This article is written by Lalit Ajmani, an advocate (Practising in New Delhi and NCR region).

In matrimonial disputes, maintenance is one of the common issues. In fact in almost every matrimonial case, maintenance is being sought by the wives, irrespective of their qualifications and earning status. Generally, maintenance is being sought by the wives as they are substantially dependent upon their husbands for their financial needs and wants, if not for the other things. Moreover, wives and in some cases husbands try to channelize the provision of maintenance in order to put pressure on the other party.

The law is quite clear on the issue of maintenance, but there is still some doubt over the scope of the provision qua educated, well qualified and earning wives. In the light of the said confusion, this piece of writing is being written to provide some clarity with the help of various case laws.

Fundamental provisions of law qua maintenance

Before discussing the issue in hand, it’d not be out of place to discuss the meaning and scope of maintenance provided by the law. Maintenance has been defined under the Hindu Adoption and Maintenance Act, 1956 as: 

“Maintenance” includes:

(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage;

Moreover, there are various other provisions which pave way to the wives to seek maintenance.

Section 24 of the Hindu Marriage Act, 1955 provides right to the party who has insufficient independent income to support himself or herself as the case may be to seek for maintenance pendelite from the other party. It is apposite to mention that section 24 grants right to maintenance to both the parties i.e. husband and wife to seek interim maintenance during the pendency of the matrimonial dispute. 

Section 125 of the CrPC, inter alia, provides right to the wife, who doesn’t have sufficient means to support herself, to seek maintenance from her husband who has refused to maintain her. Unlike section 24 of the Hindu Marriage Act, the section doesn’t furnish any benefit to the husbands. However, this provision is open to all the wives irrespective of their religion as the same is not restricted to a particular religion.

Section 18 of the Hindu Adoption and Maintenance Act, 1956 provides right to a wife to seek maintenance from her husband. 

Section 23 of the Protection of Women from Domestic Violence Act, 2002 (hereinafter the “DV Act”) empowers the Magistrate to pass interim and ex parte order qua maintenance to the wife where the wife has been the victim of domestic violence or there is likelihood that the husband (or any other respondent) may commit an act of domestic violence.

Moreover, wife can also avail the benefit under Section 36 of the Special Marriage Act, 1954 which empowers them to seek maintenance from her husband during the pendency of the matrimonial dispute provided she has no sufficient means to maintain and support herself.

Bare perusal of the aforesaid provisions demonstrates that the legislature has not discriminated between the qualified and not so qualified wives. However, the issue of inability to sustain independently is visible in more than one statue. 

Various case laws have been discussed herein after which have defined, modified restricted and enlarged the scope of right to maintenance for educated, qualified and earning wives. 

A. Relevance of qualifications and independent income of the wives

Since the issue pertaining to maintenance can’t be decided with the straight jacket formulae, resultantly there is more than one judicial opinion on a similar point of law. However, the court often tried to elucidate various factors in order to adjudicate the issue of awarding maintenance. On these lines, the Hon’ble High Court of Delhi in the case titled “Sh. Bharat Hegde vs. Smt. Saroj Hegde” has curbed out 11 (eleven) factors qua the same and among those 11 (eleven) factors ‘Independent Income and the Property of the Claimant’ (in most of the cases, wife) is one of the factors which can assist the court to arrive at a reasonable and justified amount. Thus, it is quite clear that the income of the wives play a major role in their application seeking maintenance from their husbands. However, the extent of the qualifications and the income of the wives are further discussed below.

B. Prerequisites under section 125 of the CrPC

The Hon’ble Supreme Court of India in the case of Sunita Kachwaha vs. Anil Kachwaha has elucidated the following pre conditions qua the claim of maintenance from the husband under section 125 of the CrPC.

• Wife being unable to maintain herself.
• Husband has sufficient means to maintain her.
• Husband has neglected to perform his duty to maintain his wife.

Furthermore, the Hon’ble Court also said that merely because the wife is earning some money doesn’t debar her to claim maintenance from her husband. 

C. ‘Capable of earning’ and ‘Actually earning’

In the case titled Shalija & Ors. Vs. Khobbanna the Hon’ble Supreme Court held that ‘capable of earning’ and ‘actually earning’ are two different concepts and merely because the wife is capable to earn money doesn’t give sufficient reason to the court to reduce the maintenance awarded to her. Here, the Hon’ble Court clearly held that the qualification of the wife per se doesn’t create any barriers for the wives to seek maintenance from their husbands.

In the case of Arun Vats vs. Pallavi Sharama & Anr., the Hon’ble High Court of Delhi has relied upon the case of Shalija & Ors. Vs. Khobbanna and reiterated the settled principle that ‘capable of earning’ and ‘actual earning’ are two different concepts. The Hon’ble Court refused to lesser down the maintenance awarded by the Family Court under section 125 of the CrPC to the wife merely because of her qualifications and the capability to earn and the disputed income status of the wife.

D. No presumption in the absence of cogent evidence

In the case titled Swapan Kumar Banarjee vs. The State of West Bengal & Ors., the Hon’ble Apex Court held that where there is no evidence qua the income of the wife no presumption can be raised that the wife is earning sufficient amount to maintain herself merely because of the qualifications of the wife.

E. Prima Facie view adopted for interim maintenance 

In the case titled Kanupriya Sharma vs. State & Anr., the Hon’ble High Court of Delhi held that section 23 of the DV Act deals with the application seeking interim maintenance and the same is based upon the prima facie view of the case. Further, serious disputes can’t be decided without leading evidence and therefore unless clear and undisputed evidence is produced by the husband qua the gainful employment of the wife, the maintenance to wife can’t be declined. The Hon’ble Court further explained that unlike section 125 of the CrpC, section 23 of the DV Act is not qualified by the expression ‘unable of maintain herself’. Moreover, unable of maintain herself’ doesn’t mean capable of earning. Therefore, the application under section 23 of the DV Act is to be decided on the prima facie view of the case and the serious disputes qua the employment and the capability of the wife to earn can’t be considered without appreciating the evidence.

F. Mere earning is not sufficient 

The Hon’ble Supreme Court in the case titled Chaturbhuj vs. Sitabhai has categorically held that merely because the wife earns some amount doesn’t disqualify her to seek maintenance from her husband under section 125 of the CrPc. The litmus test is that whether the amount is sufficient for her to maintain and support herself.

G. Where the wife was earning more than her husband

In the case titled Amit Kumar vs. Navjot Dubey, the Hon’ble High Court of Punjab and Haryana refused to interfere with the decision of the lower court where the maintenance pendent lite under section 24 of the Hindu Marriage Act, 1956 was provided to the wife who was earning more than her husband. However, she was taking care of her two children. The Hon’ble High Court vide the aforesaid order affirmed the right to maintenance for working wives. 

Limitations 

Subject to the aforesaid discussion, there are various instances where the different courts have refused to provide relief to the wives and thereby limiting the scope of the subject.

H. No Maintenance where wife is well qualified and possess sufficient means

In the case titled Rupali Gupta vs. Rajat Gupta the Hon’ble High Court of Delhi has upheld the order of the family court refusing to grant interim maintenance to the wife who is a qualified Chartered Account and in the profession from many a years. The Court stressed upon the fact that if a wife is well qualified and capable of earning and chose to remain idle then the courts may be reluctant in awarding interim maintenance to her.

On the similar lines, the Hon’ble High Court of Calcutta in the case of Somdatta Chatterjee nee Raychaudhuri vs. Anindya Chatterjee has held that the object of section 36 of the Special Marriage Act, 1954 is to provide temporary financial support to the wife who is bereft of sufficient means to maintain herself. In the light of the peculiar circumstances of the case where the wife was earning well, the Hon’ble High Court refused to grant interim maintenance to the wife under section 36 of the Special Marriage Act as the wife is not devoid of sufficient means to maintain herself.

I. Husband can’t be forced to beg

In an interesting case, Sanjay Bhardwaj & Ors. vs. The State & Ors. the Hon’ble Court held that the husband can’t be forced to beg and steal in order to maintain his equally qualified wife who refused to live with him coupled with the fact that earning status of the husband is not proved. The relevant excerpt of the judgment is worth perusing for.

“No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, … is contrary to law and not warranted under provisions of Domestic Violence Act… Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed.”

J. In the light of the desertion

The Hon’ble High Court of Madhya Pradesh in the case titled “Anil vs. Smt. Sunita” refused to award maintenance to the wife under section 125 of the CrPC on the ground of living separately/ deserting from her husband for without any reason. This case law stipulates that if the wife leaves the company of her husband for no good reason then she can’t seek maintenance from her husband under section 125 of the CrPC. It also signifies that though a wife has right to maintenance but the law has bestowed the duty upon her to perform her marital duties and the right to maintenance is therefore subject to the performance of her statutory and moral duties.

K. Attempt to clear the dust qua the right of the Earning wives

The Hon’ble High Court of Calcutta in a recent case, Ramiz Raza vs. The State of West Bengal & Ors. has held that a wife has statutory right to seek maintenance from her husband irrespective of the fact that whether she is an earning individual or not. The relevant excerpt of the Hon’ble Supreme Court is as follows:

“It is well settled, by virtue of the decision of the Supreme Court in the case of Bhagwan Dutt (supra) that even a wife having a substantial income of her own or even a working lady is entitled to claim maintenance from her husband. Though initially it was a misconception that a working woman is not entitled to claim maintenance since she has some substantial income and is able to maintain herself, but in view of the decision rendered by the Supreme Court in the said case it is evident that she can claim maintenance even though she is an earning lady.”

Though the Hon’ble High Court of Calcutta has clarified the well settled aspect of the right to maintenance for the earning wives, there have been numerous occasions where the family courts and various High Courts come to a different conclusion subject to the peculiar facts and circumstances of the case, as discussed above. Though the Ramiz Raza judgment was delivered by the Hon’ble High Court of Calcutta in February, 2020, but it is to be kept in mind that the Hon’ble Court merely reiterated the law which was no more res integra. 

At last, it can be inferred from the above said statutory provisions and the case laws that the earning wives do have right to seek maintenance subject to the income status of both the parties and the gap between the wives’ incomes and their needs and wants, if any. 

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This article is written by Arush Mittal, a student currently pursuing B.A. LLB. (Hons) from Hidayatullah National Law University. This is an exhaustive article which deals with the current scenario of the COVID-19 lockdown and talks about what employers can do for their workers.

Introduction

With the outbreak of novel coronavirus, the world is facing a crisis of the century or at the least, a disease epidemic that the country has not seen over a decade. COVID-19 is a severe acute respiratory disease which is caused due to infection from the novel coronavirus that originated from the Wuhan city in China which has now turned into a global pandemic. This virus has spread across the globe and has started to cause economic repercussions which have severely affected Indian businesses. The COVID-19 virus has been affecting people even at their workplace. As India has shut down due to COVID-19, companies are opening up new ways of working. So far, India has reported thousands of cases and this number is expected to rise in the near future. Indian companies and business leaders have been trying to keep the business going on while ensuring the safety of their employees. A lot of companies across India have increased the precautions and done whatever they could do in their power to monitor such situations(coronavirus crisis). Due to the nationwide lockdown that began from March 25, all the offices and factories across the country were shut with a few exceptions. 

What can employers do for their workers in such situations?

There has been a lot of confusion about various issues arising out of the lockdown. There has been confusion about the payment of salaries where employees have been ordered to stay at home and whether the employees are entitled to be paid. There are various challenges that the employer has to face due to this situation. The main focus of the employers and the companies is to keep the employees engaged and make them feel good about themselves. According to Section 3(2) of the Workmen’s Compensation Act, 1923, if an employee can prove that he has contracted a disease during the course of his employment, he is liable for compensation from the employer. The Force Majeure clause of the Indian Contracts Act, 1872 prevents the party from consequences over which it has no control. Companies are not able to perform their obligations to the employees due to the coronavirus outbreak.

Explanation of the situation

On March 24, at 8 pm, the Prime Minister of India, Narendra Modi had announced a 21-day nationwide lockdown due to the coronavirus crisis. This announcement of an unpredictable 21-day lockdown gave just a couple of hours to the people to prepare for it. While addressing the nation, he assured that the essential items would be available but did not speak much about how to buy such food items and necessary goods. Due to this, there were crowds rushing towards various shops and traffic congestion was reported across the country. This lockdown led to the mass movement of labourers and workers from urban cities back to the rural villages from which they belong. The Prime Minister apologized for the hardships caused by the lockdown but said that these measures were necessary to control the COVID-19 virus. This lockdown would obviously affect the economic conditions of the country, but it was much needed. The businesses in India are also experiencing unprecedented issues in employee-related issues.

Employees should not be terminated from their jobs

The Modi Government has asked all the private and public companies to ensure that they do not cut salaries of their staff or resort to lay-offs of their employees amid the COVID-19 lockdown imposed to curtail the spread of this virus. Heeralal Samariya, the Secretary of the Labour Ministry sent out an advisory in the form of a letter which said that in the view of the catastrophic situation that India is suffering through due to which there may be some incidents where the employee is forced to leave without a salary. The government has advised the private and public enterprises not to terminate the services of such employees or reduce the wage of the workers. The government has also said that the termination of an employee by the employer or reduction in the salary (wages for workers) would not only weaken the employee’s financial condition but also affect the will power of such employee in fighting the COVID-19 virus.

Granting them work from home

When the World Health Organization (WHO) had declared coronavirus as a pandemic disease, companies like Google, Microsoft, Twitter, Hitachi, Apple, Amazon, Spotify, etc rolled out mandatory work-from-home policy. Work from home is not a new kind of concept for Indian companies but the statutes of Indian employment are silent about this concept. There are no guidelines that would regulate this concept but the employers have the flexibility to specify guidelines for their employees to do work from home. This lockdown does not necessarily mean that the employers of the company need to stop their work, they are free to implement work from home wherever possible. Work from home does not mean that the employee would be paid more for it than their usual income. This, however, has an exception.

The industrial establishments that require the physical presence of the employees to maintain its continuity would operate only after appropriate permissions from the local administrative authorities. A circular was issued by the Central Government which states that employment had been made non-operational due to this lockdown, the employees of such a place would be deemed to be on duty. The Ministry of Home Affairs issued a notification on March 29, 2020, to all the State Governments requiring employers of all the industries, shops and establishments to pay wages to all the workers without deduction during this period of lockdown.

Precaution at the Workplace

Due to the lockdown, employees were made to work from home and therefore they did not need to come to the office. But the lockdown exempts certain essential services, which means that some employees still have to go to work in factories and offices. For cases like these, employers are taking steps to increase the safety in those places where physical activities are involved. Top IT firm Tech Mahindra which is considered as an essential service and requires some of its staff members to work in the office, has been fumigating and sanitizing workspaces. They have also been providing sanitizers and stocking up on emergency medicines. The Chief People Officer of Tech Mahindra made a statement saying that their focus is to ensure that their associates and partner ecosystem stay healthy during this crisis.    

Incentives at the time of the lockdown

Leading companies in India are proactively ensuring employees that they would take care of the employees and help them with their finances during the COVID-19 lockdown (even if it continues or even gets extended). Companies are going all out to reassure the employees. The companies are paying salaries in advance to regular as well as contractual workers who work in that company and also honouring the joining date commitment for new joiners even if they cannot come on board. The HR heads of the top business groups have confirmed that work irregularities and projects which are stalled would not be a problem for the payment of the salary. An uninterrupted pay to the contract workers such as vendors, housekeeping staff, maintenance personnel, etc has been also assured by the companies. Suresh Tripathi, Vice President at Tata Steel has confirmed to the people that there would be no payment disruption and all the salaries would be paid on time. He has also said that even the contract workers in their company would not have a disruption in the payment even though the work has stopped.

Financial assistance to cover the additional costs of data and telephone calls, for example, maybe required from the employer for the employees who work from home during this lockdown situation. Employers may, as a general rule, not claim expenses as deductions that arise due to the work unless the majority of these expenses. It is very important to consider how much financial assistance is provided.

Compensation to employees infected by the virus

The employers in India are obligated to pay compensation to the employees who are injured or who die due to certain accidents that arise during the time they are employed. Accordingly, if it can be demonstrated that the COVID-19 disease was contracted by the employee during the employment period and that it arose out of the employment then the employee who was affected by the virus has all the right to claim compensation from the employer. Sick leave of seven to twelve days is given to the infected employee when he asks for a sick leave depending on the vicinity of such a company. Karnataka has required employers to offer a longer period of sick leave (up to twenty-eight days) to personnel who’ve contracted COVID-19. If the illness continues beyond such a quantity of days, other leaves like informal leaves or earned leaves may be applied for the same. In the event of prolonged illness, personnel may be provided unpaid leaves for the required period. Further, establishments covered under the ESI Act, a longer period of sickness depart is possible. If an employee is required to manage self-quarantine on account of discharging his professional functions, such employees should be supplied with paid leaves for the same.

Authentic Information

Due to the flooding of information on social media regarding the coronavirus (some of which is highly dubious), employers of the companies are focused on giving its employees reliable and authentic information. The employers are communicating with people to not panic and maintain safety. Communication from employers is very valuable. A study that was done recently has shown that employees trust the information (63%)  that is given by the companies more than any government website or other sources. Companies are using various means of communication such as emails, webcasts, etc to guide the employees about the information related to how to stay safe if the employees show some symptoms of the virus. A government website is working towards providing information regarding the COVID-19 virus.

Infrastructure for Remote Workforce

Since a lot of companies have started with work from home, many employees do not have such infrastructure which would enable them to do work from home. For instance, many employees do not have laptops or, in some parts of India, have poor connectivity to the internet, therefore, they can not use high-quality data. Some companies had planned for this from before and provided laptops to all the employees and also provided Wi-Fi and various such types of equipment so that the employees could start with their work from home without facing any difficulties. IDBI Federal Life and Oberoi had exchanged laptops from employees who did not need it much with those employees who could not afford it and needed it critically. This decision had provided a lot of help to the employees.

Conclusion

The lockdown of our nation which was initially made for 21 days was made under the Disaster Management Act, 2005, on the directions of the National Disaster Management Authority. To stay operational during the lockdown, the establishment of the employer needs to be one that provides essential services. Employees who are working in these establishments must be provided with some kind of a pass which allows them to travel around for their work as even though there is a lockdown. The employers are trying their level best to provide help to their employees and workers.

The step of giving incentives at the time of lockdown has been great at it would indulge the employees more towards working from home.  Compensation to the infected employees and authentic information to all the employees is an excellent measure taken by the employers. The policy measures by the employers should not be neglected and be strictly adhered to, so as to minimize the spread of the deadly COVID-19 virus which is prevailing currently.

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This Article is written by Mehak Jain from Hidayatullah National Law University. This is an exhaustive article that aims to explain the difference in rights of lessor and lessee during COVID-19 and the applicability of the force majeure clause.

Introduction

The pandemic came at a time when nobody was prepared for it and has created a ruckus ever since its arrival. What started from Wuhan has now taken ahold of the whole world and shows no steps of slowing down. Other than the exceedingly alarming number of lives COVID-19 has taken, economies are shaking and the world is preparing to witness a global recession. Every type of industry and relationship has been hard hit by it, and one such relationship is that of the lessor and lessee.

The dispute arose when the lessees denied paying the rent as per their lease agreements; however, they’re not all wrong since most of them have been unable to get access to their leased property. Others haven’t been earning income due to the lockdown shutting most of the businesses down and making them financially unable to pay rent. The questions which arise are many- is it right to waive off their rent, if so, under what provision? What does Indian law have to say about this issue, and is there a remedy to be availed?

General rights of lessor and lessee

Background

India hasn’t faced such a scenario in history and the pandemic struck the country very hard. Spreading of disease in a country as populous as India would have led to disastrous consequences. As a result, the Prime Minister of the country declared a 21-day lockdown on 25 March 2020. This gave rise to many issues for all sectors, particularly the retail sector. Rent cannot be paid as there is no source of income for the lessors due to businesses being shut because of lockdown and this has led to many arguments.

Now, the main problem at hand is whether the force majeure clause can be invoked or not. But for that, we’ll have to analyze the rights of the lessor and lessee, to then go and see how these have been affected by the pandemic. 

Important Definitions

Section 105 of The Transfer of Property Act, 1882 defines Lease, Lessor, and Lessee.

Lease is the transfer of right to enjoy immovable property in exchange for a consideration, for a particular time period for which the transferee has assented to the terms of the agreement.

The transferor is the Lessor and the transferee is the Lessee.

General Rights of Lessor and Lessee

Section 108 deals with the rights of lessor and lessee.

Rights of Lessor:

• Right to recover rent.
• Right to take back property on expiry of agreed time-period as per the lease agreement.
• Right to recover damages in case of damage to property.
• Right to take back the property if any condition of the agreement is breached. 

Rights of Lessee:

• If there’s any alteration to the property during the period in which the lease is valid, the alteration shall come under the lease.
• If any material part of property is partially/ wholly destroyed, or rendered substantially and permanently unfit for the purpose for which it was set out on lease, due to floods, fire, tempest, violence of army/mob, or other irresistible force, at the option of the lessee, such a lease agreement shall be deemed to be void. However, the lessee can’t avail this provision if the injury is occasioned by his/her wrongful act or default. (This is the clause we are concerned with as only this clause can be invoked in the event of a pandemic.)
• If the lessor was bound to make some repair and neglects to do the same for a reasonable time after notice, and the lessee repairs and bears some cost, he/she is entitled to recover it from lessor/ deduct the amount from the rent to be paid.
• If lessee has attached something to the property, he/ she is entitled to detach it. However, he/she should leave the property in the state in which it was originally handled.
• When the lease is of an unspecified duration, the lessee or his/her legal representative is entitled to collect benefits from crops sown of such property.
• Lessee has a right to sub-lease/ mortgage. 

With reference to how the rights change in the times of a pandemic, we will be dealing with Section 108(e) of the said Act and specifically, the clause “ irresistible force” mentioned in it.

Irresistible Force: The force majeure clause

The most common solution to any unanticipated event in contracts is the force majeure clause, which affects the ability of a party to perform the contract in case of an unseen future event, or an event which is out of reasonable control of the party.

Generally speaking, a  force majeure event is outside the control of the party to the contract and prevents him/ her from performing their contractual obligations.

It is important to note that the force majeure clause under Section 56 of The Indian Contract Act, 1872 is exclusive of lease deeds. We can refer to the case Raja Dhruv v. Raja Harmohinder Singh, where it was clarified that the claim of Force Majeure will not be applicable to lease agreements. The Supreme Court did this on two grounds. Firstly, it held that lease deeds are governed by The Transfer of Property Act, 1882 and are thus not contractual rights only. Secondly, the Court reasoned that Section 56 of the Indian Contract Act did not apply to concluded contracts.

Hence, since we are dealing with lease agreements, we shall delve into the force majeure clause of The Transfer of Property Act.

Requirements of the Clause

According to Section 108(e) of the Transfer of Property Act, 1952, if any material part of property is partially/ wholly destroyed, or rendered substantially and permanently unfit for the purpose for which it was set out on lease, due to floods, fire, tempest, the violence of army/mob, or other irresistible force, at the option of the lessee, such a lease agreement shall be deemed to be void.

The important part to focus on here is “irresistible force”- which is the Force Majeure of this Act. Yes, there is no judicial pronouncement setting out what the irresistible force is, however certain obiters depict the irresistible force and the Force Majeure to be the same.

This subclause, on clear reading, specifies the fulfillment of three criteria to invoke any benefit:

• Property should be rendered substantially and permanently unfit;
• There should be the presence of an irresistible force;
• The lessor must be informed of the lessee’s decision to render the lease deed invalid.      

Questions and Problems in invoking it

Now, the questions which arise are:

1. Whether COVID-19 can be considered as an irresistible force;
2. Whether the property has been deemed substantially and permanently fit due to the virus.

The difficulty shall arise when the pandemic is to prove the property to be “permanently unfit”.

Whether the outbreak of COVID-19 and the lockdown constitute a force majeure event depends on the specific wording of the clause. For that to be determined, the following issues shall be looked into-

• Proof of causation

A causal relation between failure to pay rent and that being due to COVID-19 needs to be established first. For this, the party claiming benefit shall need to prove that he/she would’ve been able to pay rent had it not been due to the virus, and then prove that the virus alone was sufficient to lead to non-payment of rent.

• Readability with other provisions

Since Force Majure is a contractual obligation, it should be readable with other provisions of the agreement. What this means is, the clause must not clash with other provisions or render them useless.

• Abiding by the force majeure clause

The conditions and pre-requisites mentioned in the clause, if mentioned in the agreement, must be followed. If the clause is invoked, later on, new conditions cannot be imposed. Whatever was pre-decided shall prevail.

Disputes during the Crisis

Effect on Real Estate

The real estate industry is experiencing aftershock effects due to the lockdown. So far, the sectors which have been hit hardest are hotels, resorts, inns, bars etc.. Retail and housing haven’t been spared either. Small restaurants and pop-up businesses are more likely to feel a big impact.

Landlords which had given leases for rent are now preparing to deal with tenants who have no source of income and are struggling to pay rent. Impact on retail is huge too. Restaurants and malls are not able to generate even close to what they could generate earlier, which leads to a ripple effect in the economy as lessors brace themselves for requests of condoning or leniency in rent.

Many real estate deals have also been stalled as a result of the virus and lessees are closely assessing the force majeure clause in their agreements and trying to invoke them to protect themselves from paying rent when the space leased wasn’t even accessible to them.

The virus has also made closings more complex. It has been the reason for the delay and in some cases, documentation gets affected as the key dates are missed.

Effect on Commercial Retail

The major concern is whether payment obligation shall still subsist, despite the lessees having no access to their leased spaces.

Well known chains such as PVR are having problems with their lease agreements. Malls have been closed shut even before the lockdown and they have had no access to their leased spaces all the while. Since most of the space and outlets they own are on leased agreements, they’re facing tremendous problems and the company has hence informed their landlords and mall owners that they would not be paying rent for the entire period of shutdown across the country and that they will be invoking the Force Majeure clause in its rental contract.

Reliance Retail may also invoke the clause to escape paying rent due during the lockdown period.

Shoppers Stop also wrote to its landlords refusing to pay rent for three months due to the lockdown.

An international coffee chain with multiple stores in Mumbai also wrote to its landlord about its inability to pay rent due to lockdown. 

Rent waived off or Rent Reduction

Most lease agreements don’t contain a rent abatement clause for the lessee’s inability to pay rent. Even if an abatement clause is included, it may be only limited to the loss of service of lessee due to actions of a lessor. Therefore, the lease should be reviewed to identify (if any) the lessee’s abatement rights. Lessee should consider requesting rents to be waived off and lessors should be prepared to embrace this and be more flexible towards it as well.

Solutions to the Dispute

A lessor can invoke the force majeure cause if provided in the lease as the remedy. For a lessor, in case the lessee refuses to pay rent, the lessor shall be entitled to call on back guarantee or cash deposits if mentioned and accorded for in the lease. 

A Mumbai-based landlady waived off the rent of two months for her tenants. On a much larger scale, Lodha group, which owns malls in Mumbai waived off rent for retailers occupying its spaces while the lockdown lasted.

An effective, mutually benefitting solution is simple- everyone needs to work together and be flexible. Force majeure clause needs to be reviewed if present. Both parties are being affected and should work out a resolution that is beneficial to both. Payment of rent may be deferred to later or completely be waived off. These are testing times and everyone needs to cooperate. 

Conclusion

There are a lot of questions about the force majeure clause and whether it is applicable in the current scenario. These need to be answered and backed by-laws to provide both, the lessor and the lessee some respite. India should look towards New York and New Jersey for example, which have suspended eviction proceedings and other pending orders in light of the disease. The suspension applies to both commercial and real estate dealings and is designed to ensure people engaged in such businesses are worriless. Nobody is free from the clutches from the pandemic. Everyone is undergoing it, and the entire world is together. People should have open minds and should settle petty issues such as rent later. Flexibility is a must and everyone needs to settle down and think about mutual benefit. Cooperation and mutual help is the key to fight the virus.

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This article is written by Abhay, a student from Kirit P. Mehta School of Law, NMIMS. This is an exhaustive article which deals with various aspects associated with Forfeiture of property arising from Illegal Hunting and Trade.

Introduction

Forfeiture of Property arises from illegal hunting and trade in The Wildlife (Protection) Amendment Act of 2002 which added a new chapter i.e Chapter VI-A. According to Section 58C, if any individual or associate of persons or trust obtains any property from illegal hunting or wildlife trade, the competent authority shall forfeit that property to the State government.

Such property may be forfeited upon the completion of all the required steps (inquiry, inspection or survey of any person, location, property, the institution of records, etc.) and after tracking and finding of any such property.

In examining and enforcing the forfeit of the property, if the competent authority determines that only a portion of the obtained property is proven to be unlawful, the authority shall issue orders to pay a penalty equivalent to the market value of that part of the property in lieu of forfeiture, giving the opportunity to the affected person.

Prohibition of holding an Illegally Acquired Property

Section 58C establishes that it shall not be permissible for any person to possess any property obtained illegally on his behalf, either by himself or by any other individual. Any property shall be liable for a forfeiture in the event of a violation of this clause. Although, no such property shall be forfeited if a person obtained such property within a period of six years from the date on which he was convicted with an offence involving illegal hunting and wildlife trade and its items. 

Competent Authority

Section 58D provides that the State Government may designate any officer not below the level of Chief Forest Conservator to perform the duties of a competent authority.

Identifying an Illegally Acquired Property

Section 58E specifies that, upon receipt of a grievance from the competent authority concerning any person having illegally obtained property, an officer not below the Deputy Inspector General of Police duly authorized by the Central Government or the Government of that particular state shall take all appropriate measures to track and identify any property illegally acquired by such person.

Such measures can include any examination, inspection, or survey of any individual, location, properties, assets, records, accounts books in any bank or financial institution or any other related actions as appropriate. 

The officer conducting the investigation may make an order for the seizure of such property and, if it is not practicable to seize such property, he may order that such property not be transferred or otherwise treated, except with the prior approval of the officer making the order or of the competent authority, and a copy of that order shall be served on the individual concerned.

Seizure or Freezing of Illegally Acquired Property

Section 58F specifies that when an officer conducting an investigation has reasons to assume that any property is an unlawfully obtained property and that such property is likely to be hidden, transferred or dealt with in some manner that could result in disturbing the procedures required for the confiscation of such property.

The officer may make an order for the seizure of such property or order that such property cannot be transferred or otherwise treated, except with the prior authorization of the officer issuing the order, or the competent authority.

Any such orders shall have no effect unless the stated order is limited within thirty days of being made by an order of the competent authority.

Management of Properties Seized or Forfeited 

Section 58G specifies that by the order issued in the Official Gazette, the Government of the State can designate as many of its officers (not below the rank of Forest Conservator) as it deems fit to carry out the functions of Administrator. 

The administrator designated pursuant to subsection has to obtain and administer the property in respect of which an order was made pursuant to Section 58F(1) or under Section 58I in such manner and subject to such conditions as may be prescribed. The Administrator has to take the steps as directed and ordered by the State Government, to dispose of the asset forfeited to the government.

Notice of Forfeiture of Property 

During the valuation of the property possessed by any person, if the officer doing investigation believes that the property, sources of income or assets are unlawfully obtained, he can report to the authority as prescribed by Section 58 E. The competent authority shall believe that all or any of the properties are unlawfully acquired as per the report by the officer. 

This may serve as a notice to that person, calling on him within the thirty-day period as specified in the notice, to show cause that why the properties should not be declared unlawfully acquired and forfeited.

In support of his argument, he has to show the sources of his income, earnings, or properties from which he or she obtained those properties and the facts on which he or she relies and other relevant details. And also if any property is possessed by any other person on behalf of that person, a copy of the notice shall also be sent to that other person as specified in Section 58H. 

Forfeiture of Property in Certain Cases

If the person concerned owns any property mentioned in the notice by some other person, the court will give him a chance to be heard. The competent authority after acknowledging the description of the show cause notice given pursuant to Section 58H may also give the other person a fair opportunity to be heard. The authority has to clear if some or all of the properties concerned are unlawfully acquired or not. 

If the person concerned (and in the event that the person concerned owns any property listed in the notice by some other individual, that other individual as well) does not appear before the competent authority or represent his case before the competent authority within the span of thirty days stated in the notice of the show cause, the competent authority may proceed to record a finding under this subsection ex parte on the basis of the evidence which is available before it. 

When the covered entity is confident that some of the properties pointed to in the show cause notice are unlawfully obtained properties but cannot clearly classify those properties, the competent authority shall be entitled to define those properties which, to the best of its discretion, are acquired illegally and has to record a finding accordingly within a period of ninety days. 

And if it is reported by the competent authority that any property is unlawfully obtained. The authority shall declare the property to be forfeited by the state government. And it will be free from all restrictions and limitations. 

If the person concerned establishes that the property stated in the notice given under section 58H is not an illegally obtained property, then the said notice shall be removed and the property shall be released immediately. 

The Section further mentions that if any share of a business is forfeited by the State government, the business shall immediately register the government as the transferee of such shares, notwithstanding anything found in the Companies Act, 1956 (1 of 1956) or the company’s article of association.

Burden of Proof

The burden of proof that any property provided for in a notice served pursuant to section 58H is not unlawfully obtained shall be on the individual concerned.

Fine in lieu of Forfeiture 

The competent authority determines that any property which is forfeited by the State government pursuant to Section 58I and if the source of only a part of the unlawfully obtained property has not been proved to the satisfaction of the competent authority, the competent authority shall make an order giving the individual concerned the option to pay, instead of forfeiture, a penalty which is equal to that of the market.

The person impacted shall be provided with a fair chance to be heard before making a decision which is to impose a fine and after the person concerned pays the fine, the competent authority may, by order, revoke the declaration of forfeiture pursuant to Section 58I.

Procedure in Relation to Certain Trust Properties 

On the grounds of the evidence and materials available to it,  if the competent authority finds that any property kept in the trust is unlawfully gained, it may notify the trustee or, as the case may be, the owner of the property from or by which the trust obtained that property. The trustees have to specify, within the span of thirty days stated in the notice, the source of money or other assets from which such assets were acquired. They have to state the source of money or other assets donated to the trust for the acquisition of such assets as mentioned in section 58H.

Certain Transfers to be Null and Void 

When a property is ultimately forfeited by the government as mentioned in Section 58-I, the transfer of such property shall be deemed null and void.

Constitution of Appellate Tribunal 

Section 58N states that the State Government may appoint an Appellate Tribunal to be known as the Appellate Tribunal for Forfeited Property. It will consist of a chairman and as many other members as the state government considers appropriate. But the members appointed in this tribunal should not be below the level of the government’s chief secretary. 

The Chairman of the Appellate Tribunal shall be a person who is, or has been eligible to be a judge of a high court. The Committee may hear, as the case may be, complaints against the seizure, forfeiture, or fine orders.

Appeals 

Any individual aggrieved by an order of the relevant authority may prefer appealing to the Appellate Tribunal within forty-five days, pursuant to Section 58O. However, after the said duration of forty-five days, the Appellate Tribunal may entertain an appeal, if it is satisfied that the appellant was prevented from filing the appeal in due time by reason of reasonable cause.  But the same cannot be entertained after sixty days. 

After giving the appellant an opportunity to be heard, the Appellate Tribunal may uphold, amend, or set aside the order against which it has been appealed. The Court of Appeal may, upon payment of the prescribed fee,  may allow a party to any appeal or any person allowed by that party in that name to inspect any relevant records and registers of the Court of Appeal at any time during office hours.  

Notice or Order not to be invalid for error in the Description

No notice given or served, no declaration made and no order passed shall be deemed null on account of any mistake in the specification of the property or individual referred, only if such property or individual is identifiable from the description. 

Bar of Jurisdiction 

Section 58Q states that no civil court shall have jurisdiction over any matter to be decided by or under Chapter VI-A by the Appellate Tribunal or other competent authority. And also, no injunction shall be issued by any court or authority in respect of any action to be taken or to be taken pursuant to any power conferred under Chapter VI-A.

Powers of Competent Authority and Appellate Tribunal 

In compliance with Section 58-R, the competent authority and the Appellate court shall have all the powers of the Civil Court in the proceedings pursuant to the Code of Civil Procedure with respect to the following matters:

• Summoning and imposing the presence of any person and questioning him on oath;
• Requiring the collection and processing of documents; 
• Obtaining evidence on affidavits;
• Requesting, from any court or office, any public record or copy thereof;
• Granting commissions to investigate witnesses or documents; 
• Any other prescribable matter.

Information to the Competent Authority 

Section 58S provides that, notwithstanding anything embodied in any other legislation in force, for the time being, the competent authority shall have the power to compel any officer or authority of the Central Government or of a State or local authority. This is to provide information on such individuals, on points or matters as the competent authority considers to be useful for, or applicable to, Chapter VI-A of the Act. 

Police officers, State Forest Departments, the Central Economic Intelligence Bureau, the Revenue Intelligence Directorate, and any other officers as may be defined by the State Government may provide suo moto with any information available to the competent authority if such information would be useful to the competent authority in their opinion.

Officers to assist Administrator, Competent Authority and Appellate Tribunal  

For the purposes of any proceedings under this Section, the following officers shall provide the required assistance to the Administrator appointed pursuant to section 58 G, the competent authority and the Court of Appeal, namely:  

1. Police officers;
2. Officers of State Forest Departments; 
3. Officers of the Central Bureau of Economic Intelligence; 
4. Officers of the Directorate of Revenue intelligence etc.

Power to take Possession

When any property has been held forfeited to the State government or if the person concerned has refused to pay the fine due under Section 58K(1) within the prescribed time, the competent authority may order the surrender of the property both to the person concerned and to any other person who may be in possession of the property. 

When any person fails or refuses to cooperate with an order rendered, the Administrator may take custody of the asset and may use such action as may be appropriate for that reason. For the purposes of taking possession of any property, the administrator may request the assistance of any police officer and it is the obligation of that officer to cooperate and comply with that request.

Rectification of Mistakes

In an attempt to rectify any obvious error, the appropriate body or the Court of Appeal may amend any order it has made within a period of one year from the date of the order. Provided that, if any such alteration is likely to affect any individual in a prejudicial manner and the error is not of a clerical nature, it shall not be made without giving that person a chance to be heard.

Punishment

Any person who knowingly acquires by any means the property in respect of which proceedings are pending shall be punished with imprisonment for a term of up to five years and with a fine of up to fifty thousand rupees as mentioned in Section 58Y.

Conclusion

This new provision discussed above was introduced into the Wildlife Amendment Act of 2002 i.e. Provision (VIA) which states that the approved officer must forfeit the property if any individual or any group of persons or any trust gained that property from unlawful hunting or unauthorized trade in wild animals under this Act. 

Forfeiture of the property may be achieved by the process laid down by law and by taking appropriate steps such as investigating, inspecting, or surveying any house, location, individual, or record. If it was found that only a portion of the property was unlawfully purchased, the person would have a chance to pay the fine equal to the market value. 

Section 51(2) of the 1972 Act provides for the confiscation of the property on conviction; it states, inter-alia, that if any person is convicted of an offence against the Act, Any domestic animal, wild animal, etc. for which the crime has been committed and the vehicle, vessel or weapon, etc. used in the execution of the offence may be required by the court to prosecute the offence.

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This article is written by Arkadyuti Sarkar, a student currently pursuing his B.A. LL.B from Shyambazar Law College under the University of Calcutta. This article talks about the Partnership Property in the Partnership Act.

Introduction

The provisions related to the property of a firm or Partnership Property have been enshrined under Section 14 and Section 15 of the Indian Partnership Act, 1932.

Let us now attempt towards obtaining a comprehensive idea about partnership property, and other relevant topics, like the role of the partners in a partnership business or interest of the partners over a partnership property post-dissolution.

Partnership Property

According to Section 14 of the Indian Partnership Act, 1932, depending upon the contract between the partners, the property of the firm includes all the property which was originally brought into the stock of the firm, or acquired through purchase or some other means. It also includes all the rights and interests which are associated with such property. Such property should have been acquired by or for the firm, or for the purposes and in course of the business of the firm. Such property of the firm or partnership property includes the business goodwill.

In absence of the contrary intention, such property along with the rights and interests which have been acquired with the monetary fund of the firm shall be deemed to be acquired by the firm.

Simply put, a partnership property consists of the following items in the absence of any agreement to the contrary between the partners of a firm-

1. All property along with the inherent rights and interests that the partners purchase as their contribution to the common business, in the common stick.
2. All property along with the inherent rights and interests, that a firm purchases for itself or for the purpose in course of its business.
3. Goodwill of the business. 

Illustration: X, Y, and Z are partners in a firm named A, located at Kolkata. For the purpose of establishing another office of the firm in Delhi, a new office is rented using the firm’s capital. This new rented property is an example of a partnership property.

In Boda Narayana Murthy & Sons v. Valluri Venkata Suguna & Others; the partners in a partnership business purchased a property individually and not using any sort of funds from the partnership. Disputes arose when the respondents claimed that the property so purchased using every partner’s individual monetary support belongs to the partnership firm.

The High Court of Andhra Pradesh held that to become a property of the firm, such property must have been brought into the stock of the firm by the partners originally, during the formation of the firm or was subsequently acquired by purchase or any other means, in the course of business of the firm.

In Addanki Narayanappa & Anr v. Bhaskara Krishtappa & 13 Others; here the plaintiffs and the defendants, Addankis and the Bhaskaras, are two Hindu Undivided families who entered into partnership business of hulling rice, decorating peanuts, etc.

In the course of the business the partners acquired some lands for the business purpose. Now such acquisition was made by payment of money by individual partners. A dispute spiked between the plaintiffs and respondents regarding whether the properties acquired in the course of business excluding the business funds are owned by the partnership business or by individual shareholders.  

The Supreme Court held that property belonging to the partners or any one of them is incapable of being deemed as a partnership property, merely of being used for business purposes, and thus cannot be deemed as partnership properties.

Meaning of goodwill

Section 14 mentions that for the purpose of deeming an acquired property by a firm as a partnership property, such acquisition shall also include acquisition made for the purposes of goodwill of the firm’s business. Therefore, it is necessary to appreciate the meaning of Goodwill.

The term goodwill is defined nowhere in the Indian Partnership Act, 1932. 

According to Lindley, the term goodwill is generally used for denoting the benefit arising from the connection and reputation, and its value is what can be received for the chance of being able to keep and improve the connection.

In simpler words, goodwill refers to the reputational value of a firm built over time, with respect to the expected future profits over and above the normal profits accrued over the conduct of the same class of business. A well established firm makes a good market name, generates trust with the customers and also has more business connections in comparison to a newly established business. Therefore, the monetary value of this advantage that a buyer is ready to pay is termed as Goodwill.

The buyer making higher payments, expects to make super profits in comparison to the profits earned by other firms. Therefore, it can be inferred that goodwill exists only in case of firms making super profits but is non-existent in case of firms making nominal profits or losses.

Illustration- A is a buyer, wanting to avail a legal service. He has 2 options: firm Y & firm Z. Firm Z has a better reputation compared to Firm Y. Therefore, A is more likely to go to Firm Z for availing the legal service. So, firm Z has better goodwill over firm Y and is likely to make a higher amount of profit. This goodwill of firm Z is intangible partnership property.

Application of property

According to Section 15 of the Indian Partnership Act, 1932, depending upon the contract between the partners, the property of the firm shall be held and used exclusively for business purposes by the partners.

In simpler words, the property of the firm which has been acquired by the firm for the business purposes shall be used only for such business purposes and nothing else.

Illustration: A law firm rents an office at Pune, for the purpose of conducting business. Thus, according to the provision of section 15, the rented office shall have to be used exclusively for the purpose of conducting business and nothing else.

In Reddi Veerraju v. Chittori Lakshminarasamma & others, the High Court of Andhra Pradesh observed that the rights enjoyed as joint owners by the partners are restricted by sections 14 & 15. The partnership property thereby acquired is not usable for any purpose other than that of partnership business. In this case the plaintiffs had mortgaged some money to the defendants for the purpose of partnership business. The mortgage claim had however been extinguished since no claim was made within the period of limitation.

Presumption about property

In re Adarji Mancherji Dalal, the High Court of Bombay ruled that for constituting a partnership property it is unnecessary that a property should be brought for the purpose of partnership business. The Court also went on to note that a partner is a trustee of the partnership property standing in his name, and no partner is a beneficiary in any particular estate or property, until the dissolution of the partnership.

In Noor Mohammed Mir v. Qadir Mir; here the plaintiffs had entered into a partnership business with the respondents and started a suit shop for tailoring business. After one of the plaintiffs died, the respondent continued to carry on the business under the same name. Disputes arose between the remaining plaintiffs and the respondents on this matter. The Court held that a partner’s property does not transform into partnership property merely because of being permitted for the use in conduct of partnership business.

Role of partners

The partners in a firm have the following ostentatious roles to play under the Indian Partnership Act, 1932-

• Observing Good Faith

Partners are obligated to continue the firm’s business to the greatest common advantage, being just and faithful to one another, and rendering true accounts and absolute information of all things affecting the firm to any partner or his legal representative.

• Indemnifying for loss

Every partner is liable to save other partners from loss caused by the fraud of a firm in carrying on the firm’s business. This provision is absolute, and not subject to the contractual terms between the partners. Any such clause in the partnership deed, exempting a particular partner from this indemnifying liability shall be invalid and unenforceable.

• Diligent participation in duties

Every partner is liable to diligently attend his duties in conducting the firm’s business.

• No remuneration claim

It is the prime liability of a partner to participate in the firm’s management business. Thus, none of them is entitled to any remuneration for such participation. However, usually some remuneration is allowed to the working partners if there is existence of some specific agreement to that effect.

• Indemnification for wilful negligence

Where one partner carries on the partnership business with wilful negligence, but without any fraudulent intention, thereby causing any loss to the firm, then such loss shall have to be compensated by that partner himself. However, any act done with bonafide intention shall not be deemed as wilful negligence.

• Sharing of losses

In absence of any contract to the contrary, every partner is equally liable to compensate for the firm’s losses.

• Holding and using the property of the firm

One of the imperative liabilities upon the partners in a partnership is to use the firm’s property exclusively for conducting partnership business. The partners may agree with variance but such disagreement must be endorsed by a specific agreement to that effect.

• Accounting for private profits

Every partner is accountable for the private profits accrued out of transactions of the firm, or its property, or goodwill, provided such profit has been made without the consent or knowledge of other partners.

• Acting within authority

Every partner is liable to act within the ambit of his actual or apparent authority. If he acts out of such scope and such act is unratified by the other partners, then he will be liable to other partners for any loss incurred upon them due to such excessive activity.

• Accounting for the process of a competing business

If any partner conducts a business of the same nature as that of the firm in which he holds his partnership, and such business is competing with that of the firm, then he shall be accountable for all the profits incurred by him in that competing business. However, if any such competing business is carried on upon the virtue of any contract with other partners, then there shall be no need for accountability.

• Not to assign his rights

A partner is not entitled to assign his rights or interests in a partnership firm to a third partner or an outsider, so as to make that outsider a partner in the firm’s business, without obtaining the consent of other partners. However, if such assignment has already been done, the assignee shall not be entitled to interfere in the conduct of the firm’s business, or require accounts, or inspect book of records of the firm, during the continuance of the firm.

The interest of partners after dissolution

To acknowledge the interest of partners in a partnership business after dissolution of such business, it is imperative to comprehend the meaning of dissolution.

The term dissolution remains undefined under the Partnership Act, 1932. According to Section 39 of this Act, the dissolution of partnership between all the partners of a firm is called the dissolution of a firm.

Dissolution of partnership of a firm is a process involving the termination of partnership relations between the partners of that firm. Such dissolution results in the cessation in the existence of the firm. It involves the discarding and disposing of all the assets of the firm, including settlement of accounts and liabilities.

Post dissolution, the firm becomes incapable of transacting with anybody except selling off the assets to realize the amount, pay the liabilities of the firm, and discharging the claims of the partners.

Now after appreciating the meaning of dissolution, let us check for the interest of the partners after dissolution.

• Representative Rights

According to Section 46, once the firm is dissolved, each partner or their  representative shall be entitled against the remaining partners for having the firm’s property to pay off the debts and liabilities of the firm. If there is any excess property, after the payment of debts and liabilities, then such property shall be distributed among the partners or their representatives, according to their respective rights in the firm.

• Division of assets among the partners

According to Section 48(b)(iv), if there is any remaining assets even after applying the said assets in accordance with the provisions in clauses (i), (ii) & (iii) of Section 48(b), then such asset shall be distributed among the partners in the same proportion in which they were entitled to profit sharing. 

Conclusion

So now let us summarize our learnings from this article. Any property acquired by a firm for the purpose of carrying on its business is a partnership property. Any property acquired by a firm for the purpose of carrying on its business shall be solely used for the purpose of such business and nothing else. Partners in a partnership business have various ostentatious roles to play. For eg: Observance of good faith; indemnifying for loss, participating in their duties in a diligent manner; no claim towards remuneration; indemnifying for wilful negligence etc. The partners shall have interests over the property and profits of a firm after dissolution. Provided that such interest shall only be available to them, on the remaining property, after the payment of all the debts and liabilities of the firm.

References

1. Indian Partnership Act, 1932.
2. Indiakanoon.org
3. https://www.toppr.com
4. https://www.lawyersclubindia.com

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This article is written by Prateek Singh from Institute of Law, Nirma University, Ahmedabad. In this article, the author explains the relation of partners to third parties.

Introduction

A partner is considered to be an agent of the firm as per Section 18 of the Indian Partnership Act, 1932, that partner is granted a real or apparent authority to act on behalf of the firm and hence he represents the firm through his actions. A partner is granted permission to make moves, conduct business as usual with certain limitations being put in some ordinary or extraordinary situations. This will be talked about later in the article.

Partners to be an agent of the firms 

As mentioned in Section 18 of the Partnership Act, 1932, a partner will be an agent of the firm for the purpose of the business of the firm. A partnership in business means that it is a relationship in which all the partners have come together to share the profits of the business and the business can be carried out by all or by one who will act on behalf of all. Going by the meaning of the definition it can be deduced that a partner is also an agent of the firm.

Implied authority of partner as agent of the firm 

Acts done by the partner of the firm in the usual course of business binds the firm but this implied authority ceases to exist when there is already a contrary agreement in existence. Section 19(2) of the Indian Partnership Act, 1932, puts forth a list of things which a partner cannot do on behalf of the firm:

1. Submit a dispute relating to the business of the firm to arbitration,
2. Open a bank account on behalf of the firm in his own name,
3. Compromise or relinquish any claim or portion of a claim by the firm,
4. Withdraw a suit or proceeding filed on behalf of the firm,
5. Admit any liability in a suit or proceeding against the firm,
6. Acquire immovable property on behalf of the firm,
7. Enter into partnership on behalf of the firm,
8. Transfer immovable property belonging to the firm.

Extension and restriction of partner’s implied authority

The extension and restriction of the authority of a partner depends on the existing contract between the parties in the firm. However, a partner can still carry out actions on his own authority if he has an express authority of a partner which is either by an agreement or if the usage or custom of the trade permits him to. 

Partner’s authority in an emergency 

In cases of emergency, a partner has to do all such acts to protect the firm from occurring any loss which a person of ordinary prudence will do under the similar circumstances and that action will be binding on the firm. The requirements of the section are:

1. There was an emergency situation.
2. The partner acted in light of that situation.
3. The partner did that to protect the firm from losses.
4. The act was reasonable under those circumstances.

Mode of doing the act to bind the firm 

Mentioned in Section 22 of the Indian Partnership Act, 1932, the act is done or executed by the partner in the firm should be done in the name of the firm or should be done in a manner which expresses or implies an intention to bind the firm

Effect of admissions by a partner 

As talked about in Section 23 of the Indian Partnership Act, 1932, admissions made by a partner concerning the affairs of the firms if made in the ordinary course of the partnership business are evidence against the firm. Such admissions made by the partners will bind the firm. However, the thing that needs to be noticed here is that if the admission made by a person of the firm was before the time he became a partner then it cannot be considered to be evidence against the firm.

Effect of notice to acting partner

Notice to one partner relating to the business of the firm operates as a notice to the firm. The partners to whom such notice is given must be acting in the business at that time. So notice to a dormant or a sleeping partner would not operate as a notice to the firm. A dormant or sleeping partner is someone who takes his share of the profit and of losses but is not a party to the active share of the business or partnership.

Consider a situation where the firm has appointed a person to manage its work and the person does that. What will happen if a notice is sent to such a person? This is clarified under Section 24 of the Indian Partnership Act, 1932, Section 24 explains what is the effect of the notice sent to an acting partner. It first explains what an acting partner means. An acting partner is a person who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice to the firm. If a notice is sent to such a person, it will be considered as a notice sent to a firm.

The section also provides for an exception whereby a fraud is committed on the firm by or with the consent of that partner.

Liability of a partner for acts of the firm 

The liability of all the partners of a firm jointly or together is mentioned under section 25 of the Indian Partnership Act. It lays down the fact that every partner of the firm can be held liable jointly or severally for all acts done by the firm while he or she is a partner of the firm. Such acts must be made in the name of the firm and under an ordinary course of business of the firm. Partners can be held liable jointly or individually depending on the act that has been performed and the decision made by the third party. This means that even if a partner had no role to play while deciding the act on behalf of the firm, he or she can be held liable to the third party if such act causes damage to them and they wish to sue all partners for the same.

Liability of the firm

For wrongful acts of a partner 

Section 26 of the same act deals with the liability of the firm as a whole for an act or omission of a partner in the ordinary course of the business of the firm. Such an act may be passed with the authority of other partners and if such act causes loss or damage to the third party, then the firm shall be held liable to the same extent to which the partner is held liable. The reason is that such an act or omission is made in the name of the firm in due course of the ordinary nature of business. The firm is here to be assumed as a separate entity with powers and can be sued for the loss sustained by a third party. It establishes a relationship between the partner, the firm and the third party.

For misapplication by partners 

Under Section 27 of the act, a firm can also be responsible for any misapplication made by the partner. If any partner acts under relevant authority while receiving money or property from the third party and if such money or property is further misapplied by the partner, then the liability for the same can be put on the firm if the loss is sustained by the third party.

Moreover, if the firm receives such money or property and while having custody of the same a partner having authority misapplies it, then under this situation too the firm can be made liable for such misapplication by any other third party.

Holding out 

Section 28 deals with the concept of holding out. The first part deals with anyone who (irrespective of whether he is a partner of the firm) conducts himself in a way as to represent himself as a partner of the firm and on the basis of such representation, the third party in good faith gives credit to such person, then such person shall be liable as if he were a partner of the firm under Section 25 of the act for his conduct. It does not matter whether such a person is aware that the third party gave credit on the basis of having good faith in the representation made by him.

The second part of the section deals with a person who was a partner of the firm and after his death, his partnership has been automatically cancelled. In such a situation if the firm still continues under the old name consisting of the deceased partner’s name and if the business is done under such name, then this act of the firm does not make the legal representatives of the deceased partner liable to any third party which sustained losses due to such act of the firm on the grounds that the deceased partner is no longer holding any responsibility or liability to the firm after his death. Hence, all acts after his death shall not hold out his legal representatives or his estate to be liable to any extent either jointly or severally.

Minors admitted as partners

According to Section 30 of the Partnership Act, 1932, someone who is recognised as a minor by the law may not be a partner of the firm but the minor with the consent of all the partners in the firm can be given the benefits of the partnership. Minors are considered to be unfit to be able to make decisions for themselves by the law. Keeping that in mind, when a minor is admitted in a partnership setup, he is liable for his shares in the partnership but not liable for his actions.

After the minor has attained majority, at any time within six months or of his obtaining the knowledge that he has been admitted to the benefits of the partnership, whichever date is later, the minor has to issue a public notice announcing that he has elected to become a partner in the firm. Another option available to him is declaring that he has elected not to become a partner in the firm, in case if he fails to give that notice, he shall be admitted into the firm as a partner after the expiration of the said six-month term.

In cases when the minor decides to be a partner in the firm, as mentioned in Section 30 (7) of the said Act, the minor from then onwards personally becomes responsible towards the third parties in relation to all the acts done by the firm and his share in the profits and property remain the same as they were when he was a minor.

In cases when the minor chooses to not be a partner, this clause is talked about in Section 30(8) of the said Act, what changes is that he becomes eligible to sue the partners of the firm regarding his share of the property and the profit and his rights and liabilities continue the way they were when he was a minor and that is only subject to change the day he gives out the public notice. 

Conclusion

This article talks about different aspects of a partnership firm by taking references from the Indian Partnership Act, 1932. This article discusses how partners are liable for the third parties, under what circumstances can partners be granted permission to act on behalf of the firm, what limitations are put forth by the said act while the partners act on behalf of the firm, what is implied authority in a partnership setup, what are the options available to the partners in case of emergency; the article also discusses the partners’ authority under emergency situations and how the partner is supposed to act in those situations. This article also talks about how minors can be included in a partnership setup and what stages they have to go through in order to avail their benefits and what happens when a minor accepts or rejects being a partner to the firm. 

References

1. https://studyduniya.com/app/study_post.php?course=CA%20CPT&subject=Mercantile%20Law&chapter=The%20Indian%20Partnership%20Act,1932&id=1653
2. https://www.toppr.com/guides/business-laws/the-indian-partnership-act/relation-of-partners-to-third-parties/
3. https://www.mca.gov.in/Ministry/actsbills/pdf/Partnership_Act_1932.pdf 

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This article is written by Paridhi Dave, a student at the Institute of Law, Nirma University. This is an exhaustive article that elucidates upon the top Conservation Projects for wildlife in India along with case laws.

Introduction

Wildlife is defined under Section 2(37) of the Wildlife Protection Act, 1972 to include any animal, either aquatic or terrestrial and vegetation that forms a part of any habitat.

Wildlife plays a significant role in the ecosystem. It has a crucial role in balancing the environment. The importance also extends to the spheres of economic importance, investigatory importance, gene bank, conservation of biological diversities, cultural importance, etc.

In India, there are various laws for the protection and conservation of wildlife, as well as overall biodiversity. The Wildlife Protection Act, 1972 is legislation that has been implemented for the protection of wild animals, birds, and plants with a view of ensuring the ecological and environmental security of India. In addition, a Wildlife Crime Control Bureau has also been established to curb the illegal trade of wildlife, including endangered species.

Legal Provisions governing wildlife in India

In the Constitution of India, 1950 under Article 51A(g), it is a fundamental duty of the citizens to protect wildlife and have compassion for living creatures. Apart from this, Article 48A provides that it is also the duty of the State to protect, safeguard and work for the improvement of forests and wildlife of the country. The subject of protection of wild animals and birds is enlisted under the Concurrent List of the Constitution, i.e., Schedule VII List III. This depicts that both the Union and the State Government have the power to govern the subject.

International Treaties governing Wildlife

International wildlife law can prove to be a useful tool in enhancing the conservation of wildlife. There are several global and regional instruments for wildlife conservation. Some of these are Convention on International Trade in Endangered Species (CITES), Convention on Migratory Species (CMS), Convention on Biological Diversity (CBD), etc.

In this article, the conservation projects which have been implemented in India are discussed.

Conservation projects

Conservation has not been defined in Indian statutes per se, but in a general sense means ‘preservation, protection, or restoration of the natural environment and of wildlife’.

In this era of the climate crisis, the destruction of nature, environment, and wildlife is highly evident. There is an irreversible depletion of natural resources due to industrialization and globalisation.

Conservation projects are an effort to maintain and use natural resources in a sustainable manner. This is to ensure that future generations have access to these resources. Wildlife is a part of nature and therefore there is a need to protect them.

Conservation projects are established to integrate evolutionary theory with environmental reality. This helps in predicting how wildlife will react to current and future environmental changes. It is established for their survival since global warming, farming, population growth, pollution and hunting pose a great danger to them. 

Need for conservation projects

In historical times, wildlife was traditionally hunted which led to a decrease in the population of various species. 

In the case of State of Bihar vs. Murad Ali Khan (1989), it was held that hunting is an offence under the Wildlife Protection Act, 1972. The term hunting has been comprehensively defined under Section 2(16) of the Wildlife Protection Act, 1972. In this case, the accused were alleged for shooting and killing an elephant in the Kundurugutu Range Forest. They also removed the ivory tusks of the elephant. Subsequently, the Forest Range Officer lodged a complaint under Section 51 of the Wildlife Act.

The aforementioned instance shows that people still continued with harmful practices in spite of a legislation. Therefore, the need for conservation projects arose and as a result, India established several projects.

We need conservation projects:

1. To conserve wildlife;
2. To conserve habitats;
3. To work for the welfare of individual wild animals;
4. To protect biodiversity;
5. To sustain agricultural activities;
6. To assist eco-tourism;
7. To protect ecological stability; 
8. To benefit from the medicinal value of plants;
9. To promote pollination;
10. To preserve heritage and culture; and
11. To protect livelihood and knowledge of indigenous tribes.

It is extremely crucial that these creatures are protected from poaching and hunting. This is because every species has a pivotal role to play in the health and the diversity of the environment. If stringent measures are not taken, then wildlife will dwindle at an alarming rate. This will eventually lead to their extinction. The ecosystem is entirely about the symbiotic relationships between different species. There is a need for conservation because the extinction of a single species can pose disastrous consequences on the entire food-chain and food-web.

Top 5 conservation Projects

Project Snow Leopard

The species of Snow Leopard inhabits the Himalayan landscape as well as states such as Jammu and Kashmir, Uttarakhand, Arunachal Pradesh, Sikkim, and Himachal Pradesh. Schedule I of the Wildlife Protection Act, 1972 and IUCN declare the species as a ‘vulnerable’ category. Additionally, the species is listed in CITES and CMS which reveals that the highest conservation status has been accorded to them, both nationally and internationally.

The International Snow Leopard Day is celebrated on 23rd October each year. The Government of India launched the ‘First National Protocol on Snow Leopard Population Assessment’ in 2019. This involves the use of technology such as camera traps and scientific surveys. This initiative was developed under the global protocol of Global Snow Leopard and Ecosystem Protection Program. This program is an intergovernmental alliance of 12 snow leopard range countries, India, Pakistan, Nepal, Russia, China, Bhutan, Afghanistan, Tajikistan, Uzbekistan, Kazakhstan, Kyrgyzstan, Mongolia. The Population Assessment of World’s Snow Leopard (PAWS) is a collaborative effort of these countries.

The primary threats to snow leopards were loss of habitat, poaching, and man-animal conflict. In Sansar Chand vs State of Rajasthan (2010), the organized nature of wildlife crime has been highlighted. In this case, it was mentioned that an FIR was filed against his younger brother who was also involved in illicit trade of wild animals. One snow leopard skin was seized from the younger brother, Narayan Chand. He was also named as an accused under Section 55 of the Wildlife Act, 1972 in this case. There are several other cases pending against him.

Project Snow Leopard launched in 2009, aims to promote inclusivity and participatory approach for the conservation of the species.

To add to this project, SECURE Himalaya (Securing livelihoods, conservation, sustainable use and restoration of high range Himalayan ecosystems) is another initiative taken to conserve high altitude biodiversity. This is operational in Sikkim, Himachal Pradesh, Uttarakhand, and Jammu & Kashmir. The key component of the project is the protection of snow leopards and other endangered species. The six-year-long project also focuses on securing livelihoods of the local public and enhancing enforcement to reduce wildlife crime. The government has allocated 130 crores for the project, to protect around 200 snow leopards in the Trans and Greater Himalayan Region. 

In addition, SOS or Save Our Snow Leopards is an initiative launched by WWF India in collaboration with Tata Housing Development Company in 2014. The project aims at assessing the status and distribution of snow leopards through setting up camera traps. It also aims to promote conservation strategies. 

The Protected Areas include:

1. The Sacred Himalayan Landscape
2. Kibber Wildlife Sanctuary
3. Great Himalayan National Park
4. Hemis National Park
5. Dibang Wildlife Sanctuary
6. Pin Valley National Park

The Ladakh region is setting a prime example for the other states through its conservatory practices to protect the Snow Leopards. Efficient collaboration among the NGOs, local public and Wildlife Department has helped in the prevention of man-animal conflict.

WWF-India installed around 13 Predator Proof Corral Pens which positively impacted the families living in 13 villages of Ladakh. Corrals are enclosures for capturing or confining livestock. It was established through a study that if people were compensated for the loss of their livestock, they would not resort to ‘revenge-killing.’ This has led to less killing of the snow leopards. 

The Jammu and Kashmir forest officials, in 2018, began working on estimation of the population of snow leopards in Ladakh. This estimation is based on the protocols of All India Tiger Estimation. This initiative requires a combined effort of the State Forest Department, Ministry of Environment and Forest at the Centre and Wildlife Institute of India.

Project Tiger

The population of Indian Tigers was drastically declining towards the end of the 20th century. Resultantly, a nation-wide Tiger Census was conducted in 1972 to estimate the population of tigers.

Large scale development activities including dams, mines, railway projects and establishment of industries led to deforestation and further loss of habitat. Since the body parts of the tigers are used for traditional Chinese medicine, they were killed in high numbers. All these factors collectively led to a decline in the population of tigers.

In the case of Sansar Chand vs. State of Rajasthan(2010), the appellant was arrested in 1974 for poaching tigers and smuggling their body parts to various countries, particularly China. He was allegedly involved in 57 wildlife cases between 1974 and 2005. He was convicted in all the offences registered against him. The Supreme Court also requested the Central and the State Government to take stringent actions against such offenders. 

The acts of poaching, killing, maiming, etc. of any animal are offences under Section 428 and Section 429 of the Indian Penal Code, 1860. The punishment under S.428 is imprisonment for two years and under S.429, imprisonment for five years.

In 1973, Project Tiger was launched in the Palamau Tiger Reserve, Jim Corbett National Park, Uttarakhand. This is a centrally sponsored scheme of the Ministry of Environment and Forests. It is primarily governed under the Wildlife Act, 1972 itself.The project is administered by the National Tiger Conservation Authority, which was established in December 2005. 

The aim of the project is the protection of tigers from extinction, by ensuring that there is a viable population of the species in their natural habitats. The Project began from nine reserves in 1973-74 and has substantially grown to fifty reserves. The Project has seen significant success in the recovery of the habitat and the population of the tigers in the reserved areas. 

In 2019, the Tiger Census has shown that there are 2967 Bengal Tigers in India.

Measures Taken For Conservation of Tigers under the Wildlife Act, 1972

Legal Measures

1. The Project has been converted into a statutory authority by providing enabling provisions in the Wildlife Protection Act, 1972. A National Tiger Conservation Authority has been constituted under Section 38L of the Act. The Tiger and Other Endangered Species Crime Control Bureau has also been established under Section 38Z of the Act.
2. The punishment for offences related to tiger reserves and its core areas has been enhanced.
3. Several treaties have been signed with neighbouring countries such as Nepal, China, and Bangladesh for controlling trans-boundary illegal wildlife trade and for tiger conservation.

Administrative Measures

1. Anti-poaching activities have been strengthened, especially monsoon patrolling. This involves deploying anti-poaching squads.
2. A National Tiger Conservation Authority has been constituted.
3. A Special Tiger Protection Force has been established.
4. Tiger Conservation Foundation has been created. 

Financial Measures

• Pecuniary measures include the provision of financial and technical help via Centrally Sponsored Schemes through the Project itself and Integrated Development of Wildlife Habitats.

Tiger Task Force

It is essential that for proper implementation of the Project, a statutory authority having sufficient legal backing is established. The National Board for Wildlife recommended the set-up of a Task Force to look into the issues arising in the implementation of tiger conservation initiatives across the country. This led to the creation of the Tiger Task Force. The TTF recommended the establishment of the National Tiger Conservation Authority (NTCA).

Core and Buffer Zones

The Wildlife Protection Act, 1972 under Section 38V lays down the tiger conservation plan. Under sub-section (4), it is laid down that the State Government shall ensure the overall development of the people living in tiger bearing forests or a tiger reserve. For this purpose, under Section 38V(4)(i), the core or critical tiger habitat areas are established in national parks and sanctuaries. Under Section 38V(4)(ii), the buffer or peripheral area is identified and established.

• Core Zones

(i) The areas included in the core zones are notified by the State Government after its consultation with an Expert Committee which is constituted for the purpose. 

(ii) It is a requirement that these areas are solely used for tiger conservation but should not infringe upon the rights of the Scheduled Tribes or other forest dwellers. 

(iii) Further, this area must be kept free from biotic disturbances and forestry operations. The collection of minor forest produce, grazing and other human disturbances are not allowed within this zone.

• Buffer Zones

(i) The buffer zone is the area that stands peripheral to the core tiger habitat. It acts as a supplementary habitat and also offers scope for the co-existence of human activities.

(ii) The area is determined by the concerned Gram Sabha after its consultation with an Expert Committee which is constituted for the purpose. 

Project Elephant

Project Elephant was launched in 1992 and is a centrally sponsored scheme. Elephants face the threat of attrition, as opposed to extinction faced by Tigers. The project aims at assisting the management and protection of elephants in the States which have free-ranging populations of wild elephants. 

The Elephants’ Preservation Act, 1879 has also been formulated for the protection of elephants across the country. India has over 27,000 elephants spread over 26 elephant reserves but only 65% of the elephant corridors are in protected areas. 

The protection of elephants is also important because it has been declared as a national heritage of the country. This was done by the Government of India in 2010 after the Standing Committee on the National Board of Wildlife gave its recommendations. This step was taken to create awareness about the dwindling population of the elephants so that people would actively participate in its conservation.

The objectives of the project are:

1. Protection of Elephants, Elephant Corridors and their Habitats;
2. Prevention of Man-Animal Conflicts; and
3. Ensuring the welfare of domesticated elephants.

This project is crucial because it protects the elephants from hunters and poachers and thereby curb illegal trading of ivory. 

In Balram Kumawat vs. Union of India & Ors. (2003), the appellants had imported mammoth fossils, which is said to be an extinct species. They indulged in trading mammoth ivory, citing that it was not banned under the Wildlife Act or CITES.

The Court cited the case of State of West Bengal vs. Union of India (1962) wherein it was said that the legislative intent should be derived by taking the entire statute into consideration, not just some provisions. The Court held that the ban on ivory trading extended to ivory of every description, so that elephant poaching could be curbed.

In M/s Ivory Traders and Ors. vs Union of India and Ors. (1997), the petitioners were ivory traders. They imported mammoth ivory from Russia and Hong Kong. They pleaded that they were affected by the Wildlife Amendment Act, 1991. 

The Court held that the use of ivory for commercial purposes is explicitly banned. The Court interpreted that the words ‘ivory imported into India’ as defined under Section 49B(1)(a)(i) includes all descriptions of ivory, whether elephant or mammoth. It dismissed the writ petition.

In Indian Handicrafts Emporium and Ors. vs. Union of India & Ors. (2003), the Supreme Court upheld the constitutional validity of the clause ‘ivory imported into India’ as defined under Section 49B(1)(a)(i). It said that the restrictions imposed were reasonable as the legislative intent was to plug the loopholes in the Act. 

In this case, the appellants imported ivory from African countries and manufactured several articles out of them. They filed a writ petition questioning the constitutional validity of the 1991 Wildlife (Protection) Amendment Act as the Act prohibited trade of imported ivory, which affected their rights under Article 19(1)(g) of the Indian Constitution.

The famous case of Veerappan also highlights the extent of wildlife crime. He killed 138 people and 1000 elephants for the purposes of poaching and smuggling. He was later killed in October 2004 in Operation Cocoon.

Ecological restoration of the natural habitats and migratory routes is another important feature of this project. An elephant task force was also established by the Ministry of Environment and Forests to spread the idea of friendship between elephants and people (Take Gajah to the Prajah).

Elephant Corridors

Elephant Corridors are narrow strips of forested lands which act as a bridge to larger elephant habitats. This conduit is essential for the movement of the elephants and to enhance the survival rate of the species in the wild. The National Green Tribunal in the case of Rohit Chaudhary vs. Union of India & Ors. (2016)  has ruled that elephants have the first right on the forests. It ordered the demolition of a boundary wall in the middle of an elephant corridor in Assam’s Deopahar Reserve Forest. The elephants also have a right to passage.

In this case, some elephants died after the wall was built. It was determined that there was a destruction of the environment through the establishment of the wall. Hence, Numaligarh Refinery Limited was held liable to pay the environmental compensation based on the ‘polluters pay principle’ and the ‘precautionary principle.’ 

It was held in the case of Vellore Citizens Forum vs. Union of India (1996), that these aforementioned principles are essential features of sustainable development. Further, it was ruled that no power fencing could be erected on the elephant corridors. This judgment was upheld by the Supreme Court.

There are approximately 88 elephant corridors in India and are distributed in the following manner. 

The corridors are categorized into high ecological priority and medium priority. The categorization is on the basis of the regularity of elephant movement, the size of the population, the area of habitats connected and the presence of other routes nearby. The corridors are also graded on the basis of conservation feasibility. Further, only about 77.3% of these corridors are regularly being used by the species. 

The major threat to these corridors is the loss of habitat due to fragmentation of forests and other protected areas. The fragmentation is due to an increase in human activities and industrialization, which includes mining activities. 

The Supreme Court ordered restraining all kinds of mining and related activities along the Kaziranga National Park area, in the case of In Re: T.N. Godavarman Thirumulpad vs. Union of India & Ors. (2019) 

It is crucial that there should be a fusion of elephant corridors with nearby protected areas and reserved forests. In other areas, ecologically sensitive areas or conservation reserves can be declared. This is because the elephants have a habit of constantly foraging for food and water, and they are threatened due to habitat loss, degradation or shrinkage. These paths allow them to move freely and uninterrupted. It is important that awareness is spread and sensitization takes place.

The Supreme Court in the case of A. Rangarajan vs. Union of India (2018), passed an order in 2018 to shut down 27 resorts and hotels that were built illegally on the Nilgiris Elephant Corridors without prior approval. This endangered the safe passage, which is the basic purpose of an elephant corridor.

Measures for Protection of Elephants

Apart from the project, there are other programs which have been implemented for the protection of elephants.

• Monitoring of Illegal Killing of Elephants Program (MIKE)

This program began in 2003 in South Asia. MIKE was established under CITES  by resolution 10.10. There are approximately 45 countries across the world which are included in the program. The aim is to provide information which the elephant range countries require for making proper arrangements and enforcement decisions. It is also for the promotion of institutional capacity in these States for long term conservation and management of the elephants.

The objectives of the program are to measure the rate of illegal poaching of elephants, to determine factors responsible for changes in the elephant population, and collection of data on a monthly basis from all MIKE sites.

• Haathi Mere Saathi

This campaign was launched by the Ministry of Environment and Forest in collaboration with Wildlife Trust of India. The aim is to improve the protection, conservation and welfare of elephants in India. The campaign was launched at the Elephant-8 ministerial meeting held in Delhi, in 2011.

The objective of the campaign is to spread public awareness and for developing friendship and companionship between the local public and elephants. The campaign also envisions setting up of Gajah Centres in elephant landscapes across the country, to spread awareness about their plights and invoke public participation. The mascot of the campaign is Gaju.

Project Hangul 

In the 1970s, the Jammu and Kashmir Government in association with the International Union for Conservation of Nature (IUCN) and World Wildlife Fund (WWF) designed a project for the protection and conservation of the Kashmir Red Stag and its habitat. This project came to be known as Project Hangul.

Hangul or Kashmir Red Stag is a subspecies of the Central Asian Red Deer, which is native to northern India. It is mostly found in the dense riverine forests of Kashmir Valley, some parts of Himachal Pradesh, Sindh Valley, Dachigam National Park and in the forests of Kishtwar. It is also the state animal of Jammu and Kashmir. The project was started since Hanguls were enlisted in the critically endangered species list prepared by IUCN. The species is scattered through an area of 141 square kilometres in the Dachigam National Park.

The population of these deers was once approximately 5,000 in number. Problems such as overgrazing of domestic livestock in the habitat of Hanguls and criminal activities like poaching, illicit trading lead to the decline in the population of Hangul. Then, their population dwindled to as low as 150 by the end of 1970. The aim of the project was to create enclosures for artificial breeding of the species.

After the implementation of the project, the numbers rose to 340 by 1980. But over a course of time, the project however failed due to several factors. As per the census of 2008, their population was approximately 160. 

Fallacies in Project Hangul

The project faced a major setback because the State Government allowed sheep breeding and research farms to be set up in the park. This covered almost 100 hectares of the park area.

Over a period of time, this proved to be a major disturbance. It is believed that several infectious zoonotic diseases could have been transmitted through the sheep to the stags. Due to habitat fragmentation and biotic interference, it posed a threat to their population. It took the government 12 years to arrive at the decision of relocation of sheep from Dachigam National Park. This has led to a tussle between the wildlife department and the sheep husbandry department. Although the state government passed an order in 2005 to relocate the sheep, it continued to exist because the successive regimes failed to find a place for relocation.

Further, there was no local participation of the people in the project. The Gujjars, Bakerwals, Nambardars, Chowkidars and Patwaris were not actively involved in it. 

The Government also allowed the establishment of cement factories around the Park. Lastly, the onset of militant activities in the area was the final straw in the failure of the conservation project.

In 2009, the project was reintroduced as ‘Save Kashmir’s Red Deer Hangul’. Plans were made to breed them in captivity so as to increase their chances of survival. Funds were released for their captive breeding. Conservation breeding centres were opened in Pulwama, Sikargah Tral and Kangan. As per the latest census of 2017, there is an increase in the population of Hanguls. There are now 182 Hanguls in the Dachigam National Park.

Crocodile Conservation Project

The species of crocodilians was threatened in India due to the increasing number of indiscriminate killings. They were poached for commercial purposes, which led to a drastic decline in their population. Apart from this, there was a loss of habitat due to the increasing development projects and industrialization.

In light of this situation, Project Crocodile was introduced in 1975. The primary focus was on breeding and rearing in captivity. The initiative was taken by the Government of India in association with the Food and Agriculture Organization and United Nations Development Fund.  Due to the implementation of this project, there is an increase in the population of crocodiles, which has saved them from extinction. The protected areas include National Chambal Sanctuary and Katerniaghat Wildlife Sanctuary.

There are mainly three species of crocodilians:

1. Gharial or Gavialis Gangeticus
2. Mugger or Crocodylus Palustris
3. Saltwater Crocodile or Crocodylus Porosus

The strategy adopted for rehabilitation of these species was to offer them protection in their own habitats. The practice of captive rearing was followed and subsequently, they were released. The methods of ‘grow and release’ and ‘rear and release’ were used. 

The objective of this project is to protect the remaining population of the species, to promote research which would help in improving management, to promote the rebuilding of their habitat and to encourage local public participation. 

The project has saved the species from the verge of extinction, as they were enlisted as critically endangered in the IUCN Red List. It has also been helpful in the creation of wetland sanctuaries which has led to active management of other species as well. These species include turtles, Gangetic dolphins, lizards and others.

Conclusion

It can be concluded that the conservation of wildlife is important to maintain stability in the ecosystem. The expansion of human activities into the habitats of these species has led to considerable damage in the environment. The implementation of wildlife laws has to be more strict.

An attempt has been made through these projects for mitigating the harm caused and to prevent future disruptions. The human being as the most intelligent species on the earth has to take care that our actions and omissions do not harm the wildlife.

The extinction of wildlife can pose extreme dangers to the entire planet. When one crucial part of the ecosystem is eliminated, the entire planet suffers.

References

1. http://nja.nic.in/Concluded_Programmes/2018-19/P-1102_PPTs/3.The%20Wildlife%20(Protection)%20Act,%201972.pdf
2. http://www.asiannature.org/sites/default/files/2005%20Menon%20Sukumar%20Right-of-Passage.pdf 
3. https://www.symlaw.edu.in/files/Empirical-Study-on-Implementation-of-Wildlife-Protection-Laws-FinalReport_Oct16.pdf 
4. https://www.wti.org.in/wp-content/uploads/2017/08/pub_right_of_passage-1.pdf 
5. https://www.forests.tn.gov.in/tnforest/app/webroot/img/document/news/news/Expert_Committee_Report.pdf 

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This article is written by Vanya Verma from Alliance University. This is an exhaustive article which deals with murder and culpable homicide under the Indian Penal Code along with its provisions, punishment, illustrations and case laws.

Introduction

Section 299 and Section 300 of Indian Penal Code deal with murder. All murders are culpable homicides but all culpable homicides are not murders. Culpable Homicide is genus and murder is its species, thus, murder is a culpable homicide but all culpable homicide are not murder. 

The word homicide is derived from Latin where homo means man while the meaning of cide is I cut. Thus, the killing of a man by a man is the meaning of homicide. Culpable homicide is punishable by law. Homicide can be lawful or unlawful. Culpable homicide is further divided into two categories: 

• Culpable homicide amounting to murder.
• Culpable homicide not amounting to murder.

Murder (Section 300)

Murder is defined under Section 300 of the Indian Penal Code. According to this Act, culpable homicide is considered as murder if:

• The act is committed with an intention to cause death.
• The act is done with the intention of causing such bodily injury which the offender has knowledge that it would result in death.
• The person has the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act, this would amount to murder.

Ingredients of Murder

• Causing death: There should be an intention of causing death,
• Doing an act: There should be an intention to cause such bodily injury that is likely to cause death, or
• The act must be done: with the knowledge that the act is likely to cause the death of another. 

Illustrations

• A shoots W with an intention of killing him. As a result, W dies in that consequence, murder is committed by A.
• D intentionally gives a sword-cut to R that was sufficient to cause the death of anyone in the ordinary course of nature. As a consequence, R dies. Here, D is guilty of murder though he didn’t intend to cause R’s death. 

Culpable homicide (Section 299)

Culpable homicide is covered under Section 299 of the Indian Penal Code. Culpable homicide means the act done by a person which causes the death of another with an intention of causing death or causing such bodily injury that is likely to cause death, or he has knowledge that the act committed by him is likely to cause death, is said to commit the offence of Culpable homicide.

Illustration 

• X induces Y to put the fire at the place having the knowledge that Z was sitting behind a covered area. Here, X is liable for the offence of culpable homicide, as he had prior knowledge that Z was present in that area and his actions will lead to Z’s death. Here, intention makes X liable to culpable homicide.
• Y is diagnosed with a terminal illness and to live from day to day he needs certain drugs. Z confines Y in a room and prevents him from taking his medication. Here, Z is guilty of culpable homicide.

Cases

In the case of Reg. v. Govinda, 1876 the accused had knocked down his wife, kept a knee on her chest and gave two to three violent blows with the closed fist on her face. This act produced extraversion of blood on her brain and afterwards, the wife died due to this. The act was not committed with the intention of causing death and the bodily injury was not sufficient to cause death in the ordinary course of nature. The accused was liable to culpable homicide not amounting to murder.

The difference between murder and culpable homicide is intention. If the intention is present the crime is said to be committed under Section 300 of IPC. If the intention is absent, then the crime is dealt under section 300 of IPC.

Exceptions to Section 300 of IPC where culpable homicide is not considered as murder

Sudden and grave provocation 

If the offender is deprived of the power of self-control due to sudden and grave provocation, and his act causes the death of the person who provoked or death of any other person by accident or mistake.

This exception is subject to a certain proviso, that is:

• That the provocation is not sought or is voluntarily provoked by the offender to be used as an excuse for killing or causing any harm to the person.
• That the provocation is not given by anything that is done in obedience to the law, or by a public servant while exercising the powers lawfully of a public servant.
• That the provocation is not done while doing any lawful exercise of the right of private defence.

Illustration

A is given grave and sudden provocation by C. A fires at C as a result of this provocation. A didn’t intend or have knowledge that his act is likely to kill C, who was out of A’s sight. A kills C. A is not liable to murder but is liable to culpable homicide.

Cases

• K.M. Nanavati v. State of Maharashtra, 1961

In this case, the Supreme Court had extensively explained the law relating to provocation in India. It was observed by the Court:

• The test of “sudden and grave provocation” is whether a reasonable man, who belongs to the same society as the accused, is placed in the situation in which the accused was placed would have been so provoked as to lose his self-control.
• Under certain circumstances, words and gestures may also lead to sudden and grave provocation to an accused, so as to bring his act under an exception. 
• The mental background of the victim can be taken into consideration, taking account of his previous act to ascertain whether the subsequent act leads to sudden and grave provocation for committing the offence.
• The fatal blow clearly should trace the influence of passion that arises from the sudden and grave provocation. It should not be after the provocation has been cooled down due to lapse of time, otherwise, it will give room and scope to the accused for altering the evidence.
• Muthu v. state of Tamil Nadu, 2007

ln this case, it was held by the Supreme Court that constant harassment might deprive the power of self-control, amounting to sudden and grave provocation.

When the person exceeds his right to private defence 

Where the act is committed to defend them from further harm. If the accused intentionally exceeds his right to private defence, then he is liable to murder. If it is unintentional, then the accused will be liable to culpable homicide not amounting to murder.

 Illustration

• X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn out by Y, X persists the assault. Y believes that he had no way to prevent himself from being flogged by X, Y fires at X. X is liable to culpable homicide not amounting to murder.

 Case

• Nathan v. State of Madras, 1972

In this case, the landlord was trying forcefully to evict the accused. The accused killed the landlord while exercising his right to private defence. There was no fear of death to the accused as the deceased was not holding any deadly weapon that could have caused grievous hurt or death of the accused. The deceased had no intention to kill the accused, thus, the accused exceeded his right of private defence. The accused was liable to culpable homicide not amounting to murder.

Culpable homicide in case of Public Servant 

The act is done by a public servant who is acting to promote public justice. If the public servant commits an act which is necessary to discharge his duty as is done in good faith and he believes it to be lawful.

 Illustration

• If the police officer goes to arrest a person, the person tries to run away and during that incident, if the police officer shoots the person, the police officer will not be guilty of murder.

 Case

• Dakhi Singh v. State, 1955

In this case, the appellant was the constable of Railway Protection Force, while he was on duty he killed a fireman unintentionally, while he was firing bullet shots to catch the thief. The constable was entitled to benefit under this section section’s benefit.

Sudden Fight

The sudden fight is when the fight is unexpected or premeditated. Both the parties don’t have any intention to kill or cause the death of another. The fact that which party had assaulted or offered a provocation first is not important.

Case

Radhey Shyam and Anr. v. State of Uttar Pradesh, 2018

In this case, the appellant was extremely angry when he got to know that his calf had come to the deceased place. The appellant started abusing the deceased, when it was tried to stop him, the appellant fired at the deceased. The deceased was unarmed at that time, thus the appellant had an intention to kill the deceased, hence, he was held liable to murder.

Consent

If the act is committed with the consent of the victim. The consent should be unconditional, unequivocal and without any sort of reservation.

Illustration

• A instigated F who was under 18 years of age, to commit suicide. F was incapable of giving consent to his own death. Therefore, A is guilty of murder.
• X killed his stepfather Y, who was old and infirm. X killed Y with his consent. This was punishable under Section 304.

Culpable Homicide in the exercise of good faith

Culpable homicide does not amount to murder if it is done in exercise of good faith in order to protect the private or public property. If the act committed by a person exceeds its power provided by law and kills someone in order to save someone or something, then the act does not amount to murder.

Illustration

Y attempts to horsewhip Z, not to cause grievous hurt to Z. Z takes out a pistol, Y persists to the assault. Z in good faith in order to prevent himself from being horsewhipped, shoots at Y, such that he dies because of that. Z is guilty of culpable homicide and not murder. 

The act is punishable under Section 302 of IPC if it does not fall under the exception of Section 300 of IPC.

Culpable Homicide by causing the death of the person other than the person whose death was intended (Section 301)

Under Section 301 of IPC, Culpable Homicide amounts to murder even if the person who was not intended to die, dies due to the act committed by the perpetrator, though he had planned to murder someone else. 

In other words, there is no distinction in the eyes of law between cases where the death is caused to an intended person or whether it results in the death of an unintended person.

Case

Abdul Ise Suleman v. State of Gujarat, 1994

In this case, the accused persons had freely fired on the fleeing complainant party in a commercial locality in the course of an altercation. In the first shot, the person was injured, while a ten-year-old son of a complainant was dead in the 2nd shot. It was held by the Supreme Court that the child death was intentional and hence applies Section 300 read with Section 301 of IPC. 

Causing Death by negligence (Section 304A) 

Under Section 304A of IPC, if someone causes the death of another due to rash or negligent act that does not amount to culpable homicide, shall be punished with imprisonment which can extend up to two years or with fine or both.

Cases

• State of Karnataka v. Mohd. Ismail, 1988

In this case, a 28-year-old motorcyclist had pushed an 85-year-old man from behind. The old man died on spot due to head injuries attained at the time of the accident. The death was a result of rash and negligent conduct.

• M.H. Lokre v. State of Maharashtra, 1971

In this case, the appellant who was not driving rashly was not held guilty under this section for causing the death of the person who came under the wheels of the vehicle while suddenly crossing the road. A man however vigilant and slowly he might be driving he cannot avert an accident if a person suddenly comes in front of his vehicle while suddenly crossing the road.

Dowry Death (Section 304 B)

Section 304 B of IPC states that if within seven years of marriage a woman dies by a bodily injury or burns, or it is revealed that before the marriage the woman was exposed to cruelty or harassment by her husband or by any other relative of her husband, in connection to the demand of dowry then the death of the woman will be considered as the dowry death.

The punishment for Dowry death is imprisonment for a minimum of seven years or a maximum of imprisonment for life. 

Attempt to murder (Section 307)

Section 307 of IPC deals with an attempt to murder. Whoever commits an act with an intention or knowledge and under such circumstances, that causes the death of the person would be held guilty of murder and shall be punished with imprisonment for a term that can extend up to ten years, and shall be liable to fine, and if that act causes hurt to a person, the offender shall be liable to imprisonment for life, or such other punishment as decided by the Court of law.

Illustrations

• R shoots S with an intention to kill her. If under such circumstances death has ensued, R will be guilty of murder.
• P, with an intention to cause death to Q, who is a child of seven years of age, leaves him in a deserted land. P commits an offence under this section, though the death of the child is not ensured.

Attempt to commit Culpable Homicide (Section 308)

Under Section 308 of IPC, whoever commits an act with such intention or such knowledge and under such circumstances, and if that act causes death, he would be guilty of culpable homicide not amounting to murder and shall be punished with imprisonment that can extend up to three years, or with fine or both. If the act causes hurt to any person, the offender shall be punished with imprisonment that can extend to seven years or with fine or both.

Illustration

• A due to sudden and grave provocation fires at Z. If Z dies due to this incident, A will be guilty of culpable homicide not amounting to murder.

Punishment

Punishment for murder (Section 302)

The punishment for murder is provided under Section 302 of IPC. Under this section whoever commits murder is punished with:

• Death
• Life imprisonment
• Fine

Punishment for Culpable Homicide (Section 304)

Culpable homicide is not murder if it falls under any one of the five exceptions given under Section 300. Section 304 of IPC describes the punishments for culpable homicide not amounting to murder, that is:

• Imprisonment for life,
• Imprisonment for either description of a term extending up to ten years,
• Fine.

Punishment for murder by life-convict (Section 303)

Life convict is a person who is found guilty of a crime and is sentenced to life imprisonment by the Court. Section 303 of IPC provides that if any person commits murder who is sentenced with life imprisonment shall be punishable to death. Section 303 is only applicable to the person who is convicted under section 302 read with Section 34 or Section 302 read with Section 149. Section 303 makes capital punishment necessary for the person who is convicted for life imprisonment commits murder. 

It was held by the Court that if a person is released by remission who was undergoing imprisonment for life for murder, is not considered under the sentence of imprisonment for life any longer. If the murder is committed during the period of remission, it will not be considered while giving punishment under Section 303 of IPC. Thus, the accused shall not be given imprisonment for life.

In the case of Mithu v. State of Punjab, 1983 the constitutional validity of Section 303 of IPC was questioned. Section 303 was held to be arbitrary and unconstitutional as it was held by the Court that mandatory death penalty to a life convict is arbitrary and unreasonable, due to:

• There is already a lot of stress that a life convict is exposed to in jail.
• No justification is found for prescribing a mandatory death sentence for the offence of murder that is committed inside or outside the prison by the person under life imprisonment.
• A standard mandatory sentence in the form of death fails to take into account the facts and circumstances of each act.

Conviction of a Pregnant Woman

Section 416 of the Code of Criminal Procedure, 1973 deals with the postponement of capital sentences given to a pregnant woman. Under this Section, if the pregnant woman is convicted, the High Court can postpone the execution of the sentence or reduce the sentence to life imprisonment.

Under this section, the rights of an unborn child are protected. The main aim of this section is to protect the child from being killed who didn’t make any mistake. The pregnancy should be proved with proper medical examination and reports.

Conviction of a Minor

According to the Juvenile Justice (Care and Protection of Children) Act, 2000, the individuals who were under 18 years of age, when the crime was committed cannot be executed. The Juvenile Justice Act, 2000 was replaced by The Juvenile Justice Act, 2015. The amended Act allows the person from 16 to 18 years of age to be tried as an adult if they are found to be liable for any heinous crime like rape and murder. 

Sentence to Co-accused

Section 30 of the Indian Evidence Act provides confession of the co-accused. The persons who are accused of the same crime shall be awarded the same amount of imprisonment. The confession made co-accused holds a proper evidentiary value. It is ensured by the parity principle that the sentence should be similar for the same offenders or persons who are convicted of the same crime. Fairness and equality are ensured by this principle while awarding the sentences. 

Landmark Judgments

Jag Mohan Singh v. State of Uttar Pradesh, 1972

In this case, there was a murder which came up after the amendment of the Code of Criminal Procedure in 1973, where the death penalty was no longer a mandatory sentence for murder and it became subject to the discretion of the Court. The arguments were raised regarding the constitutionality of a death penalty, it was on the ground that a vide discretionary power vested with the Courts as there were no guidelines or standards. It was held that it violated Article 14, Article 19 and Article 21.

It was held by the Supreme Court that the Right to life was not a part of Article 19 and the death could not be called as unreasonable or opposed to public policy since it was the punishment which was part of the law even before the commencement and the legislature would be presumed to know its existence. And since it was not removed, it could be assumed that the legislature did not think of it as unreasonable. 

Article 14 could hardly be invoked in matters involving judicial discretion, as each case would be peculiar to facts and circumstances. The discretion given to Courts to award a death sentence cannot be termed aa unguided. The Code of Criminal Procedure lays down the detailed procedure about when a death sentence is imposed and following the procedure established by law cannot be held as unconstitutional.

Article 19

In this case, writ petitions were filed in the Supreme Court, challenging the constitutional validity of allowing the death penalty as an alternative to punishment for murder.

The significant changes from Jagmohan case to Bachan case was that the scope of Article 19 and Article 21 was expanded by the interpretation given in the Maneka Gandhi’s case. By this time India had become a party to the International Covenant on Civil and Political Rights. It was held by the Court that the Covenant did not outlaw the death penalty. 

If the freedom mentioned under Article 19 are infringed, then Article 19 can be invoked. Since the right to life is not covered under Article 19, it cannot be invoked to determine the constitutionality of Section 302 of Indian Penal Code, that provides death penalty as an alternative punishment to murder. Merely on the ground that the death penalty remotely affects the freedom under Article 19, the death penalty cannot be held to be unconstitutional.

The Court held that a pre-sentencing hearing introduced in The Code of Criminal Procedure was a mandatory requirement. It was made necessary to consider the circumstances of both crimes as well as the criminal. 

Triveniben v. State of Gujarat and Ors, 1989

In this case, the appellant was given a death sentence. He was the main accused for conspiring and by impersonating a customs officer had murdered several persons, by abducting under the guise of interrogating officer in order to rob and then murder them. For eight years the accused was kept in solitary confinement. The appeal was that Article 21 was violated as there was a delay in execution.

It was held that the sentence imposed should be carried out under procedure established by law. If there is a prolonged delay irrespective of the cause in carrying out the execution, it has a dehumanizing effect, which violates Article 21 by unjustly depriving a person of his life and liberty.

If there is a delay beyond two years, it entitles a prisoner for quashing of a death sentence.

Sher Singh v. the State of Punjab,1983

In this case, it was held that delay can be a ground for invoking Article 21 of the Constitution of India. There is no binding rule that the delay entitles a prisoner to quash the death sentence.

Rajendra Prasad v. State of Uttar Pradesh, 1979

In this case, it was discussed about the special situations to be considered before awarding the death penalty. It was held by the Court that not only the nature of the crime but also the various factors of criminals before awarding the death penalty.

Raju Jagdish Paswan v. The State of Maharashtra, 2019

In this case, the Trial Court had awarded the death sentence to the appellant, who committed rape of a nine-year-old kid. The same sentence was awarded by the High Court. On appeal in the Supreme Court, the punishment was reduced, since the death can only be awarded in rarest of rare cases. It was held by the Supreme Court that life imprisonment is a rule while the death sentence is an exception. The death penalty was not awarded by the Supreme Court in this case for reasons:

• There was no pre-planning for the murder.
• The person who committed the act was not a continuous threat to society.
• There was a lack of evidence by the State to prove that the person cannot be rehabilitated and reformed.
• The appellant was just 22 years of age while committing the crime.
• The basic principle is that human life is valuable and a death sentence should be awarded only when it is mandatory if there is no option for any other punishment and even in cases where the range of crime is heinous.

Most famous murder cases you need to know about

Arushi Talwar case

The 14-year-old Arushi was murdered on 16th May 2008 along with Hemraj Banjade who was 45 years old then. There were a lot of suspects on the list of the accused including Arushi’s parents. This case received a lot of media coverage and aroused public interest. 

For a very long time, Arushi’s parents had been held under custody. Still, it is not clear whether it was Arushi’s parents or the other two servants that worked in her house. Though Arushi’s parents have been acquitted, yet no one knows who killed Ayushi and Hemraj.

Jessica Lal murder case

The case got highlighted with the heading ‘No one killed Jessica’ in the year 1999. The eyewitnesses had amnesia and there was hardly anyone who came forward to give an account of how an aspiring model was shot dead. Later people came to know that it was the businessman Manu Sharma who was refused by Jessica to serve liquor had shot her dead.

Pradyum Thakur murder case

A student of II class, Pradyum Thakur was found dead in the washroom of Ryan’s International School in Gurgaon. The kid who didn’t cause any harm was thought to have been killed over a situation of sexual assault by a bus conductor, who got arrested but later it was found that the murder was committed by a student of 11th year, whom the Court said that he will be tried as an adult.

Sheena Bora murder case

Sheena Bora’s mother Indrani Mukherjea was the real culprit who had planned the murder of her daughter Sheena Bora. It was claimed by Indrani Mukherjea that Sheena was her sister and she never admitted to having two children. The limelight was brought to the Murky Financial dealings of Indrani Mukherjea and her husband Peter Mukherjea.

Pramod Mahajan murder case

Pramod Mahajan was a politician in the Bharatiya Janata Party. He was killed in a broad daylight inside his house. April 2006 Pramod was shot dead by his brother, Pravin. After killing his brother, Pravin walked to the nearest police station to confess that he had shot his brother Pramod. Pravin was sentenced to life imprisonment and later on died due to brain haemorrhage.

Amar Singh Chamkila murder case

Amar Singh was a popular Punjabi singer, musician, songwriter and composer. Amar Singh along with his wife and two members of the band were killed on 8th March 1988, by a gang of unknown youths. No one got arrested even when they got killed in front of so many people and in broad daylight.

Sunanda Pushkar murder case

Wife of a former Indian diplomat and famous politician Shashi Tharoor’s wife, Sunanda Pushkar was a renowned businesswoman. She was killed in Delhi’s Leela Palace’s hotel room. It is suggested in the report that when Shashi Tharoor saw Sunanda Pushkar, he assumed she was asleep and when she did not wake up, Shashi Tharoor informed the police.

She died after a day she had accused Pakistani journalist Mehr Tarar of stalking her husband on twitter. According to the post-mortem report, it was concluded that she had committed suicide. But the report from doctors of All India Medical Institute said that the death was due to drug overdose and she had injury marks on her body.

Neeraj Grover murder case

This case received a lot of attention due to how fatal it was. His body was firstly chopped into pieces and then later stuffed in three garbage bags and put on fire in the forest.

Neeraj’s friend Maria Susairaj had filed a missing complaint in the police station. She was later found to be involved in the killing. It was discovered that Maria’s boyfriend in a fit of rage had killed Neeraj suspecting that Maria was having an affair with Neeraj.

Sharath murder case

Sharath was a 19 years old son of an Income-tax officer who was killed in Bangalore. Sharath’s body was found on the outskirts of the city near Ramohalli lake with his hands tied together. It turned out that the kidnappers had strangled Sharath to death and later on the same day they had dumped his body. 

The police found out that the kidnappers were friends of Sharath and his close friend Vishal was the one who had planned this murder and abduction to clear off the loan.

Conclusion

The Court awards death penalty only in rarest situations only in cases where the accused is a threat to the society aa the Court understands the value of life. The Court has all the rights and power to reduce the punishment. 

References

• https://indiankanoon.org/doc/626019/
• http://www.legalserviceindia.com/articles/cri_m.htm
• https://www.lawnn.com/murder-section-300-indian-penal-code/
• https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy
• https://www.project39a.com/landmark-judgements
• http://lawtimesjournal.in/murder/
• https://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/index.php?Title=Code%20of%20Civil%20Procedure,%201908
• https://www.indiatimes.com/culture/11-most-mysterious-and-sensational-cases-of-murder-in-india-334096.html
• https://theprint.in/report/pradyuman-thakur-murder-connecting-dots/20077/
• https://m.economictimes.com/news/politics-and-nation/police-files-charge-sheet-in-sunanda-pushkar-death-case-in-delhi-court/articleshow/64159153.cms
• https://www.newindianexpress.com/cities/bengaluru/2017/sep/23/friend-plotted-the-kidnap-and-killing-of-i-t-officials-son-1661452.html

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The post Murder under Indian Penal Code appeared first on iPleaders.

This article is written by Yatin Gaur, a student, pursuing B.A.LL.B. from Hidayatullah National Law University. In this blog post, the author discusses the offence of Mischief as mentioned under IPC. To substantiate the concept, reference is made to all the Sections covered by the topic, with relevant illustrations and case laws. 

Introduction

Let’s imagine a situation when one fine afternoon, a person named Soham was taking a small nap after a long day of labour. But he gets interrupted by his neighbour’s calf who breaks in his home and starts creating chaos. Infuriated with this sudden disruption, Soham starts abusing his neighbour. This starts up an altercation between the two. In a fit of anger, Soham throws a brick towards his neighbour but by accident, it hits his neighbour’s calf tethering its nasal region & the calf subsequently dies. Soham now approaches his lawyer for legal advice.

This incident gives rise to a lot of legal questions that what will be the nature of this offence? Will it amount to mischief against animals? Or are all the essentials of mischief satisfied ? or the fact that it was an accident and not a deliberate intention to harm the calf will play an important role in deciding the fate of the case? To answer all these questions we have to understand the Law of Mischief and how it can land someone in trouble as per IPC.

What is Mischief 

The definition of mischief is mentioned under Section 425 of IPC & the punishment is prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific punishment prescribed for aggravated forms of mischief depending upon the nature & the value of the property damage.

As per the Section 425 of the Indian Penal Code,1860 (hereinafter referred to as IPC) that whenever anyone performs an act either having an intention to cause or is aware that his act is likely to bring, some destruction or damage to any property, destroying or diminishing its value and utility, hence, resulting in an undue loss or damage to the public or any person is said to commit mischief. 

In simpler terms, it can be understood as when an individual intends to perform an act or has the knowledge that his/her act will create hindrance in allowing another person to enjoy the benefit of their property by one means or other, it is called a mischief. However, this act can be even against the public or against a specific person as well.

Objective

The Law of Mischief under IPC is specifically drafted with an objective to provide protection against the destruction of the property causing any wrongful loss or damage to the public or an individual. It is an extension to the legal maxim sic utretuoleadas which means “use your own property, but not in a way that can injure your neighbour’s or other’s property.”

Illustrations

1. “A” intentionally sets X’s home on fire causing him wrongful loss or injury.
2. “A” a doctor deliberately prescribed wrong medicine to “B’s” cattle with an intent to cause wrongful loss or injury.
3. “C” diverts the flow of canal in such a way to prevent “B” from irrigating his field causing him loss by damage of crops.
4. “B” tears off some important business-related documents of A to cause him financial loss.
5. “A” deliberately burns off the standing crop that was jointly cultivated by “A” and “B”.
6. “B” intentionally damages a “signboard“ installed by the order of municipality causing wrongful losses & injury.

Scope of Mischief 

Mischief under Section 425 of IPC covers all those acts that cause any damage or destruction to the property resulting in any wrongful loss or damage. The scope of this section is wide and it applies in the case of both public as well as private damages.

However, the most important point is that it will not have any application in the cases where the element of intention is absent which is further elaborated in this article under the heading of Ingredients of mischief. It is also not essential that the person accused had some valid motive behind or must have been benefited from the act of “mischief”. 

But some other significant questions of consideration are whether this act can be applied in the cases when the accused has damaged his/her own property? Or will it cover situations when the damage caused to the property is a consequence of an illegal act or default in payment?

When accused is the owner of the damaged property 

In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors., the Court held that ownership or possession of the property is not a deciding factor in the matter of the application of section 425 of IPC. Thus, mischief is said to be committed even in cases when the accused is the owner of the property provided all the other essential ingredients mentioned are satisfied.

This is further evident from the illustrations (d) and (e) to Section 425. According to the facts of the above case, the petitioner alleged that the respondent removed the engines of the aircraft diminishing their value and utility. Since the appellants had the right to possess the aircraft it resulted in wrongful loss or injury Hence the Supreme held that the allegations amounted to the offence of mischief as all the essential ingredients of mischief had been satisfied.

Default of Payment or Illegal Act 

In case of disconnection of water supply, sewerage supply, electricity supply, telephone connection, etc., by the concerned departments resulting from the default in payment or an illegal act after following a due process will not come under the ambit of “Mischief”.

Ingredients of Mischief

Essentially there are three key elements to establish Mischief as per the definition laid down in section 425 of IPC which are as follows:

• Intention or the knowledge of the act (mens rea);
• The act resulting in destruction, damage or change in the property or situation thereof; and (actus rea)
• The change must lead to diminishing the value or utility.

Intention or the knowledge of the act may result in wrongful loss or damage (mens rea)

One of the most essential elements of all offences under IPC is that any crime is composed of two parts- Mens Rea & Actus rea. Similarly, “Mens rea” is required to be present in order to establish the offence of Mischief.

The definition of the law of mischief makes it very clear that the only way to prove the act of mischief does not essentially mean that it has to be proved that the accused essentially had any deliberate intention to cause unjustified damage to the property. But rather what can also serve as sufficient proof is the fact that the individual had the knowledge that such action of his/her can result in damage or degradation of the property, causing wrongful loss or damage. 

This can also be understood with a real-life example that if some children while playing street cricket break-up a glass window, it will not amount to mischief but will rather constitute negligence. But if those children deliberately throw the ball to aim at the window resulting in breaking up the glass and causing loss to the owner, then it will amount to mischief.

Similar was the judgement pronounced in the case of Nagendranath Roy v. Dr. Bijoy Kumar Dasburma where the court observed that mere negligence does not constitute mischief. However in certain situations when facts indicate that intention to cause wrongful loss was present along with the negligence causing damage will amount to mischief. 

In the case of Krishna Gopal Singh And Ors. v. the State Of U.P., it was stipulated that if the accused has committed an act without any intent or knowledge that the act in question is likely to cause wrongful loss or damage to any person or the public at large, it will not fall under the ambit of mischief as the element of “Mens rea” is absent. Similarly, if an act is committed without free consent i.e.under some pressure or duress it will also not amount to mischief.

In Arjun Singh v. The State (AIR 1958 Raj 347) it has been observed by this Court:”In order to establish the offence of mischief, it is essential for the prosecution to establish that the accused must have an intention or knowledge of likelihood to cause wrongful loss or damage to the public or any person.”

Wrongful loss or damage (actus rea) by diminishing the value and utility

The second important requirement is that the act must have resulted in some wrongful loss or damage to the owner of the property depriving him of enjoying the same. The act must have caused some damage, injury or destruction to the property to the effect of diminishing its value or utility. This will constitute the “actus reus” of the offence.

Similarly, even a change in the property can also amount to property. For example, altering someone’s research notes. It is also very important that the damage must be the direct consequence of the alleged act and must not be based on some hypothetical or imaginary relation.

In Arjuna vs. State (AIR 1969 Ori 200) case, the court found the accused guilty for damaging the standing crops grown by the complainant on the land belonging to the Government as it caused wrongful loss to the government by diminishing its value.

In the case of Gopi Naik vs. Somnath (1977 CrLJ 1665 Goa), the respondent alleged that the accused had cut their water pipe connection causing them wrongful loss & damage. Upon investigation, the Court found the accused guilty of the offence of Mischief as this act has resulted in diminishing the value of the property, i.e., water supply.

One very important case in this regard is the case of Sippattar Singh vs. Krishna (AIR 1957 All 405) case, where the court separated the offence of theft from mischief. In this specific case, the respondent was guilty of cutting the sugar cane from the field of the petitioner and taking it away. 

The Court found the respondent not to be guilty of the offence of mischief, but he was held guilty of theft, because of two important reasons: first that the respondent had not caused any damage to the remaining field of the sugar cane, & second because the respondent had physically moved certain quantity of sugarcane coupled with dishonest intention to misappropriate it.

In another case of E. In Shriram vs. Thakurdas case, the complainant alleged that the accused, an officer of Municipal Corporation, demolished his house thus was guilty of the offence of mischief causing him wrongful loss and damage. But upon investigation, it was found that it was an unauthorised construction and the accused took the action only after serving due notices.

The Bombay High Court held that the officer acted in the due course of his duties by demolishing the unauthorized construction as per law, thus this act of his attracts no offence under section 425 of IPC.

In the case of Punjaji Chandrabhan v. Maroti, the Court ruled that no mischief was committed under Section 425 of IPC when in a particular case ‘easement right’ to carry water to the field of the complainant through the drain running through the land of the accused. The court observed that the field being a tangible property was not capable of being destroyed thus no wrongful loss or harm was incurred. Hence the accused, the landowner.

Punishment for Mischief

The punishment for Mischief is prescribed under Section 426 which states that it attracts imprisonment of a term which may extend up to three months, or with fine, or with both, as the court may deem fit.

Nature of offence: The offence under this Section is non-cognizable, bailable, compoundable, and triable by any Magistrate.

Aggravated forms of Mischief

Though the punishment for the offence of mischief has been laid down as imprisonment until 3 months, or fine, or both in Section 426 of the Indian Penal Code. However, the IPC recognizes and lists down certain aggravated forms of mischief which have been described under Sections 427 to Section 440, IPC. It prescribes a different level of punishment for each category which is described as under:

Mischief causing damage to the amount of fifty rupees

Explanation: When a Mischief committed results in some pecuniary damage i.e. the damage is quantifiable the magnitude of the punishment will depend upon the amount of damage incurred. 

Punishment: According to section 427 whoever commits any mischief causing loss or damage to the amount of fifty rupees or upwards, will be subject to the imprisonment of either description of a term with a maximum of two years, or with fine, or with both. 

Proof requirement: It is important to establish the element of “Mens rea” in section 427 as well. 

Nature of offence: The nature of the offence under this section is bailable, compoundable, non-cognizable, and triable by the Magistrate.

Mischief by killing or maiming of animals of the value of ten rupees

Explanation: Section 428 provides the punishment in case of mischief committed upon any animal or animals of the value of ten rupees or upwards which includes killing, poisoning, maiming or rendering that animal useless. 

Definition: The word ‘animal’ used in the statute refers to ‘all living creature except human being (see here). By ‘Maiming’ the legislature does not intend causing wounds or temporary injuries (see here) but rather It has to be an injury permanently affecting the use of a limb or other parts of the body.

Object: The object of the legislature to prevent cruelty against animals.

Punishment: It attracts the imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

Nature of the offence: The offence under this Section is cognizable, bailable, compoundable with the permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate.

Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees

Explanation: Section 429 also lays down the punishment of similar nature of the crime but characterises the offence as more grave considering their utility for commercial purposes. punishes those who commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow, or ox, whatever may be the value thereof or any other animal of the value of fifty rupees or upwards.

Object: Apart from preventing cruelty against the animals with commercial viability it looks that another reason behind this statue is to punish the person who tries to cause wrongful loss or damage to the person by inflicting cruelty on animals.

Punishment: The punishment prescribed under this Section is the imprisonment of either description for a term which may extend to five years, or with fine, or with both. 

Nature of offence: The offence under this Section is cognizable, bailable, compoundable with the permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate.

Mischief by injury to works to irrigation or by wrongfully diverting water

Explanation: Section 430 of IPC specifically aims at those cases where the act of mischief results in some injury to the work of irrigation or by unduly diverting the flow of water resulting in wrongful losses & damage. This section applies in the cases where weakening or obstructing the supply of water causes wrongful disturbances & losses in commercial activities such as agriculture, manufacturing or interfering with the drinking and food requirement of human beings or animals.

Object: The object behind the statue is to prevent diminution in the supply of water for agriculture, commercial purposes or to punish any alteration in the water supply resulting in some sort of interference with the drinking and food requirements of humans and animals.

Proof requirement: Mens rea or intention to cause wrongful injury is important to be established for proving the offence.

Punishment: The punishment prescribed in IPC for this offence will be either a description of a term which may extend up to 5 years, fine or both as the court may deem fit.

Nature of offence: The offence under this Section is cognizable, bailable, compoundable with the permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate.

Mischief by injury to the public road, bridge, river or channel

Explanation: Section 431 deals with the punishment when an individual does an act which has the consequence of or which he knows has the consequence of causing inconvenience to the public. It covers those acts which result in damage to public roads, bridge, navigable river or navigable channels (natural or artificial) by making them impassable or rendering them less safe for travelling or conveying property.

Definition: A public road refers to a road used by the public generally (see here). Hence the term public’ under this section mentions the use and not the ownership.

Object: The object is to prevent any damage to the public property causing disruption, trouble and losses to the public at large.

Proof Requirement: Proving Mens rea is essential here, i.e. the intention to wrongful loss or injury to the person.

Punishment: The punishment prescribed under IPC is imprisonment of either description for a term which may extend to five years, or with fine, or with both.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Mischief by causing inundation or obstruction to public drainage attended with damage

Explanation: Section 432 is specifically drafted to prevent any damage, obstruction or injury causing inundation, overflow or diminution to public drainage.

Object: The object behind this is to punish those mischiefs which aim at causing disturbance and interference to public life depriving them of basic requirements of cleanliness and sanitation.

Punishment: The punishment prescribed under this section is either description of a term or extending up to 5 years, or fine, or both i.e. same as the previous section since it is also a public nature offence.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Mischief by destroying, moving or rendering less useful a light-house or sea-mark.

Explanation: According to Section 433 anyone commits mischief that results in destroying, moving or rendering less useful anything placed as a guide for navigators. This may include any lighthouse, sea-mark, buoy or any other thing fulfilling such purpose.

Punishment: The punishment prescribed under this act is more severe that is imprisonment of either description for a term with a maximum period of seven years, or with fine, or both.

Object: The intention behind this is to punish the offender who incurred huge commercial and pecuniary loss caused by this mischief.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Mischief by destroying or moving, etc., a land-mark fixed by public authority

Explanation: Section 434 lays down the punishment for the mischief when any particular act results in destroying, moving or rendering any land-mark less useful which has been fixed by the authority of a public servant.

Object: It assumes the intention of the accused is to cause wrongful loss to the public authorities as the performance of such an act leads to the wastage of the time and money of the public authorities. Further, the authorities must have put that landmark to convey some important message to the public, thus causing general inconvenience. But since the gravity of the offence.

Punishment: The punishment prescribed under this offence is smaller i.e. imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Nature of offence: The offence under this section is non-cognizable, bailable, non-compoundable, and triable by any Magistrate.

Offences of Arson 

Section 435 to 438 of IPC characterises mischief by the method adopted to cause wrongful loss or damage. It deals with the remedies provided by IPC in case of damage being caused by fire. These sections are together called offences of Arson.

Mischief by fire or explosive substance with intent to cause damage 

Explanation: Sec. 435 covers those cases where the mischief is committed by fire or any explosive substance with an intent to cause, or the knowledge that the act is likely to cause damage to any property. This section applies when the amount of damage incurred is one hundred rupees or upwards or ten rupees or upwards when the “property” damaged is an agricultural produce.

Punishment: The section prescribes imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Nature of offence: The offence under this Section is cognizable, bailable, compoundable, and triable by Magistrate of the first class.

Mischief by fire or explosive substance with intent to destroy the house

Explanation: Section 436 also deals with the mischief committed by fire or any explosive substance, but specifically applies when the damage is caused to any building which can be a house, place of worship or as a human dwelling or as a place for the custody of property.

Punishment: Considering the seriousness of the offence the punishment prescribed under this section is more grave which may include life imprisonment, or with imprisonment of either description for a term which may extend to ten years, and fine as the court may deem fit.

Scope: It has been pronounced by courts in various judgments that the word “property” used in this statute not only includes a well-furnished property with bricks and cement but is wide enough to cover structures made up of any material such as grass or matt hut and partially constructed structures as well. (see here)

Proof Requirement: One of the most essential requirements to establish an offence under Section 436 of IPC is that there must be some irrefutable evidence that the accused who actively set fire to the dwelling place or building or instigated someone to do it for him (see here). For example- a testimony of direct eye witness against the accused that he/she set the property on fire. 

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden

Explanation: Section 437 deals with the mischief resulting in destroying or rendering unsafe any decked vessel or any vessel of burden twenty tons and above.

Punishment: The punishment for the offence includes imprisonment for a term which may extend up to ten years and fine.

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Explanation: Section 438 is a special case of mischief specified in Section 437,i.e.when the similar mischief is committed with fire explosives destroying or rendering unsafe decked vessels of burden more than twenty tons.

Punishment: Though this offence attracts a more serious punishment i.e. life imprisonment or description of term extending up to 10 years & fine.

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Intentionally Running Vessel Aground or Ashore to commit theft

Explanation: Section 439 specifically prescribes punishment for the mischief committed by running the vessel aground or ashore with the motive to commit theft or misappropriation of property.

Punishment: It attracts imprisonment for a term as the court may deem fit or maximum extending up to ten years, and fine.

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Mischief committed after preparation made for causing death or hurt

Explanation: Section 440 describes the punishment for committing mischief by making preparations with an intent to cause or create fear of death, hurt or wrongful restraint. 

Punishment: It lays down the punishment of imprisonment for a description of a term which may extend up to five years and a fine.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Conclusion

As society advances, new situations also emerge, and new issues are encountered. Similarly, though the offence of Mischief appears to be very exhaustive and inclusive taking up the whole fifteen sections of IPC. It tries to cover all the possible forms of mischief laying down different punishments for each depending on the gravity of the offence.

But despite this, it still fails to lay down proper punishment for many other kinds of mischief that are very common. Further, it does not lay down various situations that may also fall under the ambit of mischief hence leaving this solely to the discretion of Judges to identify and classify it as an act of mischief and to declare the punishment for the same. Due to this, there have been cases, where different levels of punishment can be witnessed in offences having similar nature & gravity.

Thus it is imperative to identify and implement appropriate punishment for the offence of mischief so that the offender can get due punishment and further, more deterrence can be ensured.

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This article is written by Pratishtha Mandal, currently pursuing LLB from Campus Law Centre (Law faculty, Delhi University). In this article, she is going to talk about Prevention and Detection measures that have been taken by the government under The Wildlife Prevention Act (1972). Succeeding a very brief introduction to the Act, this Article highlights and provides the basic ideas related to some of the important judicial decisions which have a significance on the offences took place under the Act and the application of the Act.

Introduction

Wildlife crimes talk about any activities which deal with causing pain and suffering to animals and plants which further puts them closer to extinction and are against the legislation protecting wildlife.

Wildlife crimes are affected by many different ways. Wildlife crimes have been spiralling to the point where animals are killed in mass, not just for food or clothing but also because of ornamental gains, traditional medicine and expression of status symbol. The huge amount of financial advantages and perks involved in wildlife trafficking allows criminal networks to take advantage of resources and thus making it a resources-scarce state. The illegal wildlife trade also brings in the attention of the government to prevent wildlife from being exploited through such illegal trade practices, which refers to crimes which are associated with live wildlife, wildlife products or their extracts, both flora and fauna, across the world.

Who all are involved in Wildlife Crime:

1. Professionals- Poachers, transporters, middlemen, smugglers, pharmacies and other end users linked with bigger mafia groups.
2. Opportunists- small-time criminals tempted by high profits and low risks,  people who act as helpers at the scene of crime.
3. Little investigated groups- Parthies, Bagadias, Tibetan settlements and Tibetan medicines.
4. Politicians- Political aid in promoting illegal export and import of wildlife.

How a forest officer is prepared with no formal training to cope and  coordinate with criminal organisations:

• Required to get training during the service on the field.
• There should be access of knowledge regarding the wildlife crimes to higher officers in prevention, detection and investigation to quote a few.

Prevention and Detection of offences

Prevention- As a major strategy in the fight against wildlife crime, it is important to identify and interpret early warning signs. These signs can be read by most field staff if they have the tendency for it and spend sufficient time in the field.

Section 50 of the Wildlife Protection Act grants power to entry, search and arrest, but the procedure is prescribed under Section 100 of Code of Criminal Procedure, 1973.

Detection- It is important and requisite to identify the wildlife crimes as to prevent them from happening again in future, which includes:

• Technical knowledge of identifying wildlife and animal parts.
• Important animals and animal parts in trade. 
• Communities involved in wildlife crime, their cultural habits and their links and association with crime mafias. 
• Knowledge of wildlife poaching techniques.
• Changes in their lifestyle.
• Whether databases of these people are made/updated and circulated to the concerned.
• Whether proper training has been imported to all the cutting edge staff.
• Who is responsible for what? Whether proper directions have been issued or not.
• Whether migratory routes of these have been identified or not.
• Whether local markets are being listed and checked regularly.
• Whether on foot patrolling is being planned and conducted and its effectiveness monitored.
• Whether proper staff at all levels is equipped or not.
• Whether staff has been properly trained in intelligence gathering or not.
• Whether staff has been properly trained in legal aspects of investigation and case processing or not.
• Whether the department is able to penetrate the local criminal network of small illegal trade of animals, animal derivatives, killing and hunting of animals etc,. or not.

All these points and aspects will matter and help us in preventing wildlife crimes effectively and in a judicial manner.

Wildlife Protection Act

The Wildlife Protection Act, 1972, is the parent legislation in the country for wildlife crime administration. 

The Wild Life Protection Act was sanctioned in 1972 and has been amended six times, the last amendment took place in 2006. With over forty years of being mentioned in the statute book, the interpretation and understanding of the Act has been intensified because of decisions of High Courts and the Supreme Court. Yet there still exists some unanswered questions and grey areas within the law. The Act is generally characterised as a very strong codification of law for wildlife protection within India. However, there still remains the questions about its level of implementation and execution.

Constitutional Provisions for the Wildlife Act

By adding Article 48A of the Constitution of India, protection and safeguarding of wildlife and environment was made a duty through 42nd Amendment in 1976.

In Article 51A certain fundamental duties have been mentioned for the people of India to perform. One of the most important duties is to protect and improve the environment and make it available for the future generation which includes lakes, forests, rivers and wildlife and to have compassion for living organisms.

Evolution and Development of the notion of Wildlife Protection in India

India is blessed with a massive variety of natural resources in its rich animal and plant heritage. Wildlife is one of the basic and natural resources that provides the needs and desires of civilization before and today. Therefore, these resources must be conserved, preserved and protected for the survival of mankind. Now let us talk about the historical development of wildlife protection in India in different periods.

Powers granted for Prevention and Detection

• According to the Section 54 of the Wildlife Protection Act, the central government may by the information from the parliament can authorise the Director of Wildlife preservation or any other officer not beneath the rank of Assistant Director of Wildlife Preservation to accept payment of a sum of money by way of compensation of the offence done by that person, which such person have suspected to have committed.
• In the case of a State government in same way, it empowers the Chief Wildlife Warden or any other officer of a rank not below the rank of a Deputy Conservator of Forest,  to take payment of a sum of money by the way of composition of offence which a person has done or suspected to have committed or where a reasonable suspicion exists that the person has committed an offence against or under the Wildlife Protection Act
• By paying the composition with regard to the offence made by a person against provisions of the Wildlife Protection Act, such suspected person if in custody can get a release from the custody and no further proceedings will be laid upon against that person for the following offence. 
• The officer on compounding of any offence has the power to order the cancellation of any license or grant permit under the Wildlife Protection Act to the offender of provisions under Act. If an officer is not capable enough to do so, he may approach an officer who is authorised, for the cancellation of license or permit of the offender.
• The sum of money taken or accepted or agreed to be accepted as the composition against the offence done by any person against the provisions of the Act under sub-section (1) shall not exceed the sum of twenty-five thousand rupees, as long as that offence, for which a minimum period of imprisonment is prescribed in Section 51, shall be compounded. 

Authorities Constituted Under Wildlife (Protection) Act

According to Section 3 of this Act, the Central Government may appoint a Director of Wildlife Preservation, Assistant Directors of Wildlife Preservation and such other officers and employees whenever necessary and required. According to Section 4, the State Government under the said Act can appoint Chief Wildlife Warden, Wildlife Warden, Honorary Wildlife Wardens and other officers and employees if necessary. As per Section 6 the State Governments and the Administrators in Union Territories could organise a Wildlife Advisory Board.

Duties of Wildlife Advisory Board (Section 8)

The Wildlife Advisory Board mainly originated to guide the state government in the following matters:

1. In the selection process of areas which can be signified as Sanctuaries, National Parks and Closed areas and the administration.
2. In organisation of the policy and provisions for the protection and conservation of wildlife and specified plants.
3. In any matter regarding to the amendment of any schedule; 
4. In relation with the measure to be taken for coordinating with the basic requirements of the tribal peoples and other dwellers of the forests with the protection and conservation of wildlife; 
5. In any other matter which is directly related to the protection of wildlife which may be mentioned to it by the state government.

Penalties under the Act

Section 51 of the Act sets out the penalties for the violation of its provisions. Penalties vary depending on: a) the Schedule of the animal(s) to which the offence relates; b) the area to which the offence relates (National Park, sanctuary, tiger reserve, core area of tiger reserve); c) the nature of the offence (hunting/altering the boundaries/ other offence); and d) whether the accused is a repeat offender.

• Minimum punishment prescribed under Section 51 of Wildlife Protection Act (1972), specifies minimum punishments for certain periods. However, it has been noticed that some of the courts are granting punishment less than the minimum punishment specified. Re-Examination should be led against such orders. Judicial officers should also be sensible and aware about the minimum punishment prescribed.
• Under Section 51(2): – When a person is convicted of an offence under the Wild Life Protection Act (1972), the court in which the trial is being done related to the offence could order that any captive animal or derivative, in relation of which an offence has been taken place and any trap, tool, vehicle, vessel or weapon used in the commission of such offence should be surrendered to the State Government. The above section also highlights the point that surrender of the property involved in the offence, is to be done only after conviction of the accused by the trial court. Surrender of property mentioned under Section 51(2) of the Act is not the same as surrendering of property obtained from illegal hunting and trade under Chapter VIA of the Wildlife Protection Act. 
• Under Section 57 of Wildlife Protection Act (1972) in certain cases: – if it is established that a person is in possession, custody or control of any captive animal, it could be supposed that such person is in unofficial ownership or custody of that animal. However, it is also to be borne in mind that even with shifting of burden to the person guilty, the primary liability to prove the case beyond reasonable doubt will still be resting on the prosecution.
• Surrender of property obtained from illegal hunting and trade as mentioned under Chapter VIA is applicable in cases where the person has been convicted of an offence which is punishable with imprisonment for a term of three years or more. 

One of the issues concerned with the punishment granted by the courts sometimes are granted less than the minimum punishment for the offence despite finding the accused guilty.

• State of Uttarakhand v. Akbar Ali Ansari, (2007): in this case, there was a  seizure of five unlicensed leopard skins, and the accused was convicted for the same by a Magistrate for One year, three months imprisonment but the minimum sentence for the offence according to law is three years.
• State of Uttarakhand v. Rampal and Harish (2006): in this case, there was a seizure of two unlicensed leopard skins, the Magistrate convicted the accused for five months, and one and a half months imprisonment but the minimum sentence for the offence is three years.

Cognizance of offences

No court could take cognizance of any offence in opposition to the Wildlife Protection Act except on a complaint by The Director of Wildlife Preservation or any other officer authorised in account of the Central Government or The Chief Wildlife Warden or any other officer authorised by the State Government, or any other person who has got a notice of not less than 60 days, in the manner advised, of the supposed offence and of his intention to make complaint to the Central Government ot the State Government or the officer approved as mentioned above.  

Important cases: 

• Moti Lal v. Central Bureau of Investigation and Another (2002) The provisions mentioned under CrPC are generally relevant to the investigation and trial of wildlife crimes and offences if not especially opposed by the Act.

• Ashwini Kumar Bhardwaj v. State of Rajasthan (2002) The High Court of Rajasthan repealed the legal proceedings in a case in which challan has been filed against the officer who has not especially been permitted to file the complaint for wildlife offences.

• S. Bylaiah v. State by Bannerghatta Police (2008) The Karnataka High Court revoked the legal proceedings in a case regarding which the complaint had already been filed by the police, but not by the officer of the rank specified by the State Government according to the notification.

Presumption to be made in certain cases 

• State of Maharashtra v. Gajanan D Jambhulkar (2002) The court struck down the decision of order made by a Judicial Magistrate allowing release of a jeep to its owner, when it was claimed to have been used in the commision of an offence against the provisions under Wildlife Protection Act.

High Court held that- Before the court allow the application of the accused for releasing his vehicle, the courts are required to provide with the sound and appropriate reason to justify such release of vehicle, to possibly exclude such vehicle to act as an evidence that will be liable for forfeiture according to Section 51 of the Wildlife Protection Act at the end of the trial.

• State of Uttar Pradesh and Another v. Lalloo Singh (2007) The Supreme Court, while dealing with the application of the release of tractor trolley, held that in the light of the language used under Section 50 of the Wildlife Protection Act. Section 457 of the CrPC will not be applied to it, but Section 451 of the CrPC will be applicable here. The court observed- Magistrate while dealing with an application for provisional release of any vehicle must keep in mind the lawful instructions of the Act of Wildlife Protection. 

Offences by Companies

With the help of an amendment in 1991, the legislation brought “Ivory imported into India” within the apprehension of the Act, as per the result of which there was a total ban on the trade of ivory. 

• In Indian Handicrafts Emporium and Others v Union of India and Others (2003) Supreme Court called in to decide on the constitutional validity of the ban, which later held that the restriction put on the ivory trade was reasonable because it was further grievously resulting in endangering Indian Elephants. It was held that this trade is completely against the provisions of the legislature. 
• In Balram Kumawat v. Union of India and Others (2003) The Supreme Court used the same reason to hold that the ban of Ivory trade was applicable to  Mammoth ivory, even though the species was extinct.The Act applies throughout the territory of India that is why the regulatory mechanism in relation to protected species becomes active as soon as any item (animal article, captive animal, etc.) lands or is imported in Indian Territory. The policy accounts to the Export-Import policy under the Customs Act (1962) which clearly states that the import and export of wild animals as defined in the Act is prohibited or banned. This is strictly obvious as far as the Strictly Protected Species are concerned, and is simply in accordance with the provisions of the Act.
• In J.P. Samuel and Company v. Union of India (2002) There was a ban on export of sea fans as they were directly listed in Schedule 1 of the Act and were mentioned within the Wildlife Protection Act. As we can see no merit in the debate of the well informed judge for the petitioner that sea fans according to him are not covered under the definition provided of Wild animals by the Wildlife Protection Act. According to which sea fans are not included in the negative list and because of which the ban put for such export of the sea fans by the debated order cannot be continued. Therefore, there was no merit in the extra review for the same and was dismissed. 
•  In Zen Clothing Company v. Commissioner of Customs ACC, Mumbai (2007) There was confiscation and penalty implied on the importers of Python skins as mentioned in Schedule 1 by the Customs Excise and Service Tax Appellate Tribunal as it was prohibited and forbidden under the Act.

Conclusion

Every citizen of the country is supposed to be protected by the State but the animals cannot demand justice for themselves. It is vital for human beings to make sure that our floral and faunal wealth and heritage is not wasted or destroyed. Therefore, we should work and invest towards protection and conservation of our rich wildlife.

Some of the organizations in India like Wildlife Protection Society of India, WildLife Trust of India, People for Ethical Treatment of Animals; etc are discharging their duty very well and efficiently.

Under the Indian law, only the State is allowed to prosecute and punish criminals, so the Wildlife Protection Society of India provides public prosecutions with aid. Some of the cases are high profile cases, in which the people involved belong to the good backgrounds. Therefore, the cases keep on going for years and are delayed so much that everyone forgets about what crime they have committed when the decision is finally given. For instance, in 1998, Salman Khan, ‘Bollywood’ star was arrested for allegedly hunting protected species of black buck while filming a film at Jodhpur in Rajasthan. The incident led to national indignation and the authorities filed cases against the film star. Most of the witnesses turned against and changed their testimonies. The case is still being heard at Jodhpur. 

The basic and fundamental challenges that one country comes across in respect to the nexus of Environmental deterioration with scarcity in economic growth and various other dimensions. The challenges are inherently linked with the condition of environmental resources like land, water, air and flora and fauna.The imminent bringer of environmental deterioration are population growth, modern technology and consumption choices. Poverty being one of the reasons leading to changes in relations between people and their ecosystems. Development activity being the next reason like intensive agriculture, polluting industry and unplanned urbanization. Apart from the consistent implementation problem of the Act, there are numerous other reasons and challenges where it has failed to meet the actual desired and required objectives mentioned within the Act. One of such reasons and possible reason is the slow rate of conviction in the trial courts, which manages wildlife related cases. This has led to a total ignorance of the wildlife laws making them an unproductive barrier to uncontrolled hunting, poaching and habitat ruination by the offenders of Wildlife Protection Act. 

The position of wildlife in a region is a precise index of the state of ecological resources and also the base of natural resources of human well being because of the interlinked nature of ecological establishment under which wildlife is an important link. So accordingly Conservation of wildlife involves the protection of entire ecosystems.

We seriously need to keep all these judicious perspectives in our minds while going through the Wildlife Protection Act (1972), as wildlife is a very important link in the web of lives. So it is our best duty to preserve and protect the richness and uniqueness of wildlife to make it available to the coming generation in future.So we should always try and protect the endangered flora and flora existing on our planet. The Wildlife Protection Act, with prompt amendments, can ease the protection of wildlife in India. With the following observation, I conclude my topic.

References

1. https://indiankanoon.org/doc/1765136/
2. https://cites.unia.es/cites/file.php/1/files/guide-enforcement-bangladesh.pdf
3. http://www.legalserviceindia.com/articles/wlife.htm
4. https://books.google.com/books?id=R0hLCgAAQBAJ
5. https://www.advocatekhoj.com/library/bareacts/wildlife/54.php?Title=Wild%20Life%20(Protection)%20Act,%201972
6. http://wccb.gov.in/WriteReadData/userfiles/file/Wildlife%20Crime%20Investigation%20Manual.pdf
   

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This article is written by Samiksha Gupta, an Associate Advocate at Suren Uppal Offices, Noida. In this article, she mentions about the liability of the employers to remunerate its employees during COVID-19.

Introduction

Where the world is distressed by the daunting situation created due to the catastrophic outbreak of COVID-19, Companies/Industries/Associations and their workforces are also facing frantic challenges during such period of disruption. 

As a consequence of lockdown nearly all business activities have come to halt due to the restricted movement and shutting down off all non- essential services which has impacted the business entities and economy at large.

The major repercussion of worldwide lockdown is being faced by the Employers who are now incapacitated to remunerate its employees due to the paralyzed state of affairs. Furthermore, in such a situation where the Government is expected to support the Companies, industries and establishment but in the absence of the same, tacking this unprecedented challenge is wholly left to the Companies itself and wherein the employers are in a predicament after the various advisories and order passed by the Central Government to remunerate the workmen and protect their interests. 

Order issued by the Ministry of Home Affairs dated 29.03.2020

It is to emphasize that the order passed by the Ministry of Home Affairs dated 29th March 2020 was in pursuance to the powers conferred under the Disaster Management Act, 2005 under Section 10(2)(l). In the forthcoming paragraphs Ministry had stated its intention i.e. the reason for passing such an order “Whereas, to deal with the situation and for effective implementation of the lockdown measures, and to mitigate the economic hardship of the migrant workers in exercise of the powers conferred…hereby directs the State/Union Territory to take necessary actions…. And to take following additional measures:

All the employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers at their workplaces on the due date without any deduction for the period their establishment are under closure during the breakdown.”

Whether Payment of Wages can be mandated for all employees as per the Aforementioned Order? 

Significantly, it is noticeable that neither the Disaster Management Act, 2005 not the Epidemic Diseases Act, 1897 prescribe any clause empowering the Central Government to mandate the payment of wages in a case where the Company is incapacitated to operate its activities due to force majeure conditions like that of COVID-19 pandemic. Therefore, as per the powers and functions granted to the National Executive Committee under the aforementioned Acts, the said authority can only pass such order or directions for the purposes of disaster management in the country. The direction of mandating the remuneration to all the workers at the cost of the industries is not only antagonistic to the objectives which the legislature seeks to attain under the Disaster Management Act, 2005 but also against the jurisprudential principle of utilitarianism.

Principle of Utilitarianism

Utilitarianism is the most powerful and persuasive approach. One important thing to be noted is that this principle is a form of consequentialism guiding the government and the individuals to take actions as per the consequences. 

According to this theory propounded by Jeremy Bentham who was an English Philosopher and a political radical, the actions of the government are weighed against community good to bring greater happiness and maximizing the good i.e. to bring “the greater amount of good for the greater number” Furthermore, to achieve such an end, the government must pursue the four “subordinate” ends of utility and these are universally applicable as the greatest happiness principle

“Subsistence, abundance, security and equality”

Now, keeping this principle in mind while interpreting the order passed by the Central Government directing all industries to mandatorily pay wages to its employees, it manifests that such an order, if applied bluntly to all employers including those facing sustenance issue, would cause menace to the society. Large scale of unemployment leading to the phase of depression would only cause pain and agony.  

Interpretation and Deriving Intent of the Government in case of ambiguity

Now, what is clear from the above order is the intent and objective of the Government while giving such directions. What still remains ambiguous is the applicability of the said order to all the industries/Companies/undertaking etc and even though in circumstances when the aforementioned entities are in doldrums. 

Whether under such circumstances when the entities are not generating revenue and suspects the closure considering the present scenario, are they still bound to remunerate their employees? 

It is a common rule of interpretation that in the absence of specific indication, words should be interpreted according to its literal and plain meaning. But if the statute is ambiguous, then courts resort to statutory construction wherein the following would be considered:

1. The objective sought to be attained
2. The legislative intent
3. The consequence of a particular construction etc

It is pertinent to state that the legislative intent as deduced from the reasons stated in the order dated 29.03.2020 points out towards protecting the interest of migrant workers and to mitigate the economic hardships of such class of people belonging to the majorly the unorganized as well as organized sector such as industries and regulated by the labour laws. Such workers who work for sustaining their lives are now in blues due to the unprecedented COVID-19.

Furthermore, the objective which is sought to be attained is to enable the casual workers/migrant workers/contract workers etc to sustain themselves and succor them in times of distress.

Further, the order should be construed in such a manner that it does not lead to absurdity. Now, if the order dated 29.03.2020 is considered to be binding upon each and every employer and employee after bluntly ignoring the implications on the collapsing Companies then instead of attaining the desired objective it may lead to adverse impacts for instance: mass unemployment due to the shutting down of the business units incapable of sustaining losses and altogether shattering of the economy due to disruption in the purchasing power parity and further resulting in  depression. 

Therefore, in the light of such interpretation, a glance to the following provisions are required

Section 2(s) of Industrial Disputes Act– “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person—

(i) who is subject to the Air Force Act, 1950, or the Army Act, 1950 or the Navy Act, 1957

(ii) who is employed in the police service or as an officer or other employee of a prison; or

(iii) who is employed mainly in a managerial or administrative capacity; or

(iv) who, being employed in a supervisory capacity, draws wages exceeding 3 [ten thousand rupees] per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

Section 2(kkk)– “lay-off” means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery or natural calamity or for any other connected reason] to give employment...”

Section 25C- “Whenever a whose name is borne on the muster-rolls of an industrial establishment and who has completed not less than one year of continuous service under an employer is laid-off, whether continuously or intermittently, he shall be paid by the employer for all days during which he is so laid- off, except for such weekly holidays as may intervene, compensation which shall be equal to fifty per cent of the total of the basic wages and dearness allowance that would have been payable to him had he not been so laid-off.

Provided that if during any period of twelve months, a workman is so laid-off for more than forty-five days, no such compensation shall be payable in respect of any period of the lay-off after the expiry of the first forty-five days, if there is an agreement to that effect between the workman and the employer.”

Is the order Directory or mandatory?

The Supreme Courts have pointed out that the question of a statute being mandatory or directory should be dependent on the intent of the legislature and not upon the language in which the intent is clothed. 

The intent of the Government is discernable from the statement of reasons in the stated order. Further, the Government has been equipped with the power to issue directions with an aim to prevent the disasters under the Disaster Management Act, 2005. 

Firstly, if the said order is treated to be mandatory for those employers who are in a position to break even and succor its workers, then the object and purpose seems to be served by keeping in view the interest of both the employer and employee. Also, as a matter of fact, the Companies should act humanly and ethically to sustain its workers. 

Secondly, if the said order is also treated to be mandatory for those employers who are facing financial crisis and suspecting closure due to the prevalent conditions, then the consequences ensuing would defy the whole object and purpose of the government as in the long run the companies would be constrained to shut down its units thereby affecting the employee due to retrenchment. 

Therefore, in the light of the aforementioned, the order dated 29.03.2020 should be treated as a directive only for the industries facing sustenance issues at the present moment.

Should every Employer Pay and Every Employee be paid?

The interpretative approach as an application of the “Principle of Legality” is preferred to “ambiguity” When one of the construction results in impairing the rights, freedom and immunities recognized then it is always preferred to avoid such a construction. The stumbling block at this crucial hour is the sustenance of the business entities wherein they are struggling to cover the unanticipated losses due to the lockdown and striving hard to get the business going. 

On humanitarian grounds, though such Companies are required to remunerate but only when they are capable and not on the verge of collapsing due to financial distress. Hence, such an order mandating the payment will infringe the rights of the employers and will be detrimental in the long run. The Company after being satisfied about its financial position can adopt ways and means either to deduct the salaries or keep the salaries in abeyance for a certain time period till it is able to revive its activities. 

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This article is written by Ashwin Jain. In this article, the author explains whether specific performance be extracted from joint promisors for a joint promise.

Introduction

Specific relief has always been an exceptional remedy in all common law jurisdictions. Usually, it was granted only in circumstances when monetary damages are not considered as adequate remedy. This article is written for evaluating the feasibility of enforcing specific performance over a promise with multiple joint promisors.

Requirements of creating a Joint Promise

Section 42 of the Indian Contract Act states two requirements for creating a joint promise which binds all joint promisors. Firstly, the promisors should be part of a single contract. Secondly, there should not be an intention to not be jointly responsible for the performance of the contract. After reading the two requirements together, it is presumed that all promisors shall be jointly required to perform their obligations under the contract. 

For e.g. If M, N, O are borrowing from A under a single loan, M, N, O are jointly responsible for paying the loan back to A. It will not be a joint obligation among the borrowers if they divide the loan obligation equally and is written into the loan, then each borrower is liable to pay only his share. 

It is critical for parties to establish their extent of obligation and have it entered into the contract so that they are not liable to pay for other joint promisors breach.

Will all the promisors have to be made party to the dispute to compel performance?

Section 43 of the Indian Contract Act states that a promisee may compel a promisor or more than one promisor to perform the joint promise. It is completely upon the discretion of the promisee as to whom he chooses to perform the whole promise. It makes all liabilities under section 43 joint and several as observed in Motilal Beehardass v. Ghellabhai Hariram.

Can a single promisor compel the other promisors to perform part of the contract?

According to Section 43 of the Contract Act, unless there is a different intention under the contract, any promisor may compel other joint promisors to contribute in equal shares towards the performance of the promise. In case, a promisor defaults or declares bankruptcy when the claim for his contribution is asked for, the other joint promisors shall contribute equally towards paying for the share of the bankrupt promisor. 

Although as described in Section 43 of the Act and as described in Muhammad Askari v. Radhe Ram Singh And Ors. that a promisor cannot compel the promisee to include the other joint promisors in the same suit. However, this does not prevent the promisor to join the other joint promisors to be joined in the same suit under Order 1 Rule 3 of the Code of Civil Procedure, 1908.    

Can contribution for specific performance be compelled from the legal heirs of a joint promisor?

Section 19(b) of the Specific Relief Act states that a decree of specific performance can be enforced against a person who claims under a title which arises after the execution of the contract. However, the specific performance cannot be enforced against the legal heirs because of the reasons specified in Section 14. Contracts of personal services are always voided with the death of the party.

This leaves the promisee with an award for damages. Section 43 of the Contract Act allows the promisor to sue any one or more of the joint promisors to compel performance of the contract. In Mathuradas Canji Matani v. Ebrahim Fazalbhoy, it was held that, if one of the promisors is deceased and the plaintiff wants to claim on the estate of the deceased promisor, the plaintiff must join the legal representatives of the deceased as parties to the suit. 

Enforcing Specific Performance

The rule with regards to specific performance has been changed recently in the Specific Relief (Amendment) Act, 2018. The rule earlier which was also the position of the law in England was that damages are the norm and specific performance is the exception for breach of contract. Section 10 of the Amendment Act allows specific performance for breach of contracts as a primary remedy. This means that granting specific performance to a contract is no longer at the discretion of the court

When it comes to the specific performance of the contract, it becomes much more difficult to compel specific performance from the parties. This is because, the Amendment Act states that, any performance which is dependent upon the personal qualification of the party, if the contract is determinable in nature or supervision of a continuous duty is barred from getting specific performance. 

In Percept D’Markr (India) Pvt. Ltd v. Zaheer Khan it was stated that specific performance cannot be granted on a contract dependent upon the personal qualifications of a person, because it will mean that a person will be compelled to enter into a relationship involving mutual trust and confidence against his will.

 In Indian Oil Corporation Ltd v. Amritsar Gas Service And Ors., it was held that since the agreement is revocable, the only remedy which is applicable is an award for damages and not specific performance.

In Her Highness Maharani Shantidevi v. Savjibhai Haribhai Patel & Ors, which is a case about the construction of residences for the weaker sections of the society, it was held that the construction and allotment of the houses would be a continuous duty which it cannot supervise.

In addition to the above three reasons, the lawmakers introduced the concept of substituted performance, wherein the law allows the aggrieved party to obtain performance of the contract from a third party or from its own agency. It allows the aggrieved party to recover the costs and expenses paid by him from the party committing breach of contract.

Along with the above, the promisee also has to establish that, conditions under section 16 of the Specific Relief Act have been complied with. These include: (i) not obtaining substituted performance, (ii) has to not act in a way which makes the contract impossible to perform; and (iii) he has to prove that he is ready and willing to perform his part of the contract or has performed his part of the contract.

The second obligation mentioned in Section 14(b) of the Specific Relief Act is stated as “who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract.”

For example, If the promisee has to approve the materials for the construction of a house by the promisor contractor and the promisee fails to do so; he cannot enforce specific performance against the promisor.

To comply with the third condition which is mentioned in Section14(c) of the Specific Relief Act, he must prove that he is ready and willing to perform his part of the contract or has performed his obligations. This condition applies to all obligations which have not been waived by the promisor or its performance has been prevented by the actions or omissions of the promisor.

In C.S.Venkatesh v. A.S.C.Murthy (D) By Lrs it was observed that, although it is not necessary to produce ready money, it is mandatory on the part of the party claiming specific performance, to prove that he has the means to generate the consideration amount. Merely a plea claiming that he is ready to pay the consideration, without any material which substantiates the same cannot be accepted. 

In Manjunath Anandappa Urf. … v. Tammanasa & Ors it was observed that “Only in certain exceptional situation where although in letter and spirit, the exact words had not been used but readiness and willingness can be culled out from reading all the averments made in the Plaintiff as a whole coupled with the materials brought on record at the trial of the suit, to the said effect, the statutory requirement of Section 16(c) of the Specific Relief Act may be held to have been complied with.”

The first and second conditions are self-explanatory and leave nothing for the judiciary to substantiate upon. The third condition has been expounded upon by the judiciary in many judgments. The judgments also express that, the readiness and willingness of the party seeking specific performance will have to be asserted by its actions and the state of preparedness the party is in to satisfactorily perform their part of the obligations under the contract. 

Conclusion

From the paragraphs above it has been established that the promisee can call upon any one of the joint promisors to perform the contract. It is still unclear whether a joint promisor can be compelled to specifically perform that part of the contract which he has no apparent expertise or qualifications. Also will such specific performance be satisfactory to the promisee? The remedy of substituted performance has not been widely enforced since its inception in the Amendment Act. Adding substituted performance and removing the discretion of the court from specific performance has improved the quantity and the quality of the choices the aggrieved party has when it comes to compensation for the breach of contract. Choice of route for enforcing remedy will be heavily dependent upon the economic circumstances, behaviour of the parties under the contract and the objective of the aggrieved party.

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This article is written by Ankit Vaid, Admission Counsellor Team LawSikho.

It so happened that on a fine day at the Jammu & Kashmir High Court, the Honourable Judge asked the junior advocate, during his mentioning of a matter, in his usual humorous demeanour:

“Mr Advocate, why are you looking so sad?”

The junior advocate was visibly pissed off at the time. He expressed his grief in an unequally humorous way:

“Sadness is the virtue of every junior advocate who does not have a brief of his own.’’

Sad but true. 

What’s sadder is – that advocate was me.

And I know you, as a junior advocate, might relate to it too.

In fact, this is the reality of most junior advocates in India, especially the first generation ones, who usually end up on the verge of sadness, frustration, depression and all such synonyms one can recall. Why? Because…

They do not get work of their own.

The problem is further exacerbated by the lack of support and training system from the legal fraternity. No incentives for someone starting out. 

It is made worse by the fact that the “successors” of successful advocates are walking a ready-made path of success. They arrive with ready infrastructure, books and journals, and existing client base. Unlike the rest.

Frankly, doctors, chartered accountants, or company secretaries (that is, other self-employed professionals) usually don’t face such hardships at the beginning of their career. Even if they face any, it is nothing compared to that faced by an advocate.

I faced these difficulties myself as I tried to build a career in litigation in Jammu, and finally, one day, landed up at LawSikho to do the Dream Job Bootcamp after buying the Master Access course library. 

After trying my luck with lawyers in Delhi for some time, I decided to spend more time building up basic business skills by … working at LawSikho itself.

However, I have seen the plight of junior lawyers in tier-2 and tier-3 cities closely and believe me they are similar in metro cities also (or worse). And it makes me want to explore this topic: why do these junior advocates get lost amidst the chaos? 

Or even more importantly, what stops them from building a fledgling but reasonable legal practice of their own?

While at Lawsikho, where we get lots of calls and queries from dozens of people every day,  mostly from the legal profession, I came to realise that the problem is two-fold.

One is that young lawyers have very little skill that they can use to earn money, and the second is that nobody is ready to give them a chance.

Issue # 1 Full of inherent potential but lack of practical skill

Issue # 2  Not knowing where to find work

Let’s go over them one by one, and see where you are probably going wrong. 

Issue #1. Not being able to recognize your own potential

I have to say that most junior lawyers come with a lot of potential but they don’t recognize it themselves.

Without being politically incorrect, let me share here a religious anecdote. 

Do you know Hanuman from Ramayana? Yes, the most celebrated character from the epic. 

In Ramayana, when Lord Rama and his army were searching for goddess Sita, they reached the shore of the Indian Ocean. Then Hanuman was asked to jump over the ocean and get to Lanka to inquire about Sita’s whereabouts.

But instead, Hanuman became fearful and full of doubts that he will not be able to cross the ocean. Hanuman had unlimited power vested in him yet he forgot all about that. He could not feel that he could do it. 

Popular opinion says that it was because he was cursed by Matang Rishi to forget his powers until he was reminded of his glory once again.

(Disclaimer: take the story with a pinch of salt though since there are many versions of Ramayana across the Indian subcontinent). 

But he was reminded by Jamvant that he (Hanuman) had all the power in the world to cross the Indian ocean.

That is the case with most of the young advocates.

They simply do not realise the power they have inherited within themselves. 

(BTW, they all need a Jamvant in their legal career. Who do you think is going to make them realize that they have all the power within themself for crossing the vast ocean of despair and suffering? Hint: the name starts with the letter ‘L’.)  

So, it is not that young advocates lack what it takes to be a lawyer. What they lack though is that they do not realize what they already have inside them and how best to cultivate that to bring out the best in themselves. 

What you need to understand though is that just knowing about your potential is not enough. 

You need to go one step further, cut the corners and polish those inherent powers enough so that you grow your legal skills to the maximum extent and finally shine like a round, brilliant diamond. 

But the first question is why budding lawyers do not perceive their self-value and discover their true potential as they should. In my experience, it is because of TWO reasons:

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In the video below, Tanvi Dubey, an Associate at Shardul Amarchand Mangaldas, one of the top tier-1 law firms of India, discusses the roadmap of becoming a successful independent litigator, beginning from the college itself. 

She answers frequently asked questions as follows:

• How to plan internships at law schools;

• How to score internships and top-notch organisations;

• Benchmarks to perform at internships to score PPO and letter of recommendation;

• CV value of extra-curricular activities like MUNs, YPs, Moot Courts, Research Paper presentation at law schools;

• What are the skills required to excel in litigation as a young lawyer;

• How to network in the legal fraternity and land more clients;

• Contribution of  LL.M. in litigation career;

• The resonation of arbitration and litigation in a litigation career;

And many more.

Click on the Play button to watch it right now.

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1) Mirroring Syndrome

Most of the young advocates suffer from mirroring syndrome. It’s not a mental disorder or anything; that’s why we hate to use the word ‘suffer’. 

So in mirroring, young advocates subconsciously try to mirror or start imitating some other person, especially a personality. In most cases, they might be senior advocates or advocates who have made a name of themself in their respective areas/courts/region. 

Mirroring is not a bad practice per se. It helps you understand the nitty-gritty of an art form, get a feel for how the trick is done or what works in a particular way. 

For instance, it is common practice to copy a piece of writing by a master, from the first word to the last word. It’s not like copying that person’s writing style. It’s a part of the process of developing your own style. 

But what if this becomes a crutch, or rather an obstacle to nurturing and growing your full potential? What if it makes you forget who you are? Or, where your true strengths and weaknesses lie? Then it is, of course, detrimental to your career. It might do more harm than good.

Also, what if you are mirroring something that is toxic, or something that is outdated and don’t work anymore?

Let me give you an example. 

For our following courses, Certificate Course in Criminal Litigation & Trial Advocacy and Certificate Course in Advanced Civil Litigation: Practice, Procedure & Drafting, we get the highest number of queries from young advocates. And when our expert mentors talk to them, they get to hear something along these lines:

Advocate: I want to do litigation.

Mentor: May I know why you are interested in litigation (Read civil and criminal litigation only) or what are your other areas of interest (if, any)?

Advocate: I am interested in litigation only.

Mentor: What makes you realise that you want to do litigation (here mentor is also specific to civil and criminal litigation only)? 

Advocate: Because we have ‘LOTS OF’ litigation (again civil and criminal) matters in our city/town/state.

Mentor: Are you sure that after doing our civil or criminal or both litigation course, you will be able to earn more.

Advocate: {Without pausing for a breath} Umm… my senior says litigation is a highly paid career if I do it properly like him.

Now the script might be different for every career counselling call but the queries we receive from young advocates more or less follow the same thread.

That’s where you go wrong. 

You should pursue a career, litigation or not, because of your own wish and not for anyone else. 

But these junior lawyers are so brainwashed by the aura of their seniors that they forget who they are.

They do not explore emerging opportunities which may be way more conducive for them.

Also, another effect of the same is that while blindly following a famous senior lawyer, many junior lawyers end up specializing in a niche they don’t have an iota of interest in. 

Click Above

For example, late Ram Jethmalani, with all due respect, who inarguably started the cult for criminal lawyers, was, in reality, a maverick in ALL areas of law. Perhaps, he later specialized in that niche but is that because of someone he followed blindly? 

I doubt it.

Unfortunately, success does not happen like this.

Also, people end up trying to copy what their seniors do. It’s highly unlikely that you can build a practice today by doing what lawyers used to do to build a practice 20 years back. 

Some things don’t change, but lots of things do. If you do not respond to changes, you go extinct.

Not being able to discover your true “lawyer” self and blindly copying other lawyers most certainly result in failure and ultimately, innumerable creative excuses like the ones below.

2) The Fault in our Stars!

If I get a good chamber where my potential clients could visit me, I will be set for the legal profession.

If my senior gives me a single brief and lets me do the case independently, I will nail it.

If my English communication skills would have been more refined, I would have given reportable arguments.

If my father (or any family member) had been in the legal profession, I would have surely reached the status of Harish Salve (with due respect) one day.

If I had done my graduation from an NLU, I would have been able to achieve a lot more.

If I could have done my LLM from Harvard, I could have been the next Harvey Specter of India!!

There are many If’s and But’s apart from these. 

What I see in the list above is a bunch of stupid excuses. (Pardon me for saying so.)

I do not deny these factors completely but they are not the complete truth either.

If you ask me why Hanuman remained oblivious of his own powers, it was also because he was a dutiful servant/disciple of Lord Rama. 

Hanuman had an unshakable faith in Lord Rama, and he believed that it’s Lord Rama’s name that would protect him always and bolster his strength to perform miracles.

He had such faith in Lord Rama’s name and his Godly powers that he never explored his own for that matter. 

Well, of course, he should because we are talking not about a person here but about God Almighty here. 

But just for the sake of argument, I would say that relying blindly on Lord Rama was his excuse. 

“I don’t need powers. I got Lord Rama himself.”

But Lord Rama knew this was wrong. 

To make Hanuman realize his shortcomings and overdependence on fate, Lord Rama always caused some hindrance in Hanuman’s way to make him realize that while faith is important for every task, it is equally crucial to be aware of the power residing within you and to utilize and enhance the same. 

Or in other words, it is important to accept that knowledge, skill and expertise do matter. There are innumerable examples around you where people came from nothing and managed to build substantial practices against all odds. 

Obstacles often force you to garner the strength that you need to grow bigger. People who rise from hardship, often go higher than others. 

However, that is not how all human beings react to adversities or obstacles. Many people use those obstacles as an excuse for not striving. Adversities make some people stronger, while others give up. 

Failure + amazing and valid excuse = success

So think many people, and later realise what a grand mistake that is.

Excuses do not make things better. They just give you justifications to stay where you are – in trouble. You can innovate and discover valid excuse after valid excuse, and successful people will simply refuse to engage with any of that.

Our job is to create results no matter what advertisites we face, even as lawyers, right?

Likewise, if you do not want to end up feeling dejected, sad or frustrated, never fall back on excuses. Stop entertaining excuses, from yourself, and from others.

Every time you get this feeling that “I am at a disadvantage to others!”, consider this as a challenge to overcome rather than a permanent handicap. 

Imagine that there is the vast Indian ocean lying in front of you and you have to cross it to save Maa Sita from the clutches of Ravana. You already have it in you, and nothing on this planet can stop you from achieving what you are born to do. 

Most lawyers, or let’s say most people around us, end up letting their destiny be ruled by some external force. 

That’s what Lord Rama was trying to teach Hanuman. While the outcome might be influenced by external factors, it is still decided by the will power vested in you as a human being. You have the final say. You can give up because the job is hard, or you can take a leap of faith and never stop working till you get to where your destiny is.

Have you really done everything you could do to get what you want? Have you really knocked on every door, left no stone unturned, and done everything in your power to move forward towards your goal? When you have been unable to run towards your goal, when even walking was not possible, have you tried to crawl at least?

If you haven’t done everything you could, you have no excuses to give.

And there is always more you could do. There is no checkmate in this game, I promise. 

To sum it up, most junior lawyers fall into a vicious downward spiral where they join the court, never get to find out their true “lawyer” selves, feel confused and helpless, start coming up with useless excuses, fall down the dark hole further and feel more and more sad, dejected and lost.

To stop this from happening, I urge you to pause for a second and focus on finding your true north first. Once you know the direction you want to follow, a lot of things will start falling into place.

And when you do, the next most pivotal question comes up.

“How to further develop your legal potential?”

You see, just recognizing and resting on the laurels of your inherent potential is not enough to solve your problem and get you the success you deserve.

Once you finally realize who you are and what you can do, it’s time to start gaining practical skills around that. It is time to train and prepare. It is time to sweat it out and sharpen your tools.

If you align your skill-building with your inherent potential, you will be way ahead of the curve. It just takes months, and the results are incredible once you begin to do this.

In the end, legal practice is a game of skills, just like chess. Keep practising and you will become perfect one day. 

Not by following your Lord Master.

Not by claiming that you are a “natural”.

Law is a jealous mistress, after all. I say, if achieving success as a lawyer is what you desire the most, make it your spouse instead. 

How to realize your true potential?

I once went to intern under a senior lawyer, and while he was around 60 years old, his junior was around 50 years old. That seemed a little odd to me. Not a partner, but a junior?

While I don’t resent loyalty or companionship, I do believe that every lawyer who enters into the litigation profession wants to build his own practice, to be his own boss one day.

If you don’t want to be that 50-year-old junior who still follows his senior like a lost puppy, I think you should better focus on how to realize your true potential as a litigation lawyer.

I will share three steps to make it as fast and smooth as possible. 

Step #1. Keep the balance even

Whenever we go to a senior, please do not make him your ‘’Lord Master/Lady‘’. While you should always respect them for you are there to learn from them. They are supposed to be your mentors.

But do understand that you are also there to add value to his legal practice. He will not be training you for free. You are going to work for and under him. If he does not benefit from your work, this relationship is unlikely to work.

You are not entitled to training and guidance. It has to be earned. 

You will be taking notes during court proceedings. Proxy for him if he is not able to attend the court someday. 

You will probably need to prepare his briefs. You may do initial consultation with the client before he takes the case on. 

You will perform legal research, prepare drafts and applications, and even maintain the case calendar. 

Do you see now that you are not just a freeloader here? You have a very important role to play. 

The important thing to remember is that you are there to provide him as much value as you can, and in turn, he will pay you in value too. Whether he pays you in cash or teaches you the nuances of law practice, it’s always a give-and-take relationship.

And if you are just giving a lot (you need to be sure about that) and getting nothing in return, that does not work, either. 

Since I have been in your shoes before, I want to put in a few pointers on how to handle this.

• Spend at least 6 months to check out any senior before you commit long term. You should vet them thoroughly and research extensively before you become junior to any lawyer. 
• It is not enough if they are successful at the bar. Are they helpful to juniors? What are their past juniors doing now? Do they speak well about their former senior? Are their any red flags? It’s not use to work with a senior who is too busy to take any interest in you. 
• Never, ever engage in his/her personal affairs ( Though exceptions can be made at times of exigency)
• Always try to be available and useful.
• You need to genuinely explore how you can add value to the senior, reduce his work load by taking more upon yourself. 
• Never try to outsmart other colleagues or associates. You are there to learn and not to win your senior’s heart or do any kind of politics.
• Try not to impress your senior by what you can do by promising something in the future, instead impress him/her by what you did. Because if you can’t deliver on the swag you made in front of your senior, it will go against you.
• If by any bad chance you make a mistake, accept it immediately. In fact, if possible, make sure you expose your own mistakes before anyone else does. If you are honest, but it makes your senior trust you and remember you. 
• There is a high chance that your senior may not even know or remember that you exist. Be remarkable, so that he does not forget. 

If still nothing is moving, get out from there. 

Start finding a new senior or better start on your own.

Step #2. Start going independent through baby steps

A scene from the famous movie, Home Alone, comes to mind.

Kevin, the eight-year-old troublemaker, was left all alone in his house, which was targeted by burglars. And now Kevin has to protect his house from burglars, all alone!

Don’t most young advocates, especially the first generation ones, feel like Kevin at the beginning of their career?

They feel like newly born babies just coming from the womb of their law school/colleges and have been left alone to deal with hardships, circumstances, seniors, competitors, the legal system. 

They always feel that they are not mature as yet to be able to intellectually handle an important brief. Perhaps all they are fit for is taking adjournments in cases or asking for pass-overs. Many of them do not even think that they deserve to be paid for their service.

Get this clearly, they surely want to earn money. However, they are not sure that they deserve money for the work they are doing! This is such a disaster.

Wherever you join or whoever you start working under, your ultimate goal is to learn enough to start your own legal practice someday, and that should be as soon as possible.

Set a time goal for yourself. Say to yourself that in the next 6 months, you have to absorb enough knowledge and be legally competent enough to start taking on your own clients.

How are you going to do that? Simple. By reminding yourself that you will never rely on your senior blindly and keep on working every day to become independent. You also need to start learning legal skills beyond what you learn in the chamber, skills that are in high demand. You can talk to us at LawSikho about that, we will be glad to help. 

Here are a few ways to achieve it without hampering your daily work.

• Always take and prepare the brief, as if it’s your own case and you alone will have to argue. 
• Don’t worry if you didn’t get a chance to present before the court. You prepare and argue before other lawyers in your chamber casually and ask them to counter and poke holes. This will help you to formulate your own strategies for your own clients in the long run.
• Please develop the guts to ask for a genuine, fair, reasonable fee. Don’t fumble. Practice visualisation for asking a genuine fee. You need to know your bones that you will do good work and that you deserve to get compensated for your work. Use affirmation tracks, sleep programming and hypnosis, use a coach or whatever, but you need to get out of your inability to consider your work worthy. This is less often connected with the quality of your work, and more often with your self-worth issues arising out of childhood trauma that needs immediate addressing. 
• Try to stow away for future reference the soft-copies of all types of documents that are required in a court, especially in which your senior has the majority of its work. For example, save in drive formats of an index, memo of parties, memo of urgency, different types of the plaint and petitions, affidavits, notices. 
• Many of the plaints, affidavit, petitions, notices, etc have a similar format and just require smart tweaking in facts and prayers. It will give you an edge in taking drafting work from your senior and also help you if you have any work of your own. This is just a starting point though, do not make this the be all and end all of learning drafting skills. 
• Even if your senior sends you for taking adjournments and pass-over only, grab it as an opportunity. Imagine you are a budding actor and the judge sitting in front of you like a camera. 
• Study the psychology of the judge. And how do you do that? Meet his personal assistants, his driver, his peon, his helper, meet retired judges and ask them directly how judges think, react and respond. Read hundreds of orders passed by them in the last one month to get a sense of how they think. Sit in the court and observe.
• Love thy Munshi Ji. Munshiji is the home minister of a chamber. What cannot be done by you asking your senior might easily be achieved through Munshiji’s chamber (provided you play your cards well) whether it is allocation of work, drafting work, or court allocation. 
• Apply all the 28 principles Dale Carnegie suggested in his most famous book ‘’ How to Win Friends and Influence People’’ to succeed in the legal profession.

Step #3. You need to be a master of what happens behind the scene

Never shy away from the projector room. Don’t know what a projector room is and where it is located in the court? 

Don’t worry. There is no place like a projector room in the court but figuratively, it is the place where behind-the-scenes actions happen. 

The filing counter, the record room, the translation department, the respective petition sections, etc. 

Try to visit such rooms, see how files transfer from one table to another, how files travel from the filling counter to the desk of the judge. 

Read the psychology of persons dealing with such filling. it is very important that they recognise you and your senior’s file. 

Be in their good books. 

Meet them even if you don’t have any work. 

Try to show your vulnerability in a dignified yet humorous way. 

In short, please don’t neglect the cinematographer, make-up artists, vanity boys, lights man, choreographer if you want to climb the ladder of the glamorous legal world.

Step #4. Learn legal skills on your own

If you wait around to learn everything from your senior, it might take you a long time to imbibe the knowledge and expertise of your senior. 

Yes, he might be one of the best advocates you met so far in the legal profession but it also means that he will be super busy, bearing a lot of work pressure, and will demand you to get up to speed and be able to add value to his practice as soon as possible.

So, the only way to stop relying on your senior for every other thing and start being proactive and take the initiative to build yourself as a lawyer. 

In case you need to know which areas you would need to work upon, here they are:

Learn contract drafting. In my opinion, this is one of the most vital legal skills that you can develop as a junior lawyer (or lawyer in general). Senior lawyers often get contract drafting work, which they may or may not want to do depending on how senior they are. Customarily, they will pass on the work to juniors if they do not want to do it. If they want to do it, they will probably ask you to prepare the first draft or do the first review and there is your opportunity to shine. Also young litigators can find their own contract drafting work and supplement their meagre income in a substantial manner. 

We have a course that can help you to acquire mastery in contract drafting and negotiation

Litigation related drafting –  civil and criminal. If you can draft a bail petition right from scratch, draft a thorough writ petition, prepare even the first draft of a written statement, know how to prepare a perfect list of dates for arbitration, or prepare the first draft an opinion or draft a reply to a show-cause notice, you are golden to your senior lawyer and you are well on your way to building your own independent legal practice. 

There are a lot of other things you can benefit from learning, arbitration law, NCLT litigation, SAT litigation etc, and for that I recommend that you check out our Litigation Library for unparalleled rapid learning and practical skill development.

Be good at legal research. When you are at the junior level, the bulk of your work would probably revolve around case research. Studying and preparing arguments on points of law, preparing legit answers to legal questions, and keeping yourself informed of the latest court judgments in your area of specialization. 

The more updated you are or the more adept you are at digging the truth, the more valuable you are as a junior lawyer.

Improve your persuasion skills. Why do you think law schools conduct moot competitions? Being persuasive is not a choice but rather a necessity for legal professionals. As Boyzone would probably sing to you, “words are all you have to take the judge’s/client’s heart away.” 

Whether you practise public speaking, take up copywriting classes or even join a part-time sales job, impeccable persuasion skills are a must-have for you as a budding lawyer.

Master the art of networking. Okay, this is not taught in any law school that I know of. However, if you really and truly want to build and grow your legal practice to such a level where clients would literally beg to be on your waiting list, you have to network with your target audience, shamelessly and without rest. 

Determine who your potential clients are. Then adopt your Liam Neeson personality and repeat to yourself, “I am gonna find you and I am gonna make you my fan.” Stalk them on LinkedIn or Twitter. Search them on Facebook. You need to be everywhere where your prospective clients are.

If you start developing these 4 skills today, I assure you that you would be able to set up your legal practice in 6 months-1 year time, for sure. 

We teach you these things in LawSikho. There is a course for that called Legal Practice Development and Management.

Finally, the one question that remains is…

Issue #2. Not knowing where to find work

The first thing you need to get inside your head is that the Indian legal arena is different from its western counterpart. The Indian legal profession is much more distinct and often seen as a welfare profession than the legal profession of other countries where it is no longer a profession but is accepted as a ‘business’.

So what?

While in India, the best way to get legal work is to play the “doctor” with your potential “patients”. 

Remember, you are not selling anything. You are educating them. You are helping them to diagnose future problems.

You are helping someone solve their legal problems. You are essentially the “agent of justice” who represents the poor victim’s interests in front of the blindfolded Lady Justice. So, act like one.

In my opinion, the best way to start your legal practice is through the following avenues.

Startups

I have an elder brother who is a civil and criminal lawyer, with over 10 years of practice experience. And I have NEVER seen him approach startups during this whole time.

The ones I interned under, the ones at the law firms, the ones who mentored me… none of them approached startups. But why?

I can gather that for the highly successful and popular advocates, it might not be a necessity because they are usually flooded with clients on their own.

But in this email, we are talking about junior advocates starving for work. 

Think about it. 

A business concern who needs help with a myriad number of legal issues and challenges, and yet cannot afford to hire a full-time lawyer. What is the next best option left for it? Take external help instead. 

That’s where you come in.

You need work and you do not charge hefty fees.

These startups have loads of work and have very little money to spare. 

A match made in heaven!

Jokes apart, if you are going through a dry spell of clients, your first and often the best resort is to work with startups in the city where you live and practise law.

Over time, these businesses will grant you more work and also refer your services to their other business friends. As they grow, they will be able to give you bigger matters and better pay. As a junior lawyer, this might be a great start to your career.

Legal Aid Clinics

Legal aid clinic is one of the most unexplored activities in Indian legal world, although now it’s gaining some traction. If done properly, it can help in building your clientele very fast through word-of-referral marketing.

You can start a legal-aid clinic for any area, it may be in criminal matters, matrimony matters, start-ups, IPR, cyber cases, or any niche you are passionate about.

If you want to experience working at a legal aid clinic before you open one on your own, you can try contacting the legal services committees through which free or low-priced legal advice is provided to indigent and backward sections of the society, under the National Plan of Action of the National Legal Services Authority (NALSA). 

In most cases, they are looking for capable lawyers to cater to the underprivileged.

Remember you are organising a legal-aid clinic not for people telling you all their adversities, but the focus should be on that you are a good doctor (in the garb of an advocate) who is not only capable of diagnosing the adversities but is also capable of curing and preventing it in future also.

It’s the beginning of your public outreach. Do not get overwhelmed by this one initiative.

Pro Bono Work

Creating a law practice from scratch requires conscious thinking, focused efforts, and hard labour. It is important that young advocates think of their practice or law firm as a form of entrepreneurship.

Since young advocates are so infatuated by the glamour around senior advocates (as explained in the mirroring syndrome section above) they seldom spare a thought on doing pro bono work.

Most lawyers put zero effort towards building their practice. (Explained in “the fault in our stars” section above). 

Read the article below for creating a mind-blow legal practice from pro-bono work.

https://blog.ipleaders.in/pro-bono-work-makes-difference-lawyer/ 

So, already at 4,300 words, I would not like to extend this article further.

I have always wanted to write this piece not because I love to write but that I have been in your shoes one day. 

I have been slogging at the court all day. 

I was struggling with Rs 400 handouts per day.

I used to feel clueless and hopeless most of the time.

On many occasions, we, our group of friends at Jammu & Kashmir High Court, would cut jokes like “when are you going to marry?” and then someone would answer, “when we grow up.” 

We knew though that a monthly stipend (or let’s call it, pay-out) of around Rs 15,000 was just not good enough. We needed more, to do more and to achieve more.

I was where you are today.

Then, one eventful day, I came across the Master Access course library online. To check what LawSikho is all about, I came to the office at Saket, New Delhi and that’s where I met Ramanuj Mukherjee, CEO of LawSikho.

The things that I wrote above are what I learnt from him.

It helped me in figuring where I was going wrong and finding a new direction in life.

I wish this article does the same for you.

Wishing you all the best.

P. P. S. All our premium courses are covered under an unwavering 30 days full money-back guarantee. 

After taking a course, if you feel like it is not working out for you, maybe you are not getting enough value out of it or it is not meeting your expectations, just get in touch with us. We will refund every rupee you paid for the course.

No questions asked, as long as the minimum requirements of the refund policy are fulfilled.

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

The post How a Junior Advocate Struggles at the Beginning of his Legal Career appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of the 3rd week of March 2020 (From 16th March 2020 To 22nd March 2020). 

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

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

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

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

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

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

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

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

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

Congratulations all the participants!

Regards,

Team LawSikho

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

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

So today is the day! We are finally announcing the winner of our Blog Writing Competition of the 1st week of March 2020 (From 23rd March 2020 To 29th March 2020). 

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

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

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

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

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

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

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

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

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

Congratulations all the participants!

Regards,

Team LawSikho

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

The post Blog Competition Winner Announcement (Week 4th March 2020) appeared first on iPleaders.

This article has been written by Nivrati Gupta, a student at Institute of Law, Nirma University, Ahmedabad. This article covers the offences against public tranquillity namely unlawful assembly, rioting and affray under Indian Penal Code. 

Introduction

“There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance,” said Benjamin Ferencz, Chief Prosecutor for the US Army at Einsatzgruppen Trial. 

Peace and democracy go hand in hand, where one lacks the other is jeopardized. To maintain peace and order in society is one of the foremost concerns of any democratic state. Breach of Public Peace is not only qualified as a wrong done against person or property but is also a wrong against the state. Therefore, it is the responsibility of the government to ensure that the peace and morality of the state are maintained and strict rules and regulations are brought to maintain the tranquillity of the state.

A state of peace and order encourages investment growth, creates more opportunities for jobs and draws more visitors. Economic development typically refers to the continuous, coordinated efforts of policymakers and communities supporting a particular area’s quality of living and economic health. Peace leads to lack of hostility. It refers to an atmosphere governed by strong interpersonal and international relations, acceptance of equality, and justice.

The main aim of this is to understand the offences that are against the public tranquillity. From this research, we will get a more in-depth idea about the public tranquillity and the offences that are against the public tranquillity.  

Breach of Public peace

For the proper development of any society, maintaining peace is a must. India being a developing democratic republic identifies the need for maintaining public order and tranquillity. Public order is the absence of criminal activity or political violence. 

Public tranquillity means a group of persons doing an activity which causes disturbance in the activity of an individual or group. Public order which is defined under Section 31 of the Indian Police Act 1861 instructs police to maintain order on roads, public areas, prevent the formation of unlawful assemblies and Section 34 granting the right to the police to punish the person and to be made liable for not following them. These two sections address the need and maintenance of “public tranquillity”. 

Public Nuisance

A public nuisance created in a public setting or on public land, or affecting the community’s morals, safety, or health, is considered to be a state offence. Public nuisances include activities such as obstructing a public road, polluting air and water, operating a prostitution house and keeping explosives. Section 278 of Indian Penal Code defines any person who does an act or an illegal omission that causes any common injury, danger or annoyance to the public or who live or occupy the property in the vicinity, or that necessarily causes injury, obstruction, danger or annoyance to persons who may have the potential to use any public right. Punishment for public nuisance is defined in Section 290 of IPC, in accordance to which person committing public nuisance shall be liable of a fine of Two Hundred Rupees, further if the person continues to create havoc and nuisance even after the lawful public authority issues an injunction, in such a case that person will be liable for imprisonment which may extend to 6 months or fine or both under Section 291 of IPC 

Procedure for removal of Public Nuisance under CrPC

Section 133 of CrPC provides for a rough and ready procedure to be used in urgent cases for removal of public nuisances. In accordance to this section, whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate, specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence as he thinks fit:

1. any unlawful obstruction or a nuisance should be removed from any public place or from any place used by the public; or
2. conduct of any trade or occupation, or the keeping of any goods, is injurious to the health or physical comfort of the community, such trade or occupation should be prohibited or regulated or should be removed or the keeping be regulated;
3. construction of any building, disposal of any substance which is likely to occasion conflict or explosion, should be prevented or stopped;
4. that any building, tent or structure, in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and therefore repair or support of such building, tent or structure, or the removal of support of such tree, is necessary;
5. that any tank, well adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public;
6. any dangerous animal should be, confined or otherwise disposed of.

such Magistrate may make an order requiring the person causing such obstruction or nuisance/ carrying on such trade or occupation or keeping any such goods owning, possessing or controlling such building, tent, structure, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order as: 

1. remove such obstruction or nuisance;
2. desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods, or to regulate the keeping thereof in such manner as may be directed;
3. to prevent or stop the construction of such building, remove, repair or support such building, tent or structure, or to remove or support;
4. fence such tank, well or excavation;
5. destroy, confine or dispose of such dangerous animal in the manner provided by law.

Offences relating to the breach of public peace under IPC

The lawmakers of our country have taken important measures to preserve the public order and peace among the citizens of the community. The legal provisions relating to public order and tranquillity were primarily enshrined in the Code of Criminal Procedure 1973. Nevertheless, various laws were also subsequently formulated in respect of this matter.

Legal provisions in the Code of Criminal Procedure for the protection of public order and the protection of peace is the primary objective of the government. Providing a healthy environment for people helps the country grow and achieve new heights.

Breach of public peace and tranquillity are discussed in Chapter 10 of the Code of Criminal Procedure, which is Maintenance of Public Order and Tranquillity, which lays down the essential duties steps and measures to be taken by the police and government to ensure public peace.

Breach of public peace in Chapter VIII of The Indian Penal Code 1860, deals with the various offences under Public Tranquillity. Under this chapter, the offences discussed are known by the name “group offences” and are further categorized as unlawful assembly, rioting and affray.  

Unlawful assembly

Every right comes with a restriction and responsibility. Article 19(1)(b) of the Constitution of India provides, the right to assemble peacefully without arms Section 141 of the Indian Penal Code forbids unlawful assembly. An unlawful assembly is defined as coming together of five or more people sharing a common object of committing an unlawful act. A common object is defined in Section 149 of IPC. 

In Ram Bilas Singh v. the State of Bihar, it was held that: 

“it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, even if less than that number have been convicted by it if: 

(i) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act

(ii) or that the first information report and evidence shows such to be the case even though the charge does not state so.

(iii) or that though the charge and prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons”

Common object

The members of the unlawful assembly must have a common purpose and aim, and do any of the actions as mentioned in IPC Section 141. When an unlawful assembly exercises the right of private defence and at that moment, when they are threatened by the opposition party, the right of private defence can not be regarded as the general-purpose but, if five or more people abduct a woman and hold her in unlawful confinement, then this assembly is an unconstitutional assembly. 

The specific item is dealt with, within IPC Section 149. Each member of an unlawful assembly is punishable according to this clause.

It was held in Bhanwar Singh & Ors vs the State Of M.P, for common object, it is not necessary to have a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is sufficient if it is accepted by all the members and shared by them all. In order for the case to fall within the first part, the offence committed must be linked to the common object immediately. 

Object means the purpose, and it will be common when the members of the unlawful assembly share the same purpose. All or a couple of members of the assembly may form a common object at any stage. However, a common object in the human mind is entertained so there can be no evidence to prove this directly.

Unlawful Assembly

In Mohan Singh v State of Punjab (AIR 1963 SC) it was held that an assembly will be satisfied as unlawful only when it is having five or more than five people with all sharing the same intention and the requirements of  Section 141 are satisfied. Here the common object must be:-  

1. To (a) overawe by; (b) criminal force (Section 350 of IPC);  (c) Government/Parliament/State body/Public servant  any act which; 
2. Prevent execution of any legal process or law, the legal process is the execution of any process which is in accordance with the law in force. 
3. Cause mischief (Section 425 of IPC) or criminal trespass (Section 441 of the Indian Penal Code). 
4. By the means of using (a) criminal force; (b) obtain property or deprive enjoyment of such property which the person is lawfully entitled to. 
5. By forcing one to do/omit to any act which he is not legally bound to. 

Regarding the members, such part of this unlawful assembly Section 142 of IPC reads as: 

“Any person so being beware of the object and intentions of the assembly formed, intentionally continuing to be a member will be said as a member of such unlawful assembly.”  

Ingredients

• An assembly of five or more persons;
• A common object;
• The common object must be one of the five mentioned in the section;
  • Overawing the central/state governments or  officers,
  • Resistance to the implementation of the legal process. 
  • Commission of mischief,
  • Forcible possession,
  • Illegal compulsion,
• Such an object is common to all the members;
• Members joined or continued to join such assembly;
• They assembled knowingly.

Punishment

Punishment of such members is defined under Section 143 of IPC which reads as any member of such assembly shall be liable for imprisonment for a term which may extend to (a) six months or with (b) fine or (c) both.

Additional sections under the Indian Penal Code which deal with unlawful assembly 

Section 144 – Joining or continuing in an unlawful assembly armed with deadly weapons. A person armed with any object or weapon which is used as a weapon and is likely to cause death, such person shall be liable for imprisonment which may extend to two years or fine or both. 

Section 145 – Joining or continuing in an unlawful assembly, knowing it has been commanded to disperse. Any person joining an assembly after having the knowledge that such an assembly is ordered by the law to disperse shall be punished with imprisonment of (a) a term which may extend to two years or (b) fine or (c) both.

Section 149 –  Liability for constructive knowledge of common object – Where any member or members of an unlawful assembly in prosecuting the common intent of that assembly knew intent, any person who is a member of the knew and had knowledge of the intent and is a part of that assembly at the time the offence was committed is guilty of that offence.

Chapter X of the CrPC “Maintenance of Public Order and Tranquillity” includes provisions setting out the structure of the process for the preservation of public order and peace. The chapter is composed of a total of 21 parts dealing with the procedural measures to be followed and taken in preserving public order and tranquillity. Section 129 to Section 132 deals with the laws relating to unlawful assemblies.

If any such unlawful assembly which has gathered does not get dispersed then in such case the Executive Magistrate of the highest rank has the authority to order police/ armed force in order to disperse the assembly. 

This step is necessary for the public security of the country. The magistrate may even direct, or as it may be necessary, even arrest and confine in order to disperse the assembly or have them punished according to law. It is the duty of every such officer of the forces to obey such order as he considers fit.  However while doing so, he shall use as little force and do as little injury to person and property. 

Rioting

A riot is a type of civil disorder which is often characterized by disorganized groups lashing out in a sudden and extreme outbreak of violence against authority, property or individuals. Although individuals may try to lead or control a riot, riots are usually disorderly, exhibiting collective behaviour, and caused by civil unrest in general. Sometimes, riots occur in response to a perceived injustice or out of dissent. 

Rioting is a violent civil disturbance of peace and order by a crowd or assembly. A major difference between unlawful assembly and riot is the presence of violence in a riot. 

Violence, which is (a) force, defined in Section 349 of IPC or (b) criminal force defined in Section 150 of IPC.

Section 146 of IPC defines Rioting as the use of force or violence by an unlawful assembly in achieving a common object thereof. In such a case, every member of the unlawful assembly is guilty of the offence whether he was a part of such violence or not. 

Bilal Ahmed Kaloo v. State of Andhra Pradesh– Mens rea is an essential ingredient for the offence that is committed under Section 153A of IPC.  Criminal intent or evil intention. In general, the definition of a criminal offence involves not only an act or omission and its consequences but also the accompanying mental state of the doer. All criminal systems require an element of criminal intent for most crimes.

Rioting is in itself a means to disrupt the public peace, and is immaterial whether the rioters were violent or not, use of criminal force is not essential, the same was held in the case of  Lakshmi Ammal v. Samiappa (AIR 1968 Mad 310) the court said that violence is not necessary to be inflicted against a person it can be against property or any object.  

Is sudden quarrel a riot? 

In Ananta Kathod Pawar v. The State of Maharashtra, (1997) 11 SCC 564, it was held by the Court that if for any lawful reason a number of persons assembled unexpectedly quarrelled without any prior intention or arrangement, they would not be liable for riot. In such a case, the guilty would be liable for their particular actions and would not be vicariously responsible.

Ingredients

• The accused persons are five or more in number.
• The assembly shares a common object which is illegal in nature.
• In the case of Maiku v. State of Uttar Pradesh, AIR 1989 SC 67, a Sub-Police Inspector and a few constables detained an individual while the Sub-Inspector investigated a case and the arrested person voluntarily led them to the place where the dead body was found, the detained person attempted to flee the police. Finally, he was overpowered and beaten which resulted in his death. It was held – the purpose of the police was holding an investigation. Hence their common object being lawful. If the common object of an assembly is legal, it is not rioting even if force is used by any member of that assembly. The accused must be armed by a common or harmful object.
• The force used by the assembly or any member thereof in the prosecution of the common object.

Punishment 

Further, the punishment in Section 147 which states that whoever is guilty of rioting shall be punished for either (a) term which may extend to two years or (b) fine or (c) both. 

Also, any person who is guilty of rioting and was armed with a weapon or anything which is used as an object to cause violence in the riot and use of such is likely to cause death. In such a case, under Section 148, the punishment (a) extends to a term of three years or (b) fine (c) both. 

Affray

If two or more people fight in public, thus disrupting people’s peace or endangering the one around them then they are said to have committed Affray. The act should create disturbance and disorder in society. Action creating threat in society is affray. Common intention is not important in an affray and a person who has actually committed a crime is liable.

Accordingly, the affray offence is a group or joint act in which two or more parties are engaged in combat against each other, conducted in a public location, resulting in public peace disturbance. It requires a real battle between the parties to create this offence and a simple altercation does not lead to an affray. It is specified in Section 159 of the IPC and Section 160 of the IPC imposes punishment.

Indian penal code defines affray as an assembly of two or more people fighting in a public place which is interfering with the public peace. 

Sections 159 and 160 of Indian Penal Code deals with offences against affray. 

Section 159 defines affray as two or more persons, by fighting in a public place, disturbing the public peace, they are said to “commit an affray”.

Ingredients

An offence of affray can be postulated if it possessed the following:

• Involvement in fighting by two or more persons.
• Such an act took place in a public place.
• Act resulted in the disturbance of the public peace and atmosphere. 

Punishment 

Punishment for committing affray is defined under Section 160, that is, imprisonment of (a) term extending to one month or (b) fine which may extend up to Rs100 or (c) both. People involved in affray may also be convicted for unlawful assembly or riot based on the potential of the act done and threat created in the surrounding.

Conclusion

Public peace and maintaining order is not just another issue in the ruling of any nation, it is one of the fundamentals and core principles of governing a county. Be it the communist china, the British Empire or democratic India. Maintaining peace amongst the citizens and between states is the key to good and successful governance.  For the development and upliftment of a nation and society, there must be peace in society.

In this article offences which fall under disruption of public peace and tranquillity were discussed. These offences are group offences which are generally committed by the large number of persons resulting in disturbance of public tranquillity. It is not always necessary that the actual offence was committed but even the possibility of a threat of causing public disorder shall be punishable. Public tranquillity is an offence that is not only against an individual person and properties but also against the state. Tranquillity is the quiet consistency or condition.

References

1. A study on offences against public tranquillity- International Journal of Pure and Applied Mathematics
2. Chapter VIII – Of Offences Against the Public Tranquillity- Devgan 
3. Offence against Public Tranquility: Unlawful Assembly, Rioting, Affray- Toppr.com 
4. Offences against Public Tranquility, PPT by Vaibhav Goel – 
5. Indian Penal code
   

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This article is written by Atif Rahman. He is a practising lawyer in New Delhi.

The third quarter of the second decade of the 21^st century had just witnessed the Lok Sabha (Lower House) passing the Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019, wherein certain changes were brought about, namely:^[i] 

• Insolvency commencement date,
• Threshold for initiating resolution process,
• Corporate debtors entitled to make application,
• Liabilities for prior offences and,
• Licenses and permits not to be terminated due to insolvency.

Consecutively, during same period a deadly pandemic named as the ‘Novel Covid-19’ out-broke, infecting more than 2,240,000 people globally. Its cursory wide-spread had left businesses around the world counting costs. Having largely ignored Covid-19 as it spreads across the global, financial markets reacted strongly in the past weeks stoking fears of a global pandemic. There is no doubt that financial markets now ascribe significant disruptive potential to Covid-19, and those risks are real. But the variations in asset valuations underline the significant uncertainty surrounding this epidemic, and history cautions us against drawing a straight line between financial market sell-offs and the real economy.

In the midst of the on-going disarray, the Ministry of Finance and Corporate Affairs, as a measure to counter the emerging financial distress, raised the threshold for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor under the Insolvency and Bankruptcy Code, 2016 (IBC) from the current Rs. 1 lakh to Rs. 1 Crore. The threshold limit for initiating insolvency under the IBC is given under Section 4, which reads as “This Part shall apply to matters relating to the insolvency and liquidation of corporate debtors where the minimum amount of the default is one lakh rupees.” And, the said clause has not seen any changes despite the recent Amendment.

The amendment of raising the threshold for initiating CIRP against the Corporate Debtor from Rs. 1 lakh to Rs. 1 Crore by the Ministry of Finance and Corporate Affairs came as a measure of relief to counter the emerging financial distress faced by most companies on account of the large-scale economic distress caused by Covid-19. However, while proceeding with the press release the Ministry expressed its intention to prevent triggering of insolvency proceedings against micro, small and medium enterprises (MSMEs), in order to aide and assist their subsistence and growth.^[ii]

It is emphatically pertinent to mention that such abrupt steps taken by the government in view of defending the emerging financial distress faced by most companies on account of large-scale economics distress caused by the outbreak of the virus is arbitrary and against the very principles of equity and natural justice. The same are also enshrined in the Constitution of India.

Principles of Natural Justice deal with two major aspects:

• Duty of the dominant party to act fairly
• Rights of the other party

In the given circumstance, the government is indeed acting in a biased manner and not acting fairly, and curbing the right of the other party, i.e. the Creditor, in the given case.

It is very well agreed that MSMEs have special position in the Indian economy, as key drivers of employment, growth & financial inclusion, and forms major part of operational creditors along with employees and trade creditors and the same are to be supported and backed in a situation like this, however, the same cannot come at the cost of others. Meaning thereby, that the MSMEs, which are the Corporate Debtor of either the Operational Creditor or Financial Creditor, cannot be given an unreasonable advantage over the Creditor and ought not be made good at the cost of such Operational or Financial Creditor. Such Operational Creditor or Financial Creditor who have already lend operational debt, in form of services rendered or financial debts, in form of financial lending. Having said, there can also be a case where the Operational Creditor or Financial Creditor may also be an MSME. And, in a situation like this, the Creditors will have a duel battle to fight, viz. the growing competition and the other is growing requirement of funds. Any irrecoverable debt, in a situation like this, will have considerable and irrecoverable strain on the business of the Creditor, which in the given situation might be a MSME. One of the key economic reforms of the IBC is that the balance of power has been shifted to the Creditor, thereby instilling better sense of credit discipline. 

Mr. Bahram N Vakil, founding partner of law firm AZB & Partners, in an interview with Reena Zachariah and MC Govardhana Rangan, editors at ‘The Economic Times’, when asked about increasing the threshold limit of triggering IBC, from the existing 1 lakhs – had very categorically stated: “I don’t think so. The discussion is from Rs 1 lakh up to Rs 1 crore. Our rationale is that 80% of India has MSEs in terms of GDP and employment. Those guys wouldn’t even get an appointment.”^[iii] 

Furthermore, the success rate of companies under several regulations prior to 2016 was abysmally low and varied from 16 per cent to a maximum of 25 per cent. In contrast, the success rate of companies under the IBC in terms of a closure is already at 41 per cent and increasing. The recovery rate is 43 per cent, up from 12 per cent in Financial Year 2015 through other mechanisms with defaulting promoters losing control of the company.

CRISIL, an Indian analytical company providing ratings, research, and risk and policy advisory services and is a subsidiary of American company S&P Global, had also published that:- “The recovery rate for the 94 cases resolved through IBC by fiscal 2019 is 43%, compared with 26.5%² through earlier mechanisms. What’s more, the recovery rate is also twice the liquidation value for these 94 cases, which underscores the value maximisation possible through the IBC process.”^[iv]

Thus, by stating the aforementioned statistics and instance – it will not be out of place to state that the low threshold limit of the IBC is one of its key drivers to epitome of success that the IBC currents sees. Primarily in a situation wherein, out of the 48 lakhs registered MSMEs^[v], 43.18 lakhs are registered as Micro enterprise and 5 lakhs as Small enterprise. Thus, if the threshold limit is increased, it will impact in a large chunk of enterprises standing no chance to approach the NCLT under the IBC, as also rightly pointed by Mr. Bahram N Vakil.

According to the United Nations Commission on International Trade Laws (UNCITRAL) Legislative guide on Insolvency Laws, Insolvency should be addressed and resolved in an orderly, quick and efficient manner. Achieving timely and efficient administration will support the objective of maximizing asset value, while impartiality supports the goal of equitable treatment. The entire process needs to be carefully considered to ensure maximum efficiency without sacrificing flexibility. At the same time, it should be focused on the goal of liquidating non-viable and inefficient businesses and the survival of efficient, potentially viable businesses.   

The IBC has had been a big sigh of relief for MSMEs, which would ensure the faster debt recovery or liquidation process. The IBC Law has brought forward the objective to ensure that ease of doing business greatly improves in India. This law has simplified the winding-up process in respect of companies, which was earlier fragmented due to multiplicity of statutes as well as forums. One of the main purposes of IBC is to empower the creditor wherein he or she can get back the dues through the CIRP or through liquidation of defaulting debtor entity. It had already been noted that the success of the Code should be measured in terms of its ability to resolve distress in a value-maximizing manner for all stakeholders. And, due to the low threshold of default, a large number of applications were being filed for initiation of CIRP. And, the entire success of the IBC is wholly and solely anchored on the low bar of triggering the CIRP against a debtor, i.e. the low pecuniary/monetary jurisdiction.

Also, the Hon’ble Supreme Court, benched by RF Nariman and Navin Sinha, JJ, in the landmark judgement of Swiss Ribbons Pvt. Ltd. vs. Union of India[vi] had categorically upheld the validity of the IBC in its entirety as the provisions contained therein pass the constitutional muster. And, noticing that in the working of the Code, the flow of financial resource to the commercial sector in India has increased exponentially as a result of financial debts being repaid, the bench said:

“The defaulter‘s paradise is lost. In its place, the economy‘s rightful position has been regained.”

The bench proceeded and further stated:

“preserving the corporate debtor as a going concern, while ensuring maximum recovery for all creditors being the objective of the Code.”

In addition to raising the threshold limit in view of defending the emerging financial distress faced by most companies on account of large-scale economics distress caused by the outbreak of the virus, the government has also stated that if the current situation continues beyond 30th of April 2020, we may consider suspending Section 7, 9 and 10 of the IBC, 2016 for a period of 6 months so as to stop companies at large from being forced into insolvency proceedings in such force majeure causes of default.

As a precautionary measure against the coronavirus outbreak, the National Company Law Appellate Tribunal (NCLAT) has restricted itself to hear only “urgent matters” till April 1, 2020 and has extended operation of all interim orders and stay passed in the pending matters till their next hearings. All the matters listed for hearing during the aforesaid period “shall stand adjourned and date of hearing would be notified later,” said the latest notice from NCLAT. Alongside, all the Benches of the National Company Law Tribunal will hear only urgent matters from March 16 to March 27.

The Notification issued by the National Company Law Tribunal reads as:

“All NCLT Benches may take up matters which require urgent hearings on request made by the concerned parties.

To rest of the matters, from 16.3.2020 to 27.3.2020, keep giving adjournments.“

The notice also stated, 

“The Insolvency matters fixed between March 17, 2020 to March 31, 2020 may be taken up but the Bench will rise at 01:00 PM on each day during the said period. Filling will be accepted up to 01:00 PM and the office will be closed at 02:00 PM.” 

When the aforementioned precautionary steps were/are already been taken by the Tribunal, then restricting and barring the pecuniary jurisdiction does not per se suffix any material purpose, i.e. the matters pertaining to the MSMEs could have been filed with the NCLT, however, adjudication could have been stalled for a given period.

It is opined that raising the pecuniary limit for triggering the initiation of CIRP in order to safeguarding one side of coin (the Corporate Debtor) and putting the other (Operational or Financial Creditor) at stake would not only be highly unreasonable and arbitrary but also ineffective in safeguarding the financial distress likely to come-up on enterprises, specifically MSMEs and more specifically MSEs. And, like the title suggests, the arrangement made by the Ministry is only intellectually pretentious, but is rather immature. Perhaps, in a force majeure situation like this, the ever-thoughtful government could and should have bring forth an equitable, efficient and protracted arrangement with a bona fide intention to improvise the prima facie concerns of both the parties.

References

[i] https://www.livelaw.in/news-updates/lok-sabha-clears-ibc-amendment-bill-2020-read-bill-153546

[ii] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1607942

[iii] https://economictimes.indiatimes.com/markets/expert-view/nclt-is-a-resolution-and-not-a-recoverymechanism-bahram-n-vakil/articleshow/62276801.cms

[iv] Stated by the President of CRISIL Ratings

[v] https://pib.gov.in/Pressreleaseshare.aspx?PRID=1539110

[vi] Writ Petition (Civil) no. 99/2018; https://main.sci.gov.in/supremecourt/2018/4653/4653_2018_Order_25-Jan-2019.pdf

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This article is written by Aarti Tiwari, from Ramaiah Institute of Legal Studies, Bangalore.

Introduction

The outbreak of coronavirus disease, rolled across the globe, has pushed nations to declare a health emergency situation and has left many countries struggling to contain the spread of the virus. With no vaccine at present, the indiscriminate wrath on one nation is being taken as a lesson by the other countries by putting in place emergent measures to confine the outbreak. The Federal Government of the United States took several measures ranging from health and safety of its people by restricting travel and transportation to managing the financial impact by extending the deadlines for payment of federal taxes and also proposed email filing in courts. Similar measures have been taken by other nations as well, ranging from travel restriction to maintain social distancing by adopting various methods. The same need not be discussed in the present article keeping in view the subject matter. In light of the title of the present article, I would be highlighting measures taken by the government of India and the unique approach adopted for strict implementation of such measures in light with special focus on penal liabilities.

Since the virus is contagious, measures like social distancing, work from home, use of hand rubs, soaps etc., have been advised to prevent the spreading. India being the second most populous country in the world announced slew of measures.

At present and in the prevailing circumstances, the Government has invoked provisions under the Epidemic Diseases Act, 1897, National Disaster Management Act, 2005 and correlating provisions of Indian Penal Code. The aforesaid acts with ‘there specific objectives’ contain/prescribed penal liabilities. Therefore, it becomes imperative to know what lurks out for a common man in this situation and what is the criminal liability which a person would be inviting in the present scenario. An attempt has been made in this short write-up/ article to discuss such provisions.

Covid-19 in India and Criminal Liabilities

India with a population of 1.33 billion people and an area of 3.287 million km2 is the second most populous nation in the world, has taken strict measures to curb this spread of virus. It is a matter of fact and clearly visible from data available that countries with low populations are reporting such a huge surge of COVID cases. With such a huge density of population, as reflected above it would not require rocket science approach to determine the disaster which would occur on citizens had emergent measures were not taken by the administration. Perhaps it is with the underlying theme that several states imposed curfew in their respective jurisdiction followed by nationwide “Janta curfew” imposed by the Government of India. It is a big hurdle for India with such a massive population to control the spread of the virus. Having its first reported case in Kerala and in view of the rising number of cases in other parts of the country. The Government of India imposed the nationwide lockdown for a good period of 21 days. The lockdown, for a layman, would seem to be shutting off all operation and maintaining social distancing. However, the term lockdown owes its origin to the National Disaster Management Act, 2005 [hereinafter referred to as “the Act of 2005”] which was invoked by the Government of India. Similarly, provisions of the Epidemic Disease Act, 1897 [hereinafter referred to as “the Act of 1897”] were invoked by various State Governments and relevant rules were brought in force. The lockdown mandated people to maintain social distancing/physical distancing, restricting the movement of people from one place on another. 

The notification imposing lockdown contained measures/guidelines which were supposed to be followed by each and every individual. Consequently all the shops, educational and other institutions, shopping malls, restaurants and workplaces were shut and both interstate and intra state transportation was put on hold. 

It is important to know what lies under the Act of 2005 and the Act of 1897 and what would be the consequence of application of both the acts in the present scenario, keeping in view the fact that lockdown was imposed by virtue of the said acts.

What is the Act of 2005?

Under Act of 2005, the term ‘Disaster’ means a calamity or grave occurrence in any area, arising from the natural or man-made cause, or by accident or negligence, resulting in substantial loss of life or human suffering or damage to property or environment.

The acts contain the penal provisions for its violation and the violators will be inviting jail terms under the Act of 2005.

Chapter 10 of the Act of 2005 prescribed offences and penalties which are essentially discussed from Section 51-58 of the act which are discussed hereinbelow:

• Section 51 states that whoever without any reasonable cause, interferes or declines to comply with the employee of Center/State government or National/State/District Authority, shall be punished with imprisonment which may extend to a year, or fine, or both. If the ignorance of law results in the loss of life or imminent danger to someone then the imprisonment will extend to two years.
• Section 52 states that whoever knowingly makes a claim believing it to be false for obtaining a benefit, from the officers of the Central/State government or National/State/District Authority, shall be punished with imprisonment which may extend to two years with fine.
• Section 53 states that whoever is entrusted with money or goods, meant for providing relief in any threatening disaster situation or disaster, uses for his benefit or compel any other person to do so, shall be punished with imprisonment, which may extend for two years with fine.
• Section 54 states that whoever makes or circulates false alarm or warning as to disaster, leading to panic, shall be convicted of imprisonment for a term which may extend to one year and fine also. 
• Section 55 subsection (i) states that if any department of the government commits an offense under this Act, the Head of the Department shall be deemed guilty of an offense and shall be punished accordingly unless declared innocent. Furthermore, as per sub-clause (ii), if any Department of Government commits an offense under this Act and it is proved that the offense has taken place under his supervision, other than the Head of the Department, the officer will be punished accordingly.
• Section 56 states that any officer, under this Act who refuses to perform his duty imposed on him, without the written letter to a superior officer or lawful excuse, shall be punishable with imprisonment which may extend up to one year with fine.
• Section 57 states that if a person breaks any rule or order under Section 65, shall be punishable with imprisonment which may extend to one year or fine or both.  
• Section 58 sub section (i) states that if an offense under this Act is committed by a company or by a corporate body, every person who at the time of the offense was committed was in charge or responsible for the company, shall be punishable accordingly, unless proven innocent. Furthermore, as per sub-section (ii) if an offense under this Act is committed by the company, and it is proved that the offense was committed with the consent of any director, manager, secretary or any other officer, will be punished accordingly.

What is the Epidemic Disease Act, 1897?

The Act of 1897 is a century old legislation which was enacted to provide for the prevention of the spread of the dangerous epidemic diseases. The act gives power to both, the central as well as the state government to take such measures when it is satisfied that, any part of it is exposed to an outbreak of an epidemic, or threatened, and the ordinary provisions of laws are insufficient then the government can take measures and prescribe rules for inspection of any person disobeying the enacted/passes under this Act. It mandates that in case any Rules/Orders passed under this Act are disobeyed then the violator shall be deemed to have committed an offense punishable under Section 188 of Indian Penal Code, 1860. Section 188 prescribes punishment with simple imprisonment for a term which may extend to one month or fine which may extend to Rs.200 or with both. Moreover, if such disobedience causes danger to human life, safety, or causes a riot, it shall be punished with imprisonment of either kind for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

In addition to the aforesaid sections, provisions under the Indian Penal Code 1860 would also be attracted. Section 269 of the IPC prescribes punishment for negligent actions which may spread infection of any disease, thereby threatening human life, which is punishable with imprisonment which may extend to six months and/or fine. Further, Section 270 is a more serious offence than the one prescribed under Section 269. It imposes punishment for malignant actions which may spread any disease dangerous to life. The punishment under this section may extend to two years imprisonment and/or fine.

Conclusion

As a concluding remark, it is suggested that in the present situation the violation of rules would not only attract serious penal consequences but would also carry serious potential to endanger the society at large since the virus is contagious and as the study suggests, it takes a good amount of time before the symptoms occur in a human being. In the current scenario, falling trap to legal action would make situation extremely difficult for the violators and their dependents keeping in view the fact that once the lockdown is called off, the country will be facing a great economic challenge and therefore, while people do require prompt support of the Government and its administration for fulfilling their basic needs, one should caution before doing any such act which could potentially violate the existing laws.

References

• Coronavirus Overview, World Health Organization;  https://www.who.int/healthtopics/coronavirus#tab=tab last visited on 5th April, 2020
• Sourced from the Official website of the United States Government; https://www.usa.gov/coronavirus last visited on 5th April, 2020
• https://www.worldometers.info/coronavirus/ last accessed on 19th April, 2020
• https://www.mha.gov.in/sites/default/files/MHAorder%20copy.pdf last accessed on 19th April 2020
• Section 2(d) of the National Disaster Management Act, 2005
• Section 2 and 2A of Epidemic Disease Act, 1897
• Section 269 of Indian Penal Code, 1860
• Section 270 of Indian Penal Code, 1860

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This article is written by Kush Kalra.

The Indian Railways has been instrumental in ushering a new era in the sphere of mass urban transportation in India. Indian railways has been treated as a national common carrier transporting passengers as well as goods over its vast network. The Indian Railways has 114,500 kilometers (71,147 miles) of total track over a route of 65,000 kilometers (40,389 miles) and 7,500 stations. It has the world’s fourth largest railway network after those of the United States, Russia and China.

It carries over 30 million passengers and 2.8 million tons of freight daily. It is the world’s fourth largest commercial or utility employer, by number of employees, with over 1.4 million employees. In terms of rolling stock, IR owns over 240,000 (freight) wagons, 60,000 coaches and 9,000 locomotives. The Indian Railways is a cheap and affordable means of transportation and has played a crucial role in social and economic development of the Country. 

Railways are duty bound to secure the right to security of each and every individual in our country. Despite of that the Indian railways have failed to provide the following safety and security measures: 

• Safety Measures:

1. Anti-Collusion Devices (ACD): ACD is a global positioning system (GPS) based system developed by Konkan Railway Corporation Limited (KRCL), aimed to prevent train collisions at higher speeds by actuation of automatic application of train brakes in collusion like situations. Anti-collusion Device has been installed only in Northeast Frontier Railway (NFR). 
2. Alcohol Detection Devices: Alcohol Detection Devices are required at railway stations to detect the drunk people entering the stations. As section 145 of the Railway Act, 1989 provides punishment for drunkenness at railway stations. This particular section cannot be enforced until the railway police/security people are equipped with alcohol checking devices.    
3. Emergency Telephone at platforms from where a passenger can directly call the station control room in case of emergency. This is required because most of the time passengers are in grave/urgent situations and they require urgent help and presently most stations in India are not equipped with emergency telephones at the railway stations.

• Security Measures:

1. Scanning Machines: Scanning Machines are necessary to check the luggage of passengers at the railway stations. The security of the railway system can’t be made full proof until passengers’ belongings are properly scanned at the entrance points of railway stations. Most of the stations in India are not equipped with the scanning machines to check the belongings of passengers which is a major security lapse. 
2. CCTV Cameras: CCTV cameras ensure the smooth functioning of any railway station and helps in monitoring and tracking of any illegal activity.
3. Metal Detector Doors and Handheld Metal Detectors are necessary to make the travel of every commuter safe so that no unscrupulous elements enter the station with any prohibited or dangerous material.

The above-mentioned safety and security measures are directly related to protection of the precious life of commuters of Indian Railways.

Railways have manifestly failed to discharge their statutory and constitutional obligations. That right to security of an individual is very much a facet of right to life guaranteed under Article 21 of the Constitution of India. The time has come to recognize the right to security of an individual as a fundamental right guaranteed by Article 21 of the Constitution of India.

Railways are not only duty bound to secure the right to security of each and every individual in our country but also to ensure that the resources of the country are utilized for this purpose. Article 39(b) of the Constitution of India mandates such sub-servants of common goods through use of resources of the country. The Indian railways have only installed the Anti-Collusion Devices at Northeast Frontier railway and no further installations of Anti-Collusion Devices is done which is a proof that safety of commuters/ passengers at Indian railways is at stake.

More than 425 innocent people died in the last 10 years due to the collusion of trains in our Country failing to equip the railways with the ACD, a global positioning system (GPS) based system which prevents train collisions at higher speeds by actuation of automatic application of train brakes in collusion like situations.

Indian Railways are fully aware of the need and requirement of scanning machines to check the belongings of commuters but till date most of the railway stations don’t have scanning machines when at a time most of the world is under the threat of terrorism.

The Indian Railways by not checking the passenger belongings at railway stations are playing with the life of innocent commuters/ passengers. Interestingly some safety and security measures are already existing in some Railway Stations while being completely absent from the others. Railways cannot adopt a pick and choose method and decide in its own wisdom to identify Railway Stations for installation of safety and security measures to the exclusion of the others.

Indian Railways have failed to comply with the constitutional obligation to provide basic adequate safety and security measures to the commuters of Indian Railways.  Alcohol checking devices are very much necessary on Indian railway stations to check the unidentified drunk people and unscrupulous elements entering the railway stations and to make sure commuters don’t feel unsafe at railways stations.

The commuters of Indian Railways are entitled to safe, sufficient, affordable and accessible journeys. Access to scanning machines, alcohol detection devices and CCTV cameras and anti-Collusion machines should no longer be seen as a service, but as Human Rights, guaranteed to each and every person in India. However, the commuters of Indian Railways are deprived of their basic rights of safe and secured journey.

Railways have further failed to adhere to safety and security standards which are essential in a country like India to ensure safety and security to the people of the country. They are fully aware of the need and requirement to provide safety and security features at Railway Stations in the wake of terrorist attacks worldwide and before any potential terror attack the perpetrators are to identify Railway Stations with weak security measures which will become sitting ducks for such attacks.

The railways Authorities failed to improve its safety and security mechanisms despite the fact that the Indian Railways having the vast network and crossed through the stations which are infested with the Naxalist and threat to the life of the innocent commuters/ passengers.

Over the years the Indian Railways has augmented its facilities and features both in the Railway Stations as well as on its trains. The Indian Railways has evolved over the past few decades as a more passenger friendly and comfort-oriented enterprise. The Railway Stations are now equipped with state-of-the-art amenities and the trains are provided with modern facilities and world class features. On the other hand, the Railways have failed to improve its safety and security mechanisms commensurate with providing amenities to its passengers.

Railways have conducted safety audit at railway stations in Delhi and found that most stations in Delhi are unsafe as they don’t have proper safety and security measures i.e. scanning devices, CCTV cameras facilities, Anti-Collusion devices, alcohol checking devices, telephones to contact control room in case of emergency and metal detector doors and handheld devices respectively.

Section 145(a) of Railways Act, 1989 explicitly bans commuting in the state of intoxication, however, respondents are themselves deprived of alcohol checking devices to detect the state of intoxication in a commuter. The railway authorities must be equipped with alcohol detection devices to test the state of intoxication and restrict such a person from commuting in the railways.

The Constitution of India guarantees equal protection to all and forbids the state from depriving anybody’s life and personal liberty without procedure established by law. Social justice which is the base of the Indian Constitution has its overtones in the criminal justice system too. The preamble of Indian Constitution itself makes it clear that there is equality among all the citizens of India and that is the reason all persons are equal before the law including law makers and followers of the same law. 

Every society has different norms to protect the human life and dignity of individuals. The right to life denotes the significance of human existence for this reason. It is widely called the highest fundamental rights. Our Indian Constitution ensures in part III the fundamental rights which are designed to protect and preserve the basic rights of individuals from the violation of right to life with human dignity. The concept of right to life and liberty was enriched in Article 21 of the Constitution of India, being fundamental right guaranteed to the citizens and non-citizens of India. The main intention of Constitution framers is to promote individual welfare as well as social welfare. Right to life is the most precious fundamental right amongst all human rights. Undoubtedly its scope and applicability and with the advent of their modern strides in jurisprudence with revolutionary pronouncement by the various courts have assumed wider connotations and amplifications. Under this noble concept, every citizen has been guaranteed the right to life and liberty. Article 21 imposes an obligation on the state to safeguard the right to life of every person and preservation of human life is thus of paramount importance. The concept of dignity under the Indian Constitution is significant any form of violence against women is violation of the fundamental right to live with human dignified life. The state has a primary duty to protect the right to live with human dignity as fundamental rights of each citizen. The Constitution has not given any specific provision about human dignity. Article 21 of Constitution of India which grants the right to life has wider meaning which includes the right to life with human dignity. It is a fundamental right without which we cannot live as human beings and includes all those aspects of life which go to make a man’s life meaningful. Life is not simply a physical act of breathing, it does not mean merely animal existence; it has a much wider meaning which includes the right to live with human dignity.

The only way to avoid loss of human life is to ensure that adequate safety and security measures are implemented in Railway Stations all over the country to prevent the occurrence of any mis-adventure through terror attacks. Right to life guaranteed under Article 21 of the Constitution of India is an established basic human right which is guaranteed to each and every person in India. The most significant way to protect life is to secure the environment around an individual by providing state of the art safety and security measures available. The right to security of an individual is very much a facet of right to life guaranteed under Article 21 of the Constitution of India. The time has come to recognize the right to security of an individual as a fundamental right guaranteed by Article 21 of the Constitution of India.

Moreover, safety and security measures in the form of Anti-Collusion devices, alcohol checking devices, telephones at railways platforms to be used by passengers to connect to control room, CCTV cameras at railway stations, scanning devices and metal doors and handheld detectors respectively are equally important to secure the safety of passengers commuting through trains and stations. The right to safety is also a means to secure protection of human rights and prevention of accidents and mishaps. The right to safety is also required to be guaranteed and as a fundamental right being a facet of right to life enshrined under Article 21 of the Constitution of India. 

It is extremely important to note that over the years the Indian Railways has augmented its facilities and features both in the Railway Stations as well as on its trains. The Indian Railways has evolved over the past few decades as a more passenger friendly and comfort oriented enterprise. The Railway Stations are now equipped with state-of-the-art amenities and the trains are provided with modern facilities and world class features. On the other hand, the Railways has failed to improve upon its safety and security mechanisms commensurate with providing amenities to its passengers.

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This article has been written by Rajul Jain, an advocate. 

A few days ago my associate lawyer came to me with an odd request. He wanted me to counsel a college junior of his, who was faced with the dilemma of choosing social work over litigation and vice versa. She wondered if all her internships etc. should be on human rights or not, since, at the moment she experienced a strong moral urge to utilise her education for social good. Knowing about my experimentation with the social sector as well litigation work, my junior thought it fit for her to have a discussion with me for some perspective and I obliged. 

Haven’t we all faced these life changing and unsettling questions? Is it society over money or vice versa? Keeping in view the very relevance of this question, where everything is about choosing one thing over the other, I decided to write this article sharing my advice based on my personal experiences arguing for striking a balance. 

Internships really shape your career if you choose quality over quantity

If I have realised something from being an intern and subsequently hiring interns, it is that most are just looking to tick mark those boxes on their college forms and get through the process. Having pursued my LL.B. from Campus Law Centre, I had the option to either do an internship or not. As a result, during the 3 years of college I ended up doing only 2 internships, both very challenging and educational. What I learnt, experiences I had and the relationships I made continue to contribute to the person I am till day. Here’s an overview of my internship experiences, which is essential to drive home the point I am making. 

Social sector internship- Shakti Vahini, Delhi based NGO working on the issue of anti-human trafficking

During my graduation years, I had been exposed to some serious literature on issues concerning exploitation of women and children for sex work/labour and reading the book titled ‘The Natasha’ by author Victor Malarek left an ever lasting impact on my mind. That’s how my focussed research on the prevalence of human trafficking in India started. I realised that Shakti Vahini was a very credible organisation working primarily in Delhi and engaged in rescue, rehabilitation and policy advocacy on issues of exploitation of women and children. I approached them and got an internship opportunity. 

At the relevant point in time, one of the founder members of the NGO was actively associated with the panel created by the Supreme Court of India to look into policy measures that may be taken to provide alternate livelihood opportunities to sex workers and in order to do this, the panel required case studies and data collected from primary sources to extend recommendations to the court. Therefore, in this internship I got an opportunity to visit the famous red light area in Delhi, namely, GB Road and interview the women on the various aspects that we needed information on. I jumped at the opportunity and immediately agreed to be a part of the project. Of course, the credibility of the organisation, the local rapport they had in the area because of which my safety was ensured and availability of a support team were factors I took into account. 

The work started and I would spend hours every day both visiting brothels and seeing their actual living conditions and talking to them or we would call them over for group interactions on health and hygiene, while I would also steal opportunity to communicate with those sex workers whom we could not reach otherwise. This field work spread over weeks culminated into a compilation of case studies and views of the sex workers on what kind of policy measures would suit them best. My report was well-received by the NGO and ultimately submitted to the panel. 

This entire exercise helped me in understanding the nuances of field research, conducting interviews and taught me how to handle tough situations on ground. It sure will go a long way in pursuing higher studies which require these skills. At a personal level it made me become present to a number of realities in life, examine economic and social issues present at the grass root level and break the barrier of assumptions and prejudices I initially had. 

Most importantly, due to the quality of work I did, the relationship and reputation that I garnered during this internship period, helped me in getting a paid work opportunity as Legal Research Officer right after graduation from law school and was even followed by consultancy projects sponsored by international rights organisations, much after I had moved onto experiment with litigation. 

Litigation internship- Chamber of Mr. Sanjay Jain (Senior Advocate), Additional Solicitor General, Supreme Court of India 

July is a crucial month for students to pursue court internships, hence you have to start applying a few months in advance. With guidance from a friend, I managed to approach and land an internship opportunity in the chamber of Mr. Sanjay Jain, Senior Advocate presently the Additional Solicitor General, Supreme Court of India. During this period his chamber had about 4 other interns and very early on I understood that it would not be easy to get work exposure if I didn’t pro-actively participate. In this one and only court internship experience, the office really helped me in understanding the basics regarding how to read a file, research etc. I ended up working on just 3 matters during the entire month. However, to my luck, all were cases at the stage of final arguments and it gave me an opportunity to see Mr. Jain ideate and experiment with arguments. 

One of the highlights of working in Mr. Jain’s office was the work ethics he followed. His meticulous approach to taking briefings, understanding the files and then framing his arguments was a spectacular experience which inspired me. Due to my involvement in case preparation, I could not only be a part of the discussions but the associate I was assisting also made sure to highlight my efforts in research and hence I ended up interacting with Mr. Jain a lot more than I had expected. The internship period came to an end too soon. 

But I realised that my work had not gone to waste when several months later I approached him for an employment opportunity in his chamber and he readily agreed. The association that started in 2012 has continued ever since, as I went onto work in his chamber and assisted him in various matters before different fora in Delhi and outside, until going independent in April 2019. My work experience in his office has been an important part of the process of me becoming a lawyer, he has been a mentor and I continue to look up to him for his wise words and art of advocacy. 

Work experience

I started working with Shakti Vahini as a Legal Research Officer right out of law school. While working here I met one of the most dedicated teams working on the cause, which would work tirelessly irrespective of hours and holidays. The sentiment and commitment was unparalleled. The exposure to workshops, conferences and deliberations on global efforts also made a world of difference to my understanding of the field. However, after working with Shakti Vahini for about a year, I had some realisations with respect to my field i.e. law and the role that I had envisaged for myself. While my work allowed me to interact with trafficking survivors, look into applicable state policies, track the developments in law, I felt stifled by the shortcomings in the legal system.

Even though the books draw a rosy picture of what ‘ought’ to be, what actually happens is far from ideal. It was because of this growing sentiment in my mind that I decided that I needed to be a part of the system as a lawyer. It was only upon practising law that I could understand the practical realities behind court functioning, the failed prosecutions etc. This is when I decided to switch to litigation and joined the chambers of Mr. Jain where while working on all kinds of commercial matters I got understanding of important skills like how to address courts, procedures etc. which come in handy even for pursuing litigation pertaining to social causes as well. 

Even so, I continued to be in touch with the social sector by contributing in any way possible. For example, once I came across a situation where an NGO tried getting the child of a sex worker admitted into a shelter home, the shelter home despite having vacancy refused to admit the child on the grounds of their bias against his mother’s profession. Upon learning of this situation I recommended that we write about it to the Juvenile Justice Committee of the Delhi High Court. I drafted a letter detailing everything that had happened and submitted the same with the office of Chairperson of the Committee. Within a few days, I got to know that the idea had worked, the Committee had intervened and the shelter home had finally admitted the child. 

My quest to make a difference didn’t diminish and I started advising battered women on their rights and even took up cases pro bono to get them maintenance orders. Due to my work experience in anti-human trafficking and working with women and children coupled with knowledge of law, I am frequently invited to conduct training programs for various stakeholders on sexual harassment laws. More recently, I was appointed by court to represent a husband-wife duo, in a rape trial, that has been languishing in jail for 6 years now. 

All this while I continue to practise in various fields of law including commercial laws and it is a mix of these two areas that keeps me going. In fact, my paid litigation work more often than not subsidises my pro bono advisory and litigation. 

Takeaway

1. Make sure to give your best effort wherever and for however long you intern; 
2. Each internship counts and the relationships you make will last forever; 
3. Do not confine your internships to any specific field, it is only upon experimenting that you realise your real interests;
4. Sticking to one particular sector/ field for doing internships, writing articles/papers etc. may be advisable if you are determined about pursuing your academic interests in that particular sector/field. It would be beneficial for obtaining scholarships as well, however, a balance can be struck and is good in the longer run as it empowers you to experiment later on in your career; 
5. Social work/pro bono advisory or litigation work can be done even with commercial practice. The avenues to contribute to social causes with your legal education are plenty and one can always work with the legal aid societies. Therefore it is not strictly about choosing one over the other; 
6. There are a number of famous lawyers who have wholly devoted themselves to the social sector and very actively pursue litigation around their chosen areas; ultimately it’s an individual choice. 

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