This article is written by Nimish Mundra, from Nirma University.

Introduction

The famous Greek philosopher Heraclitus gave a very popular and widely accepted quote, ‘The only thing that is constant is change.’^[i] This famous saying as we all know stands absolutely true in every sense. So, when we talk about change in a nation, we talk about the demographic changes, economic changes, political changes, social changes and the one very important change which constitutes a very important part of a nation that is legal change in a nation. We all have seen the entire legal system advancing with a great pace across the globe. A legal system of a nation basically sets the rules as well as regulations for its citizens and punishments for those who violate the prescribed rules and laws.

India, a nation where the most important^[ii] and the noticeable thing which one can easily see is the diversity of the nation, so when we have to discuss about the legal changes of the nation, we cannot forget the huge diversity which prevails in India. The Indian nation has observed many important legal cases like the Nirbhaya case, Taj attacks of 26/11 and the list goes on. India has seen a very drastic change in its legal system over a very short period of time and with its pace increasing with the time, many more advancements and new policies, regulations, etc. would be added to the legal atmosphere of the Indian subcontinent.

History of Trial in India

The very first case took place in 1665 which was that of a British woman namely Ascentia Dawes who was charged for murder of her salve girl. So, the journey began from the case of a British woman and the jury trials were put to an end by the very famous case of KM Nanavati v. State of Maharashtra^[iii] (though the Nanavati case was not the last case to end the practice of jury trials but was the most famous case which led to the closure of the process of jury trial).

With the evolution of the East India Company into the Indian subcontinent, the system of jury trial was established into two parts, first was inside the presidency towns of Bombay, Calcutta and Madras and the other one was the areas outside the presidency towns. In the year 1860, the Government of India adopted the Indian Penal Code which constituted the mandatory criminal jury only in the High Courts of the presidencies.^[iv]

Since then, the journey of a complete revolution in the legal system of the nation started which has not only shown excellent results but also the development of the judiciary system in India.

Trial

To further proceed with the various concepts associated with Trial in the criminal system in India, we must learn with the very basic concept of trial. The term ‘trial’ basically means the Court’s decision or a judicial judgement by the Court so as to decide the person’s guilt or innocence. A trial is of a very crucial importance in a criminal case. Section 190 CrPC^[v] states those requirements that needs to be accomplished before proceedings can be started by the Magistrate, this statement basically means the power of the Magistrate to take knowledge of a case. Section 204^[vi] of CrPC basically provides Magistrate with the sole power of either to take the case into the consideration or to reject the case on some grounds. This section also determines the stage whether a case can enter the stage of trial or not. 

Types of Trial

Mainly, there are four types of trial:

• Warrant Case- A warrant case associates itself to the case where the crimes punishable with death, imprisonment for life or imprisonment for a term exceeding two years are considered. Trial of warrant cases are further classified into two more types namely:
  • Cases instituted by a police report- A police report is basically a report which Magistrate receives from a police officer under Sec. 173. The police should send their report as soon as they complete the investigation and the accused appears in front of a Magistrate before starting the trial.
  • Cases established other than a police report- Here, no kind police report or investigation is required. The Magistrate directly receives a complaint which is filed before him.

The sections from 225-237 of the Criminal Procedure Code basically deals with the warrant cases by a Court of Session.

In the case of Narotamdas L. Shah v. Pathak Nathalal Sukhram And Anr., the accused was held liable for defamation to which the witnesses were cross examined and the Magistrate was of the view that the case should be transferred while the accused demanded a re-hearing of the witnesses to which the Magistrate said that the accused can only have this right when the case is in trial and the case here was at the stage of enquiry only. The judge of the Sessions Court was of the view that setting aside of the demand made by the accused was wrong. The Gujarat High Court in this case held that trial in warrant cases starts when the accused has been presented before the Magistrate and thus quashing the order of the Magistrate. 

• Sessions case- These are the cases where the offences subjected to punishment by law is death, life imprisonment for a term more than seven years, in such cases trial has to be dealt in a Sessions court after the case has already been forwarded by a Magistrate to the Court or after the commission of the crime.

Sections as mentioned in the CrPC starting from 238-250 handles the warrant cases by Magistrates.

As decided in case of the Inspector of Police vs R. Jeeva Jothi And Ors., the Magistrate showed some irregularities while conducting an enquiry of a case after a final report was submitted by the inspector of police to him. As mentioned in the CrPC, that when a Magistrate accepts a police report u/s 190(b), the Magistrate should take cognizance of that particular offence also. Under section 209, a Magistrate when has noted that the case can be exercised only in the Court of Sessions, it is compulsory for him that the case should be passed on to the correct authorities who have proper jurisdiction over the case after considering the procedure and formalities as mentioned under section 207 and 208. In the present case, the Magistrate considered all the materials and documents related to the case and discharged the accused for the offences mentioned under section 307 and 450 of IPC, which a Magistrate is not allowed to do so and carries no power for the same. And after the deletion, the Magistrate took the case into his file and started a trial which is clearly prohibited under the law. 

The Madras High Court in this case questioned the competency of the Magistrate and also stated that the decisions taken and the procedure adopted by the Magistrate were unlawful and wrong in nature and held that without further delaying the case, it should be sent to the Court of Sessions with immediate effect.

• Summons cases- These are the cases where those crimes where the punishment for the offence is less than two years falls under the category of the summons cases, further in these cases there is no requirement of framing the charges. The Court upon finding these cases issues a ‘notice’ as a material for the accusation and then sends it to the accused. If there is any kind of possibility that the charges in summons cases are such that they might be converted into warrant case in the eyes of the Magistrate for serving the justice.

In the case of Gulabjeet Singh & Ors vs Ravel Singh, the issue was that whether Section 258 can apply to the proceedings started under Section 138 of the Negotiable Instruments Act^[vii]? Section 258 simply states the proceedings can only be stopped when the cases are filed other than a complaint, but when the prosecution has already established by the State, then this section would not be applicable and further elaborated that in such cases where a private party has filed a complaint then Sec. 258 wouldn’t be applicable. The petition was dismissed by the High Court of Himachal Pradesh.  

• Summary cases- Basically, summary trials are those kinds of trials where speedy justice has to be given which means those cases which are to be disposed of speedily and the process of these cases is quite simplified. One thing which is important to not here is that only small offences are taken as a part of the summary cases, cases which are complicated in nature and are quite big are reserved for summons or warrant trials. With this type of trials, one can easily point out the concept of ‘justice delayed is justice denied’. A very important procedural part associated to these kinds of trials are that in summary trials only proceedings are recorded and as such no big part of proceedings are made. In summary trials the components related to evidences and the disposition are simply recorded in a brief manner while in regular trials, the evidences and all the substances related to the cases are carefully considered.^[viii]

Procedure where accused in warrant cases are to be produced before the Magistrate

In warrant cases triable by the Magistrates, if the Magistrate does not find any ground to hold the accused as liable, then the Magistrate can discharge the accused but he has to provide reasons for the same. But when the Magistrate finds some reasons to believe that there are some points related to the case with which he can proceed further with the case, the Magistrate then further proceeds under section 240 CrPC with the case by framing the charges against the accused and under section 240(2) the charges which are put against the accused shall be read to the accused and then he should be asked whether he claims to be tried for the offence of pleads guilty for the same, and if the accused claims to be tried then he shall be called upon to produce witnesses if there are any.

Procedure of Court of Session

A Court of Session cannot directly take cognizance of the offence which is triable under their jurisdiction. The procedure for a trial before Court of Sessions is divided into many parts:

1. Section 225: The very first step of the process is to conduct a trial by a Public Prosecutor.
2. After the first step, under section 226 the prosecutor opens his/her case by presenting their opening statements and also explains the charges of the offence against the accused.
3. After listening to the statements made by the accused as well as the prosecution and after taking a note of the documents and records related to the case, if the judge thinks that the whole components were not enough to proceed against the accused, the judge under section 227 discharges the accused.
4. If the judge thinks that the documents, records and the statements of both the parties were adequate enough to lay down the grounds for further proceedings against the accused, the judge frames a charge under section 228. Now, here two concepts come into the picture that is the jurisdiction of the Court, if the case is not triable by the Court of Session, then the judge might transfer the case to the higher authority i.e. the Chief Judicial Magistrate or any other Magistrate of the first class, and if the Court has the jurisdiction over the case, then the judge shall proceed by framing the charges against the accused.
5. If the accused has pleaded guilty for the offence committed by him, then the judge shall record and on his own judgement may convict the accused.
6. The judge fixes a date if the accused has refused to plea for the examination of the witnesses associated with the case.
7. After the date has been fixed, on that date the prosecution can be asked by the judge for the evidences which require their in-support. At this step, the cross-examination of the witnesses can also take place depending upon the judge’s discretion. This whole step is mentioned in the Section 231.
8. Section 232 of the code talks about the acquittal of the accused, if the examination of the accused, statements made by the prosecution as well as the defence fails to prove the charges against the accused.
9. If the accused is not acquitted, then under section 233 he may be called and might also be required to bring evidences in his favour.
10. Section 234 and 235 explains the part of arguments and deciding that whether the accused should be held liable or be released respectively.

Fair trial: What is it and how does it have a vital role in the criminal system?

When one talks about justice delivering system of the nation, one question or rather I’d like to say a mockery is made up of the justice system that is about the lengthy and tedious process which quite often leads to the injustice to the victims. The most famous case which comes into our mind when we talk about the justice delayed is that of the Nirbhaya case, the incident happened in 2012 and now in the year 2020, the accused were hanged to death.

So, the question arises that what is a fair trial? Has it anything related to the long time which a case takes to settle or whether the accused when in custody is provided with his rights and the list of question doesn’t end.

The Indian Constitution has given its citizens a fundamental right which is Right to free legal aid as prescribed in the Article 22(1). Not only the constitution, but also the CrPC has talked about it in the Section 304. Section 304 is ‘Legal aid to accused at State expenses in certain cases.’ Section 304 in simple language basically provides aid to the accused, Sub-section (1) of this section describes that whenever the accused is unable to represent himself by a pleader, the Court shall appoint a pleader to represent the accused and the expenses related to it will be borne by the State. Sub-section (2) of the section is basically the procedural part of appointing the pleader to the accused, the mode of appointing, the facilities, etc. 

In a decided case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was held that the rules as well the regulations as mentioned in the legal system of India has provided elaborate arrangements to safeguard the rights of the accused with a view to preserving his (accused) dignity as a human being and giving him the advantage of a free, fair and impartial course. 

Various concepts, complexions and theories are associated to the principle of fair trial. Fair trial not only means that the justice should be delivered as soon as possible, it also states as in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat^[ix], that the principle of fair trial represents that the justice has been done without any biases, a trial has been taken in front of an unprejudiced judge and the persons related to the case were given fair opportunities to put their point forward in the case. It is not necessary that in cases where the society has questioned the justice system, the accused must always be accused of the charges, a true and a fair justice would be that where if the accused was not at a fault be released of charges and justice be provided to him/her.

There always lies a conflict of interest between the accused and the society, however the judge in such situations should always apply his own rationale in the case and decide accordingly. The concept of fair trial is a very wide and a subjective concept and cannot be restricted to the various laws and rulings mentioned in the legal system, every person has a right to fair trial which changes day by day and the Courts have also increased the dimensions related to the concept of fair trial.^[x]

Conclusion 

So, to sum up this article has covered the carious vital aspects related to the concept of ‘trial’ which for a person related to law is quite essential to learn and know. In India, the criminal system has seen a drastic change in the various offences, punishments and as the time passes by more and more concepts would be explored and will be definitely added to it.       

References

[i] Lucy King, Who Said Change is the Only Constant in Life, MINDSET MATTERS (Apr. 8, 2020, 11:35 PM), https://medium.com/mindset-matters/who-said-the-only-constant-in-life-is-change-233fd9e27b87

[ii] SCC OnLine SC 108

[iii] AIR 1961 SC 112

[iv] Jury Trial, WIKIPEDIA, (Apr. 8, 2020, 11;50 PM), https://en.wikipedia.org/wiki/Jury_trial  

[v] Code of Criminal Procedure, 1973

[vi] Code of Criminal Procedure, 1973

[vii] Negotiable Instruments Act, 1881

[viii] Different Kinds Of Trial Under CRPC Law Essay, UK ESSAYS (Apr. 9, 2020, 12:30 AM),

https://www.ukessays.com/essays/law/different-kinds-of-trial-under-crpc-law-essay.php

[ix] 2004 (5) SCC 353

[x] Megha Maji, Fair Trial under Section 304 of Crpc, LEGAL SERVICE INDIA, (Apr. 9, 2020, 4:55 AM), http://www.legalservicesindia.com/article/1759/Fair-Trial-under-Section-304-of-Crpc.html

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This article is written by Gaurav Prakash. 

Introduction

There are some basic features of our constitution which cannot be altered or modified by any law. The basic structure has shaped our Constitution. Our nature is also made up of 5 basic elements namely Earth, Water, Fire, Air, and Space. Without them, we cannot expect our existence on this planet. In the same way, Intellectual Property Rights was shaped by certain international conventions. These international conventions played a very important role in upholding the protection of artistic work, literary work, industrial works and invention. They say that necessity is the mother of every invention. There were some incidents that happened in the world which led to the eruption of a strong desire to overcome such difficulties forever.

After the Industrial revolution of Britain, which began in the 1780s, which ultimately led to growth in both steam power and iron production. There was a demand for new inventions and discoveries which can make their work easier. This was the age of change. The whole migration of human beings from agriculture fields to big and small factories and workshops lead to a huge rat race and those races were of inventions. With the advancement in science and technology and the lust of becoming a superpower in the world, both the USA and Great Britain were involved in creating, innovating, discovery and inventions of Industrial tools and machines. With inventions came patents and with patents, came want of protection for industrial property rights all over the world. The zenith of this need was quite evident in the year 1873 when the Government of Austria-Hungary invited other countries to participate in an International Exhibitions for Inventions at Vienna. 

This exhibition was a total failure as many foreign visitors were not very keen on participating in this exhibition and exhibiting their inventions, the reason being inadequate legal protection offered to them. There was a sense of insecurity among the participants. This led to the passing of the Austrian protection law which gave temporary protection to every invention, Industrial designs and patents which was to be displayed in this exhibition. Secondly, in the same year, Vienna Patent reform was convened.

This incident drew the attention of the world and led to the establishment of the following conventions:

Berne Convention 

Bern is the capital of Switzerland. This convention was held in Switzerland, in the year 1887. Berne Convention is considered to be the very first international treaty in the field of Copyrights. It got revised in 1896 (Paris), then in 1908 (Berlin),1914 (Berne), 1928 (Rome), 1948 (Brussels), then in 1967 and finally in 1971 (Paris). Berne Convention has 38 articles which are broadly divided into two categories:

• Article 1-21: They deal with rights, duties, and obligations of member states.
• Article 22-38: They deal with administrative and final clauses of this convention.

The major objective of this convention was to give a uniformity to the rights of authors in their literary and artistic works. The convention contains some basic principles. The first and the foremost principle was that there should be a principle of national treatment, according to which, if any artistic work is originated in any one of the member states then, in that case, it should be considered as originated in every state and it should be granted the same right as it will get in its own country. Apart from the national treatment, they get it is very important that this protection is granted automatically and there is no compulsion of getting oneself registered in that country.

Another important provision of this convention is that it covers works or expressions of “folklore”. Folklore refers to oral history which is passed down from generation to generation and is kept active by the people in the culture. Now, this tradition and history consist of music, legends or even myths. So, this convention gives protection to both published as well unpublished works. Article 2(6) of the convention states that the convention is to operate for the benefit of both authors as well his/her successors in title. That is why Article 7 states that the minimum duration of protection is the whole life of the author and 50 years after his death. For cinematographic works, the duration of protection is 50 years after the work has been made available to the public and in case it is not made available more than 50 years after the making of such work. This convention proved beneficial for its member countries as the work of its authors are automatically protected from being plagiarized in other countries, which ultimately will help these authors in expanding their market share across borders and deriving profit from it.

Paris Convention

Second in this list is the Paris Convention, which was held in the year 1883. The Paris Convention is important because it was the first time the industrial property was also given consideration. This convention applied to not only inventions, trademarks and industrial designs but also utility models, trade names, an indication of source, application of origin and repression of unfair competition. This convention, like the Berne Convention,8 has been revised several times, the latest being the Stockholm Revision in 1967. A total of 11 countries (Belgium, France, Brazil, El Salvador, Guatemala, Italy, Netherlands, Portugal, Serbia, Spain, and Switzerland) were initially the members of this convention. They were later joined by Great Britain, Tunis and Ecuador, making their strength to 14.

The principle of National Treatment is one of the highlighting features of this convention. Suppose a business entity that is not from a member state is claiming protection in a member state, in that case, the business entity will have the same power and rights which the business entity or a legal person must be having in his own country. This simply means that the national law which will be applicable in a member state will also apply to any foreign legal entity or a foreigner. So, this principle makes sure that not only the foreigners will be protected but it also guarantees that they will not face any kind of discrimination. There is no form of giving and take, no requirement of reciprocation of legal protection.

Another important feature is that of the Right of Priority. This means that if the applicant of the patent application has applied in either of the member countries of this convention, then the applicant will be having a period of 6-12 months to apply for protection in other member countries. A person may sometimes file several patent applications, relating to the different parts of one single invention at different dates, so to counter that he/she can club them together and can file a single application. Now, these applications will get a status of priority and will be considered to be applied on the very first date when that applicant has applied in the first member country. This is done to prevent the applicant from any kind of exploitation. Sometimes a member country can make changes in its rules and regulation to destroy the patentability of his invention. The right of priority offers great practical advantages to the applicant to protect their patents. This right of priority can also be invoked by the successor of the applicant.

The next feature is that of the Independence of Patents. This means that if the application for a patent is refused, terminated or cancelled in one country then, in that case, it cannot become the basis for rejection in any other member state. In the same way, the grant of a patent for the invention will not obligate any other member state to issue a grant for the same invention. This rule applies to even non-members of this convention. This is done so that the applicant is protected from any kind of injustice. Sometimes a patent applicant can lose his validation on non-payment of a patent fee to that country, now this should not become the basis of rejection in another country which does not have the same rule and regulations as every country has different administrative practices.

The last feature which is my personal favourite is that of the right of the inventor to be mentioned when an application for a patent is made. In some countries like the USA, it is even required that the applicant and inventor both must be the same person, so respect, fame, and fortune is awarded to the person who deserves it.

Rome Convention

Last in this list is the Rome Convention which was held in the year 1961. It is also known as The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization. This issue was raised in the 1928 Rome diplomatic conference to revise the Berne Convention. Finally, in 1960 a meeting was held in Hague, The Netherlands where experts from UNESCO, ILO (International Labour Officer) and United International Bureau for Protection of Intellectual Property met and drew the draft of the convention. Article 1 of the Rome Convention provides that it no way affects or prejudices copyright protection in literary as well as artistic works. This means that the authorization of an author is utmost important and his/her validity is important for the use of his/her work. This convention majorly focused on the protection of rights of performers, producers of sound recordings and broadcasters. It is pertinent to note that the use of artwork or even literary work was usually implicit in the work of performers, recorders, and broadcasters, this convention established a link with copyright protection. To become a member of this convention, a country has to be a member of the United Nation and also a member of the Berne Union or party to the Universal Copyright Convention.

This convention like the preceding convention also talks about the National treatment, Performers will be entitled to protection under this convention even if they do not belong to member countries. This was made so that a wide number of performers are covered under this convention. Broadcasting companies are entitled to national treatment if they have headquarters in another Contracting state or if the broadcast was transmitted from a transmitter situated in another member country. The same way producers of phonograms are also entitled to national treatment if they belong to other contracting states or if the phonograph was published in another member country. This convention guaranteed certain protections.

Article 7 of the convention states that it prevents the reproduction of the performance of the performers without his knowledge and consent. It also includes preventing any act which did not have the consent of the performers. Article 10 of the convention states that Producers of Phonograms are provided with the right to authorize or prohibit reproduction of their phonograms, which were reproduced without the consent of the Producers. Article 12 of the convention talks about the secondary use of phonograms. If a phonogram, published for commercial use, is used for broadcasting then, in that case, the user of that broadcasting should pay either the performer or to the producer or both. Now here the discretion is one the nation where it is broadcasted. There is no mandatory rule regarding payment of remuneration. Article 13 states that broadcasting organizations have the right to authorize or even prohibit the rebroadcasting of their broadcasts or some fixation of their broadcasts.

The minimum term of protection under the Rome Convention is 20 years from the end of the year in which the performance took place, or the broadcasting of these performances took place. The Rome Convention also permits the member countries to have a certain limitation on rights conferred by this convention. For example, Article 19 of this convention states that once the performer has given his consent to the incorporation of his performance either on a visual medium or an audiovisual fixation then, in that case, he will have no further applications which set out the right of the performers.

Conclusion

All these conventions played a massive role in the development of IPR laws around the world. The articles of these conventions have inspired IPR laws of many countries.

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This article has been written by Mridul Tripathi, currently pursuing BBA LLB from Vivekananda Institute of Professional Studies. This article juxtaposes the right to bail that persists during normal times to the shape it has taken in the wake of the CoronaVirus.

Introduction

In an order dated 23rd March 2020, the Supreme Court exercising its suo motu cognizance issued a direction to all the states and UTs to form High-Level Committees in order to determine the class of prisoners that could be released on parole or on interim bail. The period for which they would be granted parole is to be decided by the committee. This direction has been issued to decongest the prisons in the wake of the Coronavirus. 

‘Indian prisons are overcrowded’, the top court has relied upon a report of the NCRB (National Crimes record Bureau) to substantiate this statement. The report has mentioned the occupancy rate of Indian prisons to be as high as 117.6%. In Uttar Pradesh, this ratio shoots up to 176.5%. This data alone is enough to prove the need for steps to be taken to decongest the Indian prisons.

Right to Bail as a right during normal times

Before we move on to analyse the right to bail in the wake of the Coronavirus, we need to understand what the right entails during the normal times i.e. not during the time of a crisis.

Let’s start with the definition of the term ‘bail’ as provided u/s 2(a) of Cr.P.C. 

Definition

Bailable offence, as defined u/s 2(a) of Cr.P.C, means any offence mentioned in the first schedule of the Code or any other offence made bailable under any other law in force. After a study of the schedule it could be said that mostly the offences that have punishment lesser than that of 3 years are bailable while the rest are non-bailable.

Bailable Offences

The right of an accused to demand and to be granted bail has been mentioned in Section 436 in the case of bailable offences. In bailable offences, when a person is detained or arrested without a warrant, by an officer in charge, at any stage of the proceeding, such a person can file an application to be released on bail. The section also states that if the person subsequently fails to comply with the conditions mentioned in the bail bond then his bail can be cancelled, and he can also be made liable to pay a fine.

Non-Bailable Offences 

There are several grounds laid down under Section 437 as to when bail can and cannot be granted for a non-bailable offence. 

When can the bail not be granted 

Section 437(1) states that a person (arrested or detained without a warrant) can not be granted bail when there appears to be a presence of either of these two grounds.

If there exist reasonable grounds to believe that the person has been guilty of an offence punishable with death or imprisonment for life. If the person has committed a cognizable offence and had been previously convicted of an offence punishable with death, imprisonment for seven years or more, he had been a convict for more than two times of a non-bailable and cognizable offence. However, the proviso to this subsection states that the person can be released on bail if the court is satisfied that it is just and proper for a special reason to release him on bail.

Provisos to this subsection also state that the person might be released on bail despite the presence of above-mentioned grounds in case of a non-bailable offence if the person is under the age of sixteen years are sick, a woman or an infirm. The accused cannot be denied bail only for the purpose of making him be present for identification by the witnesses during a police investigation.

When can the bail be granted for a non-bailable offence 

Section 437(2) states that if the reason to believe that such person has committed any extinguishes during the trial or investigation, so does extinguishing the reason to deny him bail even if there are sufficient grounds to hold him up for further investigation. 

Subsection (6) puts a bar on the number of days in which the trial of a non-bailable offence should end failing which the person accused will be granted bail (the magistrate can deny granting bail but the reasons should be recorded in writing). The bar is set to be 60 days from the date of the collection of first evidence. 

After the end of the trial and before the deliverance of judgement, if the court is of the opinion that the accused has not committed the offence, he shall be released. If he is in the custody of the police, he should be released on the execution of a bail bond without sureties.

Anticipatory Bail (Sec 438 of Cr.P.C) 

The right to grant anticipatory bail has only been vested only in the High Court and Sessions Court. As the name suggests, when any person anticipates an arrest for committing a non-bailable offence, he may apply to either of these courts for a direction that he should be released on bail in the event of such an arrest. It is a discretionary power vested in the courts. Subsection (2) has mentioned certain conditions that might be considered while delivering the order. An application for Anticipatory Bail can be filed even before filing of an FIR. 

Interim Bail

Interim Bail or Temporary Bail is granted when the accused’s application for a grant of regular bail or anticipatory bail is pending before the Courts.

Right to Bail in the wake of Coronavirus

Is there any alteration in the rights

In the wake of the Coronavirus, the Supreme Court issued regulations in its order, In Re: Contagion of COVID-19 in prisoners suo motu Writ Petition (C) NO. 1/2020, dated 23rd March, which has stated that a High-powered Committee should be set up in every state and UT that would decide on the matters in which the parole and interim bail should be granted for a period that might be thought appropriate. The paroles and interim bails so granted are being granted in order to facilitate decongestion and to ensure social distancing amongst prisoners. The committee shall be constituted of:

• State Legal Services Committee’s Chairman,
• The Principal Secretary of the Prison/Home,
• Prison’s Director-General.

Any specific alteration to the rights has not been clearly mentioned in the judgement. The High Powered Committee is supposed to exercise complete discretion in deciding which class of prisoners are to be released on parole or who should be granted interim bail. 

However, keeping it completely open for the high powered committee to decide, the basis of judging the matters are set to the following grounds: 

• The nature of the offence,
• The number of years to which the prisoner has been sentenced, or 
• The severity of the sentence with which a person is charged and is facing trial or any other relevant factor.

Via an order dated 16th March 2020, the SC of India had issued a show-cause notice to various Government of States and Union Territories that why shouldn’t a direction be issued to States and in a reply to it, every State has enumerated the steps that it has taken. Steps mentioned included letting the visitors communicate to the inmates through telephones or video calls only, building temporary places near the prison to keep the prisoners, identifying the group of prisoners which faces more risk of contracting the virus (based on their age and past ailments) and providing extra protection to the group etc. 

Offences for which bail was offered

The Supreme Court has directed that the States and Union Territories could consider the release of prisoners convicted or an accused undertrial for offences whose prescribed punishment is lesser than 7 years with or without fine, and the prisoner got convicted for lesser years than the maximum. 

Bail granted to prisoners

Since the day the Supreme Court’s Order came out, various High Courts have come up with their own procedure to implement this guideline. ‘Only the urgent matters are being heard’ is being reiterated by every court but what ‘urgent’ means is still not clear. There is no uniform pattern or a nexus observed between cases deemed as urgent. The Supreme Court on the 23rd of March cancelled all proximity cards and lawyers only for special reasons can enter the premises, after being authorised by Supreme Court Bar Association.

Patna High Court announced that the interim bail applications would be treated as urgent but the no of cases listed every day is too less to make a change. Madras High Court has been especially lenient in delivering these bail orders according to the reports by the various media houses. It was reported that bail was granted (bond of Rs 10,000) to a 40-year-old woman who was accused of committing the murder of her abusive husband. 

The High Court has stated that it is impossible for it to answer every individual application made online or via mail due to the inadequacy of the staff. It is only entertaining urgent bail applications based on special reasons. 

Offences for which bail was denied in light of the crisis

There isn’t a group of offences specified by the Supreme Court that would straightaway be rejected or wouldn’t get considered for a grant of interim bail. As observed through various media reports, the following cases are the ones that were denied bail even in the light of the crisis: 

• Madras High Court has refused to grant interim bail to an accused under the POCSO Act, 2012 (Prevention of Children from Sexual Offences).
• 59 yr old Christian Michael, one of the accused as middlemen in the Agusta Westland Scam approached the SC for a grant of interim bail in cases booked against him by the CBI and the Enforcement Directorate. He has gone to the apex court as the Delhi High court didn’t consider his plea as an ‘urgent’ matter on the ground that his age has made him more vulnerable to catch the virus as compared to others in the jail. The Supreme Court refused to entertain the plea and asked him to move again to the High Court.
• Interim Bail was denied by the Gujarat High Court to Asaram Bapu, who is a self-styled godman of 84 years. His application was denied on the grounds of the seriousness of the offences committed and the contention of the State to use the rejection of applications of regular bail by the High Court and the Apex Court as a precedent, was also accepted. There appeared no reason to grant him an interim bail due to any urgent reasons.
• A Special Court (Patiala House Courts) rejected Deepak Talwar’s (who is above 60 years of age) interim bail application. Deepak Talwar (an aviation consultant) is accused of diverting money received by his NGO from a European Defence Manufacturer. Talwar complained a sore throat and tried to make the court take into consideration his ailments to grant him interim bail. The court denied this contention citing the medical report that showed that the accused was given all the medical facilities and was stable. Deepak Talwar is accused of lobbying with officials of the Ministry of Civil Aviation to provide favourable rights to the companies at the cost of Air India.

Conclusion

There clearly seems to be a ruckus in the working of the Courts in various States as there doesn’t seem to be any uniform structure. The Supreme Court hasn’t yet come up with clear guidelines like with definitions of important terms such as ‘urgent’ or with a list of offences that should be clearly rejected or not considered. 

COVID-19 for sure has tested the preparedness of the courts in the country and with the reports popping from different States, it cannot be said that it is faring well. Looking at the brighter side, one can only say that the Courts though minimally yet somehow have managed to work through video conferencing. But indubitably, a clearer picture and certain reforms are overdue.

References

• https://www.livelaw.in/top-stories/covid-19-sc-directs-statesuts-to-consider-granting-parole-to-prisoners-in-lesser-offences-to-de-congest-prisons-154233
• https://www.tribuneindia.com/news/nation/covid-19-sc-asks-agustawestland-scam-accused-christian-michel-to-move-delhi-hc-for-interim-bail-64145
• https://www.soolegal.com/news/self-proclaimed-godman-asaram-who-contended-easy-contraction-of-covid-19-was-denied-interim-bail-by-the-gujarat-high-court
• https://www.thehindu.com/news/cities/chennai/it-has-been-raining-bail-orders-in-madras-hc-due-to-covid-19/article31231537.ece

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This article is written by Rajat Chawda of the Institute of Law, Nirma University, Ahmedabad.  This article explains whether a person can build a career focusing only on some particular skill sets.

Introduction

Every person wants to be successful and be respected in society. To get himself established, a person tries to knock on doors of every opportunity it can get hold of. But Law is a diverse field, there are a lot of career options available for a law aspirant like the judiciary, litigation, corporate practice, in-house counsel, research, and many more. A lot of these fields require almost similar kind of skill sets but there are some specific attributes if an aspirant masters it, he can open the door to immense opportunities and success. 

This post deals with two such broad areas: negotiation and drafting. What are the career options available to a person who masters them? What are the skills required? How can one improve such skills? It also describes an emerging area related to startups and tech business: Can a person build a career specializing in enforcing tech contracts? 

Can you build a career specializing in negotiating, drafting and enforcing tech contracts?

According to Josh Kaufman (Author of the bestselling book, ‘The First 20 Hours Rule: How to Learn Anything….Fast’), it takes a human being only 20 hours to learn a new skill. The time spent after these concentrated 20 hours is the duration when one specializes in that skill. Therefore, a law aspirant can also develop his skill sets using this principle. Any skill learned is not a waste but an asset, which will definitely give results when the time comes. So, a person should learn as many skills he can and be a better person than the person he was yesterday.

But the question is, Can I build a career while focusing only on some skills?; Yes! You can build a career but it is always better to have a wider perspective and not a bird’s eye view when it comes to specializing skills. 

This post deals with two such areas or tools of a lawyer: Drafting & Negotiation and a specific area: whether a career can be built by only enforcing tech contracts.

Career Options

Since law governs almost every aspect of an individual’s life, it will be wrong to say that there is a dearth of work in this field. If you find a lawyer who does not have sufficient work in hand, it is probably because he lacks the required skill sets to make an impact on others and get more work. To not fall under this category of lawyers, it is suggested to learn and develop the appropriate skills. 

What will be the various career options available to a lawyer who has been specialized in negotiating and drafting?

• Specialization in Negotiation 

Negotiation is the art of convincing the other parties to put forward one’s interest in a manner that the opposite party agrees to your position while putting forward his standing over a dispute. If you have specialization in negotiations is dispute resolution broadly. Following are the career opportunities to look after:

1. Arbitration

In arbitration, a lawyer can be both an arbitrator or representing his client for arbitration. Arbitration is the alternative form of dispute resolution from courts, where speedy resolution is the thriving force behind its introduction. Arbitration is attractive for businessmen, companies who generally avoid litigation because of its slow pace, and the amount of money involved.The decision of an arbitration is a binding one. Therefore, it is necessary for a person that his interests are rightly and logically put forward at the time of arbitration. For this reason, a person would want to hire only a lawyer who is specialized in this field, know its intricacies, and has a good credibility in the legal fraternity.

2. Mediation

In every court case, there is one winning side and one losing side. But, when the parties involved are the people we are related to, the matter may become worse. Healthy family relations get destroyed while the case is even going on. To avoid such situations, it is always suggested to go for mediation to resolve family and petty civil disputes. There are petty civil disputes like family disputes, property disputes, divorce matters, etc which need to be handled carefully, efficiently and effectively. A lawyer’s role is to adjudge the position of both parties, listen to their problems with patience and mediate their dispute in a way that is in the interests of both parties. Therefore, a lawyer who has the patience to listen to both the parties, analyze the dispute carefully will be the desired mediator to resolve their dispute. 

3. Client Counselling

A person may require the guidance of a lawyer at any point in time, he might be going through strained family relations, civil disputes, criminal matters, or even business disputes. A good lawyer must always make himself available whenever his client is in a dire situation. It is the lawyer’s duty and responsibility, to listen carefully to the problems of his client, look for every possibility which can resolve his problem, discuss with him the best possible way to resolve the situation and work as per the direction of the client. It is most important that the lawyer renders his service as per the instructions given by the client and not work by himself. There might come a situation when the client specifically gave instructions and the lawyer disregarded it to be in the best interest of the client but in reality, the client does not want that. 

Example: In an inheritance dispute, a client instructs his lawyer to back off from any claims in the property which he was rightfully the owner of, to maintain family relations. But the lawyer does the opposite to that hoping to be in the best interest of his client. This is not the mark of a good lawyer who does not listen to his client.

4. Litigation

Negotiation is all about convincing that your presentation of facts is the correct and true version. If one possesses and specializes in this skill, he can easily represent his clients before the court. The art of making arguments by a lawyer before the judge, assessing his mood, using appropriate and the initial stage of a court proceeding decides the behavior of the judge towards the case in hand. It is said that if a person wants something from another person, he has to ask for it properly in proper behavior. If one, while negotiating, gets hold of that behavior, no one can beat him at his game.

• Specialization in Drafting

Drafting is the first step towards giving physical form to an idea or thought. This thought could be anything, a story, a case brief, an article, an essay or legislation deliberated between people. Specialization in drafting requires clarity of thought and excellent writing skills. A lawyer who is well-versed with the intricacies of drafting has the following career options: 

1. Research

Research involves in-depth analysis and study of existing material to reach new conclusions and establish facts. Through research, a person benefits in many ways. First, he specializes in the specific area in which he is conducting research. Second, after the research gets completed, there is clarity of thought in the mind of the researcher, therefore he can provide assistance in that subject-matter. Third, when research is useful for others the researcher will get proper credit for his research and through this way he can establish his credibility in that field and interact with many other people of his likes. 

2. Paralegal

A lawyer always needs the best and reliable man who can work on his behalf drafting important documents, files affidavit, replies, manages all his case-work and appointments so that a lawyer does not have to worry about the backend work. A paralegal eases the workload of a lawyer and therefore the lawyer has more time to deal with a case effectively and efficiently. If a paralegal is aware of the legal requirements to draft a document, can draft an excellent reply, can perform legal research effectively without the requirement of cross-checking by any other person, he will be surely impacting a lot in this field.

3. Policymaking 

Governance is a tremendous task, especially for a country like India, where people are not aware or well-versed with its legal principles and arrangements. Policymaking involves formulating policies, rules for these people. Policymaking involves in-depth research of the demographics, awareness of socio-political problems and the constitutional mechanism of the state. A policymaker, while making policy has to keep in mind the present scenario of a problem, how can by formulating a policy resolve that problem, what impact will be brought in the society by implementing that policy, what will be the public reaction. A specialized policymaker will consider all these factors and draft a policy that is in the interests of all.

4. Freelance

With the rapid development in technology and with the advent of globalization, the whole is enclosed in our devices. The online world has immense potential to grow our career or business further. There are many online platforms like Freelancer, Fiverr, Upwork, etc that enable a service provider to work from home. There are many opportunities in front of a good drafter to write ghost articles, write in journals, magazines, etc and showcase his skills. A good drafter can also provide his services to lawyers, drafting replies, affidavits, case files, etc on behalf of them. 

Enforcing Tech Contracts

Till now, the post has provided for various career options that a person can choose if he specializes in negotiating and drafting. But what about if one specializes in tech contracts: negotiating, drafting and enforcing them? Can a career be built if one only specializes in tech contracts only? 

Yes, with the advent of globalization and digitalization, all business companies want to make their presence on the internet and have a digital presence in rendering services or advertising or for any other reason. Daily millions of worth of contracts are entered into by tech companies. An article on CompTia stated that the IT industry will reach a mark of $5.2 trillion net worth in the year 2020. Therefore, a person who specializes in tech contracts is aware of the bits and pieces of the tech world will surely be able to create an impact in this field.

What do tech contracts deal with? Are there any special skills that require specialization?

Need for Technological Companies and Tech Agreements

Tech agreements are just not limited to acquiring technology to have an online presence or just related to software or digital technology. They also include licensing of technology for protection against intellectual property infringement and to be safe from potential risks.  

Since technology law is a growing area of law most lawyers are not well-versed with the field and go for conventional contract clauses whereby the parties sign standard terms of business. Therefore, such practices provide less legal protection. 

To avoid such situations the company requires a lawyer who is aware of technological developments and is well-versed with intricacies of contract law, which will help them in negotiating a better deal and minimize the legal risks involved in a business transaction.

What Tech Contracts Include?

Having discussed why specialization in tech contracts is important and lucrative, it is important to know what tech contracts include, what subject matters do they deal with? 

It should be noted that all tech contracts are general contracts but what makes them a separate subject matter is the technical understanding of the subject and why such transactions are taking place in the first place.

Majorly, the following are the agreements which a lawyer in this field needs to look after:

• Outsourcing Agreements

These are the agreements to render services by a service provider to a company, in which the service provider promises to provide the necessary service. The services may include data processing, information management by using own workforce, equipment and facility,

• Software Development and License Agreements

The agreement to develop software by the developer for a client is a software development agreement. When such software is being made, the client becomes the owner of this property. He has the power to control who can use this, when can he use this and how can he use this. When the owner transfers some of these rights to another person, it is a license agreement whereby he is licensing the purchaser’s rights.

• Cloud Computing Agreements

When there is an arrangement that involves accessing a provider’s software and infrastructure remotely and includes storing of customers data with that of the service provider. 

• Website Development Agreements

The agreement between a company and a web developer to develop to render his services as per the requests of the client. The agreement lists the responsibilities and tasks of the web developer, the liability of the company, terms, and conditions, website warranties and representations.

• IT support and maintenance agreements

The agreement between the service provider and the client to support the functioning of the software, which includes: diagnosis of problems or performance deficiencies of the Software and a resolution of the problem or performance deficiencies of the Software.

With rapid development in data privacy laws, and blockchain technology, Technology law jurisprudence is evolving at a faster pace and more subjects are being introduced with the passage of time. This rapid jurisprudence in the technology law means more workload for the lawyers which are specialized in this field and keep themselves updated with the happenings in the field.

Skills needed

There are no specific skills required to be specialized in the field of tech contracts as they are somewhat similar to general contracts. The only thing which makes them different is the technicality involved. If one keeps himself aware of the technological updates and its basic understanding, it will be sufficient enough to render services efficiently and effectively as a tech lawyer.

Ways to Pursue 

These were some career opportunities that a lawyer can pursue if he is specialized in negotiating and drafting skills. But mentioning career options is not just enough unless there is no direction given on how to pursue them, how one can enter into this field. These are some following things that a lawyer can use in the initial phase of his life to make an impact in this field:

1. Building a Network

It is not possible to build a career in any field unless you have credibility in that specific field. Credibility can be earned by engaging with fellow lawyers, helping them out, seeking out opportunities that you will never be able to have if you had not known them. Linkedin is one of the best platforms to build your network, engage with fellow mates, have their opinions and put ours and make an impact in the fraternity. By building a network, one can get hold of potential clients through references, as it said that alone we can do little, together we can do so much.

2. Working in that field 

One cannot grow unless he is out there struggling in that field. Have you ever heard of any person who is specialized in a field and is not working? Every day is a struggle for a person who has to make an impact on his career. By working, a person gets to know how the institution of a particular field functions, what are the relevant instruments and skills needed to be developed and where one is currently positioned in the field. 

3. Interacting

Interacting helps a person to know other people around him. It helps to keep oneself aware of the happenings around him and keep oneself updated helps him to prepare for the forthcoming situations and make himself ready for everything. Interacting also helps a person to grow contacts, grow his network connections and reach out to potential clients. 

4. Internships 

Internship helps a person to assess himself, at what level he is standing in a field. Internship helps to get oneself acquainted with the know-how of the field. It also gives a person the platform to apply the theoretical knowledge learned in the practical field. By working in the practical field, the person assesses his skills and further develops the skills he lacks in the field. Through an internship, one can also create an impact on the potential recruiters by showcasing his skills and thereby getting recruited.  

5. Feedback

It is important to know how one has performed, what impression he had left in the minds of others. One can only improve by learning from his mistakes. Feedback enables a person to understand where the person lacked while rendering his services. If you render services to a person, know what their expectations were, how satisfied they are with your performance, was there anything where they lacked to perform. Feedback is not sufficient to make an impact on one’s career, it is important to learn from the feedback and improve oneself. If nothing is learned from the feedback, it is of no use. 

These are some ways through which one can enter the field in which he specializes and start his career. This is not an exhaustive list but a mere guiding list, a person can find out his own ways to enter into a field apart from these conventional ways. 

Skills required

Till now we have listed out various career opportunities and the ways to pursue that if you have been specialized in negotiation and drafting.  But now, this post will discuss the skills which are required to build a career in these fields and how one can improve them. It is okay if one does not have these skills right now (Remember you can learn a skill in just 20 hours!), but it is not okay if one does not start learning and leave his comfort zone. Following are some skills which will have to be perfected to make an impact on these fields:

1. Public speaking

In simple terms, public speaking is the ability and the confidence of a person to articulate in front of others. Can you present and talk on a topic fluently and tirelessly and love doing that? If yes, then you are already good at public speaking.  If a person can put forward arguments fluently and logically, he is already a good public speaker.

2. Convincing

If one has to specialize in negotiating, he has to grasp the ability to convince others. To convince others is the ability to make others agree to your interest without compromising yours. If one gets the skill to convince others in any sort of dispute, it should be considered as the battle is already half won. If one lacks the ability to convince others, it would be difficult for him to get the opposite party to agree to his position.

3. General Awareness

A lawyer should be aware of all the happening around him.  Being aware of the happening going around him helps a lawyer to draft his arguments and speech keeping in mind the present scenario. Being aware helps to create an impression on the other about the active participation of a person in the development of the society, become a better and responsible citizen and thereby others will also try to be responsible to match up to that person. It adds weight to an argument when it is presented with the happenings around and if the opposite party is not aware of the situation, chances are less that they will counter that argument while arguing. 

4. Excellent writing skills

Writing is a continuous process, one cannot perfect the art of writing. It takes time, patience and a lot of reading and patience to write well. Through writing, one gains clarity of thought to articulate his argument structurally, logically, and fluently from one point to another point. Writing is an important skill that every person should practice as it is an immense benefit to both personally and socially. 

Improving Skills

As it is said that practice makes a man perfect, if you have learned a skill, all required is that you practice these skills and day by day become better at it. There are a lot of ways to improve these skills. 

1. Study

It is most basic amongst the tools to improve one’s skill sets. By studying a specific skill set, one gets to understand the deeper theoretical aspects of it. By studying extensively one grasps the clarity and command over the subject. Therefore, studying will help to better the argument and presentation because one is well-versed and prepared with the subject and is comfortable in that area.

2. Publication

The publication is the second step after studying a specific area. When one has studied effectively about a specific area, how can he share his knowledge, experience and command over that specific area? Publishing articles on relevant topics related to that field, which can help others to gain clarity in that subject can help a person build credibility in that specific field. The publication will encourage others to contribute and add further to the field and hence promote engagement within the community.

3. Attending Workshops and Seminars, Interacting with peers

By attending various workshops and seminars one gets to understand the viewpoint and perspective of another on a particular subject. Discourse is the best way to understand and gain clarity over a subject. Workshops and seminars are attended by like-minded people of a specific area. Attending such events and interacting with others helps to grow one’s network in the fraternity and share what one’s understanding is about a specific subject matter. 

4. Internship and improving from the feedback

It is well established that there is a lag between the theoretical knowledge provided and the practical skills applied in the field. So, one can improve his skills drastically by working on the ground assessing himself daily. An internship also provides a platform to get feedback from the people already established in a specific field. Feedbacks are of great value to improve oneself while interning, the people already established in the field assess where a person is lacking and suggest him appropriate advice to improve.  

Setting the Right Example

Every claim which is asserted is to be backed by some reason, proof, or evidence. Throughout this post, we made an assertion that a career can be built by specializing in negotiation, drafting, and enforcing tech contracts. But now, we have back our claim by giving examples. There is not a perfect example that matches this area of law but depicts that a career can be built by specializing in a specific field.

1. Ikigai Law

This law firm is an award-winning law firm, which has a market-leading regulatory, policy and commercial-law practice for technology and innovation-led businesses. 

2. Bayar Goswami

Mr. Goswami is the perfect example that one can build a career specializing in a specific field. He specialized in the field of Air and Space Law, which is unconventional and a new field. But, by specializing in this developing field he has opened a door of new opportunities for himself.

Conclusion

Therefore, a career can be built by specializing in negotiating, drafting and enforcing tech contracts. This post has tried to list out some career options and relevant skills required, how to improve them, how to pursue them. It should be kept in mind that it takes time and patience to make an impact in the field, as is said success is a journey, not a destination.

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

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This article is written by Anubhab Banerjee, from the School of Law, Alliance University. This article deals with whether law firms should entertain work from home options for interns.

Introduction

Earth has been hit by a crisis in the name of COVID-19. The virus has been disastrously affecting lives around the globe physically, mentally and economically. This has impacted the lives of a lot of people in many different ways. Legal Interns at Law firms are no exception to it. For some their internships have been discontinued and for a few others may be a stagnant work from home option has been provided.

This article deals with the issue of online internships at law firms which may be the need of the hour for the development of young legal professionals.

What kind of work do interns do at law firms?

Interns at law firms can work under different departments and with different teams of the firm. This selection may be as per the interests of the interns or as per the wish of the law firms. There are numerous fields in which an intern may excel his/her knowledge at the law firms. A few of those fields and the work which is required to be done by the interns working under those respective teams have been discussed below:

• Interns can work with the litigation team of a law firm
• They can work with the M&A team of a law firm
• They can work with the dispute resolution team
• They can work with the corporate team

Similarly, there are several other specialised areas of law concerning which an intern may work at a law firm. 

Why are internships important for law students?

The general expectation from a student pursuing law as a career is that once a student completes his/her studies, such a person should have a good understanding of both the theoretical as well as the practical aspect of law and the legal profession in general. The theoretical aspects of the subjects are mostly taught at the different law schools across countries and a certain degree of practical exposure can be attained with the help of activities such as Moot Courts. However, the real experience with regards to fieldwork that one has to do in law is gained when a student pursues internships. These legal internships help students develop the relevant skills required to pursue a career in law. A few of the things which a legal intern learns from an internship are as follows:

• Observe and Learn

The basic intention behind an internship is to better understand what lawyers or associates of a firm work on i.e. what do they do throughout their day and how do they handle their work. It also helps a legal intern in understanding what type of work they can expect once they actually join the profession. It gives them a brief idea of how their life is going to be impacted, once they join the profession.

The practical aspects of the legal profession which a legal intern learns during his/her internship are considered the most important. This includes activities such as presenting a case, talking to clients, etc. and which thereby helps them gain the skills which are most important in the legal profession.

• Do research

Research is an aspect to which all law students can associate to. Research is one of the very first things which is taught to law students in their law schools. The research work which law students are involved in as a part of their law school courses is significantly different from the type of research they are required to do once they start working. Professional research mainly includes research which is centred around particular cases. It is very important for law students to be accustomed to such minds of case-specific research.

• Organise and Prioritise

Laws firms can be associated with a huge amount of paperwork which their employees have to deal with for conducting their day-to-day activities. Every such document present in a law firm is of utmost importance as they are documents related to their client. The organisation of these documents and the way they are arranged is something which a legal intern should learn in his/her internship process and this is something which would eventually help aspiring law students in the long run. Prioritising their work and managing their time efficiently is also something which legal interns get to learn from the fellow associates and partners working at these law firms. This being one of the most important aspects of the profession. Without being able to manage time properly an individual can never really be successful in the field of law.

• Act as a court assistant

This is one of the most important aspects of an internship. Attending and assisting in court proceedings is somewhere a legal intern gains practical experience and gets an understanding of how the court functions and how cases are presented in front of the court. Such assistance is not just limited to court hearings and can even be extended to arbitrations and mediations. Thus a legal intern gains quite a lot of experience and understanding of the profession while on an internship. Though such activities would not be possible under the current state of lockdown. Still, work-from-home internships should be prioritized because of its other benefits.

As already discussed law students require to intern to gain practical experience about the legal profession. Though that is not the only aspect because of which law students keep looking for attractive internship opportunities across the country. These internships in turn help law students in the process of CV building. Eventually, when a law student applies to a firm or to an organisation for work, it is mainly their internships and the field in which they have worked is seen. Though internships are not the only thing which is to be considered when a person tries to excel in his/her life at a law school. Still, internships play a major part in helping build a person’s profile i.e. his/her CV. Getting hold of internships related to a candidate interest and working on those fields eventually helps them gain a vast amount of experience and an edge over others who are at the same stage in the field. 

These internships also have an impact on the application people prepare while applying to college for further studies in law. 

The practice of law can be a profession which varies from teaching to becoming an advocate. Thus, internships can eventually help students structure their careers. As law aspirants who undergo such internships can discover whether they would actually be comfortable working under the set up of a law firm, or would they like to work under an independent lawyer or a public prosecutor, or maybe they would like to give a try to high education and eventually have an aim to teach.

Under the present circumstances do law firms need interns?

The answer to this question might make it a bit more complicated for interns looking for an online internship at a law firm during this lockdown. As it’s not just about an internship, it also concerns the workload on the law firms. With the Indian courts being limited to just important hearings, the number of cases being heard by the courts has reduced by significant margins. Most of these cases which are being heard are either through video conferencing or in private places where there is no probability of a crowd accumulating. The fear which has been created due to the COVID-19 associated with the virus reaching a stage of community spread, the gathering has been banned and thus, it has been seen in the eyes of public welfare that even courts should stay shut to avoid unnecessary gathering in and around them.

So where does it lead us to?

The courts, judges and lawyers are taking a more virtual approach towards the hearing and trying to become a bit more technologically advanced to help accommodate this situation or maybe a delay in most of the proceedings. Though this is not a matter we are concerned about directly in this article but it is certainly something which is affecting the lives of the interns at the law firms. As with the courts being shut and most hearings being postponed, the law firms actually are not left with much work. 

The absence of work in the law firms has a negative effect on law interns. As interns are mostly hired by law firms for two purposes:

1. To assist their employees and put some pressure off their shoulders by doing so
2. To help the interns develop the skills required to work at a law firm.

Though the absence of an office setting brings in a void in the learning process for interns through an internship. The gap of direct communication between the interns and the law firms is also a big issue of concern while considering work from home internships.

With the use of technology for legal use being on the rise during this lockdown, it is an opportunity for both law firms and law students to start rethinking and re-developing their modes of work and thus ultimately help enhance the aspect of work from home internship experiences which might end up being beneficial for both law students as well as law firms.

Privacy issues associated with internships at law firms

Most law firms in India do not allow the use of personal devices for research related to the firm’s work when an intern joins them. Such steps are mostly taken to maintain a high level of privacy with regards to the information they hold with regards to their clients. As such information is very delicate and any leak might cost them both monetarily as well as reputation-wise.

Most law firms across India make their interns work on the computers installed at their offices itself and do not allow the use of personal devices for law firm related work. Thus, when we talk about work from home internships, privacy becomes a very critical issue for most of the law firms. The law firms provide their employees with office laptops which are coded accordingly for work from home. In a situation of a lockdown which we are in currently, all of the members of these law firms are working from home, and all the devices available for such use have been given out. It is also not possible to provide such an encrypted device to its interns. This is where interns at law firms are suffering across the country. Privacy stands out as a great issue for a lot of internships to be discontinued at law firms presently. 

However, this might not be the case for several other law firms which allow the use of personal devices for the purpose of dealing with the work provided during their internships. These law firms have eventually provided a work from home opportunity for most of the interns working under them in the present circumstances. Privacy is as important for these firms as it is for the ones who are not being able to provide these online opportunities due to their privacy concerns.

The only difference lies in the mode in which most work is done at these firms. The firms mentioned earlier under this heading have particular softwares running in their systems to take care of privacy because of which work on personal computers or devices is not possible for their employees or interns. While for the latter category there is no such software taking care of their privacy concerns instead such is taken care of by the employees of the firms itself, which eventually makes such work from home internship opportunities possible.

Benefits reaped by law firms by letting interns work from home

The most important aspect of these internships is to help young legal aspirants to get an experience of how things work in a professional set-up. Though along with providing such experience for the law students the law firms around the country also at times are at a requirement of some added assistance in the matters which they are dealing with. The pressure on the employees of a law firm is enormous. As to be it a junior associate or be it a partner everyone has their individual roles to play in cases for their clients. All of the work involved requires high precision and a huge amount of concentration. It is not always possible to meet the deadline for the work associated with these law firms. Hence such requirements make its employees have to work tirelessly even without proper rest in some instances. Thus, interns who can be nurtured to work in the setting of a law firm can, in turn, be helpful in easing off some of the pressure from the shoulders of these employees. As interns, individuals cannot be allowed to deal with clients directly. Instead, the responsibility for research work and assistance at court can be provided by such individuals. 

The law firms are extremely competitive across India. Most of the law firms around the country are always on the lookout of nurturing potential employees for the country if they find an intern to be someone fit to work for their firm.

Benefits for interns working from home for law firms

One of the main aspects of internships for law students is to broaden their knowledge about law and build their CV’s accordingly. Thus if law firms take up the initiative of providing online internships for students during these hard times of the lockout due to COVID-19 it would be a really great opportunity for a law student who would otherwise not have much work for themselves other than college projects and assignments. The students would benefit by sharpening their research skills if they are allowed to work from home by the law firms. As they are not physically present at the office and the courts only limited to important hearings there is not much of the office work or court proceedings which they can learn in times like this. But when we come to the aspect of legal research which is required by law firms whether it be for the aspect of a particular case or research, in general, it would help sharpen the research skills of the law students interning from home and hence help them increase their efficiency in doing such work.

It is constant practise that makes a person become a good lawyer. If a person, be it a law student or an advocate, is not in regular touch with the subject, they might just end up losing the flow and which might just make it difficult for them to instil such skills and practices back to their lives again after a break. 

At the end of the day if law firms give law students such an opportunity in these difficult times it would act as a great confidence booster for most students across the country. As with the current situation of the lockdown and the unforeseeable future after the massive attack by COVID-19 is going to have a huge mental impact on most final year law students who are supposed to graduate this year. Most of these people would be unsure if people would even consider them credible enough after such an incident is taking place and their education as well as experience being hampered due to the lockdown. Thus the law firms providing work from home internship opportunities would end up providing these promising young professionals who are about to step out in the legal world with some hope and also would help them in getting themselves prepared for the challenges which lie ahead when the world starts functioning normally again.

Conclusion

The present situation i.e. one of a lockdown has posed new kinds of challenges to the whole of the legal fraternity, be it law firms, courts, judges or law students. Though if law students can concentrate on the positive and take this situation as an opportunity rather than as a curse, it can eventually help shape up their careers well. With regards to law firms who have to adapt to all the recent technological developments amid the lockdown, some help from aspiring law students is for sure to be welcomed. As this whole situation is training us towards a more technologically advanced legal system which would eventually reap its own benefits.

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

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This article is written by  Suman Chatterjee Team LawSikho.

Peter Drucker once said, “Because the purpose of business is to create a customer, the business enterprise has two—and only two—basic functions: marketing and innovation. Marketing and innovation produce results; all the rest are costs. Marketing is the distinguishing, unique function of the business.”

And we are seeing why innovation is so crucial for any business and how it works, live in action, in today’s market scenario.

For many companies, the road that was once crystal clear is now covered with the COVID-19 fog, without any apparent expiry period. 

Needless to say, it has forced companies to pivot their business strategy and rethink how they offer products and services more suitable for the current situation.

In today’s article, we are going to cover a few of such companies who have successfully used the COVID crisis to their advantage, or at least, has taken it in their stride and dealing with it as efficiently and effectively as they could.

#1. Lyft

A ridesharing service before COVID.

A grocery delivery service after COVID.

The San Francisco-based Lyft recently announced the launch of Essential Deliveries, a program aimed at servicing the “essential” needs of healthcare, government and non-profits organizations. Essentials can be anything that you need every day, from groceries and meals to cleaning and medical supplies.

When nobody comes out of their home, Lyft knows what it has to do: cater to them where they are instead.

#2. Turmswear

If you haven’t heard about Turmswear, I have to say that you are not really updated with the men’s fashion world. Turmswear has been making waves in the men’s fashion industry for some time. 

With its unique “smart” fabric that is stain repellant and anti-odour, coupled with 4-way stretch and wicking properties, Turmswear has brought in a revolution when it comes to what we wear. 

But post the COVID crisis, who is really so keen on buying men’s clothes anymore, right? Even the delivery services are stopped. So, Turmswear made the best of the situation at hand. It created masks that provide bacterial filtration efficiency as high as 91 per cent (compared to 95% BFE of an N95 mask) and is triple-layered. Anti-microbial, easy to breathe through and biodegradable, these masks are selling for merely nine rupees. 

What’s the takeaway? When people aren’t keen to cover their body, help them cover their face instead.

***

Mr Negi had won the Best Law Student of India Award in 2015, Gold Medalist of Batch of 2016 (NLU Jodhpur) and had received 100% Scholarship at Oxford. Want to get an insider look into his high-performance secrets? Watch the video below where he tells you how to maximize your practical learning in the legal field. 

***

#3. The Rapids

This is an excerpt from their website:

“We know from experience, some challenges are best tackled with gusto and bags of energy, and some opportunities need quick, uninterrupted thinking to capitalise on them.”

That’s what they are doing during this crisis period.

The Rapids originally run 10-day long field trips to help business executives collaborate better, seize opportunities and ride the “rapids” more effectively and efficiently.

The problem now is that field trips don’t really go well with the social distancing concept. What’s the solution? Of course, remote field trips!

When the whole world is going virtual, why would The Rapids be slow to adapt to the change? When you ride a rapid, you don’t stop. You pivot instead.

#4. 1Rebel

When you run a fitness club and suddenly, your clients are ordered by the state to stop visiting gyms and fitness centres anymore, what do you do?

You shake the hands of the state and donate your gym space to the National Health Service to do with it as they like. Kapow! When you can’t oppose the change, go with it instead.

London-based 1Rebel’s co-founder and CEO, James Belfour, said, “We don’t know exactly how the NHS might use our studios, and obviously this is a situation that’s evolving by the day, so we felt the best route was to share details of what’s available with an open offer to the NHS to use whatever it would like.”

The seven gym studios, as they gauge, can provide enough space to shelter 300-400 hospital beds. There are also changing facilities, showers and areas for IT facilities.

#5. Netflix Party

Missing the Friday movie nights? Sharing popcorn with your friends and cutting jokes in between dialogues? Me too.

Unfortunately, I don’t know when this ordeal is going to be over. Neither does Dave Temkin, VP of Networks at Netflix, who said in a webinar: “One of the things I’ve told my team is that I don’t look at this as a race or even a power walk. We really don’t know how long we’re going to be in this mode for.”

So what did Netflix come up with? A way to “party” while behind your mobile screens.

Netflix launched Netflix Party, a Chrome extension that lets you get together without actually getting together. The extension synchronizes the video for all the viewers and lets them chat together. 

Click Above

While this feature might look interesting for young viewers, this has been targeted for the older generation who feel rather isolated and alone. During this lockdown, even a bit of fun and frolic together matters a lot.

Netflix knew it, obviously. 

(Well, on second thought, you can’t share the popcorn though.)

#6. ChargedUp

The largest phone charging network in Europe suddenly faced a crisis like never before. Nobody is there to charge their phones from portable power banks anymore. The charged-up coronavirus dealt the hardest blow it could, and ChargedUp went belly up, at least in terms of utility, in a matter of days.

However, ChargedUp was so charged up that it just won’t give up.

It made the coronavirus its friend and started giving out hand sanitizers instead. With the help of its charging partners, it turned its free-standing phone charging stations into hand sanitising dispensers, 

Supermarkets; train stations; pharmacies; food outlets; essential shops and shopping centres; and hospitals. 

ChargedUp decided to launch the CleanedUp project and can produce over 1000+ a month if needed and supply enough Alcohol and Non-Alcohol sanitiser to keep each station full.

CEO Hugo Tilmouth said, “With the majority of our usual network of pubs, clubs, cafes and shopping centres closing down due to the COVID-19 crisis, we wanted to find a way to use our skills, our resources and our network to help during what is a  tough period for everyone. We have a strong creative team, so we put our heads together – virtually, not physically! – and CleanedUp was born. We really hope it can help both workers and customers stay safe now and in the future.” 

Hats off to you, Hugo.

#7.  Spiffy

If I can’t wash your car, I will wash everything else instead.

That’s what Spiffy thought when faced with the COVID crisis.

Founded in 2014, Spiffy married Uber’s on-demand concept with a particular service that almost every car owner needs: car detailing and washing. Once a wash is booked through its website or app, the team of trained specialists visits the spot, place the car on their proprietary mat and get the job done.

“Amazing, but what if I don’t use car these days? I am locked inside my home.”

No worries, Spiffy recently rolled out a service to sanitize properties and facilities, the need of the hour. 

What an idea, sir ji! 

When the whole world is looking forward to getting sanitized, Spiffy finds to use its facilities to provide the same.

#8. Lubbdubb

Mandi Bateman and her co-founder David Schreck started LubbDubb, a Bay Area-based booking platform for fitness instructors, in 2017. It lets yoga, dance or Bootcamp instructors connect with potential clients and take classes outside the usual studio system. The aim was to build a platform whereby lesser-known service instructors would be able to enhance their popularity and increase their market reach.

But what if it was not possible for anyone to go out of their house to attend any class anymore?

Lubbdubb was flexible enough to launch online classes taught via Zoom. “I was like, ‘OK, we’ve got to get these instructors paid–that’s the mission here,” Bateman says. Result? Out of 130 instructors, 68 have begun teaching online. Now, everyone is happy. 

Only because Bateman and her co-founder did not stop what they were doing. They simply changed the way they did it.

#9. LawSikho

You already know what we used to do, and you also know what we are doing now.

We knew that our aim is to empower lawyers, legal professionals and law students build a successful law career in their preferred industry or niche. 

And we are sticking to our motto today also.

We are running daily webinars. 

We are building upon our content repository.

We are regularly connecting with top industry experts and academicians.

We are creating WhatsApp communities for instant reach.

We are even trying to reach beyond geographical boundaries.

We are using this time to step back, strategize and fill out the gaps finally.

COVID-19 did not stop us at LawSikho. It made us progress faster and more efficiently instead.

So, you saw how nine businesses around the world are tackling the COVID crisis innovatively and moving forward, not backward.

What about you?

If you are a lawyer, what are you doing about your legal practice?

If you are a legal professional, what are you doing for enhancement of your career prospects?

If you are a law student, how are you readying yourself for the time to come?

Waiting to hear back from you.

To your success.

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

Comment below stating “I want to watch webinars!” and we will personally send you the link to the webinar group on WhatsApp. From then onwards, you will receive instant webinar notifications on your mobile phone only.

The post How these 9 companies are innovatively tackling the COVID crisis appeared first on iPleaders.

This article is written by Khushika Setia, pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from Lawsikho.com. Here he discusses “Principle of Natural Justice in Arbitral Proceedings”.

Introduction

Arbitration is a mechanism for the speedy resolution of disputes between the Parties. Arbitration intends to ensure a fair hearing and speedy trial of the dispute giving finality of the decision as compared to litigation. The arbitration proceedings have evolved the principle of natural justice as a quintessential in order to preserve its legitimacy and fair exercise. Though, parties unsatisfied with the award passed by the arbitrator, challenge an arbitral award under the guise of breach of natural justice. It is the duty of the arbitrator to ensure that all parameters of natural justice are followed in the adjudication process. The arbitral proceeding must be fair, reasonable imbibing the natural justice.

What is Natural Justice?

Natural justice is a universal justice, social justice. To elucidate Natural Justice in layman- “Natural Justice is nothing, but a fair play in action”. It means making fairness as the creed of life and being impartial. The decision of the court/arbitrator/tribunal should be independent, free from bias. It is an essence of fair adjudication, deeply rooted in tradition and conscience.

The Hon’ble Apex Court define Natural Justice as follows:

“Well then, what is “natural justice‟? The phrase is not capable of a static and precise definition. It cannot be imprisoned in a straightjacket of a cast-iron formula. Historically, “natural justice” has been used in a way “which implies the existence of moral principles of self-evident and unarguable truth”. In the course of times, judges nurtured in the tradition of British jurisdiction often invoked it in conjunction with a reference of “equity and good conscience”. Rules of natural justice are not embodied rules. Being a means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules.”^[i]

Essentials of Natural Justice

The principles of natural justice derive from English Common Law and are clearly captures into two Latin maxims:

1. Audi Alteram Partem
2. Nemo judex in causa sua

Audi Alteram Partem

The Audi Alteram Partem rule means no one should be condemned unheard. It means the person against whom any sought of legal action is to be taken or the person whose rights or interest is being affected, must be given a reasonable opportunity to take their stand.

The Arbitration and Conciliation Act, 1996 states-

“The parties shall be treated with equality and each party shall be given a full opportunity to present his case.”^[ii]

The “full opportunity” means the right to express, the parties to the arbitration proceeding must be given proper notice and full opportunity of being heard. It is a sine qua non of fair hearing. Before the Court/Tribunal passes an order/award against any person reasonable opportunity of arguing must be given.

Now, the question arises whether the non-signatories alleged to be a party to an arbitration agreement do not have the opportunity to present their claim. Will this amount to breach of natural justice?

In Sukanya Holdings Pvt Ltd. vs. Jayesh H. Pandya^[iii], it was held that a suit which contains matters beyond the scope of arbitration agreement and also the parties who are not the parties to the arbitration agreement, therefore such suits cannot be referred to arbitration.

However, in the Chloro Control P. Ltd. vs. Severn Trent Water Purification Inc. and Ors^[iv], the Supreme Court held that in a commercial project several parties are involved, prima facie the existence of an arbitration agreement would be sufficient to refer the parties to the arbitration.

Nemo judex in causa sua

The Nemo judex in causa sua also known as Rule Against Bias, means no man shall be Judge in his own cause or the authorities must be impartial and free from bias. The arbitrator appointed must act impartial, independent and neutral. Even a small amount of interest leads to disqualifying an Arbitrator, creating a reasonable suspicion of bias.

Russell states:

 “A distinction is made between the actual bias and apparent bias. Actual Bias is rarely established but clearly provides ground for removal. More often there is a suspicion of bias which has been variously described as apparent or unconscious or imputed bias. In such a majority of cases, it is often emphasized that the challenger does not go so far as to suggest the arbitrator is actually biased, rather that some form of objective apprehension of bias exists.

There is an automatic disqualification for an arbitrator who has a direct pecuniary interest in one of the parties or is otherwise so closely connected with the party that can truly be said to be judge in his own cause.”^[v]

As per the new Amendments in the Act, under the Section 12(5) and seventh and fifth schedule of the Act states any relation with the parties or outcome of the disputes leads to the justifiable doubts to the impartiality and independence of an arbitrator. The party autonomy cannot override the independence and impartiality of an arbitrator.

In the Perkins Eastman Architects DPC and Ors. vs. HSCC^[vi],the Apex Court held that the person interested in the outcome of the dispute must not have power to appoint an arbitrator. The respondent would appoint an arbitrator however, the Court clarifies the both parties have an exclusive right to appoint an arbitrator. The court relied on three-judge decision in TRF judgment^[vii], in which the court held that the person who himself is disqualified to be appointed as an arbitrator, cannot appoint arbitrator. Applying the principle that what cannot be done directly may not be done indirectly.

Principle of Natural Justice as a ground to challenge arbitral award

The award passed by the arbitrator in violation of the principle of natural justice can be challenged under section 34 of The Arbitration and Conciliation Act, 1996 and can be set aside by the Court. Where the one party challenges the arbitral award on the ground of breach of natural justice, the party has to establish:

1. which rule of natural justice was breached;
2. how it was breached;
3. in what way the breach was connected to the making of the award; and
4. how the breach prejudiced its rights.^[viii]

The court should consider the principles applicable to rules of natural justice. These principle are as follows:

1. Parties have a right to be heard effectively on every issue that may be relevant to the resolution of the dispute. The arbitrator must treat the parties equally and allow them the opportunity to present their cases and to respond. The arbitrator should not base his decision on matters not submitted or argued before him.
2. The court is not a place where the losing party has a second bite at the cherry. So no arid or technical challenges should be entertained by the court.
3. Given the nature of arbitration, the courts should follow the international practice of minimal curial intervention. The two principal considerations that support this practice are: (i) a need to recognize the autonomy of the arbitral process by encouraging finality so that its advantage as an efficient alternative dispute resolution process is not undermined; and (ii) acknowledge that when the parties choose arbitration, they accepted the very limited right of recourse to the courts. A court should not intervene because it might have resolved the various controversies in play differently.
4. That the arbitrator did not refer every point for decision to the parties for submissions is not invariably a ground for challenge. It is only where the impugned decision reveals a dramatic departure from the submissions or involves the arbitrator receiving extraneous evidence, or adopts a view wholly at odds with the established evidence or adopts a view wholly at odds with the established evidence adduced by the parties or arrives at a conclusion unequivocally rejected by the parties as being trivial or irrelevant, might it be appropriate for a court to intervene. The party challenging the award must show that a reasonable litigant in his shoes could not have foreseen the possibility of reasoning of the type revealed in the award.
5. The parties will urge diametrically opposite solutions to resolve a dispute. The arbitrator is not required to adopt an either/or approach. He may embrace a middle path so long as it is based on the evidence before him and he is not required to consult the parties on his thinking processes before finalizing his award unless it involves a dramatic departure from what has been presented to him.
6. Each case must be decided within its own factual matrix. An award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied.^[ix]

Matters not amounting to violation of principles of natural justice

If the arbitrator has given various opportunities to both, the claimants and the respondent, to adduce their claims, counterclaims and evidence. Even on the various reminders from the arbitrator if the claimant/respondent failed to produce their claims or evidence. The award passed by the arbitrator cannot be said to have violated the principles of natural justice. The same cannot be challenged under section 34 of The Arbitration and Conciliation Act, 1996, merely on the ground of struck down that the claims or opportunity of being heard was not given.

If the parties agree to abide by whatever decision honestly given by the arbitrator, but they do not authorize him to form his own conclusions in any manner he likes, he has to follow the ordinary rules of natural justice. But the position will be different where the parties had given full powers to the arbitrator to decide the matter in any way they liked, including taking evidence of one party at the back of the other and to make private enquiries, such an agreement is effective and the award cannot be set aside on the ground of violation of the principles of natural justice.^[x]

Conclusion

The principle of natural justice should be evolved in the arbitral proceedings. The parties should avoid bringing hollow, procedural or technical errors, once the award has been passed. The purpose of arbitration is to resolve the dispute efficiently and expeditiously. It is not easy for the courts to recourse the litigation proceedings. The recourse to the litigation should be provided to the party, culminating in actual prejudice.

References 

^[i] Swadeshi Cotton Mills versus Union of India, (1981)1 SCC 664: AIR 1981 SC 818

^[ii] Section 18 of The Arbitration and Conciliation Act, 1996

^[iii] MANU/SC/0310/2003

^[iv] Chloro Controls (I) P. Ltd. vs. Severn Trent Water Purification Inc. and Ors. (28.09.2012 – SC): MANU/SC/0803/2012

^[v] Arbitration-Step by Step by PC Markanda- Second Edition

^[vi] Perkins Eastman Architects DPC and Ors. vs. HSCC (India) Ltd. (26.11.2019 – SC): MANU/SC/1628/2019

^[vii] TRF Ltd. vs. Energo Engineering Projects Ltd. (03.07.2017 – SC)

^[viii] VIOLATION OF PRINCIPLES OF NATURAL JUSTICE – WHEN MAY NOT RESULT IN SETTING ASIDE AWARD by PC MARKANDA

^[ix]  Soh Beng Tee & Co Pte Ltd v Fairmont Development Pte Ltd 2007 (3)SLR(R) 86

^[x] Saxena & co. Vs. Damodar Parshad Gupta, AIR 1956 Punjab 243

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

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

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This article has been written by Aayush Akar and Saurav Kumar, students of National Law University Odisha, Cuttack. 

Introduction

Gender inequalities are one of the most prominent manifestations of inequality on the planet.

Gender equality affects each member of the community at large and shapes the very foundation of a just community, and so the problem of social inequality is of immense significance and gigantic repercussions enveloping an all-encompassing and infinite canvas. [1]

Gender disparity in India applies to wellness, employment, social and political differences between males and females in India. [2] Numerous international indices of inequality rate India differently on each of these variables, and also on a weighted scale, and these measures are divisive. Gender disparities and their social roots affect India’s sex ratio, women’s health over their lifespan, educational performance, and economic environment. Gender discrimination in India is a serious problem that affects both males and females. [3]

Gender inequality has affected several dimensions of women’s lives from job growth and advancement in mental health problems. Although legislation in India on rape, dowry and adultery which has kept women’s safety at priority, huge discrimination appears to be disturbing and affecting the lives of men today. Each citizen of India has also been granted certain rights to protect their interest in the community towards any aggression which are brought into force by the judiciary concerning some restrictions. [4]

Unnao rape case shows the reality of equal rights to women enshrined in the Indian constitution. The woman died after suffering severe burn injuries which were caused due to fire set on her way to testify against the accused person. Rape and sexual allegation cases have been in limelight since Nirbhaya case. Six men raped Nirbhaya in New Delhi and killed her brutally which led to huge protest all across the country and prompted the Government to set up J.S. Verma Committee to make suggestions in rape law. [5] The Union Government set up the Nirbhaya Fund for meeting expenditure to enhance the safety of women. But on the contrary, the terrible gang rape and assassination of a woman vet in Telangana and similar incidents in Bihar, Rajasthan and Karnataka demonstrate that females are as vulnerable and afraid currently as they were on the eve of the “Nirbhaya Gang Rape” case. But now justice was finally given to Nirbhaya after 7 years after all the 4 convicts were executed to death. Now India has made strict laws like amendment in POSCO Act, 2012 like the death penalty can be given to convict of rape of minor or child below 12 years of age. Even the government is planning to set up fast track courts to deal with such cases within 6 months. [6]

Similarly “Men’s Rights Movement” in India has begun to protect men from undue harassment and mental torture. They are claiming from gender-neutral legislation as most of the laws in India are favouring women. Men committed suicide in New Delhi 2016 and his parents purported that he did due to unnecessary mental torture and harassment by his spouse. Finally, the case was registered under Section 302 and 34. There is a requirement of amendments in anti-dowry legislation i.e. Section 498-A as most of the laws are causing humiliation to men and in-laws. [7]

“Lesbian, gay, bisexual, transgender and queer (LGBTQ)” people in India suffer legal and social difficulties that are not faced by non- persons. The nation has abolished the colonial-era statutes that expressly enforced against homosexual sex and sexual identities, but other substantive provisions have not been given for, including non-discrimination or same-sex marriage. Since 2014 in the famous NALSA case, the Top Court allowed them to register as the third gender of the country. Similarly, Navtej Singh Johar [8] case repealed colonial-era Section 377 and declared it as unconstitutional.

In this article, we are going to discuss the topic neutrally by discussing the topic in light of rights of all gender including transgender rights.

Men’s Right in India

India is a common-law nation with varied customs, a variety of religious communities and a history that goes back to centuries. India’s constitution has been seen as a central element for social growth with the democratic principle of equality. India’s sustained political freedoms are exceptional among the developing countries of the world; yet, given socio-economic developments, there is unprecedented misery, religious and social class-related brutality, separatism, or other social prejudices still widespread in the region.

Women in India are safeguarded by the different statutes in India and they can file complaints against anyone for the infringement of their rights. Despite having equal fundamental rights given to men and female, the rights of men are not enunciated as compared to women. In part 3 of the Indian Constitution, men can avail his fundamental rights throughout India regardless of their religion, race, gender, place of birth. Most of these rights guarantees liberties to men so they can live without coercion and harassment. [9] 

The need for gender neutrality is of high requirement in the rape legislation as from the beginning women are only considered as the victim may be due to patriarchy prevalent in Indian society. Even due to the rise of women empowerment and feminism, the concept of gender neutrality laws was hindered. Most of the provisions of IPC which states about offence against women allude men only as a criminal. It is right that from the Tukaram case to Nirbhaya case that men were the only perpetrator but the Central Government should accept the JS Verma committee suggestion for making some laws gender-neutral but that was also rejected. [10]

Now the scenario is changed, many PIL(s) have been filed in various High Court(s) and Apex Court for making rape laws to be gender-neutral. In 2017, Sanjiv Kumar had questioned the legality of existing rape laws which only consider men to be the perpetrator in Delhi High Court. It was mentioned that now the scenario is changed and is requisite from the society to think “beyond the male-on-female paradigm”. Centre in its application submitted that the laws related to rape should not be altered as some section are requisite to keep a check on the rising crime against women. [11] Similarly, Apex Court dismissed the PIL by Rishi Malhotra where PIL mentioned for making rape laws to be made gender-neutral as there are no laws to protect males from sexual harassment. The case was Rishi Malhotra v. Union of India [12].

The Law Commission recommended making laws to be gender neutral by substituting the word “rape” with “sexual assault”. The Union Government agreed to make legislation to be gender-neutral after the Nirbhaya incident. The Justice Verma in its report suggested using “person” instead of “women” to cover all forms of sexual violence. But Criminal Law (Amendment) Act, 2013 restored to the gender-specific definition after criticism from the feminist groups due to prevalent patriarchy present in the society. [13]

Women’s Right in India

Democratic countries like the USA and the UK which established themselves way before India gained its independence from the Britons, for a long time in these countries women of the society were not allowed to vote during the elections. They didn’t have the power and right to vote in the elections. After a long time when women started oppressing and revolting against this law, they finally won the battle that they were fighting for and they finally got the voting rights in the elections, women of the UK gained the right to vote in 1918 and women of the United States of America gained the right to vote in 1920, the battle wasn’t easy for women of the United Kingdom because they fought for it more than two centuries after the first elections took place and more than a century when first elections took place in the United States of America. This gives a basic idea of how much time it takes for enacting Judiciary and legislation to make sure there is gender justice in India. We are still long ahead to achieve what is termed as ‘equality’ in the sphere of gender. [14]

Constitutional Provisions for Women

Our India’s Constitution not only focusses on awarding equivalent rights to women but also focusses on how to empower them in society so that they don’t face any sort of discrimination and segregation financially, economically and politically. Even though some constitutional provisions like Articles 14, 15, 16, 39 and 42 of the Indian Constitution that provides the concept of gender justice like equality before the law or equal protection of the law; no discrimination on the grounds of sex, race, religion, caste, residential area or place of birth, and equal opportunity to every citizen of India in matters related to the employment sector. There are certain other articles also that especially promote the idea of women empowerment in the society. These are detailed as follows:

• ARTICLE 51 (A)(e): There should be a sense of brotherhood among the citizens of India and there should be no practice related to hurting the sentiments of women.
• ARTICLE 243 (D)(3): One-third of the total number of seats should be reserved for women (including for women who come from disadvantaged sections like SC/ST) in Panchayats and is to be filled by direct election.
• ARTICLE 243 (D)(4): One-third of the total number of seats should be reserved for women as a chairperson in the office of Panchayat.
• ARTICLE 243 (T)(3): One-third of the total number of seats should be reserved for women (including for women who come from disadvantaged sections like SC/ST) in Municipality and are to be filled by direct election.
• ARTICLE 243 (T)(4): One-third of the total number of seats should be reserved for women (including for women who come from disadvantaged sections like SC/ST) in Municipality as Chairperson as the state’s legislature provides. [15]

Legal Provisions for Women

To make sure there are law and order in the society and everyone follows it accordingly so that there is no disturbance in the community and everything runs smoothly there are some special laws and provisions that are made by the Centre and State’s legislature to safeguard the dignity of women. These laws and provisions are made keeping in mind that they don’t face any kind of social segregation and violence against them whether it be verbally or physically. These rules and guidelines are made to help and support the working as well as non-working women of society. The acts that are done in immoral and mala fide nature which may cause grievous hurt or damage to the other person are called crime and these wrongful acts like Murder(Sec. 300 IPC), Cheating(Sec. 415 IPC), Robbery(Sec. 390 IPC) etc. are unlawful acts and these unlawful acts mainly against women are termed as “Crime Against Women”. These are broadly classified into two categories:

Wrongful Acts that are identified as Crime against women under the Indian Penal Code, 1860:

• Kidnapping and Abduction (Sec. 363-373)
• Rape (Sec. 376)
• Molestation (Sec. 354)
• Physical and Mental Torture (Sec. 498-A)
• Sexual Harassment (Sec. 509)
• Attempts and Deaths related to Dowry (Sec. 302/304-B)

Some Special Acts and Provisions that protect the interests of a woman:

• The Maternity Benefit Act, 1961
• Women’s Reservation Bill, 2008
• The Employees State Insurance Act, 1948
• The Sexual Harassment of Women at Workplace Act, 2013
• The Criminal Law Amendment Ordinance, 2018 [16]

Some of the Important Initiatives for Women by Indian Government

• NATIONAL POLICY FOR EMPOWERMENT OF WOMEN, 2001: This policy was made in the year 2001 by the Department of Women and Child Development under the Ministry of Human Resource Development and this policy aims to empower women. [17]
• NATIONAL COMMISSION FOR WOMEN: A committee was made by the Centre in the year 1992 to constantly check and see all the matters related to the rights of women and amend new laws as necessary. [18]
• RESERVATION FOR WOMEN IN LOCAL SELF-GOVERNMENT: The Parliament passed the 73rd Constitutional Amendment in the year 1992 which made sure that women get one-third of the total number of seats in local offices whether in city or village.” [19]

Apart from the initiatives taken by the government; The Indian Judiciary has actively taken part in the issues related to women. These trademark cases changed the future course of action for women. For Example, in the case of C.B. Muthamma v. Union of India [20] the constitutionality of the “Indian Foreign Service Rules of 1961” was questioned. The main issue of this case was that a woman employee has to get written permission from the government before her marriage and she has to give in writing that she may quit her job after her marriage. The Supreme Court struck down this law stating that this is unconstitutional and derogatory against women.

In another landmark judgment was given by the Supreme Court in the case of Air India v. Nargesh Mirza [21] which held that firing of an air hostess from their service based on their first pregnancy is unconstitutional and arbitrary. In the case of Pratibha Ranu v. Suraj Kumar [22], the main issue was who enjoys the Stridhan property in marriage. So, in this case, the Supreme Court gave a remarkable judgment stating that a married woman has complete ownership of the Stridhan property and she has full control over it.

In the case of Vishaka and Ors. v. State of Rajasthan [23] the main issue was that women facing sexual harassment at their workplace. The Apex Court in this matter held that any type of activity that is immoral and derogates the dignity of women at their workplace is an infringement of Article 14, Article 15 and Article 21 of the Indian Constitution. To prevent sexual harassment faced by women at their workplace Supreme Court laid down certain guidelines and these guidelines are called Vishaka Guidelines.

Transgender’s Rights in India

The Fundamental Rights given to men and women of the society are also available to the third gender as well. They have the same Fundamental Rights as to ours and them equally the beauty of our constitution like Articles 14, 15 and 23 etc. The Court has legally recognized the third gender as Transgender in both civil as well in criminal status. Now, they have the same fundamental rights and constitutional provisions as men and women of the society and now they can enjoy these in the same manner. After the decriminalization of sec. 377 of IPC in the landmark judgement given by the Top Court in 2018 in the case of Navtej Singh Johar v. Union of India [24] now they can consensual sex including homosexual sex. Certain bills that gave rights to Transgender persons are detailed as follows:

• • THE RIGHTS OF TRANSGENDER PERSON’S BILL, 2014: The third gender was legally recognized by the government on the order of the Supreme Court and asked them to reserve their seats for education and employment. [25]
  • THE RIGHTS OF TRANSGENDER PERSON’S BILL, 2015: A Private member’s bill was passed by Upper House regarding the right of a transgender person which defines transgender as a psychosomatic individual and stating about reservations. [26]
  • THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016: The government opposed Rajya Sabha’s bill and introduced new Transgender Person’s Bill (Protection of Rights) which defined transgender as Biotic Appearance and stating no reservations for them. The main crux of this bill was drawn from the landmark judgement given by the Top Court in the case of National Legal Services Authority (NALSA) v. Union of India. [27] Their legal identity was given to them in this case. [28]
• TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2017: The bill was introduced to tackle social issues faced by the transgender and how to empower them in society. [29]

We have mentioned in our article that though the constitution of India has granted equal rights to the citizens to the country. But there are some legislations like rape laws which are granting more protection to the women due to the presence of patriarchy in the society. But now the time has changed and there is a requirement from the part of lawmakers to alter these laws to make it gender-neutral.

Conclusion

Most of the laws in India are indeed meant both the male and female and now it’s time for the lawmakers to include transgender in those laws. But, astonishingly, the rape laws are female-centric. Gender specificity cannot be said to serve any objective in sexual harassment law any more. There is no reason to suspect the pervasiveness of sexual assault outside the established framework. Only the establishment and implementation of gender-neutral legislation would be successful in increasing the coverage of these crimes. The legal definition of rape must be reassessed, sexual assault must be categorized in compliance with the varying degrees of harm caused by each, and each must always be described comprehensively.

Reference

[1] Claire Melamed, Gender is just one of many inequalities that generate poverty and exclusion | Claire Melamed, The Guardian, Mar. 9, 2012, https://www.theguardian.com/global-development/poverty-matters/2012/mar/09/gender-inequality-poverty-exclusion (last visited Apr 5, 2020).

[2] Carol Vlassoff, Gender Differences in Determinants and Consequences of Health and Illness, 25 Journal of Health, Population, and Nutrition 47–61 (2007).

[3] The Roots of Gender Inequality in India by D. Amutha :: SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2906950 (last visited Apr 5, 2020).

[4] COI-updated-as-31072018.pdf, http://legislative.gov.in/sites/default/files/COI-updated-as-31072018.pdf (last visited Apr 5, 2020).

[5] Nirbhaya case: Four Indian men executed for 2012 Delhi bus rape and murder- BBC News, https://www.bbc.com/news/world-asia-india-51969961 (last visited Apr 5, 2020).

[6] Five years after the gang-rape and murder of Jyoti Singh, what has changed for women in India? | Society | The Guardian, https://www.theguardian.com/society/2017/dec/03/five-years-after-gang-murder-jyoti-singh-how-has-delhi-changed (last visited Apr 5, 2020).

[7] Man commits suicide, wife files dowry harassment case against him- Mail Today News, https://www.indiatoday.in/mail-today/story/man-commits-suicide-wife-files-dowry-harassment-case-against-him-325137-2016-05-24 (last visited Apr 5, 2020).

[8] Navtej Singh Johar & Ors. v. Union of India the Secretary Ministry of Law and Justice W. P. (Crl.) No. 76 of 2016.

[9] Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-law/9BC983FB009B7BBDEB78CED0BC5144C0/core-reader (last visited Apr 5, 2020).

[10] Justice Verma Committee Report Summary | PRSIndia, https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary (last visited Apr 5, 2020).

[11] Delhi HC issues notice to Centre in PIL seeking gender-neutral IPC rape, https://www.barandbench.com/news/delhi-high-court-rape-section-375-gender-neutral (last visited Apr 5, 2020).

[12] Rishi Malhotra v. Union of India Writ Petition(s)(Criminal) No(s).7/2018.

[13] Structural Violence on Women: An Impediment to Women Empowerment, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5561688/ (last visited Apr 5, 2020).

[14] 6 February 1918: Women get the vote for the first time- CBBC Newsround, https://www.bbc.co.uk/newsround/42794339 (last visited Apr 5, 2020).

[15] Constitutional&Legal_Rights.pdf, http://mospi.nic.in/sites/default/files/reports_and_publication/cso_social_statices_division/Constitutional&Legal_Rights.pdf (last visited Apr 5, 2020).

[16] Important Constitutional And Legal Provisions For Women In India- Women’s Rights, http://www.legalserviceindia.com/helpline/woman_rights.htm (last visited Apr 5, 2020).

[17] nationalwomenpolicy.pdf, http://www.dhaatri.org/documents/nationalwomenpolicy.pdf (last visited Apr 5, 2020).

[18] ncwact.pdf, https://wcd.nic.in/sites/default/files/ncwact.pdf (last visited Apr 5, 2020).

[19] Panchayati Raj, 73rd Constitutional Amendment and Women on JSTOR, https://www.jstor.org/stable/4403611#metadata_info_tab_contents (last visited Apr 5, 2020).

[20] C.B. Muthamma v. Union of India AIR 1868 (1979).

[21] Air India v. Nargesh Mirza AIR 1829 (1981).

[22] Pratibha Ranu v. Suraj Kumar AIR 628 (1985).

[23] Vishaka and Ors. v. State of Rajasthan SC 3011 (1997).

[24] Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice W. P. (Crl.) No. 76 of 2016.

[25] trangder-E.pdf, http://164.100.47.4/billstexts/rsbilltexts/AsIntroduced/trangder-E.pdf (last visited Apr 6, 2020).

[26] Draft Rights of Transgender Persons Bill 2015.pdf, https://www.prsindia.org/uploads/media/draft/Draft%20Rights%20of%20Transgender%20Persons%20Bill%202015.pdf (last visited Apr 6, 2020).

[27] National Legal Services Authority v. Union of India WRIT PETITION (CIVIL) NO.604 OF 2013.

[28] The Transgender Persons (Protection of Rights) Bill, 2016 | PRSIndia, https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2016 (last visited Apr 6, 2020).

[29] Transgender-Persons-Protection-Bill-2017-.pdf, https://www.csbronline.org/wp-content/uploads/2017/04/Transgender-Persons-Protection-Bill-2017-.pdf (last visited Apr 6, 2020).

The post Analysis of Gender Neutrality Laws in India appeared first on iPleaders.

This article is written by Meenakshi Dhaked, a first-year student pursuing BBA.LLB from Symbiosis Law School, Noida. This is an article dealing with the topic Redefining Competition Law amid COVID-19.  

Introduction

Amid the Covid-19 pandemic, it welcomes a 21-days full lockdown by Indian government from 25th March till 14th of April, 2020. Following this measure, its impact hit the Indian economy badly. So, to alleviate its impact certain changes and relaxations have been provided to various sectors by RBI, SEBI etc. ranging from Companies Act, 2013 to Insolvency and Bankruptcy Code. But with the implication of lockdown, essential commodities such as hand sanitizers, face masks etc. felt a shortage of it. In other parts of the world, different Antitrust jurisdictions have taken measures to fulfill those needs by relaxing their respective competition policy under the umbrella head of COVID-19. Whereas, our Indian statutory body Competition Commission of India is still silent on relaxing India’s competition policy temporarily.

What Competition Law is all about?

All over the world competition law has built up its own roots. Each country has its own antitrust laws to deal with unfair trade practices. This law is structured to provide a fair chance for healthy competition between contending competitors in the market. The purpose of bringing this law into force is to ensure a fair marketplace for consumers and restricting unfair practices by bigger and smaller companies through various collaborations and arrangements. Each country has set-up its own regulatory body to take care of Anti-Competitive Practices. Like the U.K has Competitions and Markets Authority (“CMA”), European Countries together have European Competition Network (“ECN”) etc.

Antitrust Law in India

In India, it has its own Antitrust Competition Law which was enacted through Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act). Thus in 2002, India got its Competition Act, whose primary function is to regulate and conduct fair business practices so as to prevent those practices which are having an Appreciable Adverse Effect on Competition (AAEC) in India.

This Competition Act, 2002 primarily deals in Anti-Competitive Agreements, Abuse of dominant power and regulating combinations through merger control provisions. This Competition law goes through various amendments for its flexible working such as Competition (Amendment) Act, 2007, then in 2009 which later came into force in 2011.

Thus, this whole Competition Act is divided into four main sections, its framework is as follows:

Section 3 of Competition Act, 2002– It tells us about Anti-competitive agreements. These agreements are declared to be void if any enterprise or association enters into an agreement to cause an appreciable adverse effect on competition (AAEC). Thus, we can determine AAEC by following agreements made in respect of-

• Determining purchase or sales of goods or services directly or indirectly.
• Limiting or restricting the production, shortage, supply, technical developments in respect of goods or services in the market.
• If any agreement results in bid rigging or collusive bidding.

Section 3(3) of Competition Act, 2002- It deals with Horizontal Agreements. These agreements are those arrangements which the enterprises made at the same stage of production. That means if there exists an agreement under Section 3(3), then it will be presumed that such an agreement is anti-competitive and has an appreciable adverse effect on competition, it is also known as ‘per se’ rule. Thus, Horizontal agreements are subject to the adverse presumption of being anti-competitive and placed under a special category. It also includes cartels which are involved in similar trade of goods or services to the customer which-

• Determines prices of purchase or sales either directly or indirectly.
• Controls the production and supply of goods or services in the market.
• Segregation of market by allocation of geographical area of market.
• Agreements which results in bid rigging or collusive bidding directly or indirectly.

Exception to Section 3(3) of the act- Joint Venture agreements which are formed in respect of increasing efficiency in storage, supply, production, control of goods will not come in the way of competition act.

Section 3(4) of the Competition Act– It deals with Vertical Agreements. Vertical agreements are those agreements in which enterprises entered into an agreement and operate at different levels of production and adversely affect competition law which are made to pre-fix the production, supply, distribution, price or trade in the following services-

• • Exclusive Supply Agreement- This agreement restricts the buyer from purchasing any good from any other seller or competitor.
  • Tie-in Arrangement- These are those agreements where the seller of goods keeps a condition to the buyer of purchasing some other goods also with respect to previous goods. This was very well explained by CCI in Sonam Sharma v. Apple & Ors. that for in order to have a tie-in arrangement,

a) There must be two products in hand for the seller can tie that together,

b) The seller must have enough market power so to tie the product through which it can force the buyer to purchase the tied product,

c)through that arrangement it must affect the substantial portion of market.

• • Exclusive Distribution Agreement- An agreement which limits or restricts the outlet or supply of any goods or by allocating any area for the disposal of goods.
  • Refusal to deal- The agreements which restrict by any way the buying or selling of goods to persons or classes of persons, which were better explained in Shri Shamsher Kataria v. Honda Siel Cars Ltd. & Ors.
  • Resale Price Maintenance- It is an agreement having a condition of selling goods on prices which may be charged by the purchaser on resale, these prices shall be regulated by the seller unless it is clearly stated that prices lower than those prices may be charged.

Thus, also vertical anti-competitive agreements do not come under per se rule because they do not have an appreciable adverse effect on competition.

Section 4 of Competition Act, 2002– This section looks into the matters of abuse of dominant position. Thus, according to it any enterprise by using its dominant position in the market indulge by:

• Imposing unfair or discriminatory practices directly or indirectly.
• Agreement which limits the production of goods in any manner to meet the competition.
• Indulging into practices which results in denial of market access.
• Using its own dominant position to enter into a certain market or to protect it.

Section 5 & 6 of the Competition Act, 2002– It deals with the combinations and regulation of these combinations. Thus, if any agreement is made to form a combination which causes an appreciable adverse effect on competition( AAEC) in the markets of India is completely void.

Relaxations taken by other countries in their competition policies

United Kingdom

In order to deal with this pandemic and cater people’s need, the U.K government order dated 25.3.20 looked towards cooperation between competitors as part of the solution and for that they waived U.K Competition Law for a limited period of time to allow Supermarket retailers to share data with each other. Thus, now companies which truly want to cooperate with their competitors so as to serve their customers in need, may have the possibilities to do so. Now the shopkeeper retailers can share distribution depots and delivery vans without facing any violation of antitrust law. This waiver not only allows retailers to pool of staff with one another but also be able to agree on food production of products having common specifications. Also, the U.K Antitrust Regulator, the Competition and Markets Authority (CMA) has set-up a COVID-19 task force where it will advise the government on how to ensure that competition law will not stand in the way of protecting public health and supply of essential goods and services.

Norway

On 18th March, the Norwegian-government also relaxed its antitrust policy by announcing a three-month waiver in the transportation sector from Norwegian Competition Law as similar to (“ECN”) the European Competition Network so as to ensure the safe transportation of necessary goods and services across the country. Thus, the ECN has undertaken necessary measures to regulate availability of products at this point of time such as masks, sanitizers, etc. to customers at competitive prices without having any disadvantage, for it can invite heavy penalty from the commission. Another measure is that all these relaxations will not contravene Article 101 of the TFEU (Treaty on the Functioning of the European Union) which work on prohibiting anti-competitive agreements, so that it could ensure the proper functioning of necessary measures to avoid the shortage of supply of essential goods and services.

Australia

Australia’s Competition Law regulatory body Australian Competition and Consumer Commission (ACCC) has allowed temporary and necessary collaborations by firms for sharing information between competitors dealing in selective sectors such as banking(only to the extent of operationalizing the national relief packages), supermarkets and medical supplies. So, if firms and companies go by these measures and collaborate in the interest of the general public then it would not trigger any violation of antitrust laws.

United States

In the United States, the Federal Trade Commission and Department of Justice have noted all the public and private enterprises to stand together and tackle this issue through collaborations made in the interest of public health. Thus, any collaboration between the competitors which are contributing in improving public health and safety would not welcome any violation and be consistent with the competition law.

South Africa

The South African Competition Commission has given via order dated 24.3.20 the exemption to all collaborations and agreements between the competitors which are formed to deal in the healthcare sector and further stated that any conduct which is not directly related to the supply and prices of essential goods would lead to violation of antitrust laws.

France

Even now the French Competition Authority (Autorite de la concurrence) has stopped all the non-essential activities such as all the mergers which were about to be finalized has been postponed as it has become extremely difficult to receive information from third parties in their usual proceeding time.

Measures taken by Competition Commission of India till now

• To deal with this epidemic, the Competition Commission of India has first adjourned all the filings in relation to Section 3 & 4 of Competition Act till 15th of April.
• All notifications in relation to relation to combination under Section 6 and 20 of the night.
• Rest other filings, submissions and consultations under the Act were adjourned till further notice. 
• Pre-filing consultations will be suspended during this time period.

The government of India also With the on-going of lockdown in the country, the graph of demand for essential products has steeply rises, essential services such as (hand sanitizers, face masks) etc. which has caused a shortage of these products leading to increase in prices in the market. So, to fill this gap of demand and supply of products in the markets, the government pro-actively took action by bringing hand sanitizers as essential product under  Essential Commodities Act, 1955 and issuing an advisory under the Legal Metrology Act, 2009

However, the commission was still accepting ‘Green Channel’ Filings electronically, and will continue with the filings of other combinations up to 20.3.2020. Thus, the Competition Commission of India has given green light to electronic merger filings under the green channel’s expedited approval process. That means CCI has approved e-filing of mergers through the green channel for deals where there are no overlaps.

Under this Green Channel route, we can see the very first approval by Competition Commission in acquisition of 18.95 % stake in Religare Health Insurance Company by Trishikar Ventures, where Trishikar invests in a variety of companies through acquisition, on the other hand Religare deals in general insurance products relating to health segment.

• Concept of Green Channel Route

The concept of green channel is mainly to allow automatic speedy approval for certain categories of merger and acquisition. It is a kind of automatic system where approvals under this category can be availed in combinations only when there are no vertical relationships, no horizontal overlaps and also no such contemporary business activities between the combining parties or dealing any entity in which any of the combining parties hold shares or have control.

Measures CCI should take to deal with COVID-19

• Exemption from Section 3 & 4 of the Act with respect to coordination between competitors – With the implication of lockdown, demand and supply of essential products have been imbalanced. Thus, to maintain adequate supplies of essential products such as face masks and sanitizers in the market, the collaboration or association of competitors is needed to tackle this situation. Industries dealing in essential product services especially sanitizers, medical supplies, face masks, supermarkets, transport etc. should be allowed relaxation from competition act, so as to cater to public health. Like recently, The ministry of consumer affairs, food & public distribution through its notification addressed that raw materials such as ethyl/extra neutral alcohol/ethanol that is needed in making sanitizers would be made available to the sanitizer industry by collaboration of (AIDA) and Indian sugar mills association. As like in the U.K through a joint statement, allowed temporary relaxations to industries and enterprises dealing only in essential services as one of them is sharing information of essential products in demand in the supermarkets.
• Exemption from Section 5 & 6- The CCI should exempt those enterprises through collaboration and arrangements looking forward to helping the general public. Also relaxing the approval deadline of any combination through Section 54(a) of Act, which provides that the central government can also exempt any enterprise from the application of the competition law i.e it has the power to give exemption to any enterprise if that is necessary in the interest of public health. And such kind of relaxation is surely made for the betterment of the public in the light of COVID-19. As like the U.S does exempt their public and private sector enterprises from any collaboration made in the interest of public health. As in Norway also they have exempted the transportation sector from the purview of competition law.
• Setting up a task force- There may be a possibility that in this time of emergency, there is a demand of face masks, medical supplies, hand sanitizers, groceries and many other essential goods needed to survive and the businesses which are dealing in these items seeks to benefit from this either by indulging in unfair practices as price fixing of goods, controlling the supply, allocating customers etc., or maybe by using their dominant position in the market charge extra for any good or refuse to deal with certain enterprises dealing in essential commodities. These kinds of practices are still prohibited under the Competition Act and the government if came through such practices then should take strict measures against them. As like the U.K, CCI can also set up a task force where it can advise the central government to ensure all the prices and supply of essential products, so that it could not come in the way of Competition law. Also the price hiking issue such as price fixation, price gouging or discriminatory pricing and exploitative practices by the retailers and manufacturers comes under the close scrutiny of the watchdog through this task force.

Conclusion

After certain relaxations by different jurisdictions around the world, firms and enterprises are coming together to cater to the needs of the people by sharing information in supermarkets, transportation, banking, hospitals etc. Thus, if CCI could also take such measures to relax companies dealing in these essential products, then they could also through collaboration and without any fear of violation of the act provide services essential for the people at this time. Apart from Essential Commodities Act and Disaster Management Act, Competition Act can also help in combating this pandemic by providing essential products at reasonable price, ensuring the food supply and its shortage.

References

1. https://mha.gov.in/sites/default/files/Guidelines.pdf
2. https://www.gov.uk/government/publications/cma-approach-to-business-cooperation-in-response-to-covid-19/cma-approach-to-business-cooperation-in-response-to-covid-19
3. https://ec.europa.eu/competition/antitrust/coronavirus.html
4. https://www.accc.gov.au/
5. https://www.ftc.gov/news-events/press-releases/2020/03/ftc-doj-announce-expedited-antitrust-procedure
6. http://www.compcom.co.za/wp-content/uploads/2020/03/CCSA-COVID-19-statement-24-March-202024497.pdf
7. https://www.concurrences.com/en/bulletin/special-issues/competition-law-covid-19-en/
8. https://www.cci.gov.in/sites/default/files/whats_newdocument/scan1.pdf
9. https://pib.gov.in/newsite/PrintRelease.aspx?relid=200239
10. https://www.business-standard.com/article/companies/cci-approves-stake-buy-in-religare-health-insurance-by-trishikhar-ventures-120040300587
11. https://competition.cyrilamarchandblogs.com/2020/03/covid-19-and-competition-law-concerns/
12. http://competitionlawblog.kluwercompetitionlaw.com/2020/03/20/eu-merger-control-and-implications-from-the-effects-of-the-coronavirus-crisis/
    

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The post Redefining Competition Law amid COVID-19 appeared first on iPleaders.

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

Everyone says that we must walk the extra mile.

Everyone thinks that they would walk the extra mile.

Everyone is motivated to walk the extra mile.

But what happens when you actually start doing that?

The extra mile is a lonely place.

There is nobody else there. 

When you actually reach that place, you tend to say: wait a minute! Why am I the only one here!

I must be doing something wrong! 

Then you go back to being like others, and stop going the extra mile.

Let me give you an example from LawSikho. When the lockdown started, as a company, LawSikho decided to do a lot of webinars everyday. Within a few days we hit 3 to 4 webinars streaming in a day.

What was the first reaction?

This is too much! How will people attend so many webinars? They will get bored and attendance will drop.

Where will we find so many speakers so regularly?

Nobody else does this. Hundred webinars in a month? Who does that? That’s crazy!

What if we do just do two webinars everyday instead?

Walking the extra mile is scary.

The extra mile is an annoying place when you have no blueprint, no proof of concept, no guidelines!

Just your willpower and intuition until results start showing. And results take their sweet time to show up. Most people drop out of the extra mile long before results could cook.

When you are at the extra mile, you’re working away without any validation, praise or assurance of success. 

And you see normal people having it easy, enjoying their life in what seems a commonplace way and you begin to wonder WTF you have been doing with your life.

The extra mile is a very uncomfortable place.

When you are at the extra mile, people question you, judge you and even ridicule you.

If you want to win the popularity contest, the extra mile is no place for you.

The extra mile is filled with opportunities that nobody has known or found yet. And it is also filled with unrecognisable perils. 

But the rewards are so high, I would wrestle with those perils anyday.

But of course, walking the extra mile is not for everyone. It takes strength of character that you may need to develop first before you can even start.

Most importantly, when you are walking the extra mile it seems utterly unnecessary. It looks like a mistake, as if you are throwing away resources when you should conserve it. 

The kind of people who walk the extra mile are explorers and adventurers.

And in times like this, walking the extra mile could be the difference between a lifetime of success and a life of mediocrity.

Here are 5 ways in which LawSikho students and our amazing team are walking the extra mile:

1. We hired a placement officer and brought her down to Delhi in our co-living facility just before lockdown started, because we knew how important it will be for our students during the lockdown. 

Now we have dozens of internship and job opportunities lined up for our students. We have been reaching out to our network, alumni and well wishers at this time of distress to help our students get internships and jobs. 

We are even spending time with them working on their CV and preparing them for their interviews. And it’s working! 

But getting a job for an internship is just the beginning. Our real challenge is to train our students to work virtually with amazing efficiency. Also, another challenge is how we can get the employees who are providing these opportunities to give us video testimonials about how valuable these interns or employees (LawSikho students) have been for them and their business. 

Only then we will stop. Only then we will believe that we are doing our work right.

Nobody does this in the online education industry. Nobody does this even in top universities that charge tens of lakhs in fees. We do because we must walk the extra mile. That’s who we are.

2. When the lock down hit, we knew that lawyers will need a bunch of new courses that cater to the needs of time. COVID is creating new opportunities for the legal profession. We must support the lawyers who want to learn new skills to capitalise on these opportunities.

And we did exactly that while launching courses very fast on areas that are becoming super hot in light of COVID. the areas will generate maximum client opportunity and revenue followers in the months to come. 

Competition law: 

In the last few weeks, the Legal Metrology department has received a lot of complaints about sudden price increases on certain products. They are being sold at 10 percent to even 100 percent over the maximum retail price (MRP) due to the COVID-19 scare.

For example, one such complaint on how the price of a hand sanitizer rose from Rs 42 to Rs 350. Such complaints have been filed to both the Legal Metrology department or the National Anti-Profiteering Authority (NAA) in the last few weeks.

Once the COVID-19 lockdown is over, all these complaints will be taken up before the right authority, generating a lot of work for the lawyers specializing in competition matters.

We have created a specific course in this legal niche. As a lawyer, if you want to equip yourself with practical knowledge to tackle complex competition propositions, click here for full details.

Banking and Finance contracts and disputes:

The banking sector will see a lot of upswing during this COVID crisis. Many businesses struggling with debts will need to raise funds and their first resort will always be loans from banks.  

Apart from these sick companies, even healthy companies will reach out for more funds as they make more and more greenfield and brownfield investments during and post this crisis period. 

Click Above

The banks will need someone to help draft the contracts, negotiate the terms of the agreement and make sure the whole process is legally compliant. 

While corporate financing is going to be one hot area, there will be many who will default on their existing loans and someone needs to recover the due money from them. The onus falls again on the lawyers who specialize in recovery matters.

There will be a huge demand for lawyers who are not only well-adept with contract drafting and pre-litigation work, but also with interacting with counsels and taking matters to the court. 

Want to specialize in banking and finance laws? Click here for course details.

Technology contracts:

New products and services are being launched every day. New markets are being explored. The terms and conditions of existing contracts are being renewed according to the current market scenario. 

Frustration, extension or termination of contracts and invocation of force majeure will be rampant during this crisis. These need to be handled properly so as to minimize adverse legal implications.

Tech lawyers will be required to look over the legal aspect of these new launches, market exploration and redrafting and renegotiation of existing contracts.

On top of that, the COVID-19 crisis has suddenly fast-tracked the digital economy several years forward. Whether it is shifting towards online classrooms, working from home, ordering home deliveries from ecommerce stores or binging on Hotstar and Netflix, the whole economy became digitized in a few weeks only.

But lawyers like you should look at the BIG opportunity that arose because of this. When the tech sector is seeing a lot of action, who gains from it? 

Who drafts the terms and conditions, privacy policies, end user license agreements, and so forth? Who protects against theft of intellectual property and performs audits from time to time? Of course, lawyers like you.

It must be remembered that the legal fate of a tech product or service depends a lot on that piece of paper, and lawyers who specialize in technology contract drafting will always have a lot of work falling into their lap during and after the crisis.

In our Certificate course in Technology Contracts, we will teach the A to Z of technology contract drafting, from preparing the domain name transfer and settlement agreement to how to review a contract for GDPR compliance. And much, much more. (Click on the course link for full details.)

Introduction to legal drafting

I once interned under a senior lawyer at the Calcutta High Court, who later was elevated to a judge. He used to tell me how during his legal practice days, he would sit in his home and earn around 50k for a single draft that he wrote for his clients.

In his little chamber, surrounded by over a lakh books, he would put a few words on the Microsoft Word document, and that’s it. He used to say that real money could be made if you could draft legal contracts. 

Your being locked in your home these days does not mean you cannot make a substantial amount of money from your legal practice. If you have a laptop and an internet connection, start offering top-notch legal drafting service to businesses, big and small, and you are all set. Our course shows you how.

In our course, we focus on teaching the essentials of legal drafting, along with readymade drafting templates and formats ranging from memorandum of understanding to writ petition under Article 226 before the High Court.

You will also be taught how to write legal articles from start to finish. From extracting Master Data and Signatories Details of a particular company to the best text search hacks on Manupatra, we will show you how to start with a simple outline and make it into something worthwhile in the shortest possible time.

Click here for course details.

Judiciary and other government exam training

The judiciary exam is one of the toughest competitive exams in India. 

It is not only about writing an essay or being good with theoretical knowledge of law. 

It is about being that one person out of lakhs and lakhs of applicants who has the true mettle to become a judge. 

Now, while we cannot ignite the fire inside you, our judiciary test prep course definitely takes care of the rest. 

Looking for high-quality study materials? Check.

Looking for an affordable course? Check.

Looking for personal guidance and real mentorship? Check 

Can’t travel to another city and want an 100% online course? Check.

Want special guidance on the language paper? Check.

Want special guidance on essay and judgment writing? Check.

Want to get on special sessions with other toppers? Check.

We believe there is no other course like this in the market. 

If you are looking for something that not only covers all the law papers covered in the judiciary exams but also goes a step further and provides you with practical insights and battle-tested strategies from those who have actually cracked the exam before. 

Click here for course details.

In the pipeline:

Legal English

Knowing english is not enough in the legal world. You need to know legal english (yes, it’s a little different!) This course will teach you the fundamentals of legal english—a must-have skill for those who want to excel in their drafting skills and procure work from all across India.

The COVID-19 legal issues 

The COVID-19 crisis is like none other and it will present new challenges for businesses to tackle. What types of legal issues can arise for a business? How would you deal with those legal issues and fallouts, as a lawyer? How would you best cater to your clients during this critical period and make handsome money right away? This course bares it all for you.

Double your revenue in 180 days: a course on lead generation and conversion for lawyers

Are you earning Rs 10,000 per month? Let’s make it Rs 20,000 per month. Okay, so you already crossed the 1 lakh per month milestone last month? Why not double that in the next 6 months? That’s what we promise in this course—results, results and only results. 

(Frankly, it’s not a course. It’s a intensive, results-oriented program instead.) 

The list goes on.

We knew these months would be hard, so we worked extra and launched more courses that are spot on according to the need of the time. And it’s paying off!

3. How we are teaching law students to network and bag opportunities – and to go the extra mile?

This is not the time to send out blind applications for internships to law firms and lawyers. most of them do not know how to work with or manage virtual interns. Opening and reading internship applications is not high on their priority list right now. 

Does that mean you cannot get internships?

What if we don’t call it an internship?

What is the biggest concern of most lawyers right now?

They are big time into business development mode. Researching on emerging legal issues, writing articles, giving talks over webinars and some even trying to build up their social media presence.

Instead of reaching out for an internship, what if you wrote to them with samples of your previous articles and offered to research and write for them? What if you offered to help them to start a podcast or a YouTube channel?

One of my students had her internship cancelled. She was devastated and called me. I asked her to write back to the firm and say that she can help the firm to set up a podcast. Will they be interested?

She is now helping the founding partners, working with them directly, and assisting them with research for podcast content, and helping them to figure out issues related to production.

I suspect the firm won’t let her go anytime soon, and will even pay her a stipend to retain her. 

This is valuable service, not the kind of internship where you sit in a corner and read some old files or do proofreading and referencing hoping that someone will notice you in the office at some point.

This is an opportunity to build real relationships at the topmost level that you would not get when the lockdown is gone.

Imagine you are helping a law firm partner to do research for their next article. This is your moment to shine!

When they start hiring, wouldn’t they think of you first if you have done a good job so far, and they saw how knowledgeable and skillful you are?

And if you are not knowledgeable and skillful, this is the time for you to take a look at a LawSikho course, develop some real skills that clients and employers would happily shell out money for.

Because there is no shortcut. You must go the extra mile.

4. We never stop learning ourselves.

Would you be willing to pay the equivalent of your one year salary to sign up for an online course? I just did that. 

We have an office space next to the Metro station in Saket. And one office in kolkata. Both offices combined can seat over 60 people. If I combine the rent I pay for these office spaces for a year, even that is less than what I just paid for an online course. 

Why? How can an online course be so valuable?

Because we are aiming to quadruple our business in the next 6 months. Lockdown or not. 

We are learning how to improve our lead generation and media buying, from the best in the world. We are learning how to rapidly increase our sales force. We are learning how to ramp up operations without compromising on the quality of services that we are so proud of. And such training, when spot on, does not come cheap.

That’s going the extra mile. Fighting for growth where everyone else is scampering for safety. 

5. We helped the community by launching COVID focused free content rapidly. How to deal with various legal situations that are arising? How can lawyers do business development in this environment? How can young lawyers plan their career going forward? How can you make your CV better during this lockdown? How are specific industries being impacted? 

We have been writing dozens of articles, doing webinars and uploading lots of videos on YouTube to help you with every aspect of COVID and lockdown without charging a penny.

Here are some links that you don’t want to miss:

https://blog.ipleaders.in/coronavirus-impact-health-finance-life/ 

https://blog.ipleaders.in/covid-19-puts-technology-contract-drafting/

https://blog.ipleaders.in/survive-thrive-lockdown/

https://blog.ipleaders.in/utilize-lockdown-days-get-ahead-career/

https://blog.ipleaders.in/lockdown-long-will-lockdowns-last-will-impact-indian-economy-work/

https://www.youtube.com/playlist?list=PLzs5G6XyVgreKnRlQWA-SlaOG1mVbjXGI

We will soon launch a free ebook on how lawyers must deal with COVID-19. (Stay tuned to our emails for the same.)

Giving value to our community comes first. We know when you see the work we are giving away for free, you will get a sense of how much we do for our paid clients.

And it’s not over for us yet. 

We at LawSikho would continue to walk that extra mile forever, without any doubt, without any excuses.

Remembering the words of an inspirational writer, Israelmore Ayivor:

“Everybody is standing, but you must stand out.

Everybody is breaking grounds; but you must breakthrough!

Everybody scratching it; but you must scratch it hard!

Everybody is going, but you must keep going extra miles!

Dare to be exceptionally excellent and why not?”

So true, right? 

Not only do we practice it ourselves but also we teach our students to do so.

If you read this article so far, I have only one thing to say to you.

Showing up is not enough. Walk that extra mile and make your presence known. 

To your success.

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

Comment below stating “I want to watch webinars!” and we will personally send you the link to the webinar group on WhatsApp. From then onwards, you will receive instant webinar notifications on your mobile phone only.

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

The post A lonely place called the extra mile appeared first on iPleaders.

This article is written by Yash Singhal from Vivekananda Institute of Professional Studies,  New Delhi. The article deals with minority rights in the light of the Kabul Gurdwara attack and how it is included under International Terrorism. It also provides various International Conventions which can be applied to this case.

Introduction

The United Nations was established on 24 October, 1945 after the failure of the League of Nations to prevent another World War. It has the responsibility to maintain peace and security among the member nations through the force of International Law. Any conflict arises out of indifferent perspective by one group towards another group on the basis of discriminatory grounds such as race, caste, sex, religion etc. Every state has the duty to protect every individual irrespective of their identity as a part of Human Rights accepted worldwide. The United Nations has passed Conventions in this regard for their ratification by member states and make them obligatory in nature.

Why Human Rights?

An individual residing in a country shall be assured of certain basic rights required for a dignified life. The guarantee of standard human survival beyond the boundaries of social, economic or ethnic characterisation enables the need for adoption of Human Rights. These rights include the right to life and liberty, freedom of speech, freedom of opinion, freedom from torture, the right to education. 

The United Nations designed a comprehensive framework to protect Human Rights through the Charter of the United Nations and Universal Declaration of Human Rights(UDHR). The promotion of the protection of these human rights is guaranteed through the provisions of UDHR. The United Nations Human Rights Council is the specialised authority to address the breach of human rights at an international level by member states. It produces Universal Periodic Review once every four years as a record of the measures taken by each state in compliance with the conventions of the United Nations and its sub bodies on the promotion of Human Rights.

What are Minority Rights?

The Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities defined minority as a group of individuals that are numerically less in comparison to other groups with no position of dominance and regularly subjected to suppression. Their linguistic, ethnic and religious characteristics are different from the rest of the population.

The proportion of the population of all linguistic, ethnic, religious, racial communities in a country determines the minority status. The population of a community being low in comparison to other communities subject it to the minority status within that country.

It shall be upon that country to make adequate provisions to protect the rights of their minority groups without inciting a sense of inferiority among them. It is a duty of the member state to spread awareness about the requirements of these minority rights and delicately convince the majority to accept those rights as a means of establishing equality. 

The minority rights are provided on the pretext of these groups vulnerable to discrimination on the hands of majority groups. They are not privileges but an affirmative practice of safeguarding minority interests. These are steps to bring all citizens to a minimum level of equality in pursuance of equity and humanity driven society.

Kabul Gurdwara Attack

On 25 March 2020, a few gunmen entered Kabul Gurdwara Sahib in the capital city of Kabul, Afghanistan, in police uniform to open fire on worshippers. The guard at the entrance was shot dead by these gunmen to launch an hour long siege on the religious site. They started by killing all the worshippers in the central hall and continued with searching room to room to kill everyone present in the complex at that time. The attack led to the death of 25 people with around 8 injured. The Afghani police ended the siege by killing these gunmen.

The attack was planned to kill the maximum number of people at a time when the hall was full with worshippers as reported by Sikh minority Parliamentarian Narinder Singh Khalsa. Few witnesses claimed that hand grenades were used to destroy the structure while continuous gunshots were heard. Some people took cover under the table and many rushed outside the complex to save their lives. 

It is not the first instance of the Sikh community being subjected to attacks in Afghanistan. There are around 300 families of the Sikh community in the country and have constantly observed discriminatory practices against themselves. In 2018, a suicide bomber targeted the community with the attack claimed by ISIL killing more than a dozen people in the city of Jalalabad.

ISIS was suspected of carrying out the attack on the Kabul Gurdwara but they rejected any such claims until the arrest of a Kerala man recruit of ISIS who was identified as the mastermind of the attack. It has also been contended that the Taliban had a connection with ISIS monitored attack.

International terrorism

The attack on the religious place which killed 25 innocent people is an act of terrorism which instilled fear in the minds of the whole country. Any violent act which is against the law of the land to intimidate civilians for political aims is defined as terrorism. This particular act will be considered terrorist activity.

The radical measures adopted by an individual or a group to put the lives of innocent people in danger or for the fulfillment of political ambitions in other countries in exchange for sacrifice of human lives are included in the broad terminology of international terrorism. Terrorist activity is brought under the ambit of international terrorism when the activity becomes a global threat while violating the provisions of international conventions of preventing international terrorism passed by the United Nations and its subsidiaries. 

Declaration on Measures to Eliminate International Terrorism

The United Nations General Assembly Resolution 49/60 adopted in 1994 included  Declaration on Measures to Eliminate International Terrorism to counter the activities on global level by the member states while publicly condemning such acts that put innocent civilian lives in danger. Such acts have been identified as criminal and unjustifiable in every manner. Any activity which has the potential of disturbing the peace and tranquility of a state through illegal measures breaching the human rights of individuals while provoking a state of terror in the region, with the shockwaves travelling beyond the intangible boundaries of the country to the global community has been categorised as international terrorism.

Action Plan by India

In the 49th session of the United Nations General Assembly, India proposed a Comprehensive Combat Action Plan against International Terrorism as means to safeguard civilians from any harm. India firmly believes terrorism to be a great threat to promotion of human rights, democracy and political rights within a nation. While appreciating the social division of each country into various groups, individual and collective identity must be catered to equally without discrimination or prejudice. 

India requested all member states to adopt diplomatic measures to combat the terrorism with international support across borders for a constructive model accepted all around the world. The communication shall be developed to improve information delivery systems from a particular country to the other country, which will be useful in sensitive data delivery on the suspicion from intelligence agencies to be transmitted to the target region with immediate effect. This would give the target country enough time to prepare themselves on security grounds to combat the situation as well carry out any covert action to eliminate the terrorist outfits without them being aware of any such covert operation.

This framework was rejected by the European states on the pretext that it does not involve the self-determination issues and only deals with individual criminal responsibility of member states. Self-determination is the “right of every country and individual alike to form their own political opinions and status along with social, economic and cultural development”.

Regional Efforts

Regional cooperation has been advised in order to counter the threat of terrorism. The geographical position of countries has been the basis of forming regional associations to promote cooperation among the members as means to provide assistance in matters such as financial, cultural, social, political and security. It is not unusual for all these associations to place terrorism as a primary matter of concern.

Organisation of American States, South Asian Association of Regional Cooperation, the Commonwealth of Independent States, League of Arab States, the Organisation of the Islamic Cooperation, Organisation of African Unity are some regional associations that came into existence on the directions of the United Nations to promote regional interdependence associations for supporting of members among themselves for greater good of the region itself.

International Conventions regarding the Attack

Universal Declaration of Human Rights 1948 (UDHR)

Article 2 of the UDHR provides the rights within the Declaration to all individuals irrespective of any distinction made on the grounds of race, colour, sex, language, religion, political or other such matters. 

Article 3 is the guarantee of right to life for all with dignity, liberty and security.

Article 30 has been the significant clause to disregard any interpretation as to the provisions of the Declaration through an act that destroys any of the freedoms enshrined herein. 

This Declaration has identified human rights of the worshippers regardless of their religious denomination and the subsequent attack as a barbaric act in violation of the freedoms enshrined in the Declaration itself. This provides for an immediate action against the accused according to clauses of the Declaration.

Convention on the prevention and punishment of the Crime of Genocide 1948

Article 2 defines genocide as an intentional act to destroy a religious, national, ethnical or racial group, undertaking measures as killing members of the group, serious bodily injury or harm, wholly or in part destruction of a group, prevent births within the group, transfer of children to other group. 

Article 3 states what could be included within the jurisdiction of the Convention. Genocide, attempt to genocide, conspiracy to genocide, incitement to commit genocide are among those included.

The killing of Sikh community as the cause of target killings in the form of genocide of religious minority to wipe out their population in Afghanistan has been included as a part of the Convention. The United Nations and its subsidiaries needs to take strict actions to restrict any such acts of genocides in the future.

UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992

Article 1 has advocated for the state responsibility in the matters of protection of national or ethnic, religious and linguistic identity of minorities.

Article 4 provides the minorities with the right to enjoy their fundamental and human rights without any form of discrimination against them within the state.

The Sikh community has observed numerous instances of discrimination meted out against them in Afghanistan due to their minority status. The Afghanistan government has lacked implementation of the Convention in full force to provide the Sikh community with enough assurance of a dignified life or even survival for that matter. 

Global public condemnation shall be the driving force of change in the situation of religious minorities in every country. It is the basic human right to respect every individual while guaranteeing equality of opportunities.

Legal Implications of the attack

Fleeing the country

Sikh community is a religious minority in Afghanistan due to their population of around 300 families only. Any genocidal attack like this makes the community uncomfortable about their safety in the country and whether the government is even doing enough to safeguard their interests. In such a scenario, the community flee their country of origin against the threat of religious persecution to seek asylum in other countries. 

Article 14 of the Universal Declaration of Human Rights gives the right to seek asylum by anyone facing persecution. The nations ratifying the International Covenant on Civil and Political Rights have the legal responsibility to accept asylum seekers as a matter of human rights.

The neighbouring nations are most likely to experience the asylum seeker influx, with India and Pakistan being the prime hubs due to their notable Sikh population.

Cases against involved persons in India

According to the reports, Mohsin, a man from Kasargod, Kerala was involved in the attack as a part of the terrorist outfit. The National Investigation Agency(NIA) of India took charge by registering a case against the Indian nationality suspects indicated to be involved in the conspiracy. 

The NIA registered the case under Unlawful Activities (Prevention) Act, Indian Penal Code, and NIA Act. This is the first instance of NIA registering a case for attacks outside India. 

The whole conspiracy is beyond the territorial jurisdiction of Afghanistan and has its links in various other countries where the terrorist outfit has recruits working actively.

Amendments to Security Laws in Afghanistan

The Afghan government must take this terrorist attack as a warning to amend their existing security laws by having provisions for strict punishment for those engaging in such activities. Also, an Act establishing an agency to probe into any form of intelligence information. This agency will take immediate steps by informing the security forces before commission of any such act. 

Minority rights need to be taken seriously by the government by taking suggestions from minority groups’ representatives themselves on desired laws. The trust of these minority groups needs to be restored to public authorities to prevent any sort of violence or arms conflict in future against the government.

Conclusion

The Kabul Gurdwara Sahib attack is not an attack in isolation but has garnered attention from all corners of the world due to its barbaric nature of mass killing of religious minorities by few gunmen in police uniform. The xenophobia among the people has increased beyond the sentiments of brotherhood and sisterhood. It is a matter of international terrorism with ISIS being the mastermind behind the attack while jeopardising innocent people within the place of worship. The International Conventions by the United Nations and its subsidiaries have provided for promotion of peace within member states but such acts of genocide have been the reasons behind non-fulfillment of the goal of the UN. The strict implementation of the Declarations by International Organisations by every member nation shall go a long way in minimising such activities.

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

The post Kabul Gurdwara Attack and its Legal Implications appeared first on iPleaders.

This article is written by Nandini Tripathi, from Symbiosis Law School, Hyderabad.

Introduction

At one cease of the spectrum is the rule of “absolute contracts” laid down in the seventeenth century in Paradine v. Jane in which a person who “binds himself via contract truly to do a thing cannot break out legal responsibility for damages” on the idea “that as occasions turned out performance is futile or even not possible” at the other give up, is proving discharge of settlement due to impossibility/ frustration on the premise of erosion of the essential bargain among the events.

Between the 2 extremes, it was but natural that an intermediate contractual mechanism for risk allocation could evolve. Such evolution has resulted in multiple sorts of clauses- an “excellent endeavours” clause, an “affordable endeavours” clause, a clause which pins liability or loss of it based on a specific contingency, and so forth. A force majeure clause is nothing however a chance allocation mechanism in a settlement.

The role is exceptionally summed up by means of the US Supreme Court in Day v. U.S. therefore:

“One who makes a contract by no means can be certainly positive that he could be capable of performing it while the time comes, and the very essence of it is that he is taking the hazard inside the limits of his information. But while the scope of the know-how is constant, this is simply another manner of announcing that the contractor takes the hazard of the barriers to that volume.” 

Although force majeure is regularly blended up with the concept of frustration, it is simply a contractual treatment (even though the existence of circumstance precedents/ contingencies is recognized through Section 32 of the Indian Contract Act, 1872 (ICA)). Frustration, on the other hand, in the Indian context, is a statutory treatment enshrined in Section 56 of the ICA. While the latter outcomes in discharge of the agreement altogether, the previous is simplest a chance allocation clause, which at high-quality creates a temporary exemption from overall performance (difficulty to the terms of the clause). Since “force majeure” is a contractual mechanism, plenty is at stake in how the force majeure clause is built.

Contents of a typical Force Majeure clause

Generally, at the same time as a settlement between parties is operational, situations might also stand up which can be beyond the contemplation and reasonable control of the events to the agreement. These conditions generally tend to render impossible the performance of the settlement by means of the events. These conditions are termed as ‘pressure majeure’ occasions. The time period ‘force majeure’ is a French time period derived from the Latin expression, ‘vis important’ or ‘superior pressure.’

Force majeure clauses are of many types- the primary kind affords for a limited list of activities that the events agree might represent a force majeure occasion for the functions of the agreement. These events commonly include conflict, civil strife, epidemics, acts of Government and so on. A 2nd type is wherein the events agree that each one those events that couldn’t have been pondered at the time of execution of the settlement, and that are beyond the affordable manipulation of both parties, constitute a force majeure event for the motive of the agreement. Hybrid variations of the two and more than one variants of those are manifestly feasible since the clause is absolutely left to the parties. The precept to be kept in mind whilst decoding a force majeure clause is that it should be narrowly construed.

Usually, a pressure majeure clause might offer that neither birthday party (or in some instances one unique party) could make a declaration because of a pressure majeure occasion. Some pressure majeure clauses might also offer for a termination choice in case the occasion continues over a distinct term.

Whether the outbreak of COVID-19 and the following lockdowns ordered by the Central and State Governments would represent a force majeure occasion is dependent on the specific wording of the clause. Where “epidemics” or “acts of Government” are part of the pressure majeure clause, it’s far maximum probably that a Court/ Arbitral Tribunal could preserve that the existing occasions might represent a force majeure occasion situation to:

1. Proof of causation;
2. Harmonious construction with different provisions; or
3. Complying with the condition precedents contained within the force majeure clause.

Each of those problems is discussed separately.

Proof of causation

Establishing a causal hyperlink between the force majeure occasion and dilemma to performance of the agreement is a prerequisite to assert the gain of a force majeure clause. As part of organising this take a look at, the celebration searching for to benefit from the pressure majeure clause have to display, first, that it would have been capable of carry out its duties but for the force majeure occasion; second, that the force majeure occasion itself changed into enough to cause the non-performance as in opposition to being one of the many reasons for non-performance. On this foundation, it held that where a charterer couldn’t establish its capability to deliver the products, despite the fact that the shipment turned into made impossible by using distinctive feature of a force majeure event (bursting of a dam in this case), the charterer couldn’t take recourse to the force majeure clause.

Applying this test to the existing situation, the primary question to be replied stays whether or not contractual compliance could have been achieved in spite of the effect of the COVID-19 and the COVID-19 advisories (travel advisories dated 17.01.2020, 05.02.2020, 02.03.2020, and 19.03.2020, amongst others) and eventually the lockdown by way of Governmental Orders (Central lockdown for a length of 21 days vide the Ministry of Home Affairs Order dated 24.03.2020 and multiple man or woman kingdom lockdowns on in advance dates). The 2nd query that desires to be replied is whether a celebration is the use of the pressure majeure as a mere excuse to protect a breach that would have happened even within the absence of COVID-19 advisories and/ or lockdowns.

Applying this rationale, neither a party which could have executed its responsibilities remotely (such as a designer who could have designed an infrastructure task remotely), nor a celebration who was besides in breach notwithstanding the pressure majeure event (including an employer who had no longer yet acquired the website to handover to the contractor for creation and who can’t establish that it’s far in a function to gather the identical throughout the length of the pressure majeure event) can take gain of the force majeure clause.

Another state of affairs might be wherein the preliminary breach by using one party caused the alternative birthday celebration to go through the effect of the force majeure occasion consisting of a construction task which was purported to be concluded via February 2020 but were given behind schedule by means of 2 months because of one party’s breach. In this sort of scenario, the pressure majeure event might have had no effect and therefore the breaching celebration will not be absolved of legal responsibility.

Harmonious creation with other provisions

Since a pressure majeure clause is a contractual introduction, the supply will must be examined harmoniously with other provisions. Hence, despite the fact that the force majeure clause might itself offer that neither birthday celebration can be entitled to make a claim, the equal cause of motion might also suit in the ambit of some other clause which might also entitle a celebration to make a claim. In such a state of affairs, the 2 clauses should be harmoniously construed and via doing so, it may still be possible for a party to make a declaration.

To illustrate, maximum Power Purchase Agreements and some infrastructure contracts incorporate a “Change in Law” clause, which entitles one of the parties to assert certain extra charges in the event of an detrimental effect with the aid of an “exchange in law.” In such a state of affairs, it can be viable to argue (based totally at the wordings of the character clauses) that the lockdown Order, which became made pursuant to a rules (Section 10(2)(l) of the Disaster Management Act, 2006) ended in an alternate in regulation and therefore this became a case where parties had agreed that repayment became payable. There may be different clauses as well such as a “Suspension clause” which may be relevant in positive instances. In all such cases, the force majeure clause ought to be read harmoniously with the opposite provisions of the contract to decipher what the intention of the parties became. Hence, even though an occasion may additionally qualify as a pressure majeure event, in case there may be a specific provision allocating threat in relation to the event, the unique provision might be carried out on the basis of the rule of thumb of lex specialis derogat legi generali i.e., the special prevails over the overall.

Complying with the circumstance precedents contained in the force majeure clause

Most contracts have a notification requirement vis-à-vis the occurrence of the stated pressure majeure event, which stipulates that the non-acting celebration notifies the performing celebration approximately the prevalence of the pressure majeure occasion and the subsequent impossibility to perform the works. Indian Courts have held such a notification as an obligatory contractual requirement, failing which the force majeure clause will now not be attracted. This is glaringly on the basis that because the force majeure clause is a creation of the settlement, the pre-conditions in the agreement for bringing into play the stated clause will have to be adhered to.

Concluding Remarks – When the Force Majeure Clause is attracted, does the loss always lie where It falls?

The well known presumption is that in case of a pressure majeure event, the loss lies in which it falls on the grounds that neither birthday party is responsible to the opposite for a loss prompted due to an occasion beyond its manipulation. However, a case for claiming repayment may be made in the following instances:

1. By establishing that the purpose of the loss isn’t always virtually the pressure majeure event however the other birthday party’s breach,
2. Where the force majeure occasion falls inside the ambit of any other risk allocation clause (together with a “exchange in regulation” clause) which presents for payment of reimbursement by one celebration, and
3. Where the pressure majeure clause itself is restricted in scope.

The exceptions cited may not be exhaustive and it’s miles likely that with unique truth situations emerging, the jurisprudence on this vicinity would broaden substantially.

Before concluding, it is suitable to emphasize that not one of the examples given in this text relate to contracts where time is of the essence, given that it’s miles more likely that such contracts would stand annoyed owing to impossibility.

COVID- 19 has been declared as a virulent disease by means of the World Health Organisation, and the Ministry of Health and Family Welfare has issued an advisory on social distancing, w.r.t. Mass accumulation and has positioned tour restrictions to prevent spreading of COVID-19. On nineteenth february, 2020, vide an workplace memorandum O.M. No. 18/4/2020-PPD, the Government of India has clarified that the disruption of the delivery chains due to the unfolding of coronavirus in China or every other USA must be taken into consideration as a case of natural calamity and “pressure majeure clause” may be invoked, wherever taken into consideration appropriate, following the due method.

In view of the present day situation in which COVID- 19 has a global impact, and is ensuing in a continuous sharp decline inside the marketplace, it’s far crucial to understand the relevance of force majeure clauses, and the effect thereof.

Meaning of Force Majeure

The term has its foundation from French, that means “extra pressure”. Collins Dictionary defines “pressure majeure” as “irresistible force or compulsion consisting of will excuse a party from performing his or her part of a settlement”.

The term has been described in Cambridge Dictionary as follows:

“an sudden event such as a conflict, crime, or an earthquake which prevents a person from doing something that is written in a felony settlement”.

In Merriam Webster Dictionary, the term has been described as “advanced or irresistible force” and “an event or impact that can’t be moderately expected or managed”.

In light of COVID- 19, a pertinent question which can stand up right here is whether or not COVID- 19 shut down may be regarded as a force majeure occasion for all of the agreements, presenting a leeway to the events claiming impossibility of overall performance? Further, whether such non-compliance of the phrases of the settlement will neither be regarded as a “default devoted with the aid of any birthday party” nor a “breach of agreement”?  The popular principle is that an event can be appeared as a pressure majeure occasion on fulfilment of the subsequent situations:

• An sudden intervening occasion happened: The event should be one which is beyond the manage of either of the events to the agreement, much like an Act of God;
• The events to the settlement assumed such an event could now not arise: A party’s non-performance will no longer be excused wherein the occasion stopping performance became predicted or become a foreseeable danger at the time of the execution of the agreement; and
• The unexpected event made contractual overall performance not possible or impracticable: For instance, can the provider of debentures say that there is no default if the issuer is unable to redeem the debentures? Whether an occasion has made contractual overall performance impossible or impracticable needs to be decided on a case-to-case foundation. It is to be analysed whether or not the trouble is so extreme with a view to deeply have an effect on the birthday party, and thereby developing an impossibility of overall performance. This must be, but, relative to the counterparty as a way to create an impossibility of overall performance.
• The events have taken all such measures to perform the obligations beneath the agreement or atleast to mitigate the harm: It is needed that a party searching to invoke force majeure clauses need to observe the necessities set forth in the agreement, i.e. to provide be aware to the alternative birthday celebration as quickly because it became aware about the force majeure occasion, and need to concretely display how the said situation has directly impacted the overall performance of responsibilities underneath the settlement.

Some Landmark Rulings in India

Deliberating on what’s to be taken into consideration as a pressure majeure, in the seminal decision of Satyabrata Ghose v. Mugneeram Bangur & Co., 1954 SCR 310, the Hon’ble Apex Court had adverted to Section fifty-six of the Indian Contract Act. The Supreme Court held that the phrase “not possible” has now not been used inside the Section in the feel of bodily or literal impossibility. To determine whether a force majeure event has passed off, it is not important that the performance of an act ought to actually turn out to be not possible, a trifling impracticality of performance, from the factor of view of the events, and considering the item of the settlement, can also be covered. Where an untoward event or unanticipated exchange of condition upsets the very foundation upon which the events entered their agreement, the identical may be taken into consideration as “impossibility” to do as agreed.

Subsequently, in Naihati Jute Mills Ltd. V. Hyaliram Jagannath, 1968 (1) SCR 821, the Supreme Court additionally referred to the English regulation on frustration, and concluded that an agreement is not pissed off merely because the situations in which it turned into made are altered. In widespread, the courts don’t have any energy to absolve a party from the performance of its part of the contract merely because its overall performance has turned out to be onerous resulting from an unexpected flip of activities. Further, in Energy Watchdog v. CERC (2017) 14 SCC 80, it became observed as follows:

While some of the agreements do have a force majeure clause, one query which could get up is whether the excuse of force majeure occasion be taken handiest if there’s a selected clause within the agreement or event otherwise? Typically, in all of the agreements, whether or not the promisor is underneath the obligation to right away inform the promisee in case of occurrence of any event or incidence, any force majeure occasion or act of God such as earthquake, flood, tempest or typhoon, etc or different similar happenings, of which the promisor grow to be aware, which is reasonably expected to adversely have an effect on the promisor, or its capacity to perform responsibilities beneath the agreement.

The terms of the settlement and the purpose has to be understood to determine the effect of force majeure clause.  In Phillips P.R. Core, Inc. v. Tradax Petroleum Ltd., 782 F.2d 314, 319 (second Cir. 1985), it turned into determined that the simple reason of force majeure clauses is in fashionable to relieve a party from its contractual responsibilities while its performance has been averted with the aid of a force past its manage or while the reason of the contract has been frustrated.

The next query that may get up is whether or not each pressure majeure leads to frustration of the agreement? For example, if the settlement turned into hiring of an automobile on twenty fourth March, the prevalence of COVID- 19 may additionally just have the impact of changing the timing of performance. In some different instances, the event may additionally only affect one part of the transaction. Therefore, the impact of the pressure majeure occasion can’t be generalised and shall range depending on the nature of transaction. Usually, occurrence of a pressure majeure occasion presents the promisee with a right to terminate the settlement, and take all vital movements as it is able to deem healthy. For example, in case of hire, if the lessor considers that there’s a threat to the system, the lessor may additionally seek for repossession of the leased gadget.

Further, in case the pressure majeure event frustrates the very rationale of the settlement, then the events are below no obligation to perform the settlement. For example, if the settlement (or overall performance thereof) itself turns into illegal due to any government notification or alternate in law, which arises after execution of the agreement, then such agreements no longer have to be accomplished in any respect. In such cases, if the settlement contains a force majeure or similar clause, Section 32 of the Indian Contract Act could be applicable. The stated segment stipulates that contingent contracts to do or not to do something if an unsure destiny event occurs, cannot be enforced via law except and until that occasion has occurred; If the occasion turns into not possible, such contracts turn out to be void. Even if the settlement does not incorporate a selected provision to this effect then in this kind of case doctrine of frustration beneath Section fifty-six of the Indian Contract Act shall follow. The phase gives that an agreement to do an act which, after the settlement is made, turns into not possible, or, by means of motive of some event which the promisor could not prevent, illegal, becomes void while the act turns into not possible or unlawful.

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This article is written by Shaivy Maheshwari, pursuing BA.LLB from Symbiosis Law School, Noida. This article deals with Additional Grounds of Divorce for wife under HMA, 1955.

Introduction 

Marriage

Marriage, the very foundation of a family, plays the important role of a root on which the subsequent ties add up to build a social structure, the very basis of society. Under this institution, individuals are tied up and are supposed to adhere to certain rules and responsibilities. These responsibilities vary from sharing space, sharing and maintaining their finances, healthcare, insurance, the responsibility of the children etc. Since marriage itself affects the life of a community, it is believed that it is the duty of the State to promote and protect the institution of marriage. Also, in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, [1] in which it was said that “Strong presumption arises in favour of wedlock, where the partners have lived together for a long spell as husband and wife”. 

Dissolution

When two persons are legally tied by the institution of marriage and through the consent of both of them, this tie is broken, then a dissolution is said to have occurred. After that, the process of child custody, alimony and division of property is looked upon by the court. Couples can opt for “no-fault” or “fault” divorce for the purpose of dissolution. While fault divorces are based on particular misconduct by any one party, no-fault dissolution is one when parties do not seek divorce on the basis of any kind of misconduct.

Realizing the above issues, the Parliament of India enacted the Hindu Marriage Act, in the year 1955. It gives certain rights and duties to both the parties and at the same time defined rules and regulations relating to concepts like Guardianship, Succession and Adoption. While marriage is a kind of personal and social alliance between the parties, it is necessary to understand that the individuals tied by the wedlock have their own individual life which is sometimes compromised due to this. When the efforts of one or both of the parties fail to comply with their obligations under marriage, the act gives the parties the freedom to dissolve the wedlock, if the conditions comply with those given or mentioned in the act. These conditions are given mutually to both of the parties and on separate grounds to the wife. This project specifically focuses on the privileges regarding the dissolution which are given to the wife.

1. What methods do courts apply to save a marriage before it finally gets dissolved?
2. Can the relationship of marriage be saved even if it is beyond repair?
3. Is individuality given a higher preference than reunion in a marriage?

If the understanding between both of the parties fails, then it is necessary to dissolve the marriage, since it no longer serves as a necessary institution required by the community. The relationship in such cases becomes a living misery for both of the parties, which is not what this institution intends. Also, the relationship requires the emotional will of both of the parties and the desire to live together. If that factor is missing, it neither serves its purpose socially nor personally, for the enrichment of the parties as explained in the case of K. Srinivas Rao v. D.A. Deepa, [2] in which the court explained “irretrievable breakdown of marriage” theory. In the words of the court, “if parties are not willing since marriage involves human sentiments and emotions and if they have dried up, there is hardly any chance of their springing back to life on account of artificial reunion created by court decree”. However, under the Hindu Marriage Act, it does not act as a valid ground for divorce, until now. The main intention in these cases is to mitigate the hardships of both the parties. The rising popularity of individualism has also escalated such consciousness.

There are certain steps through which a marriage gets finally dissolved. These are made in such a way that if there is any slightest possibility to save the marriage, it should be saved in such cases.

Section 9 (Restitution of Conjugal Rights)

After the successful completion of a marriage under the Hindu Law (Section 9), both the husband and the wife gain certain special rights known as the conjugal rights. The Hindu philosophy describes three objects of marriage: justice, procreation and pleasure. In order to attain a successful marriage, all of the objectives must be fulfilled while the spouses are under the marital union. Thus, the Hindu Law says that “each spouse is entitled to the society and comfort of the other and if any spouse, without any reasonable cause, leaves any spouse, the latter can move the court for the decree of restitution of conjugal rights”. Thus, if a husband leaves his wife citing no appropriate reasons, a wife can file a decree of restitution of conjugal rights. [3]

As pointed out in the case of Suman Singh v. Sanjay Singh, [4] “When there is evidence establishing that it was the respondent-husband who withdrew from appellant’s company without any reasonable cause, the appellant is entitled to a decree for restitution of conjugal rights”. Thus, in such cases, rather than directly moving onto divorce, the court ensures that if the valid marriage between two parties can be saved, it should be before such kind of necessity arises that both of the parties cannot live together anymore.

Section 10 (Judicial Separation)

In the case of a troubled marriage under Section 10, the court allows a kind of last resort which is available to the parties in order to save their marriage. After this, there is no obligation of the parties to live together or cohabit. There are seven grounds which are available to the parties over which they can claim the plea for judicial separation. In the case of Jeet Singh v. the State of U.P., [5] the court explained judicial separation as “There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended. The decree, however, does not sever or dissolve the marriage. It affords an opportunity for reconciliation and adjustment. Though judicial separation after a certain period may become a ground for divorce, it is not necessary and the parties are not bound to have recourse to that remedy and the parties can live keeping their status as wife and husband till their lifetime”.

Section 13 (Divorce)

Even after all these phases, if it becomes impossible for the parties to be bound by the institution of marriage, the court allows the parties to free themselves. For that, the parties have to fulfil certain conditions given under Section 13. These vary from voluntary sexual intercourse, cruelty, desertion to mental or psychopathic disorder and venereal disease. The party claiming divorce has to prove one or more of these grounds in order to claim for divorce.

Section 13(1)(b) of this Act, provide for certain special grounds over which the wife can claim a divorce. These grounds are:

1. If the husband marries any other female when his original wife has been living, in such cases, the wife can invoke this as a valid ground for divorce. The only condition in such a case is that the first wife must be alive during the petition for divorce. In order to prove that the first wife was alive at the time of marriage, direct evidence need not be established.
2. If the husband has been guilty of rape, sodomy or bestiality [6] to which the wife has been the victim, she can use this as a valid ground for divorce. In order to prove, it is sufficient to show by evidence that there was penetration for sexual intercourse. Sodomy and Bestiality are other forms of sex constituting criminal offences.
3. If the marriage has been before the female attained the age of fifteen years. [7] This ground does not take into consideration whether the marriage has been consummated or not. However, it is necessary that the wife invokes this ground for repudiation before attaining the age of eighteen years.

Dismissal Of Petition by Courts

In these cases, even if the petition is filed by parties wanting to get divorced, the court may dismiss their petition. These grounds are:

1. In a case, where the parties fail to provide evidence to the court, which is necessary for the claim and hence, they cannot satisfy their claim. The claim made by the petitioner fails to be proved.
2. If it cannot be proved before the court that the adultery has been committed to real and the party disregards the fact that adultery has taken place. If the court finds out that the claimant has himself overlooked the kind of marriage that has been complained of.
3. If it is found out that the petition has been claimed in collaboration with either of the respondents. In such a case, the court will disregard the request of dissolution of marriage by the party/parties.

Decision of the Court to dissolve the marriage 

If the court is satisfied by the claim of the parties for the purpose of dissolution of marriage, then it will pass an order to dissolve the marriage. The marriage is said to be dissolved on the day when a given court declares a decree on the same issue. In case, the issue is settled between the parties, all the terms of the settlement, are provided by the judgment. The document of judgment provides the detail of every issue dealt with. A marriage is said to be finally dissolved on the same day when the judge signs the decree of the divorce of the parties. The certificate for the same is provided by the State, which acts as proof that the marriage has been officially ended. However, in certain cases, the courts have the power to deny the request. These cases are:

1. If it comes to the knowledge of the court that the claimant has himself committed adultery, then it has the right to disallow the parties.
2. If it is observed by the court that there has been an unnecessary delay on the part of the claimant in proving his case or bringing charges for the prosecution of the case against the other party.
3. If the party fails to give any reasonable excuse for separating or deserting his/her spouse before the commission of adultery by the other party.
4. In case, the party commits any discomfort or willful neglect towards the other party.

Conclusion

While it is necessary to protect the important institutions such as that of marriage since the health of our community depends on it. Sometimes, it may happen that this very institution becomes the cause of individual exploitation. This becomes the cause of tarnishing of individual happiness and individual rights get violated while maintaining such a tie.

The State believes that it is its duty to protect such kind of rupture to an important relationship. The proof of it can be clearly sought in the case of Reema Aggarwal v. Anupam [8] in which the court clearly maintained that “Where a man and woman have been proved to have lived together as husband and wife, the law will presume until the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.” In addition to this, there must be a mutual sound understanding between both the parties with each other as well as the responsibilities that they are required to carry out. Living under such kind of obligation is not an easy task since a whole lot of responsibilities rest on an individual’s shoulder. Under such circumstances, every day tensions are bound to occur. But, the law believes that sudden shortcomings or misunderstandings should not be the reason for a sudden breakage of the sacred tie of marriage. Hence, it provides certain steps before the marriage gets finally dissolved.

Section 9 of the Hindu Marriage Act provides restitution of conjugal rights. Hence, if a spouse leaves the other one citing no reason and the other one feels that his conjugal rights have not been fulfilled, then he can move to the court for the fulfilment of his/her rights. Restitution of conjugal rights is a way which allows a party, who has been temporarily deserted, to enjoy his/her conjugal rights granted by the solemnization of a marriage. The court, in such a case, has its own procedure ensuring that the spouse enjoys his/her rights granted to him under the institution of marriage.

Another ground is ‘judicial separation’ under which the parties are henceforth under no obligation to live together. This can be achieved by fulfilling certain grounds after which the court allows both of the parties to live separately. When the marriage of two parties become such that it cannot be repaired and none of its many purposes is served, it becomes dead and fails to be revived. Under such cases, it becomes necessary to dissolve the marriage or else the individual identities of both parties would be at stake. Thus, the court grants certain conditions, which if fulfilled, could act as valid grounds for the grant of divorce. Women, in these cases, have been given special rights/conditions, under which, they can satisfy the dissolution of the marriage.

These include the marriage of the husband with another, rape or sodomy or if the marriage has been solemnized before the attainment of the age of fifteen years.

References 

• Agarwala, R. (1970). RESTITUTION OF CONJUGAL RIGHTS UNDER HINDU LAW: A PLEA FOR THE ABOLITION OF THE REMEDY.
• Agrawala, R. (1972). CHANGING BASIS OF DIVORCE AND THE HINDU LAW. Journal of the Indian Law Institute, 14(3), 431-442. 
• Diwan, P. (1957). The Hindu Marriage Act, 1955. The International and Comparative Law Quarterly, 6(2), 263-272.
• V.S., J. (2006). IRRETRIEVABLE BREAKDOWN OF MARRIAGE AS AN ADDITIONAL GROUND FOR DIVORCE. Journal of the Indian Law Institute, 48(3), 439-444.

Endnotes 

[1] Chanmuniya v. Virendra Kumar Singh Kushwaha (2011) 1 SC 141.

[2] K. Srinivas Rao v. D.A. Deepa(2013) 5 SCC 226.

[3] Section 9 of the Hindu Marriage Act, 1955.

[4] Suman Singh v. Sanjay Singh(2004) SCC 85.

[5] Jeet Singh v. the State of U.P.(1993) 1 SCC 325

[6] Section 13 (2)(ii)

[7] Section 13 (2)(iii)

[8] Reema Aggarwal vs. Anupam (2004) 3 SC 199.

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This article is written by Arushi Chopra, a student of Symbiosis Law School, Noida. This article deals with the discharge of surety’s liability. 

Introduction

A contract of guarantee is considered to be of huge commercial viability and has been greatly in use in case of any commercial transactions. This is because a contract of guarantee acts as a second pocket to repay the amount if the first pocket or the person to whom the loan is advanced fails to pay.

In a contract of guarantee, a surety undertakes to pay the amount to the creditor in case the principal debtor is not able to pay the amount. The Indian Contract Act, 1872 through its different provisions ensures that it protects the interest of all the parties in a contract of guarantee, especially the interests of the surety. It may happen that initially when the contract of guarantee had been entered into, the contract was not entirely based on good faith. However, after entering into such a contract, our legal system makes it a point that good faith is imposed on the creditor. [1] It also ensures that there is no ambiguity related to the rights and liabilities of the surety.

Discharge of surety

The Indian Contract Act, 1872 provides for the discharge of the liability of surety, in case of certain given circumstances. A surety is said to discharge from his liability if his liability to perform the promise, in case of a default by the principal debtor, comes to an end. 

The situations under which a surety is discharged from his liability is listed as follows:

• Discharge by Revocation

1. Revocation of guarantee by giving notice (Section 130);
2. Revocation by death (Section 131).

• Discharge by the conduct of the parties

1. Variance in terms of the contract (Section 133);
2. Release or discharge of the principal debtor (Section 134);
3. Compounding by Creditor with the principal debtor (Section 135);
4. Creditors act/omission impairing surety’s eventual remedy (Section 139);
5. Loss of security (Section 141).

• Discharge by the invalidation of the contract

1. Guarantee obtained by misrepresentation (Section 142);
2. Guarantee obtained by concealment (Section 143);
3. Failure of a co-surety to join a surety (Section 144).

Revocation of surety by giving notice

Section 130 of the Indian Contract Act, 1872 states that a continuing guarantee, i.e., a guarantee for a series of transactions can be revoked if a notice is served to the creditor. However, revocation in case of a specific guarantee is not possible if the contract entered into has been already acted upon.

Interpretation of the relevant section

On analysis of Section 130 of the Indian Contract Act, 1872, it can be inferred that a continuing guarantee can be revoked by serving a notice only for any future transactions. The surety is liable for the transactions which are already entered into. This is the reason, why the section does not include revocation of specific guarantee, as there are no future transactions which have not yet been entered into in case of a specific guarantee. It can also be inferred that the notice should be given to the creditor at any time. This notice should be clear and specific and it should state that the surety is intending to terminate his liability as to the future transactions. Also, there should not be any existence of the contract stating the contrary. 

Case Law and Analysis

Case law, in this effect, is the case of Sita Ram Gupta v Punjab National Bank. [2] The facts of this case as identified were that the appellant revoked the guarantee given by him before the amount was advanced to the principal debtor. However, there was a clause in the contract of guarantee entered into, which provided that the guarantee is of continuing nature and will not be cancelled or revoked. The court held that the appellant was himself responsible for waiving off his own rights and hence, cannot revoke the contract. 

Revocation by death

Section 131 of the Indian Contract Act, 1872 provides that in case of death of the surety, the liability of the surety is discharged.

Interpretation of the relevant section

From the interpretation of Section 131, it can be inferred that the death of the surety will lead to a discharge of the surety. The surety will be discharged from the future transactions which are entered into. However, the legal heirs of the deceased surety have the obligation towards the transactions, for which the surety has given the guarantee, in case the transactions have already been entered into. They are liable only to the extent of the property that they have inherited [3] and they cannot be made personally liable for the obligations of the surety. Also, there should be no separate provision in the contract which states that the contrary to this provision.

Discharge by variance in terms of the contract

Section 133 of the Indian Contract Act, 1872 provides for the discharge of the liability of the surety, in case of material alteration or variance in the terms of the contract. 

Interpretation of the relevant section

Through the literal interpretation of the provision, it can be determined that a surety can be discharged from his liability if there is a variance that has been made without the consent of the surety, in case of a continuing contract of guarantee. The essential factor which determines if the liability of the surety is discharged is the concept of substantiality and materiality of the variance. The court has to decide, keeping the entire facts into consideration, whether a given variance is material or not. In case the variance in the contract leads to a benefit of the surety, the surety may not be discharged of his liability as it is within the discretion of the court with regards to the materiality of the fact.

Case Law and analysis

A relevant case law, to this effect, is the case of Bonar v Macdonald [4] which is summarised as follows:

• Facts

The defendants entered into a contract of guarantee for the conduct of the manager of a bank. The bank raised his salary and he was made liable to one-fourth of the loss, without the consent of the surety. The manager allowed a customer to overdraw his amount and this lead to loss.

• Issues

Whether the surety is bound to pay the amount of loss or is it a material variation?

• Judgement

It was held that the variation in the terms of the contract was made without taking the surety into consideration and the variation is obviously material. Hence, the surety is discharged from his liability.

Therefore, it can be inferred that any material changes in the contract can discharge the duty of the surety, as is evident from the above case law. The manager was made liable for one- fourth of the loss of the firm which was to be paid by the surety, in case of a default by the manager.

Release or discharge of the principal debtor

Section 134 of the Indian Contract Act provides for the discharge of the liability of the surety, in case the principal debtor is released from his liability to repay the amount. 

Interpretation of the relevant section

Therefore, Section 134 deals with the discharge of the secondary liability of the surety in case the primary liability of the principal debtor is discharged. However, the converse is not true. This means that if there is a discharge of the liability of the surety, it will not automatically discharge the liability of the principal debtor. The section provides two situations which would result in the release of the principal debtor. These are elucidated as follows:

• Existence of a contract or laws

In case, the liability of the principal debtor gets discharged, the surety who has the secondary liability is also discharged from his liability.

However, a distinction must be made by the court in relation to the time when the surety is discharged from his liability and when it is not. For instance, in the case where the amount of the principal debtor gets reduced to the application of the debt relief act, the surety will be liable only for the reduced amount. However, in case the principal debtor is discharged from the liability in case of insolvency, the surety is not discharged. 

• Act or omission

The second case is where there is an act or omission on part of the creditor that discharged the liability of the principal debtor. In this case, the surety will be discharged. This can happen when the creditor fails to perform his part of the promise which discharges the liability of the debtor.

Compounding by Creditor with Principal Debtor

According to Section 135 of the Indian Contract Act, 1872, a surety can be discharged of his liability if there is any composition or a new agreement between the creditor and the principal debtor. Through analysing Section 135 of the Indian Contract Act, it can be concluded that a surety can be discharged from his liability in case of three prevailing circumstances. These are:

• Composition

Composition refers to variation in the original contract and adding something up which was not present in the original contract. In case there is a composition in the contract between the debtor and the creditor without surety’s consent, it would discharge his liability.

• Promise to give time

The surety is entitled to ask the principal debtor to pay off the debt when it is the time for repayment. However, if there is a contract between the principal debtor and the creditor whereby the creditor has agreed to give some more time to pay off the debt without keeping the surety into consideration, the surety will be discharged.

However, Section 136 of the Indian Contract Act, 1872 provides that, if the creditor enters into an agreement to give time with a third party, it does not discharge the surety from his liability.

• Promise not to sue

If there is an explicit contract which provides that the creditor will not sue in the event of default, it would result in the discharge of liability of the surety. However, mere forbearance to sue will not discharge the liability as provided under Section 137.

If the surety has agreed to such conditions, he will not be discharged from the contract as is evident from the phrase “unless the surety assents” in Section 135.

Creditor’s act/omission impairing surety’s eventual remedy

It is the duty of the creditor not to do any act which is inconsistent with the contract which would result in the impairment of the remedy of the surety to recover the amount from the principal debtor after repayment. This right of the surety to discharge his liability is provided in Section 139 of the Indian Contract Act, 1872.

Interpretation of the relevant section

The above rule is in close proximity to the right of subrogation with the surety after he repays the loan. The surety takes place of the creditor after repayment and he can exercise all the rights that the creditor has and if any of the rights are impaired or the remedy against the principal debtor is impaired due to any act or omission by the creditor, it would discharge the surety.

Loss of security

Section 141 of the Indian Contract Act, 1872 gives surety the right to claim all the security which had been kept with the creditor after paying the amount to the creditor. If the security is lost and the surety does not get the security for any reason, the surety can be discharged from his liability. 

Interpretation of the relevant section

Through Section 141, it can be inferred that it is immaterial whether the security that was earlier held by the creditor was known to the surety or not. In case the surety does not receive the security after repayment, he can be discharged of his liability. However, this discharge of liability will be to the extent of the value of the security which had not been duly delivered to the surety. Thus, if the value of the lost security is less than the liability of the surety, the surety will be discharged to the extent of his liability. However, if the value of the security is more than the liability, the surety will be discharged from the whole of his liability. 

This provision arises due to the Right of Subrogation with the surety, according to which the surety is entitled to all the rights of the creditor and takes the position of the creditor after paying the amount to the original creditor. Hence, the surety also has the right to the security of exercising the right of subrogation.

Different courts have different views regarding the treatment of a contract which states the contrary to the provisions laid down in the act. In one case, it has been ruled that Section 133, 134, 135, 139 and 141 can be struck down in case of an existence of a clause to the contrary. However, a ruling has also been given stating that Section 133 cannot be struck down in any circumstance. [5]

Discharge by invalidation

A surety can be discharged of his liability if the contract of guarantee is invalidated. The Indian Contract Act provides for three circumstances under which a contract of guarantee can become invalidated. These are elucidated as follows:

• Guarantee by misrepresentation (Section 142)

Section 142 provides that if a contract of guarantee has been entered into owing to the misrepresentation of a material fact which was known to the creditor, it would invalidate the contract.

• Guarantee by concealment (Section 143)

According to Section 143, if a contract of guarantee is obtained due to concealment of a material fact by a creditor, the contract would be invalid.

• Failure of a co-surety to join a surety (Section 144)

If the surety has put forth a condition that the creditor shall not act upon the contract in the absence of another co-surety and this condition is not fulfilled, it would lead to invalidation of contract.

Conclusion

The Indian Contract Act, 1872 provides for the discharge of the liability of surety in case of certain given circumstances with the objective of securing the interests of the surety, who guarantees payment of the debt in case of a default.

The situation under which the surety can be discharged from his liability can be categorised into three different heads i.e. by revocation, the conduct of the parties and invalidation of the contract.

References

Books Referred

1. Singh Avtar (2017). Contract and Specific Relief (12th ed). Lucknow: Eastern Book Company
2. Meena R.L (2008). Textbook on Law of Contracts including Specific Relief. Delhi: Universal Law Publishing
3. Pollock and Sir Dinshaw Fardunji Mulla (2017) The Indian Contract Act and Specific Relief Acts (15th Ed) Vol. 2. Gurgaon, Haryana: LexisNexis 

Websites and Journals Referred

1. Goswami D. (2018). The Judicial Debate on Discharge of Surety- The CBCL Blog. Retrieved January 17, 2020, from https://cbcl.nliu.ac.in/contemporary-issues/the-judicial-debate-on-discharge-of-surety/
2. Columbia Law Review (1924). Suretyship- Extension of time- Discharge of Surety Vol.24, No. 2 pp. 211-212. Retrieved January 20, 2020, from https://www.jstor.org/stable/1112874/
3. Kanwar J. (2019). Surety. Retrieved January 17, 2020, from http://lawtimesjournal.in/surety/

Endnotes

[1] Kay LJ in Rouse v Bradford Banking Co. Ltd, 1894 AC 586

[2] AIR 2008 SC 2416

[3] RK Dewan v State of UP, 2005 All LJ 2067

[4] (1850) 3 HL Cas 226

[5] Union of India v Pearl Hosiery Mills, AIR 1961 Punj 281

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This article is written by Shreya Shrivastava, a student from Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, the author has discussed the legal impact over Commercial Contractual Obligations in India after the Coronavirus Pandemic.

Introduction

The entire world, barring a few exceptions, is in a state of lockdown, fighting a virus originating from the city of Wuhan, whose spread sent a shock wave across the globe. The Coronavirus, which seems to be covered with pointed structures that surround it like a corona or a crown and thus the name, is already the cause of immense and incomprehensible damage which is impossible to be defined in quantifiable terms. Supply chains have been disrupted, vital air and sea routes have been closed, and for the first time since 1987 Wall Street suffered its heaviest loss by dropping nearly 23%. For those unaware, the Stocks fell so fast on Wall Street at the opening bell that they triggered an automatic, 15-minute trading halt for the second time in a week which experts are considering an indicator for the impending doom.

The world, in general, is facing a global fall of the economy, inching us closer to the much-feared recession. However, this concern is not only limited to stocks and falling world GDP but also toward the severe impact on the legal sector. Supreme Court of India has already invoked its plenary powers under Article 142 of the Constitution to extend the ‘limitation period’ in all cases against the usual timeline as enumerated under the Limitation Act, 1963 which only goes on to convey the paradigm shift the legal sector is currently undergoing. The legal industry is in wrangles and one of the most conflicting emerging issues it is facing is the non-performance of commercial contracts and the resultant loss suffered by the business and corporate houses. 

Concept of ‘force majeure’ under the Indian Contract Act, 1872

Section 56 of the Indian Contract Act 1872, which is based on the common law principle known as ‘Doctrine of Frustration’ and within which lies the concept of ‘force majeure’, is currently being debated on its usage. A force majeure provision, a  phrase derived from the French language that means a ‘superior force’, is an express provision of circumstances in which performance under the contract will be excused or suspended temporarily. 

Typically, force majeure events include an Act of God or natural disasters, war or war-like situations, labour unrest or strikes, epidemics, pandemics, etc. and is used as an exception to what would otherwise amount to a breach of contract. Contrary to popular belief, the expression force majeure is borne out from the “Code Napoleon” instead of the “act of God” and has wider meaning when compared to the latter.

Section 56 of the Act, allows for the temporary discharge of obligations on grounds of impossibility of performance of contract because of an untoward event or change in circumstance but for invoking such a clause, the sine qua non is:

(a) It must proceed from a cause not brought about by the defaulting party’s default.
(b) The cause must be inevitable and unforeseeable.
(c) The cause must make the execution of the contract wholly impossible. 

The party claiming force majeure is under an obligation to prove that all reasonable endeavors to avoid or mitigate the force majeure event and its effects were undertaken on their behalf, although this becomes quite subjective and differs from case to case. In some contracts where the period of force majeure is extended, parties are given the right to terminate the contract to save them from management difficulties and cost issues that might arise later.

The law in India regarding this was laid down in the seminal judgment of Satyabrata Ghose v. Mugneeram Bangur & Co. which left it upon the interpretation of judges to determine whether the factual determination based on the specific terms of the contract qualify to come under the scope of force majeure. However, In the case of Energy Watchdog v. CERC, Justice R.F. Nariman of the Supreme Court narrowed down the context of the term force majeure, but if precedents are to be looked at then it can be concluded that the term force majeure incorporates within itself a wide range of situations. For example, when demonetization was announced by the government, construction and the realty sector was deeply affected and in that time of distress the Central Electricity Regulation Committee (CERC) held demonetization to be a valid reason to invoke the clause of force majeure and thus in a way provided it a new dimension of interpretation.

COVID-19 & force majeure

The variety of contracts that are likely to be affected by the spread of COVID-19 is undoubtedly humongous be it construction contract or supply agreements. General regulatory measures being undertaken by the government such as the announcement of the high alert regime are unlikely to affect a party’s ability to perform its contractual obligations. However, the adoption of ‘special measures’ such as a ban on mass gatherings, the temporary suspension of business industries, restrictions on entry into the Indian territory, the cessation of air and sea operations, etc. are bound to severely impact the contractual obligations leading to its non-performance. Further, special measures enacted by foreign states also might prevent a party from performing its obligations if goods required for production are being supplied from abroad. In the ongoing crisis, one is faced with majorly two situations, the first one being where the clause of force majeure is mentioned under the contract and the second one being where it’s not. 

1. force majeure clause mentioned under the contract

In scenarios where mentioning has been done, the provision of force majeure provision is left for the parties to define within the contract itself and no such application is a matter of law and in common law no inference of such clause is decided by the courts. The language used might vary; some contracts have defined specific examples of force majeure events thus making it easier to automatically meet the standard upon the occurrence of such event, while others place a heavy reliance on generic language. However, it is highly unlikely that even if specific terms are used, any contract would have a specific clause about force majeure concerning “corona outbreak” and in that case, the best option remains to use terms such as epidemics, government action or work stoppages provided they are mentioned specifically in the contract, to derive the benefit of this clause but despite the mentioning of these terms, the onus still lies upon the affected party to prove interference with the performance of the contractual obligation. However, if the term pandemic is mentioned, then it might be easier for parties to prove since WHO on 11th March 2020 declared COVID 19 to be one. If mentioning of the “Act of God” is done, the position becomes more dubious because if the outbreak does not fall within the scope of that clause then an analysis of the extent to which contractual obligations are affected shall be done from the start. 

Relief came from The Ministry of Finance, Department of Expenditure, Procurement Policy Division through a memorandum released for ‘Manual for Procurement of Goods, 2017’
in which it was declared that in the event of any disruption in the supply chains due to the spread of coronavirus in China or any other country, such a situation will be covered in the Force majeure Clause (FMC) in the contract.This move was eerily similar to that of ‘The China Council for the Promotion of International Trades’ which issued over 1,600 ‘Force Majeure certificates’ to firms in 30 sectors, covering contracts worth over $15 billion.
Undoubtedly, this clause is going to be used in an Indian court for months and years to come but it is very unlikely that COVID 19 will prove to be strong and valid defense since different contracts and governing laws stipulate different requirements for different situations

Further, if the parties use it in their draft then they also need to provide proof that had they not been “prevented” from performing due to the force majeure, they would have undoubtedly discharged their obligation. Also, it must be proved that there was no possible alternative for the completion of the contract and that all reasonable steps were taken to mitigate or avoid the effects of the force majeure event. However, it is generally a subjective area and is decided on a case to case basis thus presenting the parties with a chance to voice out their predicament.

2. force majeure clause not mentioned under the contract

In the absence of force majeure Clause, the doctrine of frustration would be applicable to make the contract void because the clause of force majeure if not mentioned explicitly, can never be implied under Indian law. This doctrine applies when due to an unforeseeable event, the performance of the contract is rendered impossible and even if possible, the outcome would be different from what was envisaged by the parties at the time of entering the contract. Even though this doctrine comes with a high threshold in terms of standard of proof, it might be possible to include a range of factual circumstances regarding COVID 19 as a frustrating event under this doctrine. In terms of scope, the doctrine of frustration is narrower as compared to force majeure and won’t be allowed to be exercised simply because the event complained of has become more expensive or difficult to perform since the economic constraint is not one of the defences available under it.

Apart from force majeure and the doctrine of frustration, there is a high possibility of other consequences also such as price adjustment clauses, material adverse change clauses, limitation or exclusion clauses, to limit or exclude liability for non-performance but then again it will all depend on the particular wording of the contract and the discretion of the particular court.

What should the Parties do?

The parties of the contract can reassess the force majeure clause and list all the incidents mentioned under it to initiate the ‘rule to excuse’ and analyze the impact of the outbreak of COVID-19 on the contract and its performance. Parties should seek to understand how the above principle is likely to apply to the legal relations between them because if force majeure is once claimed when parties are not contractually entitled to claim, then they might be held liable for repudiatory breach of contract and as a result might be forced to pay damages to the other party. Views of legal experts must be taken to interpret whether the contract clauses are open-ended or specific.

Parties must keep an eye out for the existence of possible performance alternatives to initiate the contract because it is possible that some clause under the contract might simply be intervened or postponed and should engage in the collection of evidence to support the non-performance of the obligation by them. They need to be vigilant and must keep a record of the various notifications and orders issued by the government and administrative bodies since these documents may be used as evidence during the litigation/arbitration stage. Businesses need to be aware of their rights under the contract they’ve entered into so they are prepared when confronted about non-performance in a post-COVID-19 world.

Delay, interruption or all together cancellation of the contract is very likely to be expected but there lies a threat of counterparties using this clause as an excuse, not because COVID-19 has legitimately prevented them from performing their contractual obligations but rather to get themselves out of an unfavorable deal. If this case arises, then it must be checked whether the clauses claimed by the parties which lead to the non-performance of the obligation are true or not. In the majority of the contracts, the reason cited by the companies will be non-performance of suppliers, and then it is in the best interest of the second party to the contract to try to verify this information. Attempts may be made for renegotiation of price or other key contractual provisions, and for this companies need to be vigilant if they wish to not be deceived since it is very easy under the given circumstances. it is well advised to do an Assessment of the legal risk involved and proactively manage since at the end of the day, it has to be one party or another who will have to bear the financial loss even without any fault of their own.

References

1. Impact Of COVID-19 On Indian Commercial Contracts, https://singhania.in/safeguards-in-force-majeure-in-india/.

2. Pollock and Mulla, Indian Contract and Specific Relief Acts (16th ed. 2019); Dhanrajamal Gobindram v. Shamji Kalidas & Co., AIR 1961 SC 1285 (India).

3. Coronavirus, Force Majeure And Impact On Commercial Contracts,  https://www.bloombergquint.com/coronavirus-outbreak/covid-19-coronavirus-force-majeure-and-impact-on-commercial-contracts.

4. Elzekiel Abraham Gubray Vs Ramjusroy Golabroy, AIR 1921 Cal 305:33 CLJ 151:63 IC 267 (DB).

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This article is written by Pravin D Kukreja, a student of TYLLB at Nari Gursahani Law College, Ulhasnagar, Mumbai. In this article, the author discusses about the definition of Trust, trustee and the powers and duties of Trustees.

What is a Trust?

The word ‘Trust’ is used in common parlance as a word by which a confidence is denoted in one person by another person.

When it is said that A ‘Trusts’ B with something, it generally means that A has confidence in B that B would honestly and diligently perform the responsibility entrusted upon him. 

In India, the law relating to Private Trusts is provided under the Indian Trusts Act, 1882. 

From a legal point of view, a trust can be said to be a kind of arrangement including three parties, namely, 

1. The Author of the Trust – The person who creates the Trust.
2. The Trustee – The person who accepts the responsibilities of the Trust.
3. The Beneficiary – The person/persons for whose benefit the Trust is created.

What is the objective of creating a Trust?

A trust is generally created for the benefit of a group of people/persons. For example:

1. There exists certain movable and immovable property of an individual. The Individual has children, but the children, for the time being, are unable to maintain such property.

The father wants to create a mechanism by which the benefits of his property are properly enjoyed by his children as well as the property is maintained. In such a situation, the Father may choose to create a Trust for his children. Here, the Father would be the Author, a trusted person who the Father wants to appoint for delivering the benefits and maintaining the property, such person can be the trustee, and the children would be the beneficiaries.

2. There is a wealthy senior citizen, who wants to set up an institution for the welfare of the poor and needy. Here, such a person may create a trust for charitable purposes and appoint an appropriate person for being the trustee.

 In such a case, the beneficiaries would be the poor and needy people of the society.

3. A Mutual fund is also a Trust, where generally the trustee is an artificial person, i.e. a Company.

4. In case of debenture issue by a Company, under certain conditions provided for under the Companies Act, a debenture trust is required to be formed and a Debenture trustee is required to be appointed.

Who is a Trustee?

A Trustee is a person appointed under a Trust to administer the Trust property. A trustee should be a person who is capable of holding property and who is competent to contract. A company, being an artificial person created by law, can be a trustee as well. A Trustee is specifically required to accept or disclaim the trust entrusted upon him, either expressly or by way of his actions. There can be more than one trustees in a single Trust.

Duties/Liabilities of a Trustee

The Indian Trusts Act, 1882 provides for certain duties/liabilities of a Trustee, we shall see each one of them in brief detail.

• Execution of Trust

The trustee is required to actually carry out the purpose of the trust as laid out in the Trust deed. The trustee is also required to follow the directions of the Author of the Trust at the time of creation of the trust. 

However, the trustee is not required to follow such directions if they are impractical or illegal.

• Acquaintance of Trust Property

The trustee is required to know about the details, whereabouts and current condition of the trust property and also to take appropriate measures to secure the trust property.

• Protection of Title of Trust Property

The trustee is required to defend all the claims against the title of the Trust property and to take adequate measures to assert and protect the title of the property.

• Not to set up Title adverse to the beneficiary

As the trustee is entrusted with the trust property to maintain it for the benefit of the beneficiaries, it is expected and required of the trustee to not set up any title adverse to the beneficiary.

A good example explaining this point would be, suppose the trustee is entrusted with an immovable property and is required to apply the rents and profits of such property for the benefit of the beneficiaries. The trustee is also given the rights to sell such property. 

It is expected of the trustee that the trustee would not sell such property to himself or anyone of his relatives or friends or a person of like nature, as such an action on the Trustee’s part would be adverse to the beneficiaries, and the trust factor upon which the foundation of the trust is built, would cease to exist.

• Take care of the Trust Property

The trustee is required to provide adequate safeguard and required to apply such prudence to the trust property, as that of an ordinary man would apply to his own property. 

However, the Act provides that the Trustee would not be responsible for any loss caused to the trust property or the benefits arising thereof, if he had applied such prudence as would an ordinary man would apply to his own property.

• Convert perishable property

If the trust property is of such nature, that with time, it would keep on deteriorating and keep losing value, the trustee is required to convert, i.e. sell and convert such property into cash proceeds and apply such proceeds for the benefits of the beneficiaries. This duty is especially required of a trustee when the trust is created for the benefit of several persons in succession.

• Be impartial among the beneficiaries

When the trust is created for the benefit of several beneficiaries, the trustee is required to apply the benefits received from the trust property equally among the beneficiaries, without being partial to anyone or any group among the beneficiaries.

• Protect the trust property from adverse beneficiary

When there are several beneficiaries of a trust, and one or more of such beneficiaries commit, or threaten to commit an act, which would be adverse to the interest of other beneficiaries and the trust in general, the trustee is required to take measures to stop such act of such beneficiary/beneficiaries.

• To maintain and keep books and accounts

The trustee is required to keep a clear and accurate account of the trust property and at all times, provide the same to the beneficiary upon the request of the beneficiary.

• Investment of Trust money

The Act specifically provides that when the trust property consists of money, and such money is not required to be immediately applied for the benefit of the beneficiaries, the trustee is required to invest such money in such instruments as provided for in the Act. The Act provides for instruments such as promissory notes and other securities of the Central Government; in stock or debentures of the Railways or other government companies; in Units issued by the Unit Trust of India, etc.

Powers/Rights of a Trustee

Certain rights/powers are conferred upon the Trustee under the Indian Trusts Act, 1882. They are discussed in detail in the following paragraphs.

• Right to Title deed

The trustee is entitled to possess the trust deed or any other instrument by which the trust is created, and the title documents of the trust property.

• Right to reimburse expenses incurred for trust purposes

The trustee has the right to be reimbursed for the expenses incurred by him for the purpose of the trust, like expenses incurred for the execution of the trust, for the preservation of the trust property, for the protection or support of the beneficiary, etc.

• Right to re-collect overpayment

If a trustee has mistakenly made a payment over and above the required amount to a beneficiary, the trustee has the right to collect such excess amount from the beneficiary. Such collection might be made from the interest of the beneficiary in the trust property, and if not possible, then even from the beneficiary personally.

• Right to indemnity from breach of trust, by a gainer

If a person has committed a breach of trust and has gained from such breach, the trustee has the right to indemnify himself against such gain by the person who has committed such a breach. 

However, if the trustee himself is also guilty of fraud in committing such a breach, then he loses the right to indemnify himself in such a situation.

• Right to seek Court’s opinion in managing trust property

The trustee has the right to apply to the Court, by way of a petition, to seek the Court’s opinion, advice, opinion or direction with regards to the management of the trust property.

• Right to Settle accounts

When the duties of a trustee are complete, the trustee is entitled to have the accounts of the administration of the trust property examined and settled, and when no benefit is due to any beneficiary under the trust after the completion of the trustee’s duties, the trustee is also entitled to receive an acknowledgement to that effect.

• Right to sell trust property, along with power to convey

The trustee has the power to sell the trust property as per the instructions laid out in the trust deed, and if no such instructions are laid out, then by way of public auction or private contract, in any way the trustee deems fit.

• Right to vary or rescind the sale of trust property, and re-sell the same

The trustee has the power to vary the conditions of the sale of trust property or even rescind such sale. He also has the power to re-sell the same property. If in such recession and re-sale, if any loss occurs, the trustee is not liable for the same.

• Power to manage investments

The Trustee has the power to sell any existing investment of the Trust property and invest the same into any other instrument, as he deems fit.

However, if there is a beneficiary who is competent to contract, then such power cannot be exercised by the trustee without such beneficiary’s consent in writing.

• Power to apply property of Trust for maintenance of minor beneficiaries

In case the beneficiary is a minor, the Trustee has the power to apply, i.e. use the income for the Trust property for the maintenance of the minor. Maintenance of the minor may include functions such as food and clothing, Education, Religious worship, marriage, funeral, etc.

• Power to compound

This power may also be called as power to settle disputes. When there is any dispute related to any of the trust property, the trustees, when there are two or more trustees appointed, or the sole trustee, may settle the dispute in the manner they think fit. For example, they may compromise, compound, abandon the dispute or may even submit the dispute to arbitration. In the doing of such settlement, the sole trustee or the trustees may enter into any agreement, or instruments, as they deem fit.

• Trustees to continue with trust if one of several trustees dies or disclaims

When there are two or more than two trustees appointed, and one of them disclaims the trust or dies, the remaining trustees shall have the power to deal with the trust property, as provided in the Trust deed. 

However, such power would not be exercisable, if the Trust deed specifically requires a specific number or more of trustees to execute the authority provided for in the trust, and after the death or disclaimer, such specific number is not satisfied.

Conclusion

It is said that the relation of Trust is like a glass. Once broken, it is never the same as before. By a prima facie observation of the Indian Trust Act, it can be seen that apart from the legal aspects, the duties and powers provided in the Act intend to preserve the delicate relation of trust, so that the trust may be kept, and the intention with which the trust is formed may be fulfilled. Therefore, here we may conclude with the duties and powers of a Trustee as provided for in the Indian Trust Act, 1882.

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This article is written by Pavni Tuli, a student at USLLS, GGS IP University, New Delhi and Ritika Bharti, a student at Christ University, Bangalore. The article discusses the provisions of enforcing Force Majeure amidst COVID-19.

Introduction 

The ubiquity of Coronavirus (COVID-19) has brought forth several legal dilemmas. The World Health Organization (WHO) declared COVID-19 as a pandemic and governments across the world have enforced national lockdowns and curfews which restrict the movement, travel from one place to another and mass gatherings of people.

With its very onset, COVID-19 has tremendously impacted the global economy along with the contractual obligations of parties in commercial contracts. One such predicament involves the contractual obligations that have come to a halt due to impossibility or delay in performance.

Meaning of Force Majeure

Force majeure is a French term that literally means “Superior force.” A force majeure event refers to the occurrence of an event which is outside the reasonable control of a party and which prevents such party from performing its obligations under a contract. It is related to the occurrence of an event for which no party can be held accountable provided the event is unforeseeable, external to the parties of the contract, and unavoidable. The Supreme Court of India in Energy Watchdog v. Central Electricity Regulatory Commission [1], lucidly stated that “insofar as a force majeure event occurs that dehors the contract, it is dealt with by the rule of positive law under the Section 56 of Indian Contract Act. The performance of an act may not be literally impossible, but it may be impracticable and useless from the point of view of the object and purpose of the parties”.

Force Majeure Provision

Based on the terms of the contract, by and large, a party can claim relief for a force majeure event. Similarly, as with all issues subordinate to the particulars of a contract, each force majeure arrangement should essentially be considered on its exact terms and in its particular setting. Determination of force majeure event not only depends upon the contractual interpretation of the clause but also on how the force majeure event is defined in the contract, for instance, specific relief from COVID-19 may be sought under the force majeure clauses that include terms such as epidemics, pandemics, diseases, action by government, nation/statewide lockdown, etc., which ultimately hinders the fulfilment of contractual obligations of the parties. However, the force majeure event need not necessarily be COVID-19 itself but the effect it has on the frustration of contractual commitments of the parties. 

The force majeure provision may be invoked if the following criteria are fulfilled:

• The impediment is beyond the reasonable control of the affected party;
• The impediment could not have been foreseen by the affected party while concluding the contract;
• The event hinders the affected party’s ability to perform the contractual obligations; and
• The affected party has taken all reasonable steps to avoid or mitigate the event or its foreseen consequences.

It should be kept in mind that the party seeking to rely on the force majeure clause has to send a due intimation to the other party for seeking relief under the force majeure provision. A delay in sending the notice may render the utility of the force majeure clause futile.

The Manual for Procurement of Goods 2017 

“A Force Majeure (FM) means extraordinary events or circumstance beyond human control such as an event described as an act of God (as a natural calamity) or events such as a war, strike, riots, crimes (but not including negligence or wrong-doing, predictable/seasonal rain and any other events specifically excluded in the clause). An FM clause in the contract frees both parties from contractual liability or obligation when prevented by such events from fulfilling their obligations under the contract. An FM clause does not excuse a party’s non-performance entirely, but only suspends it for the duration of the FM. The firm has to give notice of FM as soon as it occurs and it cannot be claimed ex-post facto. There may be an FM situation affecting the purchase organisation only. In such a situation, the purchase organisation is to communicate with the supplier along similar lines as above for further necessary action. If the performance in whole or in part or any obligation under this contract is prevented or delayed by any reason of FM for a period exceeding 90 (Ninety) days, either party may at its option terminate the contract without any financial repercussion on either side.”

Notice Requirements

Unlike a one-off episode such as a catastrophic event, which is generally restricted in time and bound to a specific geographical region, the COVID-19 flare-up has been dynamic and has portrayed its capacity to multiply quickly and unexpectedly across different nations and geological locales. On February 17, 2020, the China Council for the Promotion of International Trade revealed that it had already issued over 1,600 ‘Force Majeure certificates’ to firms in 30 sectors, covering contracts worth over $15 billion.

In India, the Office Memorandum issued by the Ministry of Finance, Department of Expenditure effectively states that the COVID-19 outbreak could be covered by a force majeure clause on the basis that it is a ‘natural calamity’, caveating that ‘due procedure’ should be followed by any Government department seeking to invoke it. Furthermore, the Ministry of Finance has also declared that solar project developers can invoke force majeure if they fail to meet their contractual obligation due to any impediment caused by COVID-19.

Consequences of Force Majeure Claims

The ramifications for the parties where a legitimate force majeure event has happened will rely upon the nature of affected party’s commitments under the contract, along with the consequences and remedies explicitly contemplated by the force majeure arrangement in the contract.

Contractual remedies for force majeure typically include:

• an extension of time to perform those obligations; or
• suspension of contractual performance for the duration of the force majeure event; or
• termination of the contractual performance if the force majeure event extends over a longer period.

Practical Suggestions for parties invoking Force Majeure provision

Parties should be vigilant regarding their obligations as the situation continues to unfold, and should take into consideration the following steps:

• They should rigorously review their contract in order to determine whether the contract provides for a force majeure clause or not. And if it does, interpret the force majeure provision to ensure if an event such as COVID-19 or nation/statewide lockdown will fall within its purview. The legal principle of ejusdem generis, as well as harmonious construction, will come handy. If in doubt, it may be helpful to seek legal advice early on in the process.
• Carefully discern that the inability to perform the obligations under the contract is due to the consequences (direct or indirect) of COVID-19 and not other considerations thereto.
• Be vigilant in taking steps to avoid or mitigate the possible effects of COVID-19 upon your business, workforce and your ability to continue to perform contractual obligations. It will be of utmost legal importance to show that you have taken all reasonable measures to fulfil your obligation and that it was, in fact, beyond your reasonable control.
• Carefully consider whether there are any time-bound notice requirements and take timely action in intimating the other party/parties.
• Carefully go through the insurance policy’s terms and conditions to determine whether insurances may cover any of the expected losses.
• The existence of a force majeure clause may give the parties the leeway to renegotiate their obligations under the contract. It is however imperative that the renegotiations are made keeping in mind any future obstruction that COVID-19 may cause. This is in line with the fact that for contracts that have been entered into during the continuance of the COVID-19 crisis, it will be difficult to invoke force majeure as the parties will be expected to be aware of the ongoing situation and its foreseeable consequences.

Denial of Force Majeure protection by Bombay High Court

The Bombay High Court on 8th April 2020, refused ‘Force Majeure’ exemption to steel importers noting that steel has been declared as an ‘essential service’ during the lockdown. The petitions were filed under Section 9 of the Arbitration and Conciliation Act wherein the petitioners sought directions restraining the Respondents (Korea-based exporters) from encashing the Letters of Credit by invoking the force majeure clause in their contract. The petitioners relied upon Section 56 of Indian Contract Act, 1972 as well as Supreme Court’s judgment in Energy Watchdog v. CERC (2017) and Satyabrata Ghose v. Mugneeram Bangure and Co. (1954) to contend that the contracts with Hyundai Corp and GS Global stood terminated as unenforceable due to “frustration, impossibility and impracticability.” Refusing the ad-interim reliefs sought by the Petitioners, the Court stated that:

The Letters of Credit relates to an independent transaction with Bank Wells Fargo and therefore, does not relate to the present dispute between the Petitioners and the Respondents.

The contract in question was on Cost and Freight basis. Basing upon this, the Court noted that since the Respondents had complied with their obligations and performed their part in the contract by shipping goods from South Korea, the inability of the Petitioners to perform their obligations towards purchasers and the contention that they would subsequently suffer damages could not be considered as a valid ground to invoke Force Majeure. Therefore, in cases like this, it is pertinent to note that the mere possibility of hardship, damage or any financial liability would not be sufficient to invoke Force Majeure.

The Court also relied upon the fact that the distribution of steel was declared as an ‘essential service’ and that there was no restriction on its movement. In light of this, the Force Majeure clause could not come to the aid of the Petitioners.

Furthermore, the Court stated that the lockdown would be for a limited period and that the lockdown should not be used as an excuse to resile from the contractual obligations.

Doctrine of Frustration

However, for contracts that have not incorporated a force majeure clause, the alternative lies under Section 56 of the Indian Contract Act, 1872, which deals with the Doctrine of Frustration. Simply put, the Doctrine of Frustration encompasses acts that have become impossible or illegal to perform. However, this is a limited defence to non-performance. The Supreme Court in the landmark case of Satyabrata v. Mugeeram [2] explicitly stated that relief under Section 56 can be availed only in cases where the contractual obligation has become impossible owing to a change in circumstance that has totally shaken the very foundation upon which the parties had entered into an agreement. To claim relief under this section, the parties must prove the absolute impossibility of contractual performance due to the Force Majeure Event, and not merely any loss, hardship or financial difficulty in its execution. Swaying away from the general understanding of ‘impossibility’, the Supreme Court in Energy Watchdog v. Central Electricity Regulatory Commission [3] noted that “the word “impossible” has not been used in the Section in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose of the parties”.

Conclusion

The nationwide economic slowdown and an overall slump in various other sectors due to the outbreak of COVID-19 may not be construed as a valid reason for the frustration of each and every contract. The avoidance or delay in performance of certain obligations of a contract due to the force majeure clause differs from one contract to another depending upon the facts and circumstances of a particular case. The onus will be on the parties to highlight the particular quandary caused by the outbreak of COVID-19 that prevented them to fulfil their duties and obligations under the contract. Therefore, the burden of proof claiming that the occurrence of the pandemic is the sole reason behind non-performance rests upon the party seeking to claim benefits under such a clause. Moreover, the party will be required to prove that there were no alternative means by which the contractual obligation could have been fulfilled and that all reasonable measures had been taken to mitigate the consequences of such a circumstance.

Lastly, it is also pertinent to note that unlike Force Majeure clauses where the parties can delay the performance (contractual remedy) based on their circumstances, no such relief can be availed under Section 56 of Indian Contract Act.

References

[1] 2017 Latest Case Law 307 SC.

[2] 1954 A.I.R. 44.

[3] 2017 Latest Case Law 307 SC.

[5] Union of India v Pearl Hosiery Mills, AIR 1961 Punj 281

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This article is written by Akshata Pai.

What is Apostasy? 

Apostasy is derived from the Greek word apostasies, which means defection. To aid, Apostasy is the abandonment of belief or faithlessness. Apostasy is a term used by society for disaffiliation from religion by a person. In a technical sense, it is the implication of non-believers to turn down the negative significance. Sociologists term apostate as a conflict of an idea for an individual to struggle against their old belief or faith. In simple terms, apostasy applies to rebel against God or religion. In general, apostasies are an escape, redeem, liberate them from an idea, or practice which self-limits oneself. 

Outcome of apostasy

Many religious groups oppose the idea of atheism or non-believers which could result in boycotts in community, criminal offence or execution. Death punishment is found in the Sharia law in certain Islamic countries. In 2014, as per annual Freedom on Thought report by the International Humanist and Ethical Union found that 13 countries impose capital punishment impose on people for their lack of faith in the religion. The relevant countries are Afghanistan, Iran, Malaysia, Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, United Arab Emirates and Yemen.  

Blasphemy means an act to insult or contempt offence or to speak ill about any religion or God. Article 20 of the International Covenant on Civil and Political Rights obliges countries to adopt legislative measures against any advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility or violence. However, the point to note is that it does restrict the prohibition of blasphemy per se. In addition, the recanting of a person’s religion is a human right legally protected by the International Covenant on Civil and Political Rights as per Article 18.2. The Constitution of India in its Preamble clearly states that Liberty of thought for religious belief and worship. 

Section 295A of the Indian Penal Code has been used as a blasphemy law to prevent insult of Christianity, Islam and Hinduism. The British-era section 295A of the penal code that was created by Christians who ruled India is extant and has not been repealed; it contains an anti-blasphemy law. Section 295A was introduced in 1927 to prevent hate speech that insults or attempts to insult the religion or the religious beliefs of any class of citizen with deliberate and malicious intention to outrage their religious feelings but the main purpose of this law has been to maintain “public order in a multi religious and religiously sensitive society.” As per the section, one shall be punished with imprisonment of either description for a term, which may extend to three years, or with fine, or with both. 

Apostasy is an important factor for personal laws in India. Personal law related to marriage, divorce and inheritance. In India, it is a vital role as the Muslim law is uncodified law among other religion such as Christianity, Parsi and Hindu which have a codified act in place. Marriage is a social institution to keep a family continuous and a global custom. This custom is easily influenced by the religion or faith followed by an individual. Hence, apostasy can affect the process of marriage, divorce and inheritance for any person. Other than Muslim law, all other religions in India have no major effect of apostasy in their personal laws. 

What is Marriage? 

Marriage is a universal custom for many cultures and recognized as a union between people. Individuals have many personal reasons to initiate marriage for several reasons, including legal, social, family legacy, emotional, financial, and spiritual and even for religious purposes. 

Marriage applied as personal law as it is influenced by religious practice and beliefs, which can have a significant impact on marriage laws and inheritance laws. 

In many religion, marriage is a traditional custom one follows, whereas in Muslim law, the marriage that is Nikah is a civil a contract which legalises the sexual intercourse and for the procreation of children. 

Marriage in Muslim Law

Marriage called Nikah is a civil contract governed under the India Contract Act, 1872. 

To constitute a valid marriage, no formal wedding ceremony is required. The essential precondition for a valid contract as follows:

1. Proposal and Acceptance;
2. Capacity to contract marriage; and
3. Absence of any barrier.

Proposal and Acceptance: The proposal is called Ijab and an acceptance is called Qubul. The proposal and acceptance must be expressed at one meeting, in the presence of two male or one male and two female witnesses. This results in a valid marriage contract. 

If the proposal is in one meeting and acceptance of the proposal confirmed in another meeting, it will not result in a valid contract for marriage. 

The form of acceptance for proposal is I have married to you or I have consented. 

Capacity to contract marriage: Every individual has a capacity of being married if one has attained puberty and of sound mind. It is in the same group of Section 11 and 12 of The Indian Contract Act, 1872.

Absence of any barrier: To have valid marriage contract one should not face any barrier such as:

Marrying a fifth wife – A marriage to the fifth wife is invalid by a person who already holds four wives. The barrier can be removed by divorcing one of four wives. 

Absence of witnesses- Under the Sunni law, it is necessary to have two witnesses to constitute a valid marriage contract. Whereas, under the Shia law, it is not mandatory to have witnesses to validate a marriage. 

Difference between religion: In Shia law, both the spouses must be Muslims to have a valid marriage. If either of them is non-Muslim, the marriage is void. However, a Muslim male may contract a valid muta marriage (temporary marriage) with a kitabia or with a fire-worshipper. Kitabia means a female who believes in Christianity or Judaism. In Sunni law:

1. A Muslim male can validly marry, not only a Muslim woman but also kitabia where the marriage would be voidable or irregular. The bride can remove the irregularity by embracing Islam.
2. A Muslim female can only marry a Muslim alone. If she marries any non-Muslim male, the marriage is void. 

Marriage in Muslim law can be valid, void and voidable. Difference between void and invalid are as follows:

1. Sahih, it is a valid contract if the essential preconditions are completed.
2. Batil, it is void as the foundation is bad or of void agreement.
3. Fasid, it is voidable as it is irregular or one which has a good foundation but unlawful. 

In Sunni law, the marriage is either valid or irregular. 

In Shia law, the marriage is either valid or void, no room for irregular marriage concept. 

Apostasy in Islam 

Apostasy is called ridda in Islamic literature. An apostate is called murtad, which means ‘one who turns back’ from Islam. A person born to a Muslim parent who later rejects Islam is called a murtad fitri, and a person who converted to Islam and later rejects the religion is called a murtad milli. 

When and how does one become apostate? 

An individual becomes apostate by conversion from Islam to another religion. An apostate can be implied if one does not formally renounce to Islam. However, if any Islam believer was forced or in fear of war had to denounce from Islam is not considered as an apostate. 

In many Muslim centres, countries have imposed a criminal offence for apostasy from Islam. However, the concern for the topic is the effect of apostasy on marriage as India has no criminal or civil offence for apostasy in religion. 

Laws prohibiting religious conversion run contrary to Article 18 of the United Nations’ Universal Declaration of Human Rights, which states the following: 

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Afghanistan, Egypt, Iran, Iraq, Pakistan and Syria have voted in favour of the Declaration. 

Effect of apostasy on marriage 

Before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam by one of the married pair would have been treated as dissolution of marriage with effect immediately, without:

1. the decree of a judge; or
2. being a repudiation of marriage, whether the conversion was before or after consummation. 

After passing the Act in 1939, it resulted in section 4 of the Act.

1. Apostasy by husband 

Apostasy from Islam from Muslim husband will have immediate effects of dissolution of marriage. Section 4 of the Dissolution of Marriage Act, 1939 does not apply to apostasy by the husband. The result is that apostasy of the husband is still governed by old law under which the renunciation from Islam by a husband will result in complete and immediate dissolution of marriage. 

Where a Muslim husband converts to another religion (say Christianity), his marriage is immediately dissolved and the wife ceases to be a Muslim wife of that husband. As such, the wife is not governed by Muslim law and is free to marry another person (immediately) without waiting for the Iddat period. 

2. Apostasy by wife 

The conversion of a married Muslim woman to a faith other than Islam does not by itself operate to dissolve her marriage. Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree for the dissolution of her marriage on any of the grounds specified in Section 2 of the Act. 

Section 4 does not apply to a woman who converts to Islam from other faith and take back her former faith. Thus, if a Hindu woman converts into Islam and marries under Muslim law, the marriage would be ipso facto dissolved, on her renouncing Islam and re-embracing Hinduism. However, if she does not re-embrace Hinduism, but becomes Christianity, the marriage would not dissolve. 

In the case of Munavvar-ul-Islam v. Rishu Arora, (AIR 2014 Del 130 ) a Hindu wife converted to Islam at the time of marriage. On her re-conversion back to her original faith viz Hinduism, her marriage stood dissolved. Her case falls under the second proviso to Sec 4 of the Act, and the pre-existing Muslim Personal Law under which apostasy of either party to a marriage ipso facto dissolves the marriage would apply. 

If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his wife remarries even before the expiry of iddat, she will not be guilty of bigamy under Sec 494 of the Indian Penal Code, 1860. In Abdul Ghani v/s Azizul Huq [(1912) ILR 39 Cal 409], a Muslim man and woman got married. After some time, the husband embraced Christianity but reverted to Islam during the wife’s iddat. Before the expiry of the iddat period, however, the wife got married to another man. The first husband thereupon filed a complaint against the wife, her father and her second husband under Sec 494. It was held that no offence had been made. 

The court remarked: 

Whatever view be taken of the uncertain status of the parties during the period of iddat and however illegal and void under Mohammedan law the second marriage of the woman during the period of iddat may be, there is no foundation for any charge under Sec 494 of IPC against her. Her second marriage is not void because of its taking place during the life of her prior husband but because of the special doctrine of the Mohammedan law of iddat with which the Indian Penal Code has nothing to do. 

Conclusion

To conclude the topic, it can be said that the apostasy has a massive impact on the personal law in Muslim law. In India, the apostasies from Islam are protected under the constitution of India and the dissolution of marriage act, 1939. 

It can be clearly said that, in modern times, the female married Muslim are protected under Muslim law and the constitution of India. In addition, many NGO and religious leaders are ensuring that no individual can take undue advantage of Muslim law. 

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This article is written by Lalit Rajput. He is a Company Secretary.

Regulation 45 of SEBI (LODR) Regulations, 2015:

Change in name of the listed entity

• Conditions to be followed:

1. a time period of at least one  year has elapsed from the last name change;
2. at least fifty percent. of the total revenue in the preceding one year period has been accounted for by the new activity suggested by the new name; or
3. the amount invested in the new activity/project is atleast fifty percent. of the assets of the listed entity:

• In case listed entity has changed its activities:

if any listed entity has changed its activities which are not reflected in its name, it  shall change its name in line with its  activities within a period  of six months from the change of activities in compliance of provisions as applicable to change of name prescribed under Companies Act, 2013.

• Post satisfaction of above conditions, the listed entity shall file an application for name availability with ROC (Registrar).

Note: The listed entity shall seek approval from  Stock Exchange by submitting a certificate from chartered accountant stating compliance with above conditions.

Checklists

Documents Required to be Submitted to the Exchange

In-principle for Name Change:

Final Approval for Name Change:

References

• SEBI (LODR) Regulations, 2015
• NSE updates

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

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This article is written by Hardik Mishra, from VIPS, New Delhi.

Introduction

The only best thing that is gifted to us by the Britishers is the “Law and Legal System”. Especially the Criminal Justice system and the legislations. The Code of Criminal Procedure deals with various procedures in a criminal proceeding. One of which is the Trial system under Criminal Procedure Code.

What is Trial?

The word “trial” is not defined anywhere in the Criminal Procedure Code, however, it means a commonly understood stage of trial which begins after framing the charge and ends with the conviction or acquittal.

In simple words, trial can be defined as a formal examination of evidence by a judge, typically before a jury, in order to decide guilt in a case of criminal or civil proceedings.^[1]

Types of Trial in Indian Legal System

The trial of the accused in the Indian Criminal Law is divided through the punishments of the said committed offence. The Trial of the accused for the offence committed by him is divided into four types.

Session Trial– If the offence committed is punishable with more than seven years of imprisonment or Life imprisonment or Death, the trial is to be conducted in a Sessions court after being committed or forwarded to the court by a magistrate.^[2]

Warrant Trial– Warrant case includes offence punishable with the death penalty, imprisonment for life and imprisonment exceeding two years.  A trial in a warrant case begins either by filing an FIR in a Police Station or by filing it before a Magistrate.^[3]

Summon Trial- If the offence committed is punishable with less than two years of imprisonment, it is taken as a summons case. In respect of this offence, it is not necessary to frame charges. Summon is issued by the Magistrate to the accused under section 204(1) (a) of Cr.P.C, 1973. “Summon case” means a case relating to an offence, not being a warrant case. The procedure to deal with such matter provided in section 251 to 259 of Cr.P.C, 1973 which is not as serious/formal as other trials (Session trial, warrant case instituted on the police report and warrant cases instituted otherwise than on police report).^[4]

Summary Trial– Those trials in which cases are disposed of speedily with a simple procedure to follow and recording of such trials are done summarily. In this trial only small cases are taken in hand and complicated cases are reserved for summon and warrant trials. Legal Provisions for summary trial are given under Section 260-265 of Cr.P.C, 1973.

Legal Provisions for the Trials in Criminal Procedure Code

1. Sec 225-237 deal with trial of warrant cases by a Court of Session.
2. Sec 238-250 deal with trial of warrant cases by magistrates.
3. Sections 251-259 provides procedure for trial of summons cases by magistrates.
4. Sections 260-265 make provisions relating to summary trials.

Procedure in different types of Criminal Trials

Procedure of Court of Session in Criminal Trial

Chapter XVIII of Cr.P.C. starting with Section 225 and ending with section 237 deals with provisions governing the trial before a Court of Session.

The court of Sessions has to go through three stages of the Trial:

First stage of Trial

In the Court of Session, every trial is to be conducted by a Public Prosecutor (Section 225).  The Court of Session is not only accountable in taking cognizance of the offences under Section 199; it can also take cognizance of any matter pertaining to the offence of grievous nature. To be more clear and concise, the court of session is a court at District level providing its service only for more grave and serious matters. The accused is brought before the court for the proof of his guilt. The first and the foremost work of the prosecutor are to propose the evidence in the court to prove the guilt of the accused (Section 226).

In Banwari v. State of Uttar Pradesh, their Lordships of the Supreme Court have also clearly observed that Section 239 lays down (see page 1201) that the Sessions Court has no power under the Code of Criminal Procedure to drop any charges under which the accused has been committed for trial. He can, in the exercise of the powers under Section 226 of the Code of Criminal Procedure, frame a charge, or add to or otherwise alter the charge as the case may be, in cases where a person is committed for trial without a charge or with an imperfect or erroneous charge.^[5]

If after the consideration of the evidence and the submission of the accused, the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused along with the reason for doing so (Section 227).

If in case after consideration the court believes that there is ground for presuming that the accused has committed an offence which is triable by the court then the court shall frame in writing a charge against the accused of the offence but if not exclusively triable by the court of session then after framing of charge, the case is transferred to Chief Judicial Magistrate or any Judicial Magistrate of the first class.

The framed charges are to be read aloud and clear in front of the accused with an easy understandable language and the accused is asked if he pleads guilty for the abovementioned charges or not (Section 228).

Second Stage Of Trial

If the accused is well versed with framed charges and pleads guilty for the same then the Judge shall record his plea and convict him but all depends on the discretion of the Judge. Under Section 229, the Judge has the power of discretion to convict the accused but it is desirable that the accused is not straight way convicted. The proper course would be to call upon the prosecution to prove its case by adducing evidence.

If the accused refuses to plead under section 229 then the Judge shall fix a date for prosecution examination of witnesses, production of any document etc (Section 230).

On the fixed date the Judge shall examine the witnesses, evidence may be produced in support of the prosecution.

Third Stage of Trial

If after examining the accused and evidence given by the Prosecution, the Judge considers that there is no evidence that the accused committed the offence; the Judge shall acquit the accused (Section 232).

If the evidence given by the prosecution clearly justify the court in framing of charges and denial of acquittal of the accused then the defense counsel shall adduce evidence in support of his client. Even accused can apply for the issue of any process for the attendance of any witness or the production of any document or thing but it should not give a wrong impression to the court of defeating the ends of Justice (Section 233).

After hearing both sides, when the issue arises for giving a Closing statement that Section 314 of the Act apply and the Closing statement is given by defense under Section 234 and under Section 235 by the prosecution side.

By keeping in mind all the evidence the judge should make the final Judgment.

Procedure in Warrant Trial

Chapter XIX of Cr.P.C starting with Section 238 and ending with Section 250 deals with the provisions governing the warrant trial. 

For the trial of warrants cases by Magistrate, procedures are prescribed. One is adopted by Magistrate in cases instituted on police reports, (Sections 238 to 243  Cr.P.C. and 248 to 250 of Cr.P.C.) and other is for cases instituted otherwise than police reports. (Sections 244 to 247 of Cr.P.C. and 248 to 250, 275 Cr.P.C.)

Police case

First stage of trial

With the compliance of Section 207, the magistrate must satisfy himself that he has been supplied with all the necessary documents with charge sheet (Section 238). If after consideration of the charge sheet filed under Section 173, the magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record the reasons for such discharge (Section 239). If in case the magistrate is of the opinion that the accused is triable then charges shall be framed against the accused (Secton 240).

In the case of the State of U.P. vs. Lakshmi Brahman in the context of duty of Magistrate at the stage of commitment. The Court considered the nature of duty lying upon the magistrate with regard to observance of  Section 207 Cr.P.C. and it said that the duty cast on the Magistrate by Section 207 has to be performed in a judicial manner. ^[6]

Second stage of trial

After framing a charge under Section 240, the Magistrate has to prove under Sec 242 Cr.P.C and under subsection (3) of that Section the Magistrate is bound to proceed to take all such evidence as may be produced in support of the prosecution. This provision and the provisions in sub­section (1) and (2) of Section 243, CrPC are mandatory. The Provisions of Section 243 applies both to cases instituted under Police report and Private complaint.

In the case of Vijay Raj vs State of Rajasthan, the procedure to be followed after the accused is called upon to enter his defense, is the same in both the cases instituted upon a police report and those instituted otherwise than on police report.^[7]

In the case of  P.Saravanan vs State Represented by the Inspector of Police, it is pertinent to note that the recording of the plea of guilty both in a warrant case and in a sessions case, under Section 241 under Section 229 of Cr.P.C., as the case may be, case only often, the charge has been read out to the accused. The charge must be specific, unambiguous, very clear and the admission by the accused must be unambiguous and unqualified unconditional.^[8]

Private Complaint

First stage of trial

If the case is instituted on a private complaint and the accused is brought before the magistrate the prosecution must satisfy itself with all the evidence produced and can issue a summon to any of its witnesses directing him to attend or to produce any document (Section 244). After taking all the evidence under Section 244 if the magistrate finds it suitable to discharge the accused at any previous stage of the case considers his charges to be groundless (Section 245).

Second stage of trial

As per Section 247 the defense counsel shall produce his evidence to support the accused. If at the framed charges against the accused the magistrate finds him no guilty then an order of acquittal shall be released.

On the off chance that any case is organized on the objection to judge or to Police official or a blamed individual is introduced before the justice and officer finds that there is no ground against denounced individual then he will be released quickly by the judge, the individual who did the protest will be called to give clarification of why he ought not pay add up to the individual against whom blamed charges were made.

In the case of Narpat Singh vs Anr.,  as a matter of fact attributing uncharitable remarks and initiation of proceedings under Section 250 Cr.P.C against the petitioners are in gross violation of principles of natural justice. Therefore, the impugned action is per se vulnerable on this count also. It is also noteworthy that registration of case against the accused persons by the petitioners and thereafter carrying out investigation was pursuant to an order of the Court under Section 156(3) Cr.P.C^[9]

Procedure in summon trial

Chapter XX of Cr.P.C starting with Section 252 and ending with Section 259 deals with the provisions governing the Summon trial.

 First stage of trial

On the appearance of the accused in front of the magistrate, the particulars of the offence for which he is accused must be stated to him and ask him whether he pleads guilty for the same offences that he is charged with (Section 251).

Where the summon has been issued to the accused under Section 206 and he, therefore, pleads guilty for the same without appearing in front of the magistrate, he shall transmit to the magistrate by post or through messenger. He shall also specify about the fine in summons but in case the accused does not accept his plea of guilty then magistrate shall with his discretionary powers sentence him to pay fine specified in his summons (Section 253). 

In the case of Biru Ram vs Ishar Singh & onr., sub-section (2) of  Section 253 of Criminal Procedure Code, provides that nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. ^[10]

Procedure when not convicted Under Section 252 or Section 203- Then in such a case a magistrate shall hear the prosecution and take the evidence as may be produced in support of the prosecution or shall issue summons to any witness directing him to attend or to produce any document or other thing.

Second Stage of trial

Acquittal or Conviction- If the magistrate is satisfied that the accused is guilty of the charges framed then the magistrate may convict the accused under Section 252 or Section 255 and where the magistrate upon taking evidence under section 254 and further evidence find accused not guilty under the framed charges then he shall record an order of acquittal of the accused.

Withdrawal of complaint- Before the final order is passed, if the complainant satisfies the magistrate that there are sufficient grounds for him to withdraw his complaint against the accused, and then the magistrate may permit him to withdraw the same (Section 257).

Power of court to convert summon cases in warrant cases- In the trail of summon case with an offence punishable for a term exceeding six months, if the magistrate in the sake of interest of justice may covert the summon case into a warrant case by following the procedure of the warrant case and a rehearing of the case in the manner provided in the code (Section 259).

Procedure of Summary trial

Chapter XXI of Cr.P.C starting with Section 260 and ending with Section 265L deals with the provisions governing the Summon trial.

The foremost objective of the Summary trial is to dispose of the cases speedily.

Procedure to be followed- The procedure to be followed under summary trial is same as the procedure specified for summons trail (Section 262).

If a sentence of fine not exceeding two hundred rupees has been passed then no chance of appeal be given.

In every case of summary trial if the accused doesn’t plead guilty then the magistrate shall record the substance of the evidence and the judgment that is delivered must also contain a brief statement of the reason for coming in a particular finding (Section 264).

Section 265 emphasizes that every such record i.e. the particulars mentioned in Section  263, and the substance of evidence and judgment must be recorded in the language of the Court.       

Shivaji Sampat Jagtap vs. Rajan Hiralal Arora the Hon’ble Bombay High Court observed that, “the succeeding   Magistrate,   however in a   case,  the procedure contemplated under section 263 and 264 of the Code in particular has not been followed, he need not hold a trial de novo”, and the view was upheld in J.V.Baharuni vs. State of Gujarat 2015.^[11]                 

References

^[1] https://www.dictionary.com/browse/trial

^[2]https://www.ukessays.com/essays/law/different-kinds-of-trial-under-crpc-law-essay.php 

^[3] https://blog.ipleaders.in/difference-between-session-trial-and-warrant-trial/

^[4] https://crlreview.in/summary-trials-under-crpc/

^[5]  1962 AIR 1198

^[6] AIR 1983 SC 439

^[7] 1996 (2) WLC 18

^[8] Crl.R.C. (MD)No. 354 of 2016 

^[9] https://indiankanoon.org/docfragment/36252933/?formInput=section%20250%20crpc 

^[10]  AIR 1968 P H 274

^[11] 2007 CriLJ 122

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