This article is written by Aarchie Chaturvedi, a 1st-year student currently pursuing BA-LLB from the National University of Study and Research in Law, Ranchi. This is an exhaustive article about the freedom of trade and commerce, containing the provisions of Article 301 to 307 and the landmark judgments.

Introduction 

Trade has always been important because no country or state can produce all the products it needs. For this reason, we need regulations and laws governing, managing and facilitating trade. The freedom of trade, commerce, and intercourse is provided under Part XIII of the Indian Constitution in Articles 301 to 307. Article 301 lays down the general principles of trade and commerce whereas Article 302 to 305 enunciates the restrictions which trade is subjected to. The source for adopting these provisions was the Australian Constitution. 

The object of such provisions in a Federal Constitution

The makers of the Constitution wished to encourage the free flow of trade and commerce in India because, according to them, a country should work as a single economic unit without any barriers or obstacles in internal trade. They perceived that economic unity and integration of the nation would be the main sustaining power for stability and cultural unity of the federal polity. 

In a federation, it is essential to reduce the barriers (tariffs, non-tariffs, quotas, etc.) between the states as much as possible so that the people feel that they are members of the same country though living in different geographical areas of the nation.

Freedom of trade, commerce, and intercourse

Article 301 talks about the freedom of trade, commerce, and intercourse throughout the country. It states that subject to other provisions under Part XIII, the freedom to carry on these activities shall be free. Freedom here means the right to freedom of movement of persons, property, things that may be tangible or intangible, unobstructed by barriers within the state (intra-scale) or across the states (inter-scale).

The three main words used in this article are:

Trade

Trade means buying and selling of goods for profit-making purposes. Under Article 301, the word trade means an actual, organized & structured activity with a definite motive or purpose. For the motive of Article 301, the word trade is interchangeably used with business.

Commerce

Commerce means transmission or movement by air, water, telephone, telegraph or any other medium; what is essential for commerce under Article 301 is transportation or transmission and not gain or profit. 

Intercourse 

It means the movement of goods from one place to another. It includes both commercial and non-commercial movements and dealings. It would include travel and all forms of dealing with others. However, it is argued that the freedom guaranteed in Article 301 does not reach out to intercourse in its broadest meaning. There are two reasons for this. First of all, the word “intercourse” is used in juxtaposition with the words ‘trade and commerce’ and hence this word here will mean “commercial-intercourse” and not purposeless motion. The second reason being that though Article 301 imposes a limitation on the power of Legislature and Parliament (provided to them under Article 245 and 246) but the word intercourse is not included as a subject of legislation under the Seventh Schedule (as the words trade and commerce have been) and so the word intercourse can not be implied to have the widest of the meaning when used here.

The use of the word ‘free’ in Article 301 does not mean freedom from laws and rules governing the country. There is a clear distinction between the laws obstructing freedom and laws containing rules and regulations for the proper conduction of trade activities in a smooth and easy manner.

Activities which are not trade

Article 301 gives the freedom of trade, commerce, and intercourse but there are certain activities which may be covered under the ambit of the trade, commerce or intercourse activities but are not protected by the freedom guaranteed under Article 301 of the Indian Constitution.

Illegal activities, like lottery and gambling, can be an example. The bar on these illegal activities was upheld by the Supreme Court in the case of State of Bombay v. R.M.D. Chamarbaugwala (1957). In this case, it was held that all activities of criminal nature or those activities which are undesirable would not be given any protection under Article 301. Some examples of such activities can be clicking obscene pictures for money, trafficking of women and children, hiring goondas or terrorists, etc. Though the forms, methods, and procedures of trade may be applied these activities are extra-commercium (not subject to private ownership or acquisition), and thus are not covered under Article 301. Inter-relation between Article 301 and Article 19(1)(g)

• Article 301 under Part XIII empowers the free flow of the stream of trade throughout the country whereas Article 19(1)(g) under Part III provides the freedom to practice any occupation, trade or business in the interest of the general public. The right under Article 301 is constitutional and can be claimed by anyone. The right under Article 19(1)(g) is fundamental and can be claimed only by citizens. Thus, this aspect of limitation of Article 19 is dealt with under Article 301 which gives the right to both citizens and non-citizens to move the court if their right has been infringed. 
• Article 19(1)(g) contains restrictions to the freedom of carrying an occupation or trade while Article 301 is accompanied by Article 302-307 which lay down the restrictions to the free flow of trade in the country. However, the restrictions specified in Article 302-307 should have indirect results and should not directly reduce the freedom laid down in Article 19(1)(g). Article 301 is thus considered an explanatory provision to Article 19(1)(g) and also has a more limited scope than Article 19(1)(g) because it is only concerned about the flow of goods and services.  
• It is also often argued that Article 301 is the right available for trade as a whole whereas Article 19(1)(g) is the right for individuals. However, this is not true. Article 301 is derived from Section 92 of the Australian Constitution and hence this right is available to individuals as well.
• Thus both of them can be said to be interrelated in some aspects. They also can be seen as interrelated concepts at the time of emergency. At the time of emergency, rights under Article 19(1)(g) are suspended. At that time the court looks forward to the rights provided under Article 301 to check whether any violation has occurred or not.

Restrictions to trade and commerce

Parliament’s power to regulate trade and commerce in the public interest 

Article 302 gives power to the Parliament to impose restrictions on the freedom of trade, commerce or intercourse carried on within a state or across states anywhere in the territory of India. These restrictions can solely be imposed taking into due consideration the interests of the public. The power to decide whether something is in the interest of the public or not is solely given to the Parliament. It can be seen as in the case of Surajmal Roopchand and Co v/s the State of Rajasthan (1967) were under the Defence of India Rules, in the interest of the general public, restrictions were imposed on the movement of grain.

States power to regulate trade and commerce 

The power of the Parliament in Article 302 is kept in check by Article 303. Article 303(1) states that the Parliament does not have the power to make any law which will keep one State at a more preferable position than the other State, by virtue of any entry in trade and commerce in any one of the lists in 7th Schedule. However, Clause (2)  states that the Parliament can do so if it is proclaimed by law that it is essential to make such provisions or regulations, as there is indeed a scarcity of goods in some parts of the country. The power to decide whether there is a scarcity of goods in some parts of the territory or not is vested in the hands of the Parliament.

Article 304(a) further says that the State should impose taxes on any goods transported/imported from other States if alike goods are taxed in the State too. It is done so that there is no discrimination between goods produced within the State and goods imported from some other states. In the case of State of Madhya Pradesh v/s Bhailal Bhai,(1964) the State of Madhya Pradesh imposed taxes on imported tobacco which was not even subject to tax in the very own State i.e State of Madhya Pradesh. The Court disapproved of the tax statement that it was discriminatory in nature.

Restrictions on trade, commerce, and intercourse among States 

Clause (2) of Article 304 guides the States to impose certain reasonable restrictions on the freedom of trade, commerce, and intercourse as may suit the public interest. But no Bill or Amendment for such shall be put forward in the State Legislature without the prior approval of the President.  A law passed by the State to regulate interstate trade must thus fulfill the following conditions-

• An approval from the President must be taken beforehand,
• The restriction must be sensible and rational,
• It must be in the interests of the public.

These conditions make it clear that the Parliament’s power to regulate trade and commerce is superior to the State’s power.

Saving of Existing Laws  

Article 305 of the Indian constitution saves already formed laws and laws providing for State monopolies. Article 305 can only do so until the President is not ordering something opposite to it or otherwise to the law already formed. In Saghir Ahmad v/s The State of UP,(1954), the Supreme Court raised the query that whether an Act that provides for State monopoly in a specific trade or commerce would be held violative of the Constitution of India under Article 301. 

Article 19(1)(g) was amended by the First Constitutional Amendment taking out such activities from the purview of Article 19(1)(g). And now after the Constitution’s 4th Amendment, already formed laws and laws made hereafter for State monopoly in trade, are immune from attack on the ground of violation of Articles 301 & 304.

Appointment of authority for carrying out the purposes of Articles 301 to 304 

Article 307 under Part XIII permits the Parliament to designate such authority as it deems fit for carrying out the provisions laid down in Articles 301, 302, 303 and 304. The Parliament can also bestow such authorities with functions and powers as it feels are required.

Landmark Judgments

Atiabari Tea Co. vs the State of Assam (1961)

Facts

In this case of Atiabari Tea Co.Ltd. v/s the State of Assam, Assam Taxation Act levies a tax on goods transmitted through Inland Waterways and road. The petitioner in the present case carried on the business of transporting tea to Calcutta (now Kolkata) via Assam. Now while passing through Assam for the purpose of transportation to Calcutta, the tea was liable to tax under the said Act. 

Issues

The rationality of The Assam Taxation Act of 1954 was questioned on the grounds that:

• whether it is violative of Article 301 or not?
• whether it could be protected by making it fall under the ambit of Article 304 (b) or not?

Judgment

The Supreme Court said that the disputed law undeniably levied a tax that directly and immediately infringed the movement of goods and therefore it comes under the purview of Article 301. The Supreme Court further clarified that these taxes can only be levied after fulfilling the conditions of Article 304(b) which states that the sanction by the President is required before any State enacts such a law. In this case, the requirements of Article 304(b) were also not fulfilled. Freedom assured under Article 301 would become non-existent or imaginary if transmission of goods is obstructed without meeting the criteria set out by Article 302 to Article 304 of the Constitution.

Automobile Transport Ltd. vs State of Rajasthan (1963)                                         

Facts

In The Automobile Transport Ltd. v/s State of Rajasthan, case, State of  Rajasthan imposed an annual tax on motor vehicles (Rs 60 on a motor vehicle and Rs 2000 on a goods vehicle). 

Issue

The appellant challenged the validity of the tax levied under Article 301. Now whether the tax levied was constitutionality correct or not had to be checked.

Judgment

It was held by the court that in the present case the tax imposed is valid as it is only a regulatory measure or a compensatory tax for the facilitation of the smooth running of trade, commerce, and intercourse. The Court commented that the taxes are the sole key for a state, in order to preserve the financial health of the state at large. The concept of “Compensatory or Regulatory Taxes” has evolved to ensure that the state will levy such taxes that are set as an objective in the form of compensation, that is, for the public interest as well as for regulatory purposes if necessary. They would be used within the state. If the same is challenged in the Court as being an infringement or as being violative of the freedom under Article 301 then that would not be considered as an infringement and such a measure or tax does not even need the validation of the provisions under Article 304(b).

The state of Mysore vs Sanjeeviah (1967)                

Facts

In the case of the State of Mysore v/s Sanjeeviah, the government under the Mysore Forest Act, 1900, made a law banning the movement of forest produce between sunrise and sunset.

Issue

Whether it was violative of the freedom guaranteed Article 301 of the Constitution?

Judgment

The Supreme Court held the law void. It remarked that such a law was restrictive and not regulatory thus violative of the freedom provided under Article 301.

G.K.Krishna vs State of Tamil Nadu (1975)

Facts

In the case of G.K Krishna v/s State of Tamil Nadu, a govt notification under Madras Motor Vehicles Act was issued, increasing the motor vehicle tax on omnibuses from Rs 30 to Rs 100. The government’s argument while imposing this tax was that this was done to stop the unhealthy competition between omnibuses and regular stage carriage buses and to reduce the misuse of omnibuses.

Issues

The petitioner in his argument questioned:

• whether the tax was compensatory or regulatory?
•  whether it was a barrier to the freedom of trade, commerce, and intercourse or not?  

Judgment

The Supreme Court held that the tax on carriage charges was of compensatory or regulatory nature and was not therefore violative of the freedom guaranteed under Article 301. The Courts while explaining its rationale behind the judgment said that these taxes are not barriers but a medium that facilitates trade. A tax to become a prohibited tax must be first a direct tax. A direct tax is a tax that infringes the transmission of goods or services in a trade or business.  The Court, however, presented its view in this regard that no citizen has the right to engage in any service without reimbursing the State for the special service. Here, in this case, safe and efficient roads are required for the smooth running of vehicles. The maintenance of such roads will cost the money of the Government and the use of public motor vehicles stands in direct relation to it. Therefore the imposing of tax should not seem unreasonable i.e. making of a special contribution over and above the contribution generally provided by the taxpayers to the state. The increase in tax was thus held correct and valid in the eyes of law.

Conclusion 

When the Constitution provides the freedom of trade, such freedom cannot be absolute. Thus Article 302 to 305 impose restrictions and ensures that trade is conducted in a lawful manner throughout the states and the country. All these provisions together ensure the provision of Constitutional status to the freedom of trade, commerce, and intercourse. Now at least there would be no unreasonable interference with trade and commerce based upon geographical variations or any other such barriers. 

References

1. https://indiankanoon.org/doc/121190/
2. https://legislative.assam.gov.in/sites/default/files/swf_utility_folder/departments/legislative_medhassu_in_oid_3/menu/document/The%20Assam%20Taxation%20%28on%20goods%20carried%20by%20Roads%20or%20Inland%20Waterways%29%20%28Amdt.%29%20Act%2C%201954..pdf

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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 Constitution of criminal courts under the Code of Criminal Procedure, 1973.

Introduction

The judicial system in India is one of the most efficient judicial systems in the world and it has been established in such a way so that it caters to the need of every person in the country. The Indian Judiciary is well established with quite a lengthy and complex hierarchy of courts. The judicial system is in the form of a pyramid, with the Apex Court being at the top of the hierarchy.  The courts have been created in such a manner that even a person from a remote area can approach the courts to get their disputes resolved.

Functionaries under the CrPC

The functionaries which are empowered to exercise the powers and discharge duties under the Code of Criminal Code, 1973 are the police, prosecutors, courts, Defence Council, Prison Authority and Correctional Services. Amongst these the role of Magistrates and Court is pivotal while others are in a way accessories to it.

Roles and functions of these types of machinery

POLICE

There is no provision in the code that creates the police or police officers. It assumes the existence of police and arms them with various responsibilities and powers.

Organisation 

The Police Act, 1861 establishes the police force. The Act says that “the police force is an instrument for the detection of crime and its prevention.” The Director-General of Police is vested with the overall administration of police in an entire state, however, in a district, under the general control and directions of District Magistrate, administration of police is done by DSP (District Superintendent of Police).

A certificate is provided to every police officer and by virtue of such certificate, he is vested with the functions, privileges and powers, of a police officer. Such certificate will cease to be in effect once he/she is no longer a police officer.

Powers and functions under CrPC

The Code confers upon the police officers certain powers such as the power to investigate, search and seizure, make an arrest and investigate the members enrolled as police officers. Extensive powers are conferred to the officer in charge of a police station. 

PROSECUTOR

A crime is a wrong that affects the whole society and because of this reason the state represents the society as a whole and is represented by lawyers called Public Prosecutors. In a criminal court, prosecution of all the offences is conducted by Public Prosecutors.

Constitution

As per Section 24 of Cr.PC Central and State, the government is empowered to appoint Public Prosecutors at state and district levels to conduct appeal and prosecution under High Courts and Subordinate Courts. The Section further provides that Additional or Assistant Public Prosecutor shall be appointed and they shall work under the directions given by Public Prosecutor. 

Further, it specifies the rules for appointment of Public Prosecutor as “if a person has been practising as an advocate for 7 years or more then such person shall be eligible to be appointed as Public Prosecutor of District Court or High Court. The Court in Phool Singh v. State of Rajasthan held that “  if the victim requests the State to appoint a Special Public Prosecutor in a case, then the State shall appoint the same and such Special Public Prosecutor shall be paid by the victim.

Powers and Functions

The Code provides that every trial before a Session’s Court shall be conducted by the Public Prosecutor. His goal is not merely to produce a conviction but to help the court in arriving at a just decision. Section 301 empowers a Public Prosecutor or Assistant Public Prosecutor to appear before any criminal court and conduct prosecution without any written authority. Thus, he has the right to conduct the prosecution. As per Section 321, if the court allows, a Public Prosecutor can withdraw from conducting prosecution against any person.

In Md. Mumtaz v. Nandini Satpathy, the Apex Court explained the role of Prosecutors under CrPC and observed that it is the duty of a Public Prosecutor to aid the court by placing all the evidence in his possession in front of the court even if it is in favour of the accused. In the machinery of justice, a very responsible role is assigned to the public prosecutor, thus he shall be personally indifferent towards the result of the case.

COURTS 

The setup of criminal courts in India is of 2 types i.e. District and Metropolitan areas.

District

The setup of criminal courts in district areas is at 3 levels: –

At the lower level of the judiciary the courts are called courts of Judicial Magistrate which are of 3 types: –

• Judicial magistrate 
• Judicial magistrate second class
•  Special magistrate court

At the middle level of the judiciary, the courts at the sessions level include: –

•  Court of sessions
• Additional courts of sessions
• Assistant courts of sessions
• Special courts

At the higher level of the judiciary, there are High Court and Supreme Court.

Metropolitan areas

The courts at the session’s level are referred to as metropolitan courts and they are of 2 types: –

1.   Metropolitan magistrate courts
2.   Special Metropolitan Magistrate

Chief Judicial Magistrate/Chief Metropolitan Magistrate exercises supervisory authority or administrative authority of all the magistrates in sessions/division or metropolitan areas.

DEFENSE COUNSEL

In most of the cases an accused person is a layman and is not aware of the technicalities of law, therefore, as per Section 303, an accused person shall have a right to be defended by a counsel of his own choice. As the accused or his family employs the pleader to defend the accused against the alleged charges, such a pleader is not a government employee. For ensuring a just and fair trial it is essential that a qualified legal practitioner presents the matter on behalf of the accused.

Therefore, Section 304 provides that if the accused does not have sufficient means to hire a counsel, a pleader shall be assigned to him by the court at the state’s expense. There are various schemes through which an accused who does not have sufficient means to hire a pleader can get free legal aid, such as the Legal Aid Scheme of State, Legal Aid and Service Board, Supreme Court Senior Advocates Free Legal Aid society and Bar Association. The Legal Services Authorities Act, 1987 provides needy people with free legal aid.

PRISON AUTHORITIES AND CORRECTIONAL SERVICES

The court does not create but presupposes the existence of prison authorities and the Prison. As per Section 167 Magistrates and judges are empowered by the code to order the detention of under-trial prisoners in jail during the pendency of the proceedings. The courts have the power under the Code to impose imprisonment sentences on convicted persons and to execute such sentences send them to prison authorities.

However, the Code does not provide specific provisions for working, creation and control of such machinery. The Prisons Act 1894, The Probation of Offenders Act 1958 and The Prisoners Act 1900 deals with such matters.

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Territorial divisions under the code

The entire territory of India consists of states and Section 7 of the Code states that “the basic territorial divisions of the State are the districts and the Sessions Divisions”. Considering the special needs of big cities like Bombay, Calcutta, Madras, etc. the Code has recognised them as metropolitan areas and each such area shall be considered as a separate sessions division and district. According to this territorial demarcation, the criminal courts of India include the Supreme Court of India, High Courts, Court of Session in every Session Division and Courts of Judicial Magistrates in every district.

Classes of criminal courts

Section 6 of the Cr.P.C provides for the classes of criminal courts in every State apart from the High Courts and the Supreme Court, namely –

1.  Court of Session
2. Judicial Magistrates of the first class and, Metropolitan  Magistrates in any metropolitan areas
3.  Judicial Magistrates of the second class; and
4.  Executive Magistrates

Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India can be understood through the following chart:

The Supreme Court of India – The Supreme Court Of India being the apex court of India was established under Article 124 of the Constitution of India.

The High Courts –  Article 141  of the Constitution Of India governs the High Courts and the High Courts are bound by the judgment of the Apex Court.

Lower Courts of India have been classified as follows: 

Metropolitan Courts 

• Chief Metropolitan Magistrate 
• First Class Metropolitan Magistrate 

District Courts

• Sessions Court  
• First Class Judicial Magistrate
• Second Class Judicial Magistrate
• Executive Magistrate

Separation of Judiciary from the Executive

The Code under Section 3(4) separates the judiciary from the executive and states that, subject to the provisions of the Code: 

• Judicial Magistrate shall exercise the functions relating to matters in which appreciation or shifting of evidence is involved or which involve the formulation of any decision by which any person is exposed to a penalty or punishment or detention in custody, inquiry or trial. 
• Executive Magistrate shall exercise the functions regarding the matters which are executive or administrative in nature, for example, the granting or suspension or cancellation of a license, withdrawing from prosecution or sanctioning a prosecution. 

Court of Session

Section 9 of the Cr.PC empowers the State Government to establish the Sessions Court and such court would be presided over by a Judge appointed by the High Court. The Additional and Assistant Sessions Judges are also appointed by the High Court to exercise jurisdiction in the Court of Session. The Sessions Court ordinarily sits at such place or places as ordered by the High Court, but if in a case, the Court of Sessions decides to cater to the general convenience of the parties and witnesses, then, it may, with the consent of the prosecution and the accused preside its sittings at any other place. As per Section 10 of the Cr.P.C, the assistant sessions judges are answerable to the sessions judge.

Court of Judicial Magistrate

Section 11 of the Cr.P.C states that in every district (not being a metropolitan area), the State Government after consultation with the High Court has the power to establish courts of Judicial Magistrates of the first and second classes. If the High Court is of the opinion that it is necessary to confer the powers of a Judicial Magistrate of the first or second class on any member of the Judicial Service functioning as a Judge in a civil court, then the High Court shall do the same. 

Chief Judicial Magistrate and Additional Chief Judicial Magistrate

As per Section 12 of the Code in every district other than metropolitan areas, Judicial Magistrate of the first class shall be appointed as the Chief Judicial Magistrate. The High Court is also empowered to designate Judicial Magistrate of First Class as Additional CJM and by such designation, the Magistrate shall be empowered to exercise all or any of the powers of a Chief Judicial Magistrate. 

Sub-Divisional Judicial Magistrate

In a sub-division, the judicial magistrate of the first class may be designated as the Sub-divisional Judicial Magistrate. Such magistrate shall be subordinate to the Chief Judicial Magistrate and will thus work under its control. Further, the Sub-divisional Judicial Magistrate shall control and supervise the work of the Judicial Magistrates (except the Additional CJM) in that subdivision. 

Special Judicial Magistrates

By Section 13 the High Court is empowered to confer upon any person who holds or has held any post under the Government, the powers conferred or conferrable by or under this Code on a Judicial Magistrate of first or second class. Such Magistrates shall be called Special Judicial Magistrate and shall be appointed for a term not exceeding one year at a time. In relation to any metropolitan area outside the local jurisdiction of a Special Judicial Magistrate, he may be empowered by the High Court to exercise the powers of a Metropolitan Magistrate.

Local Jurisdiction of Judicial Magistrate

According to Section 14, the Chief Judicial Magistrate shall define the local limits of the areas within which the Magistrates appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may be vested under this Code. The Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established.

The jurisdiction in case of Juveniles (Section 27)– This section directs that a juvenile (person below the age of 16) can not be given a death penalty or a punishment of imprisonment for life. Chief Judicial Magistrate or any other Court specially empowered under the Children Act, 1960 (60 of 1960) tries such type of cases.

Subordination of judicial magistrate

Section 15(1) provides that a Sessions Judge shall be superior to the Chief Judicial Magistrate and the Chief Judicial Magistrate shall be superior to the other Judicial Magistrate. This can be clearly understood by the above-mentioned diagram explaining the hierarchy of courts. 

Courts of Metropolitan Magistrate

They are established in every metropolitan area. The presiding officers shall be appointed by the High Court. The jurisdiction and powers of such Metropolitan Magistrates shall extend throughout the metropolitan area. The High Court shall appoint Metropolitan Magistrate as the Chief Metropolitan Magistrate. 

Special metropolitan magistrates

The High Court may confer upon Special Metropolitan Magistrates the powers which a Metropolitan Magistrate can exercise in respect to particular cases or particular classes of cases. Such Special Metropolitan Magistrates shall be appointed for such term, not exceeding one year at a time.

The Special Metropolitan Magistrate may be empowered by the High Court or the State Government to exercise the powers of a Judicial Magistrate of the first class in any area outside the metropolitan area.

Subordination of Metropolitan Magistrate

Section 19 of the Code provides that the Sessions Judge shall be superior to the Additional Chief Metropolitan Magistrate and Chief Metropolitan Magistrate and other Metropolitan Magistrates shall be subordinate to the CMM. 

The Chief Metropolitan Magistrate has the power to give special orders or make rules regarding the distribution of business among the Metropolitan Magistrates and allocation of business to an Additional Chief Metropolitan Magistrate.

Executive Magistrate

As per Section 20, in every district and in every metropolitan area, Executive Magistrates shall be appointed by the State Government and one of them shall be appointed as the District Magistrate. An Executive Magistrate shall be appointed as an Additional District Magistrate and such Magistrate shall have such of the powers of a District Magistrate under the Code. 

As executive magistrates are supposed to execute administrative functions they were neither given power to try accused nor pass verdicts. They are mainly concerned with administrative functions. The executive magistrates have the power to determine the amount of bail according to the provisions of the warrant issued against the accused, pass orders restraining people from committing a particular act or preventing persons from entering an area (Section 144 Cr.P.C), they are the authority to whom people are taken to when they are arrested outside the local jurisdiction, the executive magistrates are the only one with the power to disperse a crowd or an unlawful assembly, further, they are authorized to use force while doing the same according to the gravity and requirements of the situation. Executive Magistrates are assisted by the police while executing their functions.

As per Section 21, Special Executive Magistrates shall be appointed by the State Government for particular areas or for the performance of particular functions. 

Local jurisdiction of the executive magistrate

Section 22 of the CrPC empowers the District Court to define the areas under which the Executive Magistrates may use all or any of the powers which are exercisable by them under this code but under some exceptions, the powers and jurisdiction of such Magistrate shall extend throughout the district.

Subordination of executive magistrate

As per Section 23, the Executive Magistrates would be subordinate to the District Magistrate however Additional District Magistrate shall not be subordinate to the District Magistrate. Every Executive Magistrate but, the Sub-divisional Magistrate shall be subordinate to the Sub-divisional Magistrate.

The executive magistrates shall follow the rules or special orders given by the district magistrate, regarding the distribution of business among them. The district magistrate also has the powers to make rules or special orders relating to the allocation of business to an Additional District Magistrate.

Hierarchy of Executive Magistrate 

Sentences which can be passed by the various courts

1. Sentences passed by the High Courts and Sessions Judges (Section 28):

• Any sentence which is authorised by law can be passed by the High Court.
• A Sessions or Additional Sessions Judge can pass any sentence authorised by law. But, while passing death sentence prior confirmation from High Court is required. 
• An Assistant Sessions Judge has the authority to pass any sentence of imprisonment for more than 10 years other than a death sentence or life imprisonment  

2. Sentences passed by the Magistrates (Section 29) –

• The Court of Chief Judicial Magistrate can pass any sentence of imprisonment for more than seven years but not a death sentence or life imprisonment.
• The Judicial Magistrate of first class can pass a sentence of imprisonment for a term, less than three years, or a fine less than ten thousand rupees or both.
•  The Judicial Magistrate of second class may pass a sentence of imprisonment for a term, less than one year, or a fine less than five thousand rupees.
• The Chief Metropolitan Magistrate has the same powers as that of a Chief Judicial Magistrate and of MM, in addition to the powers of the Magistrate of first class.

Conclusion

One of the main constitutional goals is proper administration of justice has to be in consonance with the expectations of the society. The goal can be achieved if the citizens living in our country can easily knock the doors of the courts whenever a dispute arises.

The criminal courts are constituted in such a way that every citizen can access it for justice. Citizens are also empowered to appeal to higher authorities if they feel that justice is denied to them by lower courts. Therefore, through this system, it has become easy for the citizens to approach the Judiciary.

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This article is written by Yamini Jain, a student of III year BA LLB at ILS Law College, Pune. It provides a brief overview of the provisions relating to First Appeals under the Code of Civil Procedure, 1908 along with relevant case laws.

Introduction

An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of the  Code of Civil Procedure, 1908 deal with appeals from original decrees known as First appeals. 

Meaning of appeal

The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse. It is the removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and retrial”. 

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in compliance of its directions. The essentials of appealing cases can be narrowed down to 3 elements:

• A decree passed by a judicial/administrative authority;
• An aggrieved person, not necessarily a party to the original proceeding; and
• A reviewing body instituted for the purposes of entertaining such appeals.

Right to appeal

The right to appeal is a statutory & substantive one. The statutory nature of an appeal implies that it has to be specifically conferred by a statute along with the operative appellate machinery as opposed to the right to institute a suit, which is an inherent right. It is substantive in the sense that it has to be taken prospectively unless provided otherwise by any statute. This right could be waived off via an agreement, and if a party accepts the benefits under a decree, it can be estopped from challenging its legality. However, an appeal accrues to the law as found on the date of the institution of the original suit.

One right to appeal

Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a Court while exercising its original jurisdiction, is conferred with at least one right to appeal to a higher authority designated for this purpose, unless the provisions of any statute make an exception for it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which no further appeal is permitted, hence attributing to a single right of appeal.

No right to appeal

No person has a right to appeal against a decision unless he is a party to the suit, except on special leave of the Court. An essential element to be taken into account while considering one’s right to appeal is whether such person is adversely affected by the decision/suit, which is a question of fact to be determined in each case. 

Distinction between suit and appeal

Garikapati Veeraya v. Subbiah Chaudhary

In the instant case, it was held that the pre-existing right to appeal to the Federal Court continued to exist and the old law which created such a right also continued to exist. It construed to the preservation of this right while recognizing the change in its judicial machinery from the Federal Court to the Supreme Court. However, the continuance of the old law is subject to the provisions of the Constitution.

The distinction between appeal and revision

First appeal

Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court exercising original jurisdiction to the authorized appellate Courts, except where expressly prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular First appeal may/may not be maintainable against certain adjudications. 

Second appeal

Section 100 provides for a second appeal under this code. It states that an appeal shall lie to the High Court from a decree passed in the first appeal by a subordinate Court, excepting the provisions speaking to the contrary. The scope of exercise of jurisdiction under this section is limited to a substantial question of law framed at the time of admission of appeal or otherwise. 

Conversion of an appeal into revision

In the case of Bahori v. Vidya Ram, it was held that since there’s no specific provision under the CPC for the conversion of an appeal into a revision or vice versa, the exercise of power by the Court has to be only under Section 151. Further, the inherent powers of the Court, though discretionary, permit it to pass such orders as may be required to meet the ends of justice. The only precondition to such conversion is that due procedure is adhered to during the filing of the original appeal/revision.

Who may appeal?

A regular first appeal may be preferred by one of the following:

• Any party to the suit adversely affected by a decree, or if such party is dead, by his legal representatives under Section 146;
• A transferee of the interest of such party, who so far as such interest is concerned, is bound by the decree, provided his name is entered on the record of the suit;
• An auction purchaser may appeal against an order in execution setting aside the sale on the ground of fraud;
• No other person, unless he is a party to the suit, is entitled to appeal under Section 96.

A person, who is not a party to the suit, may prefer an appeal from a decree/order if he’s bound/aggrieved/prejudicially affected by it via special leave of the appellate Court.

Appeal by one plaintiff against another plaintiff

In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a conflict of interest between plaintiffs and it is necessary to resolve it via a Court to relieve the defendant, and if it is in fact decided, it will operate on the lines of res judicata between co-plaintiffs in the subsequent suit. 

Appeal by one defendant against another defendant

The rule in a case where an appeal is preferred not against the originally opposite parties but against a co-defendant on a question of law, it could be allowed. Such an appeal would lie even against a finding if it’s necessary while operating as res judicata (a matter that has been adjudicated by a competent Court and hence may not be pursued further by the same parties).

Who cannot appeal?

A party who waives his/her right to prefer an appeal against a judgment cannot file it at a later stage. Further, as inferred from Scrutton L.J.’s words:

“It startles me that a person can say the judgment is wrong and at the same time accept the payment under the judgment as being right….In my opinion, you cannot take the benefit of judgment as being good and then appeal against it as being bad”,

If a party ratifies any decision of the Court by accepting and acknowledging the provisions under it, it may be estopped from appealing that judgment in a higher forum. 

The appeal against ex parte decree

In the first appeal under Section 96(2), the defendant on the merits of the suit can contend that the materials brought on record by the plaintiff were insufficient for passing a decree in his favour or that the suit was not otherwise maintainable. Alternatively, an application may be presented to set aside such ex parte decree (it is a decree passed against a defendant in absentia). Both of these remedies are concurrent in nature. Moreover, in an appeal against an ex parte decree, the appellate court is compe­tent to go into the question of the propriety or otherwise of the ex parte decree passed by the trial court. 

No appeal against consent decree

Section 96(3), based on the broad principle of estoppel, declares that no decree passed by the consent of the parties shall be appealable. However, an appeal lies against a consent decree where the ground of attack is that the consent decree is unlawful being in contravention of a statute or that the council had no authority. 

No appeal in petty cases

Section 96(4) bars appeals except on points of law in cases where the value of the subject-matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of Small Causes. The underlying objective of this provision is to reduce the number of appeals in petty cases.

The appeal against Preliminary Decree

Section 97 provides that the failure to appeal against a preliminary decree is a bar to raising any objection to it in the appeal against a final decree. The Court in the case of Subbanna v. Subbanna provides that, the object of the section is that questions which have been urged by the parties & decided by the Court at the stage of the preliminary decree will not be open for re-agitation at the stage of preparation of the final decree. It’d be considered as finally decided if no appeal is preferred against it. 

No appeal against a finding

The language of Section 98(2) is imperative & mandatory in terms. The object appears to be that on a question of fact, in the event of a difference of opinion, views expressed by the lower court needs to be given primacy & confirmed. The appellate court cannot examine the correctness of the finding of facts and decide upon the correctness of either view.

The appeal against a dead person

A person who has unknowingly filed an appeal against a person who was dead at the time of its presentation shall have a remedy of filing an appeal afresh against the legal heirs of such deceased in compliance of the Limitation Act.

Forms of appeal

Appeals may be broadly classified into two kinds:

• First appeal; and
• Second appeal.

The sub-categories under appeals are:

• Appeal from original decree;
• Appeal from order;
• Appeal from appellate decree/second appeal/to High Court;
• Appeal to the Supreme Court.

Forum of appeal

It is the amount/value of the subject-matter of the suit which determines the forum in which the suit is to be filed, and the forum of appeal. The first appeal lies to the District Court if the value of the subject matter of the suit is below Rs. 2,00,000; and to the High Court in all other cases.

Presentation of appeal

Order 41 provides the requirements for a valid presentation of an appeal that has to be made by way of a memorandum of appeal which lays down the grounds for inviting such judicial examination of a decree of a lower court.

Summary dismissal

In Hanmant Rukhmanji v. Annaji Hanmant, it was held that when an appellate Court dismisses an appeal under Section 151, a judgment has to be written summarising the cogent reasons for such dismissal, along with a formal decree.

Doctrine of merger

Any decree passed by the appellate Court is a decree in the suit. As a general rule, the appellate judgment stands in the place of the original judgment for all purposes, i.e. the decree of the lower Court merges in the decree of the Superior Court. In-State of Madras v. Madurai Mills Co Ltd., it was held that this doctrine is not a rigid one with universal application, but it depends on the nature of the appellate order in each case and the scope of the statutory provisions conferring such jurisdiction. 

Cross objections

According to Order 41, R.22(1) & 33, cross-objections can be made by the defendants. They’re necessary only when some directions are issued against them that are to be challenged on the basis of which part relief has been granted to the plaintiff even without such cross-objections.

Powers of Appellate Court

Section 107 prescribes the powers of an appellate Court:

• To remand a case;
• To frame issues & refer them for trial;
• Reappraisal of evidence when a finding of fact is challenged before it;
• To summon witnesses;
• Can reverse inference of lower Court, if not justified;
• Appreciation of evidence.

Duties of an appellate court

• The appellate Court has a duty to analyze the factual position in the background of principles of law involved and then decide the appeal.
• To provide cogent reasons for setting aside a judgment of an inferior Court. 
• To delve into the question of limitation under Section 3(1) of the Limitation Act.
•  To decide the appeal in compliance with the scope & powers conferred on it under Section 96 r/w O.XLI, R.31 of the CPC.

Judgment

Section 2(9) states that a “judgment” refers to the statement given by the Judge on the grounds of a decree/order.

Decree

Section 2(2) provides that a “decree” is a formal expression of an adjudication which conclusively recognises the rights of the parties with any of the disputed matters in a suit, and maybe preliminary/final. It includes the rejection of a plaint under Section 144 but does not include adjudication that’d result in an appeal from order; or any order of dismissal for default.

Letters patent appeal

Section 100A expressly bars a Letters Patent Appeal from an order of a learned Single Judge of the High Court, on/after 01/07/2002, in an appeal arising from an original/appellate decree. The bar is absolute & applies to all such appellate orders.  

Appeal to SC

Article 133 of the Constitution of India & Section 109 of the CPC provides the conditions under which an appeal could be filed in the Supreme Court:

• From a judgment, decree, or final order of the High Court;
• A case pertaining to a substantial question of law of general significance;
• The High Court opines it to be fit for the Supreme Court to deal with such a question.

Conclusion

Appeals are recognized as statutory rights of persons aggrieved by any decision of an inferior court in the interest of justice. First appeals are a form of appeal prescribed under the Code of Civil Procedure. The period of limitation in case of an appeal to the first appellate authority is 90 days where it lies to the High Court. Finally, it can be concluded that the provisions of the CPC extensively deal with the substantive as well as procedural aspects relating to all kinds of appeals, while making express modifications in order to be accommodative of the more specific legislation.

References

• Dayawati v. Inderjit, AIR 1966 SC 1423, https://indiankanoon.org/doc/338690/. 
• Garikapatti Veeraya v. N. Subbiah Choudhury, 1957 AIR 540, https://indiankanoon.org/doc/673500/. 
• Subbanna v. Subbanna, AIR 1965 SC 1325, https://indiankanoon.org/doc/1752222/. 
• Bahori v. Vidya Ram, https://indiankanoon.org/doc/713637/. 
• State of Madras v. Madurai Mills Co Ltd., https://indiankanoon.org/doc/28118/. 
• Hanmant Rukhmanji v. Annaji Hanmant, https://indiankanoon.org/doc/465172/.
• Iftikhar Ahmed v. Syed Meherban Ali, https://indiankanoon.org/doc/1778916/.

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 M.Arjun, a final year student of Government Law College, Thrissur. In this article, he discusses the Data Protection Bill 2019 And Its Repercussions.

Introduction

With internet penetration recording an all-time high of 58%, data has become an outright solution for most of the present-day problems. The world’s largest and most substantial data protection regulation, the General Data Protection Regulation (GDPR) hit the European Union by storm as it came into force from May 25, 2018. Despite having the second-largest internet users in the world, India was lacking a comprehensive data protection regulation. The need for such a regulation was addressed through the Personal Data Protection Bill 2019 (PDPB).

On July 28, 2018, Justice Sri Krishna Committee submitted the draft of the Personal Data Protection Bill. The draft invited a lot of criticism for certain provisions such as the data localisation policy. The bill was introduced in the parliament on December 11, 2018. Later, it was referred to the Joint Select Committee which has to submit its report when the Parliament meets for the budget session on 2020.

What is it all about?

The PDPB regulates the processing of “personal data” which is basically any data that can identify an individual. The Bill applies to any private/public body or corporation incorporated in India. It also applies to any overseas corporation dealing with personal data of Indian entities. Data, as per the Bill, should be processed in a ‘fair and reasonable’ manner. The bill also includes “sensitive personal data” which requires a more severe level of supervision and regulation. Sensitive personal data includes financial data, biometric data, data about caste, religion and political beliefs etc. The Bill grants an individual certain rights during data processing. Data fiduciaries/processors are under certain obligations to maintain definite standards for data protection. However, exemptions are provided for some entities and certain kinds of data processing. 

Implications of the Bill

The Personal Data Protection Bill is expected to have great implications for data fiduciaries and data principals. A data fiduciary refers to an entity that collects user data whereas data principles are the common users whose data is collected. The PDPB can have a great impact on Indian data subjects considering the amount of personal data processed on the internet. The Bill can change the way how data is collected and processed throughout the Indian cyberspace. From internet giants like Facebook and Amazon to a very basic blog that collects personal data, compliance with PDPB is inevitable. 

How does the PDPB affect the Data Principals?

India’s data protection regulation is expected to resolve one of India’s modern problems i.e coping with data leakages. The PDPB provides the basic framework for ensuring data privacy through minimising data breaches. The Constitution grants a fundamental right to privacy. Additionally, various provisions for data protection under the Information Technology Act couldn’t suffice India’s rising problems pertaining to data protection. The Bill provides various rights to the data principals on their data with regards to the data processing. It includes:

Right to confirmation and access

The data principal will have the rights to know about his personal data which is processed by the data fiduciary. He is entitled to get a confirmation on whether his data is already processed or is under processing. The data principal is also empowered to get an abstract of the processing activities undertaken by the data fiduciary. It should be noted that the information provided by the data fiduciary should be in a clear and concise manner which is easy to understand.

Right to correction and erasure

The Bill sanctions the data principal to make corrections in relation to his/her personal data. It includes: 

• Correction of any misleading data, 
• Completion of any incomplete personal data,
• Updation of any obsolete data,
• Erasure of any data whose processing is no longer necessary.

Data fiduciaries can reject the application of the data principal on the grounds that such data is integral for processing, provided that it makes a written justification for the same. If the data fiduciary rejects the application of the data principal without any reasonable justification, the data principal can dispute it. If any correction, modification or erasure is effected, the data fiduciary is under the obligation to notify the changes to all the parties with whom the data is disclosed or shared. 

Right to be forgotten 

This right enables the data principal to restrict or discontinue the disclosure of his personal data if such disclosure is:

• Made with consent and such consent is withdrawn,
• Data collected is no longer useful for the purpose for which it is collected,
• Contrary to any law or any provisions made under any law.

For availing this right, the data principal has to file an application with an adjudicating officer who shall make an order for the same.

Right to data portability 

The right to data portability confers the data principal, a right to receive his personal data in a commonly used or machine-readable format when the processing is done through automated means. It also facilitates the data principal to transfer the personal data to a different data fiduciary. This right to transfer the data may not be available if such transfer is not technically feasible, if it reveals the trade secret of the transferor or is in compliance with law or an order of the court.  

Obligations of Data Fiduciaries

The Bill imposes certain obligations on data fiduciaries in relation to:

Purpose Limitation

The Personal Data Protection Bill mandates the data fiduciaries to process personal data 

only for clear, specific and lawful purposes. The processing shall be done only in a fair and reasonable manner in accordance with the consent given by the data principal. When the data is processed for a purpose incidental to the purpose consented by the data principal, the data principal should reasonably expect the circumstances of such processing. The Bill also directs the data fiduciary to only collect the data required for data processing 

Serving the notice

The data fiduciary is expected to serve a notice to the data principal at the time when the personal data is collected. If the data is already obtained, the data fiduciary should inform the data principal that his personal data is collected along with the following details:

• Purpose of collection;
• Source of collection;
• Nature and categories of data collected;
• Basis of data processing;
• Identity and contact details of the data fiduciary and Data Protection Officer, if required;
• Individuals and entities with whom the data may be shared;
• Information about cross border transfer of data;
• Information pertaining to grievance redressal;
• Any other information as specified by the regulations.

In certain circumstances such as, in compliance with an order of a court of the state, medical emergencies, disasters and public order situations the data fiduciaries are not required to serve a notice.

Standards for the collected data

The data fiduciary is expected to maintain the quality of the data collected. It should take the necessary steps to maintain the correctness, completeness and accuracy of the data collected. It shall maintain the data collected with a certain level of prudence. When the personal data transferred to other data fiduciaries are not maintained as per the directions, the data fiduciary should inform the same to the data principal.

Storage Limitation

The Bill prohibits the data fiduciaries from retaining the personal data after the period necessary for processing. Such data should be deleted once its purpose is served. Data fiduciaries are also expected to conduct a periodic review for the same. However, data fiduciaries are allowed to retain the data on explicit consent from the data principal or if it’s necessary for complying with any law in force.

Processing of Personal Data On Non-Consensual Grounds

Generally, the personal data of an individual can only be processed with the consent of the data principal. However, there are instances in which it can be processed without his consent, if such processing is in relation to the performance of a state function. It includes activities like the issue of license and certificates as well as for providing any service supplied by the state. Consent is also not necessary when the data processing is as per the order of a court or in compliance with any law in force. The Bill also permits an employer to use the personal data of the employee without his consent in situations such as:

• For recruitment and termination of an employee.
• For providing any service to the employee.
• For verifying the attendance of the employee.
• Any other activity for assessing the performance of the employee.

The conditions referred above are for the processing of personal data without the consent of the data principal. It does not apply for the processing of sensitive personal data.

How Does The Bill Affect An Entity That Collects Personal Data?

Data fiduciaries never had to comply with any data protection mechanisms to date. But the PDPB bill imposes a significant amount of compliance and data protection standards on them. A data fiduciary is expected to act in conformity with these policies and guidelines. They are:

Privacy by design policy

As per the privacy by design policy, the data fiduciary should give foremost importance to privacy throughout its activities. It implies that the data fiduciary shall hold the privacy of a data principal in all of its managerial, organisational, and business activities. Data should be processed in a transparent manner considering the obligations laid down by the Bill. No innovation should come with the cost of privacy of a data principal. The data fiduciary should employ sufficient technological standards for the protection of privacy and the interests of the data principal should be considered throughout the processing activities. It is also obliged to submit the privacy policy to the “Data Protection Authority” which verifies and certifies the privacy by design policy. The privacy policy shall be uploaded on the website of the data fiduciary as well the Authority.

Transparency in processing

Data fiduciaries are directed to maintain transparency throughout the process of data processing i.e from the time of collection of data until the data is deleted. The categories of data collected and the manner by which data is collected should be communicated to the data principal. All the purposes for data collection including the information related to cross border data transfers should be disclosed. The rights available to the data principal under the Bill along with the right to file a complaint to the Authority against the data fiduciary should also be conveyed. The data fiduciary can give and withdraw consent through a consent manager who shall be registered under the Authority. 

Security safeguards

The Bill imposes certain security safeguards on the data fiduciaries. It should employ certain security mechanism for eliminating all sorts of harm that may be incurred during data processing activities. It should use technologies such as de-identification and encryption to safeguard personal data. Moreover, the integrity of the data should be protected so that unauthorized data disclosures and destruction of data can be avoided. A review of security safeguards should be conducted from time to time and the data fiduciaries should take appropriate measures.

Reporting of a personal data breach

Data fiduciaries are obliged to report any sorts of data breaches. When such breach may result in harm to a data principal, It shall inform the Data Protection Authority about the breach through a notice consisting of the following particulars:

• Nature of the personal data subjected to breach;
• Number of data principals affected;
• Consequences of the breach;
• Actions taken to cure the breach.

The notice shall be made without any undue delay, within the time prescribed by the regulations. The Authority may also direct the data fiduciary to communicate the breach with the data principal considering the severity of the breach. The Authority can also post the details of the breach on its website.

Grievance redressal

Data fiduciaries are expected to follow certain immediate grievance redressal procedures for remedying any sort of data breaches. Data principals can file a complaint when the provisions of the Bill are not complied by the data fiduciaries. Such a complaint is filed to:

• Data Protection Officer- If the data fiduciary is classified as a “significant data fiduciary”.
• Any other officer as may be prescribed in case of other data fiduciary.

A complaint filed should be resolved by the data fiduciary within 30 days of receipt of such complaint. If it fails to resolve the complaint with the prescribed time or if the redressal mechanism was not satisfactory, the data principal can file a complaint with the Data Protection Authority in the prescribed format.

Significant Data Fiduciary 

As mentioned in the above paragraph, the PDPB has given the power to the Data Protection Authority to classify a certain set of data fiduciaries as “significant data fiduciary” on the basis of:

• The volume of data processed.
• The sensitivity of data processed.
• Turnover of the data fiduciary.
• Use of new technologies in the data processing.
• Risk of harm caused by data processing.
• Any other factor which may cause harm during data processing.

A data fiduciary classified as significant data fiduciary is mandated to register itself with the Data Protection Authority in the manner specified by the regulations.

The Central government can classify certain social media intermediaries as “significant data fiduciaries” on the basis of a certain threshold which varies according to the nature of the social media intermediary. The Bill regards social media intermediaries as an entity that allows the exchange of information online. These entities are expected to have a considerable impact on electoral democracy, the security of the state, sovereignty and public order. 

Significant data fiduciaries are mandated to follow a higher degree of compliance and security standards for data protection. It includes: 

Data Protection Impact Assessment

When the significant data fiduciary undertakes  data processing activities, involving complex technologies and sensitive personal data, the Bill mandates the data fiduciary to conduct a Data Protection Impact Assessment (DPIA). The Authority by law shall select certain data fiduciaries or a class of data fiduciaries who are required to comply with the same. It may also specify the cases where a data auditor is required to audit the DPIA. The Data Protection Impact Assessment shall include:

• A detailed list of processing activities including the nature and purpose of activities;
• Assessment of harm that may be caused while processing;
• Measures for minimising and removing such harm.

The Data Protection Impact Assessment shall be reviewed by the Data Protection Officer, who shall submit a report of the same to the Authority in the manner specified. If the Authority finds that even after the DPIA there is a probability for any harm to the data principal, the Authority can cease such data processing or mandate other conditions for such processing. 

Maintenance of Records and Audit of Data

A significant data fiduciary should keep up to date records of all data processing activities in the manner specified in the regulations. Various records include:

• List of all important operations in the data processing life cycle;
• Records of periodic review of security safeguards ;
• Records of Data Protection Impact Assessment;
• Any other aspects of processing as specified under the regulation.

A significant data fiduciary should audit all its conducts and policies with the help of an independent data auditor. The Authority shall register persons with expertise in fields such as data science, privacy, data security etc as an independent data auditor. It shall entrust the independent data auditor to provide a rating known as the “data trust score”. The Authority shall appoint an auditor to audit the data processing activities when the data processing activities are apprehended to cause any harm to the data principal. 

Data Protection Officer

Every significant data fiduciary should appoint a Data Protection Officer with sufficient qualifications and experience to perform various functions such as:

• Maintaining the records specified under the Bill;
• Conducting Data Protection Impact Assessments;
• Act as a point of contact for the data fiduciary for grievance redressal mechanisms
• Advising and assisting for ensuring compliance with various provisions under the Bill.

The data fiduciary can assign other functions which it may consider necessary. The Data Protection Officer should be based in India and act as a representative of the data fiduciary. 

Restrictions On Transfer of Data Outside India

The data localisation policy of the Draft Bill submitted by Justice Sri Krishna committee invited a lot of criticisms. It required a copy of personal data to be stored in India for every cross border transfer of data. Further, it prevented sensitive personal data to be transferred outside India. The PDPB bill has diluted the provisions related to the cross border transfer of data. As per the Bill, there are no restrictions on transfer and processing of cross border personal data.

Sensitive personal data can be transferred outside India for the purpose of processing. However, such data should be stored in India. Cross border transfer of sensitive personal data should only be done after explicit consent from the data principal subject to other conditions mentioned in the bill.  The Central Government can also classify a certain set of data as “critical personal data” whose processing can be done only in India.

Data Protection Authority

The Bill proposes the creation of the Data Protection Authority (DPA) as the regulatory and enforcing body. The Authority shall have a chairperson and 6 other members with at least 10 years experience on matters relating to data protection, information security, data privacy, data science etc. The Bill explains various matters in relation to the powers, functions and administration of the Data Protection Authority.

It shall create a “code of practice” that ensures that the data fiduciaries are in compliance with the Bill. Code of practice can be generally applicable or may be specific to a particular industry. It also has the power to conduct inquiries, investigations and appoint inquiry officers in the exercise of its functions specified in the Bill. 

The DPA has the power to impose penalties for offences committed in contravention to the provisions envisaged in the bill. The penalties are classified into 2 brackets depending upon the provisions contravened by the data fiduciary. Penalties can range from Rupees 5 crore or 2% of global annual turnover (whichever is higher) and extend up to 15 crores or 4% of global turnover (whichever is higher). Re-Identification of data is criminalised and is subjected to a fine which may extend up to Rs 2 lakh or an imprisonment of up to 3 years. Re-Identification of data is the practice of matching anonymous data with publicly available information to identify an individual.

Compensation is provided to data principals who suffer harm during data breaches. An adjudicating officer of the DPA decides the compensation if the data breach is due to negligence or breach on the part of data fiduciary. The decision of the adjudicating officer can be appealed in the Appellate Tribunal.

Exemptions

The PDPB bill comes with certain exemptions. The Central Government in writing can exempt any government agency from the provisions of the Bill if it is necessary for the prevention of a cognizable offence relating to the security of the state, sovereignty and integrity of India, friendly relations among states and public order. Certain kinds of personal data such as the one used for research, statistical and journalistic purposes are also exempted. Personal data processed by a natural person for personal and domestic use are also exempted from the purview of the Bill. However such data should not be processed for commercial activities. Finally, a regulatory sandbox to encourage innovation in new fields of technologies such as Artificial intelligence, Blockchain etc is also exempted from certain provisions of the Bill.

What It Means to Startups And Small Businesses?

Just like the GDPR, the new data protection regulation is said to have its implications on startups and small businesses. One year after the implementation of GDPR, studies suggest that the investments for tech start-ups in the European Economic Area had considerably gone down. Several data-driven start-ups had to shut down when compliance costs and legal complications became insurmountable. They will be forced to comply with data protection norms directed by the Bill and the ‘Data Protection Authority. Non-compliance with the law can result in heavy penalties.

Startups/small businesses will have a hard time ensuring compliance with the Bill. The cost involved in compliance can cause trouble for small businesses. Restrictions on using, modifying, storing and processing of data can cause headaches for startups relying largely on personal data. They have to depend more on existing businesses for anonymised data which may kill the competition in the industry. Government entities are also expected to gain an unfair advantage over the private service providers due to the exemption available to the government agencies for data processing. Monetising first-hand personal data had been the life-line for start-ups which by the new regulation can be a challenging thing to do. The Internet And Mobile Association of India (IAMAI) has already mentioned its concern that the Bill can have adverse effects on innovations and tech-startups. However, most of the obligations do not apply to small entities that process personal data manually barring by any automated means. 

Conclusion

There is no doubt that the PDPB can solve a lot of India’s problems relating to data protection and privacy. The PDPB draws a lot of inspiration from the GDPR. The GDPR does not exempt government agencies and also has compulsory provisions to inform the data principals in cases of data breaches. Whereas in PDPB, it is the discretion of the DPA to inform the data principal.

Justice Sri Krishna, who prepared the Draft Bill, believes that the exemption of government agencies is a clear dilution of the Bill. It means that the ultimate beneficiaries of the Bill, the data principals, will be deprived of their rights granted by the Bill if the data processing is done by government agencies. Amidst all the data leakages caused by Aadhar, the Bill was expected to cure a lot of data-related problems. But exemption of Central Government agencies can defeat a lot of purposes intended by this much-needed legislation. 

The Joint Parliamentary Committee has invited the comments from the major stakeholders to address any loopholes in the Bill. However, the final Bill is not expected to have significant changes from the one introduced in the Parliament. All data-driven businesses are going to have a busy time complying with the Bill once it becomes a law.

Reference

1. http://prsindia.org/sites/default/files/bill_files/Personal%20Data%20Protection%20Bill%2C%202019.pdf
2. https://www.pwc.in/consulting/cyber-security/data-privacy/personal-data-protection-bill-2019-what-you-need-to-know.html
3. http://prsindia.org/node/843845/chapters-at-a-glance
4. https://www.businesstoday.in/current/policy/personal-data-protection-bill-2019-central-government-power-may-undermine-privacy-of-citizens-people/story/392186.html

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

The post The Personal Data Protection Bill, 2019 and its repercussions 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 procedures and provisions related to arrest and provisions to prevent arrest.

Introduction

Many incidents related to false arrests and harassment of arrested persons can be seen in everyday newspapers. The events or procedures of arrest are highly stressful and can cause panic to the person facing it. The ultimate need of the hour for a person at the time of arrest is released and their ultimate friend is a lawyer. Thus, it is very important for a lawyer to be quick and effective with procedures and provisions to avoid such events of arrest. A client expects his lawyer to be efficient enough to provide quick solutions in urgent situations. Arrest is one such situation. Hence, it becomes necessary to understand the basics of an arrest to help your client. 

Let us start by understanding the term “arrest” and provisions related to it.

Arrest

Arrest is the first step towards custody or detention. It is very often regarded as the start of judicial proceeding. An arrest can be in the form of physical restraint or by words.

The circumstances under which a person can be arrested are:

• Arrest with arrest warrant
• Arrest in connection with suspicion of a certain offense.
• Arrest to prevent any offense.

Types of arrest

There are basically two types of arrests:

• Arrest made in pursuance of a warrant issued by a magistrate.
• Arrest without a warrant but is made in accordance with a provision permitting such an arrest.

Provisions regarding Arrest under CrPC

The Code Of Criminal Procedure does not define arrest. Section 41 to Section 60-A deal with arrest. 

In the case of State of Haryana & Ors vs Dinesh Kumar, it was held that arrest is defined neither in CrPC, nor in IPC or any other enactment dealing with criminal offences and the only indication of arrest can be found in Section 46 that defines the mode of arrest.

The court cited the meaning of arrest given in Halsbury’s Laws of England and the Court stated that the word ‘arrest’, in its ordinary sense, means apprehension or restraint on the personal liberty of an individual. An arrest involves the act of taking a person into custody under the authority of any law, which provides the powers to detain a person for a criminal charge or for prevention of a criminal offence.

In the case of Directorate of Enforcement vs Deepak Mahajan, the court noted that custody and arrest are not synonymous terms. Taking a person into judicial custody is followed by an arrest.

• Arrest by police

Sub-section (1) of section 41 CrPC, 1973 says that a police officer, without an order from a magistrate, can arrest any person.

In the case of Joginder Kumar vs the State of UP, CrLJ, 1994, the court held that there must be a justifiable reason to arrest and no arrest can be made merely because it is lawful to do so. 

Similarly, in the case of State of Rajasthan vs Bhera CriLJ 1997, it was held that the ‘reasonable suspicion’ and ‘creditable information’ must be related to the grounds on which a police officer arrests the person.

Section 42 allows a police officer to arrest a person for non-cognizable offences if he refuses to give his name and residence information.

• Arrest by a private person

The incidences of an offender being tied up to a tree or locked up in a room etc. are very common, but are certainly unlawful. However, there are some legal powers given to private individuals regarding arrests. Section 43(1) mandates that any private person can arrest another person who has committed a non-cognizable offence or a non-bailable offence in his presence. He can also arrest any proclaimed offender but without any unnecessary delay, the arrested person should be handed over to a police officer or must be taken to the nearest police station instead of confining or restraining him in a private place.

If the person fails to present the arrested person to the police station and confines him to his own custody then that person would be charged with wrongful confinement under Section 342 of IPC. The private person must state the reason for arresting the other person, for example, if the other person was drunk or trying to assault others.

• Arrest by Magistrate

Under Section 44(1), the powers of the magistrate regarding arrest have been mandated. This Section provides for wider power of arrest than a private person as the magistrate can arrest for non-cognizable offences. If a magistrate, whether judicial or executive, within his jurisdiction, find out that an offence has been committed in his presence, then the magistrate is empowered to either arrest the offender himself or order any other person to arrest the offender. 

A magistrate can also arrest or give an order to arrest any person at any time, in his presence and within his jurisdiction by issuing a warrant.

Section 45 says that members of armed forces are protected from arrest under certain circumstances.

A military officer may arrest under Section 130 and Section 131 of the Criminal Procedure Code.

Method and Procedure of arrest

Section 46 of CrPC describes the mode in which the arrests, with or without a warrant, are to be made. 

• The arrest should be in the form of touch or confinement of the body of the person to be arrested. 
• An arrest is defined as the restraint on personal liberty, hence the person being arrested must submit to the custody of the arrester, or the arrester, by touch or confinement, may arrest the other person.
• Mere oral declaration of arrest would not amount to arrest unless the person to be arrested submits to the custody or the arrester by touch or confinement arrests the person.
• Submission to the custody can either be expressed by words or by action.

In the case of Bharosa Ramdayal vs Emperor (A.I.R. 1941 Nag. 86), the court held that if a person makes a statement or accepts to the police, about the commission of any offence by himself, then he is said to have submitted to the custody of the police officer.

If the accused proceeds towards the police station on being directed by any police officer then he is said to have submitted to the custody. In such cases, physical contact is not essential.

In the case of Birendra Kumar Rai vs Union of India, CrLJ,1992, it was held that handcuffing of the arrested person is not necessary. An arrest can be completely spoken if the person submits to custody.

Under Section 46(2) if such person forcefully resists the arrest or attempts to evade the arrest, then the police officer or another person may use all means necessary to make the arrest. If the person to be arrested tries to run away or escape the arrest then the police can use physical force to immobilize the accused.

However, Section 46(3) says that the police has no right to use such an amount of force that would result in the death of a person who is not accused of an offence punishable by death or imprisonment for life.

Section 47 gives an authority to police to search a place where a person who is to be arrested has entered. Moreover, Section 48 allows the police officers to move out of their jurisdiction in pursuit of the offender.

But Section 49 restricts the police from using force more than necessary to prevent the arrested person from escape.

Special protection as to females

Due to the rise in violation of the rights of the women, Section 46(4) was inserted into CrPC. This section prohibits the arrest of any women before sunrise or after sunset. In exceptional circumstances, a woman police officer is entitled to arrest after making a written report and obtaining prior permission from First Class Judicial Magistrate.

In the case of State of Maharashtra vs Christian Community Welfare Council of India (2003) 8 SCC 546, the court departed from the long tradition of not arresting women at night in the absence of a female constable. The Supreme Court held that strict adherence to such provision would cause practical difficulties in the investigation procedure of the agencies.

The Court stated that all the requirements must be made for the presence of a female constable but if the presence of female constable is not possible then the investigating officer should state lawful reasons for arrest before arresting the women.

Rights of the arrested person 

The arrested person has some rights which are provided to save him from the arbitrary use of power by the police. CrPC under a different provision provides for the following rights:

• Right to know the grounds of arrest under Section 50(1) of CrPC;
• Right to be informed of the provisions for bail under Section 50(2) of CrPC;
• Right to be taken to a magistrate without delay (within 24 hours) under Article 22(2) of the Indian Constitution;
• Right to consult a legal practitioner under Section 303 of CrPC and Article 22(1) of the Indian Constitution;
• Right to free legal aid under Section 304 of CrPC;
• Right to be examined by a medical practitioner;
• Right to be informed about the person’s arrest to their family.

In the case of Shri D.K.Basu, Ashok K.Johri vs State of West Bengal, State of U.P. (AIR 1997 SC 610), the Supreme Court provided for the guidelines of the arrest. The Court stated that the officer while arresting any person must have his name and designation mentioned on his badge and the police officer must also mention the same to the person.

The Court also gave guidelines to make a memo of every arrest. The memo must mention:

• The name of the person to be arrested;
• Name of the person arresting;
• Charges;
• Place where such arrest is made;
• Countersigned by 3 witnesses.

Provisions for White-Collar Crimes

The White Collar crime in India can be broadly covered under the following headings:

• Bribery
• Extortion
• Fraud
• Embezzlement
• Cybercrime
• Blackmail 
• Bank Fraud
• Insider Trading
• Money Laundering

There are several provisions that provide for punishments of white-collar crimes: 

• The Companies Act, 1960
• The Income Tax Act, 1961
• Indian Penal Code, 1860
• The Commodities Act, 1955
• The Prevention of Corruption Act, 1988
• The Negotiable Instrument Act, 1881
• The Prevention of Money-laundering Act, 2002
• The Information Technology Act, 2005
• The Imports and Exports (control) Act, 1950
• The Special Court (Trial of offences relation to Transactions in Securities) Act, 1992
• The Central Vigilance Commission Act, 2003

Criminal Procedure Code also deals with provisions of arrest under various sections for such white-collar crimes. 

Provisions of Arrest under GST

If the Commissioner of CGST or SGST has reasonable grounds to believe that a person has committed an offence under Section 132 of the CGST Act, he can be arrested upon authorisation from CGST or SGST officer. The arrested person should also be informed about the grounds of his arrest and he should be presented before a magistrate within 24 hours in case of a cognizable offence.

Arrestable Offences under CGST

Section 132 provides for arrestable offences that are:

• A taxable person supplying any goods/services without any invoice or issuing a false invoice;
• Issuing any invoice or bill without supply of goods/services in violation of the provisions of GST;
• Collecting any taxes under GST but not submitting it to the government within 3 months;
• Collecting any taxes under GST in contravention of provisions, and not depositing the same to the government within 3 months will be an offence under GST;
• The person is convicted earlier of an offence under Section 132 i.e., this is his 2nd offence.

Under Section 132 it is essential that a person is arrested only where the tax evasion is more than 100 lakh rupees or where a person has earlier been convicted of an offence under Section 132.

Bails under GST can be granted for non-cognizable or non-bailable offences.

Provisions relating to arrest under customs 

The Customs Act under Section 104 provides for powers of arrest. It mandates that if an officer of customs is empowered by general or special order of the Commissioner of Customs in this behalf and if the officer has reason to believe that any person in India or within the Indian custom waters has been guilty of an offence punishable under Section 135, then the officer of customs can arrest that person. The officer shall also inform him of the grounds for such arrest as soon as possible.

Section 104 of the Customs Act also states that every person arrested under sub-section(1) should, without unnecessary delay, be taken to a magistrate.

When an officer of customs arrests any person under sub-section(1) of Section 104, he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station and is subject to under Section 142 Code of Criminal Procedure, 1898 (5 of 1898).

Nothing that is mentioned under the Section143 Code of Criminal Procedure, 1898 (5 of 1898) shall recognise an offence under the Customs Act as a cognizable offence.

Provisions of bail 

The term bail is not defined under CrPC. Bail is the security given by the accused to the court affirming his will to attend the proceedings of the court for his trial. Bail is a method used to ensure the presence of an accused before the court. Only police and courts are capable of granting bail.

Bail: When to be granted and when not

Criminal Procedure Code defines bailable offences as offences described as bailable in the first schedule or which are made bailable by other laws in force.

The gravity of the offence, danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of the accused person form the basis of distinction between bailable and non-bailable offences. Section 436 of CrPC gives the accused a right to demand and be granted bail for bailable offences.

Section 437 CrPC lays down certain basic criteria for exercising the judicial discretion for grant or denial of bail in case of non-bailable offences. Anticipatory bail, under Section 438 CRPC, can be sought in cases where the apprehension of arrest arises.

In case of Free Legal Aid Committee, Jamshedpur vs. State of Bihar, the Supreme Court held that in a Session’s case, the accused need not seek bail from the Court of sessions if the magistrate has granted bail.

An interesting question was answered in case of Haji Mohamed Wasim And Ors v. State of U.P., that questioned the validity of bail granted by police officers. The accused on bail, which was granted by the police preferred to not appear before the court. Hence, the trial court issued a non-bailable warrant. The accused challenged the warrant under Section 482. The court ruled that he has to take fresh bail from the trial court.

Bail by police

The Police Officer has powers to release an accused person on bail from the custody when arrest is made under:

• Arrest without the issuance of a warrant;
• Arrest with the issuance of a warrant.

Sections 42, 43, 56, 59, 71, 81, 169, 170, 436, 437 and Schedule I Column 5 of the Criminal Procedure Code has conferred upon the police the powers to grant bail.

Bail when arrest made without a warrant

Section 42 Cr.P.C. 1973 gives the officer powers to arrest when the offender refuses to give name and address or if the given name and address is considered to be false. If the police officer is aware of those particulars, neither the question of arrest nor of bail arises. The police officer cannot detain the accused after the name and address have been ascertained if the accused is willing to execute the necessary bonds.

In case of arrest by a private person, the arrested person should be, without unnecessary delay, handed over to a police officer, or be brought to the nearest police station. Bail will depend upon the police officer before whom the person has been brought. The arrested person shall at once be released, if there are no sufficient grounds to believe that he has committed any offence. But if such a person comes under the provisions of Section 41, a police officer can re-arrest him and then the determination of the question whether bailable or non-bailable and the desirability of release on bail etc. will arise.

Section 56 says that a police officer who makes an arrest without a warrant must take the arrested offender, before a magistrate or before the officer in charge of a police station. However, according to Section 56, there is an inbuilt provision authorizing a police officer to admit the arrested offender to bail.

Section 169 CrPC refers to the grant of bail not at the start but only on the making of an investigation under Chapter XII of the Code. Till then bail is not authorized under this section.

Section 437(1) grants the power to release a person accused of a non-bailable offence on bail. This power is conferred upon officer-in-charge of the police station.

Bail when arrest is made in pursuance of a warrant

Section 71 and Section 81 of the Criminal Procedure Code grants power to provide bail when an arrest is made in pursuance of a warrant.

The powers of police to grant bail are controlled by directions prescribed under Section 71 of the Code. Whereas Section 81 empowers the police officer to grant bail when the arrested person has been accused of a bailable offence, even if no direction to such effect has been given in the warrant. But in case of a non-bailable offence, the directions given on the warrant has to be followed strictly. 

In the case of Lachmi Narain vs. Emperor, the Court stated that it is entirely the discretion of the Court to issue a warrant and give directions for the release of the arrested person on bail.

Bail for non-bailable offences

Section 437 deals with the provisions of bail in bailable offences. Grant of bail is a rule whereas refusal is an exception under the provisions of this Section. A person has the right to be released on bail for a bailable offence. In cases of bailable offences, there exists the concept of compulsory bail.

Section 437 empowers two authorities to grant bail:

• Court: It includes a High Court and the Court of Session, and
• Officer-in-charge of the police station: Officer, who has arrested a person suspected of a non-bailable offence without a warrant. 

Refusal of bail in bailable offences

Section 436 (2) of the Criminal Procedure Code has empowered the Court for denial of bail in cases of bailable offences when the court feels that the accused fails to comply with the conditions of bail bonds.

Anticipatory bail 

Under the Code of Criminal Procedure, there is a provision for anticipatory bail under Section 438. This provision allows the accused to seek bail when there is an apprehension of an arrest for commission of a non-bailable offence.

The filing of anticipatory bail is notified to the opposing party to let the opposition contest the bail application in court. Anticipatory bail is an order to release a person on bail, which is passed even before the person is arrested. It can only be given by the Sessions Court and the High Court.

Eligibility 

Any person under an apprehension of getting arrested- 

• on false or trumped-up charges, or
• due to enmity with someone, or
• fears that a false case is likely to be built up against him,

then the person has the right to move to the Court under Section 438 for grant of anticipatory bail. The court can, if it deems fit, direct that during such arrest, the accused shall be released on bail. 

Conditions

The Court can induce conditions for an anticipatory bail, as it deems fit, including:

• The person must be present for interrogation by the police officer whenever required;
• The person must not, directly or indirectly, induce any person, familiar with the facts of the case, trying to dissuade him from disclosing facts to the Court or to any police officer;
• The person must not leave India without the prior permission of the Court.
• If the person is arrested afterwards but is ready to comply with the conditions of bail, he must be released on bail. If the magistrate taking cognizance of the offence decides that a warrant must be issued against the person, the magistrate must issue a bailable warrant in conformity with the directions of the court granting anticipatory bail.

Cancellation

An accused is free on bail as long as it is not cancelled. The Court can direct that the person who has been released on bail to be arrested again. The Court can also commit him to custody on an application of the prosecution.

Release under Section 482 of CrPC

Section 482 of the Code of Criminal Procedure talks about the inherent powers of the High Court to prevent the abuse of the procedure of the Court. For example, if a false FIR is filed against the client then in pursuance of that an application can be filed in the Court seeking to quash the same. Upon approval of the application by the court, the FIR will be quashed and the client will be released immediately.

Article 226 and Article 32

In cases related to wrongful confinement of the client by the police or any other private person, a writ of Habeas Corpus can be filed in the Court in order to seek the release of the client. Habeas Corpus is a writ petition requiring a person under arrest or detention to be brought before a judge or into Court. This is especially done to secure the person’s release unless lawful grounds are shown for their detention.

Conclusion

Though we have some major provisions of arrest and those related to its prevention, there will be cases when your client is arrested and has been taken to the police station and those situations can be really panicking. But there are certain pieces of advice that a lawyer can provide to his/her client regarding how to handle the situations by the time he/she reaches the police station. Ask your client to stay calm and comfort him with the information that the police officers can not hurt him. Further, advise the client not to get into arguments with the police officers, and ask him not to talk to the police about the matter related to the case until you arrive. Moreover, the client can disclose his basic details like name and address which the police is entitled to know but should not reveal anything else and should seek legal advice or should ask the officer to make a call to inform his family and his lawyer about the arrest. Providing your client with such initial advice will enable him to help himself in the police station and eventually help you to deal more effectively during the arrest proceedings.

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 Kashish Kundlani, a third-year student of (BBA.LL.B) Ramaiah Institute of Legal Studies, Bangalore. In this article, Section 307 and Section 308 of the Indian Penal Code, 1860 have been discussed. These sections talk about the attempt to commit murder and attempt to commit culpable homicide.

Introduction

Culpable homicide and murder are defined in Section 299 and Section 300 of the Indian Penal Code respectively. There is a very thin line between the two offences. 

Furthermore, an attempt to commit the same is also an offence under the Indian Penal Code. Their attempts are respectively defined under Section 307 and 308. Under both the Section a lot of weightage has been given to the intention and knowledge to commit such offence and both the Sections requires a proper analysis while convicting any person under this.

Meaning of Attempt

Section 511 of the Indian Penal Code talks about the punishments relating to an attempt to commit any offense but it does not define the term “Attempt”.

If the crime is impossible to commit, then it will not be considered as an offence. This is with the exception that, instigating or manipulating someone in order to make him commit the crime is not an offence.

 It is an offence under the attempt to commit a crime.

Stages of a crime

If a person commits a crime voluntarily or even if he prepares to commit a crime, the following four stages of a crime should be present.

Stage 1: Intention

Intention to commit a crime is a mental stage. It is the willingness of a person to commit an act. The law does not consider the importance of intention. Like mere intention to commit an offence without any physical act done, does not constitute a crime. The guilty mind or evil intent should be visible. 

Stage 2: Preparation

This stage involves the arrangements to execute a crime. One should keep in mind that at this stage, no offence has been committed yet.

As preparation for any purpose is not a crime. But certain acts under the Indian Penal Code can be prosecuted at this stage.

For example- Preparation to wage war against the state and preparation to commit dacoity are punishable at this stage. 

An illustration for this stage is- If ‘L’ purchases a pistol in order to kill his enemy ‘S’ and keeps it in his pocket and does nothing. This is not a crime, this is just a preparation to commit the crime. 

Stage 3: Attempt 

The attempt of crime occurs when preparing for it, is done. The attempt is a direct action towards the committing of an offence.

Most of the sections of the Indian Penal Code makes the attempt of any crime, a punishable offence. 

Stage 4: Completion or Accomplishment

To make it a complete offence or a complete crime, the completion of the crime is very important. If a person attempts to commit a crime and eventually succeed in it, then he will be held guilty.

Through an illustration, we’ll summarize the 4 stages-

Stage 1: Intention ‘X’ makes a plan to kill ‘Y’. 

Stage 2: Preparation Buys a pistol to kill him. 

Stage 3: Attempt X points the pistol at Y and shoots him.

Stage 4: Completion Y is killed because of the gunshot.

Then X will be held guilty of murder.

But if Y is only injured then X will be held guilty of attempt to commit murder.

Scope of Section 307 and Section 308

Section 307 of the Indian Penal Code addresses an attempt to commit murder.

Whoever does the act with guilty intention or knowledge, and the person knows that the act is likely to cause death or has a knowledge that by the act or injury the result will be death, only then he would be held guilty of murder.

For example- Mr. T is planning to murder Mr. P. He collects some toxic chemicals with an intention to mix it in Mr. P’s food. 

Until Mr. T has served the food, he hasn’t committed any offence. 

But if he places the poisoned food on Mr. P’s table, or gives it to Mr. P’s servant, then Mr. T has committed an offence of attempt to murder.

Ingredients of this offence

• The nature of the act done.
• Intention or knowledge of committing an offence.
• The performing or executing of an offence towards it.
• The act in the ordinary course of nature will cause death.

The two most important ingredients

Knowledge or intention to commit an offence

To decide upon any act done under Section 307, the 3 essentials are- 

• Nature of an act done. 
• Intention or knowledge of committing an offence. 
• Performing or executing of an offence towards it.

The objective of this section is that the intention or knowledge of the accused is significant. 

To constitute an offence of murder, intention or knowledge is necessary.

Without any intention or knowledge, it is difficult to determine whether there was an ‘attempt to murder’.

The performance or executing of an offence towards it

Just wrong and evil intent to do an act is not enough to constitute a crime. To make the act punishable, a physical and voluntary act or omission must be visible. The act done should also be capable of causing death in the ordinary course of nature. 

Punishment under Section 307 of IPC

Imprisonment may extend to ten years. The offender might also be liable to pay a fine.

In an attempt to commit murder, if it results in injury to any person, then the offender shall be imprisoned for a time period that may vary from 10 years to life imprisonment. It may also be accompanied by any amount of penalty.

If any person is already convicted for life imprisonment, hurts someone again with the intent to commit murder, then he will be punished with death penalty.

Section 308 of the Indian Penal Code talks about the attempt to commit culpable homicide. 

Whoever does any act with intention or knowledge,that by such an act he is likely to cause death, he would be held guilty of culpable homicide.

For example- P shoots D as he got provoked by the words of D. If D dies, then P will be held for culpable homicide. Whereas If D does not die then P will be held guilty for an attempt to commit culpable homicide under this section.

Ingredients of this offence

• Nature of an act. 
• Intention or knowledge of the offence.
• Likely to cause death.
• Executing their act or performing their act towards it. 
• Culpable homicide not amounting to murder.

Punishment under Section 308 of IPC

Section 308 states that anyone accused under this Section will be sentenced to either imprisonment which may extend to three years, fine, or both.

If a person is injured in the attempt to commit culpable homicide, then the offender will be sentenced to imprisonment for a term which may extend to seven years, or fine, or with both. 

Is an attempt to commit murder and culpable homicide a bailable and cognizable offence?

Bailable Offences- Offences in which the permission from the court to release the arrested person is not required. The arrested person by fulfilling the necessary requirements can be released and the police cannot refuse the person.

Cognizable Offences- Offence in which the police has the authority to arrest any person without any warrant and also has the authority to start an investigation with or without any permission of the magistrate by filing FIR. 

Attempt to commit murder and culpable homicide are both non-bailable and cognizable offences. 

Case laws

Liyakat Mian and Ors. V. The State of Bihar, 1973

The four appellants were held guilty under Section 395 of the IPC by the Sessions Court for committing dacoity in the house of Hardeo Mahton. 

During the trial, it was held that appellant No. 2 will also be charged for attempt to commit murder under Section 307 of IPC. While the appellants were committing dacoity, appellant No. 2 fired a gun at Burhan Mahton which injured him gravely.

The Sessions Court held that Burhan Mahton died because he succumbed to the injuries caused by accused No. 2 and the accused No.2 would be held guilty of attempt to murder under Section 307.

The Trial Court convicted the accused under Section 395 for dacoity and under Section 307 for an attempt to murder. He punished all the accused of dacoity and gave them nine years imprisonment. The accused was also sentenced to nine years of rigorous imprisonment. It was held that accused no. 2 will serve both punishments simultaneously.

The four convicts filed for an appeal before the High Court. The High Court upheld the decision of the Trial Court and dismissed their plea.

The Apex Court considered all the evidence and dismissed their appeals.

Bishan Singh & Anr Vs. The State [2007] Insc 1015 (9 October 2007)

Facts of the case

Bishan Singh and Govind Ballabh were convicted for the commission of an offence under Section 147 and 308/149 of the Indian Penal Code. Out of a group of 6, they were the only two who had survived. Harish Bhatt, the plaintiff, was assaulted by the accused with lathis. They also took out Rs.400 out of his pocket. In order to save him, the plaintiff’s brother Ghanshyam intervened. But all of the accused attacked Harish Bhatt with an intention to kill him. As a result, Harish Bhatt did not die but received several grievous injuries because of their attack.

Trial Court

The trial judge convicted the appellant under Section 147 IPC for rioting and under 308/149 of IPC. The court sentenced them to imprisonment for one year under Section 147 IPC and four years under Section 308/149 IPC. 

In his FIR, the informant said they were threatened by the accused. They argued that the act was done with the intention of murder, but the offence was recorded under 147 and 323 of IPC when it should be recorded under Section 308.

The judge after analysing the non-presence of the ingredient of Section 308, convicted them under Section 323 and 325.

Rambabu vs The State Of Madhya Pradesh on 1 April 2019

In this case, the appellant was convicted under Section 307 of India Penal Code. The court sentenced him to five years of imprisonment and charged him of Rs. 5000 as a penalty. 

The court held that the appellant was guilty under Section 307 and the bail will not be granted. The Court also held that injuries on the other person, regardless of their severity, would attract punishment under Section 307. All the injuries will be considered as an offence and the person committing will be held guilty.

Conclusion

After the analysis of Section 307 and 308, it has been well established that not only committing an offence, but attempt is also punishable. But it should be kept in mind that for an attempt to be punishable, the presence of an intention and preparation of the crime is important. 

The need to reform this section arises when an analysis of Section 307 and 308 is done with Section 511. Under Section 511, all the crimes, regardless of the possibility to perform, are considered as an offence, and are punishable under this act. In Section 307 and 308, the intention, knowledge, and means to perform it, are elements the courts deem essential for an act to become a crime. 

For example- If a man threatens to kill another person by using a child’s pop gun. No offence is committed here because it lacks the necessary arrangements or proper means to perform it. But similarly in some situations, if someone fires a gun at something thinking it to be a person where actually there is nobody, then the previous example will be held punishable under Section 511. Whereas the latter example will not be held punishable under Section 307 this is because it is an impossible attempt and the means or proper preparation to commit such offence is missing.

References

1. http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html
2. https://legodesk.com/legopedia/section-307-ipc-attempt-to-murder/
3. https://lawtimesjournal.in/section-511-of-the-indian-penal-code/
4. http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html
5. https://devgan.in/ipc/section/308/
6. https://www.lawnn.com/stages-of-crime/
7. https://www.lawteacher.net/free-law-essays/criminal-law/the-attempt-and-not-the-deed-confounds-us-law-essay.php

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 Section 307 & 308 of IPC: Attempt to commit murder and culpable homicide appeared first on iPleaders.

This article is written by Shubhangi Upmanya, pursuing BBA.LLB. from Vivekananda Institute of Professional Studies, Indraprastha University. In this article, she has discussed the provisions related to bail.

Introduction 

India witnesses a lot of crimes on a daily basis and the police many times are successful in tracing the criminals who they believe did the crime. The trial starts after some weeks or months from their conviction. The convicted criminals may at times, not be guilty and still be required to face jail time. The only way out of this is to get a bail.

The concept of bail was only prevalent in England during 399 BC. Its first instance was when Plato tried to procure a bond in order to release Socrates. Getting inspired from that, India also, later on, introduced this concept.

Well, if you get a call and learn that your client is jailed, then let’s see how to get him out of it.

The basic concept of bail

The term ‘bail’ means a kind of security or bond which is given to release a person from prison. It is a pro tem release of a criminal before his trial begins. The term ’bail’ is not defined anywhere in the Criminal Procedure Code, 1973, however, the terms ‘bailable offense’ and ’non-bailable offense’ are defined in Section 2(a) of Cr.P.C.

Evolution of the concept

As mentioned earlier, the concept was first introduced in England. The judges in England used to travel from place to place to hear the cases which took place from session to session. During this, the prisoners would face a hard time because of the unhygienic prison conditions. So the system of bail was introduced to release the prisoners awaiting trial. 

Later on, the Charter of Rights, the Magna Carta was introduced in the year 1215, which gave the right to the citizens, which stated that a man can not be convicted until he has faced the trial. The offenses were divided into bailable and non-bailable, back in 1275 by the statute of Westminster.

The Habeas Corpus Act came in the year 1679, according to which the magistrate can release the prisoners by taking some sort of surety. The English Bill of Rights introduced in the year 1689 provided a shield against the excessively high amount of bail. Currently, the Bail Act of 1976 is been followed in England.

Talking about the United States, the Bill of Rights was subsumed in its Constitution in the year 1791. It guaranteed all the provisions related to bail.

In India, the provisions regarding bail are incorporated in the Criminal Procedural Code,1973.

The Sections 436 to 450 deals with the grant the bail and bonds, in cases of criminal nature.

Let’s look at these provisions in depth.

In which cases can you get your client, bail?

Section 436

Section 436 of CrPC states that any person who is detained by a police officer, who doesn’t have a warrant or that person is prepared in the custody of the police officer before the court has granted him bail, shall be released on bail through a bond without any kind of sureties.

If the person has failed to follow the bail-bond then he can be refused bail. In case, the person appears in the court, such refusal will be subject to the court and it can call that person and impose penalty given under Section 446 of Cr.P.C.

Types of bail

Generally, there are three types of bail. Let’s have a look at them.

Regular bail

When a person has been arrested and is kept in custody, then the person can be released on a regular bail under Section 437 and Section 439 of the Cr.P.C.

Section 437

It states that, if any person is detained for the commission of a non-bailable offense, without a  warrant by a police officer, or when there are reasons to believe that there are not sufficient grounds to prove that the person has committed any non-bailable offense, then he can be released. This has to be followed in case he appears in any other court other than the Court of Sessions or the High Court.

Even so, this person can not be granted bail if there are reasons to believe that he is guilty of any offense punishable with a death sentence or life imprisonment or he has earlier been convicted for an offense which was punished with punishments of the same nature.

Section 439

It gives special powers to the High Court and the Court of Sessions regarding the same.

It enables these courts to release the people on bail for the offenses specified in Section 437(3) of CrPC. The court can impose any condition which it thinks is necessary.

It further provides that any condition which the Magistrate imposes can be set aside if the High Court has granted bail after giving notice to the public prosecutor. The bail, in this case, should be provided in case the offense can be tried exclusively by the Court of Sessions and is punishable with life imprisonment.

Under both of these Sections, the courts can again direct the arrest of that person.

Interim bail

Before the procedure for granting a regular bail or anticipatory bail, interim bail is provided. It is given for a temporary period. The reason behind this is that the granting of bail by the High Court or the Court of Session requires documents to be sent by the lower courts, which takes time. So, for the time being, the provision of interim bail is provided.

The Interim bail can be extended and if its period expires then the person to whom it is granted has to be put in jail again.

Anticipatory bail

Section 438 of the Criminal Procedure Code, provides the direction for a person apprehending arrest for any reason to believe.

It provides that any person who anticipates that he can be arrested in pursuance of any accusation of committing a non-bailable crime can apply for the grant of anticipatory bail. Application has to be made to the High Court or the Court of Sessions.

According to this Section if a person is released then there are some conditions that will follow-

• The person has to be present during the investigation whenever required,
• The person can not induce any person to disable him to enclose the facts against him during the proceedings,
• The person shall not leave India without the prior permission of the court.

It was further provided that if any person is arrested by a police officer without a warrant then he can be given bail.

Circumstances under which bail is given by police

When the arrest is made without a warrant

Section 43 of the Cr.P.C. provides for the arrest of any accused by a private person. The private person after the arrest should bring the convicted person to the police station or hand him over to the police officer as soon as possible. The police will if it thinks that the convicted person should be released, release him.

Section 56 of the Cr.P.C. enables the police officer to bail that person out under the provision contained in this Section.

Section 169 of Cr.P.C. state that the bail can only be set when the investigation is made. Until then this Section does not provide bail. Bail can be given by the officer-in-charge of the police station or the police officer who is investigating.

Section 170 of Cr.P.C. confers authority to give bail, in the officer-in-charge of the police station in case the person is accused of committing a non-bailable offense.

When the arrest is made with the issuance of the warrant

Section 73  of Cr.P.C. states that if the court is issuing the warrant under which it is specified that if the person executes a bond in which he has provided sureties for appearing before the court when the court specifies, then the police officer to whom the warrant is issued will be allowed to give bail to the person.

According to Section 81 of Cr.P.C. and Section 82 of Cr.P.C., it is specified that if the arrest is made in the district, the police officer other than District Superintendent of Police or the Commissioner of Police can release the accused from custody, but in case the arrest is made out of such district then the District Superintendent of Police or the Commissioner of Police in the area of arrest can release the convicted.

Theories behind the provision of bail

Well, there are some theories that are believed to take place in pursuance of granting bail. Let’s have a look at some.

• Sometimes the innocents in prison are awaiting trial while being imprisoned all that time, which should not happen.
• Internment without trial violates the basic rule of law. 
• Detention until not proven guilty is violative of Article 21 as it hampers personal liberty and life.
• The detention proves to be expensive.
• It may cause lots of financial suffering on the part of the family of the accused.
• The person who is incarcerated will get less opportunity to prepare for his case whereas the person who will be bailed out can present his defense in a proper way.

Process of bail

When a person is accused of a crime, the first step the police take is getting him booked. The police gather his personal information such as date of birth, address, etc and then do a little investigation into his personal history, check on his previous criminal records, if any.

The police also check if he is intoxicated while the charge sheet is being prepared.

Bail application

When the person is convicted of a crime, he has a right to apply for bail. Applying for bail depends upon the juncture at which the case is. To give you an illustration, if the manager of an office apprehends that he can be booked for harassment, alleged by an employee, who is a woman in his office, then, in this case, he can file an anticipatory bail application.

If the person is arrested, hitherto, the first thing he will do is to call you, his criminal defense attorney and apply for bail. Now, we know there are two types of offenses, bailable and non-bailable. In the case of a bailable offense, the accused has to file an application by filing the Form-45 which is provided in the second schedule. This has to be filed in the court where the case proceedings are to be heard. The court has to approve the bail.  In case of non-bailable offense, the suspect has to fill up the same form and file it in the court where his case is to be presented, the only change is that here the court has the discretion to grant bail.

Furthermore, every bail application should stand as distinct, as every case has different scenes and many uncommon facts.

Bail on Appeal

When a person is already convicted and applies for appeal in the Higher Court, meanwhile he can apply for bail. There are many things that have been taken into consideration like what if the appeal will be granted by the Higher Court or if there was a grave mistake made on the part of the Lower Court in deciding the case, etc.

Bail hearing

The bail hearing is the process, wherein the judge hears all of the reasons to grant bail and then announces the decision, based on whether he is convinced to grant the bail or not. It is important to understand the motive of the hearing and choose who is representing the convict in the hearing. It is the main role that you, as an attorney, will have to play. Herein, all the evidence and the facts are presented before the court. And the attorney has to convince the judge so that he starts to believe that there is a likelihood that the accused should not be convicted after his trial and he is innocent. 

What all will the judge consider while hearing your case proceedings?

Well, he has to be sure before he gives you bail, so he will be more likely to consider the following factors-

• The character of the accused,
• Nature of the crime for which the accused has been convicted,
• His employment situation and financial conditions,
• His background history,
• Whether the accused has been convicted before and if yes, then his regularity in the scheduled appearances by the judge,
• His family background and history,
• For how many years he has been a resident of the community, he is currently living in.

All the evidence regarding these factors is to be presented by the accused and his attorney.

However, the judge can grant bail or cancel it due to a lack of evidence or if he thinks the evidence is not proper. When the judge grants the bail then he imposes some conditions along with it. These conditions are most likely related to alcohol tests, constraints in travel, necessary conditions in employment, periodic meetings with an officer.

Determinants to grant bail

The judge while giving bail, takes into consideration all the factors governing the bail.

These factors can be-

• A threat to the community at large

The judge takes into consideration public safety by ensuring that the accused after bail is granted, does not do anything that hampers the safety of the general public.

To make certain of that, the judge looks for certain factors-

1. If the accused is charged with an offense of minor nature.
2. His level of involvement in the alleged crime.
3. His past records.
4. If he has been convicted for violence.
5. If he is of a violent nature.
6. If he has some medical condition which creates a certain disorder.
7. Whether he is small or weak for his age to commit that crime.

• Flight risk

In order to make certain that the suspect appears in court whenever the judge schedules the meeting, the judge has to take into account the risk of the suspect to flee.

To give you an illustration, Anuj was convicted for money-laundering, he was released on bail as he was a well established and a famous person. But soon after he ran away to another country where the police can not capture him. 

So, this is the flight risk which has to be taken care of and certain factors by which it can be made certain are-

1. For how long the convicted has been a part of the community?
2. How many family members live in that community?
3. Whether the suspect surrendered voluntarily or was chased down by the police?
4. Did the suspect cause any hindrance in the investigation?
5. Whether the suspect gave a comprehensive statement to the police?
6. The regularity of the suspect while attending his school or college which will show his regularity to attend the scheduled meeting.
7. Whether the suspect let the investigation go in a convenient manner?

Some other factors are necessary to consider such as the trial period of the convict, substance abuse and drug history of the convict. 

The defense attorney along with the suspect has to provide the evidence necessary for the verification of the factors stated above, which the judge will take into account while making the judgment regarding giving the bail or not.

Setting the bail amount

The judge announces an amount to be paid by the accused when he appears in court. The provision of the setting of the amount is in order to ensure that the suspect appears in court at the time scheduled. In many jurisdictions, there is a provision of the bail schedule which provides for a predetermined amount for different criminal acts. To give you an example, assume, the bail amount set for robbery is Rs. 1000 whereas the bail amount set for an act of manslaughter is Rs. 10000. The initial amount set can be reset or altered, that is it can be increased or decreased in conformance with the circumstances. It is done because the initial amount is set in accordance with the first appearance of the convict in jail.

The factors that impact the setting of the bail amount are-

• The gravity of the crime;
• Accused previous criminal records;
• Employment status of the accused;
• The accused bond with his relatives;
• His roots in the community.

Bail Schedule

The accused can instantly get the bail even before going to the court, which is in the police station itself.

The police stations, generally have a posted bail schedule for determining the amount in accordance with the crime committed. The crimes in the posted bail schedule are ones which are committed generally. Hence, the accused after being booked can get immediate bail by paying the amount mentioned in the posted bail schedule. But to bring it to notice, the amount specified for the respective crimes is not flexible, that is if someone is wanting to pay an amount less than the amount specified then the police station can not lessen it and the accused has to go to the court for the same.

Bail posted through mathematical methods

Nowadays, some courts have started to set bail by means of an algorithm. They follow mathematical methods to get the result of the exact amount of bail to be set. In this, the information of the accused is filled in which gives out a certain score as an output. This algorithm considers all the factors such as past criminal records, age, residence, etc. In order to ensure that the particular person accused will not fail to appear before the court or flee. It also checks for the probability of the accused to commit another crime.

Cancellation of bail

In certain cases, the judge will deny the bail completely. It can be denied at any stage of the case. The convicted person who applied for the bail will again have to go to jail. However, in a case where police have already provided the bail, the judge can not deny or cancel it. But in instances where the convict is likely to flee or when some other jurisdiction has placed a hold on the accused then, the judge will cancel the bail and let the other jurisdiction review and make the charges.

For example, Meera is residing in Australia and her family is in India. In Australia, she is caught for carrying a deadly weapon. Apart from this, she was also carrying a passport and Rs. 1 lac in cash. The judge while giving her the bail will look at her residential status, the passport which shows her chances to flee and her ties with the community in Australia. 

In order to negate this, she will have to provide the judge with the proof for each of the contentions.

Section 437(5) of the CrPC and 439(2) of the CrPC, gives authority to the court to cancel the bail.

Section 437 in clause 5 says that if the accused is released on bail under sub-clause 1 and 2 of the same Section then the court can cancel the bail if it thinks it is necessary.

Section 439 in clause 2 says that the High Court or the Court of Sessions has the authority to convict and commit the accused again into custody.  

Posting of bail

Let us discuss various options for posting the bail.

Cash bail

In this type of bail, the accused has to the full amount as specified, in cash. The court can sometimes take the amount via a credit card or a cheque.

Surety bond

It is generally known as a bail bond. this comes into play when the accused is not able to pay the entire amount of the bail. The relatives or friends of the accused, in this case, can contact a bail agent, who is also known as the bail bondsman. The bail bondsman is supported by an insurance company and he is made liable to pay the entire amount in case the accused fails to do so in the future. Now, what does this bail agent get? Well, he charges some sort of interest like 5 percent or 10 percent and asks the accused to pledge some kind of collateral or surety like his house or any kind of property.

Citation

Also known as release on cite-out, this process does not even require the suspect to get booked. In this, there is just a citation given which provides for the accused to appear in court from time to time. It will save time for the officers and allow them to chase down more serious offenders, as it saves them from following the procedure of booking the suspect and other procedure that is further carried out.

Release on Own Personal Recognizance

When there is a case, which is of minor nature, or the accused is involved in a very minute manner in it, then the person can be released on his own personal recognizance without giving the bail amount. In this case, the judge also has to take into account the flight risk and the risk of the accused to be a danger to society. The suspect only has to appear before the court from time to time, when specified.

Property bond

This is a method that provides that the accused instead of giving money as the bail amount can give legal authority to the court over his property. If the accused does not appear in the court at the time when the court calls, then the court can forfeit his property.

Bail provided in a bailable offenses

Section 436 of the CrP.C. deals with the provision of bail in case of a bailable offense. The person has a right, under this Section, to get bail and get out of jail after paying the bail amount with or without sureties. 

Some bailable offenses are-

• Causing hindrance in a peaceful assembly where people are worshiping,
• Causing hindrance in the work of a public servant,
• Bribing during election campaigns,
• Fabricating incorrect evidence, etc.

Bail provided in a non-bailable offenses

The person per se does not have any right to apply for bail in the case where he has committed a non-bailable offense. To give bail even in a non-bailable offense is the courts’ discretion.

This power of the court is given under Section 437 of the CrP.C. 

The judge may take into account the following conditions-

1. If the convict is a woman or a child,
2. If there is not enough evidence to believe that the accused is liable of the offense,
3. If the accused is mentally or physically sick.

Judicial trends

State of Rajasthan v. Balchand

In this case, the accused was convicted of killing the lover of his wife he saw them in objectionable circumstances. The trial court convicted him of the murder, later on, he was released by the High Court to which he had appealed. The High Court ruled out that it was under sudden provocation that he killed the man but later on an appeal was made to the Supreme Court by the State through special leave petition and he was again convicted. He then applied for bail on which Justice Krishna Iyer said that providing bail under these circumstances will go against the fair system of the administration of justice.

Manka Gandhi v. Union of India

In this case, Justice Krishna Iyer contended that there is no definition of the word ‘bail’ given in the Criminal Procedural Code. Justice PN Bhagwati also added that bail has to be provided in accordance with the economic condition of the accused as many accused who apply for bail are poor.

Hussainara Khatoon and others v. Home Sec, and the State of Bihar

In this case, a rule was laid down that if a man stays in jail for a period more than the period which he has to spend in jail after he is convicted for a crime, then he ought to be released.

Conclusion

It is important to doubt first and then prove but the presumption of innocence is also necessary. With this thought, the provision of granting bail was introduced. It has proven as a remedy to let the innocent man be saved from spending his time in jail before his trial and also allows him to enhance his case preparation while allowing the lawyer to create a good understanding of the case. Because of this, the attorney is able to get in touch with the family members of the accused and gather letters of support that help build the case. Still, the setting of the bail amount is not done accordingly. Measures should be taken to make certain that poor convicted people can give the bail amount as they can be innocent too. Also, the bail system should be enhanced when someone is convicted in the case of Driving under Influence(DUI) and Driving While intoxicated(DWI) as it is very ambiguous for the court to provide bail in such cases.

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 How to obtain bail for your client under Cr.P.C.? appeared first on iPleaders.

This Article is written by Srishti Kaushal, a first-year student of Rajiv Gandhi National University of Law, Patiala. In this article, she discusses the provisions regarding kidnapping and abduction, enshrined in Section 359 to 374 of the Indian Penal Code, 1860.

Introduction 

Though, Indian laws prohibit abduction and kidnapping, since 2005, more than 100,000 kidnapping and abduction cases have come up in India. People have continued to take advantage of the tender age of minors to kidnap them and exploit and force them to perform horrendous acts. Such offences are an attack on the liberty and freedom of citizens and must be prevented. 

Section 359 to 374 of Indian Penal Code, 1860 provides for punishments for these offences. In this article, we will discuss these provisions in detail, understand the essentials of kidnapping and abduction, discuss the difference between kidnapping and abduction and also discuss the provisions regarding forced slavery, labour and sale and purchase of minors for illegal purposes.

Kidnapping 

Kidnapping means taking away a person against his/her will by force, threat or deceit. Usually, the purpose of kidnapping is to get a ransom, or for some political or other purposes etc. Kidnapping is classified into two categories in Section 359 of the Indian Penal Code and defined in Section 360 and 361 of the Indian Penal Code. Let’s understand these sections better.

As per Section 359 of the Indian Penal Code, Kidnapping is of two types:

1. Kidnapping from India,
2. Kidnapping from lawful guardianship.

These two types are explained in Section 360 and 361. Let’s look into them in detail.

Kidnapping from India

Section 360 explains kidnapping from India. According to section 360, if any person takes a person beyond the limits of India against the consent of that person or against the consent of someone who is legally entitled to give consent on that person’s behalf, then the offence of kidnapping from India is committed. 

Illustration: ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her consent. ‘B’ committed the offence of kidnapping ‘A’ from India.

Keeping of Lawful Guardian

Section 361 explains kidnapping from lawful guardianship. According to this section, if a person takes away or entices a minor (i.e, a boy under the age of 16 years and a girl under the age of 18 years) or a person of unsound mind, away from his/her lawful guardian without the guardian’s consent, then that person commits the offence of kidnapping from lawful guardianship.

Thus, the essentials of kidnapping from lawful guardianship are:

Illustration: ‘A’ is a boy of 13 years of age, living under the lawful guardianship of his mother, ‘Z’. ‘B’ ‘convinces him to accompany him to his house against the consent of his mother. According to Section 361, ‘B’ has committed the offence of Kidnapping from lawful guardianship. 

Here, the minor is ‘A’; the lawful guardian is his mother, ‘Z’ and the person who is committing the offence is ‘B’ as he is taking A away from ‘Z’ against Z’s consent.

This section also mentions an exception. It says that it does not result in the crime of kidnapping from lawful guardianship, if the person in good faith, i.e, honestly with reason, believes that:

1. He is entitled to the lawful custody of the child; or
2. He is the father of an illegitimate child.

Hence, If in the above illustration, ‘B’ believes that ‘A’ is his illegitimate son, then his act of convincing him to come to his house without his mother’s consent would not result in kidnapping from lawful guardianship.

State of Haryana v. Raja Ram, AIR 1973 SC 819

To understand this better let’s look at the case of State of Haryana v. Raja Ram.

Facts

‘J’ had tried to seduce the prosecutrix, a girl of 14 years to come and live with him. The girl’s father forbade ‘J’ from coming to their house and in response, ‘J’ started sending her messages through the respondent.

• One day, the respondent went to the girl and asked him to come to his house and later sent his daughter to bring her. At his house, the respondent told her to come to his house at midnight so that she can be taken to ‘J’.
• That night when she went to his house, the respondent took her to ‘J’.

Issue

Whether the respondent was guilty of the offence under section 361 of IPC?

Judgement

The trial court held him guilty, but the High court acquitted him. On appeal to the Supreme court, it was held that:

• Section 361 is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having their custody.
• The consent of a child is completely immaterial and only the guardian’s consent is relevant to decide whether the offence was committed or not.
• ‘Taking’ as mentioned in the Section is not only through fraud or force but also through persuasion by the accused which creates willingness on the part of minor to be taken away from his/her lawful guardian.
• In this case, the respondent was held guilty under section 361 as it was the respondent’s action which persuaded the prosecutrix from going out of her father’s keeping, against her father’s wishes.

Age of the Minor

Section 361 of the Indian Penal Code clearly states that minor is:

• A male under the age of 16 years,
• A female under the age of 18 years.

However, it must be highlighted here that in Manipur, the age of 18 years of females in section 361 is replaced with 15 years. Hence if a female of 16 years is taken from her lawful guardians in Manipur, it would not result in kidnapping from lawful guardianship. 

Moreover, the Allahabad High Court in Smt Suman and another. V. State of Uttar Pradesh gave a peculiar judgement. It was held that if a minor girl, who is 17 years old and is mature enough to understand the consequences and rationale behind her action, leaves the guardianship of her parents to live with a boy who has in no way subjected her to any kind of pressure, inducement etc, i.t cannot result in an offence under section 361 of IPC and is not punishable.

Taking and Enticing

Section 361 mentions whoever ‘takes or entices’ a minor away from his/her guardian against the guardian’s will, is punishable with the offence of kidnapping from lawful guardianship.

Let’s understand the meaning of taking and enticing by looking at a few case laws.

Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416

The first case we will be looking into is Biswant Mallick v. State of Orissa

Facts

• Kalyani, had been kidnapped by the accused/petitioner Biswant Mallick when she had gone out around midnight. He first took her to Cuttack, then to Bhubaneshwar and finally to Jeypore.
• Her father lodged a complaint at the police station. During the investigation, she was found and rescued from the house of a relative of the accused.
• The petitioner was held guilty and sentenced to two years rigorous imprisonment and a fine of Rs. 100.
• On the petition, the counsel for the accused argued that the girl had attained the age of discretion (age to take decisions for herself and understand the consequences of her act) as she was 17 years, 8 months and 7 days old and thus kidnapping did not take place.

Issue

Clarity of Section 361 and explanation of taking and enticing as given in the section.

Judgement 

Court clarified the difference between take and entice as given in section 361 of the Indian Penal Code.

• The court said that the word ‘take’ means cause to go or to escort or to get into possession. This means that in taking, the desire of the person being taken to be taken is missing. 

(To understand this better let’s look at an illustration. If ‘A’ is taken away against her own consent, it is taking)

• Enticing, on the other hand, is the act of the accused which induces the person kidnapped to go to the kidnapper, by his/her own wish. It is exciting hope or desire in a person to be taken away. Enticement is completely dependant upon the mental state of the person when the inducement happens. It is not confined to a single form of allurement and any act which is enough to allure a minor girl is enough to constitute allurement.
• The court further clarified that mental attitude is immaterial ( minor’s willingness or unwillingness) is not relevant for taking. However, in enticement, the kidnapper convinces the minor, through allurement, to do something he/she would otherwise not do.
• It was also held that force or fraud is not necessary to constitute enticement or taking away.

S Varadarajan v. State of Madras, AIR 1965 SC 942

The meaning of taking was further clarified by the court in the case S Varadarjan v. The State of Madras.

Facts

• Varadarajan, the appellant was living next to Savitri’s (a minor girl) house. They talked every day and became good friends. One day, Savitri’s sister, Rama caught them talking and asked her about it. Savitri told her that she wanted to marry him. Rama told her father about this who inquired Savitri. She started crying but didn’t reply to her father’s question. Consequently, he decided to send her to a relative’s house, away from Varadarajan.
• Next morning, Savitri called the appellant and told him to meet her on a certain road. They met and she sat in his car. They both went to the house of P.T. Sami with a view to take him as a witness to their marriage. They went to the Registrar’s office where they both got their marriage registered. Thereafter, the went to Sattur, Sirkulam, Coimbatore, and Tanjore.
• On the morning of the day she went away, her father, Natraj realised she was missing and tried to find her around the area where they lived. However, all his attempts were futile and he filed a complaint at the police station. The police took up the investigation and ultimately apprehended the appellant at Tanjore.

Issue

Whether the essential of ‘taking’ of Savitri was fulfilled or not?

Judgement

• The court held that where a minor girl leaves the protection of her father to join the accused, knowing and completely understanding the consequences of her act, it cannot be said that the accused has taken her away from the keeping of legal guardian.
• In such case, for the accused to be held guilty, it must be established that the accused induced the minor or actively participated in developing such intention in her mind, either immediately prior or at some prior stage of her leaving her father’s protection. 
• The accused cannot be held guilty simply because after leaving her guardian’s house willingly she joined the accused and the accused encouraged her to not return to her guardian’s house by taking her to different places.

Punishment for Kidnapping

Section 363 of the Indian Penal Code lays down the punishment for both kinds of kidnapping (Kidnapping from India and Kidnapping from lawful guardianship).

The punishment prescribed in this section is :

• Imprisonment of either description which can extend up to seven years, and
• Fine.

Imprisonment of either term means either of the two imprisonments prescribed in the Indian Penal Code:

• Simple Imprisonment: This means that during the imprisonment, the prisoner is idle and is not required to do any hard labour.
• Rigorous Imprisonment: This means that during the imprisonment, the prisoner must engage in hard labour.

Before we move forward, it is important to mention an exception laid down in the case of Chadrakala Menon and another v. Vipin Menon. In this case, the appellant Chandrakala was married to Vipin Menon. They both were settled in the United States and were well employed. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between them and they decided to get separated. While Vipin Menon filed an application for his daughter’s custody, the child continued to live with her maternal grandparents. One day, while the custody application was still to be decided upon, Vipin Menon took his daughter away with him to a different state. The grandparents lodged a complaint of kidnapping against him. However, the court held that Vipin Menon was the natural guardian of the child 

Abduction 

Section 362 of the Indian Penal Code defines abduction. It says that if a person compels another person to go from one place, or induces some person to go from one place, then the offence of abduction is committed.

Thus, Abduction is an offence in which a person is moved from one place, against his/her will by forceful compulsion or by use of deceitful means. Clearly, the essentials of abduction are:

‘I’llustration: ‘B’ slaps and hurts ‘A’ and tells her that if she would not leave with him, he would kill her. In this case, ‘B’ commits the offence of abduction as he uses forceful means to take ‘A’ away from her house. 

Here, ‘A’ is the person abducted and ‘B’ is the criminal; threatening ‘A’ to kill her and slapping and hurting her amounts to use of force, and taking her away from her house established the essentials of taking a person away from a particular place.

Let’s understand all these essentials in depth.

Ingredients

By Force

Section 362 says that abduction can happen in two ways. One of these is force. In abduction, a person is forced to go from one place to another, against his/her will. The use of force, as mentioned in this section, must be actual, and not just a threat of force to constitute abduction.

In this reference, we can look at the case State of West Bengal v. Mir Mohammad Omar.

Facts

• The victim, Mahesh Kumar Aggarwal was doing small business in Calcutta. The accused, Mir Mohammad Omar and Sajad Ali wanted him to pay them INR 50,000 for allowing him to do his business without any hindrance or obstructions. But Mahesh did not agree to their demands which led to a fight.
• A few nights later, when Mahesh returned to his house, his sister told him that a few assailants had come before looking for him, and were threatening to hurt him. Scared, Mahesh left to take asylum at his friend’s house for the night.
• Just an hour after he had been at his friend’s place, a man came to tell Mahesh that Omar is waiting outside for him. Mahesh went out and Omar asked him to accompany him, but Mahesh disagreed. Thereafter, Omar forcibly took Mahesh to the Rickshaw, but Mahesh escaped and went to a neighbour’s house where he took asylum.
• At around 2:30, the accused entered Mahesh’s room and dragged him out. He resisted but was beaten by a lathi and taken away. His neighbour went and lodged a police complaint that very night.

Judgement

The court held that there is enough evidence to show that Mahesh was abducted. It was said that abduction takes place when a person is compelled by force to go from a place. In this case, Mahesh was taken away from two places, first from his friends’ place, which he escaped and second from the neighbour’s place. In both instances, force was used. Hence, the accused were held liable.

Deceitful Means

According to Section 362, the other way abduction can take place is by inducing someone to go from someplace by misleading him/her to do something he/she would not normally do. The scope of inducement here is very wide. 

Illustration: ‘A’ is a man who wears the uniform of a police officer to convince a girl, ‘B’ to come to his house with him, and because of his misrepresentation she goes with him. In this case, ‘A’ uses deceitful means to commit the offence of abduction.

Let’s look at case law to understand how abductions happen through deceitful means.

To go from any place

For abduction to be completed, it is essential that the person is compelled to go from one place to some other place, either forcefully or by using deceitful means. It cannot be called abduction if the person is not taken to someplace.

Now let’s discuss an important judgement given in the case of Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67. It was held that mere abduction is no offence at all. The guilty and wrongful intention must be present for the offence to be punishable.

For this very reason, IPC provides for different punishments for abduction with different intentions. Like abduction for kidnapping is punishable in Section 363A with imprisonment up to ten years, abduction with the intention of murder is punishable with life imprisonment etc. Now let’s discuss these specific provisions in detail.

Aggravated forms of Kidnapping or Abduction

Kidnapping or Maiming for Begging

Section 363A of the Indian Penal Code talks about the offence of kidnapping or maiming a minor for begging. It states that:

• If a person kidnaps a minor or obtains custody of a minor, even though he is not his/her lawful guardian, so as to employ the minor in begging, he/she would be liable for this offence. The punishment prescribed in Section 363A of the Indian Penal Code for this is imprisonment up to 10 years and fine.
• Maim means to wound or injure a part of the body so that it is permanently damaged. As per this section, If a person maims a minor so that the minor can be employed in begging, he/she is liable for imprisonment for life and fine.
• The section also states that if a person, not being the minor’s lawful guardian, employs a minor in begging, it will be assumed by the court that such person kidnapped the minor. The person would have the burden of proof to prove that he is innocent.

Section 363 A, itself, defines what begging constitutes as per this provision. It means:

• Asking or receiving alms (money was given to poor people) in a public place for singing, dancing, fortune-telling, performing tricks, selling goods, etc.
• Entering someone’s private place to ask or receive alms.
• Exposing any wound, injury, deformity or disease of oneself, some other person or some animal, for obtaining or extorting alms.
• Using a minor as an exhibit to receive or solicit alms.

Illustration: ‘A’ took away ‘B’, a 12-year-old boy, from his father, without his consent, so as to make him beg on the streets of Delhi. In this case, ‘A’ completed the kidnapping from lawful gu’a’rdianship as soon as he took ‘B’ away from his father. And because it was for the purpose of making him beg on the streets of Delhi, ‘A’ is guilty of the offence under section 363 A of IPC.

Abducting or Kidnapping to Murder

As per Section 364 of Indian Penal Code, if a person is kidnapped or abducted by a person with the intention or knowledge that the person is going to be murdered or is going to be put in danger of being murder, such person is punishable with imprisonment for life or rigorous imprisonment for a term up to 10 years and a fine.

Illustration: ‘A’ takes away ‘B’ from his house to a forest, against B’s consent with the knowledge that ‘B’ would be sacrificed to a deity. ‘A’ is guilty of abduction for murder.

To understand this section better, let’s look at the case of Shri Moni Neog and others v. the State of Assam.

Facts

• Sanjay Ghose was the General Secretary of an NGO, working for the welfare of people at Maijuli. As their work started to spread, the members of a banned militant group, United Liberated Front of Assam (ULFA), started to feel unhappy and scared of people losing faith in them, because of their growing dedication for Sanjay Ghose’s NGO. They suspected Sanjay Ghose to be a RAW Agent and developed hostility towards him.
• One afternoon, he was stopped by two of the accused and taken to a house despite his protest. He was taken to a house where some more militants joined him. He was then taken on a boat to another house, along with more militants, all of whom were armed. At night, some people near that house heard gunshots.
• When he didn’t return home for a couple of days, his wife filed a police report. Upon investigation, it was found that he is dead. It was accused that these militants had murdered him.

Judgement

• The court held that the abductors of Sanjay Ghose had abducted him with the intention to murder him, or at least had the knowledge that he may be murdered or had put him in danger of being murdered,
• It further said whether he was murdered or not is immaterial. What is important is that the abductors did not at any stage gave an indication that they would spare his life.
• As a result, the court convicted the accused and awarded them life imprisonment and a fine of Rs. 2000 each.

Kidnapping for Ransom

Section 364A of IPC provides for punishment to the whoever threatens to hurt or cause death to that person who he has kidnapped or abducted or detained after kidnapping or abducting in order to compel either the government or some foreign state or any other person to do or abstain from doing an act or pay a certain sum of money. The punishment is death or imprisonment for life, and fine, as mentioned in Section 364A IPC. The essentials of the offence under Section 364A are:

Netra Pal v. State (National Capital Territory of Delhi), 2001

The first case we will discuss is Netra Pal v. State (National Capital Territory of Delhi), in which the court discusses one essential of the offence.

Facts

• The appellant Netra Pal was known to Master Tanu Johia, a 6-year-old boy. One day he had taken the boy along with other boys on a joy ride in a Rickshaw. While he dropped the other boys, he did not drop off Tanu. His mother had thought that Netra Pal would come back with her son in a while. When he didn’t come back, she told his father. He tried to find him around the area where they live, but failed to locate them and filed a police report.
• The police went to the appellant’s village and found him there along with the child. He was apprehended and a letter asking for Rs. 50,000 in ransom was found in his possession.

Issue 

• What do the words “To pay ransom” stand for – is it enough to show that kidnapping or abduction was done with an intention to extract ransom or is it necessary that such demand must be communicated?
•  Whether the letter recovered from the appellant would constitute as demand for ransom?  

Judgement

The court held that mere recovery of the letter assumed to have been written by the appellant demanding Rs. 50000 for the safety and return of the child is not enough to cover “ to pay the ransom” by itself. Demand by a kidnapper is an essential ingredient of the offence because, for the purpose of getting paid ransom, demand must be communicated.

Malleshi v. State of Karnataka (2004)

The next case which we must discuss in this reference is Malleshi v. the State of Karnataka.

Facts

• Vijaybhaskar was studying in college and living at his uncle’s place. He used to go to Chitradurga, where his college was, through a bus, along with another friend. One day when he was waiting to board the bus to go back to his house, he was called by a man who told him he knew his father. He further inquired about the college’s fees saying he wanted to enrol his son here. He then led Vijaybhasker to a jeep informing him that his son is there and made him sit in the jeep.
• Then two other men joined him and treated him well till they crossed Chitradurga. Once they did, they enquired about his father’s phone number and told him that they want a ransom of Rs. 4,00,000. On the way, they stopped to buy cigarettes. The driver of the jeep told him to run off. He listened to his advice and found out he was in Byrapur village. He informed the villagers who caught hold of the abductors and handed them over to the police.

Issue

Whether the alleged demand for ransom was established or not?

Judgement

The court held that Vijaybhasker has been abducted through deceitful means. They further referred to the case of Netra Pal v. State and said that the difference of fact that the abducted person, in that case, was a child and in the present case is an adult who can look after himself must be mentioned. It was held that in this case, the demand for ransom had been conveyed to the victim and the offence was completed. The court further said that it cannot be a straight jacket rule that the demand for abduction must always be made to the person who is required to ultimately pay it.

Vikram Singh v. Union of India, (2015)

The next case, we will be looking at is Vikram Singh v. Union of India, in which the punishment prescribed in Section 354A IPC was evaluated.

Facts and Issue: The appellant had kidnapped a 16-year-old boy and asked for Rs. 50 lacs in ransom. They had then killed this boy. In this case, the appellants filed a writ petition in the Supreme Court to declare Section 364A inserted in the Indian Penal Code as ultra vires (beyond the legal power) of the Constitution to the extent that the same prescribes death sentence for anyone found guilty. He also said that section 364 A was added only to deal with terrorist-related ransom since kidnapping/ abduction has already been dealt with in the previous section. He further prayed for quashing death sentence given to him under this section.

Judgement

• The court held that section 364A is very wide. There is nothing which suggests that this section is limited to offences against a foreign state or international governmental organisation, and covers all the “any other person” as well. 
• Court also emphasised upon various Indian and foreign judgements to highlight the importance of proportionality of punishment. It held that the job of giving punishment is the job of the legislature, and the court can only intervene when it feels that the punishment is outrageously disproportionate. In section 364A however, when death is concerned the courts do reserve the right to give death penalty or if not required, a lesser punishment of life imprisonment. Hence, it is not ultra vires with the constitution. 

Kidnapping or abduction with intent to secret and wrongful confinement

Section 365 of IPC provides for punishing a person who kidnaps or abducts someone with the intention of wrongfully and secretly confining them with imprisonment up to 7 years and fine.

Illustration: ‘A’ takes ‘B’ away from her legal guardian, against the consent of such guardian, with the intention of hiding her in his house. Here ‘A’ has kidnapped ‘B’ with the intent of secret confinement, and thus, he is punishable under section 365 of IPC.

Kidnapping or Abduction a woman to compel her for marriage, etc

Section 366 of Indian Penal Code punishes a person who kidnaps or abducts a woman with the intention to force her into a marriage or with the knowledge that she would be forced into marriage. It also provides punishment for a person who kidnaps or abducts a person to force her into illicit intercourse or has the knowledge that because of such kidnap or abduction, she would be forced into illicit intercourse. 

The punishment prescribed in this section is imprisonment for up to 10 years and fine.

Illustration: ‘A’ and ‘B’ are brothers. ‘A’ wanted to marry ‘C’, but she did not want to. ‘A’ asked ‘B’ to abduct ‘C’ so that he can marry her. ‘B’ did as was asked from him and took ‘A’ from her house to ‘A’. Here ‘B’ is guilty of the offence under section 366 as he abducted a woman, ‘C’ with the knowledge that would be compelled into marriage.

Minor’s consent to marry her Kidnapper: Is it valid?

To look at if minor’s consent to marry her kidnapper or engage in sexual intercourse with him is enough or not, let’s look at the case of Thakorlal D. Vadgama v. State of Gujarat.

Thakorlal D. Vadgama v. State of Gujarat, 1973

Facts

• Mohini’s parents got to know that she had been having sexual intercourse with the appellant and reprimanded her. They also sent a letter to him telling him to stay away from Mohini. She, however, met him again when she had gone to Ahmedabad on a school trip and for two months after that, they kept sending each other letters in which Mohini had complained about her parents ill-treating her and expressed her desire to leave her house.
• Next month, the appellant asked her to meet him at his house and she met him there. He made her write three letters to her father, the appellant and the police superintendent. These letters contained complaints of ill-treatment by her parents and also said that she had taken Rs. 250 from the appellant and was leaving to Bombay..
• He then made her sit in a cars’ dicky and took her away to someplace. Then he had sexual intercourse with her against her wishes. Meanwhile, her father filed a case. Next morning, while investigating police came to his house to search it for Mohini. The appellant hid Mohini in his garage and later told her to run out in the street, where the police found him. On medical examination, no evidence of forced intercourse was found.

Issue

Whether or not consent from Mohini absolves the appellant from his crime?

Judgement

• The court held that in the present case, the appellant got close to the minor girl in the manner of making promises and giving her gifts, like new clothes, etc. He took advantage of this closeness to entice her out of her parent’s guardianship and thus kidnapped her. 
• The court further, clarified the legal position with respect to an offence under section 366 of IPC and said that law seeks to protect the minor children from being seduced into illicit activities and also the rights of the guardians towards their children. It clarified that kidnapping can be done by enticing or inducing minor out of the keeping of their guardians. Hence, it was held that Mohini’s acceptance to go with him and have intercourse with him is not enough to absolve him from the offence.

Procuration of Minor Girl

Section 366A of the Indian Penal Code prescribes punishment for any person who induces a girl under the age of 18, to go from someplace or to do some act, such that she will be forced or seduced to engage in illicit intercourse with some person. Such inducement must be done intentionally or with the knowledge that she will be forced to engage in such acts.

The punishment prescribed for the same is imprisonment for up to ten years and fine.

Kidnapping or Abducting to subject a person to Grievous Hurt

Section 367 of the Indian Penal Code states that if a person kidnaps or abducts a person so that such person is subjected to or is put in danger of grievous hurt, slavery or unnatural lust of any person, must be punished with either rigorous or simple imprisonment up to 10 years and fine.

Grievous hurt has been defined in section 320 of IPC. It includes:

• Emasculation (Removal of male reproductive organs),
• Permanently damaging eyesight in any eye,
• Permanently damaging hearing in any ear,
• Causing permanent loss of some joint,
• Permanent disfigurement of face or the head
• Fracture and dislocation of teeth or bone(s)
• Any hurt which endangers the life of a person and causing the sufferer to suffer severe body pain within twenty days of the causation of hurt.

Wrongfully Concealing or Keeping in Confinement a kidnapped or abducted person

Section 368 of the Indian Penal Code provides that if a person knows that a person has been kidnapped or abducted, and wrongfully confides such kidnapped person, would be punished as if he had kidnapped or abducted the person with the intention to keep or confide in him/her.

This section can be better understood by looking at the following case:

Smt. Saroj Kumari v. State of Uttar Pradesh, AIR 1973 SC 201

Facts

• The accused had kidnapped the minor male child of Smt. Gomti Devi, who was just born a few hours ago. She took him away by saying that the staff nurse wanted to do the cord dressing of the child.
• When the child was not returned to the ward, even after an hour, Smt. Gomti Devi told the sister-in-charge. She searched the premises for the accused and the child. When she failed to find them the doctor and superintendent of the hospital was informed and they further told the police.
• On investigation, police found the child at the house of Ram Das, who was the tenant of the appellant. At the time of the seizure of child, appellant was lying next to the child and the accused kidnapper was sitting in the same room.The appellant was charged with a punishment of rigorous imprisonment for 5 years under Section 368 of IPC and the accused was charged under Section 363 (kidnapping for murder). 

Issue

Is the appellant guilty under section 368 of IPC?

Judgement

• The court dismissed the appeal petition. It explained that to constitute an offence under Section 368 of IPC, three essential must be fulfilled. These are: (1) The person in question must be kidnapped; (2) The accused must know that the person has been kidnapped (3) The accused having such knowledge wrongfully conceals or confines the person.
• In the present case, the first essential was fulfilled when the accused took the 15 hours old child away from his mother, the lawful guardian. The second essential was an inference drawn from the facts of the case and the third essential was evidenced as the appellant made it appear that the child was hers.

Kidnapping or Abducting Child under ten years with the intent to steal from its person

According to Section 369 of Indian Penal Code a person who kidnaps a child under 10 years of age to steal any movable property from him/her, will be punished with imprisonment up to 7 years and also fine.

Illustration: A kidnaps B, an 8 years old girl using her mother’s mobile phone, to steal that phone. Here, A is guilty under section 369 of IPC.

Difference between Kidnapping and Abduction

Now that we have understood what kidnapping and abduction are let’s understand the difference between them.

Trafficking and Slavery

Section 370 of the Indian Penal Code was recently amended after the Delhi rape case in 2013. Now, it states the definition and punishments of trafficking.

As per this section, if anyone recruits, transports, harbours, transfers or receives a person for the purpose of exploitation commits the offence of trafficking. This is done by :

• Using fraud, deception or abuse of power, or
• Using threats, or
• Using force or coercion, or
• Abduction, or 
• Inducement of the person extorted himself or someone who has authority over him.

Exploitation, as mentioned in this section has a very wide ambit, and refers to  sexual exploitation, slavery or practices similar to it, servitude or forced removal of organs.

It must also be mentioned that the consent of the victim is completely immaterial for the offence of trafficking.

The punishment for this offence has been given in depth in this Section. These are as follow:

Sale or Purchase of Minors for Immoral Purposes

Section 372 of the Indian Penal Code provides that if a person sells or allows hiring of any person under the age of 18 years, with the intention or knowledge that such a person would be used for prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.

Illicit purposes, as mentioned in the section, means sexual intercourse between people who are not married or united by any union recognised in a personal law or custom.

Illustration: ‘A’ is a brothel owner. ‘B’ sells ‘C’ to A for Rs. 1,00,000 so that she (C) can be used as a prostitute. Here, ‘B’ has committed an offence under Section 372 of IPC.

Similarly, Section 373 of Indian Penal Code provides the punishment for a person who buys a minor for immoral purposes. It states that if a person buys or hires or in some other way obtains a person under the age of 18 years, with the intention of using or knowledge that such person would be used for purposes like prostitution or illicit intercourse, then he/she will be punished with either simple or rigorous imprisonment for a period of up to 10 years and would also be punished with fine.

Continuing with the above illustration: In that case, ‘A’, the brothel owner would be liable for the offence under Section 363 of IPC as he purchased ‘C’ for Rs. 1,00,000 with the intention of engaging her in prostitution.

Forced Labour

Section 374 of Indian Penal Code states the offence of unlawful compulsory labour. As per this section, if a person unlawfully forces some person to provide labour against his will, then he is punished with either simple or rigorous imprisonment for a period of up to one year, or with fine, or with both imprisonment and fine.

Conclusion 

Kidnapping and abduction are dangerous acts which harm the freedom of a person. Section 359 to 369 go a long way in securing the liberty of people. They give protection to children against kidnapping and abduction. Moreover, they reinforce the rights of guardians to have control over the children who are easily moved and convinced by the words of conspiring adults. The number of abduction and kidnapping cases is enormous and is only increasing. There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses and forced begar etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.

To overcome these offences, not only do the states need to work together but also a co-task among nations need to be cultivated. Moreover, it is needed to be understood that a criminal would go around the laws, and indulge in these acts. What is required to prevent these offences is hand in hand working of non-governmental organisations and government bodies, and more sensitisation.

References

1. https://safecity.in/kidnapping-and-abduction-know-your-rights
2. https://blog.ipleaders.in/difference-between-abduction-and-kidnapping/

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 Kidnapping and Abduction: Sections 359 to 374 under IPC, 1860 appeared first on iPleaders.

This article is written by Avinash Kumar, a 3rd-year law student from School of law, UPES Dehradun. In this article, he discusses the “Calculation of Depreciation Under The Income Tax Act 1961”. He also discusses the written down value method and additional depreciation under the Income Tax Act. 

Introduction

The provision for allowing depreciation is contained in Section 32 of the Income Tax  Act, 1961 and is regulated under Rule 5 of the Income Tax Rules. When there is a decline in the value of the tangible or intangible asset used by the assessee, then the deduction is permissible under the Income Tax Act. While at the time of the deduction, the income-tax department calculates the depreciation on the total cost of an asset over the life of the asset. An assessee can calculate the deduction caused by depreciation under a straight-line method or by written line method (WLM). The income tax department uses the concept of a written line method (WLM). However, at the time of deducting depreciation, generating or distribution of power, the Income-tax department uses the concept of “Additional general method”. In certain circumstances, the Income Tax Act allows a deduction for additional depreciation in the year of purchase.

Meaning of depreciation under the Income Tax Act

Section 32 of the Income Tax Act 1961 talks about depreciation. Depreciation is defined as a reduction in the value of the asset due to wear and tear of the asset. People claim the deduction of depreciation only for accounting or for the purpose of taxation.

Income Tax Act of 1961 allows the depreciation of tangible assets and intangible assets. In the case of a tangible asset, you can claim the deduction against building, plant, and machinery. In the case of an intangible asset, you can claim a deduction against the patents, trademark, copyright, license, franchise or any other business or commercial right of similar nature. You can claim the deduction on depreciation on those assets which have been used by the assessee for the purpose of business or profession during the previous year.

If any asset which has been used for more than 180 days then 50% of depreciation is allowable in that year. For availing the benefit of deduction under depreciation, it is not mandatory that assets should be used by the assessee in the previous year. If an asset is purchased by the assessee and then leased out to the lessee, the assessee can claim the deduction of depreciation under the Income Tax Act.  

Rates of depreciation

Rates of depreciation on the following assets: 

• Building for residential use: 5%;  
• Building for non-residential use: 10%;
• Furniture and fittings: 10%;
• Computers including software: 40%;
• Plant and machinery: 15%;
• Motor vehicles for personal use: 15%;
• Motor vehicles for commercial use: 30%;
• Ships: 20%;
• Aircraft: 40%;
• All intangible assets: 25%. 

To know more about the depreciation rate on different assets you can click here

Condition for claiming depreciation under Income tax

For availing the deduction on depreciation, an assessee will have to fulfill some conditions. These conditions are as follows:

• Classification of Assets: For availing the benefit of depreciation, the owner of the asset should be an assessee. The asset can be tangible or intangible. With respect to a tangible asset, the asset should be a building, machinery, plant or furniture. With respect to intangible assets, assets should be patent rights, copyrights, trademark, license, franchise or any similar nature which is acquired on or after 1.04.1998. While calculating the depreciation on the building, the income tax department calculates the depreciation only on the building. They don’t calculate the cost of the land on which the building is situated. The reason behind not including the cost of the land into the building is that land does not suffer any depreciation because of wear and tear or its usage. 
• Ownership vs lease: An assessee can claim the depreciation only on those capital assets which are owned by him. If the assessee wants to avail the deduction on the depreciation of building then assessee should be the owner of those buildings. It is not necessary that an assessee should be the owner of that land. If an assessee has constructed the building but the land belongs to someone else then he has a right to claim the deduction of depreciation on buildings. If the assessee is a tenant or using the building then he can’t claim the deduction. If an assessee has taken the lease of the land and has constructed a building on that land, he is entitled to avail the allowances of depreciation. In the case of hire and purchase, if an assessee hires the machinery for a short period of time then, in that case, he is not entitled to claim the deduction. But, in case of purchase, if an assessee acquires the property and becomes the owner of the property he is entitled to claim the deduction.
• Used for the purpose of profession or business: for availing the allowance for depreciation, it is necessary that the asset has been used for the purpose of business or profession. However, it is not necessary for availing the allowance for depreciation, for which an assessee will have to use the asset throughout the accounting year. Thus, if the assessee has used the asset for a small period of time in an accounting year then he is entitled to avail the allowances for depreciation. You can take the example of any seasonal factory. Let’s take the example of sugar factories. Sugar factories don’t open for a whole year but if the asset has been used at any time during the accounting year in a factory then in such conditions factory owners are entitled to claim depreciation. Under Section 38 of the Income Tax Act 1961, the income tax officer has a right to determine the proportionate part of the depreciation. 
• Can’t claim the deduction on sold assets: An assessee can not claim the deduction on depreciable assets. If an asset is sold, destroyed or demolished in the same year when it was acquired then assessee can not claim the deduction.
• If an asset has a co-owner then the co-owner can also claim the depreciation on the asset. 

Written down value method (Block wise)

Every year the book value of the asset decreases and depreciation of the asset is computed on the book value of the asset. The written down value (WDV) method is the best way to calculate the depreciation of the asset because the depreciation amount goes on decreasing with time. Section 32(1) of the Income Tax Act 1961 says that depreciation should be computed at the prescribed percentage on the WDV of the asset, which in turn is calculated with reference to the actual cost of the asset. When an assessee is acquiring the asset in the previous year then the actual cost becomes the WDV. While the asset acquired in earlier year WDV shall be equal to the actual cost incurred less depreciation allowed under the Act.  

This may be easily followed by the following example:

Depreciable assets on 1.04.2017 on which the depreciation is available at the same rate of 25%.

Additional depreciation under the Income Tax Act

The Income Tax Act only permits the written down value method. As per the Additional depreciation method, you can get the deduction only on those assets which have been used in the business or profession. However, an assessee can get the deduction only when assets are used in the year in which it was purchased. But as per the new amendment in the Income Tax Act, 1961, Section 32(1)(iia) says that an assessee can get depreciation of 20% on those plants and machinery which have been involved in the business of manufacture or production of an article. For availing the deduction under additional depreciation the purchase and installation date should be after the 31st March 2005. An assessee can not avail of the additional depreciation on aircraft and ships. These are excluded from additional depreciation. 

From the assessment year 2013-14, a new provision has been added. Further, from 2017-18, another new provision has been added in the Income Tax Act, 1961 which says that those assessees who are involved in the profession of power, can also avail the benefits of the additional depreciation. If an asset has been used for less than 180 days then additional depreciation is allowed at 50% of the rate of additional depreciation.  

Depreciation in backward area

From 1st April 2016, Section 32(1)(iia), of the Income Tax Act, 1961 allows the possibility of depreciation in the backward areas. If an assessee sets up a business of manufacturing or production in any backward state (Bihar, Andhra Pradesh, Telangana, West Bengal) then, the additional depreciation available to those assessees is 35%, not 20%. Shifts and aircraft are excluded from the additional depreciation. However, an assessee can purchase and install the machinery.    

Who is non-eligible for the additional depreciation?

As per Section 32(1)(iia) of the Income Tax Act, 1961, if an assessee fulfills the below conditions, they are not eligible for availing the deduction under additional depreciation:

• Additional depreciation can not be claimed on plants and machinery which has been used outside India, before being installed in India. 
• You cannot claim the deduction on those plants and machinery which have been installed in the office premises or in residential accommodation. 
• An assessee can not claim the deduction under additional depreciation on assets such as furniture, buildings, ships, aircraft, office appliances, the vehicle used in road transport, residential accommodation including in the nature of the guest house.  

Additional depreciation to the generation of electricity

Deduction on additional depreciation is permissible only for that assessee who is involved in the production. A matter of conflict has been raised by the assessee who was generating the electricity. However, a certain amendment has been made by the parliament for allowing the additional depreciation to the assessee.

A claim was raised by the assessee, a joint venture company which was involved in thermal power plant for availing the benefit of deduction on additional depreciation under Section 32(1)(iia) of the Income Tax Act. However, an assessing officer rejected the claim on the ground that this type of benefit will only be granted to the assessee who is involved in the production of an article and this does not include the generation of electricity. After that, the Income-tax department served the notice to the assessee under Section 154 of the Income Tax Act 1962 the assessee gave an explanation to the income-tax officer which was not accepted by the assessing officer. 

In 2013, Section 32(1)(iia) of the Income Tax Act was amended and after the amendment Income Tax Act 1961, made a provision that says that additional depreciation could be granted to an entity that is involved in the business which generates and distributes power. In the case of the State of Andhra Pradesh vs NTPC, the Supreme Court held that electricity is able to be transmitted, transferred and delivered. So on this logic, the Income-tax Officer can not deny an assessee from claiming additional depreciation for generating electricity. The Supreme Court gave the judgment in favor of the assessee and held that an assessee who is generating electricity can claim the deduction of additional depreciation under Section 32 (1)(iia) of the Income Tax Act, 1961.   

Conclusion  

Section 32 of the Income Tax Act, 1961 allows compulsory deduction on account of depreciation. However for claiming the deduction under section 32 of the Income Tax Act, 1961 an assessee has to fulfill some conditions. The written down method is one of the best ways of calculating depreciation under the Income Tax Act. As per Section 32(1)(iia) of the Income Tax Act, 1961, an assessee can claim the additional depreciation. Depreciation helps the assessee in many ways, sometimes it helps in financial management and sometimes this serves as a tax saving option.

References

1. Income Tax Act, 1961.
2. Tax law book by Taxman.
3. https://cleartax.in/s/depreciation-income-tax-act

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 Vartika Jain and Shalini Mishra.

Introduction

There have been several inter-state river water disputes in India. Most of these disputes arise because of lack of adequate water resources for farmers in the states. The researcher looks into the constitutional and statutory provisions in India for dealing with such disputes. What makes such disputes complicated is the fact that water resources are under the State List, while the Parliament has the power to make laws regarding inter-state rivers under the Union List. The researcher also looks into the causes and proceedings of ongoing and resolved river water disputes in India. 

The Cauvery and Godavari water dispute have been considered for analyzing the ongoing and resolved water disputes respectively. The paper also looks at the various suggestions which have been provided:

a) for ensuring such inter-state river water disputes don’t arise in the first place, and

b) for effectively resolving such disputes.

The researcher studies the implications that such disputes have for Inter-State and Centre-State relations in India. Lastly, the researcher looks into how such disputes affect relations between the disputant states.

Constitutional and statutory provisions

The Constitution contains some provisions on water and related issues. Parliament has also adopted Legislation to settle transboundary river water disputes. Some of these provisions and legislation have been developed below.

A] Article 262 of the Indian Constitution

Article 262(1) provides that Parliament may adopt legislation for the settlement of disputes or complaints concerning the use, distribution or control of transboundary waters in a river or river valley. According to Article 262(2), Parliament may adopt a law which may impede the jurisdiction of the Supreme Court or of any other court in relation to the dispute/appeal referred to in Article 262 (1).

According to Rule 262(1), Parliament may “enact” a specific law. This shows that it is up to Parliament to pass such a law. Article 262(2) also states that ‘Parliament may legislate …’. For the purposes of Article 13(3) of the Constitution, the term “law” may therefore include law, order, law, regulation, regulation, notification or legal force in India. The topic of such a right could be a transnational river or river valley.

Article 262(2) begins with the phrase “despite this constitution …”. This means that other provisions of the Constitution that violate Article 262(2) are not applicable. For example, when examining Article 262(2), Article 131 does not apply, which provides for the primary jurisdiction of the Supreme Court in disputes between two or more States. If Parliament loses jurisdiction of the Supreme Court for cross-border river water disputes, it must do so through the mechanism referred to in Article 13(3), as the term “legal” is used.

If the Parliament has not enacted any legislation under Article 262(2), it may refer to the Supreme Court or higher court. The term “may” is used here, which means that the introduction of such a law depends on Parliament’s discretion. 

B] Entry 17 of Schedule II (List of Countries) of Schedule 7

Entry 17 of Schedule II (List of Countries) of Schedule 7 includes water sources, irrigation and canals, drainage and oak, reservoir and hydropower. The provisions for water supply, irrigation or hydropower apply to transnational rivers. Most cross-border disputes over rivers are related to these issues. Therefore, the government would have the right to adopt laws on these issues. However, this competence of the national government depends on the provisions of Article 56 of Schedule I.

List I (Union List), read in conjunction with Article 246(1) of the Constitution, entry 56 gives Parliament the right to adopt laws on the regulation and development of the river and valleys. Countries to the extent that these regulations and Parliament confirm that development is in the public interest. Entry 17 explicitly states that the provisions of point 56 of Annex I apply to such government power. 

Entry 17, which is contrary to the law adopted by Parliament under point 56 of Schedule I, would not prevail. Article 246 of the Constitution is also important in this debate. ” 246(1) uses the words “Regardless of what is in paragraphs 2 and 3”. This means that, notwithstanding the provisions of Article 246(2) and (3), Parliament has the exclusive right to authorize the subjects listed in List I in legislation. the words “points 1 and 2” and state that the government has the exclusive right to legislate on the subjects listed in List II, taking into account paragraphs 1 and 2).

Thus, while water resources are a national responsibility, Parliament has considerable legislative powers in this area. These powers of Parliament are important enough to be able to prevent any legislation adopted by those countries that is in conflict with their parliamentary provisions.

C] Articles 131 and 136 of the Indian Constitution

There have been cases where countries have used Articles 131 and 136 of the Constitution in cross-border river basin disputes. For example, Tamil Nadu filed a preliminary complaint in 2001 of Article 131, in which it stated that interim measures were not effectively regulated. The States of Karnataka, Tamil Nadu and Kerala, disturbed by the decision of the Cauvery Water Dispute Tribunal in 2007, have applied for a special permit pursuant to Article 136. The Supreme Court accepts them.

D] Inter-State River Water Disputes Act, 1956

The 1956 Law on Water Disputes was adopted pursuant to Article 262 of the Constitution. The center plays a very important role in the law. Article 4(1) of the Act, which is empowered to establish a water court to challenge water law on the basis of a county government. 

Pursuant to Article 5(2) of the Act, the Civil Service Tribunal shall, within three years, send a report to the central government containing the facts and the decision thereon. The decision of the court is published by the central government in the official gazette. After publication in the Official Journal of the European Union, the decision has the same value as the order or order of the Supreme Court.

Thus, the central government can deal with the Commission, which is obliged to execute court orders. The government can make judgments. The Center can dissolve the tribunal. Sec. 11 excludes the jurisdiction of the Supreme Court and other courts pursuant to law.

This law does not exclude the central government, but interferes with various aspects of the court. The arbitral tribunal shall submit its report to the central government and shall therefore have jurisdiction. In the resolution of disputes concerning river water, the central government is in the hierarchy of the respective state governments and their dependent court.

E] River Boards Act, 1956

Although the Rivers Act was passed in 1956, no river basin was formed under this Act. However, it is important to study this law in order to analyze the role of the Center in the dispute between rivers between states, as set out in this Act.

According to Section 2 of the Act, the Center should control the development and development of transnational rivers and river valleys. At the request of a regional government, the Center may establish a river council. The term used herein is “may”, which means that the flow rate depends on the discretion of the central government. The Agency may prepare, amend or reject river or river development projects between countries.

By law, the central government gives the Council the power to perform its tasks. The term used here is “as deemed necessary by the central government”, which means that the amount paid to the Board of Directors clearly depends on the discretion of the central government, which is an annual report to the central government and the governments of the countries concerned.

This shows that the Council is responsible for its actions towards the central government. The central government has the opportunity to develop rules for achieving the goals of the law. It therefore appears that the termination of the Board of Directors seems necessary “if the central government agrees”.

While the main actors in the dispute are the respective national governments, how the conflict with the central government takes place is up. The mechanisms established for the adjudication of such disputes are accountable to the Central government and owe their very existence to the Central government. Thus, to say that water and Inter-State water disputes falls within the domain of State governments due to its presence in the State List is a fallacy. The Central government plays an equally, if not more important role in inter-state river water disputes.

Ongoing and resolved water disputes in India

According to the Ministry of Water Resources, River Development and Territorial Rejuvenation, eight courts have been established under the ISRWD Act for the management of river waters. In addition, 114 intergovernmental agreements have been concluded to resolve water disputes. Some permanent and resolved river basin conflicts are discussed below.

Cauvery Dispute

The Cauvery is an indigenous Karnataka. It passes through Tamil Nadu and Pondicherry before the Bengal Gulf flows. In both countries, food production and livelihoods depend on the water in the Cauvery River. Tamil Nadu believes he is in need in the years of mercy in Karnataka, while he cannot release Tamil Nadu while water is not available to his peasants.

An agreement was reached between the Madras Presidency and the Principality of Mysore which ended in 1974. Between 1968 and 1990, 21 trilateral meetings were held with the ministers of Karnataka and Tamil Nadu and with the Union Ministers for Irrigation. Between 1972 and 1976, the Indian government played a mediating role, but no agreement was reached.

At the request of Tamil Nadu, the central government established the Cauvery Water Dispute Tribunal in June 1990. In 1991, the court issued a preliminary injunction ordering Karnataka to provide Tamil Nadu with one ton of cubic feet of water. Karnataka, who was dissatisfied with the temporary prize, received in 1991, in this scenario, the central government sent the case to the Supreme Court.

The Supreme Court in Re Cauvery Water Disputes Tribunal v. Respondent, declared the order of Karnataka must be ultra vires. There were protests in Karnataka where five people died. In 1998, the central government set up a monitoring committee under the Cauvery River Authority (CRA) and the ISRWD. The rating agency has ordered Karnataka to release 9,000 aquatic animals in Tamil Nadu. Karnataka and Tamil Nadu were satisfied with this order and Karnataka refused to implement this arrangement.

In 2007, CWDT received its final prize. The two agreements between Madrid and Mysore on water supply in Tamil Nadu between 1892 and 1924 were valid.

The main problems of Tamil Nadu were as follows:

(i) It wanted this final arrangement to be published in the Official Journal.

(ii) It wanted to create a Cauvery Management Board. This was finally done in 2013.

The case reached its peak in September 2016, when the Supreme Court asked the Karnataka government to release 15,000 water bodies in Tamil Nadu over the next 10 days. Karnataka applied court rulings on state protests. One person died and four were injured against the police. Tamil companies were attacked by the masses. Traffic on the Bengaluru-Mysore highway was paralyzed by violence. 

At the same time, at the request of the Attorney General, the Supreme Court set up a technical team to visit the Cauvery Basin to assess the site’s reality. The team reported to the Supreme Court in October 2016. The government of Karnataka was directed to release 2000 cu-secs of water. Hearings in this matter are still going on.

The Cauvery conflict has led to tense relations between Tamil Nadu and Karnataka. This was exacerbated by the violence and disorder that accompanied the conflict. The central government played a mediating role in the negotiations between the two countries. He established an arbitration panel and the technical team was also formed on the basis of the central government’s opinion. In addition, the Cauvery River Authority (CRA) oversaw the prime minister’s activities. Thus, the central government played the role of negotiator in a dispute between the two countries.

Conclusion

Transnational disputes over rivers have always been a source of political imbalance. These disputes include elements of national pride and prestige. National conflicts with water are also an important issue for politicians in elections. Politicians and governments have always promised to get the best possible offer for their country and people. This shows the important role that such disputes play in the political and federal system of India. Water and water supplies were mentioned in the Constitution as a national issue. List 56 of List I empowers the Center to regulate and develop rivers and valleys between countries.

Article 262 also gives Parliament the right to regulate intergovernmental dispute resolution in river waters, as well as the right to prohibit the Supreme Court and other courts from deciding on such matters. At first glance, however, national governments seem to be able to resolve cross-border disputes with water. A closer overview shows that the central government has actually invested in powers. The central government issued the 1956 ISRWD Act under Article 262. This means that states cannot set their own water dispute resolution laws and rely on ISRWD to resolve such disputes. The ISRWD Act gives the central government the right to resolve such disputes through the formation of courts, while states are only litigation. Thus, the central government has the real power to resolve cross-border disputes over water. Article 11 of the ISRWD Act excludes the jurisdiction of the Supreme Court.

The project also dealt with the disputes in Cauvery and Godavari. Cauvery dispute is pending when Godavari dispute is resolved. The Center has played a mediating role in these conflicts. These included the establishment of courts at the request of states, the convening of the same meeting, and the search for an agreement between them. In such disputes, the center is a negotiator with the countries at the top of the hierarchy.

Of course, such disputes have further deepened relations between countries. Transnational disputes have often shown the pride and prestige of the States Parties. Politicians, on the other hand, have brought the fire to political advantage. The Cauvery conflict has even become violent, with physical attacks on members of another. This development is not good for India.

In its report, the Sarkaria Commission has dealt with disputes between rivers. Some of its recommendations are included in the ISRWD Act. Proposals for creating a database, establishing a court within a year at the request of a state, and a recommendation for a court judgment is the same as that of the Supreme Court. Other proposals, such as the establishment of a court of its own motion and the enforcement of a court conviction over five years, although desirable, were not investigated. The law amending the 2017 ISRWD Act provides for the establishment of one permanent court.

The project also looked at the feasibility of connecting rivers, a proposal to eliminate water scarcity and thus avoid water conflicts between countries. However, such a project would bring huge capital and energy needs and would have disastrous consequences for the environment. It is therefore best to stay away from this practice.

The dispute over Godavari Falls has shown that negotiating between countries is often the best way to resolve water disputes. In both cases, intergovernmental agreements came into force decades ago. Nonetheless, the Contracting States follow this and there is no new dispute in this respect. On the other hand, cross-border disputes between courts on water have been solved for centuries without real development. When the Civil Service Tribunal announces its sentence, States Parties often refuse to enforce the sentence. This was observed in the Cauvery dispute. For example, negotiations between States Parties are the best way to bring about a quick and sustainable end to river basin disputes.

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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The article has been written by Ayush Verma, a 2nd-year student at RMLNLU, Lucknow. The article discusses the essentials of a lock-out agreement, its advantages and disadvantages and how to make such agreements work.

Introduction

A lock-out agreement (sometimes called an exclusivity agreement) is a fundamentally negative agreement wherein the seller is required not to negotiate with the third parties during the lockout period. A seller can only deal with the buyer during such period. The dealings can be in terms of supply of goods, services, etc. However, such an agreement doesn’t guarantee that a sale contract will be entered into.

The agreement provides the buyer with a fixed period of exclusivity which gives the buyer an opportunity to carry out searches, surveys, and investigations before purchasing the property. A property which is the subject of the sale shall also be removed from the market, for the period specified in the agreement. It ensures that the seller does not enter into an agreement with any other person which may cause loss to the buyer.

Essentials

Seller’s Obligations

A sale is not completed when a seller enters into a lock-out agreement with the buyer. After entering into a lock-out agreement, neither the seller is committed to the sale nor the buyer is committed to the purchase. The seller just promises the buyer:

1. To not enter into any agreement or negotiations with the third party;
2. Restricting the third party from viewing the property (by taking off the property from the market);
3. Not to enter into any contractual obligations with the other parties in regards to that property.

The agreement is entered into for a shorter period of time. Otherwise, it may be disadvantageous to the seller; for example, where a third party is offering a higher amount for a property to the seller, the seller might want to accept that offer but he cannot, as he has already made an agreement with the buyer regarding that property. So, the restrictions should be for a shorter period of time.

The purpose of a lock-out agreement is to provide the buyer time to carry out its initial due diligence regarding the property while the parties are agreeing to more detailed terms or the relevant legal documents. Therefore, the seller needs to think about certain specific arrangements that he wants to be put in the lock-out agreement and which needs to be omitted from the arrangements.

The seller may also ask for a non-returnable deposit to the buyer as the consideration for the lock-out agreement. This would help the seller to get some returns for taking his property off the market as per the terms of the agreement. And, it might also incentivize the buyer to proceed with the sale.

Definite Time-period

The time period for which the obligations of the lock-out agreement shall apply must be clearly defined and the period must be fixed, like – two months. The agreement shall specify:

1. When does it start?
2. When does it finish?

A seller would want the time period to be as short as possible so that he can deal with the third party after the agreement ends. However, a buyer would want the opposite as he wants more time to carry out the due diligence.

Confidentiality

A term of confidentiality is important for lock-out agreements which may include termination. When a party enters into a business relationship, it may obtain and have access to highly confidential information and other sensitive information that may be helpful to the competitors. Therefore, there should be a well-drafted agreement incorporating both the immediate and future needs of all the parties involved, in order to maximize business synergy.  A confidentiality provision is required because, if the sale is not completed, the seller does not want the market to get a wrong impression as to the value of the property.

Change of heart

If a party loses its interest in the transaction, the other party would never want to be locked into a pre-contract agreement in order to save time and cost. So, lock-out agreements often include a clause asking both parties to notify each other if, during the lock-out period, they choose not to proceed.

Good faith Agreement

A lock-out agreement may include a clause where both parties agree to act in utmost good faith towards each other, in relation to the agreement and the transaction. An act of good faith means that:

• The parties will be observing reasonable commercial standards of fair dealing;
• Being faithful to each other for the purposes of the agreement; and
• Acting consistently with the reasonable expectations of the other party.

A clause is more likely to be enforceable if it is more detailed and clear, so both parties need to specify what they expect from the other party to progress the transaction.

Buyer’s Obligations

There are certain obligations that buyers have to abide by. These obligations may be imposed by the seller. The buyer needs to carry out its due diligence (for example, submit searches, carry out environmental investigations and measured surveys) within the time specified in the agreement. It may be suitable to specify in the agreement that if the specified time limits are not met, the seller shall have the right to determine the conditions of the agreement.

The buyer or its solicitors need to comment quickly on the draft documents submitted and raise 

preliminary queries regarding the information supplied to them, and carry out the due diligence properly.

If the seller is carrying out environmental or survey tests, the seller can ask the buyer to produce copies at the completion of the lock-out period, if the buyer decides not to continue with the transaction, although these will not be particularly directed to the seller. The copies may include useful background information (in specific circumstances, a seller might insist that the reports must be directed to the seller as well as the proposed buyer).

Other types of Seller’s obligations

The seller may agree that his solicitors will dispatch the draft documents within a specified time period, to quickly deal with the proposed amendments in the documentation by the buyer and to make reasonable efforts to answer the preliminary queries raised by the buyer. If the seller has committed to allow the buyer to carry out surveys, the seller needs to ensure that the consent of the occupational tenant is obtained, if necessary, and also allow the proposed investigations (for e.g. – the seller might want to be informed about where the boreholes may be sunk; allow the proposed reinstatement works and look over buyer’s public liability insurance).

Liability of Breach

There is a possibility that a buyer may not proceed with the sale. If the seller gets convinced during the lock-out period about such happening, he may want to proceed with another offer immediately, in order to complete his sale. This would lead to the seller breaching the lock-out agreement. So, let’s discuss the potential liabilities that may arise from such breach:

• Firstly, a buyer may obtain an injunction to restrict the seller from contracting with another interested party. However, the courts have emphasised on various occasions that an injunction should be granted for a short period (reflecting the nature of the lock-out agreement itself). An injunction would stop the seller from negotiating with another party during the lock-out period but would still not commit the seller to any succeeding transaction with the original buyer.
• Secondly, a buyer shall be entitled to get damages for the breach. Typically, the Courts have always emphasised on the buyer’s wasted costs while deciding the damages. However, there is an argument that the damages should be further restricted. A transaction may not have completed even if the lock-out agreement is not breached and the buyer would have suffered losses. Therefore, it can be said that the damages should be limited to the additional wasted costs which were caused to the buyer by the seller’s breach.

A buyer may also ask the seller to pay a non-refundable deposit if the transaction is not completed. It can also be used to pay off buyer’s wasted expenditure and would also act as a warning to the seller to not sell the site elsewhere. Nevertheless, it will depend on the negotiating position of both the parties but it will be difficult to foresee that other sellers will also want themselves to be put in such a situation.

Withdrawal

A seller cannot be said to be bound by the terms of the sale, therefore, it is plausible to use a mechanism whereby the seller can end any positive obligations, if the negotiations have broken down or where the seller decides not to proceed.

Such a mechanism would involve serving the ‘withdrawal notice’ to the buyer upon receipt of which such obligations would directly terminate. However, negative obligations on the part of the seller (not negotiating with other parties etc.) would remain alive until the exclusivity period lasts.

Contrastly, in many cases, a withdrawal notice from the buyer will logically operate to bring the exclusivity period to an end instantly upon receipt by the seller.

Recovery of the buyer’s costs

In the lock-out agreement, the seller is liable to pay the costs to the buyer, if the buyer serves a written notice (during the lock-out period) confirming that he is ready, willing and able to exchange contracts. It the seller then fails or refuses to do the exchange, he shall pay to the buyer, an amount which may be equal to the total costs, fees and expenses incurred by the buyer during the lock-out period. This may or may not be subject to a cap. Since an exclusivity or a lock-out agreement is intended to protect the buyer from having incurred substantial costs while getting ready for the completion of the sale, and at the last moment if he losses property because the seller decides to proceed with someone else, payment of damages by the seller is to be regarded as a suitable alternative.

Advantages of a lock-out agreement

• A lock-out agreement can help in achieving financial security as it provides a stable stream of revenue. This revenue stream can further help in expanding the company once the exclusivity period expires.
• It provides a better business focus. It can help a company focus on the long-term goals as the distributive issues and other logistical issues are dealt with, by the provider.
• It also helps in networking as such agreements give you access to the provider’s network of business owners. It also helps in establishing a stronger business and personal bond with the parties involved that could persist beyond the term of the contract itself.

Disadvantages of a lock-out agreement

• A lock-out agreement may hamper the creativity and flexibility in the business.
• Violating a lock-out agreement can bring fines and penalties, as a result of which parties might miss more advantageous business opportunities.

How to make such agreements work?

• The most important thing for the parties is to agree to both the principles and the terms of an agreement before agreeing to the sale of the property i.e. it should be included as one of the terms of the sale and preferably, a draft of the agreement should have been viewed and accepted by the parties beforehand.
• It is also important to distinguish those cases where using an exclusivity agreement may be inappropriate. This will be where one or other party is not committing to exchange within the definite time period.
• Lawyers of both parties should be familiar and passionate about the use of an exclusivity agreement. Some lawyers think that such agreements are not a good thing and the time spent on putting such agreement in place should be utilized in trying to achieve unconditional exchange of contracts.
• The agreement should be promptly exchanged and a date by which exchange must be completed should be fixed as a term of the property’s sale.
• It is also recommended that, in every case, the seller’s title to the property be provided to the buyer’s lawyer before the exclusivity agreement is exchanged. Now, that title to 90% of the properties being registered, it is easy to identify the major defects in the title. It also helps to check that the owners of the property and the seller are the same.
• It is also recommended that, if possible, the buyer should get the survey done before exchanging of the agreement. It is beneficial for both parties because it indicates that the other important reason why a buyer may wish to withdraw from an exclusivity agreement will have been dealt with. However, it is not easy to achieve because surveys can take time to arrange which will delay the timeframe for getting the agreement in place.

Conclusion

A lock-out agreement aims to secure a pre-contract ‘lock-out’ period for a buyer to enable him to carry out searches, surveys and investigations before proceeding with the sale. However, the agreement doesn’t bind the parties to proceed with the sale. A lock-out agreement should be entered into for a shorter period of time so that the ‘lock-out’ period doesn’t harm the seller. Its terms should be definite and straight-forward in order to avoid any confusion.

References

• https://www.traverssmith.com/knowledge/knowledge-container/lock-out-agreements-a-users-guide/
• https://shepwedd.com/knowledge/price-exclusivity-lock-out-agreements-examined
• https://www.upcounsel.com/exclusivity-clause
• https://www.lexisnexis.co.uk/blog/built-environment/lock-out-agreements-exclusivity-6-key-drafting-points

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 Essentials of a Lock-Out Agreement appeared first on iPleaders.

This article is written by Aniket Tiwari, a first-year student pursuing B.A. LL.B. from Law School, BHU. In this, there is a detailed explanation of Section 304A of the Indian Penal Code which talks about “Death by Negligence”. 

Introduction

Whenever, I go through any newspaper they majorly cover the news on various topics. One of them is related to the murder of any person. In this article, we will cover the death of a person due to someone’s negligence.

Whenever, I heard some sophisticated terms like murder, death, homicide, culpable homicide, etc I am often confused about the difference between these terms. Recently I got a chance to clear all my doubts related to this by meeting my Uncle. He told me that under IPC all these terms are defined and all of them are somehow different from each other.

The term culpable homicide is discussed in Section 299 of the Indian Penal Code. According to this section, a person commits the offense of culpable homicide if he/she does an act with the intent of causing the death of another person, or with the intent to cause such bodily injury that it is likely to cause death, or with the knowledge that he/she is likely to cause death by doing such acts.

Section 300 of IPC has discussed the term murder and the different aspects related to murder are also mentioned here. According to this, every culpable homicide is murder but the same does not apply vice- versa. The main difference between culpable homicide and murder is the difference in the degree of the offense not the form of offense. Basically they differ in gravity or intensity. The intensity of murder is quite higher than the intensity of culpable homicide.

The difference between murder and culpable homicide can be further explained through certain examples. Let’s take a situation where a person’s head was struck by a baseball bat then there is very little possibility that he/she may survive after that head injury. Here there are still some chances for the survival of that person. In this case, if the persons die than the other person who had hit him/her would be liable for culpable homicide.

Let’s take another example where a person is shot by a gun in his forehead. Here there are no chances that this person will survive from this blow on his head. It is an example of murder. From both of these examples, we can clearly distinguish the terms culpable homicide and murder.   

Culpable homicide is further divided into two categories:

• Culpable homicide amounting to murder: It can be simply called as murder.
• Culpable homicide not amounting to murder: There is knowledge or criminal intention in both cases. The only difference which amounts to causing the culpable homicide amounting to murder is the degree of the criminality of the act. In IPC it has been termed as culpable homicide.

This concept of culpable homicide not amounting to murder is further discussed in Section 304 of the Indian Penal Code. Here in this article, we will discuss the concept of one part of culpable homicide. Section 304A of the Indian Penal Code talks about the death caused by the negligence. This Section was not there in the Indian Penal Code in 1860 but was inserted later in the year 1870. It does not make any new offense but covers the offense which falls outside the Sections 299 and Sections 300. Here there is no intention or knowledge to cause death. 

Let us understand the difference between culpable homicide and death by negligence (Section 304A of IPC) through examples. For instance where a person drives a car in a street that is crowded with a speed of 90 km/hr. Here he has the knowledge/ intention that if he hit any person with that car then that person would die. It is a case of culpable homicide as there intention/ knowledge of the crime is involved. Let’s take another instance where a mother of a child leaves the child in a street in such a way that the child was visible to the audience coming in the street. Here the motive of the woman is that her child could be taken by someone by seeing it. But if the child kept there dies due to starvation then its mother would be liable for causing death by negligence. It is because in the second case there is no intention to kill someone.

Rash or Negligent act

Section 304A of the Indian Penal Code talks about causing death by negligence or rash act. This Section mentions that if a person causes the death of another person by doing a negligent or rash act which does not amount to culpable homicide shall be punished with imprisonment for a term of a maximum of two years, or with fine, or with both. For understanding the whole concept given in Section 304A we need to understand the term negligent act. It became important to have proper knowledge regarding this term. In the legal field ‘ negligence’ can be defined as an act or omission that causes damages to the property of another person. Here in this Section of the Indian Penal Code the term rash or negligent act can be defined as an act that is the immediate cause of death. There is a difference between these terms( rash and negligent) also. By ‘rash act’ we mean any act which is done restlessly. By the term ‘negligent act’ we mean a breach of duty due to omission to do something, which a reasonable man will do.

There are four basic elements that a person has to fulfill in order to do a negligent act. These elements are as follows:

• Duty: For committing a negligent act, there must be some duty on the part of the defendant. Here it is important to understand whether the defendant has taken legal duty of care towards the plaintiff.  
• Breach of Duty: After fulfilling the first criteria the plaintiff must prove that the defendant has breached the legal duty imposed on him/her. It talks about the breach of duty on the part of the defendant which he/ she is expected to do as he/ she has some legal duty towards the plaintiff. 
• The action of causing something: It means that the damage caused to the plaintiff is due to the act of the defendant. Here the defendant may do an act which is not expected from him/her or the defendant may be negligent in not doing an act which was expected from him/ her. 
• Damages:  At last what matters is, there must be some damage/injury that is caused to the plaintiff and this damages should be the direct consequence of the defendant’s act.

 To apply Section 304A it becomes very important to show that there is no intention on the part of the defendant to commit a crime. For understanding the ‘rash act’ one should understand that it is an act which is done hastily and is opposed to any intentional act. A rash act is done without any deliberation or with caution. It depends on the level/degree of recklessness.

Cherubin Gregory v. State of Bihar, 1964

The definition of the rash or negligent act can be understood by the famous case of Cherubin Gregory v. State of Bihar. In this case, the Supreme Court stated the difference between the rash or negligent act. Here, in this case, the appellant was charged under Section 304A of IPC for causing the death of a woman who stayed near the house of the appellant. Here the deceased was using the latrine/ toilet of the accused for about a week. The accused gave the oral warnings related to it to the deceased but the deceased continue to use the latrine of the accused.  As he (accused) finds his oral warnings to be insufficient so he put a naked copper wire carrying electricity on the passage leading to the latrine. On the day of the occurrence of the incident, the woman went to the latrine of the appellant and there she touched the fixed wire and she died because of this. There were several issues raised in this case. Here the Court held that the mere fact that the person entering is a trespasser does not entitle the owner of the land to inflict personal injury upon the trespasser. The same principle also applies to the fact that the owner inflicted the injury by indirect ways of doing something. The owner should know that it may cause a serious injury to the trespasser.

Here the Apex Court also held that in this case, the appellant would be liable for his rash act (as the act was considered to be reckless) and the accused was held liable under Section 304A of the Indian Penal Code.

Absence of Intentional Violence

As mentioned earlier that the Section 304A of the Indian Penal Code applies in cases where there is nothing to do with the intention of a person to cause the death of another person. Here there is no role of knowledge of the person that if the act is committed it will lead to the death of a person. The elements under Section 304A makes death by negligence outside the range of Sections 299 and Sections 300 of IPC. It can be clearly understand that the two basic elements of Section 304A are negligence and rashness. This Section allows the criminality of a matter in spite of the absence of mens rea. It is important to remember that in such cases there can be no motive or intention of a person still due to his/ her negligence or rashness the person may cause the death of another person.

Let’s take another example to understand the concept that the intention of a person does not matter under Section 304A of the IPC. For instance, if a building is built by a corporation that is busy in the business of construction. After all the inspection this building gets the Building Use certificate and all the safety measures related to electricity and fire were taken by the Corporation. Here if any fire breaks out due to an electrical short circuit. And due to this, the people living in that building starts to jump outside the building in order to save their lives and there is negligence on the part of the corporation. Here if any person dies after falling from the building then the corporation would be liable for its negligent act under Section 304A of IPC although there is no intention or knowledge on the part of the corporation about the same.        

Sarabjeet Singh And Ors. v. State of Uttar Pradesh, 1983

In the very famous case of Sarabjeet Singh And Ors. v. State of Uttar Pradesh, the intention of a person during the commission of a crime was questioned. Here the major question raised by the counsel of the accused was related to the intention of the person during committing a death of a person. In this case, the Appellant Sarabjeet Singh and 17 other peoples were put on a trial for having committed the crime of murder of infant Radhey Shyam. Here the accused (Sarabjeet Singh) lifted the child and thrown him on the ground and later it was founded that this resulted in the death of the child. It was found that there was no intention on the part of the accused towards the infant. It was also found that Sarabjeet has no grievances towards Radhey Shyam and therefore it was held that there is a lack of intention in this case. Now the next question which was put forward was about the knowledge of the wrong. Here, in this case, the accused may not have intended to kill the infant but he had all the knowledge that if the child is thrown from such height then the child will die ultimately. So the Court held the accused liable under Section 299 as all the conditions under this section get fulfilled. Now the counsel from the appellant side argued that this is the case of death by negligence and must come under Section 304A of the IPC. He argued that this is because this case includes the rash act of the appellant but as there is knowledge about the crime on the part of the accused so the court held that this case can’t come under Section 304A of IPC rather it will be covered by the second part of Section 304( it talks about knowledge of the person during committing any crime).

Death must be the Direct Result

Section 304A talks about a situation where the death of a person must be the direct result/ consequence of the act of the defendant. Here it is important to remember one point that whether the alleged act of the defendant is the direct result of the rashness or the negligence of the defendant. Here the act of the defendant must become the ultimate reason for the death without any intervention from another person. For instance take an example where the School Administration failed to take care of the safety of the students as they (administrators) allowed the use of a defective bus to take the students to their houses. Here if any accident will happen then the liability of the School Administration will depend on the fact that whether the accident was the direct result of the negligent act of the administration or not.

Here the principle of causa causans will apply. This principle talks about the immediate cause of any act. It may be defined as the last link in the chain of the action of causing something. It talks about the action of the person must bring immediate cause and no remote causes of such action would be relevant in the context where this principle applied. Here it is difficult to determine what is the immediate cause and what is the remote cause of action. It can be determined on the basis of reasonability of the prudent person. The immediate cause of action includes the act which a prudent man can see.

To impose the liability under Section 304A of the Indian Penal Code it is necessary to apply the principle of causa causans and see whether the death of a person is caused by the negligent act or rash act of the defendant.

Suleman Rehiman Mulani & Anr v. the State of Maharashtra, 1968

In the case of Suleman Rehiman Mulani & Anr v. the State of Maharashtra, the Supreme also applied the same concept which is already discussed above. In this the appellant was driving a jeep and he has learners license to drive the same and no one was sitting with him who has a proper driving license. Here the appellant on his way struck a person named Bapu Babaji Bhiwarkar by his jeep. In order to protect the injured person he put him inside the jeep and went to a doctor who refused to give medical aid to an injured person and the doctor directed them to go Medical Dispensary and the appellant instead of going their went somewhere else as a result injured person died. Here appellant was found negligent as he doesn’t have proper documents related to driving a jeep. But the major question which was put before the court was whether the death of the person was caused due to the direct consequence of the appellant negligent act. The Supreme Court held that the death of the person does not the amount due to the direct consequence of the appellant therefore he can not be liable under Section 304A of the IPC. The Apex Court does not find any evidence which shows that the negligent or rash act of the appellant was the proximate cause of damage.  

However, in this case, the appellant was held liable according to the provisions of the Motor Vehicles Act,1988.

Ambalal D. Bhatt v. State of Gujarat, 1972

In the very famous case of Ambalal D. Bhatt v. State of Gujarat the Supreme Court again explained the concept that a person is liable under Section 304A of the Indian Penal Code only if the principle of causa causans is fulfilled. Here this case is about medical negligence. Here the appellant who was Chemist Incharge in a chemical industry along with five other members were charged under Section 304A of the IPC. They were found to be negligent in manufacturing the solution of glucose which was later consumed by the patients of different hospitals and 13 patients died by the injection of the solution. It was found that the solution contains more lead nitrate than what was permitted. Here the Prabhakaran was the Chief Analyst of the Testing Laboratory. He was found negligent in his part as he did not prepare the solution according to the Drug Control Act. Here the Supreme Court held that the appellant ( Prabhakaran) can not be liable alone. The court further stated that the appellant was not only negligent, here it was also the duty of several other persons to maintain the quality of the solution. Under the principle of the causa causans there is the causal chain that consists of many links(acts), it talks about the act which ultimately contributes to the consequence. Here the action of the appellant was found to be the only one of the causes of all causes. In other words, it can be explained that the appellant action was one of the causes of death and it was found to be insufficient to be the ultimate cause of the death of the 13 persons.

Difference between Rashness and Negligence

The two most frequently used terms while applying Section 304A of the Indian Penal Code are rashness and negligence. There are several judgements of the Supreme Court which talk about the difference between these two terms. For a  layman, these two terms may appear to be the same but there is a huge difference between the meanings of both these terms. Coming to the technicalities, by negligence we understand a state of mind of no foresees of the consequence of the act of a person. However, by term rash act we understand a state of mind that can foresee the consequence of the act but still ignored it. Both can not be present in a person simultaneously. Let’s take an example to illustrate the difference between these two terms. When a person throws a stone from the third floor without thinking whether there may be someone on the ground. Here the person is negligent in his act. Let’s take another instance where a person throws the stone by thinking about the fact that his act can cause injury to someone. Here the person will be liable for his rash act.

Bhalachandra Waman Pathe v. State of Maharashtra, 1968

In the case of Bhalachandra Waman Pathe v. State of Maharashtra, the appellant was charged under Section 304A of the Indian Penal Code for causing the death of a 21-year woman by driving his car rashly and negligently in the road. In this case, the appellant questioned his conviction which was brought out by the High Court through the suo moto proceedings. Here the Court tried to establish the difference between rash and negligent act. According to this case, there were two sisters who were crossing the road through the pedestrian crossings (in order to go to a beach) knocked down by a car of the appellant. As a result, the elder sister died due to a development of hemorrhage. The question that was asked by the Court was regarding the rash and negligent driving of the car by the appellant. Here, the High Court found that there was definitely negligence on the part of the appellant as his conduct was not as reasonable or prudent man would have. It was found that the appellant failed to discharge the duty imposed by law on him. Here the duty was imposed to take care of the pedestrian in pedestrian crossings. However, the appellant was not found to drive his car rashly. It is because of the fact that the prescribed limit of the speed of that in the street was found to be 35 km/hr and here, in this case, the car was found to be driven within the speed prescribed by law. Also, the time at which accident took place was in the morning and as a result, the driver does not need to take extra care regarding the speed of the car.

Rash and Negligent Act in Driving Along a Public Highway

Section 304A of the Indian Penal Code is applicable in the cases related to the rash and negligent act in driving any vehicle along a public highway. Due to this negligent and rash act of one person the other person suffers. Here the death of a person will result in the legal proceedings against the defendant. Here all the elements of Section 304A need to be checked. According to this Section, the person who is driving the vehicle must be either negligent or does the act rashly. The person must not have any intention or knowledge related to the fact that this act of his/ her will lead to the death of any person. And at last, there must be the death of a person due to this rash/ negligent act of the defendant. In these cases the principle of Res Ipsa Loquitur is also applied.

Duli Chand v. Delhi Administration, 1975

The famous case of Duli Chand v. Delhi Administration is a classic example of doing a negligent act in driving along a public highway. In this case, the appellant (driving a bus) struck the deceased person who was coming/riding a bicycle. Here it was questioned that the speed of the bus was excessive which resulted in the death of the other person because of the negligent and rash act of the appellant. However, the Supreme Court found that there was negligence on the part of appellant because the appellant did not look at his right even though he was approaching a crossroad and failed to notice the deceased who was coming from his right was crossing the road. The Supreme Court thus held that the driver of the bus is grossly negligent but the act of the driver was not found to be rash. It was because during the time of the accident, the speed of the bus was found to be 20 miles per hour which can not be considered as an excessive speed in any of the Public Highway and thus the act of driver was not rash. Therefore the Supreme Court held the appellant liable for his breach of duty.

Mohammed Aynuddin@Miyam v. State of Andhra Pradesh, 2000

The case of Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh is another example where driving in a rashly or negligently manner was questioned. In this case, the appellant appealed against previous decision to the Supreme Court of India. The major question, in this case, was whether the driver of the bus was really negligent in driving? Here the driver was driving a bus of the Andhra Pradesh Road Corporation. A passenger named Agamma boarded the bus and she fell down from the bus as the bus moved forward. And as the rear wheel of the bus ran over her the women suffered from many injuries and due to these injuries, she died ultimately. According to a witness as the woman fell down the bus stopped after traveling some distance as the appellant heard the voice to stop the bus.

Here, in this case, the various elements of Section 304A of the Indian Penal Code were again cross-checked. Here the Supreme Court held that it is wrong to presume the negligence on the part of the driver in any motor accident negligence. It was further held that in an accident like this, it becomes important for the driver to prove that he/she is not negligent. The Supreme Court also talked about the principle of Res Ipsa Loquitur. The Apex Court said that this principle can not be applied everywhere and its application depends on the situation.

In the present case, the Supreme Court found that there can be negligence on the part of the passenger, there can be negligence on the part of the driver as well as there is the possibility that it is an accident. In this case, the Supreme Court found that the driver was unaware of the fact that there is even a possibility of an accident. The evidence, in this case, was found to be too scanty to fasten the driver with criminal negligence.          

Doctrine of Res Ipsa Loquitur

The term Res Ipsa Loquitur comes from the Latin language and it means that ‘the things itself speaks’. In common language, it can be understood by the phrase “ the things speaks for itself”. It is applied where it is difficult to find who is negligent in the case. But it is well established (prima facie) that someone must be negligent in the case. When any train crashes, a bridge collapses or when any automobile is found inside the hotel lobby then it is very certain that it must be due to someone’s negligence. But when we do not have any conclusive evidence regarding who was actually negligent then the doctrine of Res Ipsa Loquitur is applied. Here in the above cases, the crash of the train must be due to the conductor who fell asleep during the journey of the train. It is decided by the fact that who is the person/ authority etc. in control at the time of the accident. 

The principle of res ipsa loquitur is a rule of evidence to determine the responsibility/onus of proof in actions related to negligence. This principle is applicable only when the nature of the accident and the circumstances related to the case would lead to the belief that in the absence of negligence the accident would not have occurred and the thing which caused the injury must be under the management and control of the wrongdoer. 

Ravi Kapur v. State of Rajasthan, 2012

In the very famous case of Ravi Kapur v. State of Rajasthan the principle/doctrine of res ipsa loquitur was discussed in detail. This is the case of an appeal against the judgment of the High Court of Jaipur Bench. The facts of the case were as follows:

“Sukhdeep Singh was going to attend the marriage of his brother along with his family. They were going in two jeeps and a Maruti car. On their way, they met with an accident with a bus that was coming from the opposite direction at a very high speed. Due to this eight-person died on the spot. According to one of the witnesses, the bus was driven by the accused Ravi Kapur and after the accident, he ran away from the spot. The trial court held that the prosecution was not able to prove the liability of Ram Kapur and hence he was acquitted by the trial court. However, the decision of the High Court comes against the trial court and its decision was backed by the reasoning which includes the principle of res ipsa loquitur, negligence, reasonable care.” 

The principle of res ipsa loquitur serves two purposes – it establishes the negligence on the part of the accused party and secondly, it is applied in the cases where the claimant is able to prove that there is an accident but is not able to prove how the accident occurred. The High Court by applying the principle of res ipsa loquitur found Ram Kapur liable under Section 304A of the IPC. The same case when went to the Supreme Court the court held that the decision of the High Court was right and the appellant was held liable ultimately.          

Rash or Negligent Act in Medical Treatment

In our country doctors are said to be the second God as they give second life to people by treating them or by giving medical aid to the ill people. Nowadays it has become very common to hear the cases where due to the negligence of these doctors or the medical staff their patients suffer. There are even some cases where due to negligence in medical treatment person died. Here it becomes very important to look after the negligence which is done by the medical team. To cope with this issue there are certain laws and regulations made by our country.

Medical negligence is covered under Consumer Law, Criminal Law and also under Tort Law. It attracts civil liability under Consumer Law and Torts while under Criminal Law it attracts punishment (imprisonment, as well as fine, can be imposed). We have to understand that in Criminal Law it is determined by the state of mind of the person. However, there are some exceptions to it like in offence of Strict Liability and in offence of negligence the state of mind of the person does not matter.  

In the Indian Penal Code, there is a provision that covers the rash or negligent act in medical treatment. Section 304A of IPC also talks about the same and the negligent or rash act of the medical staff is covered in this Section only. The terms like a rash and negligence also create a doubt in the minds of people in the cases related to medical treatment. Here, in my opinion, Section 304A of the Indian Penal Code that deals with rash or negligent act cannot be applied for charging doctors for medical negligence, but they can be charged for negligence only. It is because by the meaning of the rash act as discussed earlier we understand that an act which is performed by the person even if they can foresee the consequence and yet they go-ahead to perform the same act and due to this act someone dies. So we can not apply this meaning to the rash act for the doctors also. Let us understand this whole concept through an example if this concept of “rash act” is applied in the case of doctors, it will mean that if a doctor can ever foresee the death of the patient would happen if he/ she operates and then also doctor proceeds to operate the patient and if a patient dies as a result, then here, in this case, the doctor should be held liable for his/ her rash act. But as these types of uncertainties about the result are very common in the treatment of a person and due to this only the hospital authorities get the consent of the patients or their relatives before the treatment of the patients or before performing any operations.

Also, I think there are several reasons for which this Section can not be applied in the cases related to medical treatment. This Section can not be applied at all to the doctors who have opted for a particular method of treatment. The “reasonable man concept” will also create a problem in the case of the doctor. What a reasonable doctor will do in a particular situation is a big question. For example, if a person having a heart problem approaches a general physician and if he/she treats that person then his method of treatment would be totally different from the methods of treatment of cardio specialist. How can a general physician be held liable if the patient dies due to the treatment of the doctor as here, in this case, the doctor cannot foresee the consequences of his lack of expertise?

But we can not neglect a situation where a doctor forgets a scissor inside the body of the patients during the operating the patient. We can also not neglect a situation where a doctor operates the lift limb of the patient instead of the right limb. Are these are not examples of medical negligence? The answer to this question is very easy it is not about the medical negligence these are clear cases of negligence. There is a difference between medical negligence and negligence. Because even an ordinary can say that there is negligence and it does not require any special medical knowledge. By medical negligence we mean a situation where only a medical practitioner can say that whether there was negligence or not.

But, as said before such negligence or rashness can not be covered by Section 304A of the IPC on the basis of the special nature of the profession or occupation. If any professional driver drives a car rashly or negligently and as a result of this any person dies then he should be liable as it is a case of negligence. The case of the medical profession is different because it involves the life of patients very often. Patients often come to the doctor when they are on the verge of death. Operations or injection can work differently on different persons, despite the due care taken by the doctor. The doctors can be foreseeing the death of the patient but then also he chooses the best option. So here the mental state of the doctor as a negligent or rash is out of the question. So, Section 304A of IPC cannot be used for dealing with cases of medical negligence.

Punishment

After proving the person liability under Section 304A of the Indian Penal Code it becomes very important to punish those offenders. The punishment for death which is caused due to the negligent or rash act of the accused is prescriber under Section 304 A of the IPC itself. According to this Section, a person who is held liable for causing the death by negligence can be punished for the two-year jail or can be fined for the same or can be punished by both. The term of imprisonment depends on the gravity of the crime and imprisonment can be rigorous in nature or can be simple in nature. Its nature is also defined by the gravity of the crime and it varies from situation to situation as it depends on the situation. It is a cognizable offense and has been put in the category of a heinous crime. Here the police officer can arrest the accused without a warrant. It is a bailable offense and a bail can be granted by the police and the court.

Conclusion

Now, I would like to conclude this article by giving the opinions/recommendations which can be implemented for more effective use of Section 304A of Indian Penal Code. There are certain loopholes related to Section 304A which need to be covered by bringing certain changes. Here through our article, we can easily find that Section 304A can not be effectively applied in cases related to medical negligence. There it needs certain reforms for its effective usage. Also, the punishment prescribed under Section 304A is also found to be insufficient. On several occasions there has been a demand for increasing the imprisonment period from two years to five years. The same was found by the Supreme Court judges.

Talking about the positive side of Section 304A of IPC is it helps to distinguish a crime where the defendant/ accused has no intention or has no knowledge about the crime.

References

• https://blog.ipleaders.in/death-by-negligence/
• https://indiankanoon.org/doc/114294154/?type=print

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This Article is written by Abhishek Dubey, a second-year BBA.LLB student from Chanderprabhu Jain College of Higher Studies and School of Law. This article discusses the details about the Top Law Firms of India in Merger and Acquisition, their structure, composition, as well as their awards and achievements in merger and acquisition.

Introduction 

India is one of the growing markets for mergers and acquisitions. The challenges and opportunities of mergers and acquisitions in India have brought a great change in the skills of the lawyer. The increase in competition and legal fees has encouraged new law firms to enter the market. In India, Mergers and Acquisitions have always been dealt with by top law firms; but recently certain changes have been observed in the legal market by the emergence of Platinum Partners and S&R associates. These mid-sized law firms are doing great in mergers and acquisitions. Platinum Partners is a law firm consisting of 50 lawyers and they have given advice in the deal in which UPL corporation acquired Arysta life science which amounts to 4.8 billion dollars. According to a research conducted by the Indian Business Law review, AZB and Partners were ranked second in merger and acquisition in 2018. It advised 99 deals with a value of 48 million USD. In 2019 it has advised more than 100 deals and has a high volume of work relating to merger and acquisition. This was based on research conducted by Indian Business Law Review 2019. They uploaded a form on their website and the rank was decided on the basis of the votes received.

AZB and Partners

About

AZB and Partners were founded in the year 2004 with an objective to provide full-time practical services to clients in all sectors. It consists of more than 400 lawyers and has more than 100 partners with 6 branches across India; two situated in Mumbai and Delhi along with one in Bangalore and Pune, each. The practice areas of AZB and Partners are mergers and acquisitions, insurance, real estate, banking, and finance, etc. They have been recognized as a country leader in the volume of work they undertake. Some of the key clients of AZB and Partners include the Tata group, HDFC, Bharti Airtel, Reliance, various investment banks, and more than 100 multinational companies.

Awards

• Ranked as a Tier 1 law firm for the practice in banking, capital markets, merger and acquisition, insolvency, private equity, and restructuring, by International Financial Law Review 2020.
• Outstanding for the following practice areas such as banking and finance, capital markets, corporate merger and acquisition, private equity according to “Asian law Profile” in the year 2020.
• Awarded as merger and acquisition law firm of the year in India by the “Corporate Intl Global Awards Winner” 2020.
• Ranked as a Tier 1 firm for merger and acquisition by “Asian Legal Business”.
• Ranked as a Band 1 Firm for corporate merger and acquisition, private equity, real estate by “Chamber Asia Pacific”.

TOP advises by AZB and Partners

• They advised Sterlite to acquire a 12.8 percent stake in 5G Virtual Radio Access Innovator.
• They advised Amazon’s acquisition of a 0.51 percent stake in Queues Corp and it was approved by the Competition Commission of India.
• They advised Verena to acquire a 40 percent Stake in Dixcy crop and it was approved by the Competition Commission of India.
• They advised in Tata steel acquisition of Nat steel. The deal size was $468 million.  
• They advised the mergers of 6 small banks with the State Bank Of India for a deal value of US $ 120 million.

Cyril Amarchand and Mangladas

About

Cyril Amarchand and Mangladas is a full-service Indian law firm. It came into existence on 11th May 2015 from its predecessor Amarchand and Mangaldas Suresh and shroff. It has its headquarters in Mumbai. The firm is located across India at 6 different places i.e., in Mumbai, Hyderabad, Banglore, Chennai, Delhi, Ahmedabad. It has more than 700 lawyers and more than 130 partners. The practice areas of Cyril Amarchand and Mangaldas include merger and acquisition, financing, capital markets, litigation and dispute resolution, etc. Some of the key clients of Cyril Amarchand and Mangaldas include the BlackRock group, Tatas capital, ICCI, Kotak Mahindra, Axis Bank, etc.

Awards and Achievements

• Awarded as India law firm of the year 2019 by Business Worlds Global Legal.
• Awarded as the best law firm for women in India by Legal Media Group Euromoney Business Law Awards.
• Won 10 awards by “Indian Business Law Journal” Indian Law Firm in the year 2019 in fields of merger and acquisition, banking and finance, capital market, etc”.
• Awarded merger and acquisition deal of the year by “Asian Law Business India law awards” for the deal of Walmart’s acquisition of Flipkart. 

Top Advice

• They advised Standard life for the acquisition of a 95 percent stake in HDFC Life Insurance Company.
• They advised Walmart’s acquisition of Flipkart.
• They advised Aion Capital partners and Jsw steel for the acquisition of Monnet Ispat.
• Acquisition by for Essar steel acquisition by ArcelorMittal.

Khaitan and Co.

About

Khaitan and Co. is one of India’s oldest law firms established in the year 1911, founded by Devi Prasad Khaitan. It consists of more than 500 lawyers and 115 partners. It has its four branches across in Delhi, Bengaluru, Mumbai, and Kolkata. The key practice areas of  Khaitan and Co are banking and finance, merger and acquisition, antitrust, dispute resolution, etc. Some of the key clients of Khaitan and Co are Harley Davidson India, LN Bangur Group, I Gate, Nippon Life, Blackstone, Vedanta resources, etc. 

Awards and Achievement

• Awarded as a top tier firm by the “International Financial Law Review” in 2020 for Merger and Acquisition, capital markets, restructuring, and insolvency.
• Ranked as a Tier 1 Law Firm by the Asian Legal Business.
• Largest merger and acquisition law firm of the year by IDEX Legal Awards 2019.

Top Advice by Khaitan and company

• They advised in the buy out the stake of Crompton greaves electricals for 0.81 percent in Advent International and Temasek. The deal size was 315 million dollars. 
• They advise in the acquisition of free charge by the snap deal, the deal size was for 400 million dollars. 

Platinum Partner

About 

Platinum Partner is an Indian Corporate law firm. It was established in the year 2008. It has its branches in Delhi, Bangalore, and Mumbai. Its headquarters are in Delhi and Mumbai. The firm specializes in merger and acquisition, infrastructure and securities law, employment law, etc. They advise many domestic and international clients. The reputation of partners of the Platinum law firm is excellent and they have more than 30 years of experience working in International Law Firm and Multinational companies. The major practice areas of Platinum Partners are merger and acquisition.

 Awards and Achievement

• Band 2 in corporate and merger & acquisition by Chambers and Partners.
• Band 2 in corporate and commercial by chamber practice.
• Karam Daulat Singh and Ankit Majumdar recognized as band 1 lawyer in general corporate and mergers and acquisitions.
• Gautam Bhatt recognized as the rising star by RSG consultancy. 

Top Advice by Platinum Partners

• Danone’s acquisition of the Wockhardt group, a nutritional business, the deal size was 250 million dollars.
• They advised Diageo on its acquisition of United Spirit Limited.
• Acquisition of Arysta life science by UPLl Corporation for a deal value of 4.2 billion dollars. 

S&R Associates

About

S&R Associates is a very successful law firm, founded in the year 2005. It practices most of its work on an international level whose work includes 20 percent of work on a domestic level and 80 percent on an international level. The lawyers of S&R associates have experience of practicing in India as well as other jurisdictions such as the United Kingdom, the United States of America, Singapore, etc. It consists of 7 partners and 38 associates; 3 of the partners are women and 4 are men. It has practice areas in merger and acquisition, litigation and arbitration, capital markets, private equity, competition, etc. 

Awards and Achievement

• Ranked 2 in private equity rights and offering by Bloomberg Indian Capital Markets.
• Ranked 5 for announced deals in terms of volume by Bloomberg Indian Capital Markets.
• Ranked 6th by the Market merger and acquisition report 2019.
• Sanjeev Adlaka lawyer of merger and acquisition is recognized as the most mature and sensible lawyer by Chamber Asia Pacific 2020.
• Rajat Sethi was recognized as a high quality and good knowledgeable lawyer by Chamber Asia Pacific 2020.

Top Advice by S&R associates

• It has advised on merger and acquisition transactions for the deal value of 400 million dollars.
• They advised the Qatar Foundation to acquire a 5 percent stake in Bharti Airtel Telecom.
• They advised Dana’s group to have a joint venture in India with Rayant Group. 

Shradul Amarchand and Mangladas 

About

Shradul Amarchand and Manglads is one of the largest law firms in India. It is a full-service law firm in India. The firm came into existence from its predecessor Shradul and Shroff Amarchand and Mangladas on 11 May 2015. It consists of 119 partners and 550 lawyers having its headquarters in New Delhi and Mumbai. The firm has 7 branches across India in New Delhi, Mumbai, Gurugram, Kolkata, Chennai, and Bengaluru. The firm practice areas include general corporate, banking and finance, competition law, etc. the key clients of Shradul Amarchand and Mangladas are Microsoft, State Bank of India, standard chartered bank, Vodafone, Facebook, etc.

Awards and Achievements 

• Won legal expertise award by the Asia Pacific awards 2019.
• Ranked 1 in deal count and deal value in the merger market by India league tables.
• Awarded India law firm of the year by Asian law business.
• Awarded 3 times the country’s law firm of the year 3 times.
• The best law firm of the year for 9 years by business law journal. 
• Band 1 practice in merger and acquisition by Asia pacific.
• Tier 1 law firm in merger and acquisition by Asian Legal Business.

Top Advice by Shradul Amarchand and Mangladas

• They advised the Life Insurance Company to take Industrial Development Bank via open offer for a deal value of 4.4 dollar billion.
• They advised the merger of Gruh Bandhan finance bank with Argus for a deal value of 3 billion dollars.
• They advised the Merger of Baroda, Vijaya and Dena bank the deal which amounted to 1.37 billion dollars.

7. Trilegal

Trilegal is an Indian based law firm founded in the year 2000. It consists of 300 lawyers and 50 partners. It is located at four places across India in Bangalore, Mumbai, New Delhi, and Gurgaon. The practice areas of tri legal include corporate, merger and acquisition, capital markets, etc. The lawyers are focused on providing commercial solutions to legal problems. The key clients of Trillegal include tata power, standard chartered and Mumbai international airport.

Awards

• Ranked 7th in top 10 law firms by RSG Report in merger and acquisition and competition law.
• Ranked as tier 1 law firm by Asian law business.
• Harsh Pais and Nisha Kaur and Neeraj Menon recognized as growing leaders of the year 2019 by RSG report.
• International financial law review awarded as top 10 law firms of India in Merger and acquisition, capital markets, banking, and finance, etc.

Top advice by Trilegal

• They advised the Sriram group for the indirect acquisition of Sanlam Ltd for paid-up equity share capital.
• They advised Telenor for a joint venture with Dwellings for investment in communication services private limited.
• They advised standard chartered for acquisition for Morgan Stanley’s wealth non-institutional wealth business of India.    
• They advised Rewa electrical company for the sale of a 52 percent stake to Mahindra and Mahindra.
• They advised Godrej ltd. for sale of its sake to Hersere company.
• They advised Exide Industries Ltd. on the acquisition of stake ING Vysya Life Insurance Company Ltd.

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The post What are the top Mergers and Acquisition Law Firm in India? appeared first on iPleaders.

This article is written by Srishti Kaushal, a first-year student of Rajiv Gandhi National University of Law, Patiala, Punjab. In this article, she discusses Uber’s acquisition of its Middle East competitor Careem and its impact upon various stakeholders.

Introduction

For any business to be successful, it is essential to manage the competition. In fact, If the competition cannot be managed, it is better to just leave the market. But, there is one other thing you can do- acquire your competitor. Sudhanu Barik once said either buy or bury your competition. In 2019, Uber decided to do just that by acquiring its biggest competitor in the Middle East, Careem.

In a letter addressed to its employees, Uber’s CEO Dara Khosrowshahi said that Uber has acquired Careem for $3.1 billion, thereby aligning the common vision of the companies. He also said that Careem would work as an independent brand which has, time and time again, proven its ability to develop innovative local solutions. It has also played a key role in shaping the future of urban mobility across the Middle East, becoming one of the most successful startups.

In this article, we will understand what the deal was all about, the reasons behind Uber’s decision, how it affected Careem and what was the impact of the acquisition on the various stakeholders of the companies.

Uber

Uber Technologies Inc. or Uber is a San Francisco based American ride-hailing company offering many services like peer to peer ridesharing, ride service hailing, food delivery etc. As of 2019, it is estimated that Uber has more than 100 million users worldwide and is operating in approximately 63 countries and 785 cities worldwide.

Since its inception in 2009, Uber has come a long way and won over the public’s heart throughout the world. It has a market valuation of $49 billion. It’s innovative ways and techniques have bought remarkable changes in the industry, so much that it has been referred to as Uberisation, and many companies have gone on to call their products as “uber for” their products. 

In 2019, Uber finally went public with an initial public offering of $45.

Careem

Careem is one of the few ride-hailing and vehicle for hire companies which has managed to make a name for themselves and win over a market with its unique propositions. Based in Dubai, It is operating in over 120 cities in 14 countries in the Middle East, Africa and South Asia. It was started in 2012 by Mudassir Sheikha and Magnus Olsson. It has created employment for more than 1 million people in the regions of its operation and has 30 million registered users. In 2018, the company got valued at $2 billion. Presently, Careem works as a subsidiary under Uber but has separate operations.

Details about the acquisition

In March of 2019, Uber-Careem Deal was finalized. Let’s look into the details of the deal to understand the acquisition better.

After 9 months of continuous negotiations, Uber and Careem finalized their deal on March 2019. On 23rd March 2019, Uber announced that it will be acquiring Careem for $3.1 billion, paying $1.4 billion in cash and 1.7 billion in convertible notes. These notes were convertible into Uber’s share at the price of $55 per piece. This horizontal acquisition (acquisition by which 2 companies providing similar services come together) created a record for the highest price paid for acquiring a middle east tech startup.

Through this deal, Uber acquired Careem’s mobility, delivery (Careem NOW) and payment (Careem PAY) business across the greater middle eastern region, including Egypt, Jordan, Pakistan, Saudi Arabia and the United Arab Emirates. The acquisition made Careem a wholly-owned subsidiary of Uber. But Careem’s app, brand and operations were left intact, and it was decided that both the apps would work separately.

Through this deal, Uber also bought all of Careem’s external investors. It also acquired Careem’s equity.

As far as the board of directors is concerned, Careem’s co-founder Mudassir Sheikha, Magnus Olsson and Abdula Elyas stayed on Careem’s board after the acquisition. However, Careem’s board was overhauled to some extent. While two seats were retained by Careem, three went to Uber. These 2 seats were taken by Mudassir Sheikha, Magnus Olsson, and it was decided that Mudassir Sheikha would continue as Careem’s CEO.

Finally, in December 2019, Egypt’s government gave consent to the acquisition. However, the Egyptian Competition Authority (ECA) placed some restrictions upon the deal and laid down some provisions for the combined business to follow. These are:

• The merged firm would have to share its mapping and trip data with any emergent rivals.
• Companies shall share consenting riders details with any competing companies.

These controls would be applicable for:

• Five years, or 
• Till at least one alternative ride-hailing provider achieve a weekly market share of 20%, or
• Alternative ride-hailing providers achieve a 30% market share collectively across various cities.

How does the acquisition affect the companies?

Now that we know what the deal exactly was, let’s understand the reasons why the companies agreed to the deal. Why did Uber pay the whopping amount of $3.1 billion? What benefits did Careem get through this deal?

There are many reasons why Uber decided to go with this deal. Let’s discuss them in detail.

• Uber decided to become a public company in 2019. However, the deal with an initial public offering (IPOs) is that the company is required to show continuous growth. Uber had faced legal bans in various countries, which affected its growth. Careem, on the other hand, had shown tremendous growth of nearly 30% on a monthly basis and thus acquiring Careem helped Uber to increase its consistency and growth.
• Uber has been involved in many controversies. It has been alleged for many heinous crimes like rape and murders. As a result, Uber faced full and partial bans in many countries. Uber understood that laws in the Middle East region are very strict and Uber realized that these controversies might become a hindrance in maintaining a license in the Middle East. Careem, however, is known for its fair working and women empowerment. Thus, through acquisition, Uber avoided a ban in the area.
• Middle East region is very traditionally routed. People have a great affinity towards the homegrown brands. Because of this, international players like Uber can face a lot of difficulty in establishing itself. Uber, through this acquisition, carved out an easy way of expanding its geographic footprint and winning over the Middle East market.
• Previously, Uber has faced many defeats in markets away from home. For instance, in 2016, Uber sold its services to Didi Chuxing, the local taxi-hailing business in China, because of which it lost around $1 billion every year. Similarly, it also withdrew its services from Singapore because of the local taxi-hailing company, GRAB. Uber clearly learned a lesson and avoided the same from happening in the Middle East by acquiring Careem.
• Compared to Uber, Careem had a larger presence in the Middle East, North Africa, Pakistan and Turkey, with operations in 98 cities (Compared to Uber’s 23). With this acquisition, Uber capitalized on the popularity and brand value which Careem had created over the past nine years. The merger helped Uber to get better revenues and greater market share. 

For Careem as well, this deal was quite beneficial. To understand this let’s look at what the CEO of Careem has said.

Muddassir Sheikha said that “by joining forces with Uber, Careem would be able to achieve its ambitions of improving and simplifying people’s lives and building an organization which inspires all. The advanced Western technology would not only help Careem in gaining a greater market share, but it would also go a long way in helping Careem in becoming a super-app (a do-everything mobile app), which it has always wanted to be.”

Moreover, this deal brought a lot of benefits for Careem’s employees and investors. To understand these benefits, let’s look at the impact of the deal in detail.

Impact of the acquisition

Both Uber and Careem have multiple stakeholders. Of course, a deal of this magnitude affects them. Let’s see how different stakeholders would be impacted by this acquisition in detail.

Customers

Uber and Careem, individually were two of the biggest taxi-hailing companies. Their combined operation created a void in the industry. This happened because as a result of the deal Uber has achieved more than 60% of the market share in the Middle East and North African region, where Careem had dominated. 

This has essentially created a monopoly for Uber. For customers, this might be a problem as consumers would face a lack of options. This would also give power to Uber to raise the fares as they would have no real competition. In fact, this is what happened in China after Didi (Chinese local taxi-hailing services provider) won the battle with Uber and bought it out.

However, there is an upside as well, Uber and Careem have both proved to have impeccable service and features. Thus, it cannot be denied that customers may gain the advantage of more advanced service as a result of this deal.

Careem’s Employes

Before we discuss the deal’s effect on Careem’s employes, it needs to be clarified that the drivers or “captains” do not qualify as Careem’s employees, and are actually independent contractors.

Now, when two companies merge together, the effect on employees is usually negative. This is because as two companies streamline their workforce and expenses, continuing with all employees becomes quite uneconomical. Moreover, when two companies from different areas merge, new cultures are introduced and a change is observed.

Since Careem is a local company from the Middle East and North African region, where culture and traditional practices are given high importance, the introduction of western culture by Uber could cause a plethora of options and make it difficult for the workforce to adapt to the new practices.

But there is also a positive side to the acquisition for the employees which can not be overlooked. All 4000 employees of Careem had stock options and as part of the deal, their shares have been bought by Uber. As a result, all these employees have made a good sum of money. In fact, at least two hundred employees have become dirham millionaires and at least 75 employees have become dollar millionaires.

Investors

The Uber-Careem deal was a huge bargain for Careem’s investors. This can be clarified by going back to the term of the deal. As per the terms agreed upon, on listing in the New York Stock Exchange, if the share price of Uber is $55 or lower, the investors would get the minimum guaranteed price of $3.1 billion. And, if Uber got a higher valuation than $55 per share, they, of course, stand chances of even higher profits.

The advantage of this deal was clearly visible to the investors who welcomed it open-heartedly. Let’s look at the testimonials of some investors. 

• Al Taylor said it would receive $1.34 billion riyals profit as a result of this deal.
• Saudi Telecom, which had invested in Careem indirectly through its venture funds, said that it will receive $275 million as a result of this deal.

Now, Uber’s share prices opened at $42 because of which though the investors did not make over and above profits, it can’t be denied that it was a good deal for them. Moreover, with the shares of Uber that they continue to hold, these investors can still look for profits in the future.

Other startups 

Uber-Careem deal is actually a golden opportunity for new taxi-hailing players in the Middle East to enter the arena and monetize their startups. As discussed before, because of the lack of competition, the acquisition has led to a huge void in the industry. New, lesser-known players have an advantage of entering into this industry by offering cost-efficient, reliable and local alternatives, making localities favour them. Moreover, the high local sentiments in the people in the Middle East and North America region further strengthen their position in this regard. 

Also, this deal has brought in a lot of attention to this area, which has the potential to encourage more investments in the area, as more international players will want to merge with or acquire the local startups.

Conclusion

Concerns like the development of a monopoly leading to increased prices for the customers, loss of a homegrown business and loss of profit money for the regional markets because of Uber-Careem merger cannot be overlooked. But, there is a massive upside to this deal as well. 

Not only does this deal bring in handsome rewards for the founders, investors and employees of Careem, but it also has an amazing effect on the Middle East startup ecosystem. As a result of this deal, it is the region which wins through the vast sum of money which gets reinvested locally. This deal has successfully sent out a message to the international investors that entrepreneurs in Dubai can successfully nurture innovative projects and has also created hope for further acquisitions which can bring in more money.

Moreover, as far as Uber is concerned, this acquisition would enable it to take advantage of Careem’s local knowledge and brand value and thus, will definitely help it in strengthening its global transportation network and becoming a global leader. 

References

• https://newsskill.com/uber-acquisition-careem-change-middle-east-ride-hailing-sector/
• https://digitalrightsfoundation.pk/wp-content/uploads/2019/01/Careem-Uber-Research.pdf
• https://www.thenational.ae/business/technology/hundreds-of-careem-millionaires-after-staff-share-in-3-1-billion-uber-payout-1.841866
• https://www.bloomberg.com/news/articles/2019-03-26/uber-announces-3-1-billion-deal-to-buy-mideast-rival-careem

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 deal between Uber and Careem: Details you must know  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. Here, she discusses the meaning and importance of a Deemed University and the procedure for an institution to acquire this status.

Introduction

If you’re reading this, you’re either in a university right now, or will be in the future, or perhaps you studied in a university in the past. Either way, you might agree that universities play a big part in education, by imparting professional knowledge and helping their students develop skills. They also undertake research and innovation projects and act as centres of cultural and social growth. 

Universities are not all the same. There are four main types of universities in India, based on who establishes and runs them: central, state, deemed and private universities. In this article, we shall be looking at one of them in detail, i.e. “Deemed University”. We’ll find out what a deemed university is, how it works, and how an institution can go about acquiring the status of a deemed university.

What is a Deemed University?

Before defining a deemed University, you must know about the University Grants Commission (UGC). UGC is a statutory body set up by the Union Government in 1956, and managed by the Ministry of Human Resource Development. This body coordinates and supervises higher education in India. One of its most important tasks, however, is to give recognition to universities. This means that higher education institutions classified as universities only if they are established under some Central or State Act and are recognised by the UGC.

The UGC works according to the provisions mentioned in the University Grants Commission Act, 1956. This Act applies to all universities in India. Section 3 of this Act says that the UCG can advise the Government to declare any other higher education institute (which is not a university), to be a Deemed University. And this brings us to the definition of the term.

A Deemed University is, quite simply, an institution which provides high standards in a specific area of study and, because of this, is deemed to be a university by the Central Government upon the advice of the UGC. This status helps such institutions to enjoy the same benefits and privileges that are available to any other university in the country.

Why were deemed universities set up in India?

After Independence, there was an urgent need to increase people’s access to proper higher education facilities and inculcate skills and knowledge in them to work and earn a living. Our country had been consistently exploited and conflict-wrought under the British, and developing our human resources was the only way to improve the nation’s condition. Thus, the government established many universities for higher education, and over time the funds and efforts put into them helped them touch international standards. However, the demand was huge and ever-increasing, while the supply of universities by the government lagged behind. Meanwhile, private entities had also begun setting up their own educational institutions (especially after privatisation measures were adopted) and some of them also began reaching the set standards of higher education. To encourage more such universities and to provide them with government recognition and benefits, the provision for the status of Deemed to be University was made.

If a university fulfilled certain criteria fixed by the UGC and acquired the status of deemed university, it would indicate that it reached such standards of education as prescribed by the UGC. Thus, people could rely on and trust such an institution if they were looking to enroll in it, even though it was not a government-established institution. The UGC guidelines which determine everything related to the deemed universities, from the procedure to acquire this status to the details of its governance body, are given in the UGC (Institutions deemed to be universities) Regulations, 2019.

Role of deemed universities in the Indian Education System

The UGC (Institutions Deemed to be Universities) Regulations, 2019 mention some of the main objectives of the Deemed Universities. Thus, according to these regulations, the main role of a deemed university is to- 

1. Provide excellence and innovation in higher education at the undergraduate, postgraduate and research degree levels.
2. Engage in the areas which they specialize in, and contribute to higher education in diverse disciplines. 
3. Provide high-quality teaching to their students and organise internationally-recognised research projects. 

How do deemed universities differ from private universities?

Deemed Universities and Private Universities may seem similar, since both of them are not established directly by the government and do not fall under its immediate control. However, they do differ in certain important aspects.

The main points of difference between deemed universities and private universities are summarised below:

Eligibility criteria for an institution to be declared as a deemed university

The UGC doesn’t just go ahead and grant deemed university status to any higher education institute out there; there is a strict and comprehensive eligibility criteria that must be met by the institute for it to get into the exclusive club. Take a look at the eligibility criteria, as given Clause 4.01 of the UGC (Institutions deemed to be universities) Regulations, 2019: 

1. The institution should be at least 20 years old.
2. It should have valid accreditation by National Assessment and Accreditation Council (NAAC) with at least 3.26 CGPA for three consecutive cycles. If it is a technical institution, then it should have at least two-thirds of the technical programmes accredited by the National Board of Accreditation (NBA).
3. It should be among the top 50 institutions in any specific category or among the top 100 overall in the National Institute Ranking Framework (NIRF) rankings.
4. It should offer multi-disciplinary courses, like other universities.
5. It should have at least 2 annual publications by each faculty member in SCOPUS, Web of Science or peer-reviewed journals recognised by the UGC.
6. The teacher student ratio should not be less than 1:20. The number of faculty members should not be less than 100 and the students, not less than 2000. Out of these students, at least one-third should be postgraduate/research students. 
7. There should be at least 5 Post Graduate Departments which have been in existence for at least 3 years and have research programmes.
8. It should have academic and physical infrastructure as prescribed by the Commission and/or the relevant statutory bodies.
9. It should have a built up area of at least 30 sq.mts. per student, which includes academic, administrative, common and recreational facilities.

Procedure for Declaration of an institution as an institution deemed to be a university

Our discussion on deemed universities will not be complete without understanding the process by which an institution can apply for and acquire this status. Let’s take a quick look at this procedure.

1. After an institution has gone through the eligibility criteria and is certain that it is fulfilled, it may apply online to the UGC on its web portal.
2. While applying online, certain important documents need to be attached by the institution. We will come to those later.
3. After the application has been submitted, the UGC will verify the documents with the concerned public authorities to make sure they are accurate.
4. The UGC will then examine the whole application with the help of a nominated Expert Committee. At this stage, it will assess the academic and physical standards of the institution and submit its advice to the Government within 60 days from the date of online application. 
5. The Government, keeping in mind UGC’s advice, will give its final decision within 30 days of receipt of advice. Here, it will either declare the institution as a deemed university under Section 3 of the UGC Act, 1956 for an initial period of 5 years, or reject the application and convey this to the sponsoring body of the institution along with the reasons for rejection.
6. In case of an institution which is declared as a Deemed university at the previous stage, the University/ies which earlier had affiliation to the institution will transfer the credits and the transcripts of students within 30 days of such declaration. 
7. Hereafter, the existing students of the deemed university may get the degree from the affiliating University or Deemed to be University (as per their preference), while the newly admitted students will get a degree of the Deemed to be University. 

How to file an Online Application 

In today’s digital world, it is no surprise that the UGC provides for online application for a deemed university status. The process of applying is very simple; you just need to fill a form and then submit the documents mentioned by the UGC Regulations, in the manner prescribed. 

Documents required for filing the Online Application

Granting deemed university status to an institution is a serious business, and it requires a lot of supporting documents to be submitted by the institution. These have been mentioned in Clause 5.02 of the UGC (Institutions deemed to be universities) Regulations, 2019 as follows:

1. Documents proving that the institution owns the land which it occupies.
2. Certificates showing the accreditation given to them by NAAC/NBA.
3. Approval of the relevant statutory bodies for the professional courses which the institution is currently providing.
4. Information along with evidence regarding the existing academic and physical infrastructure. 
5. Institution Development Plan showing the institution’s vision and plan for the next 5-years.
6. Details of financial sustainability of the institution. 
7. A letter of commitment from the respective Government to continue to financially support the institution even after it receives deemed university status (only if the institution is funded by the Government).

Copies of these documents should be publicly disclosed on the website of the institution, after due certification by its Head. 

If the institution fails to submit any of these documents while applying, the online systems will reject their application. Also, if any information stated in the documents is found to be false after the verification process, the institution would be liable for criminal prosecution under the Indian Penal Code, 1860.

Procedure for declaration of an institution as deemed to be university under De-Novo Category

Any sponsoring body, with an existing track record in education, can apply to the UGC for setting up a new Institution Deemed to be University which will undertake study and research in unique and emerging areas of knowledge that are not offered by any existing institution. This is called a De-Novo Deemed University. The procedure for this, given under Clause 6.04 of the UGC (Institutions deemed to be universities) Regulations, 2019, is as follows:

1. An online application should be filed by the sponsoring body, for which a form needs to be filled. The application needs to include the following documents:

• A Detailed Project Report (DPR) showing its vision and plan for the next fifteen years, with clear outcomes.
• Details of the land on which the proposed deemed university will be established, along with proof that the body owns that land.
• Details of the financial sustainability of the institution.
• Details of the sponsoring body, along with the details of the key academic and administrative personnel.
• An undertaking that the body will comply with all provisions of the UGC Regulations.
• A letter of commitment from the respective government to continue to financially support the institution even after it acquires the Deemed University status (only if it is a Central/State/UT Government institution).

2. The application will then be examined by an Expert Committee. The Committee may direct the applicant to make a presentation to show whether the institution falls under de-novo category or not, and whether the Detailed Project Report complies with the UGC Regulations. The Committee may also visit the applicant institution, if necessary.

3. The Expert Committee will submit its report to the UGC within 30 days. It will either recommend the the issue of Letter of Intent or not.

4. The UGC shall forward its advice to the Government within 30 days of receiving the Expert Committee’s report.

5. The Government will give its decision in 30 days, keeping in mind the advice of the UGC. It will either issue a Letter of Intent for three years to the institution or reject the proposal by giving the reasons for the same.

Procedure for an institution deemed to be a university to start an off-campus centre

Institutions Deemed to be Universities which are placed in Category-I & Category-II or are ranked in the top 50 universities in the current NIRF rankings can start new Off-Campus Centres too. This refers to another centre of education run by the management of the deemed university, but separate from its original campus.

The Institutions applying for Off-Campus Centre(s), must meet these criteria:

• The teacher-student ratio should not be less than 1:20. The number of faculty members should be at least 25 and the students, at least 500. Out of these students, at least one-third should be postgraduate/research students.
• There should be at least 3 Post Graduate Departments with research programmes.
• The deemed university should have academic and physical infrastructure as prescribed by the Commission and/or the relevant statutory bodies. 
• It should have a built up area of at least 30 sq. mts. per student which includes academic, administrative, common and recreational facilities.

The procedure to be followed to get permission to start an off-campus centre is given in Clause 7.01 of the UGC (Institutions deemed to be universities) Regulations, 2019. You can have a look at it below: 

1. The Deemed University has to submit their application to the Government in the form of an Affidavit to get approval to start an Off-Campus Centre.
2. The application should contain details of existing or proposed infrastructure facilities, courses/programmes of study, student intake, financing arrangements, etc.
3. The Government will examine the application and then forward it to the UGC for its advice. 
4. In case the Institution Deemed to be University belongs to Category-I or is ranked in the top 50 universities in the current NIRF ranking.

• The Deemed University need not be physically inspected. 
• The Chairman of the UGC may set up a Standing Committee to examine the information given by the Institution. 
• The Chairman shall forward the advice to the Government within 30 days after he receives the observations of the Standing Committee. 
• Such an institution can establish only 3 off-campuses in a period of 5 years, with at max 1 campus being established in 1 academic year. 

5. In case the Institution Deemed to be University belongs to Category-II.

• The information given by the applicant may be assessed and verified by an Expert Committee.
• The Chairman, on behalf of the UGC, shall forward the advice to the Government within 60 days after receiving the observations of Expert Committee. 
• Such an institution can establish only 2 off-campuses in a period of 5 years, with at max 1 campus being established in 1 academic year. 

6. The Government will give its decision in 15 days, keeping in mind the advice of the UGC. It will either issue a notification for starting of the off-campus centre(s) or reject the proposal stating the reasons for the same.

Procedure for an institution deemed to be a university to start an off-shore campus

A university may want to expand its operations to new territories after a few years of successful running. This helps it earn more revenue and establish itself in more and more areas. For this, universities set up off-shore campuses, i.e. campuses beyond the shores of the university’s home country.

Institutions Deemed to be Universities are allowed to start new Off-Shore Campuses. However, before setting one up, there are 2 broad steps to be followed:

1. They need to get a No-Objection Certificate from the Ministry of External Affairs and the Ministry of Home Affairs. 
2. Then, they must get permission from the Ministry of Human Resource Development.

After this, they can start an off-shore campus.

Institutions Deemed to be Universities have to follow similar admission criteria, curriculum, examination system and evaluation system in their off-shore campus as in their main campus. Also, all the information about off-shore campuses should be put up on their website.

How to start new courses/departments in the campus or approved off-campus of the deemed university

In today’s fast-paced and ever-growing world, new areas of study are coming up frequently and a need is felt for standardised education in every field. To keep up with this, existing universities may want to introduce new courses/departments etc. in their existing campuses.

Institutions Deemed to be universities which belong in Category-I or Category-II or rank in the top 50 universities in the NIRF ranking may start new courses/departments/programmes etc. in their existing campus and approved off-Campus centre(s). To do so, a simple procedure needs to be followed, which is explained below:

1. The Institution shall first take the approval of its Board of Management and the relevant Statutory bodies. 
2. Then, it shall inform the UGC about starting a new course/ programme/ department/ school/ centre within one month of the grant of approval mentioned in the previous step. For this, a form needs to be filled.
3. If the Institution Deemed to be University receives funds from the Central or the State Government, it needs to take their approval too.

Responsibilities of the deemed universities in connection with UGC’s performance inspection

To make sure that the deemed university is upholding its standards of education and performing its functions properly, the UGC monitors and checks it annually. To score well in this inspection, the deemed university has to fulfill some responsibilities. Some of them are:

1. Ensuring that its graduate students get employment/self-employment opportunities or go ahead for higher education.
2. Promoting social activities among the students while they are studying in the institution
3. Training the students in professional skills. 
4. Inculcating the spirit of entrepreneurship and critical thinking among the students.
5. Ensuring that the teacher student ratio is not less than 1:20. 
6. Using technology in its classrooms for more effective learning. 
7. Ensuring that examinations promote and measure students’ understanding and application of concepts.
8. Making all its teachers take an annual refresher training for acquiring better and newer teaching methods.

Institutional governance required for a deemed university

A Deemed University, like any other organisation, needs a mechanism for its daily operations and management of affairs. For this, a system of institutional governance for the deemed university has been devised.

First and foremost, the deemed university needs to be officially registered. Clause 10.01 of the UGC (Institutions deemed to be universities) Regulations, 2019 says that such an institution must be registered as a not-for-profit organisation under either the Societies Registration Act, 1860 or the Public Trust Act, or under Section 8 of the Companies Act, 2013. 

The primary governing body of the deemed university is the Board of Management. Let’s discuss its composition, powers and duties, and then also look at other authorities and officers who play a role in the governance of the deemed university.

Board of Management

The Board of Management is headed by the Vice-Chancellor, and its other members include the Registrar, two Deans, two teachers, etc. It should have at least 10 members and at max 15 members. All members, other than the ex-officio ones and the teachers, remain in the body for 3 years. The term of the teachers, meanwhile, is 2 years.

The Board is the body which makes the rules of the deemed university and takes decisions in academic, administrative, financial and developmental matters. To perform these functions, it must conduct its meetings at least 4 times in one academic year.

Authorities of the Institution Deemed to be University

Apart from the Board of Management, there are a lot of other bodies and authorities in a deemed university that look after certain specific functions in the institution. They have been explained briefly below.

Academic Council

This is the main academic body of the Deemed University and is responsible for maintaining the standards of teaching, research and training. It also approves the syllabus and coordinates the research activities, examinations and tests.

The members of the Academic Council include the Vice-Chancellor, the Pro Vice-Chancellor, Dean(s) of Faculties, Heads of the Departments, the Registrar, ten professors, etc.

This important body takes care of a lot of matters. Some of its powers and duties include supervising all academic work in the deemed university, promoting research, prescribing the courses/programmes necessary for the degree and diploma, appointing examiners and moderators, suggesting measures for departmental coordination, etc. To perform all these functions, the Academic Council must meet at least thrice during one academic year.

Planning & Monitoring Board

The Planning & Monitoring Board monitors the development programmes of the Institution Deemed to be a University. It advises the Board of Management and the Academic Council on matters which are necessary for the fulfillment of the objectives of the Deemed University.

Finance Committee

All members of the Finance Committee, other than ex-officio members, hold office for 3 years. The main job of the Finance Committee includes tasks like preparing the annual accounts and financial estimates of the Institution Deemed to be University, and fixing limits on the total recurring expenditure and the total non-recurring expenditure of each year. The Finance Committee has to meet at least twice a year.

Board of Studies

One Board of Studies is set up for each Department. It comprises the Dean of faculty/ Head of the Department, all the professors of the faculty/department, two Associate Professors, two Assistant Professors, and 2 experts in that field.

Selection Committee

One or more Selection Committees are set up for making recommendations of persons to be appointed as Professors, Associate Professors, Assistant Professors, etc. in the deemed university.

Officers of the Institution Deemed to be University

Clause 10.12 of the UGC (Institutions deemed to be universities) Regulations, 2019 talks about the various officers who will head an Institution deemed to be a university. Let’s take a look at them in brief.

Chancellor & Pro Chancellor

• The Chancellor is appointed by the sponsoring body of the institution for a period of 5 years, and can be re-elected only once. He presides over the convocations of the deemed university. He also nominates other persons in authority to further the interests of the institution, whenever he is empowered to do so.
• The Pro-Chancellor is also appointed by the sponsoring body, to carry out the tasks assigned to him by the Chancellor. He acts in place of the Chancellor when the latter is not available. However, this is not a mandatory post in a deemed university.

Vice-Chancellor

The Vice-Chancellor is appointed by the Chancellor. The qualifications a person must fulfill in order to become a Vice-Chancellor are prescribed by the UGC. He is appointed for a period of 5 years, and can be re-elected only once. However, a person cannot remain in the office of a Vice-Chancellor after he has become 70 years old.

If the office of the Vice-Chancellor becomes vacant due to his death, resignation, etc. then the Pro Vice-Chancellor would perform his duties and if he, too, is absent, this role will be performed by the senior-most professor. 

The Vice-Chancellor is the Principal Executive Officer of the Deemed University. He supervises and controls the university’s affairs and implements the decisions of the authorities. Moreover, he is the Ex-officio Chairperson of the Board of Management, the Academic Council, the Finance Committee, the Planning & Monitoring Board and Selection Committees. The Vice-Chancellor has the authority to delegate some of his powers to his subordinates, after the approval of the Board of Management.

If any person is aggrieved by any decision of the Vice-Chancellor, he/she can appeal before the Board of Management within 30 days.

Pro Vice-Chancellor

The Board of Management may create the post of the Pro Vice-Chancellor in the Deemed University if needed. He shall be appointed by the Board on the recommendation of the Vice-Chancellor. 

Registrar

The Registrar is appointed by the Board of Management on the recommendations of the Selection Committee. When the office of the Registrar is vacant or when he is on leave, the duties and functions of the Registrar are performed by any person appointed by the Vice-Chancellor.

The Registrar is the ex-officio Secretary of the Board of Management, the Academic Council and the Planning and Monitoring Board. He is directly responsible to the Vice-Chancellor and works under his direction. 

The duties of the Registrar include managing the records and funds of the deemed university, conducting its official correspondence, making arrangements for examinations, to enter into agreements on behalf of the deemed university, to maintain the buildings, gardens, vehicles and other infrastructure of the deemed university, etc.

Finance Officer

The Finance Officer is appointed by the Board of Management. He works under the direction of the Vice-Chancellor. His work is to prepare the annual budget estimates and statements of account of the deemed university for submission to the Finance Committee and the Board of Management. He also manages its funds and investments.

Controller of Examinations

To no one’s surprise, the Controller of Examinations is also appointed by the Board of Management. He makes sure that all the directions given by the Board of Management, Academic Council and Vice-Chancellor regarding the examination and evaluation are followed.

Dean 

In a university, there usually exist different departments dealing with different subjects and courses. The departments dealing with similar subjects can be grouped under one faculty, who is headed by a Dean. 

Head of the Department

Each department also has its own separate head, who is appointed by the Vice-Chancellor from amongst the professors of that department. He is usually appointed for 3 years and can be re-elected once more, but not in a consecutive term.

Benefits available to a deemed university

Deemed to be universities are not established by the Government, and hence they have much more autonomy than the Central or State universities. Here are some of the benefits that are available exclusively to deemed universities:

• They have the authority to conduct their own examinations, set guidelines for admission, design their own curriculum/syllabus, etc.
• Moreover, deemed universities are authorized to give their own degree/diploma.
• Deemed universities can also decide their own fees structure for their courses instead of following the structure or approach given by the Government.

Is studying in a deemed university a good idea?

We’ve discussed almost everything we could about a deemed university- what it means, what the procedure is for an institution to acquire this status, who governs and manages this institution and what the benefits are of becoming a deemed university. However, a very important question still remains unanswered, especially from a student’s point of view: is studying in a deemed university a good idea?

Today, there are over 130 deemed universities in India, and of course, all of them are churning out graduates every year. These graduates are sometimes more trained and skilled than those who’ve studied in government colleges, because let’s be real, government institutions aren’t always the most tech-savvy, high-end or contemporary. Deemed universities, on the other hand, place high emphasis on up to date education, practical knowledge and making their students global citizens. They have autonomy in their courses, fee structure, etc., which saves them from all the red-tapism and unnecessary rules and formalities that plague many government institutions.

At the same time, though, the situation is not all rosy for deemed universities. Government institutions have been around for a very long time, and many of them have established a mark for themselves in the higher education sphere. Their alumni include famous names from scientists to actors to politicians, and the good ones receive hefty funds from the government to make themselves better. And one thing is undeniable: people prefer to study in government colleges. They are considered to be more serious about their academics and research activities, and their degree holds more value in the minds of people. This could also be because deemed universities often charge more than many people’s pockets hold, because of which only those who can afford them join them. This gives the impression that deemed universities only care about money, and the ones who can pay for it.

The truth of the matter is, we can’t make generalisations. There are plenty of deemed universities that have established their names in the country, like Christ Deemed-to-be-University, VIT, BITS, and others. These rank even better in their fields than many State or the Central Universities. On the other hand, there are scores more deemed universities that show disappointing performance, and at the same time tons of Government Universities like IITs, IIMs, and NLUs which continue to raise the bar of education consistently higher. At the end, it all boils down to which university you are considering, and what its performance has been like.

References

• https://www.ugc.ac.in/pdfnews/1295001_DEB-Regulation-2019.pdf
• https://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/ugc_act.pdf

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This article is written by Dhruv Vatsyayan of Law School, Banaras Hindu University who is pursuing his 1st year of B.A.LL.B and is a sports enthusiast by passion. In this article, he deals with the Match Fixing and Betting Laws in India.

Introduction

In November 2019, the Sri Lankan Parliament passed the Prevention of Offences related to Sports bill, which had a strong backing of Arjun Ranatunga, former World Cup-winning captain and currently a minister in the government.

This brought light to the fact that India, which is the global hub for the sport, doesn’t have stringent legislation to punish match-fixing and corruption in sport especially in cricket.

According to a report by FICCI, the illegal sports betting industry in India holds for more than 3,00,000 crores market, which is almost 90% of the worldwide market share.

While there are various recommendations laid out by various reports regarding match-fixing and betting laws, there are loopholes and voids which exist due to the absence of any kind of legislation for the same. This void continues to haunt sports enthusiasts and administrators.

So, let’s discuss the legality and legal consequences of match-fixing and betting in India.

What is Betting and Match-Fixing?

Betting and match-fixing are two terms that we come across very frequently but we often confuse by using them synonymously.

Betting is essentially a form of gambling and sports betting is done on the outcome of sporting events. Such bets do possess only two possible outcomes, either you win the bet or you lose it. 

While match-fixing means pre-determining the result of a game through corrupt means by violating the rules of the game and often the law of the land.

Now, one must wonder, what is the relation between these two terms?

So, it must be understood this way, that when a bettor bets for a game, he does it for gaining profit by winning it. Some bettors, in order to win the bet, do get into contact with the players and officials. They either try to convince the player to underperform or they extract some pieces of information from the officials in order to make a bet on the safe side.

Convincing is done by offering a hefty amount of money to the players or the officials. The person who offers the money to underperform is known as a bookie or a bookmaker.

Nowhere in Indian laws, betting or match-fixing is defined. However, Section (d) of Part 1 of the CBI Report on the match-fixing classifies following acts under the ambit of match-fixing:

• Such instances, where a player or a group of players get monetary offerings to underperform in a game.
• Such instances, where a player himself/herself bets in such a way that would naturally make them underperform than their abilities.
• Such instances, when a player gives certain information, like team composition, team formation, pitch conditions, etc to a booker or any booker syndicate that would affect the result of a game.
• Such instances, where the curators and groundsmen are bribed to prepare the pitch in a way which suits the bettors.
• Such instances, where current or former players are contacted by the bookies and they try to influence other players to get involved in fixing.

However, there may be various different reasons too. For example, suppose there is a tennis player H.Dekisugi from China. He is participating in a multilateral series. But, from next month, he has to participate in a world super series, which is way more important than this ongoing series. He intentionally plays loosely to be eliminated in the early rounds, so that he may train properly for the world super series. 

This particular instance can also be treated as match-fixing as the player underperformed intentionally.

Thus, any such instance, where a particular player underperforms intentionally, should be treated as a case of match-fixing.

Current legal framework for dealing with Match-Fixing

The Law Commission, in its report in the year 2018 advocated for criminalizing of sports fraud and match-fixing.

Chairman of the commission, Justice B.S.Chauhan, also hinted that this would be dealt with severe punishments and may include jail terms also. The need for such stricter laws has always been felt, and especially since the Azharuddin match-fixing scandal came to light.

The year 2001 was a year of turmoil in the Indian Cricket which changed the sport in India forever. By fall of April 2001, the news of Indian skipper, Mohammad Azharuddin being involved in match-fixing, spread across the cricketing fraternity and sensationalized the cricketing world.

The Hyderabad stalwart, along with Ajay Jadeja, Nayan Mongia, and Nikhil Chopra was accused by the South African skipper, Hansie Cronje for having contacts with bookies and bettors. 

Lastly, by the fall of November 2001, it was pretty much established that Azhar was involved with bookmakers and was sentenced to a life ban by the BCCI.

During this fiasco, the CBI was entrusted with preparing a report on match-Fixing in which CBI defined match-fixing, but the definition was restricted only to the players and not the supporting staff.

However, to deal with such cases of match-fixing there is no such specific legislation or any section in IPC which deals with such cases.

In most cases, such situations are dealt with under Section 415 of the Indian Penal Code which is about cheating. It is dealt in this way because the players are supposed to be responsible towards the public and a large mass of fans as they share a relationship of trust. When a player involved in match-fixing and intentionally underplays, the breach of trust happens. Thus, they can be charged under this section, but the problem arises during proving the offense and collecting the evidence.

Normally, the standard of proof is much higher in criminal cases, which cannot be achieved in the cases of match-fixing. Thus, it becomes difficult to deal with the match-fixing cases under this section. 

Thus, there are no such specific laws in India regarding match-fixing which restricts the authorities to take stringent actions against the offenders.

Need For Legalizing Sports Betting 

In India, the legal status of betting is not yet dealt with by the judicial courts. To legalize it, the courts must first determine whether it is a game of skill or game of chance. However, when asked by the Supreme Court of India, the Law Commission, in the year 2018 recommended that sports betting should be legalized.

According to the report of the law commission, betting should be legalized so that this underground industry can be regularised and could be kept an eye upon.

By regularising this industry, the menace of match-fixing could be stopped and restricted. Let us see how.

Once the regulations regarding this industry are laid down, it would be easy to identify the legal and illegal bettors and betting agencies. It would help to recognize match-fixers and bookies because most probably, it will be the illegal bettors who would be involved in match-fixing. Thus, in this way, a concrete framework would be functioning and would help to identify people and agencies involved in match-fixing.

Prevention of Sporting Fraud Bill, 2013

Several attempts were made by the government to tackle these issues of match-fixing and sporting fraud previously. But, the most remarkable attempt till now came in the year 2013.

In the year 2013, the Prevention of Sporting Fraud Bill was introduced in the Parliament.

It was drafted with the goal of preventing and combating sports fraud, which affects the integrity of sports and fair play in relation to national and international sporting events and matters connected with them.

This draft bill defines the act of sporting fraud in the following way:

• If a person tries to influence the result of the game for monetary gain, irrelevant of the fact whether the result actually is affected or not;
• If a person tries to alter the playing arrangements or intentionally misapplies the rules of the sport for monetary gain;
• If a person intentionally underplays his true potential for monetary or any other benefits unless such performance is in the interest of the team;
• If a person discloses any such information to any other person which is likely to affect the result of the match;
• If a person omits to perform the duty of informing of any such activities in his/her knowledge.

This draft bill proposed for stringent punishments and imprisonments. It suggested with maximum imprisonment term for 5 years and with a fine of five times the economic benefit derived from the act or 10 lakhs, whichever is greater.

Even any attempt made to commit the offense is punishable with the same punishments as for committing the offense.

The salient feature of this bill is that this bill includes not only players but also the coaches, supporting staff, managers, and administrators.

Now let’s see, what authorities can take cognizance of the offenses defined under this bill.

No court other than following can take cognizance of such cases:

• Appropriate sporting/disciplinary authorities;
• A person assigned by the National Sporting Federation to look after such anti-corruption cases;
• Any person with an intention to make a complaint to the court and having notified about the same to the concerned sporting authority 60 days prior to complaining;
• Courts superior to the judicial magistrate of the first class.

However, due to legislative ignorance of the issue concerned, the bill is yet to be tabled in the parliament, even 7 years after the preparation of the draft.

And throughout these years, the need has been felt along, be it during IPL spot-fixing episode or other cases.

Now, let’s discuss these cases and their implications on the sport and law per se.

IPL Spot-Fixing Fiasco

The biggest franchise-based cricket league in the world, the Indian Premier League went into the news for bad reasons in the year 2013. A handful of players and several other team officials were accused of being involved in match-fixing. 

On the night of 15th May 2013, three players, S.Sreesanth, A.Chavan and A.Chandila were arrested by a special cell of the Delhi Police on the apprehension of being in contact with bookies. All these players represented Rajasthan Royals in the current version of the league. For probing this case, BCCI constituted a committee to inquire into the same and submit a report within 30 days. Later on, when the report was submitted, all these players were found guilty and thus were recommended to the Disciplinary Committee of BCCI for taking actions against them.

On the other hand, the crime branch of the Mumbai Police arrested some bookies and the links were revealed of involvement of Gurunath Meiyappan, CEO of franchise Chennai Super Kings and Raj Kundra, business tycoon, and owner of Rajasthan Royals.

Later on, all the involvements were proved to be true and as a consequence, both the franchise, Chennai Super Kings and Rajasthan Royals were suspended for the next two years, in the year 2015 when the probe concluded.

During this case, Justice Mukul Mudgal committee was formed by the Hon’ble Supreme Court. This committee in its report dealt with the underworld connections of match-fixing and bookies.

The probe committee also came up with several recommendations with respect to restrictions on players. 

This included restriction of access to the players, disclosure of information by the players, supervision, training, and education of the players as well as of the support staff.

Another more high powered committee, RM Lodha committee was also formed. In its report, Lodha Committee recommended a number of directives including that there should be no conflict of interest in the board and the working would be carried on by a committee of administrators.

These steps sent a strong message to all the players, staff, bookies and others to refrain from indulging in match-fixing. However, the void created in the absence of strong legislation still exists and needs to be tackled soon.

Challenges in dealing with Match-Fixing 

Lack of a concrete law dealing with match-fixing and other sports fraud is still the biggest challenge that lies ahead. The task would become much easier if the draft of the Prevention of Sports Fraud Bill 2013 was passed in the parliament. A strong mechanism to punish the people involved in sports fraud is the need of the hour.

The other thing that needs to be followed necessarily is the adoption of the Code of Conduct and ethics by all the sporting associations and federations of the country.

Every federation and association should provide strict punishments and sanctions to their respective members if found involved in any kind of sports fraud.

Taking inspiration from NADA, a dedicated national body dealing with such acts should be formed and a separate wing within police should also be created to investigate such cases.

Again, legalizing the business of betting would prove to be helpful in curbing such cases as the bookies could be easily identified and thus can be stopped from contacting players and other officials.

Conclusion

The menace of match-fixing and illegal betting is a phenomenon that has been haunting Indian sports fans and administrators for a considerable time now. Money laundering and other forms of financial crimes are affecting the sports at different levels.

The players and officials involved should be made aware and should be taught about the repercussions of such involvement. Without moral awareness of players and until concrete legislation into play, this problem can’t be curbed. 

References

1. http://www.legalserviceindia.com/articles/social.htm
2. https://www.news18.com/blogs/india/desh-gaurav-sekhri/a-guide-to-how-and-under-which-laws-players-bookies-and-others-guilty-of-fixing-can-be-punished-11476-747857.html
3. http://prsindia.org/report-summaries/legal-framework-gambling-and-sports-betting-including-cricket-india
4. https://www.dnaindia.com/sports/report-a-timeline-of-mohammad-azharuddin-s-match-fixing-saga-2211910
5. http://prsindia.org/uploads/media/draft/Draft%20Prevention%20of%20Sporting%20Fraud%20Bill%202013.pdf

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This article is written by Kashish Kundlani, a third-year student of (BBA.LL.B) Ramaiah Institute of Legal Studies, Bangalore. In this article, we’ll discuss the offences relating to dowry death and presumptions as to dowry death.

Introduction

Since time immemorial we have seen so many offences against women, where they are tortured and one such offence is dowry death. We all must have heard many cases related to the death caused to a woman for the demand for dowry. It’s very disgraceful for a society where a woman dies for not being able to give dowry and also very shameful where dowry is still being practised. 

Dowry death is defined in Section 304B of the Indian Penal Code,1860. Also Section 113B of the Indian Evidence Act,1872 states the presumption as to dowry death.

Dowry Death

Section 304B of the Indian Penal Code states that if a woman dies within seven years of marriage by any burns or bodily injury or it was revealed that before her marriage she was exposed to cruelty or harassment by her husband or any other relative of the husband in connection to demand dowry then the death of the woman will be considered as a dowry death.

Punishment for dowry death is a minimum sentence of imprisonment for seven years or a maximum sentence of imprisonment for life.

Essential Ingredients

• Death should be caused by burns or bodily injury or by any other circumstances
• Death must occur within the seven years of marriage
• It must be revealed that soon before her marriage she was exposed to cruelty or harassment by her husband or any other relative.
• The cruelty or harassment on her should be in connection with the demand for dowry.

Demand for Dowry

As per Section 2 of the Dowry Prohibition Act,1961 which says that dowry is any property or valuable security directly or indirectly agreed to be given by-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties.

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Various Causes to demand dowry

From the ages, we have seen the demand for dowry but to stop dowry the demand for it should be understood properly by society so that it can prevent its practice. 

The various causes are-

In the name of tradition

We must have seen people calling it a tradition or a custom to be followed in marriages taking place. In the name of tradition which has to be followed by the bride’s family give valuables to the groom’s family.

The groom’s family ask for dowry

The groom’s family voluntarily ask for dowry by giving reasons that their son is placed in a good job and they have a lot of reputation etc. 

Thinking that it will build a reputation in society

Earlier people had a preconceived notion that giving dowry will build up a good reputation in the society. With time it became a show-off concept in society and people started comparing it with others.

Illiteracy

In underdeveloped areas, the literacy rate is very less and people are unaware of the laws relating to dowry, which led to the increased demand for dowry by the others.

Though dowry is also practised by the literates in an underdeveloped area, it becomes a bit more difficult to make them understand the laws.

Is Dowry death a bailable and a cognizable offence?

Bailable Offences- Offences in which the permission from the court to release the arrested person is not required. The arrested person by fulfilling the necessary requirements can be released and the police cannot refuse the person.

Cognizable Offences- Offence in which the police have the authority to arrest any person without any warrant and also has the authority to start an investigation with or without any permission of the magistrate by filing FIR.

Dowry death is a non-bailable and cognizable offence. 

As per Section 41 of The Code Of Criminal Procedure, 1973  the police officer while arresting any person without a warrant, be satisfied with the complaint registered against a person and fulfil all the provision of Section 41 of CrPC.

Case law

State Of Himachal Pradesh vs Nikku Ram And Ors on 30 August 1995

In this case, the couple was married and after 5-6 months of their marriage husband, sister-in-law and mother-in-law started taunting the wife of the husband for bringing less dowry. They started demanding several things from her which was not fulfilled by her. The prosecutor filed a case for torturing the deceased and subjected her to cruelty in order to make her bring more dowry.

Gradually the torture on her increased so much that the mother-in-law hit her with a sharp blade on her forehead causing a deep cut over there.

She was unable to tolerate the ill-treatment by her husband and by her in-laws on her, as a result, she committed suicide by consuming naphthalene balls and died.

During the investigation, the sharp-edged blade was recovered and after the completion of the investigation husband, sister-in-law and mother-in-law were charged under the Section of 304-B, 306 and 498-A of the Indian Penal Code. And the case against them was registered.

The Court after examining all the evidences, it was held that persons who are charged under Section 304-B, 306 and 498-A will be free from these criminal charges as the prosecution failed to produce the evidence against them and only mother-in-law will be held guilty under Section 324 of the Indian Penal Code as voluntarily causing hurt to her daughter-in-law. And imposed a fine of Rs. 3,000, failing to pay the fine will attract simple imprisonment for 1 month.

Pawan Kumar & Ors vs State Of Haryana on 9 February 1998

Facts

Appellant No. 1 is the husband and his deceased wife Urmil. They after some time Shifted to Sonepat (Harayana).

Urmil returned back to her parent’s house within a few days of her marriage and complained about the demands of dowry for refrigerator, scooter etc. She did not fulfil the demands and was subjected to face torture and harassment by the appellants like commenting on her that she looks ugly etc. As a result of such comments and taunts by the appellants, she committed suicide and died due to the burn injuries.

The case was registered against the accused namely her husband, father-in-law and mother-in-law. In court, it was argued by the learned counsel of the appellant that there is no offence committed here as it does not fulfil the essential ingredients of Section 304B of Indian Penal Code and also no evidence was found out that soon before her death the deceased in any way was subjected to cruelty or harassment in connection with the demand for dowry.

Issue 

Whether she was subjected to any cruelty or harassment soon before her death and the same was in connection with the demand for dowry. 

Whether the demand asked for a refrigerator, scooter etc is a desire to acquire or a dowry demand.

Judgement

The learned counsel of the appellant argued that the mere desire to acquire a refrigerator, scooter etc. should not come within the ambit of demanding dowry and cannot be held as an offence as this would not come under the definition of dowry under Section 2 of Dowry Prohibition Act, 1961 with Section 304B and Section 498A of Indian Penal Code.

It was held by the Court that Demand for dowry itself is an offence under Section 304B and to be an offence under this it does not requires that an agreement for it should be necessarily present.

The court also held him guilty under Section 498A subjecting her to cruelty or harassment by passing comments on her looks and also taunting her to bring more dowry. 

Pawan Kumar appellant No.1 under Section 304B was sentenced to 7 years of rigorous imprisonment and liable to pay fine of Rs 500 and in default of paying fine 6 months will be added to his imprisonment. 

And under 306 IPC was sentenced to 4 years of rigorous imprisonment and a fine of Rs 200 and in default of the payment 3 months will be added to his imprisonment and also held him guilty under Section 498A sentenced him for 2 years rigorous imprisonment and Rs 200 fine in default more 3 months to his imprisonment will be added.

All the sentences should run simultaneously.

Appellant No.2 and appellant No. 3 the court here gave them the benefit of doubt and acquitted them.

Cruelty

Section 498A of the Indian Penal Code defines cruelty.

If a husband or any relative of him causes mental or physical harm to a woman then they will be held punishable under this section.

Punishment will be imprisonment for three years and also will be liable to pay fine.

Essentials 

• Any willful conduct on a woman to cause her injury or to instigate her to commit suicide.
• Harassing a woman or any of her relative in order to make them fulfil their unlawful demands.

Case law

The State Of Punjab vs Gurmit Singh on 2 July 2014

In this case, the term ‘relative’ was analysed. 

The respondent Gurmit Singh was charged under Section 304B of IPC that he is the reason for the death caused to Gurujit Kaur wife of Paramjit Singh. The respondent argued that he could not be charged with the offence of Section 304B as he is not the relative of the deceased. 

The respondent was the brother of Paramjit’s aunt and cannot be said that he is the relative of the deceased’s husband.

It was held by the court that he cannot be charged under Section 304B as he is not the relative either by blood, adoption or by marriage of the deceased’s husband. But the court said that he can be tried under other Section for the offence.

Section 498A in its definition talks about relative and by this case, it has analysed the word ‘relative’ and it means a person who is a relative by blood, adoption or by marriage others will not fall under the category of relatives and cannot be held guilty under Section 304B but can be held guilty under other section if they have committed any other offence.

Misuse of the provision and its Constitutionality

Many fake cases have been filed in misusing of the provision for its own motive or in order to give torture to the husband’s family. The women should not misuse the very own Section which is made to protect her. However, a mere possibility to misuse the provision should not invalidate the provision. Hence Section 498A is Constitutional.

Sushil Kumar Sharma vs Union Of India And Ors on 19 July 2005

In this case, the petitioner under Article 32 of the Constitution challenged the validity of Section 498A of the Indian Penal Code to be Unconstitutional. The petitioner says that the offence is made to protect women against dowry and not for misusing it against the innocent family members as a weapon.

The issue, in this case, is what preventive measures should be taken if a woman misuses this provision. The petitioner says the investigating agencies and courts should analyse the case properly and should not start with a presumption that the accused persons are guilty. They should not use a restrictive approach in the matter relating to dowry.

He also says that the investigating agencies and courts should guard the laws made and should not allow an innocent person to suffer on baseless and evil allegations made by anyone. The court did not find any material in his appeal and dismissed the writ petition and said if he wants to prove his innocence for which he is accused of he may do it in a trial.

Presumption as to Dowry Death

Section 113B of the Indian Evidence Act, 1872 states about the Presumption as to Dowry Death. If a woman dies in relation with any demand for dowry and it was shown that soon before her death she was subjected to harassment or cruelty by any person. Then the court will assume such a person responsible for her death.

Conclusion

practising in the name of a so-called tradition that is dowry is seen existing in every place in India whether rural or urban. The menace of dowry custom has reached far down in society. Despite making so many provisions practising of demand for dowry still not stopped. No matter how many laws the government makes it still can’t eradicate it fully from the society. To fully eliminate it the people of the society has to understand that it is wrong. 

By enacting strict laws in society it can be controlled but can’t put an end to it because of the unawareness of the laws in the society and also no support from the families. Even if the girl complains to her parents about the torture she faces by the husband’s family the parents of the girl opt to compromise instead of bringing it to the light. The laws and support from society together can solve the issue.

References

• http://www.aaptaxlaw.com/IPC/section-304b-ipc-dowry-death-punishment-for-dowry-death-sec-304b-of-indian-penal-code-1860.html
• http://www.legalserviceindia.com/legal/article-1245-dowry-and-dowry-death.html
• http://lighttheminds.com/causes-of-dowry-system-social-effects-and-how-to-stop/
• https://devgan.in/ipc/section/304B/
• https://indiankanoon.org/doc/981147/

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 Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. This article gives an overview of the fundamental right of freedom of religion guaranteed by the Constitution of India under Article 25 to Article 28. 

Introduction

“India has a great heritage and it is a model for religious harmony where people of different religions live peacefully and in harmony.” 

-Dalai Lama 

Religion is a matter of belief or faith. The constitution of India recognizes the fact, how important religion is in the life of people of India and hence, provides for the right to freedom of religion under Articles 25 to Article 28. The Constitution of India envisages a secular model and provides that every person has the right and freedom to choose and practice his or her religion. In a number of cases, the Apex Court has held that secularism is the basic structure of the Constitution, the most important being the Kesavananda Bharati case. People in India mainly practice Islam, Hinduism, Jainism, Buddhism, Sikhism and, Christianity. In India, there are religion-specific laws and Goa is the only state to have a Uniform Civil Code known as the Goa Civil Code. The Constitution supports religious harmony which means the people of India show love and affection to different religions of the country.

What is Secularism?

Secularism means developing, understanding and respect for different religions. It is believed that the word ‘Secularism’ has its origin in late medieval Europe. In 1948, during the constituent assembly debate, a demand was made by the KT Shah to include the word ‘Secular’ in the Preamble to the Constitution. The members of the assembly though agreed to the secular nature of the constitution but it was not incorporated in the Preamble. Later, in 1976 the Indira Gandhi government enacted the 42nd Amendment Act and the word ‘Secular’ was added to the Preamble. The 42nd Amendment Act also known as the ‘Mini Constitution’, is the most comprehensive amendment to the Constitution.

In the much-disputed Ayodhya case, it was held by the apex court that the constitution postulates equality of all faiths. Through Tolerance and mutual co-existence, the secular commitment of our country and its people can be nourished. 

S. R. Bommai v. Union of India, AIR 1994 SC 1918

The 9 judge bench, in this case, ruled that Secularism is the basic feature of the Constitution of India. It also observed that religion and politics cannot be mixed together. If the State follows unsecular policies or courses of action then it acts contrary to the constitutional mandate. In a State, all are equal and should be treated equally. Religion has no place in the matters of State. Freedom of religion as a fundamental right is guaranteed to all persons in India but from the point of view of the State, religion, faith, and belief are immaterial. 

Constitutional Provisions relating to Right of Religion

• Article 25: Freedom of conscience and free profession, practice and propagation of religion.
• Article 26: Freedom to manage religious affairs.
• Article 27: Freedom as to payment of taxes for promotion of any particular religion. 
• Article 28: Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

Freedom of Religion in India (Art. 25)

Article 25 of the Constitution guarantees freedom of religion to all persons in India. It provides that all persons in India, subject to public order, morality, health, and other provisions: 

• Are equally entitled to freedom of conscience, and 
• Have the right to freely profess, practice and propagate religion.

It further provides that this article shall not affect any existing law and shall not prevent the state from making any law relating to:

• Regulation or restriction of any economic, financial, political, or any secular activity associated with religious practice.
• Providing social welfare and reform.
• Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus. 

The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan held that the test to determine the question in deciding what is an integral part of a religion is whether it is regarded as integral by the community following that religion or not.

Doctrine or Belief?

In Hasan Ali v. Mansoor Ali the Bombay High Court held that Articles 25 and Article 26 not only prevents doctrines or beliefs of religion but also the acts done in pursuance of religion. It thus guarantees ceremonies, modes of worship, rituals, observances, etc which are an integral part of religion. What is the essential or integral part of a religion has to be determined in the light of the doctrines and practices that are regarded by the community as a part of their religion and also must be included in them. 

The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ruled that there is no doubt that religion finds its basis in the system of doctrines regarded by those who profess that religion, but it will not be correct to say religion is nothing but a doctrine or belief.

In the case of SP Mittal v. Union of India, the court held that Religion need not be theistic. It is not merely an opinion, doctrine or belief but has an outward expression in the act as well. 

What is religion?

The German philosopher Immanuel Kant defines religion as “Religion is the recognition of all our duties as divine commands”. 

Milton Yinger, American sociologist defines religion as “a system of beliefs and practices by means of which a group of people struggles with the ultimate problems of human life”. 

The constitution does not define the term ‘religion’ and ‘matters of religion’. Hence, It is left to the Supreme Court to determine the judicial meaning of these terms.

A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765

In this case, Justice Hansaria observed that “our constitution makers had used the word “religion” in these two articles (Articles 25 and 26) in the sense conveyed by the word ‘dharma’.” He further explained the difference between religion and dharma as “religion is enriched by visionary methodology and theology, whereas dharma blooms in the realm of direct experience. Religion contributes to the changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine in the heart.”

The National Anthem Case

Bijoe Emmanuel v. State of Kerala, (Popularly known as the national anthem case.)

The facts of this case were that three children belonging to a sect (Jehovah’s witness) worshipped only Jehovah (the creator) and refused to sing the national anthem “Jana Gana Mana”. According to these, children singing Jana Gana Mana was against the tenets of their religious faith which did not allow them to sing the national anthem. These children stood up respectfully in silence daily for the national anthem but refused to sing because of their honest belief. A Commission was appointed to enquire about the matter. In the report, the Commission stated that these children were ‘law-abiding’ and did not show any disrespect. However, the headmistress under the instruction of the Dy. Inspector of Schools expelled the students.

The Supreme Court held that the action of the headmistress of expelling the children from school for not singing the national anthem was violative of their freedom of religion. The fundamental rights guaranteed under Article 19(1)(a) and Article 25(1) has been infringed. It further held that there is no provision of law which compels or obligates anyone to sing the national anthem, it is also not disrespectful if a person respectfully stands but does not sing the national anthem. 

In another case of the Supreme Court, Shyam Narayan Chouksey v. Union of India It was averred in the petition filed before the Supreme Court that every person must show respect to the national anthem. The Supreme Court held that every citizen or persons are bound to show respect to the National Anthem of India, whenever played or sung on specific occasions the only exemption is granted to disabled people. It further held that playing of the national anthem in cinema halls is not mandatory but optional and directory.

Article 51A also recognizes the duty of every citizen to show respect to our national anthem. It states that every citizen of India is duty-bound to respect its ideals, institutions, National flag, National anthem, etc. 

Telecast of serial: Ramesh v. Union of India, (1988) 1 SCC 668

The facts of this case were: The serial ‘Tamas’ was based upon a book that already screened four episodes that portray the communal violence between Hindu-Muslim and Sikh-Muslim and the tension, killing and looting that took place. A writ petition was filed under Article 32 of the Constitution for the issuance of the writ of prohibition or other appropriate writ or order restraining the further screening of the serial ‘Tamas’ and enforcing the fundamental rights of the petitioner under Article 21 and Article 25 and to declare the screening of Tamas as violative of Section 5B of the Cinematograph Act, 1952.

The Court while dismissing the petition held that there is no violation of Article 21 and 25 and the respondent has not acted improperly. The author tries to bring attention to the past history of our country and to emphasize the wish of the people to live in harmony and rise above religious barriers. It further held that when the serial is viewed in its entirety it creates an impression of peace and co-existence and that the people are not likely to be carried away by the violence shown in it. 

Appointment of Non-Brahmins as Pujari: N. Aditya v. Travancore Devaswom Board

The issue, in this case, was whether the appointment of a non-Malayala Brahmin as ‘Santhikaran’ (Priest or Pujari) of the Kongorpilly Neerikode Siva Temple at Kerala is violative of the provisions of the constitution. 

The court held as long as a person is well versed, properly qualified and trained to perform the puja in an appropriate manner for the worship of the deity, such a person can be appointed as ‘Santhikaran’ despite his caste. In the present case, it was also observed that the temple is not a denomination where there is a specific form of worship is required.

Bhuri v. State of J. & K., AIR 1997 SC 1711

In this case, the issue related to the constitutional validity of the Jammu and Kashmir Mata Vaishno Devi Shrine Act, 1988 which abolished the right of performing Pooja. The Act took over the administration, governance, management of the shrine fund and vested it with the Board constituted under the Act (Shri Mata Vaishno Devi Shrine Board). The Supreme Court upheld the Act as constitutionally valid and observed that right to pooja is a customary right and the state by enacting a legislation can abolish it. The rights under Article 26 is not absolute but is subject to certain limitation. 

Acquisition of place of worship by State

The Supreme Court in the case of M Ismail Faruqi v. Union of India held that the mosque is not an essential part of Islam. Namaz (Prayer) can be offered by the Muslims anywhere, in the open as well and it is not necessary to be offered only in a mosque. 

In M Siddiq (D) Thr. Lrs v. Mahant Suresh Das Supreme Court held that the State has the sovereign or prerogative power to acquire the property. The state also has the power to acquire places of worship such as mosque, church, temple, etc and the acquisition of places of worship per se is not violative of Articles 25 and 26. However, the acquisition of place of worship which is significant and essential for the religion and if the extinction of such place breaches their (persons belonging to that religion) right to practice religion then the acquisition of such places cannot be permitted.

Shifting of property connected with religion

In the case of Gulam Abbas v. State of UP, there was a dispute between the Shias and Sunnis regarding the performing of the religious rites by the Shias on a certain plot of land of mohalla Doshipura in Varanasi. In order to avoid clashes between these communities and to find a permanent solution to this problem, the Supreme Court appointed a 7 member committee with Divisional Commission as the Chairman and 3 members of the Shia sect and 3 members of the Sunni sect. The committee made a recommendation of shifting of the graves of Shias to separate the places of worship of the Shia and Sunni sect. The Sunni sect challenged these recommendations as violative of their fundamental right of freedom of religion under Article 25 and 26. The Court rejected these contentions.

The Supreme Court held that the fundamental right guaranteed under Article 25 and 26 is not absolute and is subject to public order and if the court is of the opinion that shifting of graves is in the interest of the public then the consent of the parties is irrelevant even though the Muslim personal law is against shifting of graves.

Triple Talaq: Shayara Bano v. Union of India

Talaq-e-biddat known as triple talaq, a kind of divorce through which a Muslim man could divorce his wife by uttering the words talaq talaq talaq. A 5 judges bench of the Supreme Court heard the controversial Triple Talaq case. The main issue, in this case, was whether the practice of Talaq-e-biddat (triple talaq) is a matter of faith to the Muslims and whether it is constituent to their personal law. By a 3:2 majority, the court ruled that the practice of Talaq-e-biddat is illegal and unconstitutional. The court also held that, an injunction would continue to bar the Muslim male from practicing triple talaq till a legislation is enacted for that purpose.

To which the government formulated the Muslim Women (Protection of Rights on Marriage) Bill, 2017. Later, Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was passed. As the 2018 ordinance was about to expire, the government formulated a fresh bill in 2019 and an ordinance was passed for the same in 2019 which was approved by the President and finally the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force on July 31st, 2019 with an objective “to protect the rights of the married Muslim women and prohibit the Muslim male to divorce the wife by pronouncing talaq”. 

Noise pollution in the name of religion

The Supreme Court in Church of God (Full Gospel) v. K.K.R. Majestic Colony Welfare Association held that nowhere in any religion, it is mentioned that prayers should be performed through the beating of drums or through voice amplifiers which disturbs the peace and tranquility of others. If there is any such practice, it should be done without adversely affecting the rights of others as well as that of not being disturbed in their activities.

In the case of Maulana Mufti v.State of West Bengal restrictions were placed on the use of microphones before 7 am. It was held by the Calcutta High Court that Azan is an integral and necessary part of the religion but certainly not the use of microphones. It violates the basic human and fundamental right of the citizens to sleep and leisure.

Restrictions on Freedom of Religion

The Supreme Court in In re, Noise Pollution case, has given certain directions to be followed to control noise pollution in the name of religion:

• Firecrackers: A complete ban on sound-emitting firecrackers from 10 pm to 6 am.
• Loudspeakers: Restriction on the beating of drums, tom-tom, blowing of trumpets, or any use of any sound amplifier between 10 pm to 6 am except in public emergencies.
• Generally: A provision shall be made by the State to confiscate and seize loudspeakers and such other sound amplifiers or equipment that create noise beyond the limit prescribed. 

Freedom to manage religious affairs (Art. 26)

Article 26 (subject to public order, morality, and health) confers a right on every religious denomination or any section of such religious denomination of:

• Establishing and maintaining institutions for religious and charitable purposes;
• Managing its affair with regard to religion;
• Owing and acquiring property (movable and immovable);
• Administering the property in accordance with the law.

Religious denomination

The word ‘religious denomination’ is not defined in the constitution. The word ‘denomination’ came to be considered by the Supreme Court in the case of Commissioner, Hindu Religious endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt. In this case, the meaning of ‘Denomination’ was culled out from the Oxford dictionary, “A collection of individuals classed together under the same name, a religious sect or body having a common faith and organization designated by a distinctive name”.

Bramchari Sidheshwar Bhai v. State of West Bengal

In this case, The Ram Krishna Mission wanted to declare itself as a non- Hindu minority where its members were to be treated as Hindus in the matter of marriage and inheritance but in the religious sense to be recognized as non-Hindus. This would certainly mean that they are given the status of legal Hindus but religious non- Hindus, similar to Sikhs and Buddhists. To this, the Supreme Court ruled that it cannot be claimed by the followers of Ram Krishna that they belong to the minority of the Ram Krishna Religion. Ram Krishna Religion is not distinct and separate from the Hindu religion. It is not a minority based upon religion. Hence, it cannot claim the fundamental right under Article 30 (1) to establish and administer institutions of education by Ram Krishna Mission. 

Right to establish and maintain-institutions for religious and charitable purposes: Azeez Basha v. Union of India

In this case, certain amendments were made in the year 1951 and 1965 to the Aligarh Muslim University Act, 1920. These amendments were challenged by the petitioner on the ground that: 

1. They infringe on the fundamental right under Article 30 to establish and administer educational institutions.
2. Rights of the Muslim minority under Article 25, 26, 29 were violated.

It was held by the Supreme Court that prior to 1920 there was nothing that could prevent Muslim minorities from establishing universities. The Aligarh Muslim University was established under the legislation (Aligarh Muslim University Act,1920) and therefore cannot claim that the university was established by the Muslim Community as it was brought into existence by the central legislation and not by the Muslim minority.

Right to manage its own affairs in the ‘Matters of Religion’ 

Matter of religion includes religious practices, rituals, observances, ceremonies, mode and manner of worship, etc., regarded as the essential and integral part of the religion. For instance, in Acharaj Singh v. State of Bihar it was held that, if Bhog offered to the deity is a well-established practice of that religious institution, such a practice should be regarded as a part of that religion. 

Prevention of exCommunication

Ex-communication means the exclusion or expulsion of a person from a community or group of which he or she was a member.

Saifuddin Saheb v. State of Bombay AIR 1962 SC 853

In this case, the State of Bombay passed the Bombay Prevention of Excommunication Act, 1949. Section 3 of this Act prevented the excommunication of the members of any community. The petitioner (religious head of the Dawoodi-Bohra Community) challenged the Act on the ground of violation of their fundamental rights guaranteed under Article 25 and 26.

The Court observed that the power of Excommunication by the head formed the essential affairs of the community and the Act clearly violated the fundamental right under Article 25(1) of the Constitution. The Supreme Court held that the Act was violative of Articles 25 and 26 and was therefore void.

Taking over management of secular activities of the temple: Bira Kishore Dev v. State of Orissa, AIR 1964 SC 1501

In this case, The validity of the Shri Jagannath Temple Act, 1954 was challenged on the ground that the Act is discriminatory in nature and violates Article 26 (d) of the Constitution. It was contended by the petitioner (Raja of Puri) that the temple was his private property and he had the sole right over management as well as superintendence of the temple. The Act took away the sole management of the temple from the appellant and vested it with the Committee. Dismissing the appeal the Supreme Court held that there was no violation of the fundamental right of freedom of religion of the petitioner and the Act only dealt with the secular management of the institution. 

Breaking of coconuts and performing Pooja, chanting Mantras and Sutras in State functions: Atheist Society of India v. Government of A.P., AIR 1992 AP 310

The petitioner (Atheist Society of India), in this case, prayed for the issuance of writ of Mandamus to direct the Government of Andhra Pradesh to give instruction to all the concerned departments to forbid the performance of religious practices such as breaking of coconuts, chanting mantras, etc at the State function on the ground that the performing of these practices is against secular policy of the constitution. The petitioner’s prayers were rejected by the court on the grounds that it infringes upon the right to religion and if permitted it will be against the principle of secularism, which is the basic structure of our Constitution. It would lead to depriving of the right to freedom of thought, faith, worship.

Right to administer property owned by the denomination

Article 26 (d) says that a religious denomination has the right to administer its own property but it should be in accordance with Law. In Durgah Committee Ajmer v. Syed Hussain Ali the Supreme Court observed that if the religious denomination never had the right to administer property or if it has lost its right then such right cannot be created under Article 26 and therefore cannot be invoked.

The Supreme Court in the case of State of Rajasthan v. Sajjanlal Panjawat observed that even though the state has the power to administer or regulate the properties of a trust, but it cannot by law take away the right to administer such property and vest it in such other authority that does not even comprise the denomination. This would certainly amount to a violation of Article 26(d) of the Constitution.

Limitation of the Right 

The right to religion under Article 26 is subject to certain limitations and not absolute and unfettered. If any religious practice is in contravention to any public order, morality or health then such religious practice cannot claim the protection of the state.

Freedom from taxes for promotion of any particular religion (Art. 27)

Article 27 of the Constitution prevents a person from being compelled to pay any taxes which are meant for the payment of the costs incurred for the promotion or maintenance of any religion or religious denomination.

In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Madras legislature enacted the Madras Hindu Religious and Charitable Endowment Act, 1951 and contributions were levied under the Act. It was contended by the petitioner that the contributions levied are taxes and not a fee and the state of madras is not competent to enact such a provision. It was held by the Supreme Court that though the contribution levied was tax but the object of it was for the proper administration of the religious institution.

Prohibition of religious instruction in the State-aided Institutions (Art. 28)

Article 28 prohibits: 

• Providing religious instructions in any educational institutions that are maintained wholly out of the state funds. 
• The above shall not apply to those educational institutions administered by the states but established under endowment or trust requiring religious instruction to be imparted in such institution.
• Any person attending state recognized or state-funded educational institution is not required to take part in religious instruction or attend any workshop conducted in such an institution or premises of such educational institution. 

Teaching of Guru-Nanak: D.A.V. College v. State of Punjab, (1971) 2 SCC 368

In this case, Section 4 of the Guru Nanak University (Amritsar) Act, 1969 which provided that the state shall make provisions for the study of life and teachings of Guru Nanak Devji was questioned as being violative of Article 28 of the Constitution. The question that arose was that the Guru Nanak University is wholly maintained out of state funds and Section 4 infringes Article 28. The court rejecting this held that Section 4 provides for the academic study of the life and teachings of Guru Nanak and this cannot be considered as religious instruction. 

Education for value development based on all religions: Aruna Roy v. Union of India, (2002) 7 SCC 368.

In this case, a PIL was filed under Article 32 wherein it was contended by the petitioner that the National Curriculum Framework for School Education (NCFSE) which was published by the National Council of Educational Research and Training is violative of the provisions of the constitution. It was also contended that it was anti-secular and was also without the consultation of the Central Advisory Board of Education and hence it should be set aside. NCFSE provided education for value development relating to basic human values, social justice, non-violence, self-discipline, compassion, etc. The court ruled that there is no violation of Article 28 and there is also no prohibition to study religious philosophy for having value-based life in a society. 

Conclusion

India is the most diverse country with respect to religion. Being a secular country it does not have its own religion and every citizen has the right to choose, practice, propagate and even change his or her religion. However, these rights are not absolute but subject to certain restrictions provided by the constitution. No person in the name of religion can do any act that is opposed to the public policy or creating any kind of disturbances or intolerance among the people of India. 

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

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This article is written by Abhishek Dubey student of BBA LL.B in 2nd year. The article discusses the different types of credit facilities provided by banks, including some of the essentials of the loan agreement as well as documents required for getting business loans etc.   

Introduction

There are two types of credit facilities long term and short term. Short term credit is required to meet the regular expenses of business such as paying the creditor and purchase of raw materials. While a long term credit is used to meet the capital expenditure such as for the purchase of assets, construction and maintenance of the building.

These are financed by banks, private placement. For raising equity by Initial Public offering or any other convertible securities there are various methods available to the company. Business owners may use such method of raising credit that would help them retain control of businessmen over the business.

Types of Credit Facilities for banks

Short term loans

A company can borrow short term loans for its working capital needs for a period of six months or a year. This type of credit facility may or may not be secured in nature. It depends upon the credit rating of the borrower. A strong borrower such as from the investment-grade category may be able to borrow on an unsecured basis. On the other hand, the non-vested borrower may borrow short term credit by providing collateral securities for loans such as short term receivables and inventories.

A large corporation also borrows short term loans for a specified period of time and for a specified amount. The specified time can be up to 5 years but the interest rate is higher as compared to a non-investment borrower and investment category borrower. A borrowing base facility is a secured form of short term loans provided only to commodities trading firms.

Following are the parts of short term loans by the banks:

Merchant cash advances

In this type of credit facility, a company can withdraw funds more than its deposits. The borrower would then be required to pay the interest on additional amount apart from deposits.

Letter of credit

This type of credit facility is most suitable for the company which mainly deals with cash. A supplier feels secure to give credit to the customer with whom he has a good relationship. The negotiation of good payment terms with the supplier is very important for having a profitable transaction. An example of a good payment term can be 2 per cent discount if payment has been made within 10 days.

But there may be circumstances, the supplier immediately so a customer or a businessman may borrow from banks for the short term credit. Letter of credit gives a facility to the company by which a bank guarantee is given to the supplier for payment on behalf of the company. This letter of credit is issued to the supplier by banks and collateral security is provided by the company. 

PayDay loans

Payday loans are emergency short term loans which are easy to obtain. Even banks offer this type of loan to street vendors. The disadvantage of payday loans is that the entire amount and interest amount should be paid in one instalment.

Online or instalment loans

It is also a short term facility provided by the bank. In this form, an application is filed online by the borrower for approval. After approval within minutes, the money is transferred to the borrower’s account.

Invoice financing

Invoice is a document which shows the amount unpaid by the customer in business. The lender loans the money and charges the interest based on the number of days that invoice remains unpaid. As soon as the invoice gets paid the lender will interrupt the invoice, charge the interest on the loan and will ask the borrower to pay the whole money and interest.

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How to apply for short term loans

1. Know the reason and amount of loan

It is well known that short term loans are applied mostly by small businessmen. The owner should know the reason and the amount of loan needed. If it is a startup, then the owner of startups should know the number of funds that are required. Whether the firm is existing or startups they should prepare the financial statement for their business plan.

2. Visit your local score and SDFC office

The local score is a social and volunteer organization involved in advising the owner of a business. This organization consists of a business executive. If you do not have a score in your area then consult with SDFC, If your business location or your location is near to the university. SDFC is a part of small business administrator which advise startups and small businesses. Application has to be made for advice moreover, online counselling can be also taken.

3. Review your credit history and credit score

Generally, if your business is less than 3 years old, your creditor history and creditor score will be reviewed by banks. Before you apply for a loan request, a credit report of your business should be consulted with a consultant. 700 is a good score for which, a chance for getting a loan is higher.

4. Start reviewing your borrowing options

Generally, large commercial banks have a tough procedure for getting a loan approved. So another option available to a businessman is to visit regional commercial banks. Other options are also available apart from commercial banks such as local credit union if you are a member of the credit union.

5. Prepare for a business plan

This is one of the most important steps for applying and getting approval of your loan. Preparation of a business plan is mandated by a financial institution apart from the loan application. The business plan consists of many parts such as a past and present financial statement of the business and collateral security of businessmen.

Long term and intermediate business loans in India

Long term loans

Long term loans carry fixed maturities, the maturity period can be for 10 years or up to 20 years.

Long term loans are always supported by collateral i.e company assets. The long term loans contain various conditions. For example, the condition can be a company cannot take a loan from other banks until and unless it does not repay this loan.

Purpose of long term loans

Long term loans are usually taken by a business when they are purchasing equipment for the manufacturing, construction and maintenance of the building. A short term loan will not be appropriate for this purpose.

Getting a long term loan

Getting a long term loan is difficult for startups. Only a well-established businessman can avail long term loans. A business needs to present its business plans and as well as its historical and financial records for getting the long term loans. 

A business needs to show the future plan that it can repay the amount for startups. The advantage of long term loans is that it charges less interest than short term loans.

Obtaining a long term loan

Obtaining a long term loan depends upon many factors including the bank chosen, the financial strength of the company, the economy of the country, the condition of the economy such as boom or recession period etc.

How midterm loans differ from long term loans

The intermediate-term loans differ from long term loans. The maturity period may be from 1 to 3 years but the approval process of short term and long term loan is the same. This type of loan is generally taken by the business for short term assets such as computer systems, operating the business etc. Their life span is not for more than 3 years. Payment to banks is made quarterly or monthly.

Documents required for a different business plan

It is possible for the business to grow by purchasing business equipment and grow its business by obtaining a loan from banks. Each bank has a specific requirement. Here is the list of few documents required by banks apart from the application:

• Identity proof: This includes aadhar card, driving license, pan card etc.
• Address proof: This includes ration card, telephone bill, electricity bill, passport etc.
• Income proof: Bank statement for the last 2 years.
• Financial documents: Last 2 years of income tax return along with balance sheet, income and profit and loss account.
• Proof of business continuation.
• Business ownership proof: Last 3 years of audited financial, along with the sole proprietor, and a copy of the memorandum of understanding and article of association.

List of commonly required documents by most of the lenders for business loans

• Loan application form with one passport size photo.
• Valid proof of the borrower: passport, pan card, identity card, driving license etc. 
• Proof of residence: ration card, telephone bill, sales tax certificate.
• Proof of age: Passport, pan card, identity card etc.
• Financial documents: copies of income tax returns for 2 years, balance sheet audited by CA for 2 years.
• Profit and loss balance sheet for the last 2 years.
• Proof of identity for Pvt Ltd.: sales tax, VAT tax, value-added tax, memorandum and article association of company etc.

An additional type of credit facilities provided by Banks

Personal loan

Personal loans are mostly unsecured in nature as they do not require any collateral security such as car or residence. These are used by people for small purposes. Their unsecured nature makes them attractive to the buyer.

Motor vehicle loan

The bank supplies different types of loans for purchasing a vehicle. Eligibility criteria are determined after reviewing the applicant’s history and repaying capacity.

Bank overdraft

Bank overdraft is an extension of getting a loan when the deposit reaches to zero. An overdraft allows the borrower to get a loan even if the account balance reaches zero. The interest rate to overdraft is high as compared to the other loan.

Education loan

Education loan gives an opportunity to students for taking the loan if a student meets the eligibility criteria for getting a loan. Eligibility criteria depend upon the student’s college profile, ranks, marks etc. This gives an opportunity for the student to focus on and continue their studies.

Medical loan

This type of loan is provided by banks to the person who suffers from health-related issues. This type of loan is given by reviewing the personal capacity to pay loans and after considering the financial situation of a person irrespective of a medical problem.

Credit cards

With a stable income and good credit history, there is also the availability of credit card, the creditor issuer will review your ability to get credit and decide whether to accept your application and creditor will also set a limit how much a person can take credit. Credit cards are used to purchase various items, different credit cards have different interest rates.

Essentials of Loan Agreement

The fluctuation of interest clauses

This clause gives permission to the bank to alter the rate of interest. When a customer takes a long term loan such as for 10 or 20 years then, the banks may alter the interest rate.

Default clauses of the loan agreement

Default is an occurrence of an event which the lender seeks protection against. The borrower will generally be allowed to seek protection against i.e grace period in which to cure the default and in case the borrower is not paying that on that period then it will create a certain contractual right for the lender. 

Security clause

This clause means security or collateral on the basis of which the loan is given. In case the collateral is insufficient, then the lender may ask for additional collateral security.   

Third-party clause

This clause is very important for banks. It gives protection to banks in case of a breach on default of non-payment by the party.

Amendment clause

This clause gives a right to the bank to amend any of the clauses of the loan without informing the borrower.

Notification clauses

This clause gives responsibility to the borrower in case of a change in address, residence and change in the level of income. These details should be informed to the bank during the tenure of the loan.

Conclusion

A credit facility is a type of advance given by banks for a certain period of time. There are various types of credit facilities such as retail credit facilities, loan facilities and letter of credit. Personal loans and credit card facilities are available depending upon the financial condition of borrowers. A creditor facility agreement provides responsibilities of borrower like loan interest, default, loan amount, security clauses etc.

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 All you want to know about Credit Facilities provided by the Bank 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 provisions related to the Union Public Service Commissions and the State Public Service Commission.

Introduction

Our constitution provides for four watchdogs (i.e., the Supreme Court, the Election Commission of India, the Comptroller and Auditor General of India, the Union Public Service Commission) that help to keep a check on different functions of the State. Supreme Court keeps a check on the judicial functions of the state. Election Commission of India ensures free and fair elections. The Comptroller and Auditor General keep in check the finances of the country. Similarly, the Union Public Service Commission is a watchdog to ensure fair recruitment on the basis of merit. U.P.S.C., along with the country’s higher judiciary and the Election Commission, is amongst the few institutions which function with autonomy and freedom. The Public Service Commissions were established by the Government of India Act, 1935 at the Provincial level known as the State Public Service Commission and the constitution of India gave it a constitutional status as autonomous bodies. Thus, it becomes essential on the part of citizens to know and understand these organizations better. Therefore, in this article, we will be discussing the Union Public Service Commission and the State Public Service Commission in detail.

Constitutional Provisions

Article 315 to 323 of Part XIV of the Indian Constitution deals with provisions relating to the Union Public Service Commission as well as the State Public Service Commission. These Constitutional Provisions include guidelines regarding the appointment, composition, removal, functions, and duties, etc. of the Public Service Commissions. The following table describes the content of the various provisions of the Constitution.

Composition of U.P.S.C. and S.P.S.C.

Let us understand the above provisions and start with discussing the composition of the Union Public Service Commission and State Public Service Commissions.

• The U.P.S.C. and S.P.S.C. both consist of a Chairman and other members.
• The Commissions consist of 9 to 11 members including the chairman (though the number is not defined anywhere, and it changes from time to time and decided by the president in case of U.P.S.C. and by the Governor in case of S.P.S.C.).
• The current sanctioned strength of the Commissions is 11 (i.e., one Chairman and ten members).

Appointment and Eligibility of members

Article 316 of the Indian Constitution provides for provisions regarding the appointment of the chairman and the members of the U.P.S.C. and S.P.S.C.

• The Chairman and other members of Union Public Service Commission and State Public Service Commissions are appointed by the President of India and the Governor of the State respectively.
• Although no specific qualification is mentioned in the Constitution, but it mandates that 50% of the members of U.P.S.C. should be the ones who have held government office for at least 10 years.
• The President of India and The Governor of State are empowered by the Constitution of India to determine the conditions of service of the Chairman and other members of the Union Public Service Commission and the State Public Service Commission respectively, at the time of their appointment.
• The person to be appointed as the members of the Union Public Service Commission and State Public Service Commissions should not hold any office of profit under the central or the state government.

Appointment of chairman and acting chairman

In case, the office of the Chairman becomes vacant, the President shall appoint another member of the Commission as the acting chairman to perform the functions of the chairman in his/her absence.

The governor can also appoint one of the members of the S.P.S.C. as an acting chairman if any of the following conditions prevail:

• The office of the chairman of the commission becomes vacant;
• The chairman of the commission, due to absence or for any other reason, is unable to perform the duties of his office.

The acting chairman will perform the functions of the chairman until the chairman returns to its office.

Tenure of the Members and Chairman

For the Union Public Service Commission, every member can hold office for six years or till the time he attains the age of 65 years, whichever is earlier. In the case of State Public Service Commission, the term is of six-year but the member can hold the office till he attains the age of 62 years, whichever is earlier.

A member of any commission can submit his resignation, at any time, to the President of India. 

The members of both U.P.S.C. and S.P.S.C. can be removed at any time by the president on various grounds.

Expenses 

According to Article 322, the expenses of the Union Public Service Commission and State Public Service Commission, including salaries, allowances, and pensions, payable to any of the members or staff of the Commission, shall be charged on the Consolidated Fund of India and the Consolidated Fund of the State respectively.

Reporting

Article 323 mandates that it will be the duty of the Union Commission to submit to the President an annual report of the work done by the Commission. Whereas the State Public Service Commission will submit its annual report of its performance, to the Governor. Upon receipt of such report, the President shall present a copy, before each House of Parliament and the Governor shall present it to both the house of the legislature (if the legislature is bicameral), together with a memorandum, explaining the reasons as to why the advice of the Commission was not accepted by him.

Structure of the Organisation

The Union Public Service Commission (Members) Regulations, 1969 governs the terms and conditions of service of chairman and members of the Commission.

Secretariat

The functions of the Commission are performed by a Secretariat headed by a Secretary with four Additional Secretaries. These additional secretaries consist of a number of Joint Secretaries, Deputy Secretaries and other supporting staff. For administrative purposes, the secretariat is further divided into several divisions, each undertaking a specific responsibility which are as follows:

• Administration: The administration administers the Secretariat as well as looks after personal matters of Chairman/Members and other Officers/Staff of the Commission.
• All India Services: Recruitment to All India Services is done either by direct recruitment, through Civil Services Examination or by promotion from the State Service. The AIS Branch handles the promotions of State Service officers to the IAS, IPS, and IFS. It also handles policy matters relating to All India Services and amendments in the ‘Promotion Regulations’ of respective services.
• Appointments: They carry out appointments to Central and State services based on promotion and by the means of Deputation and Absorption.
• Examination: It carries out merit-based selection and recommendation of candidates, through various examinations, to Group A and Group B Services of the Government of India and the respective State.
• General: The general primarily deals with day-to-day housekeeping works for Commission. It deals with functions like arrangements and facilitation for conduction of Examinations by the U.P.S.C. and S.P.S.C., printing Annual Report etc.
• Recruitment: This branch of the U.P.S.C. and the S.P.S.C., carries out Direct Recruitment (out of the 3 possible mechanisms of ‘direct recruitment’, ‘recruitment by promotion’ and ‘recruitment by transfer and permanent absorption’) by selection to all Group `A’ and certain Group `B’ posts of the services of the Union (including some Union Territories) or the State. These recruitments are done either by selection (interview) or through competitive examination.
• Services I: Handles disciplinary cases, as required under Article 320(3)(c), received from various Ministries/Departments and State Governments, for the advice of the Commission.
• Services II: Handles cases other than the ones dealt by ‘Services I’ branch. It also compiles the Annual Report and coordinates visits of foreign delegations, hosting of international events and correspondence with foreign countries concerning Public Service Commissions, including the SAARC Member States.

Powers of U.P.S.C. and S.P.S.C.

Main power of Union Public Service Commission and the State Public Service Commission is the advisory power. It is empowered to give advice to the President and the Governors of any State on the following affairs:

• On all matters related to the appointment of the civil services of the governments.
• The evaluation of the efficiency and standard of the candidates for appointment, promotion or transfer in all civil posts.
• On all matters regarding the discipline and punctuality of the employees of the civil services.
• Matters associated with the demands and benefits of employees working under the Civil Services and employees injured while on duty.
• If the payment or expenditure for any work of an employee of Civil Services will be charged on the consolidated fund of India or not.
• Regarding promptness of decision and discipline of action in government functions, of paying compensation to a government employee, if the employee has suffered any problems or financial loss due to negligence on the part of the government.
• It also has powers to deal with matters related to punishment measures of those employees who have violated discipline or with all matters related to the interest of the government employees working under the Central government and the State government.

Thus, the Constitution of India has simply made the Union Public Service Commission and State Public Service Commission, as advisory institutions which provide advice on the subject sent to it by the President of India or by the Governors of the State respectively. But the acceptance or denial of advice is the absolute discretion of the respective governments.

This is because India has adopted a responsible self-governing government wherein the powers and responsibilities of the council of ministers cannot be delegated to its employees or to any other organization. 

In brief, U.P.S.C. is the central recruitment agency in India and S.P.S.C. is the state recruitment agency in India.

Functions of U.P.S.C. and S.P.S.C.

The duty of the Union Public Service Commission and State Public Service Commission is to conduct examinations for appointment to the services of the Union and the State respectively. Article 320 of the Constitution of India provides for the following functions of the Union Public Service Commission and State Public Service Commission.

• The first and foremost function of Union Public Service Commission and State Public Service Commission is to appoint in administrative services the meritorious and potential candidates after selecting them through competitive examinations at All India and State level respectively.
• Secondly for any service for which candidates should possess special qualifications, the function of U.P.S.C. and S.P.S.C. is to assist the legislature in framing and operating schemes of joint recruitment.
• Union Public Service Commission and State Public Service Commission advise the President and the Governor respectively, on every matter relating to methods of recruitment to civil services and for civil posts.
• U.P.S.C. and S.P.S.C. lay down principles to be followed 
  • in making appointments to the posts of civil servants;
  • in making promotions and transfers from one service to another;
  • for checking the suitability of candidates for such appointments promotions or transfers.
• Another function of U.P.S.C. and S.P.S.C. is to look at all disciplinary matters affecting a person serving in a civil capacity under the Government of India or the Government of a State. It may also include memorials or petitions relating to such matter.

Other Functions of U.P.S.C. and S.P.S.C.

There are other functions as well to be performed by the U.P.S.C. and the S.P.S.C. These are:

• To conduct examinations for appointment to the services of the Union and the State and conduct interviews for direct recruitment of Candidates.
• To advise on the matters that are referred to them and on matters which the President or the Governor may refer to the appropriate commission.
• Exercise any additional functions bestowed upon the Commission by an Act of Parliament or State legislature regarding the services of the Union or the State and also with respect to the services of any local authority constituted by law.
• It will be the duty of the Union Public Service Commission to provide assistance if in any case, it is requested by two or more states, to assist them in framing and operating schemes of joint recruitment for any service of the states.
• It is compulsory for the Government of India and the State legislature to consult the Union Public Service Commission and State Public Service Commission respectively, in respect of all the matters stated above. But the President has the powers to make rules, specifying the general or particular circumstances where the commission may not be consulted. For example, according to the Union Public Service Commission (exemption from consultation) regulations framed by the President in 1958, it is not mandatory for the President to consult the U.P.S.C. in the following cases.
  • Posts in respect of which the authority of appointment, has specifically been conferred by the constitution in the President, Chairman of members of any Board, Tribunal Commission, Committee or any other similar authority, created under a statute or under the authority of a resolution of either Houses of the Parliament or by a resolution of the government of India for conducting an enquiry into any matter or advising the government of specified matters.
  • Posts concerned with the administration of North-East Frontier Agency and any service or post in respect of which the commission has agreed that it is not necessary for it to be consulted. The temporary and officiating appointments can also be made without consulting the U.P.S.C. provided the incumbent is not likely to hold the post for more than a year. But intimation has to be sent to the commission regarding such appointment as soon as the posts are filled. Similarly, there is no need to make any reference to the commission regarding the reservation of posts in favour of backward classes, Scheduled Castes, Schedule Tribes.

Independence of U.P.S.C. and S.P.S.C.

The Constitution mandates for the following provisions to safeguard and ensure the independent and impartial functioning of the Union Public Service Commission and State Public Service Commission:

• The chairman or a member of the U.P.S.C. or S.P.S.C. can be removed from office by the President only in the manner and on the grounds mentioned in the Constitution. Thus, they enjoy the security of tenure.
• Article 318 mandates that the conditions of service of the chairman or the members of U.P.S.C. and S.P.S.C. are determined by the President and the Governor respectively. But these conditions of service cannot be varied to their disadvantage after their appointment.
• The entire expenses including the salaries, allowances, and pensions of the Chairman and members of the U.P.S.C. and S.P.S.C. are charged on the Consolidated Fund of India and the Consolidated Fund of State respectively and are not subject to the vote of Parliament in case of U.P.S.C. or the legislative assembly of the state in case of S.P.S.C.
• Article 319 states that the chairman of the U.P.S.C. on ceasing to hold office is not eligible for further employment in the Government of India or any state. Whereas the chairman of S.P.S.C. can be made the chairman of either U.P.S.C. or any other S.P.S.C. 
• Article 319 also states that a member of the U.P.S.C. is eligible for appointment as the Chairman of U.P.S.C. or a State Public Service Commission but not for any other employment in the Government of India or any state. Whereas a member of S.P.S.C. is eligible to be appointed as the Chairman or a member of the U.P.S.C. or as the chairman of the same S.P.S.C. or member or chairman of any other S.P.S.C. 
• The chairman or a member of U.P.S.C. and S.P.S.C. is not eligible for reappointment to that office for a second term.

Removal of members 

Article 317 says that the members of both public service commission can be removed by the President before the expiry of their term if any of the following four circumstances exist:

• The member of the commission goes bankrupt(insolvent).
• The member of the commission engages in any paid employment outside the official duties.
• The member of the commission becomes mentally or bodily infirm.
• For misbehaviour on the part of the member of the commission. 

In cases of misbehaviour, the matter is enquired by the Supreme Court, if the member is found guilty, the President can remove him/her from his membership of the commission. The decision of the Supreme Court is binding on the President in such matters.

The President can suspend the members of the Union Public Service Commission during the period when the matter is being inquired by the Supreme Court. Whereas in the case of the State Public Service Commission, this power to suspend the member is vested in the Governor of the State. 

Difference between U.P.S.C. and S.P.S.C.

Though many provisions regarding powers and functions of U.P.S.C. and S.P.S.C. overlap, there are still certain differences that distinguish both of them. The following table discusses the difference between U.P.S.C. and S.P.S.C.

Concept of J.S.P.S.C.

The abbreviation J.S.P.S.C. stands for Joint State Public Service Commission. The Government of India Act, 1935 for the first time provided for the Joint State Public Service Commission for recruitment in two or more Provinces. This type of commissions is formed when two or more States request for the assistance of Union Public Service Commission in conducting a joint exam for recruitment to services in all these states. Constitution of India has made provisions regarding the establishment of the Joint State Public Service Commission for two or more states. For example, Haryana had a J.S.P.S.C for a short period at the time of bifurcation of Punjab and Haryana. While the U.P.S.C. and the S.P.S.C. are directly created by the Constitution, J.S.P.S.C. is created by the act of parliament at the request of the concerned state legislatures, and thus it is a Statutory body. The following are the features of a J.S.P.S.C.:

• Chairman and member of J.S.P.S.C. are appointed by the President. 
• The tenure of the members of J.S.P.S.C. is of six-year or until they attain an age of 62 years, whichever is earlier. 
• They can be removed or suspended by President and they can directly submit their resignation to the president. 
• The terms and conditions of their office are determined by the President.
• The number of members in the Commission is decided by the President.
• J.S.P.S.C. presents its annual performance report to each of the concerned state governors, who place the report further before their respective state legislatures.
• U.P.S.C. can also serve the needs of a state on the request of the state governors and with the approval of the President.

Conclusion

The Public Service Commissions form a basic structure that ensures and protects the meritorious nature of the Indian civil services. However, there could be some changes and reforms to modify these commissions to work more efficiently. Some reforms that can be brought about are: 

• Commission to serve as a think-tank on personnel issues: The commissions should go beyond the role of recruiting candidates in answering the issues relating to civil services and their role in a rapidly changing society.
• Involvement of Research Institutes and Universities in the functioning of U.P.S.C. and S.P.S.C.: U.P.S.C. and S.P.S.C. should associate with advanced institutions to conduct specially designed courses for administration and to keep the services in touch with new developments in technology and knowledge.
• The need for Decentralisation: The U.P.S.C. and S.P.S.C. are often burdened with a huge workload and they also receive and manage applications that are million in numbers. Such a huge workload often leads to depreciating the efficiency of the organisation. Hence, it becomes utmost necessary to decentralize the functions of these commissions, so as to make them work at a greater pace.
• Keep in sync with changing times: U.P.S.C. and S.P.S.C. so far have worked with remarkable competence, impartiality and integrity. However, a new world based on openness, accountability and delivery has emerged and U.P.S.C. and S.P.S.C. need to be in sync with these changes.

It is undoubted that our Public Service Commissions have performed their role with utmost efficiency and will continue to perform them at a much higher level of proficiency if such reforms are introduced. 

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 Everything important you should know about U.P.S.C. and S.P.S.C. appeared first on iPleaders.