This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. This article discusses the history, objectives, principal organs and the purposes and principles of the United Nations.

Introduction

“In many respects, the world is shifting beneath our feet. Yet the Charter remains a firm foundation for shared progress.”

-Ban Ki-Moon

In 1945, after the event of World War II causing irreparable damage to many nations of the world, it was a time where the world wanted peace. In the same year, 51 countries met at a conference held in San Francisco to sign a document which was the United Nations Charter founding the United Nations Organization (UNO). The United Nations Organization headquartered in San Francisco was created for the purpose of maintaining international peace and security. Presently, there are 193 member states in the UNO.

History of the United Nation

The Atlantic Charter (1941)

After the failure of the League of Nations and when World War II started, a dire need for a new organization for promoting international peace was felt. The Atlantic Charter was a Joint Declaration issued by two leaders American President Roosevelt and British Prime Minister Churchill in 1941. Initially, the word ‘United Nations’ was used by President Roosevelt and it indicated the countries that are allied against Germany, Japan, and Italy. On 1st January 1942, 26 nations signed the Declaration at Washington DC stressing their adherence to the principles of the Atlantic Charter.

Dumbarton Oaks Proposal (1944-1945)

A meeting was held at Dumbarton Oaks for the formation of the United Nations, where the principles of the organization were laid down. On 7th October 1944, a proposal was submitted by the Big Four (China, Great Britain, USSR, and the United States) regarding the structure of the world organization to all the UN Governments. But, there was still disagreement on the question of voting in the Security Council. For this purpose, Roosevelt, Churchill, and Stalin met at a conference at Yalta and on 11th February 1945 announced that the question was resolved and summoned the San Francisco Conference.

On the 25th of April 1945, the leaders gathered at the San Francisco Conference (United Nations Conference on International Organization) to determine the final structure of the United Nations Charter. On 24th October 1945, the 5 permanent members and other signatory nations ratified the official UN Charter.

Principal organs of the United Nations

The united nations have six principal organs that were established when the United Nations was founded. The Principal organs are:

General Assembly

The United Nations General Assembly (UNGA) is headquartered in New York and all the member states of the United Nations have equal representation. The member states gather to discuss various issues relating to international law, security, peace, etc

Security Council

The Security Council has the responsibility to maintain international peace and security whenever peace is threatened. It constitutes 15 members, having one vote each and a residency rotating and changing every month.

Economic and Social Council (ECOSOC)

The ECOSOC promotes sustainable development with regard to economic, social and environmental matters. It comprises of 54 members that are elected by the General Assembly.

Trusteeship Council

the Trusteeship Council is dealt with under Chapter XII of the UN Charter. It was established in order to supervise the 11 Trust Territories that were placed under the administration of 7 member states. The Council suspended its activities in the year 1994. All territories are now independent.

The International Court of Justice (ICJ)

The International Court of Justice (also called the world’s court) established by the United Nations Charter in the year 1945. The ICJ is the principal judicial organ of the United Nations having its headquarters at Hague, Netherland being the only organ among the six organs of the UN to be not situated in New York (USA). It consists of a panel of 15 judges for a term of nine years. The judges are elected by the General Assembly and the Security Council. ICJ succeeded the Permanent Court of International Justice. It resolves disputes between the member states of the UN.

United Nations Secretariat

The UN Secretariat comprises of a Secretary-General who is appointed by the General Assembly on the Security Council’s recommendation. Other members of the Secretariat are appointed by the Secretary-General as per the regulations of the General Assembly. The Secretariat carries out the day to day work of the UN such as preparing the report, making analysis, research, etc that the General Assembly and other principal organs have mandated.

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The United Nations Charter

While drafting the Charter of the United Nations, the experiences and practices of the League of Nations were mostly relied upon. The UN Charter is a document that sets forth the principles to be followed by the organization and its members.

Purposes and Principle

Chapter I of the Charter lays down the purposes and principles of the United Nations.

Article 1 of the UN Charter

Article 1 of the 1 UN Charter talks about the purposes of the United Nations. They are:

Maintaining international peace and security;
Developing friendly relations amongst the nations;
Achieving international cooperation to solve international issues of social, economic, cultural or humanitarian nature;
Being a centre to harmonize the actions of the state to accomplish these common goals.

The main objective of these purposes was binding the organization and its members to coordinate their activities in order to accomplish these common goals.

Article 2 of the UN Charter

Article 2 talks about the principles of the United Nations. These principles are:

Ensuring sovereign equality of all its members. This rule implies that all the members of the UN have equal representation.
All the members of the UN are required to fulfil in good faith the obligations assumed by them in accordance with the Charter.
All the members of the UN are obliged to settle their disputes by peaceful and amicable means in such a manner as to not endanger or jeopardize international peace, security, and justice.
All the members of the UN are required to desist from giving treats or using force over and against any states’ territorial integrity or political independence.
All the members of the UN are required to abstain from helping or assisting any state against which the UN is taking preventive actions or enforcement actions.
Ensuring that non-members do not act inconsistently with the Charter. This rule empowers the United Nations in order to maintain peace and security to enforce obligation in the non-members of the state. Further, a non-member state as per Article 35(2) is empowered to bring any dispute before the General Assembly or the Security Council.
Non-interference of the United Nations in matters relating to the domestic jurisdiction of any state. This rule mandates the United Nations not to interfere where the matter is solely of domestic jurisdiction of a state.

Nicaragua v. the United States

In this case, Nicaragua alleged that the United States carried illegal military and paramilitary operations against Nicaragua by supporting and assisting the Contras causing an extensive loss of lives by attacking its mining ports, naval base, air space, etc. It was also alleged that certain attacks were done not by the Contras but by the United States itself.

The claims of Nicaragua was that

the United States has violated Article 2(4) of the Charter of the United Nations to ‘refrain from threat and use of force’ and has breached the customary international law obligation.
The actions of the United States amounted to an interference with the internal affairs of Nicaragua.

The ICJ, in this case, held that the United States has violated international law by involving itself in the unlawful use of force against Nicaragua.

Article 51 of the UN Charter: Maintenance of peace

Article 51 empowers the United Nations Security Councils to take measures regarding the maintenance of peace and security. Article 51 provides that the member states have an inherent right of self-defence (individually or collectively) to defend any armed attack against a member of the UN. A member state has to immediately report to the Security Council if it has taken any measures for the exercise of its self-defence.

It further provides that the Security Council’s authority and responsibility can not be affected to take any action that is necessary for the restoration and maintenance of international peace and security.

Article 13(1) of the UN Charter

Article 13(1) empowers the General Assembly to initiate studies and make recommendations to:

Promote international cooperation in the political, social, cultural, educational, economic, and health fields.
Encourage progressive development of international law and codification of international laws.
Assist in the realization of Human Rights and fundamental freedom for all.
Non-discrimination on the basis of race, sex, language, religion.

Article 24, 25 and 26 of the UN Charter

Chapter V of the UN Charter deals with the functions and power of the Security Council under Article 24 and 25 of the Charter.

Article 24 states that:

The members of the United Nations confers a primary responsibility upon the Security Council of maintaining peace and security for ensuring a prompt and effective action by the UN.
The Security Council while discharging these duties is obliged to act in accordance with the purpose and principles of the UN.
The Security Council is required to submit to the General Assembly the annual and special report for its consideration.

Article 25 makes the members of the United Nations accept and carry out the decisions of the Security Council in accordance with the Charter”.

Under Article 26 the Security Council with the aid and assistance of the Military Staff Committee is responsible to formulate plans that are to be submitted to the members for establishing a system for regulation of armaments. Further, the security council is required to do so with the slightest diversion for armaments of human and economic resources of the world.

United Nations General Assembly resolutions (UNGA)

All the members of the United Nations are required to vote on a resolution relating to issues of poverty, development, peace, and security, etc in the General Assembly of the United Nations. Generally, a simple majority vote (50%+1) is required. In case if the General Assembly is of the view that a certain issue is an important question (pertaining to matters of international peace and security) then it requires a 2/3rd majority. Some important resolutions of the General Assembly:

Resolution 3314: Definition of Aggression

The UNGA on 14th December 1974 adopted this resolution which provided for the definition of aggression. The definition as per Article 1 states that “ aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”

Resolution 31/72: Environmental Modification Convention (ENMOD)

The Convention bars the use of military or other environmental modification techniques that have destructive, long-lasting or severe effects. The definition of Environment Modification Techniques as provided under the treaty is “any technique for changing- through the deliberate manipulation of natural processes- the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere, and atmosphere, or of outer space.”

Resolution 194: Right of return for Palestinian refugees

The UNGA on 11 December 1948 adopted this resolution after the Arab-Israeli war of 1948 regarding the return of the Palestinian refugees. Article 11 of the resolution permitted the return of those refugees who wished to return to their homes and live at peace with their neighbours at the earliest practicable date. It also provided the Government or the authorities responsible should make payment of compensation to those who chose not to return for the loss or damage of property.

Conclusion

The United Nations was formed with the motive to find ways to maintain worldwide peace. Since its inception, it has been helping nations deal with the economics, social and humanitarian issues, protecting refugees promoting sustainable development and more.

References

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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 discusses the importance of the United Nations in the current time and the role it assumes while dealing with international concerns.

Introduction

The United Nations is an International organization, concerned with global issues and having a primary objective of maintaining peace and security, cooperation and maintaining friendly relations among the nations. When the League of Nations failed and World War II ended, the United Nations Organization was formed. The United Nations was originally founded by 51 countries at the San Francisco Conference and officially came into existence on 24th October 1945. At present, there are 193 members of the United Nations.

The UN works through its six principal organs- the General Assembly, the Security Council, the Trusteeship Council, the Economic and Social Council, the International Court of Justice, and the Secretariat. In order to ensure that the principles of the UN charter are being followed, each of these organs is vested with a specific role and responsibility that they adhere to. Chapter 1 of the UN Charter mentions the purposes and principles of the United Nations.

All the member states of the UN are also obliged to follow the principles laid down in the UN Charter. Since its inception, this international organization has been making efforts to prevent conflict and creating conditions that help nations in maintaining tranquillity.

What does the UN do?

The UN performs five main functions

Maintaining peace and security: The UN was founded with the mission of maintenance of peace and security does so by preventing conflicts in the first place.
Protection of Human Rights: Protecting human rights has been the key purpose of UN, the Preamble and Article 1(3) of the UN Charter provides that the UN shall protect the human rights of all.
Provide humanitarian aid: UN provides humanitarian relief operations in areas that are beyond the capacity of the national authority alone. The Office for the Coordination of Humanitarian Affairs (OCHA) is vested with the responsibility to coordinate responses to emergencies.
Upholds International Law. This has been an essential part of the working of the UN organization. The UN Charter is an instrument of International Law and all the member states are bound by it.
Promoting sustainable development: Sustainable development ensures improvement in the quality of life of people. The main focus of the UN is to bring social, economic and environmental development in the world.

Why the UN is needed?

The United Nations along with its specialized agencies assumes a significant job in keeping up harmony and security of the world nations. The UN specialized agencies like the Food and Agriculture Organization (FAO), UNICEF, World Health Organization, etc have done noteworthy work in the growth and development of the developed and developing countries. The UN and its Members are continuously taking effective measures for tackling global challenges of the present times. It is a stage that provides a forum for discussion for the members to come to a common understanding.

The President of the UNGA, Maria Fernanda Espinosa Garces in the 73rd session of the UN General Assembly has emphasised the need for humanitarian assistance and funding to curb the critical challenges that the world is facing in contemporary times.

She stated that the multilateral approach that the UN has is essential for the building and maintenance of peace and security and as a President of the UN General Assembly she intends to strengthen the approach of the UN in dealing with these critical issues. In this context, she also discussed the tremendous challenges that are faced by the international community and the role played by the UN. To state a few in regard to the issues of environment and climate change leading to the displacement of millions of people:

2.8 million people in South Asia have suffered because of weather-related displacement.
Forceful displacement of 68.5 Million people, most affected being the developing nations.

She told that dialogue, negotiation, and international cooperation gives the most reasonable platform for discussion and reaching agreements of a common understanding. She also emphasized that dialogue and concerted efforts have led to exceptional gains by the international community in development, maintaining peace and security.

To quote Garces, “the international community, through dialogue and concerted efforts, has made remarkable gains in peacekeeping, peacebuilding, human rights, women peace, and security, youth peace, and security and climate change. Both the Paris Agreement on climate change and Agenda 2030’s Sustainable Development Goals stand as a testament to what the world can deliver when called upon to do so. We need more of this, not less.”

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Specialized Agencies of the UN and their role

Some important specialized agencies of the UN have been discussed below:

United Nations Development Programme (UNDP)

UNDP works to achieve Sustainable Development Goals and is funded by voluntary contributions of the member-states. Presently it is operating in 177 countries. UNDP helps in:

Eradicating poverty and improving the quality of life for all;
Reducing inequalities;
Reducing the risk of crisis and promotes recovery after the crisis is over;
Builds resilience in order to make countries sustain progress;
Advances sustainable development growth;
Reducing environmental degradation.

Impact made UNDP

31 million people have better access to services to tackle poverty
20 million people have gained access to financial services
There has been a cut 256 million tonnes of carbon emission

2. United Nations Environment Programme (UNEP)

UNEP coordinates environmental activities and strengthens environmental standards. Main functions performed by UNEP are:

It enables the nations in improving their quality of life by encouraging them to participate in caring for the environment;
It mainly facilitates the management and restoration of the ecosystem;
supporting the governments in establishing and implementing necessary laws, policies, and programs for achieving sustainable development at the nation and country-level;
It aims to minimize the harmful impact of hazardous waste on humans and the environment.
It aims to produce, process and use natural resources in an environmental-friendly way.

3. United Nations Children’s Fund (UNICEF)

UNICEF was established in 1946 and is currently working in 190 countries with the objective of providing every child with a healthy environment and ensuring their education so that they reach their full potential. It is responsible for:

Providing development aid to children around the globe;
To save children’s lives around the world;
To ensure the safety of children from exploitation, abuse and violence;
Protecting the rights of migrants and displaced children;
Protecting the rights of disabled children and ensuring that they do not face discrimination.

4. Food and Agriculture Organization (FAO)

The FAO is currently operating in 130 countries and was formed with the objective to fight hunger. The primary functions of FAO are :

Eliminating hunger;
Ensuring nutrition and food security;
Ensuring that high-quality food is accessible to all;
Ensuring that agriculture is made more productive, sustainable and enable an efficient agricultural system;
Sustaining natural resources.

5. World Health Organization (WHO)

The WHO focuses mainly on international public health and nutrition-related issues. Its main functions are:

To attain the highest possible level of health for all.
To protect people from health emergencies;
Provide access to essential medicines;
Detecting and responding to acute health emergencies;
Monitoring health situations.

Recently WHO has declared a public health emergency of international concern on the outbreak of coronavirus.

6. International Monetary Fund (IMF)

The International Monetary Fund was founded in 1944 and has 189 countries as its members. It focuses on providing financial stability to nations and monitors the policies of the member states through the system of Surveillance. The IMF carries out functions necessary to:

To ensure worldwide economic growth;
To ensure financial stability by providing loans to countries that are facing financial problems;
To encourage global trade;
To reduce global poverty;
To provide technical assistance to the member countries for building a better economic institution.

Currently, the IMF has $28 billion in outstanding loans to 74 countries.

Whether India should get a permanent seat in the UN Security Council?

India joined the United Nations in 1945, two years before its independence under British rule and had also taken an active part in the drafting and preparing the Universal Declaration on Human Rights. Presently there are 5 permanent members in the UN Security Council i.e., the United States, United Kingdom, China, France, and Russia.

In the past, four nations of these five permanent members, except China have supported India to become a permanent member of the UN Security Council. Around July 2011 China expressed its support to India by becoming a member of the UNSC provided ‘India did not associate its bid with Japan’.

Germany’s ambassador to India Walter J Linder expressed that India is having a population of 1.4 billion and still it is not a permanent member of the UN Security Council. This hurts the credibility of the UN system. India must become a permanent member of the Security Council. France also expressed a similar view, French envoy to the UN said that “India is absolutely needed as a permanent member of the UN Security Council to better reflect contemporary realities.”

Reasons why India Deserve a permanent seat in the UN Security Council

India is the second-most populous country in the world with a current population of 1.5 billion. It is the largest democratic and secular nation in the world.
After China, India has the largest active armed forces in the world and is a nuclear-weapon country.
India is the 2nd fastest growing economy in the world and in terms of PPP, India is the third-largest in the world.
India has made the largest troop contributions to the United Nations Peacekeeping Mission (UNPKO). Today, India has over 5000 peacekeepers deployed in the field. So far, more than 2 lakh Indian troops have served in UNPKO. India has lost the highest number of peacekeepers who had given their lives amongst the countries who have sent their troops for the UNPKO i.e., 164 and has taken part in 46 Peacekeeping missions.
The UN Security Council consists of 15 members (5 permanent, 10 non-permanent) and India has been elected seven times as a non-permanent member in the UN Security Council.

Conclusion

From the above article, it may be concluded that the United Nations is as relevant in the present time as it was at the point when it was established. It is the only organization to have universal membership. 70 years ago UN was created with a vision to make the world a better place than what was before it (UN) was established.

We do not want to live in a world where military capacity is the only way of protection against aggression. Nations around the globe need an organization that is devoted to the worldwide harmony and wellbeing of people and where important international concerns can be discussed. Still, there are economic, social, gender inequality, poverty and many more challenges in the world that need to be addressed for the purpose of international cooperation which is indispensable.

The UN since its inception is actively working in this regard for maintaining peace, ensuring development, and cooperation among nations and has devised various initiatives to prevent conflict. From many years arguments criticizing the ideology, policy, and administration are being raised. Rather than questioning the existence of the United Nations, the focus should be on the solution of international issues. No doubt, United Nations is very much relevant and hence, it has been rightly said that “if the United Nations did not exist, then we would have to invent it, so why not use our analytical toolkits to repair it”.

References

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This article has been written by Avni Sharma, a 2nd-year student at National Law University, Odisha. The article talks about the various laws in India regarding freedom of speech and expression.

Introduction

Freedom of speech and expression is guaranteed to us by the Constitution of India as a fundamental right. The real question is are we provided with the guarantees. The laws provide all the theoretical rights, however, the theoretical rights do not necessarily provide all the guarantees. International Covenant on Civil and Political Rights along with all the other international treaties guarantee freedom of speech and expression.

However, there is a subtle exception, the protection of national security. National Security is a term which can be used in such a wide sense that it can be interpreted in seven hundred different ways to the advantage of the parties. National Security can be hampered by any circumstances. Any action might bring a threat to national security whether it is posting articles or pictures on social media or coming to the streets for protests. Let me mention what to expect out of this article. This article is an account of laws and cases which can or cannot be used to restrict freedom of speech and expression.

Importance of criticism in a democracy

The importance of criticism cannot be stressed enough in a society such as ours, because of the diverse conditions we live and the laws that we are bound by. The society before civilization had no system that would conduct the behaviour of human beings. But as society progressed there were slight improvements in the way people behaved.

Finally, society evolved by something known as a Social Contract Theory. The theory legitimized the control of the ruling power over any individual. It propounded that certain freedoms may be surrendered by the citizens in exchange for the assurance of protection against evils and some basic rights for healthy survival. The citizens had surrendered their freedom in return for the expectation of certain rights which would ensure their survival with dignity. Therefore, when it comes to talking about the guarantee of basic rights such as the right to speak and criticize freely, the social contract theory comes into question.

In a country such as ours, the freedom of speech and expression must be granted with very limited barriers because it forms the basis for our fourth pillar of democracy, which is the media. Media forms the most important bridge between the public and the government. It acts as a translator of expression between the public and the government.

Expressions may include all kinds of appreciation, suggestions and criticism. Among these, criticism is the expression that must reach the government in order to bring a change in policies if it is not suitable for the public. Even Prime Minister Narendra Modi has emphasized that criticism is the key to democracy. Therefore, being a part of a system which gives respect to public opinion, we must grant the citizens to criticize freely.

Media and its rights

On the matter of the freedom of speech and expression, the First Press Commission in its report said, “This freedom is stated in wide terms and includes not only freedom of speech which manifests itself by oral utterances, but freedom of expression, whether such expression is communicated by written word or printed matter. Thus, freedom of the press, particularly of newspapers and periodicals, is a species of which the freedom of expression is a genus.

Therefore, there is no doubt that freedom of the press is included in the fundamental right of freedom of expression guaranteed to the citizens under Article 19(1)(a) of the Indian Constitution.” Justice Mudholkar had ruled that censorship on the press results in indirect curbing freedom of speech and expression.

However, there are reasonable restrictions imposed on the media. Some opine that our constitution is paradoxical as it grants rights on one hand and takes them away in the form of exceptions and provisions. But, it is certain that there are certain factors that come into play when we talk about freedoms and rights guaranteed. The factors which play a crucial role in imposing reasonable restrictions on are:

Security of the country;
Friendly relations with the countries;
Public order;
Decency and morality;
Contempt of court;
Defamation;
Incitement to an offence;
The integrity of the country;
Contempt of the legislature.

Despite all these reasonable restrictions, the media possesses unlimited power to influence both sides that is the government and the citizens.

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Misuse of media power

With great power, comes great responsibility. The responsibility of circulating original and reliable content lies on the editors and publishers as the public relies heavily on the information provided by the media. A piece of simple news about a sensitive issue, which is unnecessary and unreal can lead to massive uninvited unrest in the country which results in loss of credibility of the authorities. There have been cases where the media has misused the great power that is conferred with it.

The media has the power to even enrage the public against something which is fabricated with false facts. Public order largely depends on the kind of content that is posted by the media. The media handles this responsibility with great caution, in most circumstances. The laws which reasonably restrict the freedom of speech helps in maintaining the circulation of genuine content in the country.

Development of fake news in the media

Fake news contains information that is contaminated by different sources for political and economic interests. Social media also plays a major role in this scenario because it is very easy for the people who spread such news as the determination of the source of the information is very difficult. With the advent of technology, the generation of fake news has become all the more convenient. Such news impacts the ideologies and thinking patterns of the general public.

For example, if there is a piece of fake news about a certain political leader that affects the race he belongs to, there can be an outrage in the public because of the content put up by the media houses. There are different sources who spread fake news, such as political parties, business houses and international enemies, etc. it happens often that the presence of fake news leads to scepticism in the public.

This, in turn, leads to people having no trust in the media. With the advent of such instruments, the legislative authorities get bound to create rules and regulations regarding restricting freedom of speech and expression. But, how far is such a restriction reasonable? This has been adjudged in a variety of cases, most prominently being, Kedarnath v State of Bihar (Kedarnath judgment, henceforth).

Freedom of speech and expression: Sedition and Defamation Laws

Section 124 of the Indian Penal Code, states that anyone who incites or attempts to incite disaffection against the government shall be held liable for the act of sedition. Now, the catch here is, that any speech which is critical of the government’s policies may also be included in the ambit of the offence of Sedition if it is widely interpreted. This results in the infringement of the right to freedom of speech and expression.

While talking about freedom of speech and expression, the most important pronouncement by the court, in India was in the Kedarnath Judgment. The Supreme Court affirmed that Sedition is a criminal offence as it is dangerous for national security.

Section 499 of the Indian Penal Code which states about Defamation which prevents publication of any representation which may injure the reputation of a person in the eyes of a reasonable person. This provision can also result in frivolous prosecution against anyone as the injury to respect ends up being a very subjective factor. So, since any person can find anything offensive and injurious to reputation, it is dangerous for freedom of speech and expression.

The question arises whether they are even required in the Indian penal system. There are different arguments attached to their constitutionality and unconstitutionality. There is numerous jurisdiction including that of Great Britain which have held the provisions unconstitutional and unnecessary. However, it shall be noted that the Indian Courts have repeatedly re-affirmed the constitutionality and necessity of these provisions.

International conventions and their standing

International law mentions several guidelines, rules and directives which suggest that there must be no unnecessary restrictions on freedom of speech and expression. Treaties and conventions such as the International Covenant on Civil and Political Rights, European Court of Human Rights and American Court of Human Rights among others, have provisions that specify rights about freedom of speech and expression. The various provisions of conventions are given below:

International Covenant on Civil and Political Rights (ICCPR)

Article 19 of the ICCPR states about the freedom of speech and expression, very similar to Article 19 of the Universal Declaration of Human Rights (UDHR). The Covenant on civil and political rights states:

Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may, therefore, be subject to certain restrictions, but these shall and are necessary:

For respect of the rights or reputations of others;
For the protection of national security or of public order (ordre public), or of public health or morals.

It is worth noting that the court has mentioned certain reasonable restrictions in Article 19(3). So, it is clear that the international community also realizes the importance of reasonable restrictions.

European Court of Human Rights (ECHR)

Freedom of expression is also protected under Article 10 of ECHR, it states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and to impart information and ideas without interference by public authority regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with its duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Sedition laws

Sedition laws have been a matter of discussion for a very long time now. While some suspect archaic application of Colonial law that it is excessively important for the security of the state. We are already aware that the law has been upheld in numerous judgments but let us have a look at the arguments against the law.

The citizens of a country require respect from the government. That right also includes placing trust in the citizens. Provisions like these often display that the colonial laws have not been revised to suit the situation of modern times. The citizens of today require the freedom to speak freely and criticize anything that seems off track.

The presence of such provisions will lead to a restriction on freedom of speech and expression. The expression in recent times happens through social media which runs with the help of the internet. In order to curb the incitement of any offence, the government recently posed a ban on internet services in various parts of the country. Let us have a look at whether the government can even do such a thing.

Anuradha Bhasin v. Union of India: Can the government impose an internet shutdown?

The government had put a blanket ban on the internet in various parts of India. The court, in the case of Anuradha Bhasin v Union of India, adjudged whether such a ban can be imposed or not.

The facts of the case were that all the internet activity was blocked in the areas of Jammu and Kashmir. All communication including landlines were blocked in the name of Internet security. The court has now affirmed such a blanket ban is not acceptable. Section 144, CrPC cannot be imposed until there is a public emergency in the area. There must be a prior inquiry before issuing any order regarding that.

Conclusion

The courts have started to recognize the importance of freedom of speech and expression in the country but there is still a long way to go for India and its scope of freedom of speech and expression. A substantial change will come only if the courts have a broad interpretation of the meaning of freedom of speech and expression.

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This article has been written by Avni Sharma, from National Law University Odisha. The article talks about the extended jurisprudence of Right to life and Right to livelihood.

Introduction

“Article 21 is the procedural Magna Carta protective of life and liberty.”

-Iyer, J.

Human dignity is the essence of all the rights and liberties created by the constitution-makers. Article 21 stands as a shield against the threat to life and personal liberty. It is important to note that Article 21 has been under scrutiny by various courts of law in the country. It encompasses countless rights which can be indicative of the fact that the ambit of Article 21 will be arduous to restrict.

The courts, through continuous jurisprudence, has interpreted the Article in numerous ways. Some of these aspects include the right to livelihood and the right to live with dignity. The presented article encloses Article 21 and its evolution through continuous jurisprudential interpretation.

The Quintessence of Right to Life

In the initial phase, the courts regarded Right to livelihood as exclusive to the right to life. But the view underwent modifications and the definition of the word ‘life’ started to be taken as broad and expansive. Right to livelihood started to be taken into account after the Board of trustees case.

The case explicitly enunciated that ‘life’ does not merely presage animal existence or continued drudgery through life. Where the outcome of a departmental inquiry is likely to affect the reputation or livelihood of a person, some of the final graces of human civilization which make life worth living would be jeopardized and the same can be put in jeopardy only by law which inheres fair procedures.

A grand step was taken by the court in expanding the scope of Article when it argued that ‘life’ in Article 21 does not mean merely ‘animal existence’ but living with ‘human dignity’. The court has thus given very extensive parameters to Article 21. As the Supreme Court has observed in Francis Coralie, it questioned the right to life and its limitation to only to the protection of limb or faculty.

The other question can be the extent of the right to life in terms of adequate nutrition, clothing, and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must include basic necessities of life and also the right to carry on such functions and activities as they constitute the bare minimum expression of the human self.

In Munn Vs. Illinois, Justice Field “By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg.”

Article 21 was also very evident in the Indian movement for the ‘Bandhua Mazdoor’ community. People used to be bought at minimal throwaway prices and were treated in inhumane ways. So, in another formulation of the theme of life with dignity is to be found in Bhandhua Mukti Morcha characterizing article 21 as the heart of the fundamental rights, the Court gave it an expanded interpretation- “to live with human dignity,” free from exploitation. It includes the protection of health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner.

In Chameli v State of Uttar Pradesh, the court moved further included the right to food, water, and a decent environment. The court observed a certain connection regarding an organized society that purports that right to live as a human being is not ensured by meeting only the animal needs of man.

It is secured only when he is assured of all facilities to develop himself and is freed from restrictions that inhibit his growth. All human rights are designed to achieve this objective. The right to guaranteed in any civilized society implies the right to food, water, healthy environment, medical care and shelter.

Suggestions through Directive Principles of State Policy

Article 39(a) suggests that citizens (men and women) shall have the right to an adequate means of livelihood. Thus, is indicative of the fact that the constitution-makers were aware of such a requirement and were ready to provide citizens with basic livelihood necessities.

Additionally, Article 39(e) suggests that the health and strength of workers and the tender age of children must not be abused. It can be concluded that Article 21 includes the right to life and right to livelihood and it was intended by our constitution makers but, due to lack of facilities available, were not able to provide adequate necessities.

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Right to Livelihood

Livelihood can include basic shelter, food, education, occupation and medical care. As discussed earlier, the court’s view kept on transforming with time. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation, popularly known as the “Pavement Dwellers Case” a five-judge bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood.

That the court, in this case, observed that: “The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not merely mean that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to the procedure established by law. That is but one aspect of the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”

If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.

In the instant case, the court further opined: “The state may not by affirmative action, be compelled to provide adequate means of livelihood or work to the citizens. But any person who is deprived of his right to livelihood except according to the just and fair procedure established by law can challenge the deprivation as offending the right to life conferred in Article 21.”

Emphasizing upon the close relationship of life and livelihood, the court stated in M. Paul Anthony v. Bihar Gold Mines Ltd., it was held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasized that a government servant does not use his right to life and other fundamental rights in this case.

However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.

The Court opined that the state acquires land in exercise of its power of eminent domain for a public purpose. The landowner is paid compensation in lieu of land, and therefore, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.

In M. J. Sivani v. State of Karnataka & Ors, the Supreme Court held that right to life under Article 21 does protect livelihood but added a rider that its deprivation cannot be extended too far or projected or stretched to the avocation, business or trade injurious to public interest or has insidious effect on public morals or public order. It was, therefore, held that regulation of video games or prohibition of some video games of pure chance or mixed chance and skill are not violative of Article 21 nor is the procedure unreasonable, unfair, or unjust.

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the right to shelter has been held to be a fundamental right which springs from the right to residence secured in Article 19(1)(e) and the right to life guaranteed by Article 21. To make the right meaning to the poor, the state has to provide facilities and opportunities to build houses.

“For the animal, it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home, particularly for people in India, can even be a mud-built thatched house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of Uttar Pradesh, a Bench of three Judges of Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful.

The Court observed that: “Shelter for a human being, therefore, is not mere protection of his life and limb. It is however where he has opportunities to grow physically, mentally, intellectually and spiritually. The right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads, etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but the right to all the infrastructure necessary to enable them to live and develop as a human being.”

Right to livelihood – Hawkers

Right to livelihood includes the right to the occupation which is often infringed by the demolition of hawkers.

In Sodan Singh v. New Delhi Municipal Committee, the five-judge bench of the Supreme Court distinguished the concept of life and liberty within Article 21 from the right to carry on any trade or business, a fundamental right conferred by Art. 19(1)(g) and held the right to carry on trade or business is not included in the concept of life and personal liberty. Article 21 is not attracted in the case of trade and business.

The petitioners, hawkers doing business off the paved roads in Delhi, had claimed that the refusal by the Municipal authorities to them to carry on the business of their livelihood amounted to the violation of their right under Article 21 of the Constitution. The court opined that while hawkers have a fundamental right under Article 19(1)(g) to carry on trade or business of their choice; they have no right to do so in a particular place. They cannot be permitted to carry on their trade on every road in the city. If the road is not wide enough to be conveniently accommodating the traffic on it, no hawking may be permitted at all or maybe permitted once a week.

Footpaths, streets or roads are public property and are intended to several general public and are not meant for private use. However, the court said that the affected persons could apply for relocation and the concerned authorities were to consider the representation and pass orders thereon. The two rights were too remote to be connected together.

The court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation wherein, the petitioners were very poor persons who had made pavements their homes existing in the midst of filth and squalor and that they had to stay on the pavement so that they could get odd jobs in the city. It was not the case of a business of selling articles after investing some capital.

Conclusion

The right to livelihood can have an extended meaning to it as it is the most crucial right when it comes to human life and dignity. The courts will keep on interpreting it in a plethora of ways and this will protect the people from the plight.

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This article is written by M.Anulekha, from Damodaram Sanjivayya National Law University. In this article, the author discusses the procedure of trial under the Civil Procedure Code with special reference on the adjournment, hearing of the suit, etc.

Introduction

The Indian constitution says that the nation will try to guarantee “Equality”, be it social, political and justice to its citizens”. This value of social, political and fiscal components is commonly suggested as the possibility of “Natural Justice”.

Binmore in his article ‘Characteristic Justice‘ discusses that “the Apex Court of the country has set down principles for all of the Courts to ensure reasonable ground during a genuine proceeding and that Courts while giving a judgment should secure decency, should act sensible in all propensities, should not be uneven at all and the choices must be passed as per some essential trustworthiness.

Moreover, the courts must give reasonable time to both the social occasions to respond to the authentic notice. They should also give a sensible and proportionate open entryway to present their case. “For regular equity, the procedural code of the country needs to embody the spirit of the sensible path or else the whole thought won’t have the alternative to take nearness. Encroachment of these norms is truly considered as the encroachment of Article 14 of the Constitution of India which includes the Right to Balance (Equity)”.

In the CPC, Order 41 Rule (2), (3) fights and shields the eagerness of an affirmation holder. It communicates that, before care is mentioned by the Court, it should ensure that there was no deceptive nature in mentioning such confinement. It ought to recollect that this guardianship was not allowed simply dependent on oversight. Thus, measures of ordinary value are kept up.

In the past, the Court expressed that “The standard of reasonable preliminary presently educates and empowers numerous regions of the law. It is reflected in various guidelines and practices. Reasonable preliminary clearly would mean a preliminary under the watchful eye of a fair-minded judge, a reasonable investigator and an environment of legal quiet. Reasonable principal strategies a starter wherein predisposition or bias possibly in support of the denounced, the observers, or the reason which is being attempted is eliminated.”

Truth be told, In a 2010 case, the Court held “the privilege to a free and sensible fundamental similarly as assessment concerning Article 21 of the Constitution, which accordingly guarantees ‘singular opportunity’ and has been meant to consolidate the sensibility of procedure which is to be used by a Court so as to ensure its consistency with the models of regular equity.” The two elements of Natural equity are:

Privilege to be known

The articulation ‘Audi alteram partem’ implies hear the contrary side too or hear the elective party also. This is a huge fixing in the possibility of customary value and free primer as this ensures a person’s privilege to be heard. The entirety of the Courts support letting both the social events heard as it ensures the reasonable idea of the Courts. Since it is such a critical component, it must be associated with the regular procedural laws and codes.

In the Code of Civil Procedure too, there are certain game plans which relate to the benefit of being heard in a freeway and in an unbiased way. Rule 13 of Order IX says that if the solicitation isn’t served properly or if sufficient explanation exists, the ex parte declaration should be spared. The advantage of such a standard is that both the social affairs of a case get an opportunity to show their side. And the disputes under the steady gaze of the Court and get a sensible starter as per the technique for the Court. This disregarding there being the nearness of an ex-parte directing.

Nobody will be a judge in his own case

Ignoring the manner in which that it may appear, apparently, to be so clear now with explicit Articles like 21 of the Indian Constitution which oversees sensible fundamental that such a fixing ought to be definite, it is of a critical sort that such a part isn’t neglected. The articulation ‘Nemo debet esse propria causa’ connotes “no one should be a judge in their own one of a kind inspiration”. Figuratively speaking, worth ought not exclusively to be done in any case ought to be seen that it is finished.

This benefit to an impartial hearing is consolidated under Section 100A of the CPC, by morals of which if any interest from a novel or insightful profession is heard and picked by a single judge of the High Court, he would have the chance to have a fixed and consistent inclination on the issues. His conclusion is saved from further favouritism because no further interest lies from such solicitation of such single judge.

Summoning and Attendance of Witnesses

Order XVI, Rules 1, 1-A, and 6

The major arrangement under Order XVI, Rules 1 and 1-A, C.P.C. is that after the Court traces issues and informs the get-together enabling them to make sense of what verification, oral and account, they should lead, a social affair can act either according to Rule 1 or Rule 2. Where the social event needs the assistance of the Court to verify closeness of an onlooker on being brought through the Court, it is obligatory on the get together to archive the overview with the pith of evidence of the eyewitness in Court as facilitated by sub-rule (1) of Rule 1 and make an application as given by sub-rule (2) of Rule 1.

Be that as it may, where the social event would be in a circumstance to convey its onlookers without the assistance of the Court. It can do all things considered under Rule 1-An of Order XVI free of the truth whether the name of such spectator is referenced in the once-over or not. The Court has no ward to diminish to take a gander at such eyewitnesses.

Sub-rule (3) of Rule 1 and Rule 1-A work in two unmistakable regions and consider two one of a kind conditions, and there is no internal conflict between the two. Sub-rule (3) of Rule 1 presents a logically expansive ward on the Court to oblige a condition where the get-together has neglected to name the observer in the quick overview yet then the social gathering can’t pass on the individual being alluded to with no other individual under Rule 1-An and in such a situation the get-together of need to search for the assistance of the Court under sub-rule (3) to procure the closeness of the onlooker.

An individual may moreover be assembled to convey a record without being brought to give confirmation and that individual will be respected to have consented to the sales on the off chance that he makes such document be made as opposed to going to in a little while to make the indistinguishable. (Solicitation XVI, Rule 6).

Adjournment

A putting off or deferring of procedures; a closure or rejection of further business by a Court, governing body, or open authority—either briefly or for all time.

In the event that an adjournment is conclusive, it is said to be sine kick the bucket, “without day” or without a period fixed to continue the work. A dismissal is not quite the same as a break, which is just a brief break in procedures.

In assemblies, adjournment formally denotes the finish of an ordinary session. Both state and government administrators vote to decide when to suspend. The careful planning relies on numerous elements, for example, outstanding burden, political decision plans, and the degree of comity among officials. Since a session can end with incomplete authoritative business, dismissal is generally utilized as methods for political influence in verifying or postponing activity on significant issues.

In the U.S. Congress, where the single yearly administrative session as a rule finishes in the fall, the President may call an intermission (adjournment) if the House and Senate can’t agree upon a date.

When adjournment can be granted and refused?

An officers’ Court (Magistrate Court) may defer the procedures whenever. The Court must adjust the interests of equity while thinking about any application for a dismissal. The Court can’t have immovable standards for the conceding or refusal of dismissals.

A case ought not to be dismissed on the grounds that common procedures are pending and might be biased. On the off chance that a deliberate observer neglects to go at the knowledge about the request, you should demand an intermission and make an application for an observer summons. You ought to likewise be in a situation to show that the observer vowed to visit.

At the point when a case is deferred, you should guarantee that you concur another consultation date with the Court and that the observers are told the new date. You ought to decide observer accessibility before consenting to another preliminary date.

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Inherent Power and Duty of Court

“Intrinsic” is a wide concept in itself. It recommends existing from something, a constant property or quality, a basic section, something trademark, or focal, vested in or joined to an individual or office as an advantage of advantage. Therefore, inborn forces are such powers which are fundamental from Courts and might be practised by a Court to do full and finish an incentive between the parties before it. Area 151 discussions about the inherent intensity of the Court.

Section 151 of the Civil Procedure Code

Sparing of standard forces of the code: Nothing in this code will be regarded to control or generally sway the basic forces of the Court to make such requests as might be major for the bits of the arrangements or to obstruct maltreatment of the strategy for the Court.

In the persistent decision of K.K. Velusamy v. N. Palaanisamy, the Hon’ble Supreme Court kept up that Section 151 of the Code sees the optional force secured by each Court as a significant conclusive outcome for rendering an incentive as indicated by law, to do what is ‘correct’ and fix what isn’t right’. The Court describes the level of Section 151 of the CPC as follows:

Section 151 is unquestionably not a substantive course of action which gives any force or ward on Courts. It just observes the optional power of each Court for rendering an incentive as indicated by law, to do what is ‘correct’ and fix what isn’t right’, ‘that is, to do everything basic to affirm the bits of the arrangements ruin maltreatment of its method.
The courses of action of the Code are not finished; Section 151 says that if the Code doesn’t unequivocally or impliedly spread a specific procedural point of view, the natural force can be utilized by the Court to manage such circumstances, to accomplish the bits of the arrangements, upon the substances and conditions of the case.
A Court has no capacity to do things which are declined by law or the Code, in the activity of its common forces. The Court can’t utilize the exceptional plans of Section 151 of the Code, where the fix or technique is unequivocally given in the Code.
The trademark forces of the Court being indispensable to the forces explicitly gave, a Court is allowed to practice them and the Court ought to practice it to such a degree, that it ought not to be fighting with what has been unequivocally given in the Code.
While practising the trademark power, there is no such complete going to manage those extraordinary states of the case everything considered the headway of force relies on the thought and smarts of the Court, what’s more upon the substances and conditions of the case. Subsequently, such an astounding condition should not, eventually, be treated as an authentic capacity to give any assistance.
The force under section151 should be utilized with care, precisely where it is completely major, when there is no strategy in the Code controlling the issue or when the bona fides of the up-and-comer can’t be tended to or when such exercise is to meet the bits of the arrangements to forestall maltreatment of philosophy of Court.

Adjournment Limit

The Court may, if a satisfactory explanation is showed up, at any period of the suit grant time to the social events, or to any of them, and may now and again, suspend the knowledge about the suit for motivations to be recorded as a hard copy.

Given that no deferment will be allowed multiple occasions to a gathering during the becoming aware of the suit.

Costs of Adjournment

In each such case, the Court will fix a day for the future hearings of the suit may make such request, as it thinks fit concerning the expenses occasioned by the interval:

When the thinking about the suit has begun, it will be continued regularly until all the eyewitnesses in cooperation have been dissected, with the exception of, if the Court finds that, for the great inspirations to be recorded by it, the suspension of the social occasion past the next day is basic.
No dismissal will be yielded in accordance with a social occasion, besides where the conditions are outside the capacity to control of that get-together.
The way wherein the pleader of a social event is occupied with another Court, won’t be a ground for delay.
Where the illness of a pleader or his inability to coordinate the case in any way at all.
The way wherein the leader of a social event is occupied with another Court, won’t be a ground for delay.
Where the illness of a pleader or his inability to coordinate the case in any way at all, other than his being busy with another Court, is progressed as a ground for a break. The Court won’t give the suspension aside from in the event that it is satisfied that the social occasion applying for delay couldn’t have attracted another pleader in time.
Where an observer (eyewitness) is available in Court, at any rate, a social event or his pleader is missing or the party or his pleader, in any case, present in Court, isn’t set up to look at or question the passerby, the Court may, on the off chance that it thinks fit, record the revelation of the observer (eyewitness) and pass such requests as it would conjecture fit shedding the evaluation in-chief or interrogation (cross-examination) of the spectator, everything considered, by the get-together or his pleader not present or not set up as recently referenced.

Failure to Appear

Certain conditions throughout your life may expect you to show up in Court. For instance, you may need to show up in court on the off chance that you:

Get a traffic ticket to perpetrate a wrongdoing,
Affirm as an observer in a legal dispute,
Sued by someone else in a claim, or called for jury obligation.

As a rule, the circumstance calls for you to show up in Court at a planned date and time.

For instance, in the event that you are given a traffic ticket, generally that ticket incorporates a “Court date,” which reveals to you when you are required to come to Court. If you miss your assigned Court date, at that point the Court accuses you of failure to appear in Court. This is viewed as a criminal offence that can bring about criminal accusations.

Hearing of the Suit

The offended party has the privilege to start except if the litigant concedes the realities affirmed by the offended party and fights that either in purpose of law or on some extra certainties asserted by the respondent the offended party isn’t qualified for any piece of the help which he looks for, in which case the litigant has the option to start.

The trial in Open Court

Section 153B of the CPC talks about the “place of a trial should be deemed to be in an open Court”.

The spot wherein any Civil Court is held, to endeavour any suit will be regarded to be an open Court, to which individuals as a rule generally may approach so far as the identical can accommodatingly contain them:

Given that the directing judge may, on the off chance that he thinks fit, request at any phase of any investigation into or preliminary of a specific case, that the open by and large or a specific individual, will not approach, or be or stay in, the room or building utilized by Court.

Trial in Camera

Section 153B- Place of preliminary to be regarded as an open Court – The spot where any respectful Court is held to attempt any suit will be considered to be an open Court, to which people in general by and large may approach so far as the equivalent can advantageously contain them:

Given that the presiding Judge may, in the event that he thinks fit, request at any phase of any investigation into or preliminary of a specific case, that the open by and large, or a specific individual, will not approach, or be or stay in, the room or building utilized by the Court.

Recording of Evidence

(1) For every circumstance, the appraisal in-leader of an eyewitness will be on sworn articulation and copies thereof will be given unexpectedly party by the social occasion who calls him for confirmation: Provided that where reports are recorded and the get-togethers rely on the chronicles, the check and adequacy of such records which are archived nearby attestation will be reliant upon the arrangements of the Court.

(2) The confirmation (addressing and reconsideration) of the onlooker in investment, whose evidence (appraisal in-chief) by declaration has been furnished to the Court, will be taken either by the Court or by the Commissioner assigned by it: Provided that the Court may, while appointing a commission under this sub-rule, considering such proper factors as it would hypothesize fit.

(3) The Court or the Commissioner, overall, will record verification either recorded as a printed copy or correctly inside seeing the Judge or of the Commissioner, all around, and where such confirmation is recorded by the Commissioner he will return such evidence together with his report recorded as a printed copy set apart by him to the Court designating him and the confirmation taken under it will outline some part of the record of the suit.

(4) The Commissioner may record such remarks as it would associate material in regards to the air with any eyewitness while under appraisal: Provided that any dissent raised during the record of confirmation before the Commissioner will be recorded by him and picked by the Court at the period of conflicts.

(5) The report of the Commissioner will be submitted to the Court naming the commission within sixty days from the date of issue of the commission except for if the Court for motivations to be recorded as a printed duplicate develops the time.

(6) The High Court or the District Judge, overall, will set up a leading group of Commissioners to record the confirmation under this standard.

(7) The Court may by general or exceptional solicitation fix the total to be paid as remuneration for the organizations of the Commissioner.

(8) The courses of action of Rules 16, 16A, 17 and 18 of Order XXVI, to the degree that they are appropriate, will apply to the issue, execution and return of such commission under this standard.”

Appealable Cases

Rule 5 Order XVIII of the CPC discusses how the proof can be taken in appealable cases.

In cases in which intrigue is allowed, the confirmation of each witness will be:

(a) Brought down in the language of the Court,

Recorded as a printed copy by, or in the proximity and under the individual heading and superintendence of, the Judge,
From the correspondence of the Judge honestly on a typewriter.

(b) If the Judge, for inspirations to be recorded, so arranges, recorded absolutely in the language of the Court inside seeing the Judge.

Non Appealable Cases

While interpreting Order 18 Rule 4 and 5 for recording of proof (evidence) from the wording of Order-18 Rule-4-for each case the assessment (examination) in leader of an observer will be on insistence – held that it doesn’t make any difference among appealable and non-appealable cases so far as method of recording proof is concerned. Such a distinction is to be discovered uniquely in Rules-5 and 13 of Order-18 CPC.

In non-appealable cases, the Affidavit can be taken on record by resort to the arrangements of Order 18 Rule 13. As it was, negligible creation of affirmation by witness will engage the Court to accept such testimony on record as framing some portion of the proof by recording the notice in regard of generation of such sworn statement in all cases with the exception of in the appealable cases wherein it is vital for the Court to record proof of generation of Affidavit in regards of assessment in boss by making the deponent deliver such oath according to Rule 5.

Order 18 Rule 13 says in non-appealable cases the technique in Rule 4 excess. Initially (2002 Amendments) Order 18 Rule 4 likewise talked about the account of proof of an observer present in open Court.

Examination De Bene Esse

A temporary assessment (examination) of a witness. An assessment of an observer whose declaration is significant and may some way or another be lost, held out of Court and before the preliminary, with the stipulation that the statement so taken might be utilized on the preliminary on the off chance that the observer can’t go to face around then or can’t be created.

Oral and Written Arguments

Amendment of Order XVIII.- In the First Schedule, all together XVIII,- (an) in rule 2, after sub-rule (3), the going with sub-rules will be introduced, explicitly:-

(3A) Any social affair may address oral conflicts for a circumstance, and will, before he wraps up the oral disputes, assuming any, submit if the Court so allows briefly and under unmistakable headings composed contentions on the side of his case to the Court and such composed arguments will shape some portion of the record.

(3B) A duplicate of such composed contentions will be at the same time outfitted to the contrary party.

(3C) No deferment will be conceded to document the composed contentions except if the Court, for motivations to be recorded as a hard copy, thinks of it as important to give such intermission.

Conclusion

As ought to be evident from this article, directors and constitution-makers have kept improving the territories of the Civil Procedure Code and Articles of the Constitution to help in ordinary value by giving sensible fundamental.

While Article 12, 21 and 20(2) of the Constitution acknowledge a basic movement in standard worth, Sections 100, 89, 26 and 27 of the Civil Procedure Code.

Rectifications have been made, changes in the law have been endorsed and distinctive law reports have prescribed changes with respect to basic methodology to execute the possibility of sensible primer and ordinary value.

In this venture we managed the elements of common equity and reasonable path like the equivalent chance to be heard, one can’t be his own judge, expedient preliminaries and arrangement of different strategies to manage unimportant cases outside the Court to offer a lift to equity. Consequently, our administrators have put colossal exertion to make the Civil Procedure Code, 1908 progressively successful and equity situated.

References

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This article is written by Sachi Ashok Bhiwgade, from Hidayatullah National Law University, Raipur. This article discusses the issues and challenges faced by stateless people around the world and the role of International Law. This article further discusses the Indian situation relating to statelessness.

Introduction

“We are now witnessing the highest levels of displacement on record.” – UNHCR

Generally, the question of nationality is a matter of domestic jurisdiction of a country. International human rights law recognizes the right to nationality of all, which means that each individual should be able to acquire, withdraw or retain his/her nationality. A person deprived of his nationality is placed in a vulnerable position. According to the report of UNHCR, the figures show that since World War II, there are more than 70 million people who have been forcibly displaced. Statelessness is a worldwide problem affecting millions of people.

Somewhere in the world, every 10 minutes a child is born stateless. Out of the 70 million displaced people, 24.9 million are refugees, 41.3 million are internally displaced and 3.5 million are asylum seekers. 80% of refugees are seeking refuge in nations that are neighbour to their origin country. Refugees are facing predicaments of war and persecution. They cannot return to their homes, even their own country is denying protection to them. Their basic human rights and even life are at risk.

What is Statelessness?

Under International Law, a stateless person means an individual who is not recognized as a national of any country. Article 1 of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.”. Hence if there is no link or bond between an individual and a country then such an individual will be termed as stateless.

A notable incident of statelessness is where Merhan Karimi Naserri, an Iranian refugee who was denied citizenship in his country, spent 18 years of his life at the Charles de Gaulle Airport in France. In 2004, his autobiography was published in the book “The Terminal”.

Causes of Statelessness

There are many causes leading to a person becoming stateless. Some common causes are discussed as under:

1. Discrimination

Many nations discriminate their citizens on the basis of ethnicity, race, colour, descent which is against the standards of international law. Not only this, there is an inconsistency between nationality law with respect to men and women. Some Nations do not grant nationality to children whose fathers are unknown or deceased. There are some countries that do not allow women to pass their nationality to their children.

As per UNHCR, equal rights to women in the matters of the nationality of their children have still not be attained in 27 countries. Another example of gender inequality law is where a child is denied citizenship if the father is stateless then the country does not confer citizenship under certain conditions on the grounds of missing or unknown.

2. Conflict and gap between laws

Nationality can be acquired in various ways – by birth, naturalization, descent, marriage, registration, etc. all countries have their own nationality law by which citizenship could be acquired or withdrawn. Around the world the most common way of acquiring nationality is through:

Birth (Jus Soli): where nationality is acquired by way of birth in a country. For instance, in the United States, where a child has a birthright over citizenship if born anywhere in the territory of the country.

Descent (Jus Sanguinis): where nationality is acquired or determined if one or both parents of a child belong to a certain country. For instance, In Indian nationality law, if a child is not born to at least one parent who has Indian citizenship, he will not be granted citizenship and hence be stateless.

Hence, if a person is unable to prove his link with a country will be at risk of becoming stateless. Let’s take an example, a child is born to an Indian father and a Chinese mother married in the UK. The child is living with his mother. Chinese nationality law doesn’t grant women the right to pass on their nationality to their children.

Indian nationality law provides that nationality will only be provided to a child who is born in India and UK nationality law provides that at least one of the parents needs to be a national of UK. This creates the problem of conflict and the gap of laws.

3. State succession

Another significant determinant of statelessness is state succession. People moving from the country where they were born to another when their origin country disintegrates, dissolved, ceases to exist or their country comes under the control of another country leads to statelessness. Dissolution of the Soviet Union by Internal disintegration, the agreement of Beloveza Accord declared the ceasing of the Soviet Union is such an instance.

4. By Renunciation

When a person voluntarily relinquishes his/her nationality or citizenship or refuses the protection of a state is said to renounce his citizenship. But this rarely happens.

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The United Nations on Statelessness

Background

Millions of people fled from their home country to seek refuge after World War I and II. Since its foundation after World War II, the United Nations has been dealing with situations of war and conflict. With war majorly leading to large-scale displacement of people.

The Economic and Social Council (ECOSOC) one of the six principal organs of the United Nations requested the United Nations Security General to undertake a study in this regard. Thereafter, three conventions were adopted to prevent people from becoming stateless. They are:

1951 Convention relating to the Status of Refugees
1954 Convention relating to the Status of Stateless Persons
1961 Convention on the Reduction of Statelessness

1951 Convention relating to the Status of Refugees

Also known as the Refugee Convention, a Multilateral Treaty of the United Nations dealing with the protection of refugees. It defines who is a refugee, sets forth the right of displaced persons and highlights the legal obligation of the states towards protecting refugees. The convention emphasises that refugees should not be sent back to the countries where they face the fear of persecution or danger of life except those who are war convicts or are considered as dangerous to the security of the country.

In addition, refugees are also required to abide by the asylum law of the country and maintain public order. Some provisions of this convention include:

Article 21 – the right to have a house.
Article 26 – the right to freely move within the territory.
Article 31 – the right not to be punished for illegal entry while in the territory of contracting state.

1954 Convention relating to Status of Stateless Persons

This convention deals with the international protection of stateless persons. It defines who is a stateless person, provides basic rights to them and strives to solve the everyday practical problems faced by them. The stateless person is obliged to abide by the laws, regulations and maintain public order of the country in which he currently is. Certain provisions of this convention are:

Article 5 – the right to freedom of religion.
Article 22 – The right to education.
Article 27 – A stateless person not having a travel document to be issued with identity papers by the contracting state.

1961 Convention on the Reduction of Statelessness

This Convention was brought with the aim to eradicate statelessness dealing with the conferral of citizenship giving effect to Article 15 of the Universal Declaration of Human Rights – the right to nationality for all. Some important provision of the Convention:

Article 1 – Subject to certain conditions, granting nationality to all stateless children born in their state, automatically or upon application.
Article 2 – granting nationality to those children that are found abandoned in their state.

Universal Declaration of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) was adopted in 1948 with the objective of providing basic human rights to every person and to promote peace among all nations. It comprises a preamble and 30 articles. It contains provisions relating to the right to life and liberty, prevention from slavery, protection from inhumane, torturous and degrading treatment, etc.

United Nations High Commission for Refugees (UNHCR)

The United Nations High Commission for Refugees is an agency of the United Nations that addresses the issue of statelessness. It seeks to provide assistance of food, water, and shelter, safeguarding human rights and finding permanent solutions to refugee problems. Currently, UNHCR is working in 134 countries with a workforce of more than 16 thousand people.

The UNHCR Statistic Database provides necessary information relating to data, report, etc that is required for field operations. In 2014, The UNHCR launched a ten-year global campaign #IBelong to end statelessness by the year 2024. UNHRC believes that the issue of statelessness can be resolved with necessary assistance by political and public support.

Measures recommended by the UNHCR to end statelessness

By ensuring that no child is brought into the world stateless.
Resolving current statelessness situation.
Elimination of gender discrimination law.
Preventing statelessness in the event of state succession.
Facilitate naturalization of stateless migrants.
By ensuring birth-registration.
To accede to the UN Convention relating to statelessness.

Other organizations

Institute on Statelessness and Inclusion (ISI)

ISI is an NGO globally working for the rights of stateless persons. It has launched Strategic Plan 2018-2023 with a goal to create awareness about statelessness, promote inclusion and support right to a nationality.

European Network on Statelessness (ENS)

This organization is a civil society alliance, established in the year 2012 dedicated to protecting stateless persons in Europe and providing them with basic human rights. It aims to prevent the arbitrary detention of stateless people in Europe.

Consequences

Statelessness affects the basic, social, economic, civil and political rights of forcefully displaced people. As a citizen of a country, a person enjoys various benefits but a stateless person is deprived of many rights and benefits, such as:

Right to vote;
Right to employment;
Right to home;
Right to register for marriage;
Right to education/cannot enrol children in school;
Right to medical care.

Statelessness in the Indian context

In August 2019, the state of Assam released the list of people who were eligible. The purpose of the National Register of Citizens (NRC) was to prevent the influx of illegal migrants in the state of Assam. Around 19 lakh people in August 2019 were removed from NRC. To be legally recognized as an Indian citizen one needs to give proof that he has been residing in India before the cutoff date, that is 25 March 1971. Accordingly, one has to show documentary evidence that they or their ancestors have entered the country before the cutoff date.

What will be the fate of these excluded people?

People excluded from NRC’s Final List are required to file an appeal to Foreigner’s Tribunal and afterwards to the High Court and the Supreme Court. Ultimately, if a person is unable to prove his citizenship he will face arrest and will be sent to detention centres. Currently, Assam has 6 detention centres.

Conclusion

Statelessness is a serious matter and stateless persons are found in every country and often lead an invisible life as they and their rights are not recognized. The international community, especially the UN, is actively working to prevent and protect the rights of stateless persons. But despite this, new instances of statelessness keep on emerging and hence statelessness still possesses to be a major issue. More effective approaches need to be created and implemented to tackle this problem and protect the rights of these people.

References

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This article is written by Aarchie Chaturvedi, from the National University of Study and Research in Law, Ranchi with the help of inputs provided by Mayur Sachdeva, University Growth Consultant at LawSikho. This article provides information regarding how one can proceed further with getting his law book published.

Introduction

Publishing of a book is making information available to the public at large by the distribution of literature, information through both digital and non-digital media. There are several ways of publishing a book out of which most popular ways are publishing through international and national publishers, publishing through agents of publishers and self-publishing.

If one person (one person is also referred to as you in this article) wants some publishing house to publish his book then a question that arises is what are the essentials for it and what is the procedure for it. In this article, we are discussing how and when one should approach a publisher to get his law book published.

However, before discussing how to approach a publisher, so let’s discuss what are the different kinds of legal publications-

Bare Act
Legal Novels
Biographies and Autobiographies of legal luminaries
Reference books
Legal Commentaries
Short Commentaries
Digests
Legal Journals
Publication of Research Paper
Publication of Legal Blog

How to approach a Publisher?

After discussing what are the types of legal publications, we will now proceed with the steps involved in approaching a publisher.

Identify your genre

Showcase your writing

Find a literary agent

Prepare your materials

Submit a query letter

Get a publishing contract

1. Identify your genre

Identifying a genre means which type of book you are interested in writing, what interests you the most, or what you want to write.

You can identify your genre with the help of the following tips:

By choosing to do what you are best at doing;
By choosing who you want to address your writing to or who will be your audience;
Do not limit yourself to what you like, as there might be things that are not appealing to you, but are appealing to the public in general, so think of them;
Don’t base your decision solely upon money or profit while trying to decide which genre you should write upon;
If you have no idea about what to choose you can also go on to exploring and testing different genres.

It is important to categorize a genre before you start writing your book. It will also help you in recognizing easily where your targeted audience lies by the time you complete your book.

2. Showcase your writing

Before approaching a publisher and requesting him to publish your book, construct yourself.

Write blogs and post them on social media.
Write on Wattpad and upload stories online(Wattpad is an Internet community for readers and writers to publish new user-generated stories in different genres, including classics, general fiction, historical fiction, non-fiction, poetry, fan-fiction, spiritual, humour, and teen fiction).
Write on Word Press-a popular online platform.
Write small articles, research essays and publish them first. You will find many platforms for them online.

Build a reputation before you approach a publisher and ask him to publish your book. Earn some name and let him see some worth in publishing your book.

3. Find a literary agent

Some publishers only accept the work when it is sent via a literary agent. So if you want to get your work published before looking for a publisher look for a literary agent. Your agent will submit work on your behalf to the publisher. Having an agent can have other benefits too, as listed below:

An agent knows the market;
An agent can get you the contract or the best deal;
An agent has connections;
An agent handles media requests for you;
An agent would be getting 10/15 % of what you earn, so, they would have an incentive to grab a good deal for you each time;
An agent manages your rights- One of the most important tasks of the agent is to manage your rights. The agent can maintain your rights when you sell a book or a film. Otherwise, the publishers can make you sign a contract that is favourable on their part and you as an author get lesser proceeds from the sale of your book.

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4. Preparing your material

Prepare synopsis and a sample letter as supporting materials for your book. This will altogether help in forming your book proposal. These are the two important documents, you should carry with you when you are thinking of getting your book published.

Synopsis- The synopsis of the book is the plan of how you proposed to write the book. It provides the rationale for the research, the research goals, the methods proposed for data collection and recording formats and/or questionnaires and guides for interviews. The synopsis is based on information provided by the supervisors and secondary information sources. At the end of your synopsis, with the discussion and conclusion, you will present the results of your data collection and elaboration.
Sample paper- The purpose of the sample paper is to flesh out what you have written in your synopsis. It most importantly demonstrates your writing style to the publisher.

5. Submit your query letter

A query letter is a one-page letter that you can send and ask the concerned party whether they are interested in being your literary agent or not. Writers use query letters to pitch book ideas to agents and publishers also. You as an author can send a query letter to multiple agents. This will help you gauge responses and select the best from all.

You are likely to get one of these responses to your query letter:

A rejection;
No response at all (usually also a rejection);
A request for some sample material;
A request to see the whole manuscript (if available).

The last two of these responses may subsequently also result in a rejection. But don’t give up. Sometimes an agent will reject you simply because their list is full. Or they might think your book isn’t the type of book they can sell to publishers. You might get feedback from some agents on your submission but more often you’ll get a standard rejection slip. Don’t be disheartened by that gesture of the agents. Agents are busy people and get a lot of submissions. However, if you hear nothing from them, send them a polite note after 6-8 weeks.

On the other hand, if an agent is interested in you and your book, the next step would be a meeting with them to discuss it. After that, possibly, your offer of representation will be accepted by them.

It might also happen that you get an offer from some agent without your query letter. Once you accept the offer, the next stage is to sign an agreement with your new agent and then you can start working with them.

6. Get a publishing contract

The last step in the process is getting a publishing contract. However, before this step, you as an author must be aware of two types of agreements. They are as follows:

An agency agreement– This is an agreement between you and your agent. This usually specifies the part of your earnings your agent would be getting. Don’t be shy to ask your agent beforehand what terms and conditions he would like to work upon. Finalize everything and then accordingly draft your agreement and sign it.
Publishing Agreement– Once you have an agent your agent will handle this agreement. He will negotiate and get the best deal for you. A publishing agreement is a legally binding agreement between an author of a book and a publisher which specifies all the terms of their deal to publish the book, like the payment to be made, the timeline to be followed, etc. By clarifying all the demands of both parties that have been agreed upon, the agreement ensures that the interests of both the author and the publisher are protected and that the agreement is complied with.

There will be other contracts also which your agent will handle for you. However, the publishing agreement is of utmost significance. It can happen that a publisher can make an offer to you on his own. At this moment your agent will handle the contracting negotiation on your behalf.

After your contract is finalized you might get some part of the payment as an advance and rest of the payment after the publication and sale.

So, this is the procedure followed when you approach a publishing house. Though there are hundreds of publishing houses in India, a few renowned ones regularly come up in discussions and are generally the ones that new writers target.

Here’s a shortlist of some international legal publishers:

Carolina Academic Press;
Mcgraw hill;
LexisNexis;
Carswell Publishing;
SAGE Publishing;
HART Publishing;
Stanford University Press.

Some examples of Indian Publishers can be:

Eastern Book Co.;
All India Reporter (AIR);
Delhi Law House;
Central Law Publications;
Rajasthan Law House.

Talking about maintaining rights, brings us to the discussion of yet another important dimension of publication that is the legal dimension. The legal dimension here basically talks about the rights that are available to the authors which they frequently are unaware of. They are as follows:

The basic copyright law states that if you are the creator of some work, you own it according to the law. Copyright under the Copyright Act,1957 is a right, legally vested in composers of music, drama, dance, literature and other forms of arts. For any author, copyright is the intellectual property right that saves their writing and its character. As mentioned under the Copyright law of India, 1957, the copyright for a literary or artistic work is 100 years + sixty years following the year in which the author died.

Copyright handovers so much power to the owner on his creation or piece of work that no part of his work is allowed to be reproduced. However, the fair use of some part of the literary or artistic work is allowed. There is no hard and fast rule as to how many words and lines can be allowed to be used under fair use. However, there are certain guidelines that help in determining whether something is covered under fair use or not. These are the nature of work for which it is used, the purpose of use, the amount of work used, and the effect on the original work.

Trademark

Authors have this question in their mind that whether they can use the name of a brand in their book or not. The answer to this question is provided under the Copyright Law of India, 1957. The answer is that if a brand name is trademarked and the author without authorization uses it in his book, then it can lead to trademark infringement or trademark dilution on the part of the author. Selling a product with an unauthorized trademark is a punishable offence for a term not less than 6 months and not exceeding 3 years.

Defamation

If anyone says or does anything that harms the reputation of another person then that person is punishable for defamation under Section 499 of the IPC. Under Section 499, defamation is committed through words spoken, written or visible representations, which are published and are of such a nature that can tarnish the reputation of the person in the minds of the right-thinking members of society.

Authors have to be very careful while portraying characters especially public figures. They should cross-examine, review again and again and verify the accuracy and the truth in the facts that they are going to publish otherwise they can be sued for libel.

Plagiarism

One of the most serious types of violations of the Copyright Law that an author can commit is plagiarism. It is copying or stealing some of the thoughts, expressions or ideas of some other person and getting them published as your own work. It is a kind of copyright infringement and is punishable under the Copyright Law. So, being an author one should bear in mind that whatever one wants to get published in the public domain is original, and is truly his own work.

Writing on a controversial topic

If an author has written a book on a controversial topic and he wants to get it published, he must be prepared for the circumstance that his book might get banned. Though Article 19 of the Constitution guarantees freedom of speech and expression, under certain circumstances, the government also is vested with the right to ban your book. So, if you want to take a risk, be ready for the challenges that come when you get your book published.

Now, after discussing the legal aspects that are involved in getting a book published, there’s also a reminder for anyone who is publishing a legal book. As you are writing a book related to the law you should be very careful and cautious while writing facts related to law. Any mistake could be very hazardous for you as it would give someone the opportunity to file a suit against you for presenting wrong facts related to law in your book

Conclusion

If you are not having adequate finances or if you want to go in the market by the name of a specific publication and don’t want to extend your concern beyond what you are writing your legal book for, then you should definitely try reaching out for a publication house to get your book published keeping in mind the legal dimensions and following the procedure mentioned above.

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This Article is written by Shruti Singh from Hidayatullah National Law University, Raipur. This article deals with a comparative study of Presidential and Parliamentary systems.

Introduction

In the 21st century, many countries in the world have an organized government. The work of government nowadays is not limited to a police state i.e. preservation of law and order and defense of the country from an external force. The government has become a welfare state, which looks after the welfare of its citizens along with the overall development of the country. The significant point, however, is that in order to carry out these activities and functions whatever may be their range, it becomes important for a country to establish certain basic organs or agents or instrumentalities which act on its behalf and thorough which the state can function and operate. The functions that need to be performed by these agents require some authority, sanction or law. This leads to the need for constitutional law or constitution which lays down the function, power, and structure of various organs through which the states act. The constitutional structures in many countries take different forms. In recent times many countries in the world have adopted a written constitution. Some countries have a constitution with monarchs as its head, some are democratic countries having an elected government and some are led by autocratic heads. Democracy generally takes two forms i.e. Parliamentary and Presidential system. The method of electing the head of the governments is the main variable. India follows a parliamentary system based on the British model. Why did the constitution-makers in India choose the Parliamentary System over the Presidential System? This can be weighed in terms of the features, merits, and demerits of both the system separately. This article from here revolves around comparing and analyzing the various features.

Presidential System

In the Presidential System, the head of the government is the chief executive who is directly elected by the people and the executive is not responsible to the legislature. Both the organs are separate, unlike in the parliamentary system where the executive is responsible to the legislature. All the organs of the government i.e., legislature, executive and judiciary function separately from each other and are constitutionally independent. The head of the government is the President, who is responsible for enforcing the laws. This system is founded by America and is a perfect example of this system. This system rejects legislative supremacy and is designed for countries that are a full republic and not a constitutional monarchy. Elections are held more frequently in the Presidential form of government, every two years for the legislature and four years for the President.

Features

The notable features of the Presidential system are:

Executive can veto acts of the legislature

The executive here is a President who can veto acts or laws passed by the Congress (legislature). Basically, veto means the power of the President to approve, refuse or joint resolution to prevent the enactment of any law. Clause 2 of Section 7 in Article 1 of the US constitution clearly states that every bill that is passed by the House of Representatives and Senate shall be presented before the President of the United States before becoming a law. He can approve it by signing it or send it back to the Senate with his objections for reconsideration. If after the reconsideration done by both the houses the bill is passed by two-thirds of the house, then it becomes a law.

The President has been granted this power in order to prevent abuse of power by the Senate. It also depicts why the separation of powers in the U.S. Constitution is so eminent. The framers through this separation have tried to create a system of checks and balances between them.

This veto power does not grant him (President) to alter or change the content of the legislation, but only the ability to approve or reject the bill.

President has a fixed tenure

In a Presidential system, the President has a fixed tenure. Elections are held regularly and cannot be disturbed by passing of no-confidence motion or other parliamentary procedures. There are few exceptions to this which provides that the President can be removed if he violates the law in some countries. In the U.S., Presidents are elected for a four-year term and by the 22nd Amendment Act of the U.S. Constitution limits the tenure of the President to two terms. However, where a President through the order of succession, that is by taking the office after death, resignation or ousting of the previous President, they are allowed to serve for an additional two years.

President holds quasi-judicial powers

A quasi-judicial power is a power that is partly judicial in character by the possession of the right to hold hearings and conduct investigations into disputed claims and alleged infractions of rules and regulations and to come to a decision in the general manner of courts quasi-judicial bodies. The President has the power to pardon and commute judicial sentences awarded to the offenders.

President is elected directly by the people through the electoral college

The elections in the US are held on the method of the first-past-the-post system. Article 2 of the U.S Constitution establishes the method of election of the President. In other US elections, candidates are elected directly by popular vote. But the President and the Vice-President are not elected directly by the people of the country. They are chosen by the electors through the process of the electoral college. All members of the federal legislature are elected directly by the people of each state.

Although India has primarily adopted the British Model while selecting the parliamentary form of government still there are some basic differences between the parliamentary system of India and Britain. These are:

United Kingdom of Britain	India
Britain has a monarchical system.	India is a republican country.
The head of state in Britain is King who enjoys the hereditary position and is not elected.	The head of state is the President who is elected on the basis of proportional representation.
In the UK, the parliament is the supreme authority as they follow the principle of Parliamentary sovereignty.	Indian Parliament is not very supreme as some restricted powers and is limited due to the presence of a written constitution, the federal system, judicial review, and fundamental rights.
In Britain, the Prime Minister should be a member of the House of Commons(Lower House) of the parliament.	In India, the Prime Minister can be a member of any house Rajya Sabha or Lok Sabha in the Parliament.
In Britain, usually, the members of parliament only become Ministers.	But in India, a person who is not a member of any house can also become Minister but only for a maximum period of 6 months.
In Britain, the Minister also has legal responsibility also.	In India, the ministers are only accountable for their legislative and executive functions.
In Britain, ministers are required to countersign the official acts of the Head of the state.	Ministers in India do not need to sign such a document.
There is a concept of ‘Shadow Cabinet’ in the UK. The shadow Cabinet is basically a cabinet formed by the opposition who keeps a check on the activities and policies of the ruling government and can replace it once the ruling party falls.	There is no such concept as Shadow Cabinet in India.

Merits

The merits of the presidential system are as under:

Separation of powers

One of the key features to differentiate between Parliamentary and Presidential include the extent to which the powers of government are separately functionally between branches of the government. These also include the extent to which the executive has control over the legislative branch and vice-versa. In a Presidential system, administrative and political powers are divided between the three branches of the government i.e. legislature, executive and judiciary. The officials in these branches serve different terms of office and different constituencies. The President is chosen by a separate election from that of the legislature. The President then chooses his cabinet members, who are not members of the legislature. The senior officials of the executive branch are elected separately, which clearly shows the separation of powers between these branches. Efficiency in work is increased because every branch is separate and independent of each other.

Expert government

The members appointed in the Cabinet by the President are not necessarily the part of the legislature and this helps the President to choose the experts for different departments and ministries. This also helps in making sure that the people who are actually interested in or have knowledge in their respective fields form the part of the government. This increases the efficiency in work. This also results in smooth functioning in the administration as they are chosen as per the wish of the President. It ensures coordination and cooperation while drafting policies for the country.

Stability

The presidential system is much more stable when compared to the Parliamentary system. Since the tenure of the president is fixed and is not subject to the condition of the majority support in the legislature, he has no fear of losing the government. There is no instance and danger of a sudden fall of the government. There is less pressure from social groups or political parties in decision making. It helps in the formation of rapid decisions and emerging changes. This stability also brings with it rigidity in the system.

Less influence of party system

There is less influence of political parties in the decision-making process. They do not threaten the leader to dissolve the government as the tenure is fixed.

Demerits

The demerits of the presidential system are as under:

Less responsible executive

Since the executive is not responsible to the legislature, the executive tends to be less responsible. The legislature also has no hold of the executive and the President who may turn authoritarian. This makes winning an election in this system very important, as he cannot be easily removed and he is not dependent on his political party for his tenure.

Deadlocks between executive and legislature

The separation of power between the executive and legislature may at times lead to a deadlock between these branches on any matter. Especially when the Legislature is not dominated by the President’s political party, many tussles may be seen and it results in inefficiency and wastage of time. This political deadlock delays the enactment of policies and the electorate which expected rapid changes from the policies may shift to other parties in the next elections. Critics also argue that in such cases of deadlock the presidential system is not able to provide much accountability to its citizens as seen in a parliamentary system. This is so because it is easier for the Legislature and the president to shift the blame on each other.

Rigid government

The fixed tenure of the president brings stability which leads to rigidity. It makes the system more rigid. It becomes difficult to remove the President even if people are not happy with the work carried out by him or his party. The citizens have to bear him till new elections are held even though he carries out inefficient policies or becomes unpopular. Hence, the presidential form of government lacks flexibility in its operation.

President’s sweeping powers

The Presidential system endows him with the sweeping powers of patronage. The President has the power to choose the members of his cabinet. He may choose people who are closer to him which may spoil the system.

Parliamentary system

The parliamentary system was developed by England and India adopted this system from the UK with some changes. In parliamentary system or parliamentary democracy where the executive derives its democratic legitimacy from its ability to command the confidence of the legislature and is accountable to the legislature. The head of the state is separate from the head of the government. Parliamentary form of government is dominant in Europe with 32 of its sovereign states. In the UK parliamentary system is also known as the Westminster system. It is also dominant in the Caribbean and Oceania. Countries having parliamentary democracies can be of two kinds- constitutional monarchies and parliamentary republics. In Constitutional monarchy, the head of the state is the monarch while the head of the government is generally the parliament with or without a constitution. This system is prevalent in the UK, Sweden, Japan, and Denmark. The other kind is parliamentary republics in which usually the head of the state is a ceremonial president and the legislature form the head of the government (Like India, Ireland, Germany, and Italy).

In some parliamentary republics, the head of the government is the head of the state, but is elected by and accountable to the parliament such as South Africa, Botswana, and Suriname. In countries having a Bicameral system, the head of the government usually is a member of the lower house.

India chose a Parliamentary System for the governance of the country after independence. It is so because the constitution-makers in the country were greatly influenced by the parliamentary system prevalent in the United Kingdom. Also, seeing the diverse and varied groups and their culture, religion and behavior somewhere forced our founding fathers to accommodate this system keeping in mind the political setup. The principle of strict separation of power, being one of the key features of the Presidential System leads to a lot of problems between the legislature and the executive. This hampers the effectiveness and efficiency in work, which our country was not in a position to afford. The condition of India at the time of Independence was such that it needed a system that was already tested and successful, this also led the makers to choose this system. In this kind of system, generally, the parliament is supreme and the executive is responsible to the legislature. It is also known as ‘Cabinet form of government’ or ‘Responsible Government’.

Features

Key features of the Parliamentary System are as follows:

The close relation between executive and legislature

In a Parliamentary form of government, the Prime Minister along with the Council of Ministers forms the executive. They are elected as the members of the Parliament which means that the executive emerges from the legislature. Only a member of Parliament can be appointed as part of the executive. There is no strict separation of powers between the executive and legislature as it is present in the presidential form of government. Therefore, in a parliamentary system, the executive and the legislature is so closely related that sometimes it becomes difficult to separate their functions.

The executive is responsible to the legislature

One of the key features that differentiate the presidential and parliamentary system is that in latter the executive is responsible to the legislature. The Prime Minister and the Council of Ministers are collectively answerable in Lok Sabha and individually to the President. The executive loses its power when it loses confidence in the Lok Sabha. Legislature makes the laws and then relies on the executive for its implementation which practices delegated legislation.

Secrecy of the procedure

One of the prerequisites for this form of government is the secrecy of the cabinet meetings and the discussions held therein. In fact, even in the oath taken by the Ministers, they promise to keep faith and secrecy as given in Article 75 of the constitution. As per Article 74(2) of the Constitution, the advice given by the Council of Ministers can be inquired in any court of India which ensures secrecy.

Dual executive

India has a dual executive means it has two executives – the real and the titular. The titular or nominal executive is the head of the state i.e. the president or the monarch and the real head is the Prime Minister who is the real head of the government. Legally all the powers and privileges are conferred on the President as per different law and constitution but in practice, all these powers are enjoyed by the Prime Minister and Council of Ministers. The President in India works on the aid and advice given by the Council of Ministers. The president can return the suggestion for reconsideration, but if the same suggestion is sent to him with or without changes, he is bound to accept it. This makes the President somewhere bound by the advice given by the Ministers and work according to them.

The leadership of Prime Minister

The leader in the Parliamentary form of government is the Prime Minister. He is the leader of the majority party in Lok Sabha. He is also the head of the government and is selected through elections held through universal adult franchise.

No fixed tenure

In a Parliamentary System, the term or the duration of the ruling government is not fixed. They are dependent on confidence in the lower house. If anyone of the Council of Ministers resigns or the majority party is not able to prove its confidence in the house then the government falls. After that new election will be conducted and the party having a majority of the members in Lok sabha forms the government. In normal circumstances the tenure of the government is for 5 years and after that election are held again.

Bicameral Legislature

‘Bi’ means two and ‘camera’ means chamber. So Bicameral Legislature is the system of having two legislative or judicial chambers. Generally one of the houses is more powerful than the other. Many parliamentary democracies have the practice to follow bicameralism.

In India, at the center level, it has two houses (Rajya Sabha and Lok Sabha) to deliberate and discusses policies, laws, and issues of national importance. At the state level, the institution equal to or performs somewhat the same function is Vidhan Sabha (State Legislative Assemblies) and Rajya Sabha is Vidhan Parishad (State Legislative Council). Though not all states in India have their respective legislative council as many argue that just like the Rajya Sabha, the State Council does not perform many functions and poses stress on state finances. In India, as of December 2019, only 6 states (Andhra Pradesh, Bihar, Maharashtra, Uttar Pradesh, Karnataka, and Telangana) have legislative councils.

Merits

The advantages or merits of a Parliamentary System are as follows:

Better coordination between executive and legislature

In a Parliamentary system, the executive is part of the legislature and usually, the majority party has a stronghold in the parliament which makes it easier for the law and policies to be passed and implemented. We can see a lot more coordination in the parliamentary system as compared to the presidential system as the organs of the government is strictly separated from each other. The possibility of disputes and conflict is reduced as the party enjoys a majority in the lower house.

Responsible government

The Parliamentary form of government is also known as ‘Responsible government’. In the legislature, all other members raise questions which are matters of public interest and national importance. Through this process, there can be checks on the activities of the government. The opposition needs to be strong enough to point out the mistakes and inefficiency of the ruling government. This makes the majority party accountable and hence responsible for their duties and actions in general.

Represents diversity

Many countries in the world have people living from different backgrounds, cultures, religions, races, and gender. The Parliamentary system is suited best to accommodate all these diverse groups as every group is represented in the legislature. In this way, the interests and demands of various groups can be discussed at a big platform and a solution can be found out more effectively. With a country like India which was in a very fragile state after independence, it was important to adopt a system that was tried and tested and was familiar to the people. In our country, we see people from various groups coming together in parliament and discussing matters to promote and preserve the interests of all of them.

Flexibility

The Prime Minister can be removed from power very easily as compared to the Presidential system in which generally the President serves the entire term and can be replaced only through impeachment and incapacity which is a time-consuming process. If the demands that were promised by the ruling party before the elections are not fulfilled the parliament may pass a no-confidence motion and the government can be replaced.

Prevents Authoritarianism

In the Presidential System, we see a concentration of power primarily with the President. He has the authority to choose members of the cabinet. On the other hand in the Parliamentary system power is divided among the council of ministers and the ruling party does not become all-powerful the government may resign if a vote of no confidence is passed against them. There are many institutions that keep vigilance on the activities of the government.

Demerits

The demerits of the Parliamentary System are as follows:

No separation of powers

As there is no true separation of powers in this system, the legislature cannot always blame the executive for the non-implementation of policies. Especially when the government has a majority in the legislature. Additionally because of factors relating to anti-defection laws legislators cannot exercise their will power and vote as per their understanding and opinions. They have to consider and follow the party whip.

Unqualified legislature

Many times situations where people who just want to fill executive positions enter the legislature also. They are not even qualified or ratherly properly acquainted with their jobs. Most of them are not even familiar with the laws of their country.

Instability

Parliamentary system is not stable as the government may fall anytime as compared to the Presidential system. There is no fixed tenure of the government. The moment no confidence motion is passed in the house the government will be replaced with a new government. It can happen by a mere political disagreement between the party members. Thus the Prime Minister has to depend on the support from the party members or any other party in the parliament. Coalition governments are mainly transitory and unstable. Therefore the majority party concentrates more on having support in the house rather than on the welfare of the society.

It can hamper the implementation of laws and policies as the policy started by the previous government may not be much supported and carried on by the new government in power.

Failure to taking a prompt decision

This system’s instability somewhere forces the government to take prompt decisions in times of need. The government is scared to take bold and long term decisions. This may affect the welfare of the nation and its people.

Party Politics

In the parliamentary system party, politics is very evident where politicians are motivated by self-interest more than national interest. The Multi-party system is more popular in the Parliamentary system than the Presidential system as they use the method of proportional representation. Many parties compete with each other in elections and each party has a chance of winning the election.

Conclusion

Every system whether it is Presidential or Parliamentary has its own pros and cons. It is upon the government of a particular country to decide the system which will be most suited for their country. Every country is different in its structure, population and culture, it is important to identify the needs of the country. If we see a larger picture then there are mainly these two forms. Many nations in the world have chosen one of them with some changes. We also see new trends and conventions. Many countries have changed their political system from democratic to monarchy but it is remarkable that India even after 72 years of independence has stayed a democratic country having a republican head and a strong constitution. It is considered as one of the largest democracies in the world.

There were some discussions that were made regarding whether India needs a presidential system. But these debates were very academic. But then the concentration of power in a single hand will lead to abuse of power which is very dangerous to our democracy. Also, our constitutional setup does not allow us to do so because of the basic structure doctrine. So, for now, the country will stick to the Parliamentary system which suits our diversity.

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This article is written by S.Aditya, an alumnus of KLE Society’s Law College, Bengaluru. This article focuses on the provisions regarding the classification of Companies under the Companies Act of India, 2013.

Introduction

The Indian economy has a variety of companies existing in its market such as public companies, private companies, investment companies, limited liability companies etc. These numerous entities in the market may look different from each other on the surface, but based upon certain identifiable common characteristics they can be grouped into below-mentioned classifications. This article aims to draw your attention towards the conventional classification of the companies that are made based upon factors such as liability, control, incorporation, transferability of shares etc.

Classification of Companies

The companies may be classified based upon the mode of their incorporation and incorporation process which is defined under Section 7 of the Companies Act, 2013.

Incorporation is the day when the company acquires a legal identity i.e. the day when a company takes birth in the eyes of law. Section 2 of the Companies Act, 2013 defines the various kinds of companies and their facets.

(I) Classification of Companies on the basis of incorporation

Royal Charter Company

It may be better understood as the company born out of the authorization of the sovereign or the crown. This was the mode of incorporation which was followed earlier to the Registration under the Companies Act. A charter is granted by the crown to the people requesting to form a cooperative or a company. To name a few, The Bank of England (1694), The East India Company (1600) were formed by the means of charters passed by the then Crown of England. The authorization given by the sovereign gives legal existence to these companies by means of the body of the charter. This mode of incorporation is no more recognised in any Companies Act to incorporate new Companies.

Statutory Company

As the name suggests, these are the companies that are formed by the means of a special statute passed by the Parliament or the State Legislature. The examples of statutory companies in India are the Reserve bank of India, the Life Insurance Corporation of India Act, etc.

The Statutory origins of these companies provide power to such companies to be bound by their own statute, i.e. whenever there is any dispute between statute under which these companies were formed and the Companies Act 2013, the statute being special legislation persists over the general law of Companies Act. The parliaments both State and Centre are empowered to make such legislation for incorporation under the power endowed to them by the Constitution of India.

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Registered Company

As defined under Section 2(20) of the Companies Act, 2013, registered companies are the companies which get registered under the statute of the Companies Act. Companies are also provided with a certificate of incorporation by the Registrar of the Company.

(II) Classification of Companies on the basis of liability of members

The liability upon the members is also used to classify the companies, it describes the limit to which member will be liable if such liability were to befall upon the company. On the basis of liability of the members, the companies may be classified into:

Companies limited by shares:

These types of companies are mentioned in Section 2(22) of the Companies Act, 2013. The liability of the members of such a company is based upon the number of shares kept unpaid. This liability against the shares kept may be brought to the authority. Once the payment towards the security is made by the shareholder or member then no liability beyond that is placed upon such member. The liability may be enforced during the company’s existence and even during its winding-up process.

Companies limited by guarantee

These types of companies are mentioned in Section 2(21) of the Companies Act, 2013. In a Company where the liability is limited by guarantee, it means the member of the Company has agreed on the Memorandum of Association to repay the same amount during winding up of such Company. In such companies, the liability of the members is limited to the undertaking given by them. Trust research associations, etc. are examples of companies liability limited by guarantee.

Unlimited Liability Company

These companies as defined under S ection 2(92) of the Companies Act, 2013 do not have a cap on the amount of liability that may add on their members in case the company has to repay any debt. For any amount that the company owes these members, the unlimited liability company shall be liable to the extent of their interest in the company. These companies do not draw any popularity when it comes to Indian Market.

Difference between limited and unlimited companies

Limited liability company	Unlimited liability company
Liability of the members is only in proportion to the sum they have invested in the company.	Liability of the members is not in proportion to the investment in their company.
Personal properties or assets will not be forfeited if the company goes bankrupt or winds up.	Even the personal property of the member will be forfeited against the liability of the company.

(III) Classification of Company on the basis of the number of members

The number of members in a company is looked upon while classifying them. This classification of the company has been discussed in detail under the below-mentioned headings. On the basis of the number of members in the companies may be classified into:

Private Company

The private companies as defined under Section 3(1)(b) of the Companies Act, 2013 are very restrictive in nature wherein it may in its Articles of Association restrict the right to transfer shares. The number of members in such a company might be a maximum of 50. The shares and debentures of such companies are not available for the public at large. The number of members in a company to be called a private company is two, wherein it is clearly set that two members jointly holding a single share shall be considered as one member and not two members. The easy identification of Private companies is the ‘Pvt. Ltd.’ attached to its name.

Public Company

As defined under Section 2(71) of the Companies Act, 2013, Public Companies are the ones which are not a private company. As mandated under Section 3(1)(a) of the Companies Act, 2013, there should be at least 7 members to form a public company. It is the intrinsic nature of the public company that there is the right to transfer shares and debentures of the public company to the public at large.

(IV) Classification of Companies on the basis of domicile

On the basis of their domicile the companies may be classified into:

Foreign Company

A Company which is situated outside India, but has a registered place in India may be physical or electronic address or perhaps company has ownership itself or through the agents, representatives or managers of the company is known as a foreign company under Section 2 (42) of the Companies Act, 2013. The aforementioned definition included in the new Companies Act has widened the scope of the definition of foreign companies extending the same to the entities having their electronic presence in India. The list of foreign companies listed in India has names of the corporate giants such as Whirlpool of India Ltd., Timex Group India Ltd., Ambuja Cements Ltd., etc.

Indian Company

Indian Company has been defined under Section 2(20) of the Companies Act, 2013 as any company registered under the Companies Act, 2013, or any other previous law is known as an Indian Company. An Indian company may prove its locus standi with the help of its office address and the legislation provides a guideline to be followed while using such powers by an Indian company.

(V) Classification of companies on the basis of Miscellaneous factors

On the basis of other miscellaneous factors the companies may be classified into:

Government Company

As defined under Section 2(45) of the Companies Act, 2013, any company in which a minimum of 51 per cent of the paid-up share capital is held by the Central/State Government, and/or held fractionally by the Central Government and partly by one or more State Governments is known as a Government Company. The major drawback of having a government company is the lack of autonomy.

Holding, Subsidiary Companies and Associated Companies

Under Section 2(46) of the Companies Act, 2013, a company is known as the holding company of another company if it has administrative control over another company. Such control may be regarding the affairs of the company. Under Section 2(87) of the Companies Act, 2013, a company is known as a subsidiary company of another company when control is exercised by the other company over the subsidiary company.

A company is deemed to be a subsidiary company of another:

(1) If the other company

Exercises or controls more than 50% of the total voting power i.e. where the holders of preference shares have the same voting rights as the equity shares holder, or,
50% in nominal value of its equity share capital held, or,
Possesses power regarding the composition of the Board of directors.

(2) If it is a subsidiary of a company which is a subsidiary of the controlling company.

The holding power also includes another kind of Company known as Associate Company, which is now being explained with respect to the above-mentioned Holding and subsidiary company.

Associate Company

These Companies as defined under Section 2(6) of the Companies Act, 2013 are the one in which the other company has significant influence but these Companies are not the subsidiaries of such influencing companies known as the Associate Company. The Joint Venture Companies are such associate companies.

The significant control can be inferred directly from the explanation attached to the provision which requires the influencing company to hold 20% of the share capital or any agreement whereby the decision making of the associate is placed upon such Influencing Company. The Associate Company concept has been seen as a harbinger of transparency in the working of the Company since it provides a more rationale grundnorm for an associated relationship between the two companies.

One man Company

Under S ection 2(62) of the Companies Act, a company in which one person is the whole and sole owner of the share capital of the company is known as a One Man Company. In order to meet the statutory requirement of a minimum number of members, some namesake company shareholders hold one or two shares each. The namesake shareholder members are usually nominated by the principal shareholder. The principal shareholder enjoys all the profits of the business with the protective shield of limited liability. Such companies have been given legal sanctity.

Difference between One person company and Sole Proprietorship

The major or fundamental difference between a one-person company and the sole proprietorship is based upon the limitations or extent of liability in the one-person company. One person company is different from the Sole proprietorship as the ne person company differentiates the promoter from the separate entity of the company. The liability of the director of the one-man company is limited in the event of any legal liability or claims made against the company.

Investment Company

The Investment Companies as defined under section 186 of the Companies Act, 2013, are the companies which have a fundamental business or transaction relating to the securities of other companies. Securities may be of a nature of shares or debenture or other securities offered by such entity. The word investment in its predominant sense means to acquire a resource and hold it for the interest earned over it, but in the case of an investment company, the investment is aimed not only at the acquisition and holding but perhaps to even the sale of the securities whenever they reach a better price.

The Investment company under Section 186 of the Companies Act, 2013 are based upon the market trend relating to the shares analyses the maximum profit investment for the Company. The commonly used terminology of stock market relating to the bear and bull market and the understanding of the trend plays a crucial role to attain profits aimed at by the company.

There are still two perspectives towards the investment company functioning and the characteristics of the transactions made by such company. One set of claims suggests that the Investment Companies are only supposed to purchase security and earn interest by maintaining them. The other school of thought suggests that the investment company may earn not only by purchase and hold but also selling of the securities.

New kind of Companies recognised under the Act, 2013

Dormant Companies

Where a company is formed under S ection 455 of the Company Act, 2013 for a future endeavour or to hold an asset which may be a physical or intellectual property and has no significant accounting transaction, such a company or inactive company can make an application to the Registrar in the prescribed manner for obtaining the status of the dormant company.

The explanation attached to this provision states about the inactive company prescribing a period of 2 years of inactivity in terms of business transactions, operations etc, or the companies which have not filed their annual returns or the financial statement in the last 2 years. Such transactions do not include all the necessary payment which are made by the company to the Registrar and other payments which are supposed to be made under any other law.

The Registrar allows the certificate of the inactive company to the applicant company. The registrar must maintain the list of dormant companies. A company to remain a dormant company on the books of the registrar has to pay the required sum. The Company on request may make the Dormant Company back to an active company.

Conclusion

Various classifications have been made in this topic of Company based upon various factors of independence, liability, financial conduct etc. These classifications are not to be observed in isolation as the Company may have two or more characteristic features of the companies mentioned above and form a very unique kind for itself. The kinds of companies have only been made so as to ease the understanding of the complex legal being that is a Company.

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This article is written by Devansh Sharma, a student of Law School, Banaras Hindu University. This article deals with the concept and provisions related to the offence of False Imprisonment under the Law of Torts.

Introduction

False Imprisonment can be defined as an act of causing unlawful confinement of one person by another. To constitute an offence of false imprisonment certain factors need to be present such as:

Probable cause for imprisonment,
Knowledge of the plaintiff of his/her imprisonment,
The intention of the defendant while causing imprisonment, and
Period of confinement matters.

There can be cases where any private individual, a police officer or any other public authority may falsely imprison any person. For the act of imprisonment to occur, it is not compulsory that imprisoned person should be put behind bars. The person just needs to be confined in an area where there are no possible ways to escape. The escape is possible only at the will of the person who is confining the other person within that area. The degree of imprisonment does not matter. The main element that is of relevance is the absence of lawful authority to justify unlawful confinement.

As every other tort, false imprisonment also has a defence. The defences available for false imprisonment are:

Consent of the plaintiff;
Voluntary assumption of the risk;
Probable cause; or
Contributory negligence.

The defence of probable cause and consent of the plaintiff are complete defences. While the defence of contributory negligence can be used for mitigation of damages only.

There are also incidents of False arrests. It is also a form of false imprisonment. It is the kind of arrest where an individual is confined by the police officer or private person without lawful authority. False imprisonment and false arrest are nearly indistinguishable except for the terminology used for these offences. These both offences have been held by the courts as a single tort.

There are three kinds of remedies for false imprisonment. They are:

Damages,
Habeas Corpus,
Self-help.

As false imprisonment is a tort, the basic remedy available for false imprisonment is an action for damages which can be due to:

Physical or mental suffering,
Loss of reputation,
Even malicious intent on behalf of the defendant.

If a person is unlawfully confined then the writ of habeas corpus can be used to regain release of such a person from confinement. A person can also exercise reasonable force in order to escape from unlawful confinement.

Constituents of False Imprisonment

Let us discuss the above-mentioned constituents of false imprisonment in a more elaborate way.

Period of Confinement

An action for false imprisonment will always lie if all the requirements of the torts are satisfied. The time period of unlawful detention does not matter in case of false imprisonment. Confinement for a very short period, even if it is for fifteen minutes, is sufficient to impose liability of false imprisonment on the confiner. The time period of confinement is generally of relevance only in the estimation of damages and not of liability.

Confinement for a long period does not necessarily mean that imprisonment occurred is false and compensable. If such a clause is formulated then lawful detention may become unlawful, if the detention is extended for an unreasonable period of time.

The Intention Factor

The tort of false imprisonment must contain the element of intent. A person can not be held liable for the tort of false imprisonment unless the act performed is for the purpose of imposing confinement. He can also be held liable if the act is done with the knowledge that confinement, to a substantial certainty, will result from the act. The intent to confine is the necessary intent for the purposes of false imprisonment. In the process of finding the necessary element of intent, the defendant’s actual motives are immaterial. The plaintiff need not contend that the confinement was unlawful. He just needs to show that the defendant intended to accomplish the act that causes the confinement. Malice is irrelevant in this tort. It is ordinary for the judge to determine, the intention of the defendant in an action for false imprisonment, as a question of fact, from the evidence. Even negligent acts can cause this tort of false imprisonment. For example, if a person A locks person B inside a room being unaware of the fact that there is a person in the room then person A is held liable for false imprisonment.

Knowledge of the Plaintiff

Is the plaintiff’s knowledge of his imprisonment important?

There is no requirement that the plaintiff had knowledge of the imprisonment. If the person alleging false imprisonment was unaware of the restraint on his freedom at the time of his confinement, then too, he can be awarded damages. This can be supported by citing the example of the famous case of Meering v. Grahame White Aviation Co, where a man was persuaded by works police to remain in the office. The man was unaware that if he had tried to leave, then he would be prevented from doing so. The man successfully recovered damages for false imprisonment.

In another case of Herring v Boyle, an action brought by a schoolboy against his headmaster for being detained in the school during the holidays. It was stated by the plaintiff that he was confined because his parents had not paid the fees. The action brought to the court failed. The court held that actual knowledge of detention is not a necessary element of false imprisonment but proof of a total restraint of liberty is sufficient.

So, this clears us on the point of forced imprisonment and knowledge of the plaintiff about such an imprisonment but what if there is a situation where the plaintiff is inside a room or a building and the defendant decides that if the plaintiff comes out of the room or the building then the defendant would try to stop him from escaping. The plaintiff does not get out of the building and the defendant has yet not stopped him. So, has the defendant imprisoned the plaintiff? The answer that might come to one’s mind would definitely be “No.” The thought that the defendant did not confine anyone and so, he cannot be confined just for his mental state of thoughts might arise.

In the case of R v Bournewood Community and Mental Health NHS Trust, ex parte L: CA 2 Dec 1997, this decision was confirmed by the House of Lords that the case concerned a person L who had a history of health problems. The person has spent 30 years in Bournewood hospital. In the year 1994, L was discharged into the community and looked after by paid carers. However, in 1997 after an incident in a daycare centre, L became particularly agitated and voluntarily agreed to go back to the hospital. There, he was kept in an unlocked room. He was not restrained from leaving. However, the staff of the hospital decided that if L attempts to leave then they will charge him under the Mental Health Act 1983 and prevent him from leaving. L did make an attempt to leave and was sectioned. When he was eventually discharged, L sued the hospital. L claimed that his employees had falsely imprisoned him. The Court dismissed the claim. It held that the fact that during that time the hospital staff were prepared to section L if he makes an attempt to leave did not mean the staff had imprisoned him.

Place of Confinement

The term false imprisonment can be misleading. It does not necessarily mean being confined to a jail or prison. In order to constitute the wrong of false imprisonment, there is no need for actual imprisonment in the ordinary sense- i.e. incarceration. In the ordinary sense, any place, whether be it a prison or any place used temporarily for the purpose of confinement, constitutes false imprisonment. If the plaintiff in any manner has been deprived of his liberty completely, for any time, however short, is enough to form this tort. Therefore, the action of false imprisonment can lie, even if the confinement is in a mental institution, juvenile home, hospital or nursing home. For example, a mere unlawful arrest amounts to false imprisonment and so does the act by which a man is prevented from leaving the place in which he is (e.g., a house, a motor car, or a bank etc).

The deprivation of the plaintiff’s liberty should be complete in order to constitute imprisonment that is there must be a boundary drawn on every side of him beyond which he cannot pass. The boundary can be either narrow or broad but it must be definite and complete. To prevent the plaintiff from going in certain directions is not imprisonment. If the person is free to go in other directions then there will be no action for false imprisonment.

If a person induces another to put himself or herself in a place which is impossible to leave without assistance from such a person and then, by words or by other conducts, the person refuses to give such assistance, with the intent of detaining the other, is an act sufficient to commit wrongful confinement and to make such person liable.

In the famous case of Bird v Jones, a public way was blocked due to an enclosure created by the defendants for the purpose of viewing a boat race. The plaintiff in an attempt to use the way entered the enclosure of the defendants. The defendants stopped the plaintiff from walking through the enclosure. They instructed him to go back and use some other route to reach the destination. The plaintiff refused to leave and stayed, for half an hour, in the enclosure. The plaintiff sued the defendants for the offence of committing false imprisonment. The claim was rejected. The court stated that the defendant had done nothing that completely restricted the plaintiff’s freedom of movement. The plaintiff was free to leave the enclosure and find any different route for getting to the place he wanted to. Hence they cannot be charged with false imprisonment.

Use of force or its reasonable apprehension

Depriving any person of his or her liberty or compelling him/her to go in a direction in which he/she doesn’t wish to go, by use or exercise of force or expressed/implied threat of force, is false imprisonment. Therefore, the confinement or restraint necessary to create liability for false imprisonment can be imposed by compulsive physical force or by the actual use of physical force. But the actual use of physical force is not always necessary. The essential thing is the restraint of the person. It can be done by either threat or by using actual force or by inducing threat by the use of words that cause a suitable apprehension of the use of force in the mind of the other person.

If the words or conduct are of such a kind that can induce reasonable apprehension of force, to such an extent that the person is effectually restrained then it will constitute false imprisonment. Therefore, in order to be actionable, the act performed by the defendant must at least create a basis for the reasonable apprehension of force. The circumstances surrounding the incident and the relationships surrounding the parties also have an important effect in this case.

Other Factors

Assault is an ingredient of false imprisonment but it is not considered as a constituent of false imprisonment. Proof of injury to the individual persons, character or reputation is not included in an action of false imprisonment.

It has been held on many occasions that the want of probable cause is not an essential element of false imprisonment and is not needed to be alleged by the plaintiff. Though some courts expressly require the plaintiff to show a lack of probable cause in a false arrest action.

Defences

The defendant in order to avoid being liable for false imprisonment, must either show that he had reasonable grounds to justify his imprisonment or that he did not imprison the plaintiff. The presence of probable cause for imprisonment is not a defence. It can be a defence if it constitutes reasonable grounds for acting in making an arrest without warrant or in defence of property. An offer to release the plaintiff for a temporary time period has no effect on the action against false imprisonment.

Irrespective of the above fact, there can be certain other factors due to which the damages can be mitigated or the defendant can be exonerated from liability. If a person acting under a statute arrests a person, with the power that has been vested in him by the statute, then that person cannot be held liable. For example, many state legislatures in the USA have enacted statutes giving the merchants a qualified privilege to detain suspected shoplifters.

Consent

Liberty is an inalienable prerogative of which no one may divest himself. These lines were used to indicate that consent of the plaintiff to false imprisonment cannot be a defence as liberty cannot be waived off. It is often held that the consent of the plaintiff to acts of imprisonment restrict the right of recovery thereof. Consent of the plaintiff needs to be free from duress, coercion, fraud or mistake. There can also be implied consent in certain circumstances.

The maxim volenti non fit injuria( plaintiff consents to suffer the consequences of the act voluntarily) applies to the case of false imprisonment. The restraint must be involuntary. There is no act of false imprisonment if the plaintiff agrees of his/her free choice, to act in compliance with the request of the defendant. One who enters the territory or property of others, upon conditions that involve some restrictions on his liberty, cannot complain of false imprisonment.

In the renowned case of Robinson v Balmain New Ferry Company Ltd., the plaintiff desired to row a ferry across a river. In order to reach the wharf from which the ferry would depart, he had to go through the turnstile operated by the defendants. There were notices on either side making it clear that the charge of using the turnstile was one penny. The plaintiff paid the penny, went through the turnstile. He waited on the wharf for the ferry to arrive and pick him up. The plaintiff then changed his plans and decided to not to take the ferry. He tried to go through the turnstile but the defendants resisted. They stopped him by exclaiming that if he wants to use the turnstile then he has to pay one penny. The plaintiff refused to pay the penny. The defendants didn’t allow him to use the turnstile. The plaintiff sued the defendant claiming that the defendants have falsely imprisoned him. The court dismissed his claim by stating that by walking through the turnstile, the plaintiff voluntarily agreed to take the risk. He knew that if he fails to pay a penny then he will not be allowed to go back and that he could be imprisoned by the defendants.

In Herd v. Weardale Steel, Coal and Coke Company Ltd., the plaintiff was a minor who descended to the bottom of the lift at the start of his shift at work. On reaching the bottom, he refused to do certain work and asked to be lifted up to the surface. Though the plaintiff was allowed to go back to the surface at the end of the morning shift, even then he was not taken back when all the workers of the morning shift were being taken to the surface. The plaintiff sued the defendants for the act of committing false imprisonment. The House of Lords dismissed the claim. They held that the plaintiff voluntarily took the risk. He can be made to wait if he did not work and wanted to be taken back to the surface.

Similarly, it was seen in both the cases of Robinson v Balmain New Ferry Company Ltd and Herd v Weardale Steel, Coal and Coke Company Ltd that volenti non fit injuria applies to the tort of false imprisonment exonerating the defendant from his/her liability.

Contributory Negligence

Though the negligence of the plaintiff can restrain the recovery for the wrong of false imprisonment but the negligence of the plaintiff can not be a defence for false imprisonment. In any case, the plaintiff’s contributory negligence can be proved for the mitigation of damages but it can not be taken as an absolute defence for false imprisonment.

Probable Cause

It is a complete defence to the tort of false imprisonment, especially false arrest. When the probable cause is established then the action that lies against the tort of false imprisonment and false arrest fails completely. The test for probable cause for imprisonment and arrest is an objective one. It is based not on the individual’s actual guilt, but upon the information of credible facts or the information that would make a person of ordinary caution believe that the accused is guilty. If a defendant, who has established the probable cause for the alleged tort of false imprisonment or false arrest, then he has no additional obligation to prove. Even malicious motives on part of the defendant will not support any claim if probable cause is found to exist.

On the other hand, some courts have expressly implied that the plaintiff in a false arrest action is required to show a lack of probable cause for the detention, or indicated that the plaintiff has the burden of proving that lack of probable cause by affirmative pieces of evidence.

necessity can be one of the probable causes. If the defendant has imprisoned the plaintiff as it was necessary for him to imprison the plaintiff in the way he did then the defendant possesses a lawful justification or excuse of imprisoning plaintiff for the way he did. Suppose, the defendant locked plaintiff in a room fearing that if the plaintiff is not confined, then the plaintiff will assault a third person. In such an event, if it can be proved that it was necessary on his part to perform such an action then he can not be held liable for the act of false imprisonment.

Sometimes, the act of imprisonment can be justified on the grounds that the defendant was acting in support of the law. But the courts are anxious to see that the liberty of the subjects is not curtailed except under due process of law. Thus, the onus of proving a legal justification lies on the defendant.

Remedies for False Imprisonment

There are broadly three remedies for false imprisonment, which can be categorized as:

Action for Damages

Damages in acts of false imprisonment are those which arise from the detention. A person injured by the conduct that is either reckless or intentional is entitled to compensatory damages. He is also under no duty to mitigate such damages. There is no legal provision for the assessment of the damages. This is entirely left on the court to measure damages.

Elements of injury to the person that are included in the concept of recovery of damages include:

Injury to the person and physical suffering,
Mental suffering and humiliation,
Loss of time earnings and interruption of businesses,
Reasonable and necessary expenses incurred,
Injury to the reputation,
Generally the deprivation of any right caused by the loss of liberty such as the plaintiff’s loss of the family company during the period of arrest.

The arresting officer is liable for the damages in case of false arrest. The officer can be liable up to the time he produced the person before the judicial officer but he is not liable thereafter. The damages for false arrest need to be measured only to the time of appearance before the court or indictment. The defendant is liable for all the consequences resulting from false arrest, where there exists a continuity between an unlawful arrest and subsequent discharge of the accused as to constitute one continuous unlawful act.

The purview of damages recoverable goes beyond those which are already suffered. The general rule existing is that, during any action for personal torts, future damages to an injured person also form an element of recovery, where there is a reasonable chance that they will result in false imprisonment.

The broad and general rule declared in that the person causing the wrongful confinement is liable for all the natural and probable consequences of such an act. Where a plaintiff is injured not only due to false imprisonment but also due to another non-compensable cause, only those damages that are found to be a natural result of false imprisonment are recoverable.

Nominal and Compensatory Damages

In a personal tort action, the general rule that the plaintiff is entitled to recover such a sum as will be just and fair compensation for the injuries sustained. The recoverable damages are limited to such compensation, in the absence of conditions validating an award for exemplary damages, applies in case of false imprisonment.

Mere unlawful confinement or detention can also constitute the foundation for the recovery of at least nominal damages. Awarding only nominal damages can be erroneous and insufficient in circumstances where the proven facts point to a right to greater damages.

The damages recoverable must be accepting of ascertainment with a reasonable degree of certainty and damages for false imprisonment which are merely assumed are not recoverable. It has been held that the person can be imprisoned without having knowledge of his/her imprisonment. In such cases, the plaintiff might obtain only nominal damages.

Mental suffering is usually considered an injury which includes freight, shame or mortification generating out of the indignity and disgrace. It can be a consequence of illegal detention. Compensation may be made for such an act of false arrest or false imprisonment.

The fact that no physical injury was done to the plaintiff is no defence. The complainant of false imprisonment can not be denied the recovery of reasonable compensation for mental suffering. Elements considered in assessing mental suffering are humiliation, freight and shame.

Punitive, Exemplary and Aggravated Damages

In cases where imprisonment is affected maliciously, insultingly, oppressively and recklessly with an intent to oppress and injure, in such cases, the jury can go beyond the rule of compensation. The jury is free to inflict punishment to the defendant that may be awarded exemplary or punitive damages. Punitive damages are provided in cases where the conduct of the defendant is recklessly indifferent to the rights of others or in intentional or wanton violation of others’ rights. In certain circumstances, exemplary damages can be awarded, when there is an abuse of power by the state.

Aggravated damages can be provided in any proper case when the imprisonment of a nominal character is of offensive nature or hurt fell to the plaintiff’s feelings. Punitive damages have been given as a means of prohibiting the defendants from the same kind of future conduct. Punitive damages have been provided in most of the cases of false imprisonment when the act was performed in a malicious manner.

Even in such jurisdiction where awarding of exemplary damages is generally allowed, such damages can not be permitted in the absence of actual or real damage suffered by the plaintiff. However, actual or real damage has depicted that extent is a tool for determining whether punitive damages are allowed. Punitive damages have also been permitted where an arrest is made with the knowledge that the arrest is in violation of the court’s order.

Courts have often stated that any malice or malicious conduct will result in awarding of exemplary or punitive damages in an action for false imprisonment or false arrest. Similarly, presumed or implied malice has been stated to have sustained such awards of exemplary or punitive damages. Punitive or exemplary damages will not be permitted in cases where the false imprisonment is brought about in good faith, without malice in fact or in law and there is no element of oppression.

Habeas Corpus

The writ of Habeas Corpus can be issued by the Supreme Court of India and High Court of States under article 32 and 226 respectively. This is generally passed to deal with the cases of false arrest or for prolonged detention by police officers. The person can apply for the writ upon which the court will command to bring him to the court on a certain day. The decision will be dependent on whether the prisoner will be released or if the detention is proved then he will be speedily presented before the court for a fair trial.

Subject to certain rules of the High Courts, an application for habeas corpus can be made to the High Courts by the confined person or by any person on his behalf.

Self Help

An unlawfully detained person can use self-help to escape. Self-help includes reasonable force. A person may use reasonable force to defend himself from an unlawful arrest. The force used must be proportionate and necessary in the circumstances, which means it should be the minimum needed force for the circumstances. This right is risky as the power to arrest is of both nature and is used not only for the commission of offence but in pursuance of law as well, when arresting in a reasonable suspicion thereof. Hence, an innocent person who forcibly resists can be liable for battery, if the arresting officer has reasonable grounds for his/her suspicion.

Conclusion

The right to personal liberty and freedom has been guaranteed by the Constitution under Articles 19, Article 20 and Article 21. The liberty of an individual is the utmost and prime responsibility of any state. Thus, a clear understanding of the nature of the offence and the available legal remedies is necessary. The state must thrive to act on such issues of false imprisonment more seriously and try to formulate more stringent laws in order to deter the ones performing such torts.

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This article is written by M Anulekha, a fourth-year student from Damodaram Sanjivayya National Law University, Pursuing B.A LLB. In this article, the author discusses the role of intellectual property rights in biotechnology.

Introduction of the Intellectual Property Rights

Licensed innovation eludes the elite rights allowed by the nation above manifestations of personality, specifically, developments, abstract and imaginative works, particular signs and plans utilized in trade.

Modern innovation is critical for the medicinal business. Utilization of the Intellectual Property framework by Small and Medium Enterprises in the medicinal business relies generally upon the business technique of an organization, its size, assets, imaginative limit, serious setting and field of ability. Research-based, advancement drove organizations that look to grow new medications improve or adjust existing medications or grow new pharmaceutical/medicinal hardware or forms, will, in general, depend vigorously on the patent framework to guarantee they recuperate the ventures caused in innovative work.

The present Intellectual Property Rights (IPR) system is empowering commercialization of seed improvement, monoculture, the security of new plant assortments, microorganisms, and hereditarily changed living beings. As a result, our rich biogenetic decent variety is being dissolved irreversibly. We should discover a way to make an elective methodology that will acquire harmony between the formal Intellectual Property (IP) framework and maintainable parts of biodiversity.

Associations that rely upon allowing in giving approvals pharmaceutical things ought to be instructed about the patent system so they can deal sensible and balanced approving understandings. Small and Medium Enterprises in the medical business may utilize the abundance of data contained in patent reports as essential info to their Research & Development, to get thoughts for additional development, to guarantee their “opportunity to work” or to discover.

Present-day structures, plant combination security, is normally less relevant to generally Small and Medium Enterprises in the medicinal branch. However, this could vary depending upon the item offering and technique of every association. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) gives for least standards and principles in regard to the accompanying classes of IPR.

Meaning of the Biotechnology

Biotechnology is an innovation that uses natural frameworks, living creatures or parts of this to create or make various items.

With the improvement of a hereditary building during the 1970s, inquire about in biotechnology (and other related zones, for example, medication, science and so forth.) grew quickly on account of the new probability to make changes in the life forms’ hereditary material (DNA).

Today, biotechnology covers a wide range of controls (eg. hereditary qualities, natural chemistry, atomic science, and so forth). New innovations and items are built up each year inside the regions of medication (advancement of new meds and treatments), farming (improvement of hereditarily adjusted plants, biofuels, organic treatment) or modern biotechnology (generation of synthetic compounds, paper, materials, and nourishment).

Biotechnology helps living beings to fight against the illness. At present, there are in excess of 250 biotechnology human services items and antibodies accessible to patients, numerous for already untreatable maladies. More than 13.3 million ranchers around the globe utilize rural biotechnology to build yields, keep harm from creepy crawlies and bothers and lessen cultivating effect on the earth.

What’s more, more than 50 biorefineries are being worked across Northern America to test and refine advances to create biofuels and synthetic compounds from sustainable biomass, which can help diminish ozone-depleting substance emanations.

Uses of the Biotechnology

Ageing to Produce Foods

Ageing may be the eldest biotechnological revelation. More than 10,000 years prior to humanity was delivering wine, lager, vinegar and bread utilizing microorganisms, principally yeast. Yoghurt was created by lactic corrosive microscopic organisms in milk and shape was utilized to deliver cheddar. These procedures are still being used today for the creation of present-day nourishments.

Modern Fermentation

In 1897 the disclosure that compounds from yeast can change over sugar to liquor lead to mechanical procedures for synthetics, for example, butanol, CH3)2CO and glycerol. Ageing procedures are still being used today in numerous cutting edge biotech associations, regularly for the generation of chemicals to be utilized in pharmaceutical procedures, natural remediation, and other modern procedures.

Nourishment Preservation

Drying, salting and freezing sustenances to thwart disintegration by microorganisms were penetrated at some point before anyone genuinely understood why they worked or even totally acknowledged what made the sustenance ruin regardless.

Isolates

The act of isolating to forestall the spread of ailment was set up sometime before the starting points of infection were known. In any case, it exhibits early acknowledgement that sickness could be passed from a tainted individual to another sound person, who might then start to have manifestations of the ailment.

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Specific Plant Breeding

Harvest improvement, by choosing seeds from the best or most advantageous plants, to get another yield having the most attractive qualities, is a type of early harvest innovation. Ranchers discovered that utilizing just the seeds from the best plants would inevitably upgrade and reinforce the ideal qualities in resulting crops. In the mid-1860s, Gregor Mendel’s investigations on inheritable qualities of peas improved our comprehension of hereditary legacy and lead to practices of cross-reproducing (presently known as hybridization).

Intellectual Property Rights & Biotechnology

Advancements of the biotechnology have been underlined by the various departments of the biotechnology. Interestingly, most creating nations don’t have solid IPR systems and achievement instalments. Licensed innovation (IP) is key to the biotechnology business, and carries with it a measurement, encouraging community-oriented action, regardless of whether it is a medication disclosure or clinical or advertisement related preliminaries.

Basically, collective movement is the cooperative energy between India’s capacity to give conditions to explore, clinical preliminaries and advancement, innovative lead and capital accessibility in created countries. The fruitful interpretation of these cooperative energies into economically reasonable applications and attractive items basically relies upon the similarity of guidelines that manage the enlistment and insurance of intellectual property, beginning from the shared procedure.

Importance of Biotechnology

The Biological Diversity Act, 2002 (hereinafter referred to as BD Act) provides a mechanism for access to the genetic resources and benefit-sharing accrued therefrom. Section 6 of the BD Act came into force on 1st July 2004 and prescribes that obtaining IPRs from the utilization of biological resources in India is subject to the approval of the National Biodiversity Authority (hereinafter referred to as NBA).

It is considered to be a science relating to life and that includes the utilization of innovation, drugs, and various valuable things. Present-day use of the term incorporates hereditary building just as tissue culture and cell advance. The idea envelops a wide scope of techniques for changing living beings as per human purposes – returning to the training of creatures, development of plants, and “upgrades” to these through reproducing plans that utilize counterfeit determination and hybridization.

For the learning of basic normal methods, the ability to isolate and escalate a particular quality from the enormous number in a living being’s genome (the finished arrangement of qualities or hereditary material present in a cell or life form). Doubtlessly, the closeness of complete genome movements for an expanding number of living things vows to change the way by which these sciences – and the undertakings subject to them.

How Intellectual Property Rights can Protect Biotechnology?

Intellectual property rights protect one’s innovation. And in biotechnology also the inventor can be protected by intellectual property rights, but to protect his/her rights one should prove his/her novelty and innovation of that particular product. According to section 2(1)(j) of the Patents Act, 1970 talks about the invention. It says that for the grant and protection of the invention there should be a novelty in that invention.

The below following examples in which the intellectual property rights protected the biotechnology:

Here is one case of how protected innovation rights work in the medicinal services industry. Government assurance permits organizations to utilize the ® image with a trademark name to show that it has an enrolled trademark and that nobody else can utilize that name. More than one organization may sell a similar substance compound, which implies a similar medication, however, just one organization can legitimately utilize the trademarked name to advertise that medication.

For instance, while numerous organizations sell the energizer tranquillize fluoxetine hydrochloride, just Eli Lilly can call it Prozac. In like manner, no one but Roche can utilize the trademarked name Tamiflu to showcase a medication called Oseltamivir that is intended to forestall and treat flu. Trademarks aren’t simply utilized with drugs, in any case; they’re additionally utilized with medical clinic names, doctor practice names and different elements with particular marking. This is vital to organizations right now, where marking, promoting and pictures are focal parts of business tasks and vital situating.

As another instance, biotechnology organizations use licenses to secure their protected innovation rights to medicate conveyance gadgets. AstraZeneca possesses the licensed innovation rights to the Symbicort Turbuhaler, which is the medication budesonide/formoterol in a dry powder inhaler for the support treatment of asthma and COPD. Other human services organizations use licenses to secure their protected innovation rights to gadgets, for example, braces, prostheses, vision testing machines and the PC frameworks utilized in social insurance the executives.

Indian Pharmaceutical Industry

The Patent Law Treaty (PLT), The Trademark Law Treaty (TLT) has made some amazing progress, being nearly non-existent prior to 1970 to a noticeable supplier of human services items, meeting just about 95 for each penny of the nation’s medicinal requirements. Nowadays the business is the front position of scientific technology-based enterprises with vast going capacities in the intricate field of medication production and innovation. The positions are extremely high in developing countries, regarding innovation, quality, and scope of meds fabricated.

From straightforward migraine pills to modern anti-toxins and complex cardiovascular mixes, pretty much every sort of medication is presently made domestically. Worldwide organizations related to this area have invigorated, helped and initiated this dynamic advancement in the previous years and assisted with putting developing countries on the medical guide to the universe. The medical segment developing is exceptionally divided into enlisted elements with serious value rivalry and government value control. It has extended radically over the most recent two decades.

Governments’ Role in Biotechnology

The innovation strategy of the legislature and the Vision Statement on Biotechnology has been given by DBT to give a system and give vital heading to various divisions to quicken the pace of improvement of biotechnology in developing countries. This arrangement further intends to chalk out the way of progress in divisions, for example, farming and nourishment biotechnology, modern biotechnology, restorative and therapeutic drug, demonstrative biotechnology, bio-building, nanotechnology, clinical biotechnology, condition and intellectual property and, patent law, copyright law, trademark law, design law etc.

Licensing Biotechnology Inventions in India

The IPO considers biotechnological developments to be identified with living elements of characteristic starting point, for example, creatures, people including parts thereof, living elements of the fake starting point, for example, small scale life forms, immunizations, transgenic creatures and plants, organic materials, for example, DNA, plasmids, qualities, vector, tissues, cells, replicons, forms identifying with living elements, forms relating to organic material, strategies for treatment of human or creature body, natural forms or basically organic procedures. The accompanying biotechnological developments are not considered patentable under Section 3 of the Indian Patent (Amendment) Act 2005.

Living elements of the characteristic root, for example, creatures, plants, in entire or any parts thereof, plant assortments, seeds, species, qualities also, smaller scale living beings.
Any procedure of assembling or generation identifying with such living substances.
Any strategy for treatment, for example, therapeutic, careful, therapeutic, prophylactic indicative also, remedial, of people or creatures or on the other hand different medications of comparable nature.
Any living substance of fake beginning, for example, transgenic creatures and plants, or any part thereof.
Natural materials, for example, organs, tissues, cells, infections and all the way toward getting them ready. Basically natural procedures for the creation of plants and creatures, for example, a technique for intersection or reproducing.

Rights of Plant Varieties

PBR’s are utilized to secure new assortments of plants by giving restrictive business rights for around 20-25 a long time to advertise another assortment or its regenerative material. The assortment must be novel, particular, uniform, and stable.

This insurance keeps anybody from developing or selling the assortment without the proprietor’s consent. Special cases might be made, nevertheless, for both research and use of seed spared by a rancher for replanting. International Union for the Protection of New Varieties of Plants system of the plant variety protection says that in section 3 it talks about the protection of Genera and some specified species.

Patents

A patent is a restrictive right given to an innovator to prohibit all others from making, utilizing, selling or offering to sell the creation in the nation that conceded the patent right, and bringing it into that nation. In horticultural biotechnology, licenses may cover, for instance, plant change techniques, vectors, qualities, and so forth. Furthermore, in nations that permit protecting of higher living things, transgenic plants or creatures. Section 3,5 of the Patents Act, 1970 protects the inventions.

Conclusion

Obligations and Resources would make a significant start in the progress of proficient and powerful utilization of medical usage for the construction of developing countries. The developing countries medical industry will guarantee that basic medications at moderate costs are accessible to the immense populace of this sub-landmass and furthermore keep giving work for a large number of people.

The fundamental course of instruction ought to be intended to guarantee that the recently qualified drug specialist has the vital information and aptitudes to initiate rehearsing skillfully in an assortment of settings including network and emergency clinic drug store and the pharmaceutical industry. Continuing with capable improvement should then be a durable obligation for each practising medication master.

The possibility of National schools of medication stores should be set up to make and present a model instructive program. Medication authorities should get figured out how to look into medication the officials and result checking. Medication store calling ought to mastermind the possibility of drugstore practice at system and crisis facility sedate stores through reasonable planning and pay. Structures of Medicine into a standard game plan of prescription of things to seek widely inclusive human administrations besides, ensuring human administrations for all – especially for the welfare of destitute individuals.

India has cruised through the venture from a condition of an all-out absence of IP attention to the current situation with the proactive quest for IP in the outskirts territories of innovation. Having released India’s IT potential in the later past, the opportunity has now come to bridle the colossal qualities and energies of the nations in the Biotechnology Sector.

Besides, IPs produced by the open part can be viewed as resources that can be traded for private division claimed IPs or utilized as negotiating concessions in innovation move dealings. Organization between the private and open divisions in innovation improvement through sharing of ability, what’s more, IP can rush innovation move and obtain on the two sides.

References

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This article is written by Eho Menjo, an alumnus of Arunachal Law Academy, Lekhi, Naharlagun and pursuing an Advanced Criminal Litigation and Trial Advocacy course from LawSikho. This article deals with the essentials of a commercial lease agreement.

Introduction

A lease agreement is a contract which outlines the terms under which one party agrees to rent the property owned by another party. The agreement bounds the lessee to pay regular payments for a specified period in exchange of property of the landlord. Both the lessor and lessee have to face consequences if they fail to obey the terms of the contract.

The Commercial lease agreement is an agreement between landlord and tenant to rent property with the intention to operate a business.

When is this Document Needed?

A lease deed is a written contract between the landlord and the tenant. Lease deed is generally required when the property is leased for a long time, ranging between 1-5 years or even for a longer period. In such cases, a lease deed agreement plays an important role in maintaining the relationship between the landlord and the tenant and lays down provisions that legally bind them.

Types of Commercial Lease Agreements

There are several kinds of Commercial Lease Agreements. Following are some important types:

Full Service or Gross Lease

Full service or Gross Lease Agreement is that lease agreement which generally includes Expense Stop. Expense Stop is a mechanism of Full service or Gross lease agreement in which the lessee agrees to pay fixed operating expenses and landlord is responsible for paying all operating expenses below the Expense stop.

Expense stop can take the form of an agreed amount, typically expressed in an amount per square foot or per square meter or base year stop. A base year stop sets the expense stop equal to the actual operating expenses in the first year of the lease. For instance, if the actual operating expenses in the first year amounted to $100 per square foot, the expense stop would be set at $ 100 per square foot and the tenant would be responsible to reimburse the landlord for any expense above $ 100 per square foot in any subsequent year.

Net Lease

Net lease is a contractual agreement where a lessee pays all or a portion of the taxes, maintenance costs and insurance fees for a property in addition to the rent fees. Net lease agreement is commonly used in a commercial real estate business.

Net lease is one of the most popular tools for commercial real estate investors who buy the property for income and don’t want to take any headache for maintenance, taxes and insurance etc. Generally, Lessor uses the Net lease contract to shift his/her burden to the tenant and take the benefit from the leased property without any administration of the property.

Following are the various types of net lease agreement:

Single Net Lease Agreement:

Single Net lease agreement is a commercial real estate lease agreement where the tenant agrees to pay all the taxes related to property in addition to rent cost. A Single Net lease agreement permits the tenant to take all the responsibilities of the property from the landlord. A single Net lease agreement is a less common commercial lease agreement.

Double Net Lease:

Double net lease is an agreement in which the lessee or tenant is responsible for both, premium of insurance of the building and property taxes of the leased property. In a single net lease, tenants are required to pay property taxes despite the rent cost. However, a double net lease is different from a single net lease and passes larger expenses in the form of insurance payment. The landlord is still held responsible for overall maintenance of property. Each month, tenants have to pay an additional payment in spite of the rent fees. Double net lease is commonly used in commercial real estate business.

Triple Net L:

Triple Net Lease agreement is one of the commonly used commercial lease agreements. A Triple Net Lease agreement is an agreement where the tenant promises to pay all expenses related to the property including real estate taxes, insurance and maintenance, and all this payment is in addition to the rent cost. In absence of Triple, Double, and Single Net lease agreement, all this payment has to be paid by the landlord.

Modified Gross Lease

A Modified Gross Lease Agreement is a type of real estate agreement where the tenant or lessee agrees to pay the fees from the inception of the agreement. Modified Gross Lease is used for commercial spaces such as office buildings and it is usually used in an agreement where there is more than one tenant for a building or property. In this lease, the tenant or lessee has to pay all the taxes related to the parts of the building room he or she possesses.

Modified gross lease is a combination of gross lease and net lease. In modified gross lease tenant directly takes over the expenses related to his or her unit, including utilities, maintenance and janitorial costs, while the owner or lessor has to pay all other operating expenses of that building or property.

Percentage Lease

Percentage lease is a commonly used commercial real estate lease, in which the lessee or tenant agrees to pay a minimum rent fee and share a percentage of the revenue with the landlord.

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Essential Elements of a Commercial Lease Agreement

Definitions

The term ‘lease’ is defined under section 105 of The Transfer of Property Act, 1882 and it states that, a lease of immovable property is transfer of a right to enjoy the property or a specific or certain period to the transferor by the transferee. The transfer is made in consideration of the price paid or promised to be paid.

Term

Commercial leases usually include the following terms:

Lessor and Lessee

According to section 105 of the Transferor of Property Act, 1882, one who transfers the property is known as the lessor or transferor and the one who receives the property is known as the lessee or transferee.

Premium

Premium is defined under section 105 of the Transfer of Property Act, 1882. According to the section, the price paid for obtaining a lease of immovable property is called premium.

Base Rent

Tenants have to pay a predetermined amount to the landlord every month for the office space. Base rent is different from the operating expenses and revenue. It is almost fixed and is usually fixed on a square foot per year basis.

Additional Rent

Additional fees is an amount that a tenant has to pay to the landlord for the extra expenses like after house service, maintenance of building and percentage rent (are often considered as additional rent expenses and not included in the base rent).

Use Clause

Many lease agreements will include use clause to define the activity the lessee or tenant can participate in or on the premises. These clauses protect the property from damage and limit the liability of the property owner or landlord. If possible, ask for a maximum usage clause just in case the business expands into other activities.

Free Rent

Free rent is also known as abated rent, free rent refers to the specified amount of free rent which is provided by the landlord to the tenant for specific month, usually at the beginning or at the conclusion of a lease. However, these offers are rare.

Turnkey

The word turnkey is one of the most popular words in real estate business and industry, turnkey is used to describe space that is ready to move into. If there is no time and you have less chance to choose new office space, agree to the terms or provisions, and move into the new space or area, a turnkey property can save time and aggravation, particularly if you do not need to make any of your own upgrades to the area. In a turnkey property, all of the fixtures, wiring, flooring, and design or decorative items like carpet and paint are already in place.

Usable square feet

Usable square feet is the space of square feet used directly and solely by lessee, including private restroom available to the lessee along with closets, storage and any other space to which only the lessee has access.

Rentable Square Feet

Rentable square feet is a term that refers to common spaces that are shared among multiple lessees along with usable square feet. More concisely, rentable office space is calculated by adding the usable square feet of the office space and a prorated share of any common space or area. Such common spaces typically incorporate shares, hallways, lobbies, restrooms and common areas.

Security Deposit

A security deposit amount is a payment a tenant makes to the landlord before the inception of a lease agreement. The security payment does not go towards rent, but rather it is held by the landlord as “security” against future loss that may occur during the lease term.

Security deposit amount is refundable amount, when a tenant moves out from the office space landlord deducts the deposit amount if he found some defaults in the space. However, if there is no major damage that occurred during your lease, you will likely be refunded the entire deposit amount within 30 days.

Property Use and Occupancy Details

The lease should clearly describe the property under lease. It is important to determine exactly what space you are renting including the area, address, location, structure, restrooms, elevators and hallways, etc. Lease is typically paid at a square foot rate. Often commercial lease deeds are old and not updated and the actual space being leased is less due to remodelling, repairs or simple measurement practices. The actual space being leased needs to be determined to avoid overpaying for the lease.

Improvements

A lease should address what modification or improvements can be made to the space, which party will pay for the improvements, and whether the lessee or tenant is responsible for giving back the unit to its original condition at the end of the tenancy.

Property Damage

Most of the commercial leases commonly include one or more provisions dealing with the subject of who is liable for wear and tear to the leased property during the time of the tenancy. Tenants need to keep the space in the same condition in which they were received, and in the condition in which the lessee was obligated to keep during the lease. The landlord obtains insurance over the buildings/premises. Thus, a lessee is required to surrender the area or space in good condition at the end of the term.

Duties and Obligations

Duties and obligation of the landlord

If you are renting out a residential property to tenants, it’s your legal obligation to ensure that the facilities are “habitable” by maintaining the plumbing, repair of building and keeping it structurally sound. Following are some important duties and obligations of the landlord:

Maintenance

According to section 108(f) of Transfer of Property Act, 1882, one of the important duties and obligations of the landlord is to maintain or repair a building property and make sure that the tenant always gets the necessary items like running water, electricity, and so on, and if such repairs are done by lessee then he has right to deduct such expenses from rent fees. Landlords must also maintain common areas, keep up with repairs and follow all health and building codes.

Deliver the possession of unit

According to section 108(b) of Transfer of Property Act, 1882, since tenants sign the lease agreement, it is the landlord’s obligation to deliver the possession of the unit or office space. If tenants move into the unit or office space after the inception of agreement and finds that the unit is not vacant then the tenant may take legal action against the landlord for the same.

Rent Receipt

A landlord is obligated to issue a rent receipt to the tenant who makes payment of rent. Receipt must contain the details of tenants such as name of the tenant, month and year of rent paid, the amount received and sign of the landlord or his authorized person upon receipt.

Safety

Landlords must ensure the safety and maintenance of the tenants of the leased property. As a landlord, it’s a duty to maintain and inspect the leased property and provide a free and safe environment within the leased property.

Duties and obligation of tenants

Rent

The first and foremost duty of a tenant is to pay rent on time. Rent is defined under section 105 of Transfer of Property Act, 1882, as the money, share, service or other thing to be rendered. The amount of rent is fixed on the lease agreement. If, tenant defaults in rent payment then the landlord may deduct the amount from the security deposit and take legal action on the regular defaults.

Refrain from using the property for illegal purposes

The tenant has a duty to the landlord to avoid the illegal use of the leased property. The tenant must be honest about his or her intentions for using the premises. Suppose, tenants enter into a lease agreement with a landlord by saying that he would use the property for office space but in actual, he is using the leased property for some other illegal purposes. In this case, the landlord has the right to terminate the lease.

Duty not to commit nuisance

The tenant must not unreasonably interfere with the use and enjoyment of possessors of other adjoining premises. It is very difficult to define unreasonable because it differs from case to case. For this reason, landlords define the restriction by putting terms in the lease that prevent tenants from causing disturbance and committing a nuisance to the other tenants by making too much noise, etc.

Allow the landlord to enter the premises

Since the landlord is responsible for the premises, he/she has all right to the tenant’s or lessees dwelling. However, the landlord can not enter the tenant’s office space without prior notice.

Extension of Lease

Lease is a legal agreement and is binding upon the lessor and lessee for a certain period. After the lapse of the period fixed in the lease agreement lessor and lessee have few options available. The lessee may vacate the property or agree to renew the lease agreement. The terms of the original lease are still in force and only the duration is extended for a certain period.

Waivers

According to the Cambridge dictionary waivers means an agreement that you do not have to pay or obey something. Waivers are defined as follows: when the landlords know that the tenant is breaching the lease, yet conducts the landlord-tenant relationship in the normal course, then the court may infer that the owner has waived the breach. For example, landlords did not accept the security deposit of the tenants during lease agreement and allow him to stay without any security deposit then later on he or she can not claim security deposit from lessee or tenant.

Disputes resolution

Many times serious disputes arise between landlords and tenants. The lease will provide alternative methods such as mediation, arbitration or filling an action in court through which they can settle the dispute. However, landlord-tenant disputes are usually resolved out through representation of counsel from dispute resolution lawyers from each of the involved parties.

Following are the popular means through which landlord tenant dispute can be resolved.

Arbitration

Arbitration is one of the dispute resolution processes where parties can resolve their disputes. A neutral third party is appointed to negotiate the disputes. The neutral third party is known as the arbitrator and the parties have to submit their disputes to arbitration. The arbitration can decide the resolution and the parties are bound by the decisions. Arbitration is more formal than mediation.

Mediation

Unlike arbitration, mediation is not binding on the parties. Mediator is a neutral third party which helps the disputed parties to resolve the disputes. Arbitration and mediation are faster and less expensive than litigation in the regular court.

Court

If the dispute is not resolved through the alternative dispute resolution then the parties may go for regular litigation in the court.

Miscellaneous

Apart from the above mentioned points, landlords and tenants must follow some miscellaneous rules or laws which are very important in a lease agreement.

The terms of the lease shall be construed in accordance with the laws of India.
The lease agreement shall be executed in two counterparts and the counterparts shall be deemed to be original. The lessee shall retain one set and the lessor shall retain another set.
Lessee shall always observe and follow all the terms and conditions of the lease agreement.
Lessee shall not keep any good which is not permissible to be kept as per law.
Any claim arising out of lease deed, or any breach or alleged breach thereof, shall be settled as per the terms in lease deed or through regular court.
The lease agreement shall amend with the consent of both parties.

Do’s and Don’ts of a Commercial Lease Agreement

The right space for your office or business can make or break your success, especially if it is your first time lease agreement. You need to know the do’s and don’t of leasing before you hit the streets in search of a location for your business or office.

Commercial leasing do’s

Consult Your Attorney:

Commercial lease is a complex legal document containing several details and conditions. Unless you have a legal background, there is a big possibility you will miss something important in your lease deed, therefore, you must have your attorney’s review before you sign the lease deed.

Negotiate:

Commercial space landlords always negotiate with tenants. In fact, most of the landlords intentionally inflate rental quotes to negotiate with tenants or lessees and to get good rent fees. So from a tenant’s perspective, it’s important to negotiate the landlord until it reaches an agreement.

Check references:

Many landlords will inevitably check your references, but you should also check your landlord’s references as well. If a landlord doesn’t live up to his responsibilities, he can become an albatross around your company’s neck. Therefore, before entering into an agreement you should verify the track records of the landlord.

Value flexibility:

Unlike residential leasing, flexibility must be the primary consideration for growing companies. Most of the time location will influence rental costs, a business on the move can’t afford to lock into a long term lease deed. If the business really takes off, you could find yourself stuck in an area that you have outgrown long ago.

Location:

Location is one of the factors responsible for the success of the business or office. Therefore before selecting a location for your business, things to consider are; will this location attract customers and employees? Is there any competition nearby? Does it make financial sense?

Commercial Leasing Don’ts

Over lease:

Often first time lessees make the mistake of leasing more space than they actually need. Space depends on the nature of your business therefore without any specific idea one must not lease a space. However, in most cases, it is better to have less space for a short period and retain the option of moving on as your business grows.

Neglect lease details:

One must not sign the lease in a hurry because, for a fixed duration, your activities will be limited to the conditions as per your lease agreement. In your eagerness to move into new space, don’t overlook the details of the lease. If a condition could potentially harm or restrict your activities at any point in the near future, discuss it with your lessor and amend the lease as per both’s convenience.

Be discouraged:

Landlords or lessors tend to view first time tenants or lessees with a certain amount of scepticism, particularly if this is the first time they have leased a commercial space. From a landlord’s perspective, due diligence requires them to check references and request credit reports about your business’ financial status. But don’t let the process bring you down. Compliance with the process is a necessary step toward finding a perfect location for your company.

Conclusion

A commercial real estate lease agreement is a binding legal agreement, the terms of which are pivotal in the survival of a business. The lease shall be prepared with careful consideration and ample time should be allowed for all stages of the lease negotiation and draftings. The lease agreement is the primary document referred to in the event of any dispute or disagreement between the parties to a lease. Therefore, a real estate attorney with significant leasing experience must be appointed to overcome many of the potential pitfalls that lurk within commercial leases.

References

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This article has been written by Chandan Kumar Pradhan, from KIIT School of Law, Odisha. This article talks about the relation between International and Municipal Law.

Introduction

To understand the relationship between International Law and Municipal Law, it is important to know the link between the two laws. International Law is a set of rules and actions related to national behaviour. In other words, International Law is a set of rules that apply when States interact. On the other hand, Municipal law is also known as the National Law of the country. There are various theories to recognize the difference between these two laws.

Monistic Theory: Kelsen’s Grund norm theory and Lauterpacht’s view

Why is Monistic Theory taken as the one power legal system?

Basically, ‘Monistic’ means the unity of the legal systems. This view believes that there is no difference between Municipal law and International Law. The people who follow this theory think that the science of law and the body of law is a single law that is International Law itself.

In the Science of Law, there are two branches from a single body: the National Law and the International Law. This theory defines that International Law is superior to Municipal Law. Whatever legal work we deal with, whether National or International, all are meant to be dealt with by International Law itself.

What is the opinion of Lauterpacht on Monistic Theory?

According to Lauterpacht, Nation exists on its own. It is the individuals who are the fundamental components of society. The rights and obligations of the Municipal legal system can be transferred to the International legal system. For eg: Human Rights are available in national as well as in international legal systems.

National and International Law are not equivalent to each other, in the sense that rights and obligations under both National and International systems deliver the same purpose which is to promote the interests of the people.

How did Kelsen get some original documents on Monistic theory?

The students who were with Kelsen while he was researching this theory found a hypothesis solution. After detailed analysis, Kelsen got the documents which were necessary for the theory’s confirmation. Kelsen explains that monistic theory states that international law, as well as various state legal systems, constitute a unified system of law.

The idea he points out is that “one can conceive of international law together with the state legal systems as a unified system of norms in exactly the same way as one is accustomed to regarding the state legal system as a unity.”

Those who do not follow this theory allege that Municipal Law is not in accordance with International Law and it appears that it will be more difficult to maintain the new laws due to the actual historical circumstances.

What is the Overall Opinion on this Monistic Theory?

Finally, according to Kelsen, he is the source of the final legal force of all laws based on the basic norms of International Law. His theory leads to the conclusion that all norms of International Law are superior to Municipal law. Municipal Laws that are incompatible with International Law are automatically recognized as invalid and do not apply.

Dualist Theory: Quote on Triepel

What opinions were given by H. Triepel?

A dualistic view of the relationship between Municipal and International Law is presented by H. Triepel in a more rigorous form in his textbook “ Völkerrecht und Landesrecht”.

What are some basic regulations for Dualist Theory?

There are no rules for transferring rights and Obligations from one system to another because the individuals are residents of a country and are subject to the National Law. In other words, there are various theories and subjects about National and International Laws. There are many situations where they come into an argument about which law is higher.

The person who advocates the dualism theory believes that there is no contradiction between Municipal and International Laws and that these provisions do not have the same goal. Internal rules apply only to national borders and cannot violate International Law.

In this situation, the International Law is valid only at the International level. In order to implement the International Law in a State, the State must submit them through a legal notice that facilitates the application. In both cases, people will face the nationalization of the convention at the International and National levels.

Dualism teaches that National and International Law are two separate legal systems with the same International responsibility. These two systems have different legal sources. National law is used for issues inside a State and International Law is used for solving problems between two States.

How has the Dualist Theory been criticized?

Dualism has been widely criticized.

Firstly, this view states that International Law and Municipal Law are different from each other as International Law cannot be part of Municipal Law and it also cannot be regarded as absolute state law unless it is explicitly enforced or amended by Municipal Law. This view is not true, because there are certain basic principles of International Law that link the state with its own will.
Secondly, it is not true that International Law regulates only the relations between countries. It also governs certain personal actions. If people make certain mistakes, they can be punished in accordance with International Law eg: War Crimes.
Thirdly, “Pacta Sunt Servanda”, which means agreement must be kept, is undoubtedly an important principle of International Law, but not the only principle on which it is based. There are certain rules which are legally binding on a state.

Article 38(1) of the Statute of the International Court of Justice (ICJ) provides three International Laws: Treaties, Customs and General Principles. Since the systems of International Law are horizontal and decentralized, the creation of International Laws is much more complicated than the creation of laws in the national systems.

Consent Theory (Common Theory)

The evolution of this theory was given by John Locke and he derived a phrase from the theory that is- “Everyone is equal”. Several problems arose with this including treaties and customs not being the only sources of International Law. All provisions of the International legal system in this theory can be accepted by any party in a contractual agreement.

Article 38(1) of the Tribunal Statutes states that “General Principles of Law recognized by many Civilized Countries” is the source of International Law. It helps Judges to further develop International legal content. This shows us that agreement is not always necessary for International Law to function.

The theory of consent is not fully applicable in the case of treaties. It is not important to have the third country’s consent while having an agreement with any other country. So, in any of the States matter, no third country can interfere.

For Example: In Article 2 of the Charter of the United Nations, this theory justifies that the United Nations should have conditions that the third countries must act in accordance with principles of the UN Charter. So, Consent theory is mainly for the International Peace and Security among the sovereign countries, by which two countries can maintain an acceptable relationship with each other.

Incorporation theory

Article 103 of the UN Charter says that if there is any problem between the UN members under this Charter and their liability are under other International conventions, then they will be liable under this charter.

The doctrine of the International Law automatically becomes part of Municipal Law, according to which Municipal Law is only part of International Law if recognized by the law or judgement. It is not entirely clear about the rules of customary International Law with regard to international treaties.

Sovereignty has the authority to conclude or ratify treaties to bind Britain under International Law. However, these contracts do not affect Municipal Law until they are adopted by Parliament. But, Judges will sometimes consider the provisions of international treaties. (Eg: human rights issues) in the implementation of community law. European Community Directives have been said to have legal force in the Member States.

Some Cases under the ICJ

South West Africa case (Ethiopia Vs. South Africa)

Facts

In this case, on 4th November 1960, Ethiopia and Liberia, former State Members of the League of Nations, opened a separate process for the cases cited in South Africa for the continuation of the League of Nations mandate for South Africa. The Court was asked to explain that South Africa remained a mandate territory, it had violated its obligations under that mandate and therefore was under the legal authority of the United Nations. On 20th May 1961, the Court found that Ethiopia and Liberia had the same interests and joined the trial. South Africa has submitted four initial objections to the jurisdiction of the Court. At the judgement of 21st December 1962, the Court rejected them and confirmed their jurisdiction. After the defence was basically completed within the time limit determined at the request of the parties, the Court held a public hearing from 15th March to 29th November 1965 to hear oral arguments and statements and the second stage of the decision.

Judgement

The Court decided to reject Ethiopia and Liberia because they could not establish legitimate rights or interests in relation to their claims.

Barcelona Traction case (Belgium vs. Spain)

Facts

In this case, the Barcelona Traction Light and Power Company Limited were incorporated in 1911 in Toronto (Canada), where it had its head office.

To build and develop power plants and distribution systems in Spain, the company established a number of subsidiaries, some of which were located in Canada and some in Spain. In 1936, a subsidiary supplied most of Spain’s electricity needs.

According to the Belgian government, a few years after the First World War it became clear that most of Barcelona Traction’s share capital was held by Belgian citizens, but the Spanish government rejected this claim. Barcelona Traction had issued several series of bonds, mainly in the form of sterling. Sterling bonds were served by Barcelona Traction, which was influenced by a subsidiary operating in Spain. In 1936, maintenance of crane bonds in Barcelona was terminated due to the Spanish Civil War.

After this War, Spanish exchange control authority refused to allow the transfer of foreign currency needed to restart services on sterling bonds. When the Belgian government said that the transfer displays that the foreign currencies must be used to pay off debts from actual foreign capital from Spain, they did not confirm the currency exchange.

Issues

Does Belgium have the Jus Standi (right to bring an action) to have diplomatic protection for shareholders of Canadian companies?
Does Belgium have the rights and jurisdiction to bring Spain to justice for the actions of Canadian companies?

The judgement of the case

The Court decided to reject this case which shows the difference between individuals who are inherently sovereign at the national and international level. The Court ruled in favour of Spain, as Belgium was not responsible for the war occurred in Spain, and diplomatic immunity was not granted to shareholders requiring compensation.

However, a lawsuit may arise if the shareholder is located in Canada and has the correct identity. Therefore, since the country has not been given power, a person cannot take action against one Country. This case is considered as a good benchmark for Governmental requirements.

Application of Rule of Law in International Law (India)

The British said that they were the originators of this concept when Sir Edward Cox stated that the King obeyed God and the Law, which would eventually abolish the Rule of Law in the business of the Chief Executive. Professor Albert Venn Dicey later developed this concept. He was an individualist. He wrote about the concept of the Rule of Law at the end of the golden age of Victoria Laissez-Faire in England. For this reason, the concept of Dicey’s law is useless.

The doctrine of the rule of law has been classified into three meanings in Dicey’s book. The three meanings include:

The supremacy of law;
Equality before the law;
The predominance of legal spirit.

General principles of International Law

International law is a complex and evolving norm governing interstate relations. International law contains guidelines for the sovereign states, international organizations and some individuals. The range of issues directly addressed by International law covers the areas of human rights, trade, space law and international organizations outside of war, peace and diplomacy.

Rules/Principles

Direct and Indirect Discrimination;
Vulnerable Groups and Non-Discrimination;
Affirmative Action or Protective Measures for the Most Vulnerable Groups;
Education To Combat Discrimination.

Article 38(1) of ICJ’s statutes identify three sources of International law:

Treaties
Customary International Law
The General Principles of International Law i.e. jus cogens (Compelling Law)

General legal principles are recognized by civilised people and are defined by many countries and are also defined by the statute of the International Court of Justice as one of the most important sources of International Law. These principles basically deal with International issues that are arisen in any other Country. Any problem arising from International or Municipal Law with regards to these principles can only be solved at the International level.

Conclusion

National and International legal systems run in their own territory without any hypothesis of retaliation with each other. Both systems are essential and commonly supportive and also socialize with each other in an up-to-date context in relation to many issues. It is believed that International Law is higher than Municipal law because Monist theorists believe that International Law can solve any problems which have arisen within any State.

Kelsen also believes that International Law covers all aspects of human life. Monistic theorists view that International Law does not come under any Law, rather Municipal Laws are a part of International Law.

References

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This article has been written by Sangeet Kumar Khamari from KIIT School of Law, Odisha. This article talks about the fundamental principles of International humanitarian law and its international conventions and contemporary developments.

Introduction

International humanitarian law is that branch of the law of nations that seeks to impose limits on the destruction and suffering caused by armed conflicts. It lays down the principle of Article 22 of the Hague Regulations. A major part of International humanitarian law is contained in the Geneva conventions of 1949.

Article 4 and Article 27 of the Geneva Convention occupy a key position among the Articles of the convention. It is the basis of the convention proclaiming as it does the principles on which the whole of ‘geneva law’ is founded. It proclaims the principle of respect for the human person and the secured character of the basic rights of individual men and women.

Most principles of the Humanitarian law include the principle of humanity, the principle of distinction between civilians and combatants, and between civilian objects and military objectives, the principle of proportionality and the principle of military necessity. These principles of law are recognized by civilized Nations and it can also be called as domestic law principle which is common to all legal orders. However because of the diversity of countries and their legal systems, only some of the principles can work well. Principles such as good faith and proportionality, which have also become customary law and have been codified, can be used in supplementing and implementing International Humanitarian Law. Other principles may be real to the ideal law and based on logic rather than a legal rule which has been implemented. If any kind of attack is prevented by imposing restrictions on the civilians, it is not law, but the logic that attacks should not be directed at a military object as it can harm the civilians.

History of International Humanitarian Law

In the Indian epic Mahabharat approx 400 BC, the Laws of Manu incorporated provisions outlawing the killing of surrendering adversaries who were no longer capable of fighting. These included people who were aged, soldiers who were injured and lost their hands, legs and any other body part likewise. Let’s take an example of a king named Hammurabi who was the king of Babylon. He drafted “Code of Hammurabi” thinking how to protect weaker civilians from the stronger ones. This code also says that the hostages shall be released on payment of a ransom.

The modern world has placed its hopes in internationalism. Similarity alone is often the idea for universality, and in formulating and perfecting this law, the International Committee of the Red Cross has sought exactly this footing and suggests rules acceptable to all or any because they are fully consistent with human nature. Meanwhile, despite this universal concern to limit the suffering caused by war, the regulation of the impact of war had been attempted many times.

The 19th century, however, was the instant in history when a movement won energy to codify the laws of war and when modern international humanitarian law was born. International lawyers ask the Lieber Code (a document written to control the conduct of the Union forces during the American Civil War) because the first example of the codification of the laws of war, named after Francis Lieber (1800-1872), a German-American professor of politics and law at Columbia University, New York, who prepared on the behalf of Lincoln, a manual, which was enacted in 1863 for the Union Army of the US within the American war (1861-1865). This Code was the primary code with one set of instructions for forces within the field, governing laws of war and customs of war. The 157 articles of the Code were based on the ideas flowing from enlightenment, as it, for example, stressed that armed enemies should be attacked and the unarmed civilians and their properties should be respected and also the prisoners and the wounded should be humanely treated. One merchant named Henry Dunant from Geneva, Switzerland witnessed the fight of 40000 of Austria, French, and Italian soldiers during the Italian war for unification who were wounded on the battlefield of solferino in 1859.

Basic principles of International Humanitarian law

International humanitarian law has mainly two basic foundation principles. The Principle of Humanity and the Principle of military necessity. Finding the balance between these two principles is the role which can be loosely described by the legislature. The state shall adopt the convention regarding the international humanitarian law or contribute through their practice for the formation of customary international law rule that applies armed act. According to the principle of humanity, the state and the civilians or combatants should help each other and according to the principle of military necessity, the armed forces which are trained by the government of the state should always be ready for any type of dispute in the state.

Principle of Humanity

This principle specifies that all humans have the capacity and ability to show respect and care for all, even their sworn enemies. Modern International Humanitarian Law is not naive and accepts that harm, destruction and death can be lawful during armed conflicts, International humanitarian Law simply looks to limit the harm, and the principle of humanity is very much at the spirit of this ambition. Many rules of International humanitarian law are inspired by this idea, specifically those setting out protections for the wounded and sick.

Principle of Military Necessity

No principle is more central to the content and understanding of Military necessity. Military necessity, as understood by modern civilised nations, consists in the necessity of those measures which are needful for securing the end of the war, which are lawful according to the modern law.

Other Principles

These include principles like:

The distinction between civilians and combatants,
The distinction between civilian objects and military objectives,
Necessity,
Prohibition on causing unnecessary suffering.

These principles are not based on a separate source of international law but are based upon treaties, customs and the general principles of law. These principles can be derived from the existing rules or expressing the rule substance and meaning and also they support the existing rule, inspire them and get an easy way to make them understand anyone.

Specially Protected Persons and Objects

There are specifically protected persons and objects in International Humanitarian Law such as:

Medical and religious personnel and object,
Humanitarian relief personnel and object,
Journalists,
Some protected zones,
Cultural properties,
The natural environment,
Work and installations containing dangerous forces,
Personnel and objects involved in a peacekeeping mission.

Major weapons and IHL treaties associated with them

Weapons	Treaty
Explosive projectiles weighing less than 400 grams.	Declaration of Saint Petersburg (1868).
Bullets that expand or flatten in the human body.	Hague Declaration (1899).
Poison and poisoned weapons.	Hague Regulations (1907).
Chemical weapons	Geneva Protocol (1925): Convention on the prohibition of chemical weapons (1993).
Biological weapons	Geneva Protocol (1925): Convention on the prohibition of biological weapons (1972).
Incendiary weapons	Protocol III (1980) to the Convention on Certain Conventional Weapons.
Blinding laser weapons	Protocol IV (1995) to the Convention on Certain Conventional Weapons.
Mines, booby traps and “other devices”	Protocol II, as amended (1996), to the Convention on Certain Conventional Weapons.
Anti-personnel mines	Convention on the Prohibition of Anti-Personnel Mines (Ottawa Treaty), 1997.
Explosive Remnants of War	Protocol V (2003) to the Convention on Certain Conventional Weapons.
Cluster Munitions	Convention on Cluster Munitions (2008).

Distinction Between International Armed and Non-International Armed Conflict

Traditionally law of international armed conflict was applied to war only between states. The distinction between international and non-international armed conflicts can be explained by the history of the development of International law in general and International humanitarian law in particular. Additional protocols of the Geneva convention of 1949 dealt separately with international conflict and non-international conflict. Additional protocol I dealt with international conflicts. These treaties contain the rules relating to the conduct of hostilities and rule relating to the protection of those who do not take part. On the other hand, the non-international armed conflicts have limited number of treaty rules as mentioned above, they are restricted to common Article 3, provisions of the additional protocol II and Article 8(2)(c) and Article 8(2)(e) of the ICC statute.

International Conventions

The mine bar convention

The mine bar convention is also known as the “Ottawa treaty”. It was the result of the Ottawa process which was launched by the Canadian Government by following the first review conference for the 1980 conventions or conventional weapons which was not allowed on anti-personnel mine or not able to adopt far-reaching prohibition. An adaptation in December 1996 of UN general assembly resolution 51/45S which called upon all the countries to conclude a new international agreement prohibiting anti-personnel mines as soon as possible. The Government of Austria circulated a draft treaty to all Government and many international organizations so that there won’t be any problem and the meeting would be in peace. Normally exchange of views on the content of the Austrian draft took place in Vienna from 12th to 14th of February 1997. The government of Germany hosted a meeting inborn to discuss the verification of such a treaty on 25th and 26th April 1997. From 24th to 27th June 1997 the Belgian Government hosted the official follow up to 1996 Ottawa conference “The Brussels international conference for a total global ban on anti-personnel mines”. This was the largest ever gathering of the government to date for a conference devoted specifically to the issue of landmines where there were representatives of 154 countries. 97 countries signed the “Brussels Declaration” calling for a diplomatic conference in Oslo to formally negotiate a comprehensive ban treaty based on the Austrian draft text on the closing date.

Geneva convention

The Geneva Conventions and their additional protocols are the core of the International humanitarian law and also the body of international law that regulates the conduct of armed conflict and seeks to limit its effect. They specifically protect people who are not taking part in the hostilities like civilians, health workers, aid workers and those who are no longer participants in the hostilities like wounded and sick soldiers and prisoners of war.

Vienna convention

This is an international agreement governing treaties between states that was drafted by the International law commission of the United Nations and adopted on May 23, 1969, and that entered into force on January 27, 1980.

The convention applies only to the written treaties between states. The first part of the document defines the terms and scope of the agreement and the second part lays out the rules for the conclusion and adopted treaties.

Contemporary Developments

From the last 1980s, the ICRC has put its energies into a measure to encourage governments to implement international humanitarian law and to teach its provisions at relevant levels within the state administration-notably. The ICRC also works with governments and national red cross and red crescent societies to promote knowledge of the law in academic circles, youth and the media.

Case: Hungary v. Slovakia, 1997, ICJ

In 1978 Hungary and Chekoslovokia signed the Danube treaty to build a dam jointly over river Danube, the construction of the dam then began. In 1989, Hungary wanted to revoke the terms and conditions of the treaty because of environmental concerns, lack of funding and also called fundamental change of circumstances. In 1993, the new nation of Slovakia started to negotiate with the Hungarian government and decided jointly to take the matter to the ICJ.

ICJ prima facie held that Hungary was liable on all the ground for not respecting the doctrine of pacta sunt servanda (agreement must be kept), and other treaty violations as contained in the Danube treaty. ICJ also found Slovakia guilty on one count. The court also held Slovakia liable for one ground, and it was the 1st in which the judges of ICJ actually want a spot to determine the environmental repercussions of the construction of the dam.

Conclusion

The law of armed conflict looks torn between 2 contradictory impulses– the need, on to wage war effectively and the desire to protect people and property against the ravages of such warfare. The law of armed conflict tries to reconcile these impulses, in a very fundamentally pragmatic way. International humanitarian law compels States and non-State parties alike to try their utmost to guard and preserve the life, limb and property of civilians and others hors de combat (out of action due to injury), whereas at the identical time giving parties to a conflict leave to commit acts of violence among bounded boundaries.

However, once those boundaries are transgressed, once perpetrators of war crimes aren’t delivered to account for his or her transgressions, there’s a natural impulse to dismiss International humanitarian law as lacking any “real” normative force. This can be a visible response, however, it fails to understand the complexities of International humanitarian law.

Reference

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This article has been written by Neha Mallik from VIPS, Delhi. This article talks about the legality of the use of nuclear weapons.

Introduction

In this nuclear era, many States possess nuclear warheads. With the current dispute between the US and Iran, you have probably heard about nuclear weapons. Nuclear weapons are the most powerful weapons which could destroy the whole city in the blink of an eye. More than 90% of the nuclear warheads belong to the United Nation and Russia. There has been lots of talk about who can have them, use them, manufacture or develop them. It’s very important and interesting for anyone to know about the legality related to the use of such a massive destructive weapon. This article would give you an insight about the legality of the use of weapons and other relevant things which you should know.

Brief Description of the landmark case “Legality of the use of nuclear Weapons”

The World Health Organization was the first to raise the issue regarding the legality of the use of nuclear weapons before the International Court of Justice on 14th May, 1993. WHO asked ICJ to give an advisory opinion on the question “ in the view of the health and environmental effects, would the use of nuclears by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?” by adopting a resolution. Followed by this, on 15th December, 1994, the United Nation General Assembly, adopted a resolution requesting the ICJ to give advisory opinion questioning “What are the circumstances wherein the use or threat to use the nuclear weapons permitted under international law?” While refusing to address the question from WHO, stating that WHO is not an authorised body to ask this question, ICJ however responded to the request made by the United Nations General Assembly.

Determination of applicable laws

In order to address the question relating to the legality of the use of nuclear weapons, it is imperative for the Court to consider the potentially relevant areas of international laws.

Human Rights- According to the fundamental principle of right to life “every human being has the right to life inherently. This right has been protected by every law. According to the provision in International Covenant on Civil and Political Rights (ICCPR)- no one shall be arbitrarily deprived of his right to life. Hence the right to life has to be conferred in war as well as in the peacetime.
Environmental Law- Considering the environmental laws, the Court mentioned two treaties. Firstly, Protocol I, which prohibits the employment of “methods or means of warfare that are intended, or expected to cause widespread and serious damage to the natural environment. Secondly, there is a provision in the Environmental Modification Convention which specifically prohibits the use of weapons creating severe effects to the environment.

According to the principle of Rio Declaration and Stockholm Declarartion States have a duty to ensure that they would not indulge in any activity causing damage to the environment. Having said that, the duty not to cause transboundary harm is a customary law and secondly to use the nuclear weapons in wartime the States need to evaluate the necessity and proportionality in the military activities.

The International Court of Justice in its advisory opinion discussed 5 substantive questions

Do any treaty or customary law authorize or talk about the use of nuclear weapons?

The Court established that no treaty or customary law explicitly or expressly authorizes the use of nuclear weapons. Considering the principle established in the Lotus Case, “States are free to threaten or use nuclear weapons unless it can be shown that they are bound not to do so”. Furthermore, the Court went to analyse if any treaty or customary law universally prohibits the use of threat in nuclear weapons.

Do any treaty or customary law contain absolute prohibition on the use or threat to use nuclear weapons?

The Court turned to the nuclear weapons treaties in order to ascertain whether any treaty makes the threat or use of nuclear weapons per se prohibited or not. Furthermore the Court differentiated the poison weapons with nuclear weapons as the treaties related to poison weapons would not be applicable to nuclear weapons. The Court found out that almost all the nuclear treaties address the acquisition, manufacture, possession or testing of nuclear weapons. Eventually the Court concluded that no treaty contains absolute prohibition on the use or threat to use nuclear weapons.

In terms of UN Charter, that is considered to be the most relevant law relating to this subject and armed conflict, it also does not expressly prohibit the use of nuclear weapons. According to the provisions under Article 2(4), Article 42, and Article 51 of the UN Charter the legality on the use of force is silent on certain weapons. Moreover other humanitarian law treaties that govern mass destructive weapons also do not contain absolute prohibitions.

Talking about the customary laws mirroring the treaty analysis the Court determined whether any customary international law provides per se prohibition on the use of nuclear weapons? ICJ found out that the State practices and opinio juris relating to the use of nuclear weapons differ from State to State. Since world war II, many States encouraged the non use of nuclear weapons and adopted the cold war policy. As a matter of fact there is no conventional or customary rule per se prohibiting the threat or use of nuclear weapons.

Compatibility with international humanitarian law and other relevant laws

So far the Court has observed that there is no provision in the International Law that authorizes or per se prohibits the use of nuclear weapons, further the Court examined whether the laws relating to the use of these weapons are consistent with the laws applicable to armed conflicts including International Humanitarian Law and UN Charter.

UN Charter- Though the UN charter neither expressly permit nor prohibit the use of nuclear weapons, the same however asserts that for a threat or use of force to be lawful as per Article 51, the use of these weapons shall be proportionate to the armed attack and necessary.
International Humanitarian Law- The Court is in the opinion that even if the use of nuclear weapons is lawfull, still it must comply with the provisions of laws applicable to armed conflicts, humanitarian laws and other relevant laws.
Situations in case of self defense

Article 51 of the UN Charter states the provision regarding the use of nuclear weapons in pertaining to self defense. There are certain restrictions to the right to self defense:

Firstly, for the act considered to be an act of self defence, the use of force must be in self defense only.
Secondly the defending State is required to report the measures taken in order to protect itself to the Security Council of the United Nation.
And last but not the least the measure taken for self defense must be in conformity with the customary international Principles of necessity and proportionality.

It is argued that proportionality is impossible as the different weapons have unique destructive capabilities. As a matter of fact, the proportionality is analysis considering the factors like destructive capabilities, the heat and energy that would be emitted using the weapons, the radiation that might be released, the potential a weapon has in destroying the ecosystem, the effect it can cause to the environment and other such factors. Concisely, these standards should be kept in mind while exercising the right of self defense.

Promotion of nuclear disarmament

After critical analysis, the Court is in the opinion that the States should continue to have negotiations and agreements towards nuclear disarmament. For environment protection and human welfare, the States are legally to go for such negotiations that bring nuclear disarmament.

Principle of Neutrality

The principle of neutrality is one of the customary international laws which is very imperative to be considered while talking about the armed conflicts. Neutrality is a formal status given to a State which is not a party to an armed conflict. This principle gives rise to rights & duties to both neutral and belligerent States. The States which are neutral have the right to remain separate from the conflict and to get harmed. The neutral States are protected against the effects of nuclear weapons and are assumed to comply with the duties of impartiality. So again, it is imperative to take the principle of neutrality into consideration while discussing the legality of the use of nuclear weapons.

Environmental Law and Self defence

It is known to everyone that the destructive nuclear weapons create long-lasting damage to the ecosystem. It is indispensable on the part of the State to take environmental considerations into account in order to measure the degree of necessity and proportionality in the pursuit of self defense. So even if the use of nuclear weapons is not illegal one should respect the environment law by complying with it. As in the landmark ICJ opinion, “Legality of the use or threat to use the nuclear weapons”, the Court recognized the duty of the State not to cause the transboundary harm and also observed that the environment is one of the important factors that must be considered while evaluating necessity and proportionality limiting the scope of the latter principle. This not only draws balance between the justified use of force in case of self defense but also creates a sense of respect towards the environment. In the opinion of the Court, incorporating environmental concerns into the law of armed conflict is essential. Under this approach, a belligerent State could harm the ecosystem in self defense only to the extent of the harm which is necessary and proportionate to the legitimate military activities especially the use of nuclear weapons. Concluding it, it is must to draw balance between the two important doctrines of self defense and environmental laws.

Ban on the testing of nuclear weapons

The race of nuclear warheads amongst the States has reached a dangerous level. Moreover, there have been a lot of public protests happening against testing of nuclear weapons. The nuclear weapons are tested to carry out experiments to determine the effectiveness and destructive capabilities of the weapons. These are being tested in atmosphere, underground or even underwater. It is evident that nuclear weapons tests have had serious implications on health and the environment, Hiroshima Nagasaki nuclear test being one of the great instances. The discussion concerning the ban on nuclear testing has been going on for a long time. There exists many treaties against the testing on nuclear weapons, Partial Nuclear Test Ban Treaty and Comprehensive Nuclear Test Ban treaty being some of them.The treaty has been signed by more than 180 nations. Although countries like India, North Korea and Pakistan have not ratified it yet. Let’s talk about some treaties briefly.

Nuclear Non-proliferation treaty

The NPT objects to promote nuclear disarmament and to prevent the spread of nuclear technology. It is a landmark International treaty which had been opened for signature in 1968. Currently more the 190 countries have joined the treaty including the 5 nuclear weapon States i.e. US, U.K, France, Russia and China.

The NPT acts as a cornerstone of the global proliferation regime. The treaty also promotes cooperation in the peaceful uses of nuclear energy.it is noted that 2020 is the 50th anniversary of the NPT.

Limited Test Ban Treaty (LTBT)

The Limited Test Ban Treaty, also known as Partial Test Ban Treaty is a treaty which prohibits testing of nuclear weapons in the atmosphere including the outer space and under water.

Comprehensive Test Ban Treaty (CTBT)

Comprehensive Test Ban Treaty, unlike LTBT, bans nuclear explosions everywhere. With more than 190 signatories the treaty has not entered into force as it needs to be ratified by at least 44 specific nuclear technology holding States as per Article XIV of the treaty.

Conclusion

Wrapping up, I would like to highlight that despite various steps have been taken to promote complete disarmament, there is no absolute rule which absolutely prohibits the use or threat to use nuclear weapons. Having said that, it is imperative to take strict measures to control the use and test of nuclear weapons so that the environment can be least affected and health hazard due to the radiation of these weapons can be reduced.

References

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This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the Jurisdiction in International Law and the Jurisdiction of the States.

Introduction

Jurisdiction is a practical authority given to a legal body to deal with legal matters by implications. In Public International Law, the concept of jurisdiction has a strong link with sovereignty. Jurisdiction allows State for sovereign independence which they pass on with the global system of equal States stating the laws related to persons or activities in which they have a legal interest.

Territorial Jurisdiction of the States

It is derived from State sovereignty and constitutes several features. It is the authority of the State over persons, property and events which are primarily within its territories.

State Authority has the power to prescribe, enforce and adjudicate the Rules of Law.

The territorial jurisdiction of the State extends over to its with:

land,
national airspace,
internal water,
territorial sea,
national aircraft,
national vessel,

It does not only encompass the crime committed on its territory but also the crimes that have effects within its territory. In such a case, a concurrent jurisdiction occurs.

Case law

Liechtenstein v. Guatemala

In this case, Nottebohn a german lived in Guatemala for 34 years. He has his German citizenship and then he also applied for Liechtenstein citizenship a month after the outbreak of World War ll.

The application was approved by Liechtenstein. After this approval, he travelled to Liechtenstein and during his return to Guatemala he was not allowed to enter because he was deemed to be a German citizen. Liechtenstein filed a suit before the court on Guatemala to allow him as a citizen.

The Court held that granting citizenship is solely the concern of the granting nation. But in this case, there is no relationship between Liechtenstein and Nottebohn. This happened because of the war that they became two nations. Hence, the court said that Nottebohn wasn’t forced by the Guatemala country to recognise him as a citizen and in result, the suit was dismissed.

UK Vs. Norway (North Atlantic Fisheries Case)

In this case, the UK requested the International Court of Justice (ICJ) to determine how far Norway’s territorial claim extended to sea and to provide some compensation because Norway interfered in the fishing vessel of the UK and also claimed that Norway’s claim to such extent was against International Law.

The Court held that Norway’s claim to the waters was consistent with the International law regarding the part of the sea space.

Criminal Jurisdiction

Criminal jurisdiction is where the powers of the Court are described in dealing with a case where a person is accused of an offence. Criminal Jurisdiction is used in many laws like Constitutional Law and Public International Law.

The three distinct situations where only the accused person can file a suit are:

To control the relation between States, or between one State and another;
To control the relationship between the Federal Courts and Domestic Courts;
Only where he has committed the offence and not in any other State. Also, the law of that State should be a codified law.

Case Law

SS Lotus Case (France v. Turkey)

In this case, there was a declaration by Turkey over the French citizen who was the first officer of the ship that collided with a Turkish ship on the High Sea. It was challenged by France as a violation of the International law.

The Court stated that Turkey has the authority to arrest the French officer under the Treaty of Lausanne. It also stated that if someone challenges the jurisdiction of a Sovereign State, then the burden of proof will lie on the plaintiff.

International law is a system of freedom- countries can act in any manner which is not expressly prohibited. This case is reviewed as a high mark of positivism; that the State must keep control over sovereignty.

The Court also stated that France and Turkey had concurrent jurisdiction over cases arising abroad on a French flag vessel on the high seas. Many treaties have overruled these and said that only the flag State has jurisdiction.

Types of Criminal Jurisdiction

Territorial Jurisdiction

This includes the geographical boundary of a court’s jurisdiction. We can take an example where the Municipal Courts do not have jurisdiction over the crimes that occur outside the city limits. Let us understand this with a case law.

Mubarak Ali Ahmad Vs. The State of Bombay

In this case, Mubarak Ali with a dishonest intention made a false representation to the complainant in Bombay saying that he has a ready stock of rice so that the applicant should send the receipt of money to the complainant who was anxious to import rice urgently and to receive the amount on the belief of such representations. It was contended on the grounds that the Pakistani national, during the period of the commission of the offence has not stepped in India and he was in Karachi, so he cannot be tried in the Indian Courts nor he can be held punishable under the Indian Penal Code. In the extradition proceeding the trial which is pending in a court cant be tried for the second time. Hence the conviction was unsustainable.

The Court held that all the ingredients constituting the offence of cheating under Section 420 of the Indian Penal Code have been done in Bombay, even though the offence is committed there and though the applicant was not present in India during the commission of the offence, his conviction is valid under Indian Penal Code.

As the appellant surrenders to the Indian Authorities under the Fugitive Offenders Act, 1881. There is no such provision in this Act preventing arrest in India for trial of a fresh offence. His conviction was valid. The appellant who was a Pakistani national was convicted for cheating in business under Section 420 of the Indian Penal Code.

Director of Public Prosecution vs. DOOT

In this case, the defendant was charged for unlawful acts which are for the import of dangerous drugs into the UK. Defendants counsel said that they shouldn’t be tried in England because the offence was committed abroad.

The Court held that the respondents were aliens which had a secret plan to import Cannabis in the U.K.

The House of Lords stated that English Courts have jurisdiction over the offences committed in England.

Lord Wilberforce, in this case, stated that it constitutes international elements- that the suspect were aliens and an unlawful act is done abroad.

Hence, there is no question that if there is any breach in the rule of the law then they will be prosecuted in the country where the crime has been committed.

Nationality Jurisdiction

This principle permits a country to exercise its criminal jurisdiction over the nationals accused of criminal offences in other States. In the UK it is generally limited to treason, murder and bigamy committed by British nationals abroad. Hence common Law countries never protested against the extensive use of the nationality principle to decide jurisdiction in criminal matters by other States.

The two types of Nationality Jurisdiction are:

Active Nationality

This principle is for the protection of interest of the State from abroad.
Strict application on territory could be harmful to the peaceful existence of international society.
The State has its fundamental right to apply its laws to prosecute illegal conduct.

Passive Nationality

Treaty-based passive nationality is more effective than Statute based passive nationality.
Jurisdiction can be exercised by the State where the offence took place.
This has been opposed by common law States but due to the transnational crimes, it gets approved.

Universality Jurisdiction

The Universality principle implies that a State can claim jurisdiction over certain crimes committed by any person from anywhere in the world, without any relation to territory, nationality or special State interest.

Before the Second World War, the Universal Jurisdiction was considered as similar to the International Law by the common law countries, except for the acts which were regarded as crimes in all countries and crimes against the international community as a whole such as piracy and slave trade. After the Second World War, Universal jurisdiction has been universally identified over certain acts considered as international crimes(war crimes, a crime against humanity, genocide).

International crimes committed against the international community are punishable under International Law. Under the universality principle, each and every State has jurisdiction over the international crimes that are committed by people.

The Schooner Exchange v. McFaddon

In this case, There were two Americans who laid down their claims of ownership and entitlements to the Schooner Exchange.

The Court held that the national ships during the war are free from any obligation imposed due to the friendly relations with another State. A nation’s jurisdiction within its sovereign territory is exclusive and perfect.

Protective Principle

It is also a type of criminal jurisdiction, but we will deal with this principle separately.

The protective principle identifies that a sovereign State can adopt a statute that criminalises act or any conduct which occurs outside the borders and where that conduct affects the sovereign State. Under this principle, a nation can adopt laws related to crimes which obstruct the functions of government or pressurize its security.

Article 51 of the UN Charter

Article 51 provides the countries to engage in self-defence and against an armed attack. A case relating to Self-Defense is:

Nicaragua Vs. USA

In this case, In 1979, when a pro soviet government called the Sandini States came to power in Nicaragua, the US authority were alarmed, as this was the height of the cold war.

In 1981, the Reagan administration decided to support the rebel forces in Nicaragua called Somosistas, who was a USA citizen.

The Central Intelligence Agency ran extensive illegal and secret operations targeting the Nicaraguan army and air forces, supplied arms, ammunition, money and frequently kidnapped Nicaragua citizens.

Nicaragua citizens brought a case against the USA for violating the Treaty of the UN Charter.

The Court held that US contested that ICJ did not have jurisdiction to hear this case but ICJ nevertheless proceeded with the case because of the 1955 treaty of friendship between Nicaragua and the USA.

The ICJ found out that the USA had knowingly and intentionally violated the provisions of the UN Charter, general rules of International Law and had clearly violated the territorial sovereignty of Nicaragua.

In 1992, because of tremendous pressure Nicaragua took back the complaint and unofficially apologized to the US Government.

Abdul Kader Mahomed Jhaveri Vs. Union of India

In this case, the petitioner was a foreign national and a citizen of the Republic of South Africa. The passport issued by the Republic of South Africa on the basis of which he came to India and in the meantime passport expired and again he asked the Republic of South Africa for the issue of a new passport which was still valid.

The respondent who is the authority, initiated the legal proceedings against him for the breach of the provisions of the Foreign Exchange Regulations Act, that he is not a citizen of India but a resident of India.

He carries on his business activity in India. But had done without the permission of the Reserve Bank. And it was contended that the petitioner should be penalised for the breach of the provision. Due to the pending proceedings, the passport has been seized by the respondent. The petitioner contended that the seizure was null and void and without the permission of any jurisdiction. So the respondent should be directed to return the passport.

The commission of inquiry headed by Justice Shah stated that the period for which the passport was impounded cannot be said to be definite and certain and it may extend for an indefinite time. This would clearly make the validity of an order unreasonable and the validity of the passport of the petitioner is confirmed by the Central Government. The duration of the validation will not exceed more than period of six months from the date of the decision that may be taken on the petitioner’s representation.

Cross Frontier Jurisdiction

In this, the Court may recognize jurisdiction over any conduct that applies outside its jurisdiction.

While taking any legal action of disputes between multiple parties and those other parties who will be examined, similarly in various jurisdiction in which proceedings to resolve the disputes may properly be commenced and the decisions from the outcomes will be made in such location.

Achille Lauro Incident

The US had originally planned to charge the terrorists with piracy under its Criminal Code of 1909 “whoever, on the high seas, commits a crime of piracy as defined by the law of nations, will be brought into or if found in the United States, shall be sentenced to imprisoned for life.”

This would be a problematic situation because the US government follows International Law, specially Law of the Seas, 1982 which states that if a ship is seized for any political purpose then it’s not a piracy. Due to the murder of the passengers and crew members of the ship, the US government can claim jurisdiction under passive personality principle and can accuse the terrorists under Crimes Act, 1970.

1994 Israel-Jordan Peace Treaty

Under which the Israel criminal laws are applicable for the Israelii nationals and the activities only involve them in the specified areas. Under Jordan’s sovereignty, the measures can be taken in the areas by Israel to enforce certain laws.

Principles of this Treaty

Borders– The international boundary separates between Israel and Jordan which follows the Yarmouk River and the Gulf of Aqaba.
Diplomatic Relations and Cooperation– parties were agreed to establish full diplomatic and consular relation and grant visas, seaports, etc. This agreement prohibits hostile information.
Security and Defense- Each country promised to respect their sovereignty and territory and not to enter in other territories without any permission.
Water- Israel and Jordan develop their water reservoirs and can help each other. And also for additional water, Israel agreed to help Jordan.
Palestinian Refugees- Both countries agreed to help the refugees.

Multiple Jurisdictional Grounds

Tokyo Convention 1963

It is also known as the convention on offences. Tokyo Convention can be applicable for the offences against the Penal Laws and Acts that risks the safety of the persons or property on board civilian aircraft while in flight and engaged in international air navigation.

This conference was for the purpose of further consideration, finalization, adoption and opening for the signature of Rome Draft. Sixty-one States and Five International Organizations were present at this conference.

Montreal Convention for the Suppression of Unlawful Seizure of aircrafts against the safety of civil aviation

It is a multilateral treaty by which States agree to prohibit and punish, who threatens the safety of civil aviation. It only applies exclusively to civilian aircrafts but does not apply to customs, law enforcement or military aircraft.

This convention criminalises the following behaviour:

If an act is committed on a person who is onboard an aircraft and is likely to endanger the safety of the aircraft.
Destroying or damaging such an aircraft in such a way which is likely to endanger the safety in flight.
A device of substance placed or for causing destruction or damage to an aircraft.
Any information which is known to be false, thereby endangering the safety of an aircraft in flight.

It lays the principle of aut dedere aut judicare that the party to the treaty must either-

Prosecute a person who commits one offence.
Send the individual to another State that requests extradition for the prosecution of the same crime.

What are the conflicts that arose in Jurisdiction?

The jurisdiction of the State is parallel with the jurisdiction of another State. More than two-State can exercise the jurisdiction against the same person or on the same matter.
Even the State having territorial jurisdiction cannot claim over the States having custody over the accused.

What are the Immunities from Jurisdiction?

Sovereign Immunity

It refers to the legal rules and principles which determine the condition from which the State can claim the exemption of sovereign immunity from the jurisdiction of another State.

This immunity is a creation of the customary international law which is derived from the principles of independence and equality of sovereign States.

Diplomatic Immunity

The rules here are most accepted and uncontroversial rules of International Law. This helps in the maintenance and conduct of the relations between the States.

Diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State.

Consular Immunity

The consular officer is like a diplomatic agent who represents the State who will be receiving State.

Not granted the same degree of immunity from jurisdiction as a diplomatic agent.

Conclusion

However, the individual State plays a leading role in the worldwide organisation in spite of having multilateral agreements and centralized agreements. There must be friendly relations between the States to avoid conflicts on the territorial borders. Territorial jurisdiction and State jurisdiction plays an important role as it is very important to follow all the rules stipulated in different provisions.

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This article is written by Muskaan Garg from Symbiosis Law School, Pune. This article explains the international principle of jus cogens and the various instances of its existence and authority. It also encircles the various views and important cases around the matter.

Introduction

Jus cogens, also known as the peremptory norm, is a fundamental and overriding principle of international law. It is a Latin phrase that translates to ‘compelling law’. It is absolute in nature which means that there can be no defense for the commission of any act that is prohibited by jus cogens. These norms, though limited, are not cataloged. They are derived from changing social, political attitudes and major case laws and are not defined by any authoritative body.

This principle aims to seal the slightest suppression of any law in any form and manner.

Idea of development

The idea of universal jurisdiction and individual responsibility for violations of international law developed largely with the laws of war. A major step in the development of universal jurisdiction for jus cogens violations is the War Crimes Convention which requires states to provide for universal jurisdiction. The War Crimes Convention enumerates war crimes and expands the definition of crimes against humanity as set out in the Nuremberg Charter during World war II.

What is Jus Cogens?

Jus cogens or peremptory norm means a body of fundamental principles of international law which binds all states and does not allow any exceptions. It is basically a compilation of norms that lays down the international obligations which are essential for the protection of the fundamental interest of the international community and any violation of these norms is thereby recognized as a crime against the community as a whole.

It is binding upon all the members of the international community in all circumstances. Jus cogens imply absolute restrictions on genocide, slavery or slave trade, torture or other inhuman treatment, prolonged arbitrary detention, and racial discrimination. Any activity or treaty carried out by the states or international organizations that contradict human dignity and rights will offend the concept of jus cogens and thus, be void. It can be said that jus cogens exist to protect and uphold human dignity and rights.

Origin of the doctrine

It stemmed from the idea of a binding law which would be in alignment with natural law and would render contrary customs and treaties invalid. This idea led to the existence of hierarchical superior norms that would invalidate the treaties and customs. The doctrine of Jus cogens was initially defined in Article 53 of the Vienna Convention on the law of treaties 1969. It was later stated as a customary principle but Article 53 of the Vienna Convention, however, contains no reference to any element of practice.

What is Jus Positivism?

Jus positivism, when translated from Latin, is legal positivism which refers to the human-made laws that define the establishment of specific rights for an individual or group. It is basically the laws made by the state for the swift, efficient and proper functioning of the state itself.

Difference between Jus Cogens and Jus Positivism

The only difference between jus cogens and jus positivism is that the former is a set of norms applicable internationally while jus positivism is the phenomena of formulating laws for the state which shall be applicable within the state only.

Jus cogens and jus positivism stay at debate since their applicability is contradicting each other. Jus cogens are mandatory, constant and binding on all states irrespective of their consent while jus positivism is not binding and can be changed from time to time. An aspect of universal jurisdiction is personal jurisdiction by all states over the alleged violator of such crimes, hereby keeping the norm of jus cogens at a higher pedestal than jus positivism.

Article 2(6) and Article 53 of the Vienna Convention

Article 2(6) of the Vienna convention deals with the definition of a ‘contracting state’. It mentions that ‘contracting state’ means that a state has consented to be bound by the treaty, whether or not the treaty has entered into force. It is in regard to the non-parties of the UN and states that they shall act in accordance with the principles so far as may be necessary for the maintenance of international peace and security. It is a mandatory provision and has set a limit, determined by the general interest of the international community.

Article 53 of the Vienna convention is the origin of the principle of jus cogens. It states that a treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general international law. The norm should be accepted and recognized by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.

Article 64 of the Vienna Convention

Article 64 of the Vienna convention deals with the emergence of a new peremptory norm of international law. It states that if a new peremptory norm of the international law emerges, any existing treaty which is in conflict with that norm becomes void and is terminated.

Criticism of Jus Cogens

This principle has been mainly criticized for its superiority, practical implementation and the obligation upon the states to follow it:

The doctrine of international jus cogens developed from the principles of natural justice. These norms are actually a set of rules where no derogation is allowed under any circumstances and they cannot be abrogated. They are argued to be hierarchically superior because the power of a state to make treaties is subdued when it confronts a super customary norm of jus cogens. The point of criticism being that these norms are putting limitations on the ability of states to change or introduce an international law.
The second point of criticism being about the consent and obligation of states to follow the norm. The states which are a part of the international community have to mandatorily comply with the norms, regardless of their consent and their individual opinion to be bound. They are not provided with an option to choose since these rules are too fundamental for states to escape responsibility. States consider these rules to be so important to the international society of states and to how the society defines itself that they cannot conceive an exception and cannot, therefore, escape liability.
As known, international laws and decisions only have an advisory role and none of their provisions are enforceable as the law of any state. Hence, when it comes to the enforceability of jus cogens, the states under an obligation have not initiated any noticeable provisions for the implementation of the same which raises numerous queries on the existence and requirement of the widely recognized norms.
Problems also remain as to the application of the norm, in terms of which rules must necessarily be covered under the said norms. There were serious doubts concerning the fact that the norm could be misused in interpreting the rules to be covered under jus cogens.

Oppenheim’s view

Professor Oppenheim of Cambridge University has republished treatise in his name for nine editions. His treatise begins with major definitions and works towards all aspects of international law at a time when not much was certain and progressive about international law.

In his book, he mentioned that a number of other universally recognized principles of international law existed in the jus cogens with the capability to render any conflicting treaty void and therefore, the norm of jus cogens was unanimously recognized as a customary rule of international law.

Therefore, obligations which are at variance with universally recognized principles of International Law cannot be the object of a treaty.

Bosnian Case: View of Justice Lauterpacht

In the case of Bosnia and Herzegovina v Serbia and Montenegro [2007], Serbia was alleged to have attempted extermination of the Muslim population of Bosnia and Herzegovina which led to violations of the Convention on the Prevention and Punishment of the Crime of Genocide, thereby invoking an article of the genocide convention. It was unanimously held in this case that Serbia was neither directly involved nor was complicit in it but it rather committed a breach of genocide convention by failing to prevent it from occurring, he genocide convention being a part of jus cogens.

In this case, Justice Lauterpacht was in favour of the decision and defined jus cogens as a concept which is superior to both customary law and treaty as it stands on the very fundamentals of natural law and humanity. He also associated jus cogens with the general principles of law and said that irrespective of its origin, jus cogens encircles all the fundamentals of a necessary law at the international level and hence, is the superior-most in hierarchy.

Views of Prof. Michel Byers and David Kennedy

Professor Michel Byers quoted a somewhat similar definition as that of Professor Oppenheim. He focused on conceptualizing the relation between jus cogens and erga omnes rules. Erga omnes obligations are those in which all states have a legal interest because the subject matter is of importance to the states and the international community as a whole. In case of a breach in these obligations, every state is considered justified in invoking responsibility upon the guilty state that committed the internationally wrongful act.

According to David Kennedy, jus cogens was termed as the super-customary norm. In fact, there are two views which dominate the foundation of the concept of jus cogens. The first view is that jus cogens originated directly from international law and the second view is that it is based on one of the existing sources of international law.

Customary international law is an aspect of international law involving the principle of customs. It basically means that the principles and reasonable ideologies which the society has been practising since time immemorial should be given the status of international law and should remain operational at all times and circumstances.

Hence, terming jus cogens as a super-customary norm justifies both the concepts of the foundation of jus cogens.

Nicaragua case

In the case of the Republic of Nicaragua v. the United States of America, the U.S. decided to plan and undertake activities against Nicaragua. Armed interventions were led by the U.S. in Nicaragua and they also undertook the military and paramilitary forces in and against Nicaragua.

It was held by the International Court of Justice that the U.S. could not rely on collective self-defense to justify its use of force against Nicaragua. The United States violated its customary international law obligation of not to use force against another State when it directly attacked Nicaragua. The Court has also noted that while it may be aware that political aspects may be present in any legal dispute brought before it, the purpose of recourse to the Court is the peaceful settlement of legal disputes. The Court of Justice upheld the essential justiciability of even those disputes raising issues of the use of force and collective self-defense.

This case introduced the principle of opinio juris in international law, which states that it is an opinion of law or necessity. It is a necessary element within customary laws and acts as a defense as if the acts have done were of necessary or lawful opinion. In this case, it was noticed that the actions of the U.S. were not in alignment with this principle.

Pablo Najera case

An early decision referring to the concept of jus cogens is the Pablo Najera case where the issue was an arbitral award named Pablo Najera between France and Mexico. The question of the concerned case was the registration of treaties and sanctioning of invalidity in the event of non-registration. Mexico had raised the issue of non-registration by France in the Franco-Mexico compromise as a preliminary objection. The President of the Arbitration Commission characterized the obligation as non-derogatory and used the principle of jus cogens to justify it.

Conclusion

The jus cogens norm has retained its strong position since 1969. The principle of jus cogens has generated hope that developing standards of law would result in a higher realization of justice in domestic actions and in an enhanced outlook for justice, peace, and cooperation among nations. A major result of that hope has been the increasing vitality of the principle of jus cogens and its developing dominance in international law. The use of jus cogens in human rights actions should overcome the court invoked barriers to redress the grievances and should act as a compelling factor in the progressive enforcement of human rights.

References

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This article is written by Gauraw Kumar, from BVP-New Law College, Pune. In this article, he covers the important concept of the Oath Act, 1969 and tries to discuss the various facts, history and recent customs of oath in judicial proceedings.

Introduction

We have to attach an oath letter on many occasions, such as exchange of money, buying of property, in any judicial activity or judicial proceeding. This work is very simple nowadays. You must have heard about the word ‘stamp’ in your local area during the time of any rental agreement, drop certificate, etc. What is ‘stamp’? This is another way to take an oath.

We should know related to the oath in judicial proceedings. You must have seen the Court scenes of any movie, in which witness takes the oath by putting a hand on the religious book during the judicial proceedings. Have you ever given a thought about whether it really happens in actual judicial proceedings or not? The answer is ‘no’. There are no such types of oaths taken by any witnesses during actual judicial proceedings. There are different ways to take an oath that is conducted during the judicial proceedings which we will be discussing in further contents. There is a separate law regarding oath during judicial proceedings named The Oath Act, 1969. In this Act, all the provisions, liabilities, course of action and other things related to oath during judicial proceedings are given.

Why the Witness has to take an oath?

There are two ways by which witnesses can register a statement in a judicial proceeding.

First, is ‘on oath’ and second, is ‘on affidavit’. In a judicial proceeding, the witness is liable to speak the truth only after taking an oath. If any witness lies in a judicial proceeding after taking an oath for speaking the truth, then it is itself an offense under the Indian Penal Code, 1872. Section 193 of the IPC deals with punishment for giving or fabricating false evidence. But, it applies only after taking an oath.

Section 193 of the IPC

According to Section 193 of the Indian Penal Code, 1860, the person shall be punished with simple or rigorous imprisonment for a term extending up to seven years, and shall also be liable to fine who:

gives false evidence in any moment of judicial proceeding intentionally, or
fabricates false evidence intentionally for the purpose of the same being used in any moment of a judicial proceeding.

Now we have to understand two terms:

Giving false evidence: Any person who states something in judicial proceedings, knowing that the statement is false.
Fabricating false evidence: Any person who manipulates any statements and facts of the case in order to establish liability on another person, knowingly that the person is innocent.

History of Oath

In Mughal’s period, when a king used to act as a Judge to resolve any issue then witness was bound to take an oath by putting a hand on his religious book. For example, a Hindu used to place his/her hand on Gita or a Muslim places his/her hand on the Quran while stating anything in the proceedings, etc.
Earlier, it was believed that society is extremely loyal towards God and their religion. So, they will only speak the truth while taking an oath of their religious book.
But, this custom was struck down by the British Government in 1873 by the introduction of the uniform system. (Indian Oath Act 1873)
Notwithstanding, Indian Oath Act 1873, Bombay High Court continued this custom till 1957.
Now, an issue was raised by the 28th law commission reports that people who do not believe in god can lie even after taking an oath to religious books.
By considering this issue, The Oath Act of 1969 came into existence.

The Oaths Act, 1969

This Act does not state anyone to take an oath by putting a hand on the religious book. After the introduction of this act, the custom which was continuing from the past was completely stopped in the judicial proceedings. The Oaths Act, 1969 (Act No. 44 of 1969) dated 26th December 1969 is the Act of Parliament which was enacted to consolidate and amend the ‘Judicial Oath’ and for other relevant purposes. This Act extends to the whole of India.

According to Section 2 of this Act, it does not apply to proceedings before courts-martial or to oaths, affirmations or declarations by the Central Government for members of the Armed Forces of the Union.

Power to administer oaths

According to Section 3 of the Oath Act, 1969, Courts and individuals will have the power to administer oaths:

By themselves, or
subject to the provisions of subsection (2) of Section 6, or
by an official empowered by them in this name, oaths and affirmations in the fulfillment of the duties imposed or in the exercise of the powers conferred on them by law.

These are the following Courts:

All Courts and persons who have by law or consent of the parties, the authority to receive evidence;
the officer in command of any naval station or military or ship occupied by the Union Armed Forces provided that the affirmation or oath is administered within the scope of the station.

Oaths and affirmations to be made by witnesses, interpreter and jurors

According to Section 4 of the Oath Act, 1969, oaths or affirmations shall be made by the following people, namely:

All witnesses or all the persons who may lawfully be examined, or give (or needed to give) evidence before any court or person having authority to examine such persons or to receive evidence;
interpreters of questions and evidence given by witnesses; and
jurors.

The preceding provisions of this article and the provisions of Article 5 do not apply to witness when the witness is a child under the age of twelve years and the court or the person authorized to inspect that witness is of the opinion that, while the witness understands the duty, to tell the truth, he does not understand the nature of an oath or affirmation.

But in such a case, the absence of an oath or affirmation will not disqualify the evidence provided by this witness or affect the witness’s duty, to tell the truth.

Nothing in this section will make it possible to manage in a criminal proceeding, an oath or affirmation to the accused person unless it is inspected as a witness of the defense. It is important to administer it to the official interpreter of any Court after he has entered in the execution of the duties of his office, an oath or affirmation that he will faithfully satisfy those duties.

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Forms of Oaths and affirmations

According to Section 6 of the Oath Act, 1969 all oaths and statements made under section 4 shall be administered in accordance with one of the forms listed in the Annex, as appropriate to the circumstances of the case.

Provided that if a witness in any judicial proceeding wishes to give evidence:

Under oath or solemn affirmation in any common way among the persons of the class to which he belongs, or
That he keeps them bound, and that he does not repudiate justice or decency, and
If it is not intended to affect any third party,

then the court may allow it to present evidence of such oath or affirmation.

All such oaths and affirmations shall, in the case of all courts other than the High Courts and the Supreme Court, be administered by the presiding officer of the Court himself, or, in the case of a Magistrates or other Judges, by anyone of the Magistrates or Judges, as the case may be.

For Witnesses: I do swear in the name of God that whatever I shall state shall be the truth, the whole truth and solemnly affirm nothing but the truth.
For Jurors: I do swear in the name of God that I will well and truly try and true deliverance make between the solemnly affirm State and the prisoner(s) at the bar, whom I shall have in charge, and a correct verdict give according to the evidence.
For Interpreters: I do swear in the name of God that I will well and truly interpret and explain all questions put to solemnly affirm and evidence given by witnesses and translate correctly and accurately all the documents given to me for translation.
For Affidavits: I do swear in the name of God that this is my signature (or mark) and name and that the contents of this my affidavit are true.

Proceedings and evidence not invalidated by the omission of oath or irregularity.

According to Section 7 of the Oath Act, 1969, no omission:

To take an oath, or
Make any claim, and
Not to replace any with any of them, and
Any irregularity in the administration of any oath or affirmation or in the form in which it is administered will invalidate any procedure or render any evidence inadmissible, with respect to which such omission, substitution or irregularity occurred, or that affects the obligation of a witness, to tell the truth.

Persons giving evidence bound to state the truth

According to Section 8 of the Oath Act, 1969, any person who presents evidence on any subject before any court or person authorized to administer oaths and statements shall be required to declare the truth on said subject. After taking an oath, the witnesses are bound to state only the truth, nothing but the truth.

According to Section 5 of the Oath Act, 1969, a witness, interpreter or juror may, instead of taking an oath, make a statement.

Repeal and Saving

The Oath Act, 1969 is made after the amendment of the Oath Act, 1873.
When, in any pending procedure at the beginning of this Law, the parties have agreed to be bound by any oath or affirmation as specified in section 8 of said Law, then, despite the repeal of said Law, the provisions of the Sections 9 to 12 of said Law will continue to apply in relation to said agreement as if this Law had not been approved.

Conclusion

Initially, the concept of Oath evolved in India during the period of Mughals in which witnesses were bound to take the oath by putting their hand on the religious book from which religion they belonged to. But, It was struck down by Britishers and they came up with a new uniform code related to the oath. Nowadays, our judiciary follows the custom of the oath which is given in the Oath Act, 1969. In this article, we have discussed various provisions of the Oath Act, 1969. People are bound to state truth after taking oath under the Oath Act. If they did not do so, they will be liable under Section 191 of the Indian Penal Code, 1872 for removing and fabricating evidence before the court of law.

References

Bare Act of Oath Act, 1969

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This article is written by M Anulekha from Damodaram Sanjivayya National Law University. In this article, the author discusses the doctrine of renvoi in Private International Law.

Introduction of private international law

Private International Law is a branch of Jurisprudence arising from the diverse laws of various nations that apply when private citizens of different countries interact or transact business with one another. Private International law suggests that a piece of the law is directed between private residents of various nations. Right now, International Law varies from one country to another country, which is the arrangement of rules done by the legislatures of different nations that decide the rights and direct the intercourse of autonomous countries. It comprises standards and rules for managing lawful debates that have an outside component: for instance, a cross-outskirt or non-resident business cases. In England and Wales, the terms ‘private International law’ and ‘strife of laws’ are tradable, and the subject incorporates a decision of law, the Court’s locale and the acknowledgment and implementation of remote decisions. The extent of private international law shifts from nation to nation and every country has its principles.

Introduction of Renvoi

The Doctrine of Renvoi is one of the significant and fundamental subjects of Private International Law or Conflict of Laws. Again, the Court sees that the issue will be chosen as per the law of another nation, it is when regulation of renvoi assumes its job in taking care of the issue. It’s a method to take care of the cases in which there exists a foreign element.

Meaning of the Renvoi

The Doctrine of Renvoi is the process by which the Court adopts the rules of a foreign jurisdiction with respect to any conflict of laws that arises. The idea behind this doctrine is to prevent forum shopping and the same law is applied to achieve the same outcome regardless of where the case is actually dealt with.

“Renvoi” originates from the French “send back” or “return unopened”. The “Convention of Renvoi” is the procedure by which the Court embraces the principles of an foreign law as for any contention of law that emerges.

Types of Renvoi

Under the watchful eye of a judge resort to the principle of renvoi, there is an answer to the use of internal law in particular. In any case, if there was no space for use of internal law, at that point the judge may apply the best possible kind of renvoi.

Single Renvoi

Nations, for example, Spain, Italy, and Luxembourg work a “Single Renvoi” framework. For instance, where a deceased benefactor, who was a French national, was an occupant in England yet domiciled in Spain leaving moveable property in Spain, the Court may need to consider which authoritative discussion will apply to manage the property under progression laws.

In single renvoi, a judge of a country is faced with conflicting rules of his country and sends the case to the foreign country but according to the law of that country, the case is referred back to his country and his country accepts sub reference and applies the law of his country.

In re Ross

Facts

The testatrix( the person who writes the will) was a British national, who was domiciled in Italy and had written a will leaving the land in Italy and the movables both in Italy and England. Where will was valid in England but not in Italy because she had not left half of her property to her son.

Judgment

Where the Court had applied the law regarding where the property is situated. The movables in Italy because the testatrix (the person who writes the will) holds the Italian domicile. As a result, the Judge had applied the Italian law with respect to the immovable property situated in Italy. As Italy did not accept the renvoi based issue was decided in accordance with English law.

Forgo case

Facts

A Bavarian national died in France, where he had lived since the age of 5. Where under the Bavarian law the collateral relatives were entitled to succeed, but under the french law the property will be passed to the French government but not to the family members.

Judgment

The French Court held that it would decide the inquiry by applying Bavarian law however the State contended that the Bavarian Courts would apply French law, and the French Courts ought to do otherwise. The case was ruled for the French state, and the reference here was to the Bavarian guidelines of contention.

Double or total renvoi

Countries like Spain, England, and France follow double renvoi. For instance, let’s consider the accompanying case whereby a deceased benefactor, an Irish national, residing in Spain, however, domiciled in Italy, died and left some immovable property in France. France, being the law of the gathering (where the advantages are arranged) will analyze the law of the person who died. Spanish law watches the law of the deceased nationality which is Italy. Italy, as a ward that just works a solitary renvoi framework, won’t acknowledge the Double Renvoi and almost certainly, right now will apply Italian law.

Re Annesley Case

Facts

An English woman was domiciled in France for 58 years at the time of her death. According to the principles of English law, she was domiciled in England. Before her death, she made a will, where the will was valid as per the English law, but it was not valid as per the French law because she did not leave 2/3rd of her estate to the children. According to the French law 2/3rd of the property goes to their heirs. Where the France Court did not issue any authorization certificate that she was a French domicile which was necessary for the acquisition of domicile.

Judgment

The Court said that it had applied the French law as she was holding the French domicile at the time of her death. Based on that, the English Courts refer the matter to the French law as the law of domicile and the French law also referred the same back to England as single renvoi is recognized in France. Therefore, the French Court would accept the Remission and have applied the Internal law.

No Renvoi

Some countries like Denmark, Greece and the US do not accept double renvoi.

Brussels IV: The EU Regulation On Succession

This new EU Succession law, effective from 17 August 2015 attempts harmonization of succession of all member States in determining the forum that applies to succession laws. Ireland, UK, and Denmark have opted out of this regulation, although interestingly the regulation will still have an effect on how these Countries will deal with the signatory States and how signatory States will deal with the non-signatory States.

In relation to the Doctrine of Renvoi, the regulation attempts to provide that in all EU Member States (other than Ireland, UK, and Denmark), the doctrine is abolished other than in the case of third party States. It also provides for testators to designate the law of their nationality as applying to the whole of their estate. The regulation will only affect deaths on or after 17 August 2015 however an individual may elect the law under their will now to apply after that date.

Conclusion

After we have experienced history, definition, types, and points of interest of renvoi it is critical to remember that it doesn’t make a difference to all cases. As Abla Mayss commented about it: renvoi applies to inquiries of interstate progression and fundamental legitimacy of wills. There is some power such that it applies to marriage and that it ought to apply to cases including title to movable and immovable property. It is a process by which the Court adopts the rules of a foreign jurisdiction for any conflict of law that arises. Renvoi does not, however, discover a spot in the fields of contract or tort. And if there is no renvoi the court will apply the Internal law.

References

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This article has been written by Chandan Kumar Pradhan, from KIIT School of Law, Odisha. This article talks about the existing conflicts over the oceans.

Introduction

Shipping and fishing are the main areas of the sea. Depending on human development, there were many cases of the use of technology, and sometimes they attempted to satisfy the needs of human beings. Many other resources and minerals, natural gas, oil, sand and gravel, diamonds, gold and other resources were made from the seabed. With the development of trade in the 20th century and the inexhaustible realization of sea use, the classic principle of “Freedom of the Sea ” was pushed into the background.

Codification of the Law of the sea

After 1945, once the UN was set up, it was decided by the UN security council and the Secretariat that there was a need to codify existing rules especially with regards to the Law of the seas and to come out with permanent solution vis-a-vis the maritime territorial limit of any country.

With this view, the UNCLOS was passed, which codified the existing customary rules, and it came into force in 1999, even though the agreement was signed in 1982.

Since 1945, almost all the countries of the World have replaced the “cannon-shot rule” with 12 nautical miles rule under which an area of 12 nautical miles from a country sea coast is presumed to be the exclusive maritime limit of one country, and these rules are also acknowledged and accepted under the UNCLOS rules and regulations.

A classified example of maritime disputes, existed between India and Sri Lanka, commonly known as the Ram Setu Bridge, connecting Dhanushkodi in India to Talaimannar in Sri Lanka.

What is UNCLOS?

UNCLOS stands for the United Nations Convention for the Law of the Sea. It is also known as the Law of the Sea. It is an international agreement or treaty which establishes rules and guidelines for using the world’s oceans and seas, so as to use and conserve marine resources and to secure the preservation and protection of all the living beings of the sea. The treaty was signed on 10 December 1982 in Montego Bay, Jamaica, as a result of the United Nations Conference on the Law of the Sea, which took place from 1973 to 1982, and came into force in 1994.

What is the role of this convention?

The convention defines several maritime zones. Namely the baseline, the territorial waters, the contiguous zone, the exclusive economic zone, the continental shelf, the International seabed area.

The exclusive economic zone is international water, which can be accessed and used by each country for economic purposes. It is currently the dominant law of the sea.

There is no limit or boundary set for commercial or marine business in these International waters.

What is the history of this convention?

Several countries have expressed a desire to expand national maritime information, use natural resources, protect fish stocks and reduce pollution. For this purpose, the League of Nations held a conference at The Hague in 1930 but failed to reach an agreement. In the 20th century, technological development in fisheries and oil production have increased the maritime scope in which countries can find and use natural resources.

This motivated the President of the United States, Harry S. Truman, in 1945 to increase the U.S. jurisdiction outside of all of its continental shelf natural resources, far beyond the Country’s territorial waters.

Grotius’s concept “Freedom of the Sea” became practically universal in the 20th century due to the global dominance of European navies. National rights and jurisdiction over oceans are limited to certain water belts that stretch from the Country’s coast, usually 3 miles (5.6km), according to Bynkershoek’s “cannon fire” rules. According to the maxim “Mare Liberum” all water outside the Country’s border is considered as the International waters which is free for all countries, but not for anyone.

Responding to British lawyer Grotius, John Seldon argued in a saying called “Mare Clausum” that the sea was able to seize sovereign power like land and territory. Seldon rejected Grotius’s assumptions, arguing that there was no historical system for treating the sea differently from the mainland, and there was nothing inherent in the nature of the sea that prevented the State from controlling its parts. Basically, International Law can frame the National jurisdiction that appears above the sea.

Territorial rules with regard to the law of the sea

Under Customary International Laws, the Law of the seas were not codified only because of the fact that at that time the ocean was considered as an important maritime property, through which countries could claim their sovereignty, open up new trading rules and also capture new territories with the help of either trading companies or powerful navels.

Nevertheless, by the 17th century, a Customary International Law started evolving amongst countries, which categorically laid down the fact that a country’s territorial limit from the coastal sea shall be limited to 3 nautical miles, under which the Country shall exercise absolute jurisdiction and no foreign vessels or ships will be allowed within that territory, except for certain restricted conditions.

This 3-mile rule was known as the “cannon-shot rule” and the restrictions given for foreign ships to enter into the territorial waters at a host was known as the “Doctrine of innocent passage” and if a foreign vessel was exercising to the innocent passage, then no conditions were allowed to run any over or over operations against the territorial integrity of the host State.

India’s position on territorial waters

India’s position in relation to the Law of the sea is generally governed by Article 297 of the Indian constitution and laws on waters, continental shelf, EEZ and other maritime zones. Maritime zone Law defines Indian sovereignty over the waters and the seabed, as well as the land and airspace above those waters. An area of the boundary line is where each point is 12 nautical miles from the closet point to the baseline. All foreign vessels have the right pass that is innocent passage through territorial waters.

Case dispute

The South China dispute

Facts

5000 years ago, China was governed by the Ming dynasty, who were also famous as Terracotta warriors.

In a navel map, at the times of the Ming period, the entire region, boarding the south China sea along the coast of Vietnam, Indonesia and the Philippines were shown to be Chinese territory.

In the present times, the Chinese government has claimed these areas under the South China sea, coming within the territorial waters of many southeast Asian Nations as its own territory.

The Chinese called this new boundary as the (nine-dash line) territory.

In 1988, the Imperial Chinese navy with the support of the Chinese air force repeatedly intruded into the territory of water of the Philippines and started the construction of artificial islands called the Spratly and johnson group of islands.

The Philippine government strongly protested this movement on the grounds that the disputed territory was within the maritime limit of Philippine sea waters and China had violated the territorial sovereignty of Philippine.

Repeated requests were made by the Philippino government to the Chinese authority to stop construction in the disputed territories, but it was openly ignored by the communist party of China and since1988, the Chinese government has built a series of smaller artificial islands, military installations, air force and naval bases to further strengthen the Spratly and Johnson islands.

In 2015, the Philippino government approached the PCA (Permanent Court of Arbitration) to resolve the South China Sea dispute, where the Chinese government did not appear before the PCA. The PCA categorically held that (nine-dash line) theory of China was grossly inaccurate, construction of Spratly and Johnson islands were illegal, China had violated almost all its treaty and obligations, which are coming under UNCLOS and violation of Customary International Law and more specifically in Article 2(4) of the UN Charter.

After Judgement

China refused to agree to the decision. After the decision of the PCA, the Chinese navy started building large seaports in the Spratly harbour, so that Chinese naval aircraft carrier fighter squadrons of the Chinese air force can be permanently posted in the Spratly armed forces base.

Since 2016, China has started building more islands in the territorial waters of even Vietnam, Indonesia and Malaysia and is now claiming that the nine-dash rule is actually correct and they would actually keep on building more islands in the south China sea.

Contiguous Zone

The contiguous zone is the part of the sea that is outside and adjacent to the territorial waters of a coastal country. This is not the object of a subsidiary, but in this coastal country, they can exercise certain jurisdictional rights. The concept of an adjacent zone develops because countries cannot effectively protect all their interests because of the limited interference on the territorial sea. The 1982 convention established the concept of an exclusive economic zone (EEZ) which fully covers the contiguous zones.

According to Article 33 of the 1982 Convention, Contiguous zone must not be more than 24 nautical miles from the baseline where the territorial sea area is measured. Thus the area of the contiguous area is 12 miles from the territorial sea.

India’s position on contiguous zone

India has claimed the contiguous zone to the extent of 24 nautical miles by enacting the Maritime Zones Act of 1976.

Continental Shelf

According to W.Friedman, the continental shelf can be defined as the zone around the continent that extends from a low water line to depth and usually marked towards greater depth. What is commonly referred to as a “continental shelf” is a sloping platform that covers continents and islands? This is a submerged seabed that borders continental landmass and is found as an extension or part of that land. It usually extends to a depth of about 200 meters.

The coastal countries have limited sovereignty rights on the continental shelf to explore and use “natural resources”, not sovereignty.

India’s position on the continental shelf

The Maritime Zone Act defines India’s position that India has declared a continental shelf 200 nautical miles from land. Indian rights and obligations under this command are similar to those in other countries, as stipulated in international conventions. But, the government can declare the continental shelf and its magical waters for a certain area and take action to regulate it.

Exclusive Economic Zone

An exclusive economic zone is a sea zone prescribed by UNCLOS, over which a State has several rights regarding the exploration and use of marine resources including energy production from water and wind. It stretches from the baseline, until 200 nautical miles (370.4 km) from its coast. In geographical terms, the EEZ may also include the continental shelf.

The main difference between the territorial sea (12-mile rule) and the exclusive economic zone is that while territorial sea confers full sovereignty over the waters, EEZ is merely a sovereign right which refers to coastal State right below the surface of the sea.

An example of an exclusive economic zone is the Bombay High, between 73 to 74 nautical miles of the Indian coast which is used for oil exploration by the Indian government.

India’s position on EEZ

Section 7 of the Maritime Act of 1976 provides exclusive rights for the purpose of exploring and exploiting the natural resources within EEZ.

Flag State rule

For legal purposes, a vessel, ship, aircraft, the submarine has to be registered in a particular country, and for all practical purposes, it must fly or display the flag of the registered country.

The Flag State rule is applicable for both military and commercial ships, also for all kinds of oil tanks and even cruise ships.

As of now, Liberia and Panama are the two countries which have a maximum number of ships registered but most of the ships are broken down and sold as junk in Alang, Gujarat.

The Flag State rule principal has also been implemented under Part VII Article 92 of UNCLOS and even in environmental disputes, the Flag State rule can be implemented under Article 217(1) of UNCLOS, 1982.

Case

S.S Lotus case (France Vs. Turkey, 1927)

Fact

In 1925, after Mustapha Kemal pasha started liberalising the Turkish economy, Turkey started to expand the trade abroad with other countries. Unfortunately, a French vessel S.S lotus and Turkish ship S.S Bozkurt collided, because of which the Turkish ship damaged and killed 8 Turkish Nationals on board of Turkish vessel. The remaining survivors of the Turkish ship were taken to Turkey onboard S.S lotus.

In Turkey, the captain of the French ship, and the first watch officer, Monsiver Demons, were charged with manslaughter and Demons was sentenced to imprisonment and fine. The French government demanded the release of Monsieur Demons and the transfer of his case to the French Court. Turkey and France agreed to refer the dispute to the PCIJ(Permanent Court of International Justice).

Judgement

The French and the Turkish government were strongly blaming each other and Monsieur Demons was being charged by the Turkish government of knowingly causing the accident. The French government further contended that only they have a right to trial the individual because the incident involved a French ship and a French National.

The PCIJ held that Turkey had violated no norms of International Law by instituting a case against Monsieur Demons and also had no rights to prosecute him.

After this judgement, there was a huge criticism and after the formation of the United Nation, certain changes were brought in the Flag State rule.

Rights of the coastal States

The States cannot exercise sovereignty over coastal State. They will exercise sovereignty rights to explore and exploit minerals, non-living resources of the ocean floor and soil when the primary 5 years of production at that place. The speed shall increase by 125th of the value of each resulting year till 12 years and shall stay seven-membered thereafter. If coastal States don’t explore or exploit shelf resources no alternative State could undertake these activities without its specific consent.

However, the rights of the coastal State over the seabed don’t have an effect on the regime freedom of navigation on the high seas or that of the airspace higher than the superimposed waters.

High Seas

The high seas mean, all the parts which are not coming under EEZ, territory or inland waters of a country. This rule was formulated by Grotius in his maxim on “Mare Liberum” in 1609 and claimed that the sea could not be owned by anyone.

As a result, all States supported that ships can go and use freedom of navigation, fight, fishing and building artificial islands etc. But, the command has been considerably changed under the convention on the Law of the sea of 1982.

Article 87(2) of the convention lays down the limitation of the general nature on the freedom of high seas by stating that the freedom of the high seas “shall be exercised with due regard to the interests of other States in their exercise of the freedom of high seas”.

Conclusion

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates a comprehensive command to govern the rights of nations in respect of the world’s oceans. International Maritime Organization (IMO) is a specialized agency of the United Nations responsible for improving maritime safety and preventing pollution from ships.

Life itself arose from the oceans. Even now, when the continents have been mapped and their interiors made accessible by road, river and air, most of the people in the world live no more than 200 miles from the sea and relate closely to it.

References

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Introduction

History of the United Nation

The Atlantic Charter (1941)

Dumbarton Oaks Proposal (1944-1945)

Principal organs of the United Nations

General Assembly

Security Council

Economic and Social Council (ECOSOC)

Trusteeship Council

The International Court of Justice (ICJ)

United Nations Secretariat

The United Nations Charter

Purposes and Principle

Article 1 of the UN Charter

Article 2 of the UN Charter

Nicaragua v. the United States

Article 51 of the UN Charter: Maintenance of peace

Article 13(1) of the UN Charter

Article 24, 25 and 26 of the UN Charter

United Nations General Assembly resolutions (UNGA)

Resolution 3314: Definition of Aggression

Resolution 31/72: Environmental Modification Convention (ENMOD)

Resolution 194: Right of return for Palestinian refugees

Conclusion

References

Introduction

What does the UN do?

Why the UN is needed?

Specialized Agencies of the UN and their role

United Nations Development Programme (UNDP)

Impact made UNDP

2. United Nations Environment Programme (UNEP)

3. United Nations Children’s Fund (UNICEF)

4. Food and Agriculture Organization (FAO)

5. World Health Organization (WHO)

6. International Monetary Fund (IMF)

Whether India should get a permanent seat in the UN Security Council?

Reasons why India Deserve a permanent seat in the UN Security Council

Conclusion

References

Introduction

Importance of criticism in a democracy

Media and its rights

Misuse of media power

Development of fake news in the media

Freedom of speech and expression: Sedition and Defamation Laws

International conventions and their standing

International Covenant on Civil and Political Rights (ICCPR)

European Court of Human Rights (ECHR)

Sedition laws

Anuradha Bhasin v. Union of India: Can the government impose an internet shutdown?

Conclusion

Introduction

The Quintessence of Right to Life

Suggestions through Directive Principles of State Policy

Right to Livelihood

Right to livelihood – Hawkers

Conclusion

Introduction

Privilege to be known

Nobody will be a judge in his own case

Summoning and Attendance of Witnesses

Order XVI, Rules 1, 1-A, and 6

Adjournment

When adjournment can be granted and refused?

Inherent Power and Duty of Court

Section 151 of the Civil Procedure Code

Adjournment Limit

Costs of Adjournment

Failure to Appear

Hearing of the Suit

The trial in Open Court

Trial in Camera

Recording of Evidence

Appealable Cases

Non Appealable Cases

Examination De Bene Esse

Oral and Written Arguments

Conclusion

References