cannot claim an exception from producing any order before the court passed under Section 144 of CrPC and whether the government can claim exemption or not is a matter of fact which is to be decided by the court in every case according to the facts and circumstances. Further, the court said that nowadays the internet has become an essential part of everyday life and thereby freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution. 

Moreover, the court held that prohibiting internet access is valid but there must be “unavoidable circumstances” otherwise the order passed will cease to exist. There can be imposition of restrictions under Section 144 of CrPC on apprehension of danger but it cannot suppress legitimate opinion of public and repetitive orders of restrictions leads to abusive of power. In the last issue, the court does not indulge in the matter as petitioner has resumed the publication. But, it said that as a responsible government freedom of press should be taken care of. 

With regards to Issue 1 the Court directed the State to present all the orders which led to the imposition of Section 144 CrPC and ban on telecom services including internet. We can say that this direction of the Court is justified because such impositions and bans affect the Fundamental Rights of the people. So, the people have the right to know that on which grounds such impositions and bans are applied. The Court also said that the test of Proportionality should be satisfied so that there isn’t any violation of natural justice. 

The Court has allowed to impose complete prohibition on freedom of speech and expression which can be misused by the government to suppress any voice which reasonably questions the actions of the government. 

The Court said that as per power under Section 144 CrPC says that even if there is an apprehension of danger then also the said Section can be imposed. However, this power can be misused by the government or the State for their benefit, as in they can impose the Section whenever it is suiting their needs or aspirations, without their actual apprehension. So, there should be an authority which can check the power of the Government without being biased and with neutrality over the issue.

Also, this case can be a ray of hope in darkness as the Court held in this case Freedom of Speech and Expression over the internet is a fundamental right so in future the court, in subsequent cases might hold that Right to use the internet is a fundamental right, because the world is a global village and not being able to use internet is clearly depriving individuals of various new opportunities, information and many such things. Internet shutdown puts halt to the quick functioning of various necessities which emerges as a hindrance in the growth of the State.

Therefore, it can be said that with the passage of time, the doctrines held in this case will age well and can be used more judiciously to render justice. To cite Robert Browning’s poem Rabbi Ben Ezra, the doctrines may yet “come grow old with me, the best is yet to be”.

References

1. (2011) 8 SCC 1.
2. (1985) 1 SCC 641.
3. (1988) 3 SCC 410.
4. Ex parte Vallandigham, 28 F. Cas. 874 (1863).
5. 250 U.S. 616 (1919).
6. 395 US 444 (1969).
7. SCC OnLine SC 1459.
8. (2016) 7 SCC 353.
9. (2019) 1 SCC 1.
10. (1976) 2 SCC 128.
11. (1997) 1 SCC 301.
12. (1969) 3 SCC 337.
13. (1970) 3 SCC 746.
14. (1982) 1 SCC 71.
15. (1983) 4 SCC 522.
16. AIR 1966 SC 740.
17. (1914) 16 Bom LR 544.

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This article is written by Samarth Suri, from Symbiosis Law School, Noida.

Introduction 

An offer is the first step in the formation of a contract, it marks the beginning of contractual obligation between the parties. As is a known fact that Acceptance can only be made to a prior offer, an offer is essential for the formation of a contract. 

An offer is defined under Section 2(a) of The Indian Contract Act (hereinafter, ICA) as: 

When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.

The words Proposal and Offer can be used interchangeably for Brevity. The person who makes the promise is called the “Promisor”, and the person to whom the offer is made is called the “Promisee”. From the definition itself, it can be construed that an offer can be both positive as well as negative, i.e.- the doing of an act as well as the “not doing” of an act. 

Types of Offer

An offer can be of many types, ranging across the spectrum. There are basically 7 kinds of offers:

• Express offer  
• Implied offer 
• General offer 
• Specific Offer 
• Cross Offer 
• Counter Offer 
• Standing Offer 

Express offer and Implied offer

Section 9 of The ICA defines both of them as: In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such a proposal or acceptance is made otherwise than in words, the promise is said to be implied.

Therefore, any offer that is made with words, it may be regarded as express. Any promise that is made otherwise than in words is implied. A bid at an auction is an example of an Implied offer. A case in this regard is Upton-on-Servern RDC v. Powell, wherein the defendant called a fire brigade assuming that those services would be free to him, however it was found that his Farm did not come under that of Upton. The court held that the truth of the matter is that the Defendant wanted the services of Upton, he asked for the services of Upton and in response to that they offered their services and they were rendered on an implied promise to pay for them. In Ramji Dayawala & Sons (p) Ltd v. Invest Import, a case between an Indian and Yugoslavian party the notice for revocation of an arbitration clause in the contract between the parties was made by the Indian party, to which the other party gave no reply. It was held that this would amount to an implied acceptance i.e.- the arbitration clause was deleted from the contract, and a suit would lie in the court of law.  Similarly entering into an omnibus also amounts to implied acceptance, same as consuming edibles at a self-service restaurant. Therefore in simpler terms a contract that is entered into because of actions on the offerors part, may be referred to as an implied offer, any contract entered into otherwise is an express offer.

General Offer

A General Offer is an offer that is made to the world at large. The genesis of a General Offer came about from the Landmark case of Carlill v. Carbolic Smoke Ball Co. A company by the name Carbolic Smoke Ball offered through an Advertisement to pay 100 Pounds to anyone who would contract increasing epidemic Influenza, colds or any disease caused by cold after taking its Medicine according to the prescribed instructions. It was also added that 1000 Pounds have been deposited in Alliance bank showing our sincerity in the matter. One customer Mrs Carlill used the medicine and still contracted Influenza and hence sued the company for the reward. The Defendants gave the argument that the offer was not made with an intention to enter into a legally binding agreement, rather was only to Puff the sales of the company. Moreover, they also contended that an offer needs to be made to a specific person, and here the offer was not to any specific person and hence they are not obliged to the Plaintiff.  Setting aside the arguments of the Defendant, the bench stated that in cases of such offers i.e- general offers, there is no need for communication of acceptance, anyone who performs the conditions of the contract is said to have communicated his/her acceptance, and moreover, the money deposited by the Defendant in Alliance Bank clearly shows that they intended to create a legally binding relationship. Hence the Plaintiff was awarded with the amount. An Indian authority in this regard is Lalman Shukla v. Gauri Dutt, wherein a servant was sent by his master to trace his missing nephew. In the meanwhile, he also announced a reward for anyone finding his nephew, this in itself is an example of an offer that is made to the world at large and hence a General Offer.

• Valid acceptance based on fulfillment of condition

This concept has been given statutory authority under section 8 of the ICA:

Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal. 

This section was applied by YEARS CJ of Allahabad high court in the case of Har Bhajan Lal v. Har Charan Lal, wherein the father of a young boy who ran from home issued a pamphlet for a reward for anyone who would find him. The Plaintiff found him at the railway station and sent a Telegram to his father. The Court held that the handbill was an offer that was made to the world at large and anyone who fulfilled the conditions is deemed to have accepted it. In State of Bihar v. Bengal Chemical and Pharmaceutical Works LTD, the Patna HC held that where the acceptance consists of an act, e.g- dispatching some goods, the rule that there shall be no communication of acceptance will come into play. 

• General offer of continuing nature

When a general offer is of continuing nature, like it was in a carbolic smoke ball case, it can be accepted by a number of people till it is retracted. However, when a similar offer requires information regarding a missing thing, it is closed as soon as the first information comes in. 

Specific Offer

A Specific offer is an offer that is made to a specific or ascertained person, this type of offer can only be accepted by the person to whom it is made. This concept was seen briefly in the case of Boulton v. Jones, wherein the Plaintiff had taken the business of one Brocklehurst, the defendant used to have business with Brocklehurst and not knowing about the change in ownership of business, sent him an order for certain goods. The Defendant came to know about the change only after receiving an invoice, at which point he had already consumed the goods. The Defendant refused to pay the price, as he had a set off against the original owner, for which the plaintiff sued him. The Judges gave a unanimous judgement holding the defendant not liable. Pollock CB held that the rule of law is clear, if you intend to contract with A, B cannot substitute himself as A without your consent and to your disadvantage. It was also held that whenever a person makes a contract with a specific personality, a specific party, so to say, for writing a book, for painting a picture or for any personal service or if there is any set off due from any party, no one has the authority to come in and maintain that he is the party contracted with. 

Cross Offer

When two parties make an identical offer to each other, in ignorance to each other’s offer, they are said to make cross offers. Cross offers are not valid offers. For example- if A makes an offer to sell his car for 7 lakhs to B and B in ignorance of that makes an offer to buy the same car for 7 Lakhs, they are said to make a cross offer, and there is no acceptance in this case, hence it cannot be a mutual acceptance. 

• Basic essentials of a cross offer 

1. Same offer to one another- When the offeror makes an offer to the offeree and the offeree without prior knowledge makes the same offer to the offeror, then both the object and the party remain the same.
2. Offer must be made in ignorance of each other- The two parties must make their offer in ignorance of each other.

An important case in this aspect is the English case of Tinn v. Hoffman, the defendant wrote to the complainant an offer to sell him 800 tons of iron at 69s per ton, at the same time the complainant also wrote to the defendant an offer to buy the iron at similar terms. The issue in this case was that, was there any contract between the parties, and would simultaneous offers be a valid acceptance. The court held that these were cross offers that were made simultaneously without knowledge of one another and would not bind the parties. 

Here it is imperative to deduce that for a valid contract to be formed there needs to be an offer and acceptance of the same, whereas in a cross offer there is no acceptance, but only simultaneous offers being and therefore a cross offer will not lead to the formation of a contract. 

Counter offer

When the offeree offers a qualified acceptance of the offer subject to modifications and variations in terms of the original offer, he is said to have made a counter offer. A counter offer is a rejection of the original offer. An example of this would be if A offers B a car for 10 Lakhs, B agrees to buy for 8 Lakhs, this amounts to a counter offer and it would mean a rejection of the original offer. Later on, if B agrees to buy for 10 Lakhs, A may refuse. Sir Jenkins CJ in Haji Mohd Haji Jiva v. Spinner, held that any departure from original offer vitiates acceptance. In other words, an acceptance with a variation is not acceptance, it is simply a counter proposal which must be accepted by the original offeror, for it to formulate into a contract. The Bombay High court gave this decision based upon the landmark judgement of Hyde v. Wrench, in which an offer to sell a farm for 1000 Pounds was rejected by the Plaintiff, who offered 950 for it. Subsequently the Plaintiff gave an acceptance to the original offer. Holding that the Defendant was not bound by a contract, the court said that the Plaintiff accepted the original offer of buying the farm at the price of 1000 pounds, it would have been a completely valid contract , however he gave a counter proposal to it, thus rejecting the original offer. 

• Partial Acceptance

Counter offer also includes within its contours Partial acceptance, meaning that a party to the contract cannot agree to those conditions of the agreement that favour him and reject the rest, the acceptance should be of the complete agreement i.e.- all its parts. In Ramanbhai M. Nilkanth v. Ghashiram Ladliprasad, the plaintiff made an application for certain shares in a company with the underlying condition that he would be made the cashier in its new branch. The Company did not comply with this and hence the suit. The court held that the Petitioners application for shares was condition on him being made the cashier and that he would have never applied for the shares had there been no such condition. 

• Acceptance of a counter proposal

In Hargopal v. People’s Bank of Northern India LTD, an application for shares was made on a conditional undertaking by the bank that the applicant would be made the director of the new branch. The shares were allotted to him without fulfilling the condition. The applicant did not say anything and took his dividends, a subsequent suit by him failed as the court held that he through his conduct had waived the condition. When a counter proposal is accepted the contract arises in terms of the counter proposal and not in terms of the original contract.  

Standing offer 

An Offer which remains open for acceptance over a period of time is called a standing offer. Tenders that are invited for supply of goods is a kind of Standing Offer. In Perclval Ltd. V. London County Council Asylums and Mental deficiency Committee, the Plaintiff advertised for tenders for supply of goods. The defendant took the tender in which he had to supply to the company various special articles for a period of 12 months. In-between this the Defendant didn’t supply for a particular consignment. The Court held that the Tender was a standing offer that was to be converted into a series of contracts by the subsequent acts of the company and that an order prevented pro tanto the possibility of revocation, hence the company succeeded in an action for breach of contract. 

Difference between an offer and Invitation to offer 

Although Invitation to Offer is not a type of offer per se, it is imperative to distinguish both to even construe what an actual offer is. An invitation to offer is an offer to negotiate, an offer to receive offers, offers to chauffeur. An offer is a final expression of willingness to get into a contract upon those following terms. The concept of Invitation to offer was explained in the Privy Council case of Harvey v. Facey, the Plaintiffs in this asked two questions from the defendant i.e.- Would you sell me your Bumper Hall pen , telegram me the lowest price? , the Defendant only gave the answer to the latter question , post which he refused to sell. The Court held that the defendant was not to sell as he had only answered the second question and reserved the same for his first question. Thus, this clearly shows the distinction between an offer and invitation to offer. In Adikanda Biswal v. Bhubaneswar Development Authority, when a development authority made an announcement for allotment of plots on first come first serve basis on payment of full consideration. An application against this with full consideration was only considered to be an offer, as the Development authority only gave an invitation to offer, and the offer can only be formalized into a contract when it is accepted by the development authority. 

• Rules regarding display of goods in shops 

In Pharmaceutical Society of Great Britain v. Boots Cash Chemists Southern Ltd., lord GODDARD CJ, said that it would be wrong to say that a shopkeeper intends to sell everything that is displayed in his shop. Meaning that the customer makes an offer, to which the shopkeeper has the discretion to accept or deny. The shopkeeper may say that he doesn’t have enough stock of that good and therefore may not sell. Similarly, a bankers catalogue of charges is also not an offer, the auction held by a person is also only an invitation to offer and he may not be liable for the transportation costs that people may have to pay to come to the place of auction, in case he cancels at the end moment.

Conclusion 

The Indian Contract act doesn’t specifically mention the different types of offers, but as ours is a common law country, we develop law from the decisions held by Indian and British courts. As an offer is the first step in the formulation of a contract, it is essential to distinguish what type of offer has been made by the offeror, as different types of offers have different types of legal rules being applied to them. It is also imperative to distinguish an offer and an invitation to offer, to avoid unwanted transactions. 

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This article is written by Jolly Tewari, Trainee Associate at LawSikho. 

Introduction 

It comes to every law student’s mind, once enrolled in a law school, that it is the most elite profession a person can enter into. With passing years after numerous moots, internships, seminars, meeting new people you find various other good career options as well.

If you are determined from the beginning that you want to clear the judicial services exam it is excellent because it gives you an edge over others.

While in law school, one can focus on those topics that are important from the point of judicial services exam, which in future will save you a lot of time when preparing for it. It is okay to not have a plan from the beginning or till last year of graduation, it is okay to be clueless but once you decide that you want to be a judge, you should be clear with the purpose. Judiciary is the highest wing and that is what makes it a highly respectable job.

When to start?

It is better if you are clear from starting because you will study accordingly. It is also okay if you are starting two years or one year early because what counts is focus, discipline, determination and a good strategy.

How to start?

From very starting you should be clear about the state as every state has its own pattern. Preparing for multiple states can be a waste of time and effort.

Start your preparations with bare acts, as law colleges focus on the syllabus they hardly focus on substantive laws or municipal laws. Study bare acts along with interpretations and illustrations- break it into parts and then study about 10 sections or 5 sections a day. Preparing for multiple states can be a waste of time and effort.

For example, In Delhi and Haryana, the questions are asked from the practical and conceptual application of law but in UP, the focus on theoretical concepts is more. 

Start reading the newspaper, you should know what is going around in the world. Work on your language- start giving at least half an hour to your writing skills in English as well as in Hindi as people often tend to underestimate English language. GK & current affairs also demand equal attention as in Preliminary GK and English section itself contains the same amount of weightage like other 9 law subjects. If you are contributing half an hour daily you can complete English, Hindi and GK sections in 6 months.

Are internships necessary?

After asking my mentors and people who have already cleared the Judicial Services Examination, one thing which I found common was that doing internships made them realize what they really want to do as exploring your interests is never a bad idea.

This inclined me further towards my goal but, if you have had your mindset from the very beginning, there is little need to do internships. It will save your time to focus on academics more. But doing an internship in a lower court gives the inside picture of the court which is very different from what is portrayed in cinemas. Doing an internship under a Judge will be beneficial, it will give the impression that you were resolute from the beginning to become a Judge. It will help you in interviews and also brush up your skills.

Is coaching necessary?

Coaching institutions have some advantages as they provide you with guidance, methods, mock exams that push you to work for more. We live in a world full of distractions so investing money in these institutions reminds you of your purpose. At the end of the day, it is you who has to persevere. If you can manage your time and are disciplined, coaching is not necessary.

What subjects to study for Judiciary?

Everything you are studying in your law school will help you further in your Judicial services examination but law schools try to cover it in one semester which is not possible if you want to study it conceptually, try to break those subjects in parts and complete it in 2-3 semesters. In Judicial services, law is the key subject, which includes substantive as well as procedural laws, but law schools hardly focus on municipal laws which is an important part of Judiciary. 

In some states (UP, West Bengal, Bihar, Jharkhand etc.), Constitutional Law, International Law and Jurisprudence are also covered. In Delhi, Constitutional law is also included in Preliminary exam, real syllabus reflects in the previous year question papers. Let’s take an example of IPC where most of the questions in the preliminary exams are asked from chapter 16 and 17 so this is how you get to know what is important and what not. After going through previous year papers you would be able to discard what is not of much importance.

What are some of the books which can be referred to?

To study from Mains point of view or Preliminary?

Firstly, never assume that post Preliminary exam, you will get time to study for Mains, Study for Mains beforehand. You can even prepare for Preliminary and Mains simultaneously.

As major subjects take time (approx 2-3 months) you can divide the time accordingly or you can simultaneously take 1 major subject with 2-3 minor subjects. As when you will be done with a major subject, simultaneously 2-3 minor subjects will already be covered. 

You must know what is expected of you in exams because judicial exams across the states do not require much apart from a conceptual clarity of what you are already studying in your law school. Do not be a rote-learner.

How to prepare for an Interview?

Personality, confidence, legal knowledge and application of mind is what is checked in an interview. Well, if you score decent marks in your mains paper, interview will hardly count so your focus should be on mains, anyway interview will help you get a good rank. 

The word preparation for an interview is outdated as they have already checked your knowledge, what they want to check is your personality. 

Judiciary syllabus is immense than the syllabus of law schools- how to fill this gap?

Law schools hardly focus on municipal laws in comparison to corporate and International Laws. So your focus should be to break them and study like in 2-3 semesters because you cannot learn the whole of CPC in one semester, you have to break it up and learn- which rarely happens in law schools. 

You should study according to the evolving Judicial Examination trend because many amendments have come in the past few years. It is overarching to try to prepare according to the current trend. Studying those old and landmark cases will not help. When you see the latest case laws, take a liberal interpretation. 

Judiciary is evolving at a fast pace, the applications which were not allowed before are allowed now. The approach to fundamental rights has changed, for example, the rule of local standi has been relaxed so only if a student knows these amendments then only he can apply those.

Is the syllabus of LLM different from the Judiciary?

LLM is a specialization in a particular field of law and it is more objective than subjective. So, yes, if you think to prepare for LLM, it will help you crack judicial exams then you are wrong but vice-versa is possible because preparing for judiciary requires you to study the core of law which might help in clearing LLM exams as well, as it is always better to have a backup plan. 

LLM’s syllabus keeps on changing- first, it was objective then some part of it was subjective and law of torts is asked in LLM examinations in more detail than in judiciary so yes there is a bit difference so prepare according to that.

Does the number of vacancies play any role in cracking the exam?

Vacancies do play an important role. This year DJS released 30 vacancies only and in the past few years, a vast state like Uttar Pradesh did not release enough vacancies. There is no All India Judicial Examination but in future, it might become one.

You need a systematic preparation and approach, and preparing for many states at once will put pressure and you will lose your time and concentration. You should also consider having a backup career option and try to concentrate on 2-3 states. Narrow down your choice to 2-3 priority states. It is not that you will not be allowed to take exams for other states but basic groundwork and the foundation stone would be based on your top priorities. Once you have created that, you can build upon it like a pyramid. Don’t lose focus and get overwhelmed.

Does maintaining a good percentage in college necessary or we can get average marks and devote our time to Judiciary exam preparation?

Being a topper is not what the Judiciary exam demands. That does not mean that you are getting backlogs. maintaining an average percentage is enough.

In a recent judgement of the Bombay High Court, a person can only become a judge if he has cleared all his semester exams in the first attempt. It is not a judgment from the Supreme court or other courts, but keep your grades intact for the safer side.

Maintaining an average percentage is enough.

How to prepare GK and Current Affairs for Judicial services?

Indian Geography can be studied from Ghatna chakra and NCERT. (If you have more than 6 months for preparation, only then choose to go through NCERT).

Indian History can be covered from Lucent’s, Ghatna Chakra and NCERT.

Indian Economy, Indian Art and Culture and science(in Bihar and UP questions arise more from science) and from Lucent’s as well. Go through the newspaper daily, you should be aware of the current affairs, even 1 week before exams. Stay updated and aware of any latest legal amendments.

How to make notes

You need to keep in mind that your notes should be concise, it should not be a direct copy of books but a derivative of your own conclusion.

In making notes, the emphasis should be on two things- its brevity and completeness, but if you are doing coaching, making notes would be useless just jot down the conclusion of those notes. 

Do extracurricular activities give any shape to the study of Judiciary?

No, they do not. To make your CV diverse, you can do moots but such titles hold little importance in Judiciary.

How to manage studies with internships?

Doing internships just for certificate sake won’t help, asking a mentor to give you work which will help you in the long run. Like while interning in a court student’s say, they only get labor work such as carrying files and taking dates. 

So this is the biggest mistake which interns make. Instead of utilising each and every minute, they waste their whole day doing unnecessary stuff and learn nothing. Try to ask questions and take work related to what you are studying, learn to draft (helps you everywhere), so this is how your internships will act as a boon for your studies, takeout at least 2 hours daily for your preparation in-between internship duration, just don’t waste your time there sitting ideal or gossiping. 

Conclusion

Make learning a fun activity by using techniques like breaking, drawing pie-chart, flow charts, using grouping method, one word technique (every article or section has a key around which the whole section or article can be woven, comparison etc). Revision is a key factor in your study for the exams, without revision whatever you are studying will go in vain, and every part of your study should be planned and mentored properly.

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This article is written by Anna Kallivayalil, student of (B.A. L.L.B. Hons.) NLU Delhi. In this article, she aims to explain the concept of substituting inheritance rights for a mutually beneficial deed in family settlement agreements.

Introduction 

A family settlement agreement (FSA) is largely used to settle disputes regarding the devolution of family property. Through such a settlement, the original heirs and beneficiaries mutually assign property rights among themselves. An FSA is usually used to curb the effects of a poorly drafted will, thereby standing as a cure for protracted family property disputes arising from a will or other testamentary instrument. It gives finality to disputes within the family and saves both the litigant family members and the civil courts time and valuable resources. 

The process of reaching an acceptable settlement is, however, usually difficult, and is facilitated by a third person such as a lawyer or a senior family member. For a valid and effective settlement, all the parties to the settlement must be related to each other and must have an existing claim to a share of the property to be distributed. All members must sign the FSA, acknowledging that the agreement was not made by fraudulent or coercive means. An FSA can be oral or written, but it is advisable that the agreement is written and registered to avoid misunderstandings and confusion later on. 

The aim of this article is primarily to understand family settlement agreements and how they can displace prevailing inheritance rights created by Hindu and Muslim personal law and Secular law. It analyses a variety of case laws which uphold the validity of FSAs, with the reasoning given by the courts for doing so. Lastly, it enlists the necessary requirements for an enforceable FSA.

Background: How are Inheritance Rights Created? 

Inheritance rights of family members are created either by a will executed under the Indian Succession Act 1956 or the prevalent laws of testamentary succession under personal law. 

1. Hindu Personal Law 

Under Hindu law, devolution of property follows the doctrine of survivorship, where the surviving coparceners of a Mitakshara joint Hindu family get an equal share in the property of the deceased family member. 

2. Muslim Personal Law

Unlike Hindu law, where coparceners have a right to the family property from birth, Muslim law follows the principle of Nemo Est Haeres Viventis, i.e. nobody can become an heir to a living person. Thus, the right to the family property arises only after the death of the one holding the property. 

Muslim law does not have a codified statute for testamentary succession. Instead, the two sects of Islam follow two different methods of property distribution. 

i) Per Capita Distribution 

This mode of devolution is largely followed by Sunni Islam. This method is similar to the doctrine of survivorship; property is divided equally among all heirs of the deceased. Property allocated through per capita distribution does not differentiate between branches of the family. 

ii) Per Stirpes Distribution

The Shia sect of Islam follows this method of distributing family property. Such kind of distribution devolves the estate of the deceased in equal shares to each member belonging to the same branch as the deceased. The share of the deceased member is then divided proportionately among his/her beneficiaries.

When does the need for an FSA arise? 

1. Testamentary Succession: Partition through Will

Nothing in the Hindu Succession Act 1956 or the Indian Succession Act 1925 restricts the persons to whom a testator may bequeath his/ her self-acquired or self-owned properties over which he/ she has full disposing power, though personal law restricts devolution of inherited ancestral property. Thus, inheritance rights of self-acquired property (or separate property under Hindu law) are ascribed by the intention of the person executing the will. Here, the method of distribution prescribed by the personal law of the deceased is irrelevant and superseded by the intention of the testator. 

2. Intestate Succession: Partition without Will

When the holder of the property dies before preparing a will, his intention of how the property (ancestral or self-acquired) should be distributed is unknown. In such cases, the property distribution follows the law of inheritance applicable to the deceased. 

When the holder of the property dies without leaving a comprehensive will, there creates much confusion among the heirs to the property. For instance, if the deceased having 4 heirs owned a single bungalow, by the doctrine of survivorship and per capita distribution, the bungalow should be divided equally among those 4 heirs. Since a bungalow cannot be practically divided among 4 persons, the heirs would end up in constant quarrels over the property. 

Disputes may arise even when the deceased leaves a will. Even the most meticulously prepared wills may have certain lacunae. Further, the heirs may wish to decide among themselves the most amicable way to distribute the property among themselves. A son of the deceased who has settled abroad with no intention of returning may offer to forego his right to the property of the deceased given to him by his father’s will. 

In both cases, the heirs may decide to distribute the property in a mutually beneficial manner, departing from the original allocation of rights in the property. To cement this intention of the heirs, they prepare a family settlement agreement (FSA), a valid and enforceable document. 

The issue arises when an FSA and a will or other partition deed prescribe different modes of the partition of the same family property. Logically speaking, a mutually prepared FSA should be of preponderance, considering that it involves the explicit consent of the family members, and is less likely to be contested. Yet, the issue is whether it can legally supersede existing inheritance rights. 

The Present Legal Framework: Indian Law vs. English Law

Indian law does not provide an explicit statutory rule for family settlement agreements. Halsbury’s Laws of England, however, has defined a family agreement as: “An agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed right or by preserving the peace and security of the family by avoiding litigation or by saving its honour.” 

“The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term “family agreement” is applied”. 

Thus, English law defines an FSA as an agreement to divide property in a manner that is mutually beneficial to the heirs. Even without a similarly worded statute, Indian jurisprudence on FSAs is similar to the above-stated position of English law, as seen below. 

The Judiciary’s Opinion: Analysis of Case Laws

The law relating to FSAs has been settled through a catena of court decisions, including several by the Apex court. The judiciary has taken a largely utilitarian view in upholding a validly prepared FSA, reasoning that it demonstrates the free consent of otherwise-feuding family members to the division of family property.

1. An FSA should be upheld to minimize judicial interference

The rationale behind the legal rule of upholding an FSA has been explained in the 1973 case of S. Shanmugam Pillai v. K. Shanmugam Pillai (see here). The Supreme Court observed: “If in the interest of the family properties or the family peace the close relations had settled their disputes amicably, this court will be reluctant to disturb the same. The courts generally lean in favour of family arrangements.” From here stemmed today’s understanding of upholding an FSA.

2. Courts are duty-bound to give effect to an FSA

The validity of a family settlement agreement was first upheld by the 1911 case of Khunni Lal v. Kunwar Gobind Krishna Narain (see here). In this case, the Privy Council placed a duty on the courts to uphold and give full effect to an arrangement regarded by the parties themselves.

3. An oral FSA is also valid

The courts have even gone so far as to uphold the validity of an oral FSA. In the 1966 case of Tek Bahadur v. Debi Singh (see here), the Supreme Court upheld the validity of an oral FSA, ruling that registration may only be required when it is written. 

4. An FSA need not be compulsorily registered

The Supreme Court, in the 1966 case of Maturi Pullaiah v. Maturi Narasimhan (see here), held that an FSA, by its nature, is not a compulsorily registrable instrument, as it does not create rights in itself. It found that an FSA would only require registration if it creates any new interest in the family property. When the document itself materially alters legal rights of other heirs of the properties and creates new rights, it is compulsorily registrable under s. 17 of the Registration Act, as was held by the Supreme Court in the case of Sita Ram Bhama v. Ramavtar Bhama (see here). Since an FSA only reflects the pre-created interest in the property by the family members, it would be valid even if unregistered. 

Therefore, even an oral, unregistered FSA can supersede existing inheritance rights. The Supreme Court has time and again favoured such family arrangements, and have been eager to uphold its validity to the exclusion of other instruments creating inheritance rights in the disputed property. Technical and trivial discrepancies should be overlooked to facilitate a mutually agreeable instrument (see here). The law has largely favoured family agreements that encourage amicable family property distribution, avoiding any future disputes. 

5. A bona fide FSA is binding on the parties

In conjunction with the judicial pronouncements on FSAs, the present understanding is that a bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement. (see here).

6. Parties must create a separate instrument for partition and transfer of the property

An FSA does not govern the transfer of property. It is merely an instrument assigning property rights, the mutation of which must be effectuated by a separately registered transfer deed. An FSA only assigns the rights to the signatory family members. To realise their right in the family property, they must execute separate instruments demonstrating their intention to transfer the property. 

A Checklist for a valid FSA

An FSA will necessarily supersede any other instrument assigning or creating inheritance rights, as long as it is validly executed. If the FSA is not validly executed, it cannot be enforced and, in such cases, the existing inheritance rights of the parties will stand. The requirements for valid execution of an FSA are: 

1. Bonafide intention 

The settlement should be made with the aim of resolving family property disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. This rule was given by the Supreme Court in the 1976 case of Kale v. Dty. Director of Consolidation (see here).

2. Free Consent 

The settlement must be voluntary and should not be induced by fraud, coercion or undue influence. This condition was also given in the 1976 Supreme Court decision. 

3. The relation between the parties 

Though it is not necessary that the parties to the FSA must have a common ancestor or be legal heirs, the settlement must be among near relations to be considered as a “family arrangement”.

This rule was first given by the Privy Council in the case of Ramgouda Annagouda v. Bhausaheb (see here). It was later upheld and applied by the Supreme Court in 1965 (see here), 1971 (see here) and 1973 (see here).

4. Existing antecedent title

An FSA assumes that there is an antecedent title of some sort in the parties; the agreement acknowledges and defines what such title is, each party relinquishing all existing claims and titles in favour of those created by the arrangement. This was the main reason for upholding the family arrangement in the case of Sahu Madho Das v. Pandit Mukand Ram (see here).

Family arrangements are governed by a special equity peculiar to themselves and will be enforced if honestly made, even to the dissolution of existing inheritance rights. 

5. Express Statement of Supersession

To avoid confusion and disputes later, parties to the FSA must expressly state their intention that the agreement would supersede a will. This shows the intention of the family members to surrender their existing rights to the property. 

Conclusion

The underlying idea, from the above analysis, is that the courts should try to resolve family disputes as amicably as possible, with minimum court intervention. Therefore, when the parties themselves have together prepared a document clearly dividing the property amongst themselves, the courts should not hesitate to uphold this over any other document creating title, be it a will or any other instrument of testamentary succession. Technicalities such as the requirement of the written document only, registration, etc. should be avoided so as to facilitate smooth assignment of family property rights to the parties. 

Thus, it can be seen that a family settlement agreement can, in fact, displace and supersede inheritance rights of the parties. 

References

Statutes

• Halsbury’s Laws of England, vol. 18, 4th edn.
• Hindu Succession Act, 1956
• Indian Succession Act, 1925

Case Law

• Kale v. Deputy Director of Consolidation (1976) 3 SCC 119
• Khunni Lal and ors. v. Kunwar Gobind Krishna Narain and anr. (1911) 8 All LJ 552
• Krishna Beharilal v. Gulab Chand (1971) 1 SCC 837
• Maturi Pullaiah and anr. v. Maturi Narasimham and ors. AIR 1966 SC 1836 
• Ram Charan Das v. Girija Nandini Devi and ors. AIR 1966 SC 323
• S. Shanmugam Pillai and ors. v. K. Shanmugam Pillai and ors. (1973) 2 SCC 312
• Sahu Madho Das and ors. v. Pandit Mukand Ram and anr. 1955 SCR (2) 22
• Sita Ram Bhama v. Ramavtar Bhama (2018) 15 SCC 130
• Tek Bahadur Bhujil v. Debi Singh Bhujil and ors. AIR 1966 SC 292

Miscellaneous Sources

• Riju Mehta, “Estate Planning: Does a family agreement help avoid disputes?” Economic Times (17 June 2019)
• Deepti Bajpai, Shaurya Joshi, “Family Arrangements in India” Legal Service India 

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