This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. In this article, he covers the “Inherent powers of the court” and tries to explain its provisions and Sections of the Civil Procedure Code, 1908 related to it.

Introduction

Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential or characteristic attribute. Inherent powers of courts are those powers which may be applied by the court to perform full and complete justice between the parties before it. It is the duty of the Courts to serve justice in every case, whether given in this code or not, brings with it the important power to do justice in the absence of a definite or separate provision. This power is said to be the inherent power that is maintained by the court, though not conferred. Section 151 of the Civil Procedure Code deals with the inherent powers of the court.

Provisions of Section 148 to 153B of CPC

The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A of the Civil Procedure Code, which deals with the exercise of powers in different situations. Following are the provisions of Inherent powers of Courts:

• Section 148 and Section 149 deals with grant or enlargement of time;
• Section 150 deals with the transfer of business; 
• Section 151 protects the inherent powers of the courts; and
• Section 152, 153 and Section 153A deals with amendments in judgments, decrees or orders or in separate proceedings.

Enlargement of time

Section 148 of the CPC states that where any term is fixed or awarded by the Court for the doing of any act provided by CPC, it is the discretionary power of the Court that Court may enlarge such period from time to time, even though the term originally fixed or awarded may have departed.

In simple words, when a term is fixed by the court for the doing of any act, the Court has the power to extend such period up to 30 days. This power is exercisable in the deficiency of any specific provision to the contrary which reduces or rejects or withholds the period. The power is limited to the extension of the time fixed by it and is of a discretionary nature.

Payment of court fees

According to Section 149 of CPC, “Where the entire or a portion of any fee commanded for any certificate by the law for the time being in force relating to court-fees has not been met, the Court may, in its discretion, at any step, permit the person by whom such fee is payable, to pay the whole or part as the case may be, of such court-fee; and upon such payment, the document, in regard of which such fee is payable, shall have the same force and result as if such fee had been paid in the initial situation.”

It permits the court to allow a party to make up for the lack of court fees due on a complaint or notice of appeal etc., even after the expiry of the limitation period for filing of the lawsuit or appeal, etc. Payment of the expected court fee is compulsory for any document imputable with court-fee to be presented in the court. If the necessary court fee is paid within the time set by the court, it cannot be negotiated as time-barred. Such payment made within the time fixed by the court retrospectively validates a faulty document. The power of the court is discretionary and must be exercised only in the importance of justice.

Transfer of business

According to Section 150 of CPC, “Save as otherwise granted, where the business of any Court is assigned to any other Court, the Court to which the business is so assigned shall have the same authority and shall make the same duties as those sequentially presented and forced by or under this Code upon the Court from which the business was so assigned.”

For example- When the business of a court A is transferred to any other court B, the court B will exercise the same power or perform the same duties given or commanded by CPC upon the transfer court.

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This Section states that ‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent power of the Court to make such orders as may be important for the ends of justice or to limit abuse of the method of the Court.’ It is not obligatory for the court to wait for the law made by parliament or order from the higher judiciary. Court has discretionary or inherent power to make such order which is not given in terms of laws for the security of justice or to check misuse of the method of the Court.

The scope of exercising of Section 151 of CPC can be represented by some cases as follows:

• The court may recheck its orders and resolve errors;
• Issuance of provisional sanctions when the case is not included by order 39 or to place alongside an ‘ex parte’ order;
• Illegal orders or orders passed without jurisdiction can be set-aside;
• Subsequent events in the case can be taken into consideration by the court;
• Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
• The court can erase remarks made against a Judge; and
• The court can improve the suit and re-hear on merit or re-examine its order.

Ends of justice

In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was explained. It was held in this case that “ends of justice are formal words and not the only well-mannered form in juristic methodology and justice is the pursuance and end of all law. But these words do not mean vague and general notions of justice according to the laws of the land.”

The Court is allowed to exercise these inherent powers in cases like- to recheck its own order and correct its error, to pass injunction in case not included by Order 39, and an ex parte order against the party, etc.

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check the infringement of the process of the court. The abuse of power may be for the example of a party or at the example of the court itself. Abuse of the powers of the court which happens in unfairness to party needs to get relief on the ground that the act of a court shall not prejudice anyone. When a party practices fraud on the court or on a party to a proceeding, the remedies have to be provided on the basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing something that it is never expected to do is the perpetrator of the said abuse and there is a failure of justice. The injustice so done to the party must be given relief on the basis of the doctrine of actus curiae neminem gravabit (an act of the court shall prejudice no one). A party to a case will become the perpetrator of the abuse in cases when the said party does acts like obtaining benefits by functioning fraud on the Court or a party to the proceedings, prompting the multiplicity of proceedings, etc.

Amendment of judgments, decrees, orders, and other records

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.” According to Section 152 of CPC, Court has the power to change (either by own actions or on the application of any of the parties) written or arithmetical mistakes in judgments, decrees or orders or faults arising from an unexpected lapse or imperfection.

Section 153 deals with the “General authority to amend.” This Section empowers the court to amend any fault and error in any proceedings in suits and all required improvements shall be made for the purpose of arranging raised issues or depending on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may set correct any blunders in their experiences at any time.

Power to amend decree or order where an appeal is summarily dismissed and place of the trial to be deemed to be open Court are defined under Section 153A and 153B of CPC,1908. 

Limitation

The exercise of inherent powers carries with it certain barriers such as:

• They can be applied only in the deficiency of particular provisions in the Code;
• They cannot be applied in dispute with what has been expressly given in the code;
• They can be applied in rare or exceptional cases;
• While operating the powers, the court has to follow the method shown by the legislature;
• Courts can neither exercise jurisdiction nor entrust in them by law;
• To abide by the principle of Res Judicata i.e., not to open the issues which have already been decided finally;
• To pick a mediator to make an award afresh;
• Substantive rights of the parties shall not be taken away; 
• To limit a party from taking proceedings in a court of law; and
• To set apart an order which was valid at the moment of its issuance.

Summary of Provisions of Inherent powers of Courts

A summary of Section 148 to Section 153B is that the powers of the court are quite deep and extensive for the scope of:

• Reducing litigation;
• Evade multiplicity of proceedings; and
• To supply full and complete justice between the parties.

Suggestions

It may be recommended that rules put down by the courts in the application of inherent powers concurrently with the restraints and limitations on the application of the power be arranged in the form of rules to be made by the Supreme Court and be made desirable to the courts for their leadership. The rules may also provide to deal with different circumstances unprovided for which arises in future.

Conclusion

Inherent powers are the power of court which are helpful in minimizing litigation, avoid multiplicity of proceedings and to render complete justice between two parties. Section 148 to 153B of CPC discusses the provisions of the Inherent powers of the Court. These provisions discuss the enlargement of time, payment of court fees, transfer of the business of one court to another court, end of justice, abuse of process of the court, amendment of judgement, decree, orders, and records, etc.

References

• http://bvpnlcpune.org/Article/Inherent%20Powers%20of%20a%20Civil%20Court-Prof%20_Dr_%20Mukund%20Sarda.pdf
• Bare Act of CPC, 1908

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

The post Inherent Powers Of The Court Under CPC, 1908 appeared first on iPleaders.

This article is written by Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad. In this article, the landmark judgment of the case Justice K.S. Puttaswamy (Retd.) and anr. V. Union of India has been discussed.

Introduction

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India is a landmark case and the judgment was given by the Hon’ble Supreme Court of India. The judgment given in the case by the Bench gave a new perspective to the Right to Privacy of the citizens. It was held that the Right to Privacy is a Fundamental Right under Articles 14, 19 and 21 of the Indian Constitution.

The Hon’ble Court upheld the Aadhaar Act and stuck down the provision of the Act which was unconstitutional. It was held by the Court that the Right to Privacy of the citizens has to be protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. The Court explicitly overruled the previous landmark judgments of the Supreme Court Kharak Singh vs State of UP and M.P Sharma vs Satish Chandra in which it was held that Right to Privacy is not a Fundamental Right of the citizens under the Indian Constitution.

Summary of Facts

‘Unique Identification for BPL Families’ was a project which was initiated by the Government of India. A Committee was set up for the project. The creation of a Unique Identification database was suggested by the Committee for the said project. The project was decided to be set up in three phases. 

In January 2009, the Planning Commission of India passed a notification on UIDAI (Unique Identification Authority of India). In 2010, the National Identification Authority of India Bill was passed by the Commission. Retired Justice K S Puttaswamy and Mr. Parvesh Sharma in November 2012 filed a PIL Writ Petition in the Supreme Court challenging the validity of Aadhaar.

The scheme was challenged as it was violative of Fundamental Rights. The scheme violated the right to privacy under Article 21 of the Indian citizens. After filing this writ petition, a series of orders were passed. The Aadhaar Act was passed in 2016. The petitioners then filed another writ petition challenging the vires of the Act. This writ petition was then merged with the previous one and was treated as one writ petition.

Jairam Ramesh who was the Former Union minister and Congress leader moved Supreme Court in May 2017. He challenged the decision to treat the Aadhaar Bill as a money bill.

On 24th August 2017, the Supreme Court ruled that the right to privacy is a Fundamental Right under Article 21 of the Indian Constitution. On 17th January 2018, the hearing of Aadhaar Case was started in Supreme Court. The Supreme Court on 25th April 2018 questioned the Centre on linking the Aadhaar with mobile. On 26th September 2018, the Supreme Court held Aadhaar card to be valid but struck down certain provisions such as mandatory linking of Aadhaar with mobile, bank accounts and school admissions.

Identification of Parties

Petitioner- Justice K.S.Puttaswamy (Retd).

Respondent- Union of India.

Bench- Justice D. Misra, Justice D.Y. Chandrachud, Justice A Bhushan, Justice AM Khanwilkar, Justice A Sikri.

Issues before the Court

• Whether the Aadhaar Project has a propensity to create a surveillance state and is thus unconstitutional based on this ground?
• Whether the Aadhaar Project violates the right to privacy of the citizens and is unconstitutional based on this ground?
• Whether Section 7 and 8 of the Aadhaar Act also includes children?
• Whether the following provisions and Regulations of the Aadhaar Act are unconstitutional:

1. Sections 2(c) and 2(d) read with Section 32;
2. Section 2(h) read with Section 10 of the Act- Central Identities Data Repository (CIDR);
3. Section 2(v), Section 3, Section 5, Section 6, Section 8, Section 9;
4. Sections 11 to 23;
5. Sections 23 and 54;
6. Section 23(2)(g) read with Chapter VI & VII; 
7. Section 29, Section 33, Section 47, Section 48, Section 57, Section 59

• Whether the Aadhaar Act can be treated as a ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?
• Whether Section 139AA of the Income Tax Act, 1961 violates the right to privacy of the citizens under the Indian Constitution?
• Whether Rule 9(a)  of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are valid under the Indian Constitution?
• Whether Circular dated March 23, 2017, issued by the Department of Telecommunications which mandates the linking of the mobile number of the citizens with Aadhaar is illegal and unconstitutional?
• Whether certain actions which were taken by the respondents are in contravention of the interim orders passed by the Court?

Contentions by Parties on issues

Petitioners

The petitioners contended that the planning of the Aadhaar Act by its very virtue is probabilistic in nature. The Act aims to extend subsidies, benefits, and services to society. It is possible that rather than providing these benefits, subsidies, and services to the section of society for which these are meant, it may end up excluding them from receiving such beneficiaries.

The main arguments were that the Act may take away the rights and liberties of the citizens of the country which are guaranteed to them under the Indian Constitution. Strict implementation of the Aadhaar Act can be a serious problem as it is contrary to the Fundamental Rights which are given in the Indian Constitution to the citizens of the country.

The Aadhaar was in contravention to the Constitution and had the potential to enable an intrusive state to become a surveillance state (a state in which the Government has the ability to monitor the activities of its citizens) based on the information that would be collected from each individual by creating a joint electronic mesh.

It was contended that the Right to Privacy of the citizens was being violated. Right to Privacy is an integral part of Article 21 of the Indian Constitution i.e. Right to life and liberty. The Act imposes restrictions that are not provided under Article 19 as reasonable restrictions. If any restriction is imposed then it is important that it satisfies the requirements of Article 14 and 19 of the Indian Constitution. It is also important that the law which imposes such a restriction must be fair, just and reasonable.

In the present case, the restrictions which are imposed by the Government through the Aadhaar Act do not fall under reasonable restrictions and are arbitrary and unreasonable. There isn’t any reasonable classification as there is no nexus between the classification of society made by the Act and the objective which the Act strives to achieve. The information which was sought from the citizens violated the integrity of the citizens. The object of the Act was not in nexus with the information which was sought to be collected by the citizens. The Act also made a classification of citizens based on religion. Classification based on religion did not only discriminate citizens but also forced them to reveal their religion which is violative of Article 25 of the Indian Constitution. Further, the Act also made Aadhaar Cards compulsory for availing certain benefits that were offered by the Government to the citizens under the Act. The compulsion of Aadhaar Cards will also enable the Government to put the citizens under its surveillance and this would amount to a violation of the Right to privacy under Article 21 of the Constitution. Violation of the Right to privacy is a very serious violation of the Right to life as it encroaches upon the life and dignity of the citizens which is the basic right guaranteed under the Constitution.

Most of the counsel who appeared for different petitioners agreed that as far as allotment of Aadhaar number for unique identification of the residents is considered there was no question of dispute.

The arguments which were made by some famous lawyers against the Aadhaar Act were as follows:

Shyam Divan

Shyam Divan was the first counsel who started with the petitioner’s arguments. He challenged the Aadhaar Act, 2016. He contended that as per the Indian Constitution the State is bound to provide benefits to its citizens by way of subsidies and services. The Aadhaar Act makes these benefits conditional for the citizens which the State is bound to provide to its citizens. To avail such benefits the Aadhaar Act needs the citizens to give their biometric and demographic information. Section 7 of the Act was challenged on this ground by Shyam Divan.

The Aadhaar Act enabled the Government to track the citizens which violated their right to privacy and hence was unconstitutional. The UIDAI gives the power to the State to cancel the number of the citizens which is provided in their Aadhaar and such an act of the State would not have any redressal mechanism.

Kapil Sibal

The main contention of Kapil Sibal was that when Right to Privacy was made a Fundamental Right under Article 21 of the Constitution then the personal information of the citizens which the Act seeks to receive should not be allowed. The Act takes away the right to make a choice from the citizens as according to the Act it is mandatory for the citizens to reveal the information to the State which the Act needs them to in order to avail the benefits and subsidies provided by the Government as without Aadhaar authentication the citizens will be denied of those Government beneficiaries. The Aadhaar Act takes away the informational privacy from the citizens which have been recognized as the Right to Privacy.

It was contended by him that the collection of information from the citizens violates Article 21 of the Constitution.

Arvind Datar

It was contended by Arvind Datar that the Aadhaar Act is unconstitutional as it can’t be treated as a money bill. Linking of the bank accounts with Aadhaar violates the rights of the citizens as they are not left with a choice to operate their bank accounts without linking it with the unique ID and hence, it is violative of Article 14 and 21 of the Constitution. Further, the State did even give an explanation to the citizens for linking their bank accounts with Aadhaar. A reason to do so was needed to be given by the State in order to explain the object which the State intends to achieve by doing so. The right to make a choice is a right that has been recognized as a Fundamental Right under the Right to privacy. The Aadhaar Act takes away the right to make a choice by the citizens and thus, violates the Fundamental Right of the citizens under Article 21 of the Constitution.

The Act also violates the principle of proportionality under Article 14 of the Constitution as having an Aadhaar will give a valid identity to a person and whosoever fails to do so will not be considered to have a valid identity.

He argued that Section 139AA of Income Tax Act which makes it compulsory for citizens to link their Aadhaar with their bank accounts is violative of the Right to Privacy under Article 21 of the Constitution and is needed to be reconsidered.

P Chidambaram

It was contended by P Chidambaram that the Aadhaar Act was in no way a money bill and so it should not be treated as one. He stated that a bill to qualify to be a money bill needs to go through strict criteria that have been set and if the bill passes such criteria only then it can be treated as a money bill. He also stated that all the money bills need to go through the Rajya Sabha and then it is passed to the President for his assent. The President has the power to send back the money bill for reconsideration which has been passed by the Rajya Sabha if he feels that some corrections are needed to be made in it. 

Hence, the provisions of the Aadhaar Act which fails to fulfill the criteria of a money bill cannot be considered to be passed and so the entire law is void and needs to be struck down.

Respondents

It was stated by the respondents in the affidavit that their intention behind introducing the Act was to ensure that all the citizens who are eligible for the benefits and subsidies by the Government receive such benefits and subsidies and aren’t deprived of it. 

It was also rebutted by the respondents that the Aadhaar Act does not ask for any information which can violate a person’s Right to Privacy. It was submitted by the respondents that the Act barely asks for any personal information from the citizens which can enable State surveillance on them. The respondents further stated that the demographic information which the Act seeks to ask from the citizens include name, date of birth, gender, address, mobile number and email address of the citizens. Providing mobile number and email address to the State was left on the option of the citizens and these two are required only for transmitting relevant information to the AMH and for providing One Time Password (OTP) for their authentication. The information which the Act seeks to receive from the citizens is in the public domain. It was also stated by the respondents that the Act under Section 2(k) specifically provides that the regulations cannot ask for the information like race, religion, caste, tribe, ethnicity, language, income, records of entitlement or medical history from the citizens and hence, any sensitive information can’t be asked from the citizens through this Act. In light of the Section stated above the scope of obtaining any additional demographic information is very limited and even the biometric information which the Act seeks to obtain from the citizens is limited to their fingerprints and an iris scan. 

This specific exclusion, in the context, ensures that the scope of including additional demographic information is very narrow and limited. Such biometric information is very commonly obtained all over the world in order to identify a person. The argument of the respondent was, thus, that the information which Aadhaar Act seeks to obtain is non-invasive and non-intrusive identity information.

The comprehensive reports on data protection and informational privacy were prepared by the Planning Commission of India under the Chairmanship of Retd. Justice A.P. Shah. the report included five salient features that aimed to protect the privacy of citizens.

The framework suggested by the Planning Commission was based on the following five salient features:

• technological neutrality and interoperability with international standards; 
• multi-dimensional privacy; 
• horizontal applicability to state and non-state entities; 
• conformity with privacy principles; and 
• a co-regulatory enforcement regime.

On 31st July 2017, the Central Government constituted a committee to review data protection norms in the country and make recommendations which was chaired by Retd. Justice B N Srikrishna, former Judge of the Supreme Court of India. The Committee had recently released its report and the first draft of the Personal Data Protection Bill, 2018. It comprehensively addresses the process of personal data. It includes information like where such data has been collected, disclosed, shared or otherwise processed within the territory of India. The provisions and principles of Europe’s General Data Protection Regulation (EUGDPR) and EU data protection jurisprudence were used for the purpose of framing the bill.

The traditional concepts of the data controller in which the entity processes the data and the person whose data is being collected known as data subject was replaced by the Draft Bill. The new concept introduced by the Draft Bill was ‘data fiduciary and dad principal’. The new concept aimed to establish a trust-based relationship between the entity and the person whose data is being collected.

The Draft bill and the report includes the rights and obligations of the data fiduciary and data controller respectively. These rights include the right to access and correction, the right to data portability and the right to be forgotten – a right to prevent or restrict disclosure of personal data by a fiduciary. The consent plays a crucial role as it has been given an important status in the draft data protection law. Thus, for the purpose of the process of processing the personal details of the citizens, it plays a significant role.

It was stated by the respondents that Aadhaar works as an identity card which is used by around 92 crore people for accessing various social schemes or availing benefits which are provided by the Government to its citizens. It is a document which widely is being used by the citizens and restricting it would create a problem for the citizens. Aadhaar is a document that can help the Government in detecting and eliminating the duplication and impersonation in muster rolls and beneficiary lists. It also helps the workers under MGNREGA and pensioners to withdraw their wages and pensions every month. 

The respondents also rebutted the privacy contention stating that the data which is obtained by the Act is secure as it is encrypted at its source and all the biometrics of the citizens are stored by the Government in the Government of India’s servers. The Government of India’s servers has a security standard which is one of the best in the world. The duplication of cards or fake cards for availing the benefits which are provided by the Government can be avoided with the help of Aadhaar number which asked from the citizens. Aadhaar will also be able to help in reducing the involvement of middlemen who try to drain off a part of the Government’s subsidy which is made available for a particular section of the society. Government subsidies are mainly concerned with goods and services like food grains, fertilizers, water, electricity, education, healthcare. The Government usually provides these goods and services at a lower price than the market price. To make this initiative work efficiently Aadhaar can be used. Aadhaar can be used to ensure timely and direct payment to the sections of society for which subsidies are made available by the Government and prevent leakage of money. This step can save thousands of crores of rupees which are lost in leakage. The Government have identified crores of duplicate ration cards, Aadhaar can ensure that the benefits and subsidies which are mean for certain sections of society actually reaches them.

The objective behind the provision which is included by the Government for the citizens to quote their Aadhaar number while applying for PAN card and for filing Income Tax returns is to identify the tax evaders by linking their PAN card with Aadhaar. Mandatory linking of PAN card with Aadhaar can curb tax evaders and also ensure that one person owns only one PAN card. Making Aadhaar mandatory can identify the fraudulent practices which are going on in the country and curb it to a large extent. Unique Identification Authority of India can even permanently or temporarily deactivate an individual’s number which has been provided in the Aadhaar.

Judgment

The Aadhaar Act was held to be valid by the Supreme Court. The Hon’ble Court stated that sufficient security measures have been taken by the Government in order to keep the data safe which the citizens have been asked to reveal for Aadhaar. A five-judge bench led by CJI Dipak Misra decided the case. The Bench asked the Government to take measures to provide more security in order to protect the data obtained by the people. It was also stated by the Court that the information which has been obtained by Aadhaar should not be released to the commercial banks, payment banks, and e-wallet companies. E-wallet companies like Paytm asked their customers to get their KYC done by using their Aadhaar cards. It was held by the Court that such information of Aadhaar should not be released to them. It was also stated by Bench that telecom companies cannot seek details of Aadhaar from their customers when they buy a new sim card and even schools shall not ask students to provide their Aadhaar number for appearing in board exams or for admissions.

The Supreme Court upheld the validity of Aadhaar and made it mandatory for availing the benefits and subsidies of the Government. The Act ensures that the benefits and subsidies of the Government are received by the people for whom it is meant. The Court held Section 57 of the Act to be unconstitutional and was, therefore, struck down. 

The court held that Aadhaar card shall be made mandatory for availing the welfare schemes, benefits, and subsidies that are provided by the Government as it empowers the poor and ensures that the benefits and subsidies are received by the sections of society for which it was meant. Section 57 of the Aadhaar Act was held to be unconstitutional and was struck down. The Supreme Court held that children would not be denied the benefits of any Government scheme if they do not have an Aadhaar card. The Bench of the Supreme Court also struck down the national security exception under the Aadhaar Act.

The Court also explained the difference between an identity card and Aadhaar. Aadhaar has a unique identification and hence can’t be duplicated like other identity cards. Further, the Court also stated that the objective of Aadhaar is to give identity and empower the poor of the society by making sure that they are able to avail the benefits and subsidies which are provided by the Government for them. Therefore, the Aadhaar has been made compulsory for availing the Government welfare schemes.

Conclusion

The Aadhaar Act was launched with the purpose to give identity and empowerment to the marginalized section of the society. It provides a unique identification number to the citizens of India. The Aadhaar number is unique and therefore, it can’t be duplicated. The unique identification ensures that the benefits and subsidies of the Government are availed by the section of society for which it is meant. Aadhaar can prevent unfair practices and leakage of thousands of crores of money. Many privacy rights questions were also raised in the case. The question of dignity of citizens, informational self-determination and consent formed the basis for the privacy rights claims.

The right to Privacy formed an important part of the case. A five-judge bench of the Hon’ble Supreme Court on 26th September 2018, delivered a judgment in favor of respondents. The validity of Aadhaar was upheld by the Court after striking down various clauses and Sections of the Act which were contrary to the Constitution and violated the rights of the citizens. Justice A K Sikri who wrote the majority of the judges declared the Aadhaar Act to be valid after striking down Section 33(2) and Section 57 of the Act. Various questions were raised by the petitioners on issues like the Right to Privacy of the citizens and the possibility of state surveillance as well as the possibility of breach of information which was collected by the Government for Aadhaar cards of the citizens. The questions of the petitioners have mitigated the claim of UIDAI that their system is one of the best in the world and secured enough to keep the information of the citizens safe. The Court held the Aadhaar Act to be Constitutionally valid as the Act was under reasonable restrictions of the Constitution.

The majority of the honorable Bench also stated that the right of choice of the citizens to avail the Aadhaar card will not be protected by upholding the Aadhaar Act. The citizens will not be left with a choice as Aadhaar will be mandatory for availing the subsidies and benefits of the Government and if a citizen is excluded from availing the subsidies and benefits of the Government due to lack of Aadhaar or authentication problem it can result in the violation of the dignity of the citizen. The Bench also said that linking of Aadhaar to PAN card is not important as there isn’t any constitutional rationale behind it. Upholding of Aadhaar can possibly result in the violation of the Right to Privacy even after striking down Section 33(2) and Section 57 of the Act. In order to protect the Right to Privacy of the citizens the Court clearly ruled out the possibility for private entities to use the authentication mechanism or for asking Aadhaar details by the citizens. The step taken by the Court was to protect the Right to Privacy of the citizens and it clearly showed that the Right to Privacy is indeed a Fundamental Right.

References 

• https://www.lawyerservices.in/
• https://uidai.gov.in/images/targeted_delivery_of_financial_and_other_subsidies_benefits_and_services_13072016.pdf
• http://lawtimesjournal.in/justice-k-s-puttaswamy-retd-vs-union-of-india/

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

The post Justice K.S. Puttaswamy (Retd.) and Anr. Vs. Union of India, Writ Petition (Civil) No. 494 Of 2012 appeared first on iPleaders.

This article is written by Aarif Shah.

Introduction

“Workers of the world unite; you have nothing to lose but your chains.”

-Karl Marx

Article 19 (1)(c) which reads as:

• To form associations or unions [cooperative societies] and to strike peacefully.

While as Article 19(4) reads as:

• Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause and the strike undertaken under said sub-clause shall be reasonable and brought in notice to the employer.

The Constitution of India has very well taken care of the rights of its citizens. Using this Mother Statute, various legislations are passed to protect the socio-economic, religious, political and cultural values of the society. But all of these rights come with their duties. The more powerful the right is, more will be the underlying duties. Part III of the Indian Constitution embodies these powerful privileges called as Fundamental Rights. One of these fundamental rights as enshrined in Article 19(1)(c) states that citizens of India have the right to freedom to form associations or unions [cooperative societies]. But in a large democratic society like India with a huge number of economic transactions and well developed industrial sector, it is very much required to bring about policies for the welfare of people engaged as mentioned in Article 38 of the Constitution. When we talk about the corporate sector including private and public companies, industries etc., the people working there should be given the priority and their reasonable demands should be satisfied such as issues related to minimum wages, working hours, health and hygiene, etc. Article 19(1)(c) may be able to provide them the right to form association and trade unions, but it is not enough. Sometimes, the circumstances require the workers to go one step beyond and start strike by stopping the work to push the employer to get the demands fulfilled.

The word ‘strike’ means a cessation of work or a concerted refusal to work based on common understating by the employees of any industry to get their demands fulfilled. Today, almost all the nations whether socialist, democratic or capitalistic, provide right to strike to its workers. But it should be used as a weapon of last resort. If misused, it can undermine the industrial functioning and ultimate loss to the economy of the country.

Right to Strike is not a fundamental right in India. It was only after the enactment of Industrial Disputes Act in 1947 that the right to strike was recognized in India as a statutory right. Section 22(1)(a) of the Act states that employees can go for the strike in case of breach of contract provided a prior notice is given to the employer within 6 weeks of such strike. It also includes government employees. The said right is not freely given in the statute. There are certain conditions, which only if satisfied can the workers go on strike. The right is an important weapon in the hands of workers for seeking redressal and safeguarding their liberties. There was a general presumption that employer is always at dominating position and there may the chance of him imposing cruel terms and condition of service on the employees. So, the need was of a tool for collective bargaining. As the Supreme Court has said that good relations between employer and employee and collective bargaining are the essential objectives of Industrial Disputes Act, 1947.

Article 19(1)(c) gives the right to form association and trade unions. If there is no right to strike, the right to form associations will be hollow. Then why such right is given at first place. The Indian judiciary through the series of judicial decisions emphasized on the legality or illegality of strike, but didn’t impose a ban on the right to strike. The Apex Court held that the membership of trade union if sufficient is able to bargain. But such bargaining power is highly reduced when no right to strike is given to the workers. 

International Labour Organization mandates that a right to organize and collective bargaining shall be given to the employees. Although, there are no express provisions on the right to strike. But ILO Committee of experts has highly regarded this right as indispensable and an integral part of the right to organize. India has implemented and promoted almost all the principles embodied in these two conventions except the right to strike. Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to form trade unions and associations. And the right to strike is a sequel of their constitutional privilege to form association. International Covenant of Economic, Social and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it is in conformity with the law of the member states.

The English judiciary has been very amenable towards the right to strike. They have recognized the said right as justiciable one. Lord Denning held that strike is the last remedy and that it has emerged as an inherent right of the worker which forms the essence of collective bargaining.

Even in the US, the National Labor Relations Act, 1935 provides the right to strike to bargain for better wages and working conditions, health and hygiene etc. However, no such recognition has been given to the aforesaid right in India. It is just a statutory right.

Right to Strike

The word ‘strike’ comes from ‘strican to go’ which means to quit, hit or impress in case of a trade dispute. It is the most effective and final resort in the hands of workers to secure economic justice. This meaning of strike has undergone various changes across the world and most of the nations have given the right to strike to the workers. The right to strike is a statutory right in India guaranteed under Section 22(1)(a) of the Industrial Disputes Act, 1957. The section provides that in case of breach of contract in public utility service, the workers can go for the strike with a prior notice to be given to the employer within 6 weeks of such strike. Right to strike is a very important tool in the hands of workers. It helps the workers to negotiate for the better working environment and proper wages etc. Right to strike is the very essence of collective bargaining.

Section 22(1)(a) provides various conditions to be satisfied before going for such strike. The Supreme Court has said that workers have the right to go on peaceful strike. But the demands they claim should be legitimate. Justice Krishna Iyer and PN Bhagwati in a case held that strike can be illegal or legal one and even the illegal strike can sometimes be justified. It is the principle of social justice and well recognized by industrial jurisprudence. It is available to the employees as their legal right also and they can go for the peaceful strike to negotiate for their demands with the employer. It is Collective bargaining and the right to strike go hand in hand. Industrial Disputes Act has differentiated between legal and illegal strikes. So, it can be said that upon compliance of all requirements as mentioned in §22 and 23, a strike can be legal and justified one.

Although, it has been given importance by the foreign nations and international laws, but India still hasn’t provided fundamental status to this right. The judiciary has failed to consider the dynamic structure and evolution of right to strike.

Indian Judiciary on Right to Strike

Indian judiciary has recognized the right to strike both as a legal and statutory right. Strike in an integral part of wage bargaining in the industrial economy. Some limited right to strike was given by the Trade Union Act, 1926. And it was finally made a statutory right under §22 of the Industrial Disputes Act, 1947. Article 19(10)(c) of the Constitution gives freedom to the citizens to form associations and trade unions. But right to strike in an ancillary right. If not given, the right to form associations will be hollow and illusory. While recognizing the objectives of IDA of 1947, Apex Court said that strike is a weapon available to workers to force their employer to fulfill workers’ demands. It is a legitimate and indispensable weapon available to the employees and can be used in case of urgency. It will be unreasonable to make the workers to wait for notice in that case. In the case of Crompton Greaves Ltd. v Its Workmen, the Supreme Court held that strike is a legal weapon available to workers. Whether the strike is justified or not will depend upon the facts and circumstances of each case. Court has also said that sometimes even an illegal strike can be justified. In the case of Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan, the court held that peaceful strikes can be conducted by the workers to force the employer to fulfill their demands. Justice Ahmadi in the case of B.R. Singh v Union of India, held that it is very essential for the trade union to have sufficient membership which can be secured through agitation methods such as strike, go slow etc. He further held that strike is an inherent right which protects the liberty of workers. It a recent decision of Supreme Court on this matter, it was held that the right to strike is a legal right and not fundamental right. It went further on to hold that if such right is made fundamental in nature, it will undermine the economic structure of the country.

International Law on Right to Strike

International Labour Organization mandates that a right to organize and collective bargaining shall be given to the employees. Although, there are no express provisions on the right to strike. But ILO Committee of experts has regarded this right indispensable and an integral part of the right to organize. India has implemented and promoted almost all the principles embodied in these two conventions except the right to strike. The preamble of ILO has emphasized on the right to strike as an essence of collective bargaining.

Universal Declaration of Human Rights, 1948 provides for the protection of workers’ interests. They have the right to form trade unions and associations. And the right to strike is a sequel of their constitutional privilege to form association. International Covenant of Economic, Social and Cultural Rights, 1966 also provides for the recognition of the right to strike with the condition that it is in conformity with the law of the member states.

Even in the US, the National Labor Relations Act, 1935 provides the right to strike to bargain for better wages and working conditions, health and hygiene etc. The US Supreme Court has even read this right under the 14th Amendment of the US Constitution. The English judiciary has been very amenable towards the right to strike. They have recognized the said right as justiciable one. Lord Denning held that strike is the last remedy and that it has emerged as an inherent right of the worker which forms the essence of collective bargaining. Article 253 of the Constitution gives powers to the Parliament to ratify the international conventions, treaties, etc. India has even ratified an obligation to accept international law regarding workers but it has still failed to recognize the right to strike as a fundamental right in India.

Strike as a Fundamental Right

No fundamental right status has been given to the right to strike. It is still a legal and statutory right. Article 51(c) of the Indian Constitution says that the state shall have to respect for international law and treaties and Article 253 of the Constitution says that such international laws and treaties should be ratified by the Indian parliament. All the international laws and conventions such as the International Labour Organization and Universal Declaration of Human Rights, 1948 has adopted in its very basic structure the right to strike. Although it is the essence of collective bargaining which all the international conventions regarding workers talk about but no heed has been paid to these conventions by India. Even the judiciary has failed to consider the dynamic transformation of right to strike. There is a dire need of right to strike to be given as a fundamental right. Because the right to form associations and trade unions will have no effect if right to strike is not given as a fundamental right. Such rights will become hollow and illusory. Right to strike is very important in the modern economic transactions. It is the ultimate weapon in the hands of the workers to get their demands satisfied from the employer.

Giving fundamental States to the right to strike will not only improve the economic structure of the country but will also improve the economic well-being of workers, proper wages, health and hygiene etc. In the modern civilised world, right to strike should be inalienable and inherent right to be given to the workers.

The argument that the strike can lead to economic laws by virtue of dysfunctioning of the industries can be negated by the fact that if the right to strike is not given as a fundamental right, it will anyway disrupt the economic structure. The membership of the trade unions and associations will decrease resulting in economic losses to industries and eventually to the country.

Recommendations

In the case of Apparel Export Promotion Council vs A.K. Chopra, Supreme Court held that international covenants such as ICESCR etc are like an obligation on India to be fulfilled. It is the duty of the courts to interpret and incorporate the principles of these covenants in their judgements. The international laws clearly ask for the strike as a fundamental right of the workers. ILO, UDHR and ICESCR have in its basic structure adopted this right. India except right to strike, has adopted almost all the principles of these conventions. The need is to look at the industrial adjudication in India. In order to increase the membership of trade unions and associations formed in these industries, the collective bargaining forms a vital part which even judiciary has recognized. But such collective bargaining is only possible if the right to strike is made as a fundamental right under Article 19(1)(c). The restriction can also be attached to such right such as the strike to be peaceful and legal etc.

It is a very important weapon for the employees which will help them to negotiate for their demands with employer. It will also reduce the employer-employee domination in the industries. There are still a large number of industries in India especially in the rural areas which don’t provide even minimum wages to the workers. The working environment is also in dismal state and exploitation is the ultimate result. In these circumstances, strike becomes the ultimate remedy to these workers.

The right to strike also has some social aspects. The workers come from families. They have to earn for better livelihood. If not adequate wages are provided to them, it will harm their livelihood. If there is no concern for their health and hygiene, it will impact their social needs. Also mentioned in Part IV of the Constitution, it is the duty of the State to provide better working environment to workers. It can be concluded that in a country like India, strike should be made the fundamental right so that its industrial and economic sector flourish.

Conclusion

In a large democratic society like India with a huge number of economic transactions and well developed industrial sector, it is very much required to bring about policies for the welfare of people engaged as mentioned in Article 38 of the Constitution. Article 19(1)(c) may be able to provide them the right to form association and trade unions, but it is not enough. Sometimes, the circumstances require the workers to go one step beyond and start strike by stopping the work to push the employer to get the demands fulfilled. Right to strike is a statutory right in India guaranteed by Section 22 of the Industrial Disputes Act, 1947. There are certain conditions, which only if satisfied can the workers go on to strike. The right is an important weapon in the hands of workers for seeking redressal and safeguarding their liberties. The international laws mandates strike to be given as a fundamental right to workers. ILO, UDHR and ICESCR have in its basic structure adopted this right. India except right to strike, has adopted almost all the principles of these conventions. The need is to look at the industrial adjudication in India. Collective bargaining is the essence of trade unions and associations but it is only possible if right to strike is given the fundamental right status. Considering the dismal conditions of industries, employer domination, minimum wage issues and social aspects of the strike, it casts a legal and constitutional obligation on the State to made strike as a fundamental right under Article 19(1)(c).

Bibliography

Constitution and Other Laws

• Industrial Disputes Act, No. 14 of 1947 (India).
• Trade Union Act, 1926 (India).
• Constitution of India.
• Constitution of the United States.
• National Labor Relations Act, 1935 (US).

International Laws and Conventions

• International Labour Organization, 1919, Convention No. 87, 98.
• International Covenant of Economic, Social and Cultural Rights (ICESCR), 1966, Article 7, 8(1).
• Universal Declaration of Human Rights, 1948.

Indian and Foreign Cases

• Apparel Export Promotion Council vs A.K. Chopra AIR 1999 SC 625 (India).
• B.R. Singh & Ors. Etc. v Union of India 1989 SCR Supl. (1) 257, ¶9 (India).
• Workmen of Dimakuchi Tea Estate v Management of Dimakuchi Tea Estate AIR 1958 SC 353 21 (India).
• Morgan v Rice 3 All E.R. 1008 (H.L.) (UK).
• Gujarat Steel Tubes Ltd. v Gujarat Steel Tubes Majdoor AIR 1980 SC 1896 (India).\
• All India Bank Employees Association v National Industrial Tribunal and others AIR 1962 SC 171 (India).
• Management of Kairbetta Estate, Kotagiri v Rajamanickan AIR 1960 SC 893 (India).
• Management of Chandramalai Estate, Ernakulam v Its Workmen & Anr. AIR 1960 SC 902 (India).
• Crompton Greeves Ltd. v Its Workmen AIR 1978 SC 1489 (India).
• Indian Express Newspapers Bombay Pvt. Ltd. v TM Nagarajan 1987 (15) DRJ 212 (India).
• TK Rangarajan v State of Tamil Nadu 2003(6) SCALE 84 (India).
• Kameshwar Prasad v. Territory of Bihar AIR 1962 SC 1166 (India).

Books

• Dr. VG Goswami, Law of Industrial Relations in India, 2 CENTRAL LAW AGENCY 212 (9th Ed. 2011).

Journal and Web Articles

• A.G. Noorani, A Legitimate Right, 20 FRONTLINE 3 (2003).
• Alex Gourevitch, The Right to Strike: A Radical View, 1 AMERICAN POLITICAL SCIENCE REVIEW 5 (2018).
• Blake Emerson, Nature and Scope of Right to Strike, 49 THE YALE LAW JOURNAL 521 (1940).
• Marc. J Bloch, Public Employees’ Right to Strike, 69 CLEVELAND STATE LAW REVIEW 394 (1969).
• Rajesh Tyagi, The Supreme Court Pronouncement and the Right to Strike, REVOLUTIONARYDEMOCRACY (Oct. 23, 2019 16:33), https://www.revolutionarydemocracy.org/rdv9n2/strike.htm.
• Vijay M. Gawas, Right to Strike under Industrial Disputes Act, 1947 and other laws, 4 INTERNATIONAL JOURNAL OF LAW 28 (2018).
• Seth Kupferberg, Political Strikes, Labor Law and Democratic Rights, 71 VIRGINIA LAW REVIEW 686 (1985).
• Mallikarjun Sharma, Right to Strike, 46 INDIAN LAW INSTT. 523 (2004).

Reports

• Journal of National Human Rights Commission, India, 11 Vol. 7, p. (2008).

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

The post Right to Strike: Proposed Amendment in the Indian Constitution appeared first on iPleaders.

This article is authored by Miran Ahmed who is a student of BBA.LLB(H) at Amity Law School, Kolkata; and deals with the revision of cases in the High Courts under the Code of Civil Procedure.

Introduction

The judgements given by any court can be a result of inadvertent mistakes or human errors which can slip into the proceedings despite due diligence. The law provides for an application to challenge the decision of a subordinate court if the court exceeds its judicial authority or refuses to exercise the powers under its jurisdiction vested by law. Or may decide to revise a case on its own accord if it is felt that a subordinate court has not acted under its jurisdiction. After revision, the court may revise its decision and implement changes. This provision is put in place to maintain fairness and guarantee the accuracy of justice. The Code of Civil Procedure, 1908 is a procedural law related to the administration of civil proceedings in India. It defines the circumstances under which civil cases can be revised by the High Court and lays down the procedure for revision. Revision of a case is different from the review, which is the re-analysing of a case; and appeal, which is the application challenging the judgement of a court.

Meaning

Revision means to go through something carefully, thoroughly and diligently. Cases can be revised by the High Court as it possesses revisional jurisdiction as defined under Section 115 of the Code of Civil Procedure. The High Court has the right to revise cases decided by subordinate courts to ensure delivery of justice and maintenance of fairness.

Nature, Scope and Object

The primary objective of a revisional authority of the High Court empowered by Section 115 is to ensure that no subordinate court acts arbitrarily, illegally, capriciously, irregularly or exceeds its jurisdiction; and allows the High Court to guarantee the delivery of justice while ensuring that the proceedings are conducted in accordance with the rule of law and furtherance of fairness. It must be noted that the judges of subordinate courts have the absolute authority to decide on cases. They do not commit any “jurisdictional error” even when they wrongfully or extra-judicially decide a case. The High Court has the power to revise these jurisdictional errors committed by subordinate courts. This provides an opportunity to any aggrieved party to rectify a non-appealable order by a subordinate court.

The High Court can revise any case by a subordinate court in which no appeal lies when:

1. The subordinate court has exercised jurisdiction not vested in it by law.
2. The subordinate court has failed to exercise jurisdiction vested in it by law.
3. The subordinate court exercises its jurisdiction illegally or with material irregularity or in breach of some provision of the law or by committing some errors of procedure in the course of the trial which may have affected the ultimate decision.

Who may file?

The application for revision can be filed by any aggrieved party once the case is decided, provided that there is no appeal against the case presently. The High Court may then decide to revise the case if the proper cause is discovered such as extra-judicial activity or illegal and erroneous procedure practised by the subordinate court. The High Court may also exercise revisional jurisdiction suo moto under the Code of Civil Procedure.

In the case of S.Muthu Narayanan V. Paulraj Naicker, 2018, the revision petition is dismissed and the order passed previously is confirmed as the revision petitioner has no right to challenge the executability of the decree.

Conditions for Revision

The conditions when the High Court can exercise its revisional jurisdiction is laid down in Section 115 of the Code of Civil Procedure. All these conditions must be met for the High Court to exercise its revisional jurisdiction. These are as follows:

Precedents

The case must have already been decided and judgement declared by the subordinate court. A case cannot be revised if it has not been decided in the first place and no judgement is given. The expression “case decided” was not defined in the CPC, 1908. This gave rise to a number of conflicting decisions on the question of whether the said expression included an interlocutory order also. This conflict was resolved in the case of Major S.S. Khanna V. Brig. F.J. Dillon, 1963 which declared that Section 115 applies even to interlocutory orders. It was observed by Shah J.,“The expression ‘case’ is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained in Section 115 to the entirety of the proceedings in a civil court. To interpret the expression “case” as an entire  proceeding only and not a part of the proceeding would be to impose an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the ‘perpetration of gross injustice.”

In the case of Baldevdas Shivlal V. Filmistan Distributors (India) (P) Ltd., 1969, the Supreme Court held that a case may be said to have been decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in controversy. Every order in the suit cannot be recorded as a case decided.

An explanation was added to Section 115 by the Amendment Act of 1976, on the recommendation of the Joint Committee of Parliament. This makes it clear that the expression, “case decided” includes any order made, or any order deciding an issue, in the course of a suit or any other proceeding. Thus, “any case which has been decided” means each decision which terminates a part of the controversy involving the question of jurisdiction.

No appeal lies

There must not be any appeal lying against the case decided by the subordinate court. The High Court cannot revise a case if there is a pre-existing appeal against the case as the revision interferes with the appeal and vice-versa. The revision can only be filed once the appeal is dismissed. The word “appeal” includes both the first appeal and second appeal. Therefore, the revision can only lie when the appeal is dismissed or does not lie.

Jurisdictional error

The revisional jurisdiction can be applied by the High Court when the subordinate court appears to have:

1. Acted in excess of jurisdiction vested in it by law, or
2. Failed to exercise the jurisdiction vested in it by law, or
3. Displayed material irregularity and exercised its power illegally or in breach of the provisions of law.

Subordinate court

The High Court cannot exercise revisional jurisdiction unless a case is decided by a court which is subordinate to the High Court. Only a court of civil judicature is considered and this does not include any person acting in an administrative capacity. As a general rule, where it is provided that a matter should be decided by a particular court, the presiding officer of such court will act as a court. But where it is provided that a particular judge should decide a matter, the provisions of the statute will have to be considered for determining whether the judicial officer acts as a court or as a persona designata. The revision by the High Court is mainly done to rectify the jurisdictional or procedural errors caused by subordinate courts in the course of proceedings in any case when an application is filed by an aggrieved party.

Alternative remedy

The power of revisional jurisdiction and its application lies under the discretion of the High Court and cannot be claimed as a right by any aggrieved party. Several factors are considered before the authority of revisional jurisdiction is exercised. If there is the presence of an efficacious or alternate remedy available to the aggrieved party, the court may not exercise its revisional jurisdiction and instead suggest the alternate remedy and relief to the aggrieved party. This is done to prevent the misuse of revisional jurisdiction and make it applicable only in cases where necessary.

Limitations on revisional jurisdiction

Article 131 of the Schedule of Limitation Act provides a limitation period of 90 days for filing the revision under the Code of Civil Procedure from the date of decree or order or sentence sought to be revised. Thus, the limitation period prescribed for filing the revision against the impugned order is 90 days. The application for revision must be filed with the High Court within the limitation period.

In the case of Salekh Chand V. Deepak Sharma 2015, During the pendency of the revision petition, an application was filed under Section 5 of the Limitation Act by the revisionist. But it was declared by the Court that Article 131 of the Schedule of Limitation Act stated that the limitation period to file for revision is 90 days. Thus, the revision petition was not barred by limitation and allowed to proceed.

In the case of Samudrala Nagabhushanam V. Venkana Raghavayy, 1966, the Court decided that the petition for revision in this particular case was governed under Section 22 of the Andhra Pradesh Buildings Control Act, 1960 and not Role 41-A(2) of the Appellate Side Rules of the High Court of Andhra Pradesh. Thus, the revision is not barred by limitation.

Suo moto exercise of power

The term ‘suo moto’ means on its own motion or self-decision. The judiciary has the power to revise cases suo moto. This means that the small court has the authority to make its own decision to exercise the power of revision and takes the decision to revise any case on its own accord, i.e. without any application filed by any aggrieved party. The sole decision as to the exercise of the power of revision rests with the court and the aggrieved party is not entitled to receive it. The judiciary takes up a matter on its own on grounds of blatant violation of the law, to maintain public order, to prevent the gross constitutional violation, to remedy grave injustice. This assumes the public at large as one of the parties. Usually, an amicus curiae is appointed in such matters to assist the court. A great amount of public interest rests in suo moto exercise of revisional powers by the High Court.

In the case of Chimanbhai G. Patel V. D.Y. Collector, 1999, it was stated by the Court that a Deputy Collector or Assistant Collector cannot exercise the powers of revision suo moto. Therefore, the order was set aside as there was no jurisdiction in the exercise of revisional powers.

Interlocutory Orders

The Interlocutory order which is often called interim order is a decision of the court given during the proceedings and before the finality of a case to ensure that the interest of either party is not harmed due to or during the process of justice. It settles subordinate issues related to the main subject due to the time-sensitive nature of those issues. Section 94 of Part VI of the Code of Civil Procedure lists the ‘Supplemental Proceedings’ which mentions how the court can issue interlocutory orders to prevent the ends of justice from being defeated. The court can:

1. Issue a warrant for the arrest of the defendant or if he fails to comply with any order for security, commit him to the civil prison.
2. Direct the defendant to produce any property belonging to him and furnish it as security by placing it at the disposal of the Court.
3. Grant temporary injunction and commit a guilty person to a civil prison in case of disobedience, and order his property to be attached and sold.
4. Appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property.
5. Make any such interlocutory orders as may appear before the Court to be just and convenient.

A few examples of interlocutory orders are as follows:

1. Appointment of a Commissioner to conduct search and seizure.
2. Temporary Injunctions.
3. Appointing a Court Receiver to collect any payments or rent.
4. Assign security to maintain a cause.

In the case discussed in Sub-Committee on Judicial Accountability V. Union Of India, 1991, it was held that the Supreme Court will refrain from passing any interlocutory order which has the potential to and may interfere with or has an effect of pre-judgement on any delicate issue on the mail matter.

Death of Applicant

The death of an applicant does not abate the proceedings of the application of revision as revision is not governed under Order 22 of the Code of Civil Procedure. Once the application for revision is filed, the proceedings shall continue despite the death of the applicant and the order shall be given to the legal representative of the applicant.

Doctrine of Merger

The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. It can be observed when litigants agree to a settlement and seek to have their settlement incorporated in a court order. The doctrine of merger cannot be applied universally. It will depend on the nature of jurisdiction exercised by the superior authority and the subject-matter in challenge laid shall determine the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. The High Court possesses the authority to reverse or modify the judgment of a subordinate court in case of a violation of jurisdiction or failure to comply with the jurisdictional rules. The doctrine of merger is based on the principle of union of two conflicting interests which cannot be held by one person at the same time. As observed in Section 111(h) of the Transfer of Property Act, 1882 leasehold rights in favour of the appellants are extinguished under the doctrine of merger.

Procedure of Revision

Revisional jurisdiction of the High Court can be exercised suo moto to ensure the delivery of justice. The authority to revise a case of jurisdictional error of subordinate courts lies with the High Court and cannot be demanded as a right by any aggrieved party. This brings us to the second method which involves an application filed by the aggrieved party for revision. This merely brings the jurisdictional error of the subordinate court to the attention of the High Court which may then decide to revise the case. The application may also be denied if the High Court feels that substantial justice has been done. 

Once the High Court initiates the proceedings, the case is revised to ensure jurisdiction is not exceeded by the subordinate court. But no changes can be made with regards to any decision of the subordinate court even if unlawful, as long as the decision lies within its jurisdiction. After a decision has been made and if there is extra-jurisdictional action by the subordinate court, it is rectified and the reasons are recorded.

Recording of Reasons

The reasons for the dismissal of a case or changes to be applied in case of extra-jurisdictional activity by a subordinate court are to be filed for record. The recording of reasons is done to ensure the court can show cause or prove the basis of its decision for changes made or refusal to make any change with regards to the jurisdiction of the subordinate courts.

Letters Patent Appeal

Letter patent appeal (LPA) is an appeal by a petitioner against a decision of a single judge by another bench of the same court. There are chances that a single judge can go wrong when dealing with facts or laws. Thus, a remedy is provided to challenge the decision of that single judge by a bench of more than one judge of the same court. An LPA petitioner can save costs by challenging the single judge this way rather than move the Supreme Court. Usually, judgment and order passed under Article 226 of the constitution is appealable as LPA, but judgment and order passed under Article 227 is not appealable under this category.

The rules regarding the application of the Letter Patent Appeal is as follows:

1. Letter patent appeal can be filed in the High Court and only in such High Courts that have been established by the letter patent.
2. Division bench can file a letter patent appeal to the Supreme Court. It means it will also include a full bench of 5 judges, 7 judges and also the Supreme Court.
3. Letter patent appeal is the only court established by a letter patent under the constitution and it is called the second appeal.

Distinctions

Revision and Appeal

Revision and Second Appeal

Revision and Reference

Revision and Review

Revision and Writ

Revision and Power of Superintendence

Conversion of Revision into Appeal

The nature and scope of revisional jurisdiction is different from appellate jurisdiction. If an order impugned is revisable, it cannot be converted into an appeal if there is no presentation of appeal in the eyes of law; as seen in the case of Munshi Singh v. Tula Ram (1980 MPLJ SN 61). The second appeal cannot be converted into revision in exercise of discretion, as seen in the case of T.K. Ramanujam Pillai v. Subramaniam (AIR 1967 Mad 298). If the revision is not maintainable, the petitioner can file appeal explaining the delay by filing an application under Section 14 of the Limitation Act along with memo of appeal, as seen in the case of Om Prakash V. Dwarka Prasad, 2004.

Law commission’s view on Revision

The Law Commission states that the following should be kept in mind while exercising the revisional powers of the High Court:

• The ruling of the Court is absolute unless the party to whom it applies can show cause why it should not apply. This is Rule Nisi and should not be issued except under careful and strict scrutiny.

1. The record of the subordinate court should not be called for where no stay in granted. And where it is necessarily required copies are to be produced.
2. All efforts should be made to dispose of the revision within two to three months where a stay is granted.

Conclusion

The power of revision of the High Court is exceptional and should be exercised when necessary in cases where there is a defect in the proceedings due to jurisdictional error in the subordinate courts which may result in a miscarriage of justice and beats the purpose of the rule of law. The revisional powers are granted to the High Courts to ensure that there is a remedy to the aggrieved party in case the system of justice falters due to jurisdictional errors. The High Court has been granted the power to revise a case if it is observed that a subordinate court has not acted according to the power vested in it by law under its jurisdiction.

References

• https://indiacode.nic.in/handle/123456789/2191?locale=en
• https://blog.ipleaders.in/reference-review-revision/#Synopsis
• https://blog.ipleaders.in/interlocutory-applications-and-orders-under-civil-procedure/
• https://blog.ipleaders.in/second-appeal-under-cpc/
• https://indiankanoon.org/doc/237570/
• https://blog.ipleaders.in/need-know-letter-patent-appeal/

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

The post Revision under Code of Civil Procedure, 1908 appeared first on iPleaders.

This article has been written by S.Aditya  who is an alumnus of  K.L.E. Society’s Law College, Bangalore. This article purports to describe the e-commerce aspects of cyber law. The article dwells into the legislation governing e-commerce in India, the author also makes conscious note of the advantages and disadvantages of e-commerce. E-commerce ethics has been discussed in this article as ethics determines the longevity of the business endeavour in any market.

Definition of E-commerce

E-Commerce refers to all the legal and regulatory aspects of the internet and the world wide web. Anything concerned with or related to or emanating from any legal aspects or issues concerning any activity of netizens and others, in Cyberspace comes within the ambit of Cyber Law.

‘Netizens’ is the integrated word comprising Internet + Citizens.

The legal framework of cyberlaw

Legal aspects of all the interactions taking place in the cyber world comprises the legal framework of Cyber Law. For Instance, Cyberlaw includes in its ambit the e-contracts executed via the opening of the website, various economic interactions, it also includes the Punitive provisions for the cyber crimes etc. 

Cyberspace is a virtual medium. It is the conventional means to describe anything related to the Internet and the diverse Internet culture such as social networking, e-commerce, e-governance etc. The all-pervasive nature makes the role of the cyber law policy critical.

Jurisdiction

Since the internet is open to the entire globe and hence jurisdiction rests with all the courts of the world. Netizens: entity or person actively involved in the cyber world also called cyber citizens.

The Information Technology Act, 2000 and Objectives

The Information Technology Act, 2000 was enacted in the backdrop of the Global recognition of the need for the exposition of the cyber regulatory framework. UNCITRAL (United Nations Commission International Trade Law) in the year 1996 adopted the model law on e-commerce to bring uniformity amongst the countries of the globe regarding Cyber regulation. The Information Technology Act elaborates on Data privacy, wherein, with the growth of the Internet, the data of people are online and is vulnerable to be misused. The big data analysis is something which stands testimonial to this concern. Big Data analysis suggests that the searches made by people can be used to persuade the choices of people analysing their pattern of search made.

The new Information technology legislation has by defining cyber café created a better institution for catching hold of the perpetration of cyber phishing, which used to be earlier executed by such Cafe but now after the notification, the personal id has to be submitted to the shopkeeper in order to trace the perpetrator and create deterrence.

The Act by authorizing an inspector to investigate a cyber offence has increased the resource of the cyber investigation by manifolds. Earlier only a commissioner was allowed to investigate into the cyber crimes but after the amendment now the inspector may also investigate into a cyber offence.

The Legislation fundamentally aimed:

• To grant legal recognition to E-commerce which is the transactions carried out by electronic data interchange and other means of electronic means of communication.
• To recognize to keep the books of accounts by the bankers in electronic form: the books of accounts maintained by the bankers have always been a source of evidence and also subjected to scrutiny whereby making the banks answerable.
• To amend the Indian Penal Code, Indian Evidence Act, the Banker’s Book Evidence Act and the Reserve Bank of India Act, the Information Technology Act has recognised the e-evidence in a court of law making access to justice easier and making the Indian legal system dynamics with time.
• To recognize documents filed with the government: the e-Governance has been a great boon to the society in general as the resources are at easier access via the internet and also effectively reduces the need of middle man and hence cutting the need of corruption.
• To recognize Electronic data storage: the government recognises the Digi locker wherein the citizens can access their important documents such as voter id, PAN card, Driving License etc. Another news in hype was the demand made by the government towards the internet service providers to save the data in India.
• To recognize Electronic fund transfer between banks and financial institution: the advent of e-banking has infused a never seen before pace in the banking sector. It may not be wrong to suggest that the advent of net banking has almost brought the bank at the palm of the account holder.
• To recognize the authenticity of digital signature for authentication of any information or matter requiring authentication under law.  

Types of E-commerce 

 E-commerce/e-business may be classified at large in the following six basic types:

Business to Business (B2B)

Refers to all electronic transactions of goods and sales that are conducted between two companies, generally between the producers and wholesalers. The famous website acting as a catalyst between such wholesalers and producers maybe India-mart.

Business to Consumer (B2C)

Various predominant e-commerce persisting in India wherein the customer gets a big market to purchase goods and services. Here, the E-commerce website serves as a platform for the sale of the goods directly to the end-consumer of the products. For instance Flipkart, Amazon, Myntra etc.

Consumer to Consumer (C2C)

Generally this model uses the online platform of money and various social media for its existence. The widespread known phenomenon of “OLX pe Bech de!” can be the best example to understand E-Commerce at the consumer to consumer-level basis. Example: eBay is one global example of this kind of e-commerce.

Consumer to Business (C2B)

When the Customer provides goods or services in exchange for money. For Ex. A customer review or the advertisement of a company by an influencer amongst his followers etc.  

Business to Administration (B2A)

This e-commerce category refers to the services and products offered by the companies to the Public Administration. For Instance: the small company providing IT support to the local administrative body

Consumer to Administration (C2A)

This heading includes all the transaction whereby there is a payment made electronically towards the public administration such as taxes, health appointment.

Important Issues in Global E-commerce

Although E-commerce is something which brings so many advantages and utility it comes with its own set of technical difficulties and consequences. E-commerce being a Global phenomenon, its issues also have global characteristics. Few of the important issues in global e-commerce can be understood as below:

1. Legal aspects of e-commerce: As discussed earlier, the e-commerce model legislation has been accepted by the UNCITRAL, but whenever an international model code is formulated it is accompanied with its own safeguards to the individual state sovereignty wherein the Municipal Legislation keeping the model laws as standards may deviate in accordance to its own municipal laws.
2. E-security: the security of the end-users has always been a matter of grave concern globally since the internet has netted two ends of the globe now it is easier for a person(hacker) to sit in his remote physical location and cause the data or financial breach of the Victims.
3. Jurisdiction: the Internet is open to the globe and hence the jurisdiction of the cases has been given to all the courts.
4. Contracts and Liability: the E-contracts made in the cyber-world have been given legal recognition and the liabilities are also enforceable but the same becomes a mammoth task when parties belong to two different nations and have not made a clause regarding the application of specific law.
5. Taxation: Various facets of taxation such as tax collection, collection of sales tax, determination of taxpayer’s residence, determination of the origin of income, jurisdiction are inherently a difficult task in the plane of taxation, but on integration with the fact of expansion of the market to the present scale of globe the calculation of the Taxes becomes additionally difficult, wherein various nations apply various tax evaluation methods in accordance to their own legislations.
6. Copyrights: Global e-commerce is like an ever-expanding universe of sellers and buyers and products, it becomes difficult to keep a tap at the copyright violation in such a huge number to deal with.

Pros and Cons of E-commerce

Advantages of e-commerce

1. It’s a Business platform unaffected by the barrier of time and distance: the space of functioning of E-commerce is the internet which may be accessed from any point of the globe with minimal setup required. The barriers conventionally faced by any business regarding the limitations of time and distance, is not there for the e-commerce houses.
2. Lowers the Cost of sale: The availability of the big number of options at the very click allows to compare the cost of various commodities and services and allowing to select the best product at the best price.
3. Cheapest means of doing business: the Advantage of having an entity based upon the server is that the business although occupies a digital space in servers but need not invest on the physical space whereby improving the quality of the products via the money saved on the means.
4. Less delivery time and less labour cost etc: the Fundamentals of the pricing of any products or services is the amount of money or sweat invested into it, the e-commerce by annulling the need of physical contact reduces the efforts which might have been otherwise required.
5. Provides solution by decimating cost in price fixation: the major chunk of price fixation depends upon the cost incurred by the business runner since e-commerce reduces the costs incurred by the sellers to a large extent hence it decimates the final cost before reaching the consumer.

Buyer’s Advantages from E-Commerce

1. Reduction in the buyer’s sorting out time: The E-commerce functions predominantly in well-managed websites or applications having various filters to produce the list of products as wanted by the individuals in accordance with their individual needs.
2. Better buyer decision: the availability of various viable options to compare to the E-space becomes an empowering platform in many ways for the customers. The access to the information available on the net about the product makes the customer more enabled to make better-informed choices.
3. Less time spent in resolving invoice and order discrepancies: the major e-commerce players have standardised the resolution of the discrepancies through use of well-trained customer executives or recently trending bots having all the required answers to various queries raised before it.
4. Increased opportunities for buying alternative products: availability of so many options at the very click allows the consumer to compare the cost of various commodities and services and allowing to select the best product at the best price and also venture into the purchase of the alternative products.

Disadvantages of e-Commerce

1. Fewer people using E-commerce:  Indian trade depended heavily on the local traders and businessmen who were unorganised to run the show at the grassroots levels. Average household still prefers the physical market over e-market, there has been a great increase in the number of internet users but it has yet not attained the preference similar to the level of Local markets. 
2. Unable to personally or physically examine the product: the physical examination of the product has always been a must for a conventional purchase of commodities, giving the purchaser a sense of control over the quality of the goods or services to be consumed, but in the era of e-commerce these conventional methods are losing their glory.
3. Special and costly hardware and software are required: Although the presence in the digital world requires lesser investments that of physically purchasing a place but, the spending on the software then increases and so does the spending on the hardware.
4. The website must be maintained and updated regularly: the platform of communication between the consumer and the seller being the internet, regular maintenance of the same is a must in order to keep up the tempo of the services offers to rise.
5. Skilled people are required to maintain the website: the skilled people are required to not just maintain the level but to constantly keeping on improving into a better and better platform as it provides the safety to the surfers of the website from the antagonist software or viruses. 
6. Not suitable for perishable commodities: the situations where the money has to be spent on e-commerce items ends up increasing the investment made by the seller hence reducing his profits. Hence e-commerce is not suitable for Perishable commodities. But the entities such as that of Big Basket have tapped into this market sector of the consumers already.

Ethics in e-commerce

Ethics is always a crucial component of any field. The ethics in e-commerce is very important as the unethical or oppressive behaviour of a business entity may ruin the balance of the market. The Company’s core values and its guiding principles are very crucial for a new business to operate and forms a part of the Company’s ethics. The ethical and legal duty of the Company to maintain the secrecy of the data of the customer and invest upon the encryption of the same to save it from the hackers. The Ethical duty of the Companies also includes not to make a misleading statement regarding its products, i.e. they must not promise stars to the consumers just to gain the loyalty of the consumers.

Conclusion

The E-commerce though different in its digital presence from a brick and mortar business entity faces its own set of advantages and disadvantages. The legislation of the Information Technology Act, 2000  was made so as to make a cyber regulatory framework in accordance to the model laws passed in UNCITRAL. There are various kinds of e-commerce based upon the entities between whom transaction takes place. These e-commercial transactions pose various problems of the nature of security, jurisdiction, taxation etc. on global scale. The advantages and disadvantages of e-commerce are the facets of the system which has to be understood while dealing with the e-commerce system. Ethics, as discussed towards the end of the article, plays a crucial role in establishing the entity’s image in the market.  

References

[1] The Information Technology Act, 2000

[2] The Model Law on Electronic Commerce (MLEC)

[3] E-Commerce Advantages and Disadvantages

[4] Engaging in Ethical E-Commerce

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

The post An Overview on E-Commerce Under Cyberlaw appeared first on iPleaders.

This article is written by Avni Kaushik.

Introduction

The Constitution is nothing but a legal document. India’s Constitution is India’s supreme law. It defines the fundamental rights and duties of the citizen of India. It is the world’s largest written constitution which contains 448 articles in 25 parts and 12 schedules. But when it was drafted on November 26, 1949, it had 395 articles in 22 parts and 8 schedules. The title of Part I of the constitution is the Union and its Territory. This part is covered by articles 1 to 4. Let’s speak in-depth about the union and its territory.

Union and its territory (Article 1- 4)

Article 1 to 4 of Part I of the Constitution explains the Union and its territory.

Article 1 of the Constitution defines India, that is, Bharat as a ‘Union of States’. The reasons behind this made clear by Dr. B.R. Ambedkar in the Constituent Assembly. Ambedkar said the Indian Federation was a “Union” because it was inseparable, and no State had the right to withdraw from the Indian Union. He said “The Drafting Committee wanted to make it clear that while Indian was going to be a federation, the federation was not the product of an agreement between states to join the federation, and that since the federation was not the consequence of an agreement, no State had the right to withdraw from the federation. The Union is a federation because it is indestructible. Although for the convenience of administration, the country and people can be divided into different States, the country is an integral whole, its people a single people living under a single imperium coming from a single source. The Americans had to wage a civil war in order to make sure that their federation was indestructible and the States had no right of secession. The Drafting Committee was of the opinion that it was better to make it clear at the outset than to avoid speculation or dispute”.

It is necessary to distinguish the phrases ‘Union of India’ and ‘Territory of India’. The Union of India includes only those States which enjoy the status of being members of the federal system and share the distribution of powers with the Union. The Union Territories are not included in the Union of states whereas the term Indian Territory includes not only the States but also the Union Territories and other territories that India may acquire. In the First Schedule of the Constitution, the States and Territories are specified.

Article 2. Admission or establishment of new States

Parliament may by law admit into the Union or establish, new States on such terms and conditions, as it thinks fit.

Explanation

Article 2 of the Constitution confers power on the Parliament to admit or establish new States. Parliament has admitted by using this power, for example, the French settlements of Pondicherry, Karaikal, etc.

Article 2 concerns the admission or establishment of new states which were not part of India.

Article 3: Formation of new States and alteration of areas, boundaries or names of existing State 

Explanation

Parliament may increase or decrease the area of any State or may alter the borders or names of any State. In this respect, Parliament follows the following procedures.

Step 1: Either House of Parliament, on the recommendation of the President, may introduce a bill giving effect to any or all of the amendments set out above.

Step 2: If such a bill affects the boundary or the name of a State, the President shall refer the bill to the State Legislature concerned before putting it before the Parliament for its opinion.

Step 3: If the State Legislature fails to express an opinion within that time limit, it shall be deemed to have expressed its opinion. The Parliament is not bound to accept or act on the views of the State Legislature, even if the State has submitted its views within a period of time.

In the case of Union Territories, before such a bill, it is not necessary to seek the views of the Legislatures of Union Territories, For example, such Bills concerning Mizoram, Arunachal Pradesh, Goa, Daman, and Diu were introduced in Parliament without obtaining such views.

Article 3 thus demonstrates the vulnerability and dependence of the territorial integrity of the States on the Union, whereas, in federations such as the USA or Australia, the borders or names of States can not be changed by the Federation without the consent of the States.

Article 4 states that any law referred to in Article 2 or Article 3 shall contain such provisions as required to amend the 1st Schedule and IV Schedule in order to give effect to the provisions of the law and may also contain such specific, incidental and consequential provisions as the provisions may be considered necessary by the Parliament. may deem necessary. 

Explanation

Article 4 allows for consequential changes to the First Schedule (names of the States in the Union of India) and the Fourth Schedule (number of seats allocated by each State to the Rajya Sabha). It also notes that it does not consider a constitutional amendment under Article 368. It also states that no law existing States or creating a new State will be considered a constitutional amendment. It is in line with the previous provisions of the requirement, of a simple majority in Parliament and suggests full control of the Union over the territories of the individual States of the Union.

The accession of Indian States to the dominion of India

Before the Indian partition of 1947,  584 Princely States existed in India, often known as the Native States, which were not fully and formally the part of British India, areas of the Indian subcontinent which had not been invaded or occupied by the British, but under partial control, subject to subordinate alliances.

The era of the princely states effectively ended in 1947 with Indian independence. Around 1950, almost all principalities had either acceded to India or Pakistan. The process of accession was largely peaceful, with the exception of Jammu and Kashmir (whose ruler opted for independence but decided to join India after invasion by Pakistani forces), Hyderabad (whose ruler opted for independence in 1947, followed a year later by Indian police action and annexation of the state),

Junagarh (whose ruler joined Pakistan but was annexed by India).

While India officially gained independence, there was a desire for state reorganization in a different part of India. While the demand for new states was mainly based on language, constitutional makers held a variety of views. But since the Constituent Assembly did not have enough time to examine such a huge issue and administrative difficulty, they formed a Commission to investigate the matter.

Dhar Commission

Accordingly, in June 1948, the Constituent Assembly announced the establishment of the Commission of the Linguistic Provinces, chaired by S.K. Dhar, to examine the feasibility of this. In this report ( December 1948), the Commission recommended that the reorganization of the Member States be based on administrative convenience rather than on a linguistic basis.

JVP Committee (Jawaharlal Nehru and Vallabhbhai Patel) 

The Dhar Commission report produced general disappointment and led to the appointment by the Congress in December 1948 of another Linguistic Provinces Committee, made up of three members, namely Jawahar Lal Nehru, Vallabhbhai Patel, and Pattabhi Sitaramayya, and thus popularly known as the JVP Committee. In its report (1949), the Committee reaffirmed the position of the Dhar Commission. The Committee also recommended that the creation of new provinces should be postponed for a few years so that they could concentrate on other matters of vital issues and not allow ourselves to be distracted by this issue. The study also stated that if public opinion is insistent and overwhelming, they have to submit to it as Democrats subject to certain restrictions on India’s good as a whole. 

Arrangement of States as on 26th January, 1950

In the meantime, the Republic of India came into existence on 26 January 1950. The constituent units of the Indian Union have found themselves classified into Part A, Part B, Part C, and Part D. This was only a temporary arrangement, as a satisfactory solution could not yet be found.

• Part A States included the provinces of the former governors. The nine States of Part A were Assam, Bihar, Maharashtra, Madhya Pradesh (formerly Central Provinces and Berar), Madras, Orissa, Punjab (formerly East Punjab), Uttar Pradesh (formerly United Provinces), and West Bengal.
• Part B States included the former Princely States. Part B States were Hyderabad, Jammu, and Kashmir, Madhya Bharat, Mysore, Patiala, and the Eastern Punjab States Union (PEPSU), Rajasthan, Saurashtra, Travancore-Cochin and Vindhya Pradesh.
• Part C States comprised both the provinces of the former Chief Commissioners and some of the Princely States. Part C States were Ajmer, Bhopal, Bilaspur, Cooch-Behar, Coorg, Delhi, Himachal Pradesh, Kutch, Manipur, and Tripura. 
• The Andaman and Nicobar Islands were the only State in Part D.

Continuation of demands for linguistic States

Demands for the formation of States on a linguistic basis have increased further. In October 1953, after the long-drawn agitation and death of Potti Sriramulu after a 56-day hunger strike for the cause,  the Government of India was forced to create the first linguistic state, Andhra Pradesh, by separating the Telugu-speaking parts of the Madras State.

Fazal Ali Commission

The creation of the Andhra State increased the demand from other regions for the formation of States on a linguistic basis. In December 1953, the Government announced the creation of a Reorganization Commission of three-member States, chaired by Fazal Ali, to examine the whole problem. The two other members of the Commission were H.N. Kunzru and K.M. Pannikar. In its report, the Commission sought a balanced approach between regional feelings and national interests. The Commission proposed abolishing the four-fold division of states in keeping with the original Constitution and recommended the establishment of 16 states and 3 central territories. 

The Commission also established the following four main principles as the basis for reorganization-

1. Preserving and enhancing the security and unity of the country;
2. Financial, economic and administrative viability;
3. Linguistic and cultural homogeneity;
4. And the scope for the successful implementation of a development plan.

The States Reorganization Act,1956

It entered into force in November 1956. This Act and the Seventh Constitutional Amendment Act of 1956 abolished the distinction between Part A and the Part B States and the Part C States. Instead, they were classified into two categories: states and territories of the Union. This Act provided for 14 States and 6 Union Territories to be established as follows:

States

Assam, Andhra Pradesh, Bihar, Bombay, J&K(by the instrument of accession), Kerala, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, and West Bengal. 

Union Territories

Andaman & Nicobar Islands, Delhi, Himachal Pradesh, Laccadive, Minicoy & Amindivi Islands, Manipur, and Tripura. 

The New States and Union Territories created after 1956

• The Bombay Reorganization Act, 1960, divided the State of Bombay into two States, Gujarat and Maharashtra.
• The Nagaland State Act 0f 1962 established Nagaland as a separate State.
• The Punjab Reorganization Act,1966, split Punjab into Punjab and Haryana.
• The new State of Himachal Pradesh, consisting of the existing Union Territory of Himachal Pradesh, was established by the State of Himachal Pradesh Act, 1970.
• The New States of Manipur, Tripura, Meghalaya and Union Territories of Mizoram and Arunachal Pradesh have been established by the North Pastern Areas (Reorganization) Act, 1971. Later Mizoram and Arunachal Pradesh were granted statehood by the State of Mizoram Act, 1986 and the State of Arunachal Pradesh Act, 1986.
• The new State of Sikkim was established by the Constitution Act (36th amendment) of 1975.
• Goa was incorporated as a separate State of the Union by the State of Goa Act, 1987.
• Chattisgarh was formed as a result of the Madhya Pradesh Reorganization Act, 2000, which came into force on 1 November 2000.
• Uttranchal came into existence on 8 November 2000 under the Uttar Pradesh Reorganization Act, comprising the northern districts of Kumaon and the Garhwal hills of Uttar Pradesh.
• The State of Jharkhand was established by the Bihar Reorganization Act 2000 of 15 November, consisting of 18 southern districts of Chhota Nagpur and Santhal Pargana of Biha.
• The State of Telangana was established by the Andhra Pradesh Reorganization Act 2014 and came into force on 2 June 2014.
• On 31 October 2019, the act reconstituted the former state of Jammu and Kashmir into two union territories, Jammu and Kashmir and Ladakh.

Case Laws

Berubari Union case, 1960

In this case, the supreme court held that the power of Parliament to diminish the area of a State (under Article 3) does not cover the cession of Indian territory to a foreign country. Indian territory can be ceded to a foreign state only by amending the Constitution Under Article 368. Consequently, the 9th Constitutional Amendment Act (1960) was enacted to transfer the said territory to Pakistan.  Supreme Court in 1960 ruled that the Settlement of a boundary dispute between India and another Country does not require a Constitutional amendment. It can be done by executive action as it does not involve cession of Indian territory to a foreign country.

Mullaperiyar Environment Protection Forum V. Union of India, (2006) 3 SCC 643: AIR 2006 SC 1428

In this case, the validity of Section 108 of the State Reorganization Act, 1956 which allows for the continuation of existing agreements between the existing states at that time. The Court held that the legislative powers referred to Article 3 and Article 4 are supreme and not subject to or bound by Article 246 and List II and List III of the Seventh Schedule. It also held that the constitutional validity of the legislation referred to Article 3 and Article 4 can not be questioned on the grounds of lack of legislative competence in relation to the list in the Seventh Schedule. 

Ram Kishore Sen v. Union of India, AIR 1966 SC 644, 648: (1966) 1 SCR 430

The Constitutional Act (18th amendment) 1966 adds two explanations to Article 3, incorporating the decision of the Supreme Court in this case, which clarified the term “State” in the term “State” which includes the term “Union Territories” but since there is no such necessity with regard to the provision of Article 3, it is also provided that the term “State” does not include the term “Union Territories”. The reason is that, in the event of a change and alternation in the borders of the State, it is necessary to seek the opinion of the States concerned; but since the Union Territory is governed by the Parliament itself, the inclusion of the Union Territory in the term “State” would have been redundant. The second explanation further clarifies the Parliament’s Power. It provides that Parliament’s power under Article 3 clause (a) includes the power to form a new State or Union Territory by uniting a part of any State or Union Territory with any other State or Union Territory.

Conclusion

It said that the Constitution is the supreme law of the land. The Parliament is a body empowered to make laws for the welfare state, but in doing so, the Members of the Parliament need to ensure that the legislation that is presented and enacted does not derogate from the constitution and, above all, does not have to be in breach of the basic structure of the constitution of India.

Reference

• https://blog.ipleaders.in/laws-governing-union-and-its-territories-under-indian-constitution/
• https://en.wikibooks.org/wiki/Constitution_of_India/Union_and_territory
• https://indiankanoon.org/doc/1406924/ 
• https://www.brainyias.com/the-union-and-its-territory/ 

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

The post Union and Its Territory Under Indian Constitution appeared first on iPleaders.

This article is written by Mehar Verma, a 3rd-year law student, from Jindal Global Law School, Sonipat. In this article, the author talks about the meaning and importance of the concept of consideration and doctrine of promissory estoppel under the Indian Contracts Act, 1872.

Introduction

To form a contract enforceable by law, there must be a valid consideration. For example, ‘A’ asks ‘B’ to paint his wall but B refuses. In this case, neither party has any obligation as there was no consideration thus no contract. However, if ‘A’ asks ‘B’ to paint his wall and in return, he would pay Rs. 100, it gives rise to a legally enforceable contract.

Now if in the same example, when ‘A’ was asked to paint the wall, he said I will not paint your wall but I will provide you with paints and on this promise, ‘B’ started painting his wall, ‘A’ would be liable, even if there was no consideration. This is known as promissory estoppel.

What is consideration?

According to Section 2(d) of the Indian Contracts Act, 1872, when at the desire of the promisor, the promisee or any other person does or abstains from doing an act, such an act is called the consideration for the promise. Section 2(d) explicitly mentions ‘at the desire of the promisor’, thus an act, abstinence or promise at the desire of the third party is not covered. However, the consideration from the promisee need not benefit the promisor and can move from the promisee as well as a third party. For example, ‘Y’ asks Mr. Jain to purchase certain books from Jaipur and in return, you would pay Mr. Jain. As soon as Mr. Jain accepts the offer, there will be a binding contract on both parties. In this example two promises that are taking place:

1. Mr. Jain (promiser) promises to purchase the books from Jaipur for ‘Y’ (promisee);
2. ‘Y’ (promisor) promise to pay Mr. Jain (promisee).

Further, a consideration given may be executory consideration, past consideration or executed consideration:

• Executory consideration: When consideration consists of promises to be fulfilled in the future, each promise is the consideration for the other. These promises are called reciprocal promises. Both sides have rights and obligations in such instances. Consideration is termed as executory. For example, Mr. Sharma agrees to sell his car to Mr. Gupta on April 15th, 2017. They negotiate the price of the car and settle upon a purchase price of Rs.4,00,000. Mr. Sharma says he will deliver the car to Mr. Gupta’s house on April 15th at 11 am and Mr. Gupta says he will give him a cheque for Rs. 4,00,000 at such time.
• Past Consideration: According to Section 25(2) of the Indian Contracts Act, 1872, past considerations are valid. In India, when a person has already voluntarily done something for the promisor, it amounts to past consideration.

In Webb v. McGowin, the appellant saved the life of McGowin by preventing a block from falling on his head and in doing so, he injured himself. After the incident, McGowin promised to provide maintenance to the appellant. The maintenance money was received only for some years and then the appellant filed a suit claiming maintenance. The court held that even though there was no original duty to pay on the promisor, the subsequent promise to pay for the voluntary act done for the benefit of the promisor would amount to consider and thus the appellant is entitled to claim maintenance

• Executed consideration: Executed consideration exists when an act is performed in return for a promise, the promise is unilateral. The liability exists on one side and not on both sides. For example, Mrs. Anand advertises that whoever finds her lost dog will be rewarded with Rs. 25,000. When Ram finds the dog and goes to Mrs. Anand, the liability only remains on the part of Mrs. Anand. The act of Ram in finding the dog and returning it to Mrs. Anand constitutes not only his acceptance but also his consideration which he has already performed.

Requirements of consideration

From the understanding of Section 2(d) of the Indian Contracts Act, 1872, the following features are essential to constitute a valid consideration:

Consideration must move at the desire of the promisor

If an act is done at the desire of a third party or voluntarily, then there is no valid consideration. Consideration must always move at the desire of the promisor, as there is privity to consideration, in India. For example, if ‘A’ sees ‘B’ drowning and out of his goodwill he saves ‘B’, he cannot later claim any reward or compensation for his effort, as the act was not done at the desire of ‘B’ (promisor).

Consideration may move from the promisee to any other person

As per Section 2(d) of the Act, consideration can be made to a stranger in India. However, it is important to remember that there can be a stranger to consideration but not a stranger to the contract. For example, ‘A’ was given a car by ‘X’, on the condition that he would pay installments to B. However, ‘A’ failed to make payments and argued that as ‘B’ was not entitled to compensation. However, as Section 2(d) provides that ‘promisee or any other person’, ‘B’ is allowed to maintain his suit for recovery.

Must have value in the eyes of the law

According to explanation 2 of Section 25, the inadequacy of consideration, does not make a contract void and thus the court does not question the adequacy of the consideration made. However, the court ensures that the consideration was given with free consent and there was no fraud of any kind.

Should be beyond the promisor’s existing obligation

If the consideration given does not add or is not different from the already existing obligation of the promisor, then it is not a good consideration. For example, ‘A’ is obligated by law to appear before the court and ‘B’ gives him a consideration to appear as a witness in the same case. As the consideration given is not beyond the promisor’s existing obligation, it will not be a valid consideration for a promise.

Cannot be unlawful

The consideration made should not be for unlawful or illegal purposes. No suit for recovery can be claimed when the consideration is against the law. For instance, ‘A’ promised to give ‘B’, a certain amount of money for kidnapping ‘C’. If A fails to fulfill his promise, then ‘B’ cannot claim any remedy in any court of law as the purpose of the contract was illegal.

Promissory Estoppel

For a contract to be effective there must be an offer, acceptance, and consideration. Now consider the following example, ‘A’ while shopping with her uncle ‘B’ comes across a jewelry store. Her uncle seeing her excitement promises her that he will pay her next week and she can buy whatever she wants. Relying on her uncle’s promise, ‘A’ buys a diamond ring however, later ‘B’ refuses to pay. ‘A’ is very upset and angry, but she does not have any option as she feels the court would say no consideration means no contract and thus she has no remedy. The situation is unfair as ‘A’ relied on the promise made by ‘B’, which caused her injury and thus she goes to her advocate. The advocate explains to ‘A’ that she does not have to be upset as she can use the doctrine of Promissory Estoppel.

The principle of Promissory Estoppel states that when one party by his words or conduct makes a clear and unequivocal promise to another, with the intention to make a legal relationship in future, and with the intention or knowledge that the other party would act upon such a promise and it is in fact acted upon by the other party, then the party making the promise can’t go back and it is liable to act upon the promise made. In other words, Promissory Estoppel imposes liability on the person making promise even when the promise is made without consideration. Section 115 of the Indian Evidence Act, 1872 defines the principle of promissory estoppel as “ When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.” Thus to apply promissory estoppel, there must be:

1. A promise;
2. A reasonable expectation of reliance on that promise and;
3. An injury resulting due to reliance on such a promise.

In Central London Property Trust v High Trees House Ltd, the court laid down that promises made with the knowledge of the promisor that such promises are going to be relied upon, must be honored and such promises are to be enforced even though there is no consideration from the promisee.

Acts did at the promisor’s request

An act done at the promisor’s desire even when it is of no personal significance to the promisor is considered a good consideration. In Kedarnath Bhattacharji v. Gorie Mohammad, the plaintiff entered into an agreement to build a city hall in Howrah, provided sufficient subscription could be collected for the purpose of building the hall. The defendant was one of the subscribers, and on the faith of such a subscription, the plaintiff entered into a contract with a contractor for building the hall. The defendant failed to pay the amount and argued that as there was no consideration for his promise, he shall not be liable. The court held that the defendant would be liable as he knew the purpose for which the money was subscribed and it was on his promise to subscribe that the plaintiff entered into a contract with the contractors. Once a promise to pay for the performance of an act is made, it cannot be taken back once the promisee entered performance.

The promise of charitable nature

When the promise is of a charitable nature, ie. no request is made by the promisor to the promisee, to do an act, then such a promise would be bare promise without consideration. In Doraswami Iyer v Arunachala Ayyar, more money was required for reparation of a temple which was already in progress and thus subscriptions were called. The defendant put himself in the subscriber list but later on refused to pay and thus a suit for specific performance was filed by the plaintiff. The court dismissed the suit and it was held that in order for consideration to take place there must have been some request by the promisor to the promisee to do something in consideration of the promised subscription. As in this case, there was no bargain between the parties and the promisee did not act upon on something more than a bare promise, there is no consideration.

Unilateral promises

A contract where there is a promise from one side only and it intends to induce some action from the other party is called a unilateral contract. For example, if A and B enter into a contract wherein A offers to pay Rs. 1000 to B, if he puts his car into the garage. B has no legal obligation to put the car into the garage, but if he does so, A has to pay Rs. 1000The promise is not bound to act, but if he acts, he can hold the promisor to his promise and thus there is no consideration if the promisee has done nothing.

Revocation of unilateral promises

A unilateral promise can be revoked before the promisee acts upon the promise. However, it cannot be revoked after the promisee in some manner or other has embarked towards the promise made The decision laid down in Kedarnath Bhattacharji v. Gorie Mahomed, states that doing so is impossible as in this case the defendant was held liable as soon the contract for construction hall was entered into.

If the promisor is at the liberty to revoke at any stage it would be unfair to the promisee, on the other hand, if he has no such liberty it is unfair to the promisor as the promisee may frustrate the contract at any point.

Promissory estoppel and government agencies

The government agencies are immune from the operation of promissory estoppel. In Delhi Cloth and General Mills Ltd v Union of India, it was held that the only indispensable requirement for applying the doctrine of promissory estoppel is that the party asserting the estoppel relied upon the representation made to them and thereby altered their position.

Estoppel of licensee

While determining the estoppel of licensee, unreasonableness and the interest of the public is to be considered in the totality of the circumstances. In Lekh Raj v State of Rajasthan, the court estopped an owner of the liquor license from saying rights given to the government, like the power to vary issue price of the liquor were unreasonable.

Conclusion

A consideration to be valid under Section 2(d) of the Indian Contracts Act, must move at the desire of the promisor, must have value in the eyes of law, should be beyond the promisor’s existing obligation, and cannot be unlawful. The consideration can be made in the past, present or future. Acts have done at the request of the promisor, even when there is no personal benefit to the promisor are considered a good consideration and are enforceable by law. The doctrine of promissory estoppel makes the person liable for his representation or conduct, relying on which the other party acted.

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

The post Consideration and Promissory Estoppel Under Indian Contract Act, 1872 appeared first on iPleaders.

This article is written by Pranjal Rathore studying in Maharashtra National Law University, Aurangabad pursuing B.A.LL.B.(Hons.). This article deals with the concept of the legality of the objects & consideration.

Introduction

“No polluted hand shall touch the pure fountains of justice.”

Section 23 of the Indian Contract Act, 1872 (“Act”), specifies three issues, for example, consideration for the agreement, the object of the agreement and the agreement in essence. Section 23 makes a restriction on the freedom of an individual in connection to going into agreements and subjects the privileges of such individual to the overriding contemplations of public policy and the other provisions articulated under it. Section 23 additionally discovers its bearing from Section 264.

The word “Object” used in Section 23 indicates and signifies “purpose” and doesn’t imply importance in a similar sense as “consideration”. Therefore, despite the fact that the consideration of an agreement might be legal and genuine, that won’t stop the agreement from being unlawful if the purpose (object) of the agreement is illicit. Section 23 limits the courts since the section isn’t guided by the thought or motive, to the object of the exchange or transaction fundamentally and not to the reasons which lead to the equivalent.

Click Here

Difference between Agreement and Contract

The points given beneath are generous and very substantial so far as the distinction between contract and agreement is concerned:

Essentials of Valid Consideration

According to Section 2(d) “When, at the desire of the promisor, the promisee or some other individual has done or refused to do, or does or refrains from doing, or vows to do or to keep away from doing, something, such act or restraint or guarantee is known as a consideration for the guarantee.”

According to Section 23, the thought or object of an agreement is lawful, unless:-

“It is prohibited by law; or is of such a nature that, whenever allowed it would quash the provisions of any law or is false; or includes or suggests, damage to the individual or property of another; or the Court views it as immoral, or restricted to public policy.”In every one of these cases, the consideration or object of an agreement is said to be unlawful. The meaning of consideration given in Section 2(d) of the Indian Contract Act, 1872 is fairly a practical and pragmatic definition. 

The reason for this is to stress the straightforward actuality that consideration is some act done or vowed to be done, at the desire of the promisor. It additionally stays away from the practical challenges brought about by the hypothesis of consideration as comprising of some act which is helpful to one party or inconvenient to the other. The Act simplifies the issue by saying that any sort of act or forbearance which is done or attempted to be done at the desire of the promisor is adequate consideration.

At the desire of Promisor 

The meaning of consideration in Section 2(d) unmistakably stresses that an act will not be a great consideration for a guarantee except if it is done at the desire of the promisor. 

“In Durga Prasad v. Baldeo, the offended party, on the request for the collector of a town, worked and built at his own cost, certain shops in a bazaar. The shops came to be occupied by the defendants who, with regards to the offended party having exhausted cash in the development, vowed to pay him a commission on articles sold through their office in the bazaar. The offended party’s activity to recover the commission was dismissed.”

The main ground for the creation of the guarantee is the cost incurred by the offended party in setting up the Ganj(market) however it is clear than anything done in that manner was not ‘at the desire’ of the defendants in order to establish consideration. The act was the aftereffect of not the promise but rather of the collector’s order. 

Acts Done at Request 

Then again, an act done at the promisor’s desire is a is of good consideration for his promise regardless of whether it is of no personal use or advantage to him. The decision of the Calcutta High Court in Kedar Nath v. Gorie Mohamed has got outstanding recognition in this regards.

It was thought proper to raise a town corridor at Howrah provided that adequate membership could be got together for the reason. To this end, the Commissioners of Howrah district set out to work to get vital funds by public membership. The litigant was a supporter of this reserve for Rs. 100 has marked his name in the membership book for that sum. On the confidence of the guaranteed membership, the offended party went into an agreement with a contractual worker to manufacture the corridor. However, the defendant neglected to pay the sum fundamental to assemble the corridor. In any case, the defendant neglected to pay the sum and fought that there was no consideration for his promise.

He was, therefore, held liable wherein People were asked to buy, knowing the reason for which the cash was paid; they realized that on the confidence of their membership, a commitment was to be brought about to pay the contractor for the work. The promise was: ‘in light of your consenting to go into a contract to raise the corridor, I attempt to supply cash for it.’ The act of the aggrieved party in entering into a contract with the contractual worker was done at the longing or desire of the defendant (the promisor) to comprise consideration inside the significance of Section 2(d). It was to be promised to pay for the presentation of an act and it couldn’t have been repudiated once the promise entered execution. 

Promisee or some other individual 

The subsequent striking feature of the definition in Section 2(d) is that the act which is done is to establish a consideration might be finished by the “promisee or some other individual”. It implies accordingly, that as long as there is a consideration for a guarantee, it is insignificant who has furnished it. It might move from the promise or if the promisor has no complaint, from some other individual. This guideline has its beginning in the English customary law, having been adopted by the Court of King’s Bench as early as 1677 in Dutton v. Poole: 

An individual had a girl to wed and so as to give her a marriage partition he proposed to sell a portion of wood which he had at the time. His child (the respondent) guaranteed that if “the dad would forbear to sell at his request, he would pay the girl £1,000.” The dad as asked forbore and sold it however the defendant didn’t pay. The girl and her husband sued the defendant for the sum. Obviously, the defendant gave his guarantee to his dad and it was the dad alone who, by swearing off selling the wood, had furnished consideration for the promise. The offended party was neither conscious of the agreement nor keen on the consideration.

In any case, it is similarly certain that the entire object of the agreement was to give a portion to the offended party or plaintiff. It would have been exceptionally unjust to enable the child to keep the wood but then to deny his sister of her portion. He was appropriately held liable. 

Position of Beneficiary who isn’t a Party

Major suggestions of English law referred by the Lordship Viscount Haldane are:

1. Consideration must move from the promisee and the promisee only, in whatsoever condition. On the off chance that it be furnished by some other individual, the promisee turns into a stranger to the consideration and in this manner, can’t authorize the promise;
2. An agreement can’t be authorized by an individual who isn’t involved with it despite the fact that it is made for his advantage. He is an alien to the agreement and can claim no rights under it.

These recommendations were shaped because of the Tweedle v. Atkinson case, which established the foundation of what in this way came to be known as ‘privity of contract’, which implies that an agreement is an agreement between the parties in particular and no third individual can sue upon it in any event when avowedly he is profited. Whitman J. believed it to be a built-up guideline “that no stranger to the consideration can exploit an agreement, although made for his advantage”.

Along these lines, in spite of the fact that the sole object of the contract was to tie down an advantage to the offended party, he was not permitted to sue as the contract was made with his dad and not with him. This rule was certified by the House of Lords in Dunlop Pneumatic Tire Co. v Selfridge and Co.

Offended parties (Dunlop and Co.) offered certain merchandise to one Dew and Co. furthermore, verified an understanding from them not to sell the merchandise underneath the listed cost and that in the event that they offered the products to another dealer, they would get a similar undertaking to maintain the price list.

Dew and Co. offered the engine tires to the litigants (Selfridge and Co.) who made a deal to avoid offering the tires to any private client at not exactly the listed costs. The offended parties sued the respondents for breach of the agreement. It was held that accepting the plaintiffs’ were undisclosed principals, no consideration moved from them to the defendants and that the agreement was unenforceable by them. 

Privity of Consideration

In India, the two examples referenced above are not at any condition pertinent. Here, in the perspective of the reasonable language written down in Section 2(d), it isn’t fundamental that consideration ought to be furnished by the promise. A promise isn’t enforceable if there is some consideration for it and it is very insignificant whether it moves from the promise or some other individual. 

The decision of the Madras High Court in Chinnaya v. Ramayya was: An old woman, by deed of gift, gifted certain property to the litigant, her girl. By the provisions of the deed, which was enrolled, it was stipulated that an annuity of Rs. 653 ought to be paid each year to the offended party, who was the sister of the old woman.

The defendant, executed an Iqrarnama (understanding) promising to give impact to the stipulation, in favour of the plaintiff. The annuity was, however, not paid and the offended party sued to recover it. Unmistakably, the main consideration for the litigant’s guarantee to pay the annuity was the gift of specific lands which was by the old woman to the respondent, the defendant, in this way, attempted to protect herself on the ground that the promise (the offended party) had furnished no consideration for the same.

Briefly, the entire case was: the litigant’s promise was given to the offended party, however, consideration was furnished by the offended party’s sister.

The court could have effectively enabled the offended party to recover the annuity, as consideration can be given by “some other individual” and is similarly powerful. The court arrived at a similar outcome yet to some degree on a diverse ground. 

Innes J. attempted to compare the circumstance with the realities of Dutton v. Poole. All things considered, the respondents’ sister would have gotten the marriage partition but for the litigant’s promise. In this present case additionally, it gave the idea that the offended party was at that point getting from her sister an annuity of like sum out of the estate and when the estate was given over to the litigant, it was stipulated that the payment to the offended party ought to proceed and she promised in the same manner.

That implies that the inability to keep the promise would have denied the plaintiff of an amount which she was already receiving and it is a legal commonplace that if a promise causes some loss, then it is sufficient consideration for the promise. Thus, the plaintiff had given consideration.

Unlawful agreements

In Bovard v. American Horse Enterprises (1988), the California Court of Appeal for the Third District refused to execute an agreement for the payment of promissory notes utilized for the acquisition of an organization that manufactured drugs and the similar sort of stuff. Despite the fact that the things sold were not really unlawful, the court refused to honour the agreement for public policy concerns.

In Canada, one most-cited instance of absence of enforceability dependent on lawlessness is Royal Bank of Canada v. Newell, in which a lady even without asking her husband, forged her husband’s signature on 40 cheques, totalling over $58,000. To shield her from prosecution, her husband marked a letter of purpose arranged by the bank in which he consented to accept and assume “all obligation, liability, duty” for the forged cheques. However, the agreement was unenforceable, and was struck somewhere by the courts, as a result of its basic objective, which was to “stop a criminal prosecution”.

Due to the agreement’s lawlessness, and therefore voided status, the bank had to restore the payments made by the husband.

Object and consideration

The consideration or object of an agreement is lawful until it contains any of the below-mentioned conditions:-

Forbidden by law

At the point when the object of an agreement or the consideration of an agreement is prohibited by law, at that point they are not legal consideration or object any longer. They at that point become unlawful in nature. Thus such an agreement can not be substantial or valid any longer. Unlawful consideration of an object incorporates acts that are explicitly punishable by the law. This additionally incorporates those that the appropriate authority disallow by means of rules and guidelines. However, if the rules made by such authorities are not in pair with the law than these will not be at all applicable.

Forbidden by law” isn’t synonymous with the word ‘void’ and thus it is not essential that anything that is void is also “illegal by law”.

The above decision was made by the Supreme Court in Gherulal Parakh v. Mahadeodas (AIR 1959 SC 781) and the court held that:

“The word ‘immoral’ is an exceptionally complete word. Conventionally it takes in each part of life direct from personal conduct to the general standards of living. It might likewise be said that what is hostile to great conscience, is immoral and unethical. Its differing content relies on schedule, place and the phase of human progress of a specific culture. To put it in simple words, no general standard can be set down and any law dependent on such fluid idea.

The provisions of Section 23 of the Contract Act show the authoritative goal to give it limited importance. Its comparison with a similarly illusive idea, public policy, shows that it is used in a limited sense; generally, there would be covering of the two ideas. 

The other constraint imposed on the word by the statue, in particular, “courts think about immoral” draws out the possibility that it is likewise a part of the customary law like the teaching of public policy, and, in this manner, ought to be restricted to the standards perceived and settled by Courts. Points of reference restrict the said idea just to sexual immorality and no case has been brought to the notification of the common people where it has been applied to any head other than sexual immorality. 

The word “Law” in Section 23(1) implies law, that is, the law sanctioned by the government and it is not allowed to get involved with an agreement to guarantee based on an agreement which is precluded(prohibited) by the law. The inquiry regardless of whether a specific contract is prohibited by an Act or will in general thrashing its provisions is constantly one of development of the Act, the standard for which is that it ought to be interpreted as indicated by the and as the legislature intended to be.

Violation of licenses and provisions

If any provision of violation of licenses is not given the concerned act then it will not be considered as illegal or illegitimate. Let us take an example: ‘A’ got a permit from the Forest Department to cut the grass of a specific territory. The authorities at the division revealed to him that he can not give such right to someone else. However, the Forest Act has no such rule. But on one fine day ‘A’ offered his right to ‘B’ and the agreement was still held as legitimate.”

Assignment of copyright

According to Section 18 of the Copyright Act, 1957 the proprietor of the copyright of a work has the option to allot his copyright to some other individual. The impact of the task is that the chosen one gets qualified for every one of the rights identified with the copyright to the appointed work. However, the mere award of right to distribute and publish and sell the copyrighted work adds up to publishing right and not the assignment of copyright.

Where the person chosen one for copyright gets qualified for any privilege involved in the copyright, he will be treated like the proprietor of the copyright in regard to those rights. The assignor will likewise be treated like the proprietor of copyright as for unassigned rights. The legitimate agents of the assignee will be qualified for the advantages of assignment if the trustee passes away before the work is done. 

In Video Master v. Nishi Production, the Bombay High Court considered the issue of whether the assignment of video rights would incorporate the privilege of satellite broadcast also. The Court concurred with the conflicts of the respondent that there were various methods of correspondence to the public out there, for example, TV broadcasting (Doordarshan), satellite telecom and video TV.

The proprietor of the film had separate copyright in each one of those modes, and he could relegate it to various people. In this way, satellite broadcast copyright of film was a different right of the proprietor of the film and the video copyright doled out to the offended party would exclude this. 

Method of Assignment

According to Section 19 of the Copyright Act, 1957, assignment of copyright is legitimate just in the event that it is recorded as a hard copy and marked by the assignor or by his properly approved operator. On the off chance that the time of assignment isn’t referenced it will be considered to be taken as five years from the date of assignment. On the off chance that the regional degree of such assignment isn’t stipulated, it will be taken as relevant in entire of India. 

Likewise, Section 19(8) examines that the assignment of copyright neutralize the terms and conditions on which rights have been assigned to a specific copyright society where the creator of the work is a part, will be void. Further, Section 19(9) and Section 19(10) opine that the assignment of the copyright for making cinematograph film or sound account will not influence the privilege of the creator to guarantee an equivalent portion of the eminences and thought payable as for utilization of his ensured work. 

In Saregama India Ltd v. Suresh Jindal, it was held that the proprietor of the copyright in a future work may relegate the copyright to any individual either entirely or in part for the entire of the copyright or any part thereof and once the assignment of copyright is made, the assignee with the end goal of this Act is treated like the proprietor of the copyright.

Defeat any law

The words “if allowed, it would defeat the provisions of law” referenced in Section 23 should be understood as referring to the execution of an agreement which essentially involves the offence of the provision of any law. The general standard of law as pursued by the courts depends on special case to the maxim: modus et conventio vincunt legem. Which means, on the off chance that the express provision(s) of any law is damaged by an agreement, the interests of the parties or of outsiders, would be harmfully influenced by its satisfaction.

The parties to an agreement are allowed to direct their privileges(rights) and liabilities themselves, and the court will just offer impact to the intention of the parties as mentioned in the agreement as per the applicable laws of the country. 

In short three principles which emerge are:

1. An agreement or contract is void if its motive is the commission of an illegal act;
2. An agreement or contract is void, in the event that it is explicitly or impliedly prohibited by any law;
3. An agreement or contract is void if its performance is unimaginable without breaking down of any law.

According to Section 23, the contrast between agreements that are void and agreements that are unlawful is extremely meagre or little. As said by Anson, “The law may either prohibit an agreement to be made, or it might just say that on the off chance that it is made, the courts will not implement it. In the previous case, it is unlawful, in the latter it is just void, yet in as much as illegal agreements are likewise void, however void agreements are not really, the difference is for most purposes not significant and even judges appear to regard the two as interchangeable”.

In Rajat Kumar Rath v. Administration of India, the Orissa High Court has clarified the differentiation in the following words: 

“The void agreement is one which has no lawful impact. On the off chance that an agreement is collateral to another or establishes a guide encouraging the completion of the object of the other agreement which however void but is not disallowed by law, it might be upheld as a security understanding. On the off chance that it is a piece of a component intended to the law actually restricted, can’t face a claim on the agreement, it is spoiled with the wrongdoing of the object looked to be accomplished which is hit by the law.

Where an individual is entering into an illegal agreement, guarantees explicitly or by the suggestion that the agreement is blameless, such a promise adds up to collateral agreement upon the other party if in truth blameless of immorality may sue for damages”.

Injury to person or property of another

According to the provisions of Section 23, an agreement which includes making damage to an individual or property of outsider is void and can’t be implemented by the court and in this manner, no case is economical for the break of such an unlawful agreement.

Fraudulent

‘Pari delicto est conditio defendentis’ 

The Hon’ble Supreme Court of India under majority of decisions has held that there are a few exemptions to the above rule. In this association, the Hon’ble Supreme Court cited with endorsement the accompanying perceptions of Anson: “there are rarely any cases in which a man was relieved of the outcomes of an unlawful agreement into which he has entered, cases to which the maxim doesn’t have any significant bearing.”

They will fall into three classes: 

1. Where the unlawful propose has yet been considerably conveyed into effect before it is tried to recover cash paid or merchandise provided or conveyed in furtherance of it; 
2. Where the offended party isn’t in pari delicto with the defendant;
3. Where the offended party doesn’t need to depend on the illicitness or illegality to make out his case”.

Section 23 says that the thought or object of the understanding is unlawful in the event that it “is fraudulent”. But dependent upon such and comparative exemptions, contracts which are not illegal and don’t began in fraud, should in all regards be watched: pacta conventa quae neque contra leges neque dolo mall inita sunt omnimodo observanda sunt (contracts which are not unlawful and illegal and don’t originate in fraud, should in all regards be watched).

Immoral interference in marital relations/ Immorality according to the law

In the event that the object or the consideration are viewed by the court as improper, at that point such object and consideration are immoral. State, for instance, ‘A’ loaned cash to ‘B’ to get separated from her husband ‘C’. It has concurred that once ‘B’ acquires the separation, ‘A’ would wed her. Yet, the court passed the judgment that ‘A’ can’t recover cash from ‘B’ since the agreement is void because of unlawful consideration.

Public policy

It is trite law that one who purposely goes into a contract with ill-advised object can’t authorize his rights in connection with such contract. Prominently, the Act does not anywhere characterize the words “public policy” or “opposed to the public policy” or “as contrary to public policy”. Nonetheless, one may take note of that the expression “public policy” could obviously mean issues concerning the general public or for the public benefit and the enthusiasm of the public on the large.

Public Policy’ is “an ambiguous and unsuitable term determined to vulnerability and mistake when applied to the choice of lawful rights; it is equipped for being understood in various senses; it might and does in conventional sense implies political practicality or that which is best for regular greatness of the network, and in that sense, there might be a variety of sentiments; as indicated by training, habits, talents and auras of every individual who is to choose whether an act is against public policy or not”.

According to Lord Atkin, “the regulation doesn’t stretch out just to harmful impacts, it must be applied to destructive tendencies. Here the ground is less protected and misleading”.

The above rule has been drawn by the Hon’ble Supreme Court of India in Gherulal Parakh v. Mahadevdas Maiya, wherein Hon’ble Justice Subba Rao, referring to the perception of Lord Atkin observed: “Public Policy or the strategy of the law is an illustrative idea. It has been portrayed as a ‘dishonest guide’, ‘variable quality’, ‘unruly horse’, and so forth.

The essential obligation of an official courtroom is to implement a promise which the parties have made and to maintain the holiness of agreement which frames the basis of society however in specific cases, the court may relieve them from their obligation of a rule established on what is known as the public policy. For the need of better words.

Lord Atkin portrays that if something is done in opposition to the public policy is an unsafe thing, yet the regulation is stretched out not exclusively to destructive cases, yet in addition to harmful tendencies, it is administered by precedents.”

In Kedar Nath Motani v. Prahlad Rai, the Hon’ble Court held that “the right view in law is that what one needs to see is whether the lawlessness goes to such a great extent the base of the issue that the offended party can’t bring his activity without depending upon the unlawful transaction into which he had entered. On the off chance that the lawlessness is insignificant or venial, the offended party is not required to trust the jury to decide wisely upon that illegality, at that point, public policy requests that defendant ought not to be permitted to exploit the position.

A severe view, obviously, must be taken of the offended party’s direct, and ought not to be permitted to bypass the wrongdoing by reestablishing some dishonest statement or by misquoting the realities. Assuming, however, the issue is clear and the illegality isn’t required to be argued or demonstrated as a major aspect of the reason for activity and the offended party retracted before the illegal intention was accomplished, at that point, except if it be of such a gross nature as to shock the conscience of the court, the plea of the defendant ought not prevail.”

The Hon’ble Supreme Court of India has managed certain cases under Section 23 holding that a few activities of going into the contract are void. In the case titled “ONGC Ltd. v. Saw Pipes Ltd.” while deciphering the importance of ‘public policy’ for this situation, the Hon’ble Court saw that it has been over and over, expressed by different authorities that the articulation ‘public policy’ doesn’t concede to exact definition and may shift from age to age and every now and then.

Thus, the idea of ‘public policy’ is viewed as vague, defenceless to narrow or extensive importance relying on the situation wherein it is used. In this way, it was held that the term ‘public policy’ should be given a more extensive significance.

The Hon’ble Court putting dependence on “Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr.” held that what is useful for people in general or out in the public interest or what might be harmful or damaging to the public interest, shifts every once in a while. However, an honour, which is apparently, obviously infringing upon statutory provisions can’t be said to be in the public interest. Such an honour is probably going to badly influence the administration of justice. Subsequently, the honour ought to be set aside if it is in opposition to:

1. The principal approach of Indian Law;
2. The interest of India;
3. Equity or justice;
4. On the off chance that it is apparently illegal.

The illegality must go to the root of the issue and if the illegality is of a trivial sort, it can’t be held that the honour is against the public policy. An honour can likewise be set aside in the event that it is so unfair and absurd that it shocks the conscience of the court.

So let us take a look at certain agreements that are against public policy:

1. Trading with the Enemy: Entering into an agreement with an individual from a nation with whom India is at war, will be a void agreement. For instance, a broker going into an agreement with a Pakistani national during the Kargil war;
2. Smothering Prosecution: This is an invasion of the normal course of law, and such agreements are void. For instance, A consents to offer land to B in the event that he doesn’t participate in the criminal proceedings against him;
3. Maintenance and Champerty: Maintenance agreement is the situation in which the individual vows to keep up a suit wherein he has no genuine interest personally. Champerty is the point at which individual consent to help another party in a suit for a bit of portion of the damages or harm;
4. An Agreement to Traffic in Public Offices;
5. Agreements to make Monopolies;
6. A consent to brokerage marriage for remunerations;
7. Interfering with the Courts: An agreement whose object is to actuate a legal or state authorities to act corruptly and interfere with legitimate procedures.

Conclusion

So this was all about legality of objects and consideration under law of contracts. To maintain a strategic distance from legitimate issues, later on, parties must go to an agreement by setting an incentive to explicit merchandise, administrations, or employment execution. Consideration lawfully ties an agreement, shielding the two parties from potential claims or false impressions.

Likewise, consideration regularly incorporates an area that decides misfortunate obligation. Having an agreement that obviously expresses this data causes the court to figure out where the disappointment happened, who is to blame, and what punishment is to be granted. The full proof guideline anticipates the presentation of outward proof that could adjust the conditions of an agreement in any capacity. Security contracts enable parties to make augmentations to fundamental agreements.

References

1. http://www.mondaq.com/india/x/854828/Copyright/ASSIGNMENT+AND+LICENSING+OF+COPYRIGHT
2. https://www.toppr.com/guides/business-laws/indian-contract-act-1872-part-ii/legality-of-object-and-consideration/
3. https://blog.ipleaders.in/concept-assignment-copyright/
4. https://www.legalbites.in/legality-of-object/
5. http://www.lexuniverse.com/contract-law/india/Legality-of-Object.html
6. http://racolblegal.com/legality-of-object-unlawful-agreements/
7. http://egyankosh.ac.in/bitstream/123456789/13386/1/Unit-5.pdf
   

   ---

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

The post Legality of Object and Consideration under Indian Contracts Act, 1872 appeared first on iPleaders.

This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. In this article, she has discussed Reference and Revision under CPC.

Introduction

Plenty of cases are heard by the judges in the courts every day and they have to decide each case in accordance with the law. Hence, there is a possibility that they might commit certain mistakes. The provision of reference and revision in the Civil Procedure Code, 1908 are contained in order to rectify the mistake or error committed in a case. Part VIII of the CPC deals with the provisions of reference and revision. Section 113 and Order XLVI deals with reference and Section 115 deals with revision. 

The main objective of reference is that the subordinate court is enabled to get the opinion of the High Court about a case. A party in case of an appeal has to approach the higher court against the decree or order of the court but when there is some procedural, technical or jurisdictional error there is no need of approaching the higher court by way of appeal but it can be done by way of reference or revision.  

Nature and scope of the topic

A court subordinate to the High Court is empowered to refer the case under Section 113. The court in relation to Section 113 means a court having Original Civil Jurisdiction. A reference can be made only when there is a question of law or validity of any Act or Ordinance or of any provision of the Act is involved and can be sought only in a pending suit, appeal, or other proceedings. Section 115 deals with revision. It empowers the High Court to call for the record of any case decided by a court subordinate to it. 

Click Here

Conditions

Where any matter involving a substantial question of law is referred by the subordinate court to the High Court for its opinion upon that matter it is known as a reference. According to Section 113, any court can refer the case to the High Court for its opinion and the High Court may then make an order as it deems fit subject to certain conditions and limitations.

Rule 1 Order XLVI for the purpose of reference provides certain conditions and limitations that are needed to be satisfied for the High Court to entertain the reference from the subordinate court. These conditions are given below :

• There should be a pending suit or appeal where the decree is not subject to appeal.
• There must be a question of law or usage having the force of law.
• The Court that is trying the suit or appeal or executing the decree must entertain reasonable doubt on that question of law.

As per proviso to Section 113, the question of law involves questions relating to the validity/provisions of any Act, Ordinance, or Regulation or other questions.

Who may apply?

A subordinate court may refer the case with its own opinion on the point to High Court

• either on its own motion or; 
• on the application of any of the parties.

In Manager Metro Railway vs M/S. B.C.L. Secure Premises it was ruled that Section 113 is not a provision that enables the High Court to take reference suo moto or to order a reference. It is a provision that enables the subordinate court to refer the case to the High Court. 

Power and duty of referring court

To entertain the doubt on the question of law. In Banarsi Yadav vs Krishna Chandra Dass, it was held that a subordinate court may refer a case to the High Court when there is reasonable doubt regarding the constitutional validity of an Act.

In  A Sreenivasa Rao and Ors v. Govt of Andra Pradesh, it was held that the subordinate court is not empowered and entitled to decide the validity of any Act, Ordinance or Regulation and Section 113 makes it mandatory for the subordinate court to refer the pending case to the High Court for determining the question relating to the validity of an Act, Ordinance or Regulation which is necessary for the case to be disposed of by stating its reasons and opinions for referring the case to the High Court for its opinion.

Power and duty of the High Court

• To make any order as it thinks fit to when the case is referred to it by the subordinate court.
• Answer or refuse to answer the question in a case and send the case back to the referring court for disposing it. 
• To quash the case referred to it.

Article 228 and Section 113 

In Ranadeb Choudhuri vs Land Acquisition Judge, the court observed, Section 113 of the Civil Procedure Code is a statutory provision whereas Article 228 is a constitutional provision. Section 113 does not relate to the interpretation of the constitutional provisions but to the question of the validity of an Act. Both Section 113 and Article 228 may relate to a common case but are not coextensive.

It was held in Rama Sundari Devi v. Indu Bhusan Bose that under Section 113 the court, subject to certain conditions, may state and refer the case to the High Court for its opinion and the proviso to this section specifically mentions the case relating to the validity of an Act. Whereas under Article 228, if the High Court is satisfied that a case is pending in a subordinate court that involves the determination of the substantial question of law for the interpretation of the Constitution. The High Court shall withdraw the case and either dispose of the case itself or determine the question of law and return the case to the court from which the case has been withdrawn. 

Procedure at hearing

The following procedure has to be followed at the time of hearing:  

• As per Rule 1, the court trying the suit or appeal or executing the decree either on its own or on an application of the parties will draw up the statement of facts and point of doubt of the case and pass a decree or order contingent upon the high court on the points referred.
• After hearing the parties the High Court will decide the points so referred. A copy of the judgment along with the signature of the registrar will be transmitted to the referring court as per Rule 3.
• The referring court on receiving the copy will proceed in confirmation with the High Court’s decision to dispose of the case. 
• The High Court has been vested with the power under Rule 5 to make such orders and to amend, alter, cancel, set aside any decree or order the referring court has passed or made.
• As per Rule 7, In case the question arises as to the jurisdiction of small causes court, a record with the statements of the reasons for doubt will be submitted to the High Court. 

Costs

Rule 4 of Order XLVI talks about the costs of reference to the High Court. It says that if any cost is consequent upon a reference for the decision of the High Court, it shall be deemed to be the costs in the case.

Revision

Section 115 refers to the revisional jurisdiction of the High Court. Revision in general terms means looking over and over again in order to correct the mistake. According to Section 115, the High Court can call for the record of any case decided by a subordinate court and the High Court may make such order as it deems fit and in which no appeal lies under certain conditions.

If the subordinate court:

• Not having jurisdiction has exceeded the jurisdiction over that case.
• Having jurisdiction has failed to exercise the same. 
• Having jurisdiction has acted illegally or with material irregularity. For instance, some error of procedure is committed that is material in the course of a trial which may eventually affect the decision of the Court. 

The proviso to this section specifically mentions that the High Court for the purpose of this section shall not vary/reverse any decree/order against an appeal that lies either in High Court or any subordinate Court. Further, a revision will not be considered as a stay of the suit excluding such suit or proceeding which has been stayed by the High Court.

The Supreme Court in the case of Salem Advocates Bar Assn v. Union of India considered the scope of Section 115 of CPC and observed that the scope of section 115 is limited and the revisional court should only be satisfied that the orders passed are within the jurisdiction of Section 115. 

In Radhe Shyam v. Chhabi Nath, the Apex Court held that even if the scope of section 115 has been curtailed by the CPC (Amendment) Act, 1999 that does not result in expanding the power of superintendence of the High Court.

Distinction

The basic difference between reference, appeal, review, revision and reference under CPC and CrPC can be studied as follows:

Reference and Appeal

Reference and Review

Reference and Revision

Reference under CPC and CrPC

Conclusion

Whenever the judge passes a decree or makes an order there might be certain circumstances where errors or mistakes relating to the jurisdiction or procedure are committed by the court. Hence, the provisions relating to reference and revision ensures that the working of the courts is carried out in an efficient manner. Also, the provisions of appeal are different from the provisions of reference and revision. An appeal is sought where the party is aggrieved by the decision of the court and reference or review is sought in a case where there is some procedural or jurisdictional error.

References

• https://blog.ipleaders.in/reference-review-revision/
• http://lawtimesjournal.in/reference-and-revision/

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

The post A Brief Capsule on Reference & Revision under Civil Procedure Code,1908 appeared first on iPleaders.

This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with the preamble of the Indian Constitution. 

The Indian Constitution in its Preamble provides as under

As per the Preamble of the Constitution, India is a Sovereign, Socialist, Secular democratic country so as to enable to the citizens of India the following:

• Social, economic and political justice;
• Freedom/liberty in idea, voicing opinions, faith, and devotion;
• Equal status and opportunity to everyone;
• And to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

The preamble sets out principles which guide the people of our country, present the doctrines of our Constitution and sets out principles of the Indian Constitution. 

The Indian Constitution was adopted on November 26th, 1949 and subsequently amended by 42nd Constitutional Amendment, 1976. The amendment so made signified India into a Sovereign, Socialist, Secular, and Democratic Republic. The preamble of our Constitution secures justice, liberty, equality for citizens of India and endorses brotherhood amongst the people of our nation. 

The Preamble of the Constitution of India reflects the fundamental structure and the essence of the Constitution. The preamble operates as a channelizing device for the interpretation of the provisions of the constitution. 

The preamble of the Constitution acts as the face of the Indian Constitution and lays down the idealistic philosophies. 

The Preamble gives following objects for governance of India-

1. Justice comprising of social, economic and political justice;
2. Freedom of thoughts, expression, belief, faith, and worship;
3. Equality of status and opportunity;
4. And Brotherhood (Fraternity) assuring dignity to each individual and the unity and integrity of the country.

The Apex Court in the case of Kashi Prasad v. State of U.P observed that even though the preamble cannot be used to defeat the provisions of the legislation itself, but it can be used as a critical source for interpretation of legislation.

Meaning and Concept

The ‘Preamble’  of any legislation gives the introduction of a statute. It is also used to introduce a particular section of a statute or a particular group of sections of a statute. The term Preamble has been defined in various dictionaries. 

A Preamble is a statement made by the legislature giving the reasons for passing a particular statute. It is useful in interpreting any lack of certainty  within the statute to which it is prefixed. 

The Preamble of the Indian Constitution was initially drafted by Sh. B. N. Rau by way of a memorandum dated May 30, 1947. It was subsequently reproduced in the Draft of October 7, 1947. 

Scope of the Preamble

The Preamble gives guidance and states the purpose for which the Constitution of India is framed. It does not give any authority, but it encapsulates the fundamental objectives of the Constitution. The Preamble usually sets out the main aim which a particular legislation is intends to achieve.The whole objective of the preamble is to design and deliver specific facts which need to be explained and recited so as to understand the basic objective and purpose of a statute.  

The Preamble of our Constitution explains all aspects of humanity and tolerance as it is required by human beings to survive with dignity and respect.

The majority bench of the Supreme Court in the case of A.K Gopalan v. State of Madras held that the word ‘law’ as used in Article 21 refers to state made law and not natural justice. It was further observed that this meaning of the language of Article 21 could not be modified with reference to the preamble. The contention before the Court was that the preamble to Indian constitution which seeks to give India a popular constitution should be a lead factor in its interpretation.  It was further contended that any law made under Article 21 of the Constitution should be held as invalid if it offends the principles of natural justice and the basic rights to life and personal liberty would have no shield. 

In the case of the Berubari Union case the Hon’ble Supreme Court observed that the preamble can never be regarded as the source of any independent power conferred on the government or on any of its departments. The Hon’ble court further observed that “what is true about the powers is equally true about the prohibitions and limitations”. The Supreme Court further observed  that the preamble has limited applicability and the help of Preamble should not be taken if the language of the provision in the constitution is clear.

In the case of Kesavananda Bharati, the main issue before the Supreme Court was in relation to the scope of amending power of the Union Parliament under Article 368 of the Indian Constitution. The Supreme Court, before answering the issue, tracked the history of the Preamble and observed that none of authority mentioned before the Court establish the propositions that what is correct about the forcefulness is true in the same manner about the embargo and restrictions. The Court said that limitations have been derived in some cases from the Preamble also. The preamble of our Constitution has extreme importance and it should be interpreted in the light of the purpose expressed in the preamble.

In the case of Union Government v. LIC of India  the Supreme Court held that the Preamble forms an important part of the India Constitution. It specifies that the folks of India are the creator of the India Constitution. It is an act of the people, for the people and by the people. It declares the rights and freedom to be provided to the citizens of India.

Preamble forms an important element of Constitution of India and helps in interpreting the provisions of Indian Constitution.

Main Definitions of the Preamble

Sovereign

The Preamble states that India is a Sovereign State which implies the independent authority of India. India is not under the control of or dependent upon any other external power. The Parliament of India can enact laws in the country subject to certain restrictions imposed by the Constitution.

Socialist

The term ‘Socialist’ was introduced in the Preamble in the year 1976 through the 42nd Constitutional Amendment. By definition of the said term, it appears that it aims at the achievement of socialist ends through democratic means. By adopting ‘Democratic Socialism’ India maintains a belief in a heterogeneous economy where both individual and government sectors co-exist side by side. The aim is to achieve the end of destitution, ignorance, sickness, and inequity of opportunity. 

Secular

The term ‘Secular’ was included in the Preamble in the year 1976 through the 42nd Constitutional Amendment. Usage of the term secular in the Constitution of India implies that all religions and religious communities in India get equal respect, protection and support from the state. Freedom of Religion is one of the Fundamental Right guaranteed through Articles 25 to 28 in Part III of the Constitution. 

Democratic

The phrase Democratic implies a form of government that gets its authority from the will of the people through duly conducted election. The preamble of the constitution determines India to be a democratic country wherein the supreme power lies with the people of the country. The term democracy is used in the preamble of the Indian Constitution granting political, economic and social democracy. The features of Indian democracy are the accountable representative government, universal adult franchise, one vote one value, an independent judiciary, etc. 

In the case of Mohan Lal v. District Magistrate of Rai Bareilly, it was held that Democracy is  where the people elect their representatives to form a government and where the basic principle is to treat the minority in the same way the majority are being treated.

Republic

The word “Republic” denotes that the head of the state is nominated by the people either directly or indirectly. The President of India is the head of the state in India is elected indirectly by the people; through their spokesperson in the Legislature and the State Assemblies. In a republic nation, political autonomy is vested in the people rather than an imperator.

Justice

The term Justice used in the Preamble of the Indian Constitution embraces Social justice, economic justice, and political justice. The Justice so mentioned in the Preamble is secured through various Fundamental Rights and Directive Principles mentioned in the Constitution.

Through Social justice mentioned in the Preamble, the Constitution intends to create an equitable society founded on equal social status. Economic justice implies a balanced distribution of wealth among the individual members of society. This is to ensure that wealth is not concentrated in the hands of a few individuals only. Through political justice, the Constitution wishes to ensure that the citizens of India have equal rights in so far as participation in politics is concerned. Indian Constitution offers common adult suffrage and equal value for each vote.

Liberty

The term Liberty as given in the Preamble means the absence of restrictions or dominance on the activities of an individual. Few examples of Liberty include but is not limited to, freedom from slavery, imprisonment, repression, etc. The Preamble provides for the liberty of belief, communication,ideology and reverence.

Equality

Equality determines the absence of advantage against any segment of mankind. The Preamble provides for equitability of status and chance to all the people of the country. The Constitution strives to provide communal, economic and political equality in the country.

The Equality is secured by eliminating all differences and discriminations between a citizen of India on the ground of race, religion, caste sex, etc. The Equality is also ensured by opening ‘public places’ for all, by abolishing untouchability, by ensuring equal opportunity for all in relation to employment or appointment to any office under the state. The equality of law means that the  law should deal equally with all in the similar category. Further, there should be equality of action for everyone under the same conditions.Equality means that likes should be treated alike. 

Fraternity

The term Fraternity used in the Indian Constitution means brotherhood. The Preamble seeks to encourage brotherhood amongst the citizens of India ensuring the dignity of a person and the solidarity and esteem of the nation.

It may be noted that the term “Fraternity” was inserted in the preamble of the Indian Constitution by a drafting committee of the constituent assembly due to variety within  India which are based on ethical group, religion, customs and traditions. The kinship is the strengthening factor of the intrinsic varieties. 

Conclusion

The quintessence philosophy behind the Constitution of India is adequately manifested in its preamble and it forms the basis of our constitution which is an ultimate law of India. It emphasizes the fundamental values and guiding principles and forms the basis of our constitution. 

References

• http://www.legalserviceindia.com/legal/article-750-preamble-to-the-indian-constitution.html
• https://en.wikipedia.org/wiki/Preamble_to_the_Constitution_of_India
• https://indiankanoon.org/doc/257876/

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

The post The Preamble of the Indian Constitution  appeared first on iPleaders.

This article is written by Isha, a second-year student of BBA-LLB at Bharti Vidyapeeth, New Law College Pune. This article talks about section 29 & 30 under the Indian Contracts Act,1872 with special mention to Uncertain agreements.

Introduction

An agreement under Section 29 of the Indian Contract Act, 1872 is void when its terms are ambiguous and uncertain, thus it cannot be made clear. For instance: X agrees to trade a ton of oil. This agreement is unenforceable for uncertainty as it is uncertain because classification intended cannot be ascertained.

Section 29 explains the meaning of an agreement that should be transparent on the appearance of it, as explained in the case Kovuru Kalappa Devara vs Kumar Krishna Mitter, but the impact can be provided to the contract if its application is found with reasonable clarity. If this is not possible then the contract would not be enforceable. Slight difficulty in understanding will not be recognised as vague.

The application can be expressed as a party who seeks relief from the court for infringement of a contract, the obligation must be able to identify the obligation with adequate precision to justify the remedy. The law thus stated is more elastic, and acknowledges that various levels of assurance may be needed for the remedies.

Agreement to agree or negotiate

A contract to negotiate the terms of an agreement is not, in appearance or substance, an “agreement to agree”. If despite their bonafide efforts, the parties fail to arrive at an ultimate agreement on the terms in effect the contract to negotiate is deemed performed and the parties are released from their obligations. Failure to recognise is not itself a breach of the contract to negotiate. A party will be responsible only if a failure to attain ultimate agreement emerged from a breach of that party’s obligation to negotiate in good faith.

“Agreements to agree” are a financial fact of life for businesses, especially those involved in perpetual term of contracts, such as development and research agreements in the life sociology or industrial sectors, multiple technology contracts, or resources and energy supply arrangements.

Often companies will come into an agreement on the source of an understanding (whether express or implicit) that a further arrangement will be reached at some scheduled time, when the commercial grounds for and proposed terms of that further agreement may have become more manifest.

As a consequence, rather than negotiating their proposed secondary agreement at the point of primary contracting, the parties slightly agree that certain or all contractual terms of that agreement will be determined in the future.

Click Here

Preliminary negotiations taking definite shape

Our common law has originally regarded the issue of preliminary negotiations liability as a matter of contract formation. Where the grieved party is capable to satisfy the criteria of consideration, offer and acceptance, certainty and an intention to be bound. Contract law posses a number of tools capable of resolving disputes arising prior to contract.

This article will, consequently, address the more controversial situation where the plaintiff has failed to satisfy the rules of contract formation. For instance, because of uncertainty or incompleteness or because the parties cannot reach definite terms and their goals.

Preliminary Agreements come into picture when forming and assigning a broad spectrum of transactions and agreements. They are comprised of numerous market participants and are, at best, tolerated by others. They have been the cause of litigation. When accurately drafted, a Preliminary Agreement can provide significant upside to a recommended transaction. It is often used to draw focus to the early steps of negotiation.

The term during which a Preliminary Agreement applies can also be a moment when the organisations and negotiating teams acquire a working relationship that improves trust in the negotiation process and strengthens the commitment of the parties to each other to work towards a final agreement. In the given case Gaurav Monga vs Premier Inn India Pvt Ltd & Ors 2017 Delhi HC explained the parameter of preliminary negotiations. 

Capable of being certain

As given in the case of Bahadur Singh vs Fuleshwar Singh, a contract is valid if its terms are competent of being made certain. The essence of the contract should not be uncertain and further, it needs to be noted that it is not competent of being made certain. Mere uncertainty or ambiguity which can be effortlessly removed by proper interpretation does not make a contract unenforceable. Even oral agreements will not be held uncertain or vague if its terms are ascertainable with precision.

If any contract of more than one meaning, when formed, can produce in its purpose more than one effect, then such contracts will not be void for uncertainty. A contract becomes void for uncertainty only if its primary terms are uncertain or incomplete. When any contract is formed in which some parts are uncertain and some are possible, then uncertain parts of that contract will be void only. To determine what is necessary and what is not, one must look towards the aim of the parties.

There is no such terminated contract when a necessary or crucial terin is expressly left to be settled by future agreement of the parties. Also, there will not be an obligatory contract where the language is complex and inadequate of any definite meaning.

An agreement which fits for the future fixation of consideration by the parties or by a third party is competent of being certain and is valid under Section 29. Such a contract will not be considered void for uncertain.

Agreement by way of wager

Section 30 of the Indian Contract Acts provides that the agreement by way of the wager is void. The term wager is to stake something of utility upon the outcome of some coming future uncertain event, such as a horse race, or upon the ascertainment of the fact concerning some past or present event.

In the UK, all arrangements or contracts, whether by writing or in parole, by means of gaming or wagering, shall be unenforceable and void; and no action shall be brought or sustained in any court of law or justice for redeeming any sum of wealth or valuable thing affirmed to be gained upon any wager.

Wagering Agreement is not defined in the Indian Contract Act 1860. Cotton, L.J. in Thacker v. Hardy said: “The essence of wagering and gaming is that one party is to win and other is to fall upon an upcoming event which at the time of contract is of an uncertain nature, i.e., that if the future event sets out one way A will lose, but if it turns out another way, he will win.”

In the case of Carlill v. Carbolic smoke Ball Co., it was held that “It is essential to a wagering contract that each party may under it either win or fail, whether he will win or fail remaining dependent on the issue of the event and therefore being unknown till that issue is known. If either of the parties wins but cannot lose, it is not a wagering contract.”

In this case, the defendants assured to pay 100 pounds to anyone who got influenza after using the smoke ball manufactured by them. It was believed not to be a hazard because the user could not miss or lose anything if he failed to grippe influenza. The essential features to be noted here is that there should be a fair chance of gain or loss to the individuals and it should be about an uncertain event. The most prominent feature of the wager is that each party has the chance of winning or losing.

Exception in favour of certain prizes for horse riding

More often, the state government might sanction certain horse race competition if the provincial laws authorise it and if the people participate by contributing with an amount of RS 500 or more towards the reward money which is to be given to the winner of the horse race then it will not consider a wager.

Section 294A of the Indian Penal Code not affected.

In this section, nothing shall be recognised to sanction any transaction correlated with horse-racing, to which the terms of Section 294A of the Indian Penal Code would apply.

Agreement not capable of being enforced

When a contract is enforceable it is regarded as an agreement in a contract under the law by Section 10 of the Act. It deals with the enforceability of obligations. According to this section, if the agreement is made for some consideration then it is regarded as a contract, between the parties who are competent to contract with free consent and for a lawful object.

According to section 2(j) of the Indian Contract Act, the agreement not enforceable in the court of law is void “An agreement not enforceable by law is said to be void”. A void agreement is defined under section 2(g) in the Indian Contract Act which says in the court of law it is terminated to be a valid contract.

A contract is not in existence when it is void. The law is not imposed by any legal responsibility because they are not empowered to any protection of laws to either party particularly the complaining individual as far as contracts are concerned. An unlawful act carried out by an agreement is an example of a void agreement or void contract.

ILLUSTRATION:– A contract between smuggler or drug dealers and buyers is a void contract simply because the terms of the contract are illegal. In such a case, no party is allowed to go to court to execute the contract for action.

Types of Void agreement

The contract of void agreement can be of two types :

1. Void-ab-initio: it means the contract which is unenforceable from the very beginning. The Latin term ‘void ab initio’ means “void from the beginning”. The parties of the contract are illegally based on what was written in the agreement because the agreement in issue was never valid. However, certain exceptions do apply. Such type of agreement can never be void because it was never a legal contract, to begin with.
2. The impracticality of its performance is Void:- A contract can also be void due to the impossibility of its performance. For example: If a contract formed between two parties X & Y but during the execution of the contract the object of the contract becomes impracticable to do (due to action by someone or something other than the contracting parties), then the contract cannot be enforceable in the court of law and is thus void.  Shikha Misra & Anr vs S. Krishnamurthy, 2014 the case cited is an example of a void contract.

Lockout agreement

Lockout in general meaning is “the exclusion of employees by their employer from their place of work until certain terms are agreed to.”Lockout agreement is a contradictory statement Lockout or exclusivity agreements try to stop a seller transmitting with any other party during the exclusivity or lockout period.

However, it is necessary to stress that lockout agreements do not secure either the seller to sell or the buyer to buy. They do not prevent the seller, at the end of the lockout period for selling the property to some other. Lockout agreements are more general in the context of a sale and purchase but they can also be applied to the grant of a lease or an agreement for a contract as well as to other real estate transactions.

Enforceability of the lockout

1. Negative in nature: The seller must oblige not to negotiate with others the agreement. A positive commitment to the buyer is unlikely to be unenforceable to negotiate on the seller with the potential ability.
2. For a fixed time period: the agreement within a “reasonable time” will be considered as void because they are uncertain.
3. Payment or “consideration”: as a deed made it must be executed for the agreement. However, it is the responsibility of the buyer to acquire costs. For instance, legal costs in guiding its solicitors to carry out due attention or surveyors’ costs in carrying out a survey can amount to consideration.

Remedies for breach of the lockout agreement

• If the agreement during the lockout period is breached by the seller and sells to someone else, the inherent buyer will only be able to recover its lost or wasted costs. For example- legal fees or surveyor’s fees. The potential buyer is very unlikely to get an injunction to stop the seller selling to someone else during the exclusivity period because the buyer had no power in the first place to require a sale to the buyer.
• An injunction is highly unlikely and the damages will be limited; so if a seller gets an increased offer from someone else during the exclusivity period it might decide to breach the lockout an agreement, proceed with the other party and pay the minimal damages for breach.
• For agreed damages, some agreements therefore expressly provide at a specified higher level to obtain the seller think twice before breaching the agreement. Whether a seller grants to such a damages provision will depend on the bargaining strength of the parties and the duration of the exclusivity. The level of predetermined damages should be a reasonable pre-estimate of the loss. If they are too high, they could be deemed a “penalty”, which is not enforceable

Option for renewal of tenancy

A financial agreement is a clause in a renewal option that outlines the terms for renewing or extending an original agreement. They may be included in any type of financial agreement in which it is beneficial for an entity to extend the agreement for a longer-term. Whether you are a tenant or a landlord, one of the crucial terms to consider when negotiating a contract or lease is the renewal clause.

The clause of renewal confers for a fixed term after the expiry of the initial term of the tenant a consecutive option. For a landlord, it is essential to ensure while the renewal term and to refuse a troublesome tenant the capacity to execute the option to renew that the renewal clause is drafted to maximize the rent payable. Conversely, a tenant or householder wants to ensure that the renewal rent can be reasonably negotiated and that the option to renew cannot be revoked for minor infractions under the lease.

Illustrations

Section 29 states agreements of uncertainty, the meaning of which is not certain, or capable of being made certain, are void. 

• X agrees to sell to Y “a hundred tons of wheat”. There is nothing rational to show what kind of wheat was intended. The agreement is void for uncertainty.
• X grants to sell to Y one hundred tons of fuel of a specified description, known as an article of commerce. There is no uncertainty or clause to make the agreement void.
• I who is a trader in cotton clothes only agrees to sell to H “one hundred pieces of cotton clothes”. The nature of I’s trade provides an implication of the words and I have entered into a contract for the deal of one hundred pieces of cotton clothes.
• X agrees to sell to Y “all the equipment in my granary at Ramnagar”. Thus, there is no uncertainty in this case to make the agreement void.

Conclusion

The Agreements whose object or meaning is not certain or is incompetent of being made certain are void in nature. An agreement can be uncertain either because it contains vague or indefinite terms or because it is inadequate. The universal rule is that if the terms of an agreement are uncertain or indefinite, which can not be determined with reasonable certainty of the parties intention, then the law does not enforce a contract.

References

• The Indian Contract Act 1872 ( Bare act)
• http://www.legalservicesindia.com/article/315/Void-&-Voidable-Agreements.html
• http://www.legalserviceindia.com/article/l376-Wagering-Contracts.html
• https://indiankanoon.org/doc/1818467/

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

The post Void Agreements under Section 29 & 30 of Indian Contract Act appeared first on iPleaders.

This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with The Maternity Benefit Act, 1961 and Maternity Benefit (Amendment)  Act, 2017 and creche facility.

Introduction

The Maternity Benefit Act, 1961 is a legislation that protects the employment of women at the time of her maternity. It entitles women employees of ‘maternity benefit’ which is fully paid wages during the absence from work and to take care of her child. The Act is applicable to the establishments employing 10 or more employees. The Maternity Benefit Act, 1961 has been amended through the Maternity (Amendment) Bill 2017 which was passed in the Lok Sabha on March 09, 2017. Thereafter, the said Bill was passed in Rajya Sabha on August 11, 2016. Further, it received assent from the President of India on March 27, 2017. The provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into effect on April 1, 2017, and the provision with regard to crèche facility (Section 111 A) came into effect with effect from July 1, 2017.

Applicability 

Upon reading Section 2 along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), it can be safely concluded that the Act is applicable to establishments such as factories, (“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines Act, 1952) and plantations (“plantation” means a plantation as defined in the Plantations Labour Act,1951). 

The Maternity Benefit Act also applies to establishments belonging to Government and establishments wherein persons are employed for the exhibition of equestrian, acrobatic and other performances as per section 2(b). The said Act is also applicable to every shop or establishment defined under law, wherein ten or more persons are employed on a day during the preceding twelve months and which is applicable in relation to shops and establishments in a particular state.

Thus, considering the above, in Delhi, the Act applies to all “establishments” and “commercial establishments” which are covered under the ambit of Section 2(9) and 2(5) respectively of the Delhi Shops and Establishments Act, 1954.

Further, as per the proviso of Section 2 of the Maternity Benefit Act, the State Government may, subject to obtaining approval from the Central Government, declare that the provisions of  Act be applicable to any other establishment or class of establishments which are either carrying out industrial, commercial or agricultural activities or otherwise any other activity.

It may be noted that the provisions contained in this Act, save as otherwise provided in sections 5A and 5B, shall not be attracted to any factory or other establishments to which the provisions of the Employees’ State Insurance Act, 1948, as per Section 2(2) of the Act. Further, as per Section 26 of the Act, the appropriate Government has the power to exempt through a notification, an establishment, from the ambit of the Act subject to the conditions laid down in Section 26.

Eligibility 

A woman must be working as an employee in an establishment for a period of at least 80 days in the past 12 months to be entitled to maternity benefit under the provisions of the Maternity Benefit Act. 

Main Highlights of the Amendment in Material Benefit 

The time of maternity leave which a lady worker is qualified for has been expanded from 12 weeks to 26 (twenty) weeks. The Act once in the past enabled pregnant ladies to profit Maternity Benefit for just 6 a month and a half before the date of anticipated conveyance and a month and a half after the date of conveyance. Presently, this period has been expanded to 8 months. The time of maternity advantage of 26 weeks can be stretched out to ladies who are as of now under maternity leave at the hour of usage of this revision in the Act. The improved Maternity Benefit can be profited for the initial two kids. According to the revision, a lady having at least two enduring kids will be qualified for 12 (twelve) weeks of Maternity Benefit of which not more than 6 (six) will be taken preceding the date of the normal conveyance. A lady who embraces a kid underneath the age of 3 (a quarter of a year, or an appointing mother (that is an organic mother, who utilizes her egg to make an undeveloped organism embedded in some other lady), will be qualified for Maternity Benefit for a time of 12 (twelve).

Each foundation having 50 (fifty) or more representatives will be required to have an obligatory creche office (inside the recommended good ways from the foundation), either independently or alongside other normal offices. The lady is likewise to be permitted 4 (four) visits per day to the creche, which will incorporate the interim for rest permitted to her.

Work from home: If the idea of work allocated to a lady is with the end goal that she can telecommute, a business may enable her to telecommute post the time of Maternity Benefit. The conditions for telecommuting might have commonly concurred between the business and the lady.

Prior Intimation: Every foundation will be required to give the lady at the hour of her underlying arrangement, data about each advantage accessible under the Act. 

The arrangement identifying with “telecommute has been presented through the Act and can be practiced after the expiry of 26 weeks’ leave period. In light of the idea of work, a lady can profit advantage of this arrangement on such terms that are commonly concurred with the business. The raising of the maternity profits by 12 weeks to 26 weeks is in accordance with the proposal of the World Health Organization which gives that kids must be solely breastfed by the mother for the initial 24 weeks. 

The expansion in the maternity leave can help in expanding endurance paces of youngsters and solid improvement of a kid.

Creche Facility Introduced by Maternity Benefit (Amendment) Act, 2017

In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act applies and have fifty or more employees must establish a Crèche facility within such distance as may be prescribed through notification. The Creche must be established either separately or along with common facilities. The employer must allow women at least four visits a day to the crèche and it shall also include the interval for rest allowed to her. Every establishment is required to intimate in writing and electronically to every woman at the time of appointing her initially regarding every benefit available under the Maternity Benefit Act.

National Guidelines for setting up and running creches under the Maternity Benefit (Amendment) Act, 2017

Section 11A mandates the establishment of crèches within such distance as may be prescribed, either separately or along with common facilities. As per Section 2(l), “prescribed” means prescribed by rules made under this Act. Further, as per Section 28 of the Act, rules can be prescribed by the State or Central Government as the case may be for carrying out the purposes of the Act. The following are some of the key guidelines published in the Gazette by the Ministry of Women and Child Development. 

Crèche For Whom

The use of a crèche facility is proposed to be extended to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant and contractual personnel. 

Crèche Location

The center should be near/at the workplace site or in the beneficiaries’ neighborhood, within 500 meters.

Timings

The crèche preferably should open for 8 hours to 10 hours. In this case, the workers can follow a shift system. In case the establishment has day and night shifts, then the crèche should also be run in shifts.

Facilities to be provided

Crèches should be concrete, with a min space of 10-12 sq.ft. per child, with ventilation, drinking water and with no unsafe places such as open drains, pits, garbage bins near the center. Further, other facilities to be provided include:

• A guard, who should have undergone police verification. 
• Ramps and handrails.
• Every Creche should have one supervisor per crèche.
• The Creche should have a minimum of one trained worker for every 10 children who are under three years of age.
• For every 20 children above the age of three, the creche should have one trained worker along with a helper.
• No plumbers, drivers, and electricians and other outside persons should be allowed inside the crèche when children are present.
• A Crèche monitoring committee should be formed having representations from among crèche workers, parents, and administration. 
•  Forming a grievance redressal committee for inquiring into instances of sexual abuse.

Maternity Benefit (Mines and Circus) Amendment Rules 2019

It is pertinent to note these rules do not apply to Crèches established in Mines and Circus establishments. Crèches in Mines are regulated by the Maternity Benefit (Mines and Circus) Amendment Rules 2019. Some of the key provisions include:

• Rule 2 (b) – The crèches are set up for children under 6 years of age.
• Rule 4- The crèches are divided into 4 Types (A, B, C, D) based on the number of women employed. 
• Rule 4- Basic Standard requirements to be provided. 
• Rule 8- The crèches shall be open during the whole day and open at night if the women employees are at the office. 
• Rule 9- Restriction of access to outsiders. 
• Rule 10- Guidelines for medical arrangements. 

Are creche facilities mandatory?

The language of Section 11A of the Amendment Act, 2017 is that Crèche facilities shall be established at “every establishment”. Thus, going by the rule of literal interpretation, it can be inferred that the section mandates to establish crèches only in those “establishments” covered under the definition of “establishment” under Section 3 (e) of the Act. 

Further, it can also be inferred that an “establishment” excluded under Section 2(2) or excluded by notification under Section 26 of the Act, is not obliged to set up a crèche as mandated. 

As mentioned above, Section 11A’s mandate to set crèches applies to “establishments” under the ambit of the Maternity Benefit Act, 1961. Further, the clarification notification issued on behalf of The Maternity Benefit (Amendment) Act, 2017, clarified that as Section 2 has not undergone an amendment, there are no changes regarding the application of the Act of 1961. As per Section 2(b), an “establishment” includes every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State. 

Consequently, crèches are mandatory in all establishments covered under Delhi Shops and Establishment Act, 1954. As per Section 2(5) of the 1954 Act, “commercial establishment” means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on..”. Further, as per Section 2(9) of the Act of 1954, “ ‘establishment’ means a shop, a commercial establishment…”. 

Thus, Crèches are mandatory in companies, firms and consultant companies even though they may be incorporated or registered under The Partnership Act, 1932 or Companies Act, 2013.

Conclusion

The Amendment Act has come into force with effect from 1 April 2017. All establishments covered under the Amendment Act were supposed to amend their existing maternity benefit policies to bring it in line with the Amendment Act with effect from 1 April 2017. The changes brought through the Amendment Act are applauded by everyone. However, there are different aspects of the Amendment Act that require clarity. It is not clear whether increased maternity benefits will also be applicable to women who are currently undergoing maternity leave. Furthermore, the justification for having separate effective date for implementing “work from home” option is not clear, for the reason that works from home is an enabling provision brought into force to inspire employers to provide such choice to a woman depending upon the nature of work being handled by her and not a statutory requirement under the MB Amendment Act. The requirements like creche facilities require more capital and operating expenditure on the part of the employer. The establishments will have to bear the whole cost of providing leave to employees. In most countries, the cost of maternity leave is shared by the government, employer, insurance agency and other social security programs. 

References

• http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/creche-facility-by-employers-in-india-rules-notified-for-bangalore.html?no_cache=1&cHash=801899875fd32fe9619c8d79da9d721c
• http://www.mondaq.com/india/x/668308/Employee+Benefits+Compensation/Creche+Facility+Under+Maternity+Benefit+Amendment+Act+2017
• https://www.pillsburylaw.com/en/news-and-insights/indian-maternity-benefit-amendment-act-2017.html

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

The post The Maternity Benefit Act, 1961 and Maternity Benefit (Amendment)  Act, 2017 and Creche Facility appeared first on iPleaders.

This Article is written by Abhishek Dubey, a 2nd-year law student from Sant Vivekanand College of Law and Higher Studies. It provides a detailed analysis of ‘Second Appeal under the Civil Procedure Code.1908’

Introduction

The term appeal has not been defined anywhere under the Civil Procedure Code(hereinafter mentioned as CPC). It is defined in Black Law Dictionary – The complaint made to the superior court for the error committed by an inferior court on whose judgement or decision the court is above to correct the decision or reverse the decisions is called as an appeal.

As per Section 100 of the Civil Procedure Code, 1908:

1. An appeal shall lie to the High Court for the decision made by the District Court.
2. An appeal lies if the decree is passed ex-parte.
3. If High Court is satisfied that substantial question of law is involved it shall formulate the decisions.

It is to be noted that the second appeal is on the grounds of a substantial question of law not on finding errors of facts.

Nature and Scope

Nature of the second appeal

1. The right to appeal is not inherited but it is created by statute. The right to file suits is inherent in nature.
2. This right starts from the date of filing suits.
3. The decision of Appellate Court is final.
4. The rights cannot be declared void until and unless declared by the statue.

Scope of the Second Appeal

The Second appeal can be exercised only when the case falls under these categories-

(a ) Question of law is involved.

(b)  Question of law should be substantial.

Other justification defined as under Section 100 of CPC.

Question of fact wrongly determined should not be the criteria for the second appeal

Cases Laws

In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held that

The High Court can not set aside the finding of facts by the First Appellate Court.

In the case of Annapoorani Ammal vs G.Thangapolam, it was held that the High Court can only interfere when there involves a substantial question of law.

In the case of Dnyanoba Bhaurao vs. Maruti Bhaurao Marnor, it was held that finding of fact is against the weight of evidence and there is no question of law in this.

Click Here

The distinction between Second Appeal and Revision

The substantial question of law

The term substantial question of law has not been defined anywhere under CPC but it was first time interpreted by Supreme Court in the case of Sir Chunni Lal Mehta &Sons Ltd vs Century Spg & Mfg co.Ltd.

The proper test in case of determining the substantial question of law differs from our opinion and opinion of the court, in our opinion, it is of general public importance or if it affects the rights of parties and also when decisions are not finally settled by the court or federal body and in cases wherein the court perceives that there involves a principle then that principle to be applied when there is a substantial question of law.

The question of law to be substantial it should be questionable, it will also depend upon the facts and circumstances of the case.

In the case of Mahindra and Mahindra Ltd. vs. Union of India, it was held that case should involve questions of law not merely question of law.

The court should record the reason for the substantial question of law.

In the case of M.s. vs Raja vs. Seeni Thevar, it was held by the Supreme Court that formulation of a substantial question of law may be inferred from the kinds of questions actually considered and decided by the court in the second appeal, even though the substantial question of law is not specifically and separately formulated.

Question of the law of general importance

The second appeal can only be filed when there involves a question of law and question of law should be substantial. If it is of general public importance or if it affects the rights of parties substantially. Section 100 Of CPC also deals with the importance of the question of law;

Clause (3) states The memorandum of appeal shall state that a substantial question of law is involved.

Clause (4) states the High Court is satisfied that it involves a substantial question of law in any case and it shall formulate the question.

No second appeal in certain cases

This is defined under Section 102 of CPC:

No second appeal shall lie when it is of cognizable nature by courts of small issues.

No second appeal shall lie when there is the finding of errors in the jurisdiction. 

No letters patent appeal

Letter Patent Appeal is an appeal against the decision of a single judge in the same court. This saves the petitioner from going to the Supreme Court, saving a lot of costs.

In this, the petitioner has the option to move the case to another bench where there is more than one judge.

Article 226 and Article 227 of the Indian Constitution has provision and judgement passed in Article  226 states that it can be issued to any person or authority in any cases and Article 227. It empowers The High Court to have superintendence over subordinate courts and tribunals. The judgement of Article 227 does not fall in this category.

The intra-court appeal in case of High Court is for 30 days and it is for 90 days in case of Supreme Court.

Letter of Patent Appeal is not maintainable in the Arbitration Act:

1. The high court of Bombay held that LPA is not maintainable under Section 8 of arbitration.

2. Only section 37 of the arbitration act would apply.
3. Restoration application along with the application of condonation is not maintainable.
4. LPA shall not lie from the decree, judgement of the single bench under section 100.
5. Order of suit, not a judgement from one court to another is not maintainable.

Forum of the second appeal

Appeal from original decree– Generally every decree passed by subordinate court firstly appeal has to lies to High Court. But appeal shall not lie if it has been passed by the consent of the parties under Section 96 of CPC. 

Appeal from order 

An appeal shall lie from the order which is appealable; 

• It is an order made under section 35A,i.e Compensatory cost. 
• Refusing leave to institute a suit under nature of section 91 and 92.
•  An order under section 95 i.e compensation for obtaining arrest, or injunction.
•  Insufficient grounds.
•  Any order made under rules from which an appeal is expressly allowed by rules.
•  An order made under this code imposing a fine or directing the arrest.

Appeal from Appellate decree

•   An appeal shall lie to High Court if decree passed by the appellate court.
•  If the judgement is ex-parte.
•  If it involves a substantial question of law.
•  The substantial question of law has to be formulated otherwise appeal would  be dismissed.

Appeal to the Supreme Court

 An appeal shall lie to the Supreme Court if-

• The case involves a substantial question of law which is of general importance.
• When the High Court thinks themselves the case deemed to be fit and decided by the Supreme Court.

 Grounds of Appeal

• Appellant has to mention grounds of appeal in the memorandum of appeal.
• Appellant has to mention the ground of objection and present it before the Appellate Court. 
• The new ground can be raised by additional application later on, and the High Court has the power to reject or accept the application.

Power of High Court to decide the issue of fact

This is defined under Section 103:

The High Court can decide the issue of facts if sufficient evidence is found and the court thinks it is necessary for the disposal of an appeal –

• If it has not been decided by lower Appellate Court or both by the Court at the first instance and to the lower Appellate Court or if it has been wrongly decided by Court and there involves a substantial question of the law which is defined under section 100 of CPC.

Procedure at hearing

1. Every appeal shall be in the form of a memorandum signed by the appellant and to be presented before the court.
2. Where memorandum is not made as per prescribed by law then the court has the power to either reject or return the application to the appellant and can give the party prescribed time to submit an application again.
3. When an appeal is not made on time then a statement of reason along with some proof should be submitted to court and court must satisfy from the application that there is reasonable cause for the application not made on time.
4. No order of stay of execution of a decree shall be made unless the court decides to hear the appeals.
5. Registry of Memorandum of appeal is necessary.
6. The Appellate Court, after calling the respondent to present before the court and ask to give an answer and also ask him to give application after application court may call the Appellant to pay the Security Cost.
7. The appellant Court after hearing to the appellant may dismiss the application without sending the notice to the lower court and also without sending a notice to the respondent.
8. The appellate court should fix a day for hearing and give notice to the respondent if the respondent does not appear on a given day then case will be ex- parte.
9. The respondent may do any cross objection.
10. After hearing the appeal the appellate court may-

• Remand the case.
• May frame the issue and refer it to for trial.
• Take additional evidence or requires such evidence to be taken.
• The appellate court after resetting the issue may pronounce the judgement.

Document to be submitted with the appeal

• Form No.
• The order appealed against -2 copies.
• Order of Assessing Officer- 2 Copies.
• Grounds of appeal.etc.

Pending appeals

An appeal itself does not operate as a stay of proceedings until the decree/ judgement appealed and execution of decree not stayed. An appeal is filed to appellate court however the appellate court can order a stay of execution if the court thinks it necessary.

If the application made for seeking stay before the expiration of time and if the court thinks it necessary can grant the execution of stay.

The probability of loss or party suffering loss and the party has filed an application to grant a stay and that too without delay then the court can grant a stay.

Cases;

In the case of Atma Ram Properties (p) Ltd. v. M/s. Federal Motors Pvt.Ltd

Stay order can be made conditional too. But the condition attached to stay order must be reasonable.

In an appellate court stay of proceedings can not be in operation for more than six months it has been held by the Supreme Court, in Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. V. Central Bureau of Investigation

Conclusion

The right to appeal arises after the judgement is passed by the court and it is available to both parties. The right to appeal begins from the proceeding itself and ends when judgement is pronounced. The appeal can lie when the case involves a substantial question of law and the court has the responsibility to formulate the substantial question of law.

Right to appeal is a statutory right that means it is created by statute. A Civil suit has to be filed subject to the condition as specified in the jurisdiction.

Right to institute a suit is inherent but right to appeal has to be conferred through the statue.

References

1. http://www.aaptaxlaw.com/code-of-civil-procedure/section-115-115a-code-of-civil-procedure-revision-district-court-powers-of-revision-section-115-115a-of-cpc-1908-code-of-civil-procedure.html. 
2. https://indiankanoon.org/doc/194611629/
3. https://indiacode.nic.in/handle/123456789/2191?locale=en

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

The post Second Appeal under Civil Procedure Code: Nature, Scope, Forum & Procedure appeared first on iPleaders.

This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad. This article is about the proposed amendment bill of IBC, 2016.

Introduction

On December 12, 2019, the Insolvency and Bankruptcy Code (Second Amendment) Bill, 2019, was introduced by the Finance Minister Ms. Nirmala Sitharaman at the Lok Sabha. The bill was proposed to make amendments to the Insolvency and Bankruptcy Code, 2016. As per the requirements from time to time, there were changes made in the IBC. The IBC is a new field of work for many fresh law graduates and lawyers and also for those who are already dealing with bankruptcy law. With every new amendment, the lawyers have to make a shift and work accordingly. The lawyers and other professionals like CA and CS need to be flexible. New responsibilities, new roles, and new compliances come in with every new amendment. Every amendment crucially affects the practice of related professionals. Seeing IBC, from a lawyer’s perspective is quite interesting. Let’s see what are the new things which will come up with the new proposed amendment of the IBC.

About IBC and its Objective

The IBC is a consolidated bankruptcy law in India that seeks to provide legal solutions to companies and individuals when they are subjected to bankruptcy and insolvency. The main objective of the Code is to revive the company from bankruptcy and the amendments are made accordingly.  

Reasons behind the amendment

The reasons behind the proposed amendment are as follows:

1. The laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals shall be consolidated and amended so that the procedure shall be completed within the time period as provided in the Code and maximization of value of assets shall be attainable for the stakeholders.
2. To promote entrepreneurship.
3. To balance the interests of all the stakeholders and avail credit including alteration in the order of priority of payment of Government dues.  
4. While the company goes through the Corporate Insolvency Resolution Process (‘CIRP’) or liquidation, the highest priority shall be given to the last mile funding to the Corporate Debtors (‘CD’).
5. The Code comes up with steps to prevent potential abuse by certain classes of financial creditors.
6. Subject to fulfillment of certain conditions, immunity shall be provided against the corporate debtor, property of the CD and the successful resolution applicant subject to fulfillment of certain conditions.
7. To fill the critical gaps in the corporate insolvency framework.

Major changes and impact on a lawyer’s practice

In crisp

(i) The amendment is proposed under Section 5(12) which shall be deemed to be omitted, so as to provide clarification regarding the insolvency commencement date during the admission of an application under CIRP.

(ii) The amendment is proposed under Section 7 by inserting certain provisos specifying a minimum threshold for certain classes of financial creditors for initiating the insolvency resolution process.

(iii) The amendment is proposed under Section 11 of the Code, so as to clarify that a CD shall not be prevented from filing an application for initiation of corporate insolvency resolution process against other CD.

(iv) The amendment is proposed under Section 14 of the Code which is made to clarify that during the Moratorium period a license, permit, registration, quota, concession, clearances or a similar grant or right cannot be terminated or suspended.

(v) The amendment is proposed under Section 16 of the Code regarding the appointment of the IRP shall be the date of admission of the application for initiation of insolvency resolution process of the Corporate Debtor.

(vi) The amendment is proposed under Section 23 of the Code which enables the “resolution professional”  to manage the affairs of the corporate debtor during the interim period between the expiry of CIRP till the appointment of a liquidator.

(vii) To insert a new Section 32A so as to provide that the liability of a corporate debtor for an offense committed prior to the commencement of the corporate insolvency resolution process shall cease under certain circumstances;

(viii) The amendment is proposed under Section 277 of the Code so as to clarify that the insolvency and liquidation proceedings for financial service providers may be conducted with such modifications and in such manner as may be prescribed;       

(ix) The other amendments are consequential in nature.

Debenture holders, flat-owners and other classes now require a 10% majority (mere INR 1 lakh unpaid dues, not enough) Section 7

Before the proposed amendment 

With the recognition of householders as a new class of Financial Creditors (FC) under the IBC, there were a number of cases that have been filed in the NCLT. But along with this new change, frivolous cases started piling up. And the same has been observed by the Appellate Authority and Adjudicating Authorities. So to mitigate the risk, the new proposed amendment will bring some threshold to maintain the applicability of the IBC to retail financial creditors.

After effects

As per the new amendment, there are certain conditions that retail creditors need to consider. They are as follows:

(i) The application for the initiation of the CIRP shall be filed jointly by at least:

1. 100 of such creditors who belongs to the same class; or
2. 10 % of the total number of creditors who shall belong to the same class.

Whichever is less, the application can be made on that basis.

(ii) If the application is filed by the real-estate project allottees, then they have to file jointly and need to comply with any of the points provided below:

1. Such allottees in number of 100 of the same project; or
2. 10% of the total number of allottees from the same real estate project.

Whichever is less, the application can be made on that basis. 

Further, the effect of the amendment is prospective in nature.

New legal work for lawyers/ CAs/ CS

The work for all the professionals will be doubled. They won’t only be helping in litigation, but now they also have to work as a mediator and constitute a committee of such individual members before filing an application under this section.

Change in timelines of CIRP process 5(12) and 16(1)

Before

As per the earlier proviso, the IRP was not deemed to be appointed by the admitting order of the NCLT under Section 7, 9 or 10. The appointment date was considered as the date on which the IRP is appointed by the AA. Section 16 (1) which is regarding the appointment of IRP is related to Section 5 (12), as per this section the appointment of IRP shall be made within 14 days of the insolvency commencement date.

What will happen?

As per the proposed amendment, Section 5 (12) stands removed. And the change in the previous section resulted in the change in Section 16(1) of the IBC, IRP shall be deemed appointed on the insolvency commencement date itself.

New legal work for lawyers/ CAs/ CS

This will essentially put on responsibilities on the shoulders of the CA, CS, and lawyers. They need to be properly updated with the orders of the NCLT and regulations of the IBBI so that they do not miss out on the dates. The proposed change will make the stakeholders to strictly follow the timelines and prepare before the application is filed in the NCLT, with all needed documents. As the countdown starts from the date of the admission of the insolvency procedure, they have to be prepared for public advertisement and formation of COC within time.

The right of CD to initiate CIRP process

Before

Earlier there was ambiguity regarding the right of the Corporate Debtor to invoke CIRP against another corporate debtor. But with the proposed amendment this seems to be resolved.

What will happen?

After the amendment, the Corporate Debtor will have the right to file the case against another CD even while the CIRP of the CD is continuing in the NCLT. The amendment is proposed as in some earlier cases the AA rejected the claim of the CD to initiate the CIRP process against another CD. One of the major changes we will see is when one CD is enrolled in the case, the other Corporates which are in default will be caught and they will also come under the purview of the proceeding. This will result in the emergence of a chain of cases.

New legal work for lawyers/ CAs/ CS

Of course, this proposed amendment will open new doors to the lawyers/CAs/CS because new varieties of cases will be evolved after this amendment.

The CD will continue to work as a going concern

Before

Before the amendment, there were no provisions related to non-suspension, termination of the license or registration, as the CD goes through the CIRP process and enters Moratorium. However,  the paramount objective of the IBC is the going concern of the CD, the proposed amendment avails the same. 

What will happen?

The amendment in the Section 14 (1) which describes about the moratorium period of the CD, gets a clarification which allows the CD to be considered as a going concern company by the RP with the condition that there is no default in payment of current dues arising because of the due or continuation of the license, permit, registration or such similar grants during moratorium. 

The following grants or rights are made available to the CD during moratorium:

• License;
• Registration;
• Permit;
• Quota;
• Concession;
• Clearances;
• Or similar rights or grants.

These grants or rights shall not be suspended or terminated on the grounds of insolvency.

The rights or grants provided by the following authorities shall be deemed to be unsuspended:

• Central Government;
• State Government;
• Local Authority;
• Sectoral Regulator;
• Any other constituted authority is constituted time being in force.

The flexibility so provided, ensures adherence to the guiding objectives of the Code, as well as maintains fairness by imposing pre-conditions for enjoying the benefit of this clarification.

Further, the definition of ‘Essential goods and services’ given under 14 (2A)  states that IRP or RP can take such steps which is critical to protect and preserve the operations of such a CD. However, if the CD does not pay dues on time during moratorium for such services, then the other party can terminate the service and supply.

Another change will be in the Section 14(3)(a) – ‘Inapplicability of moratorium’, in which the amendment in Section 14(1) will not be applicable to such transactions, agreements or other arrangements if the Central Government with consultation of any financial sector regulator or any other authority notifies anything regarding moratorium.     

New legal work for lawyers/ CAs/ CS

To comply with the proposed changes, the network of lawyers, CAs and CS are needed so that all the compliances can be done properly and the RP can be updated properly regarding the particular matter. Running a company as a going concern needs a lot of work to be done in the background and the RP would not be able to do the entire work as required. One important thing which is undetermined in the proposed amendment is the discretion given to the RP to analyze what comes under the critical requirements in regards to goods or services essential for the company to run as a going concern. This discretion may lead to uncertainty later. It will become the duty of lawyers/CS/CA to check the notifications regarding this regularly. 

“Related party” Financial Creditor

Before

Earlier the financial creditor who was not considered to be a ‘related party’ was limited to two transactions which prior to the insolvency commencement date:

1. on account of conversion or substitution of debt into equity shares; or
2. instruments convertible into equity shares.     

These were the conditions provided in Section 21 (2) ‘Committee of Creditors’ and Section 29A Ineligibility to submit resolution plan’ Second proviso to Explanation I Clause (c) and Clause (j).      

In Section 21 (2) as per the second proviso of the IBC, the first proviso shall not apply to a FC, regulated by the financial sector regulator, if it is a related party of the corporate debtor solely on account of conversion or substitution of debt into equity shares or instruments convertible into equity shares, prior to the insolvency commencement date.

Section 29A deals with ineligibility to submit a resolution plan. Further, in Clause (c) and Clause (j), the Second proviso to Explanation I inclusion is being proposed in which FC’s will not be considered as  “related party”, on the basis mentioned above.

What will happen?

However, after the proposed amendment bill, the scope has been widened by adding one more condition to it i.e. completion of such transactions as may be prescribed, prior to the insolvency commencement date and this insertion will be included in all the above-mentioned sections.

New legal work for lawyers/ CAs/ CS

The work for lawyers is expected to increase as one more condition is evolved wherein a financial creditor shall not be considered as a related party of the CD. This facilitates the government the right to prescribe such transactions and on the completion of such transactions, FC will not be considered as a related party.

Office of RP

Before

Earlier as per Section 23 (1) of the IBC, the RP had the duty to continue the management of the CD after the resolution plan has been submitted in the court and until it passed an order. However, with the proposed amendment the duties of the RP will be extended.

What will happen?

After the proposed amendment  the RP has to continue his duty of managing  the operations of the CD:

1. Until the resolution plan is approved by the court as per Section 31 (1).
2. Until the appointment of a liquidator is passed under Section 34 by the AA.

New legal work for lawyers/ CAs/ CS

The work of the lawyers/CA/CS will be extended until the RP continuing to be in the same position.

Immunity over offenses (32A) 

Before

Earlier there were no sections relating to immunity of offenses under the Code, but in the proposed amendment new section is inserted for the same.

Under Section 29A the following persons are ineligible to be resolution applicant:

• The persons who have contributed to the defaults of the corporate debtor; or
• The persons who are undesirable due to incapacities as specified in the section; or
• The persons who are a ‘related party’ to another defaulting party;
• The persons who are prevented from gaining control of the corporate debtor by being declared ineligible to submit a resolution plan under the Code.

Section 29A was asserted to protect the creditors of the company by safeguarding them against unscrupulous persons who irrespective of their earlier defaults try to reward themselves by undermining the whole objective of the Code and do not aim to contribute to the revival of the corporate debtor. Earlier, the CD was not protected from the offenses which were done by him before the CIRP.

What will happen?

The proposed amendment is made so that immunity shall be provided to the new resolution applicant and the corporate debtor, from the punishment for offenses that have been done prior to the CIRP.

New legal work for lawyers/ CAs/ CS

The work of the stakeholders remains the same. They have to take care that no party in connection with offenses as per Section 29A will be availed immunity under Section 32A of IBC.

Power to make regulations and rules by CG and IBBI (239(2), 240(2))

Before

There are minor changes made in the proposed amendment which is explained below.

What will happen?

It can be divided into two parts:

Powers  to Central Government

A substitution is made under Section 227 in the ‘Power of CG to notify financial sector providers’. Earlier it was “Notwithstanding anything to the contrary examined in this Code or any other law for the time being in force, the CG may” which is proposed to be substituted as “Notwithstanding anything to the contrary contained in this Code or any other law for the time being in force, the CG may,”. 

Under Section 239(2) which describes about the ‘Power to make rules’, three clauses are inserted namely Clause (fa), (fb) and (fc) as per the changes made under Section 21 (2), Section 29A Explanation I to Clause (c) and Clause (j) of Section 29A respectively.

Powers of IBBI

Section 240(2)deals with the power to make regulations. Further, Clause (ia) has been inserted, which gives power to the IBBI to make regulations in consonance with the amendment made in subsection (2A) of Section 14 of the Code.

New legal work for lawyers/CA/CS

These proposed changes will not directly impact lawyers/CA/CS.

Conclusion

The proposed changes will greatly impact the professionals related to it. The lacunae in proposed amendments will be seen in the upcoming time. However, the work for the lawyers/CA/CS will be in high demand.

References

• https://taxguru.in/corporate-law/ibc-second-amendment-bill-2019-introduced-lok-sabha.html
• http://prsindia.org/billtrack/insolvency-and-bankruptcy-code-second-amendment-bill-2019
• http://vinodkothari.com/2019/12/ibc-second-amendment-bill-2019-quick-review/
• https://ibbi.gov.in//uploads/legalframwork/863b139ff2cf941a3422946c3a1d013b.pdf

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

The post Implications of IBC (Second Amendment) Bill, 2019 on a Lawyer’s Practice appeared first on iPleaders.

Tanya Agarwal, 3rd Year Ba. LLB (Hons), Amity Law School, Delhi (GGSIPU). The following article explores the relationship between conventions that forms the basis of international law in the form of treaties which governs the relationship between states.

Introduction

Treaties have been the part of world community since time immemorial, they have been used by various kings, princes, states as a way of establishing peaceful pacts. Article 38 of the ICJ statute dictates treaties to be one of the important sources of International Law. Treaties are considered to be a formal and direct source of International Law which regulates the behaviour and relationships between nations. Majority of conduct between states are governed by the nature of the Treaty device which provides for the rights and obligations of the parties forming part of the treaties.

Definition and conclusion of Treaties

Treaties are nothing but an agreement between the states that are entered mutually, they can also be referred to as agreement, convention, protocol, charter, Pact, Protocol or concordat. An International Convention on the Law of Treaties was signed in 1969 and came into force in 1980, while a Convention on Treaties between States and International Organisations was signed in 1986. Definition of the term “Treaty” as given under Section 2(1)(a) of Vienna convention on the law of treaties is that it means an international agreement concluded between States in written form and governed by international law.

Vienna convention on the law of treaties, 1969 is commonly referred to as “treaty on treaties,” that forms an essential part of customary International Law which provides for the basic framework regarding the characteristics and behaviour of treaties. It defines a treaty and relates to how treaties are made, amended, interpreted, how they operate and are terminated. It does not aim to create specific substantive rights or obligations for parties – this is left to the specific treaty.

They can take various forms which have been confirmed by the ICJ in the Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar vs Bahrain) where it explained the relationship between the “minutes of the meeting” and the character of the treaty under Article 2(1) (a) of the VCLT. Treaties are binding in nature and it provides the parties to follow their obligations in good faith. Treaties can be between two parties that is Bilateral or more than two parties that is multilateral.

Click Here

Treaties are binding but they do not create any legal obligation as to its each and every provision, their main intention is to create legal relations between parties to regulate their relationship through an agreement. Treaty is a formal document which goes through several steps before its conclusion which are as follows:

1. Negotiation

The intention of the parties involved in dictating the terms of the treaty decides its nature, these parties can be Government, States, Head of States or Government Departments. It often undergoes several negotiations before it becomes a formal document. The duty to regulate the formation of a treaty is handed over to the Executive branch of the state.  Article 8 of VCLT states that any action relating to the making of a treaty by a person not authorised as required will be without any legal effect unless the state involved afterwards confirms the act.

All the parties involved, negotiate and try to find common grounds for coming to an agreement. It is also to be noted, that not only the parties involved in the negotiations form part of the treaty but other states can also enter the same later through “Accession.” After negotiations, the next step requires the consent of all the parties which have their vested interest in it.

2. Consent

Treaties are binding in nature which creates rights and obligations for states in the international community, therefore consent is a very important step as it may bind the states to follow and uphold the said treaty. Article 9 of VCLT provides two ways by which a treaty is adopted that is through consent which includes consent of all the parties participating in its formation or adoption in international conferences which takes place by a vote of two-thirds of the state’s present and voting unless by the same majority it is decided to apply a different rule.

Treaties are a major document and there are various ways by which states can give consent so that a treaty can come into existence, as per Article 11 of VCLT it includes, consent by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

Consent by Signature:

It is to be noted as per Article 12 of the VCLT, three conditions have been laid out as to when the signature to the treaty leads to consent which is as follows:

1. It is provided in the treaty itself that signature shall take effect.
2. It is agreed by the state during the negotiation that states signature shall take effect.
3. The intention of the State to give  effect to the signature appears from the full powers of its representation or during the negotiation.

The act of signing a treaty is a very significant step which needs to be conducted cautiously, the duty shall be given to a proper formal authority like the head of the state or its representatives to sign the same.

Consent by the exchange of Instruments

According to Article 13 of the VCLT, in case of treaties which are expressed through any instrument that is exchanged between the consenting parties, it may be expressed by a declaration made in the instrument giving effect or otherwise establishing that those states had agreed that the exchange of instruments should have that effect.

3. Signature Followed By ratification

Once the consent is given to a treaty, the next step is its ratification which officially declares that a treaty is in effect between the concerned parties. Ratification of a treaty leads to the creation of formal obligations and rights. The signing of a treaty does not lead to its automatic ratification, it should be acknowledged by proper authority. It is important to understand the gap between the ratification and signature, it is there to encourage public opinion as more time ensures that the treaty is also beneficial for the state in the eyes of the public.

The process of ratifying a treaty differs from state to state however in Article 14 of the VCLT certain conditions are given which leads ratification of a treaty which are as follows:

• When the treaty provides for the expression of consent by means of ratification.
• During the negotiation, the states agree for ratification
• The treaty is signed subject to ratification
• There is an intention to ratify the treaty by the representative of the state

It is mainly up to the provisions of the treaty which dictates the status of the parties after its ratification.

Reservation

Reservation to a treaty is given under Article 2(d) of VCLT defining ‘reservation’ as a  unilateral statement, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. 

Reservation allows states to have a way of consenting to those provisions which are beneficial to them and reject other provision of the treaty. With the help of these, states have a way of excluding the legal effects of those provisions of the treaty which it objects. A state can exercise the privilege of reservation only before finalising the treaty, once a treaty is signed it can be reserved later on.

It promotes more participation from the states in the international community especially in cases of the multinational treaty by giving them an opportunity to agree and disagree as to their preferred obligations.

A test has been laid down to analyse the practice of reservation to a treaty which includes determining the substance of the interpretative declaration given by the state that is, one has to look into the declaration and interpret its word as to whether the intention behind it includes reservation state.

In the Anglo-French continental shelf case, the arbitral tribunal adjudged that the acceptance of France through an interpretive declaration to Article 6 of the Geneva Convention on the Continental Shelf involved laying down of a specific condition. It, therefore, had the purpose of seeking to exclude or modify the legal effect of certain treaty provisions with regard to their application by the reserving state and thus constituted a reservation.

In another case adjudged by the European Court of Human Rights that is Belilos Case, it was stated that substantive content of the declaration is necessary to understand the intention of the state.

Therefore, in order to determine whether a unilateral statement made constitutes a reservation or an interpretative declaration, it is necessary to interpret the ordinary meaning of the statement. The consent of all the states participating in the treaty is necessary to be considered before reserving to a treaty.

The procedure by which states can reserve to treaty is prescribed under Article 19 of the VCLT, according to which it can be done by signing, ratifying, accepting, approving or acceding to a treaty, but they cannot be made where the reservation is prohibited by the treaty, or where the treaty provides that only specified reservations may be made and these do not include the reservation in question, or where the reservation is not compatible with the object and purpose of the treaty. 

Section 2 of the Vienna Convention on the law of treaties provides for the rules to be followed during the reservation of a treaty, as per it the relationship of the contracting states changes according to their reservation. It is also up to the treaty to allow for a particular reservation if it does not allow the same it may depend upon the behaviour of the other states.

In the case of Human rights treaties, it has been noted that reservations are generally impermissible so as to apply the full effects of the provisions of the treaties. Reservations to a multilateral treaty may be withdrawn, subject to agreement to the contrary, only when the other states to the treaty have received notification of that withdrawal.

Observance of treaties

Part 3 of the Vienna Convention of the law of treaties deals with the rules regarding the observance of the treaty which comes up once the treaty has been finalised and ratified by the states. Following rules are observed under the aforesaid section of the VCLT:

a. Pacta sunt sarvanda

It is the customary rule of International law that treaties should be performed by the states in good faith which is also evident in the United Nations Charter under Article 2 which states that Members are required to perform their obligations in good faith as stated in the charter. The principle is based on the most basic fundamental rule of International law that treaties are meant to be performed by the ratifying states and it should be taken care that states do not take their international obligations lightly.

b. The territorial scope of treaties

As provided under Article 29 of the VCLT a treaty is binding upon the entire territory of each party unless it is provided under the treaty for its restricted application.

c.  Interpretation of treaties

Article 31 to Article 33 of the Vienna Convention of the law of treaties dictate the rules regarding the interpretation of the treaties which can be summarized into three rules that are:

1. Analysing the actual text of the agreement.
2. The intention of the parties negotiating on the treaty.
3. Consideration of the object and purpose of the treaty.

The international court of justice in the case of Competence of the General Assembly for the Admission of a State to the United Nations noted that the duty of the tribunal is to look into the ordinary meaning of the treaty. It has also been noted by the international court that the process of interpretation ‘is a judicial function, whose purpose is to determine the precise meaning of a provision, but which cannot change it.’ Analyzing the background of the workings of a treaty and its preparatory works (travaux pr´eparatoires) can help in interpretation of the treaty.

Where a treaty is authenticated in more than one language, as often happens with multilateral agreements, Article 33 provides that, in the absence of agreement, in the event of a difference of meaning that the normal processes of interpretation cannot resolve, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

d. Treaties and the third state

The general rule of treaties is that they are binding only to the states that are party to it and not to any third member. Therefore, it cannot create an obligation on another state however there is one major exception to this rule which covers the area of customary international law that is if a treaty forms part of customary international law than it is the duty of the states not to violate it.

As per Article 35 of the VCLT, an obligation may arise for the third state if the provisions of the treaty on express written opinion of the parties to the treaty create an obligation for another state and the state gives its consent for the same which has been referred by the ICJ in the Free Zones case that it is the intention of the states that have to be considered.

Invalidity, termination and suspension of the treaty

Vienna convention on the law of treaties provides a list of exhaustive rules under which a treaty can be terminated however, it is necessary to distinguish between the rules of termination and grounds for non-performance of a treaty. Following are the grounds for termination of a treaty:

1. Invalidity

Under article 42 the consent to abide by the treaty in force is presumed by the states however there are certain grounds which can invoke its invalidity which are:

a.  Violation of an internal law

It should be noted that a state may not invoke a provision of its internal law as a justification for its failure to carry out an international obligation. This is a general principle of international law but if it violates a fundamental law than as per Article 46 it can invalidate a treaty.

b. Error

Article 48 declares that a state may only invoke an error in a treaty as invalidating if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. This restrictive approach is in harmony with the comments made in a number of cases, including the Temple case by the ICJ where it noted that in view of the character and qualifications of the persons who were involved on the Thai side in examining the map, Thailand could not put forward a claim of error.

c.  Fraud, Corruption and Coercion

d. Conflict with a peremptory norm

VCLT Article 53 provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens). Further, a treaty becomes void if it conflicts with a peremptory norm of general international law established after the treaty comes into force.

2. Termination

VCLT Part V Section 3 deals with termination and suspension of the operation of treaties. A treaty may, of course, specify the conditions of its termination and may provide for denunciation by the parties. Where a treaty contains no provisions regarding its termination, the existence of a right of denunciation depends on the intention of the parties, which can be inferred from the terms of the treaty and its subject-matter, but, according to the VCLT, the presumption is that the treaty is not subject to denunciation or withdrawal.

At least in certain circumstances, denunciation is conditional upon a reasonable period of notice. Some important law-making treaties contain no denunciation clause. Treaty of peace is not open to unilateral denunciation. Following are the grounds of the termination and suspension of a treaty:

• Material breach
• Treaty provision and consent
• The fundamental change of circumstances.

3. Procedure and consequence of the termination

The consequences of invalidity, termination, and suspension will depend on the grounds relied upon. Certain grounds of invalidity must be invoked by a party and so the treaties concerned are not void but voidable. 

These grounds are incompetence under internal law, restrictions on the authority of representative, error, fraud, and corruption of a representative.

The same is true of certain grounds of termination—material breach, impossibility and fundamental change of circumstances. On the other hand, a treaty is void in case of coercion of a state (invalidity), and conflict with an existing or emergent peremptory norm (invalidity or termination). Consent to be bound by a treaty procured by the coercion of the representative of a state ‘shall be without any legal effect’ (Article 51, invalidity).

The rules governing separability of treaty provisions (Article 44), that is, the severance of particular clauses affected by grounds for invalidating or terminating a treaty, do not apply to the cases of coercion of a representative, coercion of a state, or conflict with an existing peremptory norm. Articles 69 to 72 deal with the consequences of invalidity, termination, or suspension.

Conclusion 

Vienna Convention on the Law of Treaties is a comprehensive code that codifies the relationship between the states and a treaty. It includes the framework regarding the conclusion, observance and interpretation of the treaty. It also dictates various grounds for terminating a treaty and the procedure to be followed after that. Generally, it is considered that a treaty may enter into force after it has been signed and ratified. Parties to a treaty may exercise the right of the reservation to preserve their interest. The purpose of the Law of Treaties is to expand and develop a friendly relationship between nations and achieve cooperation amongst them.

References 

1. ICJ Reports, 1950, pp. 4, 8.
2. https://www.un.org/en/sections/un-charter/un-charter-full-text/
3. https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
4. https://www.icj-cij.org/files/case-related/9/1885.pdf
5. http://www.worldcourts.com/pcij/eng/decisions/1932.06.07_savoy_gex.htm
6. Draft guideline 1.3.1 of the ILC Guide to Practice, A/61/10, 2006, pp. 327 ff
7.  Y. Tyagi, ‘The Conflict of Law and Policy on Reservations to Human Rights Treaties’, 71 BYIL, 2000, p. 181.
8. https://hudoc.echr.coe.int/eng?i=001-57434
9. Ruwanthika Gunaratne, Law of treaties: Vienna convention on the law of treaties
10. https://legal.un.org/riaa/cases/vol_XVIII/3-413.pdf
11. https://www.icj-cij.org/files/case-related/87/087-19940701-JUD-01-00-EN.pdf
12. https://www.icj-cij.org/files/case-related/45/045-19620615-JUD-01-00-EN.pdf

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

The post International Law of Treaties: Basis, Observance & Reservation appeared first on iPleaders.

This Article is written by Srishti Kaushal, a first-year student of Rajiv Gandhi National University of Law, Patiala. In this article, she discusses the Right against Exploitation and the related provisions of the Indian Constitution.

Introduction 

The Indian laws prohibit slavery and any act which harms the dignity and freedom of a person. Yet there are people who still view themselves as superior to others. As a result, many people are forced to do work against their will at cheap rates and millions of women and children become victims of human trafficking. In 2016, there were 18.3 million people in modern slavery in India according to the Global Slavery Index. The 2018 Global slavery survey report stated that there has been a further addition of forced sexual exploitation and child labour in the country.

The Right against exploitation enshrined in Article 23 and 24 of the Indian Constitution guarantees human dignity and protect people from any such exploitation. Thus, upholding the principles of human dignity and liberty upon which the Indian Constitution is based.

Prohibition of Traffic in Human Beings and Forced Labour 

Clause 1 of Article 23 prohibits the trafficking of human beings, begar any similar form of forced labour. It also states that any contravention of this provision is punishable by the law. It explicitly prohibits:

• Human Trafficking: This refers to the sale and purchase of human beings mostly for the purpose of sexual slavery, forced prostitution or forced labour.
• Begar: This is a form of forced labour which refers to forcing a person to work for no remuneration. 
• Other forms of forced labour: This includes other forms of forced labour in which the person works for a wage less than the minimum wage. This includes bonded labour wherein a person is forced to work to pay off his debt for inadequate remuneration, prison labour wherein prisoners sent in for rigorous imprisonment are forced to work without even minimum remuneration etc. 

Hence, Article 23  has a very wide scope by ensuring that a person is not forced to do anything involuntarily.  For instance, It forbids a land-owner to force a landless, poor labourer to render free services. It also forbids forcing a woman or child into prostitution.

Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC1943.

In the case of People’s Union for Democratic Rights v. Union of India, the petitioner was an organisation formed for the protection of democratic rights. It undertook efforts to investigate the conditions under which the workmen employed in various Asiad projects were working. This investigation found out that various labour laws were being violated and consequently public interest litigation was initiated. In the case issues like labourers not given the minimum remuneration as mentioned in the minimum wages act, 1948 and unequal income distribution among men and women were highlighted.

The Supreme Court interpreted the scope of article 23 in the case. The Court held that the word force within this article has a very wide meaning. It includes physical force, legal force and other economic factors which force a person to provide labour at a wage less than the minimum wage. Hence, if a person is forced to provide labour for less than the minimum wage, just because of poverty, want, destitution or hunger, it would be accounted for as forced labour.

The Court also clarified the meaning of “all similar forms of forced labour” as mentioned in article 23 of the Constitution of India. It said that not only begar, but all forms of forced labour are prohibited. This means that it would not matter if a person is given remuneration or not as long as he is forced to supply labour against his will.

Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328.

In the case of Sanjit Roy v. State of Rajasthan, the state employed a large number of workers for the construction of a road to provide them relief from drought and scarcity conditions prevailing in their area. Their employment fell under the Rajasthan Famine Relief Works Employees ( Exemption from Labour Laws) Act, 1964. The people employed for the work were paid less than the minimum wage, which was allowed in the Exemption Act. 

The Court held that the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964 is Constitutionally invalid as to the exclusion of the minimum wages act. This means that minimum wage must be paid to all the people employed by the state for any famine relief work, regardless of whether the person is affected by drought or scarcity or not. This is essential so that the state does not take advantage of the helpless condition of the people affected by famine, drought etc and upholds that they must be paid fairly for the work into which they put in effort and sweat, and which provides benefits to the state.

Deena v. Union of India, AIR 1983 SC 1155.

In the case of Deena @ Deena Dayal Etc. v Union of India And Others, it was held that if a prisoner is forced to do labour without giving him any remuneration, it is deemed to be forced labour and is violative of Article 23 of the Indian Constitution. This is because the prisoners are entitled to receive reasonable wages for the labour they did.

Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

The petitioner, Bandhua Mukti Morcha is an organisation waging a battle against the horrendous system of bonded labour. In the case of Bandhua Mukti Morcha v. Union of India, the organisation sent a letter to Justice Bhagwati and the Court treated it as a Public Interest Litigation. The letter contained its observations based on a survey it conducted of some stone quarries in the Faridabad district where it was found that these contained a large number of workers working in “inhuman and intolerable conditions”, and many of them were forced labourers. 

The Court laid down guidelines for determination of bonded labourers and also provided that it is the duty of the state government to identify, release and rehabilitate the bonded labourers. It was held that any person who is employed as a bonded labour is deprived of his liberty. Such a person becomes a slave and his freedom in the matter of employment is completely taken away and forced labour is thrust upon him. It was also held that whenever it is shown that a worker is engaged in forced labour, the Court would presume he is doing so in consideration of some economic consideration and is, therefore, a bonded labour. This presumption can only be rebutted against by the employer and the state government if satisfactory evidence is provided for the same.

Kahason Tangkhul v. Simtri Shaili, AIR 1961 Manipur

Before independence, there was a tradition in Manipur wherein each of the house-holders had to offer one day’s free labour to the headman or khullakpa of the village. In the case Miksha v State of Manipur, this practice was upheld as a custom which cannot be deemed to amount to forced labour. However, the appellant disagreed to give one day’s free labour. Consequently, respondent came forward and filed a suit against the appellant stating that the appellant continued to ignore the custom even after the court had given directions for it to be followed.

In the case of Roweina Kahaosan Tangkhul v Ruiweinao Simirei Shailei Khullapka, the Court, however, allowed the appeal and held this customary practice to be violative of Article 23 of the Constitution. It said that when a Khullakpa insists on carrying on the custom, it led to forced labour as the villagers had to do it without receiving wages for it. 

State v. Banwari, AIR 1951 All. 615

In the case of State through Gokul Chand v Banwari and Ors., the appellants including 5 barbers and 2 dhobis contested against Section 3 and Section 6 of U. P. Removal of Social Disabilities Act, 1947, under which they were convicted. 

Section 3 of the act laid down that no person can refuse to render any service to another person on the ground that he belongs to a scheduled caste. Provided that such service lies in the ordinary course of business. The appellants contested that this Section was violative article 23 of the Constitution. But the Court disagreed and held that making it illegal for a person to refuse service to some person just because that person belongs to scheduled cases does not equate to begar.

Compulsory service for public purposes 

Article 23, clause 2 of the Constitution states that this article does not prevent the state to impose compulsory services for public purposes. It also states that while doing this, the state must not make any discrimination on grounds of religion, race, caste, class or any of them.

Hence, though article 23 disallow any form of forced labour, it permits the state to engage in conscription (impose compulsory services upon people for public purposes). However, while imposing services upon people for state services the state must take care to not discriminate on grounds of religion, race, caste or class.

Dulal Samanta v. D.M., Howrah, AIR 1958 Cal. 365

In the case of Dulal Samanta v. D.M., Howrah, the petitioner was served with a notice appointing him as a special police officer for a period of three months. He complained that this violated his fundamental right as it results in “forced labour”

The Court disregarded his appeal and held that conscription for services of police cannot be considered as either:

(i) beggar; or

(ii) traffic in human beings; or

(iii) any similar form of forced labour.

Hence, the notice given for the appointment of a person as a special police officer is not in prohibition to Article 23.

Prohibition of employment of children in factories, etc

Child labour is an inhumane practice which takes away the opportunity of having a normal childhood from the children. It hampers their growth and mental well being of children. It also disables them from having normal fun-filled childhood. 

Article 39 of the Constitution states that it is the duty of the state to ensure that the tender age of children is not abused and that they are not forced by economic necessity to enter into fields of work where they are forced to provide labour which is unsuitable to their age and strength

Article 24 states that any child under the age of fourteen years can not be employed as a worker in any factory or be engaged in any other hazardous employment.

Hence it prohibits the employment of children under the age of 14 years in dangerous or unhealthy conditions which could harm their mental and physical strength.

People’s Union for Democratic Rights v. Union of India, AIR 1983 SC 1473

In the case of People’s Union for Democratic Rights v. Union of India, the petitioner observed the conditions in which the workers employed in various Asiad projects were working. It was observed that children under the age of fourteen had been employed. It was however contended that such employment was not against the Employment of Children Act, 1938 since the act did not list the construction industry as a hazardous industry.

The Court held that the construction work falls in the field of hazardous employment. Thus, children under the age of fourteen must not be employed in the construction work even though it has not been mentioned explicitly under the Employment of Children Act 1938. The Court also advised the state government to amend the schedule and change the omission to include the construction industry into the list of hazardous industries.

M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699

In the case of M.C. Mehta v. State of Tamil Nadu, Shri MC Mehta undertook to invoke Article 32, enabling the Court to look into the violation of fundamental rights of children guaranteed to them under Article 24. Sivakasi was considered as a big offender who was employing many child labourers. It was engaged in the manufacturing process of matches and fireworks. This, the Court observed, qualified as a hazardous industry. Thus employing children under the age of 14 years in this industry is prohibited.

The Court reaffirmed that children below the age of fourteen must not be employed in any hazardous industry and it must be seen that all children are given education till the age of 14 years. The Court also considered Article 39(e) which says that the tender age of children must not be abused and they must be given opportunities to develop in a healthy manner. In light of this, the Court held that the employer Sivakasi must pay a compensation of Rs. 20000 for employing children in contravention to Child Labour (Prohibition and Regulation) Act, 1986. 

Conclusion 

The stronger have exploited the weak since ancient ages. In India as well the practice of exploitation is largely present. There are many areas in the country where “untouchables” were being exploited in several ways by the higher castes and richer classes. For instance, in many industries in India like brick kilns,Carpet weaving, embroidery etc, many Bangladeshi and Nepali migrants are being subjected to forced labour. This is seen as employers recruit them through fraud and debt bondage. Such exploitation must be eradicated. 

Also, Child labour is a bane for the nation. It is a shameful practise which harms the welfare and development of the children as well as the entire nation. India still has approximately 30 million child labourers. This is horrifying and It is high time to eradicate this horrible practice and punish the offenders.

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

The post Right against Exploitation (Articles 23-24) Under Indian Constitution appeared first on iPleaders.

Tanya Agarwal, 3rd Year B.A. LLB (Hons), Amity Law School, Delhi (GGSIPU). The following article explores the relationship of states with respect to the oceans and sea under Public International Law.

Introduction

Law of the sea is also known as Maritime law which is that branch of public International Law which regulates the rights and duties concerning the regulation of states with respect to the sea. It governs the legal rules regarding ships and shipping. It is one of the principal subjects of international law and is a mixture of the treaty and established or emerging customary law.

The law of the sea forms the basis of conducting maritime economic activities, the codification of navigation rules and to protect oceans from abuse of power. It covers rights, freedoms and obligations in areas such as territorial seas and waters and the high seas, fishing, wrecks and cultural heritage, protection of the marine environment and dispute settlement.

The genesis of Law of Sea

Grotius also known as the father of modern International law, led to the formulation of maritime law which is one of the recently developed branches of International Law. During the 17th century, the doctrine of “freedom-of-the-seas” emerged wherein it was considered that the seas were free to all nations but belonged to none of them. The Law of the sea has always been in a state of flux, changing and creating a new regime as per the state’s own will.

There existed certain tension between “the free sea” and “the closed sea” which waned for centuries, generally with the powerful states arguing that the sea was free to all, and the smaller States arguing for transnational limitations on what maritime powers could do to navigate the oceans and exploit their resources.

It was during the 20th century due to vast development in the technology and the commerce department, many nations began to make jurisdictional claims so that they could protect their interest and the gradual enlargement of territorial sea initiated the need for the codification of the law to create uniformity.

Over a series of discussions and conferences, four conventions on the law of seas evolved in 1958, namely called Geneva convention on the law of sea developed but the conventions failed to address several issues like the urgent need to regulate the usage of minerals of the deep sea beds and high sea.

In 1982, the third UN conference adopted the Convention on the Law of the Sea (UNCLOS) consisting of 320 articles and 9 Annexes, along with 4 resolution. A significant portion of the convention was a replica of the old Geneva convention however several new factors were also dictated which are as follows:

• It expanded the scope regarding the matters of the new legal regime of the deep sea bed and economic zones.
• The territorial sea now extended up to 12 nautical miles limit.
• In cases of dispute, the convention provides compulsory judicial settlement at the request of one of the parties.
• The convention also describes the formation of an international tribunal of the law of the sea for helping in settlements of disputes.
• The convention also deals with the regime of archipelagic states, the waters between the islands are declared archipelagic waters, where ships of all States enjoy the right of innocent passage.

Click Here

Major Maritime zones along with the rights and duties provided under the specific zones

Territorial seas

It is that part of the sea which is directly next to the coastline and bounded by the high seas. Article 2 of the Geneva Convention on the Territorial Sea and UNCLOS Article 3 both express that states exercise sovereignty over this zone subject to the provisions of the respective conventions and other rules of international law. This was intended to highlight that the limitations upon sovereignty in this area set out in the Convention are non-exhaustive. The territorial sea forms an undeniable part of the land territory to which it is bound so that a cession of land will automatically include any band of territorial waters.

According to UNCLOS, it is believed that every coastal state has Territorial sea. The sovereignty of the coastal state extends to the seabed and subsoil of the territorial sea and the airspace above it. The coastal States exercise a wide variety of exclusive power over the territorial sea which depends largely on the municipal law rather the international system. Coastal states can control the entry of foreign vessels from trading or fishing activities to preserve it for their own citizens.

a.  Width of the Territorial sea

Width of the territorial sea up to which the states can exercise sovereignty has been subjected to a long line of historical development. Initially, it started with the “cannon-shot” rule wherein it stated that width requirement in terms of the range of shore-based artillery, however during the 19th century it changed to 3-mile rule by the Scandinavians claimed 4 miles.

The limit to exercise jurisdiction over the territorial sea became clear only after the first world war, Article 3 of the 1982 Convention, however, notes that all states have the right to establish the breadth of the territorial sea up to a limit not exceeding 12 nautical miles from the baselines. This is clearly in line with state practice. For determining the measurement of this range two methods have been laid down which are as follows:

Low water line

It was the Anglo Norwegian Fisheries case which propounded the principle regarding the determination of the baseline w.r.t geographical realities. In this case, the method applied by the Norwegians affected the fishing interest of UK because the straight baseline method applied then created a chance to cover those parts of the sea which belonged to High sea zone.

The court upheld the straight baseline method applied by Norway due to the peculiar nature of its coastline. The method that determines the rule regarding the 12 Nautical miles limit depends mainly on the nature of the state’s geographic position, normally Low water line is preferred however in cases of countries like Norway straight baseline method can be applied.

b. The Right of Innocent Passage

The right of foreign merchant ships (as distinct from warships) to pass unhindered through the territorial sea of coast has long been an accepted principle in customary international law, the sovereignty of the coast state notwithstanding.

UNCLOS  in its Article 19 provides for an exhaustive list of activities for which the passage is considered as innocent, the main factor to keep in mind is peace, good order, or security of the coastal State. Article 24 prohibits coastal States from hampering the innocent passage of foreign ships through the territorial sea unless specifically authorized by other Articles of the LOSC.

Discrimination among other states or cargoes is prohibited for the Coastal States, however, when it is found to be that any foreign Ship has committed any violation of the aforesaid rule of the convention, the coastal states have the power to forbid entry of such ship or take any measures as they deem necessary for their security.

Other aspects of the territorial sea are:

• Internal water

As per Article 8 of UNCLOS, internal waters include that part of the sea which does not belong to either the high seas or the territorial rather covers all the waterways on the landward side of the baseline. One of the major differences between the Territorial sea and the internal water is that there exists no right of innocent passage in case of the former.

• Bays

Bays are one of the major complex issues under maritime laws, it may enclose a line which leaves internal waters on its landward side and provides a baseline for delimiting the territorial sea.

• Islands

The 1958 convention defines Islands consist of a naturally formed area of land, surrounded by water, which is above water at high tide. These islands are capable of forming continental shelf zone, Exclusive Economic zone, Contiguous zone, territorial sea zone however if there is no habitat capable of surviving on an island it may not form EEZ. Where there exists a chain of islands which are less than 24 miles apart, a continuous band of the territorial sea may be generated.

• Archipelagic states: Group of Islands

The states having above such characteristics has sovereignty over the waters enclosed by the baselines subject to limitations created by the provisions of this Part of the convention. These limitations consist of the right of innocent passage for ships of all states, and, unless the archipelagic state designates sea lanes and air routes, the right of archipelagic sea lanes passage through the routes normally used for international navigation.

Contiguous zone

It is that part of the sea which is located beyond and adjacent to the territorial waters of the coastal states. The development of this zone arose due to the need of the state to strengthen its regulation over the territorial sea.

It extends up to 12 nautical miles from the territorial sea, the object of this zone is only for certain purposes as provided in the article 24 of the convention like to prevent infringement of customs, immigration or sanitary laws of the coastal state, or to conserve fishing stocks in a particular area, or to enable the coastal state to have exclusive or principal rights to the resources of the proclaimed zone. The formation of this zone is only for special purposes as prescribed in the convention, it does not provide any air and space rights to the states.

Exclusive Economic Zone (EEZ)

The object for this zone arose due to controversy regarding fishing zones. Due to a lack of regulation of limit regarding fishing zone, states began to claim the wide depth of region under this zone. In the case of Tunisia vs Libya, the court regarded that the concept of Exclusive Economic Zone can be associated as a part of Customary International Law. Article 55 of the UNCLOS describes the extension of this region from the baseline is up to 200 nautical miles from the breadth of the territorial sea.

In the case of Coastal states as per article 56 of the convention, these states have sovereign rights over the Exclusive Economic Zone for the purpose like:

1. Exploiting and exploring, conserving and managing natural resources
2. For the establishment of an artificial island, Marine Scientific research

iii. Other rights as specified in part IV of the convention.

In case of other states, it provides rights and duties of that which can be compared to the high seas such as freedom of navigation, laying of pipelines and submarine cables, they have to keep in mind the rights and duties of Coastal states during the exercise of their own power.

Continental Shelf

This zone arose due to the concept of Geography wherein as per 1982 convention, it includes a natural seaward extension of a land boundary. This seaward extension is geologically formed as the seabed slopes away from the coast, typically consisting of a gradual slope (the continental shelf proper), followed by a steep slope (the continental slope), and then a more gradual slope leading to the deep seabed floor. The limit up to which its length extends up to 200 nautical miles.

These three areas, collectively known as the continental margin, are rich in natural resources, including oil, natural gas and certain minerals.

The coastal states exercise an extensive sovereign-rights over this zone for the purpose of exploiting its resources. The coastal state may, under article 80 of the 1982 Convention, construct and maintain installations and other devices necessary for exploration on the continental shelf and is entitled to establish safety zones around such installations to a limit of 500 metres, which must be respected by ships of all nationalities.

EEZ and Continental shelf is almost similar in nature however the major point of difference between the two is that under the 1982 convention a continental shelf can exist without an EEZ but there cannot be an EEZ without the demarcation of the Continental shelf.

a. Delimitation of the continental shelf

The measurement of the range of this zone has led to several controversies and a long line of legal custom that has led to the need for the evolution of this concept. In the case of Nicaragua vs Honduras, the international court has dictated on the importance of the establishment of a maritime boundary.

The concept of the median line has been used to determine the delimitation of the territorial sea within the opposite and the adjacent coast. Initially, the issue was taken up in the North Sea Continental Shelf cases, wherein the Court took the view that delimitation was based upon consideration and weighing of relevant factors in order to produce an equitable result.

Later, in the case of Libya Vs Malta, the Court emphasised the close relationship between continental shelf and economic zone delimitations and held that the appropriate methodology was first to provisionally draw an equidistant line and then to consider whether circumstances existed which must lead to an adjustment of that line.

High Seas and Deep Ocean Floor

This includes that region of the sea which exists beyond the EEZ and does not form part of the territorial sea. The essence of this region is that no state acquires any sovereign right over this zone. As per the Article 87 of the 1982 Convention, high seas are open to all states and that the freedom of the high seas is exercised under the conditions laid down in the Convention and by other rules of international law. The jurisdictional right in case of high seas depends upon the nationality of the ship, and the consequent jurisdiction of the flag state over the ship.

It is for the flag state to determine rules and regulations therefore a ship without a flag will be excluded from the privilege under this zone. This was also highlighted by the Permanent Court of International Justice in the Lotus case, where it was held that ‘vessels on the high seas are subject to no authority except that of the state whose flag they fly.’

Conclusion

Law of the sea is concerned with public order at sea which has been codified in the form of United Nations Convention on the Law of the Sea and signed on December 10, 1982. It provides rules and regulations that helps to maintain peace and security over the usage of the sea.

The code provides a set of comprehensive rules which divides the oceanic region into 5 maritime zones and it has set the limit to 12 nautical miles for the coastal states to exercise their sovereignty without any conflict. It aims to resolve the dispute amicably with the help of international tribunal for the law of the sea.

References

1. The fletcher School, Law of Sea: Policy Primer, Available at https://sites.tufts.edu/lawofthesea/chapter-one/
2. available at: https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Key%20provisions
3. he fletcher School, Law of Sea: Policy Primer, Available at https://sites.tufts.edu/lawofthesea/chapter-three/
4. PCIJ, Series A, No. 10, 1927, p. 25; 4 AD, p. 153.
5. http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm
6. https://www.icj-cij.org/en/case/68
7. Applying mutatis mutandis Article 60, which deals with the construction of artificial islands, installations and structures in the exclusive economic zone.
8. ICJ Reports, 1982, Pg. 18.
9. https://www.icj-cij.org/en/case/120
10. http://www.worldcourts.com/icj/eng/decisions/1982.02.24_continental_shelf.htm
11. James Crawford, Brownlie Principles of Public International Law (8th Edition)
12. Grisbadarna case, 11 RIAA, p. 147 (1909) and the Beagle Channel case, HMSO, 1977; 52 ILR, p. 93.
13. Available at: https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Key%20provisions
14. https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
15. James Crawford, Brownlie Principles of Public International Law (8th Edition)

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

The post Law of the Sea: An Inclusion of Treaties & Customary Laws appeared first on iPleaders.

 Tanya Agarwal, 3rd Year Ba. LLB (Hons), Amity Law School, Delhi (GGSIPU). It is very crucial to understand the interaction of states with the international community to secure peace and order. The following article explains the meaning, need and the relevance of Public International Law to help us understand this interaction.

Introduction

The law of nation, although not especially adopted by any constitution or municipal Act, is an essential part of the law of the land.

-Justice Gray   

Law is the element of the society which helps to develop a framework within which rights and duties can be established. World order today requires a method whereby interstate relations could be conducted, and International law fills this gap.

United Nations developed this body of International law for the purpose of promoting international peace and security. Countries come together to make binding rules that they believe benefit their citizens. International laws promote peace, justice, common interests and trade. States work together to strengthen International law because it plays an important role in society.

It is directly and strongly influenced, although not made, by the writings of jurists and publicists, instructions to diplomatic agents, by important conventions even when they are not ratified, and by arbitral awards.

Definition of International Law

According to Oppenheim, International Law is a “Law of Nations or international law is the name for the body of customary law and conventional rules which are considered binding by civilized states in their intercourse with each other.”

Therefore, international law can be considered as a set of rules, agreements and treaties that are binding between countries, they govern how nations interact with other nations. It helps in regulating the relationship of people who trade or have legal obligations which involve the jurisdiction of more than one state. The main purpose of international law is to promote peace, justice and common interest.

Principles of International Law

International law is based on two principles:

1. Jus Gentium: These are those set of rules that do not form part of a legal code or a statute but are those portions of law mutually governing the relationship between the two nations.
2. Jus Inter Gentes: These are those treaties and agreements that are mutually accepted by both countries.

International Law provides the means through which disputes can be resolved peacefully. It is primarily concerned with the rights, duties and the interests of the state.

Click Here

Classification of International Law

International Law can be classified into two groups:

1. Public International Law

Public International law is regulated by: 

1. Customs that are included as state practise and opinion Juris.
2. Treaties
3. Globally accepted Norms.

It regulates the relationship between those nations and peoples that may be affected by a particular law as they feel to be bound by these legal codes and rules.

2. Private International Law 

It regulates private conflicts between individuals rather than states. It soughts to resolve dispute in the domestic municipal body which involves an issue revolving beyond its domestic jurisdiction. Corporations, in particular, are commonly involved in private international law disputes because they frequently transfer their capital and supplies across international borders. The more business that is carried out between nations, the more likely a dispute will arise.

International and National Application

National law governs the domestic aspects of government, deals with issues between individuals as well as between individuals and the administrative apparatus, while international law focuses primarily upon the relations between states. International Law and National Law are two distinct legal orders existing independently. An internal law cannot become an International Law. However, an International Law can become an Internal (Municipal) Law.

Theoretical approach

The relationship between the application of International Law in international and national arena presents itself in the form of two clashed theories that are Monism and dualism.

1.Monism

According to monism, international law directly applies within national legal order because the act of ratifying an international treaty automatically incorporates the same into national law. Hersch Lauterpacht and Hans Kelson was a forceful exponent of a version of monism. They emphasized that individuals are the ultimate subjects of international law, representing both the justification and moral limit of the legal order.

Monist systems” do differ in their approach.

• Under some Constitutions direct incorporation of international obligations into domestic law occur on ratification.
• In other States, direct incorporation occurs only in self-executing treaties.

2. Dualism

Dualism deals with a more distinct and independent aspect of the International legal system. For States with a “dualist system”, international law is not directly applicable domestically. It must first be translated into national legislation before it can be applied by the national courts.

Therefore, for dualists, state ratification of the ICC statute is not enough, and national implementing legislation is necessary. War crimes trials, for example, can only take place when the national legislation is enacted, unless of course, such legislation already exists.

Application of National Rules in International Law

A state which has broken its obligation under international law cannot justify their actions by referring to the national law. Under Article 27 of the Vienna Convention on the Law of Treaties, 1969 it is mentioned that as far as treaties are concerned, a party may not invoke the provisions of its internal law as justification for its failure to carry out an international agreement, while Article 46(1) provides that a state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent.

The International Court has underlined, in the Applicability of the Obligation to Arbitrate cases that the fundamental principle of international law is that international law prevails over domestic law while Judge Shahabuddeen emphasised in the Lockerbie case that inability under domestic law to act was no defence to non-compliance with an international obligation.

Relevance and Function of International Law

The earliest expressions of international law were the rules of war and diplomatic relations. During the Age of Discovery, rules on governing the acquisition of territory became more important and they talked about the principle of freedom of seas because this was necessary for the expansion of trade.

International law, therefore, grew out of necessity. As international engagement increased, international law expanded. In the present-day world, international law is the most convenient form of regulating world order. Some important functions of international law include:

• To maintain International Peace and Security.
• To provide fundamental freedom and human rights.
• To refrain from the threat or use of force by a state against the territorial integrity or political independence of any State.
• To provide the right of self-determination to people.
• To achieve international co-operation in solving international problems of an economic, social, cultural and humanitarian character.
• To settle international disputes by peaceful means.

There exists no such thing as the world legislature, however, there is an international code of law whose pervasive presence might eliminate violence and tries to maintain world peace.  

Historical Overview

While the modern international system can be traced back to some 400 years, but the basic concepts of international law can be discerned in political relationships thousands of years ago. Around 2100 BC, a solemn treaty was signed between the rulers of Lagash and Umma, the city-state situated in the area known to historians as Mesopotamia.

The treaty was inscribed on a block of stone which dealt with the establishment of a defined boundary which has to be respected by both sides. The next major instance of a binding international treaty was concluded over 1,000 years later between Rameses II of Egypt and the King of Hittites for the establishment of eternal peace and brotherhood.

The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of western culture and political organisation. Treaty of Westphalia provides Public International Law, the structure and order, for developing it in terms of the present-day society.

Ideas revolving around natural Law formed the basis of philosophies given by the early theorists. Their theories and philosophies depicted the merging idea of Christian themes and Natural Law that occurred in the philosophy of St. Thomas Aquinas.

In the middle ages, two sets of international law, namely Lex Mercatoria (Law Merchant) and the Maritime Customary Law were developed to deal with problems that transcended international boundaries. With the revival of trade in the 10th century, merchants started to travel all throughout Europe in order to sell, buy and place orders for various goods. These commercial activities required the establishment of a common legal framework.

The Evolution of Modern International Law was done by a British historical lawyer, Maine. The evolving concepts of separate, sovereign and competing states marked the beginning of what is understood as international law. International law became geographically internationalised through the expansion of the European empires. It became less universal in conception and more, theoretically as well as practically, a reflection of European values.

A Dutch Scholar  Hugo Grotius, born in 1583, has been celebrated as the father of International Law. His treatise De Jure Belli ac Pacis has been acknowledged as the most comprehensive and systematic treatise of positivists international law. It is extensive work and includes rather more devotion to the exposition of private law notions than what seems appropriate today.

One central doctrine in Grotius treatise was the acceptance of the law of nature as an independent source of the rule of law of nations apart from customs. His work was continually relied upon as a point of reference and authority in the decisions of courts and textbooks and later writings of standing.

The rise of international law mainly happened during the 19th Century with the rise of powerful states surrounding Europe. With the greater technological advancement and development of new warfare methods, it became necessary to regulate the behaviour of these states with the help of a legal framework. The International Committee of the Red Cross was founded in 1863 which helped to promote the series of Geneva Conventions beginning in 1864. These conventions dealt with the ‘humanisation’ of conflict. 

The Hague Conferences of 1899 and 1907 helped in establishing the Permanent Court of Arbitration which dealt with the treatment of prisoners and the control of warfare. Numerous other conferences, conventions and congresses emphasised the expansion of the rules of international law and the close network of international relations. Due to the above actions the development of the law of war and international bodies that adjudicated international disputes occurred.

The Permanent Court of International Justice was established in 1921 after World War I and was succeeded in 1946 by the International Court of Justice. United Nations founded the International Court of Justice which has now expanded the scope of International Law to include different aspects of the issues that affect a vast and complex area of international rules such as International Crime, Environment law, Nuclear law etc. 

The ICJ was created as a judicial body to hear cases involving disputes between nation-states. It is made up of 15 judges, elected for nine-year terms. The judges are elected by the U.N. General Assembly and the Security Council, based on nominations made to the Secretary-General.

Conclusion 

International Law is a set of rules which is necessary to regulate the behaviour of nation-states in order to ensure peace and welfare of the International community. It helps in resolving disputes amongst states. It is not necessary for international law to be codified into an agreement. It may influence internal laws and become a part of domestic law as well. Modern International Law has developed through a long line of history and the International Court of Justice is considered as the principal body responsible for upholding the tenants of International Law.

References 

1. https://legalcareerpath.com/international-law/.
2. Eric Brahm, International Law, Beyond Intractability (Sept. ,2003), https://www.beyondintractability.org/essay/international_law.
3.  C. H. Alexandrowicz,The European– African Confrontation, Leiden, 1973.
4. SHASHANK SURESH, PROJECT REPORT ON EVOLUTION OF INTERNATIONAL LAW, 13-14 (Feb. 15, 2017).
5.  Nussbaum, Law of Nations, pp. 1-2, 3.
6. ZAIBA, Public International Law, Lecture Notes, Available at: https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL_LAW_LECTURE_NOTES.
7. D.J. Bederman, International Law in Antiquity, Cambridge, 2001
8. Introduction to International Law, Available at: https://www.slimstuderen.nl/uploads/inkijkexemplaar/Inkijkexemplaar%20law.pdf.
9. https://junaidansaari.blogspot.com/2019/07/definition-and-function-of.html#gsc.tab=0.
10.  Available at: https://www.peaceandjusticeinitiative.org/implementation-resources/dualist-and-monist.
11. Special Rapporteur Kamto, Seventh Report, A/CN.4/462, 4 May 2011.
12.  Available at: https://legaldictionary.net/international-law/.
13.  Infoplease, Columbia Electronic Encyclopedia, 6th ed. Copyright © 2012, Columbia University Press, International law: Evolution of International Law.
14. Oppenheim volume on International Law(9th Edition)
15. https://www.icj-cij.org/files/case-related/77/077-19880426-ADV-01-00-EN.pdf
16. https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf

To Know more about the law of the sea, please Click Here.

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

The post International Law: Meaning, Necessity, Application and Relevance appeared first on iPleaders.

 Tanya Agarwal, 3rd Year Ba. LLB (Hons), Amity Law School, Delhi (GGSIPU). The following article explains the origin and sources of International Law through various places from which it evolved along with its application in states and international organisations.

Introduction

International Law is comprehensive in nature and due to that it is an amalgamation of various sources, there exists no single system of laws which can interpret and extend the law but international law still exists and is ascertainable.

There are ‘sources’ available from which the rules of international law may be extracted and analyzed. According to Lawrence, if we take the source of law which has all the authority required to give it binding force, then in respect of International Law there is one source of law and that is the consent of Nations. This consent may be either tacit (custom) or express (treaties).

Major sources which form the conventional source of International law includes the International Convention and Treaties. Sources of International Law can be bifurcated into primary and secondary sources which are explained below.

Primary Sources

Primary Sources of International Law are considered formal in nature. They come from official bodies which include Treaties, Customs and principle of Law. Article 38(1)(a-c) of the ICJ statute is widely recognized as the backbone of the formal source of International Law. It is generally regarded as an authoritative statement of the sources of international law. Article 38 of the Statute of the International Court of Justice in The Hague has been treated as a convenient catalogue of international legal sources.

Click Here

Article 38 of the ICJ statute:

Article 38(1)(a-c) of the ICJ was adopted by the same provision of the statute of the Permanent Court of International Justice which operated under the auspices/support of Legal of Nations in 1920. The article refers to the primary sources of international law which are enumerated below:

Custom as a Source of International Law

The original and the oldest sources Law is known as Custom. The rules of customary International Law involved a long historical process which gained recognition by the entire community. The presence of customary rules can be deduced from state practice and behaviour because it is not a written source of law. A rule of customary law is said to have two elements:

First, there must be widespread and consistent State practice.

Secondly, there has to be “opinio Juris”, a Latin term which means a legal obligation to believe in the existence of such law.

Features of Customary Law

Uniform and general

State practice to give rise to binding rules of customary International Law, that practice must be uniform, consistent and general and must be coupled with a belief that the practice is obligatory rather than habitual. In the Asylum Case, the court declared that a customary rule must be used constantly and uniformly throughout history which can be traced through state practice.

Duration

Continuous and regular use of particular conduct is considered as a rule of customary law. In the North Sea Continental Shelf cases, the ICJ stated that there is no precise length of time during which the practice must exist. It is simply that it must be followed long enough to show that other requirements of custom are satisfactory.

An opinion of Law.

To assume the status of customary international law the rule in question must be regarded by the state as binding in Law i.e. the states must regard themselves as being under a legal obligation to follow the practice. In the Lotus case,opinio Juris was seen as an essential element of customary international law and this was affirmed in North Sea Continental Shelf Cases as well.

Convention as a source of International Law

Treaties and conventions are one of the most important sources of International Law. These conventions can be multilateral or bilateral. Multilateral conventions relate to the treaties which formulate the universal or general application of the law. On the other hand, bilateral conventions are those which is formed exclusively by two states to deal with a particular matter concerning these states.

Vienna Convention on the Law of Treaty 1969, the codified law for contracting treaties, gives the definition, “A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.” Treaties act as a direct source of rights and obligations for the states, they codify the existing customary source of law.

They are voluntary and cannot bind non-signatory to it, however, there are certain exceptions to it that is if any rule forms part of the Jus Cogens norm as they are part of the accepted principles of International law and every state has a peremptory duty of not breaching them due to their erga omnes obligations. (owed to the whole world)

General Principle of International Law

Most modern jurists accept general principles of law as common to all national legal systems, in so far as they are applicable to the relations of States. There are fewer decided cases in international law than in a municipal system and no method of legislating to provide rules to govern new situations. It is for such a reason that the provision of ‘the general principles of law recognized by civilized nations’ and was inserted into article 38 as a source of law.

Some of the examples of General principles include:

• The rule of res judicata which has been affirmed by the court in the case of Genocide Convention Bosnia and Herzegovina v. Serbia and Montenegro,
• The rules of pacta sunt servanda made applicable,
• Reparation must be made for damage caused by the fault, 
• The right of self-defence for the individual against attack on his person, family, or community against a clear and present danger,
• For one’s own cause no one can be a judge and that the judge must hear both sides.

Secondary source (Evidence of International law)

Article 38(1)(d) forms part of the material source of International Law also known as the secondary source. It states that judicial decisions and the teachings of the most highly qualified publicists of the various nations also help in guiding the formation of international law, however they are not binding but merely advisory in nature. 

Judicial Decision

Under this, the court is authorised to apply previous decisions of the court which are also known as an evidence of international law, however, it is subject to the exception stated under Article 59 of the statute which states that the previous decision of the court can only guide the court, it is not binding on the court.

This article provides the court with a rule that it is not to be bounded by precedents but recourse can still be made by the court to its past decision’s res judicata and advisory opinion to substantiate current case as authoritative evidence of legal position.

ICJ plays a major role in the law-making process through its advisory opinions, case laws and judge’s rule. One of the major examples of this includes the principle of the prohibition against the use or threat of use of force laid down by the court in the case of Nicaragua vs. USA which is now considered as a part of Customary International Law. T

he judicial decision of the court also encompasses international arbitral awards and the rulings of national courts. One leading example is Alabama Claims arbitration, which marked the opening of a new era in the peaceful settlement of international disputes, in which increasing use was made of judicial and arbitration methods in resolving conflict.

Another illustration of the impact of arbitral awards is the Island of Palmas case wherein it has been referred that a unanimous, or nearly unanimous, decision plays an important role in the progressive development of the law. It helps in providing a single view for interpretation of the issue at hand which helps in avoiding controversy during the development of International Law.

Juristic writings and teachings

Other major parts of this source also include the ‘teachings of the highly qualified writers such as Gentili, Grotius, and Vattel who were considered as the supreme authorities of the international law in the 16th to 18th Centuries.

Textbooks are used as a method of discovering what the law is on any particular point rather than as the source of actual rules, and the writings of even the most respected international lawyers cannot create law. These are considered as an evidentiary source of law as they provide an explanation and understanding of the International principles. They carry an essential value because they provide to fill the grey areas of International Law where treaties or customs do not exist.

Other sources of International Law

International law is not based on a set of rules and therefore article 38 is not exhaustive. There are various other factors that develop the usage of International Law which include declarations of Security Council resolutions, declarations, and recommendations adopted by the UN General Assembly, International morality and equity, etc.

The world is constantly evolving and the problems are becoming more complex, the resolutions and declarations adopted by assembly act as an inevitable impact upon the direction adopted by modern international law. The way states vote in the General Assembly and the explanations given upon such occasions constitute evidence of state practice and state understanding as to the law.

For example, in the case of the USA vs Nicaragua, General Assembly had asked the court for an advisory opinion on the question: “is the threat or use of Nuclear weapons in any circumstances permitted under International Law?” The court after a review of the relevant international legal instrument as well as the Security Councils’ General Assembly resolution of the matters reached a resolution that the threat or use of nuclear weapons would generally be contrary to the rules of International Law applicable to armed conflicts and in particular the principles and rules of humanitarian law.

The concept of equity has been referred to in several cases. In the Rann of Kutch Arbitration between India and Pakistan in 1968, the Tribunal agreed that equity formed part of international law and that accordingly, the parties could rely on such principles in the presentation of their cases.

UN has provided a true compliment for the gap created in what is supposed to be an accurate reflection of other sources of international law and its activities has positively affected lawmaking ways by resolutions and faster means by 15 members of the Security Council and 191 members of the General Assembly as greater needs arise for fast development of international law codified by International law commission.

States and International Organisation

International Law is a system of rights and duties given to a legal system so that they can exercise them at a global level. There are different International bodies that are subject to possession of such rights under customary law and therefore also have the privilege for bringing any claim if there is a violation of their rights.

The determination of the personality of these bodies depends mainly upon the nature and extent of particular rights and duties. With the evolution of International law, it is necessary to determine the inter-relationship between these bodies and their capacity to enforce claims as per their rights and duties. These bodies may include states, international organizations, regional organizations, non-governmental organizations, and individuals.

States

States have international legal personality to the fullest extent. They constitute one of the most important international organizations as they form the primary centre for the collection of the social activities of civilization.

The doctrine of Recognition – Creation of Statehood

Recognition of the state is an International Concept wherein a new state or an existing state is given a formal acknowledgement of being a member of the International community. According to Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933 and Oppenheim, the entity of a state can be created if it possesses the following characteristics:

1. Defined Territory
2. Population
3. Government
4. Capacity to enter into a relationship with another state

However, there is no set pattern recognized so far which forms a particular base for the recognition of statehood as per the above criteria. Such provisions are neither exhaustive nor immutable. Recognition of a statehood grants certain privileges in the form of rights, duties, and immunities which include the authority to enter into a foreign relation with another state, became a part of a treaty, the right to undergo succession and become a member of the United Nations. There are two theories on recognition which are:

Declaratory Theory

The theory was propounded by eminent jurists such as Fisher and Brierly, under this theory the independence of a new state does not take into account its acceptance by other states. The theory has been given in Article 3 of the Montevideo Convention where it recognizes the existence of a new state does not depend upon the mind of the existing state’s consent.

Consecutive Theory

Oppenheim proposed this theory wherein it stated that for a state to be considered as an International entity, it is necessary for it to be recognized by other sovereign states so that it can enjoy its rights and duties. The theory does not propose the non-existence of a state rather it places an emphasis on acceptance by other states for a state to enjoy their exclusive rights.

Recognition of a States

There are two modes of recognition of states which are as follows:

When a state is recognized, there are two ways by which it can be declared which is:

Express Recognition

Expressed Recognition is done through an official notification or declaration by an existing state recognising the presence of a newly formed state. This category usually recognizes a de jure form of recognition unless provided otherwise by the recognizing state in the declaration for considering it under any other form.

Implied Recognition

The action of an existing act done impliedly which indicates acceptance to a new act as an International person is considered as a form of Implied Recognition. There can be several implied actions for instances speeches, declarations etc. It depends on a case-by-case basis.

Recognition of a government

The criteria laid down for recognition of a government is different from that of recognition of a state. In case of a newly formed government, it is necessary to check the constitutionality of the government to ensure a valid recognition of the same. When a new state comes into existence it becomes necessary to check the structure of the new government to ensure international standards are being followed.

Following criteria needs to be checked for recognizing a newly formed government:

1. Sufficient control and power by the government over its population.
2. The capacity of the new government to fulfil its international obligations and duties.

There are various theories which have been accepted for recognizing the government but the most prominent amongst them is the so-called doctrine of legitimacy, it was initially used by the United States in relation to Central America, but the theory declined gradually.

Recognition practice as per the USA

In the USA only a recognized state can sue, there are a line of legal precedents on the practice of recognition by the USA, for instance in the Salimoff case the terms of the certificate tended to encourage the court to regard the Soviet government as a recognized government, on the other hand, in the case of the Maret the tone of the executive’s statement on the Soviet Republic of Estonia was decidedly hostile to any notion of recognition or enforcement of its decrees.

In 1977, the United States declared that instead of focusing on the change in the government, they should try to establish the need for diplomatic relations and if the administration is willing to involve and conduct business with other governments.

Therefore, the US prefers to initiate diplomatic relations to recognize the government. It has been observed that the United States typically avoids taking the lead in recognition, waiting for the domestic politics to play out or for regional bodies like the Organization of American States to resolve the crisis before deciding whether to confer legitimacy on the new government. In the case of Honduras, for instance, the United States followed the lead of other Latin American countries in deeming Zelaya’s ouster illegitimate.

International Organization(IO)

Meaning and Nature

The International Community is an amalgamation of various voices and opinions, therefore with the growing need for international cooperation and to ensure peace in this community International Organization have emerged. An international organization has been defined as a form of co-operation of sovereign states based on multilateral international organizations and comprising of a relatively stable range of participants, the fundamental feature of which is the existence of permanent organs with definite competences and powers acting for the carrying out of common aims.

The essential elements which describe International organization include:

1. Multilateral International agreement
2. Individual Personality of the Institution
3. Permanent organs carrying out its Function

International Organizations are usually created amongst states or by their duly authorized representatives, however, there is no uniform rule on the same, states sometimes create legal entity based on a treaty though are there to enforce and uphold the principles of a treaty such as European Court of Human Rights but they are not considered as International Organisations.

An international organisation may come into existence by the formation of a treaty or through an existing organisation granting certain powers for forming an international organisation. UNICEF is an International organisation which was formed by the United Nations General Assembly. 

Historical Development of International organisation

The development of IO can be traced from the need for establishing the psychological notion of world government. It was only in the 19th-century major IO’s emerged before that there were smaller councils like the Hanseatic League or the Swiss Confederation and the United Provinces of the Netherlands etc.

Embassies establishing bilateral needs were not sufficient and adequate to solve problems that arose between more than two states, there was a need to find a way so that interest of all the states can be represented so an International conference of all the representatives from several states was organized which came to be known as the principal originator IO namely Peace of Westphalia in 1648, which ended the thirty-year religious conflict of Central Europe and formally established the modern secular nation-state arrangement of European politics.

Till the first world war, the major issues were sought through conferences, for instance, in  1815 congress of Vienna marked the first systematic attempt to regulate international affairs by means of regular international conferences.

Due to several inconsistencies in the ad-hoc nature of these conferences, because they were only state-specific in nature and could only be called upon by the initiative of the interested states, international NGOs and public international unions like the International Committee of Red Cross and the inter-governmental associations emerged during the 19th Century for efficient functioning of vital arteries of communication such as the Rhine and Danube rivers.

With the continuous evolution of the society, it was noticed that an efficient body of IO can be established, and the League of Nations was the first international organization which was designed not just to organization operation between states in areas which some have referred to as ‘low politics’, such as transport and communication, or the more mundane aspects. However, after World War II, the league of the nation was disbanded due to its inefficiency and the United Nations was founded in 1919.

Conclusion

International law has emerged through various sources which have been codified in Article 38 of the ICJ statute which identifies customs, treaties and general principles as formal sources of International Law. However, the Judicial decision is given by the world court also acts as advisory opinions in guiding the development of International law.

Various philosophers and juristic theorists have enlightened the philosophy of  International law through their theories and principles as well. International Law helps in Identifying states as an entity of the world community through various modes so as to provide them with rights and duties. To ensure peace and order amongst the nation-states, International Organisation plays a major role in increasing cooperation and upholding the international law which has emerged from various sources.

References

1. Bowett’s International Institutions, pp. 6–9.
2. El Erian, ‘Legal Organization’, p. 58.
3. https://chilot.blog/wp-content/uploads/2011/06/international-organizations.pdf
4. https://foreignpolicy.com/2010/04/13/how-does-the-u-s-decide-which-governments-to-recognize/
5. 145 F.2d 431 (1944); 12 AD, p. 29. 
6. The Sources of International Law’ (Lawteacher.net, October 2019) <https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-law.php?vref=1> accessed 27 October 2019.
7. Available at: https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL_LAW_LECTURE_NOTES
8. Sources of International law In the light of Article 38 of the International Court of Justice By Shagufta Oma.
9. The Sources of International Law’ (Lawteacher.net, October 2019) <https://www.lawteacher.net/free-law-essays/international-law/the-sources-of-international-law.php?vref=1> accessed 27 October 2019.
10. Peter Malanczuk & Akehurst’s Modern Introduction to International Law, (London: George Allen & Unwin, 1997); 49.
11. The additional clause relating to recognition by ‘civilised nations’ is regarded today as redundant: see e.g. Pellet, ‘Article 38’, p. 769.
12.  Israr Khan, Article 38 of the Statute of the International Court of Justice: A Complete Reference Point for the Sources of International Law, THE NEW JURIST, 5th April 2019.
13. https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf
14. http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm

To Know more about the law of the sea, please Click Here.

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

The post Origin, Sources of International Law including Customary Rules appeared first on iPleaders.

This Article is written by Dhruv Vatsyayan. He is pursuing his B.A.LL.B. at Law School, Banaras Hindu University and is in his first year. In this article, he discusses provisions for Protection in respect of conviction for offences with a special focus on Article 20 of the Indian Constitution.

Introduction

Every day in our daily lives, we come across various news reports where someone is being accused of some offence(s).

The basic question which every legal enthusiast faces on coming across these is whether there is some sort of fundamental rights or protection for the accused ones or ones to be presented before courts for trial.

Our great Constitution makers must have also faced the same question and dilemma at the time of framing of the constitution. Thus, to deal with the same, Article 20 was included in Part III of the Indian Constitution.

Article 20 of the Indian Constitution makes up of 3 clauses.

In a simpler sense, these three clauses deal with issue of unnecessary and rather undesirable actions by Legislature, Executive & implementing authorities.

The basic crux of these provisions are:

• First, it establishes that no one should be convicted for any offence other than those violating the law in force at the time of the commission of the offence and also, one couldn’t be penalised with a greater punishment than what existed at the time of the commission of the act.
• Second, no one could be convicted and punished more than once for the same offence involving the same set of facts.
• Third, no one should be compelled to produce such evidence and information which could be used against him during trial incompetent judicial tribunals.

Article 20 is among those Articles of the Indian Constitution, which can’t be put aside even during an emergency. Thus, forms a cornerstone of the Indian Constitution.

Now, let’s do a survey of three legal doctrines of the Indian Criminal jurisprudence, which reflects the three clauses of the Article 20, i.e. Ex-post facto law, Doctrine of Double Jeopardy and Prohibition against self-incrimination.

Provision against Ex post facto law: Clause (1) of Article 20

The provision in question, i.e. Article 20 (1) says that one must not be prosecuted and convicted in accordance with those laws which didn’t exist at the time of the commission of the offence by the accused and also must not be inflicted with punishments greater than those existing at the time of commission.

This provision negates the chance of retrospective implementation of laws regarding criminal offences. In simpler speak, this provision brings a clampdown to the legislative prerogative of the legislation by prohibiting retrospective implementation of a law having criminal nature.

Illustration

Assume that a man, Bhairav Surve, practising black magic in Dhamangaon village of Maharashtra, murders a child of his locality on 20th December 2012. Later, in December 2013, the legislature of Maharashtra passes the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 and by virtue of provision against Ex post facto law, Bhairav Surve can’t be prosecuted and charged under the mentioned Act as the commission of offence dates back to when the act didn’t exist.

Though the legislation in India has the authority to implement laws retrospectively this clause prohibits the Legislature to enact a criminal law retrospectively. This provision ensures that no one could be booked or charged under such laws, which were not in existence at the time of the commission of the offence.

The Landmark judgement governing this doctrine came in the year 1953, in case of Kedar Nath v. State of West Bengal. In this case, the Hon’ble Supreme Court of India observed that, whenever an act is declared as a criminal offence and/or provides penalty for same by the legislature, it is always prospective in nature and can’t be implemented retrospectively to uphold what is being said under Article 20 (1).

However, only the procedure of sentencing and convicting is what is prohibited under this clause, and not the trial itself. Thus, a person accused according to a particular procedure can’t be questioned under this clause and doctrine of Ex post facto law.

Dealing with a similar situation, in the case of Mohan Lal v. State of Rajasthan (AIR 2015 SC 2098) which involved Narcotics, Drugs and Psychotropic Substances Act, the court opined that, only conviction and/or punishments under an ex post facto law is prohibited under Article 20 and not the trial or prosecution itself. Also, trial under a different procedure than what existed during the commission of the act doesn’t come under the ambit of the same and can’t be struck down as unconstitutional.

In another important judgement in case of Maru Ram Etc. vs Union Of India & Anr (1980 AIR 2147), the Court observed that Article 20 (1) also includes the rule that there will be no retrospective infliction of penalties heavier than those existing ones at the time of commencement of the offence.

However, an exception also exists to the restriction under this provision. In the case of Rattan Lal v. the State of Punjab, the Hon’ble Supreme Court allowed for such retrospective implementation of Criminal Laws, where the issue pertinent is, reduction of punishment in the said offence. Now, let’s discuss the Doctrine of Double Jeopardy.

Click Here

Double jeopardy: Clause (2) of Article 20

“Nemo debet bis vexari pro una et eadem causa”

The Doctrine of Double Jeopardy, which traces back its origin to American jurisprudence of punishment, means that ‘no person can be prosecuted and punished twice for the same offence in subsequent proceedings’. And, Article 20 (2), which reads that no one could be convicted and punished more than once for the same offence involving the same set of facts guarantees against the multiple convictions and Double jeopardy.

In the case of Venkataraman v. Union of India, the Supreme Court of India established that this provision deals exclusively with Judicial punishments and provides that no person is prosecuted twice by the judicial authorities. The most crucial landmark judgement came in case of Maqbool Hussain v. State of Bombay, where the person accused was possessing some amount of gold, which was against lex loci at the time and gold was confiscated by the customs authority. And, later when the person was prosecuted before a criminal court, the court was confronted with the question whether this amounts to Double Jeopardy.

But, the Supreme Court observed that departmental proceedings, i.e. by Customs Authority, in this case, doesn’t amount to trial by a judicial tribunal, thus the proceedings before the criminal court is not barred in this case and the proceedings can go on. In a nutshell Departmental Proceedings are independent of trial by a judicial court or tribunal.

However, the prosecution may happen if the facts are distinct in subsequent proceedings. Same was established by the Supreme Court of India in case of A.A. Mulla v. State of Maharashtra and was observed that; Article 20 (2) would not be attracted in those cases where the facts are distinct in subsequent offence or punishment.

The defence from prosecution for the second time has also been embodied in Section 300 (1) of CrPC which says that someone who had been convicted/prosecuted by a competent court for some offence will not be liable to be prosecuted again till the previous conviction/acquittal remains in force. Thus, prohibiting from a conviction for the second time, for the same offence and on the same set of facts. This provision does devise a rule for where the second trial is permissible and where not.

However, the application of this provision does demand certain conditions to be fulfilled: 

• First, that the accused or the person in question must have been tried by the court previously and it is concerned only with judicial prosecution and proceedings.
• Secondly, the court trying the case must be competent, i.e. it should act under its competent jurisdiction and shouldn’t exercise its power, Ultra Vires.
• Thirdly, the previous proceeding must have ended in either acquittal or conviction and if it ended merely after inquiry, such cases are not covered under the ambit of Sec 300 (1) of CrPC.
• Fourthly, the previous conviction/acquittal must be in force and should not have been set aside by appeal or re-trial. This is an essential condition because in absence of let’s say, previous conviction, there will be no bar for the second prosecution and the second trial may happen.
• And lastly, in the subsequent trial, he/she must be tried for the same offence and on same facts for any other offence, which is having a different charge under Section 221 (1)/(2) of CrPC.

Nonetheless, there exists an exception to this provision, i.e. the Principle of Issue Estoppel. The above-mentioned exception provides for estoppel against the ongoing prosecution if the fact-finding happens to be in favour of accused but it does not bar from subsequent proceeding for a different offence. However, to invoke this defence, not only the parties involved but the facts in issue should also be the same. Landmark case for the same is Ravinder Singh v. Sukhbir Singh.

As we’re done with Doctrine of Double Jeopardy, let’s now discuss Prohibition against self-incrimination.

Prohibition against self-incrimination: Clause (3) of Article 20

Another foremost rule which provides for protection from a conviction for offences is ‘Prohibition against Self-incrimination.’ The same is provided by the Constitution of India in Part III under Article 20 (3). It describes that no one could be forced to utter and provide such information or evidence orally or by documentary means which could be used against himself during the further trial procedure.

Also, the term ‘Witness’ includes both, Oral and documentary evidence as held in M.P. Sharma v. Satish Chandra. As held in the same case, however, there is no restriction where a search for document or seizures is being done by the authorities. However, the information and evidence produced voluntarily by the accused is permissible.

Let’s understand this with an illustration;

Let us suppose that there is some Mr Jones, who is being tried for an offence of murder of his stepbrother and while in police custody, he says that “I have killed my stepbrother”.

Same could be admissible in court under section 27 of Evidence Act and doesn’t violate Article 20 (3), but it is upon the prosecution to find out whether the information provided is voluntary or under compulsion. The rationale behind this is that the evidence must be in the form of communication and for the same reasons, the medical examination done during the course of a trial is permissible. This is why Narco Analysis test is frequently used by authorities to gather information and evidence and does not violate the provision under Article 20 (3).

Prohibition against self-incrimination could only be put into effect if the person is accused of a criminal offence. This doctrine could not be invoked for cases other than criminal cases. Also, as held by the Hon’ble Supreme Court in Narayanlal vs Maneck, to claim the immunity from being self-incriminated, there must exist a formal accusation against the person and mere general inquiry and investigation don’t form grounds for the same.

Article 20 (3) also lays out that a person cannot be compelled to be a witness in his/her own prosecution or case. This is also embodied in the American Constitution by virtue of 5th Amendment into it. Also, the authorities can not compel the accused to produce evidence, which can be used against his trial. Those evidence can be Oral or Documentary. However, an exception to this lies under Section 91 of CrPC which gives authority to a court or an officer to issue an order demanding documents that were under the possession of the accused. 

Another provision which guarantees prohibition against self-incrimination is Section 161 (2) of CrPC, which says that while being examined by the authorities, a person is bound to answer all the questions truly excepting those which have a propensity to be used against the person himself later during trial.

Thus, here we come to the end of the segment discussing Article 20 (3) of the Indian Constitution and other provisions providing for the prohibition against self-incrimination.

Conclusion 

If we would bother to analyse all the clauses of the Article 20 of the Indian Constitution, we would come across this interesting inference that these clauses i.e. Article 20(1), Article 20(2) and Article 20(3) reflects protection of convicted persons from excess of Legislation, Judiciary and Executive actions respectively.

Also, these protections are available to all the people i.e. Indians as well as foreigners and thus forms the bedrock of the Indian Constitution and guarantees basic human rights to the convicted and accused people.

Its availability even during when an emergency is being imposed under Article 352 of the Indian Constitution is what makes it unique and so much important for the discharge of democratic values.

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

The post Protection in respect of Conviction for Offences: Blend of Constitutional & Procedural Laws appeared first on iPleaders.