This article is written by Vanya Verma from Alliance University, Bengaluru. This is an exhaustive article which deals with custody laws in India, police custody and judicial custody, provisions under the Code for custody and case laws.

Introduction

The meaning of the word custody is to apprehend someone for protective care. The words custody and arrest are different from each other. In every arrest, there is custody but in every custody, there is no arrest. In India, the provisions for holding a person in custody in order to proceed further with the investigation process is governed by Section 167 of the Code of Criminal Procedure.

Police custody

Police custody means that the physical custody of the accused is with the Police, the accused is lodged in a lock-up of a police station.

After an FIR is lodged for a cognizable offense (provides punishment for more than three years), the accused is arrested by the police to prevent the tampering of evidence or influencing the witnesses. 

Under Section 57 of CrPC, the police officer cannot keep the accused for more than 24 hours, irrespective of whether the investigation is complete or not. The accused is produced before the concerned Magistrate within 24 hours of the arrest, the police seek his remand to police custody in order to complete the investigation expeditiously, the police decides for how long the accused must be kept in custody, which cannot exceed a period of 15 days.

Earlier the accused were afraid of the police custody as they were subjected to physical torture and harassment, but after the Supreme Court judgements enumerated the rights of accused, these incidents have got less, Supreme Court brought to task many police officers for custodial torture. Resourceful accused, politicians and others enjoy immunity from third-degree or to say enhanced interrogation methods.

Judicial Custody 

Judicial custody is there in case of serious offenses, where the Court may accede on the request of the police to remand the accused in judicial custody after the police custody period expires, that is to prevent the tampering of evidence or witnesses.

It is mandatory in criminal cases to file a chargesheet within 90 days. If there is failure in the filing of a charge-sheet within 90 days, the bail is normally granted to the accused. But, in case if heinous offenses, like rape or murder, the accused is generally kept in a judicial custody (that is kept in jail under the custody of the court) for a longer duration despite the filing of a chargesheet, in order to not influence the process of trial.

The judicial custody may be for a period of 60 days for all other crimes, if the Court finds it convincing that sufficient reason exists, following which the suspect or accused may be released on bail.

Major differences between police custody and judicial custody

The major differences between police custody and judicial custody are:

1. Police custody means that the accused stays in the lock-up of a police station or in the custody of an investigating agency who is probing the concerned matter, whereas judicial custody means that the accused is lodged up in jail and is under the custody of the Magistrate.
2. A person lodged in a police custody has to appear within 24 hours before the concerned Magistrate, whereas in the judicial custody the person is kept in jail until there is an order from the Court for bail.
3. Police custody begins as soon as the suspect is arrested by a police officer after receiving a complaint or filing of an FIR, whereas, the judicial custody begins after the public prosecutor satisfies the court that the custody of the accused is necessary for the investigation purpose.
4. In police custody, the time period is 24 hours which can be extended to a period of 15 days as a whole by the appropriate Magistrate, whereas in Judicial Custody the maximum time period for detention is 90 days, in the cases where the investigation is related to offenses punishable with life imprisonment, death or imprisonment for a term of not less than ten years and detention is 60 days for crimes where the imprisonment is for less than ten years.
5. In police custody, the security is provided by the police, whereas in judicial custody the judge/magistrate provides the security.

Law relating to custody in India

Section 167 of the Code of Criminal Procedure, 1973 governs the provisions for holding a person in custody for the purpose of proceeding further with the investigation. Section 167 of CrPC allows a person to be held in police custody on the orders of a Magistrate for a period of 15 days.

A Judicial Magistrate may remand a person for a period of 15 days to any form of custody. An executive Magistrate may order to extend the period of custody for up to 7 days.

A person may be held in police custody or judicial custody. Police custody may extend up to a period of 15 days from the date the custody begins, whereas the judicial custody may extend to a period of 90 days for the crimes which entails life imprisonment or death punishment or imprisonment for a term of not less than ten years and 60 days for crimes where the imprisonment is for less than ten years, if the Magistrate is convinced that there are sufficient existing reasons, following which the suspect or accused must be released on bail.

The Magistrate has the authority to remand the person into police custody or judicial custody.

The detaining authority may be changed during the pendency of detention, provided that a total time period of custody does not exceed 15 days. If a person is transferred from police custody to judicial custody, then the number of days the person has served in police custody are deducted from the total time that is remanded to judicial custody.

State v. Dharampal, 2001

In this case, it was held that the accused can be sent to police custody only within the first 15 days since the day of his presentation before the Magistrate after the arrest is done as mentioned in proviso (a) of Section 167(2) of CrPC. In the case of judicial custody, the accused person can be sent to prison either in the first 15 days or even thereafter.

Such accused can be kept in judicial custody if it is a case of a police investigation, that is challan or police report has not been filed before the Magistrate within a period of 60 days (in case the offense is punishable for a period of 10 years or less), 90 days (in case the offense is punishable with a period of more than ten years) and even then, if the accused does not file the bail bond, then he continues with the judicial custody.

If a police report is filed within a period of the aforementioned days, then the accused will not be released on a default bail and continues to be under judicial custody, because enquiry starts after the period of investigation.

Under Section 436A of CrPC, if the accused is undertrial and has undergone judicial custody for half of the maximum awardable punishment for the offense, he can be released on a default bail. Thus, the maximum period of judicial custody can be up to half of the maximum period that can be awarded for the offense.

As soon as there is an arrest the rights of the accused begins. Article 22 of the Constitution of India, 1949 provides protection to the arrested person to the extent that he has the right to know the reason for arrest and he must be produced within 24 hours before the nearest Magistrate. 

It is also provided under Article 22(1) that the arrested person has the right to consult and be defended by a legal practitioner of his choice. 

Section 50 of CrPC is a corollary to Article 22(1) and Article 22(5), which enacts that the person who is arrested should be informed about the ground of his arrest and right to bail.

After a legal arrest of a person, his rights are protected throughout the time period he is held in custody.  In legal custody the person cannot be held up for more than 15 days.

In order to extend the custody, the Magistrate must be convinced that exceptional circumstances are present in order to extend the custody for a maximum period of 60 to 90 days, depending upon the nature of the crime that is being investigated.

Section 167(1) of CrPC makes it clear that the office in charge of the police station or the investigating officer (not below the rank of sub-inspector) can ask for remand only if there are grounds to believe that the information or accusation is well-founded and it appears that investigation can not get completed within 24 hours as specified under Section 57 of CrPC. Thus, the Magistrate’s power to give a remand is not mechanical, there should be adequate grounds to exercise the remand. In Raj Pal Singh v. State of U.P., it was held that the remand order need not look like a judgement that is delivered after a full trial, but the application of the main ground must be evident.

It is the right of the accused to be brought within 24 hours before a Magistrate, excluding the transportation time from the place of custody to Magistrate.

If there is no judicial Magistrate available immediately, then he may be taken to the Executive Magistrate who can remand him to custody for a maximum period of 7 days after which he must be taken to a Judicial Magistrate.

Central Cell-I, New Delhi v. Anupam J.Kulkarni, 1992

In this case, the question regarding the arrest and detention in custody was dealt with. It was held that the Magistrate under Section 167(2) in such custody can authorise the detention of the accused if he thinks fit but the period should not exceed 15 days as a whole. 

Therefore, initially, the custody should not exceed 15 days. The custody can either be judicial custody or police custody as the Magistrate thinks fit.

The words “such custody” and “for a term not exceeding fifteen days in the whole” are important. Under Section 167(2) read along with (2A), the arrested accused when forwarded by the Executive Magistrate to the Judicial Magistrate can order detention in such custody that can either be police custody or judicial custody under Section 167(2) for a period of rest 15 days after the period of detention is deducted by the Executive Magistrate. Thereafter the detention could only be judicial custody. 

There are specific rights during an arrest and custody, which also governs the right of medically unfit prisoners. 

Thereafter the detention can only be in judicial custody. The women who are accused of any offense and if arrested soon after childbirth, they can be taken to the Magistrate only when they are in proper condition to travel. Personal suffering and risk to health shouldn’t be ordinarily removed. They should be allowed to remain in a proper charge in the care of their relations or can be sent to the nearest dispensary and remain there until it is certified by the officer in charge of a dispensary that the woman has sufficiently recovered. In such cases, there must be a police sanction obtained from the nearest Magistrate for either the detention at their homes or in a dispensary, beyond 24 hours period as it is allowed under Section 57 of CrPC. A similar procedure should be followed in the case where the accused persons are too ill to travel.

If there is an invalid arrest on account of the procedure or if there is any violation of a right or if the custody is not passed with the framework of law by a competent Magistrate who is having jurisdiction over the issue, the person so attained has a right to file a writ of habeas corpus under Article 32 of The Constitution of India, 1949 and Article 226 of The Constitution of India, 1949. However, it has to be noted that a writ cannot lie against legal custody, no matter whatever rights have been violated before a lawful custody.

The Supreme Court observed in the case of Kanu Sanyal v Dist. Magistrate, 1974 that “while a person is committed to the jail custody by the competent Court by an order, which prima facie does not appear to be a one without jurisdiction or wholly illegal, a writ of habeas corpus in respect of that person cannot be granted”. It was held that a crucial date when the legality of a remand is to be looked into is the date when a petition comes up for hearing.

In the case of Kana v. State of Rajasthan, 1985 it was held that “if the detention of the accused is legal when the bail application is preferred, his previous illegal detention should not be considered.

Materials must be transmitted

The police officer must transmit the entries in a case diary before forwarding the accused to the Magistrate, when the application for remand has been made by a police officer. The object of this is to provide the Judicial Magistrate information to decide whether to authorize the detention of the accused in custody and also to enable the Magistrate to form an opinion as to whether there is necessity of any further detention.

In the case of Gaibidingpao Kabui v. Union Territory of Manipur, 1962, it was held that if the copy of the entries in the diary related to the case is not transmitted to the Court by the Police, in order to satisfy the Magistrate that there are grounds for believing the accusation or information is well-founded, and for the purpose of an investigation a remand is absolutely necessary, the Magistrate does not have any jurisdiction to direct the detention of the accused.

With the remand report a case diary must be sent, but a mere violation of this cannot discard the evidence. The violation may in some cases taint the prosecution when the facts justify. If there are other materials on record, non-production of the case diaries do not vitiate the police remand order.

An accused is kept in the custody mainly for two reasons:

• To prevent the commission of any further crime.
• In order to facilitate the investigation process.

Landmark Judgments

• Laxmi Narain Gupta v. State, 1986

In this case, it was observed that “Along with the present petition at least another 20 cases have been listed, where the accused are in judicial custody, merely because they are poor. In each of those cases, directions have been passed by the Courts concerned, for admitting them to bail. They are in judicial custody because they have not been able to arrange a surety while the orders for their judicial remands are being passed in a routine manner.”

This drawback exists when the accused is not aware of his rights.

• State (Delhi Administration) v. Dharam Pal, 1981

In this case, it was held that after the expiry of 15 days mentioned in Section 167(2), the accused cannot be kept in a police custody,but only in judicial custody or any custody ordered by a Magistrate.

• Artatran Mahasurana And Ors. v. State of Orissa, 1956

In this case, it was held that it is the duty of the police to satisfy the Magistrate so as to obtain an order of remand, that there is sufficient evidence against the accused. It was further stated by the Court that if the Magistrate is not satisfied on the present evidence, further evidence must be obtained by the police to obtain the order for remand. The remand order is made only after the satisfaction of the Magistrate.

• Manubhai Ratilal Patel v. State of Gujarat and others. 2012

In this case, it was observed by the Supreme Court that remand is a fundamental judicial function of the Magistrate. Magistrate while performing his judicial functions must be satisfied that there are reasonable grounds and the materials placed before him justify the order of remand for an accused. While passing the remand order of the accused, the Magistrate is obligated to apply his mind to the facts and not just automatically pass a remand order or in a mechanical manner.

• Sundeep Kumar Bafna v. State of Maharashtra and Anr, 2014

In this case, it was observed that an anticipatory bail cannot be refused if there is a legitimate cause for the remand of an offender to the police custody under Section 167(2) of CrPC that is made out by an investigating agency.

• Dinubhai Boghabhai Solanki vs State Of Gujarat, 2017

In this case, it was observed that the Court should not rely on decisions without discussing the factual situation that fits into the case on which reliance is placed. It was further observed that the judgement of the Courts  should not be construed as the statutes, and the observation of the Court must be read in the context in which they appear to be stated.

• Mantoo Majumdar and Basdev Singh v. State of Bihar, 1980

In this case, it was held that the Magistrate should not authorize mechanically the detention of the accused. If the law officers who are charged with the obligation to protect the liberty of people, if they are only mindless of the constitutional mandate and the dictates of the Code, then how can freedom survive for an ordinary citizen.

• Kana v. St of Rajasthan, 1985

In this case, it was held that reasons must be given by the Magistrate in order to authorize detention of the accused to custody. Such orders cannot be passed as a matter of a course.

Conclusion

The law provides for the safeguards against abuse but there is a need to remove all contradictions and obstructions. The Magistrate must see the victim’s background before passing orders. There is a need to expand Section 167 so that the remedies must be available for the past illegal arrest and detentions. The Executive must make sure that the people under custody are aware of their rights.

Reference

• https://m.timesofindia.com/india/how-police-custody-differs-from-judicial-custody/amp_articleshow/71132035.cms
• https://lawcorner.in/difference-between-judicial-custody-and-police-custody/
• https://www.lawctopus.com/academike/laws-of-custody-in-india-an-analysis-of-section-167-of-the-code-of-criminal-procedure/
• http://www.legalserviceindia.com/legal/article-573-remand-by-a-judicial-magistrate-if-investigation-is-not-completed-within-24-hrs.html

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This article has been written by Gaurav Prakash, an advocate.

Disclaimer- In this article, I will not be addressing the client by his name or by any pronoun or even gender. This is done to uphold the legal ethics of advocacy.

First love, first car, the first day of school or college is memorable for all. In the same way for an advocate who has just started practicing right out of the college, getting his client is something that every young advocate will cherish the most. While I am still searching for my first personal client, and in this process of finding the first personal client, I have come across several clients who taught me a lot. Interacting with them was an experience. The deal with most of them somehow did not get materialized or either it is still in the process. Nonetheless, this experience has taught me a lot and I would like to share it with my learned friends.

Confused Client

Now the first person who approached me with the case was through a common friend. Now why I call this person a confused one is because it’s been a year since the client got in touch with me regarding his case and till now, I have no idea whether the client is pursuing his case or not, whether the client hired someone else or not. The client had a property issue, and the client was looking for someone who could fight the case in Haryana. After 6 months of being in touch with the client on phone calls, I arranged the meeting with my senior, I was taking as much input from the client as I could, and gave my 100% so that we can proceed with the case. On D-day, I could not attend the meeting in the office as I was in court. I came to know that the client has asked for some more time to make a decision. Again, this client contacted me this year, told me we should look for other options because the fees which my senior quoted was quite high.

Since the client was my first potential client and was a friend’s friend, I referred the client to some other advocate, there also the client went for the meeting but the client was not satisfied with the approach and response of the advocate. I asked the client not to worry and assured me that I will look for someone else. This was the last time we had a conversation. Till date, this client neither called me back nor told me about the position in the case. The client was even ready to renegotiate with my senior regarding the fees at one point of time but even that did not take place or even if it did happen, I was not communicated about the same.

Lesson learnt– The first lesson which I learnt was that never mix your friendship or relationship with your profession. It should be the client who should be after you not the other way around. The way a person pursues his case clearly shows how serious that client is for the case. Be professional to your clients, and help them only up to the stage when the client does not take you for granted. You cannot help a person who is not ready to help himself/herself. If you are giving your 100% then you should expect the same from your clients.

Vanished Client

These clients tend to just vanish at that stage when there is nothing left for discussion and the next step is the commencement of the proceeding in the court. This client was looking for divorce as the client was not happy with the marriage. The client narrated the entire incident about the reason behind seeking divorce on a phone call. I went to my office and told the entire incident to my senior and he again was happy to have a client meeting with the client. The client reached the office on time, had a discussion with me and my senior, she was satisfied and wanted to proceed with the case. The client after a few weeks again came to our office and this time it was finalized that we will go for a divorce case. Both the parties mutually agreed on the number of fees. After that one day, I got a text from the client that we should wait for some months, as there are some health issues, once it’s over then we can proceed with the case because the client wanted to be physically present in the court during court proceedings. We are still waiting for the instructions from the client and we cannot say when we are going for court proceedings or not, if the differences between the couple are resolved or not. If it is resolved then I am very happy for our client.

Lesson learnt– Though in this case, one cannot say that client was unprofessional or careless or was not serious for the case the client surely lacked some courtesy. If an advocate is listening to you patiently, not imposing anything on you, giving enough freedom to decide when to commence with the proceeding then in that case you should also oblige them with the same. As an advocate, I learnt that it is better to engage in the court proceeding as soon as the client meeting is over. A client doesn’t need to be in court every time the matter is listed in the court, there was an unnecessary delay in waiting for the client’s approval. There should be an equal share of power between a client and an advocate. The professional relationship between an advocate and a client should not be dictated by either of the parties. If there is a huge gap between the day of a client meeting and the day of filing of the case then most of the time the advocate usually loses interest in the case or even, he forgets the whole facts of the case and again they have to go through the facts of the case. This can further delay the case proceedings.

Miser Clients 

I have come across clients who were ready to go for the filing of the case and were diligent about their cases. They had a solid case, they had all the relevant documents with them but they had a fixed notion that they are required to pay a particular fee for their case and if this advocate can fit that price quota then I will proceed with him otherwise I will hire someone who is the most economical of them. These clients forget that there is a difference between an Advocate and a Clothing or Tv. Every Advocate charges according to his goodwill in the market, the type of the case offered to him and the paying capacity of his client. These do not choose the best for their case but they choose the most economical for their case. Some advocates have a certain specialization in certain cases, they have a goodwill/face value in a particular court which can help in making their case stronger than the opposing party while other advocates do not have such advantages so they will naturally charge way less than the one who has expertise. 

Lesson Learnt– Indian economy is price sensitive and so are the Indians, clients are no exceptions. One should ask the client about their mood on the fees. What are they expecting and how much they can afford because at the end of the day if it is going to be who is the most affordable of all, then why not be the most affordable? One must not compromise on their usual professional fees. If the clients are not willing to pay some extra for their case then their seriousness for the case is highly questionable. If someone is genuinely not in a position to pay more than the situation is different then you must see the case more as a moral duty then a professional duty. But if they have met you with a fixed fee in their mind then, in that case, it is beneficial for both the parties that they discuss the fees on a phone call before going for the client meeting.

Time-Consuming Clients

These clients generally do not have direct involvement in the case. They are either the third party in the case or they are one of the many parties involved in the case. They will ask you everything about the case in detail, how should we go about the case, what is the fees, what are the remedies for us and then after that they will ask you to wait till they get the approval of all the parties who have locus standi in the case. It happened to me when I met one of the litigants in NCDRC. The client asked for some suggestions. After that, we exchanged our numbers so that in case the client requires any other help the client can contact me.

The client contacted me this time for a case related to a housing society where the client’s children were one of the residents and the whole society wanted to have some reimbursement from the builder. We both were in constant touch on call; I took the help of one of my friends, we both involved my friend’s senior for this client so that all his doubts can be fixed and we can go for the court proceedings. After the phone call meeting, the client told us that the president of the housing society will talk to our senior again and after getting approval from every family in the housing society they will proceed with the case. After that whenever my friend asked about the latest update, the client told him that the meeting with the members of the housing society will take place this month. After that, we just lost our track. It can be quite frustrating for young advocates like us to get nothing in return after giving their best to the client.

Lesson Learnt– Just ignore these types of clients, they will just eat up your valuable time and then they will not give you anything in return. If the client approaches you for the case and he is not directly involved with the case, do not invest your time much in these clients until and unless they introduce you to those who are directly involved with the case. Most of the time they are just looking for free pieces of advice that is it.

Touch me not Client

While we were in school, we were taught about a plant called touch me not plant which is famous for stepping back the moment you try to touch them. The same is the case with these clients. These clients suffer from an emotional breakdown and instead of going to a counselor, they pursue advocates, and most of the time the relief which they sought is not legal in nature. I met this client while I was on my way to the office in a pool cab. The client started the conversation by asking if I am an advocate then the client started talking about the marriage problem. The client was adamant about taking my phone number and wanted to seek legal help on how to save the marriage, well that is not what advocate’s job. The client needed the help of a marriage counsellor and a psychologist as the client was suffering from emotional distress.

Lesson learnt- The advocate should be warm with them and should have empathy for them but they should never get involved with such clients as they ask for the help which an advocate cannot provide. They just want someone who can hear them out well. Advocates are not the best who can do so.The advocate is taught how not to get emotionally attached to their clients and seek every client with a professional approach. 

It is important that in our career apart from knowing what all to do, how to conduct ourselves in front of our clients, we should also know what all things we must not do in our professional career. Our time is limited so we should use it judiciously.

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This article is written by Millia Dasgupta, a student studying BA LLB at Jindal Global Law School. This article covers how the current pandemic will affect the legal industry in terms of policy making, the working and attitude of the courts, firms, and in-houses, legal learning and remote work.

Introduction

The last generation that saw a pandemic which called for this level of social distancing is probably not even alive today (the last pandemic of this severity being the spanish flu).

COVID-19 is going to change the world as we know it. It is going to have a profound effect on society and the way humans interact with each other, even the way our governments have been functioning until now. Among all the professions, the legal professions will be profoundly affected as well. The ways that the legal profession will get affected is the direct fall out of societal changes and also the economic downturn that will follow. Till the vaccination is developed. The physical distancing guidelines are going to have an enormous effect on the food and beverages industry, retail industry and many other big businesses which will directly affect the legal industry. 

This article will not be talking about the bigger implications of the recession that will follow this pandemic, societal and cultural changes and business damages that will affect the legal industry. We will be talking more about specific effects on the legal industry such as work from home, and how that will shape this industry’s future.

What is COVID-19?

Coronavirus is named after the term ‘crown’. They cause common diseases such as the common cold, flu and mild respiratory diseases. Some of them can also affect animals and on rare occasions we see the virus jump from animal species to the human population. 

But there has been a novel type of this virus which is causing such a ruckus. COVID-19 is a new type of virus that experts have not seen before. 1,867,130 have fallen victim to this disease and the most worrying concern is that the virus keeps mutating, thus rendering all previous information about the virus irrelevant. 

The virus can be transmitted through touch. Such diseases are usually transmitted through large droplets (i.e. saliva and mucus) from the infected which contain the virus and survive on surfaces. Another fact that has made this virus so potent is that it survives on surfaces for very long. In order to make sure one is not infected by the virus, individuals are asked not to touch their faces and to always wash their hands, especially if they have been in public areas. Due to the quick rate of spreading, our government has imposed a strict quarantine in order to prevent spreading through human contact. 

Policy Making 

During such pandemics, the government plays an extremely important role due to the fact that a pandemic is largely a public health issue. How the government chooses to legislate in order to deal with this historical event will decide the structure and the contours of the legal sphere and the nature of landmark cases. Before we delve into what the future looks like, let us first discuss one of the models that the government follows during such events.

The Four Acts Model

First Act- Progressive Revelation

Progressive revelation is acknowledging that there is a problem and there is an increasing number of cases. Thus through this step, the government must engage the masses and make them realize the gravity of the situation.

Second Act- Managing Randomness

It is the job of the government now to make everyone understand the source, nature and reason of the pandemic. They must prevent religious, spiritual and cultural groups from cashing on this moment and attributing the reason to something else like the will of God.

Third Act- Negotiating Public response

After it has been ingrained in the collective public consciousness that there is an ongoing pandemic, they will demand some kind of action to be taken. It is during this act that strong and decisive leadership is needed in order to enforce some kind of action that has an effect on all the levels of society. This action must be conscious of the various cultural attitudes, class hierarchy and social differences, and must be enacted in such a way to unite everyone as one against this disaster. 

Act Four- Subsidence and Retrospection

This is for after the danger seems to subside and life begins to return back to its normal patterns, it is the job of the government to analyze their actions i.e.- figure out where they could improve and prepare for the next epidemic or pandemic. 

The Future

Looking at the decisions that the government has already taken with regards to lockdown, it seems that the government will implement more strict laws which may be borderline arbitrary. The court’s reaction to these laws might change as well. 2019 was a year of landmark cases such as the Navtej Singh Johar v. Union Of India Ministry of Law that valued individual liberty over public morality/opinion. The court might change this attitude and pass judgements and approve of laws that value public safety and morality over individual liberty.

Courts

The courts in India are one of the pillars on which this country’s democracy balances on. But due to the pandemic, Supreme Courts and High Courts have limited themselves to only see cases which are extremely important. Courts in their own way have been trying to get creative solutions to the problem such as setting up video conferences. Here is how the various courts are dealing with the issue.

Supreme Court

The Chief Justice of India, S A Bobde said that closing down courts was not a favourable option and they would commence with virtual courts in order to tackle the problem. The SC is also encouraging e-filing and video calling. 

Those showing symptoms of cough and cold will not be required to attend the court. 

Delhi High Court

The Delhi High Court shall only be restricted to watching urgent matters and unless dispensable, parties are advised not to make any personal appearances in court. Video conferences shall be used to record evidence.

Bombay High Court

The Bombay High Court is discouraging individuals from unnecessarily visiting the court and that they should visit only when matters are serious. The court shall be open from 12 pm to 2 pm. HC staff is also exempted from putting their attendance through biometrics and are required to put their attendance by signing a register. The court staff should also avoid crowding rooms and areas like the canteen. 

Calcutta High Court

Like the other courts, the High Court of Calcutta will only be seeing urgent matters. Activities from the Judicial Academy will be postponed until further notice. Lawyers have been directed to not bring their clients into court and video conferencing shall be available for undertrial prisoners. There has been a request for an increase of doctors in not only the High Court but in district courts as well. They shall also be equipped with thermal guns to check the temperature for everyone who enters the court. 

The housekeeping staff shall be reduced to half and shall work on rotation. They have been also asked to maintain hygiene in the court and to disinfect the complex on a daily basis. 

The Future

Due to the pandemic, it seems that the aftermath shall result in courts being able to shift into a structure that they have been very reluctant about changing into i.e- going digital. It seems that they shall be more open to using technology in their daily functioning such as e-filing and video conferencing. 

Law Firms And In-House 

A post-COVID-19 world will prove to be more competitive for firms in terms of finding talent and searching for clients and customers. Due to the problems that this pandemic is causing, businesses will want to go to firms and legal businesses that are able to provide a solution to these unique issues that will arise from the pandemic. This new environment will encourage a new system, where the customer will decide at what amount elite legal expertise will be given, not the firm itself. They will also decide how results are measured. This is due to the fact that there will be a scramble for clientele thus the client will become the real king and will dictate the terms. 

Legal departments will have to look at other areas for insourcing and outsourcing. This is because the recent environment is posing a threat to the traditional structure of such firms and these legal firms must look at unique solutions to these problems. While a lot of the business will go digitized, it will also change many of the traditional ways a firm works. What exactly these changes will be is hard to say from now. 

Mark A. Cohen in his article for Forbes states that the divide between law firms, corporate departments and other supply chain providers will no longer be so defined. Due to the shift to digital work, it will be easier for legal establishments to collaborate and find a solution for their clients. In this new age, expertise, collaboration, delivery, results, and customer satisfaction will matter.

Digital Legal Learning

Law Colleges may follow the example of companies which provide online courses. Such as Lawsikho.com. The advantages of such courses are that they are flexible and accessible. One can tailor their law course to their own needs by choosing the subjects they wish to specialize in. 

Not to mention that online course companies are willing to take the risk of investing in niche subjects (for example space law) due to the fact they will always find a market due to their accessibility. Being an online course also means they are more flexible with their mentors and can update their course material more regularly to meet the needs of their clients AKA students. 

Despite all these perks, Law colleges have adamantly fought off the structure of online courses and have stuck to the traditional classroom structure. It seems that now with COVID-19 forcing major Law Colleges to adapt online classes in their daily working, online teaching will now become the norm. 

It also seems like that online courses will no longer seem to be inferior to mainstream colleges as the masses will get used to the idea of online teaching. The traditional view that physical learning trumps online learning might be shaken off. Law colleges will confront competition from other sources, big tech giants might create legal training and learning centres. They will offer legal courses. Due to the job market becoming more competitive for law students, it is imperative that their coursework is tailored to prepare them for such a job market. 

Work from Home 

COVID-19 has changed the legal workforce drastically. A very prominent change is accommodating remote work in the usual legal culture. Due to this change, many individuals who are a part of the legal workforce have found themselves having to work from home. Thus we see the solid walls of bureaucracy which were so hard to break down before, have now m finally met its match. 

In order to enforce social distancing, industrial and legal titans have had to employ various tools in order to make sure that despite workers being unable to physically be present in the office, they can still contribute. 

These tools include online conferences with coworkers, clients and bosses, e-filing, more electronic communications and more. While it has been extremely difficult for the legal world to accommodate these changes, it has not been impossible and we have seen it evolving at a rapid rate.

While working from home may seem like a strange and chaotic breakdown of mainstream work culture,  A report by the Society for Human Resources Management (SHRM) states that it is nothing new. In 2019, 69% of organizations allowed their workers to work remotely. And it seems that working from home has more benefits than what meets the plain eye. For one, work from home yields better job satisfaction. Further studies also state that changing the work environment and flexible timings which come with remote work yield a more efficient use of company resources and are more productive.

Conclusion

In this article, we have discussed how the legal industry will get affected in terms of policy-making, the working and attitude of the courts, firms and in-houses, legal learning and remote work. While the future may seem bleak, it seems that a titan like the legal industry will survive. 

Reference

• https://indianexpress.com/article/coronavirus/coronavirus-how-supreme-court-high-courts-are-tackling-the-pandemic-6316738/
• https://www.forbes.com/sites/markcohen1/2020/03/24/covid-19-will-turbocharge-legal-industry-transformation/#7e469d001195
• https://www.ncbi.nlm.nih.gov/books/NBK54171/

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This article is written by Vandana Shrivastava, a student of B.A. L.L.B.(Hons.) at the Institute of Law, Nirma University, Ahmedabad. This article is an illustration of filing an FIR or a complaint amidst the lockdown in India.

Introduction

Crimes are mostly committed at night because it’s easier than committing it during the day. Criminals try their best to not be seen by the people. With the recent lockdown in India, the commission of crimes has become particularly easier. Police are deployed in all parts of the country to ensure people stay in quarantine.

Outlaws find their way to commit unlawful acts amidst heavy police deployment in all areas. Wrongs which are committed against people are crimes against the State. It is the right of the citizens to file a complaint against the ones who wrong them.

The question arises-how? Stepping out of the house except to grab groceries is unlawful, and would amount to disobedience of quarantine. This article will illuminate the ways through which a person could file a complaint in the midst of the lockdown.

Filing of complaint during the lockdown

A pause on daily activities does not intimate a break from all problems. Several disputes are going to arise. Matters related to civil law are only dealt with in the Court unless there is a criminal aspect to them. 

Various methods of filing a complaint

There are four methods of filing a First Information Report (FIR) or a complaint. The procedure of filing an FIR is defined under Section 154 of the Code of Criminal Procedure (CrPC). It is a complaint lodged by the victim of an offence or by someone on their behalf. 

The word ‘complaint’ is defined under Section 2(d) of CrPC. The distinction between an FIR and a complaint arises after submission of a police report before the Magistrate. If the said offence is non-cognizable, then it becomes a complaint and the policeman who files it becomes the complainant. 

There are certain requisites of an FIR which must be kept in mind:

• The information of the event should be given either verbally or in writing. If the information is given verbally, the FIR should be written by the police and should be signed by the complainant.
• The stated information should be recorded in the book especially prescribed for that purpose.
• A copy of the recorded information should be given to the informant.

Filing complaint at a Police Station

The general procedure is to file a complaint at the police station which is nearest to the scene of the offence. This option is currently unavailable due to the lockdown. There are several alternatives which are available to people who want to file a complaint. In the absence of all those options, the complainant should reach out to the nearest spot of police deployment and inform a police officer. The complainant should approach the officer in charge and ask him/her to either register their complaint on the post or to take them to the police station and record their complaint.

Either way, they must make sure that the officer in charge has their complaint in writing. The complaint should be signed by the complainant.

Filing complaint before the Superintendent of the Police

This is the procedure which is generally followed during the times of normalcy. If the officer in charge of the concerned Police Station does not file the complaint, then the complainant could approach the Superintendent of Police. The odds of that happening in the current situation are almost negligible since there is heavy police deployment across the nation. 

Filing complaint before a Judicial Magistrate (Not currently possible)

A complaint about a non-cognizable offence is filed before a Magistrate. Not only that, if the aforementioned methods of filing a complaint are unsuccessful, but the complainant could also approach a Judicial Magistrate through the powers bestowed under Section 156(3) of the CrPC. 

Courts are currently non-functional in the entire country. Instead, contacting the police right now is easier than it ever was.

Filing an online complaint

Complainants who have access to the internet could file online complaints if their State or city provides such a service. In order to do so, the complainant must access the website and follow the steps as shown on the website. To help out the ones who might face problems, here is a brief step-by-step explanation of filing a complaint on the internet. The explanation could have been more elaborative, but every State has a different website. The websites are designed differently, making it difficult to find a primary way of doing it.

Given below is a list of all the States and cities which support the online filing of complaints:

1. Tamil Nadu;
2. Himachal Pradesh;
3. Jharkhand;
4. Maharashtra; 
5. New Delhi;
6. Madhya Pradesh;
7. Haryana;
8. Odisha;
9. Bengaluru;
10. Patna;
11. Kolkata.

Currently, filing an online complaint is the safest and most convenient method of reporting an offence. Using online portals for filing complaints or an FIR is easy. The options on the websites are easy to understand as well. A copy of the FIR would be sent to the email address provided by the complainant. Therefore, the complainant should make sure to give a working email address and/or their Whatsapp contact when filing a complaint.

Filing complaint on the phone

More than half of the Indian population has access to telephones and mobile phones. Even if someone does not have access to either of them, someone in their vicinity might have. If someone has to report a matter during the lockdown, they could dial 100 and call the police. It is legal to file a complaint on a telephonic conversation. 

This is the closest and simplest way of filing a complaint amongst all the ways which are currently available to people.

When will the action be taken?

With the Courts being non-functional till the lockdown is lifted, even though complaints can be filed right now, a case, if any, will have to wait to be taken up until the resumption of the Court. In the case of cognizable offences, the officer in charge could conduct an investigation now since it does not require a warrant to conduct an investigation.

Cognizable offences

When the complaint made by the complainant is of a cognizable offence, Section 156(1) of the CrPC states that the officer in charge of the police station is empowered to conduct an investigation which falls within the jurisdiction of the Court of the local area. Cognizable offences are more grave than non-cognizable offences. This is why they do not require the officer to issue a warrant from the Magistrate. 

Generally, these offences pose a punishment of more than 3 years. Attending or organising an unlawful assembly, waging war, committing a murder, performing a negligent act which endangers the lives of others or infects someone else with a deadly disease are few examples of cognizable offences. Some of these offences are prevalent in the country right now.

Non-cognizable offences 

Section 155 of the CrPC states that the officer in charge of the police station should refer the information so received to the Magistrate. Any police officer cannot conduct an investigation of a non-cognizable offence unless it is ordered by the Magistrate. In case there are more than two offences irrespective of their nature, the officer in charge will have the same powers as bestowed in case of cognizable offences. Contrary to cognizable offences, these offences have a punishment period of fewer than three years. Obstructing the work of a public servant, deceiving a Court of law, selling adulterated drugs, causing hurt to someone or cheating someone are few cognizable offences.

In both of the aforementioned situations, the police officer in charge will have to conduct an investigation and submit a report before the Magistrate. The Magistrate will take cognizance of the matter under Section 190 of the CrPC. The Magistrate is empowered to take cognizance even on receiving information that an offence has been committed. Thereafter, the trial will begin. A flowchart created by the MP Police for a clear understanding of the entire FIR procedure can be accessed here.

It shall be noted that if the complaint was made verbally, then the Magistrate, upon taking cognizance of the matter, can conduct an examination of the complainant and witness(es) under Section 200 of the CrPC. The examination is conducted under an oath and is reduced to writing. The written document must be signed by the complainant and witness(s) respectively.

Is an online FIR effective?

Filing an online FIR or complaint is more recommendable than filing it in person or via a phone call. The foremost reason for the same is the safety of the people. Going out could expose them to COVID-19. Moreover, if there is an option of getting the work done without going out, then one must do it.

When an online complaint is filed, its copy is generated and then mailed to the email address provided by the complainant. The e-copy stays safe in the email and could be accessed easily whenever required. The online portal has a section to check the current status of the complaint. After the cognizance is taken, and the offence is being tried in the Court of law, even then the status of the cases keeps on updating.

For foregoing reasons, not only for now but also generally, it is more convenient to file an online complaint of an offence. It is inexpensive. There are instances where police officers refuse to file a complaint. To avoid such practices, it is better to file an online complaint because it always stays on the record. It could not be deleted by the police. The police officers who do not perform their duty diligently would be forced to work and the complainant would get a remedy more quickly. When there is a risk of endangerment of life in going out, online mode of complaint comes to the rescue. 

Can they go to a Police Station?

It is not suggestive to visit a police station due to various risk factors which are associated with going out. If the methods of filing a complaint that is discussed above are unavailable, then the complainant could go to a police station. However, the same shall be avoided if there is a police deployment nearby or on the way.

In the absence of a deployment post, the complainant could visit the police station. The complainant should give a reasonable explanation to the officer in charge behind their visit to the police station in the midst of the lockdown.

Thereafter, the complainant should get the complaint registered. On a very serious note, this act should be the last resort of the complainant, when there is absolutely no option left. In the event of doing so, the complainant should maintain a considerable distance with everyone around.

Conclusion

Many eminent criminologists view crime as a necessary part of society. Opposing of crime brings people together and keeps them united against a cause. That said, it is essential to keep a balance. If the rate of criminal offences rises, it would become a novel issue altogether. There is already an abundance of wanted criminals.

It is understandable that when someone has to file a complaint at a time when the entire country is under lockdown, it must be something bad. But one must remember that their lives are the most important of all. As far as possible, it is recommended that a complaint should be filed online or on a telephonic conversation.

The lockdown is for the benefit and safeguard of the people themselves. Their remedies for any wrong which has been committed against them or another will not go unchecked or unpunished. The State will come to the aid of its countrymen.

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This Article is written by Arkadyuti Sarkar, a student who is pursuing his B.A. LL.B from Shyambazar Law College under the University of Calcutta. This article discusses offences against Children.

Introduction

Since time immemorial, due to their inherent natural weakness, children have been the victims of criminal offences alongside women. The crimes which are committed against children are not restricted to any specific gender or age. This is usually because of their incapability to appreciate the nature of the offences committed against them and their consequences, thereby making them a soft target of the offender. In other words, due to the inherent innocence and maturity which are usually directly related to a children’s age make them an offender’s favourite victim.

Now we will proceed further and learn about various juvenile offences, their impact upon the children’s mind, legislations already existing for combatting them, and the possible measures for preventing and dealing with these juvenile offences.

What are Offences against children?

Before learning about various forms of offences against juveniles, we must first acknowledge ourselves with the concept of offences against juveniles.

Such young persons, for the purposes of legal consideration, ranging from a newly born baby to a person below the age of 18 years. The child, therefore, for the sake of legal protection and consideration is deemed any person of any gender aged between 0 to 18 years of age.

Any offence or offences, committed against a child or children is/are regarded as offences against children or juveniles.

offences for being considered as offences against juveniles need not be criminal activities like kidnapping, murder, rape, or coerced beggary; but also verbal, physical, or mental abuse inflicted upon children.

Offences against Children

Now, let us acknowledge and discuss various types of offences, committed against the children in society:

Cruelty

So what constitutes a cruel act? is it merely torturing someone physically?

Well, cruelty is any act or omission which inflicts mental or physical harm upon an individual, irrespective of age, gender, mental capacity, etc.

Cruelty to a child can include anything from beating him or her, or just creating mental pressure by threatening with physical harm. (Section 351 of IPC Talks about the assault)

In Indian society, people have the least idea of child cruelty. Even yelling at a child for scaring him or her can amount to cruelty. People in our society feel that ‘spare the rod shall spoil a child’. In simpler words, our society has the impression that unless a guardian/parent behaves like a martinet with a child, such child shall never be capable of being disciplined in life. Apart from parents, educational institutions also have the impression that physical punishment for mistakes is the sole way of inducing discipline within a child. Therefore, cruelty towards children has become an accepted notion.

In recent times, however, child cruelty in educational institutions have seen a decline due to strict legislative enactments. But, domestic abuse of children yet goes unaddressed because children by themselves are unaware of their rights.

Apart from educational institutions and home, children can be prone to cruelty even from their peers, i.e other children or another child older in the age in the form of bullying. Bullying means abusing and mistreating someone vulnerable by someone stronger, or more powerful, etc.

Employment of child for begging

Remember Oliver Twist by Charles Dickens? Where the leader of a child begging racket named Faggin would train the impoverished and orphaned children the art of begging, pickpocketing, and stealing.

Next time you donate some alms to any child, be it on a  bus stop or sidewalk or a railway platform, begging in front of you for some money using phrases like ‘they have not eaten anything for the past few days’, try to be a little cautious. That child can be a member of some racket where they are coerced into begging. The very money you are donating to the kid so that he or she can have some food may eventually end up into the pockets of some racket leader who is using that kid to churn your sentiments and make an income through that kid.

Employment of children as beggars exists on a global scale, irrespective of a country’s economic scenario, you might think that what if that child was really hungry and is not related to any such racket?  Do one thing next time when a child approaches you asking for alms then just buy him some food instead if you really intend to help. By doing this you will, on one hand, help the child and on the other ensure that the money does not end up in the hands of some racket.

Sometimes, a child can be used by his own parents to beg for alms. The money in this case also ends up with those who find a child as a convenient source of earning.

Intoxicating a Child

As already mentioned before, the alms you provide to a child who claims himself to be hungry can end up in the hands of some racket leader. However, sometimes it may also end up for the consumption of intoxicants like cigarettes, alcohol, drugs, etc.. There are sellers who for their greed of gains, sell these intoxicating substances to the children.

As racket leaders also tend to intoxicate the kid so that it becomes easier for them to control them so that the children do not run away or protest.

Not only racket leaders, but children might also be exposed to substance abuse by their family members who are or are substance abusers themselves.

Again post intoxication, a child might be kidnapped for the purpose of sale and procurement.

Kidnapping and Abduction

Although kidnapping and abduction are used synonymously for referring to the same purpose, there exists a thin differential line between the two. The kidnapping usually refers to the removal of a minor from the lawful custody of the parents or guardians, whereas abduction refers to the forceful carrying away of an adult person. In the case of kidnapping, the consent of the kidnapped minor is immaterial. However, in the case of abduction, the consent of the adult so abducted can be a good defence for the accused during a criminal proceeding.

Here, however, we will deal with the kidnapping of children which is an emerging issue in contemporary society.

A kidnapping may happen for a variety of reasons:

• For demanding ransoms: In this scenario, a child is being kidnapped so that the kidnapper can extort some money from his/her parents or guardians.
• For the purpose of selling and procurement: Here, the child so kidnapped is being sold to human traffickers who further sell the child for different purposes.
• Parental Child abduction: This mainly happens in the case of divorced or separated parents who kidnap the child for keeping such a child with him/her.
• For the purpose of illegal adoption: Sometimes children are kidnapped and sold to adoption agencies resulting in illegal adoption of such children.
• Murder: Sometimes children are kidnapped for extorting ransom and after the amount is received they are murdered by the Kidnappers so that such children can provide witnesses against the kidnappers. Again, sometimes children are kidnapped for various reasons like a family feud, personal vengeance, etc. 

Sale and procurement

The sale and procurement of children is an emerging and problematic issue in the contemporary time frame.

Children after being kidnapped are sold through human trafficking rackets  and are used for different purposes which involve:

1. For employing them in the beggary.
2. To coerce them for indulging in child prostitution.
3. To hire them as house helpers.
4. To coerce them towards illegal marriages or illicit relationships. 

Other offences

• Child Prostitution

Prostitution refers to delivering sexual services in exchange for money or monetary benefit. Child prostitution is illegal everywhere. Although, there might be differences in the consensual age depending upon the country. For eg: In Italy, the age of consent is 14 years. Nevertheless, human trafficking, kidnapping, and all other child-related offences usually converge or relate to child prostitution. Despite strict legislation around the globe, child prostitution manages to prevail due to huge numbers of paedophiles in society.

• Child Pornography

Child pornography refers to the inducing or coercing a child for indulging in sexually explicit acts and recording them. Such inducing acts can be done by tempting a minor through monetary, or other means. Child pornography is banned in all the nations and pornographic websites are strictly directed for removal or filtering out any sexually explicit content involving a child from the websites.

• Child molestation and rape

Molestations and rapes are not solely restricted to any gender at present. A child irrespective of its gender can be exposed to sexual molestation or rape. Such offences might be committed to a child by a  family member, family friend, school teacher or janitor or even his friends, house help, etc.

Usually, a child fails to comprehend the severity and consequences of such acts due to a lack of knowledge and maturity. Or maybe just stays silent due to threats from the perpetrators. Sometimes their family advises them to maintain secrecy for the purpose of maintaining the so-called family honour.

Whatever be the scenario, there has been an increase in sexual offences against a child and the majority of cases do not get reported.

The provisions for the punishment of the offences mentioned above find their place in various statutory enactments.

Punishment under the Juvenile Justice Act

Chapter IX, Section 75 to Section 87 of this Act deals with the punishment for offences committed against the children.

Punishment for cruelty on a child

According to Section 75; Anyone holding actual charge of or control over a child:

• Assaults,
• Deserts,
• Abuses,
• exposes, or
• does wilful negligence of such child or causes or procures the child to be treated in these manners, 

thereby inflicting unnecessary mental or physical suffering to such child, shall be punishable with imprisonment for a term extending up to 3 years or with a fine of 1 lac rupees or both.

If it is found that such abandonment or desertion of the child by the biological parents is caused due to reasons exceeding their control, it shall be presumed that such abandonment is unintentional and the penal provisions under section shall be inapplicable.

In case such offence is committed by any employee or manager of child care or child protection organization, such employee shall be punished with rigorous imprisonment extending up to 5 years, and fine extending up to 5 lacs rupees:

Moreover, if the aforesaid cruelty causes the child to be incapacitated, or make him mentally ill, or mentally unfit for performing regular tasks, or is vulnerable to life or limb, then such person shall be punishable with rigorous imprisonment, with a minimum period of 3 years but which may be extended up to 10 years and shall also be liable to a fine of 5 lac rupees.

Employment of a child for begging

According to Section 76; anybody who employs a child for begging purposes or makes any child beg shall be punished with imprisonment for a term extending up to 5 years accompanied by a fine of 1 lac rupees.

Also, if any person amputates or maims the child for the purpose of begging, he shall be punished with rigorous imprisonment for a  minimum term of 7 years which may extend up to 10 years, accompanied by a fine of 5 lacs rupees.

Anyone being in actual charge or control over a child abets the commission of any of the offences mentioned above, shall be punished in the same way as provided under this section, and such person shall be considered to be unfit under the section 2(14)(v) of this Act.

Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to a child

According to Section 77; anybody providing or making provision for the availability of any intoxicating liquor, or any sort of narcotic drug, or tobacco products, or psychotropic substance unless being prescribed by a duly qualified medical practitioner, to any child, shall invite punishment of rigorous imprisonment for a term extending until 7 years accompanied by a fine extending up to 1 lac rupees.

Using a child for bootlegging

According to Section 78; anyone using a child for the purposes of:

• Vending;
• Peddling;
• Carrying;
• supplying or smuggling;

of any intoxicating liquor, narcotic drug or psychotropic substance shall be liable for rigorous imprisonment for a term extending up to 7 years accompanied by a fine up to 1 lac rupees.

Exploiting a child employee

According to Section 79;

Anyone who:

• ostensibly engages a child and keeps him in bondage for employing or retaining his earnings; or 
• uses such earnings for himself;

shall be punishable with rigorous imprisonment for a term extending until 5 years accompanied by a fine of 1 lac rupees.

The term “employment” shall include selling of goods and services, and entertainment in public places to obtain economic gain.

Punitive measures for adopting without following prescribed procedures

According to Section 80;

If any person or organization for the purposes of adoption:

• offers; or
• gives; or
• receives;

any orphan, deserted, or surrendered child, without complying by the provisions of this Act, then such person or organization shall be punishable with simple or rigorous imprisonment, for a term extending up to 3 years, or with fine of 1 lac rupees, or with both.

If such offence is committed by a recognized adoption agency, additional to the above punishment awarded to the persons in the authority and management of the adoption agency, the registration of such agency under Section 41 of the Juvenile Justice Act and its recognition under Section 65 of the Juvenile Justice Act shall be withdrawn for a minimum period of 1 year.

Selling and procuring children for any purpose

According to Section 81;

Any person selling or buying a child for any purpose shall be punishable with rigorous imprisonment for a term extending up to 5 years accompanied by a fine of 1 lac rupees.

If the offence is committed anyone who is the real custodian of the child, including:

1. Employees of a hospital; or
2. Employees of a nursing home; or
3. Employees of a maternity home;

then the imprisonment term shall be a minimum for 3 years extendable up to 7 years.

Corporal Punishment

According to Section 82;

Anybody in-charge or employee of a child care institution, subjecting a child to corporal punishment, aiming to discipline the child, shall:

1. on the first conviction, be liable to a fine of 10,000 rupees; and
2. for every subsequent offence, shall be liable for imprisonment extending up to 3 months or fine or both.

If a person employed in a child care institute is convicted for an offence, such person shall be terminated from service, and shall also be debarred from working directly with children in the future.

In case, where any corporal punishment is reported in any institution and the institutional management is uncooperative with any inquiry or lacks compliance with the orders of:

1. The Committee; or
2. The Board; or
3. The Court; or
4. The State Government,

then the person-in-charge of the management of the institution shall be punishable with imprisonment for a minimum of 3 years and shall also be liable to pay fine extending up to 1 lac rupees.

Use of a child by militant factions or other adults

According to Section 83;

If any non-State militant group or outfit:

1. Recruits any child; or
2. Uses any child for any other purposes,

shall be liable for rigorous imprisonment for a term of maximum 7 years and shall also be liable to a fine of 5 lac rupees.

Any adult or a group of adults who use children for illegal activities, either individually or as a gang, shall be liable for rigorous imprisonment for a term of maximum 7 years and shall also be liable to a fine of 5 lac rupees.

Kidnapping & abducting children

According to Section 84;

For the purposes of this Act, the provisions of sections 359 to 369 of the Indian Penal Code, 1860 shall mutatis mutandis(things requiring change have been changed) applicable to a child or a minor who is below 18 years of age and all the provisions shall be construed accordingly.

Commission of offences on handicapped children

According to Section 85; anyone committing any of the offences specified in this Chapter, on any disabled child, then such person shall invite double the penalty provided for such offence.

For the purposes of this Act, the term “disability” shall be synonymous as assigned to it under Section 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Abetment

According to Section 87; anyone abetting any offence under this Act, and if the abetted act is committed consequentially, then the abettor shall invite the punishment provided for that offence.

An act or offence is said to be committed consequentially, if:

1. such offence is committed in consequence of the instigation; or
2. in pursuance of the conspiracy, or
3. with the aid constituting such abetment.

Punishment under the other acts

Indian Penal Code

• Murder

Section 302 of this Act provides for punishment of murder with death, life imprisonment, and fine. This provision includes the killing of a child or minor as well.

• Abetment of suicide of any minor or insane person

According to Section 305; whoever abets the suicide of any person below the age of 18 years, or an insane person, or any delirious person, or an idiot, or an intoxicated person, shall be punishable with death, or life imprisonment or imprisonment extending up to 10 years, and shall also be liable for fine.

• Offences related to causing of miscarriage, injuries to unborn children, exposing infants, and the concealments of births

Section 312 to Section 318 of the IPC enshrines the descriptions and punishments of offences related to unborn children, exposing infants, and concealment of births.

The offences include:

• Causing miscarriage of a woman with malafide intention and also includes the miscarriage caused by a woman to herself.
• Causing miscarriage to a woman excluding her consent.
• Causing miscarriage of a woman resulting in the death of such a woman.
• Acting in a way to prevent a child from being born or causing it to die immediately after birth.
• Causing the death of a quick unborn child by an act constituting culpable homicide.
• Causing the desertion of a child aged under 12 years by its parent or guardian.
• Causing concealment of the birth of a child by the disposal of its dead body.

• Kidnapping & Abduction

Section 359 to Section 369 of the IPC deals with the description of Kidnapping, its various forms of punishment.

Kidnapping

According to Section 359; Kidnappings are of two types: kidnapping from India and kidnapping from lawful guardianship.

Kidnapping from India

According to Section 360; this means kidnapping of any person below the 18 years of age beyond the limits of India without the consent of such person or consent of any person authorized on this behalf.

Kidnapping from lawful guardianship

According to Section 361; this refers to taking or enticing a minor under the age of 16 years in case of male and 18 years in case of female, or unsound person, out of the keeping of the guardian of such minor or unsound person without obtaining the consent.

Punishment for Kidnapping

According to Section 363; this Act provides for punishment for up to 7 years of simple or rigorous imprisonment which might be accompanied by fine, in case of Kidnapping by a person.

Kidnapping or injuring any body part of a minor for the purposes of beggary

According to Section 363A; this provision introduced the presumption that if a person, except the lawful guardian, uses or employs a minor for begging, then unless the contrary is proven, the child is presumed to be kidnapped. The offence of kidnapping the minor for begging is punishable with simple or rigorous imprisonment up to 10 years and fine, and if the child is maimed during the commission of this offence, the accused shall be punishable with life imprisonment.

Kidnapping or abducting for murder

According to Section 364; any person who kidnaps or abducts another person for murdering that person, or for disposing of such person in a manner so as to put that person in the danger of being murdered, shall be punished with life imprisonment, or simple or rigorous imprisonment for a term up to 10 years, accompanied by fine.

Kidnapping for ransom

According to Section 364A; IPC provides that whoever kidnaps or abducts and causes the detention of a person while causing reasonable apprehension of death or hurt in order to extort ransom, shall be punished with death or life imprisonment accompanied by fine.

Kidnapping with the intention of secret and wrongful confinement

According to Section 365; whoever kidnaps another person intending to clandestinely or wrongfully cause the confinement of such person, shall be punishable with simple or rigorous imprisonment extending up to 7 years accompanied by fine.

• Procuring minor girl

According to Section 372; whoever, by any means, induces a minor girl below the age of 18 years to go from any place or commit any act with the intention that such girl maybe, or being acknowledged that she will be coerced or seduced into illicit intercourse with another person, shall be punishable with imprisonment extending up to 10 years accompanied by fine.

• Buying of minors for prostitution

According to Section 373; this provision deals with punishment of those persons who buy or hire any person under the age of 18 years, i.e. a minor with the intention or knowledge that he or she will be employed for the purposes of prostitution, illicit intercourse, or for any other unlawful or immoral purpose, with imprisonment extendable up to 10 years accompanied by fine. Also, if such an offence is committed against a female then it is presumed to include necessary mens rea unless the contrary is proven.

• Raping a minor

According to Section 375,

A man is said to have committed the rape of a minor girl if he does any of the following acts with a girl below the age of 18 years, with or without her consent:

1. Causes the penetration of his penis into the sexual organs of a woman or causes her to do so with him or any other person; or
2. Puts in any object or a body part, to an extent, except the penis, into the sexual organ of a woman or compels her to do so with him or another person; or
3. Manipulates any body part of a woman for causing penetration into her sexual organ or makes her do so with him or another person; or
4. Makes the application of his mouth to the sexual organ of a woman or influences her to do so with him or another person.

This provision, however, deals only with the rape of a minor girl. However, IPC is a general enactment. Special enactment POCSO deals with the rape of both boys and girls in the age of minority.

POCSO Act

The Protection of Children Against Sexual offences Act, 2012 (POCSO) was enacted with an aim to provide a vigorous legal framework for protecting children from offences like sexual assault, sexual harassment, and pornography while protecting the juvenile’s interest at every stage of the judicial processes. The Act has been framed for prioritizing children, by making it easy to use, including mechanisms which render child-friendly reporting, evidence recording, investigation and speedy trial of offences through designated Special Courts.

The new enactment provides for various offences for which a perpetrator can be penalized.

It recognizes various penetrative modes other than penile-vaginal penetration and criminalizes immodest acts that are committed against children. offences under this act include:

• Penetrative Sexual Assault: Inserting penis/object/another body part in a child’s vagina/urethra/anus/mouth, or asking the child to do so with them or some other person.
• Sexual Assault: When a person touches the child sexually or makes the child touch them or someone else in a similar manner.
• Sexual Harassment: passing sexual remarks, sexual gesture or noise, repeatedly stalking, flashing, etc.
• Child pornography.
• Aggravated penetrative sexual assault/aggravated sexual assault.

The act is gender-neutral for both children and for the alleged perpetrator. With respect to pornography, the Act criminalizes even watching or collecting pornographic content involving children. The Act criminalizes abetment of child sexual abuse.

Information and Technology Act

Section 67B of the Information Technology Act, 2000 enshrines the provisions related to the description of child pornography and mentions the punishment for the offender.

According to this section:

1. Whoever publishes, or transmits, or causes such publication or transmission of any material in electronic form, depicting engagement of children in a sexually explicit act or conduct;
2. Whoever:

• Makes the creation of the text or digital images;
• Collects;
• Seeks;
• Browses;
• Downloads;
• Advertises;
• Promotes;
• Exchanges or distributes,

any electronic material depicting engagement of children in acts of obscenity or indecency or sexually explicitness;

1. Whoever grooms entices, or induces children to online relationship with each other or more children for and on the sexually explicit manner or in such manner which might be offensive to a reasonable adult on the computer resource;
2. Whoever facilitates child abuse by use of the online medium;
3. Whoever records electronically and retains any form of sexual abuse involving ownself or other persons, pertaining to sexually explicit acts with children;

shall on first conviction be punished with imprisonment of either description for a term extending up to 5 years accompanied by a fine up to 10 lac Rupees. And in case of second or subsequent conviction, the imprisonment period may extend up to 7 years accompanied by a fine up to 10 lac Rupees.

For the purposes of this section, a child shall refer to a person who is yet to attain 18 years of age.

However, the provisions of section 67, section 67 A, and this section shall exclude any:

• Book,
• Paper,
• Writing,
• Drawing,
• Electronic representation.

In case:

1. such publication is evidently justified for the purpose of public good on the ground that such book, pamphlet, writing, drawing, etc is in the interest of science, literature, art or learning or other trivial objects; or
2. the same is kept or used for bonafide heritage or religious purposes.

Possible reforms to prevent the crime

There exists 2 varying types of violence which are experienced by children (According to the United Nations, as anyone between 0 to 18 years of age), child maltreatment by parents and guardians towards children (0 to 14) years, and violence occurring in community settings among adolescents (15 to 18) years. These various forms of violence are preventable by addressing the underlying reasons and risk factors specific to each type.

Child maltreatment by parents & guardians are preventable through:

• Reduction of unintended pregnancies.
• Reduction of harmful alcoholic levels and illicit drug use during pregnancy period.
• Reducing harmful alcoholic levels and illicit drug use by new parents or guardians.
• By improving the access to high-quality pre and post-natal facilities.
• Providing home visitation services by professional nurses and social workers to families where children are maltreated.
• Providing parental training on the development of children, disciplining through non-violence, and developing problem-solving skills.

Violence involving children in community settings are preventable through:

• Preschool enrichment programs for providing an educational headstart to children.
• Training for developing life skills.
• Assistance to high-risk adolescents towards complete schooling.
• Reduction of alcohol availability through enacting and enforcing liquor licensing laws, taxation and pricing.
• Imposing restrictions on access to firearms.

Bettering the efficiency of pre-hospital and emergency medical care shall bring down the mortality risk, the recovery time, and the degree of long-term impairment resulting from violence.

Conclusion

The roots of all offences against the children can thus be traced to their immaturity and weakness (both physical and mental) they bear since their procreation well up to their adulthood. The children being absolutely unaware about what is going on can thus rarely question the perpetrators’ intentions or motives. It is unnecessary that the offences against the children shall contain any cruel ingredient. For example, intoxicating children is a crime. However, inducing children to intake intoxicating substances need not be done with coercion. One may simply transmit such substances through food and drinks until a child turns addicted to it. This is just one scenario.

Again, it might so happen that a Child is adopted illegally but kept in good care by the adoptees. But, such adoption shall still be deemed illegal.

The law, as of now, already enshrines provisions for stringent punishments pertaining to offences against children, but such punishments with time require a higher degree of severity so as to prevent and deter the perpetrators from committing such offences.

References

1. Indian Penal Code, 1860.
2. Juvenile Justice Act, 2015.
3. Information Technology Act, 2000.
4. Protection of Child from Sexual Offences Act, 2012.
5. www.advocatekhoj.com.
6. www.indiakanoon.org.
7. https://www.who.int.
   

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This article is written by  Suman Chatterjee Team LawSikho.

Very few books deserve to be re-read multiple times. Finite and Infinite Games by James P. Carse is one such masterpiece that you need to read not once, not twice…but infinitely, I believe!

And more so for a lawyer, especially if you own a business or are into legal practice.

The book starts with the following line: “There are at least two kinds of games. One could be called finite, the other infinite. A finite game is played for the purpose of winning, an infinite game for the purpose of continuing the play.”

A must-read recommendation for all you book lovers out there.

While the book borders on life philosophy and goes much deeper than just being a business book, I will share a few things with you that sort of hit the ball out of the park for me. 

And I will say it from a legal professional’s perspective.

It is NOT a finite game

For many who enter the legal “game”, they adopt this Finite Player mindset where they set out to achieve finite goals in their legal career. They would calculate every step they are going to take and would stick to the plan nonetheless. 

Not an efficient approach.

It is important to recognize that the legal game is an infinite game and the only way to play is to be flexible in your planning and execution instead. You are not competing with anyone like in a finite game but only YOURSELF in this infinite game. 

The trick is to perceive the finiteness in the infinite game instead. The game goes on forever. There’s no beginning; there’s no end. You have to become finite at times (e.g. secure that mandate, get promoted to partner, win that case, etc) but overall, this journey never ends.

So, what if you could not win this one case? What if you are not promoted last quarter? What if you did not secure that mandate you were wishing for? It does not matter. 

Many more opportunities will come and go in this infinite game, my friend.

****

Want to understand the recruitment process at the tier-I law firms? What makes a candidate stand out in the eyes of a recruiter, among the thousands applying for the position? Watch the video below to know the secret to crack the tier-I law firm recruitment code.

(Click the Play button to watch the video.)

****

The rules never stay the same

The rules of a finite game remain the same and help to decide who won and who lost. These rules don’t mandate what you must do but rather, restrict your freedom yet allow for choices within the respective boundaries. 

The rules of an infinite game change with time and for a specific reason: to prevent anyone from winning the game. 

Also, since the game evolves over time, new rules start popping up and old rules become outdated. As more and more players enter the game, you must strive to adapt to the new rules and conditions and optimize your game strategy likewise. 

As a lawyer, you must understand the landscape is changing all the time. You have to figure out the trending opportunities and challenges and position your legal practice accordingly to the needs of the situation. 

For example, new opportunities are cropping up during this COVID-19 crisis for lawyers who specialize in mergers and acquisitions, can work as insolvency resolution professionals and draft flawless technology contracts and negotiate with banks and financial institutions. (If you read our articles regularly, you know what to do.)

Remember, it’s a never-ending process without space-time boundaries. 

Play with the boundaries

Nat Eliason writes, “Finite players play within boundaries, infinite players play with boundaries.”

That line holds deep meaning if you can get it though. 

As a practising lawyer, you have to stretch your imagination at all times. Where finite players go wrong is that they get too rigid and practical due to the rules and boundaries controlling their actions. They do not perceive that they are “free” and they have imposed self-limitations on themselves.

On the other hand, infinite players don’t play for others but for themselves. They are proactive and initiate their own actions which are followed by the actions of other reactive entities. 

Think about it. Most lawyers are so unimaginative that they repeat what others are doing. If others are printing business cards, they do it too. If others have posh chambers, they get it too. If others are spending hours at the local thana, they do it too. That’s playing within the boundaries of the game. 

If you really want to succeed as a lawyer, you need to think outside the box and come up with your own unique ideas. Just know that anything is possible if you just believe. 

How?

Focus on the horizon, instead of the boundaries. 

Focus on the future that has a future. 

If the finite game is to flourish your legal practice during this lockdown, adopt your infinite mindset and think what you can do that others are not doing. Run live webinars, create doodles on LinkedIn, publish legal memes on Instagram, or…? 

Start with this question. “What can I do, as a lawyer, that’s never been done before?”

Click Above

One more thing…

This is a game. So remember to play and not approach it as work. This is a must and I will tell you why.

I can tell you first-hand that high performers have a superior tolerance for stress. They won’t crumble even when things are going out of hand or the future seems bleak. And if I am not wrong, the secret is that they are not playing in the short term. They are probably thinking much longer than you and I do.

In other words, they focus on the infinite game and not the finite one.

They know they are enjoying the game instead of chasing results. They rejoice in the fact that they have started something that would go on forever. It’s their choice whether they play or not. Remember, if you must play, you are not playing at all. 

My first advice to any lawyer, struggling with his career, is to stop thinking of it as work and start to enjoy being a lawyer. 

Even if you are someone with 20 years of experience, it is easy to get pegged to a particular mindset. Just close your eyes once and open it afresh. Not focusing on “nothing is working anymore”. Instead, with a new question, “what are the new rules are and how can I play this new game that I’m in?”

The fun begins then.

As Carse writes, “There is but one infinite game.” 

In my opinion, it is to enjoy life, as a lawyer or not.

****

Here are LawSikho’s POWs (posts of the week):

https://blog.ipleaders.in/junior-advocate-struggles-legal-career/

https://blog.ipleaders.in/mischief-under-the-indian-penal-code-all-you-need-to-know-about-it/

https://blog.ipleaders.in/do-earning-wives-have-right-to-maintenance/

https://blog.ipleaders.in/how-can-litigators-use-the-free-time-productively-while-courts-are-closed/

https://blog.ipleaders.in/what-industries-are-getting-more-investments-during-or-because-of-covid-19-crisis/

Talk to you tomorrow.

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This article is written by Vishesh Gupta from Institute of Law, Nirma University, Ahmedabad. This article provides an exhaustive insight into the role of Wildlife Protection Act, 1972 in the conservation of tigers.

Introduction

On International Tiger day i.e. 29 July, Shri Narendra Modi, Prime minister of India, announced that there was a 33% increase in the population of tigers in 2019 and proudly added that India was one of the biggest and most secure habitats of the tiger all around the world. There is credibility to this statement as India is home to almost 70- 80% of the world’s tigers and India has achieved the international obligation of doubling the population of tigers before 2022. Also, The Central government had allocated Rs 350 crore for tiger conservation to states in 2019.

However, there still remains a concern regarding the high number of tiger poachings on a yearly basis and the limited available territory for expanding habitats for a huge population of tigers. This article focuses on current legislation and guidelines for tiger conservation in India and discusses whether any legislation or government scheme has helped in solving the limited availability of land.

To strengthen the conservation of tigers and to follow the urgent recommendations by the Tiger Task Force, an amendment was passed in 2006 titled The Wild Life (Protection) Amendment Act, 2006, creating a special statutory body named National Tiger Conservation Authority.

National Tiger Conservation Authority

The National Tiger Conservation Authority (NTCA)  is a statutory body under the Ministry of Environment, Forests and Climate Change for strengthening tiger conservation in India. NCTA was created in 2005 following the recommendation of the tiger task force and was given the status of statutory authority under Section 38L of the Wild Life (Protection) Amendment Act, 2006.

Within the ambit of the Wildlife Protection Act, 1972 (hereinafter referred to as the Act) NTCA maintains a regulatory oversight over guidelines, ongoing conservation initiatives around India and recommendations of specially constituted Committees. 

Constitution of the National Tiger Conservation Authority

The Constitution of the NTCA has been laid out in Section 38L (2) of the Act. The Chairperson of the Tiger Conservation Authority (TCA) shall be the Minister in charge of the Ministry of Environment forest and climate change. The vice-chairperson shall be the Minister of State of the Ministry of Environment, forest and climate change.  There shall be eight experts or professionals under the chairperson, having qualifications and experience in wildlife conservation and the welfare of people living in the tiger reserve. Out of these, 2 experts shall be from the field of tribal development. The authority shall also consist of 3 members of parliament out of which 2 shall be elected by Rajya Sabha and 1 from Lok Sabha. The list of incumbent members of the TCA is available here. 

Term of office and conditions of service of members

The terms of office and condition of service of members of the NTCA has been laid out in Section 38M of the Act. The term of the chairperson as the head of the TCA depends upon his term as the minister in charge of the Ministry of Environment, Forest and climate change and the same go for the vice-chairperson as well. On the other hand, the term of the 8 experts, as per Section 38M (1) of the Act, shall be not more than 3 years. The member can resign by writing under his hand to the central government.

Removal of member

The central government has the power to remove a member from the 8 experts from the office if the member:

1. has been declared insolvent.
2. has been convicted for an offence which involves moral turpitude in the opinion of the central government. Moral turpitude means an act that gravely violates the sentiment or the moral standards of the community. 
3. has been declared, by a competent court, to be of unsound mind. 
4. Refuses to act or becomes incapable of performing his functions under CTA.
5. Has abused his position which in the opinion of the Central Government, is detrimental to the public interest.

Following the principle of audi alteram partem which means “listening to the other side”, a member cannot be removed unless they have been provided with a reasonable opportunity of being heard.

Vacancy 

As per Section 38M (3) of the Act, the vacancy caused through any means like resignation, removal or even death, shall be filled by fresh appointment and he shall be the member of the committee for the remainder of the term of the previous member in whose place he is appointed. Also, as per Section 38M (5) of the Act, no act or order of the TCA shall be void on the grounds of vacancy or defect in the constitution of the Authority.  

Officers and employees of Tiger Conservation Authority.

For efficient discharge of functions, the TCA, as per Section 38N of the Act,  may appoint officers and employees but they have to take the approval of the central government first. The Act also provides for the officers and employees who were holding office under Project Tiger just before the date of the constitution of the authority to uphold their offices in TCA and shall have the same tenure and terms and conditions as they had in Project Tiger. Those who opt not to work under the TCA shall hold office till 6 months.

Powers and functions of Tiger Conservation Authority.

Tiger Conservation Authority has been created for better conservation of tigers in India. As an authority, all their functions should be aimed at conserving tigers. Their functions are enumerated in Sec 38O (1) of the Act. These functions are:

1. Approving tiger conservation plan prepared by the State Government.
2. Maintaining sustainable ecology and disallow any such use of land within the tiger reserves which is detrimental to the ecology.
3. Making rules and guidelines for tourism activity for project Tiger in the tiger reserves and also ensure their due compliances.
4. Measures for addressing conflicts between men and animals and emphasize on co-existence between the 2 outside the national parks, tiger reserve or sanctuaries. 
5. Providing information to the public on the conservation plans, estimation of population of tigers, the status of natural habitat and report on any untoward incident. TCA releases the status of tigers in India. The report of 2018 is available here. 
6. Approving coordinates research and monitoring of tigers.
7. Facilitating and supporting tiger reserve management in the State.
8. Ensuring critical support in scientific, IT and legal support for better conservation of tigers.
9. Facilitating capacity building programmes for the officers and staff. 

Procedure to be regulated 

The procedure followed by TCA  shall be regulated by TCA themselves. Meetings of TCA shall be presided over by the Chairperson and in his absence, that responsibility shall be given to the vice-chairperson. Any decision or orders of TCA shall be authenticated by the Member-Secretary or any other person within the TCA that is authorised by the Member-Secretary.  

Grants and loans and Constitution of Fund

The Central Government may make grants and loans to TCA of such sums they deem necessary. But this can be only done after due appropriation by parliament.

A fund has been created under Section 38Q (2) of the Act which is called Tiger conservation authority fund and it shall include:

1. Loans and grants authorised to TCA by the central government. 
2. All fees and charges received by the TCA under the Wildlife (Protection) Act, 1972.
3. All sums received by TCA through other sources which are decided by the central government.

The above mentioned fund shall be utilised for two purposes. First, for paying the salaries and other remunerations of the officers and employees of the TCA. Second, for paying the expenses incurred by the TCA in the discharge of its functions.  

Accounts and audit 

Section 38R of the Act requires the TCA to maintain proper accounts and file an annual statement of accounts in the manner prescribed by the central government in consultation with the Auditor General in India.

The Wildlife Protection Act, in accordance with Article 149 of the Indian Constitution, gives CAG the power to audit the accounts of the TCA and any expenditure incurred shall be paid by TCA to the CAG. The CAG has the right to demand the production of books, accounts and any other document as required by the CAG. The audited accounts of the TCA shall be forwarded to the Central Government.  

Annual report 

The TCA, as per Section 38S of the Act has to prepare an annual report, listing the full account of activities undertaken by TCA in the previous financial year and they have to send one copy of the report to the central government.

The Central Government, in accordance with Section 38T of the Act,  has to submit the annual report, Memorandum of Action taken on the recommendation and the audit report to both houses of the parliament.

Constitution of Steering Committee

Section 38U of the Act recommends the state govt to constitute a steering committee. The State government has the discretionary power of creating the steering committee at a state level for ensuring coordination, monitoring and conservation of tigers. The chairperson of the committee shall be the chief minister of that state and the minister in charge of wildlife shall be the vice-chairperson. Such no.of official members should not exceed 5 out of which at least 2 should be Field Directorates of the tiger reserve or Director of National Park and one from the state government department dealing with tribal affairs. The committee shall also include three experts who are qualified and experienced in conservation of wildlife out of which at least one shall be from the field of the tribal department. Chief Wildlife Warden of the state shall be the Member-Secretary. Two members from the State Tribal Advisory Council and one representative each from the State government department and Social Justice and Empowerment shall also be part of the committee. 

Tiger Conservation Plan

Section 38V (3) of the Act requires the state government to prepare a Tiger Conservation Plan (TCP)  to ensure the protection of tiger reserves, ecologically compatible use of land in tiger reserves and also to oversee whether the operations of regular forest divisions and adjoining tiger reserves are not incompatible with the needs of tiger conservation. All states were required to submit a TCP.  NTCA published a report, titled “Connecting Tiger Populations for Long-term Conservation”, in collaboration with the Wildlife Institute of India (WII). The report mapped 32 major corridors and also detailed the tiger conservation plan under the Wildlife (Protection) Act, 1972.

Alteration and de-notification of tiger reserves

National Board for Wildlife is a statutory authority constituted under Section 5-A of the Act. It is chaired by the Prime Minister of India and plays an advisory role by advising Central and State Government on ways to promote wildlife conservation. It reviews all the wildlife-related matters and approves projects for national parks and sanctuaries. 

 In cases of Tiger Reserves, National Board, as stated in Section 38W of the Act, plays an important role:

1. The boundaries of tiger reserves cannot be altered without the recommendation of TCA and the approval of the National Board for Wildlife.
2. A state cannot de-notify a tiger reserve unless it is in the public interest and with the approval of TCA and National Board for Wild Life.

Establishment of Tiger Conservation Foundation

As per Section 38X of the Act, it is mandatory for a state government to establish a Tiger conservation foundation within a state in each Tiger Reserve to facilitate and support them for the conservation of tigers. 

Objectives

They have the following objectives:

1. To facilitate multifaceted developments relating to ecological, social, cultural and economical in the tiger reserves.
2. To promote eco-tourism and safeguard the natural environment in the tiger reserves.
3. To facilitate the creation of assets which can fulfil above-mentioned objectives.
4. To solicit different types of support like technical, financial, social, legal required for the activities.

As of 2019, there are 41 Tiger Conservation Foundation in India. The list is available here.

The National Tiger Conservation Authority (Tiger Conservation Foundation) guidelines, 2007

The government enacted The National Tiger Conservation Authority (Tiger Conservation Foundation) guidelines, 2007 for the purpose of Regulation of Tiger Conservation foundation.

Some Salient Features of the Guidelines:

1. The Foundation shall be registered as a Trust under state-specific legislation.
2. The Governing body and its constitution for the Tiger Conservation Foundation have been laid down in the guidelines under Rule 5 of the Guidelines.
3. A member of the governing body has to be a member of a state legislature and the tenure of such member will be of 3 years.
4. These guidelines also create the executive authority to look after the day to day management of the Foundation.

Conclusion

India is currently at the forefront of protection and conservation of Tigers in the world. However, this was not always the case. In the British era, almost 40,000 tigers were killed because of the huntings. However, in the 1970’s a revolution to protect tigers arose and since then India has not looked back.

The total area for tiger reserves have considerably increased, the techniques for counting the population has been upgraded and infrastructure for protection and conservation has been improved. On the other hand,  the land available for tiger reserves is limited.

To make the best use of the limited available territory for tigers, NTCA and the government has mapped multiple corridors so that safe passage can be ensured for the tiger to different parts of India.

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This article is written by Uday Bhatia, from Vivekananda Institute of Professional Studies. This article covers the interpretation of preventive relief, the granting mechanism & grounds of refusal of (injunction) along with the procedure of executing an injunction decree governed by Specific Relief Act, 1963 & Code of Civil Procedure, 1908.

Introduction

The Specific Relief Act, 1963 was a revision of the archaic, colonial law enacted in 1877, which was subsequently repealed for its unviability to the contemporary socio-economic needs as per the recommendations of 9th Law Commission Report. It was drafted by Whitley Stokes and revised by the Law Member, Sir Arthur Hobhouse & is based on the principle of equity & justice. The rationale behind the enactment was to plug the loopholes & inadequacies of the Indian Contract Act, 1872, with compensation for breach of contract being the only remedial measure. There might be on various occasions, the parties the compensation may not be an adequate relief, where specific performance of the contract is essential to balance the interests of both the parties. It, therefore, provides a remedy for the exact fulfilment of the obligation. The remedy sought should be such that the person is foremost deprived & secondly & most importantly is entitled to seek the relief. It became imperative for another ‘foolproof’ legislation to provide a comprehensive framework relating to civil or contractual remedies to the aggrieved persons. The following are the reliefs which can be sought under the Specific Relief Act, 1963:

• Recovery of possession of property;
• Specific performance of contracts;
• Rectification of instruments;
• Rescission of contracts;
• Cancellation of Instruments;
• Declaratory decrees; and
• Injunction.

Preventive relief

Preventive relief under the Specific Relief Act, 1963 has a negative connotation in its operationality. This type of relief has been devised to deal & counter a scenario where the nature of the contract is such that neither the grant of damages nor the specific performance is unlikely to serve any purpose. In such cases, the court resorts to restrain the party who threatens to breach the contract to the possible extent. For instance, in a contract of musical performance between the performer & the other party, the other party, can seek preventive relief to deter the performer from accepting or entering into any other such contracts, which creates a pressure & compulsion for fulfilling his promise.

Granting of Preventive relief

Preventive relief is typically granted through the standard mode of injunction. The law of injunction in our country has originated from the equity jurisprudence which in turn is borrowed from Roman law.

According to Section 37, the Specific Relief Act, 1963 defines that “preventive relief is granted at the discretion of the court by injunction, temporary or perpetual”. An injunction is a judicial process whereby a party is ordered to refrain either from doing a particular act or omission or directed to do a particular act or omission. In the former case, it is called a restrictive injunction and in the latter, it is called a mandatory injunction. One purpose of granting an injunction is to maintain peace & order in society.

Maxims on which Injunction is based

“He who seeks equity must do equity”, which bestows obligation on both the parties to honour their obligations, to enforce reciprocal promises.

“One who seeks equity must come with clean hands” which interprets that the plaintiff who is praying before the court for a specific relief must not be at first place at fault.

“Whenever there is a right there is a remedy”, the most widely known & used, where there exists a right for an individual, he or she shall also have a recourse to enforce it.

Section 42, Specific Relief Act, 1963, wherein a contract, it stipulates (expressly or impliedly) either to do certain an act in affirmative or in negative, there persists a circumstance that the court is unable to assert the specific performance of such act, it shall not preclude it from granting an injunction, only if the plaintiff holds his or her end of the bargain, i.e. performing his or her reciprocal promise. 

Factors to be considered before granting Injunction

• Prima Facie Case: the literal meaning being “on the face of it”  or at the first look or instance from what it can be judged from its first disclosure. The plaintiff brings sufficient evidence on the record which reasonably buttresses that he or she is entitled to the claim seeking & thereby establishing a strong cause of action for further continuing the proceedings to the trial stage.

In Martin Burn Ltd vs R.N Banerjee explained a prima facie case which emphasized doesn’t have to prove the guilt rather present the evidence on record to support its claim were to be believed. The evidence presented should be such that it possibly leads to an impugned question & that it leads to land upon the same conclusion.[1] The court should be satisfied there poses a serious question, triable in further proceedings & that the plaintiff seeks relief in the trial based on solid evidence presented on the record. A Prima facie case as interpreted in Gujarat Electricity Board vs Maheshkumar & Co refers to substantial question(s) raised bona fide, requiring due investigation & decision on merits. The court would be unjustified & prejudiced on its part to demand full proof warranting an eventual decree. The plaintiff’s claim mustn’t be frivolous or vexatious.[2]

• Balance of Convenience: it refers that at the initial stage the case is in a favourable inclined towards the plaintiff, seeking a particular relief, based on the overwhelming evidence presented on record innuendoes the likelihood of cause of action.                                           

It means the quantum of comparative mischief or inconvenience which is likely to ensue from withholding the injunction will be much greater than which might arise from granting it. The court has to weigh the substantial mischief that is likely to be caused to the applicant if the injunction is refused & the subjugation of the legal rights of the defendant. It has to consider the possibilities or probabilities of the likelihood of injury that might ensue with the subject-matter sub judice, that status quo must be maintained.

• Irreparable Injury: This term refers to any injury which necessitates the court intervention especially when the plaintiff seeking relief is left with no other remedial measure, except the grant of an injunction. The injury should be such that it by no adequate damages be remedied. Even with the compensation for damages caused to the plaintiff would ultimately be insufficient, payable at the conclusion of the trial, would not be able to put him in the same position or place, where he or she stood before when the injunction was denied. 

It becomes sworn duty of the court to exercise its “sound judicial discretion” with utmost care & caution, while granting or rejecting the ad-interim injunctions, because the role of the court becomes crucial & simultaneously dilemmatic as it has to either grant or refuse scrupulously the injunction order, based on the arguments of only one party due to the gravity of issue concerning the subject-matter, by skipping the disclosure of other vital information from the other party. This, of course, all has to be done by balancing the interests of both sides. The grant of ad-interim relief becomes all the more perplexing as there is no strait-jacket formula or even broad guidelines aiding it & varies from facts & circumstances of each case.[3] 

Temporary injunctions

The primary purpose of temporary or interim or sometimes referred to as interlocutory injunctions is the preservation of the status quo of the property (subject-matter) in dispute until the legal rights and conflicting claims of the parties before the court are adjudicated.

One of the other reasons of temporary injunctions is to deter the defendant who threatens to dispossess the plaintiff or cause any injury to the plaintiff concerning the subject-matter in dispute, the court, therefore, may grant a temporary injunction to restrain or prohibit from a particular act or omission.  Its purpose is to prevent the dissolution of the plaintiff’s rights, which in nutshell is a means to provide immediate relief to the plaintiff.

Provisions under Code of Civil Procedure, 1908

According to Section 94(c), Code of Civil Procedure, 1908, states that the court in order to meet the ends of the justice has discretion in granting a temporary injunction & if any person is guilty of disobedience of such injunction order, it may commit the defaulter to the civil prison & order for attachment of his or her property & even for sale.

According to Section 94(e), the Code of Civil Procedure, 1908, states that the court has the liberty to pass any other interlocutory orders as it deems just, fit & convenient.

Section 95, Code of Civil Procedure, 1908 states conditions for the defendant for obtaining compensation to arrest, attachment or temporary injunction, where:

(a) It appears to the court that such arrest, attachment or injunction were prayed on insufficient grounds; or

(b) The suit of the plaintiff fails due to no reasonable or probable ground for instituting it.

It, therefore, gives the defendant a lawful right to file an application in the court, whereby the court on being satisfied that either of the above-mentioned conditions exists, then it shall pass an award to the defendant, not exceeding Rupees one thousand as reasonable compensation for the expense or injury(of any sort) caused to the plaintiff.

The compensation awarded by the court shall be subject to its pecuniary jurisdiction & that any no subsequent suit for compensation concerning such arrest, attachment or injunction shall be entertained. 

Circumstances in which Temporary Injunction is granted

According to Section 37(1), Specific Relief Act, 1908 defines temporary injunctions as that continues until a specific time, or until further order(s) of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure,1908.

Thus, the procedural requirements to be fulfilled for granting temporary injunctions & interlocutory orders  are determined in Order XXXIX, Code of Civil Procedure, 1908:

1. That in any suit it is proved by affidavit or otherwise:
2. That the property constituting the subject matter of the suit is under the apprehension of being wasted, damaged or alienated or illicitly sold in the execution of a decree, by any party to the suit;
3. That the defendant threatens or intends to remove or dispose of his property with the intent to defraud his creditors;
4. That the defendant threatens to dispossess the plaintiff or cause any injury to him concerning the property (subject-matter) of the dispute;

the court may then after being satisfied that any one of such circumstances is existing or prevailing, may pass the order of injunction until further notice or until the disposal of the suit, as it deems fit.

The injunction may also be sought by the plaintiff, restraining the defendant for repeated or continual breach of contract or injury that is likely to arise, any time after the commencement of the suit & either before or after the judgement, irrespective of the fact that the compensation is claimed or not.

The court may then after being satisfied with the fact that such circumstance persisting, may pass an order of temporary injunction subject to terms such as duration or security, as it deems fit.

If in any scenario of disobedience of the above rules or breach of any terms on which injunction order was granted or made, the court which granted or made such order or any court to which the suit itself is transferred may pass an order for attachment of the property of the person guilty of disobedience of such breach, and may also commit such guilty person to civil prison for a maximum term of not exceeding 3 months. 

The attachment made as above mentioned shall not remain in force for more than a year, but subject to the condition that if such disobedience or breach continues beyond the period of one year, the court may order the sale of the property & award the compensation to the injured party out of the proceeds & the residual balance to the entitled party.

The court shall where there exists an application seeking an injunction, directing the notice of such application to be given to the opposite party.

But, where it appears to the court that the objective of granting the injunction would be defeated by delay, it may before granting such injunction, it may grant an injunction without fulfilling the obligation of notice to the opposite party, provided it shall record reasons for the same.

The applicant is required to deliver or send via registered post, to the opposite party the order granting the injunction accompanied with the copy of the application for injunction & other requisite documents, immediately after such order has been made:

1. a copy of the affidavit filed in support of the application;
2. a copy of the plaint; &
3. copies of documents on which the applicant, relies.

The following documents have to be filed on the day of the grant of injunction or the next succeeding day, along with the affidavit stating that such copies aforesaid have so been delivered or sent.

In a case where an injunction has been granted without giving due notice to the opposite party, the court has to endeavour dispose-off the application seeking injunction within 30 days from the date on which such injunction was granted & if it is unable to do so; it is obligated to record the reasons for the same.

The court has the power to discharge, vary or set aside any order of injunction on the application made by any disgruntled party if a party has advertently made a false or misleading statement about a material particular in an application for a temporary injunction or in any affidavit supporting such application & that the injunction was without duly giving notice to the opposite party, the court may if it deems it fit & satisfied vacate such order of injunction unless it considers not to do so in the interests of justice by recording reasons in writing.

The court may after giving the party in whose favour such injunction is granted, an opportunity of being heard shall not discharge, vary or set aside such order, except;

1. where it has become necessitated; or
2. that it has caused undue hardship to that party.

In such circumstances, it may vacate the order.

It is to be noted that the injunction order is not merely representative. Therefore all artificial entities which are the creation of law & its members & employees (constituting natural persons) are equally bound by an order of injunction. 

Perpetual injunctions

Section 37(2), Specific Relief Act, 1963 states that perpetual injunctions are granted by a way of decree, as it is supposed to be final, creating an obligation on the defendant to either restrain from doing an act or an omission or compels him or her to act or omit. Thus, the defendant is enjoined with the assertion of the right of the plaintiff, failing to abide by it or act contrary to it will result in infringement of the plaintiff’s right.

Granting of Perpetual injunctions

Section 38, Specific Relief Act, 1963, states the circumstances under which the perpetual injunction could be granted:

• Preventing the breach of an express or implied obligation existing in the favour of the plaintiff;
• Such obligation arising from the contract shall be dealt with by the court as per the rules & provisions of Chapter II.
• The defendant invades or threatens to invade the plaintiff’s right to the enjoyment of the property in situations where;

1. The defendant is a trustee of the property for the plaintiff;
2. There exists no standard for ascertaining the actual damage caused by such invasion of  a right;
3. The compensation for actual damages would prove to inadequate for such invasion; or
4. The injunction is necessary to prevent multiplicity of judicial proceedings.

Mandatory injunctions

Section 39, Specific Relief Act, 1963 explain the purpose of granting a “mandatory injunction” is:

to prevent the breach of an obligation such that the obligation is capable of being enforceable by the court where the performance of the promise is necessary. The court may then exercising its sound discretion grant an injunction to prevent such breach to compel the performance of such promise.

The rationale behind the grant of a mandatory injunction is on the same judicial testing parameters that are:

1. Prima Facie case;
2. Balance of Convenience; and
3. Irreparable Injury.

However, besides the consideration of above testing factors, in addition to it, there must exist a higher degree or gravity of compelling circumstance(s) or extreme hardships (restoration or preservation of the status quo of the subject-matter). Since the controversy lies here, concerning the mandatory injunction, it poses a more compelling legal duty or an obligation on the defendant to adhere, as compared to nominal injunction order.

It becomes imperative to understand the competency of the court while granting such “majestic remedy”. The courts practice their ‘discretionary jurisdiction’ while adjudicating the grant or refusal of an injunction, circumventing the boundary drawn from Section 37 to Section 42, Specific Relief Act.

Damages in addition to injunctions

Section 40, Specific Relief Act, 1963 entail the conditions for seeking damages in addition to injunctions:

1. The plaintiff in addition to or substitution to a suit praying perpetual injunction or mandatory injunction may claim damages & the court may if it deems fit to award such damages.
2. For the plaintiff to claim damages as relief in his plaint only if no such damages have been claimed in the plaintiff, then the court shall allow the plaintiff to amend its plaint on such terms it prescribes.
3. If the suit, favouring the plaintiff to prevent the breach of an obligation stands dismissed, it shall create a bar on his or her right to sue for damages for such breach.

Enforcement of Decree of Injunction

Order XXI, Rule 32, Code of Civil Procedure, 1908 states the procedure of enforcement of an injunction decree, along with decree of specific performance & conjugal rights:

• Where a decree for specific performance of contract or restitution of conjugal rights or an injunction has been awarded against a party, who had an opportunity of obeying the terms imposed in the decree & deliberately disobeys it, then the court shall:

1. In the case of decree for specific performance of a contract as well as for an injunction may order the detention of the defaulter in a civil prison or attachment of his or her property or both.
2. In case of decree for restitution of conjugal rights, it has the liberty to order the attachment of the property of the defaulter.

•   If the party is a corporation against whom a decree for specific performance of the contract or an injunction has been passed, the decree may be enforced either by:

1. Attachment of the property of the corporation; or
2. By detaining the directors or other principal officers of the corporation with the due leave of the court; or
3. By such attachment & detention, both.

• Where the order passed under the above two sub-rules has remained in force for six months & that the judgement-debtor has disobeyed the decree during such duration, the decree-holder may apply for the sale of the property so attached & the court may after which, award the compensation to the decree-holder as it deems fit & shall pay the remaining amount to the judgement-debtor.
• If the judgment-debtor has:

1. Abided by the decree & paid all the execution costs, which he or she was obliged to pay; or
2. No application for requisitioning the sale of the property has been made till the end of 2 months from the date of attachment; or
3. If made but has been refused; 

such attachment shall cease.

• If the judgement-debtor has not abided the decree for specific performance of the contract or for an injunction in addition to the above remedies, the court may direct that the fulfilment of the actual performance of the decree as far as practicable by the decree-holder or any other person appointed by the court & all such expenses incurred shall be ascertained & levied on the judgment-debtor, forming part of the original decree.

Refusal of injunctions

Section 41, Specific Relief Act, 1963 states the grounds for refusal of injunctions:

1. Restraining any person to prosecute in a judicial proceeding, sub judice at the institution of the suit in which an injunction is sought, except when such restraint is necessary to prevent multiplicity of proceedings;
2. Restraining any person from instituting a suit or prosecuting in any proceeding in a court to court in which the injunction is sought;
3. Restraining any person from applying to any legislative body;
4. Restraining any person from instituting or prosecuting a criminal proceedings;
5. Preventing a breach of a contract whose performance can’t be specifically be enforced;
6. Preventing an act of where lies reasonable ambiguity on its qualifying as a nuisance;
7. Preventing a continuing breach is where the plaintiff has acquiesced;
8. When there exists any other efficacious relief for plaint that could be obtained by any conventional mode of proceeding except in case of breach of trust;
9. If by granting such injunction it might lead to laches or impede the completion or progress of any infrastructure project or create interference in a related facility or services, forming the subject-matter of such project;
10. The conduct of the plaintiff or his or her agents is such which disentitle him or her the assistance of the court; and
11. The plaintiff has no personal interest, whatsoever, in the matter.

Conclusion

The remedy of injunction has been envisaged as the most widely accepted medium of recourse by an aggrieved individual to seek preventive relief throughout numerous modern legislatures, accustomed to their socio-economic, political & cultural environment of different state jurisdictions. As much as this fact is staggering, its seamless applicability as a standard mode worldwide for seeking preventive relief isn’t as novel as it seems.

Well, the concept of injunction as a “soft-yet-effective remedial measure” in the legal discourse has been adopted from Common Law’s doctrine of equity. The English equity courts (as they are referred to) adjudicated on the principles of English jurisprudence, which were majorly dominated by equity, justice & conscience. The credit of this doctrine goes to the oldest, omnipresent eminent law ever, the Roman Law, which is known as the first modern law society. And since the formulation of laws in every state has a bearing of international legislations, the prominence of Common Law & Roman Law are a true testament to it.

However, the remedy of injunction can’t exactly be replicated for different jurisdictions & therefore take-off different routes from its genesis, moulding according to various factors of its country’s environment.

Nevertheless, there are “broad guiding principles” that aid the courts in deciding the grant or refusal of an injunction.

The general rule is that injunction can’t be claimed as a matter of right, rather it solely depends on the discretion of the courts. Discretion in legal discourse has on most of the occasions, irrespective of the entity exercising has proved to be dangerous. Since discretion, apropos, results in unrestrained power. Thus, the ‘discretionary jurisdiction’ of the courts has to be sound, reasonably guided by the local judicial principles governing judiciaries across the world. 

The plaintiff is obliged to fulfil his reciprocal promise to demand adherence from the defendant. Injunction works on an underlying ulterior motive that “the necessity of immediate action through legal recourse due to paucity of time in thwarting an irreparable injury to the subject-matter”

References

• https://en.wikipedia.org/wiki/Specific_Relief_Act_1963.
• http://www.legalservicesindia.com/article/1177/The-Law-Relating-To-Injunctions.html.
• https://www.lawyersclubindia.com/articles/Specific-Relief-Act-1963-1757.asp.
• http://mja.gov.in/Site/Upload/GR/Title%20NO.62(As%20Per%20Workshop%20List%20title%20no62%20pdf).pdf.

[1] Marin Burn Ltd. v. R.N. Banerjee 1958 AIR 79, 1958 SCR 514.

[2] Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad 1995 (5) SCC 545, AIR 1982 Guj 289, (1982) 2 GLR 479.

[3]  Dalpat Kumar And Anr. vs Prahlad Singh And Ors. AIR 1993 SC 276 b, JT 1991 (6) SC 502, 1991 (2) SCALE 1431, (1992) 1 SCC 719, 1991 Supp 3 SCR 472.

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This article has been written by Harsh Vardhan Singh, a student of New Law College, Bharati Vidyapeeth, Pune and Ashutosh Tiwari, a student of K.R. Mangalam University, Gurgaon. 

Introduction to Regulatory Compliance 

Regulatory compliance is a set of rules, such as a specification, policies or law which ensures an organization is following the standards set for the industry or institution by the respective authority. The rules which govern the organizations are usually set by government or parliamentary legislation or via government regulatory authorities for organizational, social, environmental and economic betterment. The norms and rules are related to various issues such as economic, public interest, and environmental.

Due to the increasing number of regulations and need for operational transparency, organizations are desirous to achieve in their effort to ensure that they are aware of and are taking measures to comply with relevant policies, laws and regulations. Since laws have been evolving, regulations have always been a political debater’s hot topic. Some say that regulations are downgrading the work of organizations and there should be a free and liberalized economy where as some economists and political thinkers say that regulatory compliance plays a vital role in promoting assessment of risk. However, since governments have formulated regulatory compliances, the organizations must cohere to the regulatory compliances and toe the line or else will have to face the consequences. 

Importance and Scope of Regulatory Compliance 

1. Risk Management has become a major issue for the private and public organizations for which the organizations are assessed for compliance with economic, social and environmental norms and measures. Often, the organizations deal with various aspects such as health, security, finance, safety and environmental. Moreover, it offers a plethora of complex new products and services to the customers which are a result of technology revolution and various neo-economic policies. In order to identify and assess factors of risk, the government needs to formulate regulatory compliance for all the sectors of organizations.
2. Most of the governments at various levels have enacted manifest plans in order to ensure appropriate response policy to prevent the risks and to alleviate their effects whenever they occur in the due process of organization’s work. As the organizations grow, complexity and independence of the organizations also grows, thus, it is the government’s duty to apprise the organizations about the policies. In order to achieve the goal, the governments have enacted risk regulation measures to intensify compliance.
3. In order to gain the trust of stakeholders, which includes investors as well as customers, regulatory compliance ensures efficiency and accountability of the product.
4. Regulatory compliance also improves the credibility of the organizations and raises them as a socially and environmentally responsible entity in the market. It also provides benefits to some sections of the society including the labors, employees as well as protects the indemnities of the employer. 
5. Regulatory Compliance ensures that whether an industry is following proper technologies for the environment or not. The Industries must toe the line with the Regulatory Compliance or else they may have to face necessary interdictions by the appropriate authorities. 

What is the Regulatory Compliance Management System? 

The Regulatory Compliance Management System is generally a department in an organization or sometimes an outsourcing company which helps the organizations to formulate and manage compliances. It also ensures that the organization adheres to all the necessary regulations which are implemented by the government. It also provides an approach of common framework to meet cross industry regulations and guidelines for the assessment of risk management.

Apart from risk management and assessment, the work of Regulatory Compliance Management System also includes a sustainable method of work in order to ensure preservation of the environment as well as aid to the society. 

Challenges faced by the Regulatory Compliance Management System and ways to overcome them

There are few challenges which are faced by the Regulatory Compliance Management System and they are as follows:

i. The ever evolving nature of Regulatory Compliance

Achieving Regulatory Compliance is one of top priorities of all the organizations. Though the task is not easy for the companies, there is no escape from that. One of the major problems faced by the Regulatory Compliance Management System is the ever evolving nature of Regulatory Compliance and relevant laws of the World. 

The problem is relentless and regulatory changes are meant to happen. The solution for this problem is financial institutions especially like Regtech, which can ease the flow of information analysis within the companies to the regulators. Moreover, Artificial Intelligence can ease the work of monitoring on the Regulatory Changes in the relevant territory of jurisdiction. 

ii. Drawbacks of Artificial Intelligence

With the continuous changes happening in the world related to Regulatory Compliance, firms need to acquire the AI in their Regulatory Compliance Management Systems. But with the ongoing changes, firms need to know what is best for them and the problem with AI is that at the time of failure of technology, it can cost a huge amount of loss.

To overcome this challenge, the organization has to maintain a balance between the AI and the professionals in the Management and technological field. The match should be such that all of them share a symbiotic relation, which may minimize the AI problem.

iii. Data Privacy

This is one of the major challenges of the Regulatory Compliance Management System. It is so huge that it attracts the Fundamental Rights of citizens in India. This is because Regulatory compliance tends to push organizations to share data of their customers, which may be personal and hence part of their privacy. 

The only way to overcome this challenge is by finding a common path to it. Sharing of data is also important to maintain transparency and on the other hand privacy is also vital. So the government has to decide the degree of data that has to be shared, so that it does not actually violate privacy completely (only important/required information to be shared).

iv. Money Laundering

Money Laundering is an act of the concealment of origin of illegally obtained money which is done by a complex series of banking transfers. It is an act which can be done by any member of a company and hence, can be hidden from other members. This act may cause trouble in the future, at the time of submission of accounts and data to the Government (as a Regulatory Compliance). There have been cases of concealment of money by the employees as well as the owners of an organization. It is another challenge which is faced by the Regulatory Compliance Management Systems across the globe. 

There should be an Anti-Money Laundering (AML) Regulatory Compliance Program or Management Body to check upon any act of money laundering. There should be an Anti-Money Laundering (AML) Compliance Officer to oversee whether all the necessary steps are being followed or not in order to prevent Money Laundering and whether the organization is following all the regulatory compliance by the government and respected authority (for eg. Policies lay down by Reserve Bank of India) or not. 

Areas of regulatory compliances for an organization in India

Regulatory compliance essentially helps the Government to keep a check on organizations and their functions, but an organization has diverse functions which attract different areas and aspects. Therefore, all the regulations requiring compliance cannot be consolidated into a single legislature. These regulations are hence placed in the areas they govern and regulations will help maintain transparency of organizations. Similarly, there are multiple areas in which the Government demands compliance. 

i. Transparency of Organizations

Accounts, records and data of a company represent its working and involvement as a corporate personality. In India, the Companies Act, 2013 regulates all these for the companies that are incorporated. The Government, hence, expects an organization registered as a company to adhere to the regulation in the Companies Act, 2013. Whether it is the provision related to Formation of the Company (Section 3), Necessary details for Execution of Bills of Exchange, Promissory Notes (S.22), Ensuring proper details for public offerings (S.23), Maintaining Books of Accounts (S.128), Appointment of Auditor (S.139) or Corporate Social Responsibility (S.135), the Companies Act covers it all. 

This further helps the Government to keep a track on the actions of an organization and in case there is an issue, it ensures that it does not lose track. Upon breach of any of the regulations, the organization has to face consequences which are in the form of sanctions. Although for some regulations specific sanctions are mentioned in the designated statute itself, for others sanction might depend upon the seriousness of the matter. While executing these sanctions, a particular pattern is followed so that in future there is no scope of any excuses on behalf of the organizations.

The pyramid represents the sequences of action from bottom to top. Warning Letter is the first step, although not in all the cases. Only the cases with misdemeanours get Warning Letter, else the organizations are sanctioned right away with a Civil Penalty followed by a criminal penalty. For example in the Companies Act, 2013 punishment for non-compliance to CSR is imprisonment up to 3 years and fine – a minimum of र50,000 and a maximum of र25,00,000. Sanctions are not limited to criminal penalty but in extreme cases License suspension and Revocation is also offered.

As discussed before some of the regulatory compliances may not require following the above pattern, they already have sanctions attached to it. As, again, for the Companies Act, 2013, it has separate provisions for most of the compliances. For example, if the company fraudulently induces any person to invest money then it shall be liable for action under S.447 of the Companies Act. If a company contravenes the provisions/regulations regarding the auditor and CSR then it will face action under S.147 and S.135(7) respectively.

ii. Environment Protection Compliance

Organizations are in some way or the other one of the major contributors in degrading the environment, and, environment being one of the major concerns currently requires attention through control and adopting preventive measures.

In India, certain environmental laws are enacted to govern the same. These laws not only imply duties on the people but corporate personalities. 

Air (Prevention and Control of Pollution) Act, 1981 is a legislation that works towards the controlling of air pollution by preventive measures and sanction (in case of breach). Organizations also need to comply with these directions and if they don’t follow the directions then action is taken against them under S.40 of the Act. Similar is Water (Prevention and Control of Pollution) Act, 1974 which is tilted at controlling and preventing water pollution. S.47 of the Act makes polluting of water by companies an offence.

There are several other legislations that the companies have to comply to, they are the Indian Forest Act, 1927; the Forest (Conservation) Act, 1980; Environment Protection Act, 1986; Storage and Import of hazardous Chemical Rules, 1989; the National Environment Tribunal Act, 1995; the Public Liability Insurance Act, 1991, Hazardous Wastes Rules, 2008 etc.

iii. Welfare of Workmen and Labour

An organization without a workforce is unimaginable. Workmen and employees are one of the pillars of an organization. So, it is imperative that the organization keeps their workmen rights protected and keeping all this is not just a part of their strategic growth but a regulatory compliance. When an organization takes out a huge amount of business from these people it becomes their duty to ensure that they are fairly treated and regularly paid. To ensure the same, the Government has laid down certain regulations that businesses/ employers have to carry out. These regulations, too, are not consolidated into a single legislation. Some legislation that governs organization-workman relation are- The Workmen’s Compensation Act, 1923; the Trade Union Act, 1926; The Industrial Disputes Act, 1947; the Maternity Benefits Act, 1961; The Contract Labour (Regulation and Abolition) Act, 1970; the Payment of Gratuity Act, 1972; the Equal Remuneration Act, 1976, etc.

Work Committee (S.3) and Grievance Redressal Machinery (S.9 (C)) are two such mandatory committees that the organizations have to form under the Industrial Dispute Act, 1947. These committees ensure amity and good relations between the employer and the employees. There are some special regulations that the organizations have to comply with, which is, in the case of Women. The maternity Benefits Act, 1961 was enacted to protect the rights of pregnant women. The employer has to provide assistance to such women by way of leaves and payment during the time of their leave.

Conclusion 

Regulatory compliance is recognized as a compulsion that organizations have to adhere to, strictly, which is formed by the highest authority i.e. Government. Although, it can be observed that the concept of Regulatory Compliance in itself is very meaningful and well organized. Whilst it forms a structure of working between the government and the organization, at the same time it is maintaining a balance in the society by representing that organizations have the same duties to fulfil as citizens and towards citizens and their well-being. It controls the exploitation of resources (whether human or substantive) by the organization. One other feature, that can be observed, is that they are evergreen, which is obvious as regulations are set of rules, law and it is known that law has static nature. It will change according to the requirement. So it can be concluded that the structure of Regulatory compliance has a flexible shape and it will fit whatever the requirement will be. Only the part that tangles the process of Regulatory Compliance is the Data Privacy. This is a debatable topic as Privacy is a fundamental right and it has recently attained a position in our country that makes the conflict even huge.

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This article has been written by Arkadyuti Sarkar, a student pursuing his B.A.LL.B from Shyambazar Law College under the University of Calcutta. This article discusses why sport hunting is cruel and unnecessary.

Introduction

There existed a time when Royals, Barons, and other aristocrats would go hunting bears, deers, tigers, wild boars, rhinoceroses or other wild creatures. After finishing them off they would return with their carcasses, peel off the skins, and hang them on the wall of their drawing room or use them as a carpet.

This hunting was a matter of great pride for the aristocrats and often regarded as a sign of elitism and regality. However, with time legislations have penalized trophy hunting or sports hunting.

Nevertheless, not every nation around the globe has illegalized trophy hunting. Sports hunting still continues nowadays and sometimes even in an illegal manner. 

In the next few passages and paragraphs, we shall learn in detail about sport or trophy hunting, arguments in its favor and arguments against it, and the alternative remedies for countering this so-called regal recreation. 

Sport Hunting

Sport hunting or trophy hunting is a hunting wild game purported to human recreation. In this game, the trophy is usually the corpse of the animal or parts of the animal, representing the success of the hunting game. The hunted animal is usually an ornamented male. 

For eg: the one having large horns or antlers. In general, only parts of the animal; such as skin, head, horns, antlers, etc are kept as the trophy, while the carcass goes into being consumed as food. Sometimes, however, the skin is delivered to the taxidermist in exchange for money. This is a rare scenario though as such an act undermines the elitism involved with the game.

The hunters usually keep these animal trophies for display in their home or office and often keep them in specially designed trophy rooms. Sometimes, the hunting weapons involved in the hunting game are being kept for display as well.

Sports/Trophy hunting Statistics

Trophy hunters imported over 1.26 million trophies into the United States of America, in the 10 years from 2005 to 2014. Canada was one of the leading sources of imported trophies.

From 2005 to 2014, the top ten trophy species which were imported into the United States:

1. Snow Goose (111,366)
2. Mallard Duck (104,067)
3. Canada Goose (70,585)
4. American Black Bear (69,072)
5. Impala (58,423)
6. Blue Wildebeest (52,473)
7. Greater Kudu (50,759)
8. Gemsbok (40,664)
9. Springbok (34,023)
10. Bontebok (32,771)

From 2005 to 2014, the ‘Big Five’ trophy species which were imported into the United States, aggregating about 32,500 lions, elephants, rhinos, buffalos, and leopards combined, from Africa include:

1. African Buffalo,
2. African Elephant,
3. African Lion,
4. African Leopard,
5. Southern White Rhino.

Predominant Regions

Canada, South Africa, Namibia, Mexico, Zimbabwe, New Zealand are some of the major nations where sports/trophy hunting is primarily witnessed.

South Africa consists of the largest hunting industry in the world, and it’s the second most popular source of American trophy imports. Trophy hunting has been practiced in Africa since time immemorial and is still practiced in many African nations.

Shocking facts related to sports/trophy hunting

1. In the last 2 decades, trophy hunting has been the cause of death of around 78000 mountain lions.
2. Mexico contains a hunting industry which is valued at approximately $200 million with around 4,000 hunting ranches.
3. Big names like Teddy Roosevelt and George W Bush are associated with sports/trophy hunting.
4. A 21-day lion hunt can range from $52,500 to $70,000.

The legality of Sports Hunting

The Prevention of Cruelty to Animals Act, 1960 was passed with an intent to prevent the infliction of unnecessary pain or suffering on animals. The following are some specified objectives of the Act:

• Declaring certain forms of cruelty as offenses and providing necessary penalties for them.
• Establishing an Animal Welfare Board to promote measures for animal welfare. 

The Wildlife Protection Act, 1972 is a comprehensive legislation relating to the problem of wildlife in India and was passed by the Parliament under Article 252 of the Constitution of India at the request of 11 States. This Act has a view to assure the ecological and environmental security enshrines the provisions relating to the protection of wild animals, birds, plants, and their habitat.

Sports hunting, however, has legal sanctions in many countries, such as African nations. However, there are certain restrictions on the species that can be hunted down, during hunting season, the number of animals an individual can hunt down and the weapons that can be used for hunting purposes.

Hunting permits and government consent are also the requirements. Specific laws related to trophy hunting differ based on the criteria mentioned, and some counties have already put a blanket on sports hunting.

Arguments held in favor of sports/trophy hunting

Now there exist some advocates of sports hunting and they put up some arguments favoring it. Let us see some of the benefits arising from sports hunting as per their contention. 

Creation of conservation incentives

Trophy hunting results in the creation of conservation incentives in places lacking viability of ecotourism, either due to its economic infeasibility or remoteness of the location.

Protection of different Species

The allotment of the land done for the purpose of sport hunting is capable of protecting various species that cannot be protected otherwise. Putting a ban on trophy hunting is likely to transform the allotted land in generating more money, most probably for agricultural or pastoral activities. However, this would negatively affect wildlife and reduce the available habitat.

Generation of significant revenue

Most African nations suffer from funding deficits in animal conservation. Significant revenue is generated from sport hunting which acts as a funding source for these conservational programs.

Beneficial to the locals and the wildlife

Trophy hunting, if done with correctness, is capable of benefiting the local population through employment, money, and food. It can also benefit the regional wildlife.

Maximization of Wildlife Populations

Hunting managers build and maintain waterholes and attempt towards maximizing wildlife populations for making it sustainable, whereas in ecotourism there is the existence of less necessity for large populations as a few individuals of a species are enough for satisfying people and profit maximization.

Lesser footprints compared to ecotourism

Sports hunting has a smaller carbon footprint count in comparison to ecotourism as fewer people generate higher revenue with lesser flights. Also, hunters need lesser infrastructure, meaning lesser degradation in habitat. Moreover, hunters do not mind going for hunting in lesser developed areas, therefore even remote areas can generate higher revenue.

Incentivizes locals in tolerating beasts

Generally, local inhabitants in various wild regions suffer from the attacks of beastly creatures like tigers, panthers, lions, and others. However, if they acquire money from sports hunting they would be incentivized to tolerate these beastly creatures. 

Why is it cruel and unnecessary?

Destruction of nature

Wildlife is an inherent part of nature. Through wildlife, the ecological balance of nature is maintained and preserved. Sports hunting results in the indiscriminate killing of wild animals and thereby inflicts a blow to the natural ecological equilibrium. For example, endangerment or extinction of one form, e.g. tiger, results in the multiplicity of another form of wildlife creatures upon which that tiger would have predated for its survival.

Also, sports hunting disrupts the migration and hibernation of the animals. This is because when animals migrate, they are prone to be hunted down, and therefore they may not hibernate.

Also, the theory that sports hunting has a lesser carbon footprint due to lesser use of flights is a vague theory. The hunters while going to the hunting site may use a jeep or any other form of vehicles emitting an enormous quantity of CO2 into the atmosphere, thereby making additions to the carbon footprint. Upon arrival at the hunting spot, the hunters set up a campsite. In such campsites, there are lots of emission of campfire smokes which make further additions to the carbon footprint. There are also human litters on the grounds which may cause animals to choke, thereby endangering both the wildlife and the environment.

Destruction of wildlife

Sports hunting has drastic consequences on wildlife. Several species of animals are already endangered as some parts of the creature were deemed valuable. Again, some species have been driven to extinction because of sports hunting. According to the news reports of Mother Nature News, there are 13 species of animals that have undergone extinction within the past 200 years, ranging from Tasmanian Tigers to Passenger Pigeons.

Cruelty against animals

A clean shot is akin to the same thing which occurs at a slaughterhouse where a butcher prepares an animal for food. The injuries inflicted on the animals when the hunters miss a shot lead to a higher degree of suffering. Some injuries are such that they render the animal unsuitable for human consumption. Any form of injury is painful, however, if an animal sustains the injury and yet manages to live then the resultant suffering is more severe than instant death.

It is more sport than a necessity

For our ancestors, hunting was never about finding a trophy for hanging on the wall or using a carpet for the drawing-room. They hunted for availing food and sometimes for survival. In modern times, however, hunting has emerged as a sporting event rather than survival means, where some hunters even pose with their kill while having absolute disregard to what happens with the corpse. Hunting merely for sporting opportunity, thus shows an overall lack of concern and respect for nature.

Leading towards abusive practices

Some hunters have gone for luring and feeding stations, especially during deer hunting as a method for making it easier to fill the deer tags. Deer feeding adds a domestication level to the animals and removes multiple benefits that are spoken of while having discussions on the joys of hunting. It is like going to the barn, killing a cow for beef, and then declaring oneself as a great hunter.

Chances of fatalities

Previously, on multiple occasions, sports hunting has resulted in fatal accidents. Sports hunting without complying with the rules could result in serious injuries and death to other humans. Carelessness during hunting can be dangerous to other members of a hunting team, passersby and even the hunter himself. Thus, it is better that such dangerous activities are banned in absolution.

A costly venture

The whole process required for becoming a full-fledged hunter can be a bit of a costly affair.

Firstly, the cost related to obtaining hunting gear, clothing, bows or firearms, etc can be huge. Moreover, there are additional accessories like rifle scope which means additional cost. Again, for obtaining a hunting license there is a requirement of funding around 1528 INR. In certain scenarios, the hunter may be required to pay other forms of charges for a specific animal. All these costs aggregate into a gigantic amount which might be an expensive venture for many.

Other Victims

Hunting accidents result in the destruction of property and inflict injuries or result in the death of horses, cows, dogs, cats, hikers, and other hunters. In 2006, then, Vice President Dick Cheney, shot a friend while hunting quails on a canned hunting preserve. According to the National Shooting Sports Foundation, injuries in 1000 are attributed to hunting in the U.S. every year, and that number only includes incidents involving humans.

The bears, cougars, deer, foxes, and other animals who are chased, trapped, and hunted down through dogs are not the only sufferers from this Sports variant. Dogs used for hunting are often kept chained or penned and are denied routine veterinary checks involving vaccinations and heartworm medications. Some are lost during hunts forever, whereas others are turned loose at the end of hunting season to fend for themselves, and die of starvation, or get struck by vehicles.

Reforms and possible alternatives

The pivotal anti-hunting move can be of course done through strict legislation that would ban hunting safaris. Also, additionally, strict penal provisions are to be legislated for violation of the hunting ban. In many nations, such as India, there is a blanket ban on hunting as it houses various endangered animal species.

Wild Life Protection Act, 1972 contains various provisions related to wildlife preservation, the establishment of sanctuaries, zoos, etc throughout the country.

However, this is not the case in many African countries, South American nations and even in the USA. In all these nations, hunting is deemed legal as a way of wildlife conservation. In the UK hunting is partly legal.

So, it can be noticed that hunting is yet considered legal in many nations, including the developed ones. The only way to counter this is an international consensus towards a blanket ban on any form of hunting. International agreements and treaties, banning hunting altogether, after ratification by various nations might prove effective. However, it is quite possible that many nations will oppose the ban and argue in favor of sports hunting. Therefore, the only way to make them cater to an agreement on the ban would be to acknowledge them about the higher number of disadvantages brought about by sports hunting.

Conclusion

So far, we have been acknowledged about what sports hunting is, the legality of sport hunting, shocking facts related to sports hunting, regions with predominance in sports hunting, critically analyzed sports hunting and have compared their advantages and disadvantages, and have introspected the remedial alternatives to sports hunting.

Thus, it can be inferred in the conclusion that it is no doubt that sport hunting not only destabilizes the ecological equilibrium but also inflicts cruelty upon the animals. Moreover, it is an expensive venture and risky too. So, sports hunting ultimately comes with a higher number of worsening effects over the bettering ones. 

Thus, we wait for the arrival of such a day when sports hunting shall be illegalized all across the globe, and in turn, the animals manage to live and roam free within their natural habitat without the fear of being hunted down.

References

• https://vittana.org
• https://www.weapon-blog.com
• https://www.peta.org
• https://www.conservationconversation.co.uk
• https://www.indiatoday.in

The post Why is Sport Hunting Cruel and Unnecessary? appeared first on iPleaders.

This article is written by Ilashri Gaur, a law student pursuing B.A. LLB(Hons.) from Teerthanker Mahaveer University (CLLS). This article lays down the whole concept of the dissolution of a partnership.

Introduction

Sometimes a situation arises where the owners and partners of a firm have to put an end to the partnership firm either on their own or due to the external forces, the process when the partnership comes to an end is called dissolution of the partnership.

From the legal point of view, the partnership firm is not a separate legal entity from its partners. Partners and their business are not separate from one another.

Let us first discuss some of the terms which are important regarding this:

1. Partners: The people who have entered into a partnership with one another on an individual capacity.
2. Partnership: It is an arrangement of two or more people to perform a business activity and share profit and loss. In a partnership firm, the minimum members can be two and maximum can be 20.
3. Firm: When all the partners enter into a partnership and work collectively under an organization, it is called a Firm.

Dissolution of partnership means a process by which the relationship between the partners is terminated and comes to an end and all the assets,  shares, accounts and liabilities are disposed of and settled.

Section 39 of the Indian Partnership Act, 1932 defines the dissolution of the firm. 

The Indian Partnership Act, 1932

The Indian partnership act,1932, tells about the terms and conditions under which one can enter into a partnership or how the partnership can be dissolved. There are certain provision regarding the Indian partnership act, some of them are:

Types of Partners

There are different kinds of partners in a firm: 

1. Working partner: The partner who contributes his capital and actively participates in the business activities.
2. Sleeping partner: The partner who contributes his capital but does not take part in business activities. It is also known as a dormant partner.
3. Nominal partner: The partner who neither contributes his capital nor takes part in the business activities of the firm. His contribution is limited but allows other partners to make use of his name.
4. Partner by estoppel: The person is not a partner in the firm but by his action and conduct with outsiders, he makes them believe that he is also a partner of the firm. This happens when the partner is retired but people don’t know about it.
5. Secret partner: The person who is a partner of the firm but his partnership is kept a secret from the public.
6. Partner by holding out: The partner who is actually not a partner in the firm but allows the firm to show to others that he is a partner of the firm. 

Kinds of Partnership 

1. Partnership at will: It means that such a partnership depends upon the will of the partners and any partner can bring the partnership to an end by giving a notice. Such a partnership is done for a particular lawful business.
2. Particular partnership: It means such a partnership is done for a continuous business or for a particular venture.
3. Partnership for a fixed period: It means when a partnership is done for a particular time period either for 2 years or for 5 years as soon as the period expires the partnership automatically dissolves.
4. General partnership: It means when the partnership is done generally to carry out a business and in which the liability of each partner is unlimited. 

Dissolution of a Partnership

Before the dissolution of the partnership, let us understand the difference between the ‘dissolution of the partnership’ and the ‘dissolution of the partnership firm’. Dissolution of partnership means the end of the partnership business and dissolution of partnership firm means the end of partnership business along with the firm.

The dissolution of a partnership firm means termination of every contractual relationship between the partners and that all the operations which are being performed in a company are suspended and all the assets and liabilities are settled and disposed off.

Now the question arises when the partnership is going to be dissolved? There can be different reasons for the dissolution of a partnership as when a new partner is added or when a partner is dead or leaves the partnership, etc and the remaining partners can continue their business. And when there is a change in the partners so the prior partnership comes to an end and the new partnership takes place with the liability and assets of the old one.

The partnership may be dissolved due to the following reasons:

1. Due to the death of the partner.
2. Due to the admission of a new partner.
3. Due to the retirement of a partner.
4. Due to the bankruptcy of a partner.
5. Due to the expiry of the partnership period, if the partnership is for a particular period.

Modes of Dissolution

There are some modes by which a partnership can be dissolved and those are:

1. By an act of partners: when a partner agrees to dissolve a partnership at a particular time. Partners can come into an agreement regarding a particular time period maybe five years. In which partners can end the agreement at the end of the five years. Sometimes partners can dissolve it in the middle of the time period under specific conditions.
2. By operation of law: a partnership is the consequence of an agreement which is governed by law. Therefore if any unlawful activity is performed so it will be dissolved. You can make a valid partnership for illegal work.
3. By the court’s decree: a partnership can be dissolved by the court and the court will only allow under these conditions:
   1. If the partner is incapable to work;
   2. If the partner is mentally unstable;
   3. If the partner misbehaves which creates a bad impact on the partnership;
   4. If there is a breach of the agreement by a partner. 
4. Statement of dissolution: dissolution can be done by filing the statement to the state’s secretary. The form must contain the information regarding the partnership name, date and reason of dissolution. 

Statutory provisions regarding the Dissolution

There are certain provisions which are mentioned in the Indian Partnership Act regarding the dissolution are:

Rights after Dissolution

Under Section 46 of the Indian Partnership Act, 1932 deals with the rights of partners after dissolution. After the dissolution of the partnership, partners have certain rights regarding the same:

1. Right to an equitable lien: on the dissolution of the firm, every partner is entitled to certain rights like the right to have the property of the firm used in payments of debts and liabilities and rights to have surplus distributed among all the partners.
2. Right to return of premium: at the time of the partnership, partners pay an amount in the form of premium when the partnership dissolves. Partners get that premium according to the agreement.
3. Rights where partnership contract is revoked for fraud or for other reasons: if a partner agrees to join a firm by fraud or by misrepresentation by the other partners, or if he finds so he has the right to put an end to the partnership agreement.
4. Right to restrain the use of the firm’s name or property: after the dissolution of the partnership, the partner has a right to stop other partners from using the same name of the firm.
5. The right to earn personal profit by using the firm’s name: if on the dissolution, the partner has a right to use the name of the firm as he buys goodwill of the firm and can earn profit from it.

Liabilities after Dissolution

Under Section 45 of the Indian Partnership Act, 1932 deals with the liability for acts of partners done after the dissolution. Liabilities are:

• The partners continue to be liable to the third party until the public notice of the dissolution is given, it will not be applied to the partner who is dead or the partner who is insolvent or to the sleeping partner or to the retired partner.
• After the dissolution of the partnership, the partner is liable to pay his debt and to wind up the affairs regarding the partnership.
• After the dissolution, partners are liable to share the profit which they have decided in agreement or accordingly.

Case Laws

• Narendra Bahadur Singh vs Chief Inspector Of Stamps, U.P. (1971)

In this case, the partnership was dissolved and with that, the third party (Narendra Bahadur Singh) was given with all the assets (stocks) liabilities including all the debts as per the account and he was entitled to use the old name of the firm and can carry out the business with all profit and losses. 

The other three parties were not entitled to any profit, losses or any other liability. The capital, profit, and loss of the other 3 people has agreed to receive and Narendra Bahadur Singh has agreed to pay the mentioned amount. 

As to settle the amount securely, he hypothecated and charged certain property but it was said by the court that the property of the firm is vested to all partners equally as you are not the only owner of the firm and the settlement will be done according to the mode of settlement under Section 48 of Indian Partnership Act.

• Santdas Moolchand Jhangiani And … vs Sheodayal Gurudasmal Massand (1970)

In this case, there were two plaintiffs and one defendant who entered into a partnership and carried on partnership business afterward they decided to dissolve it and settle the accounts of partnership. The plaintiff to whom a certain amount was payable, filed a suit for damage and when the issues were observed by the judge said that it was not only the deed of dissolution but also a bond. 

He impounded the document and asked the plaintiff to pay the deficit stamp duty. In the end, it was said that the deed of dissolution in this matter is not liable to be stamped as a bond and that it’s having been stamped as a deed for dissolution is sufficient.

• B.K. Kapoor & Anr. vs Mrs. Tajinder Kapoor & Anr. (2008)

In this case, the plaintiff-respondent filed a suit for the dissolution of the partnership and claimed that as per the terms of the agreement the plaintiff was entitled to 18% of the profit in the first Rs.75,000, 12% in the next Rs.75,000 of book profit and 8% in the balance amount of book profit. 

As the relation was not well mentioned in the plaint due to which it was difficult to continue the partnership. So a notice of suit issued to the petitioners who moved an application under Section 8 of the Act claiming that the suit raised is covered under the arbitrary agreement. 

But in the end, it was held that the petitioners are seeking the dissolution on the just and equitable ground covered under Section 44 of the arbitrary act and not as the term of the partnership deed and therefore the matter could not be referred to the arbitration under section 8. 

• N. Guruva Reddy vs The District Registrar (1976)

In this case, Guruva Reddy, son of Chenchu Rami Reddy and other six persons and legal heirs of Smt. P. Sri Devamma was carrying a partnership business. The legal representative and five other partners show their desire to retire from the partnership. 

A dissolution of the partnership was executed. The dissolution was executed on the stamp paper. In the end, it was said that a charge was created in favour of the partners in the respective amount, which are payable under the deed of the dissolution.

Conclusion

It can be derived from the above explanation of dissolution of the partnership that with the dissolution of the relationship between the partners they have certain rights and responsibilities which they need to fulfil and one can claim for it with the help of the Indian Partnership Act, 1932 as it gives certain provision regarding the same.

The act clearly provides grounds for dissolution of the partnership, so that nobody can take advantage of the same and it also helps to maintain a good environment in the firm.

References 

• Section 4 of the Indian Partnership Act, 1932.
• Section 6 of the Indian Partnership Act, 1932.
• Section 45 of the Indian Partnership Act, 1932.
• Section 46 of the Indian Partnership Act, 1932.
• Section 48 of the Indian Partnership Act, 1932.
• B.K. Kapoor & Anr vs Mrs. Tajinder Kapoor & Anr (2008).
• Santdas Moolchand Jhangiani And … vs Sheodayal Gurudasmal Massand (1970).
• Narendra Bahadur Singh vs Chief Inspector Of Stamps, U.P. (1971).
  

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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 Doctrine of Condonation of Delay and its principles.

Introduction

Condonation of delay is a doctrine mentioned in The Limitation Act, 1963. The Act postulates time-limits for different suits and mentions the time period within which a suit, appeal or application can be instituted. The expiry of such time period leads to extinguishing the remedy of the aggrieved party.

This doctrine is an exception to the limitation period. According to this, if the aggrieved party can furnish “sufficient cause” for causing a delay in institution of suit leading to the expiry of the limitation period, the Court can, with discretionary jurisdiction disregard the delay or “condone the delay” and proceed with the case.

Condonation of delay under The Limitation Act, 1963

The Limitation Act, 1963

The Limitation Act of 1963 is legislation which specifies the time period within which a suit is instituted, and enumerates provisions in case the suit is not filed within the period prescribed by Act. The Act extinguishes the remedy to the party and not the right to file delayed documents in Court. Section 2(j) defines “period of limitation” as the time prescribed by the Schedule to institute any suit, appeal or application, and “prescribed period” as the period of limitation determined as per the provisions of the Act.

Period as prescribed in Schedule 1 to the Act

The period has been prescribed in Schedule 1 to the Act. Generally, it is as follows:

• 3 years time-period for a suit relating to accounts, contracts, suits relating to movable property, recovery of a lawsuit under a contract, etc. 
• 12 years time-period for suits relating to possession of the immovable property, and 30 years time-period for suits relating to the mortgaged property.
• One year for suit relating to torts (3 years for compensation in certain cases).

30 to 90 days in case of appeals under the Civil Procedure Code and Criminal Procedure Code.

Meaning of Condonation

The term Condonation means that the offence (of ignoring the law of period as prescribed by the Act) is impliedly disregarded and the matter shall process as if no offence has been committed.

The Doctrine of Condonation of Delay

Condonation of Delay finds its mention in Section 5 of the Act which elaborates upon Extension of prescribed period in certain cases. According to it, any appeal or application may be admitted after the prescribed period if the applicant/appellant is able to satisfy the Court that they had “sufficient cause” for not instituting the appeal/application in the prescribed period.

What is “Sufficient Cause”?

The term “sufficient cause” isn’t defined explicitly and varies on a case-to-case basis. The Court has a wide discretion in determining what constitutes as sufficient cause, depending upon the facts and circumstances of each case.

In cases regarding non-appearance, adjournment or stay of execution of a decree, the cause must be just and adequate i.e. “sufficient” otherwise these provisions will just be a way of incessantly prolonging litigation. This principle has been advocated in furtherance of pursuance of justice but it shouldn’t deny someone of justice either.

In the case of G. Ramagowda v. Special Land Acquisition Officer, it was held that “sufficient cause” is to be interpreted liberally so as to pursue substantial justice.

Type of Jurisdiction

The Court has the discretion to condone the delay and admit the appeal. The Court has discretionary jurisdiction and even though sufficient cause has been shown, the party is not entitled to the condonation of delay as the same is left to the Court’s discretion.

Exceptions to Condonation of Delay – Section 5

There are certain exceptions relating to the ambit of the doctrine of condonation of delay (Section 5):

1. The doctrine is applicable to Criminal Proceedings only.
2. The doctrine does not include “suit” and only covers appeals and applications.
3. Other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. The doctrine covers all appeals and applications.

Rule 3A

Rule 3A has been inserted by the Amendment Act of 1976. According to it, an application must be filed in case an appeal is presented after the expiry of the prescribed period. The application has to state sufficient cause for causing a delay in filing an appeal. This rule was recommended by the Privy Council.

The practice of admitting such appeal subject to an opinion regarding limitation was disapproved by privy – council, and it stressed the need of adopting a procedure for settling the final determination of the question as to limitation before admission of appeal.

The Supreme Court, in the case of State of M.P v. Pradeep Kumar, observed two objects of this rule:

• To inform the appellant filing a time-barred appeal that his action won’t be entertained unless it is accompanied by an application substantiating sufficient cause.
• To communicate to the appellant that he may not have to be ready as the condonation of delay is a condition precedent to hearing their appeal.

General Principles under The Limitation Act

The two fundamental principles on which the Limitation Act primarily rests are as follows:

1. Interest republicae ut sit finis lithium: It is for the public good that litigation comes to an end after a long hierarchy of appeals. Continuing to file further appeals may be equivalent to opening a floodgate which causes more wrongs than rights.
2. Vigilantibus non dormentibus jura subvenitent: Law aids the vigilant and not asleep. Law will not assist those who are careless of their right. You should file the suit at the right time, during the limitation period. Law will not respond to carelessness on your part.

General Principles of the Condonation of delay

The Supreme Court, in the case of Collector Land Acquisition v. Mst. Katiji prescribed certain principles which need to be followed while administering the doctrine of condonation of delay:

• Ordinarily, the litigant doesn’t stand to benefit by instituting an appeal late.
• If the Court is refusing to condone the delay, it can result in a meritorious matter being discarded and the roots of justice being defeated. However, when a delay is condoned, the highest that can happen is that the case will be decided on merits, i.e. a decision based on evidence rather than on the technical and procedural ground.
•  Every day’s delay must be explained” does not mean the doctrine is to be applied in an irrational manner. It must be applied in a sensible manner and not a literal one.
• Between substantial justice and technical considerations, the former deserves to be preferred for the other side cannot claim that injustice is done because of a bona fide delay.
• There is no presumption that delay is caused deliberately. The litigant has nothing to gain by resorting to delay and runs a serious risk.

Instances where condonation can be granted

The following are the instances where condonation can be granted:

• Subsequent changes in the law.
• Illness of the party: It includes the nature and severity of disease and facts encompassing the failure to act.
• Imprisonment of the party: However, mere detainment is not sufficient to cause. Varies on a case-to-case basis.
• Party is a pardanashin woman.
• Party belongs to a minority group with insufficient funds.
• Poverty or paupers.
• Party is a government servant: A government servant may not have an incentive in fulfilling the task. Therefore, a certain latitude is permissible in such a case.
• Delay due to the pendency of the writ petition.
• Party is illiterate.
• Other adequate grounds: Mistake of Court, Mistake of Counsel, Delay in getting copies, mislead by rulings, etc.

Leading Judgments

• Balakrishnan v. M.A. Krishnamurty

By the means of this judgment, the need for a “rule of limitation” was justified. Rule of limitation hasn’t been incorporated to destroy the right of parties, but to ensure that the parties don’t resort to dilatory tactics and seek their remedy promptly. The Law of limitation fixes a life span for such legal remedy. Unending lifespan would’ve led to unending uncertainty. The Court held that the law of limitation is thus founded on public policy.

• Ramlal, Motilal & Chotelal v. Rewa Coalfields Ltd.

In this case, the Court held that while interpreting Section 5 of the Limitation Act, two important considerations need to be made:

• In case of expiry of prescribed period of prescription, a right in favour of the decree-holder arises, according to which the decree can be treated as binding between the parties.
• If sufficient cause of delay in filing appeal has been given, it is the Court’s discretion to condone the delay and admit the appeal.

The fact that the appellant was misled by tools of the High Court in computing the limitation period is sufficient cause under Section 5 to condone the delay.

Appeal was granted.

• Shakuntala Devi Jain v. Kuntal Kumari

In this case, the question before the Court was whether the delay in filing appeal should be condoned under Section 5 of the Limitation Act. As laid down in this case, Section 5 of the Limitation Act gives Court discretion, which has to be exercised in a way in which judicial power and discretion ought to be exercised upon well-understood principles. The words “sufficient cause” need to receive a liberal construction. The Bench of three Judges held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

The appeal was allowed and the delay was condoned.

• New India Insurance Co. Ltd. V. Shanti Misra

What constitutes sufficient cause can’t be laid down by hard and fast rules. In this case, it was held that discretion given by Section 5 shouldn’t be defined or made concrete in such a manner that it converts a discretionary matter into a rigid rule of law.

•  Lala Mata Din v. A. Narayan

The question before the court is whether a mistake was bona fide or was it merely a way to cover an ulterior purpose. In this case. It was held that the accused was not to be blamed for a delay in filing appeal and it was to be attributed to advice of his counsel. The accused had no underhand to do so. Other than that, the rule had been misread by the counsel, meaning that the mistake committed by the counsel was bona fide and not influenced by any mala fide intent. 

The delay was condoned and the appeal dismissed.

•  State (NCT of Delhi) v. Ahmed Jaan

The petitioner had filed an appeal for condonation of delay, however the file got mixed up in the Registry of High Court. The question before the court was whether to allow delay in filing and re-filing of appeals. In this case, it was held that what counts is not the length of the day but the sufficiency of a cause i.e. the Court should follow a pragmatic and rational approach in explaining every single day’s delay.

The delay was condoned and appeal thereby dismissed.

• Kunwar Rajendra Singh v. Rai Rajeshwar Bali and others

The judicial committee, in this case, pointed out that if a party in a particular manner due to wrong advice given by their legal advisor, they cannot be held liable for negligence and can still be permitted to plead under Section 5 of the Limitation Act. The Committee also observed that mistaken advice given by a legal advisor in a particular case can be held to be sufficient cause.

The appeal was allowed.

•  IOCL v. Subrata Borah Chowlek

It was held that though a certain amount of latitude is admissible in cases involving government since the government official carrying out does not have an incentive to do so.

Conclusion

The Law of Limitation and Condonation of Delay are two effective tools for effective litigation and quick disposal of cases. The Law of Limitation ensures that the case is filed within the prescribed period so as to avoid unnecessary delays and is the epitome of the maxim, Vigilantibus non dormentibus jura subvenitent. On the other hand, condonation of delay is the safeguard to the law of limitation and bars certain cases in which the delay in filing the suit is justifiable, i.e. can be backed by having “sufficient cause”.

There are cases where the Court didn’t allow condoning the delay of one day, and there are cases where the Court excuses delay of several years. It varies from case-to-case and the Court has discretionary jurisdiction to determine whether a case is suitable for condonation or not.

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This article is written by  Suman Chatterjee Team LawSikho.

Why the beginning of the legal profession is the hardest and why most lawyers fail to get anywhere in the practice

I was talking to a final year LLB student the other day. He was from NLU, Assam and his primary problem was that he was not being able to learn anything from his internships. 

We had an hour-long decision and I came to an epiphany. 

The problem he was facing was not exclusive to law students. Even most junior lawyers face the issue and struggle with it unless they break out of the circle. 

What circle am I talking about by the way?

Okay, to answer it, let’s start with the age-old question that provokes controversy to this day.

Egg vs chicken dilemma

This question is a classic for a reason. People have been asking it for centuries and what’s interesting is that this little conundrum has a bit of history. 

It started when Aristotle probably first thought of this question and smartly eluded answering it saying: “There could not have been a first egg to give a beginning to birds, or there would have been a first bird which gave a beginning to eggs; for a bird comes from an egg.” (Nice diplomatic answer, Aristotle. You would have made a great lawyer, I am sure.)

Even Plutarch said, “Whether the Hen or the Egg came first, shook the great and weighty problem (whether the world had a beginning).”

Not to get into the substance of the dilemma here, I want to focus on what the dilemma signifies. 

I don’t care about either the chicken or the egg because I love to eat both of them (no offence to vegans!).

I say you go and get whatever is available in your fridge. Then you can get started.

In the legal profession, what matters is the question, “Which comes first?”

If I don’t know how to do the work, will I still be given work at my internship?

And if I am not given work, then how will I learn how to do the work?

And even when I get an internship, the lawyer is not giving me much work because I do not know the work. And I do not learn the work because it is not given to me.

Chicken and egg problem.

That is for law students.

For lawyers it goes like this:

How can I get a good job when all of them are asking for experienced candidates?

How can I get experience if none of them will take me when I do not have experience?

Some or the other version of this question plays a big role in the career of a lawyer. 

Surprised? Don’t be. 

In fact, this is so prevalent and common in the legal profession that we close our eyes to this one question and seldom take notice of it. 

It is a blind spot until there is no option to look away.

We live in blissful ignorance.

Until one day we are forced to confront this problem.

****

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(Click on the Play button to watch the video)

****

The invisible vicious cycle most fall into

The experience that our NLU friend shared with me goes like this (in short): he starts interning under a lawyer or in a firm. 

He does not get allotted enough work. He does not learn anything. 

He starts his next internship. 

He still has not gained sufficient knowledge from his previous internships. His senior still does not give him work because he does not seem prepared to do the work. 

He again learns very little or almost nothing by the time the internship is over. 

Rinse and repeat.

I am sure many of you would relate to this experience. 

A vicious cycle that almost every unassuming, naive law student falls into.

Does it get better when you graduate and get a job?

Not really.

I know many junior lawyers, who might have passed out of law school lately and have already started their legal practice, going through the same experience. 

Like a tired, clueless hamster on a running wheel, going on and on, without any apparent progress.

I will tell you why this happens though.

It comes from blindly repeating what has been followed for the last several decades, and not even questioning the status quo. 

Which one comes first – knowledge or experience?

You are probably wondering, “What kind of a question is this? Of course, knowledge!”

Good, right answer. 

But why do law students go for internships? As anyone, and they will say in unison: to get experience.

Two problems with that.

First, talking about learning under a senior, only if lawyers and law firms were waiting with open arms every summer for incoming batches of law students, rolling out the red carpet, dedicating their billable hour to training law students, then perhaps law students get sufficient practical experience from internships.

Unfortunately, that is not the case.

Lawyers are not sitting around to teach practical skills to their interns, contrary to your unrealistic expectations.

Two, tell me honestly, does a fresh law graduate possess the requisite knowledge to enter the legal field?

At this point, you might be nodding your head. “They have already got their LLB degree. Yes, they got the knowledge.” 

But the fact is that they don’t.

They might have got their license to practice law but that does not mean that they are “ready to practise”. 

Most fumble when it comes to drafting simple notices, contracts and petitions. Many of them cannot even do case law research properly.

Doing client work is a far cry for a vast majority.

Some are clueless as to how the court works (how to get adjournments, how to file plaints or how to procure the right stamp paper for registration purposes, etc.). 

Click Above

Heck, a few don’t even know the value of court fees to use on the Hazira. (I have been one of them. *same pinch*)

They all have passed their LLB course and have already been enrolled as advocates under the Advocates Act, 1961. Yet they do not have the necessary “practical” knowledge and legal skills to work as a lawyer yet. 

Think about it. If you, as a law student or a graduate, start working under a senior lawyer, would he have the time and energy, and most importantly, patience, to teach you everything from scratch? 

On second thought, why should he do it anyway?

If he invests that time and effort into you, what is in it for him? You will probably leave for a better paying job anyway, and he can’t stop you. Why should he take that risk?

His experience says it is probably not worth it. 

As a result, you would be at the mercy of other junior lawyers, who are probably a bit more experienced than you, trying to learn whatever you could. You would not be given any serious work because your senior knows you probably will not be able to do it. 

You would have to follow the same, old and very expensive advice, “Observe and learn.” 

Sure, practical skills can be learnt that way. Only problem is that you will be learning through trial and error, at the cost of many mistakes, with little guidance, and spend years learning what could be learnt in a few months if you followed a systematic approach. 

Learning lawyering needs consistent practice and personal guidance by a competent mentor. You can’t learn it by watching videos or reading books.

As a result, it is highly likely that any internship you secure or a stint in the office of a senior lawyer would become unproductive and unfruitful beyond getting some basic familiarity with the profession. 

The worst thing is that you will be told that you are on the right track. This is how all lawyers learn. Just keep doing it. Your time will come. Bla bla.

The only way you can break a hamster wheel is when it breaks off on its own. 

Little by little, bit by bit, you are running it down. 

When it finally breaks, you may realise that some of the most precious and productive years of your life is behind you, and it was unnecessary.

Ultimately, the interns who were full of hope and optimism once turn into frustrated and pessimistic lawyers who spout acid every time someone asks them, “Is law a good profession?”.

The only solution out of this is, you have to break the vicious cycle by taking responsibility for your own skill development. You have to learn, and it is not upto some employer to teach you.

If you have the skills, thanks to your own effort, you immediately stand out from the crowd.

Walk the smarter path to success

To fill that gap, you can either choose option one (followed by most LLB students or grads out there) or option two (followed by a smart, chosen few). 

What are they?

One, you keep doing what you are doing. Whether as an intern or as a junior lawyer, you keep slogging away for years to come. I am sure you will learn the tricks of the trade, although at a snail’s pace.

Two, you can join a 3-month Certificate course, 6-month Executive Certificate course or 1-year Diploma course conducted by LawSikho and gain as much practical knowledge and experience as someone who has been working for 2-3 years in the legal profession within a few months.

Want to know how LawSikho courses could pack years of practical experience into a few months? 

Talk to our career counsellors on 011 4084 5203 or comment below to this article with your phone number and stating, “I want to know more about practical training at LawSikho.” Our experts will get back to you ASAP.

Ultimately, the choice is yours. 

Most of my batch mates ended up choosing option one. I will bet my hat, most of your batch mates will do the same. 

Unfortunately, it is not the right choice. 

You need to sweat it out in the court. But why sweat it out at the court every day without the basic training to start with? 

Why embark on an expedition of your lifetime with a ship without a sail and they try to build it on the way? 

Why waste your precious time when you can reach your dream destination 10x faster? 

Why zig and zag when there is a straighter and more efficient road ahead of you?

Let your answer to the above questions guide you in the right direction.

To your success.

P. S. For the curious-minded, the answer to the “hen or egg” question is rather controversial. Science says that the egg, containing the genetic makeup of the modern chicken, probably came from an almost-chicken like creature. 

Then some religious proponents would say that God made the animals first. Thus, the chicken was created first and then came the egg.

I, for one, love this answer by David Consiglio on Quora:

“Neither. And both. This is a false dichotomy.

You see, there is no such thing as a chicken, nor is there such a thing as a chicken egg.

Let me explain.

Chickens aren’t a static thing. They evolve over time. They are constantly changing.

So are their eggs and the contents of those eggs, too.

Many millions of years ago, there was a dinosaur. It looked vaguely chicken-like, but it had teeth and claws on its “wings.” If you saw one at night, you might briefly mistake it for a chicken.

Over generations, though, this creature changed. Its teeth disappeared, as did the claws on its wings. It gained the ability to fly and then lost it again.

At what point did it become a chicken? It still isn’t a chicken, remember? There is no such thing as a chicken.

The eggs you buy at the store come from a small dinosaur that is still in the process of becoming what it will eventually become. It is the first of its kind. It is the last of its kind. Its children will not be chickens, any more than it is.

They are beasts on the spectrum, categorized by we humans as “chicken” but no more chicken than dinosaur or incredibly advanced amphibian or hyper-evolved protozoa.

There was no first chicken. There was no first egg. We could arbitrarily draw the line anywhere we wanted to, summarily deeming that this is the first chicken or the first egg.

But, in the end, that decision would be arbitrary. The creature we are about to eat is what it is, regardless of where we draw that line. And, this is important, the being just on the other side of that line, regardless of where we draw it, is more “chicken” than any other creature. If you were to see one, you’d say, “that’s a chicken”. Either that, or we’ve drawn the line so far from what we think of as “chicken” that the creatures on both sides would fail this simple test.

False dichotomies of this kind are common. Which is better, conservative or liberal? Answer: yes. Which is worse, rape or murder? Answer: no.

Life is far more complex than ‘yes’ or ‘no’ and ‘better’ and ‘worse’. Expand your mind and see the world as it is: a spectrum of existence.”

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

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The post Why the beginning of the legal profession is the hardest and why most lawyers fail to get anywhere in the practice appeared first on iPleaders.

This article is written by Aarushi Desai, an advocate practising in the Gujarat High Court, Family Courts and other courts based out of Gujarat.

All lawyers can be superheroes if they apply their skill to adapt to the situation. One such way to help your network in the times of #coronavirus is to encourage them to #makeawill. This will also help young litigators having financial woes to gain more clients.

Why are you here?

You want to do something better, be the change, learn something more, create a difference. You see your friends who are doctors, police inspectors and social workout there on the front lines while you are busy posting work out and cooking videos and have successfully completed the #dalgonachallenge. Don’t you want to help too? What are the ways you think that you can use your skills as a law student to help?

How can you help?

Lets dial back to the first year of law school – do you remember learning about family law and making a will? Maybe you had a 10 marker question on drafting a will as a part of your paper. Well it’s time to revise the chapter since this is your weapon of choice to save the world- go out there and make others aware of safeguarding their family by making a simple will. 

How do you start?

Attached is a draft template for making a will. If you have a better one, use that. Armed with that template, reach out to your loved ones- start with your family. Any person who owns assets should make a will. Your father may be the sole bread earning member in the family, your mother may be a housewife but own jewelry and have a right in her father’s property. Your uncle might have young kids, a spouse and parents – how will he want to divide his assets?  

Why would they want to make a will- we live like the Hum Saath Saath Hain family?

Remember the brothers of India’s richest family struggle? Did you know that the daughter of a very wealthy family owning textile mills changed her sex to gain inheritance rights in her father’s property when her father declared that only his son would receive his inheritance? Have we forgotten that the famous family which owns the clothing goodstore (the advertisement which says – the complete man one) is fighting every day in court over family wealth? If such big families have issues in estate planning although having access  to wills, where does that leave you? 

But I am the average middle class person, my family does not own so many assets, why should I force them to make a will?

Who said small families don’t fight over properties? Remember that old Ambuja Cement ad- Bhaiya ye deewar tut-ti kyu nahi hai? Why don’t you google death over property and see the number of cases. Ok- maybe I am painting an extremely gruesome picture but you get the idea right? A will is just a tool to ensure that the loved ones have clarity on how to honour your wishes. Issues are not going to resolve themselves – you cannot always divide that favourite piece of jewelry in half or sell the childhood home where you have extremely fond memories and split the proceeds in the name of practicality. You want to ensure that the glue that holds your family together continues to bind even after your loved one’s death and at the same time, equitable distribution of wealth is carried out- the married bua does not raise issues on the ownership of the house where you and your family is staying, the grandmother and spouse do not fight over the life insurance money and so on. Believe me, I have seen a lot of families fight over such terms while they should be busy mourning the death of their loved ones.

But talking about making a will is such a touchy topic! It will sound as if I am reminding Dadaji and Dad of their impending deaths

I agree, we Indians find great pleasure in avoiding sensitive topics which should be addresses- maybe about that uncle who unpleasantly touched you, or the sex education talk that you should have received in your childhood or talking about how your latest Tinder experience (not all of us have cool family discussions like Hardik Pandya’s family does!) has been. Maybe we can add the topic of will making to that list or we could use this family time to talk about real topics and not behen ki shadi kab hogi?  You are well are of the law regarding making a will (If not, tune in to Youtube here and learn from India’s top expert- Mr. Satyajeet Desai, Senior Advocate and Revising Author of Mulla on Hindu Law) and now is the time to test your selling skills  (Shark Tank, here we come!). 

Approach them, talk to them about how you attended this Zoom lecture which got you thinking and now you want to do your bit and spread awareness on making a will. Make it clear – this is a practical advice to plan your inheritance in advance and save your family from the impending fights which may ensue- clarify that this will save the trouble of identifying where the assets are located, you can be the trusted advisor and there is no better time than now when times are uncertain and death is literally everywhere. 

What should I say?

We need to insist that will making shows:

1. That the decision maker continues to be in charge even after his death.
2. Maybe a litigation would ensue- even more days wasted from your sanctioned leaves (because Tareek pe tareek pe tareek).
3. It is easier and speedier on the loved ones.
4. Abhi toh chita be aag bhuji bhi nahi hai aur the- emotional and financial strain of dividing the assets when you should be mourning or have just gotten out of caring for the deceased during the extensive months when his illness was ongoing (excuse my Hindi please, it’s too Bollywood).
5. The stress of death may cause fights amongst siblings- where the property documents are, who will pay for the pending hospital bills, how to make funeral arrangements.

A will making session can also be a good time to discuss whether they want to be put on life support, donate organs, give to any charities or their staff, where the share certificates and property documents would be located (or whether you have a third brother you didn’t know of!).

OOf! You don’t understand, I need an ice breaker- I can’t suddenly transform from that xbox playing kid to their legal advisor

Umm, maybe I need to butt my nose in your business- how about we as (potential) lawyers start our own instagram challenge- give #dalgonachallenge and #tiktok a rest? Let’s start the #makeawill challenge-  Post a picture with your family and write the reason you love them and why we should make a will (Zindagi ke saath bhi zindagi ke baad bhi). 

Tag your other non lawyer friends to post pictures with their family and ask them to write what they do with their family (yes, they don’t know anything about why they should make a will but I remember the #icebucketchallenge too- who knew what it stood for but it worked right?) Then repost their pictures to spread #makeawill hashtag. 

This should help right? It’s also a reason to show off your family in those cute wedding or vacation outfits through #makeawill. 

If not, just remind them of the brother’s expensive fight of that rich Indian family as a show opener and start there!

Also try this whatsapp message: 

Hey, I am trying to spread awareness on #makingawill in these times of Corona. Make a will and show your loved ones that you care for their safety forever. Reach out to me in case you need any help in preparing the will – in the meanwhile please log on to facebook/instagram/twitter and post a picture with your family showing off your awesome family activities with the hashtag #makeawill and lets spread this awareness.

OK I am starting now, its my turn to be a lawyer and don my cape!

Slow down junior,  attend the youtube lecture too and get a chance to learn the art of making a will from one of India’s foremost experts, Mr. Satyajeet Desai, Senior Advocate and Revising Author, Mulla on Hindu Law here.

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

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

Introduction

If we refer to the Indian penal code, the term good faith is defined in a negative manner. It holds a strong relevance in criminal law in deciding the intention while charges against the accused whether the act done by the person accused was done in good faith or with ill will. As per Section 52 of IPC, “nothing is said to be done or delivered in ‘good faith’ which is done or delivered without due care and attention. If we look into the dictionary, ‘good faith’ is also considered to be a fact done honestly but in ‘good faith’ in IPC connotes a different meaning.

According to IPC, good faith requires due care and attention and for an act to be done in good faith it should be done without carelessness and negligence. Also, the belief for doing the act should be a reasonable and not an absurd one. The question with respect to good faith depends upon the facts and circumstances of the case. It also depends on the ability, intelligence and profession of a person.

Essentials of Good Faith under IPC

1. Good Intention; and
2. Due care and attention.

In the case of Sukaroo Kobiraj v. The Empress [i], the appellant was convicted under 304A for performing a very serious operation i.e, cutting out of internal piles of a prisoner and as a result of excessive bleeding the prisoner died. The court held that the prisoner is not entitled to get the benefit of Section 88 as although he had no intention of causing death to the prisoner but if from the bare perusal of good faith as defined under Section 52, an act is not said to be done in good faith if it is not done with due care and attention. In the present case too, the accused was uneducated of conducting surgery and he didn’t get the immunity of good faith and was held liable under 304A.

Plea of Good Faith as a defence

Section 76: It stated that an act done because of a mistake of fact in good faith because he considers himself to be bound by law to do that act is not an offence.

In the case of State of West Bengal v. Shew Mangal Singh and Ors. [ii], the respondents were convicted under section 302 of IPC but the Supreme court held that their act was justified and lawful as they did the present act on the orders of their superior officer and held that as per the circumstances of the case, the order of open fire could be acceptable.

Section 77: The act of a judge acting judicially on which in ‘good faith’ he believes to be is not an offence.

Essentials to get immunity of section 77 are:

1. The act must be performed by a judge; and
2. The power exercised by him is done in good faith.

In the case of Surendra Kumar Bhatiya v. Kanhaiya Lal and Ors. [iii], it was observed that a collector using his power under the Land Acquisition Act is neither a judge nor he can use his power judicially.

Section 78: This section protects the person who executes an order/judgement of the court. The section states that when an order or judgement is in force, anything performance done for the same is not an offence. Even when it is beyond jurisdiction and the person believes in good faith to be in jurisdiction then also he is not liable for any offence.

The essentials of section 78 are:

• There must be an order/judgment of court;
• The order/judgement must be in force;
• The order/judgement passed must be within the court’s jurisdiction; and
• If it is beyond jurisdiction the person must be acting in good faith of it being within jurisdiction.

Section 79: This section protects the person who does an act, due to reason of mistake of fact, in good faith and thinks that they are justified by law to do so.

The principle of ‘Ignorantia facti excusat ignorantia juris non excusat’ applies and mistake of law is not at all excusable.

In the case of Chirangi v. State [iv], a person was accused of murder who in state of delusion imagined his son to be an animal, and killed him with an axe. He was not held liable as because of a mistake of fact he imagined his son as an animal.

In the case of R v. Prince [v], a person was charged for taking away a minor girl without their parents consent but the actual age of the girl was 16 years. Even the judge observed the girl seems to be a major, but the accused was held liable as mistake of law is not an excuse.

Also, in the case of M.H. George v. State of Maharastra [vi], a person was carrying gold from Zurich to Manila. Flight has a stoppage at Bombay airport, and the custom officials recovered gold from the accused. He said that he was not aware of the Foreign Exchange Regulation Act. He was held liable as ignorance of law is not an excuse in the eyes of law.

In the case of Keso Sahu v. Saligram Shah [vii], the accused brought the cart and the cart man to the police station in good faith as he thought that the offence of smuggling was going on, but he was proved to be wrong. It was held that the accused can take the defence of mistake of fact as the act was done in good faith and the same is justified by law.

In the case of Dhaki Singh v. State [viii], the accused misunderstood an innocent person as a thief shot at him. In the findings, it was evident that he was not in a position to catch the thief so he shot at him, but it is not a mistake of fact and the same cannot be justified in the eyes of law and he was held liable for the offence.   

Section 88: A person who does an act not intended to cause death and done for the benefit of a person with his consent (either express or implied) cannot be held liable for the act if it leads to any other harm or death.

Example: A, a surgeon who knows that the operation is critical and can even lead to death, but if he does the act in good faith for protecting the life of the patient with due care and attention, he cannot be held liable.

In the case of G.B Ghatge v. Emperor [ix], a school teacher was accused of beating a boy with a cane stick. He was not held liable as the punishment given to the boy was given to the correct boy and maintained the discipline of the school.

Section 89: An act done by a person in good faith for the benefit of the child or an person of unsound mind on the consent(either express or implied)  of his guardian or person having legal right is not an offence.

Exceptions to Section 89 are as follows:

• Person doing the act intentionally causes or attempts to cause death.
• Person doing the act with the knowledge that his act can lead to death, infirmity or any grievous disease.
• Person doing the act should cause or attempt to cause grievous hurt.
• Abetment of an offence to the committing of such offence.

Example: ‘A’ father of a child gave consent for cutting the stone of the child and he had the knowledge that the operation is critical and it can even lead to the death of the child, but if he has given consent in good faith for the benefit of his child he is exempted from criminal liability.

Section 92: A person cannot be held liable for an offence if he does act for the benefit of the other with good faith but when it is not possible to obtain the consent of him or his guardians.

Essentials of Section 92 are as follows:

• An act is done for the benefit of the other person; and
• Act must be done in good faith; and
• It is not possible to obtain the consent of the person or his guardian; or
• There is no time to obtain the consent.

Example: There are ‘n’ number of cases daily in which the person meets with accident or any other reason and if he condition is critical, there is not enough time to get the consent of his guardian and sometimes it is even difficult to contact their guardian. Operations are performed by doctor without consent and they get the immunity as specified under this section.

Section 93: Communication Done in good faith

If any communication is given to a person for his benefit in good faith, the person giving the communication is not liable for any harm caused.

Example: ‘A’ a doctor told to a patient that he is suffering from last stage of cancer and as a result the patient committed suicide. The doctor is not responsible for his death as he talked about the patient’s condition in good faith.

Exception 3 of Section 300: A person (either public servant or one authorized by a public servant) is not liable for exceeding power to cause death if he did so with good faith and lawful intention without ill-treatment to the person whom death is caused.

Example:  A police officer went to arrest a person and the person started running away. The police officer shot him. He is not liable for murder.

In the case of Dukhi Singh v. State [x], a RPF constable was given benefit of this section who while shooting a thief who was trying to run away shot a fireman unintentionally.

Section 339: The exception of this section states that if any person who in good faith thinks that he has the right to obstruct the private way over land or water then he is not liable under this section.

In the case of Madala Perayya v. Varugunti Chendrayya [xi], the accused and the complainant were both the joint owner of a well. The accused restricted the complainant from using water and also stopped the complainant’s bullock from moving. Since, both were joint owners so that both had equal rights over and the act done  by the accused was not done in good faith but in malice and hence he was made liable under Section 339 of IPC.

Section 499: Exception 3 to this section provides that a person cannot be held liable for expressing their views with good faith and honesty on conduct of a person discharging public function.

Conclusion

The term ‘good faith’ is a very fair provision as it provides immunity to many people whose act is surrounded by taking risks for the benefit of the person or of the society. Eg. Police officials, Medical Practitioners etc. Also, the term good faith is not having an absolute definition but it depends upon case to case but for an act to be done in good faith, the same should be done with due care and attention. Mens rea is an essential element for constituting a crime and acts devoid of the same are exempted from criminal liability.

It is very easy to interpret the term good faith but it is quite complex to define it as we often use the words like good or bad but generally we do not use terms like good faith or bad faith. In general, people often refer ‘good faith’ to being honest but that is not as defined in IPC. Apart from being honest, proper care and attention are required in doing an act.

References

1. (1887) ILR 14 Cal 566
2. AIR 1981 SC 1917
3. (2009) 12 SCC 184
4. (1952) Cri LJ 1212
5. (1875) LR 2 CCR 154
6. 1965 SCR (1) 123
7. (1977)Cri LJ 1725
8. AIR 1955 All 379
9. AIR 1949 Bom 226
10. 1955 CriLJ 905
11. 1954 CrLJ 283 Mad

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

“Drones overall will be more impactful than I think people recognize, in positive ways to help the society”

-Bill Gates

Introduction

The outbreak of novel coronavirus disease has brought the whole world to a standstill. With production activities halted for more than a month, the Indian economy which was already bruised is shrinking further. To combat the same and recession that will follow, unconventional and unprecedented solutions are required. While the government is planning to re-initiate production activities at some less-affected areas, however, it is pertinent to note that the same might not achieve the intended purpose unless a safe and foolproof supply chain and delivery mechanism is adopted. Where on one hand, aviation, hospitality, tourism, real estate, and non-essential goods’ industries have taken a huge toll; essential goods’ industries such as medicines, household food-items, oils, toiletries, etc have thrived.

Though amid lockdown, there is still demand for non-essential items such as smartphones, laptops, books, etc, however, there is no effective and safe mechanism to deliver the same to the consumers. In such a situation, the use of technology becomes imperative. Technological advancements are changing the way human beings interact virtually and physically. The emergence of drones, also known as Remotely Piloted Aircraft System (“RPAS”), Unmanned Aerial Vehicles (“UAVs”), or Unmanned Aircraft System (“UAS”), reflect this change most aptly. A drone can be defined as an aircraft along with its associated elements, which is operated with no pilot on board. 

It can be used to deliver light-weighted non-essential goods available at global and home-grown e-commerce platforms such as Amazon, Flipkart, and Paytm Mall. Before the idea is considered laughable, it is pertinent to mention that drones are already being deployed in the following sectors amid lockdown: 

• The Noida Authority and Municipal corporations in Delhi are using it to spray disinfectants over closed- markets, buildings, slums, and sealed hotspots;
• Telangana, Kolkata, Ahmadabad, and Mumbai police are using it to monitor people’s movement amid lockdown and track the violators;
• Ghaziabad’s Police Authority is deploying it to monitor ‘Red Zones’ amid lockdown; 
• though illegal, suppliers used it to deliver ‘Pan Masala’ to a person in Gujarat; and
• IIT-Kanpur’s manufactured night vision drones are used to monitor hotspots in Uttar Pradesh. 

If the usage of drones for law enforcement and civilian purposes had been legalized years before the world accepted it as a boon for mankind, they could have been used and have played an important role during the time of floods in major parts of India, unlike helicopters which have no option to land in flood-hit areas and throw food and other supplies to the villagers while flying at a lower altitude, often missing the target. Drones could have been more precise and useful at such times of need. Further, if their usage had been made more acceptable, today, in times of present coronavirus pandemic, a lot of problems regarding the supply of essentialities and their delivery at doorsteps would have been possible, defeating the scare of the public at large getting affected. 

What are drones?

Drones are aerial vehicles or flying robots that do not carry a human operator. They can fly thousands of kilometers remotely and autonomously. They are designed to carry lethal or non-lethal payloads and can reach inaccessible areas at low costs. Advances in navigation, power storage systems, and remote control capabilities, have made possible the evolution of a wide range of drones that can be deployed in various situations where the presence of humans is difficult, dangerous, or impossible. 

Deploying flying robots for military surveillance, planetary exploration, and search-and-rescue operations is not a new concept; however, the use of drones to deliver non-essential goods on the terraces of households, i.e., commercial use of drones is yet to be legalized in India. 

The need to allow the use of drones

The need to allow the commercial use of drones to air-deliver non-essential goods arises from the recent development that took place amid COVID-19 pandemic:

• Food delivery service Zomato’s delivery guy tested positive for COVID-19 as a result of which seventy-two houses where he delivered essential commodities were quarantined and operations at the place where he was working were seized by the authorities;
• Amazon US delivery guy spat on a package before delivering it at the doorstep amid the COVID-19 outbreak;
• A delivery boy spat on Manipuri woman who was receiving essential goods being distributed by the police in Mumbai; 
• An operations manager died of COVID-19 in Amazon’s warehouse in the US; and
• Lack of safe and hygienic working conditions for employees working in warehouses and logistics departments raises a serious question of concern whether receiving essential goods by delivery is safe indeed. 

Drones can facilitate the revival of some economy activities hampered due to the nation-wide lockdown in the following manner:

• By leveraging aerial logistics to deliver essential and non-essential goods depending upon the weight of the article in question and the ability of drones to carry such weight;
• Reduced human contact in the transmission of goods from one place to another, thereby reducing the chances of infection; and
• New areas of employment such as manufacturing and servicing of drones.

Application of drones in different industries

Presently drones are being deployed only by law and enforcement agencies and not for commercial purposes. However, to tackle the pandemic, it is pertinent to deploy drones in the following industries to combat the health hazards associated with the laborers and give a boost to the shrinking economy by re-initiating some economic activities. The industries that can be benefitted from the use of drones are as follows:

E-commerce

The government must resort to Aerial Logistics to counter the crisis of COVID-19. Considering how dependent a human being is on his smartphone, laptop, or musical instruments for recreational or professional purposes, it can be hard for some people to survive the lockdown without the above-mentioned articles. They won’t mind spending some extra amount to avail such goods if allowed to do so. For example, a person might not hesitate to pay double the amount for a smartphone costing Rs. 10,000 at such time to get it air-delivered at his rooftop. Similarly, a musician might be ecstatic at the thought of receiving a music mixer or some instrument to be able to make and upload new music on social media sites for his fans and generate revenue from the same. 

As for monitoring the lockdown, drones are well-equipped with thermal imaging payloads, surveillance cameras, and sky speakers (to make announcements). Similarly, drones deployed by e-commerce companies can be equipped with proper hardware like camera, rope, hook, etc. subject to the regulations enacted by the government. Initially, goods stored in warehouses or with local retailers can be offered for sale at e-commerce platforms till further manufacturing is suspended. It is pertinent to note that one of the world’s largest e-commerce companies Amazon obtained permission to test air-delivery by drones in the USA in April 2015 and the UK in July 2016. Thenceforth, Amazon did its first aerial-delivery in December 2016 in the UK in the university town of Cambridge. Also, Google spin-off Wing delivered toilet paper, coffee, and cookies to the residents of Christiansburg, USA amid the ongoing lockdown.

In India also there have been some developments on the use of drones for commercial purposes:

• Reliance Industries acquired a controlling stake in a drone technology firm Asteria Aerospace in 2019.
• Food delivery company Zomato acquired drone startup TechEagle in 2018 and tested it for food delivery services via drones in June 2019.

Medicinal purpose

Telecommunication drones can be used for preoperative evaluation, diagnosis, treatment, and telemedicine in remote areas. They have the potential to be dependable medical delivery platforms for pharmaceuticals, vaccines, emergency medical equipment, microbiological and laboratory samples. Also, in non-coronavirus disease-related emergencies (accidents, chronic disease, etc) lifesaving human-organs such as heart, blood, etc. can be transported via drones in no time. 

Transporting vital equipment and medicines from one place to another, especially Beyond Visual Line of Sight (“BVLOS”) is not always a straightforward process, especially in harsh environments with poor railway and road infrastructure. Consequently, drones should be deployed to help fasten the delivery process.

Drones can be pre-designed with set flight routes to selected hospitals. Such flight routes would be the ones with a clear aerial passage with the least possibility of disruptions from human and natural constraints such as towers and large trees. They can be programmed to always deposit their deliveries at the pre-decided spot so clinicians can find them without any hassle. A paper parachute can assist it to drop articles to the ground gently, and the products inside can be transfused into the patient. 

San Francisco-based start-up Zipline has developed a delivery-drone, which is being utilized by hospitals across Rwanda and Ghana to supply emergency blood products. It can deliver blood, plasma, and platelets in just a matter of minutes. All that clinicians need to do is make a phone call, send an email, text, or WhatsApp message to Zipline Headquarters requesting them to deliver the required drugs at a pre-decided spot.Such technology can be leveraged in this time of crisis given that platelet therapy is showing positive results.

Areas with poor infrastructure can use such a system to their advantage. Given the current crisis, such drone technology can be used in far-flung areas such as the North- East, Jammu and Kashmir and districts with poor accessibility. The government must constitute a committee to inquire into the applicability of drones to counter the crisis and use it to counter economic and social disparity.

Broadcast Media

Journalists being at the forefront reporting on developments of coronavirus and other issues of national and regional interests can rather use drones to mitigate the risk of being affected by the virus themselves. Already, over fifty journalists have been tested positive for the virus in India and are under isolation. And, these are just the reported cases. Drones with a camera mounted on it can be used for capturing photos and videos of the latest happening around the country and the same can be reported by the news reporters in an apposite, efficient, and secure manner from their homes or studios without being physically present at the site. 

Sports Industry

International and domestic sporting events such as Wimbledon, ICC t20 World Cup, Indian Premier League (IPL), Olympics, etc have either been postponed or abandoned in the wake of current calamity. There will be a huge monetary loss to the organizers because of this. Billions of dollars are at stake all over the world. For example, All England Club had taken pandemic’s insurance following the SARS outbreak for which it had been paying a premium for almost the past two decades. Consequently, they will be receiving Rs. 1079 crores for cancellation of Wimbledon because of the Coronavirus pandemic. But, not many organizers had the foresight to take such insurance and would thus face the consequences. Considering how big an industry sport is, it is imperative to look for ways to resume it at the earliest by keeping the players, support staff, and spectators safe. One possible solution is to allow hosting of domestic tournaments, a few weeks down the line, after conducting adequate medical tests of players and support staff and properly sanitizing indoor stadiums and grounds.

Also, instead of commentators, interviewers, and cameramen, drones can be deployed to capture the game from different angles, allowing the commentators to do commentary remotely. Further, spectators should not be permitted on the stands as before. This would not only minimize human contact but would also help telecast the live games on TV channels/ Over the Top (OTT) platforms without much human intervention. Digital subscription and novel means of advertising would help organizers recover the lost revenue due to a lack of spectators on the stands. For example, Rafael Nadal has proposed to host tennis competitions at his academy amid lockdown. According to the proposal, players can train, reside, and compete amongst themselves in matches that can be televised live.

Something similar can also be done at Jawaharlal Nehru Stadium or other stadiums that were used during the CommonWealth Games in India.

Regulation of drones in India

History 

In 1849, Austria used unmanned flying objects, today known as drones, for the first time to drop bombs on their arch war rival – Venice. All over the world, drones were initially used in war zone areas for primarily military operations. Soon they began to be deployed for rescue operations, conducting surveillance, gathering precise spatial data, crowd management, agriculture, crop protection, journalism, and delivering goods. On October 7, 2014, following the use of drones for the first time in Mumbai (India) by a pizzeria to air-drop pizzas in close vicinity, the Directorate General of Civil Aviation (“DCGA”) imposed a blanket ban of their use citing reasons such as safety threat, terrorism, air collision, etc. Subsequently, two draft guidelines were released by the DCGA in April 2016 and November 2017 to regulate the operation of drones. However, both were severely criticized by the stakeholders for being cumbersome, inefficient, and lacking foresight and were, thus, not adopted.

Thereafter, after understanding the flaws and lost opportunities associated with the blanket ban, the Government came up with a regulatory policy called Drone Regulations 1.0 on August 7, 2018, effective from December 1, 2018, to legalize and regulate the operation of drones for civil use in India.

Analysis of Drone Regulations 1.0

According to this policy, drones are categorized based on their weight of battery and cargo. The classes of weight are as follows:

Rigorous compliances need to be abided before piloting a drone into the Indian airspace. The government formed a national Unmanned Traffic Management (UTM) system called the Digital Sky Platform to enable the operations of drones. It is an Information Technology platform developed for handling Unique Identification Number (“UIN”) and Unmanned Aircraft Operators permits. Drone operations are based on “No Permission, No Takeoff” (“NPNT”) clause which means that unless regulatory permission is granted through the Digital Sky Platform, drones cannot enter into the airspace. Further, it has divided India’s airspace into three categories, viz, Red Zone (no-fly zone) which includes airspace near international borders, airports and other strategic areas; Yellow Zone (restricted zone) that requires permissions such as Air Defence Clearance, Flight Information Centre number from Air Traffic Control before flying; and Green Zone (unrestricted zone) which, nevertheless, requires permission from the platform.

Operational/Procedural Requirements

The policy lays down the following procedural requirements that drone operators need to comply with:

1. All RPAS except nano and those owned by the National Technical Research Organisation (NTRO), Aviation Research Centre (ARC), and Central Intelligence Agencies are to be registered and issued with UIN. 
2. Unmanned Aircraft Operator Permit (UAOP) shall be required for RPA operators except for nano RPAS operating below 50 feet, micro RPAS operating below 200 feet, and those owned by NTRO, ARC and Central Intelligence Agencies. 
3. The mandatory equipment required for the operation of RPAS except nano category is (a) Global Navigation Satellite System (GPS), (b) Return-To-Home (RTH), (c) Anti-collision light, (d) ID-Plate, (e) Flight controller with flight data logging capability, and (f) Radio Frequency Identification (RFID) and SIM/NPNT. Currently, RPAs can operate within Visual Line of Sight (“VLOS”), during day time only, and up to a maximum 400 feet altitude.
4. For flying in controlled Airspace, filing of a flight plan and obtaining Air Defence Clearance (ADC) /Flight Information Centre (FIC) number shall be necessary.
5. Minimum manufacturing standards and training requirements of Remote Pilots of small and above categories of RPAS have been specified in the regulation.
6. A Pilot needs to be at least 18 years of age and should be duly certified. 
7. He/She needs to undergo a rigorous training before being issued a Remote Pilot License or an Unmanned Aerial Operator permit required for flying. 

It is pertinent to mention that even after possessing all the licenses and certifications, the Digital Sky Platform can still deny a drone authorization to fly at any given time with respect to the NPNT rule.

No Drone Zones

The regulation has identified “No Drone Zones” around airports, State Secretariat Complex in State Capitals, near the international border, strategic locations, military installations, and Vijay Chowk in Delhi. 

Enforcement Actions

In violation of the above-mentioned requirements, actions that can be taken by enforcement agencies are- (a) suspension/ cancellation of UIN/ UAOP in case of violation of regulatory provisions, (b) actions as per relevant sections of the Aircraft Act 1934, Aircraft Rules, or any statutory provisions, and (c) penalties applicable as per sections 287 (negligent conduct concerning machinery), 336 (act endangering life or personal safety of others), 337 (causing hurt by an act endangering the life or personal safety of others), and 338 (causing grievous hurt by an act endangering the life or personal safety of others) of the Indian Penal Code, 1860 (IPC). Other than these any other relevant section of IPC is applicable.

Drawbacks of Drone Regulations 1.0 policy

The policy has the following drawbacks that made the widespread acceptance and reliance of drones cumbersome:

• The framework of the Digital Sky Platform is complex and comprehensive.
• In the absence of labs to test the hardware and software capacities of drones, regulators find it hard to enact a system to regulate the usage of drones. 
• Manufacturers and users of drones aren’t much aware of the Digital Sky Platform.
• There is no backing of the drone industry by the government as in China. 
• Due to the Digital Sky Platform not yet being operational, operators can’t seek authorization from it before flying drones and thus are refused permission when sought from the police. 
• The global manufacturers will have to alter the manufacturing process to make hardware-level changes to be compliant with the NPNT technology. This rather seems unlikely as the Indian market is not yet developed for global manufacturers to make such changes in the manufacturing process. 
• The policy does not provide a mechanism to check whether drone operators are abiding by the set norms such as privacy of legal entities, and what actions the government can take in case of policy violations. Also, there is not much clarity on the norms in the first place. 
• There is no mechanism provided for drone operators to collect, store, share, and use data.
• The policy does not take into consideration rapid advancements in artificial intelligence that has the potential to boost the application of drones.
• Rules are too stringent for commercial use of drones. They can be deployed but within the line of sight of the person operating it. This makes it tough for e-commerce companies such as Amazon and Flipkart to deploy it.

Subsequent Developments

To tap the use of drones for commercial purposes and overcome the drawbacks of the Drone Regulation 1.0 policy, the Ministry of Civil Aviation formed a drone task-force that gave its recommendations and released the Drone Ecosystem Policy Roadmap known as Drone Policy 2.0 on January 15, 2019. The policy aims to establish a fully-operational drone ecosystem that would permit the use of drones for commercial purposes. The scope of operational airspace has been extended by allowing the drones to fly BVLOS and above the set level of 400 feet. Further, it proposes to establish a Drone Corridor, separate airspace, to segregate commercial drone operations from military or civilian airspace where manned aircraft operate. To achieve the same, a UAS Traffic Management (UTM) system is proposed that would be responsible for managing drone induced traffic in the Indian airspace. Also, the use of algorithms for piloting a drone is permitted over the earlier mandatory human remote pilot requirement. However, such autonomous drones can be used only after the manufacturer exhibits the inclusion of privacy, security, and safety concerns in the programming and intrinsic design of drones itself.

New stakeholders called Digital Sky Service Providers (DSPs) have also been introduced. Their purpose is to supply services to drone operators over the Digital Sky Platform. Furthermore, the policy also envisages the creation of designated areas, called the drone ports to facilitate take-off and landing of drones. The government has also allowed 100% Foreign Direct Investment (FDI) under the automatic route to provide the much-needed support to the Indian drone market. Thus, while the Drone Regulations 1.0 policy only permitted hobbyists and recreational flyers to fly drones in the Indian airspace, on the other hand, Drone policy 2.0 envisages enhanced operations such as commercial usage of drones, flying BVLOS, and autonomous drone operations.

Thereafter, on May 13, 2019, the DCGA invited potential companies to conduct experimental BVLOS operations of drones in the airspace. From the delivery of medical supplies to delivery of consumer products, various global and home-grown companies such as Zomato, Swiggy, Honeywell, Tata Advanced Systems, etc applied to conduct the above-mentioned experimental operation for the development of further regulations on the Indian drone industry. Furthermore, in the same year, National Counter Rogue Drone Guidelines were also issued by the Ministry of Civil Aviation to cater to various legal and national security threats persisting due to unregulated and unauthorized use of drones. The scope of the guidelines extended to assessing the drone threats; understanding the multi-dimensionality of such threats; and further, handling of the identified threats. 

On January 6, 2020, the Ministry of Defence (MOD) launched a No Objection Certificate (“NOC”) web portal to reduce the time taken for issuance of NOC and ensure quick disposal of applications filed by various vendors engaged by public sector undertakings, state governments or autonomous bodies to conduct aerial and remote sensing surveys. Thenceforth, the Ministry of Civil Aviation issued a public notice dated January 13, 2020, giving a one-time opportunity to persons in possession of unregulated drones being operated in Indian airspace without complying with the existing Drone Regulations to voluntarily disclose the required details through an online portal before January 31, 2020.

All these above-mentioned initiatives by the government are directed towards developing a suitable eco-system of drone-based businesses and would promote the use of drones for commercial purposes. 

International Perspective

Commercial use of drones is legal in a lot of countries around the world. Laws and rules adopted by various countries to regulate the operation of drones are as follows:

United States of America (USA)

The Federal Aviation Administration (“FAA”) is responsible for the regulation of drones in the USA. There are primarily three categories of drone operations permitted by the FAA, namely- hobbyist operations, commercial operations, and public aircraft operations. Each category has a different set of regulations. 

Commercial operations are regulated by 14 Code of Federal Regulation Part 107. Some conditions mentioned under it that need to be complied with are as follows:

• Drones must not weigh more than 55lb.
• They need to remain within VLOS of the Remote Pilot in Command (“PIC”).
• PIC needs to have a remote pilot certificate and conduct a pre-flight inspection.
• Drones are not to fly directly above the individual not participating in the operation, inside a covered stationary vehicle, and/or under a covered structure.
• They are to fly during daylight or civil twilight only. 
• Ground speed should not be more than 100 mph.
• Maximum altitude of 400 feet above ground level. 
• Drones are not to indulge in reckless operations or carry hazardous materials.

A PIC under Part 107 needs to obtain a remote pilot certificate to fly a drone for commercial purposes. However, to obtain a certificate he needs to be at least 16 years of age; he must be able to read, understand, write and speak the English language; pass an initial aeronautical written exam; pass Transportation Security Administration background security screening and be in a fit medical and physical condition. 

Further, many states and municipalities in the USA have restrictions on the use of drones. FAA is also planning the integration of drones into the National Airspace System. And, recently they also launched the “B4UFLY” mobile application for users to determine whether there are any restrictions or requirements in effect in an area where they wish to fly a drone for commercial or recreational purposes.

Canada

According to Transport Canada Civil Aviation, operating drones are legal in Canada. The Transport Canada regulates drones used by the states and people for policing and recreational purposes, respectively. Further, a separate commercial drone pilot certification (Special Flight Operations Certificate) is required by operators before using drones for commercial purposes. It is initially issued only for specific missions with a limited flight plan but is subject to extension to larger geographical areas depending upon the track record of successful flights by the operators.

Rwanda

The Civil Aviation Authority of Rwanda is the regulatory body for all UAVs in the country. All drones are required to be registered and have to be marked by a number assigned by the authority.

All drones are required to have insurance. Separate drone activity permits and operator permits are required for commercial use. Rwanda is the first country in the world to have a national scale drone delivery mechanism, bringing blood and medicinal products to rural clinics. In 2017, it became the first country in the world to design and adopt a framework of performance-based regulations for all classes of drones. In January 2018, the Rwandan cabinet set a new standard for accountable, open, and risk-based access to airspace that can facilitate any type of drone operation in any location while maintaining safety. The regulatory framework has enabled businesses to establish themselves for infrastructure inspections, agricultural, pest spraying, surveying of crops, and land titling.

China

The Civil Aviation Administration of China (“CAAC”) is the governing body for all UAV operations in the country. Any drone weighing over 116 Kilograms requires a UAV certification and pilot’s license for operation. Flying drones only within VLOS is allowed.

According to the 2019 regulations, 400ft is the maximum altitude permitted for undertaking operations. For drones operating higher than the limit would qualify as commercial operations which are allowed subject to approval from CAAC. Additionally, drone operators are obligated to cover their liability for third parties on the ground through insurance.

United Kingdom (UK)

The Civil Aviation Authority (“CAA”) of the UK regulates operations of drones in the country. Air Navigation laws primarily consisting of legislations like the Civil Aviation Act, 1982 and Air Navigation Order, 2009 apply to the use of drones both for recreational or commercial purposes. Breach of the same is considered a criminal offense enforceable by the CAA. The act intends to ensure the safety of individuals around whom drones may operate. Further, privacy, intellectual property, data protection, insurance, and torts laws apply to drones equipped with a camera.

Singapore 

The Civil Aviation Authority of Singapore regulates the operations of drones in the country. However, drones can be used for commercial purposes only by seeking prior approval from the authority and are allowed to fly only within VLOS.

Suggestions and way forward

Various recommendations to legalize the commercial use of drone amid coronavirus pandemic are as follows: 

• • The use of drones for capturing unauthorized photographs or facial recognition should be prohibited and heavily penalized.
  • The use of drones should at least be promoted for aerial mapping, traffic control, security, disaster management, agriculture, and logistics in times of such pandemic. 
  • A more comprehensive mechanism for alerting the concerned authorities in time of emergency, approving license applications, and renewing permits are required.
  • Certain designated safe areas should be identified by the operator for emergency landing or operation termination.
  • There need to be stricter rules for surveillance.
  • Drones should not transport any hazardous material such as batteries, power banks, etc. Standard Operating Procedure for safe transportation of sensitive materials like batteries, power banks, etc should be prescribed for. 
  • They should not be flown in a manner that causes danger to any person, animal, bird, or property.
  • Take off and landing spots need to be segregated from crowded areas or public access, hence establishing drone ports as suggested in the drone policy 2.0. 
  • The government must open the doors to all companies seeking to commence operations using drones but since it would be impossible for all to obtain drones, the government can give large scale retailers like big bazaar and e-commerce companies like Amazon and Flipkart the status of Drone Delivery Partners, who would act as middlemen and help in the shipment of all articles. Only those companies should be selected which can implement the technical knowhow and follow the provisions of the drone regulation strictly.
  • Operators should conduct a safety risk assessment and pre-flight inspection before every flight. 
  • Storage, acquisition, and processing of data by the operator of camera-equipped drones should come under the ambit of Data Protection Bill, 2019. 
  • Intellectual property, media, torts, insurance, liability, trade, and e-commerce laws should apply to commercial operations of drones. 
  • Rival drone manufacturers or deployer in pandemic like situations should be granted some leniency from the stringent provisions of the Competition Act, 2002. 
  • To promote commercial operations amid lockdown, drone certification and licensing procedures should not be subject to taxes or fees. 
  • As per the Drones regulation, it is the owner/operator who shall be held responsible for any loss caused, breach of privacy or security concerns. However, the responsibilities of other stakeholders such as manufacturers, DCGA, importers, etc should also be judged. 
  • Proper training and certification courses should be offered by the government to disseminate the required knowledge and skills to operate drones.
  • Drones need to be equipped with anti-collision lights and other basic features to detect and avert a collision with other aircraft in the vicinity. 

Conclusion

The government should direct the DGCA to pass executive policy decisions to provide access and technical knowhow to e-commerce companies, manufacturers, health care workers, and journalists to leverage the use of drones to combat both the vicious economic effects of coronavirus disease and safety of frontline workers in these trying times. However, precautions for privacy, safety, trespass, and nuisance threats to individuals need to be taken into consideration by the authorities before granting any license or certification to operators. Such a policy decision shall not only be helpful in the present times but would also shield India for future coronavirus like pandemics. 

The post Use of Drones to Revitalize the Indian Economy amid COVID-19 crisis appeared first on iPleaders.

This article has been written by  Kartik H. Shah, pursuing a Diploma in contract drafting with LS. from Lawsikho.com. 

During the lifespan of any business, the promoter will have to find ways to fund it, to create liquidity in order to expand, and in many cases, just sustain the business. Therefore, the planning of business funding is of paramount importance to the success of the business. There are several legal ways to raise money for a business, but the avenue to pursue depends upon the stage the business is at. This article gives an overview of the many sources of funding for a business. 

Self-funding

Also known as bootstrapping, investing personal savings into the business is the way many business owners decide to begin. Usually, first-time businessmen are unable to get funding without showing proof of some success and momentum in the business.

Another way you can fund your business easily is by asking friends and family to invest. This would be easier than some of the other options below as this would require fewer formalities and lesser costs. A lot of times, interest rate is something that only family and friends would be flexible with.

Your personal investment in your dream business is one of the many things future investors will take into consideration before they buy in, so self-funding should be considered the first step to funding a business.

Business Loan Schemes from the Government 

Government Business Loan Schemes have low interest rates and flexible repayment plans, because they are designed for a specific purpose, i.e. promoting micro, small and medium enterprises’ business within the country. Having recognized the importance of small and medium enterprises (SMEs) in India, the Government has decided to boost existing business loan schemes and even start new ones.

These schemes are basically categorised into three categories according to their uses. First, a Working Capital Loan is used to provide businesses with working capital, which is the type of capital that helps businesses run their day to day activities and pay for business expenses like operations, salaries and utility bills.

Second, Corporate Term Loans, which are used for the purpose of expanding a business. The money lent in Corporate Term Loans are of large amounts and are expected to be repaid over longer durations of time, with a negotiable interest rate.

Third, Term Loans, which are expected to be repaid within a specific period of time, may enable the business to buy property, raw materials, or for hiring new staff. 

A few of the top business loan schemes from the Government of India are listed below:

Micro-units Development and Refinance Agency (MUDRA): It is an organisation set up by the Government of India to provide microfinance to SMEs, for providing low-cost credit to small companies and start-ups, who are often refused loans from banks. MUDRA loans are provided in the following 3 categories: 

i. Shishu Loans, which are up to INR 50,000/-

ii. Kishor Loans, which are up to INR 5,00,000/-

iii. Tarun Loans, which are up to INR 10,00,000/-

1. Credit Guarantee Fund Scheme for Micro and Small Enterprises (CGMSE) was started in the year 2000, which provides a collateral-free credit system for new and existing businesses which fall under its eligibility criteria.
   The scheme provides working capital loans without any collateral of up to INR 10,00,000/-. The loans under this scheme are financed by several public and private sector banks covered under the scheme.
2. National Small Industries Corporation Subsidy (NSIC subsidy) offers two beneficial options for small businesses:

i. Raw material assistance, which covers both indigenous and imported raw materials.

ii. Marketing assistance, which covers funds to enhance the SME’s competitiveness and increase its products’ market value.

The NSIC subsidy is for small and medium businesses who want to improve the quality and/or quantity of manufacturing. 

Bank Loans

Although banks are usually the first place business owners go when they think about funding, banks can often be very reluctant to lend to businesses unless they can prove traction and potential success of the business in the market. The procedure of getting a loan approved by the bank would generally involve sharing the business plan, project report, valuation and other details based on which its officers make a decision. Banks may even require some sort of guarantee or security before they sanction a business loan.

Interest rates for business loans in India range from 11.15% to 22% per annum, and some banks even charge an additional processing fee of around 1% to 2.5%. In the long run, this may prove to be a rather expensive way of funding your business, but we must also keep in mind that most large businesses have rather large debts.

Competition Prizes

Several businesses and start-ups alike raise funds by winning prize money in business pitch competitions and presentations. A drastic hike in the number of competitions has tremendously helped to increase the opportunities for businesses to raise funds. Such competitions either involve building a product or presenting a business plan. In order to improve his chances in a certain such competition, a business owner must make his business stand out. He may pitch a business plan, or present an idea, but he must ensure that it is comprehensive enough to convince people that his business is well-worth investing in. An advantage to raising funds by winning a contest could often be that along with funds, the promoter gets a platform to present his business to potential investors, so he can kill two birds with one stone.

Some of the most popular business competitions and contests are:

– Next Big Idea, which is organised by Intel, DST, NSRCL & IIMB. This contest is aimed at students and entrepreneurs whose businesses are focusing on biotechnology, education, electronics & communication, energy, environment & clean technology, health and biomedical devices and other related fields. For more information on this contest, click here.

– Proto, is a business idea competition aimed at entrepreneurs with all innovative ideas from any industry.

– Champion of Champions: A technology business competition, it welcomes incubates and companies with non-venture capital financing.

Start-up Incubators

Someone running a start-up knows the importance of infrastructure, seed funding, mentoring and training. Incubators help start-ups solve the problems commonly associated with running a start-up business at an early stage. The start-up funding ecosystem is a lot more developed now due to the presence of incubators such as SINE, Seedfarm, Startup Village, etc., who provide start-ups with training, infrastructure, mentoring, networking opportunities (with potential investors and customers), assistance with financial management and marketing assistance.

Oftentimes, it so happens that the entrepreneur wants to perfect his product and build better versions of it without testing it in the open market. Incubators provide entrepreneurs with guidance on the business side of running a start-up, like making sales and in turn, providing revenue to the company. Sometimes incubators are also known to provide access to angel investor networks and venture capital.

Angel Investors

Angel Investors are individuals who have surplus liquidity, which they would like to invest into upcoming businesses. Many of them work in networks in order to collectively assess businesses before investing. They can also offer business advice and mentorship along with injecting capital into the business.

Well known businesses like Unacademy, Cred, Urban Clap and Inshorts have been funded and supported by angel investors.

Usually, angel investors invest lesser amounts than venture capitalists. Some of the largest angel investor networks are Mumbai Angels, Indian Angel Network and Keiretsu Forum, which has chapters across all major cities in India and across the world. It also has a mentoring program for business owners on strategy, finance, marketing, regulatory matters and valuation.

Venture Capital Fund (VCF)

A venture capital fund is a fund managed by professionals. They invest in a portfolio of companies which have huge potential. Usually VCFs invest in a business by buying equity and exit when there is an acquisition or an IPO. They act as mentors, providing the expertise of business and evaluate its sustainability and scalability.

Small businesses who want to expand, and have passed the start-up phase, already generating revenue are the targets for most VCFs. Venture capital funds would be more interested in a fast-growing company like Zomato or PayTM so they could gain exponential returns to invest and grow quickly.

Although venture capital as a funding option does have its advantages, it also has a few disadvantages. Venture capital funds are generally unwilling to remain part of the company for more than three to five years. They look to recover their investment plus returns within this window of time. VCFs may not be too interested in a business if it has a product that is going to take longer to develop and get to market.

They generally look at stable, larger companies who already have a momentum going. A promoter must be flexible with venture capital funds and may have to give up more control of the business as well, so for a promoter who feels he is comfortable enough without mentorship or is not willing to make a compromise in the control he has over his business, venture capital may not be the best option.

Family Offices

Family offices are private wealth management teams of Ultra High Net-worth (UHNW) Investors and, as the name suggests, their families. In recent times, there has been increasing evidence of family offices investing directly in start-ups and other businesses, rather than just investing in a Venture Capital fund. Family offices usually prefer to invest in the fields of education, information technology, financial technology and health technology, among others.

Bezos Expeditions is the family office of Amazon founder Jeff Bezos. It makes investments in seed, early and late stage businesses across a wide range of networks.

An Indian example would be the family office of Uday Kotak, the Managing Director of Kotak Mahindra Bank and the eighth richest man in the country, who announced in 2018 that he was setting up a family office to invest his $10.3 billion fortune.

Crowdfunding

One of the newer, more popular ways of funding a business, crowdfunding is like taking a loan, investment, pre-order or contribution from more than one individual simultaneously.

How does it work?

After putting up detailed descriptions of his business onto the crowdfunding platform, the entrepreneur or promoter will provide information on the amount of funding needed and for what reasons, the objective of the business and the plans for making a profit. The consumers then read it and contribute if the idea appeals to them. Anyone can contribute to a business they believe in on a crowdfunding platform by pledging to make a purchase once the product is launched or by donating a certain sum of money.

One of the great advantages of crowdfunding is that most of the time, marketing is taken care of along with finance, and that interest in the product is maintained in the market until the product is launched. It is a great way to find out if the product has an actual and sustainable demand in the market before larger chunks of money are pumped into its development. Although it might attract venture capitalists’ attention further down the road if the campaign gains success, crowdfunding puts the funding into the hands of common people, rather than hand over any amount of control to venture capitalists.

The crowdfunding space can get competitive to say the least, so a promoter must make sure his business idea is rock solid and can attract the attention of the common man with business details and some presentations.

A few popular international crowdfunding websites are Kickstarter, GoFundMe and RocketHub. In India, the popular crowdfunding platforms are Indiegogo, Ketto and Catapooolt.

Private Equity Funds

Private equity fund is basically a general term defining a pool of money from several investors to gather several millions, and sometimes billions of dollars, which are used to purchase equity in companies.

While technically venture capital is private equity too, it can be differentiated in the following way:

Venture capital usually invests in unproven, younger companies, whereas private equity funds are more attracted toward experienced and market-proven businesses. Private equity may be the way to go if the original investors are looking for an opportunity to get some returns on their investment, or if the business requires some infusion of liquidity. Private equity funds will provide the business with new ideas and new people who might approach it from a different angle.

On the other hand, younger companies don’t always fit in very well with private equity investment strategies. A business owner may also feel that private equity funds are a bit ruthless when it comes to workforce, role of founding promoters and sentimentality, as they would have a purely profit-oriented approach. Their primary goal would be to enable the company to be valued a lot higher than before so that they can turn a profit.

A brand new type of private equity has been seen in recent times, where investors contribute a smaller sum towards a would-be entrepreneur who then looks for the best business to acquire and run. Once he has finalised on this, the investors write the big cheques that are required to acquire the business. This type of private equity is known as a search fund and could work as a boon for a business which not only needs some cash inflow but also a new executive at the top to take the business in a successful direction.

Buyout

A buyout can be defined as the acquisition of the controlling interest in a company. It often takes place when the purchaser believes that the company or business is undervalued and has the potential to be bigger success.

Usually, the purchaser takes on the debt of the company or borrows money in order to purchase it. He then uses the assets and cashflow of the subject company to repay the loan. This is known as a leveraged buyout.

Some well-known examples of successful leveraged buyouts in India are:

• Tetley, a UK based company was bought out by Tata Tea for a sum of $271 million.
• American Axle, an American motor company was bought out by Tata Motors for $2 billion.
• Hansen Transmissions, from the Netherlands was bought out by Suzlon Energy for $465 million.

It should be noted that a leveraged buyout of Indian companies must comply with legal and regulatory framework in India. Due to the strict restriction of RBI on lending and the stringent laws imposed by Government of India as well as Ministry of Finance regulations, an LBO is not considered a feasible option for companies. It is important to study market conditions, industry and company-specific characteristics before implementing a leveraged buyout.

IPO (Initial Public Offering)

When a company goes public with an IPO, it receives money from investors and in return gives them a share of the company. Issuing public shares allows a private company to raise money from the public. The Dutch are given credit for conducting the first modern IPO, when they offered shares of the Dutch East India Company to the general public. Ever since, IPOs have been used as a means for a company to raise capital from the public in return for a share of the company, thus receiving the inflow of cash.

When a company reaches the phase in its growth where it is believed to be strong enough to handle the meticulousness of SEBI regulations along with responsibilities to public shareholders, it starts announcing its interest to go public. If the company meets the eligibility criteria of SEBI, they begin the IPO procedure.

In conclusion, it should be noted that funding a business is one of the primary responsibilities of the promoter. If the business is well funded, it will most probably grow faster. It will satisfy creditors, make customers happy and keep employees motivated. On the other hand, an under-satisfactorily funded company will constantly face difficulty in finances and in turn, operations. Therefore, it is imperative for a promoter to consider which type of funding he should go for based on the stage his business is in.  

The post Legal Routes to Undertake for Raising Funds for a Business appeared first on iPleaders.

This article is written by CA Chetan Swaroop Monga. In this article, he explains the concept of Nidhi Companies and the provisions of Companies Act applicable to theses kind of companies.

Introduction

According to Indian language Nidhi means treasure. Nidhi company is created mainly for cultivating the habit of thrift and savings amongst its members. Nidhi company is also known by the name Mutual Benefit Company. These companies help people to come together and put their small savings at a place and also help them avail loans required for various needs. It helps the people coming from the modest sector of the society to avail loans which otherwise would have been difficult or impossible thus helping them at various steps of life, be it for business or for personal use.

Provisions of Companies Act, 2013 Applicable to Nidhi Companies

Nidhi Companies are like NBFCs only except the fact that the provisions of RBI Act applicable to NBFCs don’t apply to the Nidhi Companies since they deal with their members only. Nidhi Companies are governed by the Companies Act 2013. The Companies Act has laid down rules called Nidhi Rules, 2014 which have to be followed by all the Nidhi Companies.  The quick view of the rules is being discussed as under:

• A Nidhi Company shall be a public company and shall have a minimum paid-up capital of Five Lakh Rupees.
• A Nidhi Company shall not issue preference shares.
• It is mandatory that a Nidhi Company shall have the last words “Nidhi Limited” as part of its name.  
• Every Nidhi Company shall within a year of its incorporation fulfil the following conditions:

1. It has at least 200 members (members shall not be reduced below 200 at any time during the year).
2. It has a Net Owned Fund of at least 10 lakhs (Net owned fund means the aggregate of paid-up equity share capital and free reserves as reduced by accumulated losses and intangible assets appearing in the last audited balance sheet).
3. It has unencumbered term deposits of at least 10 percent of the outstanding deposits at the close of the last working day of the second preceding month. In cases of unforeseen commitments, temporary withdrawal may be permitted with the prior approval of the Regional Director for the purpose of repayment to depositors, subject to such conditions and time limit which may be specified by the Regional Director to ensure restoration of the prescribed limit of 10 percent.
4. It has ratio of Net Owned Funds to Deposits of not more than 1:20 (means that a Nidhi Company can’t accept deposits exceeding 20 times of Net owned Funds).

A Nidhi Company shall not admit a body corporate o trust as a member. A minor shall not be admitted as a member of Nidhi Company, however, the deposits may be accepted in the name of a minor, if they are made by the natural or legal guardian who is a member of Nidhi Company.

• A Nidhi Company shall provide loans to its members basis the amount of deposits standing in the balance sheet of the Nidhi Company which is being discussed below:

Provided that where a Nidhi Company has not made profits continuously in the three preceding financial years, it shall not make any fresh loans exceeding 50% of the maximum amount specified above.

• The rate of interest to be charged on any loan given by Nidhi Company shall not exceed 7.5% above the highest rate of interest offered on deposits and shall be calculated on reducing balance method which means it can earn a maximum margin of 7.5% on the funds raised from the members.
• A Nidhi Company shall give loans to its members only against the following securities, namely:

1. gold, silver and jewellery.
2. immovable property.
3. fixed deposit receipts, National Savings Certificates, other Government Securities and insurance policies.

• A Nidhi Company  shall accept deposits as per below norms: 

1. There are primarily three products offered by Nidhi Companies on which interest is offered which are namely Saving Deposits, Fixed Deposits & Recurring Deposits.
2. The fixed deposits shall be accepted for a minimum period of six months and a maximum period of sixty months.
3. Recurring deposits shall be accepted for a minimum period of twelve months and a maximum period of sixty months. In case of recurring deposits relating to mortgage loans, the maximum period of recurring deposits shall correspond to the repayment period of such loans granted by Nidhi Company.
4. A Nidhi Company may offer interest on fixed and recurring deposits at a rate not exceeding the maximum rate of interest prescribed by the Reserve Bank of India which the Non-Banking Financial Companies can pay on their public deposits.

• A Nidhi Company may open branches, only if it has earned net profits after tax continuously during the preceding three financial years. However, a Nidhi Company may open up to three branches within the district. If a Nidhi Company proposes to open more than three branches within the district or any branch outside the district, it shall obtain the prior permission of the Regional Director and an intimation is to be given to the Registrar about opening of every branch within thirty days of such opening. No Nidhi Company shall open branches or collection centres or offices or deposit centres, or by whatever name called outside the State where its registered office is situated.
• A Nidhi Company shall not close any branch unless it:

1. publishes an advertisement in a newspaper in vernacular language in the place where it carries on business at least thirty days prior to such closure, informing the public about such closure;
2. fixes a copy of such advertisement or a notice informing such closure of the branch on the notice board of Nidhi Company for a period of at least thirty days from the date on which advertisement was published;
3. gives an intimation to the Registrar within thirty days of such closure.

• The Director of a Nidhi Company shall be a member of Nidhi who shall hold office for a term up to ten consecutive years on the Board of Nidhi. The Director shall be eligible for re-appointment only after the expiration of two years of ceasing to be a Director. Where the tenure of any Director, in any case, had already been extended by the Central Government, it shall terminate on expiry of such extended tenure. The person to be appointed as a Director shall comply with the requirements of subsection (4) of Section 152 of the Act and shall not have been disqualified from appointment as provided in Section 164 of the Act.
• A Nidhi shall not declare dividend exceeding  25 percent or such higher amount as may be specifically approved by the Regional Director for reasons to be recorded in writing and further subject to the following conditions, namely:

1. an equal amount is transferred to General Reserve;
2. there has been no default in repayment of matured deposits and interest;
3. it has complied with all the rules as applicable to Nidhi Companies.

• No Nidhi Company shall appoint or re-appoint an individual as auditor for more than one term of five consecutive years. No Nidhi Company shall appoint or re-appoint an audit firm as auditor for more than two terms of five consecutive years, however, an auditor (whether an individual or an audit firm) shall be eligible for subsequent appointment after the expiration of two years from the completion of his or its term.
• Filing of various forms:

1. Form NDH-1 is the Return of Statutory Compliances which needs to be filed within 90 days from the closure of the first financial year. The form has to be duly certified by a Chartered Accountant or a Company’s Secretary in practice.
2. Form NDH-2 It is the Application for Extension of Time. One has to file NDH-2 for extension of time within 30 days from the closure of the first financial year. For that, a Nidhi Company will apply to the Regional Director with the specified fee under Nidhi Rules, 2014. The Regional Director will examine the application and pass orders within thirty days of the arrival of application. NDH-2 needs to be filed when a Nidhi Company fails to meet the compliances of (a) Maintaining a minimum of 200 members within one year of incorporation, and (b) Not maintaining the NOF to deposit ratio of 1:20.
3. Form NDH-3 refers to the Half-Yearly Return. It needs to be filed with the Registrar of Companies (ROC) within 30 days from the completion of each half-year along with the prescribed fees. Additionally, the form has to be duly certified by a practising Chartered Accountant or Company Secretary or Cost Accountant.

Recent Amendments in the Companies Act, 2013 applicable to Nidhi Companies

A new application form NDH-4 has been introduced for those companies which wish to get the status of Nidhi. It is one of the major alterations which have been introduced under the Companies Act. On receiving an application of a public company under Form NDH-4 along with the prescribed fees, if fully convinced that the company has complied with all the requirements under the Rules, the Central Government may declare the company as a Nidhi company in the official gazette.

All the Nidhi companies incorporated under the Companies Act, 2013 on or after the commencement of the amended rules, are required to mandatorily file Form NDH-4 within the prescribed stipulated time. The company not abiding the said provision will not be allowed to file Form No. SH-7 (Notice to Registrar of any alteration of share capital) and Form PA9-3 (Return of Allotment). This requirement has been introduced to make sure a check is built for Nidhi Companies. This will make sure that the lapses in the working of Nidhi Companies, if any, are controlled and there are better rules and regulations governing the Nidhi Companies.

The post All You Need to Know about Nidhi Companies appeared first on iPleaders.

This article is written by Shubham Gurav and Bodhi Ramteke, students of ILS Law College,  Pune. In this article, they have explained the concept of mob lynching, the current scenario in India and the laws relating to it.

Introduction

“In regard to the law of hate speech responsible for inciting communal passions, the central reality in India is not the abuse of law, but persistent refusal to enforce it.”

‘We the people’ – the opening words of the Constitution, the founding document of India – sums up the perception of society, of shared culture and history, and of civic affiliation, a perception that has been questioned throughout the lengthy period of Indian history. India, the fifth-largest economy in the world, is facing a threat to its integrity and growth, given the growing incidence of lynching. It is one of those hate crimes that through structured hate campaigns has become a language of indoctrinating vigilance. Mob lynching in India is a big religious and politico-legal crisis for democracy, requiring urgent solutions.

Religion, when assisted by the political support, is an instrument used to infuse disdain in the minds of individuals, aiding the accused to commit such an offence fearlessly. There is a noticeable accretion in community forces that have succeeded in spreading violence by taking punitive extra-judicial measures, with rumours playing a significant role. The individuals are under consistent danger of getting executed or thrashed on insignificant grounds of doubt that they belong to a specific group, religion or caste. This attitude transforms society into a fascist state, as individuals, who elect their leaders, maintain silence at gunpoint, ultimately strengthening the moral legitimacy of the offenders.

This article examines the participation of the people as a racialized group with extra-legal punitive power of death, and how it catalyzes the rise of mobocracy affecting the individual right of the person by their ostensible judgement, which conclusively is an ambush on democracy. 

An extensive, magnificent document, the Constitution must be ascribed to India’s achievement as a democratic autonomous country. This holy book is the preeminent document, and it was with the reception of this scripture, India embraced the ‘Rule of the law.’ This Rule of law, along with its enforcement machinery, was assigned the role of protection of the people from any arbitrary principle and to provide justice to all. The law enforcement agencies cannot act arbitrarily in order to regulate social behavior, but they are governed by land law. The primary goal of the law is to have an orderly society where the citizen dreams for change and progress is realized, and the individual aspiration finds space for the expression of his/her potential. In such an atmosphere where every citizen is entitled to enjoy the rights and interest bestowed under the constitutional and statutory law, he is also obligated to remain obeisant to the command of the law.

In Tehseen S. Poonawalla v. Union of India, the Supreme Court stated (see here) “The majesty of law cannot be sullied simply because an individual or a group generate the attitude that they have been empowered by the principles set out in law to take its enforcement into their own hands and gradually become law unto themselves and punish the violator on their own assumption and in the manner in which they deem fit. They forget that the administration of law is conferred on the law enforcing agencies and no one is allowed to take the law into his own hands on the fancy of his “shallow spirit of judgment”. Just as one is entitled to fight for his rights in law, the other is entitled to be treated as innocent till he is found guilty after a fair trial. No act of a citizen is to be adjudged by any kind of community under the guise of protectors of law.”

However, individuals over the world have been taking the law in their very own hands and have been punishing the individuals in a way they deem fit. They end up behaving barbarously, driven by their personal perceptions of right and wrong. The outcome of such episodes may be something as serious as murder, executed usually by a group of individuals and not a person.  Such an act, driven by extreme beliefs and made aggressive by a resolve to attack any other belief contradictory to it, is, in short, mob lynching.

In recent years, India has seen a considerable rise in mob lynching activities. An overwhelming majority of such incidents involve the spontaneous attack by a racialized group of people, who consider the act of the victim as a strike against the deep roots of traditions and religion. 

Meaning of the Phenomenon

Lynching is not a new phenomenon, but it has been around the world all the time. The term lynch law refers to a self-constituted court that imposes sentence on a person without due process of law. Both terms are derived from the name of Charles Lynch (1736–96), a Virginia planter and justice of the peace who, during the American Revolution, headed an irregular court formed to punish loyalists. (see here)

Fitzhugh Brundage states “lynching combines the fellowship of a hunt with the honor of serving the alleged needs of the community,” Generally, lynching is defined as a homicidal aggression punishing (often killing) a person or persons by an angry mob to suppress the tendency of deviance and the heinous crime committed by the former. The crime is so savage that it socially revolts the crowd to gather spontaneously killing the criminal (see here).

The common definition of lynching by NAACP (National Association for the Advancement of Colored People) in the US is that: 

(i) there must be evidence that a person was killed;
(ii) the person must have met death illegally;
(iii) a group of three or more persons must have participated in the killings; and
(iv) the killing is carried out in public (see here).

Thus, lynching is an act of unspeakable horror. There is an absolute asymmetry of power. It is a mob versus an individual, who is often defenceless and begging for life.

Current Scenario in India

Lynching in India includes lynching of those accused of petty crimes, individuals accused of murder and rape, and also the individuals perceived by the mob as deviants. The main reason for deaths by lynching has been a result of witch-hunts, the barbaric caste system in the country, and other religiously driven reasons. 

The number of incidents of lynching in India has been on the rise. Accompanying this overall rise is the rise of mob lynching, particularly by cow vigilantes. At the epicentre of upheaval in the country is the indolent animal cow. While it is sacred and mother-like for the majority Hindus; cow mulching is the source of income for the minority Muslims. Cow vigilante groups or ‘Gau Rakshaks’, following the Government’s ban on cow slaughtering, have been ruthlessly killing those suspected of killing, trading, or consuming beef.

Dadri lynching of 2015 invited huge media attention. On 28-9-2015, the 52-year-old ironsmith was dragged from his house in the village of Bishahra, in the district of Dadri in Uttar Pradesh, after a local Hindu temple announced that a cow, considered sacred by many Hindus, had been slaughtered by him. He was beaten to death, and his son was severely wounded. Later, it came out by forensic reports that the meat was mutton, not beef. (see here) On 18th March 2016, Majloom Ansari, 32 and Imtiyaz Ansari, 12 were taking their cattle to a fair. The mob assaulted them near Jhabar village of Jharkhand. Their bodies were hanged from a tree.  On 25th May 2015 an e-rickshaw driver was beaten by a mob of students of Delhi University who tried to stop two drunk students from urinating in public to which the students (see here). On 1st July 2018, five people, belonging to the Nath Gosavi community, were brutally thrashed by a mob in the remote Rainpada village, about 100 kilometres from the district headquarters, leading to their death. The attack was believed to have been triggered by a rumour about a child-lifting gang being active in the area (see here).  On the night of April 16, Two Sadhus along with their driver were lynched by the mob of around 400 people in the Palghar district of Maharashtra, being conveyed as child-lifters (see here).

For the brutal crime of murder, lynching is just another name. There can be no single factor behind the commission of an act of mass abuse, as many variables can contribute to such abuse. According to experts, the commission of such crimes requires a special environment and a belief system, to overcome the reticence to carry out such a horrifying crime. Such an environment is created when people believe that they have the authority to accomplish this responsibility and cease to recognize the victim as a member of society. The responsibility of representing the entire community, the mistrust in the state’s competence in delivering justice, when supplemented with the rumours initiate an idea that an individual is not killing another individual, but the community is punishing the offender who has violated their self-styled moral and religious sentiments. 

The politicization of this issue knocks up the sense of impunity- a sense that we can do it and can get away with it as the government is with us. It is our government. When a Union minister laurels convicts of a lynching, it gives the culprits a feeling that they have accomplished something great. One when convicted, then given bail and then a minister garlanding the person will certainly add to the sense of impunity and bluster (see here).

Indian Laws and Failure of their Implementation

The criminal laws face a void as there is no law or provision that criminalises mob lynching. Although IPC has provisions for murder, culpable homicide, rioting, and unlawful assembly but there is no provision for a group that comes collectively to kill a person. Under Section 223 (a) of Criminal Procedure Code (CrPC), it is possible to punish two or more accused committing the same offence in the course of the “same transaction.” However, the provision falls short of punishing offenders of mob lynching (see here). The National Campaign against mob lynching drafted a Lynching Act, 2017 for protection against violent lynching.

Right to non-discrimination is imbibed in Article 14, which guarantees each person in the territory of India equality before the law and equal protection of laws. Article 15 of the Indian Constitution prevents discrimination of communities based on caste, sex, race, or religion. Incidents of lynching violate the right to equality and prohibition of discrimination enshrined in the Indian Constitution under Article 14 and Article 15, respectively.

Article 21 of the Indian Constitution states, “No person shall be deprived of his life or personal liberty except under procedure established by law.” The objective of Article 21 is to prevent the state from depriving a person of his/her personal liberty and life.

However, the Indian states have failed to implement the laws. The widespread corruption in law enforcement agencies, unconscionable delays in the disposal of cases by the judiciary and the unfair advantages to the rich and the dominance in the judicial system contribute to improper implementation of laws. In almost all of the cases, the police initially stalled investigations, ignored procedures, or even played a complicit role in the killings and cover-up of crimes. Instead of promptly investigating and arresting suspects, the police filed complaints against victims, their families, and witnesses under laws that ban cow slaughter (see here).

Conclusion 

In a civilised society, even one lynching is too many. But India has seen a spate of them recently. The gravity of the situation has made the Supreme Court term it as a “horrendous act of mobocracy”. The Supreme Court has provided guidelines to deal with this situation and has asked the Parliament to make a new law to deal with it which will instil a sense of fear among those who involve themselves in such activities (see here). However, mere laws without proper implementation would not suffice the purpose. The implementation should be accompanied by the proper manner of media coverage. There’s a need for rationalised social leadership rather than a biased political leadership. Politicians must rise above their political intentions; the public must come forward to prevent these hooligans; the media must be more cautious in depicting these occurrences.

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

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This article is written by  Suman Chatterjee Team LawSikho.

Ask any senior lawyer and they would tell you that in the legal profession, success in oratory is derived from and preceded by flawless written communication. 

Every legal notice you serve, every reply you send, every petition you file in the court, every legal document relevant to a case, builds up your case. 

Every word you write and exchange with the opposite party eventually decides whether you will win or lose the case. 

Even before your counsel or you stand before the judge and open your mouth.

Want to know how important every legal draft is? 

You will get to know from the number of revisions it goes through in a good chamber or a decent law firm. 

While one change might be proposed by one lawyer, some other lawyer would propose some other change in the draft. Every line is vetted for its accuracy and effectiveness. Every word is checked and rechecked multiple times for its contextual meaning and impact. 

Everything you write will be dissected, interpreted and turned around on its head by the other side later on. Intentions that you have never thought of may be read into the language. Every minor contradiction will be pointed out and used against you.

You do not only write what you want to convey but you need to anticipate how it will be used by the other side against you, and you need to write down even what you do not intend to say, clarifying every possible interpretation.

Sometimes, you cannot leave any legal ambiguity in your drafting, and at other times, you will strategically leave things ambiguous. Sometimes, you will lay traps with your drafting.

Think of it like a brick house. One brick laid over another. Any loose ends and the whole thing might fall down all of a sudden. 

More importantly, if the house is finished, you might not even understand where to fix until it falls down. 

Amid all the legal documents that form part of a case brief, is it possible to figure out which one might turn out to be the weak link? Not unless the opponent’s lawyer points it out during the proceeding. 

No point fixing it at the point. The case is lost!

This is why the ability to draft flawless legal documents is so important even more than your oratory prowess inside the courtroom.

How do you learn to draft like this?

Bet your ass no law school is teaching any of this.

The only way people used to learn such drafting is from observing really good seniors.

Unfortunately, if you do not get a very good senior who spends a lot of time correcting your drafting, you will never learn any of this.

There may be some really smart people who learn it from experience, through trial and error. 

Rest of the lawyers, a vast majority, fumble with drafting, and quite surely never make it as a successful lawyer due to this skill gap.

If you want to learn such legal drafting skills, please get in touch with us at LawSikho. We have legal drafting courses that teach you the most advanced drafting strategies, and let you practice while our expert lawyers give you feedback and personal coaching to improve your legal drafting. 

Skills needed to master legal drafting

Legal drafting is a highly in-demand legal skill, almost a must-have for ALL kinds of legal professionals, whether you are an in-house counsel or an independent practitioner. Even in LPOs, drafting is a sought after skill.

The ultimate question for everyone who struggles to string together words to form something of meaning and worth is, “How should I start?”

When I started out in the profession, one of my mentors told me something that I remember to this day. The person (an experienced advocate) said that the legal drafting skill is essentially composed of five different soft skills. If you lack one of them, you might not be able to create a high-quality legal draft. 

He also said, if you master every one of them individually and figured out how to activate all of them at the same time, you will become a master at legal drafting, without a doubt.

Here are they as listed below:

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Want to know how learning legal drafting can literally transform your career with more legal work, higher billable hourly rate and more money, even while you are working from your home in your pyjamas?

Click on the Play button to watch the video below where Abhyuday Agarwal, COO & Co-founder of LawSikho, discusses the benefits of legal drafting at length.

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Impeccable writing 

Writers are born, not made? Not true at all.

Though I have been writing from a very young age, I can vouch for the fact that writing is a learnable skill. At LawSikho, we have trained over a hundred writers and most of them started with one common admission, “I don’t know how to write.”

Ramanuj says writing is the art of clear thinking. If you can think clearly and in a structured manner, you can not but write well. 

And this is the first must-have skill to master legal drafting. As a legal draftsman, you must possess superior writing skills and the best way to improve your writing skills is by writing more and more, more than you ever did in your entire life.

Writing is the ability to make sense by writing down one word at a time until it reaches over a thousand words and even more. Over time, that one thousand will become four thousand and then ten thousand, and finally, fifty thousand one day.

Now, I don’t expect you to become a novelist any time soon. But what I mean is, as you develop your writing ability, your ability to draft legal documents will improve as well.

And you need to write correct english. Writing grammatically wrong English, in a language that is not appropriate, will immediately destroy your credibility as a lawyer. Please work on your language accuracy, grammar and syntax, if there is any scope to improve.

Trying to draft well while your English is poor is like trying to win a boxing match with one hand tied behind your back.

No-nonsense editing 

You are not a good writer if you cannot edit your own writing properly. To be able to create the perfect legal draft, you must learn to remove every little nuisance from your writing until nothing except pure quality remains.

Editing and review would be the most critical skill whether you are drafting a legal notice, or a contract, or even a police complaint.

When you are drafting a statement of claim for a thousand crore arbitration, and you have to help arbitrators make sense of thousands of pages of documents, this skill becomes even more useful and valuable.

Editing is nothing but making sure that your writeup is “making sense the way it should”. It’s not just about using the right words, cutting out the grammatical and spelling mistakes, tweaking the sentence structure and even checking the punctuation at the end of a sentence. While those things are important, they are just elementary.

The next level is to think whether you are doing a good job at conveying what you want to convey. Are you sure that the argument you are making will be understood and appreciated?

What could be the counter argument? Can you neutralize such counter arguments while you are drafting by adding a few words here and there? Is there any way you can make it more obvious  and difficult to ignore?

Is there any way you can simplify a complex argument or a complicated factual matrix?

Simplicity is a great virtue in legal drafting. Often we do greater damage to our legal documents by writing too much irrelevant content. Am I writing a lot of nonsense that is making my critical points less obvious or burying them under inconsequential issues?

Chipping away at the inconsequential until only the most important stuff remains is a very important tool of a legal draftsman.

As Stephen King famously said, “Kill your darlings, kill your darlings, even when it breaks your egocentric little scribbler’s heart, kill your darlings.”

Didn’t I tell you already that a legal draft would often undergo multiple revisions? 

The first draft is seldom what it can potentially be crafted into. Your first draft is like a piece of raw diamond. You need to cleave it, brute it and polish it to make it finally shine in all its glory.

It will take some time to develop this skill before you start drafting like a pro.

Super-strong persuasiveness

Do you think lawyers are salesmen in disguise? I do. 

The judge is their potential customer and their point of view is their product. What these salesmen try to do is sell their logic to the person sitting on the big chair. 

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For me, this is amazing because it is like selling computers to Bill Gates. The judge is not a naive prospect. He knows more than you. He holds more power than you. He might also be moodier than you. 

To be able to convince such a person around to what you believe in, you need to be persuasive beyond all measure and have so strong an influence as cannot be ignored. 

Now imagine if you were to achieve the same effect through your written words. It’s like making a woman fall in love with you through a love letter. Can you do it?

Well, you have to if you want to become good at legal drafting. In fact, every piece of legal writing is expected to have that impact on the reader, that is, the judge.

Applied legal knowledge

I once interned under a High Court judge. One day, he asked me to write a legal draft. Since I was good at writing, I thought I would be able to create an immaculate draft without much effort. How stupid I was!

Was my draft devoid of typographical errors? Yes, of course.

Was the level of English good enough? Yes, it was.

Was it concise and clear? Yes, yes, it was.

Wait, did it make any sense as a “legal” document? Oops!

The stare that I got from the judge, whoa, I would remember that till the day I die. I knew I let him down completely.

That’s when he told me that what actually makes a legal draft a “legal” draft is a strong grasp of legal intelligence behind it. 

As a novice lawyer or a law student, it might be invisible to you but two versions of a legal document might seem to be equal in almost every sense but they would extract totally different reactions from the judge because one would be “legally” superior to the other. 

The first and foremost prerequisite to learning legal drafting is to have a thorough understanding of the law. Unless you understand legal complications, you won’t be able to draft anything that is of value. Period.

Not only law, you need a complete grasp over the facts regarding which you are drafting. Masterful use of facts in drafting, and with application of law that leads the readers to a clear and inevitable conclusion is the holy grail of legal drafting.

It is one thing to have legal knowledge, and quite another to be able to reflect that in your legal drafting. 

Analytical and critical thinking

Last but not least, what separates a great writer from a good one? 

The good one conducts extensive research on the topic, collects more information than anyone ever did, and puts forth a cogent piece with all the information presented in a sensible manner.

The great one does the same but presents only as much information as is required. The great one writes with an “agenda” if you know what I mean.

And they are able to think beyond the obvious. The ability to think up different situations, explanations and possibilities is a very important legal drafting skill. 

Be it in contract drafting or writing arguments for a murder trial, this is the most important skill.

For example, in a criminal case, all you need to do is introduce a plausible doubt about the veracity of the claims of the prosecutor.

For this, you need to possess above-average analytical and critical thinking skill to be able to recognize what needs to be added and whatnot, and how best to combine those together for a clear and forceful argument.

The entire world may be seeing something, but the best lawyers start by thinking, well, is there something the world is missing out?

And that leads to some amazing drafting. 

The first step to learning legal drafting

The most effective way to start your journey to become a master legal draftsman is, in my opinion, to start writing… anything at all. You can start by writing short legal articles.

Gradually, you need to shift to long-form article writing. This is like net practice for legal drafting. 

Two reasons.

One, it would help you brush up on your legal knowledge. 

Two, writing more and more would help you learn how to gather your thoughts and express them in an organized manner. Writing helps you get outside your mind and present it for the rest of the world to see or read. 

You have heard about hand-eye coordination? The connection between your eyes and your hand? This can be considered fingers-mind coordination. Your fingers express what your mind thinks. This is a far subtler connection than the hand-eye one and also difficult to evolve.

The only way to do it is to write, write and write some more.

We at LawSikho always ask our students to write articles regularly. They might be interested in litigation or might want to break into the corporate in-house legal team. It does not matter.

We know, once you learn how to draft properly, you are treated as top talent wherever you land up. That starts with writing articles, simple ones at first and slowly ramping up the difficulty level over time.

Also, we highly recommend that you take up a drafting course from us. It could be contract drafting. Or an introduction to legal drafting. You can also go for more specialised drafting courses – such as civil drafting, arbitration-related drafting or criminal drafting. Even NCLT or SAT drafting. You can go industry-wise and learn how to draft documents needed for real estate or trademark litigation or media and entertainment industry.

If you want to know more about how we train our students and interns, give us a call on 011 4084 5203 or comment below to this article with your phone number and with the message, “I want to know more about article writing.” 

We will call you back.

Or better, join our legal drafting course instead

We recently launched an introductory course on legal drafting for law students and lawyers who are interested to improve their legal drafting skills. 

How is it different from the other course on contract drafting, negotiation and dispute resolution? That is advanced in its scope and it focuses more on providing you with a contract drafting practice by making you work on over 100 commercial contracts! 

Introduction to Legal Drafting course helps you nurture the fundamentals of drafting (with a handful of practical assignments as well). The primary aim of this course is to build the necessary skills required to be able to master legal drafting for all sorts of legal documents, and in a short time.

This course is for those who want to get the basics right quickly in a month or two. 

Once you learn those skills—those we discussed above, you will be able to draft almost any legal document effortlessly and with ease.

Whether you are a law student, a practising lawyer, an in-house counsel or a business person, this course can help you get acquainted with the most common legal documents and learn how to decipher and draft the same on your own.

A perfect start for your legal drafting journey, I must say.

Want to know more about this exclusive course? Give us a call on 011 4084 5203 or comment below with your phone number stating, “I want to know about the legal drafting course.” Our admission staff will reach out to you.

Legal drafting is one of the most vital legal skills to learn in today’s job climate.

What have you been doing to improve your legal skills?

To your success.

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

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

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.

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