This article is written by Aniket Tiwari pursuing B.A.LL.B. (1st year) from Law School, Banaras Hindu University. This article is about one of the fundamental right of a citizen of India i.e. Article 14 of the Indian Constitution. Here this article includes all the information about Right to Equality.

Introduction

In general sense, everybody here is capable of understanding Article 14 of the Indian Constitution i.e. “Right to Equality”. Even after 73 years of independence, our country is not able to gain actual independence. Evils like discrimination are still prevailing in our country. Even the one who created our Constitution suffered from this anathema. Even now there are some places where people are not treated equally and they are discriminated on different basis like religion, race, sex, caste, place of origin, etc.

By knowing the scenario of India our Constitution-makers added Article 14 in Indian Constitution as the fundamental right to citizens as well as those who are not a citizen of our territory. 

The main purpose of writing this article is to bring clarity about Article 14. When we see a husband treating his wife badly, a girl who is not able to complete her education due to family pressure, a lower caste man being shown inferior to upper caste people. These are examples of discrimination. Here we can understand how important the role of the state is to maintain the equality of citizens.

Article 14 basically states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

To treat all citizens equally is the basic concept of liberalism and Article 14 ensures the same to our citizens. The liberty of any person is directly connected to the equality he/she is getting in society.

Equality before Law

Our country as we all know is a democratic country and in fact the largest democratic country in the world. Here all are independent to think about anything, do anything (with reasonable restriction though) and our state is there to put reasonable restriction. In the eyes of law, all persons within the territory of our country should be treated equally.

Equality before Law basically means that all persons should be treated equally no matter whether they are poor or rich, male or female, upper caste or lower caste. This state cannot provide any special privileges to anyone in the country. It is also known as legal equality.

Equality before the law and absolute equality

On one hand, Equality before Law prohibits providing any special privilege to any community or people. It does not talk about equal treatment in equal circumstances. According to it, there must be a very ideal condition and the state does not need to interfere in society by providing additional privileges in society.

On the other hand Right to Equality is not absolute and has several exceptions to it. Accordingly, equals should be treated equally. Equality before Law has several exceptions, for example, the Immunity provided to the President and Governor. Reservation is also a typical example that defines that the Right to Equality is not absolute and can be restricted (or rather used properly) according to the need of the society.

In the very famous case of State of West Bengal v. Anwar Ali Sarkar, the question of whether the Right to Equality is absolute or not was raised. Here Supreme Court held that the Right to equality is not absolute. In this case, the State of Bengal was found to use its power arbitrarily to refer any case to the Special Court which was made by them. It was thus held that the Act of State of Bengal violates the Right to Equality.

Equality before the law and Rule of Law

We have already discussed the Equality before Law in detail however there is also a direct connection between Equality before Law and Rule of Law. In Fact, the Rule of Law which is given by Prof. Dicey says that no one here is beyond or above the law and is equal in front of the law. Rule of Law guarantees every person the Equality before Law.

The Rule of Law states that in a country all should be treated equally and as there is no state religion so it (state) should not discriminate against any religion here the concept of uniformity should be applied. Basically, it is derived from Magna Carta (is a charter of rights signed in the UK)  which prohibits the arbitrary power of the state.

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Equal protection of the Laws

This is one of the positive concepts of Equality. Equal protection of the law is incurred from Section 1 of the 14th Amendment Act of the US constitution. According to this principle, everybody who resides in India should be treated equally and will get equal protection of the law. It guarantees all people inside the territory of India should be treated equally and the state cannot deny it (for equal protection of the law).

It puts the positive obligation on the state to ensure the prevention of law. This can be done by bringing socio-economic changes.

The same concept has been discussed in Stephens College v. The University of Delhi. In this case, the admission process of college was checked and the main issue raised was the validity of preference given to Christian students in the admission process. Here the Supreme Court held that minority institution which is receiving aid from state funds is entitled to grant preference or to reserve seats for the students of its community.

The Supreme Court held that differential treatment of candidates in the admission programme does not violate Article 14 of Indian Constitution and it is needed for the minority section.

Equality – A positive concept: Basawaraj v. the Spl. Land Acquisition Officer

In the famous case of Basawaraj v. The Spl. Land Acquisition Officer where the appellant went to the Supreme Court for the unsatisfactory decision of High Court of Karnataka. According to the appellant, the High Court committed an error by not condoning the delay as there were enough reasons for them to be not able to reach the High Court on time. It is a well established legal proposition that Article 14 of the Indian Constitution is not there to create perpetual illegality, even by extending the previous wrong decision.

It was held that here the appellant was negligent on their part as the appellant was not able to show the sufficient cause for the delay and thus here their appeal was rejected.   

Access to Justice

By equality before the law, it means everyone has access to justice. No one can be barred from access to justice. Here all should be treated equally in front of the judicial system. The word “Access to Justice” includes some basic rights of a person. By term access to justice, we mean that every person should have the right to appear in court.

Also, there are many people who are deprived of access to justice due to economical knowledge or due to lack of awareness. Here it means that the government needs to play a vital role in providing justice to them. For granting Access to Justice we need to reform our judicial system. We need to work on the legal aid system.

Protection against arbitrariness

There is a thin line of difference between being arbitrary and non-arbitrary actions. The right to equality prevents the arbitrary action of the state. This article speaks about the Equal Protection of Law and it is against the doctrine of arbitrariness. For protection against arbitrariness, there are several restrictions put on every organ of the state. It is an important part to prevent the organ of the state from making any arbitrary decision.

The doctrine of legitimate expectation

The doctrine of legitimate expectation is basically not a legal right but rather it is a moral obligation on the part of the administration to look and make laws that provide equality to all people in a territory. It gives the right of judicial review in administrative law to protect the interest of people when public authority fails to do so (or when Public authority rescinds from the representation made to a person).

It acts as a bridge between the expectation of individuals and any act of authority. However, these expectations needed to be reasonable and logical that’s why they are called legitimate expectations.

There are several instruments provided by the court for achieving the motive of authoritative law (here motive is to meet the legitimate expectation). These instruments are provided to prevent everyone against the misuse of power by the organs of the state. It put a type of restriction( although it is a moral restriction) on a state to use its power arbitrarily.

Constitutional Validity of Special Courts

It was discussed earlier that Equality before Law is not absolute and has several exceptions to it Article 246(2), is one of such exceptions. Article 246(2) states that:

“Notwithstanding anything in clause (3), Parliament and subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule”(here List III is Concurrent List). 

The validity of Special Courts which were established under the Special Courts Act has been questioned in  The Special Courts Bill v. Unknown case. It was questioned whether the formation of special courts under this Act was not violating Article 14 of the Indian Constitution. It was held that as there was reasonability and logicality information of these special courts so these courts are constitutionally valid.

Administrative discretion

It is the freedom of administration to react or decide any situation according to the circumstance. Here it becomes important for one to understand the term discretion first. Discretion basically describes the understanding of any person to decide what is wrong and what is right, what is true and what is false etc and reacting to these situations accordingly. Nextly I would like to explain the need for administrative discretion.

The legislature legislates any law on many presumptions and it cannot exactly foresee everything that is going to take place because of that law. The main purpose of administrative discretion is to maintain equality in all sections of society. However, this administrative discretion should not go beyond the line and should be used with proper care. The discretion may amount to arbitrariness.

Reasonable Classification Test

Here, in the case of Ram Krishna Dalmia v. Justice Tendolkar, the Supreme Court describes the jurisprudence of equality before the law. The test to determine whether conducts of state are constitutionally valid or not. The very famous “classification test” has been given in this case only. Here the High Court held that a Government can make a commission to enquire a case when it is necessary to do so. Here the main purpose of the government is to make any commitment to help matters of public importance.

It’s a case of administrative discretion. Here ultimately the freedom to make any decision rests in the hand of the government. In this case, also it was held that the actions of the government are reasonable and are justified by the law.

The Supreme Court decided that in any political democracy by the term equality we mean social and economic equality. There is no other kind of equality and the state should ensure this social and economic justice at any cost.

Test of Reasonable Discretion

In the very famous case of Oregano Chemical Industries v. Union of India, the petitioner(Oregano Chemical Industries) filed a petition under Article 32 of the Constitution against the order Regional Provident Fund Commissioner which imposed a high penalty under Section 14(B) of the Employees’ Provident Funds and Miscellaneous Provisions Acts, 1952 for the delayed payment of Employees’ Provident Funds and Family pension of their employees’. Here the conflict arises between Section 14(B) of Employees Provident Funds and Miscellaneous Provisions Act,1952 and Article 14 of the Indian Constitution. Here the government was directed to provide the remedy allocable to the Fund so that damages may be compensated.

Section 14(B) states the right of the Central Provident Fund Commissioner or such other officer as may be authorised by the Central Government to recover damages from the employer who have failed in the contribution to the fund-provided that such employer has given enough chance to be heard before recovering such damages.

This section also provides that their damages can be waived if there is a sick industrial company by the Central Board. Here the Court held that in this case, the government has arbitrarily used this section which is beyond the reasonable discretion of the government and is a type of violation of Article 14 of our constitution.

No equality in illegality

There cannot be equality before the law for the person who is a wrongdoer. A person who is doing illegal acts cannot ask for Right to Equality in front of a court or the judicial system. The case of Baliram Prasad Singh v. State Of Bihar of Patna High Court clearly explains that there cannot be equality for illegal acts.

Here, in this case, the petitioner was himself at fault therefore he was made to compensate for his illegal act. Here the question which may arise is what would happen to the person who has already proved that he/she has committed a crime by not treating a person equally. But actually, here the main problem is that there is no remedy for a wrongdoer.

Conclusion

At last, I would like to conclude that as our country is democratic so we need to give a certain fundamental right to every citizen and ensure that these rights should not be infringed by anyone even by the state itself. Right to Equality which is provided by our constitution is not actually being properly enforced even after so much legal obligation related to it has been put forward by our judicial system.

Our judiciary along with the other two organs of state are working very hard to maintain equality among all the citizens of our country then also until the citizens are not aware of their rights it becomes very difficult to eradicate inequality. The role of the citizens became very vital for the protection of their own rights. 

Right to equality needed to be applied in a practical sense so that no one is deprived of their rights. From Mahatma Gandhi to Bhim Rao Ambedkar everyone dreamt of the country where there is no place of discrimination.

References

1. SCC Online.
2. https://blog.ipleaders.in/right-to-equality/

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 of Right to Equality under Article 14 of the Constitution appeared first on iPleaders.

This article is written by Tanya Gupta, a 2nd-year law student, from BVP-New Law College, Pune. In this article, the author has discussed the concept of “Jurisdiction of Civil Courts”.

Introduction

Jurisdiction has not been explained in the Code of Civil Procedure. In simple words, it can be described as the power of the court to settle the matter. The Indian Judiciary has invoked the ancient legal maxim ‘Ubi jus Ibi Remedium’, which means that where there is a right there is a remedy. The judicial forum must have jurisdiction to deal with the matter. Hence, the Jurisdiction commonly rests where the crime is committed.

Meaning of jurisdiction

Jurisdiction is defined as the limit of judicial authority or extent to which a court of law can exercise its authority over suits, cases, appeals etc. A 1921 Calcutta High Court judgement in the case of Hriday Nath Roy Vs Ram Chandra sought to explain the meaning of the term ‘Jurisdiction’ in detail. An investigation of the cases in the texts shows several attempts to explain the word Jurisdiction which has been declared to be the power to hear and determine the issues of law and the fact or the authority by which their judicial powers take knowledge of facts and decide causes or the authority to hear and decide the legal dispute or the power to hear and determine the subject matter in the dispute among the parties to a suit and to adjudicate or exercise any judicial power over them or the ability to hear, determine and declare judgement on issues before the court or the power or authority which is given to a court by government to understand and learn causes between parties and to give a judgement into the effect or the power to enquire into the facts to apply the law to pronounce the Judgement and put it into execution.

Lack of jurisdiction and irregular exercise of jurisdiction

Whenever the suit is made before the court the initial issue is to decide whether the court has jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or subject matter jurisdiction then simply the court has the power to deal with any of the cases. If the court does not have any of the jurisdiction then it will be recognised as lack of jurisdiction and irregular exercise of jurisdiction. When the court does not have jurisdiction to decide the case then such decision will be regarded as void or voidable depending upon the circumstances.   

The basis to determine jurisdiction

Jurisdiction is determined mainly on the grounds of:

1. Fiscal value;
2. Geographical boundaries of a court;
3. The subject matter of court.

So, the Court, before accepting notice of crime, need to take into consideration the following characteristics:

• The Fiscal value of the trial.
• The specialities of the case.
• The regional limits of the court.

It is not only suitable that panel should have any right to deal with the issue or that the court has a pecuniary jurisdiction of the court has a local jurisdiction, but the court must be able to grant the compensation in such matter. In the case of Official Trustee Vs Sachin Nath, the court held that in order to deal with the topic the court must not be the only jurisdiction to decide a specific matter but also the court has the ability to give the order for which it is examined.

Courts and Tribunals

Jurisdiction of foreign courts

A foreign court is described as a court outside India and not authorised or continued by the authority of the Central Government, and a foreign judgement means a judgement of a foreign court. In other words, a foreign judgement means an adjudication by a foreign court upon a matter before it. The following conditions would give power to the foreign courts to adjudicate a matter presented before it:

1. When the person is a subject of a foreign country in which the judgement has been obtained.
2. If he was a resident of a foreign country when the action was commenced and the summons was served on him.
3. When the person is in the character of plaintiff chooses the foreign court as the forum for taking action in which forum he issued later.
4. When the party on summons voluntarily appeared.
5. When through an agreement, a person has agreed to present himself to the forum in which the judgement is obtained.

Kinds of jurisdiction

Territorial or local jurisdiction

Under this territorial or local jurisdiction, the geographical limits of a court’s authority are clearly delineated and specified. It cannot exercise authority beyond that geographical/ territorial limit. For example, if a certain crime is committed in Madhya Pradesh, only the courts of law within the borders of Madhya Pradesh can hear and decide the case. Furthermore, Section 16 of the Code of Civil Procedure explains the territorial jurisdiction on the grounds of the location of the immovable property. In the case of Harshad Chiman Lal Modi Vs D.L.F Universal Ltd , the court interpreted Section 16 that the suit pertaining to immovable property should be brought to the court. The court does not have the power to decide the rights of property which are not situated. However, the court can still pass a relief if the opposite party agrees to try the suit in such a case.

Pecuniary jurisdiction

Pecuniary means ‘related to capital.’ It approaches the question of whether the court is competent to try the case of the financial value. The code allows analysing the case unless the suit’s value exceeds the financial limit of the court. Section 15 of the Code of Civil Procedure commands the organisation of the suit in the court of the low grade. It refers to pecuniary jurisdiction of Civil court. It is a course of the method and it does not affect the jurisdiction of the court. The main objective of establishing pecuniary jurisdiction is to prevent the court of a higher level from getting burdened and to provide assistance to the parties. However, the court shall interfere if it finds the judgment to be wrong. For example, ’A ’wants to accuse ‘B’ due to a violation of the contract to obtain Rs 5000 in Bombay. The Bombay High Court has original jurisdiction and small causes court with the jurisdiction up to Rs 50000. So, a suit to obtain Rs 5000 should ideally be dealt with small causes court. In the case of Karan Singh Vs Chaman Paswan the plaintiff filed a suit in the subordinate court involving an amount of  Rs 2950, but the court rejected the case. Later his next appeal was allowed by the High Court, but it ordered him to pay the deficit amount. The appellant contested that the decision of the district court will be a nullity, but the High Court dismissed the claim. Later the Supreme Court confirmed the decision of the High Court declaring that the decision of district court won’t be void.

Jurisdiction as to the subject matter

The subject matter can be defined as the authority vested in a court to understand and try cases concerning a special type of subject matter. In other words, it means that some courts are banned from hearing cases of a certain nature. No question of choices can be decided by the court which do not have subject matter jurisdiction. Section 21 of the Code of Civil Procedure is related to the stage challenging the jurisdiction. For Example, “Ranveer”, a resident of Sonipat bought a food item of ‘AA’ brand that was plagued with pests. He should prosecute ‘ZZ’ company in Sonipat District forum rather than District Civil Court of Sonipat.

Original and appellate jurisdiction

Appellate jurisdiction refers to the court’s authority to review or rehearsal the cases that have been already decided in the lower courts. In the Indian circumstances, both the High Court and Supreme Court have the appellate jurisdiction to take the subjects that are bought in the form of appeals.

Original Jurisdiction refers to the court’s authority to take notice of cases that could be decided in these courts in the first instance itself. Unlike appellate jurisdiction wherein courts review the previously decided matter, here the cases are heard afresh.

Exclusive and concurrent jurisdiction

In Civil Procedure, exclusive jurisdiction means where a single court has the authority to decide a case to the rejection of all the courts. This jurisdiction is decided on the basis of the subject matter dealt with by a specific court. For example, the U.S District courts have particular jurisdiction on insolvency topics.

Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a particular case. In this situation, parties will try to have their civil or criminal case heard in the court that they perceive will be most favourable to them.

General and special jurisdiction

General jurisdiction means that general courts do not limit themselves to hearing only one type of cases. This type of jurisdiction means that a court has the power to hear all types of cases. So the court that has general jurisdiction can hear criminal, civil, family court case and much more.

Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the defendant’s home state if that defendant has minimum contacts within the state where the suit will be tried.

Legal and equitable jurisdiction

Equitable jurisdiction belongs to the authorities of the courts to take specific actions and pass some orders in order to deliver an equitable and reasonable outcome. These judgments are usually outside the purview of law, in the sense that support provided by the courts may not be necessarily confirmed by the statue. In the case of K.K.Velusamy Vs N.Palanisamy, the Supreme Court of India held that Section 151 does not give any special jurisdiction to civil courts, but only presents for the application of discretionary power to achieve the ends of justice. This suggests that the court cannot give any such order which may be denied under any law in such an order that may be prohibited under any law in order to achieve the ends of justice. This would lead to the conclusion that such equitable jurisdiction is secondary to the authority of the courts to implement the law.

Expounding and expanding jurisdiction

Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the court to clarify its jurisdiction and it is not proper for the court to extend its jurisdiction.

Jurisdiction of civil court

Section 9 of CPC

Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It declares that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits of which their cognizance is either expressly or impliedly barred.

Conditions

A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:

1. The suit must be of a civil nature.
2. The cognizance of such a suit should not have been expressly or impliedly barred.

i) The suit of civil nature

Meaning

‘Civil Suit’ has not been explained in any act. Any suit that is not criminal in nature can be termed as a suit of a civil nature. Any suit that pertains to determination and implementation of civil rights may be defined as a civil suit. In the case of Kehar Singh Nihal Singh Vs Custodian General, the court elaborated the concept of Civil proceeding. It was defined as a grant of private rights to individuals or corporations of society. The objective of the action is the reward or recovery of private rights. In other words, the civil action may be described as the proceeding between two parties for implementation or redressal of private rights. 

Nature and scope

The expression ‘suit of civil nature’ will cover the private rights and obligations of the citizens. The political and religious question is not covered by a suit of a civil nature. A suit in which principal question is related to caste or religion is not of a suit of a civil nature. But if the main question in a suit of civil nature involves the decision relating to caste question or to religious rites and ceremonies it does not terminate to be a suit of a civil nature. The court has jurisdiction to decide those questions also, in order to decide the important question which is of civil nature.

Explanation of doctrine

Each phrase and description assigns a duty on the court to apply jurisdiction for the accomplishment of rights. No court can decline to examine if it is of the information mentioned in Section 9 of the Code of Civil Procedure. The word civil according to the dictionary suggests, associating to a citizen as an individual. The word nature has been called the primary qualities of a person or thing. The word civil nature is prevalent than the word civil proceeding. The doctrine described the theory of the jurisdiction of civil courts under section 9 of the Code of Civil Procedure in PMA Metropolitan Vs M.M. Marthoma the Supreme Court observed that:

• The phrases used in section 9 has a positive and negative intent.
• The original part has a broader sense as it includes all the problems of civil nature; on the other hand, the latter part has a wider sense as it refuses the topic which is impliedly or expressly barred.
• The two reasons mentioned in Section 9 reveals the legislative purposes.
• It designated duty on the court to perform the jurisdiction for the implementation of private rights
• No court has the benefit to refuse the matter which introduces under this section
• It is necessary to take the knowledge of matter because the word “shall” is used, which means that it is a compulsory section.

In the case of  Shankar Narayanan Potti vs K. Sreedevi, the Supreme Court held that the ‘Civil Court has primary jurisdiction in all types of civil matters as per Section 9 of CPC unless the action is expressly or impliedly barred.” This means that Legislature can defeat the jurisdiction of the civil court by adding a provision or clause in any Act itself. In the case of Shri Panch Nagar Park vs Purushottam Das it was held that if there are no specific terms in any statute the court needs to look into design, plan and suitable provisions of the Act in order to find implied dismissal of the jurisdiction of a civil court.

Test

A suit in which the right to property or to an office is struck is a suit of a civil nature, notwithstanding that such right may depend only on the choice of a question as to religious rituals or ceremonies.

ii) Cognizance not barred

A claimant having a complaint of a civil nature has the power to begin a civil suit unless its cognizance is barred, either expressly or impliedly.

Suits expressly barred

A suit is said to expressly barred when it is prohibited by the statute for the time being in force. It is subject to the competent legislature to bar the jurisdiction of civil courts with regard to a specific class of suits of civil nature, provided that, in doing so it retains itself within the scope of legislation given to it and does not contradict any terms of the constitution.

Suits impliedly barred

A suit is said to be impliedly barred when it is said to be excluded by general principles of law. When a specific remedy is given by statute, it, therefore, denies a person who requires a remedy of any different form than is given by statute. When an act formed an obligation and made its performance in a specified manner that performance cannot be implemented in any other manner.

Presumption as to jurisdiction

In dealing with the subject whether a civil court’s jurisdiction to analyse a suit is barred or not, it is necessary to bear in mind that every opinion should be made in support of the jurisdiction of a civil court. The rejection of the jurisdiction of a civil court to entertain civil causes should not be easily inferred unless the appropriate law contains express terms to that effect or points to a significant and inevitable implication of nature.

Burden of proof

It is well proved that it is for the party who tries to dismiss the jurisdiction of the civil court to establish it. It is uniformly well established that the statue dismissing the jurisdiction of a civil court must be strictly explained. In the case of doubt as to jurisdiction, the court should lean towards the theory of jurisdiction. A civil court has original authority to determine the issue of its own jurisdiction although as a consequence of such query it may become that it has no jurisdiction to consider the suit.

Exclusion of jurisdiction: Limitations

The common assumption is that the civil court has the jurisdiction to try the case. The prosecution has a case of a civil nature has, independent of any statute, a power to initiate a suit in a civil court unless its notice is expressly or impliedly barred yet it cannot be said that the jurisdiction is entirely eliminated. In the case of Secretary of State Vs Mask & Co, the Privy Council rightly mentioned that it is established law that the exclusion of jurisdiction of the civil court is not to be readily inferred but that such prohibition is either impliedly barred or explicitly expressed. It is also established that civil court has jurisdiction to examine into the cases which have not complied with fundamental principles of judicial procedure. In the case of State of A.P. Vs Majeti Laxmi Kanth Rao, the apex court has analysed to decide the elimination of jurisdiction of the Civil Courts. Firstly, the legislative intent to remove the suit is to be decided. It could be either directly or implicitly. The court needs to find and deduce the causes for the exclusion of the Civil courts and the explanation for it but the reason is not directed for judicial examination. After the court is convinced with the grounds, the court must find out whether the statute that prohibits the jurisdiction grants for an alternative remedy. In case there is no alternative remedy possible, the civil court’s jurisdiction cannot be eliminated. But it was ruled in Balawwa v. Hasanabi, Civil court’s jurisdiction is terminated with regard to a tribunal established by a statute only to the extent that the support granted by the tribunal in question. In this aspect, the Allahabad High court in various judgements has held that the suit is decreased from the jurisdiction of civil courts of the knowledge of the complete suit is forbidden. It means that for some suits wherein some parts are not decided by the civil court because of implied or express prohibition, it does not mean that the entire suit will be prohibited. As the additional points of law are exceeding the purview of the tribunal or even if it is within its scope of the particular tribunal regulated under the act, civil court’s jurisdiction is not restrained as it could still pass judgement as it still has the original jurisdiction to consider the suits. The situation remains obscure whether the appropriate tribunals under the act can give the order with regard to the part of the trial wherein the jurisdiction of the civil court is obstructed.

Principles of exclusion of jurisdiction of civil court

Dhulabhai v. state of MP

Hidyatullah summarized the following principles relating to exclusion of jurisdiction of civil courts:

1. When a statute provides finality to the orders of particular tribunals, the civil court jurisdiction must be kept to be prohibited. Such a provision does not eliminate those cases where the terms of the act have not complied with fundamental laws of judicial method.
2. When there is an express bar of jurisdiction of the court, an examination of a scheme of a particular act to find the adequacy or sufficiency of remedies provided may be important but this is not crucial for maintaining the jurisdiction of a civil court 
3. It examines the terms of a specific act as ultra vires cannot be brought before tribunals constituted under the act. Even the High Court cannot go for revision or reference from the decision of the tribunal.
4. When the terms are already stated illegal or declared the constitutionality of any terms is to be challenged, then a suit is open. A writ of certiorari may introduce a direction to refund but it is not a necessary remedy to compensate a suit.
5. When the particular Act includes no method for a return of tax collected in excess of constitutional goals, a suit lies.
6. Prohibition of the jurisdiction of a civil court is not ready to be inferred unless the conditions above set down apply. 

Premier automobiles v. K.D Wadke

The Supreme Court laid down the following principles as relevant to the jurisdiction of civil courts in association with industrial disputes:

1. If a conflict is not an industrial conflict, nor does it correlate to the enforcement of any other right under the industrial dispute act, the remedy lies only in civil court.
2. If a conflict is an industrial conflict emerging out of a right or liability under the general or public law, the jurisdiction of the court is an alternative left to the person involved to decide his remedy for the support which is sufficient to be given in a particular remedy.
3. If an industrial dispute relates to the implementation of the right or a duty organised under the act, then the only remedy available is to get adjudication under the act.

Rajasthan SRTC v. Krishna Kant

The Supreme court summarized the following principles applicable to industrial disputes:

1. When the conflict originates from the common law of contract, a suit registered in civil court is not maintainable even though such conflict establish industrial dispute within the definition of Section 2(k) of Industrial Disputes Act, 1947.
2. When a dispute involves the recognition or enforcement of rights created by an enactment which is called sister enactments and do not provide a forum for the resolution of such dispute, the only remedy is to approach the forum created, provided they constitute industrial dispute within Section 2(k) of Industrial Disputes Act, 1947.
3. It is not right to say that the assistance provided by Industrial dispute act are not equally useful for the ground that entrance to forum depends upon a recommendation being made by the relevant government.
4. The power given is the power to suggest and not the power to decide, though it may be that the government is allowed to examine.
5. It is consistent with the policy of law aforesaid i.e command to parliament and state legislature to declare a provision allowing a workman to address the labour court- i.e., without the need of a recommendation by the government in case of industrial dispute included by Section 2-A of the Industrial Disputes Act.

Conclusion 

Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or legal executive acted within their jurisdiction. It can be presumed that section 9 essentially deals with the issue of the civil court’s jurisdiction to consider a matter. Civil court has jurisdiction to consider a suit of civil nature except when it’s notification is expressly barred or bared by significant suggestion. Civil court has jurisdiction to resolve the problem of its jurisdiction.

Reference

1. (1959) AIR P&H 58.
2.  Code of Civil Procedure.

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 Jurisdiction of Civil Courts Under Code of Civil Procedure appeared first on iPleaders.

This article is written by Abhishek Dubey student of a 2nd-year student of BBA LL.B. This article deals with the details of different types of merger and acquisition structure and the difference between them.

Introduction

Mergers and acquisitions have become very popular in the corporate sector today. Both the terms look similar but there is the key difference between them. A merger occurs when two separate companies combine and form a new entity which results in new management and ownership.

An acquisition refers to the takeover of one entity by another, in acquisition small entity becomes part of the new entity. In an acquisition, one entity takes over the management of other entity and then all the further decisions are taken by them together as one company.  A merger and acquisition structure is an agreement between the two parties which lays down the rights and obligations of both parties. It lays down the duty and the rights of each party for carrying out in entity.

Basics of merger and acquisition structure

Merger and acquisition occur when two companies come together to form a new entity due to economic, social, personal reasons. It is possible only when two entities or parties mutually agree with each other. The terms and conditions on which they agree is known as a merger and acquisition deal structure. Deal structure is one of the steps which must be taken in a merger or acquisition. In deal structure, the objective of the entity is specified and every party involved are satisfied with the objective and also the risks are initiated and each party must bear that risk. The deal structure process involves:

• Negotiation.
• Observation of risk and how they will be managed.
• The condition under which negotiation will be cancelled.
• Amount of risk that can be tolerated.

Different Kinds of Merger and Acquisition Structure

There are five types of merger and acquisition structure:

1. Asset Sale

Asset sale refers to the sale of assets when a buyer purchases the assets of the company, where the individual value of assets is assigned to each asset. It is the best deal structure when it involves a cash transaction. The buyer chooses the assets that he wants to buy and can also acquire existing liabilities he wants to take up. Sometimes companies use this method when they have a lot of debt. When entities have a large amount of debts and they don’t pay it, their assets becomes a non-performing asset. To recover the loans, banks force companies to sell their assets.

Advantages of an Asset sale

• It gives a choice to the buyer the assets to purchase and not to purchase.
• The selling company continue to exist until and unless it winds up completely.

Disadvantages of an Asset Sale

• It restricts the buyer to purchase non-tangible assets.
• This may cost a high amount of tax to both buyer and seller.

Cases where banks forced the companies to sell their assets:

1. Reliance Group: Anil Ambani owes Rs.1,21,000 crore and had an annual interest liability of Rs. 8,299 crore asset put on sale by Reliance Group which included a telecommunication tower and optic fibre which together amounts to Rs.30,000 crore.
2. Ruia’s Essar Group: It has a gross debt of Rs.1,01,461 crore. The group is looking to sell its Essar oils which amounts to Rs 20 million tonnes per annum and also the Vadinar refinery, for Rs.25000 crore.

2. Slump Sale

As the name suggests, slump sale is the transfer of the whole business on ‘Going Concern Basis’ i.e the operation of entity will continue only the entity assets will be liquidated. In a slump sale, sale acquirer is interested not only in assets but the whole operation of the business. The operation continues as usual but under the arm of the acquirer.

Examples of Slump sale in India

1. Tata steel acquired the Usha Martin Ltd for Rs. 4300-4700 crore that would help in the reduction of debt of Usha Martin Ltd.
2. Tata Chemicals Ltd. acquired the business of precipitated silica for a consideration of Rs.123 crore.

Advantages of Slump Sale

• The motive for acquiring is that the purchaser is either to expand its existing business or diversify a new business.
• The entity continues to exist and only assets become liquidated.

Disadvantages of Slump Sale

• No values are assigned to individual assets and liabilities.
• If an entity has been undertaken for less than 36 months prior to slump sale then short capital gains interest will be laid down and the rate of which will be 34%.

3. Share Sale 

As the name suggests, it refers to a complete underlying of assets and liabilities. The acquisition of shares is the most common method of acquiring a company.

When the target has made a good image in the market and established a loyal customer base then it acquires the company along with the business.

Example of a Share sale in India

• Walmart’s acquisition of Flipkart is the biggest acquisition in India and it acquired 77% of Flipkart share which amounts to $16 million.
• In 2007, Tata acquired a share of 52 percent in Hutchison Essar Ltd. which amounts to $10 million.
• Tata Motor in the year 2008 acquired Jaguar Land Rover which amounted to $2.6 million.
• In 2009, ONGC acquired Imperial Energy, the UK based operating in Russia which amounted to $1.3 billion.  

Advantages of the share sale

• When a share is sold the seller is benefited from tax.
• A share sale is one of the simplest and cleanest methods from the seller’s point of view.
• If there are losses in the company then, in that case, the sale of shares are the best method to write off against corporate tax liabilities according to the buyer’s point of view.
• The relationship of the customer, supplier, banks after share sale is also transferred but the business continues to operate.

Disadvantages of the Share sale

• Third-party approval is sometimes required which can result in creating problems and results in delay or even sometimes completely destroy the structure.
• The value of some assets may result in loss such as transfer of patents and license.
• If a business sells on gain then tax is also deducted.
• The tax calculation sometimes is very complex.

4. Amalgamation 

It refers to a situation when the assets of the two companies are vested in one company. It is also known as the combination of one or more companies as one entity. It is also a process of absorption, where one powerful company acquires the weaker entity. But it differs from a merger that neither of the two companies is considered as a legal entity but in amalgamation, the assets and liabilities of the two companies are combined and they are considered a legal entity.

Example of Amalgamation in India

1. Maruti operating in India and Suzuki operating in Japan amalgamated to form a new company i.e. Maruti Suzuki Pvt.Ltd.
2. Satyam computers and Tech Mahindra Ltd.is an examples of an Amalgamated company.

Advantages of Amalgamation

• Competition between the two companies gets eliminated.
• Research and development are increased.
• Operating costs are reduced.
• The prices of goods are stable.

Disadvantages of Amalgamation

• This may result in a reduction of employees.
• Reduction in competition.
• Goodwill and image of the company lost.

5. Demerger

As the name suggests, when a large company breaks into small pieces or one or more entity and form a new one. It is also a manner of forming the business through the court-driven process. Demerger allows a company to work in a systematic manner which increases efficiency and effectiveness. It also gives shareholders an opportunity to participate in the management, operation, decision-making process.

Demerger also happens when a shareholder decides to unlock its core business into one new entity.

Example of Demerger in India

Wipro Ltd. the third-largest IT industry in India demerged into 3 subunits, Wipro consumer care, and lighting, Wipro product and services and lastly, Wipro infrastructure medical and engineering diagnosis all three companies together contributed to 14 percent of revenue.

The IT business contributes to 86 percent of revenue. In the financial year 2012, the company earned an operating profit of a total of 94 percent.

Global investment business USB said that shareholders have only one option to directly receive a share from the owner.

Barclay says that shareholders will get 12-15 percent in terms of compensation from demerger etc.

Advantages of Demerger 

• Demerger results in smooth operation when one entity split into two or more companies.
• When the company is big there will be a lot of chaos and confusion in and each department will blame each other when it will split then the responsibility will be limited and fixed.
• When demerger happens then the efficiency of operation of companies increases due to the specialisation.

Disadvantages of Demerger

• The companies lose their economies of scale when the company is big and there is a large economy of scale but after they split the economies of scale reduces.
• This also results in a clash of interests and egos because of the presence of more than one top management.
• This will also result in dissatisfaction of employees because they may be asked to move from one entity to another otherwise it may also result in loss of employees’ job due to the requirement of fewer employees after being split.

Difference between the structures of Merger and Acquisition

Manner of undertaking asset sale and slump sale

Asset sale and slump sale can be undertaken through a business transfer agreement. In Business Transfer Agreement the terms and conditions for sale of assets as well as consideration and liabilities attached are to be laid down.

Manner of undertaking share purchase

In a share purchase, the valuation of a share is done by a chartered accountant and deed which governs the share purchase is a share purchase agreement. In a share purchase agreement, the value of a share, terms and conditions and rights of acquirer and acquiree are governed and in case the acquirer is a foreign entity then the policy of FDI are governed.

Manner of undertaking amalgamation and demerger

1. Conducting a board meeting for consideration of the proposal for amalgamation and demerger.
2. Submitting the application to the NCLT with relevant documents such as

• Notice of admission in form no NCLT-2.
• An affidavit in form No. NCLT-6.
• A copy of the scheme of amalgamation.

3. The scheme of amalgamation should contain all relevant information such as the current financial position of the company, audit reports, any proceeding of company pending in court if any.
4. It may also contain information regarding the reduction of share capital etc.
5. Any scheme of corporate debts, if any consented by not less than 70 per cent of the creditor.
6. On receiving such an application tribunal may call the creditor for the meeting.
7. The copy of the scheme needs to be submitted to central government authorities, income tax authorities, etc.
8. For the approval of the scheme, the meeting is called in a manner as the tribunal may direct  and when 3/4th of creditors approve it the scheme becomes effective.
9. If any modification is necessary the tribunal makes arrangements or compromises are done as deemed to be fit by the tribunal.

Conclusion

A deal structure steps in merger and acquisition structure methods are asset sale, share sale, etc. Each structure has its own advantages and limitations and structuring a proper deal structure can be complicated and challenging sometimes. Employing the right kind of financial, legal advice can convert it into less complicated. The two important documents required for a good deal structure letter of intent and term sheet. The term sheet is not legally binding until and unless stated by every party it states the terms and conditions of financial statement and letter of intent it is a document stating the intention of buyer and seller.

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

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This article has been written by S.Aditya an alumnus of KLE Society’s Law College, Bengaluru. This article envisages an understanding of company with respect to body corporate and illegal association. This article has been written to encompass various facets of the meaning and nature of a Company.

What is the Company?

Company is an artificial person created by Statute of legal sanctity, having “separate identity” and “perpetual succession”. Legal sanctity of a company is provided under the Company’s Act 2013 and previous legislations animate a company with a personality almost similar to that of a physical person. As per the provision 20 of the definition clause of the Act, a company simply means a company incorporated under the Act; or under any previous relevant law. These Companies incorporated under this enactment must operate under the boundaries defined by this Act. 

In the famous case of S.S. Dhanoa, the Supreme Court referred to the definition of Corporation as given by C. J. Marshall of U.S.A. in the celebrated case of Dartmouth College. A corporation has been addressed as a legal creature existing only in law and its characteristic properties are the ones conferred impliedly or expressly upon it by law. The aforementioned definition very much constitutes a very easy way to understand the explanation of a corporation and the same can be extended to understand the legal identity of a Company.

Key or Characteristic features of Companies

• Legal Authentication to Company: A Company can only be established according to the provisions of law of the land. In India, the enterprises are registered and established under the Companies Law, excluding the Insurance and Banking enterprises for which another definite law (Banking Act and Insurance Act) is furnished.
• Independent Legal Personality: A company has a defined independent legal entity which is different from constituting members. As an independent person in law, a company may possess and convey any kind of properties; it may be a party to a contract and even open a bank a/c in its own name.
• Capped Liability: The liability risks of the member shareholders of a company, unlike a conventional partnership firm, is restricted to their portion of the shares. Incorporating a Company is a preferable choice for fixed risks. 
• Never Ending Succession: The company is an inanimate person established by legal statute and continues to exist regardless of the member numbers or even existence. A company can only be dissolved by law. Even the circumstances of insanity/ death of any of the member shareholders of the company make no dent to the Company’s existence.
• Common Insignia: The company is an unreal person, and thus cannot sign its name like me and you. Hence, every company is mandated to have its own seal which works as an official signature of that company. Any document which does not carry the seal is not authenticated by the Company.
• Ease of Transfer of Shares: The shares of a Public Limited Company (PLC) are transferable. The authorisation of any member of the firm is not required for the conveyance of shares. The comfort of the transfer of shares garners the Company better trust amongst its shareholders.
• Court Ready: A company is a legal person, it can get into contracts. It can accuse and be accused in its name if there is a breach of contract by the other party or itself. The separate legal identity of the Company is meant to ease the litigation process involved.

Lifting Corporate Veil

As mentioned before, the company enjoys a separate legal entity and has a personality other than that of its individual members. But this characteristic feature of a company is sometimes used maliciously by the majority stakeholding members of that company. The director member, may at times, perpetrate illegal activities in the name of the company, aiming to shift the liability on the separate legal entity of Company;

Hence gaining personal benefits at the cost of various stakeholders. But the situation where a separate legal entity given to the company is used by the perpetrator as a veil between himself and course of justice of the Court or the Government pierces through such artificial veil. 

Such lifting of the Corporate veil can be carried out through the following:

1. Judicial Interpretation 
2. Statutory Interpretation

For instance: Germany was declared an alien enemy by Britain after World War-II and hence, if German citizens were to open a company in Britain and send all the profits back to Germany, the British government or court may choose to lift the corporate veil to make the promoter and other directors of such company liable.

Case Law: The celebrated case of Salomon v. Salomon & Co. Ltd. 

• Facts: Mr Salomon had incorporated his old family business of shoe manufacture into a limited company. He was holding 99.97% of the shares and the other 6 members of his family held one share each, making their share 0.029% of the total. The company went into loss after some time. The debentures in the company were held mainly by two individuals and Mr Salomon was one of the Debenture holders. When the company was liquidated, both the Debenture holders recovered the money, i.e. Mr Solomon also recovered the money. Therefore the minor, unsecured creditors got nothing from the liquidation.
• Issue: Should the amount that was paid to Mr Salomon, the major debenture holder, be distributed amongst the minor unsecured creditors?
• Held: The High Court and the Court of Appeal believed that the Highest shareholder must suffer and the unsecured creditors must be paid. But it was held by the House of Lords that, the Company is a different legal entity in itself, also observing that a majority shareholder does not own the Company. The Company will not lose its identity to the majority shareholder under any circumstances. 
• Ratio: The Company is a separate legal entity in itself. The creditors of a company cannot sue the company’s shareholders Majority or minority to pay the company’s debts.

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Advantages of Incorporation

Incorporation offers various benefits to a company as compared to other kinds of business organizations. They may be listed as:

1. Limited burden – Limitation of liability during liquidation is another major advantage of incorporation. The companies, being a separate entity, leading its own business life free from the identity of its members, the members are not liable for its debts. The liability of members is limited by shares owned by them paying the nominal value of the shares held.
2. Independent corporate existence/Legal identity – the commendable feature of a company is its independent corporate existence. By registration under the Companies Act, a company becomes vested with corporate personality by law, which is independent of, and distinct from its members. A company after incorporation under the act is a legal person.
3. Perpetual succession – An incorporated company never dies. Members may join or leave, but the company is perpetual. Even the bomb killing the members of a company couldn’t kill the Company (K/9 Meat Supplies (Guildford) Ltd., Re.

In the words of Alfred Lord Tennyson company’s life term may be stated as “….For men may come and men may go, But the company goes on forever.”.

1. Common Signia or seal – A company is only a juristic person and can only act through its agents and all such contracts entered into by such agents must be under the seal of the company. The common seal is like a signature of such company. 
2. Case filing ability – A Company can be sued and it can sue in its own name as it has a personality in the eyes of law. The names of managerial personnel need not be impleaded.
3. Proficiency in Management – A Company is capable of attracting professional managers. It is due to the fact that being attached to the management of the company gives them the status of the business or executive class.
4. Transferability of shares – Earlier when JS(joint-stock) companies were established, the object was that the shares should be capable of being easily transferred. Provision of statutes gives expression to this principle by providing that the shares or other interest of any member are transferable in the manner provided by the articles of the company. 
5. Separate vesting of property – The property of an incorporated company can be held and enjoyed in its own name. None of the members can claim ownership of any asset of the company’s assets until liquidation is initiated.

Disadvantages of Incorporation

1) After the lifting of the corporate veil for reasons of law, a Company is no more viewed as a different personality, but it becomes important to take a gander at the people behind the corporate veil trying to use its garb to perpetrate illegal actions, few examples of removal of such veils are: 

• Determination of the nationality of a company: The decision in Daimler Co. Ltd case, declared that even though the company was incorporated and registered in England, it would be treated as a non-national, since the real control of the company was with the nation which was declared as enemy, the need to remove the veil of the corporate entity was necessary to understand the nationality of the Company.
• For the curbing of tax evasion: When the different identity of an organization is purposely made for the avoidance of taxes which were imposed by the respective administrator.
• Illegal object: In a case, in an organisation, one of the major shareholders had been stopped from investing under a covenant; so to get around such restraint, he started a company.
• Under statutory law: The Act sometimes mandatorily looks into individual default behind the veil in certain occasions like, where agreement is made by faking the names of organizations, or when business is created to cheat people etc. 

2) Formality and cost of Incorporation are an over the top expense. It requires various legal and customary formalities.

3) The Supreme Court decided that a company is not a citizen in State Trading Corporation v. Commissioner Tax case. Supreme Court also decided that the citizen’s rights and recognition of citizenship cannot be granted to a company via its members. 

Company viz-a-viz Body Corporate

The Act of 2013 defines a Company under Section 2 (20) as a company incorporated under the aforesaid Act or under any previous company law. The term ‘body corporate’ is defined in Section 2(11) of the above Act. Body corporate means a corporate entity which has a legal presence. Which includes one person’s company, a private company, a public company, etc. Body corporate/ corporation also has in its ambit, a company incorporated outside India. However, body corporate does not include—

1. co-operative societies and
2. other body corporate announced by the Central Government;

The Companies registered under the Companies Act, 2013, can be called as a Company or as a Body Corporate for e.g.- Tata Consultancy Services Limited, Reliance Communications Ltd. etc. since they are registered in India. Whereas, the entities like Samsung Electronics, Apple Inc, etc incorporated outside India can only be termed as Body Corporate but not companies.

Is Company a Citizen?

Though a company is an artificial legal person, it is not a citizen under the citizenship legislation or constitution. A company cannot be treated as a citizen as the citizenship recognition is only available to natural biological persons and not to juristic persons. The Apex Court in State Trade Corporation India case essentially stated that a company is not treated as a citizen and hence a company cannot claim the protection of fundamental rights expressly guaranteed to citizens, but it certainly can claim the protection of such fundamental rights which are granted even to aliens.

In another case of TATA v. State of Bihar, it was further decided by the Supreme Court where it was reiterated that the identity of a company is different from that of its members and its share­holders, a Company cannot claim the protection of fundamental rights guaranteed to a citizen through its members. 

Illegal association

According to the provision of Law – Any company or association of persons or partnership where the number of members of the company is more than 100 and if it carries on business for the motive of earning a profit, is not registered under specified act then it will fall into the definition of an illegal association.

Illegal Association does not have any legal existence which means the following things:

• unlike a registered company, it cannot sue and be sued in a court of law.
• winding up or dissolution process cannot take place as there is nothing to wind up or dissolve.

The liability of the members is unlimited to the extent of the whole of the liabilities of illegal association. Every member of an illegal association is under the law, liable to pay a fine of Rs.1 lakh.

Under provisions of law, if any person is forming a part of such illegal association which uses the prefix or suffix in its name to defraud people, without any registration as a company in the register of companies then, on doing of such wrongful actions, a minimum fine of Rs. 500 and maximum up to Rs. 2000 will be levied for the period till such wrongful act of defrauding continues, plus unlimited burden shall be cast on all the people who comprise of such illegal association.

It is important under the provision of law to identify an unregistered company having more than 50 members and running for-profit as an unlawful association. If there is no profit motive then the association is not illegal, implying that charitable, literally, religious, and scientific association, clubs association are not illegal.

Also, the aforementioned provision of illegal association doesn’t apply to chit funds, joint Hindu families, and stock exchanges. Income tax is levied in the money of illegal association. Illegal nature of an illegal association remains wrong in law till it gets registered.

References

[1] S.S.Dhanoa v Municipal Corporation Delhi (1981) 3 SCC 431 

[2] Solomon v. Solomon & Co. Ltd.(1897) AC 22

[3] Alfred Lord Tennyson, “BROOK”

[4] Daimler Co. Ltd v Continental Tyre, UK :HL [1916] 2 AC 307

[5] Gilford Motor Co. Ltd. v Horne[1933] Ch 935 

[6]  The Companies Act, 2013

[7] State Trading Corporation v Commissioner Tax 1963 AIR 1811

[8] TATA Engineering and Locomotive v State of Bihar AIR 1965 SC 40.

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

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This article is written by Millia Dasgupta, a second-year student studying at Jindal Global Law School. This article covers the cultural and educational rights of minorities and discusses various landmark cases relating to the topic. 

Introduction 

We have all heard that living room uncle or gossiping aunt proclaiming reservations are ruining our nation and the majority are the ones who suffer when it comes to admission. But one must stop and think, does the government truly have an inclination towards ruling for minority communities and their educational and cultural rights? To answer that question, we must first explore what are the cultural and educational rights minority communities have and how the government and courts deal with judicial questions concerning them. This article will explore such aspects in detail.

Who is a minority?

Article 30  of the Constitution talks about two types of minority communities – Linguistic and Religious. But while it defines the categories of minority communities, there is no official definition of the word by the government.

One can derive certain pointers from the various articles in our Constitution and reports from the government. Article 29(1) that safeguards the rights of minority communities states that anyone with  “a distinct language, script or culture of its own” has the right to conserve it. 

From the language of the text, we may understand that communities with distinct language, script or culture fall under minority communities. But in later cases such as Bal Patil v. Union of India and the Islamic Academy of Education v. State of Karnataka, we see that courts rely on other factors such as economic welfare to decide whether a community is a minority or not.

In terms of religious minority communities, Section 2(c) of the Minorities Act recognizes 5 religions as minority communities namely Muslims, Sikhs, Christians, Buddhists, and Zoroastrians (NCMA).

S.P. Mittal v. Union of India, AIR 1983 SC 1

Facts

Sri Aurobindo was not only an excellent academist and administrator, but he was also engaged in political work. Later on, he gave it all up for a life of meditation and moved to Pondicherry, Tamil Nadu. It was there where he met Madam  M. Alfassa, who would, later on, be known as Mother, who became his disciple. Later on, his disciples and the Mother established The Sri Aurobindo Society to propagate and practice the ideals and beliefs of Sri Aurobindo. 

Through this society, the founding president, the Mother, set up a township called Auroville which was meant for people to come and engage in various pursuits. Later on, The United Nations Education, Scientific, and Cultural Organization (UNESCO) took it upon themselves to fund provisions to help with the development of Auroville. 

When the mother passed away, many problems such as mismanagement of the project and misuse of the funds cropped up which made it impossible for the townships functioning and growth. Thus, keeping in mind the international character of Auroville due to the agreement with UNESCO, the government of Tamil Nadu took management in their own hands and filed a presidential ordinance which later on became The Auroville (Emergency Provisions) Act, 1980.

Seeing that the government took control of a ‘religious’ enterprise, the Constitutional validity of the Act was challenged on 4 grounds. One of the grounds was that it was violative of Article 29 and 30. 

Issue Raised 

Does the Act violate Article 29 and 30?

Decision 

It was held by the bench that the forsaid Act does not violate Article 29 and 30. The court held that it, in no way curtailed their right or prevented any citizen from conserving its own language, script or culture and thus was not violative of Article 29. 

Also in this case, in order to seek protection under Article 30, one must prove that they are a linguistic or religious minority and the institution in question was established by them. Considering that Auroville was not religious and was founded on the ideology of Sri Aurobindo, they could not seek protection under these articles.

Rights of minorities

Certain rights are laid down to safeguard the right of minority communities. Article 29 ensures that anyone residing in India has the right to preserve a distinct language, script or culture and no State educational institute or any institute receiving aid from the state shall discriminate against anyone based on race, caste, creed, etc. Article 30 ensures the right of minority communities in educational institutions and prohibits discrimination against them. 

With regard to the reservation and special provisions for minority communities, many have brought up the argument that such provisions are ‘cushioning’. But in the case of The Ahmedabad St. Xaviers College vs State Of Gujarat & Anr, Khanna J. stated that such provisions are necessary so that “none might have the feeling that any section of the population consisted of first-class citizens and the other of second class citizens”. He also stated that a majority of the Fundamental Rights of the Constitution protect majority rights as it protects minority rights.

In the TMA Pai case, the judge considered the opinion of the Permanent Court of International Justice in the case of Minority Schools in Albania, advisory opinion was that there is a need for provisions that help minority groups preserve the uniqueness of their distinct culture and script and minority religions to uphold the uniqueness of their culture. Khana J. stated that “the object of protection is to enable minority communities to preserve the characteristics which distinguish themselves from the minority”.

In the Kerala Education Bill case, with regards to institutions handled by minority communities, Hidayatullah C.J stated that while Article 30 (1) might be general protection over distinct languages and scripts, it is also right to establish educational questions of choice. Thus this Act is not diminished if the institution’s primary function is not protecting minority culture, its also for institutions that are established and managed by minority communities and they accept other students as well.

The distinction between Article 29(2) and Article 15(1)

Article 29 (2) and Article 15 (1)  are very similar due to the fact they both prevent discrimination on the basis of caste, race sex, etc and are sometimes seen as mutually exclusive. However, there is a big difference. While Article 15 provides a broader ambit against discrimination on the basis of caste, race sex, etc, Article 29 provides specific restitution for those who have faced discrimination from state-run educational institutions at the time of entry or admission. 

Why did the fathers of the Constitution take an extra step to prevent discrimination by educational institutions? Education is important for a certain community to flourish and grow. When properly and efficiently educated, one becomes equipt to enter public services and search for jobs. Without the tools of education, the community shall be culturally but economically dominated. Thus, it is imperative that any minority community gets access to education and receives relief against discrimination. 

Right of Minorities to establish and manage Educational Institutions

Under Article 30, the Constitution provides provisions for minority communities to establish and manage educational institutions and protect themselves from discrimination of granting aid by the government. Article 29 (1) gives any citizen the right to conserve a distinct language, script or culture of its own. While Article 29(2) also protects them, it is more for every citizen and is not specially tailored for minority groups.

One of the biggest debates in judicial history has been whether minority communities have the right to have autonomy while managing these institutions. Such questions gave birth to the famous T.M.A. Pai Foundation v. State of Karnataka case which had a massive 11 Judge Bench. In present times, the common consensus is that governments are allowed to regulate such institutes so long as such regulation is in pursuit of ensuring academic excellence and it does not harm the character of the minority institute.  

The Constitutional (44th Amendment) Act, 1978

The Constitutional (44th Amendment) Act removed the right to property as a Fundamental Right under Article 19. However, it ensured that “the removal of property from the list of Fundamental rights would not affect the right of minority communities to establish and administer educational institutions of their choice”. 

Relationship between Articles 29(1) and 30(1)

Article 29(1) states protect the rights of members of communities who have distinct language, culture, and script. 

Article 30(1) protects minority rights with regard to establishing and managing educational institutions.

Thus both Acts facilitate minority rights to establish and manage their own educational institutions. The only difference is that  29(1) makes an attempt to define who minority communities are. Due to the articles being almost identical, many might believe that when seeking protection, you can only seek protection under one.  But in St. Xaviers College v. the State of Gujarat, it was stated that Article 29(1) and 30(1) were not mutually exclusive.

Power of Government to regulate minority-run Educational Institutions

St. Xaviers College v. the State of Gujarat, AIR 1974 SC 1389

Facts

St. Xaviers College,  a religious denomination affiliated under the Gujarat University Act, 1949, provided education to not only Christians but students of other religions and creeds. They had challenged sections 35-A, 40, 41, 51-A and 52-A of the Gujarat University Act, 1972 which dealt with the appointment of teachers and students of minority communities. They stated that the Act encroached on the autonomy of the universities. 

Contention of the Parties

• Article 29 (1) of the Constitution safeguards a citizen’s right to preserve his or her own language, script or culture, and Article 30 (1) states that minority communities have the right to establish and manage their own institutions. 
• Article 30(2)  also states that the government should not discriminate against any institution under minority management. 
• Under Article 32, they had a right to not only establish and administer institutes of their choice but they also had the right to affiliation( to operate independently, but also has a formal collaborative agreement with the state).

The opposition stated that Article 29 and 30 were mutually exclusive and protection under these Acts can not be brought up at the same time. They also stated that affiliation was not a Fundamental Right and that a minority institution must abide by the provision if they wished to be affiliated. Another argument was unless the law was an absolute violation of minority rights under Article 30(1), then there was no reason for the Act to be struck down.  They pleaded that the court wait until statutes and ordinances are issued in pursuit of the disputed sections. 

Issue Raised

• Are Article 29 and 30 mutually exclusive?

• Is affiliation a Fundamental Right?

• Does section 35-A, 40, 41, 51-A, and 52-A of the Act tamper with the institutes Fundamental Right?

Decision 

It was held that

• Article 29 and 30 were not mutually exclusive. 
• While affiliation is not a Fundamental Right, it is necessary for the meaningful management and establishment of such institutes
• Section 35-A, 40, 41, 51-A and 52-A of the Act would not apply to minority institutions as they tamper with their Fundamental Right to establish and manage educational institutions of their choice.

Ray C.J. and Palekar, J. stated that it would be wrong to limit their rights to only institutes that administer language, script, and culture. This would make the Act redundant. It is also wrong to believe that Article 29 and 30 are mutually exclusive because while Article 29 is for all citizens, Article 30 was placed to safeguard the rights of minority communities. Thus Article 30 must be treated as an extension of Article 29.

Jaganmohan Reddy, J.  stated that while affiliation is not a Fundamental Right, the state cannot use it as a tool to force an institution to abide by certain rules. The institution has the right to “establish their institutions, lay down their own syllabi, provide instructions in the subjects of their choice, conduct examinations and award degrees or diplomas, seek recognition to their degrees and diplomas and ask for aid where aid is given to other educational institutions”. The state can only discriminate on the basis of the excellence of the institution. 

With regard to the various disputed sections of the Act, the general consensus of the bench was that minority managed institutions had the right to function without government intrusion of such nature. 

Re Kerala Education Bill, AIR 1958 SC 956

Facts

The President under Article 143 of the Constitution approached the Supreme Court regarding the Kerala Education Act 1958. Out of many of his inquiries, the President questioned Sub-Clause (5) of Clause 3 which stated ‘any new school or any higher class opened in any private school that did not live up to the standards of government regulation would not be recognized by the Government’.

The President’s question was whether giving such power to the government would be violative of Art 30 as minority communities had the right to manage and establish their own institutions. 

Issues Raised

While minority communities had the right to administer, do they have the right to maladminister?

Decision 

It was held that minority groups did not have the right to maladminister. Das, C.J. stated, “Reasonable regulations may certainly be imposed by the state as a condition for aid or even for recognition”.

It also stated that while opening up educational institutes was essential for minority communities to exercise their right under Article 30, all educational institutes are subjected to Article 29(2) which states that all citizens in state or state-aided institutions must not be discriminated during the time of admission on the basis of race, sex, creed, etc. 

Importance

The court’s opinion on government regulation on educational institutes and Article 29(2) have been used as persuasive precedents for landmark cases. An example is T.M.A. Pai Foundation v. State of Karnataka.

Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540

Facts

The petitioners (Sidhrajbhai) are members of a society that has established many educational institutions, including a training school for teachers.  The Bombay government issued an order that 80% of teaching seat in non- government training schools would be reserved for candidates chosen by the government. The government also ordered the principal of that training school to not admit private students more than 20% of the class’s strength without the permission of the Educational inspector.

The principal expressed his inability to comply with orders and the government threatened them with disciplinary action. The society moved to the Supreme Court stating that this order violated several of their Fundamental Rights, including Article 30.

Issue Raised

Did the government orders violate Article 30?

Decision 

The orders violated Article 30. Article 30 is an absolute right and unlike Article 19, it cannot be subjected to ‘reasonable restrictions’. It was stated that such a right is for the protection of minority communities and their right to manage their own educational institutions. If it is diminished in the name if reasonable restrictions then it shall merely be an illusion and shall have no impact. The Kerala Education Bill case was quoted as in that case it was held that the State can impose legislation on educational institutions only if such restrictions are not detrimental to the “character of the minority institution”. Thus, unless these legislative restrictions aid the institution towards educational excellence while helping them retain its minority character, the court shall not take them into consideration.

Right of recognition or affiliation, not a Fundamental Right 

When the right of minority communities to establish and manage educational institutions is a Fundamental Right, it makes you wonder if affiliation or recognition is a Fundamental Right as well? At the end of the day, in order for an institution to achieve sufficient excellence, it is imperative that they have some sort of recognition or affiliation from the state.

This exact query was brought up in Sidhraj Bhai v. State of Gujarat. While the court recognized the importance of affiliation, they denied that it was a Fundamental Right. In later on cases like T.M.A. Pai Foundation v. State of Karnataka and P.A. Inamdar v. State of Maharashtra, it was held that the government is allowed to set up rules and regulations that institutes must follow in order to get affiliation. These regulations must be in pursuit of educational excellence.

Admissions of students and qualification of teachers in unaided minority institutions

Through the cases of T.M.A. Pai Foundation v. the State of Karnataka and P.A. Inamdar v. the State of Maharashtra, the general consensus of courts is that while such institutes have autonomy over management, such institutes must make sure that during admission they adhere to Article 29(2)- majority community students and employers should be admitted as well. 

Admissions in aided minority institutions

The government has the right to regulate the management of such institutions including fee structure, admission of students and employment of teachers. They shall have fixed quotas depending on the local need.  

Right of non-minorities to run educational institutions

The two rights are Art 19(1)(g) which is right to the profession (subject to restrictions in Art 19(6)) and Article 26 which is the right of all religious denominations to maintain and establish educational institutions.  

T.M.A. Pai Foundation v. the State of Karnataka, AIR 2003 SC 355

Facts

The St Stephen’s College v University of Delhi case that was previously reviewed by a 5 Judge Bench, was transferred to a 6 Judge Bench and then a massive 11 Judge Bench to decide the status of minority rights.

Issue Raised

Kirpal, CJI framed 5 main questions, those that are relevant to the article have been stated below-

1. “Is there a Fundamental Right to set up educational institutions and if so, under which provision?”
2. To what extent can private universities be regulated?
3. “In order to determine the existence of a religious minority in relation to Article  30, what is to be the unit?”
4. “To what extent can the rights of aided private minority institutions be regulated?”

Decision

1. For non-minority groups,  the two rights are Article 19(1)(g) [ the right to a profession which is subjected to restrictions of Article 19(6)] and Article 26 which gives the right to  “all citizens and religious denominations to establish and maintain educational institutions”. For minority communities, Article 29(1) and Article 30(1) is provided by the Constitution. 

The right of minority communities with regards to setting up educational institutes also includes the right to decide the method by which the students and teachers are selected. It should be fair, transparent and most importantly, based on merit. The same goes for un-aided schools. 

But it is important for such authorities to abide by Article 29(2) during admission. They must not discriminate against students on the basis of sex, race, creed, etc at the time of admission, especially students from the majority community. 

2. Private institutions are divided into three categories to answer this question-

• Private Unaided Non-Minority Educational Institutions- While the government can lay down rules and regulations (based on academic excellence) for affiliation, but the management of the institute should be autonomous. 
• Private Unaided Professional Colleges- They have autonomy with regard to aspects such as fee structure and admission. But such colleges should not forgo the principle of merit and should reserve a few seats. These seats shall be reserved at the discretion of the management to those who have passed the entrance exam. The rest of the seats should go to people based on counseling by the state. For affiliation, the rules and regulations to achieve it should not be cohesive in nature. 
• Private Aided Professional Institutions (non-minority)- Since the government is giving aid, they can lay down certain rules and regulations for management. They may also put guidelines for fee structure, admission for students and appointment of teachers. 
• Other Aided Institutions- For such institutes, the government can lay down rules and regulations. 

3. Linguistic and religious minority communities are covered by the expression “minority” under Article 30 of the Constitution. With regards to both Central and State law, the state shall be taken as the unit to decide whether a certain community is a minority or not. What happens when a community that is a minority in the country,  is a majority in a certain state was left unanswered. 
4. Article 30(1) does not override the law or government regulations, keeping in mind such regulations does not destroy the character of minority educational institutions. Laws pertaining to subjects such as health and morality still apply to them. This is despite the nature of the wording of Article 30. Regulations that ensure academic excellence and are for the welfare of teachers and students still apply. 

When aid is given to such institutions, it must not come with certain conditions or regulations that harm the management and nature of the institution. But if such regulations are not detrimental to its management and character, then it is not violative of Article 30. 

Islamic Academy of Education v. the State of Karnataka, AIR 2003 SC 3724

Facts

Several queries from the TMA Pai case were addressed. The importance of this case is that shows the various loopholes in the TMA Pai Foundation case, especially with regards to reservation of seats and autonomy of institutions with regards to management. 

Decision 

• Educational institutes that are not given aid by the State are entitled to autonomy should not disregard the principle of merit.
• Management of unaided non-minority institutes could reserve a certain number of seats for students who had passed the entrance exam but the rest of the students should pass through counseling regulated by the state
• These unaided colleges should also provide provisions for the underprivileged.
• The percentage of the seat should be fixed according to the locality and the needs of such an area. Different percentages can be fixed for minority and non-minority groups.   
• The bench considered Article 19 as the right to manage educational institutions for non-minority communities and Article 30 (1) as the right to manage educational institutions for minority communities. 
• Appropriation of seats can not be held as a ‘reasonable regulation’ or a regulation in the interests of minority communities. 
• The bench also stated that they would set up committees to monitor the fee structure and admission process in private universities. 

P.A. Inamdar v. the State of Maharashtra: Reservation in Private Educational Institution violative of Articles 30 and 19(1)(g) 

Facts

Several more queries from the  T.M.A Pai verdict were addressed and the Islamic Educational Academy case was reviewed as well.  This verdict goes against the Islamic Academy of Education verdict and reverts back to Pai. 

Decision

• In correlation with the Kerala Education Bill case, Lohoti, C.J divides the amount of protection educational institutions (both minority and non-minority) can seek from Article 30 into three categories. 
  1. Unaided or unrecognized institutions that can enjoy protection under this Article to their “heart’s content”.
  2. Institutions asking for affiliation or recognition from the State must abide by the rules and regulations enforced by the government. This is only if the nature of such regulations is for the benefit of the institution.
  3. Institutions receiving state aid must abide by regulations with regards to the management of funds. Article 29(2) will also apply as they would be required to admit students from non-minority communities. 
• The bench also puts a stop on policies that require unaided private colleges to reserve seats for citizens from backward classes. They believe such policies will cause the ‘nationalizing’ of seats. They believe such policies violated Article 30 of minority communities to set up and manage educational institutes autonomously and violated 19(1)(g) of non-minority colleges to practice any trade or profession. Instead, they let the state control the quota of seat-sharing between management.
• Interestingly, they do allow for the reservation of seats for non-resident Indians or NRIs. The reason they give behind this is that the high fees charged from such students could help students belonging to weaker parts of society. 
• In regards to admission procedure in unaided education institutes, the Bench decided that merit for admission in various levels of education is crucial but its level of importance increases with the rising level of education. Merit might not have much of a role to play in kindergarten admission but had a crucial role to play in college admission. 
• The bench also decides that every institute is allowed to set up its own fee structure but it shall be subjected to regulations to prevent excessive profiteering.
• And the last, but the most controversial, the bench stated that the Islamic  Academy of Education case shall not exceed TMA Pai. Committees to monitor the fee structure and admission process of private universities shall not happen. 

The Jain Community is not a minority

In the case of Bal Patil v. Union of India, it was debated whether Jains could become a minority under section 2(c) of the Minorities Act. The court rejected this claim and said it had statutory duties. They also stated-

“Before the Central Government takes a decision on claims of Jains as a ‘minority’ under Section 2(c) of the Act, the identification has to be done on a state basis. The power of the Central Government has to be exercised not merely on the advice and recommendation of the Commission but on consideration of the social, cultural and religious conditions of the Jain community in each state. Statistical data produced to show that a community is numerically a minority cannot be the sole criterion.” 

Conclusion 

Through this article, not only have we tried to understand who the government considers as minorities, but what logic the government has used to fix current-day reservation policies for minority colleges. We have seen the tedious process through which essential questions such as ‘who can be considered a minority’ and ‘whether affiliation is a Fundamental Right’. While it is clear that our judiciary has done extensive work in the field of cultural and educational minority rights, it seems that we have miles to go. 

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 Cultural and Educational Rights: Articles 29-30 Under Indian Constitution appeared first on iPleaders.

This article is written by Devansh Sharma, 1st year Student, at Law School, Banaras Hindu University. This article deals with the detailed explanation of Article 15.

Introduction

The stories of women being beaten up for drawing water from well, people being harassed if their shadow falls on other men, devotees being stopped from entering into the temple and beaten up for touching idols of gods has become a common affair of newspapers headlines whenever I go through one. It seemed to me like a nightmare which has compelled me to look into the provisions in force that prohibit such differentiation.

Article 15 of the Indian constitution talks about the prohibition of discrimination  (unreasonable differentiation). But questions that arose in the mind was, what does discrimination signify?

Scope of the word ‘Discrimination’:

Discrimination occurs when you are distinguished or treated in a less favourable manner than another person under similar circumstances or if you are disadvantaged by being placed on equal footing another under different circumstances, for example, you being disabled or pregnant. This action cannot be reasonably and objectively justified.

Article 15 restricts discrimination on the ground of:

• Religion – It means that no person should be discriminated on the basis of religion from accessing any public place or policy by the state or any group.
• Race – Ethnic origin should not form a basis of discrimination. For example, a citizen of Afghan origin should not be discriminated from those of an Indian origin.
• Caste – Discrimination on the basis of caste is also prohibited to prevent atrocities on the lower castes by the upper caste.
• Sex – Gender of an individual shall not be a valid ground for discrimination in any matter. For example, discriminating transgenders, females, etc.
• Place of birth – A place where an individual is born should not become a reason for discriminating among other members of the country.

Often the word ‘Discrimination’ is perceived to be contrary to the principles of equality. Individuals tend to confuse discrimination with breach of equality. Can something that is disadvantageous and against the general classification of the individual be taken as discrimination? The answer remains ‘NO’. The Supreme Court in the following cases has observed that every classification does not constitute discrimination in the first place. 

In the case of Kathi Raning Rawat v. State of Saurashtra, the state of Saurashtra set up special courts under Saurashtra State Public Safety Measures Ordinance 1949, to adjudicate on the matters of section 302, section 307 and section 392 read with section 34 of the Indian Penal Code, 1860. The contention brought before the court was that these provisions are discriminatory for the residents depending upon the territory.

The court stated that all kinds of legislative differentiation are not discriminatory. The legislation did not refer to certain individual cases but to offences of certain kinds committed in certain areas and hence it is not discrimination.

In another significant case of John Vallamattom v. Union of India, AIR 2003 SC 2902, the Indian Succession Act 1925 prevented the petitioners from bequeathing property for religious and charitable purposes. The petitioner contented it to be discriminatory against the testamentary dispositions by a Christian.

The court stated that the Act was to prevent people from making injudicious death-bed bequest under religious influence, but had a great impact on a person desiring to dispose of his property upon his death. Hence, the legislation is clearly discriminatory as the properties of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi were excluded from the provisions of the Act. Further, no acceptable reasoning was provided to show why the provision regulates religious and charitable bequests of Christians alone.

When the concept that a reasonable classification can never amount to discrimination is clear, we suddenly get stuck by the idea of reservation. Is it not discriminatory to differentiate between two candidates who are appearing for the same post or exam with the same qualifications? What allows provisions for such differentiation to be made?

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Reservation

On research, we find that Article 15 Clause (3), (4) and (5) itself stands as an exception to Article 15 Clause (1) and (2). Article 15 Clause (3), (4)and (5) states that the legislature is free to formulate special provisions:

• For women and children,
• For the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes,
• Make provision relating to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

Though being the exception to the legislation that forbids discrimination on grounds of sex and caste, this does not come under discrimination. Rather, the term ‘PROTECTIVE DISCRIMINATION’ (also known as Positive Discrimination) is used by the legislators to justify reservation and is defined as the policy of providing an equal platform to the underprivileged and the suppressed classes and to lift their status in the society. This system of reservation works on the principles of intelligible differentia (difference capable of being understood). 

You might think, though this theory helps resolve problems of social inequality, what about the sensitive jobs requiring a greater skill set (the medical field, army, etc)? Should the reservation be allowed in those sectors? Isn’t it wise to keep such fields outside the scope of reservation?

• Reservation In Medical Colleges

The thought of not allowing reservations in certain sensitive areas of practice would cause the sector to be monopolized by the privileged classes. Reasoning doesn’t stand on the factor of skills, it stands upon the factor of circumstances.

Let us take an example, imagine Ramu to be a boy of the underprivileged class whose ancestors and parents have been deprived of education due to discrimination from the upper classes. Ramu has no one in the family to guide him but even then he appeared in medical exams; whereas another boy Vicky, belonging to the upper class, has parents who are well qualified and have been in elite professions. Vicky was constantly guided and mentored by his parents and he also appeared in the exam. Even in such a hypothetical story, our conscious explains that there must be some provisions to place Ramu on equal footing with Vicky to allow him to compete fairly. 

In Ajay Kumar v. State of Bihar, the issue was raised regarding the permissibility of providing reservation under Article 15(4) in postgraduate medical courses. The contentions raised by the appellant were that Article 15(4) neither speaks nor permits reservation in educational institutions. While certain preferences and concessions can be given, reservation of seats is beyond the limits of clause (4) of Article 15 of the constitution of India. The appeal was rejected by the court as special provisions also include reservation provisions and not just preferences and concessions.

• On the Basis of Domicile

After we comprehend the above provisions, the concept of reservation might seem fairer but reservation on the basis of domicile still remains as a pricking concept. What allows the state to formulate laws that differentiate individuals on the basis of domicile and what needful purpose does this kind of reservation serve?

As we find out that in India the preferential policy is of two types: 

• The first to impart special benefits to the socially and educationally backward classes, scheduled classes and scheduled tribes.
• The second to provide special benefits to the local ethical groups of the state against the migrant from the other states.

This provision does not count as discrimination under the purview of Article 15 as reservation on the basis of domicile is not one of the grounds of article 15. Article 15 defines “place of birth” as a ground of discrimination but reservation based on domicile generally comes under “place of residence” which is outside the bounds of “place of birth”. The place of birth and place of residence can be different for a single individual.

Special provision for Women and Children 

Once we know that reservation arises due to the presence of clause (3), (4) and(5). Let us now try to examine the clauses one by one.

Clause (3) of Article 15 of the Indian constitution speaks about special provisions for women and children in order to protect them from the clutches of formal equality.

Thought of this legislation to be carte blanche (complete freedom to act as one wishes) to impose differential benefits and ostensibly to the advantage of women at the cost of burdening men may ponder in your mind. But it is justified as it compensates for early injustice met by women and children at the hands of a male-dominated society. Right to free and compulsory education for children under the age of 14 years, section 56 of CPC, the Maternity Benefit (Amendment) Act 2017, etc. are some of the best examples of such provisions.

In the case of Rajesh Kumar Gupta v. State of Uttar Pradesh, AIR 2005 SC 2540, U.P. govt made provision providing reservation BTC training programme as follows:

• 50% of the candidates to be selected shall be from Science stream,
• 50% from the Arts stream,
• further 50% would be female candidates,
• And the other 50% would be male candidates.

The contentions raised were that the reservation format formulated was arbitrary and violative of Articles 15. The court held that the reservation format introduced was not warranted by the provisions of the Indian constitution, being over and above the constitutional reservations in favour of backward classes.

Whereas In Union of India v. K.P. Prabhakaran, (1997), the railway administration took the decision to appoint Enquiry cum reservation clerks in four metropolitan cities i.e. Mumbai, Delhi, Kolkata, and Chennai. The decision stated that the post would be held by women only. The court rejected the contention of the government urging that this provision is protected under Article 15(3). It said that Article 15(3) cannot be read as the provision or as an exception to what is guaranteed under Article 16 (1)(2).

These cases clearly explain the applicability of the phrase ‘Special provisions for women and children’ in matters of the reservation to education and employability. But what if there are laws which differentiate or prefer women over men, can it be called discrimination.  

In cases of Girdhar v. State, AIR 1953 MB 147 the petitioner was convicted under Section 342 and 354 of the Indian Penal Code. The petitioner claimed that as there are no provisions relating to assault against men with the intention to outrage his modesty, hence providing such laws for women is discriminatory. Section 354 is contrary to Article 15(1). The petition was dismissed stating the law to be in consonance with Article 15(3). 

In Choki v. the State of Rajasthan, AIR 1957 Raj 10, Mt. Choki and her husband conspired and murdered their child, the application of bail was presented on the plea that she is an imprisoned woman, with no one to look after her young son. The judge rejected the application saying that there were no extenuating circumstances and the Constitution has no provisions under which leniency could be shown to women on account of her sex. The same was challenged before the Supreme Court.

It was held that Article 15(3) talks about special provisions for women and children. And under the light of this provision, Mt. Choki was granted bail as she was a woman and there is a young child dependent on her, thus it becomes necessary for the state to protect the rights of the child.

• Women and Sexual Harassment

Clause 3 of Article 15 also allows the government to frame special laws regarding the protection of women and abolition of sexual harassment. Sexual harassment is a clear violation of the fundamental rights of equality guaranteed under Article 14(2) and Article 15(3). The sexual harassment of women that had become a frequent story of everyday newspapers was dealt with by the supreme court in the famous Vishaka case. This case led to the formulation of the Vishaka guidelines.

• Reservation within Reservation

The concept of reservation within the reservation is a condition where reservation is provided to a particular class which is already under a reservation category. For example, A man is belonging to a particular community of Schedule castes is entitled to reservation for SCs but what if the community that he dwells from is more underprivileged as compared to the other communities of the SCs category.

Is it justified to make them stand at par with others? Thus the concept of reservation within reservation emerged to uplift those underprivileged communities of the reserved categories. Current examples of such reservations are Maratha reservation in Maharashtra who already fall under the OBC reservation in Maharashtra, the Jat reservation demands in Haryana, and the 7% reservation of Madiga community under SCs reservation.

Area-wise reservation: Article 371

There are also some special provisions for specific states. There are certain articles in the Constitution of India which provide for special state provisions and allow for the formulation of the area-wise reservation to provide opportunity and facilities for the local people of the state in the matters of public employment and education, and different provisions might be for different parts of the state.

Following table mentions about articles with special provisions for different states are:

Special Provision for the advancement of Backward class: Article 15(4)

Coming onto the next clause, i.e. Clause (4) of Article 15 of the Indian constitution. It allows the state to enact laws and provisions relating to the advancement of socially and educationally backward classes and the scheduled castes and scheduled tribes.

• Socially and educationally backward classes

The phrase “socially and educationally backward classes” under Article 15(4) refers to underprivileged classes of people who have faced discrimination and prejudice from the privileged class. This category includes the class of people who belong to backward classes in society but are not covered under SCs or STs. OBCs have been included under this phrase of socially and educationally backward classes as a category for reservation.

• The limit of reservation

The Supreme Court of India has put up a ceiling limit to the total percentage of reservations that can be provided by the government.

In Indira Sawhney v. Union of India, AIR 1993 SC 477, 27% reservation for the ‘Other Backward Classes’ was introduced. Supreme Court of India put up a limit of 50% as the total percentage of reservation as it was reasoned that allowing the limit to exceed will deprive others of their right to equality. Supreme Court also provided for the guidelines to exceed the limit of reservation under extraordinary situations.

• Reservation more than fifty per cent 

There is an upper limit of 50% on the total reservation, but as it was allowed to exceed under extraordinary circumstances. There are 4 states which have breached that limit of 50%:

• Tamil Nadu has 69% reservation with 50% reservation for OBCs;
• Maharashtra has 52%;
• Telangana has 62%;
• Haryana has 67%;

It is done under the extraordinary need for upliftment of certain backward classes.

Relationship to Article 14

Article 15 is the weapon that breaks the wall of discrimination between the upper caste and the lower caste. Article 15 is an extension of Article 14 which talks about equality among individuals and equality before the law. It means that equals should be treated equally and unequal to be treated unequally, the same has been reiterated in the Indira Sawhney v. Union of India, AIR 1993 SC 477. Article 15 derives its entire power from article 14.

• To maintain equality, it forbid the practice of discrimination under clause(1).
• To provide equality, it allows for special provisions relating to women, children, SCs, STs, and socially and educationally backward classes.

Hence, it is Article 14 whose aims Article 15 tries to achieve.

Conclusion

Article 15 has always hurdled its way out to reach to the one really in need. The condition of the downtrodden has highly improved since its inception in 1949. It provides a base to each and everything that legislature needs to formulate provisions to promote harmony in the society. There is an extreme decline in the number of cases of atrocities against the underprivileged classes.

Article 15 truly is the guardian of downtrodden and a shield against discrimination, it has helped the Indian society to stand tall and proud despite such a huge diversity and all kinds of sexism, racism and rigid caste system and will continue to contribute to India’s unity and equality, forever.

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 Article 15 of the Constitution: Prohibition of Discrimination & Unreasonable Differentiation appeared first on iPleaders.

This article is written by M.Arjun, a 5th-year student studying in Government Law College, Thrissur. This article deals with the Essentials of a Music License Agreement.

Introduction

If there is something in this diverse world which people all over accept and adore, it is quite obvious that “music” falls under this division. Music is loved for various reasons such as for entertainment, relief from stress and even for emotional recharge. Artists put in a lot of hard work for creating musical works. They get acknowledged and rewarded for their efforts only when their work is shared with the public. When a musical work is created, the artist gets the copyright of the song along with a bundle of other rights. Sharing of music has to be done in such a way that the rights of the musician and the commercial value of his work are preserved. A well-drafted music-license agreement can serve this purpose.

Need For A Music License Agreement

Artists who create musical works deserve fair compensation for their creation. A musical work created can be used in a plethora of situations such as in a movie, album, live performance, online streaming and so on. The primary purpose of a music license agreement is to facilitate the availability of the composition to a third party. It also ensures that the musicians get their fair compensation. A music license agreement mandates certain conditions and governs the use of the musical composition in relation to various circumstances. These include:

• Confirmation of royalties and mode of payment of royalties;
• Provisions relating to the time for which the use is permitted;
• The geography in which the music is permitted to use;
• Right of license owners to sublicense;
• Provisions relating to duplication of the song.

A music license agreement protects the rights of both parties and lays down special emphasis on preventing illegal use of the musical work which affects the commercial interests of the parties. Abstaining from entering into a music license agreement can be detrimental as the creator cannot commercialize his work effectively. A music license agreement protects the copyright of the musical work and minimizes the chances of infringement. Hence, a music license agreement, safeguarding the interest of parties enable the musical work to reach a wide number of audiences.

How Does It Work?

Owners or composers of a musical work cannot enter into a music license agreement with each and every party interested to use their music. Creating a music license agreement for each and every licensee is a cumbersome process. For this purpose, artists or owners of the musical work enter into a music license agreement with the publishing companies. Musicians themselves can publish their work on certain platforms such as the “Soundcloud”. But the majority of the publishing is done by the publishing companies. Artists are paid a lump sum amount or royalties as per sales in return. These publishing companies are mostly members of various copyright societies which are registered under section 33 of the Indian Copyright Act 1957.

Essentials of Music License Agreement

Some of the basic clauses that should be added to a music license agreement include:

License Grant 

This clause is the most important section within a music license agreement. It clarifies the nature and extent of the license. The licensor should expressly specify whether the license is a non-exclusive license or an exclusive license. An exclusive license prevents the licensor from further licensing the work. A non-exclusive license can allow the licensor to license the work with other potential licensees. The right of the licensee to further sublicense the work should be referred to in this clause. Even if a non-exclusive license is granted, the licensee or the publisher can restrict or impose certain conditions that prevent the licensor from licensing the work on different platforms such as CDs, websites or radio. The licensor can also mandate the geographical limit within which the license will be effective. As mentioned earlier, comes with a bundle of rights. For eg, the composer can grant a license exclusively for use in the film and retain the rights of the song in relation to online streaming, albums, public performances and so on. This clause should also provide the purpose and uses for which the license is granted.  

Royalties and Payments

The musician or the licensor is paid a certain sum of money in return for the license granted to the licensee. These payments are either made on a lump sum basis or as royalties on each broadcast. The licensor can also contract for an initial amount along with royalties on further usage. The time limit within which the payment is to be made should also be specified along with the provisions regarding interest on late payments. 

Rights and Obligations 

This clause mainly sets out the rights and duties of the parties in relation to the license. The licensor shall provide a clause to reserve all the rights other than the ones licensed. He may also set out a provision to state his name as the owner in all promotional activities of the musical compensation. The main idea behind this clause is to prevent the licensee from using the ownership rights or any other rights which are not granted. 

Term and Termination

The term specifies the date from which the agreement comes into force. The period for which the agreement shall remain in force should be stated under this clause. If there is any provision for automatic renewal, it should be explicitly mentioned. The conditions for termination and the notice period for avoiding the automatic renewal of the agreement should be mentioned without fail.

Effect on Termination

This clause specifies the effect of termination on the rights granted to the licensee. It also lists out various provisions that shall survive the termination of the agreement such as the payments and royalties clause.

Indemnification

The copyright owner shall indemnify the licensee from all the damages and third-party claims in relation to a breach committed by the owner of the copyright. Similarly, the indemnification clause also indemnifies the licensor from all damages and expenses caused by the use of the musical work by the licensee. 

Representation and Warranties

The licensor of a music license agreement should make certain warranties in the agreement. The publisher or the owner of the musical work shall be required to make a representation to the licensee that he is a member of a registered copyright society. Similarly, he will also be directed to make a representation that the musical work is new and original such that it does not violate the intellectual property of any third party. The licensor shall also authenticate that he owns all the exclusive rights concerning the musical work. 

Dispute Resolution

A dispute resolution clause, as vital for any agreement also forms a crucial part of a music license agreement. The parties should agree to the laws according to which the agreement shall be construed or interpreted. If the parties prefer arbitration as the dispute resolution mechanism, they should agree upon features such as the number of arbitrators, the place of arbitration, method and so on. The choice of law and dispute resolution should be dealt with utmost importance, especially in cross border licensing. 

Miscellaneous Provisions

Apart from these provisions, various other clauses can be added. A separate provision regarding the method for serving the notice among parties can be discussed under a notice clause. A mechanism for alteration and amendment of the agreement can be set out in a separate clause. Various other provisions such as the binding of the agreement on the successors of the parties and clauses giving the agreement the dominant status can be added. Apart from these clauses, various boilerplate clauses such as on waiver and severability should also be a part of the music license agreement.u

Role of Copyright Societies

Copyright societies play an important role throughout the music licensing process. Copyright societies registered under section 33 of the Indian Copyright Act 1957 works for the management and protection of copyright owned by the authors of the work. They can issue licenses for any copyrighted work in accordance with the Copyright Act. They provide a license to all the third parties and collect the license fees from them. After deducting their administrative fee, these amounts are distributed among the creators of the copyrighted work. Hence, a lot of musicians, composers, and publishing companies are members of copyright societies. Copyright societies act like middlemen in safeguarding the copyrights as well as ensuring that the owners of the copyrights are rewarded for their work. Third parties like copyright societies are specialized in what they do and can effectively monitor the rights to prevent any sort of infringement

PPL (Phonographic Performance Limited) and IPRS (Indian Performing Rights Society) are the two most popular public performance licensing entities in India. Initially, both of them were registered as copyright societies under the Act but the 2012 Amendment of the Act brought in a lot of uncertainties among the copyright societies. With the 2012 amendment, they had to re-register under the Act and agree to new rules and procedures. Meanwhile, IPRS in 2017 got itself re-registered as a copyright society under the Act. PPL, the UK based performance rights organization has not re-registered and yet continues to function as a private limited company registered under the Companies Act. 

There are a lot of ambiguities concerning the functioning of various third party licensing organizations in India. Section 33 of the Copyright Act prevents any third party other than a registered copyright society to issue and grant a license for the copyrighted works. However, the Bombay High Court, in the case of Leopold Café Stores v. Novex Communications Pvt. Ltd held that Novex Communications, a non-registered third party licensing organization, cannot issue a license under section 33 of the Act. But, the court also held that as per section 30 an owner of a copyright can authorize an agent for issuing a license for his copyright works. The contradictory provisions enumerated by these 2 sections are now being legally utilized by these non-registered licensing organizations. However, licensing under this provision can only be done under the name of the original owner and not the third party association. 

Music License Agreement and End-Users

End-users refer to common users who consume music. They aren’t directly related to a music license agreement. On the other hand, the aftermath of a music license agreement is directly related to the end-users. A musical work is governed among the end-users through an end-user license agreement. Online streaming platforms such as Gaana, Hungama, and YouTube are the most common platforms where a lot of musical content is consumed by the end-users. Users of these platforms are required to sign or agree to an end-user license agreement. These agreements prevent illegal distribution or commercial use of the musical work without authorization, thereby enforcing the standards of protection laid down the native music license agreement. Users cannot play copyrighted music or sound recording in public performances and in places such as restaurants, bars, and saloons without the authorization of proper organizations. For instance, for playing a sound recording you will have to obtain a license from PPL. Whereas for playing the music and lyrics, the license is granted by IPRS. 

Conclusion 

It is no brainer that the next big thing after the creation of a musical work is to avail the musical composition for its mass consumption. The role of a music license agreement in this process is of paramount importance. There has not been much change in the past few years considering the way a musical work is licensed. But quite a lot has changed in the consumption of music. Thanks to new generation technologies and ever-rising popularity of the internet. Any content made available is always prone to infringement. The same goes applicable to musical works. 

But the online music streaming industry has reduced the infringement of music. The convenience and cost efficiency offered by these platforms helps a lot in preventing musical piracy. The digitalization of the licensing process has turned out to be a boon for the industry. Licensing organizations such as the PPL(Phonographic Performance Limited) has implemented this change. As per the “Music consumer study” of 2018, the old physical licensing process has contributed only to a 10.8% revenue. Similarly, the transition to the digital licensing processes resulted in more licensing activities thereby increasing revenues of the music licensing industry.

References

1. https://blog.ipleaders.in/music-license-agreement/
2. https://www.scribd.com/document/92321937/Music-License-Agreement
3. https://www.myadvo.in/blog/public-performance-license/
4. http://www.mondaq.com/india/x/750676/Copyright/Copyright+Societies+And+The+Copyright+Amendment+Act+2012
5. https://spicyip.com/2018/08/the-state-of-indian-copyright-societies-and-assorted-bodies-after-the-copyright-amendment-act-2012.html
6. http://www.mondaq.com/india/x/802398/music+arts/Online+Music+Licensing+In+India+PLUS+And+How+Is+This+A+Revolutionary+Change

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 Ten Essential Clauses Of A Music License Agreement Under Indian Copyright Act, 1957 appeared first on iPleaders.

This article is written by Jessica Kaur, a first-year student currently pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. This is an exhaustive article exploring the meaning, scope and various aspects of the Fundamental Right to Protection of Life and Personal Liberty under article 21.

Introduction 

The right to live a free, full and dignified life is one of the most basic principles of human existence. Every person is entitled to live their life on their own terms, with no unfair interference from others. A successful democracy can only be one that guarantees its citizens the right to protect their own life and liberty.

In India, the Protection of Life and Personal Liberty is a Fundamental Right granted to citizens under Part III of the Constitution of India, 1950. These Fundamental Rights represent the foundational values cherished by the people and are granted against actions of the state, meaning that no act of any state authority can violate any such right of a citizen except according to the procedure established by law.

Article 21 of this part states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”, and this is known as the Right to Life and Personal Liberty.

Hence, this Article prohibits the encroachment upon a person’s right to life and personal liberty against the state. The state here refers to all entities having statutory authority, like the Government and Parliament at the Central and State level, local authorities, etc. Thus, violation of the right by private entities is not within its purview.

The terms ‘life’ and ‘personal liberty’ encompass a wide variety of rights of the people, which are a result of the evolution in the interpretation of Article 21 by the courts over the years. Here, we shall examine the various aspects of this Fundamental Right; but before that, let’s have a look at the jurisprudential evolution of this concept and the significance of one of the most famous judgements related to it – Maneka Gandhi v. Union of India (1978).

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Personal Liberty: Meaning and Scope

The meaning of Personal Liberty of a citizen in India has evolved and its scope has widened. Prior to the Maneka Gandhi case, it had a relatively narrower scope, comprising only some liberties of a person.

Personal Liberty was first interpreted in the case of A.K. Gopalan v. State of Madras in 1950, which is explained below.

A.K. Gopalan v. State of Madras (1950): Prevention Detention

Facts:

In this case, the Petitioner, a communist leader, was detained under the Preventive Detention Act, 1950. He claimed that such detention was illegal as it infringed upon his freedom of movement granted in Article 19(1)(d) of the Constitution of India and thus also violated his Personal Liberty as granted by Article 21 since freedom of movement should be considered a part of a person’s personal liberty.

Judgement: 

The court stated that personal liberty meant liberty of the physical body and thus did not include the rights given under Article 19(1). Hence, Personal liberty was considered to include some rights like the right to sleep and eat, etc. while the right to move freely was relatively minor and was not included in one’s “personal” liberty.

The subsequent case of Kharak Singh v. State of U.P. and Ors. (1964) saw an expansion in the meaning of Personal liberty, explained as follows.

Kharak Singh v. State of U.P. and Ors. (1964): Personal Liberty Curtailed

Facts: 

The petitioner, in this case, was accused of dacoity but was released due to a lack of evidence against him. The Uttar Pradesh Police then began surveillance over him which included domiciliary visits at night, periodical enquiries, verification of movements and the like. The petitioner filed a writ petition challenging the constitutional validity of this State action.

Judgement: 

It was held that the right to personal liberty constitutes not only the right to be free from restrictions placed on one’s movements but also to be free from encroachments on one’s private life. Thus, personal liberty was considered to include all the residual freedoms of a person not included in Article 19(1).

However, Maneka Gandhi v. Union of India (1978) proved to be a landmark case in the evolution of Personal Liberty, greatly widening the scope of this right as granted by Article 21.

Maneka Gandhi v. Union of India (1978): Right to Travel

Facts: 

The petitioner, in this case, was ordered by the Regional Passport Office, Delhi to surrender her newly-made passport within 7 days due to the Central Government’s decision to impound it “in public interest”, in accordance with the Passport Act of 1967. Upon requesting a statement of the reasons for such impounding, the Government replied that they could not furnish a copy of the same “in the interest of the general public.” A writ petition was filed by the petitioner challenging the Government’s decision of impounding and also of not providing the reasons, as well as not allowing the petitioner to defend herself.

Judgement: 

The Honourable Supreme Court held that the right to travel and go outside the country must be included in the Right to Personal Liberty. It stated that “personal liberty” given in Article 21 had the widest amplitude and covered a variety of rights related to the personal liberty of a person. The scope of personal liberty was, hence, greatly increased and it was held to include all the rights granted under Article 21, as well as all other rights related to the personal liberty of a person. Such a right could only be restricted by a procedure established by law, which had to be “fair, just and reasonable, not fanciful, oppressive or arbitrary.”

Hence, the Court adjudged in the case that:

1. The Government action was not justified as there was no pressing reason for the impounding of the petitioner’s passport and it was a violation of her Fundamental Rights.
2. The principles of Natural Justice were violated as the petitioner was not given the opportunity to be heard.

Since this landmark case, the courts have sought to give a wider meaning to “personal liberty”. The principles of natural justice have also been emphasized upon, as any procedure which restricts the liberty of a person must be fair, just and reasonable.

What is the inter-relation between Articles 14, 19 and 21?

As we have seen above, the inter-relation between Articles 14, 19 and 21 has evolved with the evolution in the meaning of Personal Liberty. 

First of all, let us take a look at Articles 14 and 19 given in the Indian Constitution.

Article 14 grants equality before the law and equal protection of the laws to all persons in the Indian territory and prohibits discrimination on the basis of religion, race, caste, sex and place of birth.

Clause 1 of Article 19 grants all citizens the right to freedom of speech and expression, to assemble peaceably and form associations, to move freely and reside anywhere throughout the country, and to practice any profession, occupation or trade.

All other clauses of this Article allow the State to impose reasonable restrictions on the rights granted in the above clause “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Earlier, Articles 19 and 21 were held to be completely exclusive and separate from each other. The position changed slowly as Personal Liberty evolved to include all rights other than those mentioned in Article 19, and they were considered complementary to each other. 

The case of Maneka Gandhi v. Union of India, however, brought a sea change. The Supreme Court held that Articles 19(1) and 21 are not mutually exclusive as the Right to Life and Personal Liberty covers a wide variety of rights, some of which have been given additional protection under Article 19(1).

Article 19 and Article 21 go hand-in-hand and the procedure established by law restricting these rights should stand the scrutiny of other provisions of the Constitution as well – including Article 14. Thus, a law encroaching upon one’s personal liberty must not only pass the test of Article 21 but also of Article 14 and Article 19 of the Constitution.

These three rights are, hence, interconnected and provide safeguards against arbitrary actions of the government. They are meant to be read together and interpreted in accordance with each other. All three of them grant basic human rights and freedoms to the citizens and their immense collective importance has given them the name “Golden Triangle” in jurisprudence.

Scope of Right to Life and Personal Liberty

We have had enough discussion on the expansion in the scope of Article 21. What exactly constitutes this Right today? We shall hereafter examine the various aspects of Right to Life and Personal Liberty.

Right to live with human dignity

It is not enough to ensure that a person has a Right to Live. An essential element of life is one’s dignity and respect; therefore, each person has been guaranteed the right to live with dignity – which means having access to the necessities of human life as well as having autonomy over one’s personal decisions.

In Occupational Health and Safety Association v. Union of India (2014), the protection of health and strength of workers and their access to just and humane conditions of work were taken as essential conditions to live with human dignity.

Occupational Health and Safety Association v. Union of India (2014)

Facts: 

In this case, a non-profit organisation filed a petition seeking guidelines for occupational safety and health conditions in various industries, especially thermal power plants. This was in view of the various skin diseases, lung abnormalities, etc. suffered by their workers due to unhealthy working conditions. It also called for compensation to victims of occupational health disorders.

Judgement: 

The court recognised the State’s duty to protect workers from dangerous or unhygienic working conditions and remanded the matter to various High Courts to check the issue of thermal power plants in their respective states.

The Supreme Court, in the case of Navtej Singh Johar v. Union of India (2018), said that the Right to dignity means the right to “full personhood”, and “includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.” In this case, a very important aspect of human dignity was talked about – the control over one’s own intimate relations.

Navtej Singh Johar v. Union of India (2018)- Homosexuality

Facts: 

In this case, the petitioner NGO filed a Writ Petition challenging Section 377 of the Indian Penal Code, 1860 as it criminalised sexual acts between LGBT persons, claiming that it was against the Fundamental Rights.

Judgement: 

The court, applying the principle of human dignity, said that Section 377 was violative of Articles 14, 15, 19, and 21 of the Constitution to the extent that it criminalised consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private. Hence, sexual acts between LGBT adults conducted with the free consent of the parties involved were declared legal.

As can be observed, human dignity is not a straightjacket idea. Rather, it involves all those rights and freedoms which enable a person to live life without encroachment upon his or her self-respect, pride and safety.

Right to livelihood

To survive, a person requires access to financial and material resources to fulfill his various needs. The law recognises that every person, whether man or woman, has an equal right to livelihood so that he or she may acquire the necessary resources like food, water, shelter, clothes and more. No person deserves to live in poverty and squalor because of being deprived of the chance to earn for himself.

An important case in this matter has been described below.

Olga Tellis and Ors. v. Bombay Municipal Corporation (1986)- Right to Livelihood

Facts: 

The petitioners, in this case, were slum and pavement dwellers in the city of Bombay. They filed a writ petition against an earlier decision of the State of Maharashtra and the Bombay Municipal Corporation to forcibly evict dwellers and deport them, which led to the demolition of certain dwellings. They challenged these actions on the grounds that evicting a person from his pavement dwelling or slum meant depriving him of his right to livelihood, which should be considered a part of his constitutional right to life. 

Judgement: 

The court concluded that though the slum and pavement dwellers were deprived of their Right to Livelihood, the government was justified in evicting them as they were making use of the public property for private purposes. However, they should not be considered as trespassers as they occupied the filthy places out of sheer helplessness. It was ordered that any evictions would take place only after the approaching monsoon season and the persons who were censused before 1976 would be entitled to resettlement.

While the case failed to bring successful resettlement to the dwellers and, in fact, is sometimes cited as justification for eviction of people by the State, it did play its part in establishing the Right to Livelihood as part of the Fundamental Right to Life.

Right to privacy

Right to Privacy sounds like a very basic and obvious right to possess, but for a long time, it was not recognised as a distinct right by the Government because of not being mentioned explicitly by the drafters in the Constitution of India. Over time, there has been a growing recognition of a person’s autonomy over his or her personal body, mind and information which has been given due emphasis by the courts in various judgements.

The Right to Privacy first saw mention in the following case. 

R. Rajagopal v. State of Tamil Nadu (1994)

Facts: 

In this case, a person convicted of murder wrote his autobiography, in which he also disclosed his relationship with the prison officials, some of whom were his partners in crime. His wife sent it for publishing to the Tamil magazine ‘Nakkheeran’, but the prison officials interfered in the publication. The editors of the magazine filed a petition to restrain the government or the prison authorities from stopping the publication of the autobiography.

Judgement:

The court held that it was the right of the criminal Auto Shankar to do whatever he wanted with his private information. Thus, the magazine could not be stopped from publishing what it called the “autobiography” of the criminal.

This case set the stage for future judgements regarding the Right to Privacy and paved the path for it to be established as a part of the Fundamental Rights granted under Part III of the Constitution.

Is Right to Privacy an absolute right?

Although Right to Privacy is one of the most essential rights of a person, especially in a modern democracy, it is not an absolute and untouchable right. There are certain situations where reasonable restrictions can be placed on this right of a person for the greater good. 

One such situation can be seen in the infamous case of Mr X v. Hospital Z.

Mr. X v. Hospital Z (1998)

Facts: 

The appellant, in this case, was found to be HIV(+) when his blood sample was tested. This fact was disclosed by the Hospital to others without the appellant’s express consent. Due to such disclosure, the appellant’s proposed marriage to Ms. Y was called off and he was shunned by society.

The aggrieved person approached the National Consumer Dispute Redressal Commission claiming that there was a breach of confidentiality on the part of the Hospital, but his complaint was dismissed. The appellant then approached the Supreme Court contending that the Duty of Care of the medical professionals as well as his Right to Privacy were violated.

Judgement: 

The court held that the appellant’s Right to Privacy was superseded by Ms. Y’s right to know such a material fact about the person she was about to marry, as it was bound to affect her life as well. It was further held that a medical professional’s duty to maintain confidentiality could be breached in cases where public interest was at stake.

Telephone-Tapping: An invasion of Right to Privacy

In today’s digital world, Right to Privacy has acquired a new meaning. In a world where your finger controls everything you put out for everyone to see, can you imagine your personal information being secretly spied on by someone?

In the 90s, telephone-tapping of private conversations by the State became a much-talked-about issue in the case of People’s Union for Civil Liberties v. Union of India (1997). Let us take a look at the facts of the case.

People’s Union for Civil Liberties v. Union of India (1997)

Facts: 

In this case the petitioner, a voluntary organisation, challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 which empowered the Central or State government or its authorised officer to intercept and record messages in case of public emergency or in public interest. This came in the wake of the report on telephone-tapping of politicians which showed that many interceptions were not backed by proper authorizations and in many cases, no proper records or logs of the same were maintained.

Judgement: 

The court held that interception can be made only by specific top government officials, only when it is necessary, and it should not exceed a total of six months. The copies of such intercepted messages should be destroyed as soon as they are no longer useful. Recognizing a person’s Right to Privacy, it ordered the formation of a Review Committee to check that such interception was not in contravention of Section 5(2) and if it was, the messages shall be destroyed immediately.

Right to Privacy and Aadhaar Card

One of the most important judgements related to Right to Privacy came in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2015). This case established Right to Privacy as a Fundamental Right granted to the citizens by the Constitution.

Justice K.S. Puttaswamy (Retd.) v. Union of India (2015)

Facts: 

The case was brought by a retired Karnataka High Court Justice before a nine-judge Constitutional bench, challenging the government’s scheme of making the Aadhaar card (a uniform system of biometrics-based identity card) for all citizens. He claimed that it was a violation of the Right to Privacy, and the fact that there were no strict data protection laws in India meant that people’s personal information could be misused. The Attorney General argued that the Constitution did not guarantee a separate Right to Privacy.

Judgement: 

The bench unanimously held that Right to Privacy was a part of one’s Right to Life granted by Article 21 and included the right to keep personal information private. While it upheld the constitutional validity of the Aadhaar Card, it struck down certain provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Right to Health and Medical Assistance

The Right to Life, of course, cannot be upheld if every person is not given access to proper health and medical assistance. It is the most primary prerequisite to living a full life. 

However, sometimes doctors and medical institutions hesitate to assist the ailing persons due to fear of long formalities and complications, especially in medico-legal cases. An example of such a situation is given below.

Pt. Parmanand Katara v. Union of India (1989)

Facts:

In this case, a scooterist faced an accident upon crashing with a car but upon being brought to a hospital, he was refused treatment and directed to another hospital 20 km away due to the non-occurrence of legal and police formalities. A writ petition was filed in public interest to make it an obligation for doctors to provide medical assistance immediately and not have to wait for completion of formalities.

Judgement:

It was recognised that Article 21 renders paramount importance to the preservation of human life. Thus, it is the obligation of all medical professionals to give immediate health assistance to all patients, without being put under any legal impediment. It was decided that no medical professional shall be harassed for any investigation and he or she would not be asked to testify in court unless necessary and absolutely relevant.

Thus, this case freed the medical professionals of any legal restrictions and thereby made it an obligation and duty for them to provide immediate assistance to patients to uphold the Right to Life.

Right to sleep

All of us love sleeping, right? But many are not aware that the Right to Sleep is a distinct part of one’s Fundamental Rights, which protects against any actions of the State leading to the unlawful deprivation of a person’s sleep.

Re-Ramlila Maidan Incident v. Home Secretary and Ors. (2012) was the case which led to the establishment of this Right.

Re-Ramlila Maidan Incident v. Home Secretary and Ors. (2012)

Facts: 

In this case, a Yoga training camp was to be held in Ramlila Maidan during June, 2011 but on 4th June it turned into a hunger strike against black money and corruption led by Baba Ramdev. The protests took place all day and at 12:30 at night, when all the protestors were sleeping, a large number of CRPF, Delhi Police force and Rapid Action Force personnel reached the venue to bring the sadhu out. A scuffle ensued between the personnel and the sadhu’s supporters which ended in throwing teargas shells on the people.

Judgement

The court acknowledged that sleep is an essential part of a healthy life and a necessity for the maintenance of individual peace. Thus, it held that every person is entitled to sleep as comfortably and freely as he breathes. If any person’s sleep is disturbed without any reasonable justification, it amounts to torture and is a violation of his human rights. Therefore, making the sleeping persons flee and causing mayhem at the location was held as unlawful, since there was no illegal activity taking place there.

Arrest and detention of a judgement-debtor

The first question that comes to mind is, who is a judgement-debtor?

A judgement-debtor refers to a person against whom a judgement has been made ordering him to pay a sum of money i.e. damages, which remains unsatisfied. Thus, he is a debtor of those damages with respect to the judgement passed.

Now, if the judgement-debtor continues to fail to pay the money, what is the recourse?

Jolly George Varghese and Anr. v. Bank of Cochin (1980)

Facts: 

In this case, a court warrant was made for the arrest and detention of two judgement-debtors as they had not paid the money due to the Bank. Their property was also encroached upon for the purpose of selling it and obtaining the money. All this was done without ascertaining that the judgement-debtors had the means to pay but had intentionally evaded it, i.e. had committed an act of bad-faith. Hence, an appeal was filed by the two.

Judgement: 

The court declared that it was necessary to ascertain whether an act of bad faith had been committed, and only then the judgement-debtors should be arrested and detained.

Thus, the court, keeping in mind the life and personal liberty of the judgement-debtor, narrowed down the circumstances in which he can be arrested. Therefore, if a judgement-debtor fails to pay the money, he can be arrested – provided that he deliberately avoided paying it even while possessing the means to do so.

Bonded labour system

Having to work in a bonded labour system is one of the most obvious violations of one’s Right to Life to Personal Liberty. Treated as slaves, the bonded labourers face working conditions full of destitution and misery and are often greatly exploited. 

The Bonded Labour System (Abolition) Act was passed in 1976 as a step towards ending this system, but it isn’t always abided by completely. It is in times like these that the court has to step in and ensure that the labourers can enjoy their Fundamental Rights.

To truly achieve personal liberty, the labourer must not only be freed but also rehabilitated in order to establish an independent life. This was reiterated in the following case.

Neeraja Chaudhary v. State of M.P. (1984)

Facts: 

In this case, a writ petition was filed in the matter of 135 bonded labourers working in stone quarries in Faridabad, who had been released as per an earlier court order and returned to their home villages in Madhya Pradesh with the promise of rehabilitation. However, even six months down the line, they had not been rehabilitated and, in fact, were living on the verge of starvation. Because of this, many wanted to go back to bonded labour rather than starve.

Judgement: 

The court emphasized upon the need for proper rehabilitation of the labourers to uphold their Right to Life and Personal Liberty granted by Article 21, and ordered the State government to undertake appropriate measures for the same.

Right to die

The Right to Life confers upon the person the right to live a full life and dictates that the State cannot interfere in this right except through procedure established by law. But, what if a person chooses to end his own life? Can he interfere in his own Right to Life?

Section 309 of the Indian Penal Code, 1860 criminalises attempt to suicide, with the convicted person facing up to two years of imprisonment, or a fine, or both.

Section 306, meanwhile, criminalises the abetment to suicide i.e., the assistance given by a person in the process of the commitment of suicide by another.

You might say that such a view is inhumane because a person, especially one who is depressed or frustrated to the point of wanting to die, should not be criminalised for attempting suicide. A person has the Right to Life which should naturally imply the Right to end his life too.

Such a view was taken by the court in the case of P. Rathinam v. Union of India (1994).

P. Rathinam v. Union of India (1994)- Right to Die

Facts: 

In this case, two petitions were filed challenging Section 309 of the IPC on the grounds that it stood in violation of Articles 14 and 21 of the Constitution.

Judgement: 

Keeping Article 21 as well as the principles of natural justice in mind, the two-judge bench ruled that Right to Life also included the right to not live a forced life. Therefore, Section 309 of the Indian Penal Code was declared void.

However, the court then changed its position in the subsequent case of Smt. Gian Kaur v. State of Punjab (1996).

Smt. Gian Kaur v. State of Punjab (1996)

Facts: 

In this case, Gian Kaur and her husband Harbans Singh were convicted under Section 306 of the IPC due to abetment to the suicide of Kulwant Kaur. Subsequently, the constitutional validity of Sections 306 and 309 was challenged.

Judgement: 

Here, the judgement given in the previously-mentioned case was overruled and it was held that Section 309 of the IPC was not unconstitutional and that Section 306, criminalising abetment to suicide, was Constitutional. The court concluded that suicide being an unnatural termination of life, it was against the concept of Right to Life.

Euthanasia 

The term euthanasia comes from two Greek words – eu meaning ‘good’ and thantos meaning ‘death’. Thus, it essentially means ‘good death’. It is the practice of ending the life of a person suffering from an incurable disease but still breathing, thus undergoing great agony and distress. It helps him or her go through a gentle and painless death instead, by either an act or omission upon his or her body. It is, thus, also known as “mercy killing” or “assisted suicide”.

There may be two types of euthanasia- active and passive.

1. Active Euthanasia involves doing something to a patient to end his or her life, with their consent. For eg. giving an injection.
2. Passive Euthanasia involves withdrawing medical services with the intention to end the patient’s life. In other words, it means not doing something to a patient, which if done would have saved his or her life. For eg. stop feeding the patient.

In Smt. Gian Kaur v. State of Punjab, the court observed that euthanasia could be made lawful only by legislation. The reasoning behind this was to prevent unscrupulous actions by ill-intentioned people. 

The landmark case in this matter, however, was Common Cause (A Regd. Society) v. Union of India (2018), which made passive euthanasia lawful.

Common Cause (A Regd. Society) v. Union of India (2018)

Facts: 

In this case, an NGO filed a Public Interest Litigation in the Supreme Court to legalize living will and passive euthanasia. It contended that a person’s right to life included the right to have a dignified death as well, but modern technology enabled the unnecessary prolonging of an incurable patient’s life, only causing pain and suffering to him and his family. Thus, living will by the patient could authorize the family and the hospital to end his agony.

Judgement: 

A five-judge Constitution bench ruled that Right to Life also includes a person’s Right to Die with dignity, and thus allowed passive euthanasia i.e. the will of patients to withdraw medical support in case of slipping into an irreversible state of coma.

Thus, currently, active euthanasia is illegal in India, just as in most other countries. On the other hand, passive euthanasia is legal in our country, subject to certain strict guidelines.

Right to a Healthy Environment

Nature has showered us with its gifts since the beginning of time, and these gifts and resources act as the backbone of human existence. A clean, healthy and harmonious environment is one of the necessities for the true enjoyment of life, and thus, it comes as no surprise that our right to live in a pollution-free environment is included in the expansive Right to Life.

The rapid growth of technology beginning with the Industrial Revolution and growing over the centuries has, however, not helped the environment at all. The establishment of more and more industries and a rise in the demand for products manufactured by them has increased the waste churned out by them. Where does all this waste go? Unfortunately, it ends up in the land, water, and air.

Several court judgements have led to the establishment of our right to a healthy environment and the measures to curb the pollution of the Earth. 

Right to get pollution-free water and air 

Without clean drinking water, we can’t last half a week, and without air, we can’t even last half an hour. It is very important to have access to pollution-free water and air for a sound mind and body.

The case of Subhash Kumar v. State of Bihar (1991) emphasized this right as a part of Article 21.

Subhash Kumar v. State of Bihar (1991)

Facts: 

In this case, a Public Interest Litigation was filed against two iron and steel companies alleging that they were polluting the nearby river Bokaro by dumping waste into it. The petitioner pointed fingers at the State Pollution Control Board for failing to prevent this and offered to collect the waste and sludge himself.

Judgement: 

The court confirmed that the Fundamental Right to Life includes the right to enjoy pollution-free water and air, and if anything endangers the quality of water and air then a citizen can file a petition in court.

However, this particular PIL was dismissed on the grounds that it had been filed in personal interest for the petitioner’s own gains, and that it lacked any basis as the State Pollution Control Board had taken appropriate measures to control pollution.

Protection of Ecology and Environmental Pollution

Nature needs to be protected not just for our own eating, drinking and breathing, but also to preserve the entire ecosystem which maintains the ecological balance on Earth.

Examine the cases below to understand some of the judgements which have contributed towards greater protection of the environment.

Rural Litigation and Entitlement Kendra v. State of U.P. (1985) or the Dehradun Valley Litigation

Facts: 

In this case, an NGO filed a petition against the limestone quarries in the Dehradun-Mussoorie area, alleging that their work was unauthorised and was leading to ecological imbalance in the surroundings due to the landslides caused.

Judgement: 

The court only allowed a few mines to remain open while all the others, which were causing harm, were shut down. The Valley was declared as an ecologically sensitive area and measures were taken for its restoration. Most importantly, this case led to the enactment of the Environment Protection Act, 1986.

M.C. Mehta and Anr. v. Union of India (1987) or the Shriram Food and Fertilizer Case

Facts: 

In this case, the chemical plant Shriram Food and Fertilizer Ltd. in Delhi suffered a major leakage of the deadly oleum gas in October 1986 and faced another minor leakage two days later. This incident affected almost two lakh people in the near radius.

Judgement: 

The court held the industry liable for its negligence and ordered it to pay Rs 20 lakh as compensation to the victims. It also ordered the establishment of an Expert Committee to overlook the operation of the industry. It was directed for all workers to be properly trained, and for loudspeakers to be installed in the premises to warn people in case of any leakage.

Thus, this proved to be a landmark case in environmental legislation as it established the principle of absolute liability, which involves holding the industry dealing in hazardous substances absolutely liable for all damages caused by its faulty operations.

Indian Council for Enviro-Legal Action v. Union of India and Ors. (2011)

Facts: 

In this case, Heavy chemical industry plants were being operated in the Udaipur district of Rajasthan, producing dangerous chemicals like oleum and the “H” acid. The petition was filed to prevent and remedy the pollution caused by them.

Judgement: 

The court condemned the pollution caused by the industrial company Hindustan Agro Chemicals Ltd. and imposed a heavy fine of almost Rs. 38 crores for remedying the environment damages caused.

Vellore Citizens Welfare Forum v. Union of India and Ors. (1996) 

Facts: 

In this case, large-scale pollution was being caused to River Palar in Tamil Nadu due to the discharge of untreated waste by the nearby industries into it. Moreover, over 35,000 hectares of agricultural land had become unfit for cultivation. A Public Interest Litigation was filed against the same.

Judgement: 

The court admitted that on one hand, the industries were contributors to the development and a source of employment to thousands of people but on the other, they were the cause of environmental degradation. Therefore, it imposed a fine of Rs. 10,000 on them and emphasized the setting-up of a Green Bench in court to deal with environmental cases in a speedy manner.

Mining in Aravalli hills range banned

The court has emphasized the need to protect the Aravalli hills, one of the few non-concrete areas left in the National Capital Region. Mining activities being undertaken here were banned in the case of M.C. Mehta v. Union of India and Ors. (2004).

M.C. Mehta v. Union of India and Ors. (2004)

Facts: 

The petition, in this case, was raised against mining activities 5 km away from the Delhi-Haryana border and the Aravalli hills area, which was causing environmental pollution due to the blasting operations involved.

Judgement: 

The court held that the Aravalli hill range had to be protected at any cost and so prohibited any mining activities in the area. It appointed a Monitoring Committee to oversee the restoration of the environment quality.

Freedom from noise pollution: Another component of Article 21 

In this fast-paced, chaotic urban world, the noise has become a major deterrent to a peaceful and healthy lifestyle. The huge public loudspeakers, noisy firecrackers, and even the incessant honks of vehicles on the road have become a source of great annoyance and also of serious health hazards.

In the Re: Noise Pollution case (2005), the court addressed the issue of noise pollution and moved a step towards controlling it.

Re: Noise Pollution case (2005)

Facts: 

In this case, a petition was filed against the use of loudspeakers in religious congregations, political rallies, social occasions, etc. and the use of firecrackers which created a lot of noise pollution and disturbance. This was in the wake of a thirteen-year-old rape victim’s cries for help going unheard due to the blasting of music on loudspeakers in the locality.

Judgement: 

The court acknowledged the grave adverse effects of loud noise and gave certain directions to prevent the same-

1. Prohibition of bursting noisy firecrackers at night.
2. Fixation of cap on the noise levels of loudspeakers.
3. Prohibition of honking vehicles in residential areas at night.
4. Spreading awareness about the hazardous effects of noise pollution.
5. Directing the state to confiscate loudspeakers operating beyond permitted noise limits.

The environmental-pollution situation probably stands on a better legal platform than it did a couple of decades ago, but there is still a very long way to go in its implementation if we want to save the Earth in the face of alarming climate change statistics.

Prisoner’s Rights and Article 21

Fundamental Rights form the basis of human existence and are not denied to anyone except under special circumstances. A person convicted of a crime too, therefore, is not deprived of his Fundamental Rights. Restrictions are usually placed on a criminal’s movement, the practice of the profession, etc. but the Right to Life and Personal Liberty is one right that is not snatched from him, except through procedure established by law (for eg. a death sentence).

What constitutes the Right to Life and Personal Liberty of a convict? We shall examine that below.

Right to free legal aid

Article 39A of the Constitution provides that the State must secure a proper legal system based on the equal opportunity by offering free legal services to people (in the form of lawyers to represent them in a trial), in order to ensure that no one is denied justice due to his economic weakness. This is in consonance with Article 14 which provides equal protection before the law and Article 22(1) which states that every arrested person must get the chance to be represented by a legal practitioner of his choice.

Hence, this right helps to ensure one of the most essential elements of justice – that it is made accessible to all.

Right to a speedy trial

Right to speedy trial means that the accused should be put under trial as soon as possible to ascertain whether they are guilty or not. It safeguards against the accused being put into prison for a long time with no foreseeable date in the near future to face trial. It is available to the accused at all stages including investigation, inquiry, trial, appeal etc. This right is based on the principle which says that “justice delayed is justice denied.”

This right was discussed by the court in detail in the following case.

Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1979)- Right to Speedy Trial for Under trials

Facts:

In this case, a petition for a writ of habeas corpus was filed by a number of undertrial prisoners who were in jail in Bihar for years, awaiting their trial.

Judgment:

The Supreme Court held that though the right to a speedy trial is not specifically listed as a Fundamental Right in the Indian Constitution, it is implicit in the broad scope of Article 21. Speedy trial is the essence of criminal justice and hence, no procedure which does not ensure a reasonably quick trial could be “reasonable, fair or just.” Thus, the Bihar Government was ordered to start the trials of the prisoners as soon as possible.

Right to fair trial

A fair trial is a trial characterised by the complete impartiality and fairness of judges during the hearings. What use is the trial for the accused if the people making the decisions are inherently biased towards them?

Every person undergoing a trial should be given a fair chance, so as to ensure the application of fundamental elements of human rights and proper administration of justice. It forms part of International Law as well, given under Article 10 of the Universal Declaration of Human Rights.

The qualitative difference between a speedy trial and fair trial

Speedy trial and fair trial are alienable elements of the judicial process and must go hand-in-hand for the best-possible administration of natural justice. Every party to a case has the right to get a reasonably quick dispersion of justice as well as fair treatment and decision by the court.

However, there does exist a qualitative difference between these two elements. Seen at face-value, we can say that the principle of fair trial holds dearer value in the judicial process, as its denial would mean a direct snatching of the person’s right to be properly examined before being declared guilty. Justice must not only be done but also clearly appear to be done, and hence, the principle of fair trial must be followed at all times.

Constitutionality of a death sentence

The death sentence is a type of punishment awarded to criminals who have committed the grossest or serious offences. Oxford Dictionary defines it as the “legally authorized killing of someone as punishment for a crime.” But, does that mean that the State can take the life of a person as per its will? Doesn’t that completely nullify the person’s Right to Life?

The constitutional validity of a death sentence has been much discussed and debated, with many arguing that it is inhumane, that it violates the Fundamental and Human Rights, or that the ‘eye for an eye’ ideology behind it achieves no purpose in law and justice.

Take a look at this landmark case.

Bachan Singh v. State of Punjab (1980)

Facts: 

In this case, Bachan Singh was convicted of the murders of three people and sentenced to death by the Sessions Judge, which was confirmed by the High Court. Bachan Singh appealed whether the facts of the case fell in the category of “special reasons” to warrant the death penalty.

Judgement: 

The court upheld the constitutional validity of the death penalty saying that it did not violate Articles 14, 19 and 21, but reiterated that it could only be awarded in the “rarest of rare” cases, and not as a substitute for life imprisonment.

Thus, while capital punishment is a very harsh punishment, it is essential in the grossest and most serious cases like the murder of several persons, a brutal rape, etc. to properly administer justice and act as a deterrent in society. Its constitutional validity has been upheld by the Supreme Court. However, a high burden must be placed on the judge to duly consider and be satisfied with the awarding of a death sentence.

Public hanging

Public hanging means the execution of a convict by hanging in a public space where the members of the general public are allowed to attend voluntarily. While today they are regarded with a general distaste, public executions used to be more commonplace earlier as they acted as a strong deterrent for others, showing the power of the State to deal with unfavourable elements of society.

In India, convicts have a Right against Public Hanging as part of their Fundamental Right to Life, due to the barbaric nature of such an execution. This was established in Attorney General of India v. Lachma Devi and Ors. (1985).

Attorney General of India v. Lachma Devi and Ors. (1985)

Facts: 

In this case, Lachma Devi set her daughter-in-law Pushpa on fire due to bad relations and dissatisfaction with the dowry brought by her, causing her death. She was sentenced to death by public hanging in a place like Ramlila Maidan by the Rajasthan High Court. An appeal was filed by her against this decision.

Judgement: 

The bench condemned public hanging as being unconstitutional and grossly violative of Article 21 of the Constitution, thus deleting that order of the High Court.

Thus, while a death sentence remains a method of punishment in the most serious crimes, it need not be taken to the extent of a public hanging to further humiliate the convict and cause turmoil in society.

Right against delayed execution

The Apex court has ruled that an unreasonable and undue delay in the execution of the sentenced person is akin to torture and is in violation of the Right to Life. The Supreme Court is further of the opinion that delay in execution is enough grounds for commuting the punishments to, say, a life sentence. This is because an unduly delayed execution means the distortion of proper justice and causes great psychological distress to the convict, which is unnecessary.

Police atrocities and custodial death 

Police are one of the most necessary institutions of a State as it is the acting arm of law and legislation. Police keep a check on unwanted activities and ensure order in society, for which it is given considerable powers. 

However, sometimes, certain members of the police get caught up in the power and try to take undue advantage of it. They cease to abide by the law and instead, take it in their own hands. It is a sad sight to see the very guardians of law compromising it – leading to cases of police brutality and atrocities.

Police officers sometimes unfairly arrest individuals, beat and torture the prisoners, and commit various other crimes. One example of such a situation was seen in Smt. Nilabati Behera Alias Lalita Behera v. State of Odisha and Ors. (1993).

Smt. Nilabati Behera Alias Lalita Behera v. State of Odisha and Ors. (1993)

Facts: 

In this case, the 22-year-old son of the petitioner was taken into police custody. The next day, his dead body was found on the railway tracks. The death was unnatural as the body was found with multiple injuries. The petitioner alleged custodial death.

Judgement:

The court confirmed the allegation and awarded compensation to the petitioner. It directed the state to ascertain the responsibility of the officials involved in the death and take appropriate actions against them. It upheld the Right to Life of accused under trials and persons in custody and the fact that no police official can deprive someone of their life and liberty without a lawful procedure.

Trial of rape cases

Rape is one of the most horrific crimes of all, and one of the few crimes for which no reason given can be considered justified by any member of society. Unfortunately, it is also a crime that threatens to never die in our country, with India being the most dangerous country for women according to a Thomson Reuters Foundation report in 2018. Government data says that over 90 rape cases are reported in the country every day – but the actual number is probably much higher.

Rape has remained a grossly under-reported crime, which can be attributed to the psychological stress and fear of ostracisation by society in the minds of victims and their families, and also to the long-drawn, painful and often unsatisfactory trial procedure. Over time, efforts have been made by the courts to enable dispersion of easier, quicker and greater justice to victims of rape.

It was in the brutal rape case of Delhi Domestic Working Women’s Forum v. Union of India (1995), that the court laid down parameters to assist the victims of rape in the trial process.

Delhi Domestic Working Women’s Forum v. Union of India (1995)

Facts:

In this case, a Public Interest Litigation was filed against the rape of six women travelling in a train from Ranchi to Delhi, by seven army personnel.

Judgement: 

The Court recognised the defects in the system where complaints are not handled properly and victims are often humiliated by the police and suffer grave psychological stress. The parameters laid down include-

1. Provision of legal representation to the victims from the moment they arrive at the police station for the complaint, and the duty of the police to inform them of this right.
2. Maintenance of anonymity of the victims as far as necessary.
3. Establishment of Criminal Injuries Compensation Board to award compensation to victims even before conviction of offender takes place.

Prevention of sexual harassment of working women

When we think of a good life, it probably includes living with respect in the community without any unfavourable actions taken by others against you. However, in this patriarchal society, women are often treated as sexual objects meant for the pleasure of men, and it leads to unwanted sexual advances towards them. 

Women’s safety outside their homes has been one of the reasons why even in the urban areas in modern times, there is a dearth of women in the workspace. For a woman, the Right to Life includes the right to not face any sexual harassment while they go out to earn a living and achieve their professional goals – thereby enabling them to exercise their right of practising any profession, occupation or trade.

Keeping this issue in mind, various provisions have been ordered by the Court and implemented by the Government to prevent sexual harassment of women, which can be mainly credited to the following landmark case.

Vishaka and Ors. v. State of Rajasthan and Ors. (1997)- Right against Sexual Harassment

Facts: 

In this case, a writ petition was filed to prevent the hazards to the safety of working women in the wake of an alleged gang rape of a social activist in a Rajasthani village. It contended that sexual harassment faced by women in the workplace was in violation of the Fundamental Rights granted in Articles 14, 15 and 21.

Judgement:

The court defined sexual harassment and laid down certain guidelines for prevention of sexual harassment in the workplace, which include (but are not limited to) the following-

1. Duty of employers and responsible people to prevent sexual harassment.
2. Duty of employers to provide a safe and appropriate working environment for women.
3. Establishment of a complaint committee (headed by a woman) and a complaint mechanism to redress grievances.
4. Rules for disciplinary actions to be taken against misconduct.
5. Spread of awareness regarding the rights of working women.

Eve-teasing

Unwanted remarks and advances towards women don’t just stop at closed professional or domestic settings. Unfortunately, they also occur in public places like trains, metros, and even streets, and this is known as Eve-teasing.

While eve-teasing has often been dismissed as harmless or less serious than other issues, it acts as a big blot on women’s safety and can lead to violent situations as well. 

Let’s examine the case of Dy. Inspector-General of Police and Anr. v. S. Samuthiram (2012), which led to the formation of guidelines to prevent and punish eve-teasing.

Dy. Inspector-General of Police and Anr. v. S. Samuthiram (2012)

Facts:

In this case, a police personnel eve-teased and misbehaved with a woman who was waiting with her husband at a bus station in Tamil Nadu.

Judgement: 

The guidelines laid down by the court include (but are not limited to) the following-

1. All governments to ensure the presence of plain-clothed female police officers in public places.
2. Installation of CCTV cameras in strategic locations.
3. Orders to persons in-charge of public institutions and public service vehicles to immediately report any acts of eve-teasing to the police, failure of which would lead to adverse consequences.
4. Establishment of Women Helpline in all states and union territories.

While noteworthy guidelines have been formulated by the court for both, sexual harassment and eve-teasing, the fact that these horrid practices still prevail questions the quality of their enforcement. One gets no points for observing that women’s safety is still a gigantic problem in our country, and it is the responsibility of law and order to buckle up and ensure that the unequally-placed half of the population gets the right environment to live and flourish, which has been long overdue.

Emergency and Article 21

Emergency refers to a situation where immediate action is required by the authorities in the State to deal with dangerous conditions involving internal rebellion, external aggression or financial bankruptcy. In India, an Emergency can be any of these three types-

1. National Emergency
2. Failure of Constitutional Machinery in a state (hence, President’s rule)
3. Financial Emergency

In a situation of Emergency, the liberties of the people may be temporarily suspended, with the reasoning that the State needs to prevent mayhem and effectively cope with the dangerous situation. Article 359 of the Indian Constitution empowers the President to suspend the Fundamental Rights of the people given in Part III for a specific period of time. However, this is not without exceptions.

Article 21, granting the Right to Life and Personal Liberty, is one of the only two rights that can not be suspended by the authorities even in case of an Emergency. It says that no person is deprived of his life or personal liberty except through a procedure established by law, and this procedure must not be arbitrary or unreasonable (as recognised in the Maneka Gandhi case).

The fact that Article 21 cannot be suspended ensures that people are not exploited during times of stress and danger and that they still possess their basic and cherished human rights.

This provision of non-suspension of Article 21 was brought about by the 44th Amendment to the Constitution in 1978, which amended Article 359 to exclude Articles 20 and 21 from its scope.

Right to Education: A Fundamental Right under Article 21A

Life without education remains to be a mere animal existence, as it is education that broadens the horizons of a person’s mind, making him capable of not only earning a livelihood but also of achieving happiness and respect and making a mark for himself in the world. 

The Right to Education in India was added under Article 21A of the Indian Constitution by the Constitution (Eighty-Sixth) Amendment Act, 2002. This Article provides free and compulsory education to all children in the age group of six to fourteen years (6–14) as a Fundamental Right.

Two cases had an important bearing on the establishment of the Right to Education. We shall take a look at them below.

Miss Mohini Jain v. State of Karnataka and Ors. (1992)

Facts: 

In this case,  student of a Government Medical College in Karnataka was refused admission as she could not afford to pay the Rs. 60,000 capitation fee which was charged from the students not belonging to Karnataka. She filed a petition against this action.

Judgement: 

The High Court declared that it was illegal to charge capitation fee from students under any circumstances. Moreover, it acknowledged that education was what ensured a life of dignity and happiness to a person and not transforming the right to education mentioned under Article 41 of Part IV of the Constitution into a Fundamental Right would defeat its purpose and also keep all existing Fundamental Rights beyond the reach of the illiterate. Thus, it declared that Right to Education is a part of the Fundamental Rights.

Unni Krishnan, J.P. and Ors. Etc. v. State of A.P. and Ors.: Article 21(a)

Facts: 

The petition in this case was filed by certain educational institutions in Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu challenging the decision made by the court in the above case of Mohini Jain v. the State of Karnataka. They claimed that a person had the right to open an educational institution with a profit motive and if that institution was self-financed, then the quantum of fees charged by it would be the discretion of the institution and not the State.

Judgement: 

It was held that every Indian citizen has a Fundamental Right to Education. No person can be deprived of his or her education by the State. This right includes free education until the person attains 14 years of age and thereafter, it will depend on his or her personal economic capacity as well as that of the State.

It is clear that the recognition of Right to Education as a Fundamental Right was mainly brought about by the above-mentioned cases, which ultimately led to the Eighty-Sixth Amendment.

Conclusion 

The Right to Life and Personal Liberty has a wide ambit which is only growing over time. There has been increasing awareness about the various aspects of a person’s life which he or she is entitled to control and which would, thus, facilitate the enhancement in quality of his or her life. This Right has been described as the “heart and soul” of the Constitution of India by the Supreme Court and certainly proves to be so – representing the very basic necessities of human life.

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 Article 21: Meaning & Scope of Protection of Life & Personal Liberty appeared first on iPleaders.

This article is written by Karishma Ramchiary*, a 4th-year student of B.A. LL.B. from Lloyd Law College, Greater Noida. The article discusses the Insider insights of International Moots along with the requisite documentation & formalities.

Introduction

There is no denial of the fact that participating in Moot Court Competitions is one important co-curricular activity for law students. As to what is Mooting and why should a student participates in it, you may look up to articles on the internet. I may refer you to the website of the University of Oxford that answers the question.

Mooting in India reflects competitive, individualistic and adversarial perspectives of the judicial side of law.1 Mooting culture in India that have been developed to a great extent. Every month at least two moot Court competitions happen in India. Students from Law Schools all over India prepare to participate in these competitions.

However, a National Moot Court Competition is in a way different from the International Moot Court Competition, right from the type of preparation to its presentation in front of the judge. Apart from the Memorial Drafting and Preparing for your oral arguments, International Moot Court Competition will require you to research the type of country you are visiting, raising funds to participate in case you are selected and several other important documentation such as passports and visas, etc. What goes on the preparation of the International Moot Court Competition is discussed in this article.

Subject Matter and Various Aspects of the International Moot Court Competition

International Moot Court Competitions are based on International Law. It is generally based on the specific branch of International Law or on a mixture of two or three branches of International Law. Some branches of International Law are International Criminal Law, International Environment Law, International Humanitarian Law, International Trade Law, etc.

The Moot Problem of the Competition is based on these topics or several issues connected with it. For example, International Criminal Court Moot Competition specifically deals with the International Criminal Law and the moot is organized yearly or Stetson International Environmental Moot Court Competition that specifically deals with International Environment law and is also organized yearly.

Each specific Moot Court Competition has its own rules and regulations. Therefore, any student interested in a particular Moot Competition should go through the Rules and Regulations before deciding to participate in it. It is also advisable to take inputs from other members of those who have participated in that competition before.

Mooting Competitions involve writing the memorandum and oral hearings based on the memorandum. Both writing the memorandum and oral hearings requires rigorous legal research and practice.

Cracking the Moot Problem of International Moot Court Competition need rigorous research and time. Therefore, moot teams in International Moot Competition are given three to six month for preparation, unlike National Moot Court Competitions which generally gives one to three months for preparation. 

There are Moot Court Competitions based on International Law that are organized inside India. To mention some, 1) D.M Harish Memorial International Moot Court Competition, 2) Justice P.N. Bhagwati International Moot Court Competition, 3) NUALS International Maritime Law Arbitration Competition, 4) VIPS International Law Moot Court Competition, 5) NALSAR Public International Law Moot Court Competition.

Other International Law Moots generally involve National or Regional Rounds and International Rounds. Whereas, others involve the selection of memorials before participation in Oral Rounds, therefore, understanding the rules and regulations is important for every Moot Competition.

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Top ten International Law Moot Court Competition

Phillips C. Jessup International Moot Court Competition

“The Jessup is one of those incredibly rare experiences that transcends law school and impacts your life for decades thereafter. It will undoubtedly provide you with the skills necessary to become a great lawyer, but it is the Jessup competition’s teaching of reason, civility, empathy, compromise and respect for others which will make you a better person and the world a better place.”- Mark Luz

I had the opportunity to participate in Jessups India’s Rounds- 2016 and I feel the above quotation fits perfectly with my Jessup experience. This Competition is known as the World Cup in Mooting.

It is the world’s largest moot court competition, with participants from roughly 700 law schools in 100 countries and jurisdictions.

 An interesting fact about Jessups is that the topic of the Moot Problem is announced several months before (i.e., in the month of March- April) the actual moot problem is out. That makes it better to deal with the questions in the Moot Problem because you get to learn your basics beforehand. Participants may refer to the Guide to Philip Jessup Moot published by CIICJ for some guidance to prepare for this Competition.

Time Period of the moot 

The Moot Problem releases by September and the Registration for the Moot ends by November.

To know more about this competition you can visit on its official web page. 

Stetson International Environmental Competition 

The World’s most prestigious moot on International Environmental Law Moot. This moot is organized by Stetson University, in India, it is sponsored by Surana & Surana International Attorneys and is hosted by Jindal Global Law School, Sonipat, Haryana. The International Finals of this moot is held in Gulfport, Florida. A team from National Law School, Bangalore won this Competition last year.

Time Period of the moot 

The registration for this moot ends in November. To know more about this Competition you can visit its official web page.

Willem C. Vis International Commercial Arbitration Moot

The goal of this moot is to foster the study of International Commercial Law and Arbitration for resolution of international business disputes through its application to a concrete problem of a client and to train law leaders of tomorrow in methods of alternative dispute resolution.

This moot specifically focuses on transactions that are related to the sale or purchase of goods under the United Nations Convention on Contracts for the International Sale of Goods and other international commercial law involving the element of arbitration of dispute under specified Arbitration Rules.

It is organized by the Association for the Organization and Promotion of the Willem C. Vis International Commercial Arbitration Moot (Verein zur Veranstaltung und Förderung des Willem C. Vis International Commercial Arbitration Moot) and is held in Vienna.  A sister moot competition of this moot is the Vis moot (East) which is a different moot competition based on the same problem and is held in Hong Kong. 

There is no National Rounds for this moot, however, the organizers of this moot also encourage participation in pre-moots. The list of the pre-moots is provided on its official website. Several pre moots are organized by different countries to give the teams an opportunity to practice for the moot. 

In India, this year’s pre-moot is organized by O.P. Jindal Global University, India on 29 February – 1 March 2020. Participating in this moot may open up scholarship opportunities from universities.

Time Period of the moot 

The moot problem releases by October and the Registration for this moot ends by November- December. For more information on this moot, you can visit its official web page.

International Criminal Court Competition

This moot is a replica of the proceedings of the International Criminal Court. The moot problem is specifically based on fundamental issues of substantive and procedural aspects of international criminal law. It is organized by the Grotius Centre for International Legal Studies and is held annually in May at the Hague, the Netherlands.  The final round is expected to take place in an actual ICC courtroom with ICC judges adjudicating. The national rounds for India is organized by the National Law University of Delhi. 

Time Period of the Moot

The registration of the moot begins by September and ends by November. To know more about this moot you can visit its official web page.

Henry Dunant Memorial Moot Court Competition

This moot aims to promote awareness and understanding of International Humanitarian Law among the law students and the law faculties in India. It was started in the year 2001, by the Indian Society of International Law. In 2005, this moot was expanded by organizing a regional competition in South Asia. Nowadays, this moot is organized by the Indian Society of International Law in collaboration with the International Committee of the Red Cross (ICRC). The Competition is held at ISIL, Delhi in the month of October- November.

Time Period of the moot.

The Moot Problem of this moot releases and the registration starts in the month of June-July. Keep yourself updated about the moot on its official website.  

Foreign Direct Investment International Arbitration Moot

The Foreign Direct Investment Arbitration Moot is organized by the Centre for International Legal Studies. This moot focuses on international investment, the proliferation of international investment treaties, domestic legislation, and international investment contracts.

The dispute involves arbitration between host states and foreign investors and refers to internationalized procedures (e.g. ICSID) for resolving related disputes. The regional rounds of South Asia are held in New Delhi. The Regional Rounds of this moot involves writing a skeleton brief on the case provided, unlike other moots that require writing a memorial. The writing of the memorandum phase in this moot is for the International Rounds. Teams participating in this moot can also take part in several pre-moots.

The Time Period of the moot.

The moot problem releases in the month of February and the registration starts from January. To know more about this moot you can visit its official web page. 

Price Media Law Moot Court Competition

The aim of this moot is to foster and cultivate the freedom of expression issues and the role of the media and information technologies in societies around the world. It is hosted by Bonavero Institute of Human Rights in the Faculty of Law at the University of Oxford. Last year, the South Asian Rounds of the Competition was hosted by the Centre for Communication Governance at the National Law University, Delhi.

The regional rounds involve qualification on the basis of Memorial before the oral hearings. This moot claims for being more than just a moot as the organizers also host and conducts workshop on current topics concerning international media law.

The Time Period of the moot.

The moot problem releases by the month of May and the registration of the moot ends by the month of July. To know more about this moot you can visit its official web page.                              

Nelson Mandela World Human Rights Moot Court Competition

The Nelson Mandela World Human Rights Moot Court Competition is the world moot on human rights. It is co-organized by the Centre for Human Rights, University of Pretoria, the Academy on Human Rights, Washington College of Law, American University and the United Nations Human Rights Council Branch (HRCB) at the Office of the High Commissioner for Human Rights. It is held in Palais des Nations, in Geneva, Switzerland.

The case of the Competition involves issues on current human rights- ranging from human rights and artificial intelligence, over terrorism and mercenaries, right to not discriminate against on grounds of sexual orientation and gender identity. The winners of this Competition are offered to participate in a fully-funded three-week summer program at the University of Lucerne.

The participants of this moot shall submit heads of arguments on the case provided that would be assessed by the experts. Based on the assessment, Top 50  teams would be selected to participate in the oral hearings of the competition.

Time period of the moot

The moot problem releases in the month of February and the registration of the moot ends by the month of April. To know more about this moot you can visit its official web page.

Manfred Lachs Space Law Moot Court Competition

This moot is based on International Space Law. It is organized by the International Institute of Space Law (IISL). The moot offers a unique experience on issues related to international space law. The World Finals competition takes place within the framework of the IISL’s annual Colloquium, which is a contained event in the International Astronautical Congress held on a different continent each year.

The Asia-Pacific Regional Rounds of the Competition, this year shall be hosted by the Beijing Institute of Technology, China. Teams would be selected to compete in the oral Regional Rounds after the evaluation of their Written Submission.

Time Period of the moot.

The moot problem releases by the month of August and the registration ends by the month of January. To know more about this moot you can visit on its official website.

Leiden-Sarin Air Law Moot Court Competition

Teams interested in International Air Law should apply for this moot. This moot is organized by the International Institute of Air and Space Law of Leiden University and the co-founder of the competition, the Sarin Memorial Legal Aid Foundation from India.

For this year, the organizers have collaborated with East China University of Political Science and Law (ECUPL), the Shanghai International Arbitration Center (SHIAC) and China Eastern. This year the moot will be held in Shanghai, China. The Indian Rounds of the competition will be held at the Army Institute of  Law, Mohali on 1st February 2020.

The Time Period of the Moot 

The moot problem releases in the month of  September and the registration process of the moot ends by October. To know more on the Moot you can visit its official web page. 

Challenges of International Moot Court Competition

While you prepare for your Competition, you may face several challenges. Problems such as the various things that need to be managed for the Competition and other related things required in this type of Competition are explained below. Handling such a competition is quite a balanced art. You will be required to do a lot of work right from administrative work (administration of the team) to research work for the competition. 

Management during the Competition

In Moot Court Competition, the team will require to draft memorials and prepare for oral arguments. There are many sites that you may check on the internet on how to prepare for the Competition. You can communicate or may if so, with the past participants for their insight on the competition and the amount of work that the competition requires. It may clear your idea and help the team in planning for the competition.

While in the process of preparing for these, several things might come your way. Management of the competition with your team, your mentor or even with yourself is an important task. 

With your Team

Generally teams comprised of three members or in some cases even more. As each individual different from the others, your working styles and techniques will vary. However, your goal is to draft one memorial from both sides as you will present your arguments as a team in the oral hearing. Therefore, realizing that only by working together, you will achieve the goal.

Communication with your team members clearly and efficiently on matters related to the process of the competition is important. Questions on how you will work towards your goal, Who will do which work? etc. needs to be discussed among the team members. Disputes are bound to arise while you work together. Settling the dispute or finding solutions to your problems amicably and logically is the only way to work forward.

With your Mentor

In International Moot Court Competitions, generally, a team is assigned with a mentor. The mentor may be anyone appointed by the College Administration. He/She may guide you in drafting memorials or in your preparation for oral hearings. Team members should maintain a cordial relationship as he/she will guide you throughout your work in the Competition.  Mentors are restricted from drafting the memorial or in any case be directly involved in drafting the memorial. His/ Her role is to help and direct the team.

He/She is also the link between the team and the College Administration. The Team, therefore, should have efficient communication about the execution of their mooting work with the mentor, so that he/she can guide them in the best possible way. 

With Yourself

Managing yourself and your own activities such as your course curriculum with the Moot Court Competition is another task. Sometimes, preparing for the Competition might take your whole day or week. The task is that you cannot leave behind your study and attach yourself only with the Competition, therefore you will have to dedicate your day both for your studies and Competition.

Another, Important thing for a law student is internships. Maintaining every aspect of your personal and professional life would be a real task to maintain. Therefore, to function, schedule your own task accordingly with the Competition.

With your exams

What will you do when the date of your exam and the day of the Competition collides? 

Prevention is better than cure, therefore, it is most advisable that you don’t take up moot competition that is likely to clash with your exam dates or else you will have to choose between the two. It’s a tough decision because exams are important so that you do not leave behind in the course of your study.

And since you have worked hard on the competition, you might not want to leave it as well. While, in this situation, the team needs to be careful and analyze the situation at hand and decide on a consensus among the Team Members and the College Administration. 

My team had faced such situations last year, where we got selected to participate in a competition to be held in Amsterdam. Our exam dates clashed with the day of the Competition. While the Competition was from 9-10th of May 2019, our semester exams started on the 11th of May, 2019. We decided to participate in the competition with the permission of the College Administration and not attend the first exam.

We resumed ourselves to attend the exam from the next one. From my experience, I can say that those were really hectic days. 

In such situations, it is important to weigh both your exams and the moot and decide in the most logical way from where you will benefit your cause. ‘

Other Important Things for participating in the Competition

Participating in the Moot Court Competition is a unique experience where you can learn several skills right from legal research, memorial drafting, team management, time management, and several others. Your knowledge on the subject matter involved would broaden, you will able to identify contemporary issues as moot problems are generally based on new rising issues. 

Fund Raising

Raising Funds may be tough, but it is one of the things you may learn in your International Moot Court Competition because it requires a large sum of money. Money for Registration, Travel, and Accommodation. Organizers generally provide accommodation for the duration of the moot competition. Through this process, you will learn about fundraising and project management. 

Teams may have to raise funds on their registration or travel fees especially flight tickets. Each specific Moot Competition has different funding rules. Any team should be clear about this issue before their decision to participate in the competition. Otherwise, it may be a huge obstacle in your way. 

To deal with this issue, your first step should be to look up the rules of the Fundraise in that particular competition. In some cases, the organizers may fund or at least help you find a way to fund yourself while some organizers may not. 

The second step of the fundraising issue would be to seek out help from the institution itself. Talk to your college administration and request them to fund you. They may help you with the issue. In circumstances when both steps do not meet your goal of fundraising, other steps that you can take would be to seek out help from organizations or corporations that might help you.

For example, if your moot is based on International Humanitarian Law, the team may seek out fund help from the International Committee of the Red Cross; Arbitralwomen provide support to teams who participate in dispute resolution competition. To get support from any organizations or corporations your application file needs to be strong that it gets accepted from them.  If your application is good enough, you may be lucky to find support from the organizations or corporations. The team may also reach out to people who may support them through crowdfunding. You may create a post on crowdfunding websites such as Milaap or ImpactGuru or Ketto etc. 

Passport, Visa, Travel Insurance & Accommodation

Another most important thing for the travel is having a passport and visa.

Getting your passport in your hand may sometimes take a long time, therefore you will need to apply for a passport at least 6 months before your Competition. You can apply for a passport in the Passport Seva Website. Take note that it is really a rigid process and it may be hard to get a passport faster. 

Last year,  I went through a hectic process to get my passport. I did not had a passport and I applied for just 6 months before my Competition (My team was selected to participate in the International Migration and Refugee Law Moot held at Amsterdam). I had to go to the Ghaziabad Passport Seva Kendra at least 3 times and at two Police Stations for Police Verification (You generally need to get it verified by one Police Station but in my case, since I am a student from a different State and applied passport on my Present Address, therefore, I had two verifications, one from Home and the other from the Present Address). This can take time and therefore apply for it as soon as possible if you are participating in an International Moot Court Competition.

Visa is another documentation that you need for your travel. It may also take time. Before applying for visa, check about the visa policies of the country you are visiting for your competition as you may need to apply for a visa beforehand in most countries while, some may have the policy of visa-in-arrival. Giving a visa is a decision of the embassy or consulate, you have no control over that decision.

Therefore, make sure that you make no mistakes while applying for it. Get all your documents needed for the visa application, for example, a letter from the organization, details about your accommodation, flight tickets, etc. Apply for it as early as possible.

Travel Insurance is necessary for the time period of your stay in another country. You will also need to submit travel insurance for your visa application. Some websites that you may visit for your international travel insurance are- i). Bajaj Allianz Travel Insurance, ii) Apollo Munich Travel Insurance, iii) ICICI Lombard Travel Insurance, etc. 

Accommodation for the number of days you stay is another necessary thing. While organizers may accommodate you for the days of the competition. In case they do not or in case you extend your stay to explore the places around, you need to book your stay early. Who knows it may get high on your budget if you don’t?

Conclusion 

When your Competition is over, you can ponder over questions on How was your experience? What did you learn? How will you go ahead? etc. Regardless of whether you win or lose, the competition, Mooting experience will leave you with a vast source of knowledge on the subject you mooted and several skills such as advocacy skills, public speaking skills, etc. that you gathered while participating in the Competition. Competing in a Moot Court Competition is both a personal and professional experience.

You will gain new experience meeting new people with diverse backgrounds and cultures. Mooting is also a platform where you can meet the experts of the field you are interested in, as “Academicians”, “Lawyers” and “Judges” are the ones who are called to judge in the Competition. Several International Moot Court Competition also has scholarship policies and programmes for higher studies. In such a manner, your experience can create opportunities for you. 

So grab these opportunities while it lasts. 

All the Best!!

References

1.http://docs.manupatra.in/newsline/articles/Upload/ACD19621-8BDB-48FF-8DF6-80B53499A119.pdf

2.https://www.lawctopus.com/jessup-international-moot-court-competition-2019/

3.https://www.ilsa.org/about-jessup

4.https://vismoot.pace.edu/site/about-the-moot

* The author has participated in International Migration and Refugee Law Moot Court Competition 2019 and will participate in Jean Pictet Competition 2020. She has also participated in National Rounds of Jessups Moot Court Competition 2018 and FDI Moot 2017 and has written this article on the basis of her Mooting experience.

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

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This article is written by Muskaan Garg, a first-year student currently pursuing BBA.LLB (Hons) from Symbiosis Law School, Pune. This article explains ‘mischief’ as stated in the IPC. It includes all the sections covered by the topic with an adequate explanation for each of them.  

Introduction 

Mischief is defined in Section 425 of the Indian Penal Code. It states that whoever, with an intention to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property or in the situation with the intent to destroy or diminish its value or utility, or affects it injuriously, commits mischief. In a layman’s understanding mischief is obstructing a person from the enjoyment of their property by causing destruction of the property in one way or the other. It is an act that is done with the intention of causing wrongful loss or damage to the public or any person. It is synonymous with terms like ‘criminal mischief’, ‘malicious mischief’ and ‘vandalism’.

Illustrations

For a simple understanding, some examples of mischief that can be seen are:

1. ‘A’ destroys a car jointly owned by ‘A’ and ‘B’, intending wrongful loss to ‘B’.
2. ‘A’, a student takes a copy of the question paper before the exam in order to diminish its utility.
3. ‘A’ damages important documents belonging to ‘B’, intending wrongful loss to ‘B’.
4. ‘A’ causes cattle to enter into the property of ‘B’ so as to cause damage to his crops.
5. ‘A’ deliberately throws a ball at the neighbor’s window.

Scope 

Mischief covers all the acts which are done with the intention of causing damage to the property. Any act intending to cause wrongful loss to any person by diminishing the value of something owned by the person amounts to mischief. Acts done with the intention of causing wrongful gains to oneself are also constituted as mischief. An act shall be made punishable of mischief only when the acts causing damage are done willfully and with the knowledge of the consequences. In the case of Ved Prakash vs Chaman Singh And Ors. , it was held that an act was not to be considered mischief when it was caused negligently or accidentally. 

Essential Ingredients

The elements essential for an act to be considered as mischief are: 

• Intention or Knowledge to Cause Wrongful Loss or Damage (mens rea)

Mens rea is the most essential element of any act constituting mischief. The accused should have an intention or knowledge of causing damage to any property or wrongful loss to any person. The intention of causing damage or wrongful loss alone is enough for it to be called mischief. The act may or may not be directed straight towards the owner of the property.

An example of a communal disturbance, where people have the intention of destroying property but are least concerned about the ownership of the property. This falls into the criteria of mischief.

In the case of Krishna Gopal Singh And Ors. vs the State Of U.P., it was held that the offense of mischief would not be committed if the accused has not committed an act with the intent to cause wrongful loss or damage to any person or the public at large. It also implies that acts done under any pressure, without the free consent of the accused, do not come under the ambit of mischief.

• Wrongful Loss or Damage

The essential mental element while committing mischief should be directed towards causing ‘destruction to the property’, ‘damage’ or ‘wrongful loss’ to the public or any individual which will constitute the actus reus for the offense of mischief. The intention of the accuser can be that of causing wrongful loss or damage to any person. For example, tearing off some important documents relating to property or finances.

• Causing Destruction of Any Property or Any Change in It

It is important that damage is caused by one way or the other and the damage should be a direct consequence of the alleged act. Mischief can also be caused by causing destruction or changes in any property. For example, changing the words of a speech or intentionally destroying something owned by somebody. 

• Destroys or Diminishes Value or Utility, etc.

Diminishing the value of something like, leaking out an exam paper or deliberately misplacing important files and folders in time of need constitutes mischief. The utility of the object shall be conceived from the perception of the owner and not the accused. In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors, the defendant removed the engines of the aircraft hence diminishing its utility and rendering it useless. It was held that the damage caused satisfied all elements of mischief and thus the offense of mischief was constituted.

Aggravated Forms of Mischief 

We would now look upon the various forms and criteria of mischief stated in the IPC, which are as follows: 

• Based on The Value of Damage

When mischief is committed and the damage caused can be quantified in terms then the punishment is based upon the magnitude of damage. Damage caused to any property amounting to fifty rupees and upwards or ten rupees and upwards in cases of damage to animals or agriculture is entitled with the punishment of imprisonment, fine or both. 

• Based on the nature of the property damage

Section 428  to Section 434 deals with the punishment of aggravated forms of mischief based upon the nature of the property damaged. These sections state the difference in the punishment with the change in the magnitude of damage caused. General punishment is imprisonment or fine. In cases with a higher magnitude of damage, both can also be awarded. The term of imprisonment and the amount of fine is not constant and keeps varying according to the degree of mischief, damage caused and its effects.

• Mischief by killing or maiming animal of the value of ten rupees or more

Section 428 states the punishment for committing mischief of maiming or killing any animal of the value of ten rupees or above. Maiming refers to permanently injuring the animal and rendering it useless. The section states imprisonment for a term which may be extended to two years, a fine as deemed appropriate or both. The intention of the law here is to prevent cruelty on animals.

• Mischief by Killing or Maiming Cattle, etc.

Section 429 deals with the punishment for the same nature of the crime but for killing or maiming of ‘cattle’ which refers to an animal used for commercial purposes. The IPC tries to analyze the intent and motive behind any crime and thus it is assumed in this section that the accuser had the intention of maiming or killing the cattle with a motive to cause wrongful loss to the owner. Hence, it states imprisonment for a term which may be extended for five years, a fine or both for causing mischief to the cattle of the value of rupees fifty and upwards.

• Mischief by Injuring Works of Irrigation

Section 430 deals with the punishment for causing damage to the works of irrigation and rendering it useless or wrongfully diverting it in order to cause mischief. This section aims to prevent any sort of disturbance in the supply of water used for commercial purposes such as agriculture, manufacturing or essential needs such as drinking and storage. The punishment stated is imprisonment for a term which may extend to five years, a fine or both. It takes into account the intention of the accuser to cause wrongful loss to the person by committing the mischief. 

• Mischief by Injuring Public Road, Bridge, River or Channel

Section 431 states the punishment for damaging any property used by the public at large for commutation. Causing damage to any public road, bridge, river or channel and rendering it useless or any less safe for traveling or conveying property attracts the application of this section. It assumes the intention of the accuser to cause wrongful loss to the public at large by destroying or diminishing the value of the property, for which, it states imprisonment for a term which may extend to five years, a fine or both. 

• Mischief by Obstructing Public Drainage

Section 432 deals with the punishment for causing inundation or obstruction to public drainage which is already damaged. It caters to the idea of causing destruction of the property and affecting the public at large for the sole purpose of mischief. Punishment stated remains the same as that of causing damage to public property.

• Mischief by Destroyingof Lighthouse or Seamark

Section 433 deals with the punishment for causing destruction or disturbance to any lighthouse or sea mark placed as a guide for navigators. It takes into account the intention of misguiding the navigators as a part of mischief by either destroying or moving any sea mark in a way that renders it useless or diminishes its use. The punishment in this section is extended to imprisonment for a term with extension to seven years, fine or both. The increase of the punishment is due to the possibility of huge commercial or personal loss caused due to the mischief. 

• Mischief by Destroying of Landmark

Section 434 also deals in a similar category as above, the only difference being the damage of landmarks instead of sea marks. The loss bared in this case would be less as compared to that of damaging sea marks. Hence the punishment in this section is reduced to imprisonment for a term which may extend to one year only, a fine or both. The landmark destroyed or diminished should be important and should have been fixed by the authority of a public servant. 

Aggravated Forms of Mischief Based on the Method Adopted to Cause Damage: offenses of Arson

Section 435  to Section 438 deals with aggravated forms of mischief based upon the method adopted to cause damage. These sections are collectively termed as ‘offenses of arson’, defined as the willful and malicious burning or charring of property. They deal with the implications of destroying the property by fire.

Section 435 states the punishment for damaging the property amounting to hundred rupees and above by fire or explosive substances. In the case of agricultural produce, the damage caused by amounting to ten rupees and above is punishable. The punishment is stated as imprisonment for a term which may extend to seven years and a fine.

Scope of Section 436

This section deals with the punishment for committing mischief by destroying any human dwelling by fire or explosive substance. It includes properties that are ordinarily used as human dwellings like, any house, place of worship or place for the custody of property, etc. It may not necessarily be a completed well-furnished structure. It can be partially constructed and could be of any material. The establishment of this section requires clear evidence with regard to the identities of whoever actually set ablaze the property. The accused under this section may be punished with imprisonment for life or for a term which may extend to ten years and a fine.

Mischief to Deck Vessel by Fire or Explosive Substance

Section 437 states that destroying or rendering unsafe a decked vessel of burden twenty tons and above will attract a punishment of imprisonment for a term with extension to ten years and a fine. 

Section 438 also deals with the same category as of the above section, the only difference being that the decked vessel is damaged by fire or any explosive substance in which case the punishment can also be aggravated to imprisonment for life. 

Aggravated Forms of Mischief Based on Other Criminal Motives Influencing the Act

• Intentionally Running Vessel Aground or Ashore

Section 439 deals with punishment for intentionally running the vessel aground or ashore with intent to commit theft of any property or dishonestly misappropriated such property. It provides imprisonment for a term which may extend to ten years and fine.

• Mischief Committed after Having Made Preparation for Causing Death or Hurt

Section 440 deals with punishment for committing mischief after having made preparations for causing death, hurt or wrongful restraint. It states imprisonment for a term which may extend to five years and a fine.

Proposals to reform

Mischief, in the IPC, takes up 15 sections in all but still doesn’t include all possibilities of the crime itself. It mentions the definition which is then followed by some scenarios in which ‘mischief’ is punished as a crime. These few scenarios, mentioned in the IPC, do not suffice the wide possibilities of acts that can be charged with mischief, due to which major cases involving any acts of mischief, which are nowhere mentioned in the IPC, depend upon the discretion of the courts for establishment and punishment of the crime. Thus, it can be inferred that ‘mischief’ as a crime does not have a very solid hold of the procedural law and needs to be detailed further. Hence, a good reform under this section would be to elaborate further upon the acts which could in any possibility constitute mischief. 

Conclusion

Crime is an age-old phenomenon, a deep-rooted evil, born and developed along with the development of man, which gradually became a universal malady afflicting each and every society. There are various reformative steps that can be taken to curb different crimes which are increasing rampantly. The only way to control the crimes and to diminish its allied bad effects on society is by imposing proper punishment on the responsible persons and implementing them without any delay.

The purpose of the IPC is to express a formal social condemnation of forbidden conduct supported by sanction calculated to prevent it. It tries to assess the intent and motive of the act done. With the progressive development of our society, there are various kinds of problems and crimes which need to be dealt with. Thus we require modernization of our law system with correct interpretation and stricter implementation.

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.

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This article is written by Mehar Verma, a 3rd-year law student from Jindal Global Law School. In this article, the author talks about the meaning and applicability of the software license agreement.

Introduction

Software license agreements are entered into when an owner or a developer of software wants to provide his product to the market without selling it. The agreement lays down the terms and conditions of the usage of the software and protects the rights of both the owner and the user.

The agreement protects the copyrighted software from fraudulent activities and ensures that the time and money of the developers is not wasted. If A Ltd. wants to lease its software to B, they would enter into a software licensing agreement, which would allow B to use the software for his benefit, in accordance with the terms and conditions of the agreement.

What is a software licensing agreement?

A software licensing agreement is a legal contract between the owner of the software and its purchaser. The main objective of the software licensing agreement is to protect the interest of the company selling the software as well as the purchaser. The agreement acts as a full package to the purchaser, containing details like from where, how and the number of times it can be installed, the price of the software, restrictions on the use of the software. Additionally, the agreement also mentions the purchaser’s ability to copy, modify, or redistribute it.

For example, Company A ltd is a tech company dealing with voice modulation software and B a budding musician is interested in purchasing their software. Now upon payment of the required fees, A ltd and B enter into a licensing agreement and according to their agreement, B is granted a limited, nonexclusive and nontransferable licence, to use the voice modulation software. The agreement licence may also impose certain restrictions on B, such as B may not be allowed to permit other individuals to use the software, or he may not be allowed to modify it, copy it or reproduce it.

Why do you need a software licensing agreement?

As a software developer, you must have spent a lot of time, money and effort in the building of your software. To ensure that all the efforts are worthwhile and to bring monetary gains, your software must be protected. The agreement protects the copyrighted software from various frauds and infringements. Below are the five main reasons why every software developer should enter into a software licensing agreement before selling your software.

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Prevents abuse of the software

If there is no licensing agreement between the seller and the purchaser, the seller can easily sell the software or duplicated without the permission of the owner. This makes your product easily available in the market, and you as a developer do not get the profits or the recognition. Lack of a licensing agreement leaves you nowhere as no remedy can be sought for misappropriation of your product. Thus a licensing agreement prevents the abuse of the business and the software.

Allows licensing of the software

To make your product available in the market, you can license it through the agreement and not necessarily sell it. Licensing of the software is better as it allows you to retain all rights and impose restrictions on the usage of the software. Further, it gives you the liberty to license the software to more than one customer and make money in the long run.

For example, A Ltd company’s voice modulation software is unique and is high on demand. If A sells his product to one customer, he loses all his rights and would not be able to make an income from his invention. However, instead of selling, if they license their software, they will not only be able to impose restrictions but can they can license it to more customers, thus making more money.

Allows to disclaim warranties

Every customer would have different expectations from the software you are providing and sometimes these expectations are beyond imagination. To prevent such situations the company can include a disclaimer of warranties clause.

For instance, B a customer of A Ltd purchased their voice modulation software and due to some software bugs, he lost his data. Subsequently, he filed a suit against A ltd, claiming remedies for the damages occurred. Now A Ltd. could argue that as per their agreement there was no guarantee that the software will be not bug-free and as B agreed to accept the software as it is, there is no liability on A ltd.

Limits your liability

Not limiting the liabilities, makes a company subject to several lawsuits. These lawsuits damage the reputation of the company, consumes time and at the same time require financial assistance. Thus it is important to have a licensing agreement that limits your liability and prevents the customers from initiating lawsuits. However, the liability clause should be reasonable and fair to both parties.

Allows termination of usage

A license agreement of software, allows the owners to terminate or suspend the licensing agreement at any point in time, if the terms of the agreement are not complied with, thus retaining the complete control over the software at all the times. For instance, while purchasing the software, from A Ltd, B had signed an agreement that he would install the software only on the approved devices or his contract would be terminated. B breached the contract, giving A Ltd. the liberty to terminate the contract.

Types of software licenses in India

The software licenses in India can be broadly classified as proprietary licences, free software licenses, and open source licenses.

Proprietary software licence

The proprietary software is computer software that is licensed by the owner of the copyright under very specific terms. In general, it is the most restrictive type of licensing agreement wherein the original code was written by the programmers are not available to the users.

Thus they can use the software but they cannot modify it or redistribute it. This software is also known as the closed source software and the operating system of windows and Mac is an example of proprietary software. To protect their intellectual property, the companies enter into proprietary software licences.

Free software license

Free software licenses have lesser restrictions than the proprietary software licences. The software can be freely used by the users to modify the software, or redistribute it, which would otherwise be prohibited by copyright law. Thus free software license is entered into by the owners of the software when they wish to provide the recipients the privilege of modifying or redistributing the copyrighted work.

Open-source software license

The open-source software license allows the user to make modifications to the software and make the source code available or transparent. As the license allows other developers to see the original code, it is usually developed as a public collaboration and made freely available.

The license does not restrict any party from selling or redistribution of the software as long as the distribution is made under the same terms as the license of the original software. The General Public License or GNU is an example of an open-source software license that was developed as a result of collaboration and research of open developer communities.

What should a software license agreement cover?

A software license agreement can be divided into four sections and each section covers an important aspect of the legal contract. The four sections can be broadly classified as follows:

1. General information: The first section in the agreement lays down the type of agreement, when the contract comes into effect, duration of the agreement and other general information that is necessary to set the tone of the entire agreement.
2. Parties involved: This section provides the details of the parties entering into the contract. The name and address of the company selling the software as well as the full name and address of the purchaser are provided in the agreement. Further, the agreement specifies whether the purchaser is a corporation or an individual.
3. Terms of this agreement: This section is considered the most important part of an agreement as it lays down the terms and conditions of the agreement. It would include the fee of the license, information about maintenance, services and refund policies if any. It would also include whether the code of the software would be provided, or whether the user is allowed to install the software in more than one computer, etc.
4. Final details: This section is personally modified and would contain all the details that were not covered previously. This section also contains the signature of both the parties and the date of signing.

What are the important clauses of the software license agreement in India?

The four sections mentioned above only provide an overview. But to protect oneself and to ensure that a well proof agreement is entered into, the legal contract must contain the following clauses.

Non-exclusivity

If the offeree entered into an exclusive agreement and there is no clause of non-exclusivity, then it imposes a hindrance for further licensing of the software.

For instance, A ltd licenses his voice modulation software to B and their agreement has a non-exclusivity clause. C and D are also interested in A Ltd’s software, as A Ltd entered into a non-exclusive contract they can further license their software to C and D as well and continue to make more profits.

Non-transferability

The non-transferability clause in an agreement does not give the licensee the right to transfer the software to a new client or customer. This makes sure that your customers are not reduced and further that you do not have an enforceable agreement with a third party.

For example, when A Ltd licensed its software to B, the agreement did not contain a non-transferability clause. Now, C, an interested party instead of leasing the software from A Ltd, got it from B. This would result in a loss to A Ltd which would increase exponentially with every transfer.

Rights 

By including a clause that protects your rights even after the execution of the agreement is important to protect the product. These rights include copyrights, intellectual property rights, and distribution rights. The rights would ensure that no component of your product is stolen by any user or the market.

Modification

In case you do not want any kind of modifications to be made to your software or product, your agreement should provide so. The clause should define the meaning of modifications and the restrictions imposed on such modifications. This is the best way to ensure that your software retains its original content.

Breach of contract

A breach of contract clause should be included in the agreement. This clause specifies that if any condition or terms of the agreement are not complied with, the licensee has the liberty to revoke the contract. For example, A Ltd while leasing its software had provided with a no modification clause and B modified the software according to his needs. In such a situation, A Ltd has the liberty to revoke the contract without attracting any liabilities.

Limitation of liability

This clause mentions that the licensee has accepted the software in its current position and that there is no warranty for the usage of the software. As discussed earlier, this clause provides a shield to the company leasing the software. Without this clause, the company would be open to unlimited lawsuits.

Governing law

This clause provides the law or court that would have jurisdiction in case any disputes arise.

For instance, A Ltd and B enter into a software license agreement. Later, they had a dispute and B filed a petition in one of the District Court of Delhi. A Ltd contended that the suit is not valid as the governing law clause of their agreement provides that all disputes arising out of the contract would be settled through arbitration in Mumbai. Thus, in this case, all disputes will be resolved through arbitration in Mumbai and no other Courts would have jurisdiction.

Conclusion

The software license agreement is a necessary tool to protect the rights of the owner as it prevents abuse of the software, allows licensing of the software, allows to disclaim warranties limits the liabilities of the owner, and allows termination of usage. 

As per the needs of the software license, they can be broadly classified as proprietary software licences, free software license, and open-source software license. Proprietary software licenses are commonly used while distributing operating systems like Mac and windows and have restrictive terms and conditions.

Free software license has lesser restrictions as compared to proprietary software license whereas open-source software license allows the software license to be developed as a public collaboration.

Some of the important clauses that every software license should include are non-exclusivity clause, non-transferability clause, rights clause, modification clause, breach of the contract clause, limitation of liability clause and governing law clause. 

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This article has been written by Saurab Verma of 2nd year pursuing BA LLB course from Dr Ram Manohar Lohiya National Law University, Lucknow. This article will critically analyse the procedure and the rules governing the situations of the Mergers in the United Kingdom. Also, in this article, the main emphasis will be on the working of the Competition and Market Authority which is responsible during the merger situation.

Introduction

Mergers in the UK are governed by the Enterprise Act 2002 (amended by way of the Enterprise and Regulatory Reform Act, 2013). Mergers in which first-class for assessment will be issued to an investigation by way of the Competition and Markets Authority (CMA). They are the problem to evaluate if their annual UK turnover of the commercial enterprise agency which is being taken over exceeds £70 million, or the place the merger creates a 25% share in a market for objects and services in the UK or a large section of it.

Under the Enterprise Act, there is no statutory requirement to notify the applicable authorities when a merger takes place. Voluntary notification can, however, be given and is considered preferable. 

The CMA is accountable for the investigation of mergers which qualifies for review. The investigation is deemed essential in some instances due to the fact if the two or more groups merging into the equal entity serves to reduce opposition in the marketplace, the best of products or services may additionally diminish, the rate may additionally be stored excessive and technical development can also gradual down. If this has been to be the case, the hazard is a big lessening of competition. 

Though there will be a voluntary notification by the merger, the CMA will open an investigation on its personal initiative following, for instance, market intelligence or the place where there has been a complaint. Pending the planned exit of the UK from the European Union and any transitional preparations which might also be put in place, the UK is additionally problem to the EU Merger Regulation (EUMR), which applies the place the turnovers of the groups concerned in a transaction exceed positive thresholds, generally to the exclusion of the UK’s home merger control regime (and those of all other EU Member States).

If the EUMR thresholds are met then a notification to the European Commission (the Commission) is mandatory, and the UK merger rules will now not normally apply. Conversely, if the EUMR thresholds are not met, the EU guidelines will no longer typically apply. However, the initial jurisdictional analysis, it ought to be mentioned that there are provisions underneath the EUMR which enable cross-border mergers to be transferred between the Commission and the countrywide authorities to make sure that they are reviewed in the most terrific forum.

Overview of UK Merger Control

Mergers in the UK are ruled with the aid of the Competition and Market Authority(CMA) installed under Section 25 of the Enterprise and Regulatory Reforms Act, 2014. The CMA was once formed by combining and superseding the powers of Office of Fair Trading which was once made under Enterprise Act, 2002 and Competition Commission in the United Kingdom. CMA is a non-ministerial government department governed by an impartial board that involves both executives and non-executives. 

It also contains a panel of independent contributors who are selected on their ride level in areas of business, economics, regulation or opposition policy. CMA is a regulating authority accountable for each Phase1 examination of mergers and Phase 2 investigation and closing determination. Also, the CMA selections can be appealed to the Competition Commission which was installed under Section 12 of the Enterprise Act, 2002. The CMA normally makes meantime orders stopping any potentially prejudicial action, such as integrating the merging business. This may also encompass initial enforcement orders on businesses to monitor, forestall or reverse preemptive motion during a merger investigation.

It will typically do so when it opens an investigation into a done merger. Such an order stays in place till the transaction is cleared or the required remedial motion is implemented. A completed merger can be required by the CMA to be unwound if the regulator has life-like grounds to consider the events are integrating their businesses. This is Phase 1 of the investigation by means of the CMA, and it has to be commenced interior 40 days of either notification of the merger, or when the CMA receives ample records about the merger to begin its investigation. In Phase 2, the CMA can order that the carried out transaction is terminated.

This may, for instance, be via disposal of the received companies or assets – in all likelihood at decrease than market value or otherwise unfavourable terms. The CMA can also order that the customer acquires no similarly shares in the goal enterprise without the CMA’s consent. And if an executed merger is referred to the CMA, the merged entity must attain the CMA’s consent earlier than similarly integrating the businesses. It can even prohibit the completion of the merger. Where it deems quintessential the CMA can receive undertakings from the parties to take the vital action to prevent or unwind pre-emptive action.

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Part 3 of the Enterprise Act 2002

Part 3 of the Enterprise Act, 2002 states about the rules and procedures followed by the Office of Fair Trading(OFT), related to the duties to make references in the case of anticipated mergers as well as for completed mergers. This part basically describes the principle stages for the procedure followed in both Phase 1 and Phase 2 investigations. 

Brief description of the system of merger control in the UK

UK merger control is governed by way of the Enterprise Act 2002, as amended with the aid of the Enterprise and Regulatory Reform Act 2013 (ERRA). There is an authority called Competition and Market Authority(CMA) which was established under ERRA13 as the UK’s economy-wide opposition authority accountable for making sure that competition and markets work properly for consumers. 

On 1 April 2014, the purpose of the Competition Commission (CC) and many of the basis of the Office of Fair Trading (OFT), which includes the CC’s and OFT’s merger manipulate functions, have been transferred to the CMA and these our bodies abolished. The CMA’s most important duty is to promote competition, both inside and outside the UK, for the advantage of consumers.

Guidelines, rules of procedure and other relevant publications

This instruction forms the phase of the recommendation and data published with the aid of the Competition and Markets Authority (CMA) below Section 106 of the Enterprise Act 2002, as amended (the Act). It is aimed to supply widespread data and advice to agencies and their advisers on the methods used with the aid of the CMA in running the merger control authority is specified in the Act.

It also includes the coaching on when the CMA will have jurisdiction to overview mergers underneath the Act. These documents are in particular concerned with those mergers involving corporations energetic in the United Kingdom (UK) that are governed by the provisions of the Act. However, it also temporarily addresses these mergers that fall to the European Commission (the Commission) beneath the European Union Merger Regulation (the EU Merger Regulation), and the relationship between domestic and European merger manipulate systems. It explains the roles of the CMA, the Secretary of State, and relevant sectoral regulators.

CMA publications

These are the following publications by the CMA-

1. Mergers – the CMA’s jurisdiction and procedure: CMA2
2. Merger assessment guidelines: CC2/OFT1254
3. The quick guide to UK merger assessment: CMA18
4. Water and sewerage mergers: CMA49
5. Disclosure of information in CMA work: CC7
6. Merger remedies
7. Variation and termination of undertakings and orders: CMA11
8. Mergers exceptions to the duty to refer and undertakings in lieu
9. Mergers customer survey design and presentation
10. Retail mergers commentary: CMA62
11. CMA’s mergers intelligence function: CMA56
12. Review of NHS mergers: CMA29
13. Economic analysis submissions best practice: CC2com3
14. Government in markets: OFT1113

Adoption by the Competition and Markets Authority (CMA) of OFT/Competition Commission publications

The ERRA13 made the CMA as the UK’s economy-wide competition authority responsible for making sure that competition and markets work properly for consumers. On 1 April 2014, the features of the Competition Commission (CC) and many of the features of the Office of Fair Trading (OFT), which include the CC’s and OFT’s merger manage functions, were transferred to the CMA and these bodies were abolished. The CMA’s predominant duty is to promote the competition, each inside and outdoors the UK, for the gain of consumers. 

Under the Act, the CMA has a feature to achieve and review facts relating to merger situations, and an obligation to refer for an in-depth ‘Phase 2’ investigation any applicable merger scenario the place it believes that it is or can also be the case that the merger has resulted or may additionally be expected to result in a good-sized lessening of opposition in a UK market. Following a reference for a Phase 2 investigation, the CMA conducts a more distinctive evaluation to decide whether: 

(i) there is an applicable merger situation falling inside the UK merger manipulate regime, 

(ii) that applicable merger situation has resulted or may be predicted to result, in a huge lessening of competition, and

(iii) it takes action to treatment any giant lessening of competition identified. At Phase 2, those selections are taken by an Inquiry Group of at least three people, chosen for every case from the unbiased professionals appointed with the aid of the Secretary of State to the CMA’s panel.

Delegated legislation adopted by the Secretary of State

The Secretary of State has a role in certain public hobby cases. The Secretary of State is in a position to modify certain provisions of the Act through secondary legislation, for example, these provisions referring to jurisdictional thresholds, and to make secondary regulation related to things such as the stage of merger fees. 

The SOS has the strength to take over the position of decision-maker from the CMA in relation to mergers which have a doable have an effect on the UK public activity (“public activity mergers”). The sectors to which these powers apply are constrained by using legislation, and presently cowl countrywide security, the media quarter (including newspapers, tv, and radio), and the need to maintain the steadiness of the UK monetary system. The SOS has the power to prolong these classes (for example, the financial stability criterion was once delivered throughout the world monetary disaster of autumn 2008).

The CMA’s Duty to Make References: Phase 1 Investigations

Duty to make references: completed mergers

The OFT shall make a reference to the Commission if the OFT believes that it is or may additionally be the case that an applicable merger scenario has been created; and the introduction of that state of affairs has resulted, or may be anticipated to result, in a giant lessening of competition within any market or markets in the United Kingdom for goods or services. 

The OFT might also decide no longer to make a reference under this part if it believes that the market involved is not, or the markets worried are now not of adequate significance to justify the making of a reference to the Commission; or any relevant customer advantages in relation to the introduction of the applicable merger situation concerned outweigh the full-size lessening of competition involved and any destructive outcomes of the widespread lessening of opposition involved as integrated beneath Section 22 of the Enterprise Act, 2002.

Discretion not to refer

If the Competition and Markets Authority (CMA) believes that it may additionally be the case that a relevant merger situation may additionally lead to a widespread lessening of opposition (SLC), then it is below accountability to refer the merger for in-depth (phase 2) investigation. However, in positive instances, the CMA has a discretion now not to make a reference however the fact that there is a sensible prospect that the merger will lead to an SLC in a market or markets in the United Kingdom. 

These are when the markets worried are no longer of  full-size to justify a reference in the case of predicted mergers, when the preparations concerned are insufficiently some distance advanced, or insufficiently perchance to proceed, to justify a reference; or when any applicable consumer advantages bobbing up from the merger outweigh the SLC worried and any unfavourable penalties of the SLC concerned. 

Markets of insufficient importance

“Under Sections 22(2)(a) and 33(2)(a) of the Act the CMA may also parent out now not to refer a merger for an in-depth ‘phase 2’ investigation if it believes that the market(s) to which the duty to refer applies is/are no longer of ample significance to justify a reference. This exception is designed to keep away from references being made where the expenses concerned would be disproportionate to the significance of the market(s) concerned.

The CMA considers that the market(s) concerned will typically be of ample value to justify a reference (such that the exception will now not be applied) where the annual price in the UK, in aggregate, of the market(s) worried, is extra than £15 million. By contrast, the place the annual charge in the UK of the market(s) worried is, in aggregate, plenty much less than £5 million, the CMA will often now not assume about a reference justified until a straight forward task in lieu of reference is in principle available.

Where the annual price in the UK, in aggregate, of the market(s) concerned is between £5 million and £15 million, the CMA will reflect on consideration on whether or not or no longer the expected consumer injury ensuing from the merger is materially large than the frequent public fee of a section 2 reference.

The CMA will base its evaluation of envisioned patron damage on the dimension of the market concerned; its view of the probability that an SLC will occur; its evaluation of the magnitude of any competition that would be lost; and its expectation of the duration of that SLC. 

The CMA will additionally take account of the wider implications of its selections in this area, and will be less in all likelihood to exercise its discretion, and consequently more maybe to refer, the area the merger is one of a possibly large quantity of comparable mergers that ought to be replicated across the region in question.

Customer benefits

While mergers can damage competition, they can also give an upward push to efficiencies which enhance rivalry and/or produce applicable purchaser benefits. If the efficiencies springing up from the merger enhance contention inside a market where an SLC finding would possibly probably arise, the CMA can take this into account in its evaluation of the merger’s have an effect on competition. 

For example, a merger of two of the smaller corporations in a market resulting in effectivity positive aspects might permit the merged entity to compete more efficiently with the larger firms. Rivalry-enhancing efficiencies may lead the CMA to conclude (at Phase 1) that the merger does not provide upward shove to a realistic prospect of an SLC in a specific market, or may additionally mitigate the severity of any SLC prompted by means of the merger.

Relevant patron benefits are defined with the aid of Section 30(1) of the Enterprise Act 2002 (the Act) to be advantages to relevant customers in the shape of lower prices, higher satisfactory or increased choice of items or offerings in any market in the United Kingdom, or higher innovation in relation to such items or services.

Sections 30(2) and (3) of the Act grant that advantage is only an applicable patron benefit if it has accrued or is anticipated to accrue to relevant customers inside the UK within a lifelike period from the merger and would be unlikely to accrue without the merger or a similar lessening of competition.

Relevant clients are clients at any factor in the chain of manufacturing and distribution and are consequently no longer constrained to final customers section 30(4) of the Act. It is not possible for the CMA each 

(i) to observe relevant purchaser benefits as an exception to the obligation to refer, eg in relation to certain affected markets, and 

(ii) to accept a venture in lieu in recognize different affected markets.

The CMA is exercising its discretion in identifying whether to apply an exception to the responsibility to refer the merger in question for a Phase 2 investigation. In exercising this discretion, the CMA has regard to the benefits of a Phase 2 investigation, along with the possibility of redress being got at Phase 2 that should stop an SLC while additionally taking pictures any relevant patron benefits.

Circumstances in which a reference cannot be made

Section 22(3) of the Enterprise Act, 2002 states that no references shall be made if the making of the reference is avoided with the aid of area 74(1) or 96(3) or paragraph four of Schedule 7 or if the OFT is thinking about whether to accept undertakings beneath section 73 rather of making such a reference or the applicable merger scenario worried is being, or has been, dealt with in connection with a reference made under section 33 or a notice under section 42(2) is in pressure in relation to rely or the be counted to which such a word relates has been finally decided under Chapter 2 otherwise than in circumstances in which a word is then given to the OFT under section 56(1) or the European Commission is considering a request made, in relation to the remember concerned, by the United Kingdom (whether by myself or with others) under article 22(1) of the EC Merger Regulation, is proceeding with the count in pursuance of such a request or has dealt with the be counted in pursuance of such a request.

Duty to make references: anticipated mergers

The OFT shall make a reference to the Commission if the OFT believes that it is or can also be the case that arrangements are in growth or in contemplation which, if carried into effect, will result in the creation of a relevant merger scenario and the introduction of that situation can also be predicted to result in a good-sized lessening of opposition within any market or markets in the United Kingdom for items or provider as integrated beneath Section 33(1) of The Enterprise Act, 2002.”

Relevant merger situations

A merger needs to meet all three of the following criteria to constitute a relevant merger state of affairs for the functions of the Act:

1. Two or extra businesses should give up to be distinct, or there should be preparations in growth or in contemplation which, if carried into effect, will lead to businesses ceasing to be distinct.
2. Either the price of UK turnover of the business enterprise which is being acquired exceeds £70 million or the organizations which end to be wonderful grant or accumulate items or services of any description and after the merger collectively grant or collect at least 25 per cent of all those unique items or offerings furnished in the UK or in a considerable section of it. The merger has to result in an increment to the share of furnish or consumption. In practice, therefore, the share of furnish checks can only be met the place the agencies concerned supply or gather goods or services of a similar kind (known as ‘the share of providing test’).
3. Either the merger (subject to certain exceptions) the merger has to have taken vicinity not greater than 4 months earlier than the reference is made.

Enterprises ceasing to be distinct 

Two enterprises will ‘cease to be distinct’ if they are brought under common ownership or control.

Enterprises

The time length ‘enterprise’ is defined in part 129 as the activities, or part of the activities, of a business. The commercial enterprise business enterprise in query wants not, therefore, to be a separate felony entity. The definition states that the things to do in the query need to be carried out for ‘gain or reward’. 

However, there is no requirement that the transferred things to do ought to be profitable or generate a dividend for shareholders, and the definition can also consist of transfer things to do performed on a not-for-profit basis. In making a judgment as to whether or not or now not the matters to do of a commercial enterprise or part of a business, symbolize an employer under the Act, the authorities will have regard to the substance of the association beneath consideration, as a replacement than essentially its crook form. 

A corporation can additionally encompass any huge variety of components, most generally together with the property and records wished to raise on the business, at the same time with the benefit of existing contracts and/or goodwill. In some cases, the switch of physical assets on my very own can also be ample to represent an enterprise, for occasion where the facilities or website on-line transferred allow a unique commercial enterprise activity to be continued.

Intangible property such as intellectual property rights is unlikely, on their own, to represent a business enterprise except it is plausible to pick out turnover at once related to the transferred intangible assets that will additionally switch to the buyer. 

The business acquired may additionally no longer be trading then again this does now no longer in itself forestall the company from being a corporation for the functions of the Act. 

Control

‘Control’ is not restricted to the acquisition of outright voting control however consists of conditions falling quick of outright control. Section 26 distinguishes three tiers of hobby referred to as control. Section 26(3) presents the Authorities with a discretion to treat cloth have an effect on and de facto control as equal to criminal control. The Act additionally consists of provisions to deal with situations in which an organization acquires manage through levels or the place ‘associated persons’ may act collectively to achieve control.

The turnover test

The ‘turnover test’ is relaxed the place the annual price of the UK turnover of the company being received exceeds £70 million. In most situations, the turnover test is utilized to the turnover of the received company that used to be generated through the sale of goods or offerings to clients within the UK in the commercial enterprise 12 months preceding the date of completion of the merger or, if the merger has not yet taken place, the date of the reference to the CC.

The share of supply test

Under section 23, the ‘share of providing test’ is blissful if the merger enterprises, firstly, provide or accumulate goods or offerings of a specific description; and will after the merger at the same time supply or acquire 25 per cent or more of these items or services, in the UK as an entire or in a tremendous part of it, furnished that the merger outcomes in an increment to that share. amplify in the share of furnish must result from the corporations ceasing to be distinct. In the case of an acquisition, the share of the furnish is based absolutely on the activities of the acquirer and the goal company.

In joint venture situations, the share of the furnish is calculated through reference to the things to do of the joint venture, even though it will consist of shares of the joint task parents the place they proceed to undertake the equal things to do as the joint venture. The Act expressly allows the Authorities a broad discretion in describing the applicable goods or services, requiring entirely that, in relation to that description, the parties’ share of furnish or acquisition is 25 per cent or more. 

The share of furnish is one of a type from a market share, and objects and offerings to which the share of imparting take a seem at is utilized favour now not quantity to the market described for the financial analysis. In addition, the authorities may also additionally have regard to any practical description of a set of goods or services to decide whether or not or now not the share of providing check is met—the value, cost, price, quantity, capacity, range of people employed or any other criterion might also additionally be used to determine whether or no longer the 25 per cent threshold is reached. 

Time limits and prior notice to meet the standards for an applicable merger situation, the merger must either now not yet have taken place or have taken vicinity not more than 4 months before the reference is made. However, in instances the place the OFT has not been knowledgeable without delay of cloth data about the merger, the four-month period is deemed to have commenced when fabric facts are ‘made public’, ie when they are ‘so publicized as to be usually known or without difficulty ascertainable’. 

The OFT also has the strength to ‘stop the clock’ in positive circumstances, for instance, the place it is waiting for requested statistics from the merging parties. Section 27(5) and 27(6) permit the Authorities to deal with successive occasions inside a duration of two years involving the equal parties (or in the outcome of the same arrangements or transaction) as happening simultaneously on the date of the present-day event. The Authorities have discretion on whether or not to apply this section.

CMA procedure in Phase 1

Notify Mergers to the CMA

In the United Kingdom, Merger notification is voluntary. Meaning thereby, it depends on the businesses to whether or not to notify to CMA of a merger or not, even if the merger is being qualified to be reviewed below CMA. However, there is no prohibition on the corporations finishing transactions besides clearance from the CMA, which may on the other hand supply upward jab to some risks. So if the companies choose to notify the CMA, they can do it by using filling the shape ‘ Merger Case Team Allocation Request Form’ via which CMA will choose the gorgeous case team and start the process of discussing with the merger events about what facts is required before formal notification is made.

 After this, the groups merging will notify the CMA using the ‘ Notice Merger Template’ in which the details and instruction on the statistics necessary to allow the CMA to check an expected or done merger are provided.

CMA’s market intelligence function

The fact that it is the discretion of the businesses to whether or not to notify CMA or now does not imply that CMA will no longer evaluate it. The UK merger regime contemplates the opportunity of merger assessment initiated through the CMA itself where it believes it may also have jurisdiction. Under Section 5 of the Act, the CMA is responsible for obtaining, compiling and preserving under evaluate information about things related to the carrying out of its functions under the Act.

In order to raise out these functions, the CMA proactively evaluations a range of information sources, together with countrywide and consultant change press, to achieve statistics about predicted and achieved mergers. The CMA also continues an active speak with Governmental departments and different regulatory bodies to gain Genius about merger activity. Also, there are alternative ways in which by ask the CMA to think about the merger.

Informal advice

“In planning mergers and acquisitions, it is for events and their advisers to affirm whether or not transactions might grant upward push to opposition concerns. However, in order to aid the planning and consideration through organizations and their advisers of future mergers, the MU is prepared to furnish advice on a casual foundation on opposition problems IA is reachable fully for transactions that are neither hypothetical (‘too quickly for IA’) nor in the public domain (‘too late for IA’). 

In assessing whether or not a non-public transaction is suitable for the IA process, the CMA will normally anticipate being cosy that there is a great have faith intention to proceed as evidenced through capacity of a possible viable to do so, having regard to 

(i) adequate financing; and

(ii) heads of settlement or similar for agreed transactions; or two 

(iii) proof of board-level consideration through the acquirer the place occasions required IA prior to notifying the target. 

These factors are non-exhaustive and the CMA will be open to persuasion that a precise appropriate trust idea is fantastic for IA consideration, for instance when a changing customer is honestly considering making a bid in the context of a public sale situation. – The CMA believes it can materially help business, and justify the use of its personal sources for IA, solely when its duty to refer is a real issue.

It sees no cost to the commercial enterprise or the taxpayer in accepting invitations to recommend the propositions of advisers that a transaction raises no such issue. Parties, with the exception of seasoned Bono cases, are well-placed to be counted on proper exterior advice in such cases; as the UK regime is voluntary, they are of the route beneath no duty to notify their transaction to the CMA.” 

Pre-notification discussions

“Pre-notification discussions take location when the events to a merger have decided to notify the CMA and wish to interact with it, generally on the contents of a draft notification, prior to formal submission. The use of the prenotification phase to discuss a supposed notification with the case team on a confidential groundwork is an essential section of the entire merger evaluation process. 

For agencies planning to notify a merger, the CMA consequently strongly encourages events to contact it to engage in prenotification discussions at least two weeks before the supposed date for notification.

Pre-notification contacts advantage the parties, and often the CMA, with the aid of serving, for example, to two instruct the case team where markets are complex and/or unfamiliar or two frames the transaction, along with its intent and efficiencies, in a practical context early on and clarify the statistics and evidence the CMA will:

a) required for the functions of the Merger Notice in the case at hand, so as to be able to formally start its investigation on the forty working day statutory timetable, and/or

b) will request early in the review procedure.

Notification using a merger notice

Once a merger is announced, and thereby turns into public knowledge, the companies involved may formally notify their merger to the CMA. Where the parties have not signed a share buy settlement or equivalent, the CMA will normally expect to be at ease that there is a suitable trust intention to proceed, as evidenced by, for example, ample financing, heads of agreements or similar, or proof of board-level consideration. 

In the case of a public bid, the CMA will count on at least a public announcement of an association intends to make an offer or the announcement of a possible offer in order to open a Phase 1 investigation.

As referred to above, events are inspired in all cases to have interaction in fantastic pre-notification discussions with the MU prior to making their remaining notification. Parties need to apprehend that must they pick (even if for probably comprehensible commercial reasons) to restrict pre-notification discussions, they will minimize the scope to agree with the CMA a more focused method to the statistics required in the case at hand for the purposes of a whole Merger Notice.

Where parties submit a notification, the MU will, on receiving it, think about whether it meets the requirements of the Act. Once the MU is blissful that it does, it will verify this to the parties. The forty working day period within which the CMA must determine whether the test for reference is met begins on the working day after that confirmation is given.

Own-initiative investigations

Even where the parties have no longer voluntary notified a merger by way of an entire Merger Notice, the CMA may also decide that the data it has bearing on to the parties and the merger and/or any facts it has obtained from the parties in response to its inquiry letter is sufficient for it to commence its investigation and start the forty working days statutory timetable for its Phase 1 investigation. 

Where the CMA sends an inquiry letter to the events on its very own initiative, the records it requests, probably by using way of extra information requests, will eventually be comparable to that which the parties would have furnished had they chosen to notify the transaction by means of way of Merger Notice.

For this reason, if the CMA receives from the parties in such conditions response to its inquiry letter containing ample records for the CMA to commence its investigation, the CMA will affirm this to the parties, and the forty working days statutory timetable commences on the working day after such affirmation is given.

Fast-track reference cases

For a case to be speedy tracked to reference, the CMA has to have evidence in its possession at an early stage in an investigation that it believes objectively justifies a trust that the take a look at for reference is met and the notifying events ought to have requested and given consent for use of the procedure. 

Candidate cases for speedy tune reference for a Phase 2 investigation are consequently probably to be instances where, to the extent that the CMA does find a concern with the merger, that problem would impact on the entire or substantially all of the transaction, and not simply one part. 

It is open to merger events to inform the CMA that they reflect on consideration on their case meets the standards for quick tune reference for a Phase 2 investigation during pre-notification, at the time of notification or at any factor all through the route of the CMA’s investigation. In addition to thinking about whether or not the case meets those criteria, the CMA will in identifying whether to utilize the quick tune manner have regard to its administrative assets and the efficient habits of the case.

Undertakings in lieu of a reference

If the CMA finds that its obligation to refer the merger for a Phase 2 investigation applies, the parties may have a possibility to keep away from that result via supplying binding undertakings in lieu of reference (UILs) for the CMA (or the Secretary of State in public pastime cases)to accept. UILs may additionally be established by the CMA only the place it has concluded that the merger must be referred for a Phase 2 investigation. 

Any UILs universal with the aid of the CMA should be for the reason of remedying, mitigating or preventing the enormous lessening of competition involved or any unfavourable outcomes identified. In order to take delivery of UILs beneath area 73 of the Act, the CMA must be assured that the opposition issues recognized will be resolved with the aid of ability of the UILs provided except the need for similarly investigation.

UILs are consequently fabulous solely where the opposition concerns raised by the merger and the remedies proposed to tackle them are clear cut, and these treatments are fine and capable of ready implementation. Experience has indicated that UILs are well-known most often in cases where, first, the troublesome overlaps symbolize a small percentage of the transaction and, second, these overlaps contain asset applications – such as stand-alone agencies in separate local markets – that are severable from the remainder of the transaction besides materially affecting the usual commercial purpose for the merger. 

These instances have nearly invariably led to ‘structural’ UILs to divest applicable property to an appropriate third-celebration purchaser authorized via the CMA. The CMA is tremendously unlikely to receive behavioural redress at phase 1. The CMA will therefore commonly anticipate UILs supplied by way of parties to be structural, as a substitute than behavioural, in nature.

Fees

All mergers that qualify for reference for a section 2 investigation are difficulty to a fee, irrespective of whether or not a reference for a section 2 investigation is made. The price is gathered by using the Competition and Markets Authority (CMA) on behalf of HM Treasury. For mergers which contain the acquisition of a controlling interest, the fee becomes payable on the announcement of the CMA’s selection (or the Secretary of State’s selection in public pastime cases) whether or not or not to refer the merger for a segment 2 investigation.

The CMA’s exercise is to ship and the bill to the merger events after the decision on reference has been announced. Payment has to be made within 30 days of the date of the invoice. A merger charge is not payable if the merger involves the acquisition of a hobby that is less than a controlling hobby and the CMA investigated the acquisition on its own initiative. This exception does not follow if the merger parties notified such an acquisition by using submitting a merger notice.”

Determination of Reference by the CMA: Phase 2 Investigations

Subject to complying with the Rules of manner for CMA Groups, and to any coaching issued through the CMA Board, Phase 2 Inquiry Groups are free to determine how they habit a Phase 2 inquiry. In exercise Phase 2 inquiries generally observe a fairly fashionable pattern, which is described in the following chapters, however, Inquiry Groups have the flexibility to range the way they function in order to lift out their felony duties successfully and inside the strict statutory deadlines. The responsibilities and powers of Inquiry Groups conducting  Phase 2 inquiry are set out in the Act.

The Phase 2 Inquiry Group and case team

All the CMA’s features in Phase 2 merger inquiries are carried out with the aid of way of Inquiry Groups. An Inquiry Group is appointed for each inquiry, supported through a case group of CMA staff. Under the ERRA13, the Chair of the CMA is responsible for figuring out and appointing the Inquiry Group that will habits a particular inquiry and for deciding on one of them to act as chair of the Inquiry Group (the Inquiry Group Chair). In practice, the Chair of the CMA will delegate these duties to the CMA Panel Chair. 

“The CMA’s panel members come from a range of backgrounds, which include economics, law, accountancy and/or business; the membership of an Inquiry Group normally reflects a combination of know-how and ride (including industry experience).

For a Phase 2 inquiry, an Inquiry Group will comprise at least three (and usually no extra than five) members, including the Inquiry Group Chair. Before appointing members to an Inquiry Group, the CMA will fulfil itself of members’ availability and consider whether their outside hobbies could affect the impartiality, or appreciation of the independence of the Inquiry Group.

At operational (case team) level, in order to keep away from pointless duplication and facilitate an environment-friendly end-to-end merger review process, the CMA would normally anticipate to have a diploma of case crew continuity via maintaining at least some of the Phase 1 case group to work alongside newly assigned group of workers on the in-depth Phase 2 investigation when a rely is referred.

Investigations and reports

The Act imposes an obligation on the CMA to refer finished and expected mergers for an in-depth Phase 2 investigation if it believes that it is or may be the case that: two a relevant merger situation has been created or arrangements are in progress or in contemplation which, if carried into effect, will result in the advent of an applicable merger situation, and two the advent of that state of affairs has resulted, or can also be expected to result, in a huge lessening of competition inside any market or markets for goods or services in the UK.

The CMA may, however, determine no longer to make a reference for a Phase 2 investigation if it believes that: the market worried is not, or the markets worried are not, of ample importance to justify the making of a reference two any applicable patron benefits in relation to the advent of the applicable merger situation outweigh the tremendous lessening of competition worried and any detrimental outcomes of that good-sized lessening of competition, or two in the case of an anticipated merger, the preparations worried are now not sufficiently far advanced or are now not sufficiently possibly to proceed, to justify the making of a reference. 

Where the CMA finds that it is underneath a responsibility to refer a merger for a Phase 2 investigation, it can also underneath section 73 of the Act accept UILs to remedy, mitigate or stop the substantial lessening of opposition concerned or any unfavourable effect of it.

Under Section 22(3) of the Act, the CMA cannot refer a merger if two the Secretary of State has issued a public pastime intervention note regarding the merger and that note remains in force the Commission is thinking about a request for the merger to be referred to the Commission for review, or in the case of performed mergers, the applicable merger situation worried is being, or has been, dealt with in connection with a reference made of the anticipated merger.

Duty to treatment the anti-competitive results of mergers

Following a reference for a Phase 2 investigation, the Inquiry Group ought to decide,  whether or not an applicable merger situation has been or will be created, and two if so, whether or not the introduction of that state of affairs has resulted, or can also be expected to result, in a significant lessening of opposition within any market or markets in the UK for goods or services (where both limbs are satisfied, this is referred to as an ‘anti-competitive outcome’). 

If the Inquiry Group finds that there is an anti-competitive result it ought to decide,  whether or not motion be taken through it, or with the aid of others, to remedy, mitigate or prevent the sizeable lessening of competition involved or any damaging effect that has resulted from, or may additionally be anticipated to result from, that large lessening of competition, and two if action is to be taken, what motion ought to be taken and what is to be remedied, mitigated or prevented.

While most mergers that take location in the UK will not increase competition issues, the merger manage procedure is designed to permit the CMA to pick out these where such troubles may also arise so that they can also be excellent investigated and, where necessary, resolved thru excellent remedies.

 At Phase 1, the CMA’s test for reference (its ‘duty to refer’) will be met if the CMA has a practical belief, objectively justified by using applicable facts, that there is a sensible prospect that the merger will reduce opposition substantially. The statutory context of the Act means that in these Phase 1 instances the place there is proper uncertainty as to whether the obligation to refer arises, this question is one for resolution via the Inquiry Group on the foundation of a particular Phase 2 investigation. At Phase 2, the Inquiry Group is then required to base its selections on the stability of probabilities.

Duty to remedy the anticompetitive effects of mergers

Following a reference for a Phase 2 investigation, the Inquiry Group ought to decide: to whether or not an applicable merger situation has been or will be created, and two if so, whether or not the introduction of that state of affairs has resulted, or can also be expected to result, in a significant lessening of opposition within any market or markets in the UK for goods or services (where both limbs are satisfied, this is referred to as an ‘anti-competitive outcome’). 

If the Inquiry Group finds that there is an anti-competitive result it ought to decide: to whether or not motion be taken through it, or with the aid of others, to remedy, mitigate or prevent the sizeable lessening of competition involved or any damaging effect that has resulted from, or may additionally be anticipated to result from, that large lessening of competition, and two if action is to be taken, what motion ought to be taken and what is to be remedied, mitigated or prevented.  

While most mergers that take location in the UK will not increase competition issues, the merger manage procedure is designed to permit the CMA to pick out these where such troubles may also arise so that they can also be excellent investigated and, where necessary, resolved through excellent remedies. At Phase 1, the CMA’s test for reference (its ‘duty to refer’) will be met if the CMA has a practical belief, objectively justified by using applicable facts, that there is a sensible prospect that the merger will reduce opposition substantially. 

The statutory context of the Act means that in these Phase 1 instances the place there is proper uncertainty as to whether the obligation to refer arises, this question is one for resolution via the Inquiry Group on the foundation of a particular Phase 2 investigation. At Phase 2, the Inquiry Group is then required to base its selections on the stability of probabilities.

Time limits for the implementation of remedies

The CMA is difficulty to a statutory cut-off date of 12 weeks following its ultimate report, extendable once with the aid of up to six weeks if the CMA considers there are unique reasons for doing so, to implement its Phase 2 remedies. The CMA will draw up a timetable for the drafting and implementation of undertakings or order, and share key milestones with the major parties to help them plan their entry to the process.

CMA procedure in Phase 2.

The technique of agreeing on undertakings or making an order will involve informal consultation between the CMA (with meetings commonly being held at the case team level) and the essential parties. Third parties may additionally be consulted with the place relevant. Parties will be asked to comment on each substance of the draft undertakings or order, and on any clause which they consider to be exclusive and which they would choose to be excised from the posted model by way of reference to section 244 of the Act.

When a version of the undertakings has been provisionally agreed on which the CMA is willing to seek advice from publicly, the CMA will then post a notice of intention to receive ultimate undertakings’ or a ‘notice of intention to make an order’ to which the draft undertakings or order are annexed. A minimal session period (15 days for undertakings and 30 days for order) is allowed for involved parties to remark on the notice.

The CMA will discern out whether or not any changes want to be made to the draft undertakings or order in light of responses to the consultation. If any cloth modifications are required, a in a similar fashion minimal seven-day session period is required. Minor changes do no longer require in addition consultation. 

The CMA then publishes a notice of acceptance of undertakings’ or a ‘notice of making an order’. At this point, the inquiry is ultimately determined. Responsibility inner the CMA for any similar implementation of redress (for example, overseeing any divestiture process) will either pass over to the Remedies, Undertakings and Commitments Committee or to an Inquiry Group appointed to oversee this phase of the machine (possibly the actual Inquiry Group). 

Where treatment implementation is expected to be difficult or includes specific concerns it is in all possibility that either the unique Inquiry Group will be reappointed to oversee that process, or that a new Inquiry Group will be appointed rather than the matter being dealt with with the aid of way of the Remedies, Undertakings and Commitments Committee.”

The ‘Substantial Lessening of Competition’ Test

A substantial lessening of competition

The term ‘substantial lessening of competition’ is no longer defined in the Act. Competition is seen via the authorities as a process of competition between firms in search of to win customers’ enterprise over time with the aid of supplying them a better deal. Rivalry creates incentives for companies to reduce price, make bigger output, enhance quality, beautify efficiency, or introduce new and better merchandise due to the fact it offers the chance for successful firms to take business away from competitors, and poses the danger that companies will lose business to others if they do not compete successfully.

A merger offers an upward jab to an SLC when it has a huge impact on competition over time, and therefore on the competitive pressure on companies to enhance their offer to customers or come to be more environment-friendly or innovative. A merger that offers an upward push to an SLC will be anticipated to lead to an unfavourable effect for customers. Evidence on probably damaging outcomes will consequently play a key role in assessing mergers.

Theories of harm

Theories of damage are drawn up by way of the Authorities to provide a framework for assessing the results of a merger and whether or not or not it should lead to an SLC. They describe possible changes springing up from the merger, and have an impact on contention and anticipated harm to clients as compared with the situation probably to occur barring the merger.

The Authorities may additionally revise the theories of damage as their assessment progresses. In formulating theories of harm, the authorities will reflect on consideration of how contention may be affected.

 They may set out those aspects of the merger firms’ competitive offers to customers over which corporations compete and which should worsen as an end result of the merger, whether in phrases of charge or non-price elements such as the volume sold, provider quality, product range, product first-class, and innovation. The ability of firms to adjust these aspects, and additionally the time inside which they can do so, will rely upon the market concerned.

The counterfactual

The application of the SLC test entails an assessment of the prospects for the opposition with the merger against the competitive state of affairs besides the merger. The latter is called the ‘counterfactual’. The counterfactual is an analytical device used in answering the query of whether or not the merger gives upward thrust to an SLC. 

While primarily based on evidence received by means of the Authorities in their investigations, it is typically now not comparable in element to their evaluation of the competitive consequences of the merger. A counterfactual can’t be built that includes violations of opposition law. Since the counterfactual may additionally be both greater or much less competitive than the prevailing prerequisites of competition, the choice of the terrific counterfactual might also extend or decrease the potentialities of an SLC finding by means of the applicable Authority

The approach to the counterfactual

In reviewing mergers at Phase 1, the OFT is required to assess whether or not the merger creates a sensible prospect of an SLC. The ‘is or may also be the case’ fashionable in the OFT’s SLC test additionally has implications for its approach to the counterfactual. The OFT considers the impact of the merger in contrast with the most competitive counterfactual offering constantly that it considers the situation to be a practical prospect. 

As a Phase 2 body, the CC takes an exclusive strategy considering that it has to make a general judgement on whether or no longer an SLC has befallen or is likely to occur. To assist make this judgment on the in all likelihood future scenario in the absence of the merger, the CC may have a look at countless possible scenarios, one of which may be the continuation of the pre-merger situation; however ultimately solely the most probable state of affairs will be selected as the counterfactual.

The exiting company scenario

The exiting company state of affairs is most normally considered when one of the corporations is said to be failing financially. It can also be especially vital in the context of an exiting firm situation for the Authorities to apprehend the rationale for the transaction below the review. 

For the OFT to be given an exiting company argument, it would need two to consider that it was inevitable that the company would exit the market and be confident that there used to be no considerably much less anti-competitive purchaser for the association or its assets. The OFT would then consider whether, having regard additionally into consideration, the result of the exit of the firm and its property would be a substantially much less anti-competitive consequence than the merger.

Market definition

The cause of market definition is to supply a framework for the authorities’ evaluation of the competitive results of the merger. The Authorities will pick out the market within which the merger can also give upward jab to an SLC (the relevant market). 

The applicable market includes the most sizeable competitive options on hand to the customers of the merger companies and includes the sources of opposition to the merger corporations that are the on the spot determinants of the effects of the merger (ie the Authorities’ intention when figuring out the relevant market is to encompass the most relevant constraints on the behaviour of the merger firms). 

The Authorities will ensure that the relevant market they identify satisfies the hypothetical monopolist test. Market definition is a useful tool, however not a quit in itself, and identifying the relevant market includes a thing of judgment.

The boundaries of the market do now not decide the result of the Authorities’ analysis of the competitive effects of the merger in any mechanistic way. In assessing whether a merger may supply upward thrust to an SLC the Authorities can also take into account constraints outside the applicable market, segmentation within the applicable market, or different ways in which some constraints are extra essential than others.

Measures of concentration

As part of their assessment of the results of a merger on competition, the Authorities may additionally use market shares and measures of concentration, assessed on the relevant market or some other market. Where such measures are regarded for the purpose of applying thresholds, the narrowest market described by using the hypothetical monopolist test must be employed. Concentration can be measured the use of such data as sales revenue, production volume, potential or reserves. 

The measure the Authorities will use will rely on the statistics of the case and the availability of information. For example, when products range in fantastic it might also be appropriate to use sales revenue as the basis. If exceptional suppliers make the same, or similar, products capability may be a substantial determinant of a firm’s aggressive energy and maybe a greater splendid foundation of assessment.

There are countless ways from which concentration can be measured, like for instance, market shares of firms in the market, each in absolute terms and relative to every other, can provide an indication of the plausible extent of a firm’s market power. The blended market shares of the merger firms, when compared with their respective pre-merger market shares, can supply an indication of the change in market electricity ensuing from a merger or ‘number of firms’. 

A straightforward rely of the companies in a market is a primary measure of concentration. The Authorities might also attach greater weight to the number of companies when considering coordinated effects. When assessing unilateral effects from local markets of mergers involving retailers, a matter of the wide variety of different fascias in a local location additionally conveys some records about concentration. 

Also, every other way is HHI. Herfindahl-Hirschman Index (HHI) is a measure of market awareness that takes account of the variations in the sizes of market participants, as well as their number. The HHI is calculated by using adding collectively the squared values of the proportion market shares of all corporations in the market.

The change Merger Assessment Guidelines, Part 5 Page 40 Competition Commission & Office of Fair Trading in the HHI (known as the ‘delta’) can be calculated with the aid of subtracting the market’s pre-merger HHI from its predicted post-merger HHI.64 The absolute stage of the HHI post-merger and the delta springing up from the merger can furnish an indication of the change in market shape ensuing from the merger.

Horizontal mergers

Unilateral effects can occur in a horizontal merger when one company merges with a competitor that until now furnished a competitive constraint, permitting the merged company profitably to raise expenditures on its own and barring wanting to coordinate with its rivals. Unilateral consequences can be horizontal or vertical.

Unilateral effects

Where products are undifferentiated, unilateral outcomes are extra probable where: the market is concentrated; there are few companies in the affected market post-merger; the merger outcomes in a company with a giant market share and there is no strong aggressive fringe of firms. Unilateral outcomes ensuing from the merger are extra probable where the merger eliminates a big aggressive pressure in the market. 

Where merchandise is differentiated, for instance via branding or quality, unilateral outcomes are more in all likelihood the place the merger firms’ products compete closely. To determine whether the merger effects in unilateral effects, the Authorities might also analyze the alternate in the pricing incentives of the merger firms created with the aid of bringing their differentiated merchandise underneath common ownership or control.

Coordinated effects

A merger can also supply upward shove to an SLC through coordinated effects. Coordinated results may additionally occur when corporations running in the equal market realize that they are together interdependent and that they can reach an extra worthwhile result if they coordinate to limit their rivalry. 

Coordination may additionally take distinctive forms. In many instances, it will contain firms retaining expenses higher than they would in any other case have been in an extra competitive market. However, coordination can in precept affect any component of the competition, for example by way of limiting manufacturing or innovation. 

Firms may also coordinate with the aid of dividing up the market between them, for example by geographic area or client characteristics, or by allocating contracts amongst themselves in bidding competitions. However, coordination want no longer involves all components over which firms compete. Coordination can be specific or tacit. Explicit coordination is performed through verbal exchange and agreement between the parties involved. Tacit coordination is carried out via implicit understanding between the parties, however barring any formal arrangement. Both can be germane to an evaluation of the results of a merger.

Non-Horizontal mergers

Non-horizontal mergers convey products collectively that do not themselves compete however may be related. They consist of vertical mergers (including diagonal mergers) and conglomerate mergers. Non-horizontal mergers do no longer involve a direct loss of opposition between corporations in the same market, and it is a well-established principle that most are benign and do no longer elevate competition concerns. Nevertheless, some can weaken competition and can also end result in an SLC. 

Examples of situations in which products are associated so that the authorities may additionally verify whether or not a merger gives rise to an SLC on the basis of non-horizontal outcomes include the place there is a vertical merger between an upstream provider and a downstream patron which purchases the supplier’s goods, either as an enter into its own manufacturing or for resale or diagonal merger between an upstream dealer and a downstream competitor of the clients that buy the supplier’s goods; and Merger Assessment Guidelines, Part 5 Page 50 Competition Commission & Office of Fair Trading or conglomerate merger of two suppliers of goods which do no longer lie inside the identical market, but which are nonetheless associated in some way; for example due to the fact they are enhances (so that a fall in the fee of one true increases the customer’s demand for another); or due to the fact, there are economies of scale in purchasing them (so that clients buy them together). 

Any given merger can have aspects of greater than one of the above. For example, a merger may additionally be characterized as phase vertical and part diagonal in phrases of its consequences on the competition. Non-horizontal mergers can lead to efficiencies, and this may result in the merged company having expanded incentives to compete to take business from rivals. This increased incentive to compete can end result in an amplify in the rivalry.

Efficiencies

While mergers can harm competition, they can also supply upward thrust to efficiencies. Efficiencies springing up from the merger may additionally enhance rivalry, with the result that the merger does not supply upward jab to an SLC. For example, a merger of two of the smaller corporations in a market ensuing in effectivity beneficial properties might permit the merged entity to compete extra successfully with the larger firms. The Act also allows efficiencies to be taken into account in the form of applicable consumer benefits. 

These advantages are described in Section 30(1), and are now not limited to efficiencies affecting rivalry. In addition, the statutory definition allows the Authorities to take into account benefits to clients bobbing up in markets other than where the SLC is found, and advantages to future customers. It is not unusual for merger firms to make effectiveness claims. 

To shape a view that the claimed efficiencies will decorate rivalry so that the merger does not end result in an SLC, the OFT must be satisfied, on the groundwork of compelling evidence, and the CC ought to expect, that the following criteria will be met: 

(a) the efficiencies need to be timely, probably and adequate to stop an SLC from arising (having regard to the effect on rivalry that would in any other case end result from the merger), and 

(b) the efficiencies need to be merger specific, ie a direct final result of the merger, judged relative to what would manifest barring it. Efficiency claims can be challenging for the Authorities to confirm due to the fact most of the data regarding efficiencies is held by the merger firms. The Authorities, therefore, encourage the merger corporations to grant evidence to assist any effectivity claims whether as part of the SLC analysis or the consideration of applicable patron benefits.

Barriers to entry and expansion

Any evaluation of a viable SLC consists of consideration of the responses of others (eg rivals, manageable opponents and customers) to the merger. In the longer time period opposition in the market may also be affected as new corporations enter, or the merged firm’s competitors take actions improving their capability to compete against the merged firm. 

Examples include, investment in new capacity, or conversion of current capacity to a new use, entry using new science enabling new manufacturing methods, investments in advertising and product diagram to reposition existing brands so that they compete more with these of the merged firm, sponsorship via clients of a new entrant with guarantees of business; and investment inability with the aid of customers to make their personal input so that they no longer need to purchase from the merged firm. 

All of these movements can mitigate the preliminary impact of the merger on competition, and in some instances can also suggest that there is no SLC. Potential (or actual) competitors may encounter barriers which adversely have an effect on the timeliness, likelihood and sufficiency of their capability to enter (or increase in) the market. 

Barriers to entry are therefore unique points of the market that provide incumbent firms advantages over achievable competitors. Where entry barriers are low, the merged company is greater probably to be constrained via entry; conversely, this is less probable where obstacles are high. The electricity of any given set of limitations to entry or growth will to some extent depend on conditions in the market, such as a growing degree of demand.

Countervailing buyer power

In some circumstances, a character client can also be in a position to use its negotiating strength to limit the ability of a merged association to raise prices. The Merger Assessment Guidelines, Part 5 Page 63 Authorities refer to this as countervailing client power. The existence of countervailing buyer strength will be an element in making an SLC finding less likely, where client electricity may make contributions to an SLC finding. 

If all clients of the merged firm possess countervailing buyer strength post-merger, then an SLC is unlikely to arise. However, often only some—not all—customers of the merged firm possess countervailing customer power. In such cases, the Authorities assess the extent to which the countervailing client electricity of these clients might also be relied upon to defend all customers. Buyer power can be generated by means of special factors. 

An individual customer’s negotiating position will be more suitable if it can without problems swap its demand away from the supplier, or where it can otherwise constrain the behaviour of the supplier. Typically the capability to switch away from a dealer will be improved if there are countless choice suppliers to which the purchaser can credibly switch, or the consumer has the capacity to sponsor new entry or enter the supplier’s market itself by means of vertical integration. 

Where customers have no choice but to take a supplier’s products, they may nevertheless be able to constrain costs through imposing expenses on the supplier. For example, customers may be able to refuse to purchase other products produced by using the supplier, or, in the case of a retailer, the role the supplier’s merchandise in less eye-catching parts of the store.

Even the place the market is characterized by way of clients who are larger than the suppliers, it does now not always comply with that there will be countervailing client power. The Authorities will determine whether or not and to what extent the merger is in all likelihood to decrease the customer’s potential and incentive to pursue credibly any of the strategies set out above.

It is possible, for example, that a merger might also decrease a customer’s ability to switch or even to sponsor new entry and, if this discount adversely impacts the negotiating role of a patron significantly, that customer’s client electricity will now not be enough to be countervailing.

Enforcement

As there is no requirement to notify mergers in the UK to the CMA, there is in a similar fashion no prohibition on companies finishing transactions barring clearance from the CMA. However, the CMA may, before it has reached its decision whether to make a reference, make an order underneath part seventy-two of the Act if splendid to forestall or unwind ‘pre-emptive action’ (a period in-between order). 

Pre-emptive motion is defined in the Act as which means any motion that would possibly prejudice the reference and/or obstruct the taking of any remedial motion that may additionally be required section 72(8) of the Act. In essence, period in-between orders are designed to end the merger events from beginning integration (or stop further integration) whilst the CMA’s investigation and possible remedy implementation is ongoing. 

As properly as searching for to prevent integration, the CMA may also, in extraordinary circumstances, require that existing integration is unwound. All such meantime orders (including consents thereunder) are posted on www.gov.uk/cma. Interim orders can also be imposed at any time all through the CMA’s review. The CMA’s use of meantime orders is distinctive in expected mergers and accomplished mergers due to the fact the danger of pre-emptive motion in an anticipated merger is usually a lot decrease than in a performed merger.

The CMA’s approach to making preliminary orders

Under section 72 of the Act, an IEO can be made as soon as the CMA has lifelike grounds for suspecting that it is, or may additionally be the case that two or more organizations have ceased to be distinct, or that preparations are in development or in contemplation which, if carried into effect, will result in two or greater corporations ceasing to be distinct. 

There are penalties for failing to comply with an IEO. Where the CMA considers that, except reasonable excuse, an IEO has no longer been complied with, it can also impose a penalty of a fixed quantity it considers appropriate, which shall no longer exceed 5% of the international turnover of the addressee of the IEO.

Remedies: Phase 2 Investigation

Phase 2 treatments are negotiated with, established by, and monitored by using the CMA. two If suitable undertakings can’t be agreed with the parties, the CMA will make an order to treatment the unfavourable findings. All such undertakings and orders are published. 

Broadly speaking, the sorts of remedies which the CMA might reflect on consideration on include the treatments structured to restore or keep all or phase of the pre-merger fame quo such as prohibiting all or phase of an expected merger or reversing a achieved one (in both case, this generally entails divesting one or extra of the merging parties’ organizations to a suitable purchaser, to get rid of the anti-competitive overlaps between the customer and goal and permit the remainder of the merger to proceed, or to unwind an executed anti-competitive merger), treatments intended to expand competition following the merger either from existing or new rivals (such as requiring the merged entity to give get admission to fundamental services or to license intellectual property); and remedies designed to exclude or limit the ability of the merged firm to take advantage of expanded market power bobbing up out of the merger (such as imposing a rate cap or different rate constraint, requiring improved transparency of expenses or obliging the merged enterprise to refrain from habits aimed at inhibiting entry) – these sorts of “behavioural” remedies are not favoured by way of the CMA and are used pretty rarely. 

The CMA has a length of 12 weeks following its Phase 2 selection within which to negotiate and finalize redress with the parties. This may additionally be extended with the aid of up to six weeks if there are “special reasons” for doing so (this is now not a specifically high threshold). The integral framework and goals of the redress will have been protected in the CMA’s final Phase 2 decision, so this later segment deals with the targeted negotiations and drafting of the undertakings which the parties will commit to in order to put in force the remedies. Third birthday celebration consultation will also take vicinity within the identical time frame.

‘Public Interest Cases’, ‘Other Special Cases’ and Mergers in the Water Industry

Public interest cases

The Act presents that (as the default position) the CMA decides whether or not to refer the merger for a Phase 2 investigation, and that the Phase 2 Inquiry Group makes the remaining choice as to whether or not any competition problems occur and whether or not any remedies are required, based basically on whether the merger has precipitated or may additionally reason a vast lessening of opposition (SLC).

However, the Act additionally approves for the Secretary of State to assume responsibility for figuring out whether or not or no longer to refer a merger when described public pastime considerations are probably applicable with the aid of issuing a public activity intervention word (PIIN).

 If the Secretary of State has referred a merger on such public pastime grounds, he or she also takes the remaining selection on whether the merger operates or may be expected to function against the public interest, and on any treatments for recognized public hobby concerns.

Section 42 of the Act, therefore, affords that the Secretary of State can also problem a PIIN in the case of mergers that meet the Act’s jurisdictional thresholds, that have public pastime implications and that the CMA has no longer referred for a Phase 2 investigation. Public hobby issues are presently limited to countrywide protection (including public security) plurality and other concerns relating to newspapers and different media and the balance of the UK financial system.

To facilitate this, the CMA has an obligation below section fifty-seven of the Act to inform the Secretary of State the place it is investigating a merger (at Phase 1) that it believes raises fabric public hobby considerations. However, even where a public pastime consideration is present, if such a PIIN is no longer issued, the CMA will treat the case and make its selection on competition grounds as if it had been any different merger case (and submissions on the public pastime concerns would therefore not be relevant in these circumstances).

Public Interest considerations

Section 58 of the Act details the public hobby concerns on which the Secretary of State can also intervene in a merger case. These are national security, including public security two the want for accurate presentation of news and free expression of opinion in newspapers the need for, to the extent that it is real looking and practicable, an adequate plurality of views in newspapers in every market for newspapers in the UK or a part of the UK the need, in relation to each and every one-of-a-kind target market in the UK or in a precise region or locality of the UK, for there to be an adequate plurality of persons with control of the media businesses serving that target market two the want for the availability at some point of the UK of a vast range of broadcasting which (taken as a whole) is both of excessive best and calculated to enchantment to a huge range of tastes and pastimes the want for persons carrying on media enterprises, and for these with control of such enterprises, to have a proper dedication to the attainment in relation to broadcasting of the objectives of the requirements set out in area 319 of the Communications Act 2003, and two the pastime of retaining the balance of the UK monetary system.

In addition to these distinctive concerns mentioned above, section 42(3) of the Act also allows the Secretary of State to intervene on the foundation of a consideration which is not designated but which the Secretary of State believes ought to be specified. To the extent that the Secretary of State intervenes on the groundwork of a consideration that he or she believes ought to be specified, he or she is required by section 42 of the Act to are seeking to have that consideration consequently inserted into Section 58 via skill of an order authorized with the aid of both Houses of Parliament.

Procedure in public interest cases: Phase 1

If a PIIN is issued, the case is dealt with in the following way: The CMA will put up an invitation to comment searching for 0.33 birthday celebration views on both competition and public activity issues. As properly as normally issuing an invitation for comment, the CMA will actively contact other governmental departments, sectoral regulators, industry associations and purchaser our bodies for their views on public activity problems the place appropriate. 

The CMA will lift out its review of the jurisdictional and competition troubles in the identical way as it would for any different case, with the caveat that its timetable will be adapted in order to allow it to supply its record to the Secretary of State by way of the closing date detailed in the PIIN. Following its very own interior review, the CMA then provides a recommendation to the Secretary of State on jurisdictional and competition issues, which have to be ordinary (section forty-six of the Act). The CMA is also required (other than in media public activity cases) to bypass to the Secretary of State a summary of any representations it has obtained that relate to these public pastime matters. 

The Act approves the CMA to furnish recommendation and recommendations on the public pastime consideration to the Secretary of State; however, given the CMA’s role as an opposition agency, it would not typically be predicted that the CMA would furnish its personal recommendation on public pastime problems at Phase 1.

The CMA will also inform the Secretary of State about the applicability of any of the exceptions to the obligation to refer and as to whether or not it would be excellent to deal with opposition worries by means of way of UILs. The content of such recommendation will without a doubt depend on whether the events have indicated to the CMA that they would be willing to provide UILs. 

The Secretary of State then makes a judgment on the outcome of the case in the mild of the CMA’s advice. Alternatively, the Secretary of State can also decide underneath Section 45(6) of the Act now not to make a reference on the groundwork that an anti-competitive effect in the shape of a CMA discovering of a practical prospect of an SLC is justified with the aid of one or greater public interest considerations. Where the Secretary of State is minded to refer, he or she will also reflect on consideration on whether or not UILs are justified.

If the Secretary of State concludes, after receipt of the CMA’s report, that there are no public activity troubles that are applicable to the PIIN, the CMA will be recommended below section 56 of the Act to deal with the merger as an everyday merger case. In any event, any choice in the case based totally on opposition concerns ought to follow from the CMA’s recommendation on whether or not it is or may also be the case that the merger has resulted or may additionally be anticipated to result in an SLC.

Procedure in public interest cases: Phase 2

If a reference is made on public pastime grounds (with or without competition grounds) the CMA conducts a Phase 2 inquiry and reviews to the Secretary of State. If the CMA considers that the merger operates or may additionally be predicted to function against the public interest, it makes guidelines as to the action the Secretary of State or others should take to remedy any unfavourable effects. 

The Secretary of State will make the final decision on the public interest test and take remedial steps it considers integral to tackle the opposition and public interest issues. The CMA’s Phase 2 procedures for public activity inquiries are similar to those for normal merger references.

The foremost variations are that the CMA affords its report to the Secretary of State and the ultimate choice on public hobby things lies with the Secretary of State. The CMA has to prepare a document and provide it to the Secretary of State inside 24 weeks (subject to a viable eight-week extension) from the date of the reference.

The Act does no longer require the CMA to consult the Secretary of State in the event that it proposes to extend the inquiry. When the Secretary of State has made a selection as to whether or not or now not to refer the case for a Phase 2 investigation, the Secretary of State is required beneath area 107 of the Act to post the CMA’s Phase 1 record (although the CMA will additionally want to make the file handy via www.gov.uk/cma).

The events will be contacted prior to guide to discuss whether or not the document incorporates personal data that ought to be excised prior to publication. The Secretary of State must additionally put up a non-confidential version of the CMA’s ultimate record in public activity instances no later than the book of his or her decision on the case (that is, within 30 days). The remaining decision on the fabric to be excised from the posted report is made via the Secretary of State. Shortly after the Secretary of State has published the CMA’s final report, it is additionally posted on www.gov.uk/cma.

‘Special public interest  cases’

Section 59 of the Act additionally permits the Secretary of State to intervene in a very limited wide variety of instances that no longer qualify beneath the Act’s standard merger regime but the place a particular consideration is applicable to the merger. These special merger situations might also occur in defence industry mergers if at least one of the agencies concerned is carried on in the UK by, or beneath the manipulate of, a physique company integrated in the UK and where one or more of the corporations worried is an applicable government contractor. 

In addition, following the Communications Act 2003, a one-of-a-kind merger scenario can also occur where the merger involves a dealer or suppliers of at least 25% of any description of newspapers or broadcasting in the UK. Unlike the trendy jurisdictional test, no increment to this share of supply is required. There will be no competition assessment in such cases.

In instances the place the Secretary of State has issued a different public activity intervention observe (SPIIN), the CMA will put together a report underneath Section 61 of the Act for the Secretary of State advising on whether a unique merger scenario has been created.

 The SPIIN will set out the time period inside which the CMA ought to furnish this file to the Secretary of State. The CMA will also summarise representations that it has obtained referring to to the considerations in the SPIIN. Given that the CMA is not expert in the considerations that would be predicted to be targeted in the SPIIN, it is likely to confine itself at Phase 1 to summarising and commenting on the representations received by means of applicable third birthday celebration experts, such as the Ministry of Defence.

Following a reference on specific public pastime grounds, the CMA would follow comparable strategies to these outlined for everyday mergers challenge to the procedural variations relating to public hobby mergers, even though its evaluation would be restrained to the public activity issues unique in the intervention notice. No merger price is payable in specific public interest cases.

European mergers

Under the EU Merger Regulation, the Commission has jurisdiction over ‘concentrations with an EU dimension’ (as described in Articles 1 and 3 of the EU Merger Regulation). National opposition authorities (NCAs) might also now not observe their personal competition legal guidelines to these mergers, without positive limited circumstances. The starting factor for the allocation of jurisdiction between the Commission and the CMA is that mergers that fall within the jurisdictional provisions of Article 1 of the EU Merger Regulation are no longer challenge to assessment under the Act.

This is because mergers reviewed by the Commission under the EU Merger Regulation benefit from the ‘one-stop-shop’ precept such that countrywide competition filings are now not required in the EU. However, as described further below, the EU Merger Regulation approves for the switch of instances between NCAs and the Commission in a number of ways.

Parties must also be aware that, even in instances where the Commission has and retains jurisdiction, the Commission continually consults the NCAs about mergers, and the EU Merger Regulation affords for NCAs to endorse the Commission in positive circumstances. The equipped UK authorities for the motive of the EU Merger Regulation are the Secretary of State and the CMA. The CMA has charge of the UK in a position of authority function in appreciate of the majority of mergers falling beneath the EU Merger Regulation.

This capacity that it is the CMA that liaises with the Commission on the assessment and dedication of cases over which the Commission has jurisdiction. 

Significantly, it additionally means that the CMA’s functions consist of finding out whether to request the referral of an EU Merger Regulation case from the Commission to the UK in total or in section below Article 9 of the EU Merger Regulation and whether to are seeking to refer a UK merger to the Commission in accordance with Article 22 of the EU Merger Regulation.

Alternatively, the CMA may additionally have to decide whether to consent to any request by means of the events for the referral of an EU Merger Regulation case from the Commission to the UK in total or in phase underneath Article 4(4) of the EU Merger Regulation or to a request that a case falling beneath the Act be transferred to the Commission in accordance with Article 4(5) of the EU Merger Regulation.

Mergers in the water industry

In some circumstances, mergers of water or sewerage undertakings in England and Wales are a concern to mandatory reference for a Phase 2 investigation. At the time of writing, beneath the Water Industry Act 1991 (as amended by area 70 of the Act) the CMA should refer any merger involving two or more ‘water enterprises unless the turnover of one or both of them falls under positive thresholds. two the CMA does no longer reflect on consideration on its Phase 1 IA manner to be suitable for advising on whether or not or now not a structure or transaction triggers the obligatory reference provisions.

However, by way of guidance, in reporting on the outcomes of any merger referred underneath the Water Industry Act 1991, the Phase 2 Inquiry Group should have regard to the variety of water corporations under independent control. This is to prevent prejudice to the capability to make comparisons between specific businesses in carrying out its regulatory functions.

In finding out on remedies, the Phase 2 Inquiry Group will be capable to have regard to their effect on client benefits, but solely were taking account of these benefits would not forestall an answer to the prejudice worried or where the advantages are predicted to be appreciably more necessary than the prejudice.

Conclusion

If the employer which you own or are concerned with has a UK, EU or global turnover which corresponds to the above amounts, you ought to be very aware of the law. You ought to especially be conscious that although notification in the UK is voluntary, it is risky (particularly if the merger potentially raises opposition issues) no longer to notify as the CMA ought to in some cases be extra likely to open an investigation into the merger.

To know more about Mergers & Acquisitions in India, 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.

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This article is written by Aarchie Chaturvedi, a 1st-year student currently pursuing B.A.-LLB from NUSRL, Ranchi. This is an exhaustive article about review, appeal, and revision containing a brief analysis of each of them and comparison among them.

Introduction

It is human nature to make mistakes. Judges are also humans. So they’re no exception to this kind of behavior. A judge can make an error in the course of his duties as well. There is yet to be born a man who has not made a mistake.

For centuries now, the provisions of appeal review and revision have been a part of the law. These provisions are some important steps in the attempt to remove or reduce the errors by the judges.

Because one of the reasons behind law’s birth was to preserve the rights of the public. And so the existence of law becomes worthless when the judgment of any lawsuit goes wrong. People in situations where they are wronged, try to get the shelter of law. But when law fails to provide a person with the shelter, the person becomes helpless and loses his trust in law. It is, therefore, a common principle that the law should not be mistaken. But it’s very difficult not to make mistakes. For this reason, the provisions of appeal review and revision were born.

Review: Meaning of the term in the legal world

Review means when the court re-examines the decisions made by itself, the examination of any legislation made by the government or any act of the administrative organizations; it rectifies the error in an act, judgment, or legislation. According to many leading legal philosophers and luminaries, the main purpose of this law is to protect the rights of the people as the judgments made by the courts, not mostly, but at times are fallible. In the process of review, the court might either overturn the decision or make necessary changes in it. The constitution of India has provided us with enough provisions of review to make the principles of justice more efficient.

Article 32 allows the Supreme Court to issue directions or writs and gives the right to an individual to knock on the door of the court if his fundamental right has been infringed or violated. The Parliament can also entrust any other court with the jurisdiction to exercise the power of the Supreme Court. It allows the individual to avoid the extensive or lengthy legal procedure and directly file a case in the Supreme Court if his fundamental right has been violated. So, if there is any law or act of the government that encroaches upon the fundamental right of an individual, his rights will be enforced under this article. The law or the act will be reviewed by the court which makes it the most important article in the process of legal review. According to the Rules of the Supreme Court, such a request must be submitted within 30 days from the date of judgment or order.

Article 136 of the Indian Constitution, on the similar lines, gives the Supreme Court the discretionary powers to grant special leave to appeal from any judgment, order, decree, sentence or determination, in any cause, which has been passed by any court or tribunal. The Supreme Court thus enjoys being appellate in most of the cases. The Supreme Court often deals with cases that involve the ‘question of law’, where it thinks that the verdict given by the other court is not satisfactory. The discretionary power of the Supreme Court is subject to judicial review.

Article 226 of the Indian Constitution, on the lines of Article 32, vests powers like issuing writs and giving directions in the High Court. According to this article, a person whose fundamental rights have been violated can approach the High Court. The High Court can issue a direction to any government, person or organization. The High Court acts as a protector of the fundamental right and gives the ground for judicial review.

Article 227 of the Indian Constitution, gives the power of supremacy to the High Courts of India over other courts or tribunals within its jurisdiction (i.e. the courts that lie in its territory). The High Court can issue directions to the subordinate courts under this article and the courts are bound by it. The High Court enjoys the power of revision under articles 226 and 227 of the Constitution of India.

Review is one of the most important parts to ensure justice and this principle is almost present in every democratic country. Review enables an individual to ensure that his right is not violated by any act, any law made by the government or by an error of any court. Review truly holds together the concept of complete justice and separation of power and this function acts as the backbone of the democracy. If there had not been a system of review in the judicial process, then the law made by the government would not be subject to the examination or review by the court and the entire judicial process would become futile. The principle of judicial review ensures the principle of complete justice. The Supreme Court and the High Court have used this principle while delivering landmark verdicts like in the case of Vishaka v. State of Rajasthan, where the Supreme Court laid down the famous Vishaka guidelines.

Under the review petition, the binding judgments of the Supreme Court/High Court can be reviewed. Generally, in view of stare decisis (the legal principle of determining points in litigation according to precedent), courts do not disturb a ruling without a solid case. This review provision is thus an exemption from the legal stare decisis principle. Article 137 of the Constitution provides for the authority of the Supreme Court of India to revise any judgment it pronounced (or orders made) pursuant to Article 145 of the Constitution.

The concept of review is one of the important aspects in maintaining human rights, as the fundamental rights like the right to life, right to speech and expression and right to practice any religion are enforceable because of the process of judicial review. The contravention of these rights by the government or by any other legal person can be challenged in the court only by the process of judicial review. So, this makes it an indivisible part of the judicial process.

The concept also helps in maintaining the limits of the organization of a state, like courts or government organizations, and checking that there is no outreach of power by the organizations.

The constitution of India has classified the judicial review under three categories, that are:

• Judicial review of constitutional amendments– The Supreme Court can check the constitutional amendment in order to see that it doesn’t violate any fundamental right or the basic structure of the constitution. The leading case, in this category, is Kesavananda Bharati v. Union of India.
• Judicial review of legislation of Parliament, State Legislatures as well as subordinate legislation– The court can review the legislation in order to examine that the laws made don’t violate the fundamental rights and it is mainly done to check the limitations of the legislatures.
• Judicial review of administrative action of the Union of India, as well as the State Governments and authorities falling within the meaning of State- The administrative functions of the governments of both the Union and the states, can be brought under check by the process of judicial review. 

Presidential pardon in terms of judicial review is also an important function of the Indian judicial system. The president can commute the capital punishment given to a person by the court on the grounds of morality and mercy. This process involves the President’s review, which is entirely in his hands. In the case of Kehar Singh v. Union of India, the Supreme Court held that the order of the president in the cases of mercy petition cannot be a subject of judicial review. 

Nature, scope and objectives

Judicial review enables a person to enforce his right that might have been overlooked by the administrative organs or the courts. In the process of judicial review, the court will not look into the merits, but into the law of the act. If it finds contravention to any dominant law at the time of review then it would set the decision aside.

The court can set aside any legislation made by the parliament or any act done by the government or any order passed by the inferior court if they find it to be unconstitutional or violative of the natural justice principle. The Supreme Court and the High Court can also issue writs, if the situation demands so, as a part of the process of safeguarding the fundamental rights.

The objective behind this procedure is to make review a tool to ensure complete justice and to enforce the fundamental rights of an individual. The purpose is to have a check over the working of the legislature, in order to check the constitutionality or legality of the laws made by them. The act ensures that the laws made by the legislature passed the litmus test of the constitution. Another objective behind this law is to rectify the legal errors made while delivering the verdicts.

Cases where review lies

Non-appealable cases– Non-appealable cases are cases where no right is given to the suffered party or when an appeal is rejected on the grounds of incompetence or being time-barred. The party who has suffered can hence file for review.

Where appeal lies but is not preferred- In cases where the benefit of an appeal lies but is not preferred by the party, the party can file for a review but the review must not be against the order because that would be going into the facts which are not entertained by the courts. When the party has already filed for an appeal before the court which is pending, in such cases the petition for review will not be entertained by the court. However, if the review petition is filed first and the appeal is filed subsequently then the court’s jurisdiction to review can’t be questioned under law.

What are the grounds of review cases?

• Discovery of new evidence– When of new evidence or matter which is substantial to the case and was not in the cognizance of the concerned person, then that person can successfully apply for review. However, the burden of proof lies on the concerned person to prove that at the time of the verdict he was completely unaware of the fact or evidence that could have an influence in the decision making. However, the mere fact that the concerned party was not cognizant of the ruling in any other case which might have impacted the decision wouldn’t be considered by the court for review.
• Error on the face of record– The prima facie error that looks pretty conspicuous without a legal analysis of the judgment can only be taken into account for review under this ground. The error or mistake could either be a mistake in law or a mistake in fact.
• Other sufficient reason– This ground of review has given a very wide coverage of the reviewing process. In the landmark case of Chajju Ram v. Neki it was held that the sufficient reason shall be connected with the other two reasons in the least possible way. The mere fact that the court ignored an important fact will not make a valid point under this ground.

Who can file for a review?

• Review can be filed by any person who feels himself to be deprived of rights or aggravated under the law or the rule of law under Rule 1 order 47 of the CPC.
• Or; in non-appealable cases, where no right is given to the suffered party when an appeal is rejected on the grounds of incompetence or it being time-barred, then the party who has suffered can file for review.
• Or; in cases where the benefit of an appeal lies but is not preferred by the party, the party can file for a review but the review must not be against the order because that would go into the merits which are not entertained by the courts. When the party has already filed for an appeal before the court which is pending, in such cases the petition for review will not be entertained by the court. However, if the review petition is filed first and the appeal is filed subsequently then the court’s jurisdiction to review can’t be questioned under law. 

Court of plenary jurisdiction

Under Article 136 of the Indian Constitution, the Supreme Court of India has the special power to grant special leave from any judgment, order or sentence made by any court or tribunal in the territory of India except to those belonging to the Armed Force Courts or tribunals. All adjudicating bodies that have been formed by the state can be counted as tribunals except the Armed Force Tribunal. Article 136 has a very wide scope as it vests the power of plenary jurisdiction in the Supreme Court by granting it the power to hear any appeal against any kind of judgment and pass an order related to the appeal if needed, so as to preserve the principle of justice. Thus plenary power truly stands upon the ideals of democracy as it makes sure that justice will always be served at last, and removes the concept of injustice by an error of law. The concept laid down by the constitution-makers was to prevent the miscarriage of justice. 

Suo motto review

In law, sua sponte or suo motu (on its own motion) describes the act of authority, to take up the matter without the request of the other party. This term is generally used for measures taken by a judge on his own, without a prior motion or application from the parties.

It is a well-known fact that even if time restrictions are imposed on the application, the Court has the power of suo moto to rectify its own mistakes. Where inherent powers are exercised, the issue of limitation does not preclude a solution. The decision making authorities can be vested with suo motu powers of review in the interest of justice. If there are strong reasons present for a judgment to be reviewed, then there is no excuse why the court should be restrained from exercising the power of review. 

Appeal

An appeal is asking a higher court to review and if needed, to reverse the decision of the lower court and to turn it in the losing party’s favor after the final judgment has been given. The losing party has to quote legal reasons as to why it feels the judgment of the lower court was wrong and why it should be overturned by the higher court. The losing party and the appellant here must show the errors or mistakes that were committed during the previous trial. The two grounds on which an appeal can be filed are:

• When a mistake was committed in the trial– Only grave errors are counted under this provision. Harmless errors cannot be a ground for appeal. The appellant must also show that the error caused his rights to be infringed.

• When evidence does not support the verdict– It is much harder to prove an appeal that is based on insufficient evidence. As the Court of Appeal did not hear the entire proceedings in the previous trial and didn’t make a fully unbiased decision. Based on their belief in the judgement of the trial court, most appeal courts weigh and then make their decision.

In civil suits, both the plaintiff and the defendant can file a suit for appeal. A defendant has the right to file an appeal unless the judgment came from the court of the highest order. Not every appeal is entitled to be entertained by the court as there can be an appellable error and thus on those grounds the appeal can be rejected. 

It must be kept in mind by the party when it decides to file an appeal that the appeal must be made in the limited time frame which varies depending upon the jurisdiction. However, the decision of the appellate court is not time-bound. The judges of the court of appeal take time to consider the issues and then make the final decision. This process can take weeks or even months.

Letters Patent Appeal (LPA)

Letters Patent Appeal is an appeal from a single bench to a larger bench of the same court. Such kind of appeal is dealt with, under Section 50(1) (b) of the Arbitration and Conciliation Act, 1996 and has to be judged within already laid down parameters. This remedy was first provided after the establishment of High Courts in 1865. The decision given by the single judge bench can go wrong due to wrong facts or can even be wrong according to the law. In these cases, the appellant has the option to refer to a larger bench of the same court before going to the Supreme Court. Thus, this would save the expenses of going and filing a case under the Supreme Court. Such kind of an appeal is called an intra-court appeal when it is filed in the High Court and an inter-court appeal when it is filed under the Supreme Court. The maximum period for filing an inter court appeal is 30 days and filing an intra-court appeal is 90 days.

After paying the court fees the appellant who files for an LPA is required to carry the following documents with him to the proceeding:

1.  Certified copy of judgment and decree appealed from.
2.  Certified copy of certificate granted by the High Court. 
3.  Certified copy of the order granting the said certificate.

However, it must also be noted that intra-court appeal is not maintainable in cases of criminal nature. 

Revision

Revision is a new prospect for the resolution of law. It means re-examining the case involving improper inference, non-exercise or inappropriate jurisdictional exercise. Where no appeal lies for a case, which is decided by the subordinate court, Section 115 of the Code of Civil Procedure gives the High Court the power to revise the matter. This jurisdiction is known as the High Court’s revisional jurisdiction. Revision refers to reviewing or scrutinizing with a view to correct or to improve.

In the exercise of revisional powers, it is not the responsibility of the High Court to take into consideration the benefits of the evidence; it merely has to see if the provisions of the law have been properly adhered to by the court whose order is the subject of the revision.

In Section 115 of the CPC, there are only three grounds for revision, which are: 

• When the lower court meditates on a matter on which it has no jurisdiction.
• There was authority, but it was not exercised.
• Jurisdiction has been applied illegally or irregularly.

Section 115 shall thus prevent subordinate courts or lower courts from acting arbitrarily, illegally, irregularly or capriciously.

Distinction between Review and Appeal

• When appealing to a court superior to the one that issued the verdict, the appellant will contest the inferior court’s decision with an appeal. The appeal is a motion to be tried again. An appeal to ask the higher court to amend the lower court’s decision is sought. The lower court’s decision may remain the same or it may be revised by the higher court. A review is not people’s statutory right and is applicable at the court’s discretion. A review is applied in the same court in which the original decision is taken and is a request to consider the legality of the ruling. A review is based on irregularity of procedures, impropriety, irrationality, and illicitness.
• Section 114 and Order 47 of the CPC deal with review whereas Sections 96 to 112 and Orders 41 to 45 of the CPC deal with appeal.
• There’s just one review. The second request for review does not lie. On the other hand, there are three appeals:
  • From District Munsiff Magistrate Court/Subordinate Judge’s Court to District Judges (First Appeal); 
  • From District Judge’s Court to the High Court(Second Appeal);
  • From the High Court to the Supreme Court (Third Appeal).
• An appeal is referred to different judges whereas a review is referred to the same judge.
• The grounds for appeal are wider in ambit than the ground for review.

Distinction between Review and Revision

1. Review is contained in Section 114 and Order 47 of the CPC whereas revision is contained in Section 115 of the CPC.
2. Review is given by the court which passed the decree or made the order whereas revision is executed only by the High Court.
3. Review can be done only after the passing of the order whereas revision can be done when the case has been decided.
4. The decree granting a review is appellable whereas the decree granting a revision is not appellable.
5. The grounds for review are the discovery of new evidence, error on the face of the record and any other sufficient reason however the ground for revision is a jurisdictional error by the lower courts.

Conclusion

The maintenance of justice which is important for every society in a democracy is possible due to the presence of the Constitution. The principles of democracy have been preserved by the provisions of review. 

• The provisions have been used by the appellate courts while delivering verdicts. The main principle behind review is to protect the sanctity of complete justice and protect the rights of the individual through the legal process that is dominion over the republic of India. Review not only protects the right but also the dignity of the individual and makes sure that there is no miscarriage of justice. 
• Justice vs judiciary is a topic that has been a century-long debate but the review system acts as an invisible bridge and ensures harmony between both by the due procedure of law. The provision removes the possibility of human error while delivering verdicts and ensures that the rights of every individual are protected in the eyes of law. 
• The concept of review gives the power to a person to enforce his rights to establish justice against injustice. The review system is also very essential for checking and balancing the overreaching acts that the government might perform in the course of administration. If the legislature makes any law or the government performs any act that contravenes the right of any person in India and that contravention per se is not allowed by law, then review acts as a tool to salvation for that person, and any such act or law passed will be set aside by the appellate court. 
• The review system sets the tone for the proper functioning of the pillars of democracy by determining the limits of every governmental and judicial organ and is essential for effective coordination. The suo moto cognizance is one of the most influential tools to enhance the judicial review and the justice process. It gives the right to the supreme court to take cognizance of the injustice that’s happening in any part of the country and enforce justice by law and order. It thus provides a solution to the very famous lines “injustice anywhere is a threat to justice everywhere”.

Revision on the other hand clothes the High Court with the powers to ensure that the subordinate courts ‘ proceedings are conducted within the boundaries of their jurisdiction and in the furtherance of justice in accordance with the law. It allows the High Court to rectify, errors of jurisdiction committed by subordinate courts and provides the means to obtain rectification of a non-appealable order to an aggrieved party. In other words, revisional jurisdiction is conferred on the High Court for the effective exercise of its supervisory and visitorial powers. 

Appeal whereas ensures the litigants that they will be granted justice under the law while the resolution of a particular dispute and appeal also helps in enacting the rules of decision that will be binding on all lower courts within the judicial system, thus ensuring uniform treatment and some measure of certainty and guidance for those whose actions bring them within the scope of the rule.

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 Review, Appeal & Revision: All you need to know about it appeared first on iPleaders.

This article has been written by Avinash Kumar of 3rd-year pursuing B.com LLB from School of law, UPES Dehradun. This article discusses the concept of the Directive Principle of State Policy. In this article, I have mentioned all the provisions of the Directive Principle with the relevant case laws and tried to compare the fundamental right to the Directive Principle of State Policy.   

Introduction 

Part IV of the Indian Constitution defines the Directive Principle of State Policy (DPSP). Basically, the Directive Principles of State Policy have been borrowed from the Irish Constitution. The Directive Principles of State Policy are guidelines to the State which has been written in the Indian Constitution. But you can’t compel the State for their enforceability in a Court of Law. While the Fundamental Right is enforceable in a court of law. Directive Principle is a set of instructions that have to be followed by the lawmakers while making the policy for the citizens. 

Directive Principle of State Policy makes an obligation on the State to make good policies for the betterment of the society so that it could develop the Socio-economic conditions of the citizens.

The underlying object behind the Directive Principles

If the Union or State government made any law then it is the responsibility of the union or state government to follow the guiding principle of the state policy. The Objective behind the Directive Principles of State Policy is the welfare of the State. One of the important objectives behind the Directive Principles of State Policy is to achieve the goal of welfare state. The aim of the Directive Principle of State Policy is to improve the social and economic condition of the citizen so that they can enjoy the good life. Directive Principle of State Policy acts as a check and balance for the Government so that in the upcoming election a citizen of the country can cast their vote according to the performance of the previous government. 

The success and failure of the government can be judged by their Policies and Principles and if the government fails to implement the Directive Principle in the State in a proper way, then they can lose the upcoming election. That’s why the Directive Principle of State Policy makes an obligation on the State that within the time period by implementing the principle, State can achieve its goal.

Classification of the Directives

Social and Economic Charter 

A social order based on justice

Article 38(1) of the Indian Constitution talks about the social order based on justice. Article 38(1) says that it is the responsibility of the State to work for the welfare of the people. Social order includes the law and order. It also includes the Public order and the security of the state. That’s why it is the responsibility of the state to maintain public peace, public safety, public order. 

The state has a legal duty as well as a constitutional mandate to maintain the security of citizens.

Principles of policy to be followed by the State for securing economic justice

Article 39 of the Indian Constitution directs the State to follow the principles while making policy for the Citizen. 

• Men and Women will have an equal right in the means of livelihood. 
• It is the responsibility of the State to distribute the ownership and control of the material to the common people. 
• It is the responsibility of the State to not discriminate on the basis of sex which means men and women will get equal pay for equal work.
• The state has a responsibility to ensure the health of the children and workers.
•  Article 39(b) also covers material resources. For the purpose of development,    construction of the house, for the purpose of providing public facilities like roads, playgrounds, bridges, the government can acquire the land of the Private owners.

Social Security Charter

Equal justice and free legal aid to economically backward classes

Article 39A of the Indian Constitution says that it is the duty of the State to provide free legal aid to all the citizen of the country. It is the responsibility of the State to make provisions and schemes regarding free legal aid so that economically backward classes can take the benefit of that. Legal Aid and Speedy trial is now a fundamental Right which comes under Article 21 of the Indian Constitution. Even all the prisoners can enjoy this right.

Organization of Village Panchayats

Article 40 of the Indian Constitution talks about Panchayati Raj System. It is the responsibility of the State to take all the steps for the establishment of the Panchayati Raj.

Panchayati Raj is the pillar of the Indian Political System. It is the oldest form of Local self-government. Panchayati Raj election is the grassroots of Indian Democracy. All the members of Panchayati Raj are elected by the democratic process. Panchayati Raj System has been inserted in the Constitution by the 73rd Constitutional Amendment in 1973. Rajasthan was the first state to adopt the Panchayati Raj System. The election of the Panchayati Raj System is conducted by the State Election Commission. State Finance Commission Provides the funds for the betterment of the Panchayati Raj system.

Panchayati Raj System has been inserted in the Indian Constitution by the 73rd Constitutional Amendment in 1992. 

On the recommendations of the Balwant Rai Committee, the Panchayati Raj System has been divided into three tiers:

1. Village Panchayat;
2. Panchayat Samiti;
3. Zila Parishad.

Right to work, education and public assistance in certain cases

Article 41 of the Indian Constitution says that the State has a duty to provide employment, education and to provide help to those who are unemployed, and those who can’t take care of themselves like old age people. 

Just and human conditions of work

Article 42 of the Indian constitution directs the State to develop the condition of humans and provide maternity relief. 

A living wage for workers

Article 43 refers to the living wages for the workers, which means that the state has a responsibility to make a provision regarding the wages of the worker and wages should be as such that he can maintain all the basic necessities like clothes, food, shelter. 

Participation of workers in the management of Industries

Article 43 A of the Indian Constitution talks about the participation of workers in management of industries. Article 43 A says that through the legislation, State has a responsibility to secure the participation of workers.

Provision for early childhood care and education to children below the age of six years

Article 45 of the Indian Constitution directs the state to make provision regarding free and compulsory education to all children till the age of 14 years. The reason behind free education to all the children is to eradicate the illiteracy rate. 

In the case of Unni Krishnan v. the State of A.P, the Apex Court held that the Right to education, up to the age of 14 years is a Fundamental Right and it will come under the purview of Article 21 that is Right to life and personal liberty. In the 86th Constitutional Amendment, a new Article has been inserted that is Article 45 which says that the State shall provide childhood care and free education to all children till the age of six years. 

Promotion of educational and economic interest of weaker sections

Article 46 of the Indian Constitution grants the power to State to do promotion of the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections of the society. The state has also the responsibility to protect them from all forms of exploitation and injustice from society. 

Duty to raise the standard of living and improvement of health

Article 47 of the Indian Constitution makes an obligation on the State to improve the level of nutrition and maintain the standard of living. It also makes an obligation on the State to improve the condition of public health. 

The state has the power to prohibit all intoxicating drinks and drugs which are injurious to health except medical purposes. 

Community Welfare Charter

Uniform Civil Code

Article 44 of the Indian Constitution states that it is the duty of the State to secure for the citizens a Uniform Civil Code throughout the territory of India.

Basically, the Uniform Civil Code means a set of laws through which all the personal laws of the different religions will come under one platform and governed by a single law. But currently, in India, each religion has a separate personal law and they follow their personal law. Goa is the only State to have a Uniform Civil Code.

Shah Bano Case

The first issue regarding the Uniform Civil Code arose in the case of the Shah Bano case. In the case of Shah Bano’s case, her husband Ahmad khan divorced her and denied to give maintenance. Shah Bano moved the Supreme Court for the maintenance under Section 125 of Cr.PC.

The Supreme Court gave the judgment in favor of shah bano on the ground that Section 125 of Cr.PC. is applied to all citizens of the country irrespective of their Religion. But, the Muslim community was not ready to accept the judgment of the Supreme Court. Many protests were organized by the protesters against the judgment of the Supreme Court. Protester’s contention was that the Supreme Court doesn’t have any right to interfere in the personal laws.

After this case the Rajiv Government came up with a new law that is Muslim Women (Protection of Right on Divorce) Act 1986, which nullified the judgement of the Supreme Court. The Act states that in the Divorce matter the Personal law will prevail.

In the Act, it was also mentioned that in the Divorce matter Muslim men will have the right to give maintenance only till the time of Iddat Period, that is 90 days from the Divorce. After that, the liability of paying the maintenance will shift to the Waqf Board.  

Sarla Mudgal Case

There was an NGO named Kalyani, and Sarla Mudgal was the President of the Kalyani NGO who had fought for the Meena Mathur. Under the Hindu Personal Law, Meena Mathur was married to Jitendar Mathur. As per Muslim Law, there is a provision that Muslim men can marry as many as four wives during his lifetime. After that Jitendra Mathur Converted into Islam and married another girl and that girl also converted into Islam.

Sarla Mudgal filed a case against the Jitendar Mathur. The contention from the advocate of Jitendra Mathur was given that he has married under the Muslim law, which permits the second marriage. 

But the Supreme Court gave the Judgement in favor of Meena Mathur and held that Islamic Law permits four marriage but conversion for the purpose of marriage is an abuse of Personal Laws. 

Further Court clarified that Hindu marriage will be dissolved only under the Hindu Marriage Act. In order to prevent such type of marriage Court also quoted that UCC should be implemented in order to prevent similar types of matters.

Promotion of Co-operative Societies

Promotion of Co-Operative Societies has been added by the 97th Amendment 2011. The state has a responsibility to promote Co-Operative Societies. Co-Operative societies include the management, control, functions.  

The organization of agriculture and animal husbandry

Article 48 of the Indian Constitution talks about the Organisation of agriculture and animal husbandry. It is the responsibility of the State to organize agriculture and animal husbandry. Article 48 also directs the State to prohibit the Slaughtering of cows and calves and another dairy animal.

Protection and improvement of forests and wildlife

Article 48A of the Indian Constitution says that it is the responsibility of the state to take all the necessary steps to protect the environment, forest, and wildlife animals. In the M.C Mehta case, the Supreme Court has held that the State has a responsibility to take steps to improve the quality of polluted water.  

Protection of monuments and places and objects of national importance

Article 49 of the Indian Constitution grants the power to the State to take care of and protect monuments and historical places. State also has a responsibility to protect the Ancient and historical monuments. 

Separation of Judiciary from Executive

Article 50 of the Indian Constitution talks about the Separation of Judiciary from Executive. Judiciary is an independent body. The guardian of the constitution is Judiciary. If the executive will start working like judiciary then there will be a clash of power that’s why Article 50 separates the judiciary from the executive. 

However, in some cases, judicial functions are performed by the executive. 

Like in the Appointment of Judges they are appointed by the Executive.

However, in the matter of Pardoning and Reprieve Executive enjoys that Right. 

Promotion of International Peace and security

Article 51 of the Indian Constitution talks about the Promotion of International Peace and Security. It is the responsibility of the State to Promote peace and security with another country. 

It is the responsibility of the State to maintain good relations with another country. Good relations with another country help the State in many ways.

There are many international laws and treaties that were signed between the two State so it is the obligation on State to Respect or obey all the treaties and International Law. It also says that if any dispute arises between the two State then it is the responsibility of the State to settle the dispute by Arbitration.

The relation between Directive Principles and Fundamental Rights

Fundamental Right limits the power of the Government while making any law which means that the Government doesn’t have any authority to make a law that is inconsistent with the Fundamental Right. But the Directive Principle of State Policy are guidelines to state for achieving certain goals. If your fundamental right has been violated then you can go to the court by Article 32 but in violation of the Directive Principle of State policy, you can’t go to the court. 

Nowadays, there are many debates that run that there is no use of Directive Principles of State Policy in the State because it is not enforceable in the Court but in the current scenario, it  plays an important role for the betterment of the society.

You can read the Directive Principle of State Policy into the Fundamental Right. You can take the example of the Right to education.

The Directive Principle of State Policy expands the ambit of the fundamental rights. 

In the past, there are many judicial pronouncements that have been pronounced by the Apex Court in which they draw the line between them. 

Madras v. Champakam Dorairajan

In this case, the Apex Court held that the Directive Principle of State policy is the subsidiary to the Fundamental Right because Fundamental Right is enforceable in a Court of law while the Directive Principle of State Policy is not. Directive Principle of State Policy will run according to the Fundamental Right.

Re Kerala Education Bill

In the case of Re Kerala education bill, the Supreme Court held that there is no conflict between the Fundamental Right and Directive Principle of State Policy. Fundamental Right and Directive Principle of State policy are Complementary and Supplementary to each other. 

Further, the Court held that they are elastic and wide in nature so that in the future it can change according to the needs of the Society. Supreme Court held that the Directive Principle of State Policy is the Integrated scheme.     

Minerva Mills Case

In Minerva Mills case, the Supreme Court observed that fundamental rights are not the end of the path and end are specified in the Directive Principle of State Policy. Further, the Court explained that you can’t give primacy to one. One has to give priority to both. 

The harmony and balance between the Fundamental Rights and Directive Principle of State Policy is an essential feature of the Constitution. 

Ashok Kumar Thakur v. UOI

In this case, the Court held that you can’t make the distinction between the Set of Rights. Fundamental Right has a different goals while Directive Principle of State Policy has a different goals. Fundamental Right Represent the Civil and Political Right while the Directive Principle of State Policy represents the Social and Political Right. Further, the Court explained that the Directive Principle of State Policy is not enforceable in a court of law that doesn’t mean that these are subordinate.  

Directive Principles have given the status of Fundamental Rights: A New Dimension

It is true that by the judicial pronouncements the court has given a new dimension to the  Directive Principles of State Policy. In some cases, the Directive Principle of State Policy interpreted the concept of a fundamental right. 

In the Unnikrishnan case, the Supreme Court changed the status of the Directive Principle into the Fundamental Right. That’s why the status of Article 45 of the Indian Constitution has been changed from the Directive Principle into the Fundamental Right. So that from the age of 6 to 14 years, it is the responsibility of the State to provide free and compulsory education to all children. And it is enforceable in a Court of Law. There is another example that has taken the shape of a Fundamental Right is Equal Pay for Equal Work. In the case of Randhir Singh, the Supreme Court held that Equal pay for equal work is a Fundamental Right and it is enforceable in a Court of Law.

In the case of M.H. Hoskot vs State of Madras the Supreme Court held that fair legal aid is an integral part of a fair procedure of court and it is the duty of the government to provide free legal aid. Free legal aid comes under Article 21 of Indian Constitution. While in the case of Hussainara Khatun vs Home Secretary, State of Bihar, Supreme Court held that detention of under trial prisoners is a violation of Article 21 and Right to a Speedy trial is a fundamental Right Speedy trial is the Fundamental Right of the citizen which will come under Article 21 of the Indian Constitution.

Difference between DPSP And Fundamental Rights

DPSP and Amendment

If the Union Government thinks that there is a need to amend the Directive Principle or to add something then Parliament has the power to amend or add something in the Directive Principle by the Special Majority. There are many amendments which has been done by the Parliament. 

42nd Amendment Act, 1976

In the 42nd Amendment 1976, the Parliament has made four Amendments in the Directive Principle. Article 39 of the Indian Constitution Parliament has made an obligation on State to secure a social order for the promotion of the welfare of the People. 

After that Parliament has added a new Article that is Article 39A which says that it is the duty of the State to provide equal justice to all and free legal aid. The 42nd Amendment Act Parliament has added a new Article that is Article 48A which says that it is the duty of the state to Protect the Environment and to improve the quality of water and air through all possible ways. 

44the Amendment Act, 1978

The 44th Amendment of the Indian Constitution made an obligation on State to take all steps to eradicate the inequalities in the income of the Individual and to give the facilities to the Individual and the group of people who are residing in the different areas. 

73rd Amendment Act, 1992

By the 73rd Constitutional Amendment, Parliament has added the Panchayat in Part IX of the Indian Constitution which talks about the Organisation of Village Panchayat.

86th Amendment Act, 2002

By the 86th Constitutional Amendment, a new Article has been inserted in the Constitution that is Article 21A which says that the Right to education is a Fundamental Right. It creates an obligation on the State to provide free and compulsory education to all the children who belong to 8 to 14 years of age. If the state fails to do so then you can sue in a court of law.  

97th Amendment Act, 2011

Article 43B was added in the Indian Constitution which is related to the co-operative societies. It directs the State to take all the necessary steps to promote the voluntary formation, autonomous functioning, democratic control and professional management of the co-operative societies

Judicial Pronouncement 

Time to time there are many conflicts that arose regarding the supremacy of Fundamental Right over the Directive Principle of State Policy. 

The question was whether the Fundamental Right is superior to the Directive Principle of State Policy or not? So through many judicial pronouncements, the Supreme Court has cleared their stand on that. 

State of Madras vs Champkam Doraijan ( AIR 1951 SC 226 ) 

In this case, the Supreme Court held that if a Parliament made a law which contravenes the Fundamental Right then that law would be void but it will not apply to the Directive Principle of State Policy. It shows that fundamental rights are on higher pedestal than Directive principles of state policy. The subsidiary of Fundamental Right is the Directive Principle of State Policy. Directive Principle will operate according to the fundamental Right. 

In kerala education bill (1959 1 SCR 995) 

In this case, the Supreme Court gave the new principles that is the Principle of Harmonious Construction. In this case the Apex Court said that if there is any conflict between the Fundamental Right and Directive Principle of State Policy then the Doctrine of Harmonious Construction will apply. However if in case any conflict remains after applying the Principle of Harmonious construction then the Fundamental Right will prevail over the Directive principles of state policy.

Golaknath & Ors. v. State of Punjab (1967 AIR 1643) 

In this case, the Supreme Court held that Parliament can’t amend the fundamental Right of the Indian Constitution. Another significant issue in this case was whether Amendment is a “law” under the meaning of Article 13(2). Article 39(b) and Article 39(c) come under the purview of the Directive Principle of State Policy and in giving effect to these articles if that law violates Article 14, 19 and 31 of Indian Constitution then that law can’t be declared as Unconstitutional.

Keshvananda Bharti v. State of Kerala (1973) 4 SCC 225),          

In this case, the Supreme Court placed the Directive Principle of State Policy on a higher Position than the Fundamental Right. In the Minerva Mills case, there was a question that whether the Directive Principle of State Policy has supremacy over that. Then, in this case, the Apex Court has decided that the Doctrine of Harmonious Construction will apply. 

Both are Complementary to each other and for the better function of the State, both should be balanced.

Unnikrishna v. State of Andra Pradesh (1993 SCC (1) 645) 

In this case, the Court was of the view that Fundamental Rights and Directive principles are not exclusive to each other therefore they shouldnt be read in exclusion. The goal of the Directive Principle of State Policy can be achieved only through the means of Fundamental Right.   

Conclusion 

You can’t deny the importance of the Directive Principle of State Policy. It plays an equivalent role. You can’t abhor the Directive Principle just because it is not enforceable in a Court of Law rather they are the guiding principle for the State. It is the responsibility of the State to apply these principles while at the time of making laws. However, it is not enforceable in a court of law but the Directive Principle of State Policy is the backbone of the Fundamental Right. The main reason behind the Directive Principle is to strengthen the condition of the people. It is just like a structure and policy through which the Government makes the law. Nowadays there are many Directive Policy which are taking the shape of the fundamental right. India is a democratic country and government change after every five years and every government makes new laws so in that situation Directive Principles of State Policy plays a vital role because every government has to follow these principles while making the laws for the Country.

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

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This article has been written by Kavita Chandra, a student of Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. She has discussed the provisions relating to the execution of a decree under the Code of Civil Procedure, 1908.

Introduction

The litigation consists of three stages, initiation of litigation, adjudication of litigation, and implementation of litigation. The last stage of litigation, that is the implementation of litigation is known as an execution. Once a decree or judgment is passed by the court, it is the obligation of the person against whom the judgment is passed (judgment-debtor), to give effect to the decree so as to enable the decree-holder to enjoy the benefits of the judgment.

By execution, a judgment-debtor is compelled to carry out the mandate of the decree or order. Execution implies giving effect to an order or judgment of a court of justice. When the decree-holder gets the thing granted to him by judgment, decree or order, the execution is complete. 

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing or enforcing or giving effect to an order or a  judgment passed by the court of justice. In simple words “execution” means the process of enforcing or giving effect to the decree or judgment of the court, by compelling the judgment-debtor to carry out the mandate of the decree or order and enable the decree-holder to recover the thing granted to him by judgment. 

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be called the decree-holder,  Y is the judgment-debtor, and the amount of Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him. Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by execution through the judicial process. The principles governing the execution of a decree or order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code which provides for procedural law.  

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Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the code relating to the execution of orders and decree and stated that the Code contains elaborate provisions which deal with all questions regarding executability of a decree in all aspects. 

The Court further observed that numerous provisions of Order 21 take care of various situations providing effective remedies to judgment-debtors, decree-holders and claimant objectors. In the cases, where provisions are not capable of giving relief inadequate measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil court is the solution.

The Court further explained that the judicial quality of the remedy under Civil Procedure Code is considered to be superior as compared to other statutes therefore, the judges are expected to do better as they are entrusted with the administration of justice

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of the first instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed a decree” with the object of enabling a decree-holder to recover the fruits of the decree. The courts which fall within the said expression are as follows:

1. The court of the first instance;
2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court of first instance ceased to exist;
4. The court which at the time of execution had jurisdiction to try the suit, if the court of first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to execute a decree even in the case of any area being transferred from the jurisdiction of the court of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction of which such area has been transferred will also have jurisdiction to execute the decree, provided that the said court had jurisdiction to try the said suit when the application for execution was made.

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of the first instance to send the decree for execution to another court, the court of first instance may do the same if any of the following grounds exist:

1. if the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction of such Court;
2. if the property of judgment-debtor does not come under the jurisdiction of the Court of the first instance but it comes under the local limits of the jurisdiction of such Court;
3. if the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court which passed the same;
4. if the Court which had passed the decree considers that the decree should be executed by another court, but it shall record the reasons in writing for doing the same.

Section 39(2) states that the Court of the first instance may suo motu send it for execution to any subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or property outside the territorial jurisdiction of the court passing the decree, then such Court has no power to execute the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of Section 39 are not mandatory because the court will have discretion in the matter which can be exercised by it, judicially. The decree-holder would not have any vested or substantive right to get the decree transferred to another court.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in India. While enforcing a foreign judgment or decree in India it should be ensured that the judgment or decree is a conclusive one, given on the merits of the case and by a court having competent jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per section 2(5) of CPC, a foreign court implies a court which is situated outside India and which is not established or continued by the authority of the Central Government.

A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or judgment of such court and which directs that a sum of money is payable. However, such sum of money shall not be a sum payable in respect of taxes or other charges of a like nature or in respect of any penalty or fine. It should not include an arbitral award, even if such an award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays down the test for conclusiveness of a foreign judgment or decree, which says that a foreign judgment would be conclusive in all cases except the following :

• When a court of competent jurisdiction has not pronounced it;
• When it has not been pronounced on the merits of the case;
• When it has been based on a wrong view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
• When the proceedings carried out while obtaining the judgment are opposed to natural justice;
• When such judgment has been obtained by fraud;
• When it sustains a claim that had been based on a breach of any law in force in India.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise, such foreign judgment or decree cannot be enforced in India as such judgment or decree will not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in India are as follows:

• Where the decree or judgment has been given by a court in a reciprocating territory;
• Where decree or judgment has been given by a court in a non-reciprocating territory.

1. Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating territory shall be executed in India as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the Central Government has declared to be a reciprocating territory, by notification in the Official Gazette, and “superior courts“, with reference to any reciprocating territory, means such courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory can be enforced in India as an Indian decree by filing an execution application. A certified copy of a decree of any superior court of a reciprocating territory should be filed in a District Court, once this is done, the decree shall be executed as if it had been passed by the District Court of India and the provisions governing execution which are laid down in Order 21 of the CPC will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be filed along with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted.

2. Execution in case of decrees from non-reciprocating territories

In the cases where a judgment or decree has not been pronounced by a court of a reciprocating territory, it can be executed only when a fresh suit on that foreign judgment is filed in a court of  India which has competent jurisdiction to entertain the same.

The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction & Engineering Ltd., observed that when a decree has been pronounced by a court of a non-reciprocating foreign territory, it can not be executed unless a fresh suit has been filed by the decree-holder on that foreign decree or on the original cause of action, or both. The suit must be filed within a period of three years from the date of the judgment or decree. The person seeking execution shall show that the foreign decree passes the tests of Section 13. 

The court further observed that Section 13 of the Code provides substantive law and Section 44A of the Code is an enabling provision and it enables a decree-holder to put a decree obtained from a court of a reciprocating territory into execution. Section 13 clearly expresses the principles of private international law, that a court will not enforce a foreign judgment of a competent court. 

Execution of Indian decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of India. It states that a Court has the power to send a decree for execution to a Court outside India which has been established by the Central Government’s authority. It should be ensured that the State has, by notification in the Official Gazette, declared the said section can apply to such Court. A plain reading of the aforesaid  provision yields the following features:

1. The decree which has to be executed should be of an Indian Court and it should be for execution in a foreign territory.
2. The Central Government should have established the transferee court in such foreign territory.
3. The State Government should have declared by notification in the Official Gazette that this section will apply to the said foreign Court.

The provision, therefore, prescribes the prerequisite conditions for the execution of an Indian decree outside the country. Therefore, in the absence of either of the aforesaid conditions in Section 45, an Indian Court has no jurisdiction to send its decree for execution to a Court not situated in India.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a decree simultaneously at more than one place against the property of the judgment-debtor.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that “simultaneous execution proceeding in more than one place is possible but the power shall be used in a restricted manner, in exceptional cases by imposing proper terms so that the judgment debtors do not face any hardship because of several executions are being allowed to be proceeded with at the same time.” Therefore, simultaneous execution proceedings are not without jurisdiction or illegal. 

Moreover, as per Section 39 of the Code, simultaneous execution of a decree is permissive in nature as it provides for execution of a decree either by the Court of first instance or by the Court to which it is sent for execution. 

Procedure in execution

Section 51 to 54 of the Code talks about the procedure in execution.

Section 51

The section states the jurisdiction and power of the court in executing a decree. An application for execution of the decree can either be oral or written. The court may execute decree as per the mode of implementation prayed by the decree-holder or as the court deems fit.

Mode of executing decree

• By delivery of any property (movable or immovable) specifically decreed. 
• By sale of the property with or without the attachment of the property. If the property is situated within the jurisdiction of the court then it has the power to attach the property.
• By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned. 
• Execution by appointing a receiver
• If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in the execution of a decree then clause(e) comes into play.

Section 52

This section deals with the cases where the decree is passed against the legal representative of the judgment-debtor (deceased). So long as the property of the deceased remains in the hands of a legal representative, a decree can be executed against the property, if it is for the payment of money out of the property of the deceased and if the decree has been passed against the party as the legal representative of the deceased person.

In a situation where the property which is in the possession of the judgement-debtor came in the hands of the legal representative and it has not been duly applied by him, the court will enforce the execution of the decree against him as if the decree was to the extent passed against him personally.

Section 53

The Section states that when a property is liable for payment of a debt of a deceased ancestor and it is in the hands of a son and descendant, then the property will be deemed to be of the deceased which has as his legal representative come into the hands of the son or other descendants.

Section 54

When a decree has been passed for partition or for the separate possession of a share of an undivided estate for the payment of revenue to the government, this section comes into play. The partition of the estate or share needs to be made by the collector,  but if the collector denies making the partition of the revenue paying property, then the civil court can do so. To attract the provisions of this section, the plaintiff asking for the division of government revenue is not deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of competent jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the decree. Then, only the transferee court can entertain an application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has been sent for execution to another district, it may be executed by either the district court to which it was sent or by a subordinate court which has competent jurisdiction, to which the district court may refer it.

Section 42 provides for the powers of the transferee court and states that the Court to which a decree has been sent for execution shall have the same powers in execution of such decree as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in the execution of the decree and the power shall be exercised by the court as if the decree has been passed by it. The main object of giving such powers to the transferee court is to ensure that the judgment-debtor pays the money or gives such other thing to the decree-holder as would be directed by the decree.

The Court will have the following powers, namely:—

• To send the decree for execution to another Court under section 39.
• To enforce execution of a decree against the legal representative of the deceased judgment-debtor under section 50.
• To order attachment of a decree.

However, the court to which a decree is sent for execution will not have the power to order execution at the instance of the transferee of the decree and the power to grant leave to execute a decree passed against a firm against any person, other than a person referred to in Rule 50 of Order XXI.

Powers of executing court

The section states the jurisdiction and power of the court in executing a decree. An application for execution of the decree can either be oral or written. The court may execute decree as per the mode of implementation prayed by the decree-holder or as the court deems fit.

Mode of executing a decree

• By delivery of any property (movable or immovable) specifically decreed. 
• By sale of the property with or without the attachment of the property. If the property is situated within the jurisdiction of the court then it has the power to attach the property.
• By arrest and detention. However, this mode should not be exercised without giving a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to why he should not be imprisoned. 
• Execution by appointing a receiver.
• If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in the execution of a decree then clause(e) comes into play.

Conclusion

It clearly appears from the above discussion, that execution means implementing or enforcing or giving effect to an order or a  judgment passed by the court of justice. The provisions contained in Order 21 covers different types of situation and provide effective remedies to the judgment-debtors, claimant objectors and third parties apart from the decree-holder.

The Code takes care of the rights of judgment-debtors too. Various modes of execution of a decree are also provided by the Code which includes arrest, detention of the judgment-debtor, delivery of possession, attachment of the property, by sale, partition, the appointment of receiver and payment of money etc. Thus, the provisions are rendered effective or capable of giving relief to an aggrieved party.

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Indian This article is written by Aniket Tiwari, a 1st-year student at Law School, Banaras Hindu University. This article gives detailed information about the Fundamental Duties in a very interesting way.  

Introduction 

Our country India has the lengthiest written constitution in the world. In this, the rights of every person are kept in mind. However, the three organs of the State cannot make this country self-reliant until they get the proper support from the citizens as well. So there are certain fundamental duties which are expected from the citizens to be carried out. In this article, we will discuss the Fundamental Duties which are expected to be carried out by the citizens of our country. It is a moral obligation on the citizens to maintain the feeling of patriotism and unity among all the citizens of the country.

I remember an instance where a popular celebrity was found to breach the fundamental duty. There was a lady wearing a saree during the commentary of the live cricket match and that saree had a reflection of tricolor in it. In this case, the Indian flag seemed to touch the feet of that anchor. She was brutally criticized by various peoples and in the court, as this was a case of breach of fundamental duty so no legal action can be further taken against that anchor. 

This was an instance of the year 2007 when I was still a child and knowing nothing about the Fundamental Duties. However, today I can clearly say that it was a breach of fundamental duty. Fundamental Duties are applied only to the citizens of the country, not to any organ of the state.

Need for Fundamental Duties

It is important to understand that no democratic system could ever succeed if the citizens are not willing to participate actively by discharging their duties which are expected to be done by them. 

Our Constitution has provided us with various rights and expects us to perform certain duties as a return. Article 51(A) talks about these Fundamental Duties and has 11 fundamental duties that are expected to be performed by the citizens (there were 10 earlier and 11th was added later by the 86th amendment). First, we will discuss these 11 fundamental duties and then we can move on to the next topic whether it is needed or not.

• We need to follow our Constitution and should respect our national flag and national anthem.
• Should follow the ideals of the freedom struggle.
• Protect the sovereignty and integrity of our nation.
• Protect our nation and provide national services when required.
• Should have the spirit of a common brotherhood.
• Preserve the culture of our country.
• Protect the environment of our country.
• Generate scientific rationale for every thought.
• To protect public property.
• Strive for excellence.
• It is the duty of every parent to send their children between 6-14 years to school.    

From these fundamental duties, one can easily understand the need for the fundamental duty in our constitution. It is required to protect the sovereignty of our nation. To maintain the unity and integrity of our nation. Rights and duties go hand in hand and cannot be separated at any cost. Fundamental duties and fundamental rights are two sides of a coin which we know that it can’t be separated. Also, it is found as the need of the hour to introduce fundamental duties in our constitution.

• Maintain the Sovereign Nature of State: The main aim of the insertion of fundamental duties was to maintain the sovereign nature of our state. Although these are not legally enforced then also provide some kind of sovereign power to our state.
• To maintain Unity and Integrity of the nation: In the current scenario, we can see that people are often talking about the term “intolerance”. They are relating intolerance with unity. According to them if the people become intolerant then the compatibility with other people will be affected and ultimately the unity among different people will be affected terribly. Our Fundamental Duties help in developing tolerance among the citizens and ultimately help in developing the feeling of unity and integrity among the citizens of our country.
• In the interpretation of different statues which are made by the legislature: The Fundamental Duties help in the interpretation of the law/ statues made by the legislature. It is held in many cases that the need for Fundamental Duties in interpreting the Fundamental Right is pivotal. In the case of Mohan Kumar Singhania v. Union of India the court held that statues made according to Article 51(A) of our Constitution are valid. Thus from this, we can clearly see that Fundamental Duties help in interpreting the constitutional provision.
• In order to create a balance between the claims of the individual citizen and those of the civil society: A report was submitted by a committee led by late Justice J.S. Verma in the year 1999. The need for and importance of Fundamental Duties(especially under Article 51A) was explained by this committee. It can be found in recommendation nos 3.38.1 and 3.38.2 of the report. According to this committee, it is important to create a balance between the expectations of individual citizens and to create a civil society. To achieve this goal, it becomes important to orient the citizens of our country to be aware of their social and citizenship responsibility. And by doing this we will ultimately end up by shaping the civil society(By term ‘civil society’, we mean that a society where all become concerned and considerate of the rights of fellow citizens).
• Needed for the current situation: When our Constitution was drafted by our Constitution makers they found that they didn’t need to insert the fundamental duty in our constitution. But as time passes the need and importance of Fundamental Duty was felt that is why they were inserted later by 42nd Amendment in our Constitution. Earlier the feeling of patriotism, harmony, feeling to promote brotherhood, secularism were inherent and there was no need to put any moral or legal obligation on the citizen to the same. The feeling of serving the country and defending the country at any cost was there among the citizens of the country. The people were willing to protect the rich heritage of Indian culture.

However, as time passed people were lacking these qualities. Earlier the above qualities were taught by the family and also by the teachers in school and colleges. But with the passage of time, all the people become so busy in their life that they forget to inculcate these values among themselves. Those qualities which were once an integral part of the life of the citizens of India were found to be enforced in the form of Fundamental Duties.         

In Chandra Bhavan Boarding And Lodging Bangalore v. State of Mysore And Another, the Supreme Court held that it is not possible for our constitution to protect all the rights of citizens without assigning certain duties to its citizens. However, this decision was taken before the insertion of fundamental duties in the Indian Constitution. It clearly explains the need for fundamental duties for making a welfare society.

Source of Fundamental Duties

Nowadays we can clearly see that people will start protesting and how often it becomes violent. There are many instances where any protest became violent and people start vandalizing public property and start disrespecting the government. Here citizens go beyond the line and often forget their moral duty towards the nation. There was a similar condition in our country during the National Emergency of 1976 where the then ruling party of our country i.e. Indian National Congress formed the Sardar Swaran Singh Committee. 

The main purpose of this committee was to suggest the amendment in the Constitution of India(mainly for the recommendations of fundamental duties). This committee suggested that the citizens should know that for the enjoyment of their rights they also have some duties and they should be abided by those duties. This committee recommended 8 points of fundamental duties. These were as follows:

1. To respect the constitution of our country.
2. To uphold the sovereignty and maintain unity and integrity of the nation.
3. To respect the democratic institutions.
4. To protect our country and provide national services when asked to do so.
5. Affirm communalism in any form.
6. To promote the common good of people and cooperate in the implementation of the Directive Principle of State Policy. 
7. To safeguard public property.
8. Pay taxes according to rules and regulations.

However, all of the recommendations were not accepted and some further changes were made to the recommendations of the Swaran Singh Committee and Fundamental Duties were finally inserted by the 42nd amendment in the Indian Constitution in the year 1976. However, initially, there were only ten fundamental duties and the 11th duty was added later by the 86th amendment in 2002.

Many countries in this world have the fundamental duty mentioned in their constitution. For example, Articles 43-45 of the Democratic Republic of Vietnam talks about the duties of citizens towards the nation. Similarly, Article 194 of The Netherlands also mentions about the same. Japan has also mentioned the fundamental duty of the residents of the country. The idea of Fundamental Duties which has been mentioned in our constitution is basically taken from the constitution of Russia( then USSR). These fundamental duties are mentioned in Chapter 10 of the Constitution of the USSR. The concept of Fundamental Duties have also been discussed in the Universal Declaration of Human Rights and also in the International Covenant on Civil and Political Rights.      

Enforcement of Duties

Directive Principle of State Policy (which is given in Chapter IV of the Indian Constitution) and Fundamental Duties needs to be read together. Both have a moral obligation on the state and citizens respectively.

Fundamental Duties do not have any legal devour for its violation. There are six positive duties which are expected to be done by the citizens of our country and there are five negative duties which are not expected to be carried out by the citizens. There is no legal enforceability for its breach, it is because of the nature of the Fundamental Duties. We can clearly understand that it is practically impossible to enforce these duties.

It is important to know that Fundamental Duties are only enforceable for the citizens holding public offices. It is possible by way of departmental rules of conduct and by making suitable legislation. There are appropriate sanctions for the breach of Fundamental Duties in Public Offices.

There are many places in India where a person holding public office can be barred from departmental promotions, also their increment can be refused. An officer who takes part in strikes and organized a rally against the institution can be made to give up his salary for that day.

Section 3 of the Prevention of Insults to National Honour Act, 1971

Prevention of Insults to National Honour Act, 1971 is an act that prevents the citizens of our country from dishonoring the country. It includes dishonoring the National Flag and Constitution of India. However, these are reasonably enforceable.

Section 3 of this act talks about the prevention of singing of the National Anthem. All the citizens should be punished if they intentionally prevent the singing of the National Anthem or causes disturbance to an assembly which is busy in such singing. For instance, if a person starts making noise in a place where an assembly is doing the National Anthem he would be punished under this article.

In the recent case of Shyam Narayan Chouksey v. Union of India in which Hon’ble Justice Deepak Misra and Hon’ble Justice Roy passed an interim order making it mandatory to:

1. i) Play the National Anthem before the screening of each movie.
2. ii) Making it compulsory for all viewers to stand still during the National Anthem.

This judgment was found to be violating Article 19(1) of the Indian Constitution as the unreasonable restrictions were put on the citizens of the country. Article 19(1)g clearly mentioned that the state can formulate any law which puts a restriction on Article 19(1) however these restrictions should be reasonable. The decision, in this case, was found to be violating the fundamental right of citizens. It was found to be violating the Fundamental Rights as it put unreasonable restrictions that cannot be done by the State. As our country is a liberal country where everyone has the right to think independently, express their views without any obligation and follow their belief without any compulsion.

This case brought turmoil in the Indian society as many people supported this verdict as they found it to protect the honor of our nation. There were also people who were not satisfied with the verdict of the Court as they find it to violate the fundamental rights of citizens. It was a landmark case in the Indian Judicial System. How can one be compelled to stand during the National Anthem without his will? Also, how can the patriotism of a person be judged by this? Here, in this case, the Supreme Court clearly held that the Fundamental Duties are above Fundamental Rights. Here there were many loopholes in the Supreme Court decision.

M.C. Mehta v. Union of India, 1988 SCR (2) 530

The Fundamental Duty, given in Article 51 A(g) of the Indian Constitution clearly mentions the duty of the citizen to protect the environment. According to this article, it is the duty of every citizen to protect and preserve the natural environment (natural environment includes forest, rivers, lakes, and wildlife). A healthy environment is an essential element of the welfare of any society.

In the case of M.C. Mehta v. Union of India Article 51(g) was enforced by the Supreme Court. In this case, 274.50 million liters of sewage water was being discharged into the river Ganga on a daily basis. This case is about the city of Kanpur, which is the biggest city on the bank of river Ganga. Here water pollution was to a great extent that’s why the petitioner filed a petition in the Supreme Court. Here Apex Court of the country found that Municipal bodies and industries in Kanpur were the main reason for polluting the river. Therefore judgment was taken against Kanpur Nagar Mahapalika. In this case, Nagar Mahapalika and Municipal Boards were held liable because it is their responsibility to maintain and protect the environment in the areas of Kanpur.

Further here the Apex Court held that as there are many grave consequences of water and air pollution and also as there is a need to protect and improve the natural environment it became a moral obligation on the part of the government to ensure the protection of the environment. Also, it is one of the fundamental duties which is given in our constitution which makes a moral obligation on the part of the citizens as well to ensure the protection of the environment. The Supreme Court held that it is the duty of the Central Government to direct all the educational institutions of our country to teach and train citizens about the protection and improvement of the environment for at least one hour a week.

Further Supreme Court held that the Central Government needs to get the textbook written for the same purpose. These textbooks would be further distributed among all educational institutions of our country. There should be training for teachers who are going to give such educational teaching to children. 

Fundamental Duties: An Aid to the interpretation of Constitutional provisions

By reading all the Fundamental Rights and Fundamental Duties together we can make a clear understanding that there is a direct relationship between the Fundamental Rights and Fundamental Duties. They are connected in some or other way. It often becomes difficult for one to relate to them. But if we read it together the task becomes much easier. For example, Article 21(A) is similar to Article 51 A (k). Both of these articles talk about the education of the child between 6- 14 years. While Article 21(A) put the obligation on the state to see that no one is deprived of the Right to Education on the other hand Article 51 A (k) makes the duty of the citizen to make sure that no children are deprived of going to school. Thus here ultimate aim of the constitutional provision under Article 21(A) of providing education to children is achieved by this Fundamental Duty (Article 51A (k)). Thus here by this illustration, we can clearly understand that Fundamental Duties helps in the interpretation of any constitutional provision.

We can’t deny the importance of Fundamental Duties simply as they are not enforceable in a Court of Law. Take Another instance, Article 21 which talks about the “Right to Life and Personal Liberty” is achieved by Article 51A (g) which is a Fundamental Duty. Right to Life and Personal Liberty include the Right to a Healthy Environment. It is (Article 21) explained by the Supreme Court in a positive way and the Supreme Court regarded that “Right to Life” means “Right to Clean Environment”. Also talking about Article 51 A(g), it makes the duty of the citizen to protect and improve the natural environment. Thus here also we can see that the right of the citizen to get a healthy environment is ultimately achieved by making it the Fundamental Duty of the citizen to protect it.

AIIMS Students Union v. AIIMS, AIR 2001 SC 3262

In the case of AIIMS Student Union v. AIIMS, there was a test of merit (based on marks) over reservation in the admission process for postgraduate medical courses of the All India Institute of Medical Sciences.

In this case, three meritorious students went to Delhi High Court by filing a writ petition for the purpose of getting admission in the prestigious institute of medical science. Here there was a reservation of 33% of seats to those who have graduated from this institute itself. The issue raised was whether AIIMS has the right to give such a reservation to the students. Here the Supreme Court found it unreasonable to reserve a seat for the college student itself and quash such acts of the AIIMS as it was against the constitution.

Here the Supreme Court clearly held that though the Fundamental Duties though may not be enforceable by a writ of the Court they provide a valuable guide in the interpretation of the constitutional provision. Here, in this case, the State (which includes citizens of our country failed) to take care of fundamental duty i.e. to strive towards excellence of individuals and collective activity in order for the betterment of the nation. The Fundamental Duties do not expressly cast any duty on the State, the duty of each individual became the collective duty of the State.

Aruna Roy v. Union of India, AIR 2002 SC 3176

In the very famous case of Aruna Roy v. Union of India PIL was filed in the Supreme Court. It has been contended that the National Curriculum Framework for School Education (NCFSE) which was published by NCERT is against the constitutional mandate, anti-secular and without consultation with Central Advisory Board of Education (CABE) and therefore it needed to be quashed. The implementation of NCFSE was challenged as it did not get the approval of CABE.  Also, NCFSE was found to be against the constitution as it violated the basic principle of secularism.

However, the petition was canceled as the Supreme Court did not find any reason to cancel the framework (NCFSE). What is given in our constitution is that students should be taught that every religion is common/ equal? Further Article 51A (e) clearly explains this condition. According to this fundamental duty, it is the duty of the citizen to promote harmony and brotherhood among the people of a different religion. And in order to achieve these universal values like truth, right conduct, love, and peace should be the base of education. 

The state of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, AIR 2006 SC 212

Nowadays one of the most rising issues which are often in the news is about the cow slaughtering. The case of the State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat clearly explains all the aspects of cow slaughtering. The petition was filed challenging the amendments made in the Bombay Animal Preservation and that amendment was applicable to the state of Gujarat. The amendment puts a complete ban on the slaughter of bulls and bullocks. The petition challenged that as the cows and bullocks above 16 years do not possess any economical benefit so they can be slaughtered by those who are willing to do it.

However, the Apex Court held that the economy of Gujarat is still dependent on agriculture. In agriculture processes, these animals are of great importance. It, therefore, becomes important for the preservation and protection of these animals. They can be used for the purpose of creating biogas after they have become old.

The Supreme Court also held that the amendments do not violate Article 14 and Article 19 of our Constitution as this amendment put a reasonable restriction on these rights of the citizen.

Also, the Supreme Court held that according to Article 51 A (g) which puts a duty on the citizen to protect and improve the environment and here environment including forests, lakes, rivers, and wildlife. So the court held that according to this Article of our constitution the state can make laws for the protection of the environment. This Article helps in the interpretation of Article 21 of our constitution according to which as mentioned earlier in this article talks about the Right to Clean Environment.

Government of India v. George Philip, AIR 2007 SC 705

In this very famous case of Government of India v. George Philip, the purpose of compulsory retirement was challenged by the respondent. The respondent who was working in BARC was granted two years left at the starting of his service by the department. It was given to him to carry out advanced research training. After many reminders, the petitioner overstayed in the foreign and an inquiry was constituted for the same purpose and charge against him was proven. He was allowed (decision of the High Court) to join his service but no wages were decided to be given to him for those days which he was not able to attend the service. But the Supreme Court overruled this decision of the High Court. The reasoning given by the Supreme Court behind its decision was that the earlier decision i.e. the decision of the High Court was against Article 51A(j).

Article 51A(j) clearly says that it is the duty of one to always strive towards excellence in all spheres of life of an individual and it also talks about the collective activity so that the nation keeps rising higher in an endeavor and this can not be achieved until the employees maintain the discipline.

Conclusion

At last, we can conclude that in this article we have come to know about every aspect of Fundamental Duties and by reading every aspect of it we can clearly understand the need and importance of Fundamental Duty. It was added in our constitution as our government realized that a civil society (discussed earlier in this article) can not be made by the state only. The citizens of our country need to play a vital role in achieving the basic aim of our constitution. They can do this by following their duties towards the nation as mentioned in Article 51A of our Constitution.

Also one can not ask for a right if one is not doing the duty assigned to them.

References

1. SCC Online.
2. D.D. Basu -” Constitution of India”
3. https://kjablr.kar.nic.in/sites/kjablr.kar.nic.in/files/05.%20Fundamental%20Duties.pdf
4. https://blog.ipleaders.in/national-anthem-shyam-narayan-chouksey-case/

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This article is written by Dhruv Vatsyayan. He is a student of Law School, Banaras Hindu University and currently pursuing his 1st year of B.A.LL.B.(Hons.). In this article, he discusses the Union Legislature, i.e the Parliament.

Introduction 

Parliament, which is a platform to do a discussion on issues having social and civic importance in any popular democracy, is a cornerstone of democratic values in any representative democracy.

Parliament may be perceived as a political institution to ensure the realization of what Mahatma Gandhi once envisaged that, Democracy essentially is the art and science of mobilizing and utilizing the entire physical, economic and immaterial & metaphysical resources for the common good of all the people.

Though the origin of the concept of Parliament traces to European nations since medieval ages, it has been an indispensable part of the Indian democratic structure since the inception of democracy in India.

The stalwarts of Indian freedom struggle, legal experts and other members of the Constituent Assembly, arrived at a conclusion of endorsing a parliamentary system of government after an extensive and in-depth study of the Constitution of other nation-states.

After the first general election in the year 1952, both the houses of parliament came into existence.

It must be noted that after the Constitution was adopted and till general elections, i.e between 1950 to 1952, the Constituent Assembly itself functioned as the provisional legislative body.

Composition of Parliament

The Parliament in India comprises the President of India, the Upper House i.e. Rajya Sabha and the Lower House i.e. Lok Sabha. 

Hindi names of both the houses, i.e. Rajya Sabha and Lok Sabha had been adopted by the Upper House and the Lower House respectively.

The Constitution describes the structure of parliament in Article 79. It states that the Parliament comprises of the President and the two houses i.e. the Lower House or House of People and Upper house or Council of States.

To understand the functions served by the President, we can say that the post of president is somewhat equivalent to the role and functions of the Queen or Crown in the United Kingdom.

Even though the President is a part of the legislature, he doesn’t sit in parliament.

However, a bill passed by houses can’t be made law without the assent of the President.

Now, let’s discuss the Upper house or Rajya Sabha.

The Rajya Sabha

Rajya Sabha is the Upper House of the Indian Parliament.

This house is permanent in nature as it can never be dissolved. This is because every member elected to the Rajya Sabha serves for a term of 6 years and one-third of members do retire biennially, while the other members continue their tenure. It’s like an election in different batches.

Retired members are subject to re-election.

This house consists of 250 members out of which, 238 members are elected by means of a single transferable vote. 12 members are nominated by the President on the advice of the council of ministers.

The method of election of these members is listed in Article 80(1) of the Indian Constitution.

It says that the members would be elected by the elected members of respective state assemblies in accordance with proportionate representation of every state.

This provision thus reflects the federal nature of the Council of States, where every state is represented proportionally.

However, the number of members representing each state varies from 1 to as large as 31 (for Uttar Pradesh).

Article 84 of the Indian Constitution provides for the qualification to become a member of Rajya Sabha, i.e. one must have the nationality of India, doesn’t holds any office of profit and must have completed 30 years of age. Article 102 of the Indian Constitution provides for conditions on which one can be disqualified from either of the houses. It says that one must be disqualified as a member of the house if,

• he/she holds any office of profit
• he/she is of unsound mind
• he/she is discharged insolvent
• he/she is not a citizen of India and has voluntarily accepted the nationality of other nations.
• he/she is disqualified under any law made by the Parliament

Chairperson and Deputy Chairperson of Rajya Sabha

In Rajya Sabha, the Vice-President of India presides of its sessions and is ex-officio chairperson of the house.

However, to take care of its day-to-day affairs, and to preside over the sessions in the absence of the Chairperson, i.e. the Vice-President, a member of the house itself is chosen internally by the Rajya Sabha as Deputy Chairperson of the house.

Position in other Countries

It’ll be an interesting task to look into other democratic systems if something like Rajya Sabha or Upper House exists there too.

Most of the nation-states in the European Union have a council of states. And almost all of them functions as a consultative or advisory body to the president or the government.

For example, the Belgian Council of States is a Judicial and advisory body, which assists legal advisory in matters of draft bills to the executive.

While in China, the Chinese State Council happens to be the highest administrative body of the country.

In Portugal, the Portuguese State Council serves as an advisory body of the President of the state.

In the United States, there is no such body resembling the functions that Rajya Sabha serves. However, it has a bicameral legislature and is comprised of House of Representatives and the Senate. Interestingly, the number of senators for each administrative unit is fixed, i.e. 2.

Let’s discuss the utility of Rajya Sabha and the need for the second house.

The utility of the Rajya Sabha

Regarding utility and need of a second chamber in the parliament, an extensive debate took place in the constituent assembly while framing of the constitution.

Ultimately, it was agreed to adopt a bicameral system of legislature and thus the Rajya Sabha was formed as the second chamber with a different method of election and different composition altogether.

The utility of the Rajya Sabha can be understood by this hypothetical situation. Suppose, after general elections, a single political party comes to a thumping majority in the lower house.

Now, having this majority, they can pass any bills or piece of legislation even if the same is not fruitful to the people and democracy unless there is a system of check.

So, this second house serves as a safety valve and a system of check regarding all the functions of the lower house.

The Lok Sabha

The provisions of Article 331 of the Indian Constitution provides for the existence of the house of the people and shall consist of a maximum of 530 chosen members from different states, not more than 20 members to be chosen from the Union Territories. If President feels that there is a lack of representation of the Anglo-Indian Community in parliament he may nominate two members of the Anglo-Indian Community.

Some seats are also reserved for the Scheduled Caste and Scheduled tribes communities especially laid aside for them all over the country.

The representation is allocated to the states and the Union Territories according to the Representation of the people Act passed by the Parliament of India in 1951.

The Lok Sabha, unless dissolved midway, continues its tenure for 5 years from the day of its first meeting.

Territorial Constituencies

As the members of the Lok Sabha are elected directly, it needs to have a proper division of the country into smaller units.

And for this purpose, India is divided into small territorial constituencies.

These constituencies are sorted out in such a way so that each Indian state has an adequate share of members in the house and is proportional to its population.

To keep this division democratic, the constituencies are carved out in such a way so that the ratio of the number of representatives and the population of that particular constituency should remain the same across all the constituencies. 

Tenure of Lok Sabha 

The members elected by Universal Adult Suffrage serve their offices for a tenure of five years.

However, if devoid of a popular majority, the government can fall and the house can dissolve midway anytime before the completion of five years.

Qualification for Membership of Parliament 

Qualifications necessary for becoming a member of parliament is provided in Article 84 of the Indian Constitution.

Following are the qualifications:

• he/she should be a citizen of India.
• In the case of Upper House,i.e. Rajya Sabha, he/she should have completed at least 30 years of age and for Lower House,i.e. Lok Sabha, he/she should have completed 25 years of age.
• he/she need to comply with other such qualifications as prescribed in any law by the Indian Parliament.

Now. let us take a look into grounds on which one can be disqualified as a Member of Parliament.

Disqualification 

Now, Article 102 of the Indian Constitution lays the grounds on which a legislator can be disqualified as a member of the Parliament.

Those grounds are:

• If he/she holds any office of profit under the Government of India or any of the states;
• If he/she is declared of unsound mind by a Court;
• If he/she is an undischarged insolvent;
• If he/she is not a citizen of India anymore;
• If he/she is disqualified by virtue of any law passed by the parliament of India.

Office of Profit

As it is a ground for disqualification as a member of Parliament, it is essential to understand what exactly does the office of profit means.

Office of profit refers to any post or position under central or state government which fetches salaries, bonuses, perks and other benefits to the individual.

However, the quantity of profit gained is irrelevant under this disqualification.

Under section 9 of Representation of people Act and Article 191(1)(a) of the Indian Constitution, it is envisaged that no representative should bear any office of profit.

Disqualifications under the Representation of Peoples Act

A member of parliament can also be disqualified under the Representation of Peoples Act, 1951. This act was passed by the Parliament under Article 327 of the Indian Constitution, which provides for the procedure and the conduct to be followed during the election to Parliament and state legislatures.

Following are the grounds:

• If he/she is convicted for indulging in corrupt practices during the election or any other election-related offenses.
• If he/she is convicted under certain acts of Indian Penal Code, Unlawful Activities Prevention Act, Prevention of Terrorism Act 2002, etc.
• If he/she is convicted under any law that results for at least two years of imprisonment and will remain disqualified for a further 6 years after his release.
• If he/she is convicted under any law relating to drugs or dowry prevention.
• Dismissal from the government due to disloyalty or involvement in corrupt practices.
• If he/she fails to lodge their election expenses.

Disqualification on ground of defection

The need for an anti-defection law was felt in India when in 1967, one legislator from Haryana, Gaya Lal, changed his party thrice in a single day. Also, the General Elections of 1967 saw a great number of defections was seen as around 150 MPs flitted their political parties.

However, an act tackling such problems was passed by Parliament in the year 1985.

With 52nd amendment to Indian Constitution, provisions regarding disqualification of the basis of defection were inserted in the 10th schedule of the Indian Constitution.

As per the provisions, the members can be disqualified on the following grounds:

• When members of a political party don’t abide by his/her party leadership or voluntarily resigns from the party.
• When members don’t votes or refrains from voting according to his/her party whip.
• An Independent member stands disqualified if he/she joins a political party.
• For nominated members, if he/she is not a member of any political party, he/she if want, has to join a political party within 6 months of nomination or membership stands canceled.

However, voluntarily giving up membership has quite a broader meaning. In the case of Ravi Naik vs Union of India, giving up membership doesn’t necessarily mean resigning, but it can also be inferred by the conduct of the member.

Now let’s look for which people have the authority to disqualify the members.

The chairman, in the case of Rajya Sabha and the Speaker, in the case of Lok Sabha has powers to disqualify a member on grounds of defection.

And, regarding complaints of Speaker/Chairperson involved in defecation, a member elected by the house itself will take necessary actions regarding the same.

This law also has some exceptions, specifically when political parties merge with some other political party.

Vacation of seats

Now, the question comes in our mind is, what if a member vacates his seat?

And what are the grounds of vacation of seats?

So, to deal with such situations, our Constitution provides us with Article 101 in the Fifth part of the Indian Constitution.

Thus, as envisaged under this Article, a member must vacate his/her seat if

• He/she is elected in both houses as this article clearly states that no person shall be chosen as members in both the houses.
• He/she becomes a member of the Central legislature as well as a state legislature, then he must vacate his seat in the house.
• He/she becomes subject to any of the disqualifications mentioned by Parliament
• He/she, without permission of the speaker, is absent from the house for consecutive 60 days

And, after a seat is vacated in either of legislative houses, polls are conducted to fill the vacancy.

Speaker and Deputy Speaker of Lok Sabha

To preside over sessions of the house, the Speaker of the Lok Sabha is elected among the sitting members of the house. He/she is generally elected in the first meeting of the Lok Sabha and serves a tenure of 5 years along with that particular Lok Sabha. And as normally practiced, the Speaker is a member of the ruling party or alliance.

Regarding the election of the Speaker, sitting MPs proposes names and the same are notified to the President of India.

Then a date for the election is notified.

Now, if only one name is proposed by the MPs, no formal voting happens but, in a case where a proposal for more than one name shows up, a division vote is organized and the Speaker is chosen accordingly.

Inter alia (among other things), one of the main functions of a Speaker is to decide upon whether a bill is a money bill or not.

His/her function also includes maintaining decorum and discipline in the house and punishing those who are not complying with his guidelines. Also, in the order of precedence, he/she is ranked 6th, parallel to the Chief Justice of India.

According to Article 94 and Article 96 of the Indian Constitution, a Speaker can be removed by a resolution passed with an effective majority, i.e More the 50% of the members of the house.

He/she can also be removed according to The Representation of the People Act and when a bill is wrongly certified as a money bill by the Speaker.

The Deputy Speaker of the Lok Sabha serves as a Number-Two, who in the absence of the Speaker carries forward his roles and functions.

He/she also has a tenure of 5 years and can leave the post midway if he/she ceases to be a member of parliament.

Sessions of Parliament 

Now coming to Sessions of the Parliament, let’s first understand what exactly a session is.

So, whenever either of the houses meets for the conduct of its business, for the period it meets, is called a session.

With not more than a 6-months gap, the president can summon either of the houses for conducting a session.

Thus, the Parliament must necessarily meet at least two times a year.

As per convention, three sessions are conducted by the Indian Parliament in a year:

• Budget Session between February and May.
• Monsoon Session between July and September.
• Winter Session between November and December.

Prorogation

Prorogation of the house essentially means termination of a session of the house.

The notice of prorogation is issued by the Speaker or the Chairperson of the House. After a session is ended, the presiding officer adjourns the house sine die, i.e with no appointed date for resuming the house and then after a few days, the notice is issued.

However, houses of the Parliament can also be adjourned or prorogued when in session.

This is provided under Article 85(2) of the Indian Constitution.

Dissolution

The power to dissolve the Lok Sabha is placed with the President of India in accordance with Article 85 of the Indian Constitution.

In two cases, dissolution of the Lok Sabha is possible:

• When the term of the Lok Sabha, i.e 5 years complete and is dissolved by the leader of the ruling party.
• When the government loses the majority and floor test is about to happen, in that case, the president can dissolve the house.

And, it is completely different from adjournment or prorogation as Dissolution means the end of the term of that particular Lok Sabha.

Effect of Dissolution on the business pending in the House

Articles 107 and 108 of the Indian Constitution deals with these situations.

It states that whenever the Lok Sabha is dissolved, be it after completing its whole term or midway, all the business, which includes bills, notices, petitions, motions, etc, do lapses.

When a new Lok Sabha is elected and it begins with its sittings, all the motions, bills and notices need re-introduction in the house.

Functions of the Parliament

From the gist of what our constitution provides, we may infer that Parliament is an institution which exerts an amalgamation of executive and legislative authority.

There are certain functions that the Parliament of India serves.

Following are the functions:

• Legislation 

The basic function which the Parliament serves is of legislating.

Legislating essentially means making laws and provisions for the smooth functioning of the government and the nation at large.

This function is embedded in Article 107-108 of the Indian Constitution.

Raison d’etre of this function is the realization of the constitutional objective of India as a welfare state.

• Providing the cabinet 

Another basic function of the parliament is providing the cabinet, which stands responsible for the Parliament itself and provides the proper aide to the President.

However, the cabinet is accountable only towards the Lok Sabha, it may consist of members from Rajya Sabha too.

• Control of the cabinet 

It is a function of the parliament to see if the cabinet is able to maintain its trust through the majority of the ruling party, i.e. if the ruling party loses trust or majority, the cabinet must have to resign.

The same is expressed in Article 75(3) of the Indian Constitution.

• Criticism and evaluation of the cabinet

Criticizing and evaluating the cabinet and the ministers is the foremost function of the parliament.

As the cabinet is responsible for the Parliament, evaluation of the actions and decisions of the cabinet must be done by other members. This serves as a safety valve and provides for a system of checks.

It bars the government to act in a dictatorial way while avoiding the public interest. This function can be discharged by both the houses of the parliament.

• Financial control

The legislature has exclusive authority to allocate expenditures and finances for public services and other affairs. It also provides with the measures to be taken for raising revenue and receipts to be appropriated according to needs.

These authorities are wielded in such a way that keeps the democracy basic essence of our constitution alive.

Ordinary Bill

Any bill, which is proposed in the Parliament is an ordinary bill except those which get the certificate of money bill by the Speaker of the Lok Sabha.

It can be proposed/introduced in either of the houses, i.e. Rajya Sabha or Lok Sabha.

It can be introduced by a minister as well as a private member and those introduced by a private member is known as a private member bill.

For introducing such bills, the president’s recommendation is not required and necessary.

Unlike the money bill, these bills can be rejected or amended even in the Rajya Sabha and the Upper House can detain such bills for a period of up to 6 months, not further than that.

Also, if such bills were defeated in the Lok Sabha, it may lead to the resignation of the whole government if introduced by a member.

Once sent for approval of the President, these bills can be accepted, rejected or returned for reconsideration to the house.

Joint Sitting of Houses

In case of a deadlock between both, the houses of parliament regarding the passing of a bill, the President of India may summon a joint sitting of both the houses.

The joint sitting of both the houses is presided over by the Speaker of the Lok Sabha and in his absence, the Deputy Speaker of the Lok Sabha discharges this function.

Article 108 of the Indian Constitution provides provisions for this mechanism which breaks the deadlock between both the houses.

According to this Article, a joint session can be called upon only if:

• A bill, after being passed out in one house, and the other house rejects it;
• One of the houses doesn’t accept the amendments passed by the other house;
• When 6 months elapse, and the other house doesn’t pass the bill.

There are some exceptions available to the Joint Sitting of the Houses:

• Money Bill: According to the Constitution, Money bills only require approval from the Lok Sabha, thus, in case of money bill the situation arises for a Joint Sitting of the Houses.

• Constitutional Amendment Bills: A Constitutional amendment bill can be passed on through a 2/3rd majority of both the houses and doesn’t have a provision for Joint Sittings in case of disagreement between the houses.

President’s Assent

According to Article 111 of the Indian Constitution, when a bill is passed by both the houses of the Parliament it must be presented to the President and he/she needs to declare that he/she assents to the bill or withholds assent.

Money Bill

According to Article 110 of the Indian Constitution, a bill can be defined as a money bill if it deals with imposition, abolition, alteration or regulation of any taxes and such bills can only be introduced in the Lok Sabha and only by a member having a ministerial portfolio.

It can only be introduced on the recommendation of the president. Also, it requires certification of the Lok Sabha Speaker, when transferred to the Rajya Sabha.

If this bill is defeated in the Lok Sabha, the entire cabinet has to resign, and also, it can’t be returned for review by the President.

Financial Bills

Financial bills are quite similar to those of Money bills.

To understand what a Financial bill is, we may assert that any such bill which carries some of the provisions of Article 110 of the Indian Constitution relating to expenditure and taxation is a financial bill.

Such bills are introduced only in Lok Sabha on the recommendation of the President and it needs to be passed in both the houses.

Now, the question which arises is what are the differences between a Money Bill and a Financial Bill?

To understand easily, we may say that Money Bills are a kind of subset of Financial Bills, i.e. all the Money Bills are Financial bills but the same is not true vice-versa.

The distinction between Money Bills, Financial Bills and Bills involving expenditures

The major difference between a Money Bill and a Financial Bill is that Rajya Sabha can’t amend the Money bill but this is not the case with the Financial Bills.

Also, a Money Bill strictly deals only with the provisions as laid down in Article 110 of the Indian Constitution while a Financial bill can also cover other provisions than taxation and expenditure.

A Money bill needs certification from the Speaker of the Lower House, while a Financial Bill doesn’t need any such certification.

Annual Financial Statement (Budget)

The Annual Financial Statement or as often called, budget is an important document dealing with the finances of a nation.

Provisions relating to Budget are discussed in Article 112 of the Indian Constitution.

The budget is presented in such a way that expenditure and receipts regarding fiscal and deficits of the current year, the previous year and the year for which budget is presented.

The Annual Financial Statement consists of three parts i.e Consolidated fund of India, Public Account of India and Contingency Fund of India.

It also includes an account of loans advanced by the government or the loans to be recovered by it including borrowing from Reserve Bank of India.

Discussion and voting on Budget

So, after a budget is proposed by the Finance Minister, it is followed by Extensive discussion in the house and lastly, voting is done.

The voting is done on the Demands of Grants.

Now, what are the Demands of Grants?

Demands of Grants basically mean expected spending by a particular department or ministry. Now after this voting is done, the parliament happens to be in recess.

After the recess is over, then all the standing committees submit their respect reports followed by discussion and voting.

This is all how discussion and voting are done during the tabling of the budget in the budget session of parliament.

Appropriation Bills

After the discussions are over on budget and expenses, then an appropriation bill is tabled by the government if it intends to withdraw funds from the Consolidated Fund of India. 

This is done when the government wants to withdraw the funds for expanding and meeting the expenditure.

It must be noted that this bill is introduced only in the Lok Sabha.

Supplementary Additional or Excess Grants 

Excess Grants are granted to the Government when the amount authorized for a particular service by virtue of a law is found to be insufficient.

These funds are granted by the President of India.

The Constitution of India discusses this in Article 115 of part V.

Also, when the actual expenditure incurred on a certain service or scheme is more than what was allocated for the same, then the Comptroller and Auditor General takes action and brings notice to the Parliament.

After that, the respective ministers raise demand for excess grant and then the procedure regarding the same is followed by voting and discussion. 

General Rules of Procedure

The General rules of procedure deal with the procedure and conduct to be followed in both the houses. It lays down the parliamentary procedures and rules according to which the parliament must function. 

It also lay down process according to which the parliament must table and pass a bill or other kinds of legislation. It also deals with the structure and function of the standing committees on different matters

These rules are fundamental for the genuine working and functioning of the Parliament.

Parliamentary Control over Financial Matters

Financial matters in India are largely controlled by the Parliament. This control includes control over revenue matters and expenditure related issues.

As stated in the Constitution in Article 265, no tax can be collected or levied by the executive authorities without any law supporting it. So, if tax is imposed upon anyone without having legislative backing, then the person can go to court for redressal.

As Parliament holds control over the Consolidated Fund of India, its control over the expenditure is pivotal. As the Consolidated fund of India is the reservoir of all the expenses and finances of India, the parliament thus exerts full control over expenditure.

Parliamentary Committees

Parliamentary committees are made to ease the scrutinizing of the legislative and other matters of the Parliament. Broadly, these committees can be classified as Standing committees, which are permanent and ad hoc committees that are temporary and are constituted according to the need.

Among the standing committees, the estimates committee, public accounts committee and public undertakings committees are the major ones.

However, 17 different standing committees for different departments are also constituted for easing the business. Some such committees are committees of petitions, a committee of privileges, committee on papers laid, etc.

While the Ad Hoc committees are more of temporary committees. These committees address matters like committees on five-year plans, the joint committee on Bofors agreement, committee on food management in the parliament, etc.

Language to be used in Parliament

The official languages of India can be used in the Parliament of India, i.e. Hindi and English.

Article 343 of the Indian Constitution provides for the official language of India. However, the members can use any of the scheduled languages while in discussion or debate.

Restriction on discussion in Parliament

To keep the doctrine of Separation of Power intact, the Constitution of India forbids the Parliament to legislate and discuss certain matters.

Article 121 discusses these provisions.

This includes any discussion regarding the conduct of the judges of the Supreme Court or judges of any of the High Courts. However, the discussion can happen in the question of the impeachment of a judge.

Courts not to inquire into proceedings of Parliament

This may be seen as vice-versa provision of Article 121. Article 122 of the Constitution provides for the provision that the courts can not inquire into the proceedings of the legislation.

Also, any officer or member of the Parliament while exercising his powers endowed upon him/her by parliament is not subject to the jurisdiction of any of the Courts.

The Comptroller and Auditor-General of India

In the words of the architect of the Indian Constitution, Dr.B.R. Ambedkar, the Comptroller and Auditor-General of India is one of the most important officers which the Constitution provides for as he/she looks after finances and expenditure by the Parliament.

CAG of India is not accountable towards anyone but the public as he/she looks after the public purse of the nation.

Article 148 of the Constitution talks about the appointment of CAG and its oath. He/she also derives authority from The Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971.

Duties and Powers

The major duties and functions of the CAG, according to the Indian Constitution are:

• All the accounts of Union Government and State Governments come under the ambit of Audit by the CAG.
• All the expenditures from the Contingency Fund and the Public Account are also audited by the CAG.
• CAG also audits all the expenditures and receipts by all the Government authorities and Undertakings.
• CAG can also audit account of the local bodies on request of the President or the Governor.
• CAG also acts as a guide to the Public Accounts Committee in Parliament.

Conclusion 

Therefore, in this exhaustive article about the Indian Parliament, we discussed almost all the aspects and functions of the Parliament.

Parliament is an essential political and constitutional institution that forms the bedrock of values reflecting those of democracy and representation of people and thus is fundamental in achieving the constitutional goals. 

References

• http://prsindia.org/theprsblog/anti-defection-law-explained
• http://prsindia.org/
• https://knowindia.gov.in/
• Basu, D.D, Introduction to the Constitution of India (2011), LexisNexis 

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 Parliament of India Under Indian Constitution appeared first on iPleaders.

This article is written by M.Arjun, a 5th-year student studying in Government Law College, Thrissur. This article deals with the Essentials of a Video Game Licensing Agreement.

Introduction

Gone are the days where video games were used to be a youngster’s affair. The video game industry has boomed in the past few years, placing it neck to neck with pioneers of the entertainment industry such as the traditional film industry and the music industry. The gaming industry has attracted a lot of popularity and monetary value in the recent past. Popular titles such as PUBG, Fortnite, and PES need no introduction. Video games are a creation of the mind and are under the ambit of intellectual property laws.

Like any intellectual property, the creation of a video game meets its purpose when it is shared with its potential users or current users. A video game licensing agreement facilitates this purpose.

A video game licensing agreement involves parties such as the video game developers, publishers, and sports organizations as in the case of “FIFA”. Video games are normally developed and licensed by gaming corporations such as Electronic Arts, Ubisoft, Konami, and so on. They obtain suitable licenses from organizations such as FIFA, WWE and further license it to the end-users through an end-user licensing agreement. 

Need For A Video Game Licensing Agreement 

As mentioned above, a video licensing agreement may involve multiple parties. Hence, it is quite essential that each party is clear about their rights and obligations. Developers and publishers of video games want their work to reach a good level of acceptance, thereby driving more revenue towards them.

They also have to make sure that the end-users of their creation are imposed certain restrictions so that the merchantability and commerciality of the video game are preserved. Meanwhile, there are entities such as sports and media organizations whose licenses are required.

For instance, video games related to football are mandated to obtain a license from FIFA for using certain attributes such as the name of a team, player, character of the player, and other related trademarks. A lot of intellectual property is involved in the creation of a video game. The gaming industry at present is witnessing a proliferating growth so as the disputes, particularly over intellectual property. 

So it is essential that a well-crafted video game licensing agreement is in place for the publication of video games. Besides, a video licensing agreement plays a crucial role in the manufacturing, advertising, and marketing of video games. A video game cannot be effectively distributed by skimping on necessary licensing agreements.

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Essentials of A Video Game Licensing Agreement

Now let’s discuss some key clauses that make up a video game licensing agreement:

Representation

In the representation clause, the licensor represents and specifies all the rights available for him. For instance, Electronic Arts commonly known as EA sports obtains licenses from FIFA for using the FIFA branding and other related trademarks. As a result, EA sports can use the name and trademarks of FIFA in their game. 

Whereas PES, a rival football game having a lot of similarities with FIFA cannot use the name “FIFA”in their game. In addition, they could not obtain certain licenses from various football leagues and teams for using their trademarks in the video game.

The representation clause mentions all the licenses which the licensor has obtained in connection with the video game. Further, the representation clause specifies all the rights available to the licensee. 

License Grant

In this clause, the licensor specifies the nature of the license and how the licensee can use the rights provided by him. The parties have to agree whether the license is an exclusive license or a non-exclusive one. For eg, EA sports has licensed various football leagues and trophies exclusively for their FIFA versions so that the same is not available to PES or other football games.

The licensor should specify all the uses permitted under the license. The right of the licensee to sublicense the granted license should be described within this clause. If the licensee has the right to sublicense, the details of such sublicense along with the number of times the licensee is allowed to sublicense should also be added in the agreement.

Royalties and Payments

The parties should agree upon a royalty for the license granted. The nature of royalty should be specified. For instance, royalties can be paid at a fixed percentage of the total sales in a particular period of time or as a certain percentage of revenue generated by the sale of each licensed product. Besides, the mode of payment, currency of payment, as well as the time limit for paying the royalties should be laid down in the agreement. 

The provision of special royalty on sublicenses should be referred to within this clause. The licensor can also ask for minimum royalties which should be paid within a prescribed period irrespective of the sales of the product.

On non-adherence with the minimum royalty provision, the licensor can also force for the cancellation of the license and enter into a fresh license with a different party. All the conditions for any renegotiation or change in royalties payable can also be added to the agreement.

Giveaway Restriction 

The giveaway restriction clause restricts the licensee from using the license for purposes other than that is permitted under the license. For example, if EA sports obtain a license from FIFA for using its trademarks, then the same shall be used only for the marketing and sale of the licensed product. Every other use of the licensed product is restricted under this clause. 

The licensor can also prevent the license from being used in certain platforms or devices. For instance, certain features of “FIFA 19” is different for different devices such as mobile phones, PCs and PlayStations. Apart from this FIFA can exclusively provide a provision for restricting EA sports from publishing the game with certain platforms such as Sony’s PSP or Microsoft’s Xbox.

Territory

The territory clause specifies the territory in which the license is allowed to use. All the marketing, promotion and sale of the licensed product should be done in accordance with this clause. All the regions in which the license is not authorised should be mentioned in this clause.

For example certain games of “EA sports” are not available on countries such as Cuba, Iran and North Korea due to some issues with embargoes and sanctions If there are no restrictions in relation to any territory, the word “worldwide” should be added to the agreement, communicating that the license is applicable throughout the world.

Term and Termination

The licensor and licensee should agree to duration, start date and end date by which the license shall remain in force. If there are any provisions for renewal of a license, the parties should expressly provide the same. The notice period or time period by which renewal should be requested shall be mentioned under this clause.

Even after the license period, if the stocks of the licensed products are left unsold, the parties should agree upon conditions for the sale of such copies. The licensor can demand a separate payment for the sale of unsold copies after the license period. On the other hand, the licensor can direct the licensee to destroy the unsold copies or sell it to the licensor at a discounted price.

The parties should also agree upon the conditions according to which the licensor can terminate the agreement. In such cases, provisions for dealing with unsold copies of the products/games should be specifically provided to avoid uncertainties. The licensor can also add a provision which provides him with the right to terminate the agreement if the licensee could not launch the licensed product/game within the stipulated time.

Periodic Statements and Records 

The licensor can enforce the licensee to maintain certain books of records with regards to the sale of licensed products. The Licensor shall also provide a section for inspection and audit of these records. Besides, the licensor can also direct the licensee to submit periodic statements for a certain time period, describing the number of sales, the gross purchase price of the licensed product and so on. 

Appearance of Trademark

This is an important clause in a video game licensing agreement where the licensor can govern the licensee’s use of his trademarks. The licensor can direct where and how licensee’s logo and trademark are to be placed in the licensed product.

E.g. in FIFA games, FIFA can direct EA sports in placing their logos in the game copies. The licensor can also add a provision for preservation and protection of goodwill related to his trademarks.

Indemnification

The indemnification clause in a video game licensing agreement should be drafted with utmost importance. The licensee should indemnify the licensor for the use of his intellectual property specifying that the licensee will not infringe the intellectual property licensed to him.

Meanwhile, the licensor should also indemnify the licensee from all the damages caused due to third party claims concerning the intellectual property licensed to the licensee. Conditions for indemnification of both the parties should be set out in detail. Besides, the maximum amount of damages payable by each party on such indemnification can also be agreed upon within this clause. 

Non-Assignability 

The Non-assignability clause ensures that the license provided by the licensor is not transferred or assigned to any third party without his consent. The licensee can sublicense the license only as per the agreed conditions. The licensor can order the licensee to obtain his written approval before the license is sublicensed or assigned to any third party.

There may be chances where the licensee may get merged or acquired by any other parties or competitors. In such circumstances, the licensor can direct all such business activities which need the prior consent and approval of the licensor.

Governing Law and Dispute Resolution

Video game licensing agreements are mostly international. The likelihood of the parties i.e the licensor and licensee to be from different geographies are quite high. Hence, this clause is quite important for both parties. The law according to which the agreement shall be construed and interpreted should be expressly mentioned.

The courts, having jurisdiction on instances of disputes should be present under this clause. Besides, a dispute resolution mechanism such as arbitration should be agreed upon by the parties. The number of arbitrators, the place of arbitration, and other relevant factors should also be specified.

Intellectual Property In the Video Game Industry

The dynamic force driving this multi-billion dollar industry is intellectual property. A wide variety of intellectual property such as copyrights, trademarks, patents, designs, and trade secrets acts as the lifeblood for the video game industry. Intellectual property is heavily involved in contractual relationships between various entities, right from the creation phase to the distribution phase of a video game.

Copyright protects the game characters, source codes and the programming language in which the game is written. It protects all the creative works such as art and music involved in the gameplay of the videogame. The Indian Copyright Act 1957 does not mention specifically about video games.

But, section 2(ffc) of the Copyright Act includes computer codes and languages under the purview of copyright. Trademark protects the names and logos of the associated games. Generally, not a lot of trademarks are involved with each game. Trademark helps to communicate the identity of the gaming corporation with the general public. For instance, every game developed by EA sports has its trademark and logo written over it.

The competition between various gaming corporations is quite intense. So, these entities are always keen to avail extra protection for their creation. Obtaining patents for their work ensures this extra protection. But patents are normally overlooked by the video game industry considering the immense difficulty for obtaining them. Software codes are not granted patents until they lead to technological innovation.

Similarly, the heart of a video game, i.e the gameplay are also not normally patentable. The industrial designs protect the graphical interfaces, colours, lines, and shapes of the various attributes used in the videogame.  Amidst the intense competition, the video industry also involves other forms of IP such as trade secrets and confidential information. It prevents employees of one gaming company, from disclosing their secrets on migration to a competitor’s company, thereby safeguarding their competitive advantage. 

Disputes in the Gaming Industry 

The video game industry is also witnessing a battle royale of disputes between various titans of the industry. In 2018, “PlayerUnknown’s Battlegrounds” popularly known as PUBG, filed a lawsuit for copyright infringement against its arch-rival “Epic games”.

Epic games are the developers of Fortnite and the lawsuit was filed in Seoul, South Korea. PUBG claimed that Fortnite copied their concept of battle royale in their gameplay. Epic games replied that the concept of battle royale was not something developed by the PUBG Corporation.

In addition, it claimed that copyright is available for the expression of ideas and not the ideas themselves. Both of these games were extremely popular among the masses with PUBG enjoying twice the amount of total players throughout the world. Later, it was reported that PUBG dropped its lawsuit after a rumour of background settlement between the parties came into light. Some of the other most controversial video game lawsuits are listed here.

Conclusion

Despite witnessing tremendous growth, the developers and publishers from the video gaming industry are still complaining about the lack of protection available to their creative work.

Copyrights form the crux of IP involved in the development of a video game. Compared to other sectors of entertainment, the video game industry is not harmonized with sufficient laws for intellectual property protection.

Copyright protects the visual elements as well as the software codes. But the presence of multiple copyrighted works and diverse nature of IP laws throughout the world cause great difficulties for their development and distribution.

Video games are distributed to end-users through an end-user licensing agreement. Selling and distributing unauthorized copies of video games along with issues such as decompilation and modification of source code still continues to be a prevalent problem in the industry.

Reference

1. https://blog.ipleaders.in/intellectual-property-rights-video-games-industry/
2. https://www.wipo.int/wipo_magazine/en/2014/02/article_0002.html
3. https://blog.ipleaders.in/intellectual-property-videogame-industry/
4. http://www.mondaq.com/uk/x/709236/Copyright/The+Battle+Royale+Of+Gaming+Disputes
5. https://blog.jipel.law.nyu.edu/2018/04/video-games-a-growing-market-and-its-intellectual-property-needs/

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

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 This article is written by Jessica Kaur, a first-year student currently pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. Here, she discusses the Constitutional provisions dealing with the creation, operation, and functions of Panchayats, Municipalities and Co-operative societies.

Introduction 

What did Abramah Lincoln say about democracy? That, it is a government “of the people, by the people, and for the people”. Each citizen in a democracy, from the educated professionals living in the urban areas, to the illiterate farmers in the rural areas, should be included in this system. Each one should have the right to vote for choosing his or her own representatives from that area, who would manage the affairs with their expertise.

The Central government cannot oversee the minute workings of all the smallest units in the country. Therefore, one of the salient features of a good representative government is the percolation of the self-rule mechanism to the grassroots level, leading to more effective decision-making and greater accountability. Keeping this in mind, our Constitution has provided for the creation of panchayats, municipalities and cooperative societies to manage the affairs of the villages and urban localities in India.

In this article, we shall explore the meaning of these three terms as well as the provisions related to their creation, operation, powers and responsibilities given in the Constitution of India, 1950.

Part- IX- Panchayats

The first Panchayati system (called “Panchayati Raj”) came up in Nagaur city of Rajasthan in 1959 as per the recommendations of the Balwant Rai Committee. This Committee did far-reaching work in the area of rural democracy, which brought Balwant Rai the title of “Father of Panchayati Raj.” Gradually, this system was adopted by other states like Andhra Pradesh and Maharashtra.

However, the Constitution did not lay an obligation upon governments to constitute panchayats. Article 40 only provided a Directive Principle of State Policy that said the State should organise village panchayats and give them the necessary powers and authority to function, but this was not mandatory.

Over time, the Panchayati systems that had cropped up started going lax. A need was felt for a more well-established decentralized administration. The L.M. Singhvi Committee was appointed in 1986 to study the problems faced by panchayats. It gave several recommendations, including that panchayats should be constitutionally recognised, promoted and preserved. Thus, Article 40 was finally solidified in Part IX by the Constitution (Seventy-Third Amendment) Act, 1992.

Let’s take a look at Articles 243 and 243A- 243O under this Part, which talks about rural local self-government.

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Gram Sabha 

The very basic unit of the Panchayati system is the Gram Sabha. It has been defined by Article 243(b) of the Constitution as the body of all the persons registered on the electoral rolls of a village.

The first question that comes to mind is, what does the Gram Sabha do? 

This permanent body is the body of the electorate. This means that all other institutions – Gram Panchayat, Zilla Parishad, etc. (which we will be talking about later) – are elected by the Gram Sabha. Moreover, the Gram Sabha acts as a forum where people can discuss matters of governance and development.

Therefore, Gram Sabha is the primary and fundamental component of the local self-government system. However, the extent of its powers depends upon the policy of the state in which the village is located, as mentioned in Article 243A. 

The membership of a Gram Sabha is restricted to persons above the age of 18 living in that village. This is done so that the best decisions, which are in line with the interests of the village, can be made.

We now move on to the self-government body that is elected by the Gram Sabha – the Panchayat.

Constitution of Panchayats

Under Article 243(d) of the Indian Constitution, ‘panchayat’ has been defined as an institution of self-government in rural areas. 

Article 243B provides for the establishment of a three-tier Panchayati system:

1. At the village level i.e. Gram Panchayat
2. At the intermediate level i.e. Panchayat Samiti
3. At the district level i.e. Zila Parishad

Intermediate-level panchayats, however, only exist in states where the population exceeds twenty lakhs. 

Gram Panchayat

Gram Panchayat is the lowest level in the panchayat pyramid system. 

Each village is divided into even smaller units called wards, each of which selects a representative of its own. They are called Ward members or the Panch. The Gram Sabha also elects the head of the Gram Panchayat, called the Sarpanch. Therefore, the Sarpanch and the Panch together make up the Gram Panchayat.

The main work of the Gram Panchayat is to take care of social issues, construct and maintain schools, roads and drainage facilities, etc., and to levy and collect local taxes.

The Gram Panchayat is accountable to the general body of voters in the village, i.e. the Gram Sabha, as well as to the two levels of authority above it in the hierarchy.

Panchayat Samiti

The Panchayat Samiti is the next level in the hierarchy. It oversees the working of the Gram Panchayats of all the villages located in the block under its jurisdiction.

The Panchayat Samiti is headed by the Pradhan. He or she is elected by a group consisting of all the members of the Panchayat Samiti as well as all the Panchs of the Gram Panchayats coming under it.

Zila Parishad

Also known as District Panchayat, this is the highest level of panchayat in the hierarchy of rural self-government. It oversees the working of the Panchayat Samitis of all the blocks in the district of its jurisdiction, as well as all the Gram Panchayats under them. Moreover, it controls the distribution of funds among all the Gram Panchayats. It is responsible for making developmental plans at the district level. 

The Zila Parishad is headed by the Chairman. It also has a Chief Executive Officer as a member, who is elected by the State government.

Composition of Panchayats 

All the members of the three levels in the panchayat hierarchy are elected by the eligible voters living in the area. However, the state can also make provisions for the representation of Members of Legislative Assembly (MLAs) or other officials in the panchayat. As for the rules regarding the composition of the panchayats, they have been taken care of by the Drafters under Article 243C of the Constitution.

A large number of panchayats are constituted in a single state. It is preferable that the ratio between the population and territory under one panchayat and the number of seats in it be the same throughout the state.

Each area having a single panchayat is divided into constituencies for the purpose of conducting elections. It is also desirable that the ratio between the population of each constituency and the number of seats allotted to it be the same throughout the panchayat area.

Disqualifications for Membership

A person can be disqualified from the membership of the panchayat in certain situations. As per Article 243F of the Constitution, this can happen when the person has been disqualified from membership of the Legislature of the Union or the State because of any reason, or if he has been specifically disqualified from membership of the panchayat by any law.

If a question arises regarding the disqualification of membership of any person, then it will be solved by the authority and by the process which the Legislature decides.

Bhanumati Etc. v. State of U.P. (2010)

Facts: 

In this case, a no-confidence motion was passed against the Chairman of a Zila Parishad under the U.P. Panchayat Laws (Amendment) Act, 2007. She challenged it on the grounds that a provision for no-confidence motion could not be made under the statute as it was not mentioned in the Constitution.

Judgement

The court dismissed the appeal, saying that the Constitution grants the State the power to fixate specific rules regarding election and membership. Therefore, the no-confidence motion was sustained.

Thus, this case is an example of the membership of a person to a Zila Parishad being under threat of disqualification under existing State law, and how the court upheld that motion.

Reservation of seats in Panchayats

The Drafters of our Constitution were aware of the reality of the rampant discrimination in India at the time of independence – which, unfortunately, has not completely died down even today. Keeping that in mind, they made special provisions for the representation of marginalised communities in the local self-government too. This was done to ensure that women, members of the downtrodden castes, etc. in the rural areas also get the opportunity to have their voices heard.