This article is written by Yash Jain, a third-year student of Institute of Law, Nirma University. The article discusses the concept of One Rank One Pension in India and its origin in India and the intricate issues related to One Rank One Pension. The author also highlights why there is a need to bring One Rank One Pension in India.

OROP is not an anecdote of strive and struggle, but reverence in the form of justice which the protectors of our nation rightfully deserve.

Introduction

One Rank One Pension has its roots deeply embedded into the Indian social order. There are varied interpretations of OROP but a general definition of OROP denotes “the same pension to be paid to the Armed Forces Personnel retiring in the same rank with the same length of service irrespective of their date of retirement and any future enhancement in the rates of pension be automatically passed on to the past pensioners.”

For example, consider an officer ‘A’ who had been in service for 15 years from 1987 to 2002. Also, consider another officer ‘B’ of the same rank who has been in service for 15 years from 2002 to 2017. As per the OROP system, both officers had the same rank and the same length of service should get the same pension. This is what the military officers want and is the fundamental argument for OROP. Since the ex-servicemen have to wait for a particular interval to end before receiving the enhanced pension, the definition of OROP looks distorted and deformed. Moreover, questions regarding the payment of arrears, i.e. whether they will be entitled to arrears and from which point will the arrears be calculated to remain critical to the issue of One Rank One Pension.    

There has been a long tussle between the government and retired personnel over One Rank One Pension which has engendered distrust in them. The fulcrum of the debate is the brawl between civilian bureaucracy and the military where both seemed to find ways to fulfil their own interests. While the ex-servicemen stand rigid on their demands, government officials continuously quibble on minor objections for granting one rank one pension.

The three uniformed services of the nation namely: the Indian Army, the Indian Navy and the Indian Air Force are coherent to OROP. For that, the system of OROP should be effective which will ameliorate the status of retired personnel. The topic of One Rank One Pension has played a pivotal role in the nation throughout the years since it is an integral part of a veteran’s life. A drastic change can be seen in the salary of a person after the inclusion of OROP in the income.

One Rank One Pension in India

The battle that started from the 1970s, a shift took place post-1971 war, Indira Gandhi led Congress took an ex-parte decision and terminated the OROP which deliver the status of One Rank One Pension to simmer. In 1973 with the upcoming of the third pay commission the government took the following decisions :

• Increased the pension of civilians from 30 to 50 percent.
• Reduced the pension of Non Commissioned Officers (NCOs) and Junior Commissioned Officers (JCOs) by 20 percent.
• The mandatory service for full pension was reduced to 25 years. As soldiers in 1973 retired after 15 years service, at the age of 33-36, they got less than 30 percent of the pay as a pension.
• Soldiers pension was decreased by 40 percent from 70 to 30 percent.
• The government in addition to downgrading military pensions downgraded the status of the soldier by equating “infantry soldier with less than three years’ service” with a “semi-skilled/unskilled labour”.

To address the growing anomaly, the Indian Ex-Servicemen Movement was started in 2008. It led to a massive hunger strike in 2009. As a mark of protest, many ex-servicemen returned their medals and awards to the President of India. Even, the Supreme Court of India urged the government to address the case sympathetically. In 2010, the Parliament examined OROP for retired servicemen and a Rajya Sabha Committee named Koshyari Committee was constituted for the examination of pension of the Armed Forces Personnel.

Koshyari Committee Report on One Rank One Pension

A 10 member panel was constituted under the leadership of Bhagat Singh Koshyari to examine the intricacies of OROP. The “Koshyari Committee Report” undoubtedly found that the demands of Armed Forces Personnel for OROP are justified and should be upheld. The Committee laid down the definition of OROP as “uniform pension be paid to armed forces personnel retiring in the same rank with the same length of service irrespective of their date of retirement and any future enhancements in the rate of pension to be automatically passed on to the past pensioners.”

This concise explanation was accepted by the veterans and the government and is regarded as the basis for the demands of ex-servicemen’s. Unlike the civilian administration where the retirement age is 60 years, defence administration restricts the age bar at around 40 years. At the time of retirement when family obligations are on the head, the ex-servicemen have no source of income which ultimately makes the family vulnerable. Also, coming from such a background where the nature of work and skills are restricted to a particular field, finding a job in civil areas looks like a herculean task.

Judicial Pronouncements on One Rank One Pension

The basic underlying principle behind One Rank One Pension is the violation of the “Fundamental Right to Equality”. Right to Equality is enshrined in Article 14 of the Constitution which states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The contention was that an officer of higher rank who retired earlier got lesser income as compared to another officer of the lower rank who retired later, as he saw a gradual increase in the pension which was a result of the subsequent Pay Commissions. Therefore, it resulted in inequality among the two officers violating there right of equal pay for equal work that is there fundamental right to equality.

In D.S. Nakara & others v. Union of India, the court held that “pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer. It is not an ex-gratia payment but it is a payment for the past service rendered. Pension is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in a lurch.”

The Ministry of Finance was of the view that granting One Rank One Pension will also generate the same kind of demands from the non-military personnel also. The abovementioned view, of the Ministry of Finance, however, is incoherent with Article 14, as it “permits reasonable classification, but is not in favour of class legislation”. Nature of job and work conditions of armed forces and civilian employees are highly different and thus, combining these two classes exclusively for the purpose of distribution of pension is violative of Article 14. Koshyari Committee was of a similar view that, the job conditions of armed forces and civilian employees were altogether different. Armed forces come under the purview of “Court Martial System” that instil military order, exposure to danger, indefinite working hours, uncertainty of life and above all they are subject to restricted fundamental rights.  

Furthermore, in the case of Maneka Gandhi v. Union of India, the doctrine of Intelligible Differentia was elucidated stating that, “Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.”

Hurdles in Implementation of One Rank One Pension

The foundational argument for implementing the OROP is that every nation needs a “young army” which means soldiers need to retire early. Civilian servants continue to serve till the age of 60, a soldier retires at an age much earlier than a civilian. A civilian might seek 3 or 4 pay commissions in his service and a soldier at best only seek 2 pay commission in his service. So, the last salary drawn by the soldier will be much lesser than the last salary drawn by a civilian.

Therefore, it financially impinges the same person who joined the government office at the same time but for no reason or for no choice is forced to leave the service much earlier. Thus, it is not financially beneficial for the veteran. Also, people who retire early do not find many options outside. There is an absence of lateral absorption in government jobs after service. So there is a moral obligation which the government holds towards these veterans.

Lost in the emotional sentiments the government even after promising and setting aside budget for OROP is unable to properly implement the scheme. The ever-increasing pension liability hits the Defence Sector robustly. It is an administrative challenge for the authorities to trace the records by going back to decades. Above all, the biggest hurdle is the financial hurdle which for all reasons looks inescapable.        

Impact of OROP on Financial Budget of India

OROP is a subject of Public Policy and comes within the ambit of “executive policymaking”. It surpassingly impacts the financial status of the country. Setting aside a hefty amount from the budget is a tough task for the ministry. The financial hurdle was estimated to be 8000-10000 crore rupees which will further increase on the revision of every salary.

The Koshyari Committee observed that the financial liability of OROP for the year 2011-2012 is Rs.1300 crores. The committee observed that this is not a big amount for a country having such a big economy and size. The committee significantly contemplated the fact that Rs.1300 Crores is the budget for one year, and it may increase at a rate of 10% per year, yet, it is an acceptable amount considering the financial budget of the nation.  

Current Status of One Rank One Pension

The present NDA government has accepted the formula of OROP and has already released Rs. 5500 crores to serve the purpose, but still, the demands from the veterans side seem innumerable.

Conclusion & Suggestions

One Rank One Pension is the long-standing pension reforms demand of the Indian Armed Forces. Veterans see OROP as a stepping stone for their beneficial future. It will not only help the veterans but also help their family members to have a stable future. Since the veterans retire at a critical age, the pension benefits will act as a catalyst for them. Serving the Armed Forces where every day they are exposed to so many life threats, keeping their interest at a paramount level should be the primary task of the government.

The Indian administration has a history of slowish modernization and the concept of One Rank One Pension still seems to be unimplemented. The resources are scarce but the desires and wants of people are unlimited and therefore bureaucrats and military personnel find it difficult to arrive at a common objective. It will thus be interesting to see what will happen in future discourse.

References

1. https://www.orfonline.org/wp-content/uploads/2016/02/Issue-Brief-127.pdf.
2. https://www.thehindu.com/news/national/govt-likely-to-announce-orop-today-top-developments/article7619025.ece.
3. https://www.legallyindia.com/views/entry/one-rank-one-pension-not-a-pandora-s-box.
4. https://www.firstpost.com/politics/military-veterans-rising-fury-no-action-by-modi-govt-on-one-rank-one-pension-is-betrayal-2271396.htm.
5. https://seclpp.wordpress.com/2019/04/21/one-rank-one-pension-a-delusion/#more-152.
6. https://www.clearias.com/one-rank-one-pension-scheme-orop/.
7. https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/Koshyari_Committee_Report_On_Grant_Of_One_Rank_One_Pension.htm.

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This is written by Ayushi Dubey, of Institute of Law Nirma University. The article discusses the reservation debate between the drafters of the constitution that took place in the Constituent Assembly and brings out major arguments from the debate.

Introduction

The Constituent Assembly in India, for the first time, met on 9 December 1946 and took three years to frame the world’s largest constitution- the Indian constitution. The members of the Assembly were indirectly elected by the members of the provincial assemblies that existed during the British Raj. The drafting of the constitution was not an easy task, it took months and years of debates and discussions to arrive at the final draft of the constitution and then the constitution was enacted on January 26, 1950.

Among all the debates that took place in the assembly, the debate on reservation was among the most prominent ones. When Britishers left India, the country was shattered into pieces and it was the need of the time to bring all the pieces together in order to run the country. When the assembly met for the framing of the Constitution, all classes of the society were addressed , be it be the upper-class Hindus or the lower caste. And since, the fact that class and caste discrimination are deeply rooted in India cannot be denied, policies such as reservation had to be included to achieve the principles of democracy.

Need for reservation

India is a vast country with different cultural and religious backgrounds. With a population of almost 134 crores, it becomes important to ensure the interests of all. And to safeguard the rights of the socially and educationally backward classes, to assimilate all the sections of the society into the national mainstream, the issue of reservation was raised by  Dr. B. R. Ambedkar in the assembly.

There are certain classes who have not been given adequate opportunities in the past due to the rigid hierarchies and monopolistic governments of  that time. But if a constitution is being framed for a democratic country then all the sections of the society should get represented and special provisions should be made for the upliftment of those at the bottom. They should be given their chance to overcome the difficulties that exist in their lives. And for this the government has to work on the principle of equity which means providing proportional equality. The protection of the minorities against the interest of the majority was one of the fundamental concerns behind the reservation policy. This led to a serious discussion in the assembly, followed by the conflicting interests of people.

Parameters of reservation

Soon after the motion for reservation of backward classes was passed, the discussion started, as to how and on what parameters will reservation be provided. Basically, the question was who would be the beneficiaries of the reservation and who all should be counted in the backward classes. Many members of the assembly put forward their views and opinions regarding the same.

The discussion started with giving reservation proportional to the population of a particular backward class. For example, if X state has 35% of depressed class population and Y state has 20% then, the reserved seats in the state of X would be more in number than the reserved seats in the state of Y. This policy helps in effective and equal representation of the depressed classes with regard to the population of the particular state. The major arguers of this policy were S Nagappa and Jaipal Singh, who were members of the depressed classes. They demanded representation in the cabinet as well.

Secondly, the constitution originally provided reservation for 10 years, but the members from the schedule caste put forward that the policy shall either renew after 10 years or the 10 year period clause shall abolish. In case, if

1. There is no substantial progress.
2. There is a need for more progress.
3. There is no change in the situation of the depressed classes even after the 10 years of reservation.

Jaipal Singh also argued for the rights and dignity of the Adivasis. He said that Adivasis are the original inhabitants of the country, they have their own laws and they manage their areas better than the mainstream democracy. But he argued that they should be given their due recognition and for that they don’t require any special treatment but they want to be treated like every other Indian. He argued that Adivasis don’t need the safeguards that the objective resolution is talking about rather they need protection from the ministers.

Controversial issues in the debate

When people with different interests come together to discuss a common objective, conflicts can arise and there are chances that various issues would raise. Some of them might get resolved and some might not. But there would always be some issues which would create a lot of fuss and controversy, which would get the highest limelight and hence marked in history. Similarly, when the constituent assembly was dealing with the reservation policy, many controversial issues arose at that time.

One issue was raised when the members referred to the Poona Pact during the debate. H.J. Kandenkar reminded the assembly about the pact by stating its failure to achieve the goal by reservation. The Poona Pact provided for separate electorate for the depressed classes for their benefit but the result that came out was not the desired one. The classes were to have 28 seats (depressed class population was 25%) in the central province but got only 20 according to the pact. Kandenkar argued that this would count as injustice and hence reservation should be given proportional to the population.

Another major issue was raised when people that were against reservation made the point that the presence of Dr. Ambedkar in the assembly as the chairman of the drafting committee and the law minister, clearly points out that the nation has made progress already and reservation is not required. Ambedkar not only possessed symbolic but real authority. The contrasting opinion was that the appointment of Ambedkar on such high post and giving him the right to access his powers was just a political move by the Indian National Congress. In fact, Congress was using Ambedkar’s skills as a lawyer, for their benefit.

Major arguments of the debate

The constitutional assembly came up with a number of arguments while debating on the issue of reservation. The basic argument upon which the whole debate was based was that there are classes in the society which have not been given their share in the society. They are underprivileged because of the lack of opportunities. They have not been given their rights and due recognition in the society and therefore if the assembly is formed to create a constitution for the future, then, the depressed classes should be given adequate safeguards.

The Constitution provides equality for all and by equality we mean equity. If people have not started from the same point then they should not be given equal facilities to reach the destination. Obviously to achieve equality some special rights have to be given to those people who lag behind and hence the point of reservation was put forward.There are unfortunate countrymen who have not given ample opportunities to jobs, education, luxury life etc. and therefore special attempts should be made for them so that they can come at par with the rest of the nation.

Making policies is easy but one has to ensure whether the formulated policies are effective or would achieve the desired goal. A similar thing happened when the effectiveness of separate electorate was raised in the assembly. It was raised by a member from the assembly that the depressed classes or the Harijans are economic slaves. Even if you give them separate electorate powerful people with money can exploit them by buying them and then a Harijan leader would only be there for the sake of name and the people with power and money would run the government. Hence separate electorate was considered useless to safeguard the rights of Harijans and rather the point that economic help should be provided was raised.

Subsequent to the debate a report on minority rights was presented in the assembly by Sardar Vallabh Bhai Patel. The report held that the minorities would get representation in legislature and reservation of seats according to their population. And, also they would also be eligible to contest for the general seats. The report was passed but some feared for the majority. P. S. Deshmukh feared that the majority would be left marginalised since the majority is quite unclear about their rights and in providing special safeguard to the minority, the majority is being overlooked.

The Result of the Debate  

The rambunctious debate upon reservation, though has not concluded even yet in 2019, but the Constituent Assembly that time arrived at interim solutions and the motion was adopted. Dr. Ambedkar in his endnote discussed upon the following four major amendments that have been put forward by the various assembly members.

1. The first amendment was suggested by Pandit Thakur Das Bhargava, the amendment talked about the representation of Anglo-Indians in the legislative assembly. Bhargava submitted that Anglo-Indians though small in number are advanced people and in place of reservation they were given the power of  nomination. Therefore, it was proposed that this nomination clause should also have an end term of 10 years like other reservations given to Scheduled Castes and scheduled tribes. The situation in India after 10 years would be way more different than the current situation and providing reservation for unlimited period will end the very essence of reservation. This amendment was accepted by Dr. Ambedkar since a similar amendment was moved by Bhargava during the time of the debate on the minority rights reports as well and it was accepted at that time, therefore it was accepted this time as well on similar lines of reasoning.
2. The second amendment in the discussion was the one that was put forward by Mr Naziruddin Ahmed regarding the ambiguity in the time period of ten years. He raised, if the government is in power but the ten years period is expired, whether the people on the reserved posts would have to leave their post or not. He raised that this article is ambiguous in nature since it is not clear that whether the time period starts after the draft of the constitution would be ready or after the first election. Dr. Ambedkar said that the same ambiguities have been cleared by another amendment that was moved by Mr Krishnamacharya and regarding the commencement of the ten years period Ambedkar said, it is yet to be decided.
3. The third amendment in the discussion was the one that was put forward by Mr Monomohan Das and Mr Muniswami together, and it demanded that there shall be no expiration period of the reservation as per now. This amendment was rejected by Dr. Ambedkar since the expiration period has been unanimously decided by the assembly and since the clause has already been added in the constitution, a constitutional amendment would be required to make any changes in it now.
4. Fourthly, Dr. Ambedkar concluded by making several remarks for the scheduled castes. He said that other minorities have got privileges in the past for a longer time, for example, the Muslims were receiving privileges since 1892, Christians from the Constitution of 1920 but the scheduled caste received it from the 1935 constitution and practically from 1937 which were also ceased by 1939. Therefore the Scheduled caste has received benefits only for 2 years by then and hence he believed that they should get a reservation for a longer term. But since the resolution of expiration on ten years has been passed he would not go against it, but yes the option of extension of this period if required, would always be there.

Conclusion

The issue of reservation has not solved even today in India, the parliament and the whole nation is still working on it. Some are actually receiving its benefits while some are suffering. Though the suffering is because of the lack of checks and balances. The parameters that were decided back then cannot work in the present era. The policy needs to be amended with time and by keeping in mind the current needs. Caste-based reservation might not be a solution now, the economy based reservation has to find wider dimensions and then only, India would be able to achieve the constitutional principles of equality and non-discrimination.

References

1. http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C25081949.pdf.
2. https://shodhganga.inflibnet.ac.in/bitstream/10603/12835/14/14_chapter%205.pdf.
3. http://cadindia.clpr.org.in/constitution_assembly_debates.

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This Article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. In this article she gives an overview of Arbitration in India, about its proceedings, agreement and enforcement of foreign awards.

Earlier there were no rights and no laws as people were not educated and didn’t have any knowledge regarding arbitration. But later on, when people started getting civilized, the rights of individuals were considered which also gave birth to conflicts. In such cases, one party used to approach a third person whom they trust and resolve the matter with their suggestions. The same principle applies in today’s era as well. As the need for globalization and commercial market is increasing, more disputes are being seen between the parties related to their contracts and agreement held between them which brings us back to a mutually decided person who will dissolve their dispute and in legal term, known as an “Arbitrator” or “Mediator”. They are the people who are assigned the work to dissolve commercial disputes between the parties being an independent person, without approaching the court and saving their time and money.

Arbitration is considered as an alternative dispute resolution procedure under which mediation and conciliation are also included. It is considered as International commercial arbitration where two parties from two different countries approach an international arbitrator either by their mutual consent or through an arbitration institution and dissolve their dispute accordingly. The alternative dispute resolution procedure has gained importance in the last few years due to the increase in commercial market dispute and also it is a speedy, cost-effective and efficient way of settlement. The United Nations have given due recognition to Model Law of International Commercial Arbitration and Conciliation rules given by the United Nations Commission on trade and law ( UNCITRAL). The model law and rules have played a significant role in the settlement of commercial disputes and provided rules to various other countries. These can be adapted and made according to their municipal laws as earlier there was no unified law related to trade and its need was felt with globalization which further gave rise to disputes related to it.

Based on UNCITRAL model law India enacted the Arbitration and Conciliation Act, 1996 further amended in 2015 which deals with domestic and international commercial arbitration in India. The amended Act especially emphasizes minimizing the role of judiciary court in arbitration proceedings and further to consider every arbitration order or award as a decree as it is been considered in civil procedure code. The Act is categorized in two, Part I deals with significant provisions which deal with domestic and International commercial arbitration procedure to be conducted in India irrespective of nationality and Part II talks about enforcement of foreign arbitration award.

In spite of the need for arbitration, there are some disadvantages where arbitration cannot be used as an effective mode of settlement, as:

1. Arbitration lacks in granting authoritative remedies such as permanent injunction and specific performance order.
2. In certain cases, the arbitrators do not have jurisdiction and are excluded to try the case.
3. The cost can be a major factor as, if the arbitration proceeding is delayed, the cost keeps on increasing and especially, in the cases where three arbitrators are appointed by the parties.
4. No appeal can be made for an arbitration order granted by the arbitrator.
5. Lack of cross-examination as the process relies on evidence and not on witnesses.

Arbitration agreement

Defined under Section 2(b) read with Section 7 of the Act.

It can be defined as a written statement or exchange of communication between the parties or any statement made through means of telecommunication. It is not compulsory for the parties to sign or unsign it. Even if an arbitration clause is present in the agreement it would be considered as an arbitration agreement.

Rickners Verwaltung Gmbh vs. Indian Oil Corporation, 1998 stated that the intention of the party in arbitration gathers information in the form of expression and the meaning it conveys. An arbitration agreement would be a statement made by one party regarding the claim in dispute and not denied by the other party.

Non Intervention of Court in the Arbitration process

As per Section 5 of the Arbitration and Conciliation Act, 1996 the court cannot interfere in the arbitration proceeding except wherein provided by the act in the following situations:

• Where an arbitrator needs to be appointed when the parties cannot appoint a mutually independent arbitrator.
• In cases of taking the shreds of evidence.
• Where the court is ruling in the cases as the arbitrator is terminated due to incapacity or other sufficient reasons mentioned under the Act.

Section 8 is a companion section which says “where a party has approached the judicial court to dissolve a dispute and it is exclusively to be trialled by the arbitrator, then the court must direct the person to start the arbitration proceeding first without any delay and may come later to the court when arbitration award has been made.”

Interim measure

A party can seek interim measures for which two avenues are open to them which is:

• Approach the court under Section 9.
• They may approach the arbitral tribunal under Section 17 of the Act.

Section 9 of the Act enables a person to approach the competent court before or after or during the arbitral proceedings are made but before the enforcement of the arbitration award.

In the case, Sundaram Finance v. NEPC, 1999 (2) SCC 479 the Apex Court of India held that if a party approaches the court before the commencement of arbitration proceedings, he must serve a proper notice to the opposite party as to invoking the arbitration and further, the court must satisfy the party as to first approach the arbitrator and take effective steps to settle the dispute without any delay. For this purpose, the court must be satisfied as there exists a valid arbitration agreement between the parties.

Under Section 17 the parties can also approach the arbitral tribunal and in such cases, the tribunal has the power to grant interim measures related to the subject matter in dispute. The interim measures are the urgent measures required by the party to preserve and protect his property, measure related to payment of claim etc.

Arbitrators

Appointment of the Arbitrator

The appointment of arbitrator is given under Section 11 of the Act. The Act provides full freedom to the parties to appoint an arbitrator as of any nationality unless agreed by the parties. However, in the case of failure to appoint an arbitrator the parties can approach the court to make such an appointment. In case of domestic arbitration, the Chief Justice of the High Court has the authority to appoint an arbitrator to the parties and in case of International Commercial Arbitration, the Chief Justice of India has the authority to make such appointment as in India, the foreign disputes must be dealt by the highest judicial officers.

In the case of Konkan Railway Corporation v. Rani Construction Pvt Ltd, 2002 the Supreme Court held that the function of Chief Justice of India and his designates is to ensure the nomination of an arbitrator who is independent, competent and impartial and  settles the dispute between the parties to the best of his knowledge.

Power and Duties of Arbitrator

Challenging an Arbitrator

An arbitrator can be challenged under Section 12 of the Act in the following two circumstances as

• Grounds related to his independence or impartiality.
• If he does not possess sufficient qualifications as to agreed by the parties.

Section 13 talks about the challenge procedure and specifies the time limit under Section 13(2) as within 15 days after becoming aware of the constitution of the Arbitral Tribunal and any other circumstance, the party can make a written statement specifying the reasons to the Arbitral Tribunal and it is the Arbitral Tribunal and not the court who will decide on the matter of challenge.

Termination of an Arbitrator

The Act provides for the termination of an arbitrator under Section 14 of the Act and it can be made in two circumstances which are:

• If he fails to act without undue delay, &
• If he is unable to perform his function due to De jure or De facto.

In case of any controversy in regard to the situation, the parties can approach the court.

Types of Arbitration proceedings

In India, the arbitration proceeding is broadly categorised into Ad-hoc arbitration and institution arbitration.

Under ad hoc arbitration the parties themselves commence the arbitration proceedings and determine the conduct of arbitration proceedings. In ad hoc arbitration if the parties are not able to appoint a mutual arbitrator then either of the parties can invoke Section 11 of the Act. Under ad hoc arbitration the parties and the arbitrator both have to agree on the fee of the arbitration proceedings which is usually expensive.

Under institutional arbitration, arbitration is administered by the arbitration institution. The parties can approach any arbitration institution and they themselves appoint an arbitrator and the proceedings can be commenced. The Indian Institution includes the Indian Council of Arbitration and International Centre for Alternative Dispute Resolution. The International institution includes the International Court of Arbitration, American Arbitration Association. All these institutions have expressly formed rules to deal with all the possible disputes with arbitration proceedings.

Arbitral proceedings

The arbitrators are the masters of the arbitration proceedings and can conduct the proceedings in the manner they feel appropriate. This power includes relevance, the weight of any evidence, admissibility. The only restriction on them is they need to treat both the parties with equality and both parties must be given equal opportunity to present his case, without any biasedness. The Indian Evidence Act, 1872 and the Civil Procedure Code,1908 both do not apply on the arbitration proceedings. Generally, oral documents are been considered on the request of the parties and a further piece of evidence can be presented if required. The arbitrator has the power to grant ex- parte order in a case where the respondent fails to appear in court or without sufficient cause fails to communicate his statement of defence, the arbitrator can grant ex-parte order. However, the court should not treat this order and act of the respondent as admission and use against him to terminate the proceedings.

The Governing law

To determine the rules of law applicable to disputes, the law makes a distinction between the Domestic Arbitration and International Commercial Arbitration proceedings. Under International Commercial Arbitration, the court must apply the law of land, where the dispute arises and as agreed by the parties and in case of failure to do so the tribunal must apply rule of law considering appropriate as per the circumstances. Indian Courts have accepted long back that in case of absence of any arbitration agreement the arbitrator can apply the law which is most closely connected and relevant to the subject matter in dispute. However, the Indian tribunals are obliged to apply substantive law where the parties are Indian. Further, the tribunal can grant award as it deems fit and may pass the interest from the day of arising of the cause of action till the arbitration award has been granted as it seems reasonable. In the amendment Act, 2015 the interest rate has been increased by 2%.

In case of foreign dispute the rate of interest will be governed by The Civil Procedure Code, 1908 as it empowers the court to grant pendente lite interest as well as interest from the day of cause of action until the arbitration award is granted. In the case of commercial disputes, the rate of interest should not increase the contractual interest and in its absence, the tribunal can make interest as generally provided by the recognized banks and institutions.

Arbitral Award

The arbitration award granted by the arbitrator can be challenged under Section 34 of the Act by making an application under it only on the basis of grounds specified therein and they are as follows:

1. The party was under some incapability to make an application;
2. The arbitration agreement agreed by the parties was not valid as per the law;
3. The party making the application was not given proper notice for appointment of the arbitrator or arbitral proceedings;
4. The award made is out of the Scope of arbitration and does not deal with the dispute;
5. The award made is contrary to public policy;
6. The subject matter dealt is not capable of settlement by Arbitration.

An application to set aside the award must be made within 3 months from the date of receipt of such award by the applicant which can be further extended to 30 days on giving sufficient cause of delay.

The Saw Pipes Judgement

The Case of ONGC v. Saw Pipes Ltd., AIR 2003 SC 262 was a landmark case in the history of arbitration. The courts do not have the power to deal with the Arbitration proceedings but however, it was put into test. The court was concerned about the arbitration award which disallowed the liquidated damages. Under Indian law, it is covered under Section 74 of Indian Contract Act, 1872. In the proceedings, it was held that the award granted if violates any Act or any provision of law will also be a ground to set aside the award made. Further, the judgement expanded the concept of public policy and held that if the award is contrary to the public policy, it is clearly illegal.

However, this judgement is only confined to domestic arbitration awards.

Phulchand Export Ltd vs. OOO Patriot, 2011 expression “Public policy” is defined under Section 48(2)(b) of the Act, has a deep meaning and award can be set aside, if it is clearly illegal.  

International Commercial Arbitration

International Commercial Arbitration is defined under Section 2(f) of the Act. The Act governs not International Arbitration and the Domestic Arbitration but in these two situations it differs from each other under Part I of the Act and which is as follows:

1. In case of appointment of an arbitrator;
2. In relation to determining the governing law.

It can be defined as an arbitration where at least one of the parties which can be an individual, a company or association of individuals who are from outside of India and habitually reside out of the jurisdiction of India in any other country whose Central management is controlled in any other country and not by the Indian government.

Enforcement of Foreign award

The enforcement of the foreign award is given under Part II of the Act which relates to both the New York Convention award and Geneva Convention award.

Definition of Foreign award

Under Section 44 of the Act, it is given that an Arbitration award made by any county to whom the Central government recognises as a territory by making a notification and to whom the New York Convention applies. Even if a country is a signatory to the New York Convention this does not mean that their award can be made in India, there has to be a further notification by the Central government to recognise it as a territory.

So far only 43 countries have  been recognised by the Central government to be a territory and execute their award in India.

In 2012, the face of International Commercial Arbitration changed when the Supreme Court of India made a judgement in the case of Bharat Aluminium Co. V. Kaiser Aluminium technical services Ltd, (2012) 9 SCC 552. Mostly commonly known as BALCO case and gave the following guidelines as:

1. In the case of International Commercial Arbitration where the seat is outside India, no application can be made in Indian courts for interim relief and they don’t have any authority in this regard.
2. The award granted in International Commercial Arbitration will be subject to Indian jurisdiction only when they are to be enforceable in India.

Requirements for enforcement of Foreign award

The following essential must be made to enforce any foreign award and they are:  

1. Original award or authorized copy where the award was made;
2. Evidence to prove that it is a foreign award;
3. The award must be given in a Convention country;
4. The agreement must be in writing;
5. The agreement must be valid and should arise from a Commercial agreement.
6. The award made must be unambiguous.

Khardah company v. Raymond and Co, AIR 1962 SC 1810

In this case, the Court held that a foreign award cannot be made to be enforceable in India if it’s integral part is declared to be illegal.

Koch Navigation v. Hindustan Petroleum Corporation, AIR 1989 SC 2198

In this case, the Court held that to give effect to the award it must be clear, unambiguous and capable of enforcement through Indian law.

Unenforceable award

An Indian court can refuse to enforce a foreign award if it falls under any of the following categories:

1. The agreement is void in nature;
2. The parties to the agreement are under some sort of incapacity;
3. The party making the application was not given proper notice for appointment of the arbitrator or arbitral proceedings;
4. The award made is out of the scope of the arbitrator and does not deal with the dispute;
5. The award made is contrary to public policy;
6. The subject matter dealt is not capable of settlement by Arbitration.

Conditions for enforcement of Foreign award

Where the Court is satisfied that the award made is capable of enforcement it should be deemed to be a decree and executed in the same way as given under CPC, 1908. Basically, there are a few noteworthy differences between Section 34 and 48 of the Act as under Section 34 under domestic award the court can set aside an award whereas in section 48 the court can only refuse to execute the foreign award and cannot set aside it. The only way to set aside a foreign award in India is by way of filling a Civil Suit under the Specific Relief Act.

The second difference between the two Sections is under foreign award, there exists an additional ground where the court can deny to execute the decree as to whether it is binding on the parties or not. If the decree passed does not bind the parties it can be refused to be enforced in India.

An appeal lies from an order of the court where it refused to enforce a foreign award but surprisingly no appeal can be made where the Court has rejected the objections to enforcing a foreign award. However, the Constitutional remedy can be approached by the parties under Article 136 as a special leave petition to the Supreme court.

Limitation Period for enforcement of awards

1. Domestic award

As the Arbitration award passed under Arbitration proceedings is considered as a decree in the Case of M/s Umesh Girl v. Himachal Pradesh cooperative group housing Society, 2016 (11) SCC 313 the Supreme Court of India held that according to Limitation Act, 1963 the limited time period for enforcement of a decree is twelve years.

2. Foreign award

Various Courts have given their interpretation in this regard and it varies from each other. The Bombay High Court has held that as the foreign award is not a decree a Competent Court is required to make it enforceable and make it binding on the parties which involve a two-step procedure for which the limitation period would be 3 years for recognizing a foreign award as binding on the parties and thereafter, further 12 years are present to enforce the decree. On the Other hand, the Madras High Court has ruled an opposite judgement and held that the foreign award is similar to the domestic award and it is already stamped therefore, no procedure is required and parties can straight away apply for its execution and 12 years are present to enforce the foreign award as a decree in India.

Conclusion

In the early period, the Concept of Arbitration was introduced but by the efforts of due recognition to Model Law of International Commercial Arbitration and Conciliation rules given by the United Nations Commission on trade and law ( UNCITRAL). The model law and rules have played a significant role in the settlement of commercial disputes and provided rules to various other countries which they can adapt and make according to their municipal laws as earlier there was no unified law related to trade and its need felt when globalization started which further gave rise to disputes related to it. Further the Act was amended in 2015 with better updates.

Reference  

1. https://www.vakilno1.com/legal-news/law-of-arbitration-in-india-in-a-nutshell.html
2. https://www.lexology.com/library/detail.aspx?g=72bcbbe3-c139-46f2-b9ce-086394161f41
3. https://www.myadvo.in/blog/steps-of-arbitration-in-india/

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This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the Islamic Law of Will and the differences between the Sunni and Shia Law with regard to the Laws relating to Will.

Introduction

There are enormous ways to make disposition of property in Hindu law as well as in Islamic Law. Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf or by accessing his testamentary powers i.e. by making a Will.

The concept of a Will under Islamic law is a sort of bargain between two different propensities. One, the view of the prophet is clear that after the death of a person, his property has to be distributed to his heirs and this rule is considered as divine law and any interference to it is unacceptable. On the other hand, it is a moral duty of every Muslim to make appropriate arrangements for his property after his death.

Meaning and nature of Will

Conventionally, a Will, also called ‘testament’ is an implement which enables a person to dispose of his own property to someone whom he wants to give after his death. A Will comes into effect only after the death of the person who created the Will. A Will is a legal declaration of transfer of property by a person after his death.

In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person who executes the Will is called ‘legator’ or ‘testator’ and the person in whose favour the Will is made is known as ‘legatee’ or ‘testatrix’. A very famous Muslim scholar ‘Ameer Ali’ defined a Will from the point of view of Mussalman as a divine institution because its exercise is regulated by the Holy Quran. At the same time, Prophet had proclaimed that such testamentary powers must not exert any damage to the lawful heirs.

There is a strict rule in Islamic law that governs the validity of a Will. According to this rule, a Muslim can make a Will in favour of anyone, only to the extent of one-third of his total property. If the Will is made beyond one-third of the property, the consent of the legal heirs is mandatory no matter in whose favour the Will is made.

It can be hypothesized that a Will is a kind of gratuitous transfer of ownership made through a testamentary document which comes into play after the death of the legator. As far as the legal concept of Will is concerned, basically it is a gift testamentary.   

Essentials of a valid Will

If we talk about the legal validity of a Will under Muslim law, there are certain requisites which make a Will apt and capable of taking effect. Thus, the following discussed requirements must be satisfied:

• The legator must be competent to make a Will.
• The legatee must be capable of taking such endowment.
• The property which is endowed by the legator must be a bequeathable property.
• Free consent of the legator and the legatee.
• The legator must possess testamentary rights over the property.

Who can make a Will?

In order to constitute a valid Will, the competency of the legator is the foremost requirement. A legator is considered to be capable to make a Will if he holds the following discussed features.

• He must be a Muslim

A Will made by a Muslim only is considered as an authentic Will under Islamic law. If a legator is Muslim at the time of execution of the Will then only the Will is governed by the Muslim Personal Law.

In a case where a Muslim has married under the Special Marriage Act, 1954, the Will made by such Muslim is regulated by the provisions of the Indian Succession Act, 1925 and not by the Muslim Personal Law.

A situation may arise where the legator is a Muslim when he executed the Will but afterwards renounced Islam, thus recognized as a non-muslim at the time of death. A Will created by such a Muslim is considered as a valid Will under Muslim law.

Since there are two schools of Muslim with different views, so, it must be noted that a Will is governed by the rule of that school to which the legator belongs at the time of the declaration of the Will. For example, if a legator is a Sunni Muslim at the time of the creation of the Will, then the Sunni Laws of Will is pertinent.

• Soundness of mind

When the Will is being made, the legator must be sane. Under Muslim law, it has been quoted that a legator must possess a perfect ‘disposing mind’ at the time of execution of a Will. In other words, a legator must be competent to understand his actions and the legal consequences of what he is doing not only for the particular time period when the Will is being made but also sustain the same till his death.

If a legator is of sound mind when the Will is declared and subsequently turns insane and remains the same till death then, the Will made by such legator becomes void. On the other hand, if a legator executed a Will while he is insane then also the Will is considered as null and void even if he recovers the insanity afterwards and remains the same till death.

A Will made by an insane during his lucid interval will remain valid only if the insanity does not last for more than a period of 6 months. An insane person cannot ratify the Will after reattaining his sanity.

• Age of majority

The legator must attain the age of majority at the time of execution of the Will. In general, the age of majority under Muslim law is regulated by the Indian Majority Act, 1875, with the exception in the case related to marriage, dower and divorce.

Under the Indian Majority Act, the age of majority is specified as 18 years in ordinary case and 21 years if the person is under the supervision of Courts of Wards. Any Will executed by a minor is considered to be void. The validity of such Will is suspended till the legator attains majority. Therefore, in order to create a valid Will, a legator should be of 18 years or 21 years as the case may be. As soon as the legator turns into a major and ratifies the Will, the Will becomes valid in nature.

• Attempt to suicide by Legator

If a Will is executed by a person who has attempted to commit suicide, such a Will is contemplated as void under the Shia law. The logic behind this rule is that if a person has attempted suicide, he cannot be held in his normal state of mind rather, he is assumed to be mentally unstable and disturbed.

For example, a person who takes poison or seriously hurt himself and executes a Will before his death then, the Will is declared as null and void.

However, under Sunni law, a Will executed in such circumstances is completely valid. Moreover, both Shia and Sunni law upheld the validity of a Will declared by a legator before attempting to commit suicide.

• Consent of Legator

While executing a Will, the free consent of the legator is mandatory. Any Will, if found to be executed by a legator under coercion, undue influence or fraud Will be treated as null and void and the legatee Will not be entitled to get any property under that Will.

The free consent is generally presumed by the law unless proved. But in case of pardanashin lady, the free consent is not presumed and the legatee has to prove that the Will has been executed by the lady exercising her independent discretion.

Who can take property under a Will?

Besides competency of legator, there is one more essential requirement of a valid Will and that is the competency of the legatee. The following are the characteristics of a legatee who is capable of taking a Will executed by a legator.

• He must be a person in existence

A legatee is competent to take a Will on condition that he must be living at the time of death of the legator. This is because a Will comes into effect only after the death of the legator and not when it is made by the legator. Thus, a legatee has to be a person in existence at the time of death of the legator.

A Will can be declared in favour of a non-muslim, minor or an insane person. What is important is that a legatee must be in existence and competent to hold the property. The age, sex, caste, religion, gender and state of mind is insignificant in order to become a lawful legatee. A charitable or religious institution is also capable legatee and any Will in favour of it is lawful.

• Child in mother’s womb

A child in a mother’s womb is treated as a living person and thus, is a competent legatee under Islamic law under two conditions. Firstly, he must be in existence in the mother’s womb at the time of declaration of the Will. Secondly, the child must be born alive within six months from the date of execution of Will under Sunni law and within 10 months under Shia law.

• Murderer of Legator

A Will comes into effect only after the death of legator. Thus there is a possibility that an avaricious and impatient legatee may cause the death of the legator in order to grab the property as soon as possible.

A legatee kills or causes the death of the legator either intentionally or unintentionally is not allowed to take the Will and generally disentitle to take the property. However, under Shia law, if a legatee causes the death of the legator either unintentionally, negligently or accidentally, then he is qualified to take the property and the Will is treated as a valid Will.

• Consent of Legatee

Before transferring legal title to the legatee under a Will, it is important to take the consent of the legatee to know whether he wants to accept the Will or not. The acceptance can be expressed or implied. A legatee has a complete right to disclaim the Will. So, if a legatee declines to own any property bequeathed to him, then the Will is considered to be incomplete and invalid.

• Joint Legatee

Sometimes, legator issues Will jointly in favour of several legatees. In such circumstances, the legatees are known as joint legatees. A Will can be made in favour of joint legatees in two ways-

Where the share is specified

If the share of all the legatees is specified explicitly by the legator himself under the Will, then there arises no point of confusion regarding the share. The property Will be distributed as per the ratio mentioned by the legator in the Will and each legatee Will get the respective share allotted to him.

For example, if a legator executes a Will in favour of his three sons, mentioning that the ratio of the distribution of S1: S2: S3 should be 3:2:1 respectively. Here the property Will be distributed among the three sons in the same ratio as specified by the legator.

Where the share is not specified

It might be possible that under some cases, the share of each legator is not explicitly described. In such cases, applying the general rule, the property is supposed to be divided equally among the legatees. When a Will is made in favour of a class of persons, such class is treated as a single legatee only and each person gets the equal property.

For example, if a legator makes a Will under which the property is to be given to a mosque and the poor people of the locality of the legator, then half of the bequeathable property Will be given to the mosque and the remaining half Will be distributed equally among the poor people in the locality.

Formalities of a Will

Muslim law does not expressly propound any specific formalities for the execution of the Will. The intention of the legator plays a crucial role in validating a Will. The intention must be explicit, clear and unequivocal in nature.

A Will can be made either orally or in writing or even by gestures.

Oral Will

A simple oral declaration is also considered as a valid Will. It is not abiding to follow any particular process or formality in order to constitute a Will. A mere oral declaration is enough. But the burden to corroborate such Will is very hefty. Eventually, an oral Will has to be proved with extreme fidelity with precision in date, time and place.

Written Will

For a Will to be declared in writing, no specific form is described. A Will is valid even if it is not signed by the legator or attested by the witnesses. The name of the document is immaterial. If it possesses the essential characteristics of a Will, then it Will be treated as a valid Will.

Will made by Gestures

Under Islamic law, a Will may be made by gestures. For example, if a sick person makes an endowment and cannot speak due to weakness, gives a nod with his head in a comprehensive way and if it is understood what he is trying to convey and subsequently, he dies without regaining his ability to speak, the bequest is valid and lawful.

The subject matter of a Will

Any type of property, corporeal or incorporeal, moveable or immovable, can constitute the subject matter of the Will. But a legator can bequest a property in a Will only under two conditions-

• If he owns the property at the time of his death.
• The property must be transferable.

A property bequeathed under a Will may or may not exist at the time of execution of Will but it is mandatory that the bequeathed property must be in ownership of the legator at the time of his death. The logic behind this rule is very simple. A Will comes into operation after the death of the legator and the transfer of property to legatee takes place from the date of legator’s death and not from the date of execution.

For example, ‘A’ executes a Will giving all his property to ‘B’. Suppose ‘A’ owns a house at the time of execution of Will but at the time of his death, he owns a car as well. Thus, ‘B’ is entitled to have the house as well as the car under the Will.

Principle limitations on testamentary powers

Contrary to the general rule, there are certain restrictions on the testamentary powers of a Muslim. There are two types of restrictions:

• With respect to the extent of the property that can be bequeathed

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If a Muslim desire to make a Will of his property, he is allowed to do so only to the extent of one-third of the bequeathable property. This extent of one-third is calculated after the expenses of his debts and funeral etc. Any bequest exceeding the limit of one-third Will not come into effect unless the heirs of the legator give their consent to it. In case the heirs do not give their consent, then the bequest Will be valid to the extent of one-third only and the remaining two-thirds Will be transferred through intestate succession.

A Muslim who does not has any heir may bequest his property to anyone and in whatsoever amount he may desire to give. But if a Muslim bequest his property to a non-heir or a stranger, then the consent of the legal heirs is of utmost significance if the property exceeds the one-third of his total property.

The reason is to protect the rights and interests of the legal heirs which may adversely affect in case of such bequest. If heirs give their consent to give an entire property to a stranger, the Will is valid otherwise it is valid to the limit of one-third.

• With respect to the legatees to whom the property is given

Furthermore, the second restriction comes into action only where the legatee is one of the heirs of the legator. Whether the property bequeathed is one-third or less, the consent of the other legal heirs of the legator is a dominant factor in order to establish a valid Will. The ground of this rule is that a legator may make a bequest in favour of one of the legal heirs giving more precedence to him which may result in a feeling of jealousy and enmity among the other heirs. 

On the other hand, Shia law doesn’t discriminate between an heir or a non-heir. A bequest can be made in favour of anyone till the extent of one-third of the property is treated to be valid. Thus, it can be concluded that Shia law provides ample powers to make a Will as compared to Sunni law.

Construction of a Will

Generally, a Will has to be construed in accordance with the rules laid under Islamic law and scrutinizing the language and intention of the legator. A Will is a document which is made by a person during his lifetime and comes into effect after his death. So, a Will must be interpreted to accomplish the intentions of the legator after his death. At certain times, the language may not be clear and the intention of the legator is ambiguous. In such circumstances, it is left to the discretion of the heirs to elucidate such Will in whatever way they want.

For example, a legator bequests a house and a shop for his two sons but doesn’t specify what is given to whom. Here, the content of the bequest is perplexed. Thus, it is up to the option of heirs to mutually decide who wants to take what.

Revocation of a Will

Muslim law grants an emancipated right to legator exercising which he can revoke the Will or any part of the Will executed by him anytime. Similarly, he can add something reasonable to the Will as well.

A legator may revoke the Will either expressly or impliedly.

Express Revocation

An express revocation may be done in oral or in writing. For example, if a legator bequests some of his property to a person and by making a subsequent Will he bequeaths the same property to another person, then the first Will is considered to be revoked automatically.

If legator burns or tears off a Will executed by him, then also the Will is said to be expressly revoked. It is to be noted that mere denial of a Will is not sufficient to amount a Will as revoked. Some action must be taken by the legator which indicates his clear intention for the revocation of the Will. 

Implied Revocation

Any act done by legator contrary to the bequest Will revoke the Will. In other words, an act which leads to the annihilation of the subject-matter of the bequest is considered as an implied revocation of the Will. For example, if a legator executed a Will giving land to a person and builds a house on the same land, or if he sells or gifts that land to someone else, then consequently, the Will is said to be impliedly revoked.

Abatement of Legacies

When a bequest exceeds the limit of one-third and heirs deny to give their consent, the ratio of the legatees is subsidised in order to maintain the rule of bequeathable one-third. This reduction in the legacy of the legatees is known as abatement of legacies. Under the Sunni law, the abatement occurs in a rateable manner (proportionally) whereas in Shia law it is done preferentially.

Rateable distribution

This rule of abatement is followed in under Sunni law. In this method, if a Sunni Muslim bequeaths his property in a certain ratio which the limit of one-third, then the abatement is done in the same ratio in which the property was distributed.

For example, ‘T’ is a Sunni Muslim who makes a Will in favour of A, B and C. Under the Will, he directs to give Rs. 4,500/- to A, Rs. 3,000/- to B and Rs. 1,500/- to C and his total property amounts to Rs. 9,000/-. Now, as per the rule, only one- third of the total property is bequeathable. So, one-third of Rs. 9,000/- equals to Rs. 3000/- which is the required bequeathable property. It can be observed that the legator divided the property among A, B and C in the ratio 3:2:1 respectively. Applying the rateable abatement rule, the shares of A, B and C Will be reduced in the same ratio i.e. 3:2:1. Thus, the share of A Will become Rs. 1,500/-, the share of B becomes Rs. 1,000/- and the share of C turns to be Rs. 500/-.

Preferential distribution

The Shia law recognizes a different rule for abatement. According to this school, if the bequeathable property exceeds one-third of the total property and heirs refuse to give their consent, then the rule of preferential distribution is applied. This implies that no reduction Will be done in the shares of the legatees rather the share Will be given on the preference.

The preference is decided by the order in which the name of the legatees is mentioned under the Will. The legatee whose name is mentioned first Will get his full share as specified in the Will and the remaining Will be passed in favour of the second legatee and so on. As soon as one-third of the property is finished, the distribution comes to its end. Therefore, it can be concluded that either a legatee Will get his full share or he Will get nothing.

For example, ‘T’ is a Shia Muslim who executed a Will under which the share of A is Rs. 2,000/-, the share of B is Rs. 1,000/- and share of C is also Rs. 1,000/-. The total property is Rs.9,000/- which is beyond one-third of the bequeathable property. So, one-third of Rs. 9,000/- comes out to be Rs. 3,000/- which is the required bequeathable amount. Now, according to the preferential rule, A Will get his full share i.e. Rs. 2,000/-, B Will get the remaining Rs. 1,000/- which constitutes his full share and C Will not get any share because the bequeathable property exhausted after the share of B.

Comparison of Sunni and Shia law of Will

The two schools of Muslim law differs at various points when the concept of wasiyat (Will) is considered. Following is a comparison table depicting the points of differences between Sunni and Shia law of Will.

Conclusion

A Will is a device which confers right to property to legatee in a gratuity manner, postponed till the death of the legator. It provides an opportunity for a legator to correct the law of succession to some extent. This is because it empowers some of the relatives to obtain a share in the property who are legally from excluded from inheritance under Islamic law. The Islamic law of Will allows a person to devolve his property upon a person of his own choice. But simultaneously, it maintains a rational balance between the law of inheritance and devolution of property under a Will.

References

1. Muslim law in Modern India by Dr. Paras Diwan
2. http://www.legalserviceindia.com/legal/article-251-concept-of-Will-under-muslim-law.html
3. http://ijlljs.in/wp-content/uploads/2017/08/Will.pdf

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In this article, Akanksha Yadav, a student at Dr. Ram Manohar Lohiya National Law University Lucknow, has explained what decisions an inexperienced lawyer should not make in the initial years of litigation. For writing this article, she has taken guidance from Naman Mohnot and Santwana Agarwal, who have spent a pretty good time in the field of litigation.

It is a well-known quote that practice makes a man perfect. But, this quote needs an amendment for now. It is not just the practice, but it is the right practice which makes a man perfect. 

It takes a lot to become a popular name in the field of litigation. If you are someone who is looking to be that popular name then you should avoid following things in the initial years of litigation for that right practice:

Never start a litigation career directly with the High Court or Supreme Court

In India, the hierarchy of courts can be divided into the following three levels:

1. Supreme Court at the apex.
2. High Courts in the middle of both the extremes
3. District Courts at the lowest level.

Coming to the preference of choosing Court, almost each and every law aspirant has a special value in their heart for the Supreme Court (Personally, when I stepped into the Supreme Court for the first time I could feel “Yeh Court nahi hai mandir hai tera” buzzing in my head). The Supreme Court being the highest court of India, it has a different aura in the field of litigation. But, it is not advised to start your litigation career directly with the Supreme Court not even with the High Court.

Even when it comes to choosing an internship, interns are not advised to proceed directly to the Supreme Court or High Court. In the same way, it is always better to begin your litigation career with the district court. There is one single reason for making this choice, i.e. opportunities and experience that the district court provides to its lawyers.

In the district court, you will learn the basics of interpretation of the law and most importantly drafting work. In the district court, one gets a chance to work more closely on the procedural aspect of the law. You will get a lot of exposure and opportunities to learn in detail which you would never get in any higher court.

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After practising in the district court, you should go for the High Court. And, after spending immense of time in the High Court, you should finally take your step towards the Supreme Court.

Do not start an independent practice

There are two fields of work where a Fiduciary relationship is key: the area of Medical and Legal practices. The trust between client-attorney is the foundation of the relationship in litigation. The clients always prefer a trusted attorney over someone new. No matter how good you are, clients will not come to you if they do not know have reasons or an excellent source to know how good you are.

Especially in India, where ‘name’ works, an independent attorney faces greater difficulties. People generally have a family lawyer whom they trust. In these circumstances, it is next to impossible to survive as someone whom no one knows or trusts as an advocate. So, starting with an experienced advocate is the best choice one has. So, you should focus on making yourself noticed and remarked by someone experienced in the field. In initial years, their name would help you make one for yourself.

Furthermore, if you start up working with an experienced advocate, you will also gain another precious gift, i.e. experience. The practice of law is much different than what the teachers and textbooks in our law school teach us. To get the in-depth knowledge of litigation, you must indulge in practice under the guidance of an experienced lawyer. Choosing such advocates should also be taken care of, as you would not want to work under someone who is so busy that he cannot take time to explain stuff to you.

You should contact your Law School seniors, your relatives or other contacts made during the life in Law School (especially ones you made during your internships). These contacts will help you to find and approach people who have experience and name in the field that you are interested in joining. In fact, there may be some seniors who may want to start their own practice after gaining the required experience. They may be looking for someone like you who is able and willing to work with them.

Do not tag yourself with a particular field

You should never limit yourself to one specific field in the initial years of litigation. Unless and until you have got a high command over a particular field or area, you should keep your ways open. Initial years are meant to gain exposure. You should try yourself in each and every field to recognize what is your interest area and what you are best at.

Do not forget to do your homework

In the field of law, the job of studying never goes away. If you want to make a good career in the field of litigation, you have to continue reading and researching laws. You need to do your research and by heart all the statutory provisions before appearing in court.

Even if you are not arguing a case, you need to be thorough with the case file. Basically, case reading is one of the important tasks you need to get better at with the passage of time. Case reading and applying your mind to it is the key to have a successful career.

Do not expect too much money

I still remember during my CLAT coaching when one of our mentors asked us how come all of us decided to choose law as a career, one of the law aspirants answered that she got inspired from the web series ‘Suits’. And, it is true that the field of law looks so glamorously depicted in it. But the truth is that, unlike Harvey and Mike, you would not be paid much in the initial years of your job.

Even during one of my internships under an advocate, he stated that do not join this field if your parents cannot support you at least for three consecutive years. Though that is the worst scenario, many bright lawyers do not even have to face this phase owing to their hard work.

Do not get overwhelmed if you are a good mooter

“All good mooters are not good lawyers.” No matter how many good moots you have done while you were in your law school, you can still mess up when you are presenting your case before a real judge. Mooting skills are very far from the art of advocacy. All the keen ears and systematic practice you are habitual of will be left way back when you join this field.

You have to get yourself prepared with the fact that mooting has only a little to do with the real litigation. Unlike mooting, you will not be given plenty of time to go into various case laws and their facts for proving your point. Neither you will be able to waste your time on emphasising the court mannerisms nor the judge will be patient enough in most of the cases.

Do not indulge in heated arguments with judges

It is rightly said, “Reading the Law does not win you a case in the Court, reading the judge does.” You should always mind the judge’s temper, and should not lose yours in the Court. If you know the thinking and mindset of the judge you are arguing in front of, it will help you get an edge over your opponent.

You should know what the judge wants from your client. Different people have different personalities, and the subjectivity of the judge plays an important role in deciding the fate of your client’s case. If you get into an argument with the judge, it will be bad for both your client’s case and your career. Your calmness and composure must define you.

You should keep this habit until you are in the field of litigation. This habit will always help you no matter how many years you have passed in the field.

Do not underestimate the value of observing Court proceedings

Observing court proceedings is not only beneficial for the interns but is equally profiting for the litigators. Especially, during your initial years, you should invest your more time in watching and observing the cases. Every courtroom follows a different procedure; every judge has his own style of hearing and accepting arguments. You should reach early and observe a few cases before going to argue one.

Do not choose firms for exposure

You should never immediately join firms after graduating. You should prefer attaching yourself with the senior advocates over joining litigation firm. The reason behind this approach is that firms might provide you with a good sum but would prove futile when it comes to the experience.

Firms mainly assign you clerical tasks which would not help you in enriching your skills. But, at the same time, if you engage with some senior advocate, he or she will help you understand how exactly the law works in the field of litigation. Senior advocates engage in different kinds of work, and they will be able to enrich your knowledge by leading you from basic to the top.

Do not compromise your ethics on any cost

In all the important moment of our lives, we get a choice. There are two options available, the easy way and the right one. What we choose defines our future as well as our image in front of the society. Honesty is one of the seven lamps of Advocacy and a lawyer, most of all should be honest with his profession. Especially, in the initial years of litigation, you should never betray your ethics for a few extra rupees.

Ethics should be followed throughout the career. But, in the initial years, it is a special requirement. As the image, you will create in the initial years the same image will be carried by you throughout the career in the eyes of your fellow litigants and clients.

Some people start taking false cases to earn quick money. They do not wait for the right opportunity for them and commit perjury in a Court of Law to get ahead in life. However, betraying your client and more so, your profession would lead to a tarnished image as well as a weaker legal system. You should always remember that while working in the field of law, you should respect the law more than anything.

Do not ignore the magic of communication

Shy and introverts have got very less luck in this field. You need to use your communication skills to increase your links and contacts because that’s what matters most in this field. There is a difference between a loud voice and a firm voice. You need to be very humble, calm and soft-spoken in this field. You have to fight only your opposing side and not your opposing counsel. Overall, you have to not only win your clients but also your fellow lawyers to build a good and strong channel in this field.

If you wish to be successful in this field, you need to avoid and adopt the above-mentioned qualities. Moreover, you need to work very hard, keep yourself updated and ready for the challenges as litigation is not a cakewalk.

What to do?

Except for following all the above-mentioned advises, you can also do the following things to make a strong career in the field of litigation.

1. Keep reading and writing articles which will enhance your knowledge in the law.
2. Get published your work, so that in your field, people know you already.
3. Follow the Seven lamps of advocacy as mentioned by Justice Abbott Parry in his book titled ‘seven lamps of advocacy’. These seven lamps of advocacy are: Honesty, Courage, Industry, Wit, Eloquence or Speaking Skills, Judgment Writing and Fellowship, i.e. maintaining good relations with your fellow litigants.

There are various students who during their stay in Law School itself choose litigation as the field of career. Such students should do their internships accordingly. For example, they should intern under the advocates and do more Court internships. And, they should focus on understanding the procedural aspect of law and acquire the art of drafting while doing their internships. While their internships, they should start building their links and contacts in the field. These all will help them a lot in starting a career in the field of litigation.

The post Things not to do in the initial years of litigation appeared first on iPleaders.

This Article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. In this article she has discussed the process of Session Trial and Warrant Trial under the Code of Criminal Procedure and difference between both the procedures.

One of the best and fruitful things received from the British in India during their time was law and legal system of the British, especially the Concept of Criminal Justice System and legislation related to it. Code of Criminal Procedure deals with various procedure in a criminal proceeding. This article mainly focuses on Warrant and Session Trial under the Code of Criminal Procedure.

Session Trial

Process of session trial: Session Court deals with criminal matter at a district level. To be more accurate these offences are of more serious nature, the session court does not have the power to take cognizance only under Section 199 of the CrPC it can take cognizance in all other cases the cognizance will be taken by Magistrate and commit the trail.

• Section 225-  Trial to be Conducted by Public Prosecutor
• Section 226-  the Opening case for Prosecution
• Section 227-  Discharge
• Section 228-  Framing of Charges
• Section 229-  Conviction on a plea of guilty
• Section 230-  Date of Prosecution
• Section 231-  Evidence for Prosecution
• Section 232-  Acquittal
• Section 233-  Entering upon defence
• Section 234-  Arguments
• Section 235-  Judgement of acquittal or conviction
• Section 236-  Previous Conviction
• Section 237-  Procedure in the case instituted under Section 199 (2)

Initial Stage

It is very simple and easy to understand the initial stage with the help of the illustration– In a courtroom, the public prosecutor will act as one side and the accused person will be the other party in the matter. Here, the court expects that all the necessary documents need to be given to an accused person in advance so he has a clear idea why the trail is being taken place.

Public Prosecutor is appointed under Section 24 of the Act, who is acting under the direction of such prosecutor.  

When the case is brought under Section 209 of the CrPC then in those condition public prosecutor needs to present the piece of evidence so the trail can be started without any delay. All the details regarding what all charges are framed against him need to be mentioned in a court of law. After this stage, if magistrate feels that there is no case regarding the accused person then he will be discharged.

Kewal Krishan vs. Suraj Bhan, to avoid unnecessary harassment to the person without any ground as a reasonable ground needs to be given for going to appeal under Supreme Court.

In the case of Prafulla Kumar Samal vs. Union of India, four principles were introduced which should be kept in mind while deciding the case that prima facie case should be made against the accused person and test relating to it differ from case to case.

But if the commission of presumption arises in two aspects:

1. Court of the session can exclusively deal with the case, by writing charges by the court under Section 228 (1)(b) of the Act.
2. If the Court of the session cannot deal with the matter then some other courts have the proper jurisdiction to deal exclusively with the matter by transferring the case to the Competent court or to appropriate CJM or JM of the first class.

Further, the charges made against the accused body will be explained to him in a language which he can easily understand so that no violation takes place due to which delay can be made in the proceeding. If the plea is guilty of the offence committed by him then he may get punished.

Niranjan Singh Punjab vs. J.B. Bijja,, all the evidence and documents are evaluated to find the disclose ingredients of an alleged person during the time of framing the charges.  

Century Spinning and Manufacturing Company case, under this case it was clearly stated if “no sufficient ground for proceeding” then it should not be conducted anymore because it is the wastage of time for the court and an innocent is being humiliated without any valid ground.

Second Stage of the Trial

If the accused person pleads his guilt then he will be punished as per the nature of punishment and he will get convicted and if he did not plead then the court will fix a date for going through a further process like examination of a witness, production of any document etc. He needs to plead guilty from his own mouth, not by his pleader. Any admission made by his leader is not binding in nature.

The court needs to have all pieces of evidence which are presented in the case and during the cross-examination stage.

Prem Kumar vs. the State of Karnataka, it was held that before framing of charges, the court needs to see that documents placed before the court whether FIR or any statement given by witnesses disclosing the ingredients of the alleged offence.

Suresh Kumar vs. State of Uttar Pradesh, accused person is entitled to get copies of the statement of the complaint before the charges are framed.

Difference between Acquittal and Discharge under Trial

State of Maharashtra vs. B.K. Subba Rao and Tulsabai vs. the State of M.P, under both these cases the difference between discharge and acquittal is told. After framing of charges only two conditions are left out whether the acquittal or discharge of accused person. If after framing of charges no evidence is laid down before the court then, the only order of acquittal can be passed not of discharge. In the other case, it is explained that at an initial stage only the court need not have an elaborate inquiry of case, only relevant evidence should be presented to show that reasonable ground is present to take the case at a further stage in relation to the accused person. If no reasonable ground is shown then accused will be discharged or otherwise, he will be given next date for further proceedings.

Third Stage of the Trial  

It is the last stage where the accused person is either convicted or acquittal. The court may acquit the accused person if no evidence is laid down which indicate the involvement of the accused in committing the Act.

If no acquittal took place then, accused get the opportunity to present his case through writing or any other means he can produce evidence, witnesses to defend himself just like the way prosecution did it. An omission on the part of the Judge is the failure of justice. An accused person can apply for an application for compelling the attendance of a witness, all such application needs to be accepted by the court. He can only deny in a situation where he is sure that such application is vexatious in nature just to waste the precious time of the court. After hearing both the side, when the issue arises for giving a closing statement that Section 314 of the Act apply and the Closing statement is given by defence under Section 234 and under Section 235 by the prosecution side.

Before giving a final verdict, the previous conviction checked to see and relate the liability of the accused person in the present case. According to a previous conviction, punishment is decided by the Court of law. Lastly, the defamation of higher dignities cases are handled by the public prosecutor and compensation will be paid by the accused person to the other party for wasting their time and money.

Final judgement should be made by the judge by keeping in mind all the evidence, witnesses and argument. The process of acquittal will be done as per Section 232 and whereas provision regarding conviction is mentioned under Section 235. A judge should pass the sentence of punishment as prescribed in law.

Warrant trial

What is a Warrant  Case?

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

Section 238 to 243 of CrPC so, let’s start with the study. Firstly let’s understand that warrant trial is based on 2 types of cases

1.     On the Police Report.
2.     Other than the Police Report.

The procedure of Trial in warrant cases by magistrates:

1. Compliance with Section 207
2. When accused shall be discharged
3. Framing of charge
4. Conviction on a plea of guilty
5. Evidence for Prosecution
6. Evidence for Defence Side
7. Evidence for Prosecution
8. When accused shall be discharged
9. Again Evidence for Defence
10. Acquittal or conviction
11. Absence of Complaint
12. Compensation for accusation without reasonable cause

Compliance with Section 207: When any warrant case is filed on the Police report, then accused is brought before the magistrate for the recommencement of trial and magistrate shall satisfy himself that he has resulted with Section 207 provisions.

When accused shall be discharged: If upon seeing the police report and the documents sent under Section 173 for making such examination. After hearing both the side and considering all relevant point, if magistrate thinks that charges framed against the accused person are clearly groundless, then he shall discharge the accused and reason should be recorded for doing this act.

Framing of Charge: After considering the examination, if the magistrate is of the opinion that there is ground for presuming that the accused has committed the offence then it will be triable by competent magistrate to give accurate punishment and frame charges against the accused. Charges framed against him will be explained to him and later on, it will be seen that he pleaded guilty or not.

Conviction on a plea of guilty: If an accused person accepts the offence committed by him, then the magistrate shall record the plea and on his discretion may convict him.

Evidence for Prosecution: If the accused refuses to plead the magistrate is not convicted under Section 241 magistrate will fix a date for the examination of witnesses. The magistrate shall supply all the copies related to the statement given by witnesses during the investigation conducted by the Police officer.

On the application made by the prosecution, the magistrate may issue an order of summons to any of its witnesses to be present in the court and to produce any important document or evidence. On the fixed date, the magistrate will proceed to take all shreds of evidence which are produced in support of Prosecution. The magistrate may postpone the cross-examination of any of the witness unless and until any other witnesses are cross-examined.

Evidence for Defence: Accused is given the opportunity to enter upon his defence and produce the evidence to safeguard himself and if any written statement is given by accused in written form then it will be recorded by the magistrate. If the accused, after entering into defence requests the magistrate from compelling a process to present any witnesses for cross-examination purposes or to produce any document in relation to present matter. Then, he will grant the permission for that till the time he believed that it is not done with any vexation intention or to waste the time of the court, or defeating the end of justice.

Case instituted otherwise on the police report

Evidence for prosecution: When a warrant case is instituted other than on the police report that the accused will be presented before the magistrate, the magistrate shall proceed with the hearing process and take all the pieces of evidence as produced in support of the prosecution.

Syed Mohammad Husain Afqar vs. Mirza Fakhrullah Beg (1932) 8 Luck, such evidence must be taken into consideration as laid down under Section 138 of the Indian Evidence Act.

Jethalal vs. Khimji, on the application made to the magistrate to issue the order of summoning to any witnesses for the purpose of presentation or to produce any document.

K.L. Bhasin vs. Sundar Singh, legislature provides an opportunity to the accused person to do a cross-examination of the witnesses produced by the prosecution side after framing of charges it cannot be substituted for the opportunity which is given when the witnesses were examined and before framing of charges.

The main object was to collect all the important evidence and see that particularly the case was prepared against the accused person or not? Witnesses of prosecution side are examined under Section 244 and this process will not start till the time evidence are not collected as in GopalKrishna vs. State of Kerala.

“As may be produced” before closing statement magistrate always ask the party whether he wants to produce more witnesses in support of his case. The magistrate is not under any obligation to order summon for the presence of witness but now it has become mandatory and responsibility for every prosecution party to file an application to order a summons to the witnesses to present themselves before the court on a given date and time Parveen Dalpatrai Desai vs. Gangavishindas Rijharam Bajaj.

Examination of witnesses: It is not necessary to give names of all the witnesses in the list and before the proceeding starts, if a situation arises where the name of some of the witnesses are not mentioned under list, then in that situation those witnesses can also be examined by the magistrate Nawal Kishor Shukla vs. State of Uttar Pradesh.

Summoning witnesses: In a case of a complaint made to the magistrate under Income-tax Act for the offence triable as a warrant case, an order of discharge is given just because the witnesses are not turned up so it becomes illegal. The Gauhati High Court held that the complainant was making extra efforts to order a summons to the witnesses, it becomes the duty of the magistrate to order a summon to all witnesses before giving dismissal order in the case P. N. Bhattacharji vs. Kamal Bhattacharji.

When the magistrate denies examining witnesses whose names are not mentioned under list and rejected the application, then Andhra Pradesh High Court set aside the order and said that complainant has the right to examine a few more witnesses and court is bound to order a summon for them Jamuna Rani vs. S. Krishna Kumar.

When accused shall be discharged: If all the evidence produced by the prosecution side within 4 years from the date of the appearance of an accused person and does not create any ground which satisfies the magistrate to bound the magistrate from not discharging the person.

At any previous stage, The magistrate can discharge the accused person at any previous stage whenever he feels so that no ground or case is against the accused person.

Procedure, where accused, is not discharged: If magistrate has collected all the evidence and after examining it all he is of the opinion that a reasonable ground is made which indicate that the accused person has committed the offence said under the case Ratilal Mithani vs. the State of Maharashtra, then he shall be punished for the same by conducting a proper trial and charges against him will be framed by magistrate. Then all the charges framed by a magistrate will be read and explained to the accused person and he shall be asked whether he pleaded guilty for the offence conducted by him or not.

If he pleads guilty then reason will be recorded by the magistrate and on convicting him on the discretion of the magistrate. If the accused person does not plead or refuses to plead then he will be required to be present on the next hearing for conducting further trial like cross-examining of witnesses presented by the prosecution side.

Mohd. Qasim vs. Gokul Tewari, if he wishes to do Cross-examination of witnesses then particular witnesses will be called and after Cross-examination and re-examination, he shall be discharged. Remaining pieces of evidence of any witnesses on behalf of prosecution side will be taken place after cross-examination and re-examination are done.

Evidence for Defence: Accused shall be given the opportunity to present his case by entering into defence and producing a piece of evidence and witnesses in his support.

Acquittal or Conviction: If on previous stage magistrate is of the opinion that no relevant ground is present to take the case further then he should have discharged the accused person otherwise. After going for the further process then only two options are left out either Acquittal or conviction. Later on, he cannot be discharged will amount to acquittal only. If the magistrate finds that the accused is guilty and did not pass the sentence according to Section 325 and 360 then he will pass the sentence after hearing the accused person.

If any previous conviction is charged under Section 211 (7) of the Act and accused deny to accept that he was previously convicted, then magistrate shall take evidence in relation to previous conviction and record it. Provided that no charges will be read out in front of an accused person and nor ask him to plead for the offence will not refer previous conviction by the prosecution nor any evidence will be cited until and unless accused has been convicted under Subsection (2).

Absence of Complainant: While the proceedings have been instituted upon complaint and if any day complainant is not present on the fixed date is given by the court and the offence is not cognizable in nature, then it is on the discretion of the magistrate to discharge the accused person from the proceeding. Such a discharge order is not considered judgement in Singh vs. Singh. The same condition will be applicable in the case where the death of Complainant is held.

Compensation for accusation without any reasonable cause: If any case is instituted on the complaint to magistrate or to Police officer or an accused person is presented before the magistrate and magistrate finds that there is no ground against accused person then he will be discharged immediately by the magistrate, the person who did the complaint will be called by summon to give explanation of why he should not pay compensation amount to the person against whom accused charges were made.

In the case of Valli Mitha,  when there is more than one accused person then the magistrate will pass an order to award compensation to one or more of them.

The Magistrate shall record or consider any such reason which complainant may show and he is satisfied that there are no reasonable grounds for making the accusation and ordered to pay a particular amount of compensation not exceeding the amount of fine and pay to an accused person.

Abdool Raheem vs. Mehrab Shah, the amount of compensation will be paid to the only accused person, not to his relatives or any other person.

If a person fails to pay the Compensation amount then he will liable to go under simple imprisonment for not exceeding 30 days. If the person is in imprisonment then Section 68 and 69 of IPC (Indian Penal Code) apply. A person who has been directed to pay compensation amount will be exempted from any Criminal and Civil liability in respect of the complaint. When any complainant or informant who has been directed under Subsection (2) by the Second class magistrate to pay an amount not exceeding one hundred rupees may go for an appeal given under Case Pereira Vs. Demello,.

Sarab Dial Vs. Bir Singh, as the compensation amount will be awarded to each accused person so the amount paid per person is one hundred rupees, if it is to be given to eight people then the total amount paid by Complainant or informant to an accused person is eight hundred rupees.

The amount of compensation will not be paid before the period of the appeal get lapsed or after the decision of the appeal is given by the court and where the case is not related to appeal then amount will be paid after the expiration of one month from the date of order. All the given provision under this Section is applicable in Summon and Warrant case too.

Conclusion

Under Session trail, we went through all the complex path which are included in conducting the trial before a Court of Session. Initially, the court decide that whether any ground is present against the accused person for conducting trail, all the evidence and documents are produced before the Court and at last by keeping in mind all the points and evidence magistrate gives the final decision which can be either Acquittal or Conviction and under Warrant case two conditions are given if the complaint is done by the police report or without police report the Informant directly file a complaint to the magistrate, in this case, the accused person will be produced before the magistrate and he will be examined in court, finds out no relevant ground then he will be discharged otherwise the further procedure will continue and the accused person will be given the opportunity to plead for the offence committed by him. Later both the side will present their case with the support of witnesses and evidence and argument, cross-examination and re-examination will be conducted and at last by hearing both sides, the magistrate will decide the quantum of punishment for the accused person.   

References

1. https://www.lawnotes4u.in/2018/12/stage-of-criminal-trial-in-warrant-case.htmlhttp://ww
2. .lawyersclubindia.com/articles/Trial-of-warrant-cases-7919.asp
3. https://lawtimesjournal.in/session-trial/
4. https://www.legalbites.in/crpc-notes-procedure-trial-sessions-court/
5. 1981 SCC (Cri) 438
6. (1924) 26 Bom LR 1243
7. AIR 1979 SC 94
8. 1993 Cr LJ 1450 (AP)
9. 1992 Cr LJ 1554 (All)
10. 1972 Cr LJ 367
11. (1973) 76 Bom LR 70
12. AIR 1993 CriLJ 2984
13. 1993 Cr LJ 368 (MP)
14. AIR 1979 SCR (2) 229
15. AIR 1990 Cr LJ
16. AIR 1994 (2) ALT Cri 155

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This article has been written by Pooja Kapur, a fifth year law student from Amity Law School, Noida. She has discussed the law of easements in India along with the concept of licenses.

Meaning and nature of Easements

The concept of easement has been defined under Section 4 of The Indian Easements Act, 1882. According to the provisions of Section 4, an easementary right  is a right possessed by the owner or occupier of the land on some other land, not his own, the purpose of which is to provide the beneficial enjoyment of the land. This right is granted because without the existence of this right an occupier or owner cannot fully enjoy his own property.

It includes the right to do or continue to do something or to prevent or to continue to prevent something in connection with or in respect of some other land, which is not his own, for the enjoyment of his own land.

The word ‘land’ refers to everything permanently  attached to the earth and the words ‘beneficial enjoyment’ denotes convenience, advantage or any amenity or any necessity. The owner or occupier referred to in the provision is known as the Dominant Owner and the land for the benefit of which the easementary right exists is called Dominant Heritage. Whereas the owner upon whose land the liability is imposed is known as the Serviant Owner and the land on which such a liability is imposed to do or prevent something, is known as the Servient Heritage.

Illustrations-

1. ‘P’ being the owner of certain land or house has a right of way over Q’s house, adjacent to his house, to move  out of the street. This is known as right of easement.
2. A voluntary dedication of right by ‘X’ to the public for passing or re-passing over a surface of certain land is not a right of easement.
3. X’s right to go on his neighbour Y’s household for fetching water from the well for the purpose of his own household  is a right of easement. Here, the way to the well is through Y’s land only. Hence, X has an easementary right to pass through Y’s household.

In the words of great jurist Salmond, easement is that legal servient which can be exercised on some other piece of land specifically for the beneficial enjoyment of one’s own land. Right of easement is basically a form of privilege, the integral part of which is to do an act or prevent certain acts on some other land for enjoyment of one’s own land.

Other examples of right of easement includes-

• Right of way
• Right to discharge rainwater
• Right to sunlight etc

Essentials of Easements

1. Dominant and Servient Heritage

For the enjoyment of right of easement, necessary existence of two properties i.e dominant and servient heritage is a  must. This is because as per the definition, it is the right exercised by the owner or occupier of one land for enjoying the benefit of his/her land, over the land of some other person. Dominant and servient heritage cannot be one. Thus, the existence of two properties and that to be separate from each other is essential.

2. Separate owners

For exercising the right of easements, owners of the two properties shall be different and not a single person.

3. Beneficial Enjoyment

The object of easements is that the dominant owner enjoys it in a way which includes express and implied benefits.

4. Positive or Negative

Easements can be both positive or negative. Former refers to a right through which the dominant owner does some act to exercise the right over the land of the servient owner. Whereas, the latter denotes an act of prevention. In a negative easement the dominant owner prevents or restricts the servient owner from doing certain act or acts. 

In a right of easement an owner of dominant heritage can do an act or prevent the servient owner from doing something but he cannot bind the servient owner to do something for him.

The easementary right exists only when two heritages are adjacent to each other. It is a right in rem, which means a right available against the whole world. Easement as a right is always annexed to the dominant tenement. It is a right of re-aliena which means a right over a servient tenement and no on one’s own land.

Classification of Easements

Section 5 of the The Indian Easements Act, 1882 classifies the easements as follows–

Continuous or Discontinuous

Continuous easements are the one whose enjoyment may be continued without the intervention of any human conduct or act of a man. There is no interference by a man and it adds special quality to the property. While, on the other hand, right of easement for the enjoyment which an  interference of a man is required is known as discontinuous. In this kind of easement, it is necessary that a human act is done on the servient heritage.

Apparent or Non- Apparent

An apparent  easement is one the existence of which can be seen through a permanent sign. It can be visible by a careful examination and on reasonable foresightedness. It is also known as express easement. An inspection is required to check the existence of a right. For example- There is a drain from A’s land to B’s land and from there it led to an open yard. This can be visible through a clear inspection and is an apparent easement.

Whereas, a non-apparent easement is just opposite of what apparent easement is. This kind of easement is not visible through an inspection. There is no permanent sign as such. The right is in use but is not visible and thus, is known as an invisible easement. For example,  A’s right annexed to A’s land to prevent B from building on his own house.

Another example to explain non-apparent easement is that the right to stop construction over a certain height.

Limitations or Conditions of Easements

An easementary right may be permanent or for a period of years or for a limited term. It can    also be subjected to periodical interruption or may be exercisable at a particular place, between certain hours and for a certain or particular purpose. This right can also be granted on a condition that such a right shall become void or voidable on happening of some event or non performing of some act. These limitations or conditions which regard to the right of easement has been specified under Section 6 of the Act.

Restrictive Easements

Section 7 specifies that the easements are restrictive of certain rights which are as follows-

• Exclusive right to enjoy
• Right to advantages arising out of the situation

Profit a Prendre

According to The Indian Easements Act, 1882, profit a prendre is a part of the definition of easements. An instance to explain the concept is, a right to take earth from the land of the other person for making an earthenware is a profit a prendre. This is basically a profit made out of the land of the other person. Other examples of profit a prendre-

• Right of fishery
• Right to take fruits of trees in the season

This is the right which is exercised on the land appurtenant to the dominant heritage. Hence, there shall be the existence of two heritages i.e. dominant and servient. The owner of the dominant heritage exercises this right on the property of the servient owner. Profit a prendre is a right to do something on the land of servient tenement for more beneficial enjoyment of the dominant heritage.

Modes of Acquisition of Easements

Express Grant

The easement can be  acquired through express grant made by inserting the clause of granting such a right in the deed of sale, mortgage or through any other form of transfer. This involves expressing by the grantor of his clear intention. If the value of the immovable property is Rs.100 or above then it compulsory for it to be in writing and duly registered.

Implied Circumstances

Easementary right can be acquired in implied circumstances in the  following ways-

• Easement of Necessity

Section 13 of the act deals with this. This consists of the circumstances where the owner or occupier  cannot use his property without exercising the right of easement over the servient heritage. Thus, absolute necessity is the test and the convenience.

For example– X sells his land  to Y for agricultural purpose. Here, Y cannot access his land without passing through Z’s land (his neighbour). Thus, this is an easement of necessity.

When a joint property is partitioned amongst various coparceners and if right of easement over one share of the property is essential for the enjoyment of the share of the other coparcener then latter shall be entitled to easement.

• Quasi Easements

In the case of a person transferring his property to another person then-

• If an easement is continuous, apparent and necessary to enjoy, then in such a case the transferee shall be entitled to it,
• If such an easement is continuous, apparent and necessary to enjoy the said property, the transferor has a right to such  easement over property transferred by him
• In case of partition of the property of the joint family, if an easement is continuous, apparent and necessary to enjoy the share of one coparcener over the other coparcener, then he is entitled to such a right of easement.

Easements are quasi as those are arising out of circumstances,i.e. When common properties are converted into tenements by way of sale, mortgage, partition or through any other form of transfer. In such a case, there is an implied grant of right of easement.

For example– P’s right attached to Q’s house to receive air and light through a window without any obstruction  by his neighbour. This is a continuous.

• Prescriptive Easements

Section 15 provides for this type. Following are the requisites-

• Right must be definite and certain,
• Right must have been independently enjoyed without any agreement with the servient owner,
• Must be enjoyed openly, peacefully and as of a right without any interruption for a continuous period of 20 years and in respect of any government land the period of non-interruption shall be 30 years.

• Customary Easements

An easement right can be acquired by virtue of a local custom. This is known as customary easements. Section 18 of the Act provides for it. For example- people living in a particular city or town having a right to bury the dead in a particular area or riparian right to use water.

Extinction of Easements

Section 37 to 47 of the The Indian Easements Act, 1882,  provides for the mode of extinction of easements.

• Dissolution of Servient Owner’s right

In the situation where the grantor ceases to have any right in the servient tenement because of some reason, then the right of easements ceases to exist as well. This has been specified under Section 37 of the Act. For eg- X grants a piece of land to Y for a period of 20 years in the year 1970. In the year 1971, Y imposed an easement in favour of Z. In 1990 Y’s interest came to an end. Thus, easementary right granted to Z ceases to end as well.

• Expiry of time or happening of an event

When an easement is acquired on certain conditions or for certain purpose or for certain period of time. On the fulfilment of such condition or purpose or expiry of the time, the right of easement extinguishes as well as in accordance with Section 6 of the Act.

• Extinction by release

Where in a situation the owner of the dominant heritage releases the right of easement to the servient owner, the right ceases to exist. Such a release can be both expressly or impliedly made. For eg- P has a right to discharge water through the eaves to Q’s yard. P  authorized Q to construct a building to such a height as not be able to discharge water. Q builds it and P’s right comes to an end.

• Termination of necessity

When necessity terminates the easement of necessity terminates as well. For example- A grants a piece of land to B on which easement of necessity for B is the right of his way over A’s land. Later on, B purchases  a part of the A’s land over which he may pass to reach his own land. Here, the necessity has ended and so does the easement.

• Useless Easements

When easement is of such a nature that is not useful or becomes incapable of being beneficial at any time or under any circumstances, then the right of easement ends.

• Permanent  change in the Dominant Heritage

When the nature of the dominant heritage changes permanently with increase in burden on tenement, then the right of easement ceases to exist as the purpose of it was the beneficial enjoyment of the dominant heritage. For example- A’s house is located such that he has a right of way by passing through B’s house. Later, due to earthquake, B’s house got cut off and thus, right of easement ends.

• Extinction by destruction of either of heritages

When either of heritages gets destroyed, the easement ends as it is essential for two properties to exist for exercising the right.

• Unity by ownership

By unity of ownership it is indicated that when one person becomes the owner of both the dominant and servient heritage then the right of easement terminates. For instance, A has right of easement over B’s property. Later on, A purchases B’s property and becomes the owner of B’s property. In such a case, easement extinguishes.

Another example which can be stated her to explain the concept  is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement terminates.

Suspension of Easements

Section 49 of the Act provides that easement can be suspended under the following circumstances-

1. An easement is or can be suspended when the dominant owner becomes entitled to the possession of servient heritage for a limited interest. An example which can be stated here to explain the concept  is that A has a right of easement over B’s land. In future A takes B’s land on rent, here A becomes the occupier of B’s land. Thus, easement suspends.
2. When the servient owner becomes entitled to the possession of dominant heritage for a limited interest, the easement is suspended.

Thus, where both the dominant and servient owner becomes one, easement is suspended.

Revival of Easements

Section 51 of the Act provides for the situations wherein easement suspended or extinguished can be revived, which are as follows-

1. When an easement is extinguished by destruction of either of the heritages then it can be revived-

• If the heritage is restored in 20 years.
• If the heritage is rebuilt in 20 years

2. In case of unity of ownership, if the unity breaks due to some reason, then easementary right can be revived and also through an order of a competent court.

Licenses

Section 52 of the Act deals with the concept of licenses. Where one person grants to another person a right to do or continue to do something in or upon the immovable property of the grantor, something which if he does will be unlawful without the prior permission or the availability of the grant. Such a right shall not amount to an easmentary right or creation of interest in the property.

Essentials of licenses

1. It is a permission granted, i.e a right arising out of permission.
2. Legalises an act.
3. Is revocable on the act of the grantor.
4. It is always in respect of immovable property.
5. It is a right in personam.

Revocation of licenses

License can be revoked in following ways-

1. If from the cause of preceding the grant, the grantor himself ceases to have any interest in the property, the license gets revoked. Grantor’s interest comes to an end.
2. By express and implied release of the license by licensee.
3. There are certain cases wherein a license is issued under certain conditions or limitations. This includes a license issued on a condition that if a certain act is doe or is not performed then the license may become void. In such a situation wherein these acts are performed then license can be revoked. Also, licenses are granted for the fulfillment of certain acts and once it is fulfilled license can be revoked.
4. Where a property in relation to which a license was granted gets destroyed due to any reason, then a license can be revoked.
5. Where, a licensee himself becomes the owner of the property for which license was granted, then the purpose for which license was granted ceases to exist and thus, the license also ceases to exist and gets terminated.
6. When licensee does not use it for a period of 20 years then the license gets revoked.

Transferable Licenses

According to Section 56 of the Act, a license can be transferable under the following conditions-

1. A license to attend a place of public entertainment may be transferred by the licensee. This may be gathered from the grant or contract, or from surrounding circumstances or local usage. For instance, P grants Q, a right to walk over P’s field whenever he pleases. The right is not annexed to any immovable property of Q. The right cannot be transferred.
2. Transfer by licensee- The general rule is that the licensee cannot transfer his license. If he transfers then the transferee becomes a trespasser and can be or may be ejected.

Irrevocable Licenses

Section 60 provides that license can also be irrevocable. If the license is coupled with a transfer of property and the transfer is in force, it cannot be revoked. This is subject to the agreement. Hence, the power can be reserved. The rule is that a bare license may be revoked but if coupled with a transfer of the property, then it is irrevocable.

A license coupled with an interest in a land is binding. A license coupled with profit a prendre is irrevocable, for example, Right to excavate earth and carry it to make earthen wares, right to cut and carry timber on payment of royalty.  

If the licensee, has executed some work which is permanent in nature and has incurred expenses, the licence cannot be revoked and hence, is irrevocable. For example,  there are two companies, namely X and Y having lands adjoining to each other. The agents were common who managed to put up the building and tank on X’s land for use by Y. License is irrevocable as the rule applied as was held in Ramson V dyson.

Tabular difference between Licenses and Easements

Conclusion

The Indian Easements Act, provides for the whole concept of right of easements and its regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by the owner of the dominant heritage over the heritage of servient owner for the beneficial enjoyment of his own land. It not only defines what actually easements consist of but also provides with its classification. Easements can be prescriptive, customary, quasi and of necessity.

Thereafter, modes of acquiring easements has been provided under Section 7 of the said Act according to which it can acquired through an express grant or is in certain circumstances considered to be an implied right. If easement is to be acquired through the express grant then such a clause has to be specifically mentioned in the deed of sale, mortgage or any other deed in accordance with the mode of transfer. Easements is a right in rem, that is, it is available against the whole world. It can be subject to limitations as well and can be restrictive too. Easements can be both positive and negative. Whereas, on the other hand licenses can only be positive in nature.

Further, the Act talks about the provisions regulating the suspension, extinction and revival of the easements. Also, how easements is different from licenses has been discussed. The article also explains the concept of licenses along with its essentials. License can be revocable as mentioned in the Act  and irrevocable as mentioned under Section 60 of the Act. They can also be transferred according to Section 56 of the Act. It is a right in personam which is not available against the whole world but is granted personally.

References

1. http://theindianlawyer.in/statutesnbareacts/acts/i19.html
2. https://indiankanoon.org/doc/82950642/

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This article is written by Shreya Tripathi of Banasthali Vidyapeeth, Jaipur. She has discussed the Copyright law governing remix culture with various rights given to the original creator.

Background

For Bollywood fans like my brother who almost watch movies every Sunday, it’s a part of their schedule. They worship Bollywood Hindi films. A few days back my brother was watching a movie and was saying that the 90’s films were so good as they do not copy the idea of any other movies or songs. He was disappointed by the upcoming remix songs because the remix version has removed the purity and originality of songs. He gave me a list of songs which are converted into remix version like- Tamma Tamma, Bachna Ae Haseeno, Humma etc., at that moment this situation brought a question in my mind that Why does the Copyright law not protect individuals from making copies and remix version of old songs?

What is Copyright law?

Copyright is a law which gives protection for works given to a creative person who is doing something different in the field of literature, music, dance, artistic work etc. To protect their work from being copied or used by someone else without their permission. In fact, it is a bundle of rights which include reproduction rights, translation work, adaptation and communication with the public.

Here, we are specifically talking about “Musical work” defined under Section 2(p) of Copyrights Act, 1957- “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music”. As per Copyright Act under Section 14 of the Act “Copyright” is defined as one of the exclusive rights given to the individual who is authorised for doing certain acts. 

In case of Musical, literary or dramatic work, not being computer program:

1. To reproduce the work in a material manner which includes storing of it in any electronic medium.
2. To issue copies of work for the public and it should not be circulated already.
3. To communicate and perform the work in public.
4. To create any cinematography work or sound recording.
5. To make any kind of translation.
6. To make any kind of alteration or adaptation in the work.

In case of Computer Program:

To perform any of the acts mentioned above or to sell or give it on the rental way the copies or any part of it to use it in commercial purpose.

In case of Artistic Work:

1. To make any kind of adaptation or modification in the work.
2. To reproduce the work in any material form which includes 3 dimensional or 2 dimensional work.
3. To communicate with the public regarding the work.
4. To convert the work into cinematography work.
5. To issue the work to copies for the public.

In the case of Cinematography film:

1. To make a copy of the film including images or pictures in it for making a new part in that movie.
2. To communicate or share the film with the public.
3. To sell or give a copy of the film or whether such copy has sold earlier.

In the case of Sound Recording:

1. To create any other sound recording in relation to that.
2. To sell or give on hire copies of sound recording.
3. To communicate it with the public.

After the prior amendment by the Bombay High Court “Remix” and “Cover” are considered under the category of “Version Recording”.

What is Remix?

When sound recording is done of some additional elements added with some different music or beats then it becomes remix of the original song. Then the work created by remix will be considered new work or modifications to the old version? Even though the new work is somewhat different from the original work, the author is required to obtain a licence from the owner of the original work. There is no specific provision or process is given under the Copyright Act for obtaining a licence for remix work as it is given for Cover version work.

A recent example related to the making of a remix version is very popular song Sambalpuri song Rangabati which was telecasted on Coke Studio some days back. It became a great hit version on Youtube and the original version of Rangabati was made in English and Tamil version including the State anthem of Orissa in the song. The original singer and the music director have alleged for infringement of copyright and claimed compensation for Rs. 1 crore with a legal notice attached to it, that if he fails to pay the claimed amount then legal action will be initiated.

Is it Illegal to Remix?

If remix is done without taking prior consent from the original owner will lead to illegal remix. So, to make it lawful a legal checklist should be made.

1. Purchase a copy of songs because pirated music will fall under illegal manner.
2. Prior permission should be obtained from the owner of the copyright.
3. Maintain all the records of permission related to copyright.

And people who want to just mix some of the music for their personal use no need to go for this lengthy process, unless their money is involved.

Copyright of Cover version in India   

Amendment done in 2012 brings up and down changes in the rights of  Musician, Performer or Lyricist etc. Section 31C of the Act provide Statutory licence that can be obtained for creating Cover Version. Statutory licence is governed by the provisions of the Act and general licence consists of terms and conditions agreed upon the licensee or licensor.

Major highlights of the provision

1. A new cover version cannot be created until the expiration period of 5 years get over of the original recording.
2. It has to be in the same manner as the original one.
3. Prior consent of the owner should be taken for making cover version.
4. Cover or labels of the songs should be disclosed to the owner in advance before the release of the song.
5. Copyright board should the fixed amount for paying a royalty.
6. The creator of cover version should mention about the original sound.
7. No alteration should be made unless it is required necessarily.
8. A Book of Account should be maintained by the author of the cover version owner which can be inspected by the real owner of the original work.

If such cover version is made without taking prior permission or license from the owner of the original sound recording then it will amount to infringement. The owner can file a suit against the creator of cover version for infringing his moral rights as the person modified or altered his original work without any permission.

Differentiate between Remix and Cover

Is Copyright law the same for all types of work?

The answer is no, as it differs from work to work. In the case of literary work except for a computer programme, it is an exclusive right define under Section 14 of the Copyright Act.

1. For the reproduction of work.
2. To perform the work at a public place.
3. For making any kind of translation regarding the work.
4. To issue copies of work.
5. To make an adaptation of the work.

What are the rights given in relation to musical work?

Refer to the above-mentioned point to know about the right given in relation to musical work.

Who is the Copyright Owner of Musical work?

The actual owner in Musical work is the Producer, not the Singer. According to Section 2(d)(ii), the author is “Composer” of the musical work.

Different kinds of Rights in Musical Work

As the owner of a copyright has the exclusive right and these include certain other rights also like to reproduce the work, to distribute copies of copyright work to the public, to work or perform in public by means of digital audio transmission, to make derivative work based on the work and in the case of sound recording.

Copyright gives you the right to record music, sell, to distribute its copies in various ways like CD, digital download etc., create something new and innovative from your previous original work as post your music on youtube, online on you timeline keep them on the trending path, give live performances at various occasion or event in different places or cities. It does not only allow to create more ideas but on the other hand, it also restricts from misusing the original work of the real owner of the creation.

What is Reproduction right?

It is one of the important rights given to owners of any creation. Reproduction right means the only owner has right to make copies of work and for doing an infringement if a substantial part of the work is also copied then it will fall under infringement it is known compulsory to copy the work part of the work. For example– Making copies of a sound recording or musical work in CD, computer file, included in a movie etc.

What is Mechanical Right?

It is required when you need to reproduce or distribute your musical work. This right is mostly used by the record company and the amount is paid by the record company as per unit and it will be paid to publisher or publisher.

What is Synchronization Right?

In synchronization, the performance is merged with the visual image on sound recording in a specific manner. It is important in the use of songs and on TV shows, movies and other media related to it.

What is Derivative Right?

Under derivative right, you can use the original work to make alterations in it. For example, taking a song and merging or adding some new lyrics to it and some different elements to make it a better version of it.

What is Display Right?

Display right provides a right to present or display your work in or to the public.

What is Adaptation Right?

It is used when someone rewrites your song and plays it with different instruments or by including a small new part to it. The Copyright Act defines the following:

1. Conversion of dramatic play into no dramatic work.
2. Re-arrangement of a literacy work.
3. Conversion of literary work into drama.
4. Depicting any comic form or through pictures or dramatic.

What is Performer Right?

Any artist who performs their work have Performer Right and “Performer” includes juggler, singer, dancer, musician, actor etc. Section 38 tells about the Right of performers and Section 38 A lays down legal provisions related to it which give exclusive rights for doing any act in respect to performance. It can be categorized into 3 parts.

1. Live performance– when he performs his or her work in the audience then he has right over that particular performance.
2. Performance in cinematography with credit– when the performer gives his right in a written agreement to use his work for a commercial purpose, performers should be entitled to receive some royalty or some monetary gain.
3. Performance in cinematography without credit– there are many performances is supporting cast which is basically known as extras” in any film or play etc. till now copyright act does not give any kind of protection to this kind of people except Moral Right.

Section 39A confer moral right to the performers to claim the author of the work and the right of integrity to work.

What is “Commercial Utilisation” of a performance?

It includes Playing of sound recording and live performance also. All commercial performance included- playing music in restaurant, hospital, radio, television, cinema etc. even the organiser of sports events like IPL where music is played for entertainment purposes must pay royalty or licence fee amount to the owner. But when it is used to teaching, personal or research purpose the right is not infringed.

Playing remix version in Club?

An individual has permission to create a new remix version from the copyright holder but they cannot play remix version in the club without granting permission for performance right, it will be considered an illegal act. In a club, DJ will not be liable to pay the amount of royalty, it will be paid by bar or club owner. If the remix music is used with the actual performance will be covered under fair use, but the more you profit without granting prior permission the more you break the laws.

The owner of the musical work is the composer, not the singer who sang the song. Gramophone Company of India vs. Super. In this case, the Delhi High Court observed that musical work is not a combination of melody or tuning work but every composition has its structure, shape to prepare the whole notation for music. And under Copyright Act Section 14 (e) provides certain rights to the owner for protecting their work which includes the right to sell or hire, any copy of the sound recording and right to communicate with the public.

Moral right under the Copyright Act

When Section 52(1) is applicable and still some kind of mutilation or alteration took place in the original work which will hamper the work and reputation of the owner then he can complain under Section 57 of the Act. Basically, the purpose of moral right is to encourage the production of creative work in Intellectual Property.

Mannu Bhandari vs. Kala Vikas Picture, recognised that existence or moral right is important for the author. Amar Nath Sehgal vs. UOI, it was said that moral right is the soul of author work and he has the right to protect and preserve his work irrespective of being copied wholly or partially under Copyright Act.

Protection of Remix maker under the Copyright Act

Nowadays people are so confused about what is allowed and what is not. So, to clear this confusion there is need to have exception of the Copyright Act under Section 52(1) according to which a person can copy musical work, artistic work or any other work will not fall under infringement because has given a prior notice of his intention and paid advanced royalty to the owner of the original work. The people who want to make the remix version cannot make any modification in the original work without taking prior permission from the owner. The new version of sound should not be marketed otherwise it will lead to confusion for the public about the identity of the original owner and the making of remix should not be done before the expiration of 2 years in which the original sound was made.

The owner has every right to inspect all the Books of Account related to remix work. If a problem arises related to payment of royalty then the complaint will be made by the owner and the copyright board deal with the complaint and after getting sure about the complaint order will pass to stop making further copies and inquiry will be conducted and action will be taken as required.

Taking the consent of the original maker is very important. In the case of Ganpati Aarti Ashtvinayak Geete, the defendant wanted to make an audio cassettes in regard to Ganpati Aarti for that he asked for the original sound recording from plaintiff and offered a licence fee but plaintiff rejected the offer with impliedly mean that permission was not granted on behalf of plaintiff but still defendant brought the sound recording for making the cassettes which were totally the act of infringement.

So, working without the permission of the original owner will lead to infringement. But in Gramophone Company vs. Mars Recording, case the court held that if condition given under Section 52(1) is followed will not be called as infringement and no requirement for granting any kind of consent or licence.

In Super Cassette Industries  Ltd vs. Bathla Cassette Industries Pvt Ltd, it was said that no change should be done in the voice of the singer because the voice is the soul of every song and it is a vital part of the song without taking consent from the original owner.

Amendments to be made

• The time duration of using the original sound recording for creating a remix version should be extended from 2 years to 5 years.
• A fix and reasonable rate should be made for paying a royalty to the owner.
• Need to introduce the statutory licence system so the general public has access to musical work through Television or Radio and make sure the owner does not face any type of loss.
• Right to receive royalty should be protected and if exploitation of the work happen commercially then it will be credited to the amount of royalty to the owner.

Conclusion

So, it is very essential to take prior permission from the owner of the original sound recording for making Remix version and the remix version owner should always give special credit to the original sound owner for the permission of making a remix of it. More rigid rules should be made to protect the work and the rights of the original owner otherwise it will not motivate them to create something new and different for public and people should also understand the consequences of their act.

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This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. In this article she discusses Breach of Contract, remedies related to it and types of damages.

Breach of Contract

When any contracting parties or two different people who want to deal for any business transaction whether, for car selling or purchase of a house etc., it can be any reason, then both the parties sit together with documents and explain their point of view to each other with specified terms and conditions.

Let’s take an example. Mr ‘X’ wants to purchase a car and the dealer wants to sell the car. The buyer wants to know in how many days will he receive the car or how he has to make payment. Also in further slot how much amount he needs to pay and at the same time dealer also wants to know how he will receive the payment amount and whether in a lump sum or in installments. So, as we see both the parties have discussed there points and will be obliged to follow the conditions.

Here, the dealer and the buyer, both have some of the rights and obligations attached. The buyer has the right to receive the car and ownership right over the car and is obliged to make payment at the specified time. The seller has the right to receive the amount made for the purchase of the car and he is obliged to transfer the possession of the car to the buyer.

This important element makes the agreement a valid contract and, the receiving item by both the parties is known as Consideration.

What is Breach of Contract?

Let us “Breach of Contract” with this example. The date was fixed by both the parties for performing that is on 12th June 2019, the seller will give or make the whole payment and the dealer will pass the car to seller person but suddenly on 7th June 2019, the seller deny from doing the payment before the date of performance. This is known as Breach of Contract. Breach of Contract has 2 kinds of breach-

1. Anticipatory breach
2. Actual breach

Where the party breaks, cancels or terminates the contract before the due date, it is known as Anticipatory Breach under Section 39 of the Indian Contract Act. When the breach of contract is performed on the fixed due date it will be known as Actual Breach.

Anticipatory means that you are foreseeing it. That means you know that you cannot perform but when before the contract becomes due. Now, in this case this if the promisor breaches the contract it will become an actual breach. We know that we will not be in a situation to do something on a future day or we might think that he has agreed to do the contract at a very low price and at that price possibility may incur a loss. So, he goes to the promissory and says that he will not be able to start the contract on the due date and he communicates the refusal before the due date.

Remedies against the guilty party

1.  Rescission- The very first remedy for breach of contract is Rescission. When one party breaks the contract then other parties can treat it as revocation, so the party will be liable to pay compensation for damages to suffering party.
2.  Suit for Damages- The compensation for the damages occurred by the aggrieved party will be in monetary form. The object is to recover the loss of aggrieved party rather than punishing the defaulted party in breach of contract.
3.  Suit for Specific performance- Under this case specific performance means seeking an order from the Court that the promising part of the contract should be carried on further. In certain cases where the damages caused due to the breach of contract cannot be measured in terms of monetary value, then Specific performance should be given by the Court of law.
4. Suit for Quantum Meruit- If one party is preventing or defending other party form completing his obligation under the contract form by both the parties, the aggrieved party may claim for the payment by the part of a contract which he already performed.

For example, a contractor who has started the work and later he has to stop the work because the other party to the contract breach it, here contractor will be liable to receive compensation in the form of Quantum Meruit.

Damages of Contract

Damages, in a simple language, refers to a form of compensation due to a breach of contract. As explained by Fuller and Perdue, damages may seek protection for an exception, restitution and reliance interest.

Let’s say ‘Y’ has to supply 10 bags to mangoes to ‘Z’ for Rs. 10 per bag now, ‘Y’ cancel the contract and said ‘Y’ don’t have bags to deliver but ‘Y’ has contracted with someone else to deliver the bags of mangoes and he purchased the bags from the market but the price has reached peak now ‘Y’ will get purchase at a high price and he suffered the loss of Rs. 5 on every bag of mango. This amount of loss is called Damages.  

What is Liquidating Damages?

Liquidating damages are ascertained in the contract while framing the contract, we have to ascertain the situation where the contract is breached and if the contract is breached what will be the expected estimated loss to either party has to be calculated. If this loss is estimated in itself before the performance date, what is the likely loss to either party and when this estimated is put into the contract itself it is called as Liquidating Damages. So, the party now become liable for liquidated damages.

Ordinary damages

The actual loss which the aggrieved party has suffered in the normal ordinary course of business.

Illustration– I have given the example above of bags of mangoes Rs. 5 is the actual loss per bag if ‘Y’ is suffering this loss will be called  Ordinary loss because this is the actual loss ‘Y’ is suffering this is not the estimated loss. So, this difference between the two.

So, which one of these will be incurred when the situation of breach will arise? Liquidated damages are decided by both parties, it is ascertained, estimated and put into the contract by both parties.

However, ordinary damages are actual damages that the aggrieved party has incurred because of the breach of contract. The court will award Ordinary damages to the aggrieved party because in liquidating damages it is the estimated loss and court cannot go ahead the estimated loss, the court will always see what is the actual loss the party is suffering from and the actual loss is Ordinary loss which will award the damages to him. The Court is not much worried about liquidating damages he is more concerned about actual damages.

Special damages

Special damages occur in special circumstances only like ordinary damages have been in the ordinary course of business special damages occur in a special situation only. It is not the loss which occurs in an ordinary situation.

Illustration Let’s say ‘X’ agreed to supply 100 bags of wheat to ‘S’ but due to riots in the city ‘X’ couldn’t supply bags of wheat. Now, this is not an ordinary transaction, this is a special event. So, in this case, the Court will investigate that the special event is directly responsible for the breach of contract. So, the Court appoint an officer to investigate more to find the correct and accurate piece, if the cause of the breach of contract is directly related to it then the Court might award special damages otherwise getting the special damages is not the exclusive right. Like ordinary damages are the right of the aggrieved party whatever loss he has suffered it will get but special damages get in a special situation so it might not get in all the situations. Some of the examples of Special damages are:

1. Loss of business opportunities, contract and profits.
2. Damage or loss to business reputation.
3. Loss of time and other inconveniences.
4. Loss from Operating revenues.
5. Loss of business product and properties.

For example, in the above illustration if both the party estimated loss and took the difference of Rs. 5 per bags but if he has to suffer the loss of only Rs. 1 per bag then he has to the faceless amount of loss and the particular amount will be recovered under Special damages.  

In Cedrick Makara vs. Newmark Realty, Makara claim compensation as he hurt his thumb while leaving the restroom at his workplace, due to injury he was not able to come for 6 months for work. The injury was so bad that he required surgery and jury awarded him a compensation of $ 2 as compensatory damages for pain and suffering and $2,00,000 under special damages for any kind of medical need he might be required in future.

In the case of Bret Michaels vs. CBS, a celebrity sued a company over an accident. At the Tony Award Broadcast in 2009, he was not guided in a correct way on how to exit from the stage due to which he was hit by a set piece in his head and he broke his nose and suffered from a brain haemorrhage. The court has given the decision in favour of Michael but the compensatory and general damage amount was not disclosed in public.

Am I entitled to Special Damages?

Usually, special damages do not occur in a normal situation, failing to request for special damages will occur in losing the right of special damages by the non-breaching party. In order to receive Special damages, some essentials need to be fulfilled.

• Foreseeable- The loss can be easily predicted by the parties at the time of forming a contract.

• Flowing from the Breach- The losses should not be the direct and ultimate consequences of the breach of contract. Some sort of connection should be present between the breach and losses.

• Calculable– Since special damages are not given under the situation of the ordinary contract it is difficult to calculate the loss amount.

For example, the loss incurred due to business reputation to an individual cannot be calculated. It should be calculated during the time of the formation of the contract.  

Are Special Damages different in Tort?

Under tort and personal injury also, the claim can be made for special damages. However, in a different condition both damages can be claimed under a contractual term decided by the parties.

For example, special damages claim under personal injury can be easily calculated or determined as it refers to tangible damages and in case of general damages it becomes difficult to determine the pain or suffering faced by an individual. As you can easily observe that below this situation it’s the complete opposite in claim in contract cases. It is important to note down the change because many contract claims include issues also. Thus, the amount of damages recovered by the plaintiff directly depends to attempt that under which head they will file for the violation in contract claim or tort.

Special damages are determined on the market value at the time of the loss arose. But in case of tort claim, the attorney may try to secure the claim by special damages. Such as:

1. Replacement of damaged property.
2. Medical expenses.
3. Loss of wages.
4. Cost related to home care or domestic services.

In the case of tort claim under general damages, it has a different meaning. It consists of losses which are hard to determine. Such as:

1. Physical injury or disfigurement.
2. Mental stress.
3. Lower the living standard of life.
4. Anxiety.
5. Emotional distress like sexual harassment.

Conclusion

In the breach of contract, the suffering party will recover his loss by claiming under compensatory damages, general and special damages in case of Contract and Tort issues. It is very important to note down the difference between General and Special damages under Contract and Tort issues. Special damages are given under special circumstances, it cannot be given in any ordinary situation. In case of tort issues, the general damages cannot be easily determined and in cases of special damage, under personal injury, damages can be easily ascertained by taking into consideration the amount of loss such suffered.

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The article has been written by Subodh Asthana, a student of Hidayatullah National Law University currently studying in the second year. The author has discussed the custom as source of law.

Introduction

Ever imagined the situation when there were no codified laws, there can be several questions up to one’s mind like would it result to anarchy or how would you govern and regulate the particular class and sect? In ancient times when there were no laws, the people were governed by the customs prevalent in their particular community. Those customs were taken seriously by the community and were enforced and implemented on each and every community of that particular sect. Customs is a very authentic and binding source of law, because of the historic value they have.

Custom is a significant wellspring of law and it is attractive to characterize the equivalent. Custom has been characterized by different legal advisers according to their idea, getting, theories, views and beliefs. According to Salmond, “custom is the exemplification of those standards which have complimented themselves to the national still, small voice as standards of equity and open utility”.

According to Austin, “custom is a standard of direct which the sovereign watch suddenly and not in the compatibility of law set by a political superior. According to Halsbury law “A custom is a specific principle which has existed either really or hypothetically from time immemorial and has received the power of law in a specific territory, though in spite of or not steady with the general precedent-based law of the community”.

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Usage of Custom as a source of law

Merely attaching the antiquity clause (i.e. a particular has been followed from time immemorial) doesn’t make it binding. Some of the differences between the application of usage and custom are as follows:

• A customary custom or use which does not have outright authority is obviously discernable from a legitimate custom having a power of law.
• A custom shall be binding if it is not proved that a particular sect is out of its scope and have no agreement regarding the same.
• In the event that custom is a local custom, it is limited to a specific area then again, the utilization need not be kept to a specific region because it would be followed locally.
• In that capacity, a ‘legitimate custom’ can’t be comprehended in the feeling of ‘use’ which is additionally founded on time immemorial yet it has not procured authoritative or required character nor a user can be practised starting at right inhering in one individual and official on the other against whom such use is guaranteed.
• Custom to be substantial have been in usage from time immemorial. Use of late inception can be given impact by the courts on the ground that parties had contracted with reference to the use.
• Local custom can undoubtedly criticize from or precedent-based law of the domain, yet not from drafted statute law. Utilization, notwithstanding can do as such to the extent to which it is conceivable to avoid the precedent-based law by explicit and express contract between the gatherings
• In the event that in a specific case, customary law can’t be prohibited by express understanding, it can’t be rejected by use moreover. Be that as it may, custom can supersede the precedent-based law.
• On satisfying the essential conditions, a customs works as a wellspring of law either for the whole network or the regional segment wherein it works. Utilisation just adds a term to its usage.
• A trade use need not build up relic, consistency, and reputation, which are so necessary on account of custom.
• A custom emerges out of its own power, though use does not appear out of its own power but rather is emerging out of an agreement between the gatherings. At the end of the day, a lawful custom has its very own free stand and isn’t an animal of understanding, then again a customary custom or use does not exist or emerge out of any lawful specialist autonomously possessed by it it is formed out of mutual understanding between the people

Types of Custom

Customs can be mainly classified into two types which are as follows.

• Customs without sanction
• Customs with sanctions

Further, these customs relating to sanction can be classified as follows:

• Legal Customs
• Conventional Customs

Legal Customs have been further classified as follows:

• General Custom/ Customs for all
• Particular Custom/ Local Custom

Customs without Sanctions

These are those customs which are merely non- directory. They are altogether seen because of the nearness of the general public beliefs which is contrary to the views expressed by Austin in his positivist theory.

Customs having Sanctions

These are the customs which have been implemented by the State. These customs are upheld by authorization by the different courts in their pronouncements.

Further, these customs have been classified as follows.

Legal Customs

The legal customs are those whose legal authority is absolutely unequivocal. These customs work as the coupling rule of law. They have been perceived by the courts and have turned into a piece of the tradition that must be adhered to. They are upheld by the courts in their judicial pronouncements. It is again classified as under.

Local Custom/ Particular Custom

A local custom is that which is practised in some characterized locality, that is, to an area, town or then again a zone. Be that as it may, they don’t infer land locality as it were. Some of the time, certain groups or families take their customs with them wherever they go. They also are called local customs. Consequently, in India local customs might be separated into two classes; Land local custom‘ and individual local custom. These customs are law just for a specific locality, sects or family.

General Customs/Customs for all

A general custom is what wins all through the nation and comprises one of the wellsprings of the rule that everyone must follow. As indicated by Keeton, ‘a general custom should likewise fulfil certain conditions on the off chance that it is to be a wellspring of law’. It must be sensible, pursued and acknowledged as official and ought not to be in contravention with the resolution law of the nation and must be in presence from the time immemorial.

Conventional Customs

A conventional custom is likewise called “use”. It is a setup whose authority is contingent on its acknowledgement and the organization in the agreement between the gatherings bound by it. In basic words, a conventional custom is a contingent and condition is that it will tie on the parties just, on the off chance that it has been acknowledged and consolidated by them in their agreement.

A conventional custom is authoritative on the parties not in light of any legitimate specialist, but since of the way that it has been explicitly or impliedly incorporated in an agreement between the parties so concerned. In the case of Asarabulla v. Kiamtulla, the Privy Council ruled that where the terms of the agreement are in contravention to the formed contract or agreement enforceable by law then, the same shall not be enforced by the law.

Essentials of Valid Custom

In order to enforce a valid, there are some essentials and grounds which will qualify as a valid custom and therefore could be recognized by judiciary and legislature. The grounds of valid custom as follows.

Antiquity

The primary trial of a legitimate custom is that it must be prevalent from time immemorial. It must be old or old and must not be of the ongoing source. Manu stated, “Immemorial custom is supernatural law”. Days of ancient times imply in the Civil law in the frameworks inferred consequently and initially implied in England and additional time is so remote that no living man can recollect it or give proof concerning it.

In England, a custom must be at the time of the rule of Richard I King of England”. That is in England the time period for a valid custom is 1189, for a custom to be viewed as substantial. The year 1189, was the main year of the rule of Richard I. In any case, the English principle of ‘immemorial inception‘ is not followed in India. In Gokul Chand v. Parvin Kumari, the Supreme Court ruled and denied to measure the validity of Custom from 1189 AD but stated explicitly that it must be of ancient and historical times.

Reasonability/No Arbitrariness

The second significant legal trial of a legitimate custom is that it must be reasonable. It must not be unreasonable. It must be helpful and advantageous to the general public. On the off chance that any parties face difficulties in a custom, the parties must fulfil and convince the court that a particular custom is unreasonable. This means the weight of evidence lies upon the individual who challenges the custom. To find out the reasonableness of custom it must be followed back to the season of its inception. The unreasonableness of custom must be great to the point that its authorization results in more prominent damage than if there were no custom by any means.

A custom ought to be viewed as adequately reasonable when it isn’t against the fundamental guideline of profound quality of the law of the state wherein it exists, standards of equity, morality and arbitrariness. It must not be generally rash, unforgiving or poorly arranged.

The Bombay High Court, in Narayan v. Living, held that a custom allowing a lady to forsake her better half at her pleasure and marry again without mutual agreement to be shameless and arbitrary on one spouse. The topic of reasonability is one of law for the court. The standard which the courts apply has been characterized by the Divisional Court of the King’s Bench in Produce Brokers co. vs Olympia oil and coke co., considered grounds of valid customs as “reasonable and legitimate and for example, sensible, genuine and impartial men”.

Continuance

A custom must be followed with consistency and in continuity from its inception. If it is proved otherwise that there were a break and a pause by a particular community in the following the custom in a court of law, then the court may have the discretion to get the custom annulled. Therefore a custom must be followed in consistency and continuity. In Hampton v. Hono, it was ruled that if a custom is not practised for a significant amount of time, then it would cease to exist as a valid custom.

Certainty

The most important test of a valid and essential custom is that a particular custom must be specific and less from ambiguity. If a particular custom is ambiguous, vague and not understandable by the parties then the particular custom will be declared as null and void by the court, the same was ruled by Privy Council in Wilson vs. Wilson.

Not opposed to Public Policy

Another test for the legitimacy of custom is that it ought not to be against public policy. This test might be incorporated into the trial of reasonability, as it is extensive term and it might incorporate public policy also. In Buldano vs Fasir, a custom, where a woman was allowed to remarry again during the lifetime of her husband was held to null and void by the court as it was against public policy.

Juridical Nature

A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary practice not conceived of as being based on any rule of right or obligation does not amount to a legal custom.

No analogical deductions

Custom can’t be stretched out by analogy. It must be set up inductively, not deductively and it can’t be built up by earlier techniques. It can’t involve hypothesis yet should dependably involve reality. In like manner, one custom can’t be inferred and deduced from another custom. Custom in contravention to fundamental rights will be declared as null and void.

Conclusion

In the beginning periods of the general public, the customs were the most significant, and in some cases, the sole wellspring of law. The customs lie in the establishment of the entirely legitimate and lawful framework. They appear with the presence of the general public. Custom is the continuous practice with regards to the primitive society.

Custom is a standard or practice which is trailed by the general population from time immemorial. Customs are supported and are fused and exemplified in legitimate standards. The impact of custom can be followed in any legitimate and legal framework. Custom is a valid and authoritative source of law but the only condition is that it must be valid and a lawful custom.

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This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the Right to Information Act, 2005, various important Sections and criticisms of the Act.

Introduction

India is considered as the largest democracy in the world. The basic feature of every democratic setup is transparency, openness and accountability. In India, public authorities or administrative authorities have a wide discretionary power, so feeling has been arisen in the mind of legislators as well public that this may lead to misuse of power which will ultimately result in maladministration and corruption.

For this purpose there should be a right vested in the common people of the country to access the information regarding the conduct or act discharged by public officials, so the system of check and balance can be maintained. Therefore, Right to Information has emerged. Right to Information implies that the public can participate in governance by accessing the information held by administrative or public authorities regarding the function discharged by them for the public welfare.

It is not only a statutory right but also a fundamental right of a citizen to know the information related to the public act performed by public authorities. It is fundamental for good governance and makes governmental authorities more transparent and accountable towards the common people of a country. There is a proximate relation between Right to information and  Administrative law as Administrative law can be defined as “branch of public law deals with the operation performed by administrative authorities”, and Right to Information empowers the public to access information held by public authorities.

Need

Right to information is the need of the current scenario because it assists to maintain transparency and accountability in government work. It helps to create a situation where the general public can get details of government action, plans, Yojana, schemes, etc., which aids to enhance the responsiveness of government towards society.

Right to Information Act in India took around 80 years to transform a grimy system of authority, valid by the “colonial officials secrets act”, where people can demand the “right to information”. India having a feeling of self-esteem in being the largest democracy, but with the passing of the recent enactment of the “Right to Information Act, 2005”. India has also become a strong democracy. The remarkable shift for Indian democracy, for the more access to the information by the citizen. Its “main focus on transparency and accountability in relation to the public authorities has been basically financed by the government”. Right to information has constitutional status, also it is enforced from Article 19 (1)(a) which talks about “fundamental rights of freedom of speech and expression”.

This Act is very necessary for each and everyone due to this our government officials and public institutions gathered information and work upon them. It embedded the right of every citizen of India to have access or control of the information related to finance to any authority by the state, thereby responsibility arises on the authority to use the information effectively without including into any corrupt activities. “In one of the cases, the Supreme Court of India ruled that every person has a right to know about expenses and assets against candidates for election, because these candidates offer the public services with their own desire so that they cannot demand exemption from any of the details related to assets or any charges against them.”  According to the above case, not only candidates but a political parties, worship places, education centres, but even  private schools and public companies fall under this Act.

The Mazdoor Kisan Shakti Sangathen (MKKS) was founded by social activists Aruna Roy and Nikhil Day in the year 1990 in the state of Rajasthen. This organization plays a very important role in the struggle of right to information. With the efforts of activists and international agencies, a large number of states enforced RTI Acts. They were Tamil Nadu (1996), Goa (1997), Madhya Pradesh (1998), Maharashtra (2000), Rajasthen (2000), Karnataka (2000 ), Delhi(2001), Assam (2002), and Jammu Kashmir(2003).

Features of Right to Information Act, 2005

• Public authorities have a duty to provide any information which is claimed by a citizen.
• Public authorities are under the obligation that they need to circulate the information to the person who demands the information. However, this Act comes with certain obligations relating to the security of the nation, personal information & other person’s information.
• There is a time limit on the authority to give information within 30 days.
• If the authority denies providing any kind of information then the person has the power to go to the appellate authority.  Later they can also go for the second appeal which falls under the “central information commission/state information commission”.
• Local court commands cannot be entertained in these scenarios.

There are 25 organizations which are exempted from the right to information under the “second schedule” of this Act. These include Central Economic Intelligence Bureau, Intelligence Agencies, etc., certain bodies which basically perform the research work with regard to the country’s security, special service bureau, narcotics control board, but  RTI Act is not applicable to “Dadra and Nagar Haveli & Lakshadweep”.  This Act has done marvellous work because it gives the path to access information which earlier remained secret. This Act impacted the system and the people both tangible and intangible. People use this activity as a tool to get their documents and avail services like “passport, death certificate, pension, birth, ration card and income tax return”.

Many people who are incapable, poor or physically disabled get benefits from this Act. RTI Act works with “administration in which there is more transparency with regard to the functioning of public bodies” due to which they maintain all records which are categories as the indexed. If transparency is removed or abolished from this Act then the chances of corruption practices increase and the delaying of work would become slower due to which lower investment means misuse of power, authority and the funds used for private purposes.

RTI helps the administration to take proper action and adopt a policy which helps the government to reduce corruption and work effectively. It also involves the selection of appropriate programmers to achieve government objectives. The largest indicator of “RTI Act” has slowly lowered the level of corruption in India.  

Chapter 1 of this Act deals with the definition that is covered under this Act e.g. definition of “information”, “competent authority”, “state public information officer”, “Right to Information”, “public authority”, etc. Chapter 2 deals with the obligation of public bodies against the maintenance of books and records in their interest areas of work and the different procedures related to the application of information.

Section 8 is defined as “exemption from disclosure of information”. Sub-Section (1) states that Notwithstanding anything contained in this Act, there shall be no obligation to any citizen.

• Disclosure of the information would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign States or lead to incitement of an offence.
• The information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court.
• Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature.
• Information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.
• The information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.
• Information received in confidence from a foreign government.
• Information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes.
• The information which would impede the process of investigation or apprehension or prosecution of offenders.
• Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of the Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the 14 decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this Section shall not be disclosed.
• Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied.

The above Section talks about the exemption in which public organization cannot disclose their information because that likely to threaten for the society and the parliament or not mandate to disclose. Only with permission, it can be disclosed.

Complaint

The Act also said that any person may file a written request to an officer (PIO) which is appointed by the authority which is covered by this Act. It is the obligation to entertain the request made by citizens. If the officer is not present then the applicant has the option to file a request in front of state or “central information commission”.  It also provides a time limit so that the process can be done speedily. Different time limits are prescribed for different situations:

• When an application is entertained by any PIO then they have an obligation to reply to the application within a time limit of 30 days and any application which is presented before assistant PIO must be replied to within 35 days.
• The application transfers to another PIO in 30 days which starts or counts from the day on which its application is transferred.
• Any application presented in relation to information regarding corruption by any schedule secured agency or any kind of violation of human rights which are covered under schedule II of RTI Act then reply must be given within 45 days with the permission of the central information commission.
• PIO is required to give information which includes “right to life and liberty” of the person.

Any person can file an application on any matter which is related to RTI simply by making an account and pay a nominal amount for the filling of application. Right to information is not only a statutory right which emerged from Right To Information Act, 2005 but it is preexisted and considered as a fundamental right enshrined in Part III of the Constitution. Although it is not expressly mentioned anywhere in the Indian constitution but falls within the purview of “Freedom of Speech and Expression” and “Right to life and Personal Liberty”. Through Interpretation of the Supreme Court in various landmark Judgments, we can infer that Right To Information is Fundamental Right.

In the case of Bennett Coleman vs. Union of India[1], the Apex Court stated that “Right to information is our fundamental right falls within the purview of article 19(1)(a) of the Constitution of India”. In Express Newspaper Ltd VS. Union of India[2], the court observed that the foremost purpose of the right to freedom of speech and expression is that people should be able to form an opinion and freely communicate it to others.

In the case of SP Gupta vs. Union of India[3], the court observed that “It is a right of the public to get information regarding public functions performed by the public authorities and authorize public to access the information related to public transactions performed within the scope of the public act”. In RP Ltd. vs. Indian Express Newspaper[4], the court held that “Right to information is a basic right and falls within the purview of Article 21 i.e. right to life and personal liberty”.

In the case of People Union for Civil Liberties vs. Union of India[5], the Apex Court analyzed right to information in the light of human rights which is requisite for making administration and governance accountable and more transparent. Therefore from the above observation of the Supreme Court, we can say that Right to Information is our fundamental right.

There is a famous saying that ‘power corrupts and absolute power corrupts absolutely’. So, no right can be absolute in nature. Every right is subject to certain reasonable restrictions. Hence Right to information is also subject to reasonable restrictions given under Article 19(2) of the Indian Constitution. Certain exemptions from disclosure also given Under Right To Information Act, 2005 which are as follows:

• The information which tends to prejudice the international relations, integrity and national security of the country;
•  The information which is expressly forbidden from disclosure by tribunals and court.
•  The information which related personal details and not in the interest of the public, and if there is access to information it may violate the right to privacy.
• Information related to trade secrets, commercially confidential information and intellectual property.
• Confidential information received from foreign government etc.

There is another issue also arise while exercising Right to Information that it may lead to invasion in right to privacy because both these rights are in conflict or position. On one side Right to Information empowers the citizen to access the information held by public authorities, on the other it restricts the access of personal information, therefore a balancing view can be adopted  that Right to information cannot be exercised with regard to personal information until and unless it is important for public interest.

In India, the Democratic form of government has established which means that the government has to work according to the “will of the people’. The main focus of the government is to transform people’s will into their actions and take responsibility for it. This democratic system only works properly when people become more aware, alert, and conscious and get information about political agendas, policies, schemes, plans, Yojana, which is introduced by the government. Right to Information Act, 2005 trying to facilitate the general; public to access the information regarding government plans. Act provide modus operandi to acquire information and data related by the public office to affected parties, NGO, co-operation and the general public with the intention of social welfare.

What does it do?

Right to Information Act, 2005 promotes harmonious construction between people and the government of people. Earlier, where situation arose public officer became superior-oriented rather then service-oriented because there were no checks upon them regarding their services. But the RTI Act, provide a straitjacket solution to make public officer again service oriented. Now under RTI Act, people have right to get details of public authorities so, it creates a fear of exposing upon the mind of the public servant, which is changing the attitude of public officers towards their duties and responsibilities.

Role of Right to Information Act,2005 for Good Governance because RTI Act helps to improvement in accountability, the performance of government. The act facilitates a mechanism to access upon information by the public from public office. Any kind of administrative action or quasi-judicial judgment taken by any public authorities so, minute details are required to maintain. The general public or affected parties can collect that information from public office and time. Act also appreciates the participation of citizens in the decision making process. NGO, co-operation, institution or general people have right to get information regarding various yojana, plans, schemes, allocation of resources and funds by the government in a rural and urban area. With the help of those data NGO and social welfare, the institution gets an idea about the problem in the society and their solutions too. Act provides aids to reduce corruption in public offices, now the public officer is not utilizing the fund for their private use, and not abuse their public power.

Critical Appraisal of Right To Information Act

The RTI Act makes the right to information as a tool to check upon the misuse of the discretionary power of administrative authorities but it suffers from several drawbacks which weaken the position of the right to information. The drawbacks are as follows:

Section 2(h) defines the term ‘public authority’ but it does not give a comprehensive and exclusive definition of public authorities which might create confusion. The term ‘Public Authorities’ includes Non-government organization which are funded by the government either directly or indirectly but there are some NGOs which are funded by the public then the question has been arising that whether these NGOs falls within the category of public authorities or not. Temples appeared not as public authorities because they are funded by trusts but in many cases, the Supreme Court considered temple as public authorities. So, here also there is no clear picture in the Act whether the temples considered as public authorities or not.

Another loophole in this Act is absence of contempt provisions, this stated that the information commission shall be binding but the provision of ‘contempt of court’ is absent due to which it cannot force or compliance to the public to follow the rules. the absence of ‘contempt of court’ make the non-compliance of the order passed by the information commission .there must be provision insert in this Act.

And there is no penalty upon appellate authority, the applicant should receive the information requested in the RTI application within 30 days of receiving such application and within forty-eight hours in case of life and liberty as per Section 7(1) of the act. But if that limit exceeds or in no limitation time period this work not done then there is no proviso or concept introduced. It is necessary because it makes the whole process lazy and wasting without any penalty.

It provides that serviceman also become Central Public Information Officer [CPIO] even if they don’t have any knowledge about the Act and work still they appointed as the additional duty. As the dealing with the RTI application is necessary and the relevant information is required and dealing with the applicant is very crucial and important but the qualification of CPIO is not given and not mention anything about the qualification. And training should be provided to the fresher persons and the appellate authority and review them from time to time about the amendment test along with the training should also be conducted so they can get the information and knowledge.

There are various other loopholes in the Right to Information Act, 2005 which create hurdle in better administration and to fulfil the objectives of this Act. RTI Act, 2005 which ensure that information must be delivered to the public within 30 days of application and if the public officer fails to provide information within prescribed time so, the penalty will impose upon officers.  It is not practically possible that in each case, that all the information is collected accurately within time, to the applicant. There are various factors which cause delay to deliver information like elections, holidays, emergency, disaster management, and old data from different branches which talk a long time to recover etc.

The information which is providing to the applicant can be any for either soft copy or hard copy. It is also not necessary that each public information office which is situated in hilly, rural and village area have the proper facility of fax, telephone, electricity, internet facility. Lack of infrastructure and facilities may also delay in delivery of information to the applicant. Now, a day’s people started misusing the information which is collected from the Public information office. The primary objective is to provide information for public welfare. But, in today’s era, the aim of the act is defeated and it is becoming the tool of the person with the malicious intention to harass their co-operation and blackmail their colleagues etc.

There are many provisions in RTI Act, which impose obligations, duties responsibilities as well as a penalty upon public officer but no provision for the appreciation for their hard works, which create a situation of de-motivation in the mind of public employees. Act also not provides any kind of protection to the whistleblower. Basically, Whistleblowers get information with the help of right conferred under the RTI Act, from public information office and give the report to Civil Vigilance Commission (CVC) about corruption, illegal works, malpractices etc. Whistleblower Protection Act is introduced by the government in 2014 but that Act has many loopholes and no proper protection provided to a whistleblower in RTI Act which makes the worst condition for a man who raises their voice against injustice. Poipynhun Majaw murder case (2018), Nanjibhai Sondarva murder case (2018), Bhupendra Vira murder case (2016), Nandi Singh murder case (2012) etc. are the example of whistleblower murder cases.

Conclusion

Right to information is a weapon in the hands of citizens of the country to know the functions performed by public authorities, the purpose of the public transaction said to done in the name of the public act and the source of finance to discharge such functions. Right to information exists before the enactment of Right to Information Act,2005 because it is considered as one of the fundamental rights within the purview of Article 19(1)(a). This right promote transparency, accountability in function discharge by public authorities. Although Right to information is considered as advancement in India it suffers from several drawbacks which need to be revised and improved.

References

1. 1973 SCR (2) 757
2. On 8 January 1958
3. 1982 2 SCR 365
4. 1988 SCR Supl. (3) 212
5. 13 March 2003

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This article is written by Arkodeep Gorai, a fourth year student of Amity Law School, Noida. In this article he discusses how a person can file for compensation for death caused while boarding a train.

Introduction

Indian Railways is the fourth largest State-owned national transportation service in the world. It is still one of the safest means of the transportation system in India. But still being one of the safest means of transportation Indian Railways is still prone to accidents.

Majority of such accidents are caused by derailments of trains and low-level crossing. Both of them account for almost 90% of the railways related accidents (43.5% and 46.5% respectively). Regardless of how the accident or death occurred or whether it happened on the station, platform or train or any railway premises if it was not the passenger’s fault then the passenger may be entitled to file a train accident claim. Hence, this article will deal with how to file for compensation for death caused while boarding or de-boarding trains.

Liability of Railways Administration under The Railways Act

The liability of railways under accidents or death had been always a conflicting matter. The Supreme Court of India on May 9th, 2018 resolved through the case of Union of India vs Rina Devi. In this case, the Supreme Court held that death or injury in the course of boarding or de-boarding a train will be an “untoward incident”.

An “untoward incident” falls under Section 124A of The Railways Act, 1989. So Section 124A of The Railways Act states that during the working of the railways an untoward incident occurs then the railway administration must pay compensation to the victim or the dependant of the victim regardless of whether or not there was neglect, or any mistake on behalf of the railway’s administration. Absence of ticket with such injured or deceased will not remove the liability of Railways to pay the claim. So any person who has been a victim of “untoward incident” is eligible to receive compensation from the Railway Administration.

People eligible for Compensation

The following people are eligible for compensation under The Railways Act, 1989:

• People involved in any form of railway accident including the derailment of rail, low-level crossing (only the people boarding the said train), the collision of rail-car.
• Any person involved in any consequential railway accident which may cause injury or death of that person.
• Any person who has been exposed to hazardous chemicals or involvement of sabotage, terrorism, explosion or fire.

People not eligible for compensation

According to Section 124A of The Railways Act, certain people are not entitled to compensation and they are as follows:

• If a person deliberately tries to kill himself or any attempt of suicide.
• Any injury inflicted on oneself.
• Injury caused by the person’s own unlawful act
• An act committed by the person who was intoxicated or an insane person.

Process of claiming such compensation

Section 125 of the Railways Act, 1989, allows a victim or dependant of a deceased person to make an application for compensation along with the prescribed fee. The following people can file an application to The Railway Tribunal for compensation under Section 125 of the Railways Act, 1989:

• A person who has experienced any injury or suffered any form of loss.
• Any agent who has been duly authorised by such person in his behalf
• A person who is minor, in such case the guardian of such minor can file an application,
• A dependant of a person who has died due to an accident caused by the railways or who has sustained grievous injury due to the accident.

However, there are certain restrictions related to the filing of an application for compensation at the Railways tribunal as per section 17 of the Act:

• There is a definite “limitation period” for reporting of the incidents. In cases where the goods have been lost, damaged or destroyed or there is non-delivery of an animal then in that case the limitation period is three years.
• The incidents which are under the Section 124A of The Railways Act, the “limitation period” for such cases is one year.   

Here, the term limitation period means “a legally specified period beyond which an action may be defeated or a right does not continue.” In the claim tribunal claims can be dealt with in person, the claimant does not need to hire any lawyer and the Railways Claim Tribunal acts on the principle of natural justice than the principal of law.

Burden of proof

The initial burden of proof lies on the claimant but it can be discharged by the filing of an affidavit of the relevant facts of the incident. Once the affidavit has been filed the burden of proof shifts on the Railway Administration and it is up to the discretion of the tribunal to decide from the facts or the attending circumstances.

Quantum of compensation and Interim Relief

The railway administration has increased the amount of compensation. The Indian Government has amended such enhancement in The railways Act, 1989. The compensation has been made twice for people who suffered severe physical injury or in case of death.

Under the Railway Accident and Untoward Incidents (Compensation) Amendment Rules, 2016 the initial amount for compensation which was Rs. 4 lakh has been increased to an amount of Rs. 8 Lakh in cases regarding the death of a passenger or the passenger faced any loss of limb. The compensation shall be granted by the Railways Claim Tribunal to the dependants of the victim who has died or suffered serious injuries.

The official notification states that, if a person becomes blind or loses his eyesight for one eye or becomes deaf, then that person shall be granted Rs 8 lakh in compensation. A person is also granted the same amount of Rs 8 lakh if that person suffer severe facial disfigurement, according to the official notification released by the railway administration. For injuries, the amount varies from Rs.32,000/- to Rs.8,00,000/- depending on the nature of the injury sustained.

Ex Gratia relief

Ex-gratia relief is granted by the railway board or welfare department just after an accident, and the amount of moral relief is Rs.15,000/- to the next of kin of the dead, Rs.5,000/- if there is a case of grievous hurt and Rs.500/- in the case of injuries which are simple in nature. The Ex-gratia relief is proposed to meet the instant cost and is not considered at the time of final judgement of claims related to the compensation. In case of severe or special circumstances, the quantum can be enriched.

The amount of Ex-Gratia relief for accidents at the level crossing is Rs. 6000 in case of death and Rs 2500 in case of grievous injury.

Steps taken for speedy settlement as per Minister of State for Railways

Minister of State for Railways Shri Rajen Gohain (also a member of the Parliament, Lok Sabha) gave a written statement in Rajya Sabha on 22nd December 2017 inducing various steps that the Ministry of Railways proposes to take regarding the speedy settlement of cases related to compensation in The Railways Claim Tribunal. Some of the steps are:

1. Directions are issued to all authorities of zonal railways that as soon as there is an occurrence of an accident all information regarding the injured or killed people in the accident must be provided and all the claimants shall be provided with accident claim forms.
2. The railway administration must assist the tribunals for quick and easy settlement of disputes.
3. Written statement is essential to be filed by the railway administration in such circumstances under 15 days of notice from RCT.
4. After the amount of a claim has been approved by the RCT, railways have to make that cheques are issued and transferred under a period of 15 days.
5. Initial fiscal incidents regarding the accident compensation claims case shall be allocated amongst victims.
6. The Chief Claims Officer of the RCT has the power to compensate claims up to ₹ 8 lakh.
7. The claimant can file the application of claim at the tribunals bench having its jurisdiction over the territory of India
8. If there is a high pendency of cases then in that condition there must be an establishment of Holding Circuit Benches.
9. Whenever there is presence of any vacancy in the Railways Claim Tribunal then in that case railway administration must fill up those vacancies as soon as possible.
10. There can be a maximum of three trials regarding the cases of compensation in the RCT.
11. Railway Claims Tribunal must give their judgement under 21 days of final hearing of the case that was filed before it.
12. One copy of the order of Railway Claims Tribunal for accident compensation claims shall be supplied for free to the claimant under 3 days of the granting of final judgement.
13. Relevant Rules & Procedures in connection with compensation claims in respect of “Accident” have been incorporated in the Indian Railways” website. It also contains the format of different application forms which are needed for filing compensation claims.

These steps were released in the press afterwards with the Ministry of Railways insisting on complying with these steps for speedy settlement of trials pending under the Railways Claim Tribunal.

Rights that are given to claimants

Right to Legal Representation

The claimant has the right to take the help of a lawyer of his/her choice and such lawyer can represent the victim or the claimant in the tribunals.

Free Legal-Aid

The railways along with the state provides free legal aid to all the claimants and the victims who cannot afford to hire a legal representative of their own.

The railway administration issues tickets to victims. The railway administration issues travel passes from the address of the victim/claimants to the place of hearing when the claimant is summoned by the Railway Tribunal regarding the matters falling under Sections 124 and 124-A of the Railways Act, 1989.

Particulars required for filing of claim for compensation

1. The claimant must provide their name and also the name of their father.
2. The claimant must provide their place of residence.
3. The claimant must fill their age.
4. The claimant must provide their profession.
5. If there is any employer of the deceased then in that case the name and the address of such employer.
6. The claimant must provide the details of the accident along with the location and the date of the accident.
7. The claimant must provide the ticket or pass number.
8. Nature of injuries sustained along with a medical certificate.
9. Name and address of the Medical Officer/Practitioner who attended on the injured/dead and period and date of treatment.
10. The claimant must mention if he/she faced any disability due to the accident.
11. If there is any loss of luggage then the claimant needs to provide the details of such luggage.
12. If the claimant has lodged any report regarding the accident to any other authority then the claimant must attach the report as well.
13. Name and permanent address of the applicant/claimant.
14. If there is any local alternative address of the applicant then it must be stated as well.
15. If a dependant is filing the application then the dependant must state the relationship he/she had with the deceased or injured.
16. The claimant must state the amount of compensation that he has claimed.
17. Any other information or documentary evidence that may be necessary or helpful in the clearance of the claim.

Documents required for the facilitation of the settlement of claim by the Tribunal

1. If the person had died then post mortem report of his death.
2. If there is death or injury then a copy of the FIR.
3. If a person suffered some injuries then there is a requirement of a medical report by a certified doctor and the medical report must contain details of such injuries.
4. If the passenger has died then in that case the tribunal requires the death certificate of such passenger and the death certificate must be issued by the District Administration.
5. If there is death of the passenger then there is a need for heirship title.
6. The registered proof of the victim/claimant. The registered proof must show that the victim/claimant was a passenger of the train and in case if there is no availability of such documentary proof then the claimant must provide ticket number and class of travel (to the extent that the claimant is aware).

Conclusion

So to conclude, the Railway Administration through the means of The Railway Act and The Railways Claim Tribunal aims to compensate victims or the dependants of the deceased. It is very important for a person to be aware of how the railway compensation tribunal functions as it may enable them to fight for their right to claim compensation from Railways due to any untoward incident.

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The article has been written by Subodh Asthana, a student of Hidayatullah National Law University. The author has discussed the different “schools of jurisprudence” along with some eminent scholars in the article.

Introduction

Jurisprudence is the study or philosophy of law. Various Jurisprudence thinkers and scholars have tried to explain it in the general form for the more profound understanding of the lawmaking process. Modern-day jurisprudence started in the eighteenth century and was centred on the primary standards of natural law, civil law, and the law of nations.

General jurisprudence can be separated into classifications both by the sort of inquiry researchers look to reply and by the hypothesis of jurisprudence, or schools of thought, in regards to how those inquiries are best replied. Contemporary rationality of law, which manages general jurisprudence mainly delivers issues under the law and legitimate frameworks and it also with issues of law as a social establishment that identifies with the more significant political and social setting in which it exists.

Schools of Jurisprudence

Jurisprudence is the hypothesis and investigation of law. It considers the cause and idea of law. Law has an unpredictable idea. Its comprehension differs from individuals to individuals. Everybody has an alternate perception of the law. The article discusses the five schools of Jurisprudence viz.

• Philosophical School
• Historical School
• Realist School
• Sociological School
• Analytical School

Philosophical School

The philosophical or moral school concerns itself mainly with the connection of law to specific thoughts which law is intended to accomplish. It tries to explore the reasons for which a particular law has been established. It isn’t related to its recorded or scholarly substance. The eminent law specialists of this school are Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). These law specialists see law neither as the discretionary order of a ruler nor concerning the making of recorded need. To them, the law is the result of human reason and its motivation is to hoist and praise human identity.

New speculations supporting the sway of the state were propounded by pragmatist Polito-legitimate masterminds. For example, Machiavelli, Jean Bodin. Because of these advancements, transient expert of the Church and the natural religious law got a genuine blow.

Lastly, it dwindled offering approach to inherent privileges of man and the state. The natural law hypothesis propounded by Grotius, Locke and Rousseau altered the current organisations and held that ‘social contract’ was the premise of the general public. Hobbes utilised natural law hypothesis to propagate reactionary development and legitimise business as usual for the safeguarding of harmony and insurance of people from never-ending struggle and disarray. Thus, the views of Scholars represent the Philosophical thought of the School itself.

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Grotius

Hugo Grotius (1583–1645), a well known legal scholar in the Dutch Republic and established frameworks for universal law, in light of natural law. Grotius expelled the natural law from the locale of good scholars and made it the matter of lawyers and thinkers, by declaring that by their very nature, natural laws were definitive in themselves, with or without confidence in God.

He held that the ethical morals of natural law connected to all social and sane creatures, Christian and non-Christian alike. Grotius additionally advanced the idea of “Simply War” as a war which was required by natural, national and celestial law in specific situations.

Hobbes

Thomas Hobbes discovered the social contractual hypothesis of legal positivism. He proclaimed that all men could concur that what they looked for (bliss) was liable to dispute, yet that a comprehensive accord could conform to what they dreaded (savage demise on account of another, and loss of freedom and individual property). Natural law was characterised as how a sound person, looking to endure and flourish, would act.

It could be found by thinking about mankind’s natural rights, prior understandings had determined natural rights by thinking about natural law. As Hobbes would like to think, the primary way that natural law could win was by all men submitting to the directions of a sovereign. A definitive source of law currently turned into the sovereign, who was in charge of making and upholding laws to oversee the conduct of his subjects.

Locke

John Locke (1632–1704) is among the most persuasive political thinkers of the difficult period. He safeguarded the case that men are commonly free and equivalent against claims that God had made all individuals naturally subject to a ruler. He contended that individuals have rights, for example, the privilege to life, freedom, and property that has an establishment autonomous of the laws of a specific culture.

Locke utilized the case that men are naturally free and equivalent as a significant aspect of the defense for understanding real political government as an after effect of a social contract where individuals in the condition of nature restrictively exchange a portion of their rights to the legislature so as to all the more likely guarantee the steady, agreeable happiness regarding their lives, freedom, and property. Locke additionally protects the guideline of dominant party rule and the division of administrative and official forces.

Hegel

Hegel was the most persuasive scholar of the philosophical school. His framework is a necrotic one. As per him “the state and law both are developmental.”  

The extraordinary commitment of Hegel to philosophical school is the improvement of the possibility of advancement. As per him, the different appearances of social life, including law are the result of a developmental, unique procedure. This procedure includes rationalistic structure, uncovering itself in theory, absolute opposite and blend. The human soul sets a proposition which ends up present as the main thought of a specific recorded age.

Rousseau

Jean-Jacques Rousseau (1712 – 1778) trusted current man’s enslavement to his very own requirements was in charge of a wide range of societal ills, from misuse and mastery of others to poor confidence and despondency. Rousseau trusted that great government must have the opportunity of every one of its natives as its most key goal.

The Social Contract, specifically, is Rousseau’s endeavour to envision the type of government that best avows the individual opportunity of every one of its natives, with specific limitations natural to an intricate, present day, civil society.

Rousseau recognised that as long as property and laws exist, individuals can never be as utterly free in present-day society as they are in the condition of nature, a point later reverberated by Marx and numerous other Communist and rebel social thinkers.

Regardless, Rousseau unequivocally had confidence in the presence of specific standards of government that whenever authorised, can bear the cost of the individuals from society, a dimension of opportunity that at any rate which approximates the opportunity appreciated in the condition of nature.

Kant

Kant gave current reasoning another premise which no consequent philosophy could overlook. The Copernican Turn’ which he provided for philosophy was to supplant the mental and exact strategy by the basic technique by an endeavour to base the reasonable character of life and a world not on the perception of actualities and matter but rather on human cognisance itself.

According to Kant “the opportunity of man act as indicated by his will and the moral proposes are commonly co-relative because no moral hypothesise is conceivable without man’s opportunity of self-assurance“.

Historical School

Historical school of jurisprudence trusts that law is a result of a long historical advancement of the general public since it starts from the social custom shows ethical standards, monetary requirements and relations of the general population.

As indicated by this hypothesis, the law is the result of the powers and impact of the past. Law depends on the general awareness of individuals. The cognisance began from the earliest starting point of the general public because there was no individual like sovereign for the making of law.

Savigny, Sir Henry Maine and Edmund Burke are the eminent legal jurists of this school.

Savigny is viewed as the originator of the historical school. He has given the Volksgeist theory. As indicated by this theory, the law depends on the general will or through and through the freedom of ordinary citizens. He says that law develops with the development of Nations increments with it and passes on with the disintegration of the countries. Along these lines, the law is a national character of the cognisance of individuals.

This school does not connect much significance to the connection of law to the state yet offers importance to the social establishments in which the law creates itself. While the investigative school pre-assumes the presence of a very much established legal framework.

The historical school focuses on the development of law from the crude legal organisations of the antiquated networks. The undertaking of the historical school is to manage the general standards administering the root and advancement of law and with the impact that influences the law.

Historical legal advisers ousted the moral thought from jurisprudence and rejected all imaginative interest of judge and law specialist or lawgivers really taking the shape of the law.

Volksgeist Theory

Savigny takes a shot at the law of ownership (Das Recht Des Vestiges) which was distributed in 1803 is said to be the beginning stage of Savigny’s historical jurisprudence. He solidly trusted that all law is the confirmation of ordinary mindfulness (an indication of regular cognisance) of the general population which develops with the development and reinforces with the quality of the general population and thus diminishes as the country loses its nationality.

The beginning of law lies in the well-known soul of the general population which Savigny named as ‘Volksgeist‘.

Law has a national character, and it creates a language and ties individuals into one entire due to their primary religions, convictions, and feelings. Law develops with the development of the general public and increases its quality from the general public itself lastly, it wilts away as the country loses its nationality. Law, language, custom, and governments have a no different presence from the general population who tail them.

At the most particular stage, law grows consequently, as indicated by the interior needs of the network. Yet, after a specific dimension when it achieves civilisation, it has an incredible task to carry out.

As a two-part harmony good example between the controller of general national life and as an unmistakable order for study, i.e., performing, controlling and managing the national exercises just as considering it by experts as law specialists, phonetics, anthropologists, researchers and so on.

In straightforward terms, it tends to be named as the political component of law and juristic component and both assume a large job in the advancement of law.

Savigny was not absolutely against the codification of the German law on the French example around then since Germany was then partitioned into a few small states and its statutes were crude, prudish and needed consistency. He expressed that the German law could be classified when there is a commonness of one law and one language all through the nation. Since Volksgeist had not satisfactorily created around then, in this way, codification would have beset the development and development of law.

Following out the advancement of law from Volksgeist, Savigny considered its development as a nonstop and unbreakable procedure bound by necessary culture, customs, and convictions. He needed German law to be created on the example of Roman law. As indicated by him, the codification of law may hamper its consistent development, and when the legal framework gets entirely created and built up, then the codification may happen.

Regardless of specific criticisms, Savigny’s legal theory denoted the start of the cutting edge jurisprudence. His theory of Volksgeist translated jurisprudence as far as individuals’ will as it laid more noteworthy accentuation on the connection of law and society. What’s more, is that this theory came as a rebel against the eighteenth-century natural law theory and explanatory positivism.

The quiet essence of Savigny’s Volksgeist theory was that a country’s legal framework is incredibly affected by the historical culture and customs of the general population and the development of law is to be situated in their prevalent acknowledgement.

Realist School

Basically, the Realist school was evolved and given accreditation in the American Jurisprudence. Legal realism suggests that judicial decisions must comply with financial factors and inquiries of strategy and qualities. In America, we have the Realist School of jurisprudence. This school strengthens sociological jurisprudence and perceives law as the consequence of social impacts and conditions, and sees it as judicial decisions.

Oliver Holmes is, as it were, an example of the pragmatist school. “Law is the thing that the courts do; it isn’t simply what the courts state.” Emphasis is on activity. As Holmes would have it, “The life of the law has not been the rationale; it has been involvement.”

Karl Llewellyn, in his previous works, was a representative for customary pragmatist theory. He contended that the guidelines of substantive law are far less significance in the genuine routine with regards to the law that had up to this point been expected.

The theory rules that chosen “cases which appeared for a century have been tricked and dealt by library-ridden hermits as judges.” He suggested that the point of convergence of legal research ought to be moved from the investigation of standards to the recognition of the genuine conduct of the law authorities, especially the judges. “What these authorities do about debates is, to my mind, the law itself.”

Llewellyn, one of the examples of the pragmatist development, has put forward the accompanying focuses as the cardinal highlights of American realism;

1. Realism isn’t so much another school of jurisprudence as another philosophy in jurisprudence.
2. Realists see the law as robust and not as static. They view the law as serving specific social closures and concentrate any given cross-segment of it to discover to what degree these finishes are being served.
3. Realists, with the end goal of perception of working of any piece of the legal framework, acknowledge a ”separation of is from should“. This implies the moral purposes which, as per the spectator, ought to underlie the law are overlooked and are not permitted to obscure the vision of the eyewitness.
4. Realism accentuates the social impacts of laws and legal decisions.

Sociological School

The sociological school of jurisprudence developed as the blend of different juristic contemplations. The types of this school treat law as a social wonder. As indicated by them, the law is a social capacity, an outflow of human culture concerning the external relations of its individual individuals. Montesquieu, Auguste Comte, Herbert Spencer, Duguit and Rosco Pound are the prominent legal advisers of this school.

This type of school laid more prominent weight on the utilitarian part of the law as opposed to its conceptual substance. They view the law as a social organisation connected with their orders bearing a direct effect on society.

The historical school, which was a response to the ultimate independence of the nineteenth century by its accentuation on the Volkgeist soul of the general population demonstrated that law and the social condition wherein creates are personally related. This thought was worked out by legal advisers of sociological school.

Before the nineteenth-century matters like wellbeing, welfare, training, and so on were not the worry of the state. In the nineteenth century, state, on account of the antagonistic impacts of free enterprise turned out to be increasingly more worried about various issues including practically all parts of life and welfare. This inferred guideline through the law, which constrained legal theory to straighten out itself to assess social wonders.

Ehrlich (1862-1922), a famous legal adviser of sociological school, essentially clarified the social premise of law. For him, the law is gotten from social realities and depends not on state expert but rather on social impulse. Law, he said contrasts a little from different types of social impulse and the state is simply one among numerous affiliations, however, indeed it has specific qualities methods for impulse.

The genuine wellspring of law isn’t rules or announced cases, however, the exercises of society itself. There is a “living law” basic the formal guidelines of the legal framework and it is the assignment of the judges and the legal advisers to incorporate these two kinds of law.

Roscoe Pound is viewed as a standout amongst the most noted American Sociological legal scholars of the twentieth century. Kohler’s methodology, truth is told, motivated Roscoe Pound the most for propounding the theory of social designing and the adjusting of social interests. Kohler attests that all laws are relative and moulded by the civilization where they emerge.

The possibility of law needs to pursue the all inclusive thought of human civilisation and the significance of civilisation is the social improvement of human parts towards their most astounding conceivable unfurling. The development of civilization results from the battle between the human personality separating itself from nature and the item matter of develop.

The assignment of law following the advancement of civilization is both to keep up existing qualities and to make new ones for the further improvement and unfurling of human forces. Each civilisation has a certain country which hypothesises thoughts of rights to be made successful by legal Institution.

Legal materials must be moulded to offer impact to those hypothesises and officials, judges, legal scholars must mole to the law as per them. For Pound, the law is a requesting of lead in order to cause the merchandise of presence and the methods for fulfilling professes to go Round quite far with the least grinding and waste. Pound views these cases as interests which exist autonomously of the law and which are squeezing for acknowledgement and security.

Equity Oliver Windell Holmes thought about law as a way to ensure and advance the aggregate gathering interests as contrasted and individual interests. Therefore, he moved toward law in a down to earth way, receiving a sensible frame of mind to dissect its working in the general public.

He apropos commented, “life of law has not been rationale, it has been involvement” which implied that while deciding the law and legal guidelines by which men ought to be administered, the lawyers and judges must mull over the requirements of the time, common good and political statutes, public policy and the public feeling.

Roscoe pound considered law as a ‘social engineering‘ its primary assignment being to quickens the procedure of social requesting by endeavouring every single imaginable exertion to maintain a strategic distance from irreconcilable circumstances of people in the general public. Along with these lines, courts, officials, heads and legal scholars must work with an arrangement and try to keep up a harmony between the contending interests in the public eye. He specifies different benefits which the law should look to secure and arranged them into various general classes.

In Case-Animal and environment legal defence fund vs Union of India & Ors.

The Supreme Court connected the standards of Economic supportability and condition assurance. The court thus ruled that if the townspeople are not allowed angling, their employment will be decimated. If they are allowed, there will be a threat to nature.

Henceforth the Supreme Court requested the concerned woodland specialists and the board established to find a way to secure the resources of earth without disrupting the employment of the locals. They will watch the locals and give reasonable guidelines for them. They will be instructed on the significance of the condition. The locals ought not to enter in other territories acknowledges to the lakes on which they are given angling rights.

Principle

The Supreme Court connected sociological methodologies for this situation for the welfare of tribals, whose wellspring of the job is angling. For this situation, yet besides in each ecological case, the sociological methodology of their lordship is perfectly clear. Their lordships regularly state that “law is a social building”.

It might be expressed that pound’s characterisation of interests in his theory of social designing can’t be said to be idiot proof, and one may discover some covering of benefits all over. Pound himself acknowledged that the different benefits of people in the general public must be extensively grouped and they can’t be put in watertight compartments. Julius stone has rejected the division of public affairs and social interests on the ground that in actuality, they are on the full social benefits.

Pounds handled the issue of interests as far as adjusting of individual and social interests. It is through the instrumentality of law that these interests are tried to be accommodated. As Justice Cardozo accurately commented, “Pound endeavoured to stresses the requirement for judicial attention to the social qualities and interests”.

Analytical School

Analytical school is otherwise called the Austinian school since this methodology is set up by John Austin. It is likewise called as an imperative school since it regards law as the direction of the sovereign. Dias terms this methodology as “Positivism” as the topic of the school is certain law. The analytical school picked up unmistakable quality in the nineteenth century. His methodology was mainstream, positivistic and exact. Truth be told, it was Austin who propounded the theory of positive law, the establishment of which was laid by Bentham.

Jeremy Bentham can be said to be the author of the Analytical school. In one of his books, he dismissed the principles of natural law and expounded the rule of utility with logical accuracy. He isolated jurisprudence into explanatory and censorial. The previous arrangements with the law all things considered while the last arrangements with the law as it should be.

Bentham’s examination of censorial jurisprudence is demonstrative of the way that the effect of natural law had not totally vanished that is the reason he discussed utility as the overseeing rule. Maybe, as a result of this reason, Bentham isn’t usually known as the father of analytical school. He, in any case, trusts that law is a result of state and sovereign. Bentham’s idea of law is an imperative one for which he alluded the expression “command.”

Austin gave the primary precise and extensive treatment on a subject which expounded the analytical positivist methodology, and because of this work, Austin is known as the father of the Analytical School. He constrained the extent of jurisprudence and endorsed its limits. His methodology was analytical. The investigation was by him “the standard strategy” to concentrate in the fields of jurisprudence. Austin based on the establishment of explanatory jurisprudence laid by Bentham and did not worry about additional legal standards. He recognised the investigation of enactment and law from ethics.

To Austin, jurisprudence implied the formal examination of legal originations. He isolates jurisprudence into general jurisprudence and specific jurisprudence. Austin accepting a legal framework as it is that is specific law and settled it into its crucial origination. Positive law is the result of state and sovereign and is not the same as profound positive quality.

Kelson’s theory of law which is known as the pure theory of law suggests that law must stay free from Social Sciences like brain research, human science or social history. Kelson’s point was to build up an investigation of law which will be pure as in it will carefully shun all powerful, moral, mental and sociological components.

Salmond surrenders the endeavour to locate the general components in law by characterising jurisprudence as an art of civil law. As indicated by him, there is not at all like general component in law since it is the exploration of the law of the land(lex loci) and is subsequently adopted by elements which win in a specific state. He manages low for what it’s worth however law to him is to be characterised not as far as the sovereign but rather as far as courts.

Law is something which exudes from courts as it were. He didn’t concur with Austin that examination of law should be possible with the assistance of rationale alone. He calls attention to that the investigation of jurisprudence which disregards moral and historical viewpoints will turn into a desolate report.

Thus, in a nutshell, the theory deals with the following aspects.

• An Analysis of the origination of civil law.
• The investigation of different relations between civil law and other types of law.
• An investigation into the logical game plan of law.
• A record of legal sources from which the law continues.
• The investigation of the theory of obligation.
• The investigation of the origination of legal rights and obligations.
• To research such legal ideas as property, contracts, people acts, and aim, and so forth.

Conclusion

Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation, application, and requirement of laws. Jurisprudence is the investigation of theories and methods of insight in regards to the law. It has viable and instructive esteem.

There are five schools of jurisprudence. Although the schools of the law tried to eradicate some of the shortcomings in the lawmaking and enacting procedures, there has to be an analysis and study to rapport the claim of the purpose and rationale behind the law. Moreover, the enactment of law should be looked at from a practical approach rather than a theoretical one.

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This article is written by Shreya Tripathi student of Banasthali Vidyapith, Rajasthan. The author has discussed the Principles of Natural Justice and its 3 major rules.

Introduction

Principle of Natural Justice is derived from the word ‘Jus Natural’ of the Roman law and it is closely related to Common law and moral principles but is not codified. It is a law of nature which is not derived from any statute or constitution. The principle of natural justice is adhered to by all the citizens of civilised State with Supreme importance. In the ancient days of fair practice, at the time when industrial areas ruled with a harsh and rigid law to hire and fire, the Supreme court gave its command with the passage of duration and establishment of social, justice and economy statutory protection for the workmen.

Natural justice simply means to make a sensible and reasonable decision making procedure on a particular issue. Sometimes, it doesn’t matter what is the reasonable decision but in the end, what matters is the procedure and who all are engaged in taking the reasonable decision. It is not restricted within the concept of ‘fairness’ it has different colours and shades which vary from the context.

Basically, natural justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or party who is affected by the decision made by the panel of expert members should be given a fair opportunity to express his point of view to defend himself.

Secondly, “Bias rule” generally expresses that panel of expert should be biased free while taking the decision. The decision should be given in a free and fair manner which can fulfil the rule of natural justice.

And thirdly, “Reasoned Decision” which states that order, decision or judgement of the court given by the Presiding authorities with a valid and reasonable ground.

Origin

The principle of natural justice is a very old concept and it originated at an early age. The people of Greek and roman were also familiar with this concept. In the days of Kautilya, arthashastra and Adam were acknowledged the concept of natural justice. According to the Bible, in the case of Eve and Adam, when they ate the fruit of knowledge, they were forbidden by the god. Before giving the sentence, eve was given a fair chance to defend himself and the same process was followed in the case of Adam too.

Later on, the concept of natural justice was accepted by the English jurist. The word natural justice is derived from the Roman word ‘jus-naturale’ and ‘lex-naturale’ which planned the principles of natural justice, natural law and equity.

“Natural justice is a sense of what is wrong and what is right.”

In India, this concept was introduced at an early time. In the case of Mohinder Singh Gill vs. Chief Election Commissioner, the court held that the concept of fairness should be in every action whether it is judicial, quasi-judicial, administrative and or quasi-administrative work.

Purpose of the principle

• To provide equal opportunity of being heard.
• Concept of Fairness.
• To fulfil the gaps and loopholes of the law.
• To protect the Fundamental Rights.
• Basic features of the Constitution.
• No miscarriage of Justice.

The principles of natural justice should be free from bias and parties should be given fair opportunity to be heard and all the reasons and decision taken by the court should be informed by the court to the respective parties.

Supreme court said that arriving at a reasonable and justifiable judgement is the purpose of judicial and administrative bodies. The main purpose of natural justice is to prevent the act of miscarriage of justice.

A committee i.e. “Ministers Power” gave 3 essentials procedure related to the principles of natural justice.

1. No one should be a judge in his own matter.
2. No one can be condemned unheard.
3. The party is entitled to know each and every reason and the decision taken by the authority.

When it can be claimed?

Natural justice can be claimed when acting judicially or quasi-judicial like panchayat and tribunals etc. as well. It includes the concept of fairness, basic moral principles and various different kinds of biases and why the natural justice is required and what all special cases or situation it includes where the principles of natural justice will not be applicable.

In the case of the Province of Bombay vs. Khushaldas Advani, it was said that natural justice will be applicable on statutory as it is a basic principle of Natural justice which leads to fairness and justice.

Effect of function

• Administrative action.
• Civil consequences.
• The doctrine of Legitimate exception.
• Fairness in action.
• Disciplinary proceeding.

In the case of Board of high school vs. Ghanshyam, a student was caught while cheating in the examination hall and he was debarred due to the act. Supreme Court held that student cannot file a Public Interest Litigation against the examination board.

High water mark case- Eurasian equipment and company limited vs. State of West Bengal: Under this case, all the executive engineers were blacklisted. Supreme Court held that without giving a valid and reasonable ground you cannot blacklist anyone and further he should be given a fair opportunity of being heard.

Rules of Natural Justice

• NEMO JUDEX IN CAUSA SUA
• AUDI ALTERAM PARTEM
• REASONED DECISION

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule of biases. Bias means an act which leads to unfair activity whether in a conscious or unconscious stage in relation to the party or a particular case. Therefore, the necessity of this rule is to make the judge impartial and given judgement on the basis of evidence recorded as per the case.

Type of Bias

1. Personal Bias.
2. Pecuniary Bias.
3. Subject matter Bias.
4. Departmental Bias.
5. Policy notion Bias.
6. Bias on the account of obstinacy.

Personal bias

Personal bias arises from a relation between the party and deciding authority. Which lead the deciding authority in a doubtful situation to make an unfair activity and give judgement in favour of his person. Such equations arise due to various forms of personal and professional relations.

In order to challenge the administrative action successfully on the ground of personal bias, it is necessary to give a reasonable reason for bias.

Supreme court held that one of the members of the panel of selection committee his brother was a candidate in the competition but due to this, the whole procedure of selection cannot be quashed.

Here, to avoid the act of biases at the turn of his brother respective panel member connected with the candidate can be requested to go out from the panel of the selection committee. So, a fair and reasonable decision can be made. Ramanand Prasad Singh vs. UOI.

Click Here

Pecuniary bias

If any of the judicial body has any kind of financial benefit, how so ever small it may be will lead to administrative authority to biases.

Subject matter bias

When directly or indirectly the deciding authority is involved in the subject matter of a particular case.

Muralidhar vs. Kadam Singh The court refused to quash the decision of Election tribunal on the ground that the chairman’s wife was a member of Congress party whom the petitioner defeated.

Departmental bias

The problem or issue of departmental bias is very common in every administrative process and it is not checked effectively and on every small interval period it will lead to negative concept of fairness will get vanished in the proceeding.

Policy notion bias

Issues arising out of preconceived policy notion is a very dedicated issue. The audience sitting over there does not expect judges to sit with a blank sheet of paper and give a fair trial and decision over the matter.

Bias on the account of the obstinacy

Supreme court has discovered new criteria of biases through the unreasonable condition. This new category emerged from a case where a judge of Calcutta High Court upheld his own judgement in appeal. A direct violation of the rules of bias is done because no judge can sit in appeal against in his own case.

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can be condemned or punished by the court without having a fair opportunity of being heard.

In many jurisdictions, a bulk of cases are left undecided without giving a fair opportunity of being heard.

The literal meaning of this rule is that both parties should be given a fair chance to present themselves with their relevant points and a fair trial should be conducted.

This is an important rule of natural justice and its pure form is not to penalize anyone without any valid and reasonable ground. Prior notice should be given to a person so he can prepare to know what all charges are framed against him. It is also known as a rule of fair hearing. The components of fair hearing are not fixed or rigid in nature. It varies from case to case and authority to authority.

Components

Issuance of notice– Valid and proper notice should be given to the required parties of the matter to further proceed with the procedure of fair trial method. Even if the statute does not include the provision of issue of notice then it will be given prior to making decisions. This was held in the case of Fazalbhai vs. custodian.

In the case of Kanda vs. Government of Malaya, the court held that notice must directly and clearly specify on the matter of bias, facts and circumstances against which needs to be taken. It’s one of the rights of the individual to defend himself so he should be familiar with the relevant matter so he may contradict the statement and safeguard himself.

The notice should be with regard to the charges framed against the accused person and proceeding to be held. He can only be punished on the charges which are mentioned in the notice, not for any other charges.

Right to present the case and evidence– After receiving the notice he must be given a reasonable time period to prepare and present his case in a real and effective manner. The refusal should not be done on the unreasonable ground or due to arbitrary.

Right to Cross Examination– Right of fair hearing includes the right to cross-examination the statement made by the parties. If tribunals denied the right to cross-examination then it will violate the principles of natural justice. And all the necessary copies of documents should be given and failure of that will also encroach the principle. The department should make available officers who are involved in the procedure of investigating and do cross-examination. Cross-examination is defined under Section 137 of the Indian Evidence Act, 1872 (amended).

In certain exceptional cases, the right to cross-examination can be denied or rejected. Hari Nath Mishra vs. Rajendra Medical College, under this case a male student was charged off some indecent behaviour towards a female student. So, here the right to cross-examination was denied for the male student as it will lead to embracement for the female student and it will not also lead to violation of natural justice.

Sometimes it becomes very necessary to keep the identity confidential as there is a threat of life and property. And the same situation was faced in the case Gurubachan Singh vs. the State of Bombay.

Let’s take an illustration, In the matter where lawyer and client are involved so, nobody can force a lawyer to reveal what all information is given by the client to the lawyer in relation to the case.

In the case of Ludhiana food product, the court held that If the party itself refuse to cross-examine the witness then it will not fall under miscarriage of natural justice.

Right of Legal representative– In the process of enquiry, every party has the right to have a legal representative. Each party will be presented by the legally trained person and no one can deny (A.K.Roy). Similarly, the department has the same right to direct its officer even though there are investigating officer in conducting an adjudicating proceeding (Sanghi textile processor vs. Commissioner).

Exceptions

1. During the Emergency period
2. Public interest
3. Express statutory provision
4. Nature of the case is not of a serious kind
5. If it doesn’t affect the status of the individual

Applicability

1. Natural justice is applicable to some of the following points:-
2. Court- except to ex-parte
3. Tribunals
4. Authority entrusted with discretion but subject to legal limitations

Reasoned Decision

Basically, it has 3 grounds on which it relies:-

1. The aggrieved party has the chance to demonstrate before the appellate and revisional court that what was the reason which makes the authority to reject it.
2. It is a satisfactory part of the party against whom the decision is made.
3. The responsibility to record reasons works as obstacles against arbitrary action by the judicial power vested in the executive authority.

Conclusion

The principles of natural justice have been adopted and followed by the judiciary to protect public rights against the arbitrary decision by the administrative authority. One can easily see that the rule of natural justice include the concept of fairness: they stay alive and support to safeguard the fair dealing.

So at all the stages of the procedure if any authority is given off the judicial function is not purely accepted but the main motive of the principal is to prevent the miscarriage of justice. It is supreme to note that any decision or order which violates the natural justice will be declared as null and void in nature, hence one must carry in mind that the principles of natural justice are essential for any administrative settlement to be held valid.

The principle of natural justice is not confined to restricted walls the applicability of the principle but depends upon the characteristics of jurisdiction, grant to the administrative authority and upon the nature of rights affected of the individual.

Reference

1. 1. https://www.academia.edu/23092337/Title_PRINCIPLES_OF_NATURAL_JUSTICE_IN_THE_LIGHT_OF_ADMINISTRATIVE_LAW_An_Analytical_and_comprehensive_study_of_Principle_of_natural_justice_especially_in_the_field_Of_administrative_law
   2. https://www.nacenkanpur.gov.in/download3.inc.php?rid=164
   3. Mohinder Singh Gill vs. Chief Election Commissioner AIR 1978 SC 851
   4. Province of Bombay vs. Khushaldas Advani AIR 1950 SC 222
   5. Board of high school vs. Ghanshyam AIR 1962 SC 1110
   6. High water mark case- Eurasian equipment and company limited vs. State of West Bengal AIR 1975 SC 266
   7. Ramanand Prasad Singh vs. UOI, AIR 1996 SCC 64
   8. Muralidhar vs. Kadam Singh AIR 1954 MP
   9. Fazalbhai vs. custodian, AIR 1961 SC 284
   10. Kanda vs. Government of Malaya, 1962 A.C. 322
   11. Hari Nath Mishra vs. Rajendra Medical College, A.I.R. 1973 S.C. 1260
   12. Gurubachan Singh vs. State of Bombay, A.I.R. 1952 S.C. 221
   13. Ludhiana food product, 1990 (47) ELT 294
   14. A.K.Roy, AIR 1982 SC 710
   15. Sanghi textile processor vs. Commissioner, 1991 (55) ELT 151 A.P.

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This article is written by Aakash M Nair, a 4th year Student of Delhi Metropolitan Education law School affiliated to GGSIP University. In this article he discusses the role and functions of a commissioner under Civil Procedure Code.

Under CPC, a commissioner is appointed to fulfill certain functions which are essential for the Court, in order to dispense full and complete justice. Section 75 and order 26 of the code provides the key provisions which relates to the commissioner. In this article, we will try to answer the most basic questions which comes to our mind when we begin to understand the concept of issue of commission and appointment of commissioner.

What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court requires to deliver full and complete justice. Such person who carries out the commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a commissioner is appointed who conducts the local investigation. Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the commissioner. Section 75, provides that “the Court” can issue commission provided the limitations and restrictions applicable. Therefore, the Court who has to decide the suit can appoint the commissioner. Commissioner is appointed to carry out the functions for which the commission is issued. Court has the discretionary power to appoint the commissioner and such power can be exercised on the application of any of the parties or the Court can issue the commission suo moto.

We will understand the procedure followed by the Courts to appoint the commissioner later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent to carry out the commission issued by the Court.

The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission.

It will be a complete waste of time and resources of the Court and the parties if a person who cannot read and understand the accounts and documents is appointed as commissioner to adjust accounts. Similarly, a person who does not have the qualifications to conduct scientific investigation should not be appointed as a commissioner for such task. 

The District judge supervises the subordinate Courts who have to take special care while appointing a commissioner(1). The same person should not be appointed by the Court in all commissions and a person who hangs about the Court should not be appointed.  

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and regulations which is to be followed by the subordinate Courts. Procedure for appointment of a commissioner is provided in High Court rules each state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides procedure for appointment of Commissioner. The following procedure is followed by the Delhi High Court(2):

• A panel of not more than 4 commissioners is to be formed which consists of young persons including a lady lawyer, appointed by the Court for recording of evidence.
• The District Court notifies the bar about the number of vacancies of commissioners and the bar forward the applications received for the same to the Court who then forwards it to the High Court with their recommendation.
• The term of such appointment is generally 3 years which can be extended by an order of the High Court but no commissioner can be appointed after 6 years of such appointment.    

When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued by the Court. According to Section 75 of CPC, the Court has the power to issue a commission to carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must be recorded in open Court. But in extraordinary circumstances, the appearance of witness is dispensed and the witness is allowed to depose evidence without appearing in Court.

Appearance is exempted if:

1. A witness is bedridden or is unable to attend the Court due to sickness or infirmity, in such circumstances the Court can exempt the appearance of witness and allow the witness to depose evidence to a commissioner appointed for the same.  Such a witness will have to submit a certificate signed by a registered medical practitioner as evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In such situations the Court will exercise its powers provided under order 18 rule 4 and appoint a commissioner for examination on interrogatories(3).
2. A witness apprehends danger to his life and informs the Court about such danger and if the Court thinks that recording evidence of the witness is necessary, the Court may issue commission to record evidence of such witness. Where a party accused of fraud seeks himself to be examined with commission, the Court must not issue commission and avoid person of such demeanor to abuse the procedure.
3. The witness is a pardanashin lady whose attendance is exempted under Section 132 of the code.
4. The witness is a Civil or Military Officer of the Government, cannot attend without detriment to the Public Service. (Order XXVI Rule 4)
5. If the Court thinks that it is in the interest of justice or expeditious disposal of the case or for any other reason, the Court can issue a commission notwithstanding any of the rules provided in the order. (order 26 rule 4A)
6. A person who cannot be ordered to attend the Court in person under Order 16 rule 19 can be examined by the Court by issuing a commission. (order 26 rule 4 proviso)
7. A commission can be issued for examination of a person detained in prison. (order 16A rule 7)

The Court will issue an order of commission for examination of a witness on following grounds  if such person: (order 26 rule 4)

• Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]
• About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]
• A government servant and cannot attend without affecting the public service [order 26 rule 4(c)].
• Resides outside India and the Court decides that his evidence is necessary.
• The commission will be issued to any other Court within whose local limits such person is residing and if the person resides within the local limits of the Court issuing it, a commissioner can be appointed to carry out such commission.

The provisions of the Court relating to summoning, attendance examination of witnesses, penalties imposed on the witness will apply on the person who has to give evidence or produce documents before the commissioner. The commissioner who is executing the order of the Court, within whose local limit such person resides or by the Court beyond whose jurisdiction such person resides, will be deemed to be a civil Court.

If the commissioner is not a judge of the civil Court, the commissioner cannot impose penalties but can make an application to the Court which has issued commission to impose penalties on the person. (order 26 rule 17)

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the opinion that a local investigation is necessary:

1. For proper clarity of any matter in dispute, or
2. In ascertaining the market value of any property, or
3. To know the amount of mens rea or annual net profits.

While appointing a commissioner for, the Court has to examine (4).

1. The pleadings of both the parties,
2. Relief claimed,
3. The real controversy between the parties.

It is important to note that the object of a commission is not to collect evidence which can be brought to the Court by the parties but to acquire evidence from a fixed spot. It is also used to enable the Court to have more clarity regarding the facts of the case.

Commissioner should not be appointed to provide pre-trial decree against the defendant, that is, the Court should not appoint a commissioner to provide the relief claimed, directly or indirectly, by the plaintiff before the final decree is passed. It is important because such commission will prejudice the rights of the defendant to a fair trial.   

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the suit, the Court may issue a commission to make the examination of such accounts and may appoint a commissioner. (rule 11) The Court takes special care while making such an appointment. The Court appoints only such a person who is competent to examine such records. The reports submitted by the commissioner is considered evidence by the Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the Court has passed a preliminary decree for partition of the suit property, in such a situation, the Court can appoint a commissioner to carry out the decree. (rule 13) The commissioner has to divide the property in shares and distribute it among the parties according to the suit decree. Commissioner has to submit a report after such partition is completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint a commissioner who will then be responsible for such investigation. For example, to identify the substance used as a raw material in the subject matter, the Court may issue commission to hold scientific investigation. (rule 10-A)

After conducting such investigation the commissioner has to submit the report within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be preserved by the commissioner and if it is not sold, its value cannot be recovered. Therefore, the Court appoints a commissioner who is given the responsibility to sell the property and submit a report along with the proceeds received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but are not of judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of the Court which can be used in other important judicial functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the Court. It is important to note that commissioners cannot do judicial functions. (5)

Procedure for carrying out the commission:

• The commissioner will conduct the local investigation, examination of witnesses, adjust accounts and other functions as ordered in the commission.
• After completion of the function, the commissioner will reduce the findings in writing and will make a report.
• The commissioner will submit the report signed by him along with the evidence recorded in the Court.
• The report of commissioner will form a part of the record.
• While examining the report, the Court or the concerned parties, after prior permission, can examine the commissioner personally in open Court.
• If the Court is dissatisfied with the proceedings of the commissioner the Court can order a further inquiry on the commission or can issue a fresh commission and appoint a new commissioner.   

To summarize, the commission can be issued in the following circumstances:

1. To make a local investigation.
2. To adjust accounts.
3. To make partition.
4. To hold investigation.
5. To conduct sales.
6. To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

1. Commissioner has the authority to examine the parties and the witnesses and any other person who the commissioner thinks can give evidence in the matter referred to him.
2. Commissioner can direct the parties to produce any documents which is required to be examined.
3. Commissioner also has the power to enter and search any land or building with the permission of the Court.
4. If the party fails to appear before the commissioner after the order of the Court, the commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for remuneration to the commissioner but Rule 15 of order 26 provide for the expenses which might be incurred by the commissioner. While issuing commission, the Court directs the applicant to deposit a sum of amount which can be used by the commissioner to account for the expenses which might be incurred by him while carrying out the commission. The Court has the discretionary power to make directions make any other direction regarding the remuneration.  

What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions but he cannot do the judicial functions on behalf of the Court. For example, a commissioner cannot value the suit property because it is a judicial function and only the Court has the power to do so. A commissioner can assist the Court by producing the documents such as plans of the suit property by which the Court can ascertain the value.  

It is not the objective of issuing a commission to procure evidence for the parties. Therefore, if a party has the apprehension that the opposite party will tamper with a document which is relevant to the case, the Court should not appoint a commissioner to seize such documents.

What is the evidentiary value of the report submitted by the commissioner?

According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted by commissioners forms a part of the record but if the evidence is submitted without the report of the commissioner, such evidence does not form part of the record. (6)

The report forms an important part of the case and can only be challenged on sufficient grounds.The Court has the final say on how much reliance should be placed on the report submitted by the Court.

What are the key takeaways?

The commission is issued by the Court to provide full and complete justice.The Court has the power to issue commission in certain circumstances. Commissioner is appointed by the Court to carry out the commission issued by the Court. He assists the Court by taking evidence, conducting local investigations, doing ministerial work and submits a report after carrying out the commission.

A commissioner is, generally, an advocate who is in a panel formed by the High Court and from such a panel the Court appoints a commissioner. The procedures for the appointment are formulated by the High Court.

The commissioner can exercise certain powers granted by the Court to carry out the commission. He cannot perform the judicial function of the Court. He can only assist the Court in performing such functions. The evidence with the report submitted by him in the Court forms part of the record.

References

1. “Commissions and Letters of Request – Delhi High Court.” http://delhiHighCourt.nic.in/writereaddata/upload/Courtrules/Courtrulefile_vs9kzqs0.pdf.
2. “Commissions and Letters of Request – Delhi High Court.” http://delhiHighCourt.nic.in/writereaddata/upload/Courtrules/Courtrulefile_vs9kzqs0.pdf.
3. “Sh. Sudhir Kumar vs Sh. Virinder Kumar Goel on 6 … – Indian Kanoon.” 6 Apr. 2016, https://indiankanoon.org/doc/177231580/.
4. “Sarala Jain, W/O Mahaveer Jain, 40 … vs Sangu … – Indian Kanoon.” 19 Feb. 2016, https://indiankanoon.org/doc/83956784/.
5. “Jagatbhai Punjabhai Palkhiwala … vs Vikrambhai … – Indian Kanoon.” https://indiankanoon.org/doc/1133556/.
6. “Kitnammal vs Nallaselvan And Ors. on 19 March, 2005 – Indian Kanoon.” https://indiankanoon.org/doc/112613/.

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This article is written by Pooja Kapur, a 5th year law student from Amity Law School, Noida. She has discussed the concept of maintenance along with the provisions and case laws.

Maintenance as a concept when considered from the point of view of law refers to the kind of financial assistance given to either of the litigating parties on an application made by them and only through an order passed by the court having jurisdiction to do so and upon execution of decree in this regard.

It is often referred to as “alimony” or a kind of monetary support from the spouse i.e. spousal assistance. Maintenance on the other hand, is an act of bearing the financial expenses or reducing the burden of  the spouse whose burden increases and economical position gets materially changed on the decree of divorce.

Further, the main purpose of granting maintenance is to maintain the standard of living of the spouse equivalent to that of the other spouse and in accordance with status prior to the separation. It is granted during the proceeding of decree or after the decree of divorce and ceases to exist on the death or remarriage of the alimony holder. The spousal maintenance is determined on the existence of various factors by the court as follows:

1. No separate source of income. The most important factor to be considered before granting maintenance or alimony is to check whether the spouse seeking maintenance has any separate source of income or not or  is solely dependant on the income of his/her spouse.
2. Standard of living of both the litigating parties before separation.
3. Expenses required to maintain children.
4. Requirement to maintain the same standard of living of the spouse as it was before the separation.
5. Skills, capabilities and educational background of the spouse to earn his/her living and maintain themselves etc.

Types Of Maintenance

On consideration of factors by the competent court, maintenance can be granted on the following basis-

• Temporary Maintenance- It is also referred to as maintenance pendente lite which is awarded by the courts during the continuation of proceedings of the divorce. The purpose is to meet the necessary and immediate expenses of the spouse who is a  party to the proceedings. On satisfaction, the court may grant it. Section 24 of Hindu Marriage Act,1955 deals with this kind of maintenance. Further can be claimed under Section 125(1) of CrPC.
• Permanent Maintenance- As the term suggests, it refers to the granting of a sum on a  periodical basis or on a continued basis once the proceedings have been disposed of. Section 25 of Hindu Marriage Act, 1955. Either of a spouse is entitled to receive it.

Prior Status of Right of Maintenance

Hindu Marriage Act, 1955 and Hindu Adoption and Maintenance Act, 1956 initially dealt with the provisions of granting maintenance. The Hindu Marriage Act was formed in the year 1955 and  applies specifically on individuals who are Hindus including Sikh, Jains and Buddhists and persons who come under the ambit of Section 2 of Hindu Marriage Act, 1955. Also children whose either of a parent is a Hindu, Sikh, Jains or Buddhist and are brought up under the same religion will also be considered as a Hindu and will be entitled to maintenance. Under old Hindu law, a Hindu male was under an obligation to maintain the following persons:

• His wife,
• Unmarried daughter,
• Legitimate sons,
• Illegitimate sons, and
• Aged parents.

Thus, only hindus (the applicability of which could be checked from Section 2 of Hindu Marriage Act, 1955)  are covered under this Act.

From the ancient times women have been kept at a disadvantaged position which not only weakens their stake in the society but also leads to an unequal treatment with them. The Code of Criminal procedure came into force in the year 1973 and according to Section 125 of this code, maintenance is granted to wives, children and parents irrespective of any religion or personal laws. Hence, it has provided for a better status to women by granting rights in a dignified manner.

Obligation To Maintain Wife, Children And Parents In India

The statutory provisions laid down under various acts and Cr.P.C makes it mandatory to maintain the dependant spouse, children and spouse in India.

Hindu Marriage Act, 1955

Obligation To Maintain Wife

Section 24 and Section 25 of the said act deals with the provisions of allowing pendente lite and permanent maintenance respectively. In Dr. Kulbhushan v/s Raj  Kumari and Anr, the court while deciding the amount of maintenance observed that it is determined based on the facts of each case and declared that if the court enhances or moulds the amount of maintenance, then such a decision would be justified. It was further held in this case that it would be fair to provide wife with 25% of husband’s net salary as maintenance.

• Under Section 24 of the act if the court considers fit and is satisfied that either wife or husband does not have an independent income, then it can order the respondent to pay the maintenance to the petitioner in accordance with the provisions of this Section. Thus, the claimant can be a husband as well.    
• Further, according to the provisions of Section 25 of the Act, which deals with the granting of alimony on a permanent basis, the court may on the application made by the respondent , order to provide for maintenance either in the form of periodical payments or a gross sum to be provided. Thus, in this case as well the respondent can either be a wife or a husband.  
• The purpose of interpreting the provision in this way is to avoid the discrimination because both husband and wife are equal in the eyes of law.

Delhi High Court recently in the case of  Rani Sethi v/s Sunil Sethi, ordered wife( respondent) to pay maintenance to her husband (petitioner) of Rs 20,000 and Rs.10,000 as litigation expenses. Further a Zen car was ordered to be given for the use of the petitioner.

• Wife on being aggrieved by the same order approached the High Court, where the scope of Section 24 of HMA was construed and it was held that the purpose of this Section to provide support to the suppose who is incapable of earning his/her independent income.
• Further  it was held that the term “support” shall  not be construed in a narrow sense and thus, it includes not only bare subsistence. It aims to provide a similar status as that of the respondent spouse. Thus, considering all the facts and circumstances, the appeal of wife was dismissed.
• Though Section of the above said Act provides sufficient right to both husband and wife to move an application before the court for seeking maintenance, if they do not have an independent source of income and have been solely dependant upon his/her spouse. But this Section cannot be invoked in such a manner as to where husband though capable of earning does not continue to do so intentionally for the sole purpose of depending on his wife. In such a case husband cannot move an application for seeking maintenance. This was held by the Madhya Pradesh High Court in the case of  Yashpal Singh Thakur vs Smt. Anjana Rajput where husband incapacitated himself by stopping to run an auto rickshaw. Hence, where a person intentionally incapacitates himself he loses the opportunity to file an application for seeking maintenance.

Obligation To  Maintain Children And Parents

Section 26 of the same act deals with the custody, maintenance and education of minor children. Court may, as it considers necessary and deems fit, from time to time pass interim orders in this regard and at the same time has the power to revoke, suspend or vary such an order. Obligation to maintain lies on both father and mother of the child or on either of the parents as ordered by the court. Section 20 of Hindu Adoption and Maintenance Act, 1956 lays down an  obligation on a hindu male or female to maintain their legitimate/ illegitimate minor children and aged/ infirm parents, the amount of which is to be determined by the competent court on the following factors-:

1. Economic position and status of the litigating parties.
2. Reasonable wants and needs of the parties.
3. Dependence of the parties, etc.

In Sukhjinder singh saini v/s Harvinder kaur, certain observations were made by the Delhi High Court while dealing with the issue of deciding the maintenance to be granted for a child:

• Both the parents have a legal, social and a moral obligation to maintain their children and provide them with the best standard of living, depending on the financial footing of the parties.
• They are equally obligated to provide means for best education.
• It was further held that even if the child is living with the spouse whose income is sufficient enough to maintain the child cannot be taken as a good ground by the other spouse of not maintaining the child or taking care of the child’s welfare.

Maintenance Under Section 125 Cr.P.C

According to this Section magistrate of first class has the power to order the person to provide monthly allowance to:

• His parents,
• Wife, or
• To his legitimate or illegitimate minor  children who are unable to maintain themselves
• Legitimate or illegitimate major child not being a married daughter, who are unable to maintain themselves due to any physical injury or abnormality
• Married daughter till she attains her majority if her husband is unable to maintain her
• His or her father or mother if they are unable to maintain themselves,whoever neglects or refuses to do so.

Magistrate may issue warrants for levying the amount due, in case of non-compliance with the order. Making of an application is mandatory to the court for levying such amount within a period of one year from the date on which the amount was due, otherwise warrant cannot be issued.

Where in case a wife is living separately without any sufficient reason or is living in adultery or they have separated through a mutual consent,  then in such cases she is not entitled to receive allowance.

Landmark Judgement Of Section 125 Cr.P.C

Mohd Ahmed Khan V. Shah Bano Begum– This has been a landmark case in the history which clearly dealt with the clarifying the scope of Section 125 and which  proved to be a milestone specifically in the struggle for the rights of muslim women. Facts of the case are as follows:

• In the year 1975 ,  at the age of 62 years , with 5 children, shah bano was disowned by her husband.
• Her husband Mohd Ahmed refused to grant her maintenance on the ground that there was no specific provision in the muslim law for providing maintenance to muslim divorced women.
• She had no separate source of income and at this age it was impossible for her to maintain herself and to take care of the welfare of her children at the same time. Thus she filed a suit claiming maintenance.

Main issue that raised before the court was whether Section 125 applies to muslim women or not and whether uniform civil code applies to individuals of all religions or not. Supreme court on the following reasons rejected Mohd Ahmed’s plea of not granting alimony:

• The court held that without any discrimination, Section 125(3) applies to muslim women too.
• The concept of muslim husband’s responsibility  towards his wife only till the iddat period cannot suffice to contemplate the rule laid down in Section 125 CrPC.
• Merely a triple talaq cannot take away the right of divorced muslim women from seeking maintenance if she is not in a condition to maintain herself and her children because of no independent source of income.

Critical Analysis

This case was criticised by various muslim communities on the ground that it was against the provisions of muslim law and Quran. Thus, in the year 1986 the congress government decided to enact Muslim Women ( Protection of rights of Divorce) Act, 1986, the purpose of which was to provide protection and safeguard the rights of divorced muslim women. The other objective of enacting this Act was due to the backward status of muslim women in comparison to other women in the country. Thus, it was the need of the hour to bring them at par in status with the women of other religion. This act aimed at providing adequate protection and safeguard of rights and reasonable amount of maintenance to the wife and her children. This act was enacted by Rajiv Gandhi.

Conclusion

From the plethora of judgements it can be concluded that Section 125 of Cr.P.C provides for stringent means to comply with the provisions of maintenance. It not only breaks the barrier of religion which acts as a hurdle in providing justice to people but also provides for equal protection of law and justice for all irrespective of religion followed by an individual. Religion cannot overcome the principles of “justice” and “equity”. The concept of maintenance is interpreted in different ways under different statutory provisions yet the purpose of it is to grant support. Thus, Code of Criminal Procedure through Section 125 aims at providing individuals following different religions to seek alimony through a uniform way.

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This article is written by Anirudh Vats, 2nd year student at Rajiv Gandhi National University of Law, Patiala. This article will first lay out the misconceptions people have about introverts (and introverts about themselves), then list the challenges an introvert faces in his law school life and give practical, usable suggestions to overcome these challenges and realize one’s true lawyering potential.

Introduction

Law School can be a scary place for an introvert. You walk through large halls filled with the familiar dreaded noise of people chatting, corridors filled with the sounds of laughter and excited conversations between people who are right at home being social animals. You instantly feel dwarfed by the enormous task of making your mark in a place which rewards social capability, making the right friends, and having the right “connections”.

How can an introvert survive a place like this? How can he/she ensure that his years in Law School are not wasted away in a room alone? How can he/she achieve meaningful relationships and have useful friendships which enrich both his/her social as well as professional lives?

The Misconceptions

Introversion is not a disability

Introversion is a personality trait, in fact, it is fairly common. Research shows that a third to a half of the population of the world are introverted. So, one in every two or three people that you meet lie somewhere on the introversion spectrum. Introversion should not be seen as a disadvantage or a deficiency of an essential skill set. In fact, there are numerous advantages to being an introverted person :-

• Introverts are comfortable with their own company, they do not derive their happiness from other people.
• Introverts make more meaningful relationships, they are selective about who they want in their life.
• Introverts are better listeners, hence they can have good conversations and learn a lot more than extroverts.
• Solitude breeds creativity. Introverts have more focus and are generally more creative.
• Introverts are more independent
• Introverts are often more contemplative, and employ critical analysis and introspection in their decision making, and often make great leaders.

Harvard Business Review conducted field surveys on college students and executives in leadership positions and found that companies led by introverts were considerably more profitable and efficient. They also conducted a lab experiment in which 163 college students with varying personality traits engaged in an activity as part of a proactive team. The teams led by introverts, it was found, were substantially more efficient than those which were not.

Introverts do not want to be socially isolated

A common myth about introverts is that they want to be alone all the time. This is not true. All human beings need to interact with others to live a fulfilled life, and introverts do the same. The difference is however, that introverts are wired in such a way that too much social interaction exhausts them, and they need to recharge their social battery in solitude. Like anyone else, introverts too yearn for emotional connection and forming relationships with others.

Introversion is different from being shy

Being shy or socially anxious arises out of a fear of social judgement, whereas introversion is an involuntary personality trait. Introverts may have amazing social skills, it’s just that they don’t prefer being too socially active and they need their alone time to re-energize themselves.

The Challenges

Dominance of Group Activities

Debates, moots, assignments, law school is filled with group activities. The sad part is, these activities are essential to you thriving in law school. You cannot avoid these activities if you hope to be successful in your college life and hence you have to find a way to get through them. Preparing for moots involves sitting with your teammates, debating, discussing, reading and preparing, often for months before the actual competition.

When you’re involved in these activities, it can get tough to find time for yourself, which may result in increased anxiety, a lack of focus and productivity, and may also result in tensions between you and your teammates.

That is, of course, nothing in comparison to the actual competition. Debates and Moots, often have a large audience present and public speaking is not an activity that most introverts like to engage in, couple that with judges asking you challenging questions, and you might just have a recipe for potential disaster.

Therefore, the dominance of group activities in Law School is certainly a big challenge that introverts face, and if they fail to overcome this challenge, they might be left behind in the cut-throat competition within a law school.

Feeling like you’re Missing Out

College is the place where people have fun, go on trips, party endlessly and live their lives to the fullest. As an introvert, most parties are a big no-no. You just end up sitting in a corner with the one guy you know at the party (who’s probably an introvert himself), and hope no one comes your way to make meaningless small talk while all around you people are dancing, telling stories and having a drink and you just feel like the oddball.

The parties you don’t go to, you hear about the next day. People talk excitedly about whatever the latest scandal or gossip is, and you feel like you’re missing out on good times with your friends and regret not taking up their offers to go out more. This can breed a lot of anxiety and doubt in an introvert, as he feels that he’s missing out on the “college experience”, and living in his shell and never really exploring his personality.

An introvert constantly wonders about that one conversation he could have taken up with a certain person, and how it could maybe have evolved into a friendship, but because of his/her reserved ways, that one interesting person still remains a stranger, and is probably put off by the introvert’s reluctance to interact.

All these scenarios contribute to an introvert wondering whether he/she’s missing out on life itself, and may start resenting his own personality and aversion to social engagement.

Being misunderstood and labelled

Often, introverts are misunderstood as being arrogant, having an attitude and not considering others worthy of their time. This is because introverts often come across as unfriendly and rude because they do not engage in small talk and do not converse unless they really need to.  People often interpret a negative intention and label introverts as haughty and self important.

Introverts are often blinded from this opinion of theirs, as they are just being themselves and do not feel the need to converse unless there is a pertinent need to. They like being alone with their thoughts and hate having to engage in small talk.

Over time, this might also lead to introverts being cast out from social surroundings and people might develop a negative opinion of them.

This is a constant challenge facing college – going introverts as young people often misread each other’s intentions and characterize each other based on their own understanding, biases and personality.

Pressure to socialize

College is a place where friends are always together, roommates are best friends, and people go out every weekend. This creates a pressure on introverts to be more outgoing and social. And when they do not conform to this, they are seen as weird, awkward or stuck up.

In reality, this may not be the case, but the constant social judgement imposed on introverts may make them insecure about their personality and even force them to change when they don’t want to.

Our culture and society is wired to favour extroverted behaviour, and therefore rewards sociability. Being introverted is seen as something an individual has to overcome and move on from, and this hardwiring of society makes introverts constantly question themselves

This pressure is a constant source of anxiety and stress for introverts, and can pose to be a huge challenge for them.

Feeling emotionally drained after everyday activities

What may seem like ‘just another day’ to an extrovert, may feel like a mountain to an introvert that he has to climb every day. In Law School, a typical day consists of classes, which require frequent interaction with both professors as well as fellow students. Public speaking, attending seminars, collaborating on a research paper, convincing your professor for extensions…..the list goes on. Every possible activity during a day drains your social battery more and more. By the time you finish your day, get back to your room and lie down on your beloved, cozy bed you feel emotionally drained and tired.
This compounds over time and can make routine at Law School a never ending struggle. It becomes a struggle to find a couple of hours to sit quietly, sip coffee and read a book or to explore your interests and hone your creativity. Even when you do find the time, you either sleep it off or mindlessly binge on the newest TV show, since you are constantly emotionally drained.

Suggestions

So how does one go about tackling these problems? First of all, it is very important to know that what is paramount in a law school is competence. If you know the law, if you have critical thinking skills and can rationalize and articulate your ideas, then believe me, people will want to you as their moot teammate, as their debate partner and would lose their left leg to be in your project group!

The good news is that research shows introverts tend to be more knowledgeable and have more original and creative ideas.

So, it is comforting to know that even though social skills are important, it is knowledge and expertise which matters the most in law school and professional life as a whole.

Here are a few practical ways to better tackle the problems faced by an introvert in law school.

Developing your Social skills

Just because you’re an introvert, does not mean that you have to be awkward and inept at holding conversations. Work on your speaking skills.

Learn to address a person by name, exchange greetings when meeting after a while, maintaining eye contact, speaking in well thought out sentences and articulating your thoughts accurately are skills that can be learned and honed. These skills make you instantly more attractive to talk to, and people are more willing to give time to you and be your friend.

This might sound like a pain, but you also have to learn how to small talk, at least initially in a conversation. You can’t go up to someone and instantly ask something personal or philosophical, you have to ease into more significant and thoughtful topics when conversing.

Therefore, having skills to maintain an engaging conversation is essential for an introvert. You may not start many conversations but you can be the star of the ones you actually do have!

Using the written word to your advantage

Extroverts often like to think aloud. They do not introspect or deliberate as much as introverts and therefore do not develop the same analytical and critical thinking skills that introverts possess.

This results in introverts being better at writing down their ideas and thoughts. In a law school, having writing skills is arguably the most important tool you can have.

Throughout your professional life as a lawyer, your writing and research skills are tested, and being great at writing is a big determinant for success in the legal field. These are some of the ways you can develop your writing skills in law school :-

• Writing Research Papers.
• Contributing to Journals, and Law Review Booklets.
• Writing Articles, blogs, etc.
• Drafting memorials for moot court competitions.
• Drafting contracts, bonds, legal agreements etc.

Leaving your comfort zone

It is important , to also leave your introverted ways and get over your reluctance to participate in social events. Seminars, debate groups, even going out to eat or at a party, is sometimes important to stay connected with your friends and not having to constantly catch up with them. It might also help build meaningful relationships. The more you interact, the more chances there are of you finding a like-minded person, who isn’t overly outgoing, likes low-key environments and good conversations.

It can also help in meeting people who are of the same professional mindset, you might just end up working with someone you know as a friend, and you have to seek out such relationships as they are important for your career.

Accepting your personality

This is perhaps the most important suggestion. Accepting your personality is crucial to maintaining your mental health and succeeding in Law School. If you’re getting too exhausted by your social engagements, realize that you need some time off and allow yourself a couple of hours to switch off and re-energize.

People might misunderstand you, they might judge you for the way you are, see you as arrogant or label you a ‘loner’, but you have to be comfortable in your own skin and not derive your happiness from anyone else.

You don’t need to change yourself for anyone. Just because most people around you are constantly active socially, doesn’t mean you have to be as well. Being introverted is not something you have to change. It’s also not something you CAN change, you’re just wired that way!

Conclusion

Fellow introverts, whenever you feel down, remember that you are not alone. At least one out of three people around you are introverts, but you don’t know that because you’ve never tried talking to them!

Accept yourself, challenge yourself and always be hungry for success.

Happy Lawyering!

The post Surviving Law School as an Introvert appeared first on iPleaders.

This article is written by Shreya Tripathi of  Banasthali Vidyapith, Jaipur. In this article she has discussed Judicial Review on Child labour with landmark cases.

Introduction

“There is no greater violence than to deny the dreams of our Children.”

-KAILASH SATYARTHI

In today’s era, few issues attract the same amount of popular attention in developing countries like Child Labour. The International Labour Organization (ILO) states that many children are engaged in Child Labour worldwide. And nearly all these have made laws to protect children from the whimsy of the labour market and to promote school participation.

India in many ways personifies the contradiction. The world’s largest democracy has a most powerful legal framework with the express intention to end child-labour and yet it appears that India is witnessing the maximum incidences of child labour in the World. There are about 300 Central and State Statutes concerning children to protect and help them in furtherance of the main motive of child labour welfare in our National charter. India follows the policy of pro-activism in tackling the issue of child-labour.

The study for children in general and child labour, in particular, is depicted through the Articles of the Constitution of India. And the Indian Judiciary is carrying forward the similar spirit. The contribution of Indian Judiciary with regards to child labour is highly commendable and it has in a real sense brought the revolution in the field of child labour in India. Indian Judiciary has played a crucial role to curb the problem of child labour and has manifested its concern for child labour by guiding job or action under the court’s order by the direct application of constitutional provisions. It has marked landmark judgments for deleting the issues of child labour in India.

With regard to child labour in India, Justice Subba Rao, the former Chief Justice of India, rightly remarked; “Social justice must start with the child. Unless a soft plant is properly sustained, it has a pocket chance of multiply into a strong and useful tree. So, the first preference in the plate of justice should be stated to the well-being of children.

Historical context

The issue of Child Labour has always persisted in some form or the other in all societies of the world. Children were expected to accompany their parents while working in the field and to help with household works. But most of the work was being done under the check of the parents, instances of exploitation were rare and even today this sort of work is not considered exploitative.

The worst forms of manipulation of children commenced during the Industrial Revolution in India. It was at this period that machinery took above many tasks back executed by hand and was concentrated in huge factories. The holder of these factories understands that handling these machines did not need adult strength, and children could be rent for the work in much more inexpensive than adults.

In India, in the agriculture sector child labour has always existed. Children and their parents used to work together on the farms. Moreover, the duty of taking livestock to feed consistently assigned to children. Although this task was tough and fatigue, it did not marshal to a aggravate of their future anticipation. School facility was not available in the majority of the villages and still, people were earning money by working in the field. So this work served as training for their future. With the begin of British arrival more and more child exploitation increased in India. As the Industrial sector was established so child work made a force to work in an inhuman condition with no wages. Laws against child labour were passed under the Employment of Children Act of 1938. These strive at legislation unsuccessful as they failed to address the root seed of child labour in India- poverty. Until and unless the public was driven out of poverty, it was next to impossible to withdraw the children out of the labour force.

Role of stockholders

The researchers have further classified the role played by different stakeholders in society to eradicate child labour. The stakeholders are divided into four heads which are described hereunder:

Legislator

Ever since the period of independence, the government of India has taken several steps eliminating the risk of child labour. There has been specific legislation aimed at curbing the problem and punishing the offenders. Several social programs were conducted for the purpose of rehabilitation for children who were now free from the child labour run at the Central and State level. In recent upcoming years, the main emphasis is given on giving basic and primary level education to every child.

In 1979, the first statutory committee was formed at a Central level to examine and inspect on the subject of Child labour in India and the title of the committee is the Gurupadswamy Committee. The board was also mission with framing definite recommendations to check child labour. Taking into account the holding and suggestion of the Gurupadswamy Committee, the Union Government approved the Child Labour (Prohibition and Regulation) Act in 1986. The Act forbids children from being employed in particularly hazardous occupations and at the same period adjust their working condition in other non-hazardous occupations and operation. And a lot is being done in the present time by bringing a number of legislation and regulations to tackle the issue of child labour.

Media

In a country like India, Media can play a proactive role in bringing about behavioural change in masses. Role of media has always proved to be decisive in democracy as well as the socio-economic development of the country. Mass-Media can present chief and notable role in putting such as child labour on public and political agenda. Media can take various forms.

1. Mass Media (Audio-Visual)- Mass media is important as it has the ability to communicate effectively with a huge amount of people at the same duration. This medium leaves the audience with an image, which has more shelf life than a text or only a voice-driven message. This also increases the credibility of the message being delivered. The barrier of illiteracy is removed and the communication can be understood by all – literate as well as illiterate. Though it is an expensive medium considering its reach and speed is a suitable medium to meet the objectives. The other advantage of this medium is the imagery created. Media innovations and strategic buying of media can help in optimizing the results. This medium is most effective in delivering a simple, clear and focused message. Communicating a lot of information using this medium has high-cost implications and can create confusion.
2. Mass Media (Print media)- This is an effective medium as it, too, reaches a huge amount of people in the same period. Further, this is a credible and relatively less costly medium. The existence of various vernacular print mediums also helps us customize the communication as per the language understood by the people. This medium is useful in giving detailed information but to optimize the impact of the communication the focus should be on the key message. In the use of print media, the use of visuals is more effective. This media has restricted use, only among the literate audience.
3. Traditional Media (Street theatre, puppets, storytelling, folk dances etc.)-The main advantage of this medium is that communication can be customized as per the audience need by using local jargon and slang. Familiar messages and situations can be selected to generate empathy. This medium is more personally relevant than another medium. One can use local talent and involve the community. It has the potential to be self-sustaining at low/no cost. It helps in stimulating discussion of topics among families, friends, neighbours etc. within the community. The restricted reach is a problem coupled with the need for training and support to such media at the local level.

Non-governmental organizations(NGOs)

NGOs are constantly sensitizing trade organizations to finish this social wrong, and locals have been made watchful to disclose an example of child labour at businesses. Delay in schooling and due to lack of parental care creates a negative environment where a lot of activities are taking place such as human trafficking and enrollment of uncontrolled activities for labour growth, which means NGOs intervention cannot be undermined. While civil society has sworn to join and wind-up child labour, there is a flat powerful requirement to make this a people’s issue. Officers and government can only formulate the policies relating to issue but ignoring abuse each day of a child will lead to attack at the individual level also.

Individual

There shall be active participation of local people. Individuals should grow the capacity to act towards a common perception. They are supposed to think critically and creatively in taking action. Every individual should recognise and enact to taking power for the outcomes. A local person has a vital act to play as they are resourceful in taking initiatives and finding solutions. There are many methods to assist and every work that depress this inhuman use, no matter how tiny, will go a prolonged way. Every individual can contribute in dealing with this issue by adopting the following practices:

1. Be a conscientious consumer.
2. Educate yourself on the laws.
3. Use the fear of retribution for good.
4. Be vigilant and report abuse.
5. Spread awareness among the parents of child labourers.
6. Volunteer with some pioneer movements or organization to eradicate child labour.
7. Ensure a child labour free community.

Judicial inroads

The Courts of India have proved themselves to be the torchbearer of progressive attitudes towards Child Labour. Courts acted as Harbinger for this issue. The authors have classified the last 34-year court decisions on Sanitation issues & narrated hereunder:

The First Period, 1982 – 1992

• In Peoples Union for Democratic Rights vs. Union of India: Commonly known as ‘Asian workers case’, it was escorted to the notice of the Supreme Court that children under 14 years of age employed in the construction activity. It was said that construction activity is plainly a dangerous work and it is definitely important that the employment of children above the age of 14 years must be restricted in every kind of construction task. Cite to Article 24, Justice P.N. Bhagavathi and Justice Bahrul have held that “apart from the need of International Labour Organization Convention No.59, we have Article 24 of the Constitution which even if not attend up by suitable legislation, must “Proprio vigour” and construction act plainly and absolutely a hazardous employment, it is open that by ground of constitutional prohibition no child under 14 years can be allowed to be unavailable in construction work”.
• In Francis Coralie Mullin vs. Union Territory of Delhi: The court held that Article 21 covers protection of health and strength of workers, men, women and minorities of children versus abuse. According to the court, the occasion and services for children to grow and build in a healthy way and in order of freedom and decorum and educational benefits.
• On 25 April 1984 in Laborers Working on Salal vs. the State Of Jammu And Kashmir a bench of Justice P Bhagwati, R Misra directs “That no child under the age of 14 years is employed by any contractor/sub-contractor on any factories in the schemes. In case any child labourer is included by any contractor/subcontractor prompt orders for their break should be furnished forthwith and an outline report provided to the sanction”.
• In Bandhua Mukti Morcha v. Union of India and others, Justice Bhagwati remarked that “it is a problem which needs urgent attention of the Government of India and the State Governments and when the Directive Principles of State Policy have obligated the Central and State Government to take steps and adopt measures for the purpose of ensuring social justice to the have-nots and the handicapped. It is not right on the part of the concerned governments to shut their eyes to the inhuman exploitation to which the bonded labourers are subjected”. It is therefore essential that whichever be the State Government it should, where there is bonded labour, admit the existence of such bonded labour, and make all possible efforts to eradicate it. By doing so, it will not only be performing a humanitarian function but also discharging a constitutional obligation and strengthening the foundations of participatory democracy in the country”.

The Second Period, 1992 – 2002

1. In Sheela Barse v. Union of India, the court held “it was held that child is a state blessing, and it is the responsibility of the state to focus behind the child with a perspective to guarantee proper development of its personality. Judicial institutions have played an essential  role not only for fixing issues but also has regularly attempt to grow and expand the law so as to answer to the desire and dreams of the people who are looking to the judiciary to give life and fulfilled to the law”.
2. In the year 2002, In TMA Pai Foundation v. Union of India, “The court provided that, it is the fundamental duty of a parent or guardian to provide opportunities for education to his child who is under the age of 14 years. In completion of this development in the sector of education accept it as a fundamental right, the Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009 which impart for free and compulsory education to all the children of the age of 6 to 14 years”.
3. On 10 December 1996 in M.C. Mehta vs State Of Tamil Nadu And Others, a bench of Kuldip Singh, B.L. Hansaria, S.B. Majmudar observed, “Taking advice therefrom, we are of the vision that the affront employer must be demand to pay compensation for every child employed in violation of the provisions of the Act a sum of Rs. 20,000 and the inspectors, whose arrangement is envisioned by Section 17 to secure consent with provisions of the Act, should do this task. Under Section 17 inspector scheduled to examine that each child employed under violation of this act, each concerned employer will pay Rs. 20,000 given amount will be deposited in a fund to be known as “Child Labour Rehabilitation-cum-Welfare Fund”.
4. In Bandhua Mukti Morcha v. Union of India and others, “public interest litigation was filed alleging employment of children aged below 14 in the Carpet Industry in the State of Uttar Pradesh. Reports of a Commissioner/Committee appointed by the Supreme Court confirmed forced employment of a large number of children, mostly belonging to SCs and STs and brought from Bihar, in carpet weaving centres in the State. It was held by the Court that the State is obliged to render socio-economic justice to the child and provide facilitates and opportunities for proper development of his personality”.
5. On 6 June 1997 in A. Srirama Babu Vs. The Chief Secretary, a bench of V M Kumar court has observed, “This needs a relook and an abolition of such difference would certainly go a long way in increasing employment potential for grown up and dissuade the employer from employing child labour”. So it is essential that the state should step in to retard the trend to employ child labour and directs that the State shall take every step to educate the people to prevent child abuse and child labour and the State should create a separate independent department concerned with child welfare. Moreover, the State should maintain a record of the birth and progress of the child.

It should monitor the same. A child, after he is born, should not be allowed to melt and disappear in the vast society. The State should be able to monitor his education, health, progress, etc. The State should maintain records till he attains the age of 14 and should take such effective steps to prevent vagrant child roaming in the city and towns, organising and maintain aftercare home to take over the vagrant children. Appropriate legislation is made and is enforced strictly against vagrancy of children. Court also directed State to establish as many after-care homes as are feasible where the street children are taken care of and are trained to be useful citizen of the Country and the State should clothe itself with the power to proceed against the parents or guardians who willfully neglect the welfare of the children or their wards and who encourage them to lead a vagrant life. Begging in the street by children or employing children for begging to be made an offence and such provisions should be strictly enforced”.

1. On 11 April 2000 in Mahesh Kumar Garg and Ors. Vs. State Of U.P. And Ors, a bench of Pradeep Kant held “I, therefore, provide that in all cases of like nature an inspection has to be made by the Inspector and in case, the Inspector is of the view that the Child Labour has been engaged in contravention of the Act, a show-cause notice shall be issued to the offending employer/occupier who within the time stipulated, may file objection against the said inspection report raising the plea regarding the age or any other relevant objections”.
2. On 12 January 2001 in the State Of Guj. vs Bhupendrakumar Jagjivandas,  a bench of D Mehta held “the sentence imposed by the Trial Court shall stand modified as – it is ordered that the accused shall pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) for violation of provisions of Section 27 of the Factories Act, 1948, in default thereof the accused shall undergo simple imprisonment of three months. It is clarified that the amount of fine that may have already been paid shall be deducted and only the balance amount shall be payable by the accused”.

The Third Period, 2003- 2012

1. On 5 April 2006 in Ganesh Ram vs State Of Jharkhand And Ors, a bench of S Mukhopadhaya, N Tiwari held “If a person, below 14 years of age, is appointed, penal order can be passed against the employer under the Child Labour (Prohibition and Regulation Act 1986) but no order, penal in nature, be passed against the employee”.
2. On 24 December 2010 in Bachpan Bachao & Ors. vs Union Of India & Others,  “Delhi High Court decides upon the duties of the Commission and the Committee.

• The Bench and the Jury shall entertain complaints made by the domestic workers herself/himself of through her/his guardian, NGOs managing Childline services, the employer or the police in appropriate cases.
• The Commission and the Jury may hear the following types of cases

1. Abusive working conditions which are after the physical extent of the child in situations where persons between the ages of 14 and 18 are employed;
2. Long hours of work;
3. Absence of principal services including medical care and food.

• The Bench or the Committee shall determine the objection build within a duration of 30 days”

The Last Period, 2011 and onwards

1.  On 20 March 2012 in Roshan Gupta V. The State Of Bihar & Ors, “ the writ petition has been filed challenging the orders contained in Annexures 1 and 2 by which the petitioner has been imposed a fine of Rs.20,000/-The main submission on behalf of the petitioner is that without giving him an opportunity to explain the circumstances under which Ravi Kumar was working in the shop, fine has been imposed on the ground that the petitioner had employed a child as labour in his shop. In the meantime operation of the order contained in Annexure 1 and 2 shall remain stayed. The writ petition is disposed of with the aforesaid observation and direction”.
2. On 4 September, 2015 in Jayakumar Nat & Anr vs State Of NCT Of Delhi & Anr, “Delhi High Court directs the Govt. of NCT of Delhi to come out with a proper scheme to address the issue of rehabilitation of these rescued children by providing some kind of economic help so that the parents or guardians do not force them to work as child labourers again to meet with their basic needs and to supplement their income for their basic survival”.
3. On 18 January 2016 Whether This Case Involves A vs. As In Both The Appeals,  “Gujarat high court held that any child/children or their parents/guardians can approach before the State Commission for the protection of child rights under Section 31(3) of the Act for ventilating the grievance and appropriate action shall be taken for inquiring into the complaints as per Section 14 of the Protection of Child Right Act,2005 and further action under Section 15 of Protection of Child Right shall be taken in accordance with law”.
4. On 11 November 2016, In Court On Its Own Motion vs The State Of Jharkhand, “Petitioner said nothing has been done with regard to settlement of the child labour and further the State has also not disclosed anything as to how they will cope with this horrifying situation of child labour where Jharkhand High Court directs to file an affidavit about the stage of investigation which will also indicate that how many schemes have been implemented in the State of Jharkhand by the Child Welfare Department to combat and rehabilitate child labour”.

Conclusion

It is relevant to mention that the Judiciary played a very important role in the protection of child labour. The Judiciary has always taken preventive measure to safeguard them from the employer by fixing their working hours, providing medical facilities, fixed the number of wages etc. The Judiciary has also directed State authority to create an environment where the child can grow and develop his personality without facing any abuse as mentioned in our constitution. What this paper calls for, more than anything, is a context-sensitive approach to understanding child labour in a country as large and diverse as India.

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses water laws in India, the national policy and water law framework along with the reforms and the role of the government.

National Water Policy

A comprehensive policy framework is needed to ensure an integrated approach to the development of water resources, with rational and equitable resource allocation and prioritizing the poor and the unsaved. Effective policy frameworks recognize water as a finite and vulnerable resource from the long-term perspective and address the entire water cycle. They also observe key roles of behavior at all levels. An effective policy framework should also include setting standards and targets, as well as a system for monitoring and using them as planning and management indicators.

A national strategy for the water sector should set out the goals of the government and the methods to be used to achieve them. It will include investment and project development guidelines to ensure that water supply development reflects water resource management and environmental considerations, such as equitable water resource distribution and pollution prevention.

Existing Water Law Framework

A number of different instruments make up the existing water law. On the international level, this is the case where only certain aspects of water law have been developed and there is no international water law treaty. This is also the case in India where a coherent body of comprehensive water law remains difficult to identify. This is related to the fact that the various acts addressed separate concerns.

This is also due to the division of powers between the center and the states and the fact that water regulation is largely in the states’ hands. First, this section highlights some of India’s prominent international instruments. It then proceeds to examine existing water regulation in India and the various principles governing different water types.

Role of the Government

In policy-making circles, there has been a lot of thinking about reforms in the water sector and the type of measures that need to be taken since 1997. As a result, the most recent Act establishing an independent water institution, the Maharashtra Water Resources Regulatory Authority Act, 2005, is quite different from the previous one, and the latter Act is expected to be amended in view of the new scheme.

First, under the Maharashtra Act, attempts have been made to exclude political leaders from the structure of power completely. While the act takes a clear stand on paper to isolate the authority from political interference, the bureaucracy still has a significant indirect role to play. Consequently, the authority’s actual independence will have to be judged in practice rather than on the basis of the Act.

Second, the Maharashtra Authority has broad prerogatives for establishing a regulatory system for the state’s water resources, including surface and ground waters, to regulate their use and distribution entitlements to use water between different categories of use recognized. At the same time, the authority must promote the efficient use of water, minimize waste and establish criteria for reasonable use. The authority also has the task of allocating specific amounts depending on the availability of water to specific users or groups of users.It is also necessary to set up a water tariff system to set the water charging criteria. This is to be done on the basis of the principle of full cost recovery of irrigation project management, management, operation and maintenance. The authority is also required to establish criteria for issuing water claims. It must also establish criteria for trading in water allowances or quotas.

One of the major implications of establishing a water regulatory authority is the proposed enhanced control of water resources. As a general principle, the act provides that any water from any source can only be used after the respective river basin agency has obtained an entitlement. This is qualified by a few exceptions such as wells used for domestic purposes (including bore and tube wells). This illustrates the fact that while the government’s role is curtailed by establishing an independent authority, this does not necessarily translate into less regulatory intervention when it comes to water users. Therefore, the overall impact is as much to reduce the role of the government as to transfer and possibly enhance control over water resources.

Legal Framework in India

• Irrigation laws are historically the most developed part of water law in terms of statutory development. This is largely due to the fact that the colonial government saw as central to its mission the promotion of large irrigation works. This included the need for a regulatory framework to be introduced in this area. As a result, some of the basic water law principles currently in force in India are derived from irrigation acts. For example, in Northern India, the early Northern India Canal and Drainage Act of 1873 sought to regulate irrigation, navigation, and drainage.
• One of the long-term consequences of this act was the introduction of the government’s right to use and control the water of all rivers and streams flowing through natural channels and all lakes for public purposes. The Act of 1873 refused to assert ownership of the state over surface waters. This Act, however, is a milestone as it affirmed the government’s right to control water use for the benefit of the wider public. This has been gradually reinforced. Thus, the 1931 Madhya Pradesh Irrigation Act went much further and asserted direct control of water by the state: ‘All rights in the water of any river, natural stream or natural drainage channel, natural lake or other natural collection of water shall vest in the Government’.
• Colonial law remains relevant in this area as acts such as the MP Act of 1931 are still in force. Furthermore, the 1949 Regulation of Waters reaffirmed in the MP that’ all rights in water of any natural source of supply shall be in the hands of the Government. The much more recent Bihar Irrigation Act, 1997, still provides that all rights in surface water shall be in the hands of the Government.
• Water law is predominantly based on state. This is due to the constitutional scheme, which in principle has given the states the power to legislate in this area since the Government of India Act, 1935. States therefore have the exclusive power to regulate water supplies, irrigation and canals, drainage and reservoirs, water storage, hydropower and fishing. However, there are restrictions on the use of inter-state rivers. In addition, the Union has the right to legislate on certain issues. These include national waterways shipping and navigation, as well as powers to regulate the use of tidal and territorial waters.
• The Constitution also provides that in adjudicating inter-state water disputes, the Union can legislate. Although no substantive clauses could be adopted when the Constitution was adopted, a specific act was adopted in 1956, the Inter-State Water Disputes Act. This introduces a process for dealing with disputes between states over inter-state rivers that have not been resolved through negotiations. It provides for specific tribunals to be set up to adjudicate such conflicts and has been used in several cases.

• Parliament also enacted the River Boards Act, which provides a framework for the establishment by the central government of river boards to advise the state government on regulating or developing an inter-state river or river valley. River boards can advise governments on a number of issues including conservation, control and optimal use of water resources, promoting and operating irrigation schemes, water supply or drainage schemes, or promoting and operating flood control schemes. However, this act was never used in practice.
• While the central government’s intervention in water regulation is limited by the constitutional scheme, some areas have already recognized the importance of national water regulation. As far as water pollution is concerned, Parliament adopted an act, the Water Act, in 1974. This act aims at preventing and controlling water pollution and preserving and restoring water’s health. It gives water boards powers to set pollution prevention and control standards and regulations.
• In addition to statutory frameworks, India still holds a number of common law principles linking access to water and land rights. These include separate groundwater and surface rules. As far as surface water is concerned, existing rules are still based on the early common rule of riparian rights. The basic rule, therefore, was that riparian owners were entitled to use the water of a stream that flowed past their land equally with other riparian owners, so that the water would come to them in flow, quantity or quality without any reduction.
• While the courts recognize a fundamental right to water is unambiguous, it is not as advanced to implement it through policies and acts. Water law includes a number of other laws and regulations that concern water directly or indirectly. One example has to do with dams. Two major aspects of dam construction are regulated by laws and regulations that only partially concern water. The Environmental Impact Assessment Notification provides a framework for assessing the environmental impacts of planned large hydropower and irrigation projects with respect to the environmental impact assessment.
• The River Valley Projects Guidelines for Environmental Impact Assessment provide a general framework for assessing the impacts of planned large dam projects from 1985 onwards. As far as displacement is concerned, the main act still applies to the Land Acquisition Act, 1894. This colonial act, enacted with the interests of the colonial government in mind rather than the interests of displaced people, gives very few rights to the government substantial control over the eviction process.

Water Law Reforms

There have also been progressive calls for changes of the law and policy framework concerning water. This is due to two broad factors. First, water law and policy framework have been the object of relatively little attention for a long time. Although many water-related laws have been adopted over several decades, relatively little has been done to provide a broader integrated water framework. Second, recognizing that in most countries around the world there is a water crisis and that the availability and access to freshwater will be a challenge for almost all countries in the coming decades has led to a number of international initiatives in most developing countries to reform water governance, law and policy. In other words, factors at home and abroad have contributed to ongoing water law and policy reforms.

Reforms in the water sector have been proposed as a way to address decreasing availability per capita, increasing water quality problems and increasing competition for control, access and use of freshwater available. They are seeking a comprehensive reform of water sector governance. In particular, the current reforms are aimed at reducing the role played by the public sector and highlighting individuals ‘ direct contributions to their water needs and private sector participation. These changes in governance are based on a number of principles that guide the process of reform. This section highlights some of the key principles that guide the reforms, as well as the types of measures and tools adopted to implement them.

Conclusion

While reforms of water law are more than welcome given existing water issues, it is unlikely that reforms of the law based on the principles advanced in reforms of the water sector will be a suitable response. Continuing reforms in water law may help improve water management, but they are conceptually incapable of addressing water’s human, social, environmental and health aspects. This is unfortunate because any water law that is not based on the constitutional right to water and the principle of public trust is bound to fail as a legal tool and as far as the overwhelming majority of people are concerned in its implementation.

Yet there are avenues for expanding water law reforms. At the international level, certain treaties lead the way to a broader understanding of water law. Thus, a convention has been adopted by the UN Economic Commission of Europe that is broader in scope than the 1997 UN Convention insofar as it applies in general to Tran boundary waters. It is also based on a more advanced set of principles. This includes not only the fact that the need to prevent and reduce transboundary harm is strongly emphasized, but also that it is based on the precautionary principle and intergenerational equity.

Similarly, countries like Brazil and South Africa have adopted water laws at national level that seek to provide a comprehensive regulatory response to identified problems. While adopting a comprehensive federal water legislation is not a prerequisite for ensuring that water law achieves its social, human rights and environmental goals, it would be a good starting point for realizing the right to water and the principle of public trust across the country.

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This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. She discusses the concept of Public interest litigation, procedure related to it and format of PIL.

Introduction

There is no question mark that the idea of PIL has been fruitful, to a large scale, in permitting the unheard view or opinion to be heard at the way of justice. So, lets us know more about the concept of PIL and how it works.

Public interest litigation means litigation in the interest of the public or to protect the interests of the public at large. In general sense, we can say that it is litigation which can be filed in any Court of law and by any person in public interested and especially for the person who fails to approach the Court.

Further, we can understand the act of public interest as: “when an act is done with an intention to protect or benefit of the public”. Such as to take action regarding the pollution, roadways safety, terrorism and industrial safety etc. Public Interest Litigation is a term which is not defined under any statute or law but it has been interpreted by the judges and is almost similar like writs available under Article 226 and Article 32 of the Constitution of India.

When can a PIL be filed?

To file PIL it is necessary to note that the interest of the public is being affected at large.

Some of the examples related to filing a PIL are as followed:

• When air pollution is caused by the factory or industrial unit and affected at a large scale.
• Where there is no street light in an area causing inconvenience to the people living over there.
• When some banquet hall or any other hotel play loud music at night creating noise pollution.
• When trees are cut down by any company causing environmental pollution.
• When poor people are affected by the decision of the government such as imposing a tax.
• Directing the police or jail authority to take care in case of delay of the trial, the conviction of a person and suggestion in regard to the reformation of jail.
• When the right of women is violated by the act of sexual harassment at a workplace.
• For maintenance of roads, sewers and public properties.
• For removal of big holdings and banners causing traffic problem.

Note: This is not an exhaustive list, only some of the basic examples which explain that on certain issues a Public Interest Litigation can be filed in a Court.

In India, for the very first time, this concept was introduced in case Mumbai Kamgar Sabha vs. Abdul Bhai Faizullah Bhai Justice Krishna Iyer allowed to file a PIL by a group of people on behalf of others. J. Iyer said an individual of a group of people can approach the Court on behalf of others.

As in case Hussainara Khatoon vs. the State of Bihar PIL was filed for the rights of prisoners and the attention of the Court was drawn to the trail pending upon them which resulted into an excess of detention period which was far exceeding the maximum punishment available under the law for which they were charged with.

Where can a PIL be filled?

It is important to know where a person must approach to get his rights and remedies as per the law. As stated above PIL is similar to a writ, therefore a PIL can be made under the High Court or Supreme Court as stated in Article 226 and 32 of the Constitution of India.

Also, a PIL can be made to the Court of Magistrate under Section 133 of the Criminal Procedure Code.

It is important to note that, we can approach the Supreme Court under Article 32 only when there is any Fundamental Right being violated and not any other right. But if a person wants to approach for not only Fundamental right but some other basic rights available to the nature of the case will be taken into consideration.

If a PIL filed is only affecting a small group of people then it can be filed under Article 226 as in High Court.

Illustration: Street light problem affecting 50 to 60 families of the locality, it is better to approach the High Court in such cases. In the case where a large number of people are been affected either by the state government or the central government then it can be made to the Supreme Court.

Who can file a PIL?

Any public spirited person can file a PIL in the Court of law, it can be a foreigner also but it is important that the person filing the PIL should not be get benefited from it, but it should be merely the public who gets the benefit from it.

There are some essential points which must be considered before filing a PIL and they are:

• He must be a member of the public acting in a Bonafide interest.
• His action is not motivated by personal gain.

In the case of M.C. Mehta vs. UOI, an industry name Shriram food fertilizers industry was producing chlorine and caustic as a subsidiary of Delhi cloth mills limited. A major leakage of oleum gas took place from the industry on 4th to 6th December 1985 which resulted in the death of several innocent people and an advocate practising in Tis Hazari Court died.

The leakage was caused due to many mechanical and human errors in the unit. The district magistrate directed the Shriram Fertilizer to move the chemical out of Delhi region within 7 days. M.C. Mehta filed a PIL in the Supreme Court to get compensation for the people who have suffered loss in the matter and requested to shut down the unit and not to grant permission for restart.

In the case of  Banwasi Seva Ashram vs. the State of U.P. the NGO filed a PIL for tribal people of the affected area.

Against whom can it be filed?

After considering the primary features of Public Interest Litigation it is very important to know that against whom the person can claim? So, the solution for the question is that against State government, Central government or any Municipality PIL can be claimed in a Court of law.

A private party can also be filed for the PIL when he is respondent in the matter after concerning with State or Central government.

Illustration: In a situation where private industry is creating pollution then affected people can file PIL against the State or central government along with the industry. Separately, PIL cannot be filed against the Private industry for their act.  

Can a letter be treated as PIL?

Initially, a letter was also considered as PIL by the Court in some of the cases where the situation was not providing an opportunity to party to approach the Court then PIL can be filed by mentioning all the necessary details of the case.

This particular idea was originated from landmark case D.K. Basu vs. State of West Bengal, a letter brought the focus of the Court about the custodial death in the Court premises of the West Bengal. And it is one of the duties of police authority to inform the family members or relatives of the accused person about the arrest and failure of the act on behalf of police authority will consider as Contempt of Court.

Hindustan times vs. Central Pollution Board is another leading case where a newspaper cutting was considered a PIL by the Court

Procedure to File a PIL

The Procedure for filing a PIL is as simple and similar to the filing of the writ in the High Court of the Supreme Court. One has to go through a lot of research about the filing of PIL. Then collect all the relevant matter and documents required in the filing of PIL.  

In the High Court:

When a PIL is filed in the High Court then 2 copies of the petition have to be submitted. And a copy of the petition has to be provided in advance to the respondent. And proof regarding serving of copies to be attached in the petition.

In the Supreme Court:

If PIL is filed in the Supreme Court the total 5 copies of the petition have to be submitted, and when notice is served from the Court then copies should be given to the opposite parties.

Court Fee:  

A PIL itself is very affordable as compared to other matters. Court fee is Rs. 50/- as per each respondent has to be attached in the petition.

Difference between Writ and PIL

Role of Judiciary in Development of PIL

Judiciary has played a major role in the development of PIL. Through many cases, the Indian judiciary has propounded the Indian various doctrines and Principle such as Absolute Doctrine in the case of M.C.Mehta vs. Union of India  Public Trust Doctrine in M.C. Mehta vs. Kamal Nath case.

Further, the apex Court of India has given various Guidelines in the majority of cases like Taj Trapezium case, Bhopal Gas Tragedy case, Ganga pollution and Ratlam Municipality case and many more on the list.

Justice Bhagwati. One of the activist judges in the supreme Court has made the validity of public interest litigation in S.P.Gupta vs. Union of India 1982 case, popularly known as Judges transfer case due to which more PIL are being approached by the citizens to the Court.

In the landmark case of Vishaka vs. the State of Rajasthan the victim was not getting any justice under criminal trial, failures to tangible remedies and restore dignity Naina Kapoor a lawyer made a petition of PIL in this case and challenged the sexual harassment in the workplace. A writ petition was also filed for the same on the name of five NGO against the state government. The judgement clearly depicted and stated that sexual harassment is a clear violation of the fundamental rights of equality, non-discrimination, life and liberty. And given certain guidelines which must be followed in every workplace by the employer and employees. The case has thus described the path-breaking judgment and legacies of PIL and created a revolution.

In the case of Parmanand Katara vs. Union of India a writ petition was filed in the supreme Court on the basis of newspaper report where a person on a scooter was hit by a car and doctors refused to treat him and attend him. They directed him to go to another hospital which was 20 km away from that place which could handle the medico-legal cases. In this case, the apex Court issued certain guidelines and held that:

“Preservation of human’s life is of paramount importance. Every doctor has an obligation to save the life of a person and extend his service to protect his life. ”

In a country like India majority of people are been ignored of their rights and keep this in mind the Indian Supreme Court held that any person acting bona fide and having sufficient interest of public can approach the Court making the grievances or redressal on their part, especially when such class of people cannot approach the Court due to any disability or poverty or any other such means.

In the Judges Transfer Case the Court held that:

‘‘Where a legal wrong or a legal injury is caused to a person or to a determinate class of  persons by reason of violation of any constitutional or legal right and such person or determinate class of persons is by reason of poverty, helplessness, or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ.’’

The Court justified it for the application of Rule of law and to provide justice to the disadvantage people of society.

The 3 Phases of Public Interest Litigation

In India, the PIL has gone through three phases which vary from each other in some particulars.

THE FIRST PHASE

The first phase started in the late 1970s and continued until the 1980s. In this phase, the PIL was usually filed by the public-spirited people such as Lawyers, journalist, social activist etc. For the poor or weaker section of society who was unable to get an advantage and suffer injustice on their part. Usually, the cases were related to child labour, bonded labour, women’s, prisoners, dwellers etc. the relief sought was against the violation of Fundamental rights guaranteed under the Indian constitution and for this the judiciary made remedies through guiding the government and its agencies to bind with the guidelines and directions made by it. Therefore the adoption of PIL was up to the mark and as expected by the constitutional framers fulfilling and recognizing the rights of the citizens.

THE SECOND PHASE

The second phase of PIL started in the 1990s where the chemistry of PIL was a bit different than the earlier phase. Many recognized and specialised NGO’s and Lawyers stated to file a petition on the basis of PIL on a regular basis. The issues raised or considered under PIL were also expanded as sexual harassment at workplace, free education to children, environment pollution, and corruption-free government, Rule of law, industries setup and their acts were taken into consideration by the Court.

Under this phase, the petitioner not only sought remedies for action or no action of executive’s authorities but also against the private bodies and demanded compensation and permanent relief for the problems arising out of it. The judiciary came up with more widely form of remedy for the petitioners and did not hesitate to fill the gaps between the legislatures and executives actions. The judiciary also made private parties to pay compensation to the affected citizens without going into the question of whether the state is responsible with it or not just by looking into violation of Fundamental rights. In certain cases, the Court also punished the civil servants for not fulfilling their duties due to which such situations were raised.

In this phase, the misuse of PIL increased to a certain level due to which the Court imposed fine on the plaintiff’s if any misuse is been done by them for the private purpose.

THE THIRD PHASE

The third phase which is the current phase stated in the 21st century, where anyone can file PIL if there is any violation of Fundamental right. The issued rose has been more expanded and it seems like now PIL can be made for anything. The development and free market considerations might dominate the part of the third phase of PIL. It shows that the judiciary has acted as the people wanted at any point of time for the protection of their rights.

Problems regarding Public Interest Litigation

It seems like the misuse of PIL has reached a certain level where it is going to overshadow the bright side, the very own purpose of the PIL for which it was made. The time has come to re-examine the misuse of PIL. There are numerous cases where the misuse of public interest litigation can be clearly depicted such as;

In the case of Subhash Kumar vs. the State of Bihar, parole was fired by the director of the company and he filed a PIL against the company stating that it is involved in bad and wrongful practices and it should be tried for the same. The facts clearly show us the misuse of PIL.

Cautioning the High Court on the misuse of PIL the bench said that:

PIL is a weapon which must be used with care and depending on the circumstances and the judiciary has to be extremely careful to see whether there is no publicity or malice intention behind the beautiful veil of PIL. The Court stated that PIL must be redressal for public wrong and injury and no publicity or private interest must be available for it.

In the case of Chhetriya Pradushan sangharsh Samiti vs. the State of U.P. a land was purchased by the jhunjhunwala mills from the member of Samiti due to increasing price. The heirs of the land who sold the property asked to return it and when they did not return it they started to make criminal offences complaints against them that the mill is polluting the environment. The apex Court held that Samiti has not come up with clean intention and therefore the PIL has been rejected by the Court. Due to many of such cases, the Supreme Court gave certain guidelines regarding the institution of PIL.

In S.P.Gupta vs. Union of India J. Bhagwati laid down certain specific cases where PIL cannot be filed as:

• If any person is engaged in socio-economic crime; &
• If the offence is against any women, no PIL must be filed by the criminal.

In the recent scenario, there are various cases related to PIL which have come up into the Court. In the year 2008 a case named Common Cause(A Regd. Society) vs. Union of India  came up to the Supreme Court in this a PIL petition was filed before the Court praying to the Court to enact a road safety Act in relation of various road accidents occurring in Indian society, the Court held that they cannot direct the legislatures to do any act which shows that the petitioner wants the Court to amend the legislatures and perform an act which is not into its ambit and therefore the petition was dismissed.

Petitions can be filed through letters, electronically as well as now it’s possible to file online or just by simply writing an Email to Chief Justice of India.  

Sample format of PIL or Writ

Please have a look at the rough draft for the purpose of the idea. You need to act after consulting with any certified Legal Practitioner. This PIL is related to the issue regarding lack of water in a village and people are dying nearby Mumbai, from where water is supplied for drinking purpose.

——————–

In the High Court of ___________

Writ Petition (Civil) PIL No. …..of 2014

In the matter between:

XYZ, an NGO

Group of Person, through

Secretary,

Address…..

Versus

The Water Supply Authority

Through, Chairman,

Address

_________ Respondent

A PIL or Writ Petition filed under Article 14, 21 and 226 of the Constitution of India.

To

The Hon’ble Chief Justice and his

Companion Justices

In the High Court of _______

More Respectfully show:

1. Petitioner is an on profit-making and public-spirited organisation. This petition is filed by the secretary of the institution. The credentials and authority letters are annexed herewith at A and .A

2. The petition is filed for the benefit of poor people of the village who are denied to have drinking water which is their Fundamental right.

The petitioner and all the person for whose benefit this PIL is filed is a citizen of India and hence they are entitled to approach the Hon’ble High Court for the protection of their fundamental rights under Article 14, 21 and 226 of the Constitution of India.

3. The situation faced by villagers relating to shortage of drinking water__

4. Detailed Representation made by petitioner to various authorities for making a request for the availability of  drinking water and their response regarding the request if received any:

The correspondence is annexed as Annexure B

5. It is submitted that Right to Drinking water is Fundamental Right under Art.21 of the Constitution of India. Because of the inaction of respondent authority right under Art.21 is violated and this Hon’ble Court may be pleased to issue appropriate directions to protect Art 21

6.That, the inaction of the respondent is arbitrary and without any just excuse and therefore Art.14 is violated.

7. That petitioner has no other efficacious remedy except to approach this Hon’ble Court by way of this writ petition under Art.226 of the Constitution of India.

8. That the petitioner has not filed any other petition on the same subject matter either in Supreme Court or in this Hon’ble High Court except this present petition.

9. The annexures, photographs, CD, Video film etc are true and correct copies.

10. The petitioner reserves the right to amend, add, modify or to rescind any contents of this petition if so required in the interest of justice.

11. In the above facts and circumstances, the petitioner humbly prays that

A) Your Lordship may be pleased to issue the writ of mandamus or any other writ or direction or order under Art.226 of the Constitution of India to protect the rights of the petitioner under Art. 14,21, by directing the respondent to forthwith provide drinking water to village___ District_____

B) Pending hearing and final disposal of this petition, Your Lordship may be pleased to direct respondent supply drinking water by at least 3 Tankers per day to village______ District_____C) Any other relief, or order which Your Lordship may deem fit to pass

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL REMAIN OBLIGED AS IN DUTY BOUND

Advocate for Petitioner

Date:

Place:_______

Conclusion

PIL has an important role to be played in the civil justice system which provides as a ladder to justice to disadvantaged people of the society which are even unaware of their rights.

PIL can also contribute to good governance by keeping the government accountable. At last, PIL also helps in spreading social awareness to people and informing and protecting their human rights, providing a voice to the weaker sections of the society, to the vulnerable ones or people who are poor and cannot approach the Court due to lack of economic or social resources.

The Indian judiciary has also played a vital role in keeping and recognizing the rights of the citizens by directing the government and its bodies to not misuse their power and protect the constitutional rights of the people. But it must be ensured that the PIL should not be misused by the people for their own publicity or for any other malice intention and must work as per the term in the interest of the public.

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