This article is written by Arya Mishra, a student of Banasthali Vidyapith, Jaipur. The article answers the question of whether one should highlight text or not. Arya has also explained the alternatives that can be used instead of highlighting to remember text effectively.

Introduction

There is a famous proverb by Steve Maraboli that “stop wasting your time looking for the key to happiness…. the door is open and unlocked …. Just walk through it”. It is said that each and every second is valuable for human beings and it should not be wasted by doing silly works.

In a world of fast-changing and full of information as our own, each one of us from i.e. from a school child to a college student to a working adult, everyone needs to know how to learn well. Yet evidence suggests that most of us don’t use the learning techniques that science has proved the most effective one. The worse part is that researches have proved that learning strategies we do commonly to employ, like rereading and highlighting, are among the least effective ones.

I want to ask something that How do you prepare for your examination or what method you apply to study? Do you prepare chart sheets before the exam or you use note tabs or sticky notes for each significant points to make a guide for your mind? Do you plot persistently all through the semester or totally dawdle then pack everything finally and pray God to stick everything into your mind? Despite your examination style, I’m certain that you may have depended on featuring sooner or later as an approach to rapidly recall the most significant sentences or text and various case laws by highlighting. Notwithstanding, if highlighting text is your method of study then I have awful news for you “ highlighting doesn’t really enable you to recollect that everything”. After lots of research, it was found that highlighting a text is a waste of time as it neglects to install information into your cerebrum and distract a person from studies.

For what reason highlighting doesn’t help you to remember anything?

Highlighting doesn’t help to remember anything because you just highlight the text and then leave it without focusing on it again. You do not pay attention to it. As you think that you have highlighted the text so it means you have read it and it is in your mind. And, you rarely pay attention to it. After some time your brain fails to remember that information.

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It is necessary to tell the brain what is important instead of what’s worth remembering it. There is an empirically verified principle which states that individuals have a better record when they utilise mental endeavours. Anything which is difficult to learn installs information in your memory better, research shows that learning which feels simple vanishes like snow falling on water. When you try to recover ideas from your memory you are fortifying the neural path associated with it.

Flashcard is an effective tool of study as it forces your brain to come out with different ideas, unlike highlighting does not help to enter knowledge into our brain. The teachers also encourage students to make their own outlines without looking into books with the hope that they will search the material on their own and their knowledge will increase.

We depend on highlighting as it feels easy than flashcards. As we don’t want to put efforts on our brain to recall the thing which make us feel unpleasant and just reading a highlighted text is easy.

There are four periods of learning and memory: concentrate, encoding, storage and recovery. Before your cerebrum can recollect a reality, you should focus on this reality and afterwards your mind can encode, store and recover this data. Presently consider it, when you read through case law outfitted with your helpful highlighter would you say you are really focusing on any of the actualities you feature or would you say you are progressively centred around featuring any point that appears to be significant with the purpose of finding this point rapidly by your professor while he is in a hurry? Something discloses to me that your plan is likely the last mentioned and, therefore, you start thoughtlessly highlighting. Such careless highlighting nullifies the likelihood of learning through “desirable trouble,” a rule that contends that when learning feels troublesome, your cerebrum remembers material better. highlighting is just a simple feel-great system. Your mind experiences no strenuous exertion to apply this procedure and, therefore, your brain absorbs no information.

Study techniques that help to memorize easily

There are some study techniques which require more effort but are more effective in the long run. In law school, you are asked to learn different things such as legal maxims, cases and many different and difficult words. Rather than pursuing this data and highlighting it, you read it first then try to understand it and afterwards what you understand, you should write it on a sheet of paper or on a sticky note as this will help you learn for a longer duration and this procedure makes easier for data to insert inside your mind. It was also said that learning by writing helps in remembering for a longer time. Research also says that when you pull a thought from your memory, you are fortifying the neural pathways related to it. There are certain methods also :

• In case, where there are different subjects you read it one by one. And, after that write it with a pen on a paper whatever you have to understand. And, after you have written it, match that it is correct or not. And, if it is not correct then correct it and revise daily what you have studied earlier. It will help you in remembering easily as you will read the same thing many times. It is more useful than highlighting a text.
• Another way is to make a diagram or a flowchart of the topic which you are studying and you know that our mind catches diagram and flow charts very fast and it is easy for you to remember. You can add these frameworks after each class instead of going back home and thinking about what the teacher taught today.
• In law subjects, there are many cases and it is difficult to remember all the cases. In such a situation, make a case brief or write it in points or make flow charts and write shortly what happened in the case in flow chart itself. This will also help you in remembering the case instead of highlighting the whole case.
• In case you are unable to understand any case, instead of highlighting the points start reading the sentences one by one and write in points what you understand. And, at last, read all points. Reading will enable you to understand. After you once understand it, you will be able to remember it easily.

Things being what they are, would it be a good idea for you to Dump every one of your Highlighters?

In no way, shape or form! Despite the fact that highlighting does next to no to help your memory, this strategy can really be a useful enhancement to considering whenever utilized accurately. Highlighting can be unquestionably useful if you use very little highlighting, rather than bouncing in and featuring everything that sounds great.

Accordingly, before hauling out your helpful highlighter, read the content first. This initial step is urgent in interpreting what is really significant. On the off chance that you realize what is significant, this can direct you in featuring or highlighting particular data from the content as opposed to featuring the entire page. Presently recollect that highlighting anything at all is pointless, use your highlighter whenever it is needed. As excess of everything is bad so don’t use the excess of highlighter as it distracts from the study. So, use highlighter but only when there is a great need for it.

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This article has been written by Ravi Shankar Pandey. He is a 1st-year law student from Dr. Ram Manohar Lohia National Law University, Lucknow. In this article, he explains the development of Constitutional tort in India, its origin and application under the purview of some landmark judgments.

Introduction

Vicarious liability is the liability that lies upon a person for an act done by someone else. It comes into play often in master-servant relationships. Constitutional Tort is generally a judicial instrument by which the state can be held vicariously liable for the acts of its servants.

It’s the legal action to get legal remedy in the form of damages when any of the constitutional rights are violated.[1] The only exception lying is that it cannot be made liable if the act is done in exercise of sovereign (government) functions.

The origin of Constitutional law may be traced back to the time when the common medieval saying of “Res Non-Potest Peccare” i.e. ‘the king can do no wrong’ (as the king was considered the son of God) started losing its acceptance in the eyes of the public. After the 18th century, with the advent and emergence of new democracies and industries, it became important to take acts done with state’s authority under judicial scrutiny so that, those who suffered from such acts may get justice in due course.

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Evolution in India

As there is no legislation which specifies the vicarious liability of the state for the torts committed by its servants, it is under Article 300 of The Constitution of India, 1950 by which enumeration of the right to file a suit comes from.

Art. 300 gives the right to the public to sue the state. While it came into force after the implementation of the Constitution in 1950, similar provisions were also there in Government of India (hereafter GOI) Act of 1935 under article 176 which has similar provision as in GOI Act of 1915 and of 1858 under Articles 32 and 65 respectively. Article 65 of the GOI Act of 1865 read, “All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company.” [2]

As the Government succeeded the company in administration i.e. East Indian Company, the liability of the government similar as it was with the company before 1858.

Article 300

Suits and Proceedings [3]

(1) The Governor of India may sue or be sued by the name of the Union and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by the Act of Parliament or of the legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution,

(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b)  any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.

A general reading of part 1 of the Article tells about suing the state and other dominions by their name in the same way as they have been if the constitution had not been enacted. Part 2 talks about pending legal proceedings against the state and provides to substitute dominion of India with Union of India and province with Indian State respectively in clauses (a) and (b).

Landmark judgements on Constitutional Tort

1. P & O Navigation Company v Secretary of State for India– This was the first case in which the Sovereign immunity of the state was debated. There was a piece of a funnel made up of iron which was being carried by some workers on a Government’s steamer, which in its way hit plaintiff’s horse-driven carriage. Plaintiff sued the Govt. for damages due to negligence on the part of the servants employed by the govt.

Held- “The Government cannot be held liable when the injuries are caused while carrying out sovereign functions but is liable when the acts of the servants are non-sovereign functions”.

2. Nobin Chunder Dey v Secretary of State– When the Plaintiff pleaded for damages for refusal of Government to give him licence to sell liquor and drugs, it was held that it was out of sovereign functions of the state and thus, is out of reach of tortious liability. Since this decision, the distinction between sovereign and non-sovereign functions is the foremost criteria that are looked into by the courts in their judgements.
3. Rajasthan v Mst. Vidyawati– The facts were that in this case- a Government jeep hit a pedestrian who eventually died of an accident. The plea of Sovereign immunity was rejected but it was held that the government cannot be held liable for the “Act of State” under Article 300. Compensation of Rs. 15000 was given. The Hon’ble Supreme Court stated that “in the modern era, the liability of State is not limited to Sovereign functions, but is socialistic and is related to the welfare of the people and thus, the old immunity of State functions is irrelevant”.
4. Kasturi Lal v State of Uttar Pradesh– The police seized the gold which belonged to the Plaintiff. The head constable later misappropriated the gold and flew with it to Pakistan. The Court did not take account of the judgement in Vidyawati case and ruled in favour of the State stating that the act was sovereign in nature. It was held that the law established in P & O Navigation is still good law. The court was not pleased as it could help the Plaintiff with its ruling. Through this judgement, in addition to disapproving the law in Vidyawati, it was also added by the Court that the state is not liable when the tort is done in statutory power by its servants.
5. N. Nagendra Rao v State of Andhra Pradesh– It was held that the ratio of Kasturi Lal is applicable in rare cases only where the statutory authority to carry out certain functions are delegated. In any civil society, the state cannot be allowed to play with the rights of the citizens and take the plea of sovereign function and thus, it cannot be treated above and against the rule of law.
6. Devaki Nandan Prasad v State of Bihar– In this landmark ruling, the Apex court laid the foundation of new reasoning in matters involving constitutional tort and compensation. In this case, the plaintiff who has been denied his pension, without much discussion, was allowed to recover exemplary damages of Rs. 25000 for being harassed by the defendant deliberately.
7. Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the state for his illegal imprisonment for 14 years and asked for compensation and rehabilitation cost. The question presented before the Apex court was whether the court can award monetary damages under its jurisdiction as given in Article 32 or not.

The court gave the answer in affirmative by stating that monetary damages under article 32 may be granted and thus gave a judgement that proved to be a giant leap in the cases involving both constitutional tort and compensation.

The judgement formulated two landmark rules by holding that:

1. Civil liability can arise when constitutional rights are violated.
2. Civil liability can also emerge when there is a violation of personal liberty.

8. Saheli v Commissioner of Police– In this judgement, the ratio in Vidyawati was revisited and upheld by its application. When a child died by police assault and beating, the compensation of Rs. 75000 was granted and the Delhi Administration was allowed to recover the same from the officials which were responsible for the incident.
9. Common Cause, A registered society v Union of India– In this judgement, the court ruled that when there is a violation of fundamental rights of the person, the remedy for him is available under public law despite the fact that there is an optional remedy in private law also. The distinction between damages and remedies given in private and public law were evaluated and this judgement opened the way for the development and growth of public law torts increasing State’s liability.

Growth of remedy under Constitutional Tort

The principle established in Rudal Shah established and crystallized the concept of constitutional torts. The court did not follow a rapid formulation of law but instead stick to the case by the case evolution as per the need. In Sebastian Hongray v Union of India, when two persons whisked away by the Sikh regiment were found missing, a writ petition of habeas corpus was filed by a JNU student under Article 22. The court issued a command to the respondents i.e. UOI, State of Manipur and Commandant, Sikh Regiment. In the events followed in the course of the inquiry, the Court discovered that the respondents misled the inquiry and committed wilful disobedience. In the subsequent judgement, the Court awarded the exemplary damage of 1 lakh each to the wives of both the individuals who had disappeared after they were taken into custody, ignoring the common consequences of imprisonment and fine in such circumstances.

The doctrine of constitutional tort has grown in many steps. Some of the established principles are as follows:

1. Doctrine to Entertain Appropriate Cases

The court in Bhim Singh v State of J & K states that the court will entertain only appropriate cases but it did not elaborate more on the qualification criteria for a case to be called as an appropriate case. The case was related to the illegal detention of an MLA so that he cannot attend the proceedings of the house. His wife filed a writ of habeas corpus under Article 32 of the constitution.

• The decision of detention was held violative of Article 21 along with Article 22 (1). Although at the time of judgement the MLA was free, still the court chose to grant exemplary damage by monetarily compensating. The court observed, “when a person comes to us for the remedy for violation of his constitutional and legal rights, and the court finds it as an appropriate case, it may award exemplary damages”.And, the court awarded Rs. 50000 to Bhim Singh.

The trinity of cases i.e. Rudal Shah, Sebastian Hongray and Bhim Singh ensured state’s liability for compensating a person who is illegally detained by it thus, violating his right to life and personal liberty.

• In MC Mehta, there was a reiteration of appropriate cases doctrine but in more elaborative manner, the court stated that “an appropriate case may be considered as a case when there is a gross and potent infringement of a person’s right in a manner whose magnitude may shock the court”. In addition, it was stated, “the decision of qualification of a case as appropriate or not is inclusive and not conclusive and the court is free to decide on the question based on the facts and circumstances of each case separately based on its merit”.
• The role of High Courts in awarding compensation was recognised by the Apex Court in the case of State of Maharashtra v Ravi Kant S Patil where a person was paraded on the street with handcuffs without any justification, the Court awarded compensation of Rs. 10000 by the police officer himself and directed the government to make an entry into the policemen’s service record that he violated a person’s right without any valid justification. However, in appeal, the Apex Court upheld the judgement but ordered the government to compensate instead of compensation from the officer himself and also directed to avoid making an entry in the official records. This was a contrary step from the law in Saheli v Commissioner of Police when the recovery was allowed by the officer himself. However, in this case, HC’s role under Article 226 for providing compensation was recognised and helped the High Courts to enjoy the authority vested in them for providing damages in future.

2. Constitutional Tort and the end to Sovereign Immunity

Although, with the cases like Bhim Singh and Rudal Shah the law of constitutional tort was evolving, the Courts did not take recourse to the law in Kasturi Lal. The decision in Kasturi Lal was neither reiterated nor overruled.

The claim of damages in every case of infringement of fundamental rights was obvious in every judgement, but there was no refinement of the doctrine of fixing the liability or dealing with the provision of remedy. There was a demand by legal scholars that unless the law in Kasturi Lal is discussed, the arrangement of providing compensation in breach of fundamental right will only be understood as a provision on an ad-hoc basis.

• The Hon’ble SC in the case of Nilabati Behera v State of Orissa clarified the law after passage of one decade of judgement in Rudal Shah. Nilabati Behera was a case which came before SC through PIL and was related to the custodial death of a 22-year-old boy whose body was discovered lying on the railway track on the day after he was sent for police custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the victim. In addition, there were many observations made by the court. Some of those are as follows:

1. The Court clarified the observations in Rudal Shah that “a remedy under Article 32 or 226 may be denied if the claim presented before the court is controversial in facts and that monetary claims are allowed under Article 32 and 226”. The Court stated, “the remedy under both the articles is precise and available in all the cases distinctively, in addition to an alternate remedy, if there is a violation of fundamental right”.
2. The liability under private law and liability of state under violation of fundamental rights by the State was distinguished and the Court observed “even though the defence of sovereign immunity and exceptions to strict liability may apply in cases dealing under private law, they are not applicable when the case is relating to infringement of rights by the State under public law. The award of compensation is a recognised remedy under Article 32 and 226 and the Court must remember the distinction while entertaining both types of cases”.
3. The provision of compensation from the State in the event of an infringement of fundamental rights is an inherent remedy under the constitution. The question of sovereign immunity is not even a question to ask by the State to prevent itself from providing damages to the victim and is alien to the idea of guaranteeing fundamental rights to every citizen of the country.

In addition, it is the only practical mode available for remedying the victim and thus it provides a justification for exemplary damages in monetary form. The court further stated, “the enforcement of fundamental rights by taking recourse to the provision under Article 32 and 226 is the law in Rudal Shah and thus, it provides a basis for subsequent decisions”.

• Even though in the majority of cases which deal with constitution tort, the remedy has been provided for infringement of article 20 and 21, there are some exceptions too. In the cases of Assam Sillimite Ltd. v. India and Gajanan Vishweshwar Birjur v. India, there was a violation of other fundamental rights.
• In Assam Sillimite case, the compensation was provided for infringement of article 19(1)(g). The dispute was over the cancellation of the lease without giving any chance of hearing. The act was also not in line with the principle of natural justice.

In Gajanan Vishweshwar case, the honourable Supreme Court quashed the order of seizure of some books, when the concerned authority was not able to provide a satisfactory answer on grounds of confiscation under section 111 of the Customs Act. Rs. 10000 was awarded as compensation as the act of administration was held to be resulting in violation of petitioner’s right under article 19 (1)(a) of the Indian Constitution.

3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)

Supreme court faced heavy criticism for awarding damages under article 32 but not under article 136. It was argued that a plea for compensation under article 136, if not higher in merit, is at equal footing with that of article 32.

However, this was not always a case. In State of Haryana v Smt. Santra, when the sterilization failed and the woman gave birth to a baby, the suit for compensation was allowed as an SLP and the Supreme Court rejected the defence of sovereign immunity.

The Court held ” the contention regarding vicarious liability of the doctor of the government hospital cannot be accepted as a case of negligence on the part of the doctor only. As the operation was done in a government hospital, the theory of sovereign immunity is not applicable”.

The court also referred to the cases of N. Nagendra Rao v Union of India, Common Cause, and Achutrao Khodwa which was related to sterilization operation.

4. Defence of Sovereign immunity in Civil Law Proceedings

The apex Court differentiated the remedy under public law, civil law and private law in the landmark judgement of Nilabeti Behera. It was concluded that although the defence of sovereign immunity applies to cases of private law such as tort, it does not apply to compensation resulting under Articles 32 and 226.

The case of C. Ramakonda Reddy v State of AP may be considered as a landmark judgement in this regard. The High Court of Andhra Pradesh pronounced a highly prognostic verdict in this case which was later affirmed by the Supreme Court. In this case, due to the negligence of the prison authority, one of the accused died due to the entry of an outsider into the jail premises which planted a bomb in order to kill the deceased, one of the accused person.

The incident took place due to misfeasance and malfeasance of the defendants i.e. the State. The damage to the plaintiff was calculated to be Rs. 10 lakhs. Subsequently, the State denied its liability and contended that it is not to be sued for its sovereign functions which were, in this case, the maintenance of the jail. The judgement was declared in State’s favour.

In the appeal, the HC observed, “the right to life cannot be defeated by the archaic defence of sovereign functions and when the person is denied his right to life and liberty, it is not a valid argument that the deprivation was due to the state carrying out its sovereign functions.”

Observing the facts, the Court awarded the compensation of Rs. 1.44 lakh and stated that it is the only way to enforce Article 21 in such cases. On the later stage, the judgement of the High Court was affirmed by the Apex Court and the appeal was dismissed.

5. Supreme Court’s approach on Constitutional Tort Issues

The Apex Court always took recourse to the extent of enforcement of fundamental rights in order to answer on the remedy for the constitutional tort. The analysis was divided on the substantive basis of the compensation if there is a gross violation of the fundamental rights. As Chief Justice of the United States John Marshall remarked ” the Government of  the United States has been always witnessed as the government of laws and not of man”, in India also the same was the case when the government’s using constitutional provisions and by applying the defence of sovereign immunity kept on violating the fundamental rights.

The court in Rudal Shah opined ” the plaintiff has the right to compensation if there is a violation of their fundamental rights along with penalizing the authorities which acting in the name of public interest, use their powers as a shield to prevent themselves from scrutiny.

At a later stage, after awarding compensation in Devki Nandan case for deliberate and motivated harassment of the plaintiff, the court established the doctrine of appropriate cases in Sebastian Hungry and Bhim Singh. Subsequently, in MC Mehta, the complete doctrine of Constitutional Tort was established along with the introduction of deep pocket theory.

However, due to the sole focus of law formation on public law and judicial pronouncements, it is hard to find a jurisprudence of further developments. Thus, there was an attempt to incorporate a separate clause under Article 13 as 13A coming just before the fundamental rights dealing with the right to compensation for violation of fundamental rights. It was suggested that this will help in increasing the liability and act in consonance with Article 32.

Ultimately, the award of damages by the hands of the judiciary is indeed a creative concept introduced in India but fails at certain stages due to the absence of well-defined criteria.

Conclusion

While concluding, it may be stated that the doctrine of Constitutional Tort is a creative jurisprudence evolved by the Courts in spite of the fact that the criteria employed had faced various criticism in the past. The Apex Court must evolve a scientific criterion for future cases. The “voting right model” of the United States may be adopted for measuring the damages in Constitutional Tort actions to prevent the victim from a legal injury to their rights.

[1] https://www.law.virginia.edu/news/2012_fall/jeffries_qa.htm

[2] https://www.legalcrystal.com/act/133617/government-of-india-act-1858-complete-act

[3] https://indiankanoon.org/doc/1415462/

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This article is written by Anushka Ojha, a student at ICFAI University, Dehradun, gives an overview of the history and present scenario of the labour law. The article deals with the need for the labour law, factors of the labour law, trade union, labour law and constitution, Acts under labour law, different plan and policy, government schemes and related practice area.

Introduction

Labour law is the area which commonly deals with the relationship between trade union and industries. Labour law is concerned with the rights and responsibility of labours, and also this law gives them the right to form a union.

Why is trade union necessary? Some group of employees find a union beneficial since employees have more power when they negotiate in a group rather than individually, a union can negotiate for better pay, increase workplace safety, more convenient hours. However, the unions have not limitless powers because labour law has set the standards of working condition and wage policy.

Labour law is generally used in the reference of employment that deals with the trade union, labour law is used for workplaces where the legal relationship is directly between the employer and employee.

History

This law arose during the industrial revolution as when the relationship between two categories i.e. employer and employee and employer and workmen, was changing from small scale production to large scale production, as workers were in search for better working condition and had the freedom to join a labour union.

The United Kingdom took the initiative of this tradition for freedom of employers and workers and to improve their mutual relationship and regulations.

Over the late 18th century and the mid of the 19th century, the foundation for modern labour law was slow as some of the more terrible aspects of working conditions were steadily improved through legislation. This labour was highly achieved through the regular pressure from social reformers. 

Present day scenario

Nowadays, the flexible labour market policies gained legitimacy in the climate of economic liberalism to promote the efficiency and productivity of any labour and protect from harassment.

At present, the labour ministry is in the process of seeking the approval of union cabinet for the amended wage code bill after it’s vetting by the Parliamentary Standing Committee.

The code on Wages bill was introduced on August 10, 2017, and then after referred to the Standing Committee. The Ministry has decided to remove specific provisions in the law, drawing criticism from trade unions.

With the recommendation of the Second National Commission on labour the Ministry have formulated four wages code, industrial relation, social security, occupational safety, health and working conditions by amalgamation, and simplify the provision of the existing central laws.

The labour ministry said that the government has also taken many more steps for the labourers and their employment. The ministry is also working on the code of social security and welfare, a preliminary draft of this code was placed on the website of the ministry on March 16, 2017. The ministry added the ‘Fixed Term Employment Workman’ for all sectors Standing Order Act, 1946.

The fixed term employment aims are to give flexibility to the employers to face the challenges of the globalisation and other aspects too. This would be beneficial for workers as it gives the ‘FTE Workman’ the same directive benefits as that of regular workers in a quick manner. This would also decrease the exploitation of contract workers as the employer would directly hire a worker without any mediator in the form of contract for a fixed term.

Need for labour legislation

• The relationship between employer and employee is one of the partnerships for the maintenance of productivity of the national economy.
• The community as a whole or as an individual is under an obligation to protect their employees and to provide them with a healthy environment for their employees.
• The individual employers are weak, they cannot bargain to their employers for the protection of their rights, so as such legislation will provide them with the security of their work.
• To increase the bargaining power of labour, the legislation encourages the formation of the trade union.
• To avoid various industrial disputes.
• To protect women and children from working in a hazardous situation.

Factors of labour law

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I. Employment

Employment is considered as a basic concept of labour law. Prior to the great depression and World War II, the great emphasis was upon the prevention or reduction of unemployment rather than upon long-term employment policy as part of a comprehensive scheme to promote economic stability and growth.

The new approach arises with the changes in the political outlook and economic thought. The approach has found expression in the legal provision that establishes employment policy as the general policy. To this end, legislation has established the necessary framework for forecasting labour needs. This legislation gives freedom from forced labour equality of treatment in employment and occupation, and unemployment benefits in a broader sense.

II. Individual employment relations

It involves certain aspects of promotions, transfer, some dismissal procedure and compensation. If we go into history, the labour law is defined as the law of a master and servant. This is completely a contractual relationship in which one party is agreed to serve another party and was bound to obey all the orders in return master has to pay the wage and grant some protection to workers.

As the law developed the implications of statutory provisions such as termination of employment, dismissal procedures and compensation, minimum wages, conditions of work, and social security rights, it began to limit freedom of contract.

III. Wages and remuneration

Law on wages and remuneration covers such elements like forms and method of payments, the protection against the unlawful deduction and other abuses, minimum wage arrangements the determination of wages, more benefits etc. The concept of wage regulation is to restrain social evil, which is suppressed by these policies. Wage policies are designed to promote economic stability.

In Hydro Engineers Pvt. Ltd vs. Workman, the Supreme Court held that there was no reason to interfere with the minimum wage fixed by the tribunal. The Supreme Court agreed with the tribunal and said that in prescribing a minimum wage rate the capacity of the employer need not be considered. The reason for the same is that the state assumes that every employer must pay the minimum wage before the employer and must not run an enterprise employing workers if it is unable to pay the minimum wage.

IV. Conditions of work and fulfilment of their basic needs

The condition of work involves the working condition, working hours, rest periods, vacations, the prohibition of child labour and regulation of employment of youth concerning with the various provisions regarding the employment of women. The provisions regarding the women and child are to protect them from evils of the industry. These factors essentially deal with the admission of employment, night work, excessive work, but all these providers will be modified after the 20th century.

The protection of child labour has increased with the growth in education rate. Child labour is decreasing in the industrialized sector. And, the employment opportunities for women employee become more varied. There are laws giving them legal guarantees for equal pay and equal employment. Also, there has been the introduction of laws which provide for the maternity protection and facilities to enable women to work while maintaining her family.

Case law protecting the rights of labour

Randhir Singh v. union of India

In this landmark case, the court in view of article 14, 16, 19, and 39(d) had observed that equal pay for equal work is not one of the substance the court in case opined that construing articles 14 and 16 in the light of the preamble and Article 39(d) the principle equal pay for equal work is general principle from that article and may be completely applied to cases of inappropriate scale of pay based on not any kind of classification.

Amita v. union of India

In this case, the Supreme Court held that the expression matter relating to appointment and employment contained in Article 16(1) includes all matter in relation to both prior and subsequent to the employment which is incidental to the employment and forms part of terms and conditions of such employment.

Badrinath v. Government of Tamil Nadu

In this, the Court held that the right to be considered for promotion by the departmental promotion committee is a fundamental right guaranteed under Article 16 provided a person is eligible and is the zone of consideration but the consideration must be fair and according to the established principle governing service jurisprudence.

Trade union and their relations with the industry

The trade union is also known as a labour union in the United States. It is the organizations of labours to enhance and modify their work life. A trade union generally negotiates with employers on behalf of their members, advocating for better working conditions, compensation and job security. The union play an important role in industrial relation and relation between employee and employer.

I.Strikes and lockouts

Strikes and lockouts are the last actions taken by employees and employers to ensure that both will get what they demand. These are said to the last centre after the conciliation measures.

A Strike occurs when employees refuse to go on work while the employer refuses to agree on the demands of employees. Lockout happens when employers bars employees from working with the aim of getting employees to adjust with their demands as well.

The Industrial Dispute Act gives the peaceful room for strikes and lockouts that take place in industries, causing no harm to society, mischief to other public areas and industrial areas.

II.Collective bargaining

Collective bargaining is a negotiation process where employees negotiate with an employer when certain issues arise. The employees rely on a union member to represent them during the bargaining process, and the negotiations often relate to regulating such issues as working conditions, employee safety, training, wages, and layoffs.

Employees covered by collective bargaining often have better working conditions, higher wages, and better benefits packages than employees who are not members of a labour union. For example, union workers are more than 18 per cent more likely to have affordable health insurance, and 22 per cent more likely to have pension coverage.

Wage advantages by collective bargaining basically benefit the earners of middle and lower wages. Participating in labour unions and collective bargaining benefits employees by decreasing the wage differences that exist between male and female employees.

III.Conciliation, Arbitration and Adjudication

Conciliation

Conciliation is the alternative of out of the court dispute resolving process. Like, it is also a voluntary process, flexible process. The parties reach an amicable dispute settlement with the appointed conciliator who acts neutral as a third party. The third party can be an individual or a group of people.

Conciliation is characterised by the following features:

• The conciliator tries to resolve the dispute between the parties.
• The conciliator persuades the parties to think over the matter with the resolving approach.
• The conciliator persuades the parties to reach over the solution never imposes his point of view.
• If the matter is not resolving or the case is on other factor or should be transferred to tribunal or labour court, then the conciliator may change his approach.

Conciliation machinery consists of:

• Conciliation officer

In the Industrial Dispute Act, Section 4 provides the appropriate government to appoint the appropriate person as it thinks fit for the conciliation proceedings. The appropriate government means in whose the jurisdiction of the dispute falls. While the commissioner, additional commissioner or deputy commissioner is appointed as a conciliation officer for the appointment of 20 or more persons at the state level from the central level.

Commission office is appointed a conciliation officer in the case of the central government. The conciliation officer has the power of the civil court and the conciliation officer has to submit the report within 14 days from the procedure starts. The judgement given by him is binding upon the parties.

• Conciliation board

If appointed conciliation officer, under the Industrial Dispute Act, is unable to resolve the dispute then the appropriate government can appoint a conciliation board. But the conciliation board is not a permanent institution like a conciliation officer. It is a body consisting of one chairman and two or four-member nominated in equal numbers by the parties.

Arbitration

Arbitration is a process in which the parties voluntarily agreed to refer their dispute to a neutral third party known as an arbitrator. Arbitration is a little different from conciliation. In arbitration, the arbitrator gives his judgement on the dispute, but in conciliation, the conciliator disputing parties has to reach a decision.

The arbitrator does not enjoy any judicial power, the arbitrator listens to the parties and then gives his judgement and that judgement is binding upon the parties. The government publish the judgment within the 30 days from the date of submission and it became enforceable after 30 days.

In India, there are two types of voluntary and compulsory arbitration:

• Voluntary arbitration

In this, both the conflicting parties appoint a neutral third party that is the arbitrator and refer the dispute to that arbitrator but the voluntary arbitration is not successful because its judgement is not binding upon the parties.

• Compulsory arbitration

In this kind of arbitration, the government can force the parties to go for compulsory arbitration. And also, disputing parties can refer their dispute for arbitration, and the judgement given to the parties is binding upon them.

Adjudication

The ultimate remedy for the settlement of the unresolved dispute is its reference to adjudication by the government. The government can refer this dispute to adjudication with or without the consent of the parties. When the dispute is referred to with the consent of the parties, then it is voluntary adjudication. When the government itself refer the dispute to adjudication then it is compulsory adjudication.

Three tier machinery for the adjudication can be given as follows:

1. Labour court

Under section 7 of the Industrial Dispute Act 1947, the appropriate government by notifying in official gazette can appoint a labour court for resolving the disputes. The labour court consist of one independent person, who is a presiding officer or has been the judge of the High Court or has been district judge or additional district judge for not less than 3 years or has been presiding officer of Labour Court not less than 5 years. The Labour Court deals with the matters specified in the second schedule of the Industrial Dispute Act.

These deals with :

• The application of the Standing orders.
• Discharge or dismissal of workers, including reinstatement or grant of relief to workmen, wrongfully dismissed.
• Withdrawal of any statutory concession or privilege.
• Illegal strikes and lockouts.

2. Industrial tribunal

Under section 7(a) of the Act, the appropriate government may constitute one or more tribunal for the adjudication of the industrial disputes, it has wider jurisdiction.

The matters that come within the jurisdiction of an industrial tribunal

1. Wages, including the period and mode of payment.
2. Compensatory and other allowances.
3. Hours of work and rest periods.
4. Leave with wages and holidays.
5. Bonus, profit sharing, provident fund, and gratuity.
6. Classification by grades.
7. Rules of discipline.
8. Rationalisation.
9. Any other matter that can be prescribed.

3. National tribunal

It is a body consisting of one man adjudicating body appointed the appropriate government by notifying in the official gazette for adjudication of an industrial dispute of the national matters. The central government if it thinks fit, appoints two or more assessor to assess national tribunal. When the dispute is referred to National Tribunal, then no labour court or industrial tribunal can adjudicate the dispute.

Labour Law and Constitution

Factories Act, 1948

The Factories Act was enforced to amend the laws regarding the factories and for those who are working in the factories. It applies to the whole of India, where 20 or more workers are employed. The aim of the act is to safeguard the interests of workers and protects them from exploitation and discrimination. This Act gives the standards with regards to safety, healthy life, working hours of the workers.

According to Section 2(m) of the Factories Act, factory means any premises where ten or more persons are working in any manufacturing process with the aid of the power and twenty or more persons working in the manufacturing process without the aid of the power.

Industrial Dispute Act, 1947

It is formulated to make the provision for settlement of disputes in the industry. The objective of the Industrial Disputes Act is to secure the industrial peace and harmony by providing machinery and procedure for the investigation and settlement of industrial disputes by conciliation, arbitration and adjudication machinery which is provided under the statute. This law is only applicable to the organised sector.

As per definition, under 2(k) of the Industrial Dispute Act, an Industrial dispute means any dispute or difference between employer and employee or between employers or workman or between two workmen. The issues might be connected with the employment, with non-employment, with the conditions of employment or with the conditions of any labour.

Authorities under the Industrial Dispute Act

• Labour courts and tribunal in India- Industrial Dispute Act provides for the constitution of labour courts and tribunals for the adjudication of disputes. The labour court and tribunal are constituted by the appropriate government by notifying in the official gazette.

• National tribunal- The Industrial Dispute Act provides that the central government may constitute a national tribunal The tribunal might work for adjudication of an industrial dispute, which in the opinion of the central government may involve the question of national importance.

• Working committee- A working committee is constituted by the employer of an industrial establishment on a special order issued by the appropriate government where the number of workmen employed is one hundred more. The committee consists of a representative of the workman and employer.

• Conciliation officers/boards of conciliation– The Conciliation Officer is appointed by the appropriate government. He/she is entrusted with the duty of resolving the disputes.

• Court of enquiry- It is constituted by the appropriate government for enquiring into the matter related to the dispute.

Sexual Harassment of Women at Workplace Act, 2013

In the recent era, the incidents of the crimes are increasing against women. It is essential that women are aware of their laws and rights and the employers are aware of their laws which prevent sexual harassment at the workplace. So that Sexual Harassment of Women at Workplace Act, 2013 was enforced.

The basis of this lies on the judgement of the Vishaka v. State of Rajasthan. In this case, the court ruled that action resulting in violation of one’s right to gender equality and life and liberty are the violation of his or her fundamental rights, under article 19(1)(g) of the Indian constitution which provides right to practise any trade, occupation.

Maternity Benefits Act,1961

The main object of this Maternity Benefit Act to provide the security to the dignity of the motherliness by providing the full benefit to the child and mother. For this concern, the maternity benefit act is enforced.

This act applies to every factory, industry, any working place where ten or more people are employed. Infringement of this act incurs imprisonment of three months which can be extended up to one year. a fine of 2000 to 5000 is imposed.

Minimum Wages Act, 1948

Minimum Wages Act, 1948 is central legislation focused at the fixation of minimum wage rate, in this industry there highly possibility of exploitation of employees in the industries. The aim of this act is to achieve social justice to the workman who is employed.

The term minimum wages means the fixing of the rate of wages by process or by supplicating the state authority. Minimum wages consists of basic wage and allowances for the cost of living, for the basic necessity. The minimum wage act has a force of law the employers are strictly prohibited for paying the wage below the wage rate. the obligation of the employer to pay the said wage rate is absolute.

Payment of Gratuity Act, 1972

It is a type of retirement benefit. It is a payment made with the intention of helping the employees after retirement. It was held in case Indian Hume Pipe co. ltd v. Workman that the general principle underlying gratuity scheme is that by service over a long period the employee is entitled to claim a certain amount as a retirement benefit.

The Payment of Gratuity Act is passed by the Indian Parliament on 21 August 1972. The act enforced on 16 September 1972. This act is extended to the whole of India but extended in Jammu and Kashmir. it applies to those organisations with 10 or more persons are employed on any day of the preceding 12 months.

Eligibility for Payment of gratuity

Under Section 4 of this Act, payment of gratuity is mandatory. Gratuity is payable to the employee after the termination of employment after he has rendered his continuous service in the single organization which is not less than 5 years. Termination can be due to following reasons:

1. Superannuation
2. Retirement or Resignation
3. On death or disablement due to disease

Note: The completion of 5 years is not mandatory in case of death or accident in such cases mandatory gratuity is payable.

Different Plan and Policy and Development of Labour Policy

First five-year plan

In the First Five Year, the main attention was given to labour problems on two matters: the welfare of the labourer class and the country’s economic stability and workers’ right to form an association, union, organisation and collective bargaining were get attention.

In order to maintain relations between employers and workers, the Planning Commissions recommends certain norms and standards. Works Committees were recommended for the settlement of differences.

Second five-year plan

Code of discipline in the industry was accepted voluntarily by all the employers of the organization and workers which have been in operation since the middle of 1958.

The code has laid down specific obligations for the management and workers with the object of good cooperation between their employees at all levels. As a result of this new concept, such improvement occurs in industrial relations.

The code provides that every employee shall have the freedom and right awards to join a union of his own choice.

During the Second Five Year Plan, two steps were undertaken. Firstly, workers participation in management was spread. Joint management councils were established. The Council has to bring mutual consultation between employers and workers over important issues which affect industrial relations.

Secondly, educational planning for workers is implemented. This scheme comprises training of teacher- administration and worker teachers. This scheme has helped to raise the self-confidence of workers and has increased their ability to take advantage of protective labour laws.

Third five-year plan

Labour policy was plan according to long term need of a planned economy, India’s labour policy is to achieve full employment and increasing the standard of living of labourer, this plan is subject to the requirements of further development and interest of all the sections of society, in particular, the satisfaction of the basic needs of all its members.

Fourth five-year plan

The labour policy in the Fourth Five Year Plan was evolved with two basic concepts:

(1) The relationship between workers and employers is kind of a partnership.

(2) The employees are under obligation to protect the well-living of employees. Greater emphasis was placed on collective bargaining.

Fifth five-year plan

The labour supply matters contained in the Fifth Plan increase in the labour force about 18.26 million hence the plan is oriented for various employment opportunities

The sixth and seventh five-year plan

The labour policy adopted in the Sixth Plan was for the achievement of the following objectives:

1.  To establish pleasant employers and workers.
2. To speed up the rate of industrial development and to create opportunities for employment.
3. To raise the living standard of workers in general and the weaker section.

From time to time, suggestions have been given for the review of the working of labour policy. Since independence, the industrial scene has undergone various changes. The scenario of the working class has changed in several respects.

Special labour laws applicable to the following sectors of industry

Journalists

Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 brought into existence to regulate the working conditions of the working journalist and ensure wage stability and employment.

The Working Journalist Fixation of Rate of Wages Act, 1958 which was another Act enforced to provide for the fixation of rates of wages in respect of working journalists and for matters connected therewith.

Cinema Workers

The Cine -Workers and Cinema Theatre Workers (Regulation of Employment Act, 1981 was brought into existence. This act provides regulation for the working conditions of the cine- worker or theatre worker. This act extends to the whole of India. It shall come into force by the central government by notifying in the official gazette.

Railways

The Railways Labour Act, 2005 regulating the hours of work and rest of the Railway workers called Railway servants. And, any orders issued thereunder they were inconsistent with revised rules have been repealed and revised rules called “The Railway Servants (Hours of Work and Period of Rest) Rules, 2005.

Mining Industry

The Mines Act, 1952 was enforced as the mining and mineral sector needs special attention so that it can be utilized and not exploited for personal needs. The Mines Act governs the regulation of mines and minerals.

Steps were taken by the government in labour law sector

• Draft labour code on social security

The draft of the labour code on social security and welfare, 2017 was placed on the ministry website on 16th March 2017, for the comments of the stakeholder, the revised draft is prepared.

The employers, workers, trade union, are invited to give their suggestions and comments on this draft if there are any suggestions on this revised code it is submitted to the undersecretary of the Ministry of Labour.

About social security

Social Security means a program that requires the government to create a fund or system which can be used to make payments to people who are unable to work because of circumstances. Essential features of Social Security are that it is compulsory by law, administered by the government and it has provisions of rights and enforcement.

The right to social security has been treated as a human right by the United Nations. The ‘Social Security adopted by the International Labour Organization (ILO) in 1952 also prescribes minimum standards for benefits in the important areas of social security. India has not yet confirmed this convention. It is high time that now the Country moves towards providing the minimum standards of social security to all its citizen.

Social security coverage extension in the BRICS.

Its objectives are:

• To enhance international visibility and facilitate knowledge sharing on Social Security Reforms in the BRICS Country.
• To highlight major challenges and innovative responses to extending social security coverage in the BRICS countries.
• To facilitate the promotion and implementation of the international social security standards for social security administration in the BRICS country.
• Characteristics and opportunities.
• The five BRICS countries have enjoyed significant and sustained economic growth over the last two decades.
• There also have been fast-moving cultural changes in family structures from rural to urban organizations.
• The BRICS share a political will to extend social security coverage.

• Schemes implemented by government

PM shram yogi maan- dhan

Government of India has launched a pension scheme for unorganised workers namely Pradhan Mantri Shram Yogi Maan-dhan (PM-SYM) to secure old age protection for Unorganised Workers.

The unorganised workers regularly employed as, street vendors, home-based workers, mid-day meal workers, audio-visual workers and related to different professions whose monthly income is Rs 15,000/ per month or limited and apply to the age group of 18-40 years. They should not be included in the New Pension Scheme (NPS), Employees’ State Insurance Corporation (ESIC) scheme or Employees’ Provident Fund Organisation (EPFO).

Aam aadmi beema yojna

The employees in the unorganized sector form about 93% of the whole workforce in the country. The Government has been performing some social security standards for certain professional groups. Numbers of the workers are still without any social security. Realizing the demand for social security for these workers, the Central Government has launched a Bill in the Parliament.

Grant in aid on child and woman labour

Grant in aid on child labour

Funds under Grants-in-Aid Scheme are approved directly to NGO for the removal of Child Labour in areas not covered by NCLP Scheme. Under the scheme, willing companies are given financial support of the Ministry of Labour on the direction of government to the extent of 75% of the project cost for the improvement of children. Willing organizations have been getting funds under the scheme. recently, about 70 intentionally agencies are being served.

Grant in Aid on Women Labour

The Ministry was running a Grant-in-aid Scheme for the well-being of women labour. This Scheme, was proceeding the Sixth Five Year Plan, was governed throughout willing organizations by giving grant-in-aid to them for the following objectives:

Regulating the working women and training them about their rights/duties, giving Legal aid to working women. Workshops, classes, etc. aiming at raising the general consciousness of the society about the problems of women labour.

Under this Plan, Willing Organizations were given funds by way of grants-in-aid to carry the action-oriented schemes for the benefit of women labour. Schemes associated with information formation of campaigns for women labour under this Scheme. The aim of the Scheme was information generation among women labour, in the matter of minimum wages, wages etc. to distribute notice on different plans of Central/State Government Offices ready for the benefit of women labour.

National Child labour project

The National Child Labour plan was passed by the Cabinet on 14th August, throughout the Seventh Five Year Plan Period. The plan was formulated with the primary aim of well improving the children. Removing them from employment.

Plan schemes for DGMS

• To decrease the danger of accidents in mines by risk estimation and administration techniques.
• Classification of mines having the immense risk of accidents and arrange a Risk Management Plan for such mines of the plans.
• Distribution of mine knowledge through multiple reports, technological instructions, electronic information as well as other general things.

Plan scheme of DGFASLI.

• Upgradation of various workrooms of CLI & RLIs by the purchase of high accuracy and art instruments and types of equipment to perform as National Referral Laboratories on functional safety and health.
• Guiding the Occupational Safety, Health environment and Work environment in industries.
• Building up the plan for the enforcement in systems in the major parts.
• Verification of a system for finding and distribution of information on OSH.
• Improvement of professional abilities of officers of DGFASLI & State Factories Inspectorates.
• Development in Occupational Safety and Health in vessel Breaking Industry.
• Generating information on industrial safety and health in different areas of the market by training.

Related practice area

Employment Law: Labor law fixes measures for employer and employee in a manner at the workplace and can perform an important role in many employment law cases.

Wage and Benefits Law: Wage and benefits matters look to labour law to define minimum wage.

Education Law: Teachers, professor simultaneously with other state government employees, are enough to be union members than other professions. Agreements contracted with teachers’ unions usually have an important impact on education policy.

Conclusion

In the developing economy, the demand for skilled labour is increased, for regulating them labour law was introduced and it regulates their wage, safety and heals, working hours, family security, right to form a union for resolving their disputes and many more. Labour law differs from the earlier branches of the law.

Labour law’s historical past has been in some situation and inspired by society and go with the flow of political change, its development is so fast, and it is expanded on a world scale. The development of labour law is free from any limitations. There is not any situation where the labour law is losing its significant position.

While some of the new protective legislation, mainly targeted for the safeguard of females workers, shedding their value.

The tendency of labour law is for approaching more general legislation including a broader scope of subjects and usually dealing with matters related to the disputes, and contracts. It is useful to minimize the adverse effect which usually happens after the closing of the industry, or retrenchment of workers, it gives the social security to the labourers. There is also a scheme “Voluntary Retirement Scheme”(VRS). This is the most common method to reduce the excess labour load. It is also named as a golden route to retrenchment. This scheme does not create pressure on the workers to voluntarily get retirement, it is upon them to decide, the government introduced it in both the public and private sectors.

Labour law gives many opportunities for the attorneys, they are hired by the trade unions formed by the labours or by the corporation that hires union employees.

The post An introduction to labour law in India appeared first on iPleaders.

This article on ‘Termination of Guardianship under Hindu Minorities and Guardianship Act, 1956’ has been written by Nishant Vimal, a 3rd-year student from Symbiosis Law School, Hyderabad.

Introduction

Every natural guardian has an obligation to act for the best interest of his child and he is required to take care of his child and property. This includes taking care of the interests of the child, fulfilling his needs such as educational, medical and etc. It also involves proper upbringing of the child and making decisions for the benefit of the child and his property.

Section 13 of the Hindu Minorities and Guardianship Act, 1956 states about the welfare of the child and hence gives a right to the court to terminate the guardianship of any person if the appointment is not made for the welfare of the child which is of paramount consideration.

End of Guardianship

Guardianship can be ended in a situation when either the guardian has witnessed some unforeseeable circumstance or the court feels that the guardianship was not in the welfare of the child, which is prohibited under Section 13 of the Hindu Minorities and Guardianship Act, 1956.

Factors to consider before ending the guardianship

Any guardianship can be ended but the judges are required to consider the following before coming to any conclusion and pronouncing the decision:

• The child’s best interests

The person asking to end the guardianship must be able to prove to the court that ending the guardianship is in the child’s best interest.

In a landmark case in which the court had to decide the custody of a girl child Thirty Hoshie Dolikuka v. H.S. Dolikuka (1), an eleven-year-old girl lived with her father. The mother alleged that the father fragmented the thinking of the child in a way that caused the daughter a lot of psychological strain and a nervous breakdown. The father was firm on the idea of having the guardianship and custody of the child, and on the contrary, the mother wanted to remove the child from the custody of the father.

The mother wanted to continue sending the child back in the boarding school. As the mother was working, she had the means to earn and stated that she will be able to meet the required expenses of the boarding school.

The Hon’ble High Court gave an unpopular judgement where they gave custody to the father as the mother was working and she will not be able to devote a lot of time for the child’s interests and admitting her into a boarding school can affect her mentality. Although the father was also working, the court observed this and pronounced the judgement.

However, the Hon’ble Supreme Court intervened and overruled this judgement of the High Court stating that whether a woman is working or not is an irrelevant aspect to consider while giving guardianship and custody to anyone. The court cannot judge her ability to take care of the child based on this. The Court held that the mother should have custody of the daughter until the time she attains the age of 16 years. The working status of the mother does not affect and should not affect any court’s decision by giving guardianship and custody of a child to her and hence, this became an established principle that this aspect is not to be considered in deciding the question of guardianship and custody.

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• Parent’s wishes

If the parent of the child wants the custody of the child back and wants to live with the child again, the court and judge shall make sure that the parent has:

• Proper Residence

It is important to make sure that the parents can keep the child in a stable place to ensure mental peace for the child.

• Sufficient means to earn

Court has to ensure that the parents have a reliable source of earning a livelihood and income to support the child so that he gets all the educational facilities in order for his growth.

The welfare of the child is always the paramount consideration, but in some situations, the court has to consider the aspect of the economic well-being of any of the parties.

In the case of Bhagyalakshmi v. K Narayana Rao (2), the court prioritized on the economic well-being of the fathers and gave custody and guardianship rights to them. There were 3 children who were taken away by the mother who left the husband. 3 years later, the father filed in for the custody of all the children.

The learned judge observed that the mother was dependent on her aged father and did not have sufficient means to earn. This resulted in a fear of the children being helpless after the death of the mother’s father and then they will be devoid of all facilities that are needed for the welfare of the children. They also observed that the elder son would receive the best advice from the father and the daughters would get the best care from him. The court came to the conclusion that the father could provide them with physical comfort and all necessary educational facilities.

A similar feat was repeated in the case of Jaswant Kaur v. Manjit Singh (3), wherein, the father was given the custody of the child based on his economic well-being. In this case, the mother gave birth to the child at her parent’s house and the child remained in their custody. The father sued the maternal grandparents for custody when the boy was ten. The court granted custody to the father, viewing the minor’s welfare as including the child’s material as well as his spiritual well-being. The father was better off financially, whereas the mother’s father was in debt.

• Is “fit” or has been sufficiently rehabilitated

Court has to ensure that the parents are fit to take the child under their guardianship and custody. Under Section 19 (a) & (b) of the Guardians and Wards Act, 1890, it is important to ensure that the husband and the father of the child are fit to be a guardian. They shall make sure of that fact that the parents have recovered from their earlier decision of giving the child into the guardianship of another.

In the case of Jijabhai Vithalrao Gajre v. Pathankhan and others (4), it was held that a father may be declared unfit, because he may not be well in economic aspect not, or he could be a person with an unsound mind, or might not ensure physical comfort to the child, or is separated with the mother of that child and has been living separately for a brief period of time without taking any interest in the custody or guardianship of the minor, or if he has remarried.

• Provide all the necessary facilities

The welfare of the child is of paramount consideration and the court has to ensure that the parents will provide with all the educational facilities, physical comfort and etc.

• Child’s wishes

Once the child has attained the age of 12 years, he or she can require the court to consider his wish of living in a particular place which may not necessarily be with the guardian.

How can the guardianship be ended?

There are many ways in which the guardianship can be ended:

• If the child attains the age of 18 years

Upon attaining the age of 18, if the child can maintain himself, the court may allow the removal of a guardian who was appointed to take his care or his property.

• The child decides to marry

In a given situation, if a girl child decides to marry, the husband will be her rightful guardian. If the husband is a minor, his guardians will be the guardian of the girl child as well. If a male child marries while in his minority, the guardians of the girl child will become his guardians as well.

• The child is adopted by adoptive parents

In a given situation, if the child is adopted by any couple other than the biological parents, his guardians will be the adoptive parents from the date the adoption is in effect.

• If the child dies before attaining the age of 18 years

Guardianship over a child is ended if he dies before attaining the age of 18 years.

• The court ends the guardianship

This can happen in any case where the child who is over the age of 12 years asks the court to end the guardianship. Also, of the parents of the guardian decide to take the custody of the child back, they can approach the court stating valid reasons in order for the removal of the guardian.

• If the Guardian decides to resign.

A guardian can end his guardianship over a child by resigning. For this, a notice is to be served to the people who should be notified about the end of guardianship like any near relatives of the child. Or to simplify this step, the notice can be given to all those who were notified about the guardianship of that person over the child. The person resigning needs to go through a court hearing wherein he is required to prove that it was for the benefit of the child that he shall resign.

If the judge and the court feel that there is a better alternative available at that time, then he or she will be replaced by another guardian which also will be appointed by the court itself. If the court finds no alternative available, the court has the discretion to make the child a dependant in a juvenile court.

Grounds for Disqualification

Court has the power to end the guardianship of any person as prescribed in Section 13 of the Hindu Minorities and Guardianship Act, 1956. There certain grounds that are necessary to be considered before the removal of the guardian which are stated below. If the guardian:

Ceases to be a Hindu/ Apostasy

If a person who is appointed as a guardian discontinues to carry on as a Hindu and decides to convert to any other religion or just stops following the Hindu religion and becomes an atheist, he will be stripped of his guardianship rights and the child will be sent to another person who the court may deem to be fit for the guardianship.

This is done because as per the essentials of guardianship under Hindu Minorities and Guardianship Act, 1956, it is said that the guardian of any Hindu child should be a Hindu, and any person of any other religion is not entitled to get the guardianship of the Hindu child.

The term ‘apostasy’ means the changing of one’s beliefs from one religion to another which is different from his previous beliefs.

In the case of Vijaylakshmi v. Police Inspector, 1991, it was held that when the father converts to be non-Hindu then mother shall be the natural guardian.

However in some cases, the judiciary in India focuses on the principle that India is a secular country, side-lined the aspect of religion in the case of Raj Kumar Gupta v. Barbara Gupta (5).

In this case, there was a child of a Hindu male and a Christian female. After their separation, the wife left the home along with the 3-year-old child and father later filed for the custody of the child.

The court answered in the favour of the Christian wife and allowed to give the custody to her as any child with a tender age and in this case, the child had been living with the mother for a brief period. The court opined that the phrase ‘if he ceases to be a Hindu’ does not mean non-Hindu, and stated that when a parent has never been a Hindu as was the situation, in this case, Section 6 of the Hindu Minorities and Guardianship Act cannot be invoked.

Renounces the world/ Civil Death (Sanyasi)

If a person who is appointed as a guardian decides to renounce the world and step out of all his duties, rights, obligations by giving up his belief in the world and wants to lead a holy life. It is when the person decides to disconnect from others in the world. The renounced order of life is known as sannyasi. If a guardian decides to part ways from all desires, liabilities, he is removed from his position as a guardian and his guardianship rights come to an end thereof.

The term ‘Civil Death’ stands for the end or termination of all civil rights of a person. In the context of guardianship, it stands when the guardian decides to give up all his civil rights and wishes to live a holy life.

Adverse interest for the child

The welfare of the child is of paramount consideration while giving guardianship and custody of a child to any person. In order to maintain this, the best interests of the child are to be taken into consideration.

If there is any motive on part of the guardian, which showcases any such interests which may harm the child or harm the property of the child. If the guardian takes any decision that may cause any injury to the property of the child, this will be called as a violation of the clauses of the guardianship agreement.

Every guardian needs to act in a way that enhances the growth of the child or his property. Such an interest which is contrary to the interests of the child will result in the removal of the guardian.

On the assumption that the guardian is an officer of the court because he is appointed by the court for the welfare of the child, the court can impose a duty upon the guardians to ensure that the interests of the child are never placed second fiddle to anything, and if there is any violation of this thing, they can call upon the guardians to protect the purpose of guardianship.

Therefore, it is said that he is bound to these duties and if there is any violation, the court can opt for his removal and devoid him of his guardianship rights. These principles were laid down in the case of Re Mansfield Estate (6) and Crawford (7)

Welfare of the child is to be given paramount consideration and his wishes have to be given priority and in the case of P.Senthil Kumar vs R.Sunitha, the court found it unnecessary to take guardianship and custody of the child away from the mother, as the father had not shown any interest in the welfare of the child and court observed that the child will only become a victim of the conflict between the parents if the father was given the custody and guardianship of the child.

Uses the property of minor for his personal use

A guardian is required to act for the best interests of the child, and he is required to get approval for any expenditure.

If a guardian has dealt with the property of the child without his knowledge and which is not for the benefit of the estate of the child and which may be for his own use like repayment of loan or etc., this will be a violation of the terms agreed upon during the guardianship agreement and he is bound to make all the decisions for the benefit of the estate of the child.

Any decision on the property of the child which may be for his personal use will result in his removal as the guardian. Any alteration on the property without court permission is also under this ground unless the child authorizes it afterwards. Any unwarranted borrowing of property by the guardian will result in his removal as guardian.

For example, if a guardian has property A and B under his supervision which is owned by the child. If he gives that property on the mortgage to in order to generate funds for his repayment of a loan he took for his car. This will be a use of the property for personal use and hence, will be a ground for his disqualification as a guardian.

Procedure to end the guardianship of the person

There are certain forms that are to be filled

Like:

• • Petition for Termination of Guardianship.
  • Notice of Hearing on guardianship or custody.
  • The order that terminates all the guardianship rights (Caption present at the box at the top is to be filled).
  • Any other requirement of forms.

Note: Court clerk or Help centres in the court can be consulted to ensure that one has all the forms as per requirement.

Review of forms

There are help centres or the court facilitator which provides assistance to people involved in guardianship cases, they also can review all the forms to see if all formalities are done so that there are no problems for the parties because of unfilled forms which can cause them trouble.

Copies of the required forms are necessary

This is done to ensure that the parties have a surplus number of copies of their forms to provide to the court and to keep for themselves. The minimum requirement will be 3 as the court will ask for the original form and a copy of it and the opposing party is to get a copy of that form. 

Filing of forms is necessary

All the required forms are to be filed. The court clerk is in charge of filing all the forms which will require payment of the filing fee which can at times be waived off. The clerk may keep the original and provide one with the other copies with the stamp “Filed”.

Notice is to be given to the persons interested at the end of guardianship

All the people who were notified of the appointment of a guardian shall be given a notice about the possible end of guardianship. The notice is to be given 15 days prior to the hearing of the end of guardianship.

If any relative who has expressly agreed to the removal of the guardian is required to sign the ‘Consent to Termination’ and ‘Waiver of Service’ and ‘Notice of Hearing’ on the back side of the petition filed for the hearing. After obtaining this, notice shall not be served to this person who has done the above-said formalities.

Presence in the court on the date of the hearing

Order Terminating Guardianship is to be filed and the court will begin the haring for the end of guardianship. If the court orders to terminate the guardianship, this form will be signed by the judge and it is to be filed thereafter.

Conclusion

Guardianship is a concept where a guardian is appointed to take care of a person who is a minor, which means that the person is below the age of eighteen years or any person who is incapable of taking care of himself or handling his own affairs and hence requires any assistance, support and supervision. Then, under such a situation a guardian is appointed to take care of his body and his property.

There are situations when the guardian does not perform his duty towards the child or his property or does not wish to do so, guardianship can be terminated in these situations. Court permission is needed before the end of guardianship to ensure that the child is not isolated. This article has laid emphasis on the different factors which are to be considered before ending the guardianship rights, various ways in which it can be ended and the grounds on which the guardianship is ended.

There are certain observations made by the author that the courts should consider while deciding on a question of guardianship and custody of the child:

1. A child who is of tender age (below the age of 5 years) may require the mother’s company and would require her care.
2. All the natural guardians have a natural right to have the custody and guardianship of the child but the mere presence of this right will not enable them to get the custody and guardianship.
3. A wife who has committed any “matrimonial fault” like desertion, adultery will not be instantly disqualified from being a guardian of a child and she can be given the custody of the child because the aim of the court where the question is of guardianship and custody is not to punish the guilty but to ensure the welfare of the child and so that his interest is valued.
4. Any parent cannot be granted custody only on the ground of economic superiority; although it is be given proper consideration.
5. Courts must take into account the wishes of a child who is capable of expressing them.
6. A mother cannot be denied custody solely on the ground that she is working.
7. The child shall not be made to be a victim of the issues that are present between the parents.

There is no such prevailing principle that governs the end or termination of guardianship or which regulates the removal of guardian from his duty. These are certain observations made by the judiciary in India that is to be noted every time there is a question of ending the guardianship. The author has listed down various observations to the best of his knowledge made by the different courts in India which are binding on other courts, but as the society is dynamic, there can be new suggestions to this list and there can also be various alterations to this list.

References

1. AIR 1982 SC 1276.
2. AIR 1983 Mad 9.
3. AIR 1985 Del 159.
4. AIR 1971 All 248.
5. AIR 1989 Cal 165.
6. 206 Pa. St. 64.
7. 91 Iowa 744.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses coercion and duress, unlawful detaining of property, compulsion of law, effect, causation and nature of threats.

Section 15 defines coercion as committing any act forbidden by The Indian Penal Code, 1860 or unlawful detaining of property, or threatening to commit these acts. Coercion invalidating a contract need not proceed from a party to the contract or be immediately directed against a person whom it is intended to cause to enter into the contract. It includes unlawful detention of property.

Coercion and Duress

Coercion under this Act is much wider than what was duress in the English law. It includes unlawful detention of property, may be committed by any person not necessarily a party to the contract, and may be directed against any person, even a stranger, and unlike duress, causing of immediate violence or unnerving a person of ordinary firmness of mind are not necessary under the Indian law.

Act Forbidden by the Penal Code

The words act forbidden by the Indian Penal Code, make it necessary for the court to decide in a civil action, whether the alleged act of coercion is such as to amount to an offense. In Ammiraju v Seshamma, a question arose as to whether a release executes by a wife and son in consequence of a threat of committing suicide had been obtained by coercion within the meaning of this Section. Wallis CJ and Seshagiri Aiyar J answered the question in the affirmative, holding that the word forbidden was wider than the term punishable, and that though a threat to commit suicide was not punishable under The Indian Penal Code, 1860 it must be deemed to be forbidden, as an attempt to commit suicide was punishable under the Penal code (s 309).

Threat of Bringing Criminal Charges

The mere threat of bringing a criminal charge does not amount to coercion, as it is not per se forbidden by the Penal Code. But the threat of bringing a false charge with the object of making another do a thing was coercion, for although threatening another with criminal prosecution was not per se forbidden by it when the threat related to a false. In Kishan Lal Kalra v NDMC, the plaintiff had claimed that he had surrendered the possession of the disputed site not voluntarily but under a threat that if he did not so, then he would be arrested and detained under The Maintenance of Internal Security Act, 1971. It was held that the receipt obtained by the defendants was by exercising pressure, duress and coercion.

Under the language of the Section as it stands, a threat to commit an offense under any law other than The Indian Penal Code 1860, may not amount to coercion. Recognizing this, the Law Commission of India had recommended a wider expression to include penal laws other than the Indian Penal Code 1860. It has been held that an agreement to refer matters in dispute to arbitration entered into during the pendency and in fear of criminal proceedings could not be avoided on the ground of coercion, though the agreement may be void as opposed to public policy within the meaning of s 23. Refusal to withdraw a prosecution, unless a bond was executed for the amount due, was not covered by this Section, nor a threat of a strike.

A deed of retirement from partnership was challenged on the ground that it was obtained under threat/coercion and it was signed in a police station. It was held that this could only be regarded as a voidable contract, but since it was not avoided immediately and the retiring partner had also accepted the benefit as such, so the same was valid.

Unlawful Detaining of Property

Consent can be said to be caused by coercion if it is caused as a result of unlawful detainment of property, or threat to do so. A refusal on the part of a mortgagee to convey the equity of redemption except on certain terms is not an unlawful detaining or threatening to detain any property within the meaning of this Section. Where an agent, whose services were terminated, detained accounts to obtain his release, the release was induced by coercion. Where in order to realize fine due from a son, the government attached the property belonging both to him and his father, payment then made by the father in order to save the property from being sold was held to have been made under coercion.

To the Prejudice of any other Person- In Ammiraju v Seshamma, where the threat by a husband to commit suicide caused the wife to release the property, it was held that the wife was prejudiced. The possibility of the husband leaving the wife and the child uncared for was sufficient in the eye of law to furnish a ground of prejudice.

Proof of Coercion and Burden of Proof

The defendant relying on the defense of coercion should set out all the facts constituting these invalidating circumstances. A suspicion or mere probability is not sufficient to support a plea of coercion. In a contract made between parties where duress was not the sole reason for entering into a contract, there is no burden on the party threatened to show that but for threat, no agreement would have been made. Such an agreement was void (under the English law) unless the party who made the threats could show that the threats contributed nothing to the other party’s decisions to enter into a promise.

The burden of proof does not lie on the innocent party to show that but for the threats, no contracts would have been signed. It is for the party using the alleged threats to establish that the acts of alleged threats or unlawful pressure contributed nothing to the consent of the other party to the contract.

Power of the Court Under the Specific Relief Act 1963

Where the terms of the contract or the conduct of the parties at the time of the making of the contract, though not rendering the contract voidable, gave the plaintiff an unfair advantage over the defendant had entered into the contract under circumstances which make it inequitable to enforce specific performance.

Coercion under Section 72

The definition contained in this section is for the purpose of considering whether the consent to a contract was free under s 14. It does not govern the meaning of the term as used in s 72 of the Contract Act, where every kind of compulsion would be covered, even if it did not measure up to the definition under s 15.

Compulsion of Law

The compulsion of law is not coercion under this Section, and the contract is, in the eyes of the law, freely made. In Andhra Sugars v State of Andhra Pradesh is a case of the eligibility of the sales tax on ‘sale’ of sugar, the cane growers were not bound to accept it under the Andhra Pradesh Sugar Act 1961. This was held to be an agreement not caused by coercion, undue influence, fraud, misrepresentation or mistake. The contract was neither void nor voidable but was valid under s 10.

In Vishnu Agencies v Commercial Tax Officer, a question arose whether cement supplied under the orders of the Cement Control Act of West Bengal was a sale, and the court held that it was no less a contract because it lacked volition, or was made under compulsion. So long as mutual assent was not totally absent, it was a contract.

Under statutory regulations relating to the supply of sugarcane, sugar factories are compelled to enter into an agreement with the cane growers on various terms and conditions including the price fixed by the state known as State Advised Price. Although the price may not be to the liking of the sugar factory, yet s 15 is wholly inapplicable. It is well settled that even a compulsory sale does not lose the character of a sale. The state has regulatory power under the statute to fix the price of sugarcane. Such sales do not attract the element of coercion as defined under s 15.

The mere fact that the contract has to be entered into in conformity with and subject to restrictions imposed by law does not per se conformity with and subject to restrictions imposed by law does not per se impinge on the consensual elements in the contract. The compulsion of law is not coercion and despite such compulsion, in the eye of the law, the agreement is freely made.

Duress

Under the English law, actual or threatened violence to the victim’s person has long been recognized to amount to duress, but duress may consist of actual or threatened imprisonment as in Cumming v Ice, now also includes wrongful threats to property or threats to seize goods, and wrongful or illegitimate threats to his economic interests, where the victim has no practical alternative but to submit. In Lynch v DPP, Northern Ireland all five members of the House of Lords rejected the notion that duress deprives a person of his free choice, or makes his act non-voluntary.

Duress does not deprive the victim of all choice, it leaves him with a choice of evils. A person acting under it intends to do what he does but does so unwillingly. Duress deflects without destroying the will of one of the contracting parties. Though earlier cases have requires that the duress must negate true consent and render the victim’s actions non-voluntary, later cases have applied the test of whether the victim had a practical choice.

Effect on Contract

A contract obtained by means of duress exercised by one party over the other is at very least voidable and not void, but if it is voluntarily acted upon by the party entitled to avoid, it will become binding on him.

Causation

It is sufficient that a threat to the victim’s person was a reason for the victim entering into the contract, and it was not necessary for him to show that he would not have entered into the contract without the threat, and the other party could show that the threat had not influenced the victim. In Barton v Armstrong, there was a struggle for power between A and B over L Ltd. and A had threatened B on various occasions with death if L Ltd did not agree to pay a sum of money and purchase his shares. The evidence showed that B was frightened by those threats, but they had not influenced him in executing a deed on behalf of L Ltd. B sought a declaration that the deed was secured under duress and was void.

The Privy council held that if a person threatens another with unpleasant consequences and if the other does not act in a particular manner, he must take the risk that the impact of his threat may be accentuated by extraneous circumstances for which he is not, in fact, responsible. They further held that A’s threats may have been unnecessary, but it would be unrealistic to hold that they played no part in making B decide to execute the documents even if A had made no threats and exerted no unlawful pressure to induce him to do so, the threats and unlawful pressure, in fact, contributed to b’s decision to sign the documents and recommend their execution. The Privy Council made the declaration that the deeds in question were executed by B under duress and were void so far as the rights or obligations inter se of the parties to the deed were concerned.

Nature of Threats

Not all threats are improper or illegitimate. A threat to commit a crime or tort is improper. A threat to break a contract may not amount to duress on the ground simply that the victim was influenced by the threatened action. Something more than commercial pressure is required. A threat to prosecute would be lawful if the charge is known to be false, and the false, and the threat is for an improper motive, but a threat to institute civil proceedings cannot amount to duress.

A threat to carry out something within one’s rights is not duress unless coupled with unreasonable demands. It has been observed in CTN Cash & Carry Ltd v Gallaher Ltd, that though in certain circumstances, a threat to perform a lawful act coupled with a demand for payment may amount to economic duress, extending such duress in commercial context would have far-reaching implications, and would introduce a substantial and undesirable element of uncertainty in the commercial bargaining process, in the sense that it would enable bona fide settled accounts to be reopened when parties to commercial dealings fell out.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses Section 21 of the Indian Contract Act.

Introduction

There may be two kinds of mistake- mistake of law, and mistake of fact. The exact demarcation between law error and factual error is often blurred and hard to determine. For example, the position is even less clear where the parties have to act on the interpretation of private written document rather than an enactment or statutory regulation. Illustration- building a written contract is considered a matter of law, the erroneous construction of a will has also been treated as a matter of law. A mistake of law may be of ordinary law, foreign law or of private rights.

A contract is not voidable because it was caused by a mistake as to any law in force in India, but a mistake as to a law not in force in India has the same effect as a mistake of fact. Section 21 provides that a mistake of law in force in India does not make a contract voidable, but a mistake of foreign law is to be treated as a mistake of fact. Illustration– A and B make a contract grounded on the erroneous belief that a particular debt is barred by the Indian Law of Limitation, then the contract will not be voidable.

Principle

The general language of this Section represents the current doctrine at the time when the contract Act was made, namely, that relief is not given against the mistake of law. A person cannot go back upon what he has deliberately done or excuse himself from liability of wrongful act or offense, merely because he alleges that he acted under a misrepresentation of law. It is his business to know, by taking professional advice or otherwise, so much law as concerns him for the matter he is transacting. No other general rule is possible, without offering enormous temptations to fraud. But this doctrine in question is not without rather large qualifications. A mistake of law does not universally or generally invalidate transactions in which it occurs.

On the other hand, the UNIDROIT Principles equate a mistake of fact with that of law. This is justified on the ground of the increasing complexity of modern legal systems, especially when in cross-border trade, a number of legal systems may be involved. Under the Principle, mistake is an erroneous assumption relating to facts or to law existing when the contract was concluded.

Mistake as to Law

In AM Appavoo Chettiar v SI Rly Co [1], while mistake was as to the general law is no law for relief, it was stated, “ if the mistake of law is such a kins that it is mixed up with certain facts relating to a particular individual…that…a combined effect of a party’s view of the law and facts, he made a mistake at the time of entering the transaction as to the nature of his pre-existing private right, it may be said that such a mistake is not a pure mistake of law”.

The existence of particular private rights is a matter of fact, though depending on rules of law, and for most civil purposes, ignorance of civil rights- a man’s ignorance that he is heir to such and such property, for instance, is ignorance of fact. In Cooper v Phibbs [2], it was seen that a man’s promise to buy that which, unknown to him, already belongs to him is not be made binding by calling his error as to the ownership a mistake of law.

Applying the principle of this Section, where a mortgage bond provided that if the mortgagor failed to redeem the mortgaged property within eight years, the mortgagee should be the owner of the property, and the mortgagor is unable to redeem, executed an absolute transfer of the property to the mortgagor of the equity of redemption subsequent to the date of the transfer was not entitled to redeem. Even though the mortgagor might have been ignorant of his right to redeem the mortgage, notwithstanding the clause in the mortgage precluding him from doing so. This was held in Vishnu Sakharam Phatak v Kashinath Bapu Shankar [3].

An erroneous belief that the widow forfeits upon remarriage the rights of an occupancy tenant under the NWP Tenancy Act, to which she has succeeded on the death of her first husband as his heir, is a mistake of law. This was held in Sabihan Bibi v Madho Lal [4], and a contract grounded on such belief was held not voidable, though the mistake may be common to both parties. In Ghanshyam Bholaram Tamoli v Girija Shankar [5], the erroneous belief that the tribunal under a Debt Conciliation Act had jurisdiction over a non-agriculturist was held to be a mistake of law.

The Privy Council held in Seth Gokul Das Gopal Das v Murli and Zalim [6], that an erroneous belief that a judgment-debtor was bound by law to pay interest on the decretal amount, though no interest has been awarded by the decree, was a mistake of law; it was not a belief as to a matter of fact essential  to the agreement within the meaning of s 20. That such a mistake is not a mistake of fact, but one of law is abundantly clear from this case. The Lordship stated, “There was, no doubt, a mistake of law on the part of the defendants is supposing that execution could be issued for interest upon the amount decreed from the date of decree to the date of realization, no such interest having been common not only to the plaintiff and the defendant but also to the Court which made the order of attachment”.

In Ram Patti Devi v Board of Revenue [7], it was stated that if the law does not permit the alienation of sirdari interest, the same cannot be permitted merely because the alienation was under a mistake of law and the purchaser had paid full value for such interest under that mistake. Misrepresentation, especially willful misrepresentation, of a matter of law, may be ground for avoiding a contract under subsection 17 or 18.

Mistake of Fact

Failure to do so is a ground for avoidance in contract law. However, it should be added that the court has never clearly defined the distinction between factual errors and law errors. Illustration- A agrees to buy from B a certain horse. It turns out that the horse was dead at the time of the bargain, though neither party was aware of the fact. The agreement is void.

In Waugh v Bussell, where a written contract contained a mistake apparent on its facts namely “one pound” for “one hundred pounds” the contract was construed in accordance with the real intention. Such cases are dealt with by courts by rectifying or reforming the contract so as to express the true intention and where this is not possible by directing the cancellation of the contract.

A common error is used to refer to cases where the parties are genuinely agreed but mistaken as to some fundamental facts relating to the agreement, for example where the parties are unaware that there was no subject of their agreement. Traditionally, such errors are referred to as mutual error. That apart from the term common error may refer to the frequent occurrence of the error rather than the fact that it affects both parties to the agreement. In such a case, perhaps the term’ bilateral’ might be more appropriate.

In State Industrial & Investment Corporation of Maharashtra Ltd v Narang Hotels (P) Ltd. [8], the State Industrial and Investment Corporation of Maharashtra entered into a contract with the defendant to grant subsidies for the establishment of a hotel project under the Central Industrial Subsidy Scheme and advanced a sum of Rs. 6,59,700/-. The plaintiff corporation subsequently sought to cover the same with the interest on the ground that the defendant and the plaintiff committed an error of law in interpreting the Central Subsidy Scheme and assumed that the hotel industry was an Industrial Unit. The court held that there could be at least two views on interpretation and roof burden on the complainant to prove they made payments as a result of an error. Since the burden was discharged, the complainant was unable to seek a refund or refuse to pay the balance.

Mistake as to Foreign Law

As regards the second clause of the section, Indian jurisprudence has adopted the rule of the common law that foreign law is a matter of fact, and must be proved or admitted as such, though the strictness of the rule about proof has been somewhat relaxed by the Indian Evidence Act, 1872. Accordingly, the statement of finding of any foreign law on which the court proceeds in a given case is no more binding on the court in any future case, even apart from the possibility of alteration in the law in question, than any other determination or assumption as to matters of fact.

Relationship of Contract

In Pravin s/o Jethalal Kamdar v State of Maharashtra [9], the plaintiff sold the property to the government after permission was denied to him under s 27(1), of the Urban Land (Ceiling and Regulation) Act 1976, to sell the same to a prospective purchaser. The Supreme Court later struck down this section in Bhim Singhji v Union of India [10]. The plaintiff thereafter sought repossession of the said property. The government alleged inter alia that the sale being effected under a mistake of law, was not affected. It was held that s 21 would not apply, because, although the sale was effected, it was done under compulsion, and in pursuance of the pre-emptive right enjoyed by the government under that Act.

Sections 21 and 72

Section 72 enables a refund of monies paid under a mistake, including a mistake of law. But where a contract is the result of mistake of law of both parties, any sum of money paid under the contract falls under s 21 and not s 72. In Dhanya Lakshmi Rice Mills v Commissioner of Civil Supplies [11], the petitioner had paid monies to the government as administrative charges for obtaining permits, of which it claimed a refund under s 72 of the Contract Act, pleading mistake of law. While refusing relief, the Supreme Court stated, “if a party under mistake of law pays to another money which is not due under a contract or otherwise, that is to be paid. When there is a clear and unambiguous rule of law which entitles a party to the relief claimed by him, equitable considerations cannot be imported. A contract entered into under a mistake of law of both parties falls under s 21 and not s 72. If a mistake of law had led to the formation of a contract, s 21 enacts that the contract is not for that reason, voidable. If money is paid under that contract it cannot be said that the money was paid under a mistake of law, it was paid because it was due under a valid contract, and if it not been paid, payment could have been enforced.”

Thus, there is no conflict between s 72 on the one hand and ss 21 and 22 on the other. A contract made under a mistake of law of parties falls under s 21 and not under s 72 of the Contract Act and s 72 deals with cases where money is paid by a mistake or under coercion. A contract giving a person the right to pluck and gather kendu leaves was not void on the ground that there was a mutual mistake as to the law by which the tenants have the right to gather the leaves and sell to whomsoever they pleased, and this law was known to both sides. This governed by s 21 and not by s 72.

Performance of Subject Matter

The performance of the subject matter can be classified as two types. They are:

Physical Impossibility: When the subject matter is destroyed the contract becomes impossible to perform and it amounts to the physical impossibility of performance and the contract is void.

Legal Impossibility: When a war like situation arises between two trading countries then it becomes legally impossible for the countries to perform the contract and it becomes void.

References

1. AIR 1929 Mad 177.
2. [1861-73] All ER Rep 2109.
3. (1887-88) ILR 11-12 Bom. 115.
4. (1907) All WN 197.
5. AIR 1944 Nag 247.
6. (1878) ILR 3 Cal 603
7. AIR 1973 All 288
8. AIR 1995 Bom 275
9. AIR 1996 Bom 280
10. 1985 AIR 1650
11. 1976 AIR 2243

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses Section 17 of the Indian Contract Act, which defines fraud in contracts.

Definition of Fraud

Fraud implies and involves any of the following acts committed by a contracting party or his connivance or his agent with the intention of deceiving or inciting another party or his agent to enter into the agreement.

• The suggestion, as a fact, of that which is not true by one who does not believe it to be true.
• The active concealment of a fact by one having knowledge or belief of the fact.
• A promise made without any intention of performing it.
• Any other act fitted to deceive.
• Any such act or omission as the law specially declares to be fraudulent.

Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstance of the case is such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, in itself is, equivalent to speech. Illustration–  A sells by auction to B a horse, which A knows to be unsound, A says nothing to B about the horse’s unsoundness. This is not fraud in A.

Section 17 describes fraud and lists the acts that amount to fraud, which are a false claim, active concealment, promise without the intention of carrying it out, any other deceptive act, or any act declared fraudulent. To constitute fraud, the contracting party, or any other individual with his connivance, or his agent, or to induce him to enter into the agreement, should have performed such acts. The parties have no duty to speak about facts likely to affect the consent of the other party to the contract, and mere silence does not amount to fraud unless the circumstance of the case shows that there is a duty to speak or silence equivalent to speech.

Fraud and Misrepresentation

The main difference between fraud and misrepresentation is that in the first case the person making the suggestion does not believe it is true and in the other case he believes it is true, although in both cases it is a misrepresentation of fact that misleads the promisee. This was held in Rattan Lal Ahluwalia v Jai Janider Parshad. Under common law, fraud will not only render the contract voidable at the option of the party whose consent is so obtained but will also give rise to an action for damages in respect of deceit.

If a decree is found to have been obtained by fraud, an application moved, even belatedly, would be maintainable. The court has inherent jurisdiction to grant relief on such an application and even principles or res judicata would not apply. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

Ingredients of Section 17

When analysed s 17(1) shows the following ingredients:

1. There should be a suggestion as to a fact;
2. The fact suggested should not be true;
3. The suggestion should have been made by a person who does not believe it to be true; and
4. The suggestion should be made with intent either to deceive or to induce the other party to enter into the contract.

Representation

A representation is a statement of fact, past or present and is distinct from an opinion statement, although a statement of opinion may be considered as a statement of fact in certain circumstances. The fraudulent misrepresentation must be material in order to allow the representative to prevent the agreement, i.e. such that it would have affected a reasonable man in choosing whether to enter into the agreement or not. In Lillykutty v Scrutiny Committee, a false certificate was obtained in order to take unfair advantage. It was held that fraud vitiates every solemn act. Fraudulent acts are not encouraged by the courts. Any action by the authorities or by the people claiming a right/privilege under the Constitution of India which subverts the constitutional purpose must be treated as a fraud on the Constitution.

False Assertion without Belief in its Truth

To prove a case of fraud, it must be proved that representations made were false to the knowledge of the party making them. The statement must be false in substance and in fact. Positive knowledge of falsehood is not a criterion. In order to constitute fraud, it is necessary that the statement was made by the person concerned with knowledge of its falsehood, or without belief in its truth. Even mere ignorance as to the truth or falsehood of material assertion, which, however, turns out to be untrue, is deemed equivalent to the knowledge of its untruth, as also where the representor suspected that his statement might be inaccurate, or that he neglected to inquire into its accuracy. In Jewson & Sons Ltd v Arcos Ltd, giving a false impression and inducing a person to act upon it, was considered fraud, even if each fact taken by itself would be literally true.

Reckless Statements

Proof of absence of actual and honest belief is all that is necessary to satisfy the existence of fraud, whether the representation is made recklessly or deliberately; indifference or recklessness on the part of the representor as to truth or falsity of the representation affords merely an instance of absence of such belief. Statements made without belief in the truth would include statements made recklessly. Misrepresentation as to title made by vendors recklessly or with gross negligence cannot escape the charge of fraudulent misrepresentation.

Ambiguous Statements

Where the representer makes an ambiguous statement, the person to whom it is made must prove that he understood that statement in the sense that it was in fact false. The representor will be guilty of fraud if he intended the statement to be understood in that sense, and not if he honestly believes it to be true, but the person relying on it understands it in a different sense. Once it is held that the representation was fraudulent under this clause, the exception in s 19 is of no avail, and the question whether the person alleging fraud had or had not the means of discovering the truth with ordinary diligence, is immaterial.

Active Concealment

Mere non-disclosure of some immaterial fact s would not per se five a right to recission unless it is further found that the consent has been secured by practicing some deception. Where the seller sold property already sold by him to a third person, his conduct amounted to active concealment and fraud, and the buyer could recover the price despite the agreement that the seller could not be responsible for a defect in title.

Promise without Intention of performing it

Making a promise without the intention of performing it is fraud, though not so under the English law. To bring the case within this clause, it must be shown that the promisor had no intention of performing the promise at the time of making it, and any subsequent conduct or representation is not considered for this purpose.

Silence as Fraud

Silence about fats is not fraud per se. Unless there is a obligation to talk or if it is equal to expression, mere silence is not fraud. This rule has two skills. First, suppressing portion of the known facts may mislead the assertion of the remainder, although literally true as far as it goes. In such a case, the declaration is substantially incorrect, and fraudulent is the willing rejection that makes it so. Secondly, commercial use may impose a obligation to disclose specific flaws in products sold or the like. In such a situation, failure to mention such a defect is equal to an statement that there is no such defect.

Duty to Speak

There is no general duty to disclose facts that are or might be equally within the means of knowledge of both parties. In Bell v Lever Bros, the company agreed to pay large compensation to two employees, the subsidiary company directors, whose services were being dispensed with. After paying the money, the company discovered that the directors had committed breaches of duty, which would have justified their dismissal without compensation. The House of Lords held that the directors had not these breaches in mind, and were under no duty to disclose them.

No Fraud

If the party alleging fraud had the facts before it or had the means to know them, it could not be said to have been defrauded, even if a false statement has been made. Further, a contract cannot be merely on a trivial and inconsequential mis-statement or non-disclosure. In Janakiamma v Raveendra Menon, where the plaintiff was aware of the contents of the Will of her father, the partition of property on the death of the father and mother was not set aside on the ground of fraud of not disclosing the contents of the Will; and no fresh partition was ordered.

Evidence and Burden of Proof

In a great majority of cases, fraud is not capable of being established by positive and tangible proof. It is by its very nature secret in its movements. It is, therefore sufficient if the evidence given is such as ay lead to interference that fraud must have been committed. In most cases, circumstantial evidence is the only resource in dealing with questions of fraud. If this were not allowed, the ends of justice would be constantly, if not invariably, defeated. At the same time, the interference of fraud is to be drawn only upon an intentional wrongdoer. Being a restitutionary remedy, all actual losses flowing from fraud are recoverable, even if they could not have been reasonably foreseen; subject to the rule of mitigation by the defrauded party. Nor would the damages be reduced on account of contributory negligence.

Effect of Fraud

A contract, consent to which is obtained by fraud, is voidable under s 19. The party deceived has the option to affirm the contract and insist that he be put in the position in which he would have been if the representations were true, or he may rescind the contract to the extent it is not performed. Upon rescission, he is liable to restore the benefit received by him under s 64 and may recover damages. The measure of damages recoverable is essentially that applicable to the tort deceit, ie, all the actual loss directly flowing from the transaction included by the fraud, including the heads of consequential loss, and not merely the loss which was reasonably foreseeable. Where a document, which was intended to be in favor of a particular person but, as a result of fraud of the defendant, conveyed to someone else, the transaction would be also voidable under s 19.

Damages for Fraud

Where a contract is induced by fraud, the representee is entitled to claim rescission, or damages or both. He would have a remedy by way of such suit, even if restitutio in integrum is not possible as in Indranath Banerjee v Rooke. In Firbank’s Executors v Humphreys, the damages for fraudulent misrepresentation, under the general rule, were arrived at by considering the difference in the position the plaintiff would have been in, had the representation been true and in the position he is actually in, in consequence of it’s being true.

The principles applicable in asserting damages for fraudulent misrepresentation have been stated by Lord Browne-Wilkinson in Smith New Court Ltd v Scrimgeour Vickers (Asset Management) Ltd:

• The defendant is bound to make reparation for all the damage directly flowing from the transaction;
• Although such damage not have been foreseeable it must have been directly caused by the transaction;
• In assessing search damage, the plaintiff is entitled to recover by way of damages the full prize faced by him, but he must give credit for any benefits which he has received as a result of the transaction;
• As a general rule, the benefits received by him into the market value of the property acquired at the date of the transaction, but the general rule is not to be inflexible applied where to do so would prevent him from obtaining full compensation for the wrong suffered;
• The plaintiff is entitled to recover consequential losses caused by the transaction;
• The plaintiff must take all reasonable steps to mitigate the loss once he has discovered the fraud.

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This article has been written by Nishant Vimal, a 3rd-year student of Symbiosis Law School, Hyderabad. This article discusses Section 13 of the Hindu Minorities and Guardianship Act, 1956 and various judicial pronouncements that have been provided.

Introduction

Guardianship is a concept given under the Hindu Minority and Guardianship Act, 1956 where a guardian is appointed to take care of a person who is a minor. This means that the person is below 18 years or is incapable of taking care of himself or handling his own affairs and hence requires assistance, support or supervision. Under such a situation, a guardian is appointed to take care of the minor and his property.

Courts have always considered the child’s interest, comfort and relationship with the parent or a third party who would have custody for the child’s welfare. To decide upon the child guardianship and custody issues, there are several laws that have been set up. Section 13 of the Hindu Minorities and Guardianship Act lays down that the welfare of the child is of paramount importance in these issues.

Children’s Act, 1989 is formulated to state down some of the factors that are necessary to be kept in mind for the welfare of the child in a matter of guardianship or custody. This law is enacted in the United Kingdom and hence has been in various instances used in India. It revolves around the question of custody and guardianship of children, where they are getting the best care, having all the facilities either within their own families or in any other family. This Act also lays down provisions for maintenance of the child, if any family which is bound to the provisions of this Act, is committing any default.

There is the United Nations Conventions on the Rights of the Child (UNCRC). It is a human rights protocol which lays down various rights of children like social, political, civil and cultural. This convention has 54 articles which deal with child rights and direct the state to take action against any such violation. Courts in India have to adhere to all of the provisions before giving the custody or  guardianship rights to any person. This convention is to be honoured by all the countries that are signatories to this treaty. A total of 195 countries have signed the CRC, giving it the status of the most widely ratified International Human Rights Treaty.

Welfare Principle under Hindu Minorities and Guardianship Act, 1956

Section 13 of the Hindu Minorities and Guardianship Act, 1956 states about the welfare principle while taking a child or any person who requires taking care of himself or his property in guardianship. The statute lays down that any guardian who is appointed either by the parents, will or by the statute, has to be appointed after taking in consideration that the appointment is made for the welfare and in the best interest of the child and would not cause any harm to the child.

Gaurav Nagpal vs. Sumedha Nagpal (1), in this case, it was held that the welfare of the child is of utmost importance and rights of the parents under the statute for the time being in force or what the parties say, all comes second fiddle. The Court has to give weightage to the child’s wishes, his satisfaction with the guardian, health, educational needs and relationship with the guardian, physical comfort, and religious values are also to be noted. All these has to be given equal consideration, if not placed above than the other.

What are the factors that are to be taken into account?

1. Wishes of the child when the child has the capacity to make demands for his benefit.
   1. Age of the child is a primary factor while considering whether guardianship should be given to a particular person. If the child is of a very young age, a mother is usually appointed as the guardian.
   2. Gender of the child is to be kept in mind during the appointment of a guardian. When the child is a female, it is necessary that the guardian has a female in his/her house.
   3. Any medications that the child may require, the information should be conveyed to the person getting the guardianship.
   4. Religious and Cultural consideration is to be taken before the appointment of a guardian. Usually, guardianship of a child is given to a person of the same religion so that the child grows in his own religious beliefs.
   5. Previous experience in handling a child is taken into account. Priority is given to the people who have already taken care of children and know their routine and will be capable of taking care properly.
   6. Guardianship is given to a person who does not have any record of any charges of civil or criminal nature against him which may have resulted in him to be prohibited by law to be having custody of anyone.
   7. Financial Standing of the family of the person demanding the guardianship. Court usually prefers a person who can maintain his family including the child.

Damage to the child- In the case of Jackson v Jackson (2), the court held that the custody should be with the mother after the father wanted to take the children to Australia with him. The contention from the mother was that the children could suffer from probable emotional damage. The court considered a lot of aspects in this case like the advantages of moving to Australia as contended by the father, the behaviours of both the parents, status quo, and then after that the bench comprising of Five judges felt that even though the children had no problem with either parent, they would like the custody of the mother more, and hence the court arrived at a unanimous decision.

 Medications that the child may require- In the case of Mercein v. People, the court handed over the custody of a three-year old girl to her mother as she was too sick to be taken care by father. Here also the  court delivered its decision based on the ‘best interest of the child’.

 Religious and cultural consideration- In a landmark case, it was held that the religious and cultural considerations are to be given a lot of consideration. In this case, there was a South African child who was in custody of a couple living in Britain. The court held that the child needs to be grown among his own culture and among the people of his own culture. Guardianship was given to a South African couple after coming to the conclusion that this was best for the child and here the court laid emphasis on customary practices than any other ground.

Any charges of civil or criminal nature– Kriti Kumar Joshi v. Pradeep Kumar Joshi (3), this case was a perfect example where the guardianship was given after considering any criminal charges. The facts of the case revealed the death of the mother and the father was undergoing a trial under Section 498A of the Indian Penal Code, 1860 that states about ‘cruelty’. Also, the statements given by the children proved that the mother was ill-treatment by the father. The court held that the custody of the children will be given to the maternal uncle i.e. the brother of the deceased mother.

In a case, there were charges of attributing to the death of the wife and the father was charged with Cruelty under Section 498A of the Indian Penal Code, 1860. Hon’ble Supreme Court inquired into the matter and later observed that the child was not willing to into the custody of the father and was happy in the custody of the grandparents. Court held that the custody of the children will not be given to the father as it would be detrimental for the welfare of children which is the deciding factor in giving custody or guardianship to anyone. These were the facts and holding of the case Nil Ratan Kundu & Anr. Vs  Abhijit Kundu, (4).

Gender of the child- Mohan Kumar Rayana v. Komal Mohan Rayana, the court witnessed a question over the child names Anisha. The respondent who was the mother of the child contended that for the benefit of the child, she should be given the guardianship of the child. It was observed by the court that the petitioner i.e. father was a very successful businessman and was having obligations to go abroad quite often and hence could not devote a lot of time for the child. Although, the child had no problems with either of her parents, and she enjoyed the company of both of her parents and her utmost desire was that her parents should come back together after the divorce. But, the court laid emphasis on the fact that the child was a girl and reasonably would require the company of her mother. The court granted visitation rights to the father. A famous quote can be used for a practice such as this which was given by Cardinal Mermillod. He said that “A mother is she who can take the place of all others, but whose place no one else can take”.

There are only a few times when the mother is removed from guardianship and this is when there are exceptional circumstances suggesting any, foul behaviour, default of duties on part of the mother. In the case of Atharv Hussain v. Syed Siraj Ahmed (5), the court held that the court is supposed to examine whether the child is in the lawful custody or not. The court has to inquire if in a given situation the custody is with a third person who is not a natural guardian as a natural guardian would always have a legal right to the custody of the child. The biological mother is one such natural guardian. On the ascertainment of this fact, there are only a few times when guardianship is changed and only in exceptional cases, there can be a removal of guardianship of the child from the mother.

Financial Standing- In the case of Tarun Ranjan Majumdar v. Siddhartha Datta (6), the court emphasised on the fact that one of the grounds given above is not to be considered as the only ground and court has to apply all the possible grounds to ensure the best for the child. In this case, it was contended by the father that he has the legal right to the custody of his child. The child had been in guardianship of his maternal parents and there was no such fact of them not treating the child right and hence it cannot be assumed that the father’s financial standing would enhance the child as the current guardians are fulfilling every duty. Also, it is a well-established custom that if one is under the guardianship of someone, that guardianship shall not be disturbed for any reason that may be presented before the court. If the court feels that the reasons suffice, the guardianship of the child is not disturbed even if a legal guardian has approached the court for his legal right.

In order for this ground to apply, it is to be ensured by the courts and the judges that the charges are true or not, otherwise, it will cause the miscarriage of justice for the rightful guardian of a child if the false charges were framed on him/her. In the case of Ravi Dadu v. Seema Gupta (7), mother of the minor son of age 4 was seeking custody of the child from the grandmother of the child who was given the custody of the child after the death of the father under suspicious circumstances. The mother was charged with Section 306 read with Section 34 of the Indian Penal Code, 1860 i.e. abetment of suicide and common intention. The Court observed that even though the grandparents had the capability to maintain the child, they opined that financial standing alone cannot be the sole factor deciding the welfare of the family, and also considering the fact that the mother was acquitted of all charges by other court. The Court held that it would be better if the custody of the child is given to the mother as she is the best person to take care of the minor’s needs and best for his upbringing.

Section 13 demands the courts to make sure that the welfare of the child is taken as it the most important and is of ‘paramount consideration’. This is sometimes called the ‘welfare principle’ or the ‘paramountcy principle’.

According to Article 1 of UNCRC (United Nations Convention on Rights of Child), “a child means every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained later.” All countries are required to adhere to and are bound to incorporate the laws mentioned in this convention while deciding the custody or guardianship of the child. Article 3 of the UNCRC states that all individuals and all the respective authorities, be it private or public, must consider the “best interests of a child” before taking any decision. This article must be read with Article 12 of this convention for deciding the best interests of a child. “This article directs all institutions, courts of law, administrative or legislative bodies, parents, legal guardians etc. to take actions by giving priority to the best interests of the child.”

McDermott’s Explanation

Justice Lord McDermott laid down the famous interpretation for welfare principle in the case of J v. C (Infant) (8) in which he explained how judges should consider exercising their discretion to check if the child is to be given to someone for guardianship. He gave the meaning and interpretation for the word ‘paramount’ for which he stated that in a list of items that are to be considered by every judge before giving the custody of the child to anyone, there are some things that the court has to place on top as their priority. After considering all the affecting factors in a guardianship like relationships, wishes of child or parents, choices of both and etc. The Court has to consider the welfare of the child as the top priority and then give the guardianship rights to someone.

Lord Justice Dunn in another case relied on this explanation and interpretation by McDermott and laid down in a case that the welfare of the child is to be given priority and has to be of paramount consideration when the question of guardianship arises. Judges have to lay emphasis on the items mentioned above under the welfare principle and then grant custody to a particular person. For the question of whether the surname of the child will change or not, will depend upon the circumstances of each case. If the court feels it is important for the child to maintain ties with his paternal family, remarriage of mother and etc. they can order for the continuance of surname of the child or not. Changing the surname of the child is according to the discretion of the judges.

In Raj Kumar Gupta v. Barbara Gupta (9), the court held that unless there is no firm ground to change the guardianship of a child from one person to another, the Courts should not do it as it can cause some damage to the child and Lord McDermott’s observation was relied here, as even a small change in the guardianship can cause any mental harm to the child and it should only be done when the circumstances are such that without the change in guardianship, welfare of the child is endangered.

Is interest of the child the sole criteria?

The interest of the children is not the sole consideration. Instead, all the other factors are to be added up along with the wishes of the child. The other factors need to be of the nature that fulfil the purpose of the welfare principle.

Wishes of the child are of even more importance than the demands of the parents. However, it does not mean that it is the sole criteria as it has not been provided in the statute. All other questions whether the prioritizing of child’s belief is not in any way unfair to the wishes of the parents.

When shall the welfare principle be applied?

The courts and the judges are required to be taking into consideration the aspect of the welfare of the child as to how will he be taken care of, whether he will be getting required facilities like education, food, proper upbringing in the guardianship of another person.

Justice Bracewell in a case explained what ’upbringing’ means. He stated that the bringing up, taking care for, timely treatment if needed, all education needs and instruction to the child, all added means that the child is being brought up. This is irrespective of the fact that the child has biological parents or substitute parents i.e. guardian or next friend, etc. This word has a wide scope and can be used as any one of the applications.

Welfare principle is not just to be applied in the cases where there is a dispute between the parents, but it has been seen in the above mentioned case of J v. C that even in a dispute relating to any issue involving the parents and any third party, this principle is to be applied by the judges. For example, there has been an issue of guardianship between the parents and the testamentary guardians. Court has to apply this principle to see what’s best for the child.

When shall the welfare principle not be applied?

Section 1 of the Children’s Act, 1989 states that the welfare principle should be applied only when the question is of the upbringing of the child or any issue relating to the property or any income arising from that property. Any other issue that is brought up in front of the court, the judges and the court shall not apply this principle as it is expressly mentioned in the statute. However, the judges are given the discretion to consider the welfare of the child but it is not required to make it a priority.

Also, it has been noticed that the welfare principle is not to be applied by the judges where a decision is to be on the arrest or detention of a parent for breach of a court order connected to the child.

In a recent case of Purvi Mukesh Gada v. Mukesh Popatlal Gada, it was held that welfare principle will be the top in a list of all other pros and cons that have to be considered by the court. In this case, the court gave custody of the child to the mother as the child was performing well in academics and hence it was concluded that even though the child had no problem with the father, the guardianship being with mother will be better for their performance academically.

In times when it is better for any other court to try the matter about the custody or guardianship of the child, the court should not take the onerous duty to decide upon that matter. In the case of Surya Vadanan v. State of Tamil Nadu (10), the court gave guidelines to the mother to bring the children to the United Kingdom for which the expenses will be paid by the father. The court observed that the children were living in India for a period of 2 years and had settled down in the lifestyle in India, hence it was for their welfare that they shall be allowed to live in India and it is to be ensured that all the things mentioned in the guidelines are complied with. Any failure to compliance of the guidelines on part of the mother will result in a transfer of custody to the father who can then take the children to the UK. She was later required to put up a strong stand before the foreign court in the UK. As the courts were not closely related to the facts, it was left to the foreign courts to ascertain other factors like social and cultural aspects for the welfare of the children.

Conclusion

Through all these years, the interpretation of Section 13 of the Hindu Minorities and Guardianship Act, 1956 has changed. In the recent judgements as listed above, the dynamics surrounding this concept of ‘Welfare Principle’ has been laid down in different ways and it is important to do so to ensure what is best for the child which is the substance of this statute. Through this article, the reader will get to know the grounds for considering the welfare principles, when and when not to consider this principle. There are various judicial pronouncements mentioned to expand the answer to different situational questions that the reader may have.

References

1. (2009) 1 SCC 42.
2. [2001] ZASCA 139.
3. AIR 1992 SC 1447.
4. 2008 (3) RCR 936 (SC).
5. (2010) 2 SCC 654.
6. AIR 1991 Cal 76.
7. 2015(3) RCR 153 (SC).
8. HL 19 Feb 1969.
9. AIR 1989 Cal 165.
10. AIR 2015 SC 2243.

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed the concept of institution of suit by or against the government or public officers. In addition to this, the article provides an analysis of numerous subtopics associated with Section 79, Section 80 and Order 27 of Civil Procedure Code.

Abstract

Under the Civil Procedure Code, the subject of suits by or against public officers in their official capacity has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should be understood that Section 79 of CPC is a procedural provision and hence, it does not deal with rights and liabilities enforceable by or against the government [1]. But at the same time, it declares a mode of the procedure when the cause of action arises. On the other hand, Section-80 of CPC is not a procedural provision but a substantive one [2], the rules involved in it and working of Section 80 will be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects like that of recognized agents, attorney general and the procedure to be followed while the suit is being filed by or against the government or public officers in their official capacity. This article tries to analyze the three sections in detail and provide an overview of the same in a clear-cut way.

Analysis

Section 79 and 80 are defined as follows under the Procedure of Civil Code-

Section 79- This Section defines the concept of suits by or against the government: Whenever a case is filed against a government or if it is filed by the government, the plaintiff and the defendant who will be named in the case will be as provided under:

• Whenever the case is instituted by or against the central government, the Union of India will be represented as the required plaintiff or defendant respectively.
• Whenever the suit is filed by or against the state government, the state government will be required to act as the plaintiff or the defendant.

Section 80- This section deals with the concept of Notice. According to this Section, there exists no onus for the institution of a suit against the government without issuing a notice regarding the same, this includes the state of Jammu and Kashmir. With respect to institution of a suit against a public officer with respect to the act done by him in his official capacity, there is again a need for issuance of notice regarding the same. Further, the notice should be served two months prior to the institution of the suit and it should be made sure that such a notice was delivered or left at the office of:

• Whenever the case is against the central government, and it does not relate to the railways then, the notice should be delivered to the secretary of the government.
• Whenever a case has been instituted against the central government and it relates to the railways then, the notice is to be served to the general manager of that railways.
• Whenever the case is instituted against any of the state governments then, the notice is to be served either to the secretary to that government or to the collector of the district.

Scope of Section 79

For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a need for further fragmentation of the Section into various subtopics like that of the jurisdiction of Section 79 and the institution of suit against the railways which will be looked into in the next part of this article.

Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the government but at the same time, it does not deal with the rights and liabilities enforceable by or against the government body [3]. In the case of Jehangir v. Secretary of State [4], an important observation was made which was that this section gives no cause of action but only declares the mode of the procedure when the cause of action arises.

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC Nath & Co. [5], it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in Section 18, 19 and 20 of code, do not apply to the government [6].

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim against railway administration can be brought against the Union of India or State, and this may not include making the railway administration a part of the suit. But on the other hand whenever there is a requirement for a suit for freight for carrying goods, then such a suit can be instituted by the Union of India, and this was held in the landmark case of Union of India v. RC Jall [7].

In the case of Secretary of State v. Rustom Khan [8], there was a significant observation made regarding the liability to be sued, under Section 79 of CPC. No suit could lie against the East India Company in respect of the act of state or acts of sovereignty, and therefore no suit in respect of such acts would be competent.

Section 80

This part of the article will include under its ambit the detailed analysis of Section 80 of Civil Procedure Code, and for the purpose of better understanding, the subtopics are to be studied by breaking them down under the Section of nature and liability, contents of the notice, effect of non-compliance and waiver of notice.

Nature and Object

The object laid down by this Section is- there should be an opportunity conferred on the part of the Secretary of the State or the Public officer to reconsider his legal position in order to make amends or settle down the claim if so advised. This can further be done without litigation or afford restitution or without recourse to court of law [9]. Whenever a statutory notice is issued to public authorizes, they are required to further take notice in all seriousness and they are not required to sit over it and force the citizen to the redundancy of litigation.

Contents of the Notice

Notice under Section 80, is required to contain the following aspects: name, description, residence of the plaintiff, the cause of action and lastly the relief which the plaintiff claims. Also, the notice is required to convey to its recipients, sufficient information to enable him to consider the claim, which was held in Union of India v. Shankar Stores [10]. The above-mentioned particulars should be given in such a way that, it enables the authorities to identify the person giving the notice.

Effect of Non-Compliance

Non-compliance with the requisites of this Section or any omission in the plaint which is required would result in the rejection of the plaint under Order 7, Rule 11.  If the suit is against a public official and a private individual, and no notice is served on the public officer, the plaint is not to be rejected but the suit is carried on with the name of the public officer struck off.

Waiver of Notice

As the requirement of the notice is just procedural and not substantive, and as it is for the benefit of the public officer or the government, it is open to government and public officers to waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue on the point, this was held in the case of Lalchand v. Union of India [11].

Order XXVII

1- Suits by or against the government- It should be noted that in any suit by or against the government, the plaint or the written statement should be signed by such a person, as the government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur Hosiery Mills [12], in this case, it was held that the sanction to sign must be prior to the institution, and if not complied with this, the signing shall be by an incompetent person, and further, issuing of a retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as an agent for receiving processes issued against the government. Also he is the only person to intimate the court that he is representing the government and no stamped power of attorney or vakalatnama is required for the same [13].

Lutfar Rahman v. State of West Bengal [14]. In the aforementioned case, it was held that when a person other than the government pleader wants to act as an agent, it is possible only when the government agent intimates the Court that the former is acting under his directions. Rule 5 of Order 27, has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the government- The court may, in any case where government pleader is not accompanied by person on the part of the government and if he is able to answer the questions relating to suit, the court may direct the attendance of that person [15].

Comments and Suggestions

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an added advantage while dealing with the case, clause (2) and (3) were added to Section 80 by the amendment of 1976. Sub Clause (2) has been inserted to permit the institution of the suit without notice, but it must be accepted only after giving a reasonable opportunity of showing cause in respect of relief claimed [16]. Sub-section (3) on the other hand prohibits the dismissal of a suit where the notice has been served but suffers from certain technical deficiencies.

It should also be taken into consideration that there exist various instances where there were widespread abuse and misuse of the concerned section by the government and public officials in order to dispose of the litigation on the grounds of technicality, and this aspect of the provision should be given more attention in order to overcome the negative aspects which exist in it. Moreover, sub-section (3) was included in the Section in order to offer a better clarification that no suit against the government or a public officer can be dismissed merely on the grounds of existence of defect or error in the notice.

Conclusion

Hence, all the three provisions which bring to light the various procedures and rules involved in the suit by or against the government or a public officer have been discussed and analyzed in detail. It can be said that the applicability of these sections must be determined by the law as it stands [17]. Further, if the procedure lay down by the rule in these sections is not followed, then the court is to proceed with the footing that there is no appearance of government pleader on behalf of the public officer. And lastly, the rules laid down in Order 27 are to be strictly abided by while filing a suit.

In addition to all the above-mentioned aspects, the sections regarding suits by or against the government and public officers also specify the procedure to be followed while filing of a writ and also what steps to be taken when there is permanent suit on appeal or if there is a revision.

There is also mention of the nature and applicability of Section 80 of the civil procedure code, and this section drags its attention towards the matter whether the serving of notice is a mere formality or is it a mandatory aspect under the section. Lastly, the section also deals with the aspect of what acts come under the arena of official capacity.

References

1. Ankit Vardhan, Suits by or against Government (Section 79 – 82 CPC), Legal Bites – Law and Beyond (August 2, 2017, 12: 10 PM), https://www.legalbites.in/suits-by-or-against-government-section-79-82/.
2. Namrata Shah, SECTION 79, 80 OF CODE OF CIVIL PROCEDURE 1908, Aaptaxlaw  (JUNE 7, 2016, 11: 30 AM), http://www.aaptaxlaw.com/code-of-civil-procedure/section-79-80-code-of-civil-procedure-suits-by-or-against-government-notice-section-79-80-of-cpc-1908-code-of-civil-procedure.html.
3. AIR 1930 All 225 (FB)
4. (1903) ILR 27 Bom 189.
5. AIR 1950 Cal 207.
6. Devika, Section 79 CPC detailed, The SCC Online Blog (October 5, 2018, 10: 10 AM), https://blog.scconline.com/post/2018/10/05/order-27-rule-5-cpc-mandates-the-court-to-ensure-disputes-concerning-public-undertakings-are-resolved-amicably-arbitrator-appointed-therefor-sc/.
7. AIR 1958 MP 425.
8. 68 IA109 AIR 1941 PC 64.
9. Adarsh Gill, Code of Civil Procedure 1908 section 80,  LegalCrystal (MAR 03, 2011, 2:45 PM), https://www.legalcrystal.com/cases/search/name:code-of-civil-procedure-1908-section-79.
10. AIR 1974 Ori 85.
11. AIR 1960 Cal 270.
12. AIR 1997 Raj 10.
13. Mulla, Code of Civil Procedure (Abridged) 390-406 (ed 523)
14. AIR 1954 Cal 455.
15. AIR 1980 P&H 318.
16. 3 Justice M.L. Singhal, Suranjan Chakraverti, Bholeshwar Nath,  Civil Procedure Code 412-35 (ed 347.05).
17. 7 C.K Takwani, Civil Procedure with limitation Act, 1963 426-37 (ed 347.05)

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This article is written by Namrata Kandankovi, student of Symbiosis Law School Pune. The author of this article has discussed in brief, various aspects regarding joint tortfeasors, modification of law with respect to joint tortfeasor and applicability of the law of torts.

Definition

When a tort is committed by several persons, all the persons involved in it become joint tortfeasor. In addition to this, all persons will be responsible for the same tort and will be deemed to be joint wrongdoers in the eyes of law.

Now, at this point, it becomes important for one to understand that in order to establish the wrong committed by joint tortfeasors, there must be some connection between the act of one alleged tortfeasor to that of the other.

Sargent L.J words regarding this can be quoted as follows – “There must be a concurrence in the act or acts causing damage, and not merely a coincidence of separate acts, which, by their conjoined effect, cause damage.”

For Example– In Palghat Coimbatore Transport Co. V. Narayana– There was a collision between two buses which resulted in the death of one of the passengers, further in a suit filed by the representatives of the deceased under Fatal Accidents Act, it was held that the owners of both the bus companies would be liable.

With regard to joint tortfeasors, the following three prepositions can be taken into consideration-

Circumstances under which joint liability arises

Agency- The concept of agency provides that, whenever one person employes, authorises or procures another person to commit a tort, the law takes into account the wrong of both of them and eventually, both the principal and the agent become jointly and individually responsible for the actions of the agent.

Arneil v. Paterson – In the aforementioned case, two dogs at a concert which belonged to different owners, attacked a flock of sheep and injured many of them. When a suit was brought against the owners of the dogs, one of them put forth a claim that he would be liable only for one-half. But it was finally held that both the owners will be liable for the whole damage, as each of the dogs occasioned the whole of the damage.

Vicarious liability- Vicarious liability is a concept in law, whereby, the liability is assigned on a person who did not commit the wrong but has a superior legal relation with the person who actually committed the wrong. The situations of vicarious liability mostly arise in case of employee and employer relations. In the case of vicarious liability, both, the person who commits a tort and the person vicariously liable for the wrong are deemed to be joint tortfeasors.

Joint or common action- In the law of torts two or more persons are said to be joint tortfeasors if they act jointly in the tort or a same suit of action is followed if one defendant has incited another to commit the tort.

There are two principles involved in joint or common action which will be discussed under

Accessory Liability– In the context of English common law, liability for participating in another’s tort is considered to be a form of joint liability, but at the same time, it is ambiguous whether procurement is a concept which is different from that of a common design or if it is a subset of it. Considering it on a whole it can be concluded that the law favours procurement as a subset of law rather than taking it as a form of common design.

In support of this, a judgment was given in the case of  CBS Songs Ltd v Amstrad Consumer Electronics plc whereby it was held that procurer is a joint tortfeasor only if he shares the design of the primary tortfeasor.

Tort of Common Design–  In the case of Fish & Fish Ltd v Sea Shepherd UK, it was taken into account that in order to establish accessory liability on a person, two elements are necessary to be proved, which are, one- the defendant acted in a particular way and this was the reason which led to the occurrence of the tort by the main actor. Two, the main actor would have further done so in pursuance of a joint plan or “Common Design”. There is no established test for determining the common liability and it varies from one case to another depending upon the facts and circumstances of the case.

The nature of joint tortfeasor’s liability

There are various circumstances involved when it comes to liability of joint tortfeasors:

1. The nature of liability of joint tortfeasor always acts in the advantage of the plaintiff or the injured party and lays down numerous provisions by the way of which justice can be served to the plaintiff. It is always at the discretion of the injured party or the plaintiff to either sue one of the many joint tortfeasors for the whole damage caused to him or to make all the tortfeasors liable for all the damage incurred by him.
2. Defendants who are jointly liable for a tort have an inherent liability on them up to the full amount of the judgment awarded to the plaintiff. A successful plaintiff, on the other hand, has an option of either collect the entire amount from one defendant or to take it from all of them collectively. Illustration- If there are two defendants A and B, and in an aforesaid suit against them, Defendant A is found to be at 60% fault and defendant B is found to be at 40% fault. Now if C is the plaintiff in this case, C has the discretion to either collect the entire amount from A or B or to collect the amount in regard to each person’s liability.
3. The second aspect dealing with the nature of liability of tortfeasors throws light on the release of tortfeasors. It formulates that the release of one tortfeasor would result in the release of all tortfeasors. The reason behind such nature of liability is the “Cause of Action”. The cause of action in torts is always one and indivisible, and release of one person from that cause of action results in the release of all joint tortfeasors who were held liable. Furthermore, the intention of the parties has no role to play in the release of the tortfeasors. Further, a mere agreement to not to sue a particular wrongdoer has a completely different perspective and can be variedly different from the release of the tortfeasors.
4. The third aspect draws the attention of the plaintiff or the injured party towards the bar placed on him in regard to the “Future Course of Action”. Put in simple terms, the third aspect can be explained as follows – When a judgment is passed or obtained against one or more tortfeasors, it would place a bar on the injured party to further initiate any suit against any particular tortfeasor or all of the tortfeasors collectively.
5. However, this was the situation earlier, the recent developments in the area of joint tortfeasor have come up with a view that judgment obtained against one tortfeasor is no bar to initiate an action against another tortfeasor for the same cause of action. But at the same time, it is a well-established principle that the sum recoverable through the way of damages cannot exceed the amount of damages which was awarded by the first judgment. This particular modification in the law of torts was brought by The Law Reform (Married Women and Tortfeasors) Act 1935.
6. One of the loopholes involved in the case of joint tortfeasor is that it can make a defendant end up paying damages which are disproportionate to his liability in the suit. Such instances come to light in case of insured and uninsured defendants. If any one of the defendants in the suit has a deeper pocket or larger insurance policy then he may be under an obligation to pay most of the damages even when he was not a primary defendant.

Contribution between joint tortfeasors

This section of the article would carry forth the discussion on the loophole involved in the liability between the joint tortfeasor, whereby one of the defendants may be forced to pay the whole share, even if he has a secondary involvement in the tort.

1. The concept of contribution between the joint tortfeasor lays down that a tortfeasor who is forced to pay the disproportionate amount to the injured party has no right to claim such a share from other or other parties.
2. This particular principle is based on the maxim ‘Ex Turpi Causa Non Oritur Actio’, this maxim lays down that, No action arises from an illegal cause. More detailed meaning of the maxim can be quoted in the following manner- A person who suffers damage at the hands of another, but in addition, he himself has acted in an unconscionable manner should be deprived of any remedy which the law would have otherwise provided.
3. In an English case, Everet v. Williams – Where the plaintiff and the defendants were partners in highway robbing and by the way of it collected 2000 pounds, and then when the plaintiff filed a suit for the share of the sum, the court dismissed the suit on the grounds of it being Scandalous and Impertinent.     

Merryweather v. Nixon

1. This was a landmark where it was laid down that, in common law, a wrongdoer cannot maintain an action for contribution against another wrongdoer, even when the one seeking contribution would have satisfied the full claim of damages. And this rule is popularly known as Merryweather v. Nixon Rule.
2. The facts of this case involved the following – M and N conjointly destroyed the machinery which belonged to R, eventually, R brought an action against both and obtained a claim of 840 pounds by way of the judgment delivered in his favour. The whole amount was levied on M, who again sought contribution from N for half of the amount by filing a suit against him. The court laid down that M could not recover.
3. The rule of Merryweather v. Nixon existed and had wide applicability but it existed with several exceptions to it and these exceptions will be discussed in detail in the forthcoming segment of the article.

Exceptions to the rule in Merryweather v. Nixon with regard to contribution between wrong-doers

The application of the well-established rule was later limited to the course of time where the cases specifically revealed willful and conscious wrongdoing by the defendant, and the exceptions regarding this rule are listed as under:

1. The rule was not applicable in cases which involved negligence or where there was an unintentional breach of law.
2. Not applicable in cases of Indemnity, where one man employed another to do certain acts, provided the acts were not unlawful in themselves by the way of their existence, for the purpose of asserting a right.
3. Not applicable where there exists a right of contribution between the directors or promoters of a company who are jointly liable for the misrepresentation contained in the prospectus.  This aspect is covered under section 62 of Companies Act 1956.
4. Taking into consideration admiralty action in case of collision, it can be said that, whenever such actions are involved, the damage caused by a vessel by collision with another vessel will be borne equally by both the vessels.

Abolition of the rule in Merryweather v. Nixon

The case of Merryweather v. Nixon was decided by the King’s Bench in 1799 by Lord Kenyon, C. J. It was a Court of Common Law as distinct from a Court of Equity. But it later stood abolished by The Law Reform (Married Women and Tortfeasors) Act, 1935. This act provides for the following:

• In contrary to the previous law, the tortfeasor can now recover contribution from other tortfeasors who is also liable in respect of the same tort, it may be either jointly or otherwise.
• While recovering the amount from the tortfeasor, it is essential to make sure that the amount is just and equitable and in addition to this, it has a regard to the extent of the defendant’s liability to the aforesaid tort.
• The court has discretion in any given case to exempt a tortfeasor from the liability to contribute.

Whether the rule in Merryweather v. Nixon applies in India?

Prior to the abolition of the rule of Merryweather v. Nixon, the courts in India had a conflicting opinion regarding the applicability of the rule. There have been numerous cases where the rule of Merryweather v. Nixon was followed in India. It was freely applied by the courts where the parties knew or ought to have known that they were indulged in wrongdoing.

In contradiction to this, the High Courts of Allahabad, Calcutta and Nagpur had stringently held that the rule does not have any applicability in India. The rules laid down and followed by these courts was that a tortfeasor would have every right to recover compensation from the other joint tortfeasor who was also liable for the same tort.

Considering the present scenario, it can be said that the rule in Merryweather v. Nixon, which does not comply with Justice, Equity and Good Conscience, which was further abolished by the court of England and was rightly rejected from being applied in several courts in India.

Conclusion

The article has covered under its ambit, numerous concepts, case laws and provisions related to the concept of the joint tortfeasor. It showcases the rigid and reasonable use of tort law and through the way of which there can be justice served in the interest of the society. There have been changes and modifications brought in the tort law regarding the liability of joint tortfeasors, in order to make it come in line with the changes evolved in the society over the passage of time. Further, wherever there was wrong being done on the part of the defendant with regard disproportionate to claim of damages by the plaintiff in case of joint tortfeasors, such provisions have been keenly dealt with and there have been modifications made in order to serve and protect the interests of the defendants.

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This article has been written by Subodh Asthana, a second-year student of Hidayatullah National Law University, Raipur. The has discussed some essential points and merits of Legislation as a source of law.

Legislation means the process of lawmaking. Legis means law and Latum mean “making”, and as a whole it means lawmaking. According to Austin, it means the making of law by a supreme or a sovereign authority which must be followed by people of every stratum of the society. Salmond defines Legislation as the process of lawmaking by a competent and able authority.

Legislation is the process of lawmaking where a competent authority is given the task of drafting and enacting the law in a state. It is also said to be a strict concept of lawmaking because there is only one body which is entrusted with the work of lawmaking and also there is no scope of any alteration as such because of codified and watertight laws which leave a very minuscule range of the amendment.

Definition of Legislation

According to Salmond: “Legislation is that source of law which comprises in the assertion of lawful standards by a competent specialist.”

According To Austin: “Legislation is the command of the sovereign or the superior authority which must be followed by the common masses backed by sanctions”.

According to Gray: “Legislation implies the formal expression of the administrative organs of the general public.”

According to Positivist School: “A run of the mill law is a rule and legislation is the typical source and form of lawmaking.” Most examples of this school don’t affirm that the courts additionally can figure law. They don’t concede the case of custom as a wellspring of law. Consequently, they view just legislation as the form of law.

According to Historical School: “The legislation is the least innovative of the forms of law. The authoritative motivation behind the legislation is to give the better framework and increasingly viable the custom which is unexpectedly created by the general population.”

Historical School usually don’t perceive the legislation as a form of law.

Types of Legislation

Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to give, to authorise, to allow, to proclaim, to confine and to annul. Therefore in enacting any legislation and the rule of law, the welfare of the citizens must be kept in mind and therefore, it is must be adopted in the best interests of the citizens.

Some different types of legislation are as follows.

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Supreme Legislation

The Supreme legislation is the legislation adopted by the sovereign intensity of the state. In this manner, some other authorities which are the organ of the state cannot control or check it. It is considered incomparable as well as lawfully powerful. An established piece of this rule can be found in Dicey’s book, ‘The Law of the Constitution‘.

There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent. Even though there are different constitutional amendments upon its capacity, it isn’t subject to any other administrative authorities inside the state. Therefore the sovereign jurisdiction of the state can’t be revoked, cancelled or constrained by some other authoritative organ of the state.

Subordinate Legislation

Subordinate legislation will be legislation by some other authority than the Supreme specialist in the state. It is made under the powers designated by the Supreme authority. Such legislation owes its reality, legitimacy, and continuation to the Supreme expert. It can be cancelled and abrogated anytime by the power of the sovereign authority and therefore, it must offer an approach to sovereign legislation. Subordinate legislation is liable to parliamentary control. Five unique types of subordinate legislation can be distinguished. These are as follows.

Colonial Legislation

The nations which are not autonomous, and are under the control of some other state have no Supreme capacity to make law. Such countries can be in different classes such as colonies, domains, secured or trust regions and so forth. The laws made by them are subject to the Supreme legislation of the state under whose control they are. Therefore it is subordinate legislation.

England has had numerous colonies and territories. The laws made by them for the self-government are subject to modification, nullification or supersession by the legislation of the British Parliament. As the colonies are free, accomplished freedom and practically all the British domains have an unlimited power for legislation, hence sooner rather than later, we might have this class of subordinate legislation no more in existence.

Executive Legislation

At the point when legislative powers are delegated by the designated official to an executive, it is called executive legislation. Even though the significant capacity of the official is to execute the laws and carry on the organisation, he/she is continuously dependent on some subordinate enactment powers. Today, for all intents and purposes of each law sanctioned by the lawmaking body contains assignment statements giving law-making powers by the official to the executive in order to enhance the statutory arrangements.

Judicial Legislation

Powers delegated to the judicial system to make and implement their own laws to maintain transparency in the judicial system of the country. This will also ensure that there is no involvement of any other organ of the government in the governance of the judicial system of the state.

Municipal Legislation

Municipal bodies are offered powers to make bye-laws concerning their neighbourhood matters. Bye-law made by a neighbourhood body works inside its individual area. In India, such municipal bodies are Municipal corporations, Municipal Boards, Zila Parishads, and so on.  There is a move for allowing extensive powers to Panchayats. Along these lines, there is a plausibility of extension of this sort of subordinate enactment in our nation. Balwant Rai committee appointed by the Parliament gave some parliamentary reforms needed in the Panchayat system of the country. The recommendations were later on incorporated in the Constitution by 73rd Amendment.

Autonomous Legislation

At the point when the Supreme authority gives powers upon a gathering of people to administer on the issues depended to them as a gathering, the law made by the last is known as the autonomous law and the body is known as a self-ruling body. A railway is an independent body. It makes bye-laws for the guideline of its organisation, and so on. A college is likewise a self-governing body. Even some universities in India have been granted the status of autonomous bodies.

Delegated Legislation

• Delegated(subordinate or subsidiary) Legislation alludes to those laws made by people or bodies to whom parliament has delegated law-making powers.
• Where Acts are made by Parliament, a Principal Act may cause arrangement for Subsidiary Legislation to be made and will to indicate who can make laws as such under that Act.
• Delegated Legislation can just exist in connection to an empowering or parent Act.
• Delegated Legislation contains the numerous regulatory subtleties essential to guarantee that the arrangements of the Act will work effectively. It might be directed by Government Departments, Local Councils or Courts.
• Guidelines and Statutory Rules are the most widely recognised types of Delegated Legislation. They are made by the Executive or a Minister which apply to the overall public. By-laws, and once in a while Ordinances are made by a Local Government Authority which also applies to the general population who live around there. Principle and Parent Act regularly depict methodology to be followed in Courts if there is any flaw in a delegated law.

Advantages of Legislation as a Source of Law

Verifiably additionally the legislation has dependably been perceived as a significant wellspring of law as contrasted and different sources. There are two apparent explanations behind the legislation is viewed as a standout amongst the most significant sources of law. Right off the bat, it includes setting down of legitimate principles by the lawmaking bodies which the State perceives as law.

Besides, it has the power and authority of the State. It is hence said by Dias and Hughes that conscious law-production by a legitimate power, i.e. the State is called ‘legislation’ which gave that sovereign is correctly perceived as the supreme power by the courts. Relative Merit of Legislation over Precedent and customs have been discussed below.

Some main advantages of legislation are as follows.

1. Abrogative Power—It can change or annul old law, which control isn’t controlled by different sources.
2. Effectiveness—It separates the elements of making law and overseeing it between the Legislature and the legal executive.
3. Declaration — it gives that principles of law will be known before they are authorised.
4. Reliance on Accidental Legislation — Legislation is independent and emerges out of as the authoritative source of law it need not hold up until the original case of legislation.
5. Unrivalled in Form — It is predominant in structure, brief, clear, effectively available and understandable as against case law, which is an increase of sense in a considerable amount of pointless issue.

Precedent and Legislation

1. The legislation has its source in the process of law which is basically enacted and enforced by the State while the precedent has its origin in ancient and historic judicial pronouncements.
2. Legislation has an authoritative force on courts by the assembly. However, precedents are made by the courts themselves.
3. Legislation signifies formal declaration of law by the governing body though precedents are acknowledgement and use of new standards of law by courts in the administration of equity, justice and good conscience.
4. Legislation is ordered before a case emerges. However, the precedent appears simply after the case has developed and taken for the choice of the court.
5. Legislation is basically of an exhaustive structure while the extent of legal precedent is restricted to comparable cases as it were.
6. Legislation is commonly and generally forthcoming while precedent is retrospective in nature.
7. Legislation is announced or distributed before it is brought into power, on the other hand, precedent comes into power on the double, i.e. when the choice is articulated.
8. Legislation is finished with the goal of the lawmaking process yet it isn’t so on account of the precedent. The precedent which incorporates ratio decidendi and obiter dicta are expected to settle a particular contest on the purpose of law once for all.
9. It isn’t hard for people, in general, to realise the law instituted by lawmaking body yet the precedent dependent on the case law isn’t effectively known to the general population. Now and again, the attorneys who manage law are themselves oblivious about the current case-law. Therefore it makes a precedent of an ambiguous nature.
10. Legislation includes law-production by deductive strategy while case-law is made by resorting to an inductive technique.

Legislation and Custom

1. The presence of legislation is basically by law, while customary law is wholly accepted in a particular boundary.
2. Legislation is enacted out of hypothetical standards. However, customary law becomes is adopted because of its very well and long presence in history.  
3. Legislation as a source is indeed a long lasting nature of law, as contrasted to the custom which is the most established type of law and is followed by a particular sect
4. The legislation is a fundamental characteristic for a present-day society while the customary law was created in a crude social order.
5. Legislation is finished, exact, written in the structure and effectively open. However, customary law is generally unwritten am non-scriptum and is hard to follow.
6. Legislation results out of the deliberations while custom develops inside the general public in the ordinary course.

Demerits of Legislation

There is no source of law which is perfect and totally complete in its form and sense, some lacunas and loopholes could be easily found in every source of law which is as follows in the case of legislation.

1. Unbending nature—Law in the legislation is inflexible though the law in the precedents is versatile and adaptable.
2. In view of Hypothesis — Legislation, for the most part, continues on speculative certainties, by considering the existing environment and surrounding in which the established law is frequently observed to be blemished in its application to the mind-boggling issues emerging in genuine life though piece-scratches develop out of the commonsense exigencies and convenience.
3. An excessive amount of Importance to the Wordings—Legislation appends a lot of significance to its wordings. Thus, if the articulation is faulty, the law in itself gets effectively turned. In the precedents, the wording matters close to nothing as there is a genuine introduction which performs separate checks on the applicability of precedent as a source of law. Same goes with the customary law as well.

Conclusion

Legislation is therefore regarded as the most important source of law in the prevalent times. Hence it is considered to be the codified form of law which is commanded by the sovereign to the common masses, and it becomes a predicament situation to regard legislation as the authoritative source of law.

Legislation is one of the foremost and most important source of law in today’s world. Most countries in today’s world regard legislation as an essential source of law and follow this system of lawmaking. Although some lacunae and loopholes are there which exists in the present form but then too the difficulties such faced are relatively less than that faced from the other sources of law viz. custom and precedent as legislation as a source of law tries to bring uniformity by avoiding the ambiguity.

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed the ethics which a public prosecutor or government attorney has or is supposed to have.

What are Ethics?

The first thing one should know is what exactly ethics includes. Ethics is the branch of philosophy or it can be said that ethics is a narrow concept whereas philosophy is a wider concept. Ethics are something which helps one to make decisions in life or which actually guides our lives in various ways. As every being has a different personality, similarly ethics are different for different beings. When clearly said what are ethics for one person may or may not be the ethics for others. For instance, drinking alcohol may not come under ethical values for one person but it can be ethical for the other person to drink alcohol.

What are Professional Ethics?

“Professional ethics can be defined as professionally accepted standards of personal and business ethics, value and guiding principles.” Professional ethics are actually what a professional is supposed to do during various faces of life. It can also be said that the standards or the basis on which a professional is supposed to take decisions are exactly what defines professional ethics. For instance, honesty is one of the most fundamental ethical values a professional should have. Every profession has ethical values and every professional involved in that profession should follow such ethics.

Professional ethics are different from general ethics in various characteristics. A professional should be an expert in his field which makes him different from a person who knows very little about that particular field. A professional is supposed to be competent and skilful. He should be updated with all the changes related to his field and should constantly keep researching. The most important thing is a professional should act in an ethical value, being a professional always creates various responsibilities which one must uphold.

Different Legal Spheres

There are various legal spheres. Some of them are specified below:-

1. Litigation
2. Corporate law (law firms and companies)
3. Public Prosecutor
4. Judicial Service
5. Intellectual Property law firms
6. Legal Academia
7. Alternative Dispute Resolution
8. NGOs and Think Tanks
9. LPO
10. Tax Law
11. Judge Advocate General
12. Legal Journalism

• Litigation– It is actually a way to settle a problem or some controversy between two or more persons, organizations and the State by taking that issue before the Honorable Court by either party involved in that issue for settling that issue through a legal method.  Litigation is not actually a legal method but a process which involves a series of steps leading to the judicial opinion which is said to be Judgment.
• Corporate Law– It is related to all the corporations, their formations, dissolutions, their operations, the contracts involved different corporations and conflicts among them.  According to the Consumer Protection Act of 1986, a corporation is a legal entity. A lawyer pursuing a career under corporate law will be working for a high profile corporate. This field rarely includes courtrooms and related tasks.
• Public Prosecutor– It is also a kind of lawyer who does not work on its own instead represents the government or acts on behalf of the government in the court. The word Public Prosecutor itself defines a lawyer of the government and he is against the accused in a crime. Public Prosecutor also looks after the police that they are following all the rules and regulations during the investigation conducted by them under a crime.
• Judicial Service– This generally includes all the judges at different posts. All of them have the same work i.e. of giving judgments but their powers differ from each other. The decision of the Supreme Court is binding on all courts and similarly, decision of judges of the High Court is binding to all the lower courts. Whereas the judges of the lower court do not have such power.
• Intellectual Property Law Firms– These are the ones in which lawyers protect the different intellectual property of different firms. Intellectual Property is actually one of the branches of Corporate Law.
• LPO– “Legal Process Outsourcing is the industry in which in-house legal departments or organizations outsource legal work from areas where it is costly to perform, such as the United States or Europe to areas where it can be performed at a significantly decreased cost, primarily India.”  This field is rapidly growing for the past 10 years.
• Judge Advocate General– The Indian Army has their separate legal advisors which usually consist of military persons who are the legally qualified officers. As the Indian Army has its different laws and justice according to them differs from justice for the public. Therefore they have their own branch to look after the legal issues and give legal advice to their commanders.     

Ethics for a Public Prosecutor

A perfect Prosecutor must think about herself/himself as a specialist of equity. In India, we have an open prosecutor who acts as per the directions of the judge. Typically, control of the whole proceeding is in the hands of a preliminary judge. An examination is the right of the police. The general public prosecutor in India does not appear to be a promoter of the state as in the prosecutor needs to look for a conviction at any cost. The prosecutor must be unprejudiced, reasonable and honest, as an official as well as on the grounds that the prosecutor has a place with the good calling of law, the morals of which request these characteristics. In India, the criminal equity framework should work inside the system of the Indian Constitution. Concisely, the standards articulated in the Constitution are as infra:

• Assumption of blamelessness- Accused should always be presumed to be guiltless.
• Equality- The certification of equity under the steady gaze of law.
• Break even with Protection- Each and every accused to be given equal insurance of the laws. The blame on an accused must be demonstrated after all predictable doubts are cleared.
• Double Jeopardy- Protection against double jeopardy to be given to the accused.
• Disallowance of discrimination- Prohibition of discrimination forced upon the State.
• The privilege of the charged to stay quiet.
• Capture/detainment must be as per law and legal rules.
• Speedy Trial.

The Role of the Public Prosecutor

It is not the function of a Public Prosecutor to resolutely look for a conviction paying little heed to the confirmation however his/her central obligation is to guarantee that equity is conveyed. The Indian legal system has not specifically mentioned the role of a Public Prosecutor but after analysing several cases it can be observed that:

• The perfect Public Prosecutor isn’t worried about securing the conditions imposed on him by different departments of the State Government with which she/he has been in contact. He should think about herself/himself as a specialist of equity. The Allahabad High Court had decided that it is the obligation of the Public Prosecutor to see that equity is vindicated and that he ought not to get a corrupt conviction.
• A Public Prosecutor ought not by declaration infuriate the argument against the accused, or hold back a witness since her/his confirmation may weaken the case for the accusation. The main function of a Public Prosecutor is to help the court in finding the truth. A Public Prosecutor has to maintain a deliberate distance from any procedures liable to threaten or unduly impact witnesses on either side.
• A Public Prosecutor should put under the watchful eye of the Court whatever confirmation is in her/his ownership. The obligation of an open Prosecutor isn’t only to anchor the conviction of the blamed no matter what, however, to put under the watchful eye of the court whatever proof is in the ownership of the accused, regardless of whether it be agreeable to or against the accused and to leave the court to choose all such confirmation, whether the accused had or had not submitted the offence with which he stood charged. It is as much the obligation of the Prosecutor as of the court to guarantee that full and material facts are quickly recorded so that there probably won’t be premature delivery of equity.
• The obligation of the Public Prosecutor is to speak to the State and not to the police. A Public Prosecutor is a vital officer of the State Government and is selected by the State under section-24 of Code of Criminal Procedure, 1973. She/he isn’t a piece of the examining office and is a free statutory expert. She/he is neither the mail station of the examining office nor its sending office, yet is bound by a statutory obligation.
• The motivation behind a criminal proceeding isn’t to support a hypothesis, but to research the offense and to decide the blame or blamelessness of the blamed and the obligation for the Public Prosecutor is to speak to not the police, but rather the State and her/his obligation ought to be released by her/him reasonably, manly and with full awareness of others expectations that connects to her/his position. There can be no way of uncertainty that Parliament proposed that Public Prosecutors ought to be free from the control of the police officer.
• A Public Prosecutor should fulfil all of his obligations imposed on him by the State and shall make sure that justice is served. He cannot be forced by police to reveal any facts or any information regarding the accusation but he is answerable to the State if called upon.
• The Andhra Pradesh High Court had decided that trial ought not to mean oppression and it is the duty of the Prosecutor to be careful and reasonable for the accused and not to look for the conviction of the accused in every one of these cases. It additionally expressed that it is the duty of the courts to see that the decision of declaration of a guilty party ought not to be given to a private gathering. The Court likewise said that if there is nobody to control the circumstance when there is a probability of things turning out badly, it would add up to an illegitimate way of declaring the punishment for an accused.
• A Public Prosecutor can’t show up for the benefit of the charged. It is conflicting with the morals of legitimate calling and reasonable play in the organization of equity for the Public Prosecutor to show up for the accused.
• It is an obligation on the Public Prosecutors to highlight the reality for the steady gaze of the court. Reasonable proceeding means a proceeding under the watchful eye of a fair-minded Judge, a reasonable Prosecutor and air of legal quiet. The Prosecutor who does not act decently and acts more like a direction for the resistance is an obligation to the reasonable legal framework.
• The District Magistrate or the Superintendent of Police can’t arrange the Public Prosecutor to move for the withdrawal, in spite of the fact that it might be available to the District Magistrate to convey to the notice of the Public Prosecutor and recommend her/him to consider whether the charge imposed on the accused should be pulled back or not. Be that as it may, the District Magistrate can’t order and can just prescribe on this matter.

Present situation of Public Prosecutors

• Zahira Habibullah vs. State of Gujarat, where the direct of the ”BEST BAKERY” case in the Hon’ble Gujarat High Court, including the torching of a foundation in Vadodara which caused the demise of 14 people, came up for thought under the steady gaze of the Hon’ble Supreme Court, prompting what Rajeeva Dhavan has portrayed as ” The severest trial ever of the Justice and administration framework of any State”. The Hon’ble Supreme Court requested retrial of the issue in The Hon’ble High Court of Maharashtra, and saw that in Gujarat, ” The Public Prosecutor seems to have acted more as a guard of the accused than one whose obligation was to introduce reality under the steady gaze of the Court”.
• In R K Jain’s case,  the Hon’ble Supreme Court held citing Shamsher Singh v. Territory of Punjab, as regarded, the importance and substance of official forces tend to regard people in general prosecutor’s office as official. Be that as it may, the conclusion of a few courts makes the question as to its correct nature. To the proposal that people in general prosecutor ought to be unbiased (a legal quality), the Kerala High Court correlated the general population prosecutor with some other insight and reacted accordingly: Every material evidence and fact which is to be represented in the court of law is required to be reasonable and honest. He should obviously, advocate the reason for his client as proficiently and adequately as could be allowed, yet reasonably honestly. He isn’t relied upon to be unbiased yet quite reasonable and honest. [Aziz v. Territory of Kerala (1984) Cri. LJ 1060 (Ker)]
• In Jitendra Kumar Ajju vs. State (NCT of Delhi) Crl. W.P. 216/99, Delhi High Court, it was seen that In the Criminal Justice System that the role which is performed by a Public Prosecutor for the State has been portrayed as a role of Minister of Justice who assumes a basic part in keeping up innocence and biases in the field of organization of criminal equity.

What is an Obligation for the Public Prosecutor?

The commission of a criminal demonstration is regularly viewed as an offence against the State which is managed by the Criminal Justice System of the State Executive. In this way, on an exhaustive examination of the above statement, it is completely clear that it isn’t the obligation of Public Prosecutors to ensure conviction at all cost. Nor, is their obligation to go about as an avenging plot for the casualty. Despite what might be expected, their major obligation is to guarantee that equity is conveyed and incompatibility of, this they should lay under the watchful eye of the court all significant confirmation including the proof that supports the charged.

End product to this is the obligation of a Public Prosecutor to convey to consideration of the Court, any issue that the police officer could have raised, however, has neglected to do. In any case, in doing as such, they can’t go about as though they are protecting the casualty, nor would they be able to show up for the benefit of the charged. At the point when the Prosecutor proves in a way as though she/he was protecting the accused, at that point, there is no reasonable proceeding.

Rules on Professional Standards of Advocates as mentioned by the Bar Council of India

There is no mention of a specific code of conduct for government attorneys. But there are some rules mentioned by the Bar Council of India in Chapter II, Part VI of Bar Council of India Rules which are common to both private advocates and government attorneys. These rules are also placed in sec-49(1)(c) of the Advocates Act of 1961. All these rules are mentioned below-

Rules on an Advocate’s Duty towards the Court

1. Respect the court–  An advocate should always keep in mind that maintaining respect and dignity towards judicial office is necessary for the survival of a free community and therefore it is essential for an advocate to always show respect towards the court.
2. Refuse to act in an illegal manner towards the opposition– It is one of the rule that an advocate should always act in a fair and unbiased manner even towards the opposition party. He should also try its best to stop his client from adopting any illegal or improper methods.
3. Appear in proper dress code– An advocate should always appear presentable and in dress code as prescribed by the Bar Council of India.   
4. Not to wear bands or gowns in public places– An advocate should never wear his gown or band in any public place unless there is any ceremonial event or event prescribed by the Bar Council of India or court.
5. Not to appear in matters of pecuniary interest- Where an advocate has any pecuniary or financial interest it is a rule that he should not plead for that matter or act in any way regarding that matter. For instance, he should not plead in a matter of bankruptcy where he is a creditor of that bank.

Rules on an Advocate’s duty towards the Client or the Party

1. Not to withdraw from service- An advocate one agreed for serving should not except in special circumstances withdraw from serving his client or the party.  
2. Not to suppress material or evidence– An advocate should play fair and should not exercise any unfair practices which lead to the conviction of an innocent and acquittal of the accused. He should not try to suppress any material or evidence related to the case which can bring a remarkable change in the case.
3. Not to disclose communications between client and himself- It is popularly known as a contract of disclosure which is an implied contract under sec-126 of the Indian Evidence Act, 1872. This section imposes a mandatory obligation on an advocate to not to disclose any information shared by his clients or the party.
4. Full and frank disclosure– It is one of the rules that an advocate should disclose about his connections with the parties if any. He should make full and frank disclosure to the party if he himself has any personal interest or in engaged in the case in some way. He should not forget to make such disclosure if his interest or engagement in the case is likely to affect the decision of the presiding judge.
5. Not to appear in matters where he himself is a witness– An advocate should never represent a party in a matter where he himself is a witness or he has a reason to believe that he might become a witness in due course of events.    

Rules on an Advocate’s Duty towards Fellow Advocates

1. Not to advertise or solicit work- An advocate is not allowed to advertise himself or solicit work in any manner such as by circulars, advertisements, touts, personal communications, interviews other than through personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
2. Not to promote the unauthorized practice of law– It is the duty of the advocate to not permit the use of his professional services or his own name for promoting or initiating any unauthorized practice of law.

Reported Misconducts by Advocates

Contempt of Court as Misconduct

Contempt of court refers to an offence of disobeying any orders passed by the court or disrespecting the court of law. A judge has been given the authority that if someone is found guilty of contempt of court it can impose sanctions such as fine or jail. India has divided contempt of court into civil contempt and criminal contempt and sec-2(b) and sec-2(c) of Contempt of Courts Act, 1971 defines them respectively. Many cases have been reported of contempt of court by advocates and the recent one is that Apex Court of the Court held an advocate namely Mathews J Nedumpara guilty of contempt because he alleged that sons and daughters of judges were given priority over others’ in awarding the designation of “senior advocate”.  

Strike by Advocates

Advocates usually go on strike when their demands are unheard by the court of law or when they ask for some legitimate actions to be taken by the court but these conditions are not fulfilled. Whereas the Supreme Court had declared several times that lawyers cannot go on strike as it leads to the delay in delivering justice to the common masses. After advocates in Uttarakhand went on strike for 455 days i.e. from 2012-2016, the Supreme Court has decided to take strict action against the advocates or bar councils who passes a resolution for going on strike. Strike by advocates is one of the reasons behind huge pendency of cases in India.

Misleading the Court

One can normally find some advocates misleading the court by suppressing some material facts or wasting the precious time of a court by bringing up some frivolous issues in the court of law. Many such cases are reported on a daily basis and there are some cases in which the court has imposed fine on the advocate misleading the court, for instance, Madras High Court imposed a cost of Rs 10,000 on an advocate who filed a frivolous case in the court.  

Conclusion

A Public Prosecutor is an autonomous substance from police and police can’t arrange her/him to lead arraignment especially. Police, legislators or some other incidental gathering can’t impact her/his activities, including her/his circumspection to choose withdrawal of a case. The Public Prosecutor speaks to the State yet not the police and must be affected by open intrigue. Incompatibility of their obligations, open prosecutors ought not to utilize inappropriate techniques figured to create wrongful feelings and she/he should release her/his capacities in a conscientiously reasonable and fairway.

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This article is written by Anshika Gubrele, second-year BA LLB student at Bharati Vidyapeeth New Law College, Pune. In this article, she discusses the concept of Malicious Prosecution and its position in England and India. The author has also laid emphasis on the laws related to Malicious Prosecution in both the countries and discussed the important case laws related to it.

Introduction

With the continuous evolution of various legal systems across the globe, the noxious and malicious elements have also materialized themselves strongly and have continued. Their aim of launching attacks to weaken the legal machinery, by embarking upon them.

The tort of malicious prosecution is one such development which has spread its roots into the legal systems and has at times made it look like it is not the legal system which is good enough to deal with issues of such magnitude. Even though the adversarial procedure of the court hearing demands that facts be produced along with justification which in the legal sense would be deemed as enough for supporting the cause. Even if after scrutiny of such facts the bench or the magistrate dismisses the claim, measurable damage has already been done.

As it is an established fact that society punishes an individual more than the law, it is more evidently seen in issues of this nature where the victim of such suit (defendant in original suit) faces stigmatization in every sphere. Though over the years the courts of UK have come up with remedies and various provisions, courts in India are still busy dealing with a backlog of such cases, because of which any concrete, as well as an effective way, has failed to materialise itself in the legal system.

What do you mean by the term” Malicious Prosecution”?

The term ‘Malice’ in common parlance means ill-will against a person. In the legal sense, it refers to a “wrongful act done intentionally without just cause or excuse.” The term prosecution means “ a proceeding in a court of law charging a person with a crime”.

‘Malicious Prosecution’ means” a prosecution on a charge of crime, which is willful, wanton or reckless or against the prosecutor’s sense of duty and right.”

Concept of Malicious Prosecution

Settling tools or as to bring someone down to the negotiation table to obtain pecuniary benefits. The prominent and most common of all the remedies for such a victim are cross suits claiming damages for initiation of a malicious suit. Such suits have become prominent and to name a few can be seen in the recognition of the tort of malicious prosecution has been done to act as a safeguard for individuals, dealings with such claims which are known to the complainant as false and are mostly based on wrongful motive. Such suits have commonly come into play and are mostly seen as score cases of medical malpractice, suits under criminal offences, punishment for which is penal in nature and a few suits under various other acts.

A defendant (plaintiff in the original suit) must prove reasonability in filing such suits and, must provide such facts which would have led any person in his place acting rationally to come to the same conclusion as he came upon when he filed the suit. A person while bringing forward a suit claiming damages for suit filed maliciously must prove that he was acquitted by a competent court and the filing of such suit was done by the original plaintiff (defendant in this case) without any reasonable and probable cause.

While the question of probable cause arises, a defendant cannot claim that he initiated prosecution under the order of a competent body which itself was moved by the intel provided by such individual, for the cause of justice would be defeated and any person claiming so could evade the law and simply walk away.  However, a person acting upon the information provided to him by any competitive person, if acts on such advice and files a suit, he would not be held liable for, the element of malice was absent and anyone in his shoes would have acted similarly upon presentation of such facts before him.

In cases where there was suspicion, of cognizable offence this, however, would not be a good cause of action as suspicion and claim must be differentiated the former being based on facts which would have led any person to believe in possibility and not outright presence of guilt. Determination of the fact, who the prosecutor is, essential while bringing a cross suit claiming damages for such prosecution. A prosecutor is that person who set the law in motion, it can be an ordinary person, an individual associated with the administration or for instance police, or even a magistrate but, the rationale isn’t who proceeded but who was it that instigated or initiated the claim. A judicial authority can only be said to be a prosecutor when it can be proved without any doubt that he had knowledge that the claims were false or he had an element of disbelief in relation to the facts of the case but still proceeded with it.

A person can however, be deemed to be a prosecutor when he filed a suit alleging such facts which he had reason to believe are not substantially true and based on those facts the magistrate ordered a probe and the defendant in that suit was prosecuted. A point must be clearly understood that the mere filing of a complaint viciously would not usually amount to the tort of malicious prosecution if, the magistrate dismisses the complaint as disclosing that to be no offence, this wouldn’t be a prosecution but a failed attempt to set the criminal law into motion.

As has been outlined in the case of Mohammed Amin V. Jogendra Kumar it would be a prosecution when the Magistrate takes cognizance of the complaint which then is followed by an examination of such complaint by means of inquiry in open court under sec 202 of CrPC the prosecution is deemed to have commenced. Various courts across the globe have had their views of what can be called as a prosecution which has not been solved but further added up to the pre-existing ambiguities regarding the same.

The Bombay High Court in Ahmedbhai V. Framji observed the commencement of prosecution shall be deemed to have begun not when the magistrate takes cognizance and acts as per the provisions but, when he is approached, and a complaint has been made maliciously with a view of such a complaint being entertained by such magistrate. However, a prosecution cannot be said to have been initiated unless there have been processes issued by the magistrate with respect to such a complaint, which too has been affirmed by the Calcutta and the Madras High Court.

For a successful claim for damages of malicious prosecution, it has been held by the courts that the original prosecution must have been for an offence which is criminal in nature and which is punishable by imprisonment and fine or both. This has been a drawback of the legal system of India, which has failed to acknowledge the fact that multiple times there is enough damage caused to the individual’s repute even though the prosecution is for a civil wrong, but the courts in India have ruled out that possibility in various instances. This development has been seen in England that irrespective of the nature of the complaint, whether it is one of criminal or civil nature, a suit for malicious prosecution will be maintainable.

However, for a suit which is demanding damages for malicious prosecution for a civil complaint, the plaintiff would have to show special damages which were incurred by him in maintenance of such suit against him. This has again been held in a recent English case that it would not be just a limitation of law for nor being able to maintain such suits claiming damages for a suit filed maliciously under any civil act, but it would be severely unjust on behalf of the victim of such suit.

Time and again the needs have been voiced for the recognition of claims for a suit filed maliciously under civil laws but, neither the judiciary nor the law-making body has taken steps to address such problems being faced by the public at large. England has been updating its laws as per the time demands but, the laws in India are nowhere near what could be called a competent law to deal with such claim.

What are the essentials required to constitute Malicious Prosecution?

In an action for malicious prosecution, the plaintiff has to prove that –

1. He was prosecuted by the defendant.
2. The defendant acted without reasonable and probable cause.
3. The defendant was actuated with malice
4. He (the plaintiff) was acquitted
5. He (the plaintiff) suffered damage.

• Prosecution– The plaintiff has to prove that the defendant instituted a false criminal proceeding against him before a judicial, quasi-judicial authority or a tribunal.
• Without reasonable and probable cause– The plaintiff has to prove that the defendant prosecuted him without reasonable and probable cause.
• Malice– The plaintiff has to prove that there was malicious intent on the part of the defendant in instituting criminal proceedings against him.
• Acquittal or Termination of criminal proceedings– The plaintiff has to prove that the criminal proceedings against him were terminated and he was acquitted. An action for malicious prosecution cannot be maintained if the plaintiff is convicted.
• Damage– The plaintiff has to prove that he suffered loss or damage or injury as a consequence of the prosecution complained of (by the defendant). The damage may be with reference to the plaintiff’s person or property or reputation.

Illustration- A makes a false complaint against B, alleging that B had committed theft with a view to compel B to deliver some property to him. Here A is liable for Malicious Prosecution.

How Malicious Prosecution can be distinguished from False Imprisonment?

False Imprisonment                                  

It imposes total restraint upon the personal liberty of a person. It is procured by a private individual or by an authorised official by asserting legal authority and is prima facie, a tort. There need not be any proof or malice on the part of the defendant.

Malicious Prosecution

It does not impose total restraint upon a person. It is procured by judgment or judicial order.

It is not a tort by itself. Further, in the case of Malicious Prosecution, the plaintiff has to prove malice on the part of the defendant which is not a case in false imprisonment.

Position in England

Until recently, defendants who were successful in defending a malicious claim, the nature of which was civil, did not have any redress. The rationale reiterated by the bench while passing the judgements used to be that the successful defence of a claim merely should not give someone a cause of action for claiming damages for that suit being malicious in nature and filed without any reasonable belief, just to make the defendant undergo ordeals. A person usually has remedies if the suit filed was criminal in nature as such a suit had potential to cause calculable and graver damages to someone’s goodwill and lower his image in the eyes of such members of the society who considered such individual a person of good virtue. This is not something new, rather it has been done on numerous occasions when the ambit of the tort was widened, one such instance is a suit filed under the Companies Act 1862 which shall be further reviewed for a better understanding of how the tort evolved in England.

In, The Quartz Hill Consolidated and Gold Mining Company, the facts were that the defendant, a shareholder in the plaintiff company and approached a broker to sell the shares owned by him for which the deed was duly signed by him and handed over to the said brokers. The shares could not be sold for some reasons and the defendant was informed of the same, however, the papers of transfer were not returned to him. Based on this fact he filed a suit after waiting for around 10 days for winding up the company and cited reasons of incompetence. The defendant was an owner of 100 shares of the firm each of whose value was 1 pound, but the valuation at the time of the sale of the shares fell to approximately 1/3 of it. The defendant claimed in the London Gazette that the company was offering properties in Colorado, United States of America for much more than their actual valuation in order to benefit from it and gain a promotion in the market. It was also alleged that their prospectus falsely claimed that the mining ventures they were putting up for sale was too valuable and would be a good investment for someone.

Later, the person was informed that the shares had been sold and hence he ceased to be a shareholder in that company to which he responded by sending a notice to the court requesting the dismissal of the suit filed by him which was eventually dismissed by the courts at no extra cost. This had an adverse effect on the business of the company and it hit a further low of 30% as the article published by the defendant brought disrepute to the firm and also, it went on to lose the trust of the investors owing to such articles defaming the company. Hence, they brought a suit against the defendants for wrongfully and maliciously filing a claim under the companies act which resulted in loss of business.

This being a suit of civil nature the remedies were limited, and the court held at first that no damages could be awarded and negated the claim keeping these parameters in mind firstly, there was no evidence which could show special damages secondly, there was no evidence of malice on the part of the prosecutor and thirdly, no action of this kind could possibly lie under any such circumstances. However, a suit would probably lie under a claim alleging a claim which was brought forward wrongfully but the above-mentioned parameters were not one of those. It was proved beyond doubt that there was some mismanagement in the affairs of the company and these circumstances are grounds which are enough as to the situation in which the defendant was as he bona fide brought forward this claim and not under any ill will.

It might be argued that mistake of fact is not an excuse under such a claim, but it can also be argued that there was an absence of an intention to injure the plaintiff company which for a suit of such nature to succeed is a prime requisite. Under this when a suit is dismissed a judge might award a company nominal damages as per the act. This claim resembled the want of adjudication under The Bankruptcy Act 1869 and as it was an analogous claim to one under the bankruptcy act, it would be maintainable. Any person who wrongfully sets either criminal or civil law in motion viciously shall be deemed as liable.

The court said it was vexatious for someone to bring a suit against someone just because the company had failed in the objective for which it was originally formed. The bench citing various other reasons dismissed the suit as not good enough to be granted any damages for maliciously filing a suit for winding up the company. Although the court held the defendant liable for bringing a suit on unreasonable grounds which injured the credit of the company the bench in unanimity rejected a claim to award special damages to the firm as they could not after thorough inspection not conclude that liability to pay any extra cost could be a ground for legal damage

Position in India

There are provisions in India for dealing with malicious proceedings of only criminal suits and a claimant usually has no remedies if such proceedings were instituted under any civil law other than any Municipality Act. As has been seen in England cases of such a nature are given a greater degree of importance, the backlog of cases and other drawbacks such as ways those are not only illegitimate but also draw a calculable degree of mockery on the legal system itself. Such cases drag for years and sometimes decades and the ordeal of the claimant turns out to become graver as time passes and he/she is left without a remedy but, must bear the expenses in maintenance of suit.

The English legal system has been flexible enough as per the changing times but the conservative approach of Indian lawmakers hasn’t really worked out for the public good as there are still no remedies for such civil claims which defame the person and one can only claim for damages when he/she can show such damages which in the eyes of the court would be called as special damage which should be causa causans of the complained act. The rationale of prosecution is a bit different than that in England, it is deemed to be a prosecution when it has reached a stage where calculable damage has been caused to the party defending that suit. For a detailed insight into the concept, we reviewed a judgement by the Calcutta High court which later went on to be cited while deciding many other cases.

In Mohamed Amin V. Jogendra Kumar Banerjee and others agreement was entered upon by the appellant and the first respondent for sale of a few commodities to a company which was to be formed by the first respondent. In the process, the first respondent incorporated a second respondent for carrying out the purchase and half of the agreed goods were transferred by the appellant. Later it was discovered that the respondent had breached the terms of the agreement which was entered upon, as a result of which the appellant refused to honour it and did not transfer the remaining goods. As a result of which the second respondent acting in his personal capacity and on behalf of the other respondent filed a suit under section 405, 420, and 422  of the Indian Penal Code and demanded that he be answerable to such charges. The magistrate held an inquiry in an open court attended by the appellant and dismissed the claim stating there is no cheating committed in this case and breach which exists is of purely civil nature.

The appellant brought forward a suit for malicious institution of criminal proceedings against him, to which the judge affirmed but observed the bench must stick to an earlier judgement by The High Court of Judicature of Calcutta in Golap Jann V. Bholanath khettry where it was observed that it cannot be deemed as prosecution if there is no issue of any processes or where the complaint was dismissed by the magistrate upon inspection of the complaint, citing the above precedent the claim of the appellant was dismissed which the bench observed to be rightly decided.

How can India deal with malicious suits?

As it has been observed in England, how voids were filled in the landmark case of Willers V. Joyce, similar steps can be taken in India as well. The judges have the independence of evolving new laws or filling voids in between the existing laws which might turn obsolete as time passes. Law is a living entity and like all other living entities, it cannot remain the same and must go through a state of transition when the society needs it to. In India suits nature of which are malicious are mostly criminal and an absence of remedies for a suit filed maliciously under civil laws is of least concern over here but the laws governing the suits of criminal proceedings are also insufficient. One such example is poorly drafted women laws. Many women till date have capriciously filed suits to obtain benefits but the victim of such suits has got no remedy.

The Indian legal system has over the time failed to address actual authentic cases and this can only be changed if the judges while deciding a case leave their conservative approach behind and evolve laws of which they have got absolute discretion. The courts must stop revisiting the incongruous judgements and turn towards framing new laws as per the changing time demands. One such instance can be discarding the doctrine which defines what can be called as a prosecution as it always differs from case to case, for instance in a suit inquiry might inflict sufficient amount of insult onto someone and successfully bring down their image whereas, in another case a complaint itself might have a potential to bring harm to someone’s reputation in the society of which such individual is an inhabitant. Not only should remedies be a concern for the courts’ measures such as taken by China must be taken wherein a person filing a suit of which he has knowledge to be false is heavily fined and such individual is also then barred from appealing to the court for a substantial amount of time.

Indian lawmakers should plan on setting up a Criminal Cases Review Commission as has been set up by the United Kingdom for review of criminal cases to discover whether there has been miscarriage of justice. The commission works exclusively for ascertaining if there has been miscarriage of justice in cases by scrutinizing the facts and upon finding such a scenario where there is sufficient proof endorsing a claim where justice has not been delivered in the way it should be those cases, are then referred for appeal along with their reports.

Though there have been observations made by the apex court on several occasions while dealing cases of malicious prosecution where justice has not been delivered yet, the lawmakers have failed over and over again to capitalise on that fact and has miserably failed to come up with a legislation or for the instance even amendments which would serve for the cause in the short run and at the same time is used to frame relevant laws by conducting further research as to what is best suited to the legal system of India. It is often blamed on the courts when such fiascos occur but, if one analysis carefully it is the authority charged with carrying out such investigation, neglect on whose part has amounted to perversity and on the contrary have paved the way for forces which are gaining an upper hand for more such fiascos.

There has been a flagrant violation of the idea of natural justice as all these attempts to set the law in motion wrongfully to satisfy their plebeian selves and are going unpunished as the redresses available to the victims are not only scarce but also outrightly inefficient. The perpetual instances have been alarming enough and the need is now being felt more than ever before for competent legislation, which would deal with such acts.

Conclusion

The recognition of the tort of malicious prosecution has been done to safeguard individual interests, dealings with such claims which are known to the complainant as false and are mostly based on wrongful motive. The malicious suits which have been on the rise, in absence of a concrete legislative framework which could help arrest, these trends where the legal procedure is being abused in order to gain wrongful benefit by subjecting parties to suits which are filed with a capricious intention. As there are no legal provisions which exclusively deal with such cases where there has been a miscarriage of justice, the article has scrutinized the legislative framework of England and also the approach of the courts over there, when it comes to dealing with those suits.

Bibliography

• Bangia, RK (2017). Law of torts, 24th edition.
• Ratanlal & Dhirajlal (2016). Chapter XIII. Law of torts, 26th edition.
• Hay, Douglas C (1989). Prosecution and Power: malicious prosecution in English courts, 1750-1850
• Goudkamp, James (2017). A tort is born: a practical perspective of the tort of malicious prosecution of civil proceedings.
• SCC Online, http://www.scconline.com
• Law Commission of India (2017) report 277: wrongful prosecution (miscarriage of justice)- remedies.
• Kisner, Pearl (1976). Malicious Prosecution: an effective attack on spurious medical malpractice claims.
• Harper, Fowler v. (1937). Malicious Prosecution, False Imprisonment and Defamation.
• Mallen, Ronald E (1979). An attorney’s liability for malicious prosecution: a misunderstood tort.
• Byrd, Robert G (1969). Malicious prosecution in North Carolina.
• Okpaluba, C (2013). Reasonable and probable cause in law of malicious prosecution: A review of South African and Commonwealth decisions.
• White, AM (1966). Damages for injury to feelings in malicious prosecution and abuse of process.
• Garbett, Katherine & Karagoz, Mehmet. Fraud insight: malicious prosecution of civil claims.
• Shaw, Malcom N (2017). International law, Cambridge University press.

The post Malicious Prosecution- A comparative analysis of the position in England and India appeared first on iPleaders.

This article is written by Mr Ravi Karan Kakkar, a sales and finance strategist who has a rich experience of working in India, Singapore, Saudi Arabia, and Indonesia. Ravi is currently on an assignment in Jakarta, Indonesia, and is pursuing Diploma in Companies Act, Corporate Governance and SEBI Regulations with LawSikho.com.

Introduction

NFRA rules notified ICAI wings clipped – Read the headlines of newspapers when the Indian government notified about independent regulator of auditors. Prima facie, it seemed that ICAI role as a supervisory authority for auditors was weakened due to the formation of NFRA. However, the same is not true that can be testified upon an exhaustive review of the NFRA policies.

The decision to constitute NFRA was taken after the auditor’s role came under the scanner during famous multi-crore banking fraud at Punjab National Bank. In a layman language, National Financial Reporting Authority is a legal watchdog of the auditing profession. While ICAI was mandated to keep an eye on erring auditors, however, it made sense for the government to empower themselves with this responsibility.

ICAI is dead?

The market is differentiated in their opinion on this move by the central government to constitute NFRA. While already the auditing profession is regulated by various regulatory bodies such as ICAI, SEBI, and MCA; it was evident that adding another layer of a regulatory body which is superseding all other regulators would create ripples in the industry. Formation of NFRA leads to nationwide protests by members of ICAI who were of the opinion that government is trying to strip off their administrative powers leaving them with no other option but to only be a coaching institute. There is no doubt that an unprecedented power has been given to NFRA that has established their supremacy over any other laws. However, in a wider scheme of things, it may seem logical as it may lead to an efficient bifurcation of work between ICAI and NFRA.

What is the rationale behind the formation of NFRA?

Any government in power is responsible for anything & everything happening in the country.  People started blaming the government for not being able to regulate the banking sector scams. When you are being blamed for something, it is imperative that you should have complete control over the sector. In this case, the power to regulate the sector was delegated in the able hands of ICAI. However, due to the magnitude of corporate frauds, it was sensible on part of the government to vest control in their hands. That in no way supersedes the efficacy of ICAI, but in a broader perspective, it will enhance the veracity of auditing profession which is the sole purpose of ICAI as well as NFRA.

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NFRA has the power to monitor and enforce compliance with accounting and auditing standards, oversee the quality of service under sub-section 2 of sec 132 of the companies act 2013, and investigate under sub-section 4 of sec 132 of the companies act 2013 for-

• all the listed companies (whose securities are listed on any stock exchange within India or abroad).

• Unlisted public companies with paid-up capital >= INR 500 Cr or annual turnover <= INR 1000 Cr or total outstanding loans, debentures, deposits <= INR 500 Cr in preceding financial year,

• Insurance companies, banking companies, electricity generation/supply companies, companies formed under the special act,

• Any company referred by the central government,

• The associate/Subsidiary company whose income/net-worth exceeds 20% of consolidated income/net-worth of a company which falls under above 4 points.

Basic details about NFRA

NFRA Formation Committee

• NFRA shall consist of the chairperson to be appointed by the central government with experience of not less than 25 years in accountancy, auditing, finance or law.
• Three full-time members to be appointed by the central government with experience of not less than 20 years in accountancy, auditing, finance or law.
• Nine part-time members to be appointed by the central government. Part-time members should be representatives from MCA, CAG, RBI, SEBI, ICAI.
• The total number of members in a committee should not exceed 15 including part-time and full-time members.

DISCLAIMER: All the members should make a declaration to the central government in a prescribed format stating there is no conflict of interest in their appointment.

Full-time members should not hold any position in any audit or consultancy firm during the course of their engagement and 2 years henceforth after leaving NFRA.

Functions of NFRA

• Recommending auditing and accounting policies and standards to the central government.
• Ensuring compliance with regards to auditing and accounting standards.
• Overseeing the quality of service of the professionals
• Power to investigate any corporates and individuals registered as members under the Chartered Accountants Act 1949.
• Code of civil procedure, 1908 will apply in matters such as asking the firm/individual to produce books of account, registers, any other documents; summoning of persons; issuing commissions for the examination of witnesses/documents.

Penalties/ Punishment

• If an auditor is proven guilty of a misconduct by NFRA, then under section 132 of the companies act 2013 NFRA has the power to impose fine of minimum INR 1 lakh up to 5 times of fees received in case of individuals/and INR 10 lakh up to 10 times of fees received in case of firms.
• The auditor (if proven guilty) registered as a member under chartered accountants act 1949 can be suspended for a period of 6 months or up to a max of 10 years as per the ruling of NFRA.
• Further as per companies rules (The National Financial Reporting Authority Rules 2018) – In case of non – compliance, any officer/company/auditor in default shall be punished as per sec 450 of the companies act 2013.

Provision to Appeal

• An aggrieved person can appeal to appellate authority against the order passed by NFRA.
• The appellate authority shall consist of a chairperson and 2 other members to be appointed by the central government.

Compliance requirements for NFRA and Appellate Authority

• The officer authorized by the appellate authority shall submit an annual report to the central government giving a full account of its activities in the financial year.
• Appellate authority to follow prescribed rules with regards to qualifications for appointing chairperson & members of the appellate authority, manner of selection, T&C of their service and requirement of support staff.
• NFRA shall submit an annual report to the central government giving a full account of its activities in the financial year.
• Central Government may appoint secretary and employees in NFRA.
• Head office of NFRA shall be at New Delhi. NFRA to maintain books of accounts and other books in such manner as Central Government & CAG prescribe.
• NFRA accounts to be audited by CAG.

Disclosures

• As per NFRA Rules (2018) issued by MCA – body corporates governed by the rules shall disclose details about their auditor in Form – NFRA 1within 30 days of commencement of rules.
• Body corporate shall inform the authority about the appointment of auditor in Form NFRA-1 within 15 days of his/her appointment.
• Eligible auditors as per rule 3 of the NFRA rules 2018 shall file a return with the authority on or before 30th April every year.

Conclusion  

Committee formed by the honourable Supreme Court of India to strengthen the audit regulatory process recommend the formation of National Financial Reporting Authority. However, among many rules laid down by the committee, the cabinet did not pass the network liability in the rules. Committee recommended monetary penalties on an international network with which Indian audit firm is a party to.  The power given to NFRA to question not only defaulting individual auditors but also audit firms is a step in the right direction which was missing in Chartered Accountants Act, 1949.

Audit firms are bound to disclose the names of defaulting partner/s, failure to disclose the same will result in by default action on all the partners and employees of the audit firm. Thus employees of the audit firms are also under the scanner of NFRA, therefore there should be a greater sense of ownership and awareness among the employees now. The clause that any company referred to NFRA by the central government can be monitored and investigated brings practically all the private companies, body corporates, and various unlisted public companies under the umbrella. Probably next in line would be the implementation of a structure that enables auditors of parent companies to vet/approve the audits of subsidiary and associate companies. This will enhance the effort to bring overall transparency in the auditing process. How effective this entire exercise would turn out to be is still a question to be answered, however it is certain that the government has taken initiatives as per best practices followed in the international arena. Also, the authority is allowed to be a member of international associations of independent audit regulators thereby providing them with the freedom to take assistance from regulators based out of India during the investigation process of any auditor in India. The idea is to align Indian audit practices to best standards and simultaneously work on improving the quality of service by forging strong relationships with international organizations.

The authority can also take steps such as workshops, seminars, conferences with an endeavor to aware auditors about best accounting and audit standards. Monitoring/Ensuring Compliance/ Improvement of quality of service are three pillars of NFRA that would potentially lay a strong foundation for the Indian audit industry in near future.

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

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses the military justice system in India, its definition, origin, defects, reforms and the Armed Forces Tribunal.

Military justice (or military law) is the body of laws and procedures for the armed forces. Many nation-states have separate and distant law bodies that govern the conduct of the members of their armed forces. Some states use special legal arrangements and other arrangements to enforce such laws, while others use civil law systems. Legal issues unique to military justice include the preservation of good order and discipline, the lawfulness of orders, and military members’ proper conduct. Some states allow their military justice systems to deal with civil offenses committed by their armed forces under certain circumstances.

Military justice is distinct from martial law, which is the imposition on a civilian population of military authority as a substitute for civil authority, and is often declared in times of emergency, war, or civil unrest. Most countries limit when and how martial law can be declared and enforced.

Definition of Military Justice

It is defined as the body of laws and procedures that regulate the conduct and governance of armed forces members. Different countries have separate and distinct law-making bodies specifically designed to govern the respective countries armed forces. While some countries use different and separate judicial bodies and arrangements to administer justice, some countries use civil justice systems.

Origin of Indian Judicial System

Indian justice is one of the oldest legal systems in the world. Inherited from the legacy of the legal systems established by the British rule in India since the 19th century, it includes a common law legal jurisdiction system consisting of customs, precedents, and laws. At the highest level, the judiciary has a set hierarchy with the Supreme Court, followed by the respective high courts and district courts at the district level.

Military Justice in India

India has its own Army Act, the Air Force Act, and the Navy Act. These laws define the statutory provisions as being applicable to men and women in uniform. All these three Acts can be found on the official website on search. In India too, there are certain para-military forces that have laws similar to those that apply to defense services. This includes the Border Security Force Act, the Coast Guard Act, the Border Police Force Act of Indo-Tibet and the Assam Rifles Act. All of these acts are inspired by the Army Act.

The British had developed the system of military justice to “discipline” India’s people after the Mutiny of 1857. It is the basis for the 1950 Indian Army Law, the 1957 Navy Law and the 1950 Air Force Law. Before being adopted by independent India, only a few changes were made to the British laws.

For different reasons, the need for a separate justice scheme for the armed forces arises. Military functions require rapid decision-making. This can not be accomplished through discussions and debates. The subordinates carry out the orders of a commander. That’s why all military forces have a fixed hierarchy system. This puts all people in their position that is clearly designated. Military justice provides a catalyst for cultivating an unquestionable obedience habit by posing the threat of penalizing disobedience. Moreover, since the armed forces are not a deliberative body and have developed their own laws and traditions that recognize unique military offenses such as desertion, disobedience of orders, absence without leave, dereliction of duty, etc.

Defects in the Indian Military System

Together with the other acts of the different armed forces, the Army Act reflects the old justice system prevailing in British times and is therefore ridden with defects. Removing these defects is of utmost importance before they plague or deliver the system of military justice. Some of the shortcomings are:

• Right to bail- An arrested military person has no bail provision. The commanding officer or the superior military authority may decide to grant it on the basis of their discretion. The apex court has established the principles on which bail should be granted, but granting bail at somebody’s discretion is arbitrary and unreasonable and makes Article 21 of the Constitution meaningless.
• Military rules do not allow an accused to obtain a civil lawyer to defend him or to be defended by a military officer known as the defending officer. The lack of legal aid services is a serious infringement of Article 21.
• Trial in a Summary Court-Martial-  Trial of accused military personnel is held in a special court known as the Summary Court Martial. The SCM trial does not match the levels of justice set by the apex court and various high courts simply because there is no prosecutor and the SCM performs some of the functions of the prosecutor themselves. Serious infringement of Article 22 occurs when the accused can not defend himself with the help of a lawyer or a defense officer. SCMs have been severely criticized by the Supreme Court and High Courts for failing the just and fair reasonableness test.
• Double Jeopardy- Article 20(2) enshrines constitutional protection against double jeopardy. It is available in the military justice process, but this protection is not available before a civil court to prevent a second trial on the same offense.
• No right of appeal- There is no provision for the accused to appeal in a higher court. Section 164(2) of the Army Act states that a person who considers himself grieved by a finding or sentence of a court-martial may file a petition with the central government, the chief of the army or any prescribed superior officer in command of the person who confirmed the finding or sentence, and the central government, the chief of the army or any other officer may pass such orders as the case may be. This remedy is therefore not available to the accused before the sentence is confirmed. This remedy is also just a paper exercise and occurs in closed rooms where the accused does not have the right to personal representation. There is virtually no right of appeal against the court martial’s order.
• Members of Court Martial- Members are not trained to administer justice either legally qualified or not. They are under the different commanding influence and do not exercise their judgment completely independently in a trial.

Reforms in the Military Justice System

A large number of cases that have been brought before the higher civil courts shows that the armed forces’ justice delivery system has been moving at a very slow pace and has not been able to fulfill men’s aspirations in uniform. The total number of legal cases challenged by the Ministry of Defense and the headquarters of the armed forces is more than a lakh.

Antiquated

The system of military justice was found antiquated and out of step with the Constitution’s liberal spirit. There is a need to strike a fair balance between a democratic society’s pressures and military discipline’s requirements. The military justice system of India has its origin in England’s military laws. After the Mutiny of 1857, it was made by the British to govern natives and has some major flaws. They are-

• No bail shall be granted to the arrested military person on charges.
• Insufficient legal assistance to the accused during the courts-martial.
• The court-martial chairman and members shall be subject to considerable influence by the convening officer.
• The department of Judge Advocate General shall be placed under the administrative and functional control of the same executive.
• No appeal is lodged against the finding and sentence of a court-martial.
• The double-hazard constitutional protection provided for in Article 20(2) is not available to Air Force personnel to prevent a second trial before a civil court.
• The trial of a summary court-martial does not comply with the recognized standard of justice because there is no prosecutor and the court does not comply with it.

Glaring Deficiencies

In the field of human rights, judicial activism has generally kept clear the terms of service of aggrieved military personnel as well as the justice of the courts-martial. There are glaring deficiencies in the safeguards granted to the accused and the attitude of those administering the military justice delivery system. The justice system is considered part of the executive department and in fact, is simply an instrument of executive power to enforce force discipline.

It will not be correct to say that there is no need to reform the law since the number of people affected by military law is small or the members of the armed forces have voluntarily submitted to the existing system with all its flaws. The armed forces justice system should adopt a procedure that is not only open and objective but also aims at a liberal interpretation of the principles of natural justice. While the primary purpose of the military justice system must always be to maintain discipline within the organization, the focus must be on organizational effectiveness rather than punishing or protecting individual actions.

The wartime experiences of the United States and the United Kingdom’s specified the desirability of making the armed forces members’ rights and responsibilities ascertainable by reference to a single statute. In the U.S. has led to the adoption of the Military Justice Uniform Code.

The Armed Forces Tribunal in India

Since August 2009, the Armed Forces Tribunal and its Benches (each judicial and administrative member) have been operating. It has original jurisdiction over matters relating to service and appeals court-martial jurisdiction. In the last 5 years, 5,500 cases have been decided. The Tribunal is unable to execute its orders through civil contempt. An appeal may be brought before the Supreme Court of India against the Tribunal’s order. An amendment to the AFT Act 2007 to give the resentment of the armed forces in 2012 to civil contempt.

The AFT has no civil contempt authority. The Armed Forces Tribunal(AFT) has no jurisdiction in grievances concerning leave, posts, transfers, summary disposals and trials. A large number of cases have occurred in which the military or government has failed to take action on the Tribunal’s decisions. In its present form, the Indian military legal system is a hangover from a time when the battlefield was so far removed from the normal world that the armed forces had to be self-contained. Over the past two decades, the world has moved forward and major changes have occurred in other democracies’ military justice systems. It is time we reinforced our system and restored public confidence in the quality of military justice.

Conclusion

Military law provisions govern the role of Indian Army during peace and war formulated in the form of Statutes, Rules and Regulations. It is a written code which has seen periodic changes and review, apart from conventions of service. Individuals of the armed forces have their own justice system that is quite different from the common justice system. The legal and justice system of the armed forces was designed to be relatively swift in execution in order to maintain discipline and avoid the long absence of military and military duties from officers and men. The system of appeals has therefore not been included in the military justice system, as it is in the civil system.

As members of the armed forces, more than 1.5 million Indians are subject to the military justice system. This group still applies to a legal system designed and implemented after the Mutiny of 1857 in the name of discipline to serve the interests of colonial masters on Indians. In our country, the military justice system is rarely criticized- the notion that it is about defending the system, calling it  ‘time-tested’ is generally ignored. In addition, a veil of secrecy is drawn on military matters. There is a clear trend of change in the world’s military justice system in terms of the accused’s rights and human rights standards.

Some important elements of this change are the independence of judges, the establishment of standing courts, the right to legal representation and the increased right of the accused to choose a trail instead of summary procedures, the deficiencies of the Indian military justice system and human rights limitations must be provided by law and should be consistent with international treaty obligations.

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This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the Strict liability principle, its essentials, defences and how it evolved to the principle of absolute liability in India. The article also mentions the difference between strict and absolute liability.

Introduction to Strict Liability

The concept of strict liability was introduced in the late nineteenth century. It has been evolved from the concept of negligence which generally refers to a careless activity. It involves a duty of care towards one’s neighbours and breach of such duty results into damage caused to the neighbours. If there is negligence on the part of the defendant, he/she is held liable to compensate the plaintiff for the damage caused. Whereas, under strict liability, the defendant is held liable irrespective of the presence of any negligence on his part.

Strict liability was initially introduced in the case of Rylands v. Fletcher [1] in 1868. The case was treated as an aspect of nuisance or a special rule of strict liability. The defendant, in order to improve his water supply, constructed a reservoir by employing reputed engineers. There was negligence on the part of contractors that they didn’t seal the mine shafts which they came across while constructing the reservoir due to which water flooded into plaintiff’s coal mine resulting into damage to the mines of the plaintiff.

The plaintiff sued Fletcher for damages. The engineers were independent contractors and thus were not held liable. Justice Blackburn J. held the defendant liable by introducing the concept of strict liability which states that “The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. [2]”

It simply means that the defendant will be held liable without any negligence or ‘fault’ on his part. Thus it was proved out to be a ‘No fault liability’. It does not matter if the defendant has intended to cause such damage or not.

In other words, this principle held a person strictly liable if the following essentials are applicable simultaneously:

1. Some dangerous thing must have been brought by a person on his land: It is necessary that the thing brought on the land is dangerous. A dangerous thing is defined as something which poses an exceptionally high risk to the neighbouring property such as electricity, vibrations, explosives etc.
2. It must be non-natural use of land: It is the unusual use of land which amounts to special hazards, judged by the standards appropriate at the relevant place and time such as constructing a water reservoir.
3. The thing thus brought or kept by the person must escape: It is essential that the thing causing damage must escape in the area outside the occupation or control of the defendant such as the escape of extremely dangerous wild dogs from an individual’s property in the locality.
4. The damaged caused should be foreseeable to the defendant: Foreseeability of damage is essential to claim damages in cases of strict liability such as accidents in a cracker factory in very much foreseeable to the owner as well as workers of the factory.

Exceptions to Strict Liability

1. 1. Act of God: Acts which are occasioned by the forced nature and cannot be controlled by the agency of men such as earthquake, lightning, severe frost, storm etc. Comes under the category of the act of god.
   2. The wrongful act of the third party: The defendant cannot be held liable if the damaged caused is due to an inevitable accident or wrongful act of a third party.
   3. Plaintiff’s own fault: The defendant cannot be held liable in case damage caused to the plaintiff is because of his own default. For example, if the plaintiff enters into defendant’s garden without his permission and consumes some toxic fruits which caused damage to his health.
   4. Artificial work maintained for the common benefit of both plaintiff and defendant: The defendant cannot be held responsible for damage caused by a source which was equally beneficial to the plaintiff or either consented by the plaintiff such as sharing the same building or a common water resource.
   5. Acts of statutory authority: no one can be held liable for doing acts which the legislature has authorised provided it is done without any negligence on their part such as a municipal corporation.

Criticisms or drawbacks of Strict Liability

After the principle of strict liability was established, many cases were filed under the rule applied in the case of Rylands v. Fletcher. But, after dealing with various cases, the house of lords felt that the laws so formed in the nineteenth century were no longer applicable in this modern era. Most of the times it occurred that all the essentials of the principle were not applicable thus they didn’t found the cases to be justifiable. Some of them are discussed below:

Read v. J. Lyons & Co. [3] (escape of the dangerous thing):

In this case, the defendant took control of the management of an ordinance factory where highly explosive shells for the government were made. An explosion inside the factory caused damage to the plaintiff and several others.

When plaintiff asked for damages under the principle of strict liability, since there was no negligence on the part of the authorities, THE HOUSE OF LORDS upheld the decision and said that although there was an unnatural use of land, no escape of dangerous thing occurred. Thus, no compensation was granted on part of the defendant.

Cambridge water co. Ltd. V. Eastern Countries Leather Plc [4] (Foreseeability of damage):

The plaintiff was a company licensed to water supply while the defendant was a company engaged in manufacturing of fine leather. The defendant company used a volatile solvent known as perchloroethylene (PCE) which seeped into the ground and slowly in 9 months, got mixed with plaintiff’s borehole water 1.3 miles away.

After detection of the chemical, the plaintiff’s borehole was ceased to be wholesome and could not be lawfully supplied. When plaintiff claimed damages, THE HOUSE OF LORDS in negativing the claim said that this kind of percolation could not be foreseen by the defendant and thus, the defendant could not be held liable for the damages claimed.

Transco plc v. Stockport MBC [5] (non-natural use of land):

The plaintiff installed a gas main along an embankment on the stretch of a disused railway line. The defendant laid a tower block of flats which was supplied with water by means of water pipe which the defendant has constructed between the tower block and the water main. The water pipe once fractured and discharged water leading to the collapse of the embankment.

The plaintiff was compelled to do the considerable work to remedy the situation and claimed damages on the rule of Rylands v. Fletcher. The HOUSE OF LORDS in negativing the claim held that the provision of water supply to large blocks of flats did not amount to a special hazard constituting an extraordinary use of land.

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Some Indian Cases where the rule of Rylands v. Fletcher was cited

• State of Punjab v. Modern cultivators, AIR 1965 SC 17
• Jay Luxmi Salt Works (p.) Ltd. V. State of Gujrat, (1994) 4 SCC 1
• Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446
• Gujarat SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234

Some English Cases where the rule of Rylands v. Fletcher was cited

• Rainham Chemical Works Ltd. V. Belvedere Fish Guano Co. (1921) 2 AC 465
• Hoare & Co. V. McAlpine, (1923) 1 Ch 167
• West v. Bristol Tramways co., (1908) 2 KB 14
• Musgrove v. Pandelis, (1919) 2 KB 43

Evolution in the concept of strict liability

Case: M. C. Mehta v. Union of India [6]

The case was related to the leakage of oleum gas from one of the units of Shriram Foods and fertilizer industries which lead to several deaths and injuries in Delhi and NCR region. The petitioner M. C. Mehta filed a PIL under Article 32 of the Indian constitution against the dangerous effects of the chemicals used in the factory. Moreover, the Delhi legal aid and advise board claimed compensation for the damages so caused. The court asked the company to pay the compensation and to shut down the factory in those regions and introduced a new concept of “Absolute Liability”.

Concept of Absolute Liability

Where an enterprise is engaged in a hazardous or inherently dangerous activity and it results in harm to anyone on account of an accident which was caused in the operation of such hazardous or inherently dangerous activity. This will make the enterprise absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions or any Strict liability principle as held in the case of Rylands v. Fletcher. For example, if there is an escape of toxic gas, the enterprise is strictly or absolutely liable to compensate all those who are affected by the accident with no exception to the case. [7]

The court earlier pointed out this duty is “Absolute and non-delegable” and the enterprise cannot escape liability by showing that it had taken all reasonable care and there was no negligence on its part and thus is named as “No liability”

The basis of the new rule as indicated by the supreme court was:

• If an enterprise is allowed to carry on any hazardous activity, it is presumed that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads.
• The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards.

Reasoning given by the court in its judgement:

The judgement made on 20/12/1986 by the supreme court in the bench of three judges including CJ P. N. Bhagwati, D. P. Madon and G .L. OZA gave the following justification:

The law so laid by the English govt. in case of Rylands v. Fletcher was justifiable according to the demands of law at that time. But it is not necessary or binding to the Indian government to strictly follow the rule so laid in the late 19th century because in the modern industrial society with highly developed scientific knowledge and technology, where it is necessary to run hazardous or inherently dangerous industries as a part of the development programme.

This rule was laid in the 19th century when this type of development in science and technology has not taken place as compared to today’s economy and social structure. Law needs to be kept changing according to the needs of the society and evolving social structure. Law cannot afford to remain static.

We need to evolve new principles and laid down new and amended rules which could adequately deal with the problems of a new and industrialised economy. We cannot allow judicial thinking to be restricted to the laws laid down in England or any other country.

We can take light from these sources but we need to make our own jurisprudence. We have to evolve according to the needs and circumstances of our own country. We have to develop new laws and develop new principles to deal with the unusual situation so aroused and likely to arise in future.

Cases citing the case of “M. C. Mehta v. Union of India”

• Jagdish v Naresh Soni, (2007) 3 MPHT 234
• Vellore citizens Welfare Forums and others v. Union of India and another 2016 Indlaw MAD 4514, 2016 (4) MLI 25
• Charudatt Pandurang Koli and others v Sea lord Containers Limited, Mumbai and others 2015 Indlaw MAD 849
• Jaipur Golden Gas victim Association v Union of India and others 2009 Indlaw DEL 2902, 2010(1) ACC 141, 2011 ACJ 1879, 2009 (164) DLT 346
• Vimal Bhai and others v Union of India and others 2009 Indlaw DEL 83, 2009 (157) DLT 477, 2009 (2) ESC 1071

Why the need for the change was felt?

Rylands v. Fletcher and M. C. Mehta v. Union of India: A comparative analysis

Many drawbacks or loopholes in the principle of strict liability; or we can say outdatedness of the concept with the change in time and technological advancements lead to the introduction of new concept or amendment of old concept from “strict liability” or “No-Fault Liability” to “Absolute Liability” or “No Liability”.

• The rule of Rylands v. Fletcher includes non-natural use of land and escape of the dangerous thing from the land whereas the rule in the case of M. C. Mehta v. Union of India requires that the defendant should be engaged in an inherently dangerous activity which will result in harm to anyone.
• The rule of Rylands v. Fletcher does not includes harm caused inside the premises whereas the MC Mehta v Union of India covers all the damages caused inside as well as outside the premises.
• Though the rule of Rylands v. Fletcher is strict as it does not depends on the negligence on the part of the defendant but is not absolute as it is not subject to many exceptions whereas the rule of MC Mehta v Union of India is strict as well as absolute with subject to no exceptions.
• The damages provided in case of Rylands v. Fletcher were ordinary or compensatory whereas, in the case of MC Mehta v. Union of India, the court can allow exemplary damages and the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it.

Note: In the case of “Charan Lal Sahu v. Union of India” [8], Mishra C.J. expressed doubts related to the rule for damages in case of MC Mehta v Union of India that the case was obiter dicta and a departure from law applied in western countries.

However, this doubt was not accepted in the case of “Indian Council for Enviro-Legal Action v. Union of India” [9] where it was held that the rule so applied was not obiter dicta and suited to the circumstances prevailing in the country.

Therefore, the principle of strict liability, later to be known as absolute liability, was established as the principle of “No Liability”

Conclusion

We conclude that the journey of the concept of strict liability was started from being a “No Fault liability” where the defendant was held liable even when there is no fault on his part. But with the change of time and circumstances, the applicability of this principle was needed to be amended according to the needs of the people because in many of the cases, where the plaintiff was worth compensation for his damages, was not granted compensation on the basis of the rule of strict liability. Since the law needs to be amended with the evolution, the concept of absolute liability was introduced with no exceptions or defences i.e. “No Liability” with regards to the use of an inherently dangerous substance in industries.

References

Dhirajlal, R.&.(2016).The Law of TORTS.Gurgaon: LexisNexis

1. Rylands v. Fletcher, (1868) LR 3 HL 330
2. Fletcher v. Rylands, (1866) LR 1 Ex 265, 279
3. Read v. J. Lyons & Co. (1947) AC 156 (HL)
4. Cambridge water co. Ltd. V. Eastern Countries Leather Plc, (1994) 1 All ER 53 (HL)
5. Transco plc v. Stockport MBC, (2003) 3 WLR 1467 (HL)
6. M. C. Mehta v. Union of India, (1987) 1 SCC 395
7. M. C. Mehta v. Union of India, (1987) 1 SCC 395, P. 421. Approved (except as to the quantum of damages) in Charan Lal Sahu v. Union of India, (1990) 1 SCC 613
8. Charan Lal Sahu v. Union of India (1990) 1 SCC 613
9. Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212

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This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the origin of the concept of trespass in English law. To substantiate the concept, the reference is made to section 462 of The Indian Penal Code and its elements are discussed in detail.

Introduction

The major reason for having laws in the country is for the protection of life, liberty and property of all the citizens along with maintaining peace in the country. India, for penal laws, follows the Indian Penal Code, 1860. One of the important aspects of making IPC is to ensure the right to property to the individuals and also to restrain individuals from interfering or damaging the property of others. For the same reason, the concept of offences against property was added to the penal law and the topic of criminal within.

At one time in history, trespassing was considered a fairly major crime, many times punishable by fines or jail time. Currently, in most state jurisdictions, trespassing is considered a misdemeanour, that of a minor crime. In this article, we will be discussing criminal trespass with special reference to Section 462 of IPC.

Section 462 IPC- Meaning and Elements

The concept of trespass was introduced as a breach to the peace of an individual. Until the law had not stated, trespass was not considered to be a crime for the general public. In the early common law criminal trespass was unknown. The statutes under which sit-in demonstrators have been arrested and convicted, while virtually identical in effect, vary greatly in their wordings.

At that time, criminal trespass laws were not accepted as it was stated that these laws cannot co-exist with the racial discrimination laws. To make criminal trespass as a part of the current legislation, the court was in need of valid reasoning and argument. The Court said that they are open for taking into account possible applications of the statute in other factual contexts.[11]

In many jurisdictions, the crime of trespass still has many common law elements used in early England. The section we are dealing with here is related to section 462 of the Indian Penal Code, 1860. The section makes a person liable if a property is entrusted with him and he tries to open that receptacle containing property, with intent to commit mischief or dishonesty.

The elements of Section 462 of The Indian Penal Code are discussed below:

• There was a receptacle, closed or fastened

The section requires a receptacle to be there. The word ‘receptacle’ is derived from the Latin word receptaculum i.e. a means which receives or holds a thing. As per the Oxford dictionary, it is defined as a repository for anything. It can be a chest, box, safe, closed package, a room, part of the room, warehouse or go-down as well.[3]

Further, the receptacle must be closed or fastened. It can be chained, locked or simply bolted as well.

• The accused was entrusted with the receptacle closed or fastened and had no right to open the receptacle

Section 461 of IPC also deals with the same offence. The only difference it makes is the factor of trust in Sec. 462. Here, the person is entrusted with the property. This is the reason that punishment under this section is graver than that under section 461 of the Code. There is no such information stating whether the person who is entrusting the accused with the property is the owner of the goods or not. But the possession of the receptacle at the time of committing of the offence is with the accused.

Although the accused is entrusted with the property, he/she is not authorised to open or unfasten the same. Now, the question that arises is that will the accused be held liable for breach of trust?

Breach of trust is also divided into the civil and criminal breach as criminal breach defined under Section 405 of IPC. Section 405 expressly mentions the term ‘dishonest misappropriation’ and ‘Conversion’ of property which can be the result of the act of the accused if he goes further after opening the receptacle.

• It contained property or the accused believed that it did contain a property

It is an important factor for the offence. There must be property inside the receptacle or at least the accused must be in a belief that the receptacle contains a property. The property can be movable or immovable (such as a ceiling fan) which the accused desired to have access.

• The accused brakes open or unfasten it

It is not necessary for the receptacle to be locked or chained. Even if it is just bolted and the person opens the bolt, it will come under this section. There needs to be something which has to be unfastened or broken in order to commit this offence. The offence in the section is committed the time receptacle is opened or unfastened.

• The accused did so dishonestly or with an intent to commit mischief

The most important condition is the mens-rea element in the offence. The intention of the accused needs to be looked into before reaching the conclusion. The unfastening or opening of the receptacle needs to be done with dishonesty or with intent to commit mischief. All the elements related to the section which includes criminal trespass, dishonesty, mischief or breach of trust includes the element of intent.

Dishonesty is defined in Section 24 of IPC which explains it as an act done with the intention of causing wrongful gain or loss. The primary intention of the actor needs to be the commission of dishonesty. The act of dishonesty applies only to that of ‘property’ i.e. the intent needs to be the wrongful gain or loss of property or pecuniary or economic gain or loss.

It is the intention that which is important and not whether a man is under a legal duty to disclose or suppress facts within his knowledge[4]. Therefore, where a person with the intention of causing wrongful loss to another makes a false representation to him or suppress certain facts, he will be said to have acted dishonestly even if the law does not require him to state the truth.[5] The only test which can help in discovering a man’s intention is by looking at what he actually did and by considering what must have appeared to him at the time of natural consequences of his conduct.[6]

The other reason behind the act of the accused can be intent to commit mischief. Mischief is defined under section 425 of IPC. It is denoted by any act which is caused with the Intention to cause wrongful loss or damage to the public or any person. Its major element is also Intent. Any act cannot be covered under mischief if no knowledge of requirements under this section or the act was the result of an accident or negligence.

In both the cases of dishonesty and mischief, intention cannot be concluded in case there is any conflict of ownership of that property. If the accused has done the act in an impression of considering the good to be his own, he cannot be held liable. Same is the case where the property has no owner. No person can be held liable for wrongful act or trespass against a property which has no owner.

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The Origin of Trespass in Common Law

The concept of trespass originated in England in the thirteenth century as a general concept which indicates that the defendant had done a wrong and should, therefore, pay damages and be fined. The main emphasis was on providing civil remedies such as payment of damages or return of possession as there was no clear distinction between civil and criminal wrong.

Parliament adopted criminal statutes in the late fourteenth century prohibiting forcible entry on real property. This legislative scheme was further developed in the next two and a half centuries, primarily to provide for the return of possession and to prohibit forcible detainers who refuse to leave the property.

A series of English cases explicitly recognized for the first time the existence of the common law crime of criminal trespass in the first half of the eighteenth century. This development took a long time because of a variety of factors:

• the existence of civil remedies for the tort of trespass;
• the availability of the legislation concerning forcible entry and detainer, which provided both a civil remedy and criminal sanctions;
• the failure to remedy certain conditions such as the general weakness of the executive branch of government and thus of the means for prosecuting the crime—until the sixteenth century.

The recognition of the crime of criminal trespass was complete by the time of the American Revolution, and the individual states adopted the common law crime of criminal trespass.[1]

The common law of criminal trespass was introduced to protect against intruders who poach, steal livestock and crops, or vandalise property[2]. Under common law, an action for trespass to goods lay for intentional and direct interference with another’s possession of goods. Thus, it is the interference of possession and not the title of goods. There is no requirement that the claimant should suffer any damages.

In early English common law, trespassing on the property, particularly that of the king, was considered a criminal matter. It was later in the 14th century, that landowners could sue the trespasser for civil damages. In the early 13th century in England, under common law, the king considered trespassing as a breach of his peace and would summon the trespassers to appear in the court.

This summon was a writ that the king would use to notify the defendant of the charges. Often times, the wrongdoer was fined, but many had no money and were sent to jail instead. It was in the latter part of the 14th century that the money collected from the fines was given to the landowners as a method of repayment for any damages caused by the trespasser.[10]

Conclusion and Suggestion

A person may be entrusted with a closed receptacle, for any purpose, whether by way of security or for safe custody. In either case, if it is closed and deposited, the depositee has no right to open it, but if he opens it, he commits no offence unless his intention was dishonest or mischievous. If however, he is given authority to open it, his opening it dishonestly is not punishable, though he would be, of course, liable under the general law for any offence he may commit respecting it.[7]

The scope of this section is very limited today. There are very limited cases relating to an offence u/s 462 because the act under this section being triable as a summons case, the framing of a formal charge is not necessary u/s 251 of Cr PC. The other reason can be that opening any receptacle without permission is considered as just a civil act of trespass and majorly not reported.

A layman does not consider it as a grave offence and thus it gets neglected if the accused is not able to fulfil his intention of maybe theft or mischief. Trespass to chattels requires interference with the goods and the person is liable as soon as he interferes with the property. There is no requirement that the claimant suffers damage; once the interference has been established, the act is actionable per se.[8]

Moreover, the difference of trust between section 461 and 462 made the offence under section 462 more grave and thus punishment was increased to Three years than two years. But, the offence under 461 is non-bailable and that under 462 is bailable although considered to be graver.

The act under this section makes a person liable for 3 years of imprisonment or fine or both. Along with this act, the act of intention to commit mischief or dishonesty and breach of trust is also committed. Will the person be liable for these acts in case the act is completed which they intend to do such as theft or mischief. Or, since the act is not completed, it will be considered as an inchoate offence. But, as soon as the receptacle is broken open or unfastened, the offence is complete.[9]

Bibliography

1. HUBBARD, F. P., & Khan, D. M. (n.d.). Criminal Trespass – Historical Background – Civil, Forcible, Century, and Crime. Retrieved January 17, 2019, from Law library: American Law and legal information
2. Oliver v. US, 466 US 170
3. The Shorter Oxford Dictionary, 3rd edn., Vol. 1, 1970
4. Sawariya, S. K. (2008). Dishonesty. In R. Nelson, RA Nelson’s Indian Penal Code (p. 156). Nagpur: Butterworths Wadhwa.
5. Kuldeep Singh v. State, AIR 1954 Punj 31, pg. 33
6. Stephen’s history of the Criminal Law, vol II, p. 111
7. Gaur, K. D. (2018). Of offences against property. In K. D. Gaur, Textbook on Indian Penal Code (p. 1003). Gurgaon: Lexis Nexis.
8. Leitch & Co. Ltd. V. Leydon [1931] AC 90 at 106
9. Queen v. Tasuduk Hossein, (1874) 6 NWP 301
10. The Shorter Oxford Dictionary, 3rd edn., Vol. 1, 1970
11. Comments. (1963-1964). Tulane Law Review, 104-155

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This article is written by Anushka Ojha, a third-year student of ICFAI University, Dehradun. In this article she discusses the Trademark law in India, types of trademarks, the designation of trademarks, uses, ownership of trademark, process and effects of registration of a trademark, passing off and its scope.

What is a Trademark?

Trademark is a branch of intellectual property rights. Intellectual property rights permit people to maintain ownership rights of their innovative product and creative activity. The intellectual property came to light because of the efforts of human labour, so it is limited by a number of charges for the registration and charges for infringement. Types of intellectual property are Trademarks, Copyright Act, Patent Act, and  Designs  Act.

A trademark includes a name, word, or sign that differentiates goods from the goods of other enterprises. Marketing of goods or services by the procedure becomes much easier with a trademark because recognition of product with the trademark is assured and easier. The owner can prevent the use of his mark or sign by another competitor.

Trademark is a marketing tool which increases financing of the business. A trademark is not always a brand but the brand is always is a trademark. Sometimes there is a confusion between trademark and brand. The brand name can be simply a symbol or logo but the trademark is a distinguishing sign or indicator in a business organization as it has a wider implication than brands. People are more influenced by the distinctive trademark that reflects the quality of the product. A trademark can be a logo, picture mark or a slogan.

Trademark law in India

Before 1940 there was no law on trademarks in India. A number of problems of infringement of registered and unregistered trademark arose which were resolved under Section 54 of the Specific Relief Act, 1877 and registration was adjudicated under the Indian Registration Act,1908. To overcome these difficulties, the Indian Trademark law was enforced in 1940. After the enforcement of the trademark law, demand for protection of trademarks increased as there was major growth in trade and commerce.

The Trademark law was replaced with the Trademark and Merchandise Act, 1958. It provides better protection of trademark and prevents misuse or fraudulent use of marks on merchandise. The Act provides registration of the trademark so that the owner of the trademark may get a legal right for its exclusive use.

This previous Act got replaced with the Trademark Act, 1999 by the government of India by complying it with TRIPS (Trade-related aspects of intellectual property rights) obligation recommended by the World Trade Organization. The aim of the Trademark Act is to grant protection to the users of trademark and direct the conditions on the property and also provide legal remedies for the implementation of trademark rights.

The Trademark Act, 1999 gives the right to the police to arrest in cases of infringement of the trademark. The Act gives a complete definition for the term infringement which is frequently used. In Trademark Act, it provides punishments and penalties for the offenders. It also increases the time duration of registration and also registration of a non-traditional trademark.

Types of Trademark

Service mark

A service mark is any symbol name, sign, device or word which is intentionally used in trade to recognize and differentiate the services of one provider from others. Service marks do not cover material goods but only the allocation of services. Service marks are used in day to day services :

• Sponsorship
• Hotel services
• Entertainment services
• Speed reading instruction
• Management and investment
• Housing development services

A service mark is expected to play a critical role in promoting and selling a product or services. A product is indicated by its service mark, and that product’s service mark is also known as a trademark.

Collective mark

A collective mark is used by employees and a collective group, or by members of a collaborative association, or the other group or organization to identify the source of goods or services. A collective mark indicates a mark which is used for goods and services and for the group of organizations with similar characteristics. The organization or group uses this mark for more than one person who is acting in a group organization or legal entity for dividing the different goods or services. Two types of collective marks for distinguishing with other goods or services of similar nature:

• Collective mark indicates that the marketer, trader or person is a part of the specified group or organization. Example – CA is a collective trademark which is used by the Institute of the chartered accountant.
• Collective trademark and collective service mark are used to indicate the origin or source of the product.

A collective trademark is used by the single members of a group of an organization but is registered as a whole group. Example- CA is the title or mark which given to the member of Institute of a chartered accountant. That collective mark may be used by the group of association. This was added to the Trademark Act, 1988.

Certification mark

A certificate mark is verification or confirmation of matter by providing assurance that some act has been done or some judicial formality has been complied with. A certification mark indicates certain qualities of goods or services with which the mark are used is certified, a certification mark is defined in the Trademark Act, 1999.

Certification trade mark means a mark competent of identifying the goods or services in connection with which it is used in the manner of trade, which is certified by the owner of the mark in respect of source, body, mode of manufacturer of goods or performances of assistance, quality, accuracy or other characteristics.

Those goods or services which not so certified and registrable as such under this Act, in respect of those goods or services in the name as the proprietor of the certification trade mark, of that person. Registration of certification mark is done according to the Trademark Act, 1999. Requirements for registration is the product must be competent to certify.

Trade dress

Trade dress is a term that refers to features of the visual appearance of a product or design of a building or its packaging that denote the source of the product to customers. It is a form of intellectual property. Trade dress protection is implemented to protect consumers from packaging or appearance of products that framed to imitate other products.

Essential of trade dress

• Anything that makes an overall look or overall dress and feel of brand in the market.
• The consumer believes that trade dress is the main indicator of differentiation of one brand or goods from others.
• The requirement for the registration of trade dress is the same as the registration of the logo, mark. The features in trade dress are size, colour, texture, graphics, design, shape, packaging, and many more.

 Designation of trademark

Trademark is designated by:

• ( is used for an unregistered trademark.it is used to promote or brand goods).
• ℠  ( used for an unregistered service mark.it is used to promote or brand services).
• R   (letter R is surrounded by a circle and used for registered trademark).

Uses of Trademark

Trademark identifies the owner of the product. Under any authorized agreement of product, a trademark can be used, an example of trademarks goods names are, iPod and a big mac. Company logos like the Golden Arches at McDonald’s and McDonald’s “I’m lovin’ it. Brand names like Apple, McDonald’s, and Dolce & Gabbana.

The usage of the trademark by unauthorized means or illegal means by producing it in trading is known as trademark piracy. If there is an infringement of trademark, the owner of the registered trademark can take legal action and for an unregistered trademark, the only option is passing off.  Many countries like the United States, Canada and many more also, accept the trademark policies, so they also gave the right to the master of product to take the action for the protection of their trademark A common concept of a trademark is that the owner of a registered trademark has a more legal right for protection than the owner of unregistered trademark.

The concept of usage of the non-physical trademark the Supreme Court held in the case of Hardie trading Ltd. v. Addison paint and chemicals Ltd. The Supreme Court gave a wider interpretation on the usage of a trademark that it could be non-physical and that there were no grounds to restrict the user to use on the commodities or to the sale of the commodities bearing the trademark.

Owner of the Trademark

Trademark gives protection to the owner by assuring them with the exclusive rights to use a trademark, to identify the goods or services or permit others to use it in results of payment. It is a weapon for the registered proprietor to stop the others from illegal use of the trademark. Under Section 28 the rights conferred by registration.

• The registration of a trademark is valid if the right is given to the certified owner of the trademark, the owner  has the exclusive right to use of the trademark in respect of goods or services in which the trademark is registered and to claim maintenance in respect of infringement of the trademark is given to the holder of the trademark.
• Wherever more than two persons are certified proprietors of the trademark which are same with or nearly identical with each other. The exclusive right to use of each of those trademarks shall not except if their own rights are related to any conditions or limitations entered on the register be expected to be taken by one of those persons as against of other persons only by registration of the trademark, but each of those persons has the same rights as against other persons.

Registration of Trademark

Any person claiming to be the owner of the trademark or supposed to used the trademark by him in future for this he may apply in writing to the appropriate registrar in a prescribed manner. The application must contain the name of the goods, mark and services, class of goods and the services in which it falls, name and address of the applicant and duration of use of the mark. Here the person means an association of firms, partnership firm, a company, trust, state government or the central government.

Conditions of registration

The central government by mentioning in the official gazette appoint a person to be known as the controller, general of patents, designs and trademark who shall be the registrar of the trademark. The central government may appoint other officers also if they think that they are appropriate, for the purpose of discharging, under the superintendence and direction of the registrar, the registrar may authorize them to discharge.

The registrar has the power to transfer or withdraw the cases by in writing with reasons mentioned. Under Section 6 of the Act, discussed the maintenance of a registered trademark. At head office wherein particulars of registered trademarks and other prescribed, particulars, except notice of the trust, shall be recorded. The copy of the register is to be kept at each branch office. It gives for the preservation of records in computer or diskettes or in any other electronic form.

Absolute grounds for refusal of registration

Absolute grounds for the refusal of registration is defined in Section 9 of the Act. The trademarks which can be lacking any distinctive characteristics or which consists exclusively of marks or signals, which can be used in trade to indicate the kind, fine, quantity, supposed grounds, values, geographical origin.

And also a time of production of goods or rendering of the offerings or different characteristics of the goods or offerings which consists solely of marks or indications which have come to be average in the present language. That marks are not entitled to registration. Except it is confirmed that the mark has in fact acquired a new character as a result of use before the date of application.

It  gives that a mark shall not be registered as trademarks if:

1. It frauds the public or causes confusion.
2. There is any matter to hurt religious susceptibility.
3. There is an obscene or scandalous matter.
4.  Its use is prohibited. It provides that if a mark contains exclusively of (a) the shape of goods which form the nature of goods or, (b) the shape of good which is needed to obtain a technical result or, (c) the shape of goods which gives substantial value of goods then it shall not be registered as trademark.

Test of similarity

For the conclusion, if one mark is deceptively similar to another the essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if they are of such a character to prevent one design from being mistaken for the other. It would be enough if the disputed mark has such an overall similarity to the registered mark as it likely to deceive a person usually dealing with one to accept the other if offered to him. Apart from the structural, visual, and phonetic similarity or dissimilarity, the query needs to be viewed from the factor of view of man typical intelligence and imperfect collection secondly. It’s regarded as an entire thirdly it is the query of his impressions.

In Mohd. Iqbal v. Mohd. Wasim  it was held that “it is common knowledge that ‘bidis’ are being used by persons belonging to the poorer and illiterate or semi-literate class. Their level of knowledge is not high. It cannot be expected of them that they would comprehend and understand the fine differences between the two labels, which may be detected on comparing the two labels are common. In view of the above, there appears to be a deceptive similarity between the two labels”.

Relative grounds for refusal of registration

Under Section 11 of the Act, it gives relative grounds for the refusal of registration of a trademark. A trademark cannot be registered if because of (i) its identity with an earlier trademark and similarity of goods or services, (ii) its similarity to an earlier trade mark and the similarity of the goods and there is a probability of confusion.

It also gives that a trademark cannot be registered which is identical or similar to an earlier trademark. And also which is to be registered for goods and services which are not similar to those for which earlier trademark is registered in the name of a different proprietor if, or to the extent, the earlier trademark is well known in India. It further gives that a trademark is cannot be registered if, or to the extent that, its use in India is liable to be prevented by virtue of any law.

Procedure and Duration of registration

The registrar on the application made by the proprietor of the trademark in the prescribed manner within the given period of time with the adequate payment of fees. Registration of a trademark shall be of ten years and renewal of the registered trademark is also for a period of ten years from the date of expiration of the original registration or of the last renewal of registration.

The registrar shall send the notice before the expiration of last registration in the prescribed manner to the registered proprietor. The notice mentions the date of expiration and payment of fees and upon which a renewal of registration may be obtained if at the expiration of the time given in that behalf those conditions have not duly complied with the registrar may remove the trademark from the register.

But the registrar shall not remove the trademark from the register if implication made within the prescribed form and the prescribed rate is paid within six months from the expiration of the final registration of the trademark and shall renew the registration of the trademark for an interval of ten years. If the trademark is removed from the register for non-payment of the prescribed fee, the registrar shall after six months and within one year from the expiration of the last registration of the trademark renew the registration,

And also on receipt of implication in the prescribed form and on payment of the prescribed fee the registrar restores the trademark to the register and renew the registration of the trademark, for a period of ten years from the expiration of the last registration.

International registration of a trademark

The law of trademark passed by the Indian government is applicable only within the territory of India. The trademark which is registered in has effect only in India, for the protection of trademark in other countries needs to be registered in another country as well. Each country has its own trademark law with rules and law for the registration of a trademark in that country. In other words, if an individual desire to obtain trademark registration in any particular nation then a separate application must be moved in all such international locations. Within the year 2013, the Indian government agreed to the Madrid conference which prescribes a methodology of submitting a worldwide application to the contracting events from India by means of the workplace of the Registrar of Trademark. For example- India’s mobile phone manufacturing Micromax received 1.25 millionth international trademark registration for its trademark ‘MICROMAX’ protection in over 110 countries. The international trademark registration for Micromax filed under the Madrid Protocol, under mark can be protected in many jurisdictions by only filing an application for international registration. There are two methods by which an international application can be filed:

• International application in each foreign country: For the protection of trademark in any foreign country, an international application must be filed to the trademark office by following the rules and regulations of that country. For this purpose the applicant must hire a firm dealing in trademark registration in foreign, the applications to countries which is not a party to the Madrid system can be filed as per above. It provides services that engaging an Attorney in the foreign countries works closely for registration of a trademark in the foreign country.
• The international application under the Madrid system: The trademark registration may also be initiated by means of filing an international application under Madrid protocol before the Registrar of Trademark for different nations. The Indian Trademark office collects international Trademark application and after finding it in conformity with the Madrid protocol transmits such a global application to the WIPO (World Intellectual Property Organization), which further transmits it to the situation overseas. Each and every global software is processed by way of the overseas nation as per their legislation and all communications are routed by means of Indian executive.

Effect of Registration

The registration of a trademark shall if valid give the exclusive right to the registered proprietor to the use of trademarks in respect of goods and services of which the trademark is registered, and also to obtain relief in respect of the infringement of the trademark.

Infringement of trademark

A registered trademark is infringed by a person who not being a registered proprietor or a person using by way of permitted use in the course of trade, a mark which is identical with or deceptively similar to the trademark in relation to goods or services in respect of which the trademark is registered. After infringement, the owner of the trademark can go for civil legal proceedings against a party who infringes the registered trademark. Basically, Trademark infringement means the unapproved use of a trademark on regarding products and benefits in a way that is going to cause confusion, difficult, about the trader or potentially benefits.

Infringement of trademark on the internet

The expansion of the web is also leading to an expansion of inappropriate trademark infringement allegations. Probably, a company will assert trademark infringement each time it views one among its trademarks on an online page of a Third party. For example, an individual who develops a website online that discusses her expertise with Microsoft software could use Microsoft’s trademarks to consult exact merchandise without the worry of infringement. However, she mainly would no longer be competent to use the marks in this kind of means as to intent viewers of her internet web page to feel that she is affiliated with Microsoft or that Microsoft is someway sponsoring her net web page. The honour could simplest be analyzed upon seeing how the marks are sincerely used on the web page. In this way, there is an infringement of trademark on the internet.

Case laws on Infringement

Hearst company Vs Dalal avenue verbal exchange Ltd.

The courtroom held that a trademark is infringed when a character in the course of trade makes use of a mark which is same with or deceptively similar to the trademark in terms of the goods in respect of which the trademark is registered. Use of the mark by using such man or woman needs to be in a manner which is more likely to be taken as getting used as a trademark.

Amritdhara Pharmacy Vs Satya Deo Gupta,

In this case for determining the connection in two words related to an infringement action was stated by the Supreme Court that there must be taken two words which are deceptively similar.  And judge them by their appearance and by their sound. There must be considered that the goods to which they are to be utilised. There must be a consideration of the nature and kind of customer who would be likely to buy those goods. In fact, it must be considered the surrounding circumstances and also must consider what is likely to occur if each of those trademarks is used in common ways as a trademark for the goods of the particular owners of the marks.

After considering all those circumstances, they came to the conclusion that there will be confusion. This is to say that, not significantly that one man will be injured and the other will gain the illegal benefit, but it for that there will be a mess in the mind of the public which will lead to confusion in the goods then there may be the refusal of the registration.

No action for an unregistered trademark

This is defined under Section 27 of Act that no infringement will lie with respect to an unregistered trademark, but recognises the common law rights of the trademark owner to take action against any person for passing off goods as the goods of another person as services provided by another person or the remedies thereof.

Passing off

Passing off is common legislation of tort, which can be used to put in force for unregistered trademark rights. The regulation of passing off prevents one man or woman from misrepresenting other items or services. The inspiration for passing off has faced some changes in the duration of time. In the beginning, it was restrained to the representation of one person goods to another. Later it was elevated to business and non- trading activities. Therefore it used to be additionally accelerated to professions and non-trading movements. Today it is applied to many types of unfair trading and unfair competitors where the activity of one person cause damage to another person. The fundamental question on this tort turns upon whether the defendant’s conduct is such as deceive or mislead the general public to the confusion between the industry activities of the two.

In British Diabetic organization V Diabetic, both the parties have been charitable societies. Their names have been deceptively identical. The phrases ‘association’ and ‘society’ both should be considering that they have been similar in derivation and meaning and were not completely varied in kind. The everlasting injunction was granted.

Difference between passing off and infringement

The measures for passing off is different from the measures of an infringement. The claim for infringement is a lawful remedy whereas the claim for passing off is a common law remedy. Therefore, in order to establish infringement with respect to a registered trademark, it is only required to prove that the infringing mark is same or deceptively similar to the certified mark and no more proof is required. In the case of a passing off claim, proving that the marks are same or deceptively similar only is not sufficient.

The use of the mark should be likely to mislead or cause confusion. Moreover, in a passing off claim it is necessary to verify that the use of the trademark by the defendant is expected to cause injury or damage to the plaintiff’s goodwill, whereas, in an infringement suit, the use of the mark by the defendant must not cause any injury to the plaintiff. But, when a trademark is registered, registration is given only with respect to a particular category of goods. Protection is, therefore, provided only to these goods. In a passing off action, the defendant’s goods must not be the same; it may be different.

In, Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical laboratories,  the Apex court held that there are some differences between the trial for passing off and trial for infringement of a trademark. In American Home Products Corpn. Vs. Lupin Laboratories Ltd., the Court held that it is well-settled law that when regarding the infringement of a registered trademark. It is important to carry in mind the difference between the search for infringement and the search in passing off the trial. In a passing off action, the courts seem to see whether there is deception whereas, in infringement matter, it is important to note that the Trademark Act gives to the owner an exclusive right to the use of the mark which will be infringed in the case of indistinguishable mark and in the case of related marks, even though there is deception, infringement can still take place.

In Satyam Infoway Ltd. Vs Sifynet Solutions (P) Ltd.  it was held by the Court that to proceed action for passing off three elements are required to be established, which are as follows:

• In a trial for Passing off, as the expression passing off itself suggests, is to restrict the defendant from passing off its goods or services to the public which of the plaintiff’s. It is a claim not only to preserve the status of the plaintiff but also to protect the public. The defendant must have traded its goods or given its services in a manner which was deceived or would be likely to deceive the public into thinking that the defendant’s goods or services are the plaintiffs.
• That second element that must be established by the plaintiff is a misconception by the defendant to the public and what has to be placed in the possibility of confusion in the minds of the public that the goods or services offered by the defendant are the goods or the services of the plaintiff. In assessing the possibility of such confusion the court must allow for the ‘imperfect recollection of a person or ordinary memory’.
• The third element of a passing off action is loss or the possibility of it.

Notwithstanding, trademark registration under the Act only has effect in India. To get trademark rights and protection in other countries it is required to register the trademark in those countries. Trademark protection is regional in nature. A single registration will have to be made in every country where protection is wanted. To get protection outside India, it is required to file applications in the respect of the countries individually. In enhancement, there should be registration in a country before you begin the use of the trademark in that country. In some countries such as China, Japan, Continental Europe, and Indonesia, the first person who applies for registration will get the rights of a trademark, rather than the person who first uses the trademark. Hence, the different party could legitimately take trademark by applying for registration even if there is the first person using the trademark.

Expanding  boundaries of the scope of trademark

• Domain name

Every company on the internet has a domain name with a different address in cyberspace at which the website is located. Nowadays companies have internet pages as the producer and consumer are far away located as well as every company is going global. The other purpose is that the Internet has become an essential tool in marketing. The rule came to be revealed as IP numbers are hard to remember therefore they came up with the Domain Name System.

A user of the internet will find the domain name very useful in finding the goods or services that he expected to find. But sometimes a distinct name of a highly commended business may be allowed and passed off as the original one, For example, Tata, Google and Maruti. People visit a website or domain name through a website or a URL. Cybercrime generally means the registration of another party’s mark as a domain name for the purpose of misuse. A domain name has to be related to the product given and it has to be different. While choosing a domain name for a website it is desirable that it should be different. A high level of distinctiveness is allowed that two domain names could not be alike. Two types of disputes that occur which concerns with the domain name.

(i)  That both the parties have the legal right to forming the words for the domain name in use. In this way, the court decides that who is the original owner and who the infringer is.

(ii)The second type is cyber piracy where a party with no legal right questions the real owner. In this type of problem, there is a number of ways by which a trademark owner can fight with cyberpiracy.

• Smell

It is a non-traditional type of trademark. There is a large problem in registering this type of trademarks as there is no physical representation. Due to its high level of distinctiveness, for example, the smell of a perfume strawberry etc., it is difficult to register this kind of trademark. Smell marks are accepted if they are represented with a graphical representation. But this provision is only in some countries. Smell the trademark is protected under copyright. In some instances a particular scent is also a commodity by itself in other circumstances it is a scent used or attached to the commodity not the natural smell of the product itself.

• Sound

A sound may be trademark and can also be registered. A sound mark is a sound or a theme with a different identification effect. A well-known sound mark is music owned by Hemglass. When applying for a sound mark the mark can be expressed by a sound file or by an accurate description of the sound in notation.

• Shape

Distinguishing the one product from another assures that the customer doesn’t get confused by similar products. The shape of goods registered as a trademark as long as the shape is not working. A shape is working if it affects the use or performance of the product. The shape of goods can be a trademark if,

• The shape doesn’t superior working.
• The shape has become connected with public and manufacturer.

A shape of goods may be registered as a trademark when the shape is not working. Thus if a certain shape is delicate more than useful in daily life and serves no purpose then it may be registered.

Conclusion

Intellectual Property reflects the meaning that it’s subject body is the product of the mind or the intellect. As it’s the product of a productive and creative mind, It can be traded, purchased, given and reserved. All this can be done but there are issues related that to be dealt. Trademarks are very important aspects of Intellectual Property so, the protection of the trademark has become essential in the present day because, every generator of a good or service will want his mark to be different, eye-catching and it should be easily distinguishable from others.

Designing a mark like this is difficult and after this when infringing of the mark takes place it will cause maximum difficulty to the producer. Capital Protection is very important and there should be a step towards Global Intellectual Property Order, if there is no IPR protection, it can be explained that inventive activity will terminate. The reason for Intellectual Property protection is that it can arouse creativity and discovery and prevent the exploitation of inventions.

Public policy here points at keeping an Intellectual Property system which promotes innovation through protection initiatives, while at the same time assuring that this is not at the value of societal interests. In this meaning, the challenge for the World Intellectual Property Organisation would be to include public policy effects in applications carried out with developing countries, such as increasing awareness of flexibilities in existing international intellectual property treaties.

Intellectual Property is not an unusual concept, in fact, it is a concept which is discussed in everyday life whether a movie, book, plant variety, food item, cosmetics, electrical gadgets, software’s etc. It has become a concept of pervasiveness in everyday life. The World Intellectual Property Day on 26th April every year.

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has discussed the existence of Lok Adalats in India, their working, changes which are needed to be brought for further improvement, working of Pune District Legal Services Authority and essential aspects of the same.

Introduction

The Indian judiciary is one of the oldest judicial systems. With the passage of time, the system has become inefficient to deal with pending cases. Indian courts are clogged with long unsettled cases, hence analyzing such a situation calls for improvement in order to come up with a better alternative, as hundreds of cases are still pending and this calls for grave attention. Considering the Indian scenario it can be said that ADR plays a significant role by its diverse techniques, in overcoming the problem of pendency of cases [1]. It can be further said that ADR– Alternate Dispute Mechanism provides a convenient way of resolving disputes. It offers to resolve matters including that of civil, commercial, industrial and family etc [2]. Modes of Settlement under ADR include:

1.  Arbitration,
2.  Conciliation,
3.  Mediation,
4.  Negotiation, and
5.  Lok Adalat.

Understanding ADR Mechanism in India

ADR in its simple terms can be defined as a process which differs from that of judicial determination, and this process basically involves an impartial person assisting those in dispute in order to resolve the matter between them. Put in a precise way, ADR can be said to be an “assisted” or “appropriate” dispute resolution. In certain cases, ADR can even include approaches which enable parties to manage their disputes amongst themselves without outside aid or support. It can further be said that ADR provides a cost-effective, relevant, fair and timely means of resolving the disputes involved.

Certain Important Provisions related to ADR

1. Section 89 of Civil Procedure Code provides a provision which lays down that if it appears for the court that there exists some element of settlement of issues between the parties, then it may order settlement of issues outside the court and it can be by the way of – Arbitration, Mediation, Conciliation or Lok Adalat.
2. Article 39 of the Constitution relating to Directive Principles of State Policy, which provides that the state shall secure the operation of a legal system which provides equal opportunities and in addition, it shall also make free-legal aid available to the person by the way of suitable legislation or schemes, this even ensures opportunities for securing justice and not to deny it to any person based on their economic or financial disabilities [3].
3. Article 14 and 21 of the Indian Constitution deals with equality before law, right to life and personal liberty respectively, taking into account the ADR motive it can be said that it tries to provide socio-economic and political justice and also maintain integrity in the society.
4. Arbitration and Conciliation Act, 1996 the various Acts under this deal with alternate dispute resolution.
5. The Legal Services Authority Act, 1987 the rules framed under this Act prove to be of great use while dealing with the Alternate Dispute Resolution.

Various Aspects of ADR Mechanism

• Arbitration- For the process of arbitration to be successful, there should be an arbitration agreement between the parties. In this technique, parties refer their dispute to one or more other parties who are known as the ‘arbitrators’. Henceforth, the decision of arbitrators is bound on parties and their decision is called ‘award’. The very prime object of arbitration can be said to achieve fair and bonafide settlement of issue outside the court.

The intricacies of the arbitration proceedings in the current day scenario vary with the arbitration agreement. For instance, there could be a timeline which ought to be followed by the parties, and this timeline might be stipulated by the agreement and hence to be followed. Further Section 8 of Arbitration and Conciliation Act, 1996 provides that if one of the parties refers the case to the Court by the way of a suit, then the other would have the right to apply for the Court in order to refer the matter to arbitration. The application must include a certified copy of the arbitration agreement and if the Courts are satisfied with it, the matter will be referred to arbitration.

• Mediation- Mediation can be termed as one of the ADR processes where a neutral third party mediates between two other parties in dispute. This process can be said to be party centred and also, the mediator cannot impose his views and cannot make his/her own decisions. In short, it can be said that the mediator just acts as a facilitator for the parties to reach an agreement. The mediation process works in 4 different stages:

1. Opening statement
2. Joint session
3. Separate session and
4. Closing

Best Alternative to Negotiated Agreement (BATNA)

It is the best possible outcome which both parties in a dispute come up with or have in minds. It provides for a suitable situation as each party thinks about what its most favourable scenario looks like.

Most Likely Alternative to Negotiated Agreement (MLATNA)

For a successful negotiation, the result always lies in the intermediate stage, mediator after considering both the parties comes out with the most likely outcome. Here the result is not always in the intermediate stage but a little bit swayed towards either of the parties involved in the mediation depending on negotiation situation.

Worst Alternative to Negotiated Agreement (WATNA)

In the worst possible outcome, a party has in their mind for what could happen during negotiation.

1. Conciliation- Conciliation can be defined as something that is less formal in nature when compared to other ADR processes. Conciliation can be defined as a process which is used for facilitating an amicable relationship between the parties who are at differences. The prime purpose of the conciliator would be to lower the tension between the parties and improve communication between them [4].
2. Lok Adalat- Lok Adalat is popularly known as ‘People’s Court’ and is presided over by a sitting or retired judicial officer, social activists or members of legal profession as the chairman. National Legal Service Authority(NALSA) along with other Legal Services Institutions conducts Lok Adalats at regular intervals for the exercise such jurisdiction.  Any case pending in regular court or any dispute which has not been brought before any court of law can be referred to Lok Adalat [5].
3. Negotiation- Negotiation can again be stated as something which makes the process more party-centred and further allows the parties to take control of the situation themselves. This adds to the smooth functioning of the system. There are various essentials of negotiation which play a significant role in its working which are mentioned as under:

• It is a communication process.
• It resolves conflicts.
• It is a voluntary exercise.
• It is a non-binding process.

Identifying Issues and Challenges in ADR

The concept of ADR has gained legal recognition in the contemporary world over a period of time. But at the same time, bringing the focus on India it can be said that the concept of ADR has been prevalent in India’s ancient history. Finding its roots in ancient India, the concept of ADR can be traced back to Panchayats. The working of Panchayats proves to be an example of an out of the court resolution. It can even be said that the practice is still prevalent in villages in India.

Various Challenges posed by the ADR methods

1. Expensive and high-end service– It is to be understood that this process is a costly affair, as a very few are specialized in it who are competent enough to arbitrate on various issues. And hence, the process ends up to be an expensive and high-end service.
2. Too flexible in nature– ADR is too flexible in nature and there is no guarantee in its proceedings. There is no set procedure which is required to be followed while finding solutions through ADR. When this is compared to the system followed by the courts, the latter, that is approaching a court becomes more reliable to a common man.
3. Principle of Arbitrability of subject matter– The Indian Law mainly recognizes Arbitration by the way of ADR, which further makes the matter very much subjective. Most matters which have specific legislation to its name are left out due to the non-arbitrability of its subject matter.
4. Intervention of Courts– The very purpose of ADR methods is to avoid going to courts, however, the intervention by courts is inevitable, intervention by the courts is universal and hence observed throughout the world [6]. A number of matters also reach the highest court. India follows the same system and a large number of arbitration matters are filed in the lower courts [7].
5. Autonomy of parties may be put to stake– Arbitration involves creation of a contract between the parties. It can be said that the autonomy of the parties in the process is not unbridled, but at the same time in certain cases, there can be no 100% assurance given to the parties regarding the same.
6. Cultural Norms– It can be said to be a sad reality that most of the arbitrators do not understand how matters regarding ADR are resolved in various parts of India, and adding to this point, hardly any of them have proper understanding of traditions and cultures in India and as a result of this they fail to understand the perspective in the issue at hand.
7. Adequate Human Resources– Lawyers in India are often not trained in the practice and law of arbitration, as there is a tendency among them to fight the matters in the court in a more productive way and as a result of this, there exists a backlash in the arbitration proceedings. It is not enough to enact a progressive law on arbitration, it should also be made sure that there are professionally trained individuals to carry out the working of the same [8].

Critical Evaluation of System of Permanent Lok Adalat  and PDLSA

For the purpose of better understanding of the concept and working of the permanent lok adalats, this article attempts to break down the concept into smaller fragments and further elucidates the individual fragments in the forthcoming segment as mentioned below.

Permanent Lok Adalat

The chief motive behind setting up of Lok Adalat was to lessen the burden of the courts; It was on March 14, 1982, at Junagadh in Gujarat that the first Lok Adalat was held. Lok Adalats have witnessed success in settlement of many cases such as family disputes related to labour, bank recovery, etc. When a statutory status was provided to Lok Adalats, it was mentioned in the case that, whenever a Lok Adalat passes an award or a compromise, it would be held equivalent to the decree of a court, executable as a decree of a civil court.

Features of Permanent Lok Adalat

Unlike any other courts or tribunals, permanent lok adalats works on a regular basis for permanent dispute resolution. However, the Legal Services Authorities Act was amended in the year 2002 and Chapter 6 pertaining to Permanent Lok Adalats was inserted, which further came up with other required changes in order to be in line with the changing notions of society.

Presiding officer in Permanent Lok Adalat

In order to be the Chairman of the Permanent Lok Adalat, one must be either a District Judge or an Additional District Judge or has held a judicial office higher in rank than that of a District Judge. Two other persons having adequate experience in public utility services are also appointed by the government.

Jurisdiction of Permanent Lok Adalat

The jurisdiction of PLA can be invoked only in the pre-litigation stage and this has to be done by making an application to PLA for settlement of issues. Once, the jurisdiction has been invoked, the parties cannot take a recourse before a court of law. However, the jurisdiction of Permanent Lok Adalats does not relate to any non-compoundable offence or where the value of the property in dispute exceeds ten lakhs. Permanent Lok Adalats cannot take cognizance of a matter which is already sub-judice in a court of law [9].

Order for Producing Evidence

The Lok Adalat can direct the parties to produce the evidence other than the documents if the case before it requires the same while conducting a conciliation proceeding. In addition to this, it must also follow the principles of fair play, natural justice and equity, further, it should not be bound by the Code of Civil Procedure, 1908 and The Indian Evidence Act, 1872.

The award passed by PDA

When the parties reach an agreement on the settlement of the dispute, they are required to sign the settlement agreement and the permanent lok adalat then passes an award in terms thereof and must furnish a copy of the agreement to each of the parties concerned. Where the parties fail to reach a settlement or if the dispute does not relate to any offence, the matter is decided based upon the merits of the case.

Residuary Jurisdiction of PDA

Permanent Lok Adalats have a residuary jurisdiction, in addition to the jurisdiction enjoyed by the Lok-Adalats, to decide the dispute by virtue of Section 22 of Arbitration and Conciliation Act [10], even if the parties have failed to resolve the dispute after conciliation. Permanent Lok Adalats cannot take cognizance of a matter which is already sub-judice in a court of law [11].

Pune District Legal Service Authority (PDLSA)

In India, lawyers have been the strongest group to promote the development and progress of socio-political struggle which exits in the country. Individually and collectively, they have been the force behind India’s biggest political and social victories.

Objects of PDLSA

1. To critically analyse the need for legal aid.
2. To study the role of legal service authority, courts and law schools.
3. To critically analyse the legal aid work in the court properly.
4. To make a recommendation.

There are various steps being taken up by the PDLSA for the collective welfare of the society and by the way of that, ensuring the loopholes in the contemporary world being covered by the way of legal aid, and certain significant measures taken up by the PDLSA which have worked out in its advantage can be listed as under:

Free Legal Aid for Senior Citizens in Pune– In recent times senior citizens have increasingly become victims of harassment in domestic disputes. PDSLA decided to provide senior citizens with lawyers who can assist them in civil, domestic or criminal cases.

1. The senior citizen will not have to pay even a single penny, as the authority would do the same depending on how genuine the case, is after going through the merits of the same.
2. PDSLA will pay lawyers 1,200 per hearing in order to fight these cases.
3. In addition to all this, lastly, it should also be noted that senior citizens are even exempted from paying the court fee stamp duty.

Legal aid on wheels for Pune city, by PDSLA- On the 23rd of June 2016, the PDSLA launched Mobile Legal Services-cum-Lok Adalat scheme where a van would be ferried across various areas in Pune district as part of its “Justice at your doorstep” campaign. There is a dire need for such initiatives to take place, as a humongous section of the population lacks basic legal knowledge and hence, they are apprehensive about approaching legal service centres. The Lok Adalat van comprises of lawyers, social activists, teachers, judicial officers, law students etc. and they would be beneficial for such people as they would be getting justice at their doorsteps.

Suggestions to Improve the current system of Lok Adalat

1. Clear and Distinct Definitions for Various ADR Processes– The government must strive to come up with succinct, lucid and intuitive definitions and explanation for the various ADR processes, as there exists confusion regarding the various processes. It should also attempt to rectify the confusion related to what ADR constitutes.
2. Distinct Legal Framework for Laws Pertaining to Arbitration, Mediation, Conciliation– The government must come up with clear, distinct statutes that would provide a framework which can further be identified with the specific ADR processes. This would in turn greatly help the practitioners in structuring the mediation process on a more solid footing and a strong underlying legal principle.
3. Improve Success Rate of Court-Mandated Mediation– The government must incentivise parties to seek mediation in order to resolve disputes by being more accommodative to the concerns. The government must make efforts to take the concerned stakeholders in confidence and work out a roadmap which would ensure statutes specific to mediation in an unbiased manner.
4. Penalize Litigation Culture– The government must try and discourage the parties who are willing to opt for the litigation process by making the litigation process more expensive than ADR. This would prompt parties to approach ADR institutes as the first mode or step of conflict resolution. This would also reduce the burden on the courts as well [12].
5. Include ADR Concepts to Make Law School Curriculum more holistically– The government must recognize that most legal practitioners build their foundations in law schools, the curriculum of which is largely focused on training students for litigation-oriented practice. Students aren’t conditioned to recognize which cases are appropriate for immediate settlement through ADR methods such as mediation and which cases are suitable for litigation. So this gap which exists in laws schools regarding the education of students should be bridged.

QUESTIONNAIRE

1.  What exactly are Permanent Lok Adalats?

The courts establish national legal service authority and also state legal service authority for speedy disposal of disputes of cases which are pertaining to public utility services, and after being dealt with, these are not recorded in the court of law, by way of compromise and these are called the permanent Lok Adalats.

2.  What type of matters are adjudicated upon in Permanent Lok Adalats?

A Lok Adalat has the jurisdiction to settle, by way of effecting a compromise between the parties, any matter which may be pending before any court, as well as disputes which have not yet been formally instituted in any court of law. These may include civil, domestic or even criminal cases, where the parties have grievances and in need of legal aid.

3.  Who are the Judicial Officers presiding over a Permanent Lok Adalats?

The PDA comprises of Chairman who must be either a District Judge or an Additional District Judge or has held a judicial office higher in rank than that of a District Judge. Two other persons having adequate experience in public utility services are also appointed by the government.

4.  What is the law mandating the conduction of the Permanent Lok Adalats?

Legal Services Authority Act, 1987 gives the statutory status to Lok Adalats, which is pursuant to the constitutional mandate in Article 39-A of the constitution of India, which contains various provisions for the settlement of issues/disputes through Lok Adalats.

5. What is the difference between an actual Court and a Permanent Lok Adalats?    Are they any different?

Permanent Lok Adalats are fast track courts where cases are disposed of by the means of settlement between the parties, for speedy disposal and to reduce the burden on courts.

The courts, on the other hand, follow the litigation process of dealing with the cases which include procedures like that of filing of a suit by the parties and so on.

6. What is the one most important thing to learn about the NALSA Act, PDLSA & Permanent Lok Adalats?

One most important thing about NALSA Act, PDLSA and PDA are that there is a grave need in the current days for such activities to come up and intervene in the matters of dispute resolution as there is already existing burden on the courts which is to be lessened. Going through the working of these Acts, it can be said that they have been successful in delivering to the parties what they actually need.

7. What do you think is the significance of the Permanent Lok Adalats in India?

The concept of Lok Adalat has been a success in practice. Lok Adalats play a very important role to advance and strengthen “equal access to justice”, the heart of the Constitution of India, and try to make it a reality. This Indian contribution to the world of ADR jurisprudence needs to be taken full advantage of. Hence, the idea of Lok Adalat has to be upheld.

8. What do you have to say about the functioning of the Permanent Lok Adalats Do you have any suggestions for its improvement, if any?

The functioning of Lok Adalat till date has been advantageous to the parties in India, and hence, it can be said that their functioning is of help to the public at large. At the same time there is even scope for improvement in the way it functions, as there can be a distinct legal framework for it, and maintaining a track of a success rate of it for further improvement and also penalizing litigation culture would work in its favour.

9. Should law students pay visits Permanent Lok Adalats, why?

Yes, it is indeed very essential for law students to visit Lok Adalats, as there is need for law students to   have the appropriate knowledge about the working of Lok Adalats as it would come in handy for them in their professional carriers and would also act as an added advantage to the society, in solving the legal disputes in a more grounded manner.

References

1. Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR), Ipleaders – Intelligent legal solutions(May 9, 2017) https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
2. Vinay Vaish, Partner, Vaish Associates Advocates, Alternate Dispute Resolution (ADR) In India, Vaish Associates Advocates(11 December 2017) http://www.mondaq.com/india/x/654324/court+procedure/Alternate+Dispute+Resolution+ADR+In+India.
3. S.Chaitanya Shashank, Kaushalya T. Madhavan, KIIT School Of Law, ADR in India: Legislations and Practices,  Academike – Articles on legal issues(January 7, 2015) https://www.lawctopus.com/academike/arbitration-adr-in-india/.
4. Henry J. Brown, Arthur L. Marriott, ADR Principles and Practice, 205-06 (2d ed. 1911)
5. Dr Anil Kumar Singh, ADR Mechanism in India: Achievements and Challenges, Indian Journal of Research(8 August 2016) https://www.worldwidejournals.com/paripex/recent_issues_pdf/2016/August/August_2016_1471096198__42.pdf.
6. Hooters of America v. Phillips, U.S. 4th Circuit Court of Appeals, CA-96-3360-4-22, April 8, (1999)
7. Konkan Railway Corporation v. Mehul Construction Co., 2000 (7) SCC 201
8. Rebecca Furtado, Permanent Lok Adalats- A Critical Study, Ipleaders – Intelligent legal solutions(September 21, 2016) https://blog.ipleaders.in/permanent-lok-adalats-critical-study/.
9. P.T. Thomas v. Thomas Job, AIR 2005 SC 3575, See Also Vijaykumar Shrikrushna Chowbe v. Priya S. Dhanokar, “Lok Adalat – A strategic Forum For Speedy and Equitable Justice”.
10. United India Insurance Co. Ltd. v. Ajay Sinha, AIR 2008 SC 2398
11. Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict, (2d ed. 2012)
12. Jacqueline M. Nolan-Haley, Alternative Dispute Resolution in a Nutshell 230-43(3d ed. 2000).

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This article is written by Anshika Gubrele, second-year B.A. LL.B student of Bharati Vidyapeeth New Law College, Pune. In this article, she discusses the establishment of CBI and how it functions in the country. The author also discusses the difference between State police forces and CBI with an emphasis on the controversies that CBI was a part of in the past years.

Introduction

The Central Bureau of Investigation (CBI) is a premier investigating police agency in India. It serves as the main agency of the Central Government and is responsible for a wide variety of criminal and national security matters. It was established on April 1, 1963, and draws its power from the Special Police Force (SPE). Later on, it was brought under the Home Ministry of Government of India.

Being a specialised agency, CBI mainly takes up the responsibility of investigation of crimes related to corruption by public officials and other economic offences including frauds and scandals. It does not take up cases of general and routine nature as the Police forces. It acts as a watchdog of the nation mainly dealing with economic and conventional offences in order to protect national security. CBI is headquartered in New Delhi. The currently serving Director is Rishi Kumar Shukla.

Historical Background

In the initial days of World War-II, the offences related to bribery and corruption were at its peak. It was soon realized by the Government of British India that there was a need to establish an agency that could especially deal with these scandalous and unscrupulous offences as the prevailing law enforcement agencies or the Police were not enough to tackle all these situations. Thus, in 1941, an order was issued by the British Indian Government to set up the Special Police Establishment which could investigate and look into the cases of bribery and corruption.

In 1943, a Special Police Force was constituted by an ordinance of the Government and after the ordinance got lapsed on 30th September 1946, it was replaced by the Delhi Special Police Establishment Act, 1946. The Central Bureau of Investigation has been acquiring its power from this Delhi Special Police Establishment Act, 1946.

It was later realized by the Government that a Central Police Agency should be there that could not only handle the increasing cases of corruption and other malpractices but also fraudulent cases and crimes committed by professional criminals. Therefore, a resolution was drafted and the Central Bureau of Investigation was set up on 1st April 1963 by the Government of India.

Resolution of CBI

The resolution of CBI can be read as under –

“No. 4/31/61-T GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS New Delhi, the 1st April, 1963 RESOLUTION The Government of India have established Central Bureau of Investigation for dealing with crimes that are currently under the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular importance from a social point of view; the conduct of Police research, and the coordination of laws relating to crime.

As the first step in that direction, the Government of India have decided to set up with effect from 1st April 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely:-

1. Investigation and Anti-corruption Division. (Delhi Special Police Establishment).
2. Technical Division.
3. Crime Records and Statistics Division.
4. Research Division.
5. Legal Division & General Division.
6. Administration Division.

The Charter of the function of the above-said Divisions will be as given in the Annexure. The assistance of the Central Bureau of Investigation will also be available to the State Police Forces on request for investigating and assisting in the investigation of interstate crime and other difficult criminal cases.

Sd/- (V. VISWANATHAN)

Secretary to the Government of India”

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Organization and Composition of CBI

CBI is a federal investigation agency. Earlier, CBI had 6 divisions including:-

1. Investigation & Anti-Corruption Division (Delhi Special Police Establishment)
2. Technical Division
3. Crime Records and Statistics Division
4. Research Division
5. Legal and General Division
6. Administration Division

But later the existing legal division was reconstituted in July 2001, following are the 7 divisions of CBI at present:-

1. Anti Corruption Division
2. Economic Offences Division
3. Special Crimes Division
4. Directorate of Prosecution.
5. Administration Division
6. Policy & Coordination 
7. Central Forensic Science Laboratory

The CBI is headed by a Director who is assisted by a Special Director. Further, it comprises of the joint directors, deputy inspector generals, superintendents of police and all other ranks of police personnel.

In total, it has about 5000 staff members, 125 forensic scientists, and 250 law officers.

How CBI functions?

The CBI investigates major crimes happening around the country. It acts as the National Central Bureau of Interpol in India. The following are the functions of CBI:-

1. Investigation of cases related to corruption, scams, and misbehaviour of central government officials
2. Investigation of serious crimes having national and international ramifications.
3. Maintaining crime statistics and disseminate criminal information, etc.

Provision of prior information

The CBI is required to seek prior approval of the central government before conducting an investigation into an offence committed by officers of the rank of joint secretary and higher ranked officers in the central government. However, on 6th May 2014, the Supreme Court held it as invalid under the prevention of Corruption Act.

A constitutional bench held that section 6A of the Delhi Special Police Establishment Act, which provided protection to Joint Secretary and other higher authorities from facing even a preliminary inquiry by the CBI in any corruption case was a violation of Article 14 of the Indian Constitution.

What are the differences between the Central Bureau of Investigation and State Police Forces?

• CBI is an investigating agency dealing with the investigation of the criminal cases whereas the state police have to perform numerous other tasks as well.
• The level of crime investigation work and supervision is much higher in the CBI than what is there In the state police forces.
• Unlike the state police, the CBI is not needed to tackle with the general public using force whenever required.
• CBI works under the central government and reports to PM while the State police works under the State government and reports to the Chief Minister of the particular State.
• The tenure of the CBI director is fixed and he cannot be removed anytime before it unless the government of India permits but the Chief of State police has no such fixed tenure and can be removed by State government.

The conviction rate of CBI

Although the overall conviction rate in cases registered by the CBI was 69.02%, 65.1% and 66.8% in 2014, 2015 and 2016 respectively, studies have pointed out that the success ratio in corruption cases stands around a dismal of 3%. In a written reply to the Lok Sabha in December 2017, Jitendra Singh admitted that in the past four years 3,260 people booked by the CBI in various corruption cases had been acquitted. Of these, 944 people were acquitted in 2016, 821 in 2015 and 748 in 2014.

Controversies

Two things are very essential for such a specialized agency to work- investigating skills and impartiality. CBI is said to be not very efficient and is called partial when it comes to dealing with crimes committed by higher ranked officers or politicians. Here is a look at some controversial things that hit CBI within the years:

• Supreme Court calling CBI a “Caged Parrot”

In the year 2013 Supreme Court called CBI a “caged parrot” as there was clear evidence for the coal blocks allocation case which hints that the government was using the agency for their own benefits. Thus, the Supreme Court criticized the agency making the remark and stated that the CBI must know how to cope up with the government pressure and must know how to take a stand for itself.

• Allegations against Special Director and Director of CBI

P. Singh, former CBI director, was accused of corruption and bribery by the central investigating agency and was in the headlines because of his links with controversial meat exporter Moin Qureshi. The former Special Director Rakesh Asthana was also accused of corruption in 2017.

• Bansal family suicide case

Former Director General of foreign affairs B. K. Bansal and his family committed suicide in 2016 and it was found in their suicide notes that they accused some Central Bureau Investigation officials of threatening them.

• Ranjit Sinha’s Case

The then CBI chief Ranjit Sinha was accused of being involved in a corruption case. The Supreme Court asked CBI special director ML Sharma to look into the case but the investigation against Sinha is yet to be completed.

• Sohrabuddin Case

CBI was also accused of favouring former ruling party Congress against its opposition BJP. The CBI during the investigation of Sohrabuddin case in Gujarat pressurised Geeta Johri who was also investigating the same case to falsely implicate former Gujarat Minister Amit Shah.

Central Vigilance Committee (CVC) to oversee the Central Bureau of Investigation (CBI)

The Central Vigilance Committee shall be responsible to oversee the functioning of the CBI in order to ensure its efficient functioning while Government will also be responsible for overviewing the CBI and keeping an eye on it with respect to its mechanism to ensure impartial working. The CBI needs to inform and report to the CVC in matters related to its investigation. CVC must know what kind of cases are being taken by CBI for investigation and how is the progress of the investigation going on.

The CVC is responsible to review the progress of all pending cases moved by the CBI for sanction of prosecution of public servants, especially those in which sanction has been delayed or refused.

The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently. The CVC shall have a separate section in its Annual Report on the CBI’s functioning after the supervisory function is given in the hands of it.

Present Scenario

After being caught in so many controversies, CBI is appearing to be more like a train wreck in slow motion. Looking at the terrible conditions, it can be said that there is a need to change the mechanism of our institutions. The main problems of CBI can also be identified as it is not a legal entity and is used by the government to fulfil its needs (Supreme Court’s caged parrot remark).

Thus CBI needs to function impartially and effectively. For this, certain measures are essential and must be taken care of. One of the measures can be, legally defining the status and powers of the CBI and not allowing every affluent person to enjoy the exemption. Thus there is a need for CBI to undergo reform.

Conclusion

The Central Bureau of Investigation basically deals with cases related to matters of national security and does not interfere in trivial cases. Though being an elite force of the nation still it needs to undergo structural reforms to work efficiently. The most important reason behind this is its way of tackling politically sensitive issues with ending up to be a part of controversies.

After being called a “Caged Parrot” by the Supreme Court, it continues to disappoint people when dealing with any case against the superior. In order to obtain the public’s confidence back and restore the integrity of CBI, it needs to have financial autonomy and most importantly it must have a statutory status through legislation as provided to Comptroller and Auditor General and Election Commission of India.

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