This article has been written by Ishaan Banerjee from Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article explores the basics of the Transfer of Property Act 1882, along with the concept of alienation. We will also examine the conditions and exceptions relating to the restriction of alienation under this Act.  

Introduction

The Transfer of Property Act, 1882 is an Act laying down the rules and regulations regarding the transfer of property among persons in India. It explains how a transfer of property is completed and the conditions under which transfer may be carried out. An understanding of the basic terms of this Act along with exploring alienation and its history would be important in understanding the conditions and exceptions involved in the restraint of alienation.

What is the transfer of property according to law?

Section 5 of the Transfer of Property Act, 1882 has several conditions for an act to be defined as a ‘transfer of property’-

• A ‘living person’ must convey property. Conveying essentially means giving a title of ownership on the property to the transferee. A living person has been defined in the same section to include company, association or a body of individuals whether it has been incorporated or not. 
• The conveyance of the property can be carried out in both the present and the future.
• This conveyance may happen towards one or more other living persons, including himself.

What can be transferred?

It is not explicitly stated in the Act regarding what is ‘property’ or what can be transferred. Rather, the Act states that property of any kind may be transferred subject to exceptions given under Section 6. The property that can be transferred includes both movable and immovable property, as well as intangible property like tenancy, copyrights etc.

Who is competent to transfer?

Section 7 of the Transfer of Property Act categorizes persons competent to transfer as-

• Every person is competent to contract under the Indian Contract Act, 1872 and entitled to the transferable property.
•  A person who is authorised to dispose of transferable property that he does not have the ownership to.

This property can be transferred wholly or partly, absolutely or conditionally, with regard to the extent of the law and circumstances. The property, as stated above may be conveyed to any living person including a company, association or a body of individuals whether incorporated or not. Under Section 13, even an unborn child can be the transferee of the property. 

What is alienation?

Alienation means transferring of property. This transfer of property can be through gifts, sales and mortgages. Under Hindu Law, no person of the Joint Hindu family, not even the Karta, has the full power to alienate the joint family property or his own interest in the joint family property without the consent of all coparceners. In the case of separate property, a Hindu can alienate that property whether it comes under Dayabhaga or Mitakshara school. This power is absolute. 

Earlier, under the classical law, the father or the Karta had the power to alienate the whole joint family property without the consent of the other coparceners, and that is why there have been certain conditions added for the situation where a Karta or father can do so.

Can alienation of property be restrained?

Section 10 to 18 of the Transfer of Property Act, 1882 state the rules for alienation of property-

• Section 10 lays down that where the transferee is absolutely restrained from transferring his interest in his property to another person because of a condition which came along when the property was transferred to the transferee, then this condition will be made void. The transfer, from the transferor to the transferee would remain valid.  
• For example, A transfers some property to B as a gift but with the condition that while A is alive, B must not transfer the property to any other person. This condition will be held void as it absolutely restrains B from transferring his interest in the property to another person.

This is commonly known as the ‘rule against alienability’. The Transfer of Property Act is based on the principle that there can be a free transfer of property and has been specifically made with regard to free transfer. If conditions restraining transfer are imposed, then the free transfer would be restricted and there would be no use for the Transfer of Property Act.

However, only conditions mandating ‘absolute restriction’ are void. There are conditions which call for partial restraint to be observed with regard to the transfer of property. If we are to determine whether a condition is absolute or partial, then one must look at the substance of the condition, and not merely the words. Therefore, restraints can be classified into two categories.

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Types of restraints

Absolute Restraints

• An absolute restraint is such a restraint which completely takes away the right of the transferee to alienate or dispose of the property. The transferee can now no longer transfer his interest in the property to another person and he has no freedom to do what he wants with the property in his capacity as the owner of the property. 
• Section 10 stipulates that any condition imposed on the transferee which would amount to an absolute restraint on the right of the transferee to dispose of his interest in the property shall be void. The property must be transferred to the transferee subject to the condition.
• In Rosher v. Rosher (1884) 26 Ch D 801, A made a gift of a house to B, and gave a condition that if B decides to sell the house during the lifetime of A’s wife, she should have the option of purchasing it for Rs 10000, while the market value of the house was set at Rs 10,00,000. This condition was held to be an absolute restraint and was declared void. 
• In Kannamal v. Rajeshwari, AIR 2004 NOC 8 (Mad), a life estate was to be created in favour of ‘M’, but the transferor gave an absolute restriction along with the property transfer to M, whilst divesting himself of all his interests in the property. This restraint was held to be void as there was an absolute transfer. 
• In Mohd Raza v. Abbas BandiBibi,(1932) 59 IA 236, a condition imposing restriction for a particular time or transfer to a specific person has been held to be void. 

Partial Restraints

• A partial restraint is a condition which partially takes away the right of the transferee to dispose of his interest in the property. Here, the right is not taken away substantially. Section 10 does not explicitly talk about partial restraints. A condition imposing partial restriction is valid. 
• In Mata Prasad v. Nageshwar Sahai (1927) 47 All 484, there was a dispute regarding succession between nephew and widow. A compromise was formed that the widow had possession of the property while the title for the same was given to the nephew with the condition that he was restricted from alienating the property during the widow’s lifetime. It was held that the compromise and the condition were valid and prudent in the present case.

Exceptions to the restraints

Lease

A lease is a transfer of property wherein the lessee only has the right of enjoyment of the property, while the ownership right is still with the lessor. Conditions imposing restrictions are valid in the case of a lease, where the condition is for the benefit of the lessor or those claiming under him. In Raja JagatRanvir v. Bagriden, AIR 1973 All 1, a condition in the lease that the lessee shall not sublet or assign was held to be valid. 

Married Woman

When the property is to be transferred to a married woman, who is not a Hindu, Mohammedan or Buddhist, then the condition restricting alienation can be valid.

Repugnant conditions

• Section 11 of the Transfer of Property Act contains conditions which are inconsistent with the nature of the interest transferred are repugnant conditions. These conditions come with the transfer when the transfer confers to the transferee, absolute interests in the property. Any condition with a transfer of absolute interests in the property will be void.
• When a property is transferred absolutely, it must be transferred along with all its legal incidents. In Manjusha Devi v. Sunil Chandra, AIR 1972 Cal 310, the parties entered into a sale for a piece of land. In the sale deed, it was mentioned that the buyer could only use the land for setting up a factory for jute textile manufacturing. It was held that this condition was invalid as the absolute interests in the land had been transferred to the buyer and he could use it as he pleased.

An exception to Section 11

If the transferor has another piece of immovable property, he may, for the benefit of that property, impose conditions of restrictions on the transferee’s right of enjoyment. For example, A has two properties: X and Y. A sells them to B with the condition that a portion of X, adjoined to Y, shall be kept open for the benefit of Y. This condition will be valid.  

Positive and negative conditions

• Positive conditions: These are those conditions imposed on the transfer where the transferor imposes a condition on the transferee to do some act. For example, A transfers land to B, on the condition that he shall maintain and keep filling up the well on that plot of land. This condition is positive.
• Negative conditions: These are those conditions imposed on the transfer when the transferor imposes a condition on the transferee to not do some act. For example, A transfers land to B, on the condition that he shall leave open a four feet wide space on the land, and would not build anything on it.

Difference between Section 10 and Section 11

• Section 10 specifies that in a transfer with condition that absolutely restrains the alienation of the property by the transferee, the condition will be deemed to be void.
• Section 11 specifies that in a transfer where absolute rights in the property have also been alienated to the transferee, and where a condition is imposed that the transferee cannot, in spite of having the absolute right in the property, do an act for his enjoyment of the property, such condition will be deemed to be void.
• Thus, the differences in these sections are that in Section 10 the condition is deemed void due to absolute restrainment and in Section 11, the condition is deemed void due to the transfer being of absolute nature.   

Condition of insolvency

• Section 12 provides that when the transferee becomes insolvent, and if he has some interest in the property that was transferred to him by the transferor, the transferee still would not lose his interest in the property. Hence, any condition stating that transferee shall lose the interest in the transferred property on insolvency and this interest shall be reverted back to the transferor shall be void. 
• However, this section does not apply to a condition on a lease for the benefit of the lessor or those claiming benefit under him. However, in Smith v. Gronow (1891) 2 QB 394, if lessee assigns the lease and then is rendered insolvent, then this condition will not apply.

Conclusion

The Transfer of Property Act, 1882 has been made for the regulation of the free transfer of property in India. This transfer can be in the present or the future and must be between living persons. This article also explores what can be transferred under this Act, and who are the ones competent to transfer. The concept of alienation was also explored. Earlier, under the classical law, the father or the Karta had the right to alienate the joint family property without the consent of the coparceners, but now conditions have been introduced to regulate this. 

Section 10, 11 and 12 contain certain conditions under which restraining of alienation of the property by the transferee is void. It also has exceptions where these conditions may be valid. Primarily, under Section 10, conditions of restraint can be classified into two categories: absolute and partial. Whether a condition is absolute or partial is determined by the substance of that condition, not merely the words. This article explored other conditions such as positive and negative and insolvency, along with their exceptions.

References

[1] https://www.lawctopus.com/academike/restraints-on-transfer/#_edn40

[2] https://www.legalbites.in/restraints-transfer-section-10/

[3] https://www.lawctopus.com/academike/alienation-of-property/

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This article has been written by Chandan Kumar Pradhan from KIIT School of Law, Odisha. This article talks about the overview of The Wealth Tax Act, 1957, how the tax imposed on an individual, HUF or Company.

Introduction

The Wealth Tax Act, 1957 was provided by the Parliament of India for collecting the Wealth Tax from an individual, Hindu Undivided Family or Company. Wealth Tax is also called the Capital Tax or Equity Tax. It is collected on a person’s present financial position. The assets which are included in the collection are cash, bank deposits, shares, fixed assets, personal cars, pensions and owner-occupied house etc. The valuation date of the wealth tax is 31 March of every year.

GDP(Gross Domestic Product)- It is the most common way to find out the wealth of the country. In this way, we can determine the wealth of the individual through their net worth.

What are Assets and deemed assets?

Assets

According to Section 2(a) of the Wealth Tax Act, 1957 there are only six assets. The assessee must be the owner of the assets on the last day of the financial year(1st April to 31 March). In other words, it can also be possible that, if the assessee holds the assets upto 364 days in the financial year and if he holds the assets on the last day of the financial year, then it can be called as assets. The type of assets which are explained in Section 5.

 The types of assets are given below:

• Urban land
• Motor cars
• Cash in hand
• Yachts, boats and aircrafts
• Jewellery
• Building

Deemed assets

According to Section 4 of the Wealth Tax Act, it is defined that the assessee of the assets should not be the owner of such assets on the valuation date(31 March), he should transfer that assets to others.

There are 10 such deemed assets in this Act and these 10 deemed assets are classified into two categories in the following:

Assessee wise deemed assets

1. Interest infirm
2. Transfer to spouse
3. Conversion by a member of HUF
4. Assets transferred under a revocable transfer
5. Gift by book
6. Impartible Estate
7. Minor’s wealth

Asset wise deemed assets

1. Building allotted by Housing;
2. Rights assume in the building by way of any agreement or settlement;
3. Possession of building by a contract under Section 53A of Transfer of Property Act, 1882.

The assets which are exempted from Wealth Tax

Section 5 of The Wealth Tax Act, 1957 contributes some immunity in respect of some specific assets. The valuation date of the wealth tax is 31 March of every year. Wealth tax shall not be payable by an assessee in these types of following assets and these assets shall not be included in the net wealth of the assessee:

• Property controlled under any trust or charity
• Residential building of the previous ruler
• Previous ruler’s jewellery
• A house of an individual or HUF
• A person in a joint-heirship
• Assets belonging to the Indian repatriates
• Exemption for debt

Property controlled under any trust or charity

• When the trust or the charity works on a business with reference to Section 10 and occupies any property, they will get the immunity under the Wealth Tax Act, 1957.
• Condition is that the business which they work for the trust should be for charitable and religious purposes.
• The work may be notified by the central government or publication of books or printing of books etc.

Residential building of the previous ruler

• If the building was made by the previous ruler and now, it is the residential house of the present ruler then he will get the immunity for that one house only.
• And if the present ruler made any building then he has to pay the tax for that second house.

Previous ruler’s jewellery

• Jewellery owned by the previous ruler which has been recognized by the central government can get the immunity and no need of paying the wealth tax.

A house of an individual or HUF

• The exemption is available for one house and for the area not above 500 sq. meters owned by an individual or HUF.

A person in a joint-heirship

• If a person has an interest in HUF and he is also a member then he will get immunity from The Wealth Tax Act, 1957.

Assets belonging to the Indian repatriates

• When an Indian origin person returns to India after many years, the assets which he brought from outside, to India are exempted from the Wealth Tax and the exemption is only available for 7 assessment years.

Exemption for debt

• A person who has one house and has taken it from a bank loan and the loan instalments are also pending. He is actually the owning part of the house. Thus, the person can claim the immunity for debt owned by him for a particular asset and for the valuation date.

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What are the charges of the Wealth Tax?

Earlier the Wealth Tax was only for the collection of six non-productive assets instead of taxing all the assets with some exemptions. The concept of charging Wealth Tax on assets had a change in the year 1992. By these changes, it was expected that the assessee would be forced to either make the assets productive or dispose of the assets. The Wealth Tax is calculated on the market value of the assets.

Some of the basics rules in the following:

• Wealth Tax is collected from an individual, HUFs and Companies.
• If the net wealth is up to 30 lacs then no tax is payable. Where the net wealth exceeds 30 lacs, the wealth tax collection will be 1%.
• There are no surcharges and an education cess in Wealth Tax.
• Any charitable or religious trusts would be exempt from collecting the Wealth Tax.
• For a member of HUF, the ancestor’s property of the HUF is also exempt under Section 5 of The Wealth Tax Act, 1957.

Under Section 45 of the Wealth Tax Act, 1957, it is mentioned specifically that the following individuals would get immunity from collecting the tax namely:

1. Mutual fund
2. Political party
3. Social club
4. A company having a licence under Section 25 of The Companies Act,1956
5. Reserve Bank of India

Under Section 64 of the Income Tax Act,1961 and as per Section 4 of the Wealth Tax Act, 1957, the clubbing provisions would not be operated in case of a minor married daughter.

Wealth tax authorities

The jurisdiction and authorities are defined under Section 8 of the Wealth Tax Act, 1957 that, Section 16 of the Income Tax Act, 1961 provides the jurisdiction to the authorities of the Wealth Tax for the exercise of the powers and execute the functions towards any individual, HUF, or company and the jurisdiction will be the same as per the Income Tax Act by the directions released under Section 120 of The Income Tax Act and also by any other provision of that Act.

For the execution of Section 8 of The Wealth Tax Act, 1957, the authority having jurisdiction in relation to a person who is not an assessee according to the Income Tax Act. Income Tax Act will be the Wealth Tax authority having jurisdiction in regard to the area in which the person lives.

Offence and penalties

Penalty for late payment of Wealth Tax

If a person gets late for the payment of Wealth Tax, then the penalty of 1% interest for every month of delay will be charged.

Non-payment of Wealth Tax

It will lead to a tax recovery process that the due which was the actual amount is pending, that will be increased up to five times and in extreme cases, the defaulter may also be imprisoned.

Case laws under The Wealth Tax Act, 1957

Case law– 1

Apollo Tyres limited Vs. The Assistant Commissioner of Kochi WTA.No.197 of 2009

Here, the High Court of Kerala held that the assessee constantly completed the construction of the four-storey building with basement and started adopting within 2 years from the valuation date. The assessee never thought that the construction of a four-storied building will complete within 2 years, which is given in the explanation under the Wealth Tax Act. Keeping in mind the immunity available to productive assets we feel, there is no particular scope for collecting the tax during the period of construction of the productive asset, namely, commercial buildings, by utilising the urban land.

In other words, once the non-productive assets like urban land are converted to a productive asset like a building, which will qualify for the exemption, then the assessee can start getting immunity even during the period of changing the non-productive asset to productive asset.

Case law– 2

Hon’ble Punjab and Haryana High Court in the case of Siddhartha Enterprises 322 ITR 82 referred to the judgement of the Supreme Court’s case in the following

Union of India Vs. Dharmendra Textile Processors & Ors. (2008) 219 CTR (SC) 617 : (2008) 306 ITR 277 (SC)

SC cannot be read as lying down that in every case when a detail of income is wrong, the penalty must follow. What has been laid down is that the main difference between criminal liability under Section 276C of the Income Tax Act and the penalty under Section 271(1)(C) of the Income Tax Act had to be kept in sense and arrive at the trial of a criminal case but need not be adopted while going for the case of levying of penalty.

Even so, the concept of penalty has not undergone change by the quality of the said judgement. The penalty is imposed only when there is some element of intentional default and not a small mistake. This being the position, the conclusion having been recorded on facts that the provision of wrong particulars was simply a mistake and not a deliberate attempt to evade the tax, the view taken by the Tribunal cannot be held to be difficult.

Difference between Income Tax and Wealth Tax

These are some important difference key points in the following:

Conclusion

Many people are confused with the Income-tax and the Wealth Tax. Some are thinking that both the laws are the same and many of them think that they have to pay one of them by their own choice. Because of this situation in our country, the development is very slow in progress compared to the other countries.

Basically, income is something that a person gets it to return for the work he has done or money invested by him somewhere. On the other hand, the wealth of a person is something that helps him to survive for some days without working. And income is the only source that can help to improve the status of wealth.

Therefore, if a person wants good wealth then he must be sure that he has to make his income better.

References

• http://ymec.in/wp-content/uploads/2014/09/Assets-Chargeable-Under-Wealth-Tax-Act-1957.pdf
• https://lawsofland.blogspot.com/2018/12/assets-deemed-assets-and-exempted.html
• https://keydifferences.com/difference-between-income-and-wealth.html
• https://economictimes.indiatimes.com/wealth/tax/13-big-tax-changes-that-happened-in-2019-and-its-impact-on-your-personal-finances/articleshow/72883882.cms
• https://www.incometaxindia.gov.in/Pages/acts/wealth-tax-act.aspx
• https://indiankanoon.org/doc/95472186/

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This article has been written by Neha Mallik, studying at Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives an insight into The Era of Designer Babies through genetic engineering and the law and ethics behind it. It also explores the question, are we really ready for designer babies?

Overview

Over time, the study of genes has acquired significant growth. Many developments are going on in this area. One such development is genetic engineering, also known as genetic modification or gene manipulation. Ironically, with the development of science, we can now design even a human baby. With persistent endeavours, scientists have come across a technique that has the capacity to alter, modify, and remove defects or add a particular trait in the gene of a human embryo to produce the desired child. The poised growth in Genetic Engineering has led to numerous legal and ethical issues as it affects human lives and society at large. 

In a society like India, the development of genetic engineering is expected to make a severe impact. There is still a lot of research going on in both, National as well as International Law to regulate the matters concerning gene editing. As we are witnessing rapid development in this technology, you might be curious to know what a Designer Baby is, and challenges that are likely to be faced in the near future if this technology gets to a country like India. 

In this article, we have tried to throw some light on the current developments and legal positions of different countries like the USA, China, India, and the reactions of different countries with respect to gene editing and designer babies. We have also emphasized on the legal and ethical impact that this technology may have on society. A thorough reading of this article would help you understand whether we are ready for the designer baby?

What is a Designer Baby?

The term designer baby refers to a baby who has been genetically modified through germline gene editing. Germline editing is the technique used for modifying the DNA of an organism. Particular traits set by parents or scientists are given to a human embryo or egg or sperm to produce a child of the desired trait. Have you ever thought about designing a human being? Science has made another far-fetched dream possible where we can alter or modify the egg, sperm, or embryo to get specific quality in terms of appearance, eye colour, intelligence, obedience or even gender and a lot more. 

Through germline modification, a designer baby can be free from hereditary diseases like leukaemia, haemophilia, HIV, and other such disorders. Adam Nash is the first baby to have been born with this technology. Recently, Chinese scientists were in the news for modifying the germline of live fetuses of two babies. The surgery was successful and the twin babies have already taken birth and are healthy.

Important concepts

Before we dive into the legal and ethical issues behind germline gene editing for the creation of designer babies it is essential to have an understanding of some scientific terms that are frequently used in this article

Germline Gene Editing

Germline Gene Editing, also called Genome editing is a technology that scientists have invented for modifying an organism’s DNA. In Human Germline modification, the DNA of the organism is altered in the desired way by altering its genes. Germline gene editing has already been prohibited in more than 40 countries for safety and social reasons, but the technology has brought forward a revolutionary change in the science world.

In vitro 

In vitro are the studies or experiments conducted with regards to the changes made in the human gene or egg or sperm in a test tube, culture dish, or elsewhere outside a living organism. Whereas In-vitro Fertilization is a technique where eggs and sperm are fertilized outside the human body and then inserted in the woman’s womb.

CRISPR

CRISPR: It has been indicated as the biggest biotech discovery of the century. CRISPR stands for Clustered Regularly Interspaced Short Palindromic Repeat. It is the most powerful tool for modifying genes. The technology allows scientists and doctors to alter DNA and correct genetic defects.

CRISPR-Cas9

CRISPR-Cas9 is a revolutionary technique for germline gene editing. CAS9 stands for CRISPR-associated protein 9.  This enzyme generally works like scissors. It cuts the specific part of the DNA strand out, and then the doctors replace that section with the new segment to obtain the desired trait. This procedure is more or less like the surgery of a human embryo. This editing technique is the most versatile and simplest method compared to other gene-editing tools already out there. 

Pros and Cons of Germline Gene Editing

Pros

• Reduces the risk of genetic diseases as we can now cure incurable diseases.
• It helps in reducing the probability of inherited medical conditions.
• The child is more likely to succeed in life as the child may be born with higher intellect or obedience.
• New characteristics can be added to new generations which may lead to the development of society at large.

Cons

• It may lead to the termination of the embryo in case of failure of the procedure.
• It has the capacity to create humans with perfect or desired traits that are likely to create a gap in society.
• It limits the choice of the child as an individual.
• It can damage the gene pool as the modified traits are inherent.
• It is expensive hence, not affordable by everyone. 

Legal And Regulatory Framework In Different Countries With Respect To Gene Editing

Position In India

India is witnessing technological growth of late, but still, there is no specific law that regulates genetic modification or germline editing. According to the Guidelines released by the Indian Council of Medical Research (ICMR), genetic editing to create designer babies is unethical, which should be prohibited. It is also stated in the report that currently, the scientists do not have sufficient knowledge and understanding about the germline editing, which is why it should be strictly prohibited.

Nonetheless, the In-vitro studies can be carried out on spare embryos that do not have the possibility to be inserted into the womb. In March 2018, an MoU identifying possible areas of research focusing on gene editing had been signed between ICMR And the National Institute of Health and Medical Research(INSERM), France. It is the time when India needs a clear-cut law to encourage safe use of the latest technology for gene editing. 

Position in the USA

The United States has more or less accepted the practice of germline editing, but still, there are no specific laws relating to genetic engineering till now. In 2016, the National Institute of Health(NIH) part of the U.S. Department of Health and Human Services, came up with some guidelines which are not in favour of gene alterations.

Later on, a report was published advising the US Government about the benefits and need for germline editing. The report highlighted the conditions wherein the technique could be practised. Also, the US Food and Drug Administration allowed the use of embryos to solve the problems of infertility. Therefore, cautious research has been performed by scientists in accordance with the NIH Guidelines to ensure safety. 

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Position in the UK

Earlier the UK had a restrictive approach towards Genetically Modified Organisms(GMO) but gradually it is accepting this technology. The research on embryos is regulated by the Human Fertilization and Embryology Act, 1990. The Act gives permission to conduct research on human embryos after taking a license. There are certain conditions that need to be complied with as per the Act. In the year 2011, the Human Fertilization and Embryology Authority (HFEA) permitted Mitochondrial gene replacement therapy(MRT) because this has the ability to treat incurable diseases and infertility. 

The UK, unlike other leading countries, is more open to germline modifications. The authority granted a licence to scientists to modify the gene of live human embryos. It is evident through the practices that the UK is heading towards accepting the age of designer babies. 

Position in Japan

At present, Japan is not having any legal framework relating to genome editing. In response to the experiment conducted in China in 2015, The Japanese Cabinet Office’s Life Ethics Study Group introduced a report accepting gene-editing research. However, the report was strictly against the reproductive manipulation of embryos and the insertion of modified embryos in the woman’s womb. Japan is also moving ahead to enact a law regulating gene editing. Japan has a neutral approach towards the research of germline gene editing but strictly prohibits the re-insertion of the embryo into the womb of a woman.

Position in China

In the recent past, a Chinese scientist has claimed to conduct experiments on a live human embryo. Consequently, twin girls have taken birth and are less prone to HIV. This experiment was a cornerstone in the history of genetic engineering. Now China is going to introduce ‘Gene Editing Regulation’ which governs all the related concerns of genetic engineering. Recently, China while revising its civil code, added the provisions relating to gene editing in the latest draft. 

Recent Technological Advancements

The use of the CRISPR-Cas9 technique by Chinese scientists created a revolution in the field of genetic modification. This paved the way for some notable technological advances:

• The use of molecular scissors to cure diseases like leukaemia and to create designer immune cells is apparent in the practice of leading countries. 
• CRISPR was injected into the eggs to create a genetically modified human embryo and subsequently, it got fertilized avoiding the “off-target” issue as it is easier to target the particular section of the DNA in genes. 
• CRISPR technology has the potential to offer many therapeutic opportunities so that we can even treat rare and incurable diseases.
• Gene doping is again a popular procedure of gene therapy that modulates the gene expression in a particular gene. This procedure is mainly used to improve the ability of an athlete.
• There is another significant technology called “Pre Implantation Genetic Diagnosis” wherein genetic profiling is done prior to implantation and even fertilization so that the fetus can be made free from diseases. Lately, we are witnessing progress in genetics and gradually we are heading towards the age of designer babies.

Issues In Light Of Intellectual Property Rights

With the advancement of technology in the field of genetic engineering, there is a rise in the issues relating to intellectual property rights. It has been disputed whether the human gene is patentable or not. If the gene can be patented, all the rights such as the commercial and non-commercial use of genes would go to the patentee. 

• In Association for Molecular Pathology v. Myriad Genetics, The Supreme Court of the US held that a gene is not a subject matter of the patent as the gene already existed in nature hence, it cannot be patented. 
• On the other hand, the European Union provides that if an element of the gene is produced scientifically to be inserted in the gene strand, it may be patentable although the structure of the technically produced gene is the same as a natural gene. 
• Moving towards India, Indian Patent Act, 1970 under section 3 (c) and (j) clearly specify that anything to be patentable must involve an inventive step and should be fit for industrial application. Therefore, the mere discovery of genes for the purpose of a modification is not patentable.
• Further, it can be said that gene modification has the potential to severely affect mankind and the environment. Therefore it should not be patentable on ethical grounds. 

Ethical And Moral Debate

There are a lot of altercations between the scientific community and the global community regarding whether human germline engineering should be practised or not. Globally, the practice has been banned in many countries for ethical reasons. This topic is hotly debated because the people who oppose the use of the technique believe that the technique will create humans having perfect traits and qualities which leads to the social gap.

On the contrary, those in favour of human germline modification see it as a potential medical tool or a medical cure for certain diseases that lie in the genetic code. There is also a dilemma if it can be morally acceptable as well or not. 

One of the main arguments against human germline editing lies in the ethical concern that it will dehumanize children. At an extreme, parents may be able to completely design their own child and there is a sense of fear that this will transform children into objects rather than human beings. Other concerns include the fear of the scientists that genome editing can have unpredictable effects on the coming generations like genetic mutation and some irreversible changes which can be dangerous for mankind. 

Challenges And Limitations In India

According to the ICMR Guidelines, research on human germline is strictly prohibited. Now the question arises about the validity and enforceability of the Guidelines. The guidelines have still neither been ratified by the legislature nor issued as a valid law. In India, medical practitioners are being governed by a specific code of conduct. Violation of the code of conduct and ICMR Guidelines will result in professional misconduct and even cancellation of license.

Furthermore, in Roche Products India Pvt v. Drugs Controller General of India, it has been observed by the Delhi High Court that as the Guiding principles are basically issued by the government, they have legal validity until it becomes inconsistent with existing laws. They are ethically required to be adhered to till the time any specific law for that matter is enacted. It must be noted that though the ICMR Guidelines have no direct force of law still it is not ethical to breach such guidelines. 

The creation of designer babies in India through germline editing is considered to be unethical but there is no such law that absolutely prohibits such research or practice. Considering the current scenario in India, India might not accept the creation of designer babies but considering the potential opportunities and the idea of the development of a disease-free society, soon India will have a law regulating the research and creation of designer babies. 

Recommendations

The process of germline gene editing is a process that needs to be regulated as it not only affects the legal field but also the world at large. All the experiments and practices should be carried out under the supervision of a central authority and the rules and regulations must be complied with. As it has been known for long that “science is a boon as well as a bane to mankind”, the development in this technology may result in a threat to mankind if misused. The following recommendations must be considered while enacting legislation regulating germline gene editing:

• Firstly, the procedure is applied to the human embryo which is desired to be grown as a healthy baby, so it must be authorized by the central government or any other authority concerned with the gene-editing. 
• Licenses must be taken by the government to conduct research and practice of gene editing on human embryos, eggs or sperm.
• The laboratories where the research would take place must be controlled and regulated by government authorities. 
• Any act is done which is not in conformity with the legislation must be made cognizable and treated as an offence as it involves human life. 

Conclusion

The improvement in the technology of CRISPR Cas9 is a cornerstone in the history of genetic engineering. This technology paved the way for further research and experiments. This technology is not bad if used properly. Now moving to a society like India, where pre-natal sex determination is banned only because of a strong preference for the male child, the era of designer babies may cause further deterioration of sex ratio. It is apparent that technology has the potential in improving the human race but at the same time, it is a very sensitive subject and can raise various disputes if not approached with caution.

References

• http://www.legislation.gov.uk/ukpga/1990/37/contents 
• https://www.icmr.nic.in/ 
• https://www.icmr.nic.in/sites/default/files/guidelines/guidelines_GTP.pdf 
• https://indiankanoon.org/doc/68170451/ 
• https://ghr.nlm.nih.gov/primer/genomicresearch/genomeediting
• National Guidelines for Gene Therapy

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This article is written by Srishti Kaushal, a student of Rajiv Gandhi National University of Law, Patiala, Punjab. In this article, she discusses the provisions, important definitions and procedure followed in the Protection of women from Domestic Violence Act, 2005.

Introduction

In Indian society, domestic violence against women is not an uncommon siting. A plethora of women face it in their lives, and most of them are so accustomed to it that they don’t even end up reporting it. Yet, it can not be denied that many people continue to face domestic violence. In fact, the upcoming movie ‘Thappad’ is all about a woman standing up against her husband who slapped her. It is a prime example of what is to be done in case you become a victim of this horrendous activity.

The National Family Health Survey (NHFS-4), released by the Union Health Ministry, reported that every third woman in India, since the age of fifteen faces domestic violence of some form. It also reported that 31% of married women have faced physical, sexual, or emotional violence by their spouses. The major issue is that out of these hardly 10% actually reported this violence.

Clearly, it is a major issue that needs to be dealt with and women need to realise their rights and how can they protect them. The Protection of Women from Domestic Violence Act, 2005 was introduced to deal with such cases. In this article, we will understand this Act in detail.

Who can file a case under this Act and against who?

The complaint of domestic violence can be filed by the ‘aggrieved person’. Section 2 of the Act defines this term. It means a woman who has been in a domestic relationship with the respondent (a man in a domestic relationship with such women) and alleges that he has inflicted domestic violence upon her. Domestic Relationship refers to a relationship between two people who live or have lived together in a shared household, and are related by:

• Marriage,
• A relationship in the nature of marriage (like live-in relationships), 
• Adoption, 
• Are family members,
• Are related through blood relations.

Shared household as mentioned in this clause is the house belonging to or taken on rent by the man, the house in which the man and woman lived together with shared rent, or the house in which the man and woman lived along with his joint family.

However, it must be mentioned here that not all live-in relationships are covered under the Act. There are certain requirements that must be fulfilled. D. Velusamy v. D. Patchiammal. These are:

1. Both parties must behave like husband and wife;
2. They must have attained the legal age of marriage;
3. They should qualify to enter into marriage;
4. They must voluntarily live together in the same place for a significant amount of time;
5. They must have lived together in a significant household.

It was also explained that if a man ‘keeps’ a woman for the purpose of using her for sexual purposes and/or as a servant, it won’t qualify as a relationship like that of marriage.

Also, though Section 2 defines respondent as a man, the Supreme Court in the case of Sandhya Wankhede vs. Manoj Bhimrao Wankhede held that the term ‘relative’ as used in the Act has a very wide ambit and a complaint against the female relatives of the husband or the male partner can be made within its purview.

Section 3 of the Act explains the term ‘domestic violence’ in detail. It states that an act or omission will qualify as domestic violence if it:

• Harms or injures health, safety, limbs ( body organs), life or/and mental and physical well being of a woman. Such abuse can be physical, sexual, economic, verbal and emotional.
• Harms, harasses, injures or endangers the aggrieved person to coerce her or any of her family members to meet unlawful demands like dowry.
• Causes any other physical and mental injury to the aggrieved person.

Types of Abuse covered by the Act

We have already discussed the 4 types of abuse covered by the Act, as mentioned in it. However, these types were further explained in Bhartiben Bipinbhai Tamboli v. state of Gujrat. It was held that:

Physical abuse: Use of physical force against a woman such that she suffers from bodily injury or hurt. Physical assault, criminal intimidation (threaten to cause hurt) and criminal force (use force upon a person to cause him/her injury) in the form of beating, kicking, punching, abandoning the aggrieved person in a dangerous place, making use of weapons to threaten her, forcing her to leave her matrimonial home, hurting her children, using physical force in sexual situations, etc.

Sexual abuse: This is a form of physical force and includes any act in which a woman is forced to perform any unwanted, unsafe or degrading sexual activity. It includes calling her sexual names, hurting her with objects and weapons during sex and includes forced sex even by a spouse or intimate partner with whom she has consensual sex.

Emotional Abuse: Not all abusive relations involve violence and physical hurt. Many women face emotional abuse which is equally destructive. It includes verbal abuse such as yelling name ­calling, blaming, isolating, intimidating, showcasing controlling behaviour, insulting or continually criticising her.

Economic Abuse: Economic abuse mainly includes a woman not being provided with enough money by her partner to maintain herself and her children, through buying clothes, food, medicines, etc. It also includes not allowing women to take up employment. Apart from this, forcing her out of the house where she lives by not providing her rent, depriving her of financial resources she is entitled to under any custom or law, restricting her access to shared household also falls in this category. It also includes disposing or alienating her movable or immovable assets, valuables, shares, securities and other properties in which she has an interest.

Scope of the Act

The scope of the Act was discussed in the case of Bhartiben Bipinbhai Tamboli v. state of Gujrat. In this case, the court said that domestic violence in India is rampant. As a daughter, mother, wife, sister, partner or a single woman, several women face it in their lives, in some form or the other every day. Yet, it is the least reported form of cruelty, mainly because of social stigma and the attitude of women themselves. 

Till the year 2005, the remedies available to a victim of domestic violence were quite limited. They could either go to civil court and initiate a divorce proceeding or go to the criminal court for the offence under Section 498-A of the Indian Penal Code (cruelty by the husband or his relative). Moreover, relationships outside of marriage were also not recognised. Such aspects forced a woman to stay silent. In regards to all this, the parliament enacted the Protection of Women from Domestic Violence Act, 2005. This Act provides a very wide purview to the definition of an aggrieved person (includes women in live-in relationships) and aims to protect a woman from violence inflicted by a man and/or a woman. 

Hence, the Act has a wide scope and covers a large number of women who earlier had very limited remedies.

The Procedure involved under the Act

Step 1: Informing the protection officer

Any person who has reason to believe that domestic violence has been or is likely to be inflicted upon her can inform about the same to a protection officer appointed under Section 8(1) of the Act. It would be better if such a protection officer is a woman herself. 

Such women would be informed of her rights by the protection officer, a police officer, service providers (any voluntary association registered under law working with the objective of protecting the rights and interests of women), or a magistrate who has received the complaint or was present when the offence occurred. These rights are:

1. Such women have a right to make an application obtaining relief in the form of protection order, monetary relief, custody order, residence order, compensation order.
2. They also have a right to make use of the service provided by the available service providers.
3. They also have a right to make use of the services provided by the protection officers.
4. They have a right to free legal services under the Legal Services Authority Act, 1987. 
5. They also have a right to file a criminal case under Section 498-A of the Indian Penal Code. 

It must also be mentioned here that if the appointed protection officer does not perform her/his duties she/he can be liable to imprisonment upto 1 year and fine upto Rs. 20,000.

Step 2: Making a domestic incident report by the protection officer

Upon receipt of domestic violence complaints, the protection officer must make a domestic incident report to the Magistrate. This report should also claim relief for a protection order if the aggrieved person desires. Such magistrate ( to whom the report is made) would be Magistrate of 1st class or the metropolitan magistrate who is exercising jurisdiction in the area where:

• The aggrieved person resides temporarily,
• Respondent resides, or
• The place where domestic violence allegedly took place. 

The copies of the report should also be forwarded to the police officer in charge of the police station within local limits of which the domestic violence allegedly took place. Apart from this, it is the duty of the protection officers to ensure that the aggrieved person gets all benefits as mentioned as her rights and maintains a list of the service providers, shelter homes and medical facilities in an area.

Step 3: Application with the magistrate

Once an application is filed to the magistrate on by the aggrieved person, someone on the behalf of the aggrieved person or a protection officer, the magistrate will fix the date of the first hearing. Such a date is usually not beyond three days from the date of receipt of an application by the magistrate. Also, the magistrate will endeavor to dispose of the application made within 60 days from the first hearing.

Step 4: Notice to the respondent

Once the date of the first hearing has been set by the magistrate, a notice shall be given to the protection officer who shall inform the informant and any other person, prescribed by the magistrate. This shall be done by the protection officer within 2 days from the date of receipt unless an extension is given by the magistrate.

Step 5: Other options that the magistrate can make use of

1. Under Section 14 of the Act, the magistrate may ask the respondent or the aggrieved party (singly or jointly) to undergo counselling with a member of the service provider. Such a person must have experience in counselling. 
2. Under Section 15 of the Act, the magistrate can take the help of a person, preferably a woman, for discharging his functions. Such a person should preferably be working in the promotion of family welfare. 

Step 6: Giving Orders

Protection Order

If after hearing both the parties, the magistrate is satisfied that domestic violence took place, the magistrate can pass a protection order in favour of the aggrieved party. Such protection order restricts the respondent from:

1. Committing the act of domestic violence.
2. Abetting in the commission of domestic violence.
3. Entering the place of employment, school, etc. of the aggrieved person.
4. Attempting to communicate with the aggrieved person.
5. Alienate any assets, bank accounts or lockers enjoyed by either both the parties or the respondent singly, including her Sridharan.
6. Causing violence to any person who helped the aggrieved person and provided protection from domestic violence.
7. Committing any other act which is specified in the order given.

Residence Order

The magistrate may also pass the Residence Order. Such order may:

1. Restrain the respondent from dispossessing or distributing the possessions of the aggrieved person.
2. Direct the respondent to remove himself from the shared household.
3. Restrain the respondent or any of his relatives from entering the shared household of the parties where the aggrieved person resides.
4. Restrain the respondent from renouncing his rights in the shared household.
5. Restrain the respondent from disposing off the shared household.

Monetary Relief

The magistrate may also direct the respondent to pay monetary relief to the aggrieved person for expenses incurred and losses suffered by her. Such relief may include (but is not limited to):

• Loss of earnings;
• Medical expenses;
• Loss caused due to destruction and damage of any property;
• Maintenance for the aggrieved person and her children.

Custody Order

The magistrate may also grant the custody of a child or children to the aggrieved person or person making an application on her behalf. He may also specify the visitation arrangements as well. In case he feels that visitation by the respondent would be harmful to the child, the magistrate may even refuse to allow such a visit.

Compensation Orders

The magistrate may also pass an order directing the respondent to pay compensation to the aggrieved person for the injuries, mental torture and emotional distress caused to her because of the domestic violence.

In case the magistrate feels it is necessary and is satisfied that the respondent has caused domestic violence and may continue to do so in the future, he may also pass interim and ex-parte orders. 

Step 7: Steps to take in case of breach of the order given

In case the respondent breaches the protection order given by the magistrate, he shall be liable under this Act. He shall be liable with:

• Punishment upto a term extending to one year, or
• Fine ( at maximum 20,000 Rupees)

Duty of the court while dealing with cases under the Act

In the case of Krishna Bhatacharjee vs Sarathi Choudhury And Anr., the court laid down some guidelines that all courts must follow while dealing with a case under this Act. These are:

• The court must give the decision keeping in mind that the helpless aggrieved person has approached the court in compelling circumstances.
• It should also be ensured that the court scrutinizes the facts from all angles. It must take efforts to ensure whether the plea advanced by the respondent to nullify the grievances of the aggrieved person is legally and factually correct.
• The court of law must uphold the truth and aim at delivering proper justice
• Before throwing a petition at the threshold on the grounds of maintainability, the court must see that the aggrieved person is not faced with a situation of non-adjudication. 

Criticism of the Act

The law is not free of criticism. People have criticised it on some of the following grounds:

• Some people have criticised the law on the basis of it being only civil, instead of both civil and criminal as it was meant to be. The criminal part of the law only gets triggered when the act of domestic violence is accompanied by some other offence, like not following the protection order given by the court.
• As per the Act, the authority responsible for effective implementation of the Act is a Protection Officer, who is identified by the State Government. Such an officer is assigned the major role of assisting the court, initiating action on behalf of the aggrieved and looking after the services required by the victim like medical help, counseling, legal aid, etc. However, the people appointed under the Act are people who are in practice not working full time. Most of the time, in fact, this duty is given as an additional charge to those who are already in Government services. These people are mostly not qualified to fit into this role.
• Many people have said that this law assumes men to be the sole perpetrators of domestic violence. Thus, by allowing only women to file a complaint about domestic violence, this law violates Article 14 and 15 of the Indian Constitution and discriminates against men.
• Some people have also said that the definition of Domestic violence is too wide and allows cunning women to cause trouble to men for no reason whatsoever. 

Conclusion

The Protection of Women from Domestic Violence Act, 2005 which was implemented in October 2006 is very promising legislation that combines civil remedies and criminal procedures to provide effective remedies to the women who become victims of domestic violence. The act provides for protection officers, medical facilities, free of cost orders, etc. which helps the aggrieved women in protecting themselves and their loved ones. 

However, the Act is not free of certain problems. Clearly, the implementation of the Act needs to be made more concrete. The Human Rights Watch has found that police often do not file a First Information Report (FIR), i.e, the first step to initiating a police investigation, especially if the aggrieved person is from an economically or socially backward community. Most of the domestic violence, sexual violence, and marital rape cases in India never go reported. Lack of trained counsellors who can help domestic abuse victims and little access to legal aid also adds to the misery of these victims. Issues like these need to be solved so as to ensure that women get the justice they truly deserve.

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This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives a brief introduction to technology law and its practice. This article also examines the top 20 technology law firms in the country which are exploring new spaces of law like data protection, cryptocurrencies etc.

Introduction

Technology law is a fast emerging area of law. It is bound to be one of the most lucrative areas of law in the years to come. With the continuous evolution of technology, many new avenues for practising law have begun to come up. Be it artificial intelligence (AI), intellectual property or data protection, all these areas will be lucrative in the coming years. In this article, we will explore the wide ambit and applicability of technology law, along with exploring the top 20 law firms already engaged in the technology law practice in India.

What exactly is technology law?

As the term suggests, technology law is the law relating to the use of technology. It helps to regulate the use and advancement of technology. Technology surrounds us and is present in almost every aspect of our lives. Therefore, technology law is something which is not confined to a particular area. Has an unknown person on social media has obtained your pictures to which he did not have access? Has the patent for your new product been infringed by a competitor? Are your phone lines being tapped? Say hello to technology law. Thus, technology lawyers need to have a wide area of expertise which may include many other different types of law like intellectual property rights, cyber law, information technology, artificial intelligence and even environmental law. This is exactly why technology law will be a very lucrative area of practice, because as technology evolves, the scope of technology law also expands.

What career opportunities does one have under technology law?

Technology law is a fast emerging area but it also demands a lot of skills from a lawyer. A technology lawyer must be having skills like drafting software and hardware related contracts, policy making, strategising, risk assessment etc. A technology lawyer would also need to stay updated with the latest technology developments. A technology lawyer can work in:

• Technology contract drafting and negotiation: A technology lawyer must know how to draft contracts like Software licensing agreement, Outsourcing agreement, Standard distributor licensing agreement, which are commonly used in technology companies. Not only this, he must know how to incorporate clauses and draft special contracts specific to the technology industry, along with negotiating deals.
•  Managing IP portfolio: Technology lawyers must learn to manage their IP portfolio, as they would have to see that the patented or patentable technology does not leak to competitors.Thus, they have to work fast to procure patents for the new technologies or softwares used in companies.They have to know how to mitigate the damage and defend clients from competitors’ suits regarding patents. They would also have to introduce policies to prevent unauthorised usage.
• Assessing and managing risks: A lawyer must be smart enough to have an idea of the present and the potential risks to the company. He must have an idea about the future of the technology sector and must be cautious to defend the company from potential risks. He must keep up with the developments in technology law; and be updated regarding governmental regulations, judicial pronouncements and the policies of competitors, and must know how to manage the risks arising from there.
• Policy making and implementation: Technology lawyers need to understand the policy making process in an organisation like government bodies, companies, etc. In order to know about potential risks and avert them, policy making is important as it would provide certain guidelines for what the organisation would do in a particular situation. Is your company being sued for infringement of data privacy? How would a technology lawyer deal with this? The next step of action will be dictated by the policy.
• Litigation and dispute resolution: It is obvious that with evolving technology, the number of laws and disputes relating to it would increase with time. The top challenge with litigating in technology related disputes would be explaining to the judge what exactly is the technology and how it works. This would enable the judge to understand the facts, circumstances and reasons under which the dispute has occurred.

Now that you must have an idea of the practise of technology law in India, let us now proceed to the list of the top 20 technology law firms in India. Please note that this list is only suggestive and not a firm statement.

Top 20 technology law firms in India

Trilegal

• Highly rated as one of the best law firms in the country, Trilegal has established its dominance in a short period of time. It has a wide range of practice areas ,including the areas of corporate, competition law, international capital markets, real estate etc.
• It was ranked as one of the top 10 most innovative law firms in APAC by FT- Asia-Pacific Innovative Lawyers and among the top 5 law firms in India by RSG India.
•  It has one of the oldest technology law practices in the country, and has deep experience in working with companies across different sectors. They have also worked on policy formulation which includes the data protection law. It has helped the Aeronautical Development Agency with commercialising the technology software used for creating materials for aircraft fabrication and Hewlett Packard to structure their telecom system integration service.

Nishith Desai Associates

• The technology team of this firm is highly reputed, which helps clients to formulate strategies to get full use out of their intellectual property rights and also helps in value assessments. They have good experience in drafting technology and intellectual property rights related contracts. They have also worked on data protection as well.
• The firm has an impressive clientele, boasting the likes of eBay, Flipkart, Amazon, Visa etc.

Shardul Amarchand Mangaldas

• It regularly finds its name among the Tier 1 law firms of India, including in the technology, Media and Telecom sector. The firm has frequently instructed clients on regulatory and transactional projects, often across the world. 
• They have clients like Saavn, Wal-Mart, Whatsapp, Uber and Facebook Ireland etc.
• An example of a famed member of the team is Tejas Karia, who has been involved in Supreme Court cases regarding the provision of online content, which also included Facebook and Whatsapp as parties.

L&L Partners

• L&L Partners practises in both conventional and non conventional areas of law with focus on building lasting client relationships and offering exceptional legal advice. The firm has advised many national and international clients like Goldman Sachs, ICICI Bank, Yahoo, the Tata Group and others.
• The firm has a wide practice area including but not limited to TMT(Technology, Media, Telecom), dispute resolution, pro bono work, mining, oil and gas etc.
• The technology practice is known for joint venture work. The firm recently assisted ANI Technologies with its licensing agreements of the ‘OLA Play’ feature.

Cyril Amarchand Mangaldas

•  The firm specialises in structuring transactions in the technology sector in India. They also advise on regulatory and commercial contracting matters, along with representing clients before the relevant authorities.
• It has a diverse clientele across diverse service sectors such as online and offline gambling, IT, mobile and fixed line telecom operators, outsourcing etc.

Kochhar & Co.

• Kochhar & Co. has both national and international offices in Dubai, Atlanta and Jeddah. The firm has hardcore expertise in cloud computing, data privacy, e- commerce. They have also helped the telecom sector in bandwidth structuring and VoIP implementation.
• The TMT team has had some amazing victories over the past years. It assisted the Alibaba Group in setting up a cloud computing system and advised Akamai on cloud computing and data privacy.
• Mr. Stephen Mathias, the head of the TMT department, is specially known for his specialisation in technology related matters such as IT outsourcing, data privacy and cloud computing.

AZB & Partners

• The firm has a well reputed technology law practice. They advised Bharti Airtel on transactions and also helped Google to set up its mobile payment service in India.
• This is one of the big law firms in India,and it has expertise in issues such as net neutrality, IoT (Internet of Things) etc and advises clients across a wide range of sectors such as healthcare, food technology, gaming, education, AI etc.
• It has been often involved in the Telecom sector, drafting commercial contracts and advising them on compliance and regulatory issues.

J. Sagar Associates

• The firm offers outstanding practice in a range of areas including the technology sector. It has an impressive clientele among blue chip IT and telecom corporations. 
• The firm is respected for its quality of service and has frequently received great feedback from its clients.
• Some legal stalwarts include: Asim Abbas, who is a specialist in TRAI (Telecom Regulatory Authority of India) policy with astounding industry knowledge and Sajai Singh, a highly experienced member of the firm with complex technology related matters.

Naik Naik & Co.

• It is a full service law firm based in Mumbai. The technology industry boom has helped the firm to build its capacity in recent years. It has advised on matters such as gaming, music and entertainment, sports, advertising etc.
• The firm especially has great experience in the film and entertainment industry as it has got to deal with clients that include major production houses including Hollywood studios, Indian Broadcasting Federation, Producers Guild, IFTPC (Indian Film and TV Producers Council) on relevant issues.

DSK Legal

• The multi disciplinary team is recognised for their work in various industries like biotechnology, e-commerce, m-commerce. The firm has a speciality in identifying new material for patents and copyrights that will play a huge role in the generations to come. 
• The firm’s clients include startups, technology developers, consultants; all of them are using technology to develop their business and need some help to fully utilise their technologies.

IndusLaw

• The firm frequently advises investors and technology companies on transactional and regulatory matters.
• The technology practice advises on commerce and electronic data interchange advice, cloud based delivery of software, drafting and negotiating contracts, privacy and data protection etc.

Khaitan & Co. 

• This firm advises a lot on telecom related matters, having clients which include major software and media companies. The firm has become adept at advising data and connection services.
• Media companies have also approached this firm for drafting and negotiating broadcasting and endorsement contracts, along with arranging joint ventures between these companies.

Mani Chengappa & Mathur

• This firm is fast emerging as one of the major competitors in technology law. It specialises in technology startups and investors, IT outsourcing, data protection, software licensing etc.
• Clients have praised the firm as being very ‘solution driven’ and an in depth understanding of business needs and interests.
• The firm recently advised Punjab and Maharashtra Co-operative Bank on the licensing and service contracts of its technology suite.

TechLegis

• This firm is relatively newer, having been set up in 2016, but it has since then, built up a reputable practice.This firm is led by Salman Waris and has some very impressive clients.
• The firm has dealt with clients like Voxbone, a Belgian company which provides IP communication services, American health company Quintiles IMS Holdings and ZTE.

Ikigai Law

• This will be one of the topmost and sought after law firms in the technology sector in the coming years. This firm has already been sought out by clients who seek advice on unexplored areas like drones and aerospace. The firm also has experience in cryptocurrencies and digital assets, among many others.
• The firm advised four digital assets exchanges before the Supreme Court, challenging the Indian Central Bank directive to cancel the digital assets access to banking services. 
• The firm also advised a leading social media company on its policies for dealing with fake news. It also assisted Dvara Research in drafting and submitting a draft of the Data Protection Bill to the Justice B.N Srikrishna Committee.

Spice Route Legal

• Founded in 2006, and having offices in New Delhi, Mumbai, Bengaluru and Kochi. This firm has been working with eight banks on matters like AI, data protection,blockchain and regulation. 
• International clients include leading international law firms such as Dentons and Sheppard Mullin. The clients have given great feedback, with some emphasising on their expertise on cyber law and their keenness on being updated on technology.

Advaita Legal 

• The firm practices on areas like telecom, data protection and privacy, e-commerce and IoT, advising on law, due diligence, investment structuring etc.
• The firm attracts clients from technology sectors such as Shell India Markets Private Limited, Wipro, World Wide Technology etc.
• The firm is involved with the industries of aerospace and defense, media, telecommunications, banks, financial services etc.

Majmudar & Partners

• Recognised for undertaking transactional work for technology companies like outsourcing, acquisition of IP aspects and M&A. Also advises on cloud computing matters and data protection and AI.
• The firm is famed for giving practical advice and is known to be very reliable.
• The firm recently advised on Kwench Global Technologies on data protection, reviewing privacy policies, in compliance with GDPR and data protection compliances.

 Saikrishna & Associates

• Highly acknowledged as an IP specialist firm, it is bursting onto the technology front as well. It offers expertise in litigation, counterfeiting, mergers and acquisitions.
• Client following include media companies and major publishing houses.

Samvad Partners

• The firm has handled corporate, transactional, regulatory, service agreements and policies and also advises on cybersecurity and data protection.
• It advised Manthan Software Services on the implications of GDPR on its contracts from an Indian market perspective. 
• Harish Narasappa is particularly recognised for his abilities and niche in the TMT sector and his experience in dealing with startups.

References

[1] https://www.vantageasia.com/india-top-law-firms-2018/

[2] https://www.vantageasia.com/india-top-law-firms-2019/

[3]https://chambers.com/guide/asia-pacific?publicationTypeId=8&practiceAreaId=2015&subsectionTypeId=1&locationId=110

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This article has been written by Neha Mallik, studying at Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives an understanding of mortgage deed and its essential elements. It also highlights the important clauses which are to be kept in mind, being a party to the mortgage deed.

The other day, one of my friends and I were discussing buying a new home. He told me about his plans. He is well sorted that he would soon buy a new home. He has a well to do job and earns a handsome salary. He spotted a house and very keen to buy that one. He has already talked to a bank executive to finance a home loan. But he was not acquainted with the documentation and legal work required for financing a loan. He asked me about the Mortgage. Buying real estate or taking loans from banks is not a day process. When you are new to the property game, it’s best for you to take instructions from a solicitor before taking any step ahead. When you are buying a home with a mortgage, it’s good to have knowledge about all the terms & conditions related to the Contract you are entering into.

If you are purchasing a property for the first time or thinking about buying in near future, you need to have an understanding of all the contracts you are entering into even if you are not a legal professional. Because in the end, you are the one who bears all the repercussions. I want everyone to know about the mortgage deed and its essential elements. I have also highlighted some necessary clauses which should be kept in mind while signing a mortgage deed. 

What is a Mortgage?

Before diving straight into the mortgage deed, first, we need to understand what a mortgage is? 

In India, Mortgage is governed under Section 58 to 104 of the Transfer of Property Act, 1882. A Mortgage can be defined as the transfer of interests in a specific property to secure the loan advanced or to be advanced in the future. In other words, we can say that when any person takes a loan from anyone, some security is required to be kept with the lender to have the assurance that in case of default in the repayment of the loan, the lender can recover his money from that security. 

The person who mortgages his property against the loan is called “Mortgagor.” Whereas the person to whom the property is mortgaged is called Mortgagee” and the terms and conditions related to mortgages are contained in the “Mortgage Deed”.

Most common forms of mortgages

Simple Mortgage or Registered Mortgage [Section 58(b)]

According to Section 58(2) of the Act, a property can be mortgaged:

• Without delivering possession of the mortgaged property.
• When the mortgagor binds himself personally to pay the mortgaged money by execution and registration of a mortgage deed. In the deed, he agrees that in case of his failure to pay the money, the mortgagee shall have the right over the property. The latter can sell the property to recover his money. 

Mortgage By Deposit of Title Deeds [Section 58(f)]

In English Law, a mortgage of this type is known as “Equitable Mortgage” as opposed to a legal mortgage because in this kind of Mortgage there is simply a deposit of document of the title without writing or any other legal formalities. This Mortgage, therefore, does not require any writing and being an oral transaction, is not affected by the law of registration. 

Section 58(f) of the Act says that in the notified towns specified by the State Government in the official gazette, any person can deliver his title deeds of immovable property to the banks with the intent to create security. 

Essential elements of the Mortgage by deposit of title deeds 

• There must be a debt.
• There must be delivery or deposit of title deeds.
• There is an intention that the deed shall be deposited for the purpose of securing the loan.
• There are territorial restrictions. 

Other Mortgages include

• Mortgage by Conditional Sale: The Mortgage is an ostensible sale with the condition that property would go back to the real owner after the repayment of the mortgaged money. 
• Usufructuary Mortgage: Here, the possession of the property is transferred to the mortgagee. The mortgagee can even earn the income from the given property.
• English Mortgage: After the transfer of the property, the mortgagor personally binds himself to pay the money on a specified date as per the agreement.
• Anomalous Mortgage: any other kind of Mortgage or combination of the above-defined mortgages come under the category of Anomalous Mortgage.

What is a Mortgage Deed?

Section 55(2) of the Act, talks about some relevant covenants or agreements which the parties are required to enter into for the conveyance of immovable property such as lease, sale, Mortgage, gifts etc. The mortgage deed is an instrument or a legal document containing terms and conditions relating to the Mortgage. The deed provides the lender with the interest and legal rights over the property. All the rights and interests over the property that the borrower has pledged as collateral are legalized in the Mortgage Deed. In case of any default or failure to pay the loan amount, the lender can claim his legal rights over the property. 

Registration of Mortgage Deed

Registration of mortgage deed is essential to give legal validity to the document. In case of Mortgage by Delivery of Title Deed, registration is not required. Following are the conditions which need to be fulfilled for a valid registration:

• The deed must be signed by the Mortgage.
• At least two witnesses must attest to the deed.
• Stamp duty must be paid accordingly; otherwise, the document is not enforceable.

When is the Mortgage Deed required?

• It is generally required when you are loaning money from another person or business and want to transfer the interest of the property to another person.
• When you want to borrow money and are required to mortgage your property as a collateral. The deed helps you secure your rights and interest over the property.

Why is the Mortgage Deed required?

• The first and foremost requirement of the mortgage deed is to determine the parties to the deed, i.e. the Borrower/Mortgagor and the lender/Mortgagee.
• The deed enforces the rights of the lender in the Court. It ensures that in case of the default or delay in repayment of the loan, the lender will get paid by selling the property.
• The mortgagee has the right to foreclose on the property in case the mortgagor stops paying or breaches the terms of the Contract. 
• The deed gives a thorough investigation as to the interest and title over the property. It helps to determine the rightful owner of the mortgaged property.
• The mortgage deed helps to determine the loan amount and the rate of interest.
• The mortgage deed also gives the right to the mortgagee to take possession of the property, if specified in the Contract.
• The mortgage deed acts as evidence that the property is transferred to the lender. 

Essential elements of Mortgage Deed

I hope now you have understood the basics of a mortgage and mortgage deed by now. Being a layman, you might not understand the legal language used in a contract. You might leave such things on your legal representative, but you should at least have the basic understanding of the clauses and terms in a Mortgage Deed. Following are the clauses in the Mortgage Deed which you must understand:

Parties

It is essential to specify the name of the mortgagor and the mortgagee in the mortgage deed. The person who transfers the interest of his property as collateral to take a loan is called mortgagor, whereas the person to whom such interest is transferred is called the mortgagee. It must be noted that the mortgagor must be competent to enter into a contract as per under the Indian Contract Act, 1872 whereas the mortgagee may be a minor. He may not be competent as per the Contract Law. 

Description of the Deed 

It is essential to specify the title of the deed in capital letters for example “THE DEED OF MORTGAGE.”

Details of the property

In this clause, all the material description of the mortgaged property should be specified. For e.g.: the location of the property, the value of the property, its specification and all the material facts which need to be disclosed should be mentioned. 

Recital

Recitals in a contract are the introductory statements disclosing the intention of the parties to enter into the Contract. The recital is also called the preamble containing a few characteristics of the agreement. It usually starts with a sentence like “Whereas the mortgagor has agreed” or “whereby the mortgagor has the rights”. 

Habendum

This particular clause determines the quality or extent of the interest of the mortgagee and the mortgagor over the mortgaged property. The provision defines the rights that the mortgagee is going to enjoy over the property. It also restricts the rights of the mortgagee as per the agreement.

Covenant for repayment

This clause specifies the modes and conditions for the repayment of the loan amount. The clause also recites the consideration and tenure for the repayment of the mortgaged money. It also specifies what are the conditions when the mortgagor wants to pay the loan before the stipulated time period.

Mortgage Clause

This clause highlights the type of Mortgage the parties have agreed. It is the most important clause of the mortgage deed as all the rights and duties of both the parties are dependent on the type of Mortgage by which the property is being mortgaged. Say for example, in the English Mortgage the mortgagee has the absolute right to sell the property. While the simple mortgage possession of the property is not necessary. The clause also describes the duty of the mortgagee and mortgagor like:

• In case the mortgagee has repaired the property, he can claim the money from the mortgagor if given in the Contract.
• The mortgagor shall repay all the other costs.
• If it is specifically mentioned in the clause that the mortgagor cannot lease the mortgaged property without taking the prior permission of the mortgagee, the former cannot do so without the consent of the latter.

Possession

The clause decided whether the mortgagor has the right to exercise possession over the mortgaged property or not. It also depends upon the type of Mortgage you are choosing to mortgage the property. E.g., in the simple Mortgage, the possession may remain with the mortgagor. On the contrary, in the Usufructuary Mortgage, the possession of the mortgaged property must be delivered to the mortgagee.

Title deeds

The above clause clarifies as to what title deeds need to be transferred to the mortgagee. If it is given in the clause that all the title deeds related to the mortgaged property must be given to the mortgagee, then the mortgagor shall transfer all the documents of the title deed to the mortgagee. 

Insolvency

This clause is an essential clause in the mortgage deed as it specifies the treatment of mortgaged property in case the mortgagor is declared insolvent. 

Required Documents

In this clause, all the documents which are necessary for making the deed valid and identifying the parties are specified. For e.g.: PAN card, Adhar card, Passport, Bank passbook, Property Documents, Voter’s ID, Driving License.

Redemption clause

Redemption is again the most important and fundamental right possessed by the mortgagor. It is an essential attribute of the transaction of the Mortgage. It’s a statutory right given to the mortgagor under Section 60 of the Act. The clause specifies the tenure of the mortgage deed as to when the mortgagor is entitled to get his property back. The clause says that on payment of the principal and interest after the expiry of the due date for the repayment of money, how the property is supposed to go back to the real owner of the mortgaged property. 

Attestation and stamp duty

It is pertinent to state that the mortgage deed shall be duly registered and stamped to have legal validity. In case of a Simple mortgage, if the deed is not signed, registered and attested by at least two witnesses, it is equivalent to not having a contract in the first place. The criteria of attestation and registration depend upon the kind of Mortgage. There are some kinds of mortgages that require no registration and attestation if the principal money is less than 100 rupees. 

The nominal stamp fee must be paid. The stamp fees depend upon the state the property is located. 

Certain clauses which should not be ignored 

We generally take loans from banks. They usually have standard contracts. We just sign them without reading the whole agreement, which later on hurt us. So it is essential to read the following clauses carefully: 

Interest rates

We have to be very careful about the interest rates charged by the mortgagee. Sometimes it is a fixed rate, but sometimes the rates can be fluctuating, which is a matter of concern. The fluctuating interest rate empowers the mortgagee to change the interest rates according to the fluctuations in the base rates. So whenever you are signing any mortgage agreement, you must carefully look at the interest rates in the agreement.

Amendment clause 

Such clauses may completely go against the interest of the mortgagor as it gives power to the mortgagee to alter the clauses of the agreements in the event of the default of the party. 

Lease Clause

This clause allows the mortgagor to lease the mortgaged property with the prior permission of the mortgagee. This clause is beneficial for the mortgagor.

Possession

You must check carefully whether you have to give the possession of the property to the mortgagee or not. Sometimes this clause creates legal issues if not read properly as there can be loopholes in this clause.

Wrapping up

It is imperative to understand the terms and conditions of a contract you are entering into. Legal professionals may make mistakes while drafting a mortgage deed, but you need to make sure that you won’t suffer from the common issues only because of negligence. There are some essential clauses in the deed which can create a lot of problems for you if not read correctly. That is why the understanding of these important clauses is necessary. I hope this article has helped you and made you understand about the Mortgage, the mortgage deed and some important clauses which are the backbone of the whole deed of Mortgage. 

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This article is written by Antra Shourya from the Faculty of Law, University of Delhi. The article explains the price ascertainment under Sale of Goods Act 1930, it dwells on various provisions under the act which provide how price is determined, future fixations and price fixed by valuations. 

Introduction

The Sale of Goods Act, 1930 can be viewed against the backdrop of Indian Contract Act, 1872 and Transfer of Property Act, 1882 and it lays down special rules of law in regard to sale of goods. The Sale of Goods Act doesn’t repeal any provisions of the Indian Contract Act, it applies to contracts sale of goods under Indian Contract Act, 1872 and if a rule of law is not consistent with this act is not repealed. Price ascertainment is a very crucial part of any contract of sale. When formulating a contract of sale the presence of money consideration is an essential element. When the consideration is not money but some other valuable consideration the transaction is a barter and not a sale, which makes price determination at the time of concluding a sale essential. 

What is a sale?

According to Section 4 of the Sale of Goods Act, 1930 a contract of sale is a contract where the seller transfers or agrees to transfer the property in goods to the buyer for a price. It is a composite transaction consisting of an agreement to sell, passing of title, delivery of goods and payment of price, costs and charges of transportation.

• Hyderabad Engg Industries v State of AP 

In this case the said Company was engaged in the manufacture and sale of electrical fans, sewing machines, fuel injection parts and accessories etc.There were prior contracts between the purchaser and the assessee and in pursuance of those contracts, the goods moved from the assessee’s factory at Hyderabad to its Branch offices to be delivered to the purchaser/ their nominees. In pursuance to sales agreement, the purchaser placed monthly orders to the seller with instructions to dispatch the goods of given size and quantity to the named destination.Following the orders,the seller dispatched the goods to its State godowns and the person-in-charge of the godowns to the purchaser division office by raising sales invoice.

Therefore, the transaction between the seller with its branch offices was a clear case of inter State sales within the meaning of Section 3(a) of the Sale of Goods Act, 1930 and not branch transfers as claimed by seller. The SC explained the difference between ‘sale’ and ‘agreement to sell’ stating that if the transfer is in present it is called a “sale” and when the transfer is to take place at a future time and is subject to some conditions to be fulfilled subsequently, the contract is called “an agreement to sell”. When the time in the agreement to sell lapses or the conditions therein subject to which the property in goods is to be transferred are fulfilled, the “agreement to sell” becomes a “sale”. 

• State of Madras v Gannon Dunkerley & Co.

In this case the meaning of expression ‘sale of goods’ with respect to the State’s power of taxation on the materials in construction works, the legislative practice and the nature of the agreement in the building contract with respect to the Indian Sale of Goods Act, 1930 was debated. The issue was whether “works contracts’ ‘ were included within the ambit of the Madras General Sales Tax Act and the Company was made subject to the levy of sales-tax within the limitations provided in the Madras General Sales Tax Act and court dwelled in to what constitutes a “sale of good”, the SC held that in order to constitute a sale, it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, which of course pre-supposed the capacity to contract, that it must be supported by money consideration that as a result of the transaction, the property must actually pass in the goods. Unless all these elements were present there would be no sale. It was held that the expression” sale of goods meant that there must be an agreement between the parties for the sale of the very goods in which eventually property passed.

What is the ascertainment of price?

According to Section 2 of the Sale of goods Act, “price” means the money consideration for a sale. Ascertainment of price is discussed in two sections under the Sales of Goods Act, 1930, Section 9 and Section 10. Price in a contract maybe: 

1. Fixed by the contract itself. 
2. Left to be fixed by an agreed manner.
3. Determined in the course of dealing between the parties. 

In the absence of this the buyer must pay the seller at a reasonable price. What is reasonable price is a question of fact dependent on the circumstances of each particular case.

In order for a contract to be a contract of sale it is essential that it should provide for the payment of a money consideration for goods. Section 9(1) says that the price in a contract of sale may be fixed in three ways, firstly by the contract itself, secondly it may be left to be fixed by a manner agreed by the seller and the buyer and lastly it may be determined by the course of dealing between the parties. 

• • The parties can choose any currency as the price of the goods. However, it is not necessary that the contract should specify the amount; the parties can leave the price to be determined by a method as they please and when it is so determined, the position is the same as if the parties had fixed it by the contract itself. Under Section 9 of the Sale of Goods Act, parties may fix the price at the time of transfer or may leave it to be determined at a later stage. 
  • Price can be fixed in the future. It is not necessary that the price is determined at the time when the contract of sale is drafted. Future fixation of price is also valid under Section 29 of Indian Contract Act, 1872. Such a contract is not void for uncertainty because the price was not fixed. 
• Bhupendra S Bhatia v State of MP

In this case the State government framed a new policy for sale of liquor in some parts of the State under a monopoly. Bids were invited from manufacturers for supply of liquor and adhoc price was fixed for an entire financial year. Subsequently a final price was fixed at a rate lower than the ad-hoc price and the supplier became liable to repay to the state the difference between the final price and the adhoc price. In it’s judgment the Supreme Court held that the price must be known at the time of sale. The Court ordered that the adhoc rate should prevail for the entire year.The court said when a sale of any commodity is made, the seller and the purchaser both have to know the sale/purchase price at the time of or before the sale.

A sale/purchase price to be fixed subsequent to the sale is unknown in the world. If a sale of a commodity is made today and if the purchaser informs the seller that he will inform the purchase price subsequently, then it can always be open to the purchaser to reduce the purchase price subsequently to a negligible amount. Similarly, if the sale price can be fixed subsequent to the sale at the option of the seller it can be increased by the seller at his option, and the seller can later on while demanding the sale price increase it to an exorbitant amount. Such a view is not clearly contemplated by any sensible person or by any stretch of imagination. In fact, such an action by the State Government has to be treated as arbitrary and unreasonable.Further the court ordered that the adhoc rate should prevail for the entire financial year. 

Price may be made subject to escalation clause in the agreement. Price may change at the time of delivery of the goods. The buyer may put the condition that price ruling on the date of delivery would apply. 

• Aluminum Industries Ltd v Minerals & Metals Trading Corporation Ltd.

In this case, the said company was one of the prime manufacturers of Aluminium cables and conductors for supply to State Electricity Boards and other power utilisers in the country. For the manufacture of such conductors and cables, Aluminium is the basic product. Aluminium being an essential commodity, its production, distribution and supply were governed by the provisions of the Essential Commodities Act, 1955, and the orders made thereunder. The government undertaking sold metal to the company on the condition that the price ruling on the date of delivery would apply. The purchasers opened letters credits in favour of the seller and were issued delivery notes to enable them to take delivery of goods. Thereafter, the price of the goods was raised and delivery was postponed for no valid reason to a date after rise in price came into effect. It was held that the purchaser could not be compelled to pay the higher price. Government’s actions were held unreasonable and violative of Article 14, Constitution of India, hence writ petition under Article 226 was maintained in the High Court of Madras and the government was asked to sell at the price according to the scheduled delivery.

• In English law ‘when price is left uncertain in a contract of sale, reasonable price of the goods can be determined later, even when the contract is silent as to the method by which the price is to be determined. An agreement to pay a reasonable price will be implied; and what is implied by law is as strong to bind the parties as if it were under their hand. An agreement that one of the parties shall have power to fix the price himself is valid and a bona fide determination of the price by him would be binding.

Reasonable Price

Section 9(2) says that when the price is not determined by the contract itself, the buyer shall pay a reasonable price, and that reasonable price will be determined by circumstances of each case.

• • When the nature of the goods is such that there is a market price for them then the market price will be taken as a reasonable price between the parties, though not conclusive, as accidental circumstances may make the current price unreasonable in the particular transaction. 
  • A subsequent fixing of the price by agreement of the parties is very strong evidence of what they think and therefore of what for them is reasonable. The principle may seem difficult to apply, as for instance when goods have been shipped, so as to pass the risk to the buyer but the exact price is to be determined by weighing or measuring the goods on their delivery from the ship. 
•  Martineau v Kitching (1872)

In this case the contract was made for Sugar to be sold, with the price payable ‘Prompt at one month; goods at seller’s risk for two months’, to be kept at the seller’s premises and drawn down by the buyers as wanted. After two months and after only some of the sugar had been drawn down by the buyers, a fire destroyed the rest. The buyer was asked to pay for the undelivered sugar which had been burned in the fire, the seller brought an action ‘to recover the price of [the] sugars sold’ and the question was whether the sellers were so entitled. The court held that the seller was entitled to recover the price. Lord Blackburn J said (in cases) “where the price is not ascertained and it could not be ascertained with precision in consequence of the thing perishing, nevertheless the seller may recover the price of the risk is clearly thrown on the purchaser, by ascertaining the amount as nearly as you can.”

Price to be Subsequently Arranged by the Parties

Section 9 also provides that ‘the price might be left to be fixed by subsequent arrangement,’ so that if there was a sale at a price to be subsequently agreed on by the parties there would be a valid contract; just as there is a valid contract of insurance ‘at a premium to be arranged’ for if no arrangement is made, a reasonable premium is payable. It would appear that if the arrangement is that the goods shall be sold at a price to subsequently agreed, there is no concluded contract for such an arrangement and where there is an effect of impliedly excluding an agreement to pay a reasonable price and the price is not ascertained which is an essential element in the contract. Presumably, however, if the goods were actually delivered and accepted under such an arrangement, the buyer would have to pay a reasonable price.

Can price be fixed by valuation? 

Price can be fixed by valuation. Section 10 of the Sales of Goods Act, 1930 talks about an agreement to sell at valuation. One of the methods of ascertaining the price is to leave it to be determined by the valuation of a third party and Section 10 deals specifically with that method.

Section 10(1) states that price can be fixed by valuation by a third party, if the price isn’t fixed by valuation such contracts can be avoided, and lastly if any part of the contract is delivered then the buyer has to pay full price for it.

Further Section 10(2) of the section provides for remedy in case the valuation is disrupted by one party, then the other party has the right to sue the party at fault for damages.

• Generally, when the agreement stipulates that price is to be fixed by a third party, word of that third party will be final and binding. As under such a contract there is no other means of fixing the price, the contract is conditional on it’s being so fixed and consequently if the valuation does not take place there is no contract, and presumably if the proposed buyer has paid any money under it in respect of the goods, he may recover it as on total failure of consideration; and as provided by the section, if the buyer has received and taken any part of the goods, he must pay a reasonable price for them.
• If a time is fixed by the contract for the appointment of a valuer, it is usually of the essence of the contract, so that if the valuer is not appointed by that day, the contract is avoided; and if a particular person is named or appointed as a valuer, the task of vauling cannot be delegated to another. Neither party, therefore, is liable to pay, without his default, the valuations does not take place and even if one of the parties wrongfully prevents the valuation from taking place, the only remedy for the other party is an action for damages for preventing the valuation. Moreover, there being no contract, equity cannot decree specific performance though in cases where the court is of opinion that the appointment of the valuer is not of the essence of the contract, it may ascertain, the value for itself and decree specific performance after so ascertaining the price. In appropriate cases too it may make a mandatory order on the party obstructing the valuation.
• The valuation is complete when everything for the valuation has been ascertained and no more remains to be done, but the arithmetical calculation. It may however be questioned if the valuer has proceeded on a wrong standard or taken into account things which by the agreement ought to have been omitted. A valuation may also be impeached on the grounds of fraud or collusion. When valuation is made pursuant to agreement of the parties, it binds them, and the remedy of the party who pays too high price, or receives too little, is against the valuer. Where valuer has been fraudulent or negligent, he may be personally liable to a party who suffers loss as a result. 

Conclusion 

A sale is concluded when there is a transfer of property from seller to buyer for a consideration of money or promise for the same.Consideration of money is essential for a sale. Price in a sale can be determined by the contract itself, left to be fixed by an agreed manner or determined in the course of dealing between the parties. Section 9 of the Sale of Goods Act provides that price may be fixed by the parties in manner agreed upon by the both parties.In absences of a fixed method to determine the price the buyer shall pay a reasonable price to the seller for the good. Price can be fixed through valuation also by a third party if both the parties agree to it. 

References

• https://www.taxmanagementindia.com/visitor/acts_rules_provisions.asp?ID=335
• http://uputd.gov.in/site/writereaddata/siteContent/indian-contract-act-1872.pdf
  

Books

Pollock & Mulla, The Sale of Goods Act, Ninth Edition.

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This article is written by Vishwas Chitwar currently pursuing B.COM LLB (HONS) from Institute of Law Nirma University. This is an article which deals with various legal principles regarding the transfer of property under The Sale of Goods Act, 1930.

Introduction

The term passing of goods or property means that there is a transfer of ownership which is governed by the principles of the Sale of Goods Act, 1930. In order to understand the rights, duties and liabilities of both the seller and the buyer it is very important to understand the concept of passing of property. It is a settled principle of law that along with the ownership of the goods or property, the risk is also transferred from the seller to the buyer. This article will be dealing with the various principles and provisions pertaining to Passing of property in the light of the Sale of Goods Act, 1930.

Types of Goods under the Act 

There are three types of goods under the umbrella of the Sale of Goods Act, 1930 and they are as follows:

1. Existing Goods 
2. Future Goods 
3. Contingent Goods

Existing Goods 

As per Section 6 of the Sale of Goods Act, 1930, those goods which are present (in existence) at the time of formation of a contract are known as existing goods. The existing goods can be further classified as:

Specific Goods 

As per Section 2(14) of the Sale of Goods Act, 1930, specific goods are those goods which are specifically identified and ascertained by the buyer which he intends to buy at the time when the contract of sale is formulated.

For example, Deepak wants to sell his old guitar. He put an advertisement in the local newspaper with its picture, make and other details. Rahul agrees to buy the guitar and thereby formed a contract with Deepak. The guitar is a ‘Specific Good’ in this case.

Ascertained Good 

Ascertained goods are not defined under the Sale of Goods Act, 1930 and many jurists have considered specific Goods and ascertained Goods as alike. However, ascertained goods can be called those goods which are specifically selected from a large set of goods. 

For example, Deepak went to buy oranges in a wholesale market. He specifically selected 300 oranges from a larger set of unspecified oranges. These 300 oranges will be ascertained goods.

Unascertained Good 

Unascertained goods are those goods which are not specifically identified by the buyer at the time when the contract for sale is formulated. 

For example, Deepak from his 300 oranges wants to sell 100 oranges; however he doesn’t specify which oranges he wants to sell. This is called a sale of unascertained goods.

Future Goods

As per Section 2(6) of the Sale of Goods Act, 1930, future goods have been characterised as those goods which at the time of formation of the contract will either be “manufactured, produced or acquired by the buyer”. There will not be an actual sale in the sale of future goods, it will always be an “agreement to sell”. For example, Deepak has an orange grove with oranges in it. He agrees to sell 500 oranges to a buyer once the oranges are ready for market. This is a sale which will happen in the future. However, the goods have already been identified along with the agreement to sell. Such goods are known as future goods.

Contingent Goods

Contingent goods are a subtype of future goods. In contingent goods, the sale happens in the future. The sale will always come with some contingency clause in it. For example, if Deepak sells his oranges from his orange grove when the trees are yet to produce oranges, then the oranges are contingent good. This sale of contingent goods will be dependent on a condition that the trees will produce oranges, which may or may not happen.

Legal Principles regarding Transfer of Goods

There are four principles regarding the transfer of goods under the umbrella of The Sale of Goods Act, 1930, which the article will be talking about and they’re as follows: 

Transfer of property in sale of Specific or Ascertained Goods

Section 19 to section 22 of The Sale of Goods Act, 1930 are a few sections which govern the transfer of goods in a case where the goods are specific and ascertained in nature:

Property when intended to pass (Section 19)

Section 19 of The Sale of Goods Act, 1930, is divided into further subsections and they’re as follows:

1. Where a contract for sale of ascertained or specific goods exists, a specified time is fixed as per the convenience and consensus of both the parties at which the property is intended to be transferred from the seller to the buyer. 
2. One has to pay attention to the circumstances and conduct of both the parties to the contract in order to understand the true intention of the contracting parties. Also, the terms of the contract should be given equal importance in the existing case. 
3. Except if an alternate intention shows up, the principles laid under the Section 20 to 24 of the Act will help in finding out the intention of the contracting parties in respect with the time at which the goods are about to get transferred from the seller to the buyer. 

Specific goods in a Deliverable state (Section 20)

Section 20 of The Sale of Goods Act, 1930 relates to specific goods in a deliverable state, and it states:

In a contract for the sale of specific goods, which is unconditional in nature, the goods are transferred from the seller to the buyer at the time of formation of the contract. However, the only precondition required for the transfer of property is the fact that the goods must be existing in a deliverable state. The delay in the payment or delivery of goods or both is not something which holds importance.

Example: A goes to a big electronic shop in order to buy a television set. He selects a big plasma Television set and asks the shopkeeper to deliver the television at his house which is at the other end of the town. The shopkeeper agrees to it. With this, “A” will become the owner of the television, and the Television set will become his property. 

Specific goods to be put into a deliverable state (Section 21)

Section 21 of The Sale of Goods Act, 1930: certain goods to be put in a deliverable state: 

Where there is an existence of a contract for the sale of specific goods, the property concerned in the transaction will only be passed to the buyer, if the seller performs the necessary acts and omissions in order to put the goods in a deliverable state. Also, it is mandatory for the seller to notify the buyer regarding the alterations.

Example: A goes to a mall to buy a smart television from an electronics store. He selects a big fancy smart TV from the electronic section and asks for its home delivery. The manager agrees to deliver it to A’s home. However, at the time where he selects the smart TV, it doesn’t have an operating system installed. The manager promises to install the operating system and on the next day, he informs “A” that his smart TV is now installed with the operating system and is ready for its delivery. Further, he asked for his permission to make the delivery. 

In order to summarize the example, the goods will only be transferred to “A” if the manager has installed the operating system making the smart TV ready for its use.

Specific goods are in a deliverable state but the seller has to do something to ascertain the price (Section 22)

Section 22 of The Sale of Goods Act, 1930: Specific goods are in a deliverable state but the seller has to do something to ascertain the price:

Where there is a contract for the sale of specific goods in a deliverable state, the seller is undoubtedly bound to weigh, measure, test or do the necessary demonstration or anything which is required in reference with the sale of those particular goods. He’ll be doing this to ascertain the appropriate value of the goods. The property in the goods will not pass until such demonstration or particulars are done and the buyer has acknowledged it thereof.

Example: Rishabh sells a wooden bed to Deepak and agrees to assemble it in Deepak’s bedroom as it was a part of the agreement. Rishabh delivers the wooden bed and makes a call to him informing Deepak that he will assemble the wooden bed the next day. That night the wooden bed gets stolen from Deepak’s premises. In this case, Deepak will not be liable for the loss since the wooden bed was not passed to him. According to the terms of the contract, the wooden bed would be in a deliverable state only after it is assembled.

Transfer of property in sale of Unascertained Goods

Section 23 of The Sale of Goods Act, 1930 govern the transfer of goods in a case where the goods are unascertained in nature:

Sale of unascertained goods and appropriation (Section 23)

Section 23 of The Sale of Goods Act, 1930, is divided into further subsections and they’re as follows:

Section 23(1) Sale of unascertained goods by description: 

In a contract, for the sale of unascertained goods by description, if goods of a specific description are appropriated either by the seller with the consent of buyer or by the buyer with the consent of the seller, then the goods are passed to the buyer. The consent can be expressed or implied and can be given before or after the appropriation is made. 

Section 23(2) Delivery to the carrier: 

The seller has unconditionally appropriated the property if he delivers the property to the buyer/ carrier/ bailee for the reason of transmission to the buyer, however, he doesn’t reserve the disposal rights to the property, then it can be said that he has appropriated the contract.

Goods sent on “sale or return”

When goods are disposed on the basis of “sale or return” by the seller, the ownership of the goods aren’t transferred to the buyer unless the buyer gives assent to the goods. However, if these goods are held by its buyer without giving an approval then they’re taken as goods whose ownership is yet to be transferred. In that case, they’re treated as goods which belong to the seller and not the buyer. 

Goods sent on approval or “on sale or return” (Section 24)

Section 24: In a case where the goods are delivered to the buyer either on approval or on “sale or return” or on other comparable terms then:

(a) The goods therein will only pass to the buyer if the buyer either portrays his consent or acknowledges to the seller or does any act by which the transaction would be adopted. 

(b) The goods therein will only pass to the buyer if the buyer doesn’t express his consent or acknowledgement to the seller that he intends to reject the goods, however, holds the goods without giving a notice to the buyer then on the expiration of time frame for the return of the goods or if time hasn’t been fixed, then on the completion of a reasonable time, the property will be passed to the buyer.

Example: “A” the seller of a precious necklace gives it to “B” the buyer on “Sale or return” basis. B after observing the necklace finds it very beautiful and put forth his consent on buying the necklace. In this case, the goods will be transferred to the buyer. However, if the buyer doesn’t wish to give the acknowledgement for the product then the goods shall be duly returned back to B.

In case of right to disposal

The intention behind reserving the right of disposal of the goods is to make sure that the value of the product is paid before the property is transferred to the buyer. However, under the prepared value system, the ownership follows the possession. That is to say, the seller transfers the possession of the goods but retains the ownership until the buyer pays the appropriate amount.

Reservation of Right to Disposal (Section 25)

Section 25 of Sale of Goods Act, 1930 deals with the conditional appropriation of goods and is bifurcated into the following subsections:

Section 25(1): As per the terms and conditions of the contract the seller of goods reserves the right of disposal of the goods in a situation where the sale of specific goods is concerned. Despite the delivery of the goods, the goods will not get transferred from the seller to the buyer unless the subsequent terms of the contract aren’t appropriated or fulfilled. 

For example, A sends certain goods by rickshaw to B and instructs the rickshaw driver not to deliver the goods until B pays him the price which was set between them as per the agreement. The rickshaw reaches the destination in time. However, the buyer “B” refuses to pay the amount as he had no money with him at the moment. Here the rickshaw driver can refuse to deliver the goods and the seller can rightly exercise his right to disposal.

Section 25(3): A few perspectives pertaining to the transfer of property during a sale of goods or property are encapsulated in Sales of Goods Act, 1930. The liabilities of the buyer and seller are determined in consonance with the provisions enshrined from section 18 to 25 of The Sale of Goods Act. The concept of possession of goods differs from passing of the goods as the latter in essence means transfer of ownership from the seller to the buyer while the former is confined to the custody of goods.

Cases pertaining to Transfer of Property 

Badri Prasad Vs. State of Madhya Pradesh

In the case of Badri Prasad Vs. State of Madhya Pradesh, the appellant entered into a contract in respect of certain forests in Madhya Pradesh. He was entitled to chop teak trees with girth over 12-inch. After the passing of the Abolition of Proprietary Rights (Estates, Mahals. Alienated Lands) Act, the appellant was prohibited from cutting trees in the exercise of his rights under the contract. 

He filed a suit claiming specific performance of the contract on the grounds:

(1) The forest and trees did not vest in the State under the Act; 

(2) Even if they vested, the standing timber, having been sold to the appellant, did not vest in the State; 

(3) In any event, a new contract was completed on 5 February 1955, and the appellant was entitled to its specific performance. 

The court held: The forest and trees vested in the State under the Act. The plaintiff was entitled to cut teak trees of more than 12-inch girth. However, it had to be ascertained which trees would be falling in that Description. Till this was ascertained, they will not be ascertained goods as per Section 9 of the Sale of Goods Act.

Multanuak Chempalal Vs. C.P Shah & Co. 

In the case of Multanuak Chempalal Vs. C.P Shah & Co., Section 26 of the Sale of Goods Act 1930 was discussed and it was held that the risk passes only after the property in the agreement has been passed. Thus, the parties can enter into a contract which provides for the passing of risk before the passing of property. 

Hoogly Chinsurah Municipality vs Spence Ltd

In the case of Hoogly Chinsurah Municipality vs Spence Ltd, the Hoogly Chinsurah Municipality contracted with Spence Ltd to buy a tractor on the condition that if the municipality is not satisfied then it will reject the tractor. The municipality took possession of the tractor, used it for a month and a half and then rejected it. The suit was filed upon the unwillingness of Spence Ltd to accept it. The Court while dismissing the appeal held that, the municipality had not only used the tractor but also extinguished a reasonable time. Hence the property in the tractor had passed to the municipality and they could not reject it now.

Conclusion

The Sale of Goods Act, 1930 tells us about a few views regarding the transfer of property during a contract pertaining to the sale of goods. Section 18 to 25 of the Sale of Goods Act, 1930 provides the contracting parties several principles, through which rights and liabilities of the buyer and seller are determined. Passing of the goods from the seller to the buyer portrays the transfer of ownership from one party to another, which is without an exception a different concept from that of the possession of goods as possession only involves custody of goods.

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This article has been written by Deyasini Chakrabarti from KIIT School of Law, Odisha. This article mostly talks about the principle of Pacta Tertiis Nec Nocent Nec Prosunt and various exceptions related to it along with a few cases.

Introduction

The very word society is the mixture of two words that are ‘socius’ and ‘logos’ which means ‘the science of society’. Thus, Auguste Comte, commonly known as the ‘Father of Sociology’ had defined sociology as the “Queen of all the sciences” as it is dealing with the most unpredictable subjects that are human beings, therefore it deals with the basics of all sciences and as a result occupies the top position at the hierarchy of sciences. Hence, the science of society could be deducted as positivist in nature as it is based on observation, experiments, comparisons, and conclusions. Thus, a society comprises individuals, business, economy, trust, finance, politics and lastly power. Therefore the foundation of society is the contract and when the parties agree to the agreement it becomes a binding contract on the parties only and not to some other third party, thus giving rise to the concept of “Pacta Tertiis Nec Nocent Nec Prosunt”.

Meaning and explanation: Pacta Tertiis Nec Nocent Nec Prosunt

The phrase “Pacta Tertiis Nec Nocent Nec Prosunt” is a Latin usage of words which means that a treaty binds the parties and only the parties. Thus, it states that the binding power of a treaty is limited only to the consenting party. Such a treaty that is binding only upon the consenting parties does not create either obligations or rights for third parties with/without their consent.This concept has also been highlighted under Article 34 of the Vienna Convention of the Law Of Treaties 1969. Thus the duties and rights are only enforceable between the contracting parties and there could be no imposition or implementation of these pre-decided rights and duties on the third parties. Therefore, the contracting parties should only remain concerned about their terms and conditions and no third party should interfere in it. Thus, it can be interpreted that the above mentioned maxim strictly follows the policy of non-interference on the third parties or any outsiders until their consent comes to the play.

Exception to the above maxim 

The treaties are to be meant only for the contracting parties, however, there is an exception to it. The Vienna Convention on The Law of Treaties 1969 also provides for a few exceptions. For example, when a car is sold from the seller to the buyer, the right which arises is not only the right in personam (i.e. a personal right attached to a specific person) but at the same time, the owner of the car also has the right to drive the car safely after following and obeying all the traffic rules, thus it is also giving rise to right in rem (i.e the right available against the entire world). Similarly, when a person develops a new scientific invention, at that time it is the duty of the society not to steal his ideas, rather encourage him in the field of research and development, and that’s why the concept of the patent had developed world wide now for creations involving scientific inventions. Thus, there is always a right and duty towards society as a whole. The exceptions in this regard are namely Article 35, 36, 37 and 38 of the Vienna Convention on the Law of Treaties, 1969.

Article 35

• Article 35 of the said convention states about the treaties providing for obligations on the third parties. An obligation emerges for a third State from an arrangement of a treaty if the parties to the treaty intend to accept those arrangements or provisions of the treaty as an instrument to establish the obligation on the third party.
• Provided that the third party also explicitly acknowledges the obligation which would further be intimated in writing to the initial two consenting parties. 
•  Thus when the third party is mindfully accepting the said terms and conditions in writing of an agreement entered into by the other two consenting parties, then it automatically puts an obligation on itself even when it is not the part of the consenting parties.

Article 36

• Article 36 of the Vienna Convention on The Law of Treaties 1969 is also an exception to Pacta Tertiis Nec Nocent Nec Prosunt. Article 36 talks about the treaties which also provide rights to third parties.
• It highlights on the fact that a privilege emerges for a third State from an arrangement of a settlement if the parties to the treaty expect the arrangement to accord that privilege either to the third State, or to a group of States to which it belongs, or to all States, and if the third State consents thereto.
• However, the third parties approval will be assumed as long as contrary or clashing intention arises, except if the treaty in any case provides otherwise.It further adds that a State practising a right which is in accordance with paragraph 1 of Article 36 of the said convention, should conform to the conditions for its activity accommodated in the treaty or set up in conformity with the arrangement.

Article 37

• Article 37 of the Vienna Convention on The Law of Treaties is also being regarded as an exception to Pacta Tertiis Nec Nocent Nec Prosunt. Article 37 focuses on denial or alteration of commitments or rights of third parties.
• It states that at the point when a commitment has emerged for a third State in congruity with Article 35, the commitment may be disavowed or adjusted distinctly with the assent of the consenting parties to the settlement and of the third party, except if it is built up that they had in any case otherwise agreed.
• Thus, an obligation could be modified by the consenting parties along with the third party if they agree to do so unless it was otherwise agreed to act contrary. However, in the case of revocation or modification of rights, the idea is not so liberal. It states that at the point when a right has emerged for a third State in similarity with Article 36, the privilege may not be repudiated or changed by the parties in the event that it is built up that the right was proposed not to be revocable or subject to alteration without the assent of the third State.
• Therefore, it highlights on the fact of equal protection of rights and obligations of the two initial consenting parties as well as the third party.Thus if a third party is being involved in a treaty then its consent, its obligation, its rights, everything matters, as a result of which it cannot be terminated and modified as per the whims and fancies of the consenting parties. In other words, we can say that Article 37 is protecting the rights and obligations of the third parties arising out of the treaty entered into by the consenting parties.

Article 38

• Article 38 is also considered as an important exception to the concept that the treaty is binding only to the consenting parties but not the third party. It states the rules in the treaty which becomes binding on the third party through international customs. It states that nothing in Articles 34 to 37 prevents a standard set out in a treaty from getting authoritative upon a third State as a customary rule of international law, perceived thus. 
• Therefore, it highlights the importance of the traditional practices or the established unseen norms of the society that are meant to be followed even though they had not been written down anywhere.

Third Party’s Involvement Due To Humanitarian Intervention

Thus, it brings back the memory down the history lane of the India Pakistan War of 1971 when Pakistan was divided into West Pakistan (which was dominated mostly by the Urdu speaking Punjabi elites) and East Pakistan (which was mostly dominated by the Bengali elites). In December 1970, when Pakistan held free and fair elections in both its wings, a crisis situation was created as a result. The Bengalis of East Pakistan voted for a moderate Bengali nationalist party, the Awami League, which won the majority and assumed responsibility for the two wings of the nation. General Agha Muhammad Yahya Khan, the military tyrant and the President of Pakistan went into constitutional negotiations, which drove the situation to a political stalemate. Therefore the only solution which could be found out by General Yahya Khan was to launch a devastating military crackdown on the Bengalis across East Pakistan. Thus, the process of torturing and massacring the Bengalis of East Pakistan began, which led to hundreds and thousands of deaths, and some ten million refugees fled into neighboring India. The then Indian Prime Minister, Indira Gandhi decided to intervene and protect the people of East Pakistan which gradually led to the formation of Bangladesh.

Therefore with this incident, though there was no sort of treaty involved; nevertheless it could be highlighted that initially the war or aggression started between East Pakistan and West Pakistan and India was nowhere a party to it. However, on humanitarian grounds, India brought a right and an obligation on itself just to protect the people at large. Thus it is not always necessary that one has to be a part of any incident or event, rather sometimes through some circumstances or situations, the third party plays a greater role on the grounds of humanity, thus leading us to the concept of humanitarian intervention.

Cases Related to the Maxim Of Pacta Tertiis Nec Nocent Nec Prosunt

North Sea Continental Shelf Case

The statute of the North Sea Continental Shelf Cases sets out the double prerequisite for the development of International law i.e the State practice (the objective component) and opinio Juris (the subjective component).

Facts of the case

Netherlands and Denmark had drawn partial boundary lines dependent on the equidistance principle. A concurrence on further prolongation of the limit demonstrated troublesome in light of the fact that Denmark and Netherlands needed this prolongation to occur depending on the equidistance standard whereas Germany was of the view that, together, these two limits would create an unjust outcome for her. Germany expressed that because of its sunken coastline, such a line would bring about her losing out on a lot of the continental shelf dependent on proportionality to the length of its North Sea coastline. The Court needed to choose the principles and rules of worldwide law relevant to this delimitation. In doing as such, the Court needed to choose if the principles embraced by the parties were binding on the parties either through treaty law or customary international law.

Question of law

Regardless of whether Germany was under a legal obligation to acknowledge the equidistance-extraordinary conditions principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a customary international rule or as based on the Geneva Convention?

The decision of the court

The Hon’ble court held that the utilization of the equidistance technique had not crystallized into customary law and the strategy was not mandatory as well as obligatory for the delimitation of the regions in the North Sea, as the Republic of Germany didn’t ratify the Convention, was identified with the present proceedings.

Relevant Findings of the Court

• The Court dismissed the principal contention. It said that only a ‘very consistent extremely predictable course of conduct with respect to a State would permit the Court to assume that the State had some way or another become bound by an arrangement (by a method other than in the proper way, for example: endorsement) when the State was ‘capable and qualified for’ acknowledging the duties in a proper way. The Court held that Germany had not unilaterally assumed commitment under the Convention. The Court likewise considered the way that regardless that even if Germany had ratified the treaty she had the alternative of going into a reservation on Article 6, after which that specific Article would never again be appropriate to Germany (in other words if one were to expect that Germany assumed to become a party to the Convention, it doesn’t interpret that it would have additionally attempted those commitments contained in Article 6).
• The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into power in 1980, talks about in more detail about arrangement commitments of third States (those States who are not gatherings to the bargain). It plainly stipulates that commitments emerge for third States from an arrangement of a settlement just if (1) the genuine parties to the treaty expected the arrangement to make commitments for third States, and (2) third State explicitly acknowledge those commitments or obligations recorded in writing (Article 35 of the VCLT). The VCLT was not in power when the Court pondered on this case.
• The Court held that the nearness of a condition of estoppel (which could be defined as a position that prevents someone from asserting realities that are in opposition to past cases or activities) has allowed Article 6 to get authoritative on Germany – in any case, the Court held that Germany’s action didn’t bolster a conflict for estoppel. The Court moreover held that the unimportant truth that Germany probably won’t have unequivocally fought the equidistance standard as contained in Article 6, isn’t sufficient to communicate that the guideline is as of now definitive upon it.

Therefore it was upheld that Germany had not acted in any manner that would incur certain restrictive rights and obligations on her. Thus the equidistance special circumstances rule was not binding on Germany in any way.

Convention on the Prevention and Punishment of the Crime of Genocide

What is Genocide?

Genocide, in simple terms means mass killing. If we want to think about the root cause of genocide, then it will always remain an unanswered question. A single thing that may be simple and normal to a single individual may be skeptical, pessimistic and complicated to another individual. Thus, we can also say that Hitler was biased, prejudicial and stigmatized towards the Jews, as a result, he found the solution to it that was commitiing genocide against the Jews. If one would like to see about the psychological thought process of Hitler then it would prima facie showcase Hitler’s psychic, xenophobic and biased attitude towards a particular group, community or people, and through this,we may conclude the root cause for the act of genocide. History has shown us a number of genocide cases such as Bosnia and Herzegovina v Serbia and Montenegro, and therefore the history continues. Thus the Convention gives a statutory basis to the crimes of genocide which affects the society at large.

Article 1 of the Convention defines Genocide as slaughtering individuals from a particular group, causing genuine real or mental damage to individuals from the gathering, deliberately incurring on the group states of life determined to realize its physical demolition in entire or to a limited extent; imposing estimates proposed to forestall births inside the gathering, forcibly moving offspring of the group to another group.

The case of Bosnia & Herzegovina v. Serbia & Montenegro

The war was an effect of the separation of Yugoslavia. Following the Slovenian and Croatian severances from the Socialist Federal Republic of Yugoslavia in 1991, the multi-ethnic Socialist Republic of Bosnia and Herzegovina–which was possessed by primarily Muslim Bosniaks (44 percent), Orthodox Serbs (32.5 percent) and Catholic Croats (17 percent)– passed a submission for freedom on 29 February 1992. This was dismissed by the political delegates of the Bosnian Serbs, who had boycotted the submission.

Following Bosnia and Herzegovina’s affirmation of autonomy (which increased worldwide acknowledgment) and following the withdrawal of Alija Izetbegović from the recently marked Cutileiro Plan (which proposed a division of Bosnia into ethnic cantons), the Bosnian Serbs, driven by Radovan Karadžić and bolstered by the Serbian legislature of Slobodan Milošević and the Yugoslav People’s Army (JNA), prepared their power inside Bosnia and Herzegovina so as to verify ethnic Serb domain, at that point the war before long spread over the nation, joined by ethnic cleansing. 

The contention was at first between the Yugoslav Army units in Bosnia which later changed into the Army of Republika Srpska (VRS) on the one side, and the Army of the Republic of Bosnia and Herzegovina (ARBiH) which was to a great extent made out of Bosniaks, and the Croat powers in the Croatian Defense Council (HVO) on the opposite side. Strains among Croats and Bosniaks expanded all throughout late 1992, bringing about the Croat–Bosniak War that started from 1992. The Bosnian War was described by harsh battles, aimless shelling of urban communities and towns, ethnic purifying and deliberate mass assault, for the most part executed by Serbs,and to a lesser degree, Croat and Bosniak powers. Events like the Siege of Sarajevo and the Srebrenica slaughter later got notorious for the contention. 

The Serbs, albeit at first militarily better due to the weapons and assets given by the JNA, inevitably lost force as the Bosniaks and Croats aligned themselves against the Republika Srpska in 1994 with the production of the Federation of Bosnia and Herzegovina following Washington’s understanding. Pakistan opposed the UN’s restriction on the supply of arms and transported rockets to the Bosnian Muslims, while after the Srebrenica and Markale slaughters, NATO interceded in 1995 with Operation Deliberate Force focusing on the positions of the Army of the Republika Srpska, which was the key element in consummating the war. The war was finished after the marking of the General Framework Agreement for Peace in Bosnia and Herzegovina in Paris on 14 December 1995. Harmony dealings were held in Dayton, Ohio and were finished on 21 November 1995. 

Thus prevention of Genocide is a part of the Customary International law which has to be followed by the parties even if they are not specifically mentioning about their consent. Thus in my opinion it could be drawn as an exception to the maxim of pacta tertiis nec nocent nec prosunt. Thus genocide is not just being defined under the said convention but is also being defined under the Statute of the International Criminal Tribunal for Former Yugoslavia and many other statutes as well.

Thus this doesn’t provide an option for consent under the domestic law. Therefore as per the domestic law one has to follow the established municipal rules of the state. However in the international forum it gives the option of consent in it in the form of reservation. Therefore Genocide, being an inhuman and brutal crime which is being committed upon the society as a whole needs to be stopped regardless the concept of consent to it. 

Implication to the Reservations under the Convention on Prevention and Punishment of Genocide on the Genocide case

Fundamentally, the Convention sets upon State Parties the pledge to take measures to forestall and to punish the wrongdoing of genocide, including by building up important provisions and punishing the guilty parties. That commitment, despite the restriction not to commit genocide, had been considered as an untold principle of International Customary law; subsequently, it becomes binding on all States, paying little heed to the reality of whether they have approved the Genocide Convention or not.

What is a reservation under the Vienna Convention on the Law of Treaties?

As per Article 2(1)(d) of the Vienna Convention on the Law of Treaties 1969, “reservation” signifies a one-sided articulation, anyway expressed or named, made by a State, when marking, endorsing, tolerating, favoring or consenting to a treaty, whereby it implies to prohibit or to alter the legitimate impact of certain provisions of the treaty in their application to that State.

Hence when a State is satisfied with the majority terms of the treaty but is not happy about a few of the terms then in certain cases, the State may refuse to accept or be bound by the provision, while agreeing to the rest of the agreement.Thus the capacity to make reservation to an international treaty illustrates the principle of sovereignty.

• Thus, the general rule that became a universal standard is that the reservation could only be made with the consent of all the states who are involved in the treaty as a party. This was done to preserve the the unity of approach so as to ensure the fulfillment of the objective of the international agreement and also to minimize the diversion from the text of the treaty.
• The effect of it was that the State making a reservation had to obtain the consent of all the States. If the consent was not being given, then it would have to become a party to the original treaty or would not become a party at all. 
• However this watertight approach to the reservation was not agreed by the International Court of Justice in the Reservation to the Convention of the Genocide case. 

The US had put a reservation on the Convention on the Prevention and Punishment of the Crime of Genocide 1986, while ratifying the Convention. Thus if a party has put a reservation to any particular provision then it is not bound by it because it has not given its consent,therefore no obligation arises without the consent of the parties, hence it draws the link with the concept of Pacta tertiis Nec Nocent Nec Prosunt.

As per the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,in November 1950, the General Assembly asked the Court a progression of inquiries with regards to the situation of a State which connected reservations to its mark of the multilateral Convention on Genocide if different States, signatories of a similar Convention, protested these reservations. The Court considered, as it would in its Advisory Opinion of 28 May 1951, that, even if the Convention had no Article on the subject of reservation it didn’t follow that the reservations were restricted. The Court didn’t highlight the principle of integrity of the convention but pointed out to a variety of such specific or special circumstances with regard to the genocide convention. Such circumstances therefore included the universal character of the UN under whose guidance the convention had been concluded and the extensive participation that had happened under the convention as well. 

The inquiries which were enquired into are as per the following:

1. The reserving State be considered as a party to the Convention while as yet keeping up its reservation if the reservation is protested by at least one of the parties to the Convention, however not by others?
2. In the event that the response to Question I is in the positive, what is the impact of the reservation as between the reserving State and: (a) The parties which object to the reservation? (b) Those who acknowledge it?
3. What might be the legitimate impact as regards the response to Question I if an issue with a reservation is made: (a) By a signatory which has not yet sanctioned the reservation? (b) By a State qualified for a sign or acquiesce however which has not been yet done as such?

Therefore the Court held:

That a State which has made and kept up a reservation which has been protested by at least one or more parties to the Convention, however not by others, can be viewed just as involved with the Convention if the reservation is perfect with the purpose and object behind the Convention.

However in the Court’s opinion, the Court also gives liberty to the individual states to check the compatibility of the reservation as per their own individual determination. If a party to a Convention objects to the reservation then it may consider the reserving state as not being a party to the Convention. 

The 1969 Convention on The Law of Treaties also accepts the Court’s views and therefore provides statutory provisions for it namely,

• Article 19 of the said Convention states that reservations might be made when signing, confirming, approving, affirming or consenting to a treaty, however, they can’t be made where the reservation is denied by the treaty, or where the agreement or treaty gives that specific reservations might be made and these do exclude the reservation being referred to, or where the reservation is not consistent with the purpose and reason for the treaty.
• Consent plays an important role under Article 20(2) of the said Convention. However, Article 20(4) shows the general guidelines to be followed with respect to treaties not within the scope of Article 20(2) and not constituent instruments of international organisation. These are that: 

(a) acknowledgment by another contracting condition of a reservation comprises the reserving state involved with the treaty as a party according to that other state if or at the point when the treaty is in power for those states; 

(b) an objection by another contracting state to a reservation doesn’t prevent an entry into the power of the treaty as between the protesting and reserving states unless the contrary opinion is certainly communicated by the objecting state;

(c) a demonstration communicating a state’s consent to be bound by the treaty and containing a reservation is viable when in any event one other contracting state has acknowledged the reservation.

• Article 21 states that a reservation established in respect of the other party modifies for reserving state in relation with the other party, to the extent to which the reservation had been made. Article 21(3), however provides that when a state objects to the reservation but not the entry of the treaty into force then the provision to which the reservation relates between itself and the reserving party doesn’t apply to the extent of reservation. 

Therefore the Court’s Approach although is having some disadvantages but its objective was to increase the acceptance capacity and the scope of the treaties. 

Conclusion

Rights and duties are therefore supplementary and complementary to each other. The maxim Pacta Tertiis Nec Nocent Nec Prosunt though only makes the consenting parties binding to it, but not the third parties, however, in some cases we find the third party also becomes a part of the agreement entered into by the consenting parties. A treaty cannot create rights or obligations on third parties without its consent. Thus exceptions are always there, which are broadly mentioned under article 35, 36,37 and 38 of the Vienna Convention on The Law of Treaties. The objective of the formation of all the peace governing organizations and treaties is to provide a coordinating, smooth, negotiable environment among all the nations for the well-being of the society at large. Therefore a treaty though binding between the contracting consenting parties may it sometimes also creates an obligation, responsibility, and duty towards the society as a whole.

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This article is written by M Anulekha, a student from Damodaram Sanjivayya National Law University, pursuing B.A LLB. In this article, the author discusses the Intellectual Property Rights role in Economic Development and what’s the need for the protection of Intellectual Property Rights.

Introduction

Intellectual Property (IP) manages any fundamental development of human insight, for example, creative, scholarly, specialized or logical development. Intellectual Property Rights (IPR) gives the legitimate rights to the creator to verify their creation. These legitimate rights give a restrictive right on the creator/producer or its administrator who utilizes it’s his development/item for a constrained time frame.

As it were, we can say that the lawful rights deny all others from utilizing the Intellectual Property for business purposes without the earlier ascent of the IP rights holder. IP rights incorporate prized formulas, utility models, licenses, trademarks, geological signs, mechanical structure, format structure of coordinated circuits, copyright, and related rights, and new assortments of plants. It is very much settled that IP assumes a significant job in the cutting edge economy.

There are numerous kinds of licensed innovation assurance. A patent is an acknowledgment for a creation that fulfills the criteria of worldwide development, and mechanical application. IPR is fundamental for better distinguishing proof, arranging, commercialization, rendering, and along these lines the protection of developments or imagination. Every industry ought to build up its claim to fame dependent on its IPR approaches, the board style, methodologies, etc. As of now, the pharmaceutical business has a developing IPR procedure, which needs better concentration and standpoint in the coming time.

IPR is a solid instrument, to ensure the venture, time, cash, and exertion contributed by the innovator/maker of the IP, as it gives the designer/maker a selective ideal for a specific timeframe for the utilization of its development/creation. Subsequently, IPR influences the financial improvement of a nation by advancing solid challenges and empowering mechanical development and monetary development. The present audit introduces a concise depiction of IPR with specific accentuation on pharmaceuticals.

History of Intellectual Property Rights

Intellectual Property (IP) protection has a long history. For the United Kingdom, one can follow its impressions path back from the fourteenth century, the United States’ seventeenth Century and Japan’s eighteenth Century. 600 years back the leader of the UK perceived scholarly creation and its significance of assurance. Appropriately, we can likewise outline the monetary quality of these nations. All the majority of the created countries have clear licensed innovation law and a decent authorization framework to ensure the rights. Indeed, even these nations have separate courts to deal with IP related issues for speeding up change. China began late in IP. The principal patent was recorded in 1984 (according to our discoveries), however, they moved quickly. China and India both marked global IP bargains in a similar period. During the underlying days, the IP requirement was not viable in Mainland China. This was utilized beneficially by the neighborhood producers to build their monetary quality and for an extension.

Meaning of Intellectual Property Rights

Intellectual Property rights refer to the general term for the task of property rights through licenses, copyrights, and trademarks. These property rights permit the holder to practice a monopoly on the utilization of the thing for a predetermined period.

Licensed innovation can be characterized as creations of the brain, developments, scholarly and imaginative work, images, names and pictures utilized in business. The target of licensed innovation assurance is to support the imagination of the human mind to serve all and to guarantee that the advantages emerging from abusing a creation advantage the maker. This will empower imaginative action and give financial specialists a sensible profit for their interest in innovative work.

IP engages people, ventures, or different substances to prohibit others from the utilization of their manifestations. Protected innovation engages people, endeavors, or different substances to reject others from the utilization of their manifestations without their assent.

As per Article 2 of the WIPO (World Intellectual Property Organization)– Central Organization for the insurance of Intellectual Property Laws and the master association of the UN, “Intellectual Property will incorporate the rights identifying with abstract, creative and logical works, developments in all fields of human undertaking, logical disclosures, modern structures, trademarks, administration imprints, and business names and assignments, assurance against uncalled for rivalry, and the various rights coming about because of scholarly movement in the mechanical, logical, artistic or logical fields.”

Scope of Intellectual Property Rights

The extent of IP rights is wide; two arrangement modes are utilized to decide if IP is copyright or Industrial Property. Mechanical properties incorporate licenses or innovations, trademarks, trade names, biodiversity, plant breeding rights, and other business interests. A patent gives its holder the select option to utilize the Intellectual Property for the reasons for bringing in cash from the innovation.

Innovation is itself another creation, procedure, machine or production. Having copyright doesn’t give you the select right to thought, however, it secures the statement of thoughts that are not quite the same as a patent. Copyright covers numerous fields, from workmanship and writing to logical works and programming.

Indeed, even music and broad media works are secured by copyright laws. The span of copyright insurance exists 60 years after the passing of the maker. At the end of the day, a writer’s book is copyrighted for as long as he can remember and afterward 60 years after his passing. In contrast to patent laws, there is no prerequisite of the regulatory procedure in copyright laws.

A trademark is an identification of starting point. It is a particular sign used to make the wellspring of merchandise and enterprises open according to products and ventures and to recognize merchandise and ventures from different substances. This sets up a connection between the owner and the item. It depicts the nature and nature of an item. The fundamental capacity of a trademark is to show the starting point of the products to which it is joined or according to which it is utilized. It recognizes the item, ensures quality and promotes the item. The trademark is additionally the target image of altruism that a business has made.

Geographical Indication is a name or sign utilized on specific items that relate to a geographic area or birthplace of the item, the utilization of topographical area may go about as a confirmation that the item has certain characteristics according to the conventional technique. Darjeeling tea and basmati rice are a typical case of topographical signs. The connection among items and spot turns out to be so notable that any reference to that spot is suggestive of products beginning there and the other way around.

Industrial Design is considered to be one of the forms of IPRs.It comprises the making of highlights of shape, arrangement, example, ornamentation or organization of lines or hues applied to any article in a few-dimensional structure or blend of at least one highlights. Plan assurance manages the external appearance of an article, including design, lines, hues, shape, surface, and materials. It might comprise three-dimensional highlights, for example, hues, shapes, and state of an article or two-dimensional highlights, for example, shapes or surface surfaces or different mixes.

Another assortment of plant reproducers is secured by the State. To be qualified for plant decent variety assurance, assorted variety must be novel, unmistakable and like existing assortments and its fundamental attributes under the Plant Protection and Protection Act, 2001 ought to be uniform and stable.

What is the need for protection of Intellectual property rights?

There are a few purposes behind advancing and ensuring protected innovation. Some of them are: Progress and the benefit of mankind stay in the capacity to make and design new works in the field of innovation and culture. IP insurance supports production, dispersion, and divulgence of the creation to the general population, as opposed to staying quiet about it. Advancement and security of licensed innovation advance monetary advancement create new openings and businesses and improves personal satisfaction. Licensed innovation helps in adjusting between the pioneer’s advantages and open intrigue, giving a situation where advancement, imagination, and development can prosper and profit all.

Economic Benefits of Intellectual Property Rights

The subject of how Intellectual Property Rights influence the procedures of monetary improvement and its development is mind-blowing and dependent on different factors. In principle, more grounded frameworks for the insurance of licensed innovation could either improve or constrain monetary development. Eventually, the proof is rising that more grounded and increasingly certain licensed innovation law could well build the monetary development and cultivate advantageous change, along these lines improving formative possibilities, on the off chance that they are organized in a way that advances compelling and dynamic challenges.

As the worldwide assurance system reinforces because of Trade-Related Aspects of Intellectual Property Rights, various inquiries emerge about the effect on possibilities of financial development. For a ton of reasons, it is unimaginable to unhesitatingly say that the new system will raise monetary development and improve the advancement process. There are two significant reasons. First to start with, numerous factors influence the development of manners that can command the effect of TRIPS. Second, the monetary hypothesis brings up that licensed innovation rights could have a lot of consequences for development, some positive and some negative.

For any business to cut a specialty for itself, development has become the spine, particularly in the serious condition today. Development clears the way for the making of licensed innovation and utilizing this protected innovation gives your business a serious edge while additionally contributing enormously to its prosperity. Protected innovation is an important asset for every single business, particularly those contributing huge totals of cash towards innovative work so as to make one of a kind items and administrations.

To receive the financial rewards of IPR, organizations ought to proactively execute licensed innovation arrangements. This permits them to distinguish novel, one of a kind manifestations and furthermore increment their income. It is likewise essential to characterize the licensed innovation objectives plainly as it can assist organizations with accomplishing their business goals.

As business livelihoods develop, IP engineers can make techniques to ensure the special parts of their manifestations. Advancements can be additionally cultivated by investigating more up to date geologies. To accomplish this, organizations can go into authorizing bargains or potentially joint dares to produce novel arrangements that can fulfill the necessities of their objective clients.

Assessment of existing IPR

While talking about the business estimation of IPR, there is one thing that takes top-most need; organizations need to assess their current IP in order to decide if it coordinates their business destinations. At exactly that point would they be able to gather the financial advantages of licensed innovation rights.

Assessment of the current IPR assists organizations with distinguishing new methods for utilizing their scholarly properties through permitting open doors as referenced previously. Organizations can likewise search for new roads and fields to extend the items on offer, which further prompts an expansion in their business income. It can likewise enable a brand to invade more up to date showcases; both locally and globally. 

Protection of Intellectual Property Rights and Economic Growth

The impacts of IPRs security on financial development have been broken down by various hypothetical writing, however, blended outcomes have been found. Much relies upon the suspicions about the exercises of impression and advancement in the Developing Countries.

The results of defective IPRs security on specialized advancement and monetary development by expecting that development happens just in the Northern Countries and impersonation just happens in the Southern Countries. As per these creators, blemished IPRs security energizes impersonation movement in the South. Then again, solid IPRs security could decrease the pace of impersonation. Because of the expanded trouble to copy, the span of restraining infrastructure benefits of the northern pioneer is longer, and this imposing business model position keeps going. The productivity of southern imitators decreases and the country’s heap of data won’t be fortified. The beneficial outcome is that specialized advancement is animated to the degree that the northern firm enhances to make due under the weight of minimal effort southern imitators. The negative impact is because of the vanishing of the lease of the trend-setter from the minute the assortment of an item is imitated.

However, expecting conjunction of impersonation and innovation in developing countries, show that the financial impacts of IPRs security fluctuate as per the degree of monetary improvement. Intellectual property Rights protection helps to reduce the risk of infringement of the invention. These impacts rise and afterward decay with salary. Consequently, the connection between the less-built up nations’ IPRs insurance and financial improvement is U-molded. This suggests a nation’s eagerness to fortify its IPRs security first reductions and afterward increments with its pay.

Conclusion

Economic theory exhibits that IPR could play either a positive or negative job in cultivating development and improvement. The restricted proof accessible proposes that the relationship is certain, however reliant on different variables that help advance advantages from licensed innovation assurance. To sum things up, Intellectual Property Rights could be compelling and advertise based components for conquering issues that exist in business sectors for data creation and scattering. Be that as it may, their reality could present issues as far as their potential for costs and anticompetitive maltreatment.

As needs are, present-day Intellectual Property Rights frameworks are not adequate without anyone else to energize compelling innovation progress. Rather, they should frame some portion of an intelligent and wide arrangement of correlative approaches that boost the potential for IPRS to raise dynamic challenges. Such approaches incorporate fortifying human capital and aptitude procurement, advancing adaptability in a big business association, guaranteeing a solid level of rivalry on residential markets, and building up a straightforward, unbiased, and compelling challenge system. So for the development of countries and Economic growth, intellectual property rights play a vital role.

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This article has been written by Disha Mohanty of National Law University and Judicial Academy, Assam. State succession under Public International Law is one of the most interesting aspects of International Law and very relevant in the current world situation. This article attempts to explain the concept of state succession, the theories behind it and the repercussions of it.

Introduction 

State succession refers to the merging of two or more States. It is different from government succession in the sense that in government succession there’s a change of government whereas in State succession the State loses control over its partial or whole territory. Art 2(1)(b) of the Vienna Convention on the succession of States in respect of treaties in 1978 defines the term State succession as ‘the replacement of one State by another in the responsibility for the international relations of territory’.

In essence, it deals with the succession of one state with another and the transfer of rights and obligations. This concept has assumed greater importance since World War II owing to its effects on the legal obligations of the States. 

Circumstances of State Succession

State succession can arise in a number of defined circumstances, which mirror the ways in which political sovereignty may be acquired. They are: 

• Decolonization of all or part of an existing territorial unit: This refers to situations where the nation partially or completely overcomes itself from the holding of a superior nation.
• The dismemberment of an existing State: This refers to a situation when the territory of the predecessor State becomes the territory of two or more new States who take over it.
• Secession: This refers to a situation where a part of the State decides to withdraw from the existing State.
• Annexation: This refers to a situation where a State takes possession of another State.
• Merger: This refers to the fusion of two or more free States into a single free State.

Types of State Succession 

In each of these cases, a once-recognized entity disappears in whole or in part to be succeeded by some other authority, thus precipitating problems of transmission of rights and obligations. There are two types of State succession and they are discussed below:

Universal Succession

This is also referred to as Total Succession. When the entire identity of the parent State is destroyed and the old territory takes up the identity of the successor State, it is known as Universal Succession. This can happen in cases of:

• Merger
• Annexation 
• Subjugation

In certain cases of universal succession, the old State gets divided into multiple States. The dissolution of Czechoslovakia is an example of universal succession. The new States of the Czech Republic and Slovakia are both successor States. 

Partial Succession

Partial Succession occurs when a part of the territory of the State gets severed from the parent State. This severed part now becomes an independent State. This can occur when there is a civil war or a liberalization war. 

There are two important examples of partial succession.

• One is the separation of Pakistan from India.
• The other is the separation of Bangladesh from Pakistan.

The existing States continued with their legal obligations and duties while the new States got their own recognition and carried no rights or duties of the parent States.

Theories of State Succession

Universal Succession Theory

This is the oldest theory of succession propounded by Grotius, using the Roman analogy of succession on the death of any natural person. According to this theory, the rights and duties of the old State i.e., the predecessor State pass on to the new State i.e., the successor State upon succession without any exceptions and modifications. 

In fact, there are two justifications behind this theory. 

1. First that the State and the Sovereign gain all their power from God and a mere change in Government shouldn’t cause any change in the powers. 
2. Second, it is permanent and nothing can cause it to secede. 

The application of this theory can be seen in cases of fusion in the 20th century. The fusion of Syria and Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are examples of this. However, this theory failed to get any attention from the majority of States from the world and has also been criticized by scholars from the world due to its Roman law analogy, a poor distinction between succession and internal change in governments, etc. 

Popular Continuity Theory

The Popular Continuity Theory can be described as another version of the Universal Succession theory that was propounded by Fiore and Fradier following the unification of the German and Italian nationals. According to this theory, the State has a 

• Political personality: It basically refers to the rights and obligations of the State towards the government. 
• Social personality: lt basically refers to the territory and the population of the State. 

Hence, upon succession, the political personality gets changed whereas the social personality remains intact. So, a State succession would not alter the rights and duties of the populace. 

However, this theory has not found its application in any country outside Europe and also has been criticised on the grounds that it functioned according to the municipal laws i.e, the local laws, which is why it was difficult to understand the effect of State succession using this theory. 

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Organic Substitution Theory

According to this theory, the rights and duties of the State continue even after succession by another State. Von Gierke had published a paper in 1882 regarding The execution of rights and obligations of a social body after its dissolution. It was from here that Max Huber derived his organic substitution theory. Huber drew the analogy that the problem of State succession was similar to that of dissolution of a social institution.

The factual element of the people and the territory have an organic bond i.e., the bond between the people and elements of State and upon succession by a new sovereign, the organic bond remains intact and only the juridical element changes. It offers a new explanation to the continuity of rights and duties i.e., the substitution of a successor State in the personality of its predecessor State. But, just like the other theories, this theory too has had no practical application and has been criticized for the same.

Self Abnegation Theory

This theory was propounded in 1900 by Jellinek and is another version of the universal theory of continuity. According to Jellinek, the successor State agrees to observe the rules of international law and performs the obligations towards other States created under them. Although, this theory considers that the performance of the international obligation, is merely ‘moral duty’ of the successor State, but at the same time it gives the right to the other States, to insist upon the successor State to perform the existing obligation. If the successor State refuses to accept, the other States may even withhold its recognition or make the recognition conditional upon the acceptance of the predecessor’s commitment towards them. 

Negative Theory

This theory was developed during the mid-19th and early 20th centuries. After World War II, the jurists of the Soviet Nations started emphasizing on the right of self-determination and on giving complete freedom to the States to maintain their international relations. According to this theory, the successor State doesn’t absorb the personality of the predecessor State in its political and economic interests. 

Upon succession, the new State is completely free of the obligations of the predecessor State. The successor State does not exercise its jurisdiction over the territory in virtue of a transfer of power from its predecessor but it has acquired the possibility of expanding its own sovereignty.

Communist Theory 

According to the Communist Theory of State Succession, a successor State is burdened by the economic and political commitments of the predecessor. Thus, this comes as something completely contrary to the Negative Theory of State Succession and unlike the Negative Theory, it doesn’t free the successor State from the obligations of the predecessor State. 

The Successor State is bound to adhere to the commitments of the predecessor State. Political commitments involve peace, war and territorial treaties and agreements while economic commitments include any amount of money borrowed or lent. All these have to be fulfilled by the new State.

Rights and Duties arising out of State Succession 

The laws regarding State succession are still in a very nascent stage and keeps evolving with the changing times. As seen above, along with the territorial and power transfers, there are transfers with regard to duties too. This section gives a brief idea about the transfer and non-transfer of political as well as non-political rights and duties.

Political Rights and Duties

• No succession takes place with regard to political rights and duties of the States. 
• The peace treaties or the treaties of neutrality entered into by the previous State aren’t binding on the new State. 
• But the only exception here is in case of human rights treaties since it would be desirable for the new State to adhere to such terms. 
• Other than this, the new State would have to enter into new political treaties of its own.

Rights of Natives or Local Rights

• Unlike the political rights and duties, the local rights of the people do not secede with the succession of the States. 
• These rights refer to the rights such as property rights, land rights or rights relating to railways, roads, water etc. 
• In cases like these, the succeeding States are bound by the duties, obligations and rights of the extinct State.  

Fiscal Debts (State or Public Debts)

• These refer to the financial obligations or debts of the predecessor State. The successor State is bound to pay back the debts of the predecessor State.
• This is because if the new State is enjoying the benefits of the loans, it becomes a moral obligation as well to pay back the money. 
• Next, if there is a split in the State then the entire debt amount gets divided between the predecessor and successor State in accordance with the territory and population of each. 

Effect of State Succession on Treaties

The law on State succession with regard to treaties has for a long time been dominated by two principles in general:

• One is the alleged principle of universal succession and 
• The other is the tabula rasa approach i.e., clean State doctrine not granting State succession to treaties. 

While the former principal keeps in mind, the interests of third States regarding upholding or not upholding treaties, the latter favours a rather strict understanding of sovereignty i.e., functions only according to the interests of the successor and predecessor State. Neither of the two principles can, however, offer a practical solution for various scenarios where State succession takes place. Accordingly, under customary international law more nuanced solutions have been developed in the past or, at the least, are in the process of being formed.

The Vienna Convention on State Succession provides that:

• In case of the border treaties, no such significant changes would be observed and the treaties would pass to the successor State.
• This is done keeping in mind the greater interests of the International Community. Similarly, other forms of local treaties related to land, territory, etc. would also pass on to the successor State upon succession. 
• Treaties relating to Human Rights are passed on to the successors with all their rights, duties and obligations. In the case of treaties relating to peace or neutrality, no succession takes place. 

Effect of State Succession on UN Membership 

When Pakistan was separated from India, it claimed itself to be a member of the United States since India was a member of the UN. The then Secretary-General of the UN had then brought up the following: 

• From the perspective of International Law, the circumstance is one in which part of the State breaks off from the original State.
• When Pakistan separated from India, there was no change in the status of India. India continued with all its treaties, rights and obligations.
• On the other hand, Pakistan didn’t have any of those rights or obligations and of course, had lost the UN Membership. 
• In International Law, the situation is similar to the separation of the Irish Free State from Britain, and Belgium from the Netherlands. In these cases, the portion which separated was considered a new State, and the remaining portion continued as an existing State with all the rights and duties which it had before. 

Thus, in the case of succession, the UN Membership doesn’t get transferred.

Conclusion

Given the current status of the law with regard to the idea of State succession, it can be very well inferred that the law needs a lot more evolution and clarity. Even though lately, it has been seen that there has been some consensus on certain levels and that succession doesn’t necessarily lead to disruption in all legal practices and methods there is a lot more work that needs to be done in this field.

References 

• https://shodhganga.inflibnet.ac.in/bitstream/10603/129013/14/07_chapter%202.pdf
• https://www.academia.edu/38091925/THE_State_SUCCESSION
• https://www.slideshare.net/KeshavChoudhary18/State-successionkinds-theories-consequences-of-State-succession
• https://lawnots.blogspot.com/2017/04/what-do-you-mean-by-state-succession.html
• https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1109
• https://legal.un.org/diplomaticconferences/1977_succession/
• http://www.legalserviceindia.com/articles/insu.htm
• https://legal.un.org/ilc/texts/instruments/english/conventions/3_2_1978.pdf

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This article is written by Abhishek Dubey, a law student. The article compares the term sheet of an angel investor in all three cases such as issue of equity, CCPS and CCD share and also the difference in any of the particular clause of the term sheet.

Instrument clause

Under the equity term sheet, equity share has a face value of INR at the price of per-share equity share. And in CCPS(Compulsary Convertible preference Share)  term sheet, companies have a face value of INR at each price of share along with certain rights as agreed by the parties in the documentation of preference and subscription share. And in CCD(Compulsory Convertible Debenture) term sheet, the total value of INR and certain rights are attached in the debenture documentation.

Interest clause

In terms of equity, there is no interest clause. There is a dividend clause which says that holders of preference share shall be entitled to the payment of % non-cumulative per annum on each of preference share by way of dividend from the company in preference to holders of equity share or any other securities of the company.

In the term sheet of CCD, the debenture shall bear an interest of % on a non-cumulative basis per annum.

Valuation clause

In term sheet of equity, there is pre-money valuation is required in INR, in term sheet of CCPS the pre-money valuation is required but it is not required in CCD term sheet.

Advisory clause

In the term sheet of equity, the company agrees to issue the equity share to an advisor on an ongoing basis in value and consideration of advice.

In the term sheet of CCPS, the company agrees to issue advisory equity equivalent to the investment per cent in value in consideration of the advisory services on an ongoing basis.

In the term sheet of CCD, the company at the time of closing agrees is to issue equity shares.

The difference in these term sheets for advisory equity is optional and the investor will only issue when he has taken advisory services but it is compulsory in case of term sheet of CCD where the investor has to definitely issue advisory equity.

Board composition and incidental matter clause

In all 3 term sheets, investors shall be entitled to nominate at least one director, others will be nominated by the promoters. But in the term sheet of CCPS, if the investor does not have representation for the board of directors then the board observer position may be granted to the investor.

Pre-emptive rights clause

The investor shall have pro-rata right to participate in case of issue of share to the third party in future and retain their shareholding on same terms and condition but it is only applicable in equity and CCPS term sheet but not in CCD term sheet.

Conversion clause

There is no conversion clause in the term sheet of equity. In terms of the CCPS sheet after liquidation and after 20 years from the date of allotment of share, the preference share shall convert into equity share in the ratio of 1:1. The conversion shall be adjusted in future according to bonus, employee stock option plan and equity splits etc.

But in the term sheet of CCD, there is a conversion clause which says that if the company raises the qualified financing then debenture will be automatically converted into equity share. Qualified financing refers to the investment lower than the INR.

Promoters and non-selling investors right of the first offer

In the event selling, investors sell whole or any part of their shareholding to the third party. The selling investor has to first offer it to the promoters. This is applicable only in CCPS and equity term sheet but not in CCD term sheet.

Employee stock option plan clause

The company shall implement an employee stock option plan not exceeding than the post-issue share capital of the company on a fully diluted basis with the approval of investor and director. This is applicable in case of term sheet of equity and CCD but in CCPS term sheet, the employee stock option plan shall be at least 10 per cent on the post-issue share of capital. However, there is no minimum condition in the term sheet of equity and CCD.

Exit mechanism clause

The exit mechanism provides that the company and promoters shall make all ways to provide the exit opportunity to the investor.

In terms of equity, there are various ways to provide the exit opportunity such as initial public offering at a time mutually agreed upon, within 5 years from the date of closing.

At the strategic sale of equity share means at the price acceptable to the investor within 6 years from the date of closing.

Drag along with rights: In the event, if the company and promoters fail to provide the exit opportunity then the investor can sell its share to the third party.

In terms of CCD also, there are various ways to give the exit opportunity to the investor such as IPO, strategic sale of debenture and drag along with options etc.

But in term sheet of CCPS, there is qualified financing that the company shall endeavour to ensure that any future issuance by it of securities of a cumulative value equal to or higher than 125 per cent. It shall be done in such a way that 25 percent of the amount proposed to be raised.

Holders rights

The investor shall be granted all rights that are granted to all the investors subscribing to the securities of the company. This is given only in the term sheet of CCD but not in the term sheet of equity and CCPS.

Power of attorney

This clause is given only in the term sheet of CCPS  which says that the investor shall be the power of attorney to other investors defined in the documentation.

Governing law, jurisdiction and arbitration

There is governing law which says that it shall be governed by the law of India and dispute will be settled in the court but there is arbitration in CCPS where the party can appoint the arbitrator but in equity it and CCD the dispute will be settled in the court.

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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 Incorporation of Companies also analysing the functions, duties and liabilities of the Promoter under the Companies Act of India, 2013.

Introduction

The formation and incorporation of a company are very much similar to the birth of a human like it also goes through various stages of formation of its body parts during the womb stage. Various groundwork is carried out to bring a company into existence. The process of an idea converting into a company includes various stages, these crucial stages of the pre-incorporation and formation stages are discussed in detail as under. This article explains the functions, duties and liabilities of a promoter along with providing insights into cases regarding pre-incorporation contract. This article dwells into the integrated process of Company registration.

Promotion

As the name suggests this stage of incorporation deals with the promotions of the yet to be incorporated Company. It is the stage where the Promoter walks in the market of the potential investors to collect the investment towards an idea which might be his own brainchild or of someone else.

The Promoter induces the confidence on the idea, over the investors and tries to build upon the investment so as to be able to incorporate the company. Promoter has been defined under Section 2(69) of the Companies Act, 2013. Technically a promoter is a person so named in the prospectus of the Company. The Company shall also name their promoter in the annual return made under Section 96 of the Companies Act, 2013.

A Promoter is to a company, as Parents is to a child. The Promoter along with convincing investors towards the idea of the company also brings together the physical capital of the labour, raw materials, managerial ability, machinery etc. 

The Promoter although is passionate towards the company’s ideas, but has to SWOT analyse the idea with respect to the future prospects and feasibility with respect to the societal dynamics. 

The idea of promoter can be seen with having 3 different perspectives: 

• promoter is someone who is identified in the prospectus of the company or is mentioned as a promoter in the annual returns of the company, and/or 
• promoter is a person who has the power to appoint majority of members of board of directors or person having authority over making policies or making decisions for the company, and/or 
• promoter is a person on whose advice board of directors are accustomed to act.

Functions of a Promoter

(i) Spotting a Business Demand in the Market 

The promoter before promoting a company idea first identifies a potential business opportunity. The potential opportunity may be any new product or a new service or may even be the production or manufacture of an already established product by new means.

(ii) The practicality of the Idea

The promoter has to evaluate the idea of the new potential company under the magnifying glass of technical and financial feasibility. Therefore, it is but important that the promoters undertake detailed studies regarding all aspects of the business idea by using various tools such as the economic studies of the market, taking opinions of the technical experts of such products, opinions of the chartered accountants, economists etc. The idea which the promoter intends to use for perpetrating the market. The feasibility of the idea can be evaluated using the below mentioned three tests.

• Technical conceivability: the ideas of the business may be good but sometimes they may be technically difficult to conceive into reality given such hurdles regarding the raw material acquisition, the difficulty of making a product with limited funds, etc.
• Budgetary feasibility: Sometimes it may not be possible to gather a large fund required for the business being under the sword of limited means and sometimes stipulated time. Also, financial institutions may be hesitant to give huge loans to new ventures.
• Monetary feasibility: A business idea may be technically and financially feasible but not monetarily appreciable. It may not be gainful or may not return enough profits. In such a case, the promoters refrain from promoting the idea of business.

(iii) Name of the Company

The Promoter after fixing the launch of the idea intends to get a name to the Company. Promoter applies to the registrar of companies of that jurisdiction wherever the promoter intends to make the registered head office of the Company. Application to registrar contains three names “X or Y or Z” in the sequence of priority and Promoter adheres to Section 8 of the Companies (Incorporation) Rules, 2014.

(iv) Finalizing Signatories to MOA

The promoters decide who all will be the members signing the Memorandum of Association of the Company which is to be formed. Generally, the signatories of the MOA are the first Directors of the Company. The written consent of the signatories of the memorandum is essential to become Directors of the company.

(v) Hiring Professionals

Promoters are required to appoint certain professionals such as mercantile bankers, auditors, lawyers, etc. These professionals aid the promoter in the preparation of necessary documents that are to be filed with the Registrar of Companies during the registration of the Company.

(vi) Preparation of Necessary Documents

The promoters are the ones who are responsible to collect documents that are submitted to the Registrar of the Companies for getting the company registered. These documents are a return of allotment, Memorandum of Association, Articles of Association, consent of Directors and statutory declaration.

Duties of the Promoter 

The relation of promoter with the company cannot be described as a principal-agent relation as during pre-incorporation stage, the company has not even come into existence. Various judicial interpretations towards understanding the nature of relation between the promoter and the company has taken place in the common law Courts as well as Indian Courts and it has been decided that the relation between the promoter and the company is fiduciary in nature. Duties of the Promoter shall be discussed herewith: 

1. Duty to disclose secret profit

As mentioned earlier the promoters stand in a fiduciary relationship with the company which will be incorporated. The duty of a promoter is to disclose the secret profit made by him if any to the company. The Promoter has a right to claim expenses if any made during the incorporation stage from the company.

2. Duty to keep the company informed about the transactions

A promoter may intend to sell, lease or rent any property of the company. But if such a transaction is made without informing the company, the company may repudiate such contract of sale, lease or rent, the company may even claim the profit made by the promoter from the transaction by allowing such a contract made by the promoter.

3. Fiduciary duty towards the future Shareholders

The promoter is bound by a fiduciary relationship with the company, signatories of memorandum of association and also show the future allottees of share of the company. Relation of trust between promoter and future shareholders goes to show that the promoter shall uphold all the values expected of him by the Company.

4. Duty to disclose profits gained during promotion

The promoter during the promotion of the company may certain times be subjected to certain private arrangements leading to his personal profit, given the promoter stands in fiduciary relationship with the company he must disclose the profits gain during promotion as explained about to the company.

5. Duty to pay the company whatever received as trustee

The promoter stands in a fiduciary relationship with the company, and it is the duty of the promoter to make good to the company whatever he has obtained as the Trustee of the company.

Liabilities of the Promoter

A Promoter is subjected to liabilities under the various provisions of the Companies Act, 2013. The liabilities of the promoter are:

1. Liability to justify the transactions to the company

The promoter stands in a fiduciary relationship with the company, therefore the company has all rights to enquire into the transactions made by the promoter without the consent of the company. The company while dealing with such a transaction may either repudiate such an agreement made by the promoter with the third party or may even sue the promoter to recover the money along with profits so made by him behind the back of the company.

2. Liability against the misstatement made in the prospectus

Section 26 of the Companies Act, 2013 lists down the matters that are to be stated in the prospectus. The promoter may be held liable for not having complied with the provision. Section 63 of the Companies Act, 1956 also provided criminal liability for misstatement in prospectus and Promoter maybe made liable under this section. Section 63 prescribed imprisonment that may be extended to two years and fine that may be extended to 5000 Rs. for making untrue statements in the prospectus.

Under Section 34 and Section 35 of the Companies Act, 2013 promoter maybe held liable for any untrue statement made in the prospectus because of which a person subscribed for shares and debentures believing the prospectus statements to be true. However, the liability of the promoter is capped towards only the original allottees of the shares and not the subsequent ones.

3. Personal liability towards the contracts

All the contracts entered upon by the promoter during pre-incorporation stage of the Company, the promoter may be held personally liable for the aforementioned contracts till it’s discharged according to contract terms or when the company takes up the liability from the promoter after it is incorporated.

4. Liability of the promoter during the winding-up process of the company

In the process of winding up, the official liquidator under Section 340 of the Companies Act, 2013 may by application request the court to make the promoter liable for the misfeasance or breach of trust towards the Company. Also under Section 300 of Companies Act, 2013 promoter may be liable to examination, if it is alleged by the liquidator that there is fraud in the promotion or the formation of the company.

Status of Contract in pre-incorporation and the Principle of Promoter’s liability in pre-incorporation

The pre-incorporation contracts are the contracts entered upon by the promoter before the company is incorporated and these are essential for the successful running of the company in the future. The nature of these pre-incorporation contracts is however different to that of an ordinary contract. These contracts are Bipartite and effects of it are tripartite. The Promoter enters into a contract with the service providers or the interested persons and the consequential effect of these contracts help the prospective company which is still lingering in its non-incorporated stage. The instruments of Contract is essentially used for the quid-pro-quo transactions between two parties, but here it is remarkably used for the benefit of the non-party to contract as legally the company is non-existent. 

The Company is essentially the beneficiary of the pre-incorporation contracts as inferred from the above said para. Now it might stir up doubt as to why a company is not liable towards the pre-incorporation contracts, the answer to the question to be simply put is that one cannot make someone liable if they are non-existent and hence not a party to the aforesaid pre-incorporation contract. 

The non-liability of the company with respect to the pre-incorporation contracts was the same as the common law court in India until the passing of the Specific Relief Act, 1963. The Specific Relief Act, 1963 essentially under Section 15(h) and Section 19(e) makes the pre-incorporation contracts and agreement valid deviating from the trajectory followed under the common law.

Section 15(h) provides details as to who may obtain specific performance, wherein clause h provides that when a promoter gets into a contract before incorporation on behalf of the company and the company warrants such contract and such company must have sent a communication of acceptance to the other party of contract.

Section 19(e) provides that a party claiming relief under specific performance can be claimed when the promoter of the company before incorporation had entered into contract and if such contract was warranted during incorporation. The company must have accepted the contract and communicated such acceptance to the other party of contract.

The aforementioned provisions of the Specific Relief Act, 1963 changes the course of action in a case between parties where contract was made before incorporation, unlike the regular course of action against the promoter here the company can be made liable if it has accepted the contract and has communicated such acceptance to the other party of the contract.

Various cases have come before the judiciary in order to understand the liability of Pre incorporation contracts, we shall be discussing such cases below:

• The case of Weavers Mills v Balkis Ammal and others, wherein the promoter had agreed to purchase some properties on behalf of the company, after incorporation the company took possession of the properties and also constructed structures upon it. It was held that although no conveyance had taken place between the promoter and company regarding those properties. It was held that the company’s title over the properties was valid and couldn’t be set aside. The Madras High Court had extended the scope of interpretation of the principle mentioned above. Promoters are generally held liable personally for the pre-incorporation contract unless the company ratified the contract.
• Landmark case of Kelner v Baxter which is a case where “the principle of promoter’s liability in pre-incorporation contract”, was explained. The facts of the case is that, the promoter of a company was approached by one Mr. Kelner to purchase his wine wherein the promoter had agreed to purchase the same on behalf of the company. Later on the company was unable to pay Mr. Kelner who sued the promoter. It was interpreted whether the promoter was in a principal-agent relationship with the company and if the liability can befall upon the company. The learned judge interpreted that the principal agent relationship was not in existence as the principal of the agent cannot have existed without the incorporation, it was further added that company cannot take the liability of Pre-incorporation contract through adoption as the company is not privy to the contract, also the company was not even existent at the time of contract.
• In the case of Newborne v Sensolid Ltd. Wherein it had happened so that the appellate Court interpreted the findings of Kelner v Baxter, wherein an unformed company enter into a contract wherein the other party refused to do its duty under the contract. The judge had observed that before incorporation the company couldn’t have come into existence, neither could get into a contract and hence there cannot be an action for pre-incorporation contract. Confusion was then created that if a contract was signed by agent or a promoter then such promoter will be liable personally, but if the person representing him as representative of a non-formed company then the contract is unenforceable.

Finally, it can be concluded regarding the pre-incorporation contracts and Principle of Promoter’s liability in pre-incorporation that, common law clearly shows that the promoter shall be held personally liable for the pre incorporation contracts of the company and the same was followed in England and India prior to the legislation of the Specific Relief Act, 1963. It basically goes on to suggest that there is no escape from the liability of the promoter. But there are recognised ways in Indian law to shift the liability of the promoter to the company in case of the pre-incorporation contract wherein the first and foremost way is novation of contract which is also accepted by the common law courts regarding the shift of liability from Promoter to the company, India but uniquely legislated Specific Relief Act, 1963 providing provisions wherein if the contract was entered upon by the promoter during the pre-incorporation stage the party to such contract can make the company liable under Specific relief Act if the company ratify such contract and sends communication to such party of the ratification of the contract. But otherwise the promoter is held liable in case of Pre-incorporation contracts.

Registration/Incorporation of the Company

The Registration of the Company is legal recognition given to the body corporate under the Company Law. The procedure of registration has been clearly stated in Section 7 of the Companies Act, 2013. This provision clearly lays down the requirements for the incorporation of the company. The details of the documents namely:

• Memorandum of association, which is the constitution of the company wherein the signatories in case of a public company has been fixed to a minimum number of 7 and for a private company a minimum number of 2 this document is duly stamped; 
• Articles of Association, this is the document filed along with the MOA; 
• List of directors, wherein the details regarding their names, occupation and address is mentioned; 
• Written consent of the directors, the consent of the directors is to be submitted to the registrar of the companies; 
• Verification document, wherein such document is to be digitally signed by any recognised chartered accountant, Company secretary, Advocate.

Integrated Process Of Company Registration

In the website of the Ministry of Corporate Affairs, there are options using which one can register their company online whereby integrating various legal steps of the incorporation in the same portal. Further, the process of incorporation or registration requires first to apply for the unique name which shall be reserved for the proposed company against the payment of Rs. 1000.

The process then involves filling up the form online, the form is named “simplified proforma for incorporation”. The performa gives a viable option to incorporate a company online, which starts by filling up the details regarding the information of the promoter of the company. Secondly, the electronic performa in the form number INC-33 and INC-34 provides the option of filling up the e-MOA (Memorandum of association) and e-AOA (Articles of Association) respectively. The MOA as we know is the constitution of the company, it usually describes the object of the company and also describes the directors involved during the incorporation of the company. After the memorandum of association, the e-AOA option is provided so as to ease the process of incorporation even further, an e-AOA lays down rules and regulations of company affairs. E-AOA also lays down the powers, duties and rights of managers, officers and board of directors. 

The Article of Association may be made by the company according to its own requirements, or maybe selected by such company from the various options available in the schedule of Companies Act. AOA must be signed by all the directors and also attested by two witnesses. The articles of association of a company is also known as by-laws of the company or also named as the doctrine of indoor management since it deals with various issues such as:

• amount of share capital and kinds of share,
• rights of each kind of shareholders, 
• procedure for making allotment of shares, 
• procedure for issuance of share certificate, 
• transfer of shares, 
• procedure for conducting meetings, 
• procedure for appointing or removing directors of the company etc.

All the documents declared to be necessary under Section 7 of the Companies Act are supposed to be attached along with the digital signature of all the directors. The Ministry of Corporate Affairs has tried to simplify the process of getting a DIN number for the directors of the newly incorporated company by including such request form along with the PAN & TAN card of the so proposed entity which is being incorporated. The single-window clearance regarding the incorporation of a company was an action taken by the central government of India to increase the feasibility and scope of the incorporation even further.

Certificate of Incorporation

The registration of the memorandum of the association, the article of association and other documents are filed with the registrar. After getting satisfied with the application & documents submitted, the registrar will consider issuing the certificate of incorporation’. A certificate of incorporation is the ultimate proof of the existence of a company.

Effect of the Certificate of Incorporation

1. Certificate of incorporation is the conclusive evidence of the legal existence or presence of the Company as per Section 35 of Companies Act, 1956.
2. Even if there are formal deficiencies in the documents submitted for the incorporation of the company, once the certificate of incorporation is issued, the certificate becomes conclusive evidence regarding the legal existence of the company from the date mentioned in the incorporation certificate.
3. If the certificate of incorporation was received on 24th but the certificate reflects the date 22nd then the company shall be taken to have come into existence from 22nd as reflected by the certificate of incorporation and this will also authenticate the transactions made by such company on 22nd and 23rd in the eyes of law.

Certificate of Commencement of Business

• As soon as a private company gets the certification of incorporation it can start its business. Once the certificate of incorporation is received by the company, a public company issues a prospectus for inviting the public to subscribe to its share capital. It fixes the minimum subscription in the prospectus. Then, it is required to sell the minimum number of shares mentioned in the prospectus.
• After completing the sale of the required number of shares, the certificate is sent to the registrar along with the letter from the bank stating that all the money is received.
• The registrar then scrutinizes the documents. If all the legal formalities are done then the registrar issues a certificate known as ‘certificate of commencement of business’. This is the conclusive evidence for the commencement of business for the public company.

Conclusion

From the above article, we understand that the company’s incorporation period can be understood to be the integration of Pre incorporation period and incorporation period. Pre incorporation period may be understood as the idea phase of the company. The promoter whose name is reflected in the prospectus of the company plays a very important role in collecting the funding for the company. The promoter also conducts a SWOT analysis of the company to understand the potential of such a company in the marketplace and making it a feasible option to invest upon by the investors. The duties and liabilities of the promoter has been discussed in detail showing how the relationship between the promoter and the company is fiduciary in nature. The principle of promoter’s liability relation to the pre-incorporation contract has been dealt in detail coming to a conclusion that the promoter shall be held personally liable for all the pre-incorporation contracts, unless there is novation of the contract or in case of India when the provisions of Specific Relief Act applies wherein the company ratify the contract and send communication to the other party of contract regarding their liability. The role of the government in easing the process of incorporation is very crucial as it determines the potential intention of the investors towards companies in the market. 

The ease of incorporation has been increased by making it online affair, The Ministry of Corporate Affairs provides options to incorporate the company with a unique name by providing the online option of submitting the memorandum of association along with the articles of association online with the declaration digitally signed stating that all the procedures of incorporation of a company under law have been followed by the respective company. The State’s duty as an enabler of business for the growth of the economy finds its presence in this legislation. Certificate of incorporation plays a crucial role to prove that the company has been duly incorporated and the same cannot be taken back unless the winding up is initiated for the registrar of company finds that the company incorporated has played fraud for its incorporation. The certificate of incorporation speaks for itself and receipt date of the same does not affect the date of incorporation i.e. if the incorporation certificate clearly specifies the date of incorporation as 14th February although certificate is received on 20th February all the transactions taken place after 14th February shall be taken to be done in compliance with law.

Reference

1. The Companies Act,2013
2. The Companies (Incorporation) Rules, 2014

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This article has been written by Neha Mallik, studying at Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article gives an understanding of Sponsorship Agreements and its essential elements. It also highlights the anatomy of the Sponsorship Agreement and its relevance.

Introduction

Are you looking for a sponsor, or have you ever thought of becoming a sponsor? If you are a big company, you would have surely sponsored an event at some or the other point of time, and if you have ever organized a big event, you must have needed sponsors for sure. From sports tournaments or leagues to book fairs or competitions, these events need sponsors. Sponsorship is a marketing technique that benefits both parties, be it the sponsor or the event organizer.

The sponsors generally provide financial support to the organizers and get multiple benefits in return, such as brand promotion, marketing, and various rights, including the right to sell their products, etc. Sponsorship is a complex deal that leads to many legal obligations and issues. No matter how many benefits you get, you may end up having trouble if you have not gone through the terms of the Agreement properly. It is imperative to include all the essential clauses in the Sponsorship Agreement to make sure your event goes smoothly. In this article, we will discuss the Sponsorship Agreement and the vital provisions of the Agreement. We’ll also discuss when it is required and the benefits it gives to the parties. 

What is the Sponsorship Agreement?

The Indian Contract Act, 1872, generally governs the sponsorship agreements. It lays down the legal obligations and duties for both the sponsor and organizer. It is essential to define the roles & responsibilities of both parties in order to make the event successful.

The Agreement sets out all the arrangements, including sponsorship fees, use of intellectual property rights, cancellation and postponement procedure, and other such things. If the parties rightly draft the terms of the Sponsorship Agreement, it would be a win-win situation for both. It is a very flexible agreement considering the needs of both parties. It must be noted that the sponsorship proposals must be clear as the terms of your Sponsorship Agreement are based on the proposals.

What is the importance of the Sponsorship Agreement?

• The sponsorship agreements give legal validity to all the arrangements and proposals you make. 
• If you frequently organize events, then you can have a standard sponsorship agreement for each sponsor, but you need to make sure that both parties are comfortable and fully understand their obligation.
• The level of participation of a sponsor is again an important factor deciding the need for a Sponsorship Agreement. The participation level of different sponsors varies from sponsor to sponsor. Some sponsors simply deliver their products to the event, some only give their brand name to make the event more profitable, and some sponsors have a major sit-down dinner enjoying the whole event. Complex participation of sponsors needs a Sponsorship Agreement for sure.
• The Sponsorship agreement secures the needs and interests of both parties.
• A well-drafted agreement will avoid all the confusion and end up building a stronger contractual and personal relationship between the parties. 
• It also helps in the promotion of brand name and trademark.
• The Agreement bifurcates the duties and liabilities of both parties.

When to use the Sponsorship Agreement?

The document is required by the event organizer or the sponsor for two primary reasons. Firstly, to outline the package of the deal and secondly and most importantly, to legally bind both the parties. Any of the parties can initiate the drafting of the contract, and then the terms can be negotiated as preferred. 

The Sponsorship Agreement is a must-have for:

• Events where the location and timing is different;
• Sports tournaments and leagues;
• Fairs and exhibitions;
• Shows and college functions & fests

In the sponsored events, the sponsors usually promote and advertise their brand name to increase profitability. The sponsor can receive numerous rights by entering into a well-drafted Sponsorship Agreement. 

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Anatomy of a Sponsorship Agreement

A sponsorship agreement has numerous clauses keeping in mind the requirements and feasibility of the parties. But there are some standard provisions which must be included in the Sponsorship Agreement as they are the essential elements of the Agreement. Have a glance at the following:

Parties

Identifying the correct party is very important for a contract. If there is any third party participating for the purpose of sponsorship, it is necessary to include his name in the Agreement to identify his legal obligations and limitations.

Definitions

It is important to clarify all the essential terms used in the contract. The definition clause includes the meaning of the terms mentioned in the contract. Say, for example, indemnification, Intellectual property, branding, etc. This clause helps the parties to make inferences on the specific terms of the Agreement. 

Duration

The term of the contract generally depends upon the sponsor. He is the one to decide whether he is available for the proposed term or not. He may negotiate according to his feasibility until the parties reach a specific term period mutually.

The term/duration clause can be seen in almost every contract. When the parties finalize an agreement, they decide for how long they would be contractually obligated to each other to avoid confusion and conflicts. 

Sponsor Obligations

Furthermore, the organizers try to ensure that the sponsor would follow certain obligations to smoothly run the event. The obligations are:

• Comply with all the rules and regulations set out by the organizer.
• Being respectful towards the staff and other members in the event.
• Adhere to restrictions upon the use of Intellectual Property Rights.
• Adhering to other such restrictions as mutually agreed by both parties. 

Organizer Obligations

Organizers are also expected to meet out numbers of legal obligations set by the sponsors in exchange for the sponsorship fees. The obligations vary with the sponsors and the type of sponsorships they are providing. There are certain common obligations which can be seen in almost every Sponsorship Agreement. These include:

• Complying with the law;
• Promotion of the products and services of the sponsors;
• Providing extra security and services to the sponsors as agreed; 
• Granting Intellectual Property Rights to the sponsors;
• Adopting a professional approach towards the members of the Sponsor Team;
• Avoiding any behaviour or practice which may harm the reputation and goodwill of the sponsor.
• Other obligations specified in the Agreement.

Sponsorship Fees and Payment Terms

This is a very simple yet essential clause in the Agreement. Generally, the parties decide as to what should be the sponsorship fee. The fee is based on the Sponsors and their level of participation in the event. Certains conditions are mentioned in the clause regarding the increase in the fees on the occurrence of certain events for e.g., winning a team or extra tickets sold for the event.

This clause also specifies the time limit within which the payment should be made and also includes the method of payment; if the amount has to be paid in instalments or in a lump sum, it should be specified in the agreement.

Intellectual Property Rights

The sponsorship allows the parties to use the intellectual property rights, trademarks of each other. This clause grants the sponsor rights and licenses to use the logo, trademark, attributes, etc. This is a standard provision that is included in all the Sponsorship Agreements. The clause should be read properly in order to eliminate all the ambiguity that may arise during the event or in the future. It is essential to specify the ownership status of the intellectual property of the parties. 

Cancellation by sponsor

The clause highlights the conditions as to when the sponsor can cancel its sponsorship. This clause should be read and appropriately negotiated as it can exploit the rights of the organizers. 

Postponement and Cancellation/Termination

This is the most important provision which highlights the procedures and grounds for postponement and cancellation. The provision specifies what the procedures and grounds for termination are and what will happen post-termination? Sometimes the termination clause gives the right to the sponsors to terminate the agreement upon the relegation of the event organizers or damage of reputation. The provision also indicates what to be done in case of any breach. This clause should be consciously negotiated to avoid any conflict later.

Some of the grounds for termination or cancellation of the contract could be as follows:

1. Unauthorized use of funds.
2. Damage the reputation of the brand name.
3. Refusal to audit the financial statements.
4. Violation of any clause of the agreement.

Use of Branding

The clause states the right of the organizers to incorporate the name of the sponsors on all the possible elements. For e.g.: the clothes of participants, bands, posters, display screens, conferences and many more. The extent of usage of the brand name depends on this clause. It not only helps the organizers to increase their revenue and business but also promotes the brand of the sponsors. 

Confidentiality

It is a standard provision that is included in every sponsorship contract, irrespective of the sponsors and the level of participation. This clause binds the party to keep all the finance-related matters and contractual dealings, including sponsorship fees confidential. The clause wholly depends on the understanding of each party as they share their private and non-public information.

Don’t miss out the common clauses which may have loopholes 

Force Majure

This clause is an utmost necessary clause in the Sponsorship Agreement. Sometimes the lawyers forget to include the clause or do not bother to read the clause carefully, which leads to many problems in the future. So it is essential that the clause is thoroughly read by both parties.

The clause helps parties to free from the liability to pay for the loss in case of an Act of God or other external force that cannot be foreseen. The common examples are earthquakes, wars or riots, terrorist attacks, strikes, or any change in the law. The clause also gives parties the right to terminate the contract in case the Force Majure event prolongs or extends for a certain period.

Exclusivity Clause

This clause means that the party cannot get any other sponsor for their event. This clause gives an advantage to the sponsors for being an exclusive sponsor for the whole event. If this clause is in the Sponsorship Agreement, you must read it thoroughly.  

Indemnity

The sponsorship contract must include an indemnification clause wherein they agree to pay the other party any loss suffered due to the negligence, misconduct, or any omission on the part of another. It is a key remedy that provides numerous benefits in case the party suffers a loss. The procedures and conditions for indemnification must be cleared to avoid delays and conflicts. It is also important to limit the indemnification so as to protect the parties from exploitation. 

Dispute Resolution

The provision is very important and should not be missed in the contract as it outlines how the parties would resolve a dispute which may arise during the event or in the future. It is a very common clause that most of the lawyers forget to include in the contract. It states that in the case of any dispute between the parties, which course should be taken: whether they should go for negotiation, litigation, arbitration, or mediation. The rules must be set out with the agreement of both parties.

Governing Law and Jurisdiction

Sometimes it so happens that the sponsors only give their brand name and are not physically present in the event as they are from different countries or states. If any issue arises, it is important to outline the laws which would govern the contract. It is also important to identify the jurisdiction where the proceeding would be initiated. If there is a Jurisdiction clause in the Agreement, parties can quickly initiate the proceedings without any delay.

Few tips to avoid conflicts with your Sponsors:

• You should agree on the terms of sponsorship with your sponsors in advance because if you do it haste, you may forget some important terms which can create issues later.
• You need to keep your sponsor updated and provide all the news, developments, and news of the changes in the event.
• Make sure that you have a written Agreement with proper registration and stamp duty paid.
• Clarify all the rights and obligations in the contract to avoid confusion. 

Conclusion

The Sponsorship agreement is a lengthy and complex document. Having said that, the document provides benefits to both parties if drafted accurately, capturing all the rights, responsibilities, and obligations of the parties. Despite the complexity, the sponsorship provides a win-win situation for both the sponsor and the organizers as long as they know the key provisions.

Today, this area has become more demanding, with new challenges unlocking a new world of revenue. Having a sound understanding of the anatomy of the Agreement is a must to avoid disputes, confusion, and ambiguity. I hope this article has helped you understand the Sponsorship Agreement, its relevance, and its key provisions. So from now onwards, whenever you are hiring a sponsor or being a sponsor, you must discuss the above clauses with your partner to ensure your event goes off without any hitch.

References

1. https://lawpath.com.au/blog/what-is-a-sponsorship-agreement
2. https://sponsorshipcollective.com/how-to-write-a-sponsorship-agreement-5-things-for-every-sponsorship-contract/
3. https://india.findlegalforms.com/product/event-sponsorship-agreement-india/
4. https://www.mondaq.com/cyprus/Media-Telecoms-IT-Entertainment/724760/The-Legal-Perspective-Of-A-Sponsorship-Agreement-In-Sports

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This article is written by J.Suparna Rao from Ramaiah Institute of Legal Studies. This article discusses the concept of Role of Customs in Hindu Law.

Introduction

Hindu Law

Laws are the basic structure on which the country is built and which regulate the functioning of three organs of the government namely Legislature, Executive and judiciary. Law can also be defined as ‘Dharma’ itself, which means it is the duty of a person. Indian system has two different types of laws namely – Territorial or General laws and personal laws. Hindu law is one such personal law. Hindu law is the rules made for the peaceful existence of the people in the society. Hindu law has been considered as one of the oldest forms of law.

It has been derived from the word ‘Sindhu’ which is a designation for the Indus River. Hindu law is believed to be derived from God himself or they are considered to be the words of God, revelation by the god himself and so it is very divine. Hindu law was codified by the Dharmashastra writers. Hindu law governs Hindu’s in their many social aspects such as marriage, divorce, adoption, minority and guardianship, inheritance, and other family matters.

There are various sources of Hindu law which were broadly divided into two categories- Ancient sources and Modern sources. Ancient sources include Sruti or vedas, Smriti or Dharmashastras, Commentaries and Digests, Customs and usages. Modern sources include Judicial Decisions or Precedents, Legislation, Justice Equity and Good Conscience. 

Customs

Now let us briefly understand the word ‘Custom’. Custom can be considered as the principle source for the development of the Hindu Law. Custom in common parlance is an act or behaviour which is repetitive or is traditionally accepted or can also be defined as a habitual practice that a person is uniformly following for a long time. It can also be termed as ‘Rule of Conduct’.

From the time back ‘Achara’ that is custom is regarded as the highest of all ‘Dharma’. Customs differs from area to area and family to family. Customs are not static rather they are such that they keep changing and evolve with time. According to manusmriti if the custom is proved it will overpower and prevail over written text or laws.  

Section 3 of Hindu Marriage Act, 1955 defines custom as a rule which is followed for a long time and has obtained the force of law among people of the Hindu community. It also stated that custom must be ancient, must be reasonable, and it should not be in derogation to the laws of the country.

Types of Custom that shaped Hindu Law

Customs are mainly of four types. They are: Local Customs,General Custom, Family Customs, Class or Caste Custom. 

Local Custom

These are the customs or practises that are binding on people belonging to the Hindu community of a particular geographical area. Thus the major part of that particular place culture. 

General custom 

These are the customs or practises that prevail in the country as a whole. Example indian customs and traditions are the major attraction for tourists. Some of them are the ‘Namaste’ which is used to greet people, ‘Tilak’ a ritual remark which is a sign of blessings or auspiciousness. 

Family Custom 

Family Custom can be defined as family tradition or family culture, which they are following from a long time which was given by their ancestors long back. It can also be stated as the environment in which a person is born and brought up by their parents and ancestors.

Class or Caste Custom 

These are the customs for a particular caste or sector or class of people such as traders, agriculture , businesses etc. Every caste or class has different traditions to be followed which they have been following for a long time which can be named as class or caste custom.

Essentials of valid Custom 

Customs can be anything which explains the behavioural pattern of a certain group of people, it can be an act on the basis of which group of people can be classified. They are one of the earliest sources of law. It can alternatively be called as traditions, cultural ideology and cultural philosophy. 

There are various essentials for a custom to be a valid custom and to have the force of law:

Ancient 

The custom must be ancient, which should have been established much earlier and have existed for a long time uniformly. Antiquity of a custom is an essential and foremost element of a valid custom. Customs must belong to a very distant past. It must be followed by people from time immemorial. Though Hindu Law did not fix any particular period of time to judge the antiquity of the custom but English Law fixed year 1189 to test the antiquity of the custom. 

Invariable and continuous

Customs to be valid has to be practiced for a specific period of time and should be still in existence. It could be taken as evidence for having the force of law and for having custom accepted in the eyes of laws. It should be followed without any interruption.  If a custom is not continued for a period of time or is discontinued it comes to an end and such tradition or practise is no longer considered to be a custom.

Clear and unambiguous evidence

There should be clarity in giving the evidence of a custom. The group of people who are following it must prove it through their actions or acts or general instances for the existence of such custom. In collector of Madura v. Mootoo Ramalinga, the court held that if there is clear proof of custom, it will supersede the written text or laws.

Reasonable 

The custom must be supported by the valid reasons for being followed. To consider it as a valid custom it is necessary that such custom has been derived from a series of reasons. It has some reasonableness for its existence. It should be based on the right to be enforceable. It should not be based on certain assumptions which are not acceptable.

Not opposed to morality or public policy 

Customs should not be against the public policy which means it should aim at the well being of the people, good of the people. Customs should not be against the social rules. Customs should not be against the moral values or set of ethical standards that the society follows. 

Not opposed to any law 

Customs to be valid and accepted in the eyes of law, it must not be in derogation with the laws of the country. The customs must not be opposed to dharmashastras. It must not be forbidden by any laws or enactment of the legislature. It is necessary that customs are collateral with the laws to be accepted as a valid custom. 

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Proof of custom 

A custom to be established as a law binding upon the Hindus and it is necessary that its existence have been proven before the court. It must firstly fulfill all the valid essentials of the valid custom. A party who is claiming for the existence of a custom before the court must through the general evidence prove its existence and is consistently followed by the people of community and such a proof of custom will make it a valid and binding law for the society. 

CASE: MST. Kesarbai v. Indarsingh  

In this case the court held that even the judgement on such customs can be presented before the court as evidence of the existence of the custom to support the establishment of such custom and its acceptance in the eyes of law.

Burden of proof / Onus of proof

The person who is ascertaining the establishment of the custom which is in derogation to the laws must prove the existence of such custom and so the burden of proof lies upon such person. 

CASE: HARIHAR PRASAD SINGH V. BALMIKI PRASAD SINGH 

In this case supreme court held that burden of proof lies upon a person who claims its existence and such person have to prove that the custom is valid enough to be established contrary to laws. 

In case where a person wants any custom to be discontinued, again such burden lies upon that person to prove that he has reasonable grounds and reasons for the discontinuance of such customs.

Judicial notice of a Custom 

If a custom is established so well and is very much evident to which a Court takes a judicial notice of it and which has repeatedly brought to notice of the Court through various cases. Such customs are not needed to be proven rather should be established and accepted by the Court without any proof. It is not necessary to be proved in each individual case through various acts or conducts and also the burden of proof lies upon no one. Such customs are held to be a part of general law.

Custom and Usages under codified Hindu Law

With the codification of the Hindu law, many customs were abolished such as the sati system. Sati system which was earlier followed by the Hindus in which a widow sacrifices by sitting on the top of deceased husband’s funeral. Earlier women were not given preference for succession, with the codification of Hindu law it brought into picture The Hindu Succession Act, 1956 it has given equal treatment to sons and daughters as in matters of succession. Narad smriti considered customs to be very powerful. 

Codified Hindu Law has given an important place to the custom and usages and considered it as a parent of Hindu law but it is limited to certain extent as the customs have to be expressly proved or brought to the notice to establish it as law. Custom under ‘Hindu Marriage Act 1955’ has been used in three situations. Firstly, the marriages can be solicited as per the customary tradition which is followed by the party. Secondly, divorce can be obtained by parties on the prevailing custom and usages. Thirdly, adoption can be done as per the customary rules.

Right of inheritance of women before the Act

Position of a woman or a widow as assigned by shastras in society or in her family was described as the state of dependence. They were assumed to be incompetent to men and requires constant protection. They were considered to dependent because they could not read vedas and also they were incompetent to do sacrifices. Because of them being dependent their right to hold property was also disfavoured by the ancient ‘Rishis’.

In smritis, the right to hold property was given to perform various religious ceremonies, where women were declared incompetent to perform and so they were incompetent to hold the property. So, basically in those days holding property with absolute ownership by a woman was not allowed. Though she had nominal right to hold property called stridhan or women estate.  Her husband can even exercise veto power over certain limits to stridhan also. 

Stridhan , Non stridhan, Women estate 

The property of a women belonging to Hindu religion can be classified into two categories:

The properties on which she has absolute ownership

Before the codification of Hindu law, the stridhan and women’s estate were distinguished from each other and after the codification of the act all the property which a Hindu female acquired before the commencement of the act or even subsequent, she will be the absolute owner of such property and the difference was wiped off between the stridhan and women’s estate after the codification of the Hindu Law. 

Coming back to the properties on which she had absolute ownership, having a right to enjoy during her lifetime includes ‘Stridhan’. 

STRIDHAN- This words origin can easily be understood- ‘Stri’ which means women and ‘Dhan’ which means property. Stridhan according to various commentaries includes gifts which she got by her father, mother, brother, gift given kings to their first wife when second wife was brought into the house, the gifts or property which has expressly accepted, the property which has obtained through partition or sale. There are various kinds of stridhan.

• Adhayagni which means gift received by a woman at the time of nuptial fire.
• Adhyavaharika which means gifts received by a bride on her marriage.
• Prtidatta is a gift received by daughter-in-law out of love and affection by mother-in-law and father-in-law.
• Padvannadanika gifts received from elders while wishing them.
• Anvadhyeyaka gifts which she receives from her husband.
• Adhivedanika is the gift that the first wife receives when the second wife is brought into the house.
• Shulk is the money which a woman receives for marriage.
• Bandhu Datta are the gifts which she received from mother and father relatives.
• Vritti is the money which she received for maintenance and from that money the property she purchased is also a stridhan.
• Yavtaka are the gifts given to the wife during the marriage by the guests. 

The properties on which she has limited rights

The women estate will fall under such a category. Before the codification of the Hindu Law the widow acquires the property as the tenant. She is not the absolute owner of the property. She has to give back the property to the heirs of the actual and absolute owner of the property. She was not allowed to alienate the property to any person according to her will and after her death the property will not go to her heirs but to the heirs of the person who is the absolute owner of the property and has all the rights. She is only the limited owner of the property having certain restrictions as mentioned above. 

Case Law

In this case the Court was of the opinion that women character with regard to the property in a women estate is that of the owner but the powers vested in it are limited. It could be stated as she holds such an estate of property to herself and then after her, the husband heirs.

Stridhan and its position before the codification of Hindu law

According to Manu script, a woman cannot acquire property. All the property which belongs to a woman or son or a slave belongs to the person to whom the woman or slave belongs or stays with. It states that it doesn’t mean that women cannot own property rather it means that they can own but they cannot transfer or alienate the property. She was not allowed to alienate the stridhan in which her husband also had right without the consent of her husband.

Stridhan according to judicial decisions 

PRATIBHA RANI V. SURAJ KUMAR & ANR.

In this case the pratibha was married to Mr.suraj kumar. She married Mr.suraj according to the Hindu rituals. During her marriage, her family gave the dowry of Rs. 60,000 including all the gold ornaments, clothes. Soon after marriage her husband started beating her, physically abusing her and then finally she was sent out of the house with her children. They even refused to give back all the valuables which were given to her by her side of relatives that comes under the “stridhan”.

It was held that husband, brother nor son, nor the father cannot alienate any property on which she has absolute right or “Stridhan” without her consent. If such property is alienated without her consent such a person will be liable to pay back the value with interest. 

BHAI SHER JANG SINGH V. SMT. VIRINDER KAUR

In this case the respondent was married to Mr.Jang singh. At the time of marriage she was given various valuables such as clothes, ornaments, furniture from her parents, husband and relatives. The husband was going on a business trip and so he asked the wife to give all the valuables to his parents. She did so. Later she came to know that it was his husband’s plan to desert her. Her in-laws didn’t allow her to wear ornaments which she was gifted at the time of marriage.

She was not given permission to secure them back. Her in-laws misused the ornaments without her permission. The Court ruled that the husband and the wife have joint right on the gifts received during a marriage but certain things like ornaments are meant to be used by the wife only. No other person can exercise any right over the gifts received during marriage other than husband and wife. Everything which is offered to the bride on her marriage by the bride’s relative is her “Stridhan”. Groom side is bound by law to return all such property, ornaments,money and every such belongings.

VINOD KUMAR SETHI V. PUNJAB STATE

The supreme court gave a very important decision with regard to stridhan in this case. The court said the gifts which are received during the marriage are stridhan. It also divided stridhan into three categories. First the gifts which are for her own use. In these kinds of gifts she will have absolute ownership. Secondly, gifts on which she and her husband have a joint right , wife ownership will not be disregarded. Even if marriage breaks or dissolves her right over those gifts will exist. Thirdly those gifts which are given for the use of husband and the in laws, her right won’t be there over such gifts. So, the stridhan will fall under the above two categories only. 

Conclusion

Hindu Law is a law which is considered to be of divine nature as it is believed that it has been developed on the words of god, theories given by god. It is one of the most ancient laws and was written by various rishis. There are various sources of Hindu law. Sources of Hindu law are divided into two categories namely ancient sources and modern sources.

Ancient sources of Hindu law include shruti, smriti, commentaries digests, and customs and usages. Modern sources include judgements and precedents, legislation, justice, equity and good conscience. Among the various ancient sources of Hindu law custom and usages are regarded as one of the most important sources of Hindu law. They are considered as a parent of Hindu law. Custom and usages have thus played a major role in developing Hindu law.

References

1. http://www.legalservicesindia.com/article/329/Sources-of-Hindu-Law.html
2. https://www.lawteacher.net/free-law-essays/islamic-law/customs-is-important-source-of-law.php
3. https://www.lawnn.com/sources-of-Hindu-law/ 
4. https://indiankanoon.org/search/?formInput=Hindu+law

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This article is written by Kashish Kundlani, from Ramaiah Institute of Legal Studies, Bangalore. This article discusses confidentiality and privacy in healthcare.

Introduction

The term ‘privacy’ and ‘confidentiality’ is important in the fiduciary relationship between a doctor and a patient. This relationship of trust arises when the fair expectation of mutual trust is there between the doctor and his patients. 

Medical confidentiality is a concept of doctors maintaining all the information received during the course of the patient’s treatment.

Have you ever wondered why medical confidentiality is so important? the answer is that the patients on a daily basis share their secret or sensitive personal information to the health care providers such as doctors, physicians, hospitals etc. If at any point, the patient feels that the information is not protected and there are chances that it may get divulged, then they might not share the information in the first place, therefore it should be at the topmost priorities of the health care providers to maintain the privacy and confidentiality. 

About Confidentiality and privacy in healthcare

The patient’s confidentiality regarding his/her treatment is of vital importance and should be protected. It is the right of an individual that his/her personal and medical information is kept private or confidential. Such delicate and confidential information about the individual should only be in between him and the doctor, physician, healthcare or health insurance company.

The medical information of the patient given to a health care provider shall not be divulged to others unless the patient gives his consent to disclose such information to others. The confidentiality of a patient should be maintained because the communication of personal information or records may create personal or professional problems while the patients depend on doctors to keep their medical information private.

Though it is very rare to keep the medical records or information completely undisclosed as the very common breach of confidentiality occurs when the doctors pass the medical information to others and refer it as one of their case studies. If this information gets published in professional journals, the identity of the patient is never disclosed and if it appears in any way then the patient has the right to sue.

Apart from the publishing of the case studies, one more threat or risk to the medical privacy is the fact that most of the medical bills are paid by the health insurance company so in that case, it is very difficult to keep the information secret as health records can be viewed by insurance companies as well as by the medical laboratories, researchers etc.

Privacy and confidentiality difference

Privacy applies to a person. Privacy means keeping the medical records restricted or in the vault from the public release because it protects the patient’s identity. 

If in any case, such personal medical information reaches the unauthorized third party and the identity of a patient is ascertained or known without the consent of the patient then such patient can take legal action.

Whereas, confidentiality applies to the data. It refers to an individual’s right to have personal and detectable medical information which remains private between the patient and the physician. It is an extension of privacy.

Confidentiality of the patient is an essential element of the personal regard for the patient and also an essential criterion to uplift an honest and transparent conversation between patient and physicians. Divulged information about the patient’s treatment is important as it helps the doctor understand the case thoroughly and properly.

Privacy and confidentiality: A Right

There are so many rights which the patient has and can duly exercise them whenever they require.

Some of the rights are:- 

• Right to Appropriate Medical Care and Humane Treatment,  
• Right to  Information, 
• The Right to Choose Health Care Provider and Facility, 
• Right to Medical Records, Right to Privacy and Confidentiality etc.

So, the right to privacy and confidentiality is one of the rights given to the patient where the patient has the right to be free from public exposure. But are subject to certain exceptions which are:-

• If the mental or physical condition is in question and the Court orders the patient to surrender himself to a physical and mental examination by a physician or;
• When the public health and safety demands or;
• When the patient himself gives up his right in writing or;
• It can be disclosed to the parents or the legal guardian of the patient where the patient is not of legal age or mentally incapacitated; and if the patient is of legal age, then, the information can be disclosed with his right to choose the person to whom the medical information should be communicated. 

Laws governing the Confidentiality and Privacy of a patient in India

• According to the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, it has been stated under chapter 7- (7.14) that the registered medical practitioner shall not divulge any of the secrets of a patient that have been acquired in the exercise of his/her professional skill or while conducting the treatment.
• Chapter 8- (8.2) states about the consequences of the violation. It explains that if any complaint is made with regards to the professional misconduct of any registered medical practitioner and the same was brought before the Medical Council of Disciplinary action, then, upon the receipt of the complaint, the appropriate medical council will hold an enquiry and will also give the opportunity to the registered medical practitioner to be heard in person or by a pleader. And if during the course of the enquiry or proceeding, the registered medical practitioner is found guilty of committing professional misconduct, then he will be awarded with the punishment as it deems fit with the situation by the Medical Council or they may also direct the removal of his medical practice altogether or for only a specified period.
• And under chapter 8- (8.5),  if the decision is pending on the complaint registered against him, then the appropriate Council may restrict the physician from performing the procedure or practice which is under research/scrutiny.

Other than the ‘code of ethics’ there are no such specific laws in India which protect the privacy and confidentiality of the patient’s data but the Health Ministry has proposed a Digital Information Security in Healthcare Act  (DISHA) in 2018 which is yet to be finalised.

It is regarded as likely to provide a complete legal framework to ensure the privacy of the patients, especially in the era of where more than paper electronic health records are used.

If it gets finalised, then it will give the people complete ownership of their health data. 

For example, if a person visits the doctor and the doctor places the result of the tests into an electronic health record, then that information will be completely protected by the DISHA Act as it will be placed within the healthcare system.

Exception

Absolute privacy and confidentiality is not possible under the healthcare sector because if the doctors start keeping all health records a secret or confidential, despite knowing the fact that if such information is not communicated to the public then it will result in the spread of a dangerous disease from his patient such as HIV/AIDS, Tuberculosis etc. So, sometimes in the interest for the public good, the patient’s data has to be communicated.

Case law 

Mr. Surupsingh Hrya Naik v. State of Maharashtra 23 March, 2007

In this case, the Medical Council Code of Ethics and Right to Information Act, 2005 was in conflict. In this case, it was questioned that making the health records public, under the Right to Information Act would constitute a violation of the right to privacy. So in this situation, the Bombay High Court held that the Right to Information will supersede the Right to Privacy and Confidentiality. As in this case, the petitioner was undergoing the punishment imposed on him by the Honourable Supreme Court during which, he was admitted to the hospital and he underwent surgery as he had been experiencing heart problems, low sugar and blood pressure issues. Here, it was held that the medical records of a person who is sentenced or convicted or is in the police or judicial custody and during that period such person is admitted in the hospital or in any nursing home then, that information should be made available to the person asking for the information but that hospital or the nursing home should be maintained by the State or public authority or any other public body. Only in the exceptional cases, where the reason is also a valid one, the information which is recorded in writing can be denied.

So the decision, in this case, was that the Right to Information Act can supersede the Medical Council Code of Ethics.

Radiological & Imaging Association v. Union of India on 26 August 2011

In this case, the petitioner challenged the circular of the Collector and District Magistrate, Kohlapur which required that the Radiologist and Sonologist should submit the on-line form F under the Pre-conception and Pre-natal Diagnostic Techniques Rules (PNDT) and also to install the SIOB (silent observer) for all the sonography machines, as a part of `save the baby’ campaign for improving sex ratio in the district. The petitioner challenged this on the grounds that it violates the privacy of their patients. The Bombay High Court held that the images are stored in the silent observer and are not transmitted online to any server and thus, it remains fixed in the ultrasound machine and only after the request of the Collector/ the civil surgeon, in the presence of the concerned radiologist/ sonologist/ doctor in-charge of the Ultrasound Clinic, the silent observer will be opened. After all the considerations of the fact, it was held that there is no violation of the doctor’s duty of confidentiality or the patient’s right to privacy. It was further observed that the outline of the right to privacy must be restricted or limited by the public interest and should also move along with each and every provision of the PNDT rules. And also, the use of a silent observer system on a sonograph has necessary safeguards or protection and it does not violate any privacy rights as the declining sex ratio of the country was considered a compelling public interest that could override the right to privacy. 

Mr. X v. Hospital Z

In this case, the respondent took a sample of the blood of the appellant as the blood was to be transfused to another. In the blood sample report of the appellant, it was found out that the appellant is HIV positive. So the appellant’s marriage was called off because without the expressed consent of the appellant, the hospital authorities divulged the information to his family and somehow the information reached the girl’s family.

Due to which the appellant had to leave his place of work and also had to shift to a new city as he was highly criticised and was shunned by the community.

As a result, the appellant approached the National Consumer Dispute Redressal Commission to claim damages against the respondent’s act. The appellant asserted that the respondent had illegally disclosed the appellant’s medical information without his consent and had also breached his duty which was to keep the medical information of the patient’s confidential. The National Consumer Dispute Redressal Commission, however, dismissed their plea and stated that the remedy for such a dispute would be in a Civil Court.

Thereafter, the appellant filed the plea in the Supreme Court and contended that, in the medical profession, the ‘duty of care’ is applicable and it also includes the ‘duty of confidentiality’ and in addition, it was also argued that since the duty was violated or breached, the respondent was liable to pay for the damages caused.

So in the conflict of appellants’ fundamental right to privacy and Ms. A’s fundamental right to be informed about the dangerous disease which was a threat to her life, the Court said that the latter’s right to be informed will override the former’s right. As a result, the respondent’s were held not guilty and the Court also held that the duty to maintain secrecy in the doctor-patient relationship is not absolute and can be broken for the public good or interest. Hence, for this reason also, the respondent was held not guilty.

But the Court, under Section 269 and 270 of the Indian Penal Code, held the appellant guilty on the grounds that he knew that he had a venereal disease but still decided to marry.

Conclusion

The privacy and confidentiality in healthcare should be the utmost priority which has to be maintained by the doctor. The doctor and patient relationship is based on trust and it also contains a lot of information or data which should be kept in secrecy in order to prevent any misuse. The changing environment of every sector from paperwork to electronic records is at a very fast pace and this change from paper to everything online needs protection of data and a complete watch. In India, only the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 is present while many Acts are yet to be made or enforced. 

However, there are so many gaps in the policies made or in-making, because on one side it gives the right to privacy and on the other, it says that anyone can avail the information or seek to access the records under the Right to Information Act, 2005.

The State, for an effective framework, needs to play an active role while making laws regarding privacy and confidentiality in healthcare and it should also enable the participation between the different institutions, both in the private and public sector.

The joint efforts of these sectors or multiple stakeholders can ensure the creation of a strong and powerful foundational framework in the country on which the Right to Privacy and Confidentiality in healthcare can be efficiently constructed.

References

• https://www.surgeryencyclopedia.com/Pa-St/Patient-Confidentiality.html
• https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide
• http://samch.doh.gov.ph/index.php/patients-and-visitors-corner/patients-rights
• http://contacttracing.ashm.org.au/why-are-privacy-and-confidentiality-important
• http://archive.nmji.in/archives/Volume-27/Issue-1/27-1-SFM-III.pdf

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This article is written by Shubhangi Upmanya, a student of Vivekananda Institute of professional studies, Indraprastha University. In it, she has described the evolution and implications of the laws concerning the activities of drones in India.

Introduction

With the advancement in new technologies, there comes along the challenges. The necessity of new laws starts to be felt because these challenges bring with it many legal implications. Talking about new technology, we witness drones flying in the air. Did the question regarding its legality come into your mind or do you know what laws govern it? 

We will discuss all of these questions in this article. But first, let us start with the introduction of drones. What are drones called?

Drones are known as Unmanned Aircraft System (UAS) and Remotely Piloted Aircraft (RPA). Now, which body regulates its functions? So, Civil Aviation Requirements (CAR) that are issued by the Directorate General of Civil Aviation (DGCA) governs its activities.

India initially banned drones because there were no regulations made regarding it but like many countries, India also came up with the draft regulations concerning the activities of drones in the year 2016.

Let us now discuss the history of the laws concerning the activities of drones.

Background of the laws governing the Drones

Considering other countries, drones in India also have many multiple applications in the civilian domain. The drones in the commercial sector can be used for mapping and gathering information whereas in addition to the commercial domain it also has its use in the military domain where its uses include surveillance, collection and interpretation of matters for intelligence. 

The emergence of the technology of drones faced many legal ramifications because of the absence of the rules and the legal standards regulating the use of drones. The first document on the laws governing the activities of the drone came in the form of public notice. It was issued by the Office of the Director-General of Civil Aviation (DGCA) and was notified in the year 2014. This notification made it mandatory to take permission to operate the drone for civil purposes. 

The permission on the subject had to be taken from the AAI (Air Navigation Service provider), defence, Ministry of Home Affairs, and any other security agencies concerned. The other security agencies will not include the DGCA. 

Now, this was the first related document in the form of a notification, as mentioned earlier two years later the first draft regulation was introduced on 21 April 2016. These guidelines were on the use of Unmanned Aerial Vehicle(UAVs) for civilian or recreational purposes. This circular was open to the comments of the various stakeholders. The period for which was decided by the ministry of civil aviation to be of 21 days. 

After one and a half years, in the month of October in the year, 2017 came the second regulations. These guidelines also invited comments with the aim to get itself finalized by the end of that year that is December 2017. These guidelines are known to have improved some topics and issues in those regulations passed in the year 2016 but still, they left out some issues like legal liability, privacy, trespass and import controls.

Many people believe that these guidelines were only introduced so as to end the policy gap that developed due to the blanket ban on the use of drones by civilians. Also that these guidelines were not having the foresight and were just introduced because of the sake to fulfil the necessity.

Scrutiny of the regulations of 2017

These regulations seemed to have been only concentrated on the interference of the UAVs in the operations of the commercial aircraft. It failed to take into consideration the interference caused by two operating drones and the threat to life and property that could result from such situations. It is sensed that in the near future the number of drones will be way more than the commercial aircraft and in that case, a mechanism ensuring the safe operation of drones at low altitudes had to be addressed by these guidelines but it failed to do so. 

Points addressed in these guidelines 

Let us discuss some regulations which have to be followed according to this draft regulation:

• Drone operators to get their drone to operate in the air will be needed to get a Unique Identification Number (UIN) for their UAV also, the drones will have to pass the security clearance. The security clearance will be given by the Ministry of Home Affairs.
• The operator of the drone will have to obtain the UIN only after the documents are submitted. 
• The document should provide the purpose for which the operation is to be conducted, specifications of the drones. 
• These specifications must include- the name of the manufacturer, its type, the year in which it was manufactured, the kind of propulsion system fixed along with the weight and size of the drone has to be provided. 
• Flying capabilities will have to be submitted like height, the capacity to endure, the range up to which it will be in operation, and equipment capabilities. 
• Copy of the flight manual along with the guidelines regarding the maintenance should be submitted. 
• The maintenance guidelines should be those that are issued by the manufacturer.
• These documents have to be verified with the verification proofs. 
• The UIN should be present physically on the drone and electronic or digital identification will not be required. 
• This may be done as this makes it easier for authorities to trace the ownership of a drone. It could be helpful if any drone is recovered in an accident.
• The assignment of the UIN will be subject to security clearance. In this regulation, the specification of the basis of this clearance is not provided and the circular simply states that such situations will be dealt with on the basis of deciding how the case is.
• Drone operators flying UAVs on height above 200 feet above ground level should also obtain an Unmanned Aircraft Operator Permit (UAOP) from the DGCA.
• Drone operators flying drones below 200 feet in controlled airspace will have to take permission only from the local administration.

In the 2016 regulations, only 15 Mini and Micro drones were needed to be operated along with Visual Line of Sight (VLOS). While 2017 regulations make it mandatory that all UAVs, irrespective of weight category have to be operated along with the VLOS and thus keeping it maintained. These guidelines reduced the no-fly zone area around Rashtrapati Bhavan, New Delhi, from 30 km (2016 guidelines) to 5 km (2017 regulations). 

Further, the 2017 guidelines specify these regulations:

• All UAV operators need to follow the rules related to restricted/controlled airspaces.
• Any danger areas that are specified by the Aeronautical Information Publication (by DGCA) or the Ministry of Civil Aviation will have to be taken into consideration. 
• The radius of the no-fly zones has to be according to the prescribed radius by the MHA.
• The military installations were also reduced to 500 meters. 

Relevant regulations concerning Remotely Piloted Aircraft(RPAs)

During drafting, some regulations concerning Remotely Amphibian Vehicle(RAV)/UAV are to be dealt with:

• CAR Section 3 (Air Transport Series- X Part 1);
• AIP Supplement 164 published by the Airports Authority of India; and
• The DGCA RPAS Guidance Manual notified by the DGCA.

Let us discuss each of them now.

Civil Aviation Requirement (CAR) Series X Part 3

(Section 3- Air Transport)

The CAR was issued through the provisions of 15A and 133A of the Aircraft Rules, 1937. It basically provides for all the things that are required for obtaining-

• Unique Identification Number (UIN). 
• Unmanned Aircraft Operator Permit (UAOP). 
• Requirements for carrying out operations for civil Remotely Piloted Aircraft System (RPAS). 

Talking about its applicability, the CAR is applicable to Civil Remotely Piloted Aircraft Systems.

Civil Remotely Piloted Aircraft Systems are remotely piloted from a Remote Pilot Station.

It provides for the definition for the following:

Remotely piloted aircraft (RPA)- It is an unmanned aircraft and is put to test from a remote pilot station.

Further, the Remotely Piloted Aircraft System has 3 components:

1. remotely piloted aircraft, 
2. its associated remote pilot station(s), 
3. command and control links.

Categories of RPA 

RPA is categorized into different categories on the basis of Maximum All-Up-Weight (includes payload):

Application Process 

Under this heading, we will look at the application procedure which has to be followed.

In the case of RPA imported to India- 

• Any entity who is intending to import RPAs to India will have to obtain Equipment Type Approval (ETA).
• This RPAs has to be obtained from WPC Wing, Department of Telecommunication for operating in the de-licensed frequency band(s). 
• The approval has to be valid for a particular make and model. 
• The applicant will apply to DGCA for import clearance.
• The application for the same has to be as per the format given in Annexure-IA. 
• DGFT will then issue the license for the import of RPAs.
• The license will be given on the basis of the import clearance issued by DGCA. 
• The applicant will apply to DGCA for UIN/ UOAP after the receipt of the import license is received.

 In the case of locally purchased RPAs:

• The applicant will have to make certain that locally purchased RPAs should have Equipment Type Approval(ETA) from WPC Wing, DoT operating in the de-licensed frequency band(s). 
• This approval will be valid for a particular make and model. 
• The applicant will have to submit information according to the format given in Annexure-IB.
• The information has to be submitted along with an application for the issue of UIN/ UAOP, as applicable. 
• All applications will be processed on deciding how the case is.
• This could be done through the means of “Digital Sky Platform”. 

Requirements for the issue of Unique Identification Number (UIN) 

The owner of the RPAs should be:

• a citizen of India; 
• the Central Government or any State Government;
• any company or corporation owned or controlled by the Central Government or any State Government;
• a company or a corporate body: 

i) it has to be registered and have its head office in India; 

ii) the chairman of the company with at least two-thirds of its Board of Directors should be citizens of India; and

iii) the company’s substantial ownership and effective control is vested in the citizens of India;

• In case a company or corporation registered outside India, then that company or corporation should have leased the RPAs to any organization mentioned above. 

Documents Required 

• Contact details of the owner/ lessee with valid CIN (Corporate Identity Number), GSTIN(Goods and Services Tax Identification Number) and/ or PAN card will have to be provided. 
• The purpose & base of operation.
• All the specifications of RPAs have to be provided for the application. 
• The weight of the payload.
• RPA’s load-carrying capacity.
• Flight Manual of RPAs.
• Manufacturer’s Operating Manual. 
• Maintenance guidelines provided by Manufacturers for RPAs. 
• The certificate of compliance for No permission- No take off (NPNT) of the manufacturer. 

As we know that the operations related to the use of drones should be carried out keeping in mind the safety measures and to ensure that no one gets hurt through such operations.

Let us look at the safety measures which this document provides for:

• The operator of the drone will be responsible for the safety and security.
• Also, the safety needs of the RPA’s access control has to be in order.
• In case the RPA is lost, the operator should straightaway inform the local police office, Bureau of Civil Aviation Security, and DGCA about it. 
• The operator of all RPA (except Nano RPA) will be responsible for informing about any accident of RPA to the Director of Air Safety, DGCA.
• The Director of Air Safety, DGCA will further intimate to all concerned agencies.
• In case, the RPA gets damaged and is in the condition that it cannot retain its original form, it should be immediately notified to DGCA by the owner/ operator so that the cancellation of UIN can be done.
• The RPAs operator should make certain that all security measures that are set forth in the Security Programme are in order before the operation of each flight takes place. 
• The ground control station (either in use or in-store) should be secured from sabotage or unlawful interference. 
• Without permission from DGCA, the RPAs (issued with UIN) will not be sold or disposed-off in any way to any person or firm. 
• If there are any changes in the contact details mentioned in UIN then the same shall be immediately notified to DGCA and all other concerned agencies.

Further, the RPA operator should carry out a safety risk assessment which includes:

• Hazard identification.
• Determination of grave disorder.
• The likelihood that it could be a threat during the operation.
• Mitigation measures to reduce the already identified risk.
• Verification of actions used for eliminating hazards during operations should be done. 
• The operator has to keep the emergency operation zone under full control.

Now, to keep the privacy matters in view, these guidelines also provide for certain limitations so that no RAV tries to collect any information which may harm the country or an individual’s privacy. 

Operating Limitations

Within the following specified areas, no operations of the drones such as mere flying of the RPA or the carrying out of the aerial photography/remote sensing survey should be conducted. However, permission from DGCA can be taken. The grant of such permission will be on the basis of the nature of the case.

• Inside the distance of 5 km encompassing airports at-

1. Mumbai,
2. Delhi,
3. Chennai,
4. Kolkata,
5. Bengaluru, and
6. Hyderabad.

• Inside the distance of 3 km encompassing any private, civil and defence airports (excluding the airports mentioned above);
• Beyond the PANS-OPS and Obstacle Limitation Surfaces of an operational aerodrome, (whichever is lower). It may be specified by the Ministry of Civil Aviation through Height Restrictions for Safeguarding of Aircraft Operations Rules, 2015. This will also include the amendment that may be done from time to time;
• Within the area which is permanently or temporarily prohibited or restricted and could be termed as a danger area. It also includes Telecommunications Regulatory Authority and Transportation Security Administration, as per the notification issued by Aeronautical Information Publication (AIP);
• Inside 25km from Line of Control, Line of Actual Control and Actual Ground Position Line; 
• Horizontally, beyond 500 meters from the coastline, in the sea. The condition for the same is that the ground station should be on the fixed platform over land;
• Inside 3 km encompassing any installation or facility where military exercise is carried out. However, clearance can be obtained from the local military installation; 
• Within a 5 km radius from Vijay Chowk in Delhi. Also, this will be as per any additional conditions or restrictions which the local law enforcement authorities may impose for security reasons; 
• Within 2 km encompassing any locations or installations that are vital and are notified by the M.H.A. However, clearance can be obtained from MHA; 
• Within 3 km encompassing State Capital’s State Secretariat Complex; 
• The area around the eco-sensitive zones of the Wildlife Sanctuaries and National Parks. The Ministry of Environment, Forests and Climate Change will give notification regarding the areas. However, prior permission can be taken. 

Let us finally look at some legal aspects concerning it given under CAR.

Legal obligations

As already mentioned the DGCA issue UIN and/ or UAOP but there are restrictions to it such as- 

1. Rights should be issued to the RPA operator with a view that it does not go against any right of the owner or resident of any land or building or over which the operations will be conducted. 
2. Also while issuing it, the rights and remedies which a person may have in respect of any injury to persons or damage to property caused directly or indirectly by the RPA should also be taken into consideration.
3. The State Law if provides for certain limitations considering the rights of any person, the issue should be granted according to that Local Law.
4. If under any circumstances there is a violation of the guidelines of the CAR, UIN/ UAOP issued by DGCA shall be suspended or cancelled. 
5. Legal penalties under the Indian Penal Code will also be imposed in case of breach of provisions of CAR or falsification of any record or document.
6. The Sections of the I.P.C under which the punishment may be given are 287, 336, 337, 338 or any other relevant section.

Now, we shall move towards discussing the second set of guidelines regulating the operation of drones.

AIP Supplement 164 of 2018 

These guidelines provide general operating procedures. Before getting started to discuss the procedures, the categories provided under these guidelines are the same as mentioned above in the article when discussing CAR.

General operating procedures

• All the RPA will have to obtain a Unique Identification Number (UIN) from DGCA.

Exception-

RPA in Nano category flying at a maximum of 50 ft AGL in uncontrolled airspace and National Technical Research Organisation, Aviation Research Centre and Central Intelligence Agency (NTRC, ARC, CIA) operated RPA.

• Every RPA will have to get an Unmanned Aircraft Operator Permit (UAOP) from DGCA. 

Exception- 

Except for Nano RPA and Micro RPA operating in uncontrolled airspace, below 50 ft AGL and 200 ft AGL respectively. NTRO, ARC and CIA operated RPA also is the exception.

• Every RPA operator will have to inform the local police office concerned. It should be informed in writing before commencing the operations. 

Exception- 

Except for Nano RPA carrying out operations at a maximum of 50 ft AGL.

• As per Section 9 of CAR, only the remote pilots who have attained 18 years of age, passed 10th class exam in English and who are trained for the ground and practical operations will be allowed to operate the RPA.

Exception- Except for Remote Pilots who are to operate in uncontrolled airspace, any RPA belonging to Nano or Micro category.

•  In uncontrolled airspace, if any owner, operator or remote pilot of RPA is planning to operate, he should acknowledge his responsibilities regarding all aspects of flight safety which could be foreseen, during such operations.

Exception- owner, operator and remote pilot intending to operate RPA belonging to Nano and Micro category.

Equipment required

When the RPA has to be operated in uncontrolled airspace:

1. Global Navigation Satellite System For horizontal and vertical position fixing 
2. Autonomous Flight Termination System or Return Home option (RH) 
3. Flashing anti-collision strobe lights 
4. Radio Frequency Identification and GSM SIM Card
5. NPNT(No Permission- No Takeoff) compliance for application-based real-time tracking
6. Fire-resistant identification plate inscribed with UIN 
7. Flight controller with flight data logging capability

When the RPA has to be operated in controlled airspace-

1. Secondary Surveillance Radar(SSR) transponder (Mode ‘C’ or ‘S’) or ADS-B OUT(automatic dependent surveillance-broadcast) equipment; 
2. Barometric equipment with capability for remote subscale setting; 
3. Geo-fencing capability; 
4. Detection and Avoid capability. 

Further during operations in controlled airspace the RPA operator in order to ensure that the operation is running smoothly has to develop two-way communication with the ATS unit. While running the operation in controlled airspace the remote operator has to build the communication channel before entering the controlled airspace.

Now, the question is what will be the means of communication? So, for VLOS operations below 400 ft. AGL the telephone can act as a relevant means of communication between the operator and the ATS unit.

Advancing in the following guidelines, we may notice there is a mention of the Standard Operating Procedure (SOP). Let us look at what all has to be provided by the remote operator to constitute SOP.

Standard Operating Procedures

It includes the following:

• The information about the launch and recovery of RPA; 
• Avoidance of the collision with other manned aircraft, unmanned aircraft, and obstacles; 
• Noise abatement; 
• Mitigation of hazard to persons or property; 
• Restrictions regarding local airspace; 
• Right-of-way; 
• Compliance to NPNT requirements;
• Carriage of Payload; 
• Protection of privacy of every individual; 
• Submission of Flight Plan; 
• Building communication channels with ATC; 
• RPA emergency including loss of C2(command and control link) link and safe recovery of RPA in case of RPA system failure.

Digital Sky Platform

What is the digital sky platform?

Well, it is an online IT platform that is developed for handling UIN, UAOP applications. It also gives permission to fly RPAs in India. The link for which is available on the Homepage of DGCA website www.dgca.nic.in.

It came into operation from 1st December 2018. The Digital Sky Platform can be accessed through mobile or web-based applications. These applications will be provided by any authorized Digital Sky Service Providers (DSP).

The guidelines regarding it are provided in the guidelines given under the AIP Supplement 164 of 2018 which are as follows:

• All the RPA intending to operate up to 50 ft. (15 m) AGL in uncontrolled airspace or enclosed premises should obtain permission through the Digital Sky Platform before the flight is undertaken.

It includes- RPA owned or operated by NTRO, ARC and Central Intelligence Agencies, RPA operators.

It excludes- flights of Nano RPAs operator.

• RPA Operators have to submit a flight plan of RPA flights they are intending to undertake. This will be done through the Digital Sky Platform for obtaining operational approval. 
• Further, what will Digital Sky do is, indicate whether the proposed flight comes under RED, AMBER or GREEN Zones. By this, it will help to provide the required guidance for further approval, if required.

Provision of Air Traffic Services

• Until the separation standards are set and provided by the International Civil Aviation Organization or DGCA, Air Traffic Services is not under any obligation to provide separation between manned and unmanned aircraft or between two unmanned aircraft. 
• And the unmanned aircraft until such standards are published, will be allowed to operate in segregated airspace. The airspace for it should be clear of the flight paths of manned IFR(Instrument Flight Rules) flights.
• RPAs operating in VLOS will be called “VFR flights” and it will operate below 400 ft. AGL in uncontrolled and controlled airspace and below OLS/PANS-OPS surfaces in the proximity of airports but outside the No Drone Zones (NDZ). 
• The flight crew of running the operations of the manned IFR and VFR flights should be aware of the possibility of RPAs flights below 400 ft. AGL.
• Those RPA operators who are intending to carry out operations within controlled airspace with SSR transponder connected into RPA equipped will be required to obtain SSR code before the operations of the flight are commenced.
• The Code can be obtained from the nearest ATC center.
• If ATC requires, the remote pilot will have to switch off the transponder in order to avoid the generation of alarms on Airborne Collision Avoidance Systems (ACAS) and Air Traffic Control Systems.

Let us move on to discussing the last set of guidelines.

The DGCA RPAs Guidance Manual

This guidance manual in its first Chapter provides for the requirement for the acquisition of the RPAs. We have already discussed these requirements under the heading CAR.

So, let us move forward to discussing Chapter 2. This Chapter provides for the provisions related to Unique Identification Number.

Unique Identification Number(UIN)

• All RPAs will have to obtain UIN (Except Nano flying up to 50 ft. in uncontrolled and enclosed premises and RPA owned by NTRO, ARC and Central Intelligence Agencies).
• All others, except for the foreign entities are fully eligible for applying for obtaining UIN. 
• Import clearance should be obtained from DGCA and also the import license from DGFT is required before applying for UIN in the case of imported RPAs.
• In the case of locally purchased RPAs, ETA from WPC along with NPNT compliance certificate from the original equipment manufacturer has to be obtained in order to apply for UIN. 
• Required supporting documents have to be attached to the filled application for UIN. The fee for which is Rs. 1000/- and has to be submitted through the Digital sky platform. 

The eligible applicant, after obtaining UIN can apply for UAOP through the Digital Sky platform.

The following do not need to obtain UAOP:

1. Nano RPA operates below 50 feet (15 m) AGL in uncontrolled airspace.
2. Micro RPA operating below 200 feet (60 m) AGL in uncontrolled airspace premises.
3. RPA owned and operated by the NTRO, ARC and Central Intelligence agencies. 

Conclusion

Imagine the future wherein the RPAs top up the abilities of human beings, or where it maps the calamities of the natural disaster and the most interesting- RPAs delivering food packages to you. Well, it is already been assumed by many that RPAs in the near future will enhance human mobility by flying where humans can’t reach easily.

After all this, the regulations regarding such operations have to be taken into due consideration but even after this many regulation drones can many times be seen flying in the airspace. Recently a public notice dated 13th January 2020 was published reminding the requirements present in CAR and giving an opportunity for the voluntary disclosure of such drones that are not registered. The Government is taking a step ahead to make it work the way it is, therefore as its citizens we need to ensure that the guidelines are fully met. 

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This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article explores a brief history of the Air (Prevention and Control of Air Pollution) Act 1981 and the reason for its introduction. It explores the provisions for the setting up of Boards for pollution control and regulation, along with looking at some case studies regarding clean air.  

Introduction

Many of us must be aware of the plight of Delhi residents in the winter. The winter fog and the smoke from stubble burning, vehicles, carried by the incoming northern winds, combine to make Delhi a ‘gas chamber’. In 2019, Delhi was ranked as one of the most polluted major cities in the world. In these circumstances, we must examine the law framed by India to combat air pollution and whether it is enough to combat air pollution.

What was the need for this Act?

Sweden first suggested to the United Nations that there should be a global conference to discuss and prevent pollution and degradation of natural resources. Therefore, with the passing of the General Assembly Resolution 2398, the United Nations Conference on the Human Environment was held in Stockholm in June 1972.  In this conference, it was decided that the countries would undertake steps to preserve the natural resources, which also includes air. Accordingly, the Indian government enacted specific laws under Article 253 of the Constitution for the preservation of natural resources and the law enacted for air preservation was The Air (Prevention and Control of Air Pollution) Act, 1981. 

The Act’s Preamble states that this Act is for the prevention, control and abatement of air pollution and the burden of fulfilling such purposes falls on the Boards established under this Act. 

What is the scope of this Act?

This Act applies to the whole of India. The Act contains certain definitions which fall under the scope of this Act. Knowing these definitions is important as they will help to understand what qualifies as air pollution according to Indian law so that air polluters can be punished under this Act.

What is an ‘air pollutant’ and what is ‘air pollution’? 

• Section 2(a) defines ‘air pollutant’ as any solid, liquid or gaseous substance that may be harming or injuring the environment, humans, other living creatures, plants or even property. Through a 1987 Amendment, the noise was also included in the list of substances that are deemed to be harmful to the environment. Therefore, this Act also provides for the regulation of noise pollution. 
• Section 2(b) defines ‘air pollution’ as the presence of any air pollutant in the atmosphere. 

What Boards are set up under this Act?

• Section 2(f) classifies the Boards to be set up under this Act under two categories: Central and State Boards. 
• Section 2(g) defines ‘Central Board’ as being the same as the ‘Central Pollution Control Board’ which has been constituted under Section 3 of the Water (Prevention and Control of Pollution) Act 1974, which stipulates that this Board shall be set up by the Central Government of India, for the purposes of the Act. This Board’s powers extend to the whole of India. 
• Section 6 states that in the case of Union Territories, the Central Board shall exercise the powers of a State Board under that Act, or it may even delegate these powers or functions to any person or body of persons.
• Section 2(o) defines ‘ State Board’ as a Board set up in those states where the Water (Prevention and Control of Pollution) Act, 1974 is in effect and where the State Governments have decided to set up these Boards. This Act also applies to States where the Water (Prevention and Control of Pollution) Act 1974 is not in effect. ‘State Board’ is the same as the ’State Pollution Control Board’.  
• Therefore, we observe that while the Water ( Prevention and Control of Pollution) Act 1974 in the first instance, applies to only those States in which it has been given effect but the Air ( Prevention and Control of Air Pollution) Act 1981 applies to the whole of India in the first instance. 

Constitution of the Boards

Section 3 and Section 4 of this Act state that the appropriate powers and functions shall be given to the Central Board and the State Boards respectively, and they shall exercise these powers and not go outside the ambit of these powers.

Constitution of Central Pollution Control Board

Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 explains the constitution of the Central Pollution Control Board-

• It shall have a full-time Chairman, having special knowledge and practical expertise in matters of environmental protection and having knowledge and experience in administering institutions dealing with such matters. This Chairman will be nominated by the Central Government.
• It shall have a full-time Secretary, who shall have the qualifications, knowledge and experience of scientific, engineering and management aspects of environmental protection. The Secretary will be appointed by the Central Government.
• It shall have not more than five officials nominated by the Central Government to represent that Government.
• It shall not have more than five members nominated by the Central Government, chosen from among the members of the State Boards.
• It shall not have more than three officials who represent the interests of the fishery, agriculture, or any other industry or trade, which the Government may think fit to be represented. 
• It shall have 2 persons from the companies or corporations, owned, managed or controlled by the Central Government, nominated by that Government.

Constitution of State Pollution Control Board

Section 5(2) of the Act explains the constitution of a State Board-

• A person, nominated by the State Government, who has special knowledge and practical experience of dealing with issues related to environmental protection, shall serve as the Chairman of the State Pollution Control Board. This Chairman may be whole-time or part-time. This decision will be left to the discretion of the State Government. 
• The Board shall further constitute of not more than five officials, nominated by the State Government, to serve as representatives of that Government.
• Not more than five people from the local authorities, nominated by the State Government.
• Not more than three officials nominated by the State Government, who are believed to be representing the interests of the industries of fishery, agriculture or any other industry or trade which the Central Government thinks ought to be represented. 
• Two persons from companies or corporations owned, managed or controlled by the State Government, and are nominated by that State Government. 

Powers and functions of the Boards

Functions of the Pollution Control Boards

Functions of the Central Board

Section 16 lays down the functions of the Central Board-

• The Board shall make efforts for the prevention, abatement and control of air pollution in the country and may advise the Central Government on the same.
• It shall plan and implement a nationwide programme for the prevention, control and abatement of air pollution.
• It shall coordinate the activities of the States and shall resolve the disputes that arise between them.
• It shall provide technical assistance to the Boards, carry out investigations and research relating to air pollution.
• It shall plan and implement training programmes for the persons to be involved in those programmes.
• It shall help combat air pollution through a mass media programme.
• It shall collect, compile and publish statistical data relating to air pollution and shall also prepare manuals, codes or guides relating to measures to combat air pollution.
• It shall lay down standards for the quality of air and shall perform other functions as prescribed. 
• The Board shall also set up a laboratory or multiple laboratories to enable the Board to perform its functions effectively.

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Functions of the State Pollution Control Boards

Section 17 lays down the functions to be performed by the State Boards-

• The State Board shall plan and implement comprehensive programmes for prevention, control or abatement of air pollution. It shall also advise the State Government on such matters.
• It shall collect and disseminate information regarding air pollution. It shall organise training and mass awareness programmes regarding air pollution control, prevention and abatement.
• It shall inspect, at reasonable times, any control equipment, industrial plant or manufacturing process and give orders to the people in charge to further the purposes of combating air pollution. 
• It shall inspect and assess the air quality at designated air pollution control areas as it may think necessary. 
• It shall lay down standards for the emission of air pollutants into the atmosphere from automobiles or industries, or any other pollutant from any source. However, a ship or aircraft cannot come into the ambit of a source.
• The State Boards shall also advise the State Government regarding the suitability of any location which is to be used for setting up any industry, keeping in mind the air quality which would be impacted if that industry is set up.
• The Boards shall also set up labs in their States, to enable the State Board to perform its functions effectively.

Powers of the Boards

• Power to give directions: Section 18 states that the Central Board shall follow the directions of the Central Government while the State Boards shall follow the directions of the respective State Governments. Where a decision of the Central Board and a State Government direction are conflicting, the matter shall go to the Central Government for resolution.   
• Where the Central Government thinks that a grave emergency has arisen due to the State Board defaulting in complying with the orders of the Central Board, then it can perform the functions of the State Board. 

Section 31A prescribes that the Central Government may issue directions to any person, officer or authority and such party shall be bound to follow the directions. These instructions should be within the powers and functions of the Board, and include- 

1. Closure, prohibition, regulation of any industry, process or operation.
2. Stoppage or regulation of supply of water, electricity, or any other service.  

Power to declare air pollution areas: Section 19 of the Act states that the State Government, after consulting the State Board, may declare an area within the State as an ‘air pollution area’.  The State Government may also order for the extension or reduction of an air pollution area or may even merge one or more areas to make a new pollution area or any part or parts thereof. 

The State Government after consulting the State Board, may also by notification in the Official Gazette, prohibit the use of any fuel or appliance that may cause or is likely to cause air pollution. The State Government may also prohibit the burning of any material (which is not a fuel) if it causes or is likely to cause air pollution. This is also done after consultations with the respective State Board.

Power to give restrictions for ensuring standards for emissions from automobiles: Section 20 states that the State Government may, after consulting the State Board, issue instructions to the authority responsible for the registration of vehicles under the Motor Vehicles Act 1939 and such authority shall be bound to follow these instructions. This is done to ensure that the standards of emission prescribed under Section 17(1)(g) are complied with.

Restrictions on use of certain industrial plants: Section 21 talks about setting up of industrial plants in compliance and with the consent of the respective State Board. It prescribes the procedure for making an application to the Board, for which a decision has to be made and intimated to the applicant regarding whether he has permission to set up the plant or not. The conditions are also given for setting up the plant. These should be complied with, otherwise, the permission for the plant can be revoked. The conditions under Section 21(5) are-

1. The necessary control equipment as stipulated by the State Board has to be installed in the plant. This equipment has to be changed according to the decisions and instructions of the State Board. The equipment has to be kept in good running condition. 
2. Chimneys should be erected when and where the Board so directs.

Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standard laid down by State Board: Section 22 states that no person heading an industry shall emit any excess amount of emissions than the standards set out by the State Board. 

Power of Board to make application to Court for restraining a person from causing air pollution: Under Section 22A, when the Board believes that there is excess emission being caused by a person running an industrial plant in any air pollution area, then the Board can make an application before the Court to restrain him from doing the same. 

Furnishing of information to State Board and other agencies in certain cases: Under Section 23, where any emission over the prescribed limit occurs due to an accident or unforeseen event, the person operating the industrial plant shall report about the facts of the same to the State Board and other relevant authorities, to which they shall take remedial action as soon as possible. 

Power of entry and inspection: Under Section 24, a person authorised by the State Board shall have the power to gain entry into any place for carrying out the performance of any of the functions assigned to him. He may examine and inspect any control equipment, industrial plant, record, register or any other document or object or any place which he has reason to believe was used for the commission of any offence under this Act. the person in charge of these equipment, plants, record etc shall assist the person from the State Board to perform the functions. Not doing so, will be an offence.  

Power to obtain information: In Section 25, it is stated that the State Board or any person empowered under it shall have the power to call the person operating such plant or control equipment about any information regarding the type of air pollutant and the amount of emissions released by such plant or equipment. It shall also carry out inspections for verifying the same. 

Power to take samples from air or emission and procedure to be followed: Section 26(1) states that samples of air or emissions may be taken from any chimney, flue, duct or any outlet as prescribed. The samples shall be admissible in legal proceedings only on the compliance of conditions laid down in Section 26(3) and 26(4). These are-

1. The person taking the sample shall notify the occupier or agent of such occupier, of the place from where the sample has been taken.
2. The sample shall be collected in the presence of the occupier or his agent.
3. The sample shall be placed in a container, marked and sealed. The container shall be signed by both the person taking the sample and the occupier or his agent. This sample shall be sent to labs for testing and analysis.

In a condition where the occupier or agent wilfully absents himself, then the sample shall be put into the container and be signed by the person taking the sample only. In a condition where the sample is being taken in the presence of the occupier or agent, and such occupier or agent refuses to sign the container, the person taking the sample shall sign the container. 

Penalties and procedures under this Act

Penalties

Under Section 37, whoever fails to comply with the provisions of Section 21, 22 and the directions issued under Section 31A, can be sentenced to imprisonment for a term of one year and six months. This sentence can be extended to six years and with fine, if the requisite compliances under the aforesaid sections are still not carried out, with an additional fine of five thousand rupees every day.

Under Section 38, penalties for certain acts are laid down. These acts are-

1. Destroying, defacing, removing etc any pillar, post, stake or notice fixed in the ground under the authority of the Board.
2. Obstruction of any person acting under orders of the Board from exercising his powers and functions under the Act.
3. Damaging any property belonging to the Board.
4. Failure to furnish information to an officer or any employee of the Board, which is required by such officer or employee.
5. Failure to inform about the excess release of emissions than the standard set by the State Board. Even an apprehension of the release of excess emissions should be informed to the State Board.
6. Giving false statements to Board authorities when furnishing information.
7. Giving false information to the Board, for getting permission under Section 21 i.e. permission for setting up industrial plants.

These are offences that shall be punishable with imprisonment which may extend to three months with fine, which may extend to ten thousand rupees or both.

• Under Section 39, any order or direction which has been flouted, and for which there is no punishment anywhere in the Act, shall be punishable with three months imprisonment or fine of three thousand rupees or both. If failure continues, there shall be a fine of an additional five thousand rupees every day.
• Section 40 of this Act talks about offences by companies. If an offence is committed by a company, every such person shall be deemed to be guilty, who is directly in charge of the company, who was responsible to the company for the conduct of its business as well as the company itself. He shall be punished according to the provisions of this Act. However, where such an offence was committed without the knowledge of such person, or where he had made full efforts and due diligence to stop these offences, this person shall not be held liable.
• Section 40(2) further states that where the offence was committed after taking the consent of the director, manager, secretary or other officer or happened due to the neglect of the aforesaid people, then they shall be deemed guilty and can be punished according to the Act.

Section 40 includes two definitions-

1. Company: Any corporate body, including a firm or another association of individuals.
2. Director: In relation to a firm, it means a partner in the firm.

Section 41 talks about offences committed by governmental departments. Where any government department has committed an offence under this Act, then the head of that department shall be liable to be proceeded and accordingly punished. However, if the Head of Department had no knowledge of the committing of these offences, or had practised due diligence to prevent these offences from happening, he shall not be held liable.

Furthermore, as provided under Section 41(2), if such Head of Department had consented to, or neglected to prevent, the commission of these offences, then such person shall be liable to be proceeded against and punished accordingly.

Procedures

Sections 42 to 46 cover procedures. Section 42 states that no suit, prosecution or another legal proceeding shall lie against the government, any officer of the government or any member, employee or officer of the Board, where the actions are done by such body or persons are done or intended to be done in good faith in pursuance of this Act.

Section 43 states that the Court shall take cognizance of only those offences where the complaint is made by-

1. A Board or any officer authorised under it
2. Any person who has given notice of not less than sixty days, of the alleged offence and his intention to make a complaint to the Board or an officer authorised by it.

No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try any offence punishable under this Act.

• Section 44 states that all members, officers and other employees shall be deemed to be acting as public servants under Section 21 of the Indian Penal Code 1860.
• Section 45 states that the Central Board shall provide information in the form of data, statistics, reports or another form of information etc to the Central Government and the State Board shall also provide information in these forms, both to the Central Board and the State Government.
• Section 46 involves a bar of jurisdiction. It states that no civil court shall have jurisdiction in any matter which an Appellate Authority formed under this Act is empowered by this Act to decide, nor should an injunction be granted in respect of any action taken under the pursuance of the powers of this Act.  

Judicial pronouncements and case studies regarding clean air

M.C. Mehta v. Union of India 1991 SCR (1) 866 (Vehicular Pollution Case)

• In this case, a writ petition was filed by M.C. Mehta regarding air pollution caused due to vehicular emissions. He prayed for the Court to pass appropriate orders to prevent pollution.
• The Court held that environmental protection is the responsibility of the State as enshrined in the Directive Principles of State Policy and Articles 48A and 51A of the Constitution. The Supreme Court observed that the right to a healthy environment was a basic human right and this included the right to clean air, covered under the ambit of Article 21 of the Constitution. In this way, the Court expanded the scope of Article 21 to include the right to a healthy environment and clean air under the fundamental rights. 
• This paved the way for the introduction of lead-free petrol supply in Delhi and paved the way for the introduction of compressed natural gas (CNG). The Court also assisted in setting up a committee that was not just aimed at litigation but also finding long term solutions to the air pollution problem in Delhi.
• Similarly, in Subhash Kumar v. State of Bihar 1991, it was held that right to life under Article 21 included the right to a healthy and safe environment, which in turn included the right to pollution-free air and water for the full enjoyment of life. It was held that municipalities and other governmental bodies had an obligation of taking positive measures to ensure a healthy environment. 

The curious case of Delhi

• Air pollution in Delhi has been a major problem for many years but started coming into the limelight in the 1990s. With the advent of the 1981 Act, pollution control boards were set up and the number of legislations on the environment increased. 
• In 1996, the Supreme Court issued a suo moto notice to the Delhi government, asking it to submit an action plan for clean air. The cases instituted by M.C. Mehta and the general public furore over the state of the air further aggravated the issue. The Environment Pollution (Prevention and Control) Authority (EPCA) was set up along with the National Clean Air Programme (NCAP).
• On the basis of a report of the EPCA, the Supreme Court accordingly issued orders for vehicles to run on compressed natural gas (CNG). This was a major success. However, in the coming years, the number of vehicles increased from 4.24 million in 2004 to more than 10.8 million in March 2018, in addition to an increase in stubble burning and construction activities (many of which are illegal). 
• Over the years, monitoring stations have been set up across Delhi to measure the amount of particulate matter in the air. Public awareness and efforts have definitely increased, with measures like Odd-even scheme and Supreme Court orders on cracker bans, construction activities bans; being implemented. 
• In 2016, after the heavy smog wreaked havoc in Delhi, the Supreme Court again asked the national government to make a plan to combat such episodes of air pollution. This programme came to be known as the Graded Response Action Plan (GRAP).
• This programme entails the identification of high-pollution areas within Delhi through monitoring and measuring air quality, and then identifying the problems and formulating local actions for those areas. 
• There is no doubt that Delhi still suffers from an air crisis every year. One must understand that this occurs due to a host of factors which need mass action. 

Conclusion

It is observed that the legislation to deal with air pollution is pretty strict and well formulated. It encompasses the scientific aspects of managing air pollution with the actions of State and Central bodies. The Pollution Control Boards are bestowed with a wide range of powers and functions to check emission limits and take appropriate action. However, enforcement still remains lax.

References

1. https://www.news18.com/photogallery/india/delhi-pollution-photos-delhi-tops-the-list-of-most-polluted-city-in-the-world-2369829-2.html 
2. https://envibrary.com/the-air-act-1981/ 
3. http://www.wealthywaste.com/the-air-prevention-and-control-of-pollution-act-1981 
4. http://www.lexpress.in/environment/right-clean-healthy-environment-fundamental-right-india 
5. https://www.downtoearth.org.in/blog/india/fighting-air-pollution-in-delhi-for-2-decades-a-short-but-lethal-history-67585

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This article has been written by Sushant Biswakarma from Symbiosis Law School, NOIDA. This article tells the step by step procedure for divorce by mutual consent under Hindu Law, along with its essentials and discusses the directory nature of the statutorily prescribed waiting period.

Introduction

Marriage has always been considered as a holy relationship in every religion around the world. It is said that relationships are made in heaven and couples just meet each other on earth. It is not just a relationship between two people, but a relationship between two different families. Two different people from two different families come together to get married and start a new family. Anyhow, marriage is still an agreement and like all other forms of agreements, it can also be brought to an end.

There are multiple legislations in India regarding marriage such as The Indian Christian Marriage Act, 1872; Muslim Marriage Act, Special Marriage Act, and Hindu Marriage Act. In this article, we are going to deal only with the Hindu Marriage Act, specifically how to end a marriage by mutual consent as per the Act.

Dissolution of marriage under the Hindu Marriage Act

If marriage solemnized under the Hindu Marriage Act is valid, and there is a reason to end it – it can be ended by way of either Judicial Separation under Section 10 or Divorce under Section 13 and Section 13B. Section 13A provides alternate reliefs in divorce proceedings.

Judicial Separation – (Section 10)

Judicial Separation is an alternative to divorce – however, it does not put the marriage to an end. The parties do not cohabit, but other obligations of marriage still remain in existence. The parties still remain husband and wife, even though they might live separately and do not have a sexual relationship. One cannot remarry in case of Judicial Separation.

Even though the parties remain spouses, they must not have sexual intercourse without the other party’s consent during judicial separation. Section 376B of the IPC states that if a man tries to have sexual intercourse with his wife without her consent during judicial separation, he may face a prison sentence for up to 2 years and/or fine.

Section 10 of the act mentions that the grounds of judicial separation are the same as the grounds for divorce provided under Section 13(1) of the Act. 

Divorce – (Section 13)

In the case of divorce, the marriage is brought to a permanent end. All marital obligations are lifted off the parties and they are free to remarry. The parties no longer remain husband and wife. 

The parties are free to choose whether they want a decree of judicial separation or divorce, the court may grant the decree if satisfied.

Grounds for Judicial Separation and Divorce – Section 13(1)

• Adultery: has sexual intercourse with any other person than their spouse.
• Cruelty: treats their spouse with cruel behaviour.
• Desertion: has left their spouse for a period of at least two years without any reasonable grounds.
• Conversion: has converted to some other religion.
• Insanity: suffers from any mental disorder. 
• Leprosy: suffers from an incurable and contagious disease.
• Renounced the world: has renounced the world to unite with God or for the search of the truth.
• Has not been heard alive for seven years.

Divorce by mutual consent – (Section 13B)

In a case where none of the aforementioned grounds is available, but the parties decide they do not want to remain married to each other or can not live with one another they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.

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Essentials of divorce by mutual consent

Parties should be living separately

Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1 year before filing the petition.

This period of one year where the parties have lived separately must be immediately before the filing of the petition. “Living Separately” in the context of Section 13B does not necessarily mean physically living in different places. The parties could be living in the same house, sharing the same roof but there can still be a distance between the two.

If that is the case then they are not considered to be living as husband and wife, which qualifies as living separately.

The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash. Wherein it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.

Parties have not been able to live together

It is said that relationships are made in heaven, however sometimes the holy relationships do not work for long on Earth. These days divorce is taken very lightly and people go for it as a first resort whereas the intention behind the law of divorce was to make it a last resort. Many times, in a marriage it so happens that the spouses can’t stand each other and can no longer live together happily. That is when they opt for divorce by mutual consent.

Sadly enough, it often happens that the parties are not able to live together even after trying mediation and reconciliation and putting multiple efforts, before filing a divorce petition by mutual consent.

In Pradeep Pant & anr v. Govt of NCT Delhi, the parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Despite putting their best efforts they were unable to reconcile their marriage and could not see themselves living together as husband and wife ever again. A divorce petition was jointly filed and issues such as maintenance and custody of their child were decided and agreed upon by both.

The wife would get custody of their daughter and the husband would reserve visitation rights, it was mutually agreed upon by both of them. Both parties gave their free consent without any undue influence. The court observed that there was no scope of reconciliation and granted a decree of divorce.

After filing a petition for divorce by mutual consent, the parties are given a waiting period of  6 months, also known as a cooling period and it may extend up to 18 months. During this time the parties must introspect and think about their decision.

If the parties are still not able to live together after the cooling period, then the divorce petition shall be passed by the district judge.

They have mutually agreed that marriage should be resolved

In some situations – the parties may choose to give their marriage another chance and mutually resolve their marriage. During the waiting period, the parties may sometimes be able to reconcile and make their relationship work.

After the first motion has been passed, the parties have a total of 18 months to file for second motion and if they fail to do so within those 18 months, both parties are deemed to have withdrawn their consent mutually.

Procedure for getting a decree of divorce by mutual consent

Step 1: Jointly filing a petition

A divorce petition in the form of an affidavit is to be signed by both parties and filed before a family court in their region.

Jurisdiction of the court should not be a major issue in filing for divorce as the petition can be filed within the local limits of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties currently resides.

As mentioned earlier, the parties to a marriage must be living separately for at least one year before filing the petition.

Step 2: First Motion

After filing the petition the parties shall appear before the court and give their statements. If the court is satisfied and the statements are recorded then the first motion is said to have been passed, following which a waiting period of 6 months will be given to the parties before they are able to file the second motion.

This waiting period as statutorily prescribed under Section 13B(2) of the Act is for the parties to introspect and think about their decision. It is a time given for them to reconcile and give their marriage another chance, just in case they decide to change their mind.

Anyhow, sometimes the court may be convinced that the marriage has reached the point of no return and the waiting period will only expand their misery. In that case, this period can be waived off by the court. This period if not waived off can extend up to 18 months. If the parties still want to get divorced they may now file for second motion. The second motion can be filed only after the waiting period of 6 months and before 18 months has elapsed.

Step 3: Second Motion

This is when final hearings take place and statements are recorded again. If the issues of alimony and child custody (if any) are mutually agreed upon the decree of divorce is passed after this step. The marriage has finally ended by now and divorce by mutual consent has been granted.

Is the six month waiting period mandatory?

Getting a divorce is a very serious matter, it can destroy and separate families. But, on the other hand, the parties get to exercise their right to choose and pursue their happiness as there is no point to continue being in a matrimonial relationship if the spouses are not happy. For couples who go for filing divorce by mutual consent are given time to try and make their marriage work. They are advised to go for mediation and reconciliation to sort their issues out.

However, many times these efforts don’t work and people actually go through with the divorce.

While filing for divorce by mutual consent the parties have already lived separately for a period of over one year per the statutory requirement. So, there is very little to no chance that they can make the marriage work again. 

In the case of Amardeep Singh v. Harveen Kaur, it was observed that the couple had internal disputes and their married life was not the best one. The disputes escalated really bad and many civil and criminal proceedings were followed.

They mutually decided to resolve all the disputes and file for divorce by mutual consent. The custody of their children would be with the husband, and permanent alimony was paid to the wife.

After all these issues were mutually sorted by the parties they just wanted a quick divorce and sought to waive off the waiting period. The parties could no longer be with each other and the waiting period would only prolong their agony.

Keeping this in view, Hon’ble Supreme Court laid down the waiting period of six months can be waived off if the court is satisfied that the spouses have lived separately for more than the statutorily prescribed time of at least one year and have settled the issues of alimony and custody of children(if any).

Hon’ble Supreme Court also observed that the waiting period will do nothing but merely prolong the misery and sufferings of the parties unable to live together anymore. 

In another case of K. Omprakash v. K. Nalini, the parties were not happy with their marriage anymore and were allegedly having extramarital relationships. It was the contention of the petitioner that they were living apart without ever visiting each other for more than a year and so, there was no scope of reconciliation between them.

They blamed each other for their suffering and unhappiness. Both alleged each other to be involved in a series of illicit relationships but denied ever being involved in such relationships themselves.

There was no other option left but only to file for divorce by mutual consent. The marriage had suffered irretrievable damage and had reached a point of no return.

Both parties prayed for an instant divorce and a waiver of the waiting period. Observing that the parties had lived separately for long enough and there was no scope of getting the marriage to work again. 

The High Court of Andhra Pradesh held that Section 13B(2) of the Hindu Marriage Act should be read not as a statutory mandate, but only as a directory.

Hence, the waiting period which was once mandatory in nature now remains discretionary.

Whether consent can be unilaterally withdrawn?

After the first motion, if the parties are provided with the waiting period they may sometimes decide to change their mind. Not all cases of divorce are irreparable and some may still have some scope of reconciliation and the parties may choose to withdraw their consent and give their marriage a second chance. 

The waiting period proves to be very useful for some cases as the parties get to go for mediation which may change their mind. The consent of the parties is also deemed to be withdrawn after the expiry of the waiting period of 18 months, wherein a decree of divorce shall not be granted.

The phrase “Divorce by Mutual Consent” is self-explanatory, it simply means that the consent of both parties is required in order for the court to grant the decree of divorce. In Sureshta Devi v. Om Prakash, the wife’s consent was fraudulently obtained by the husband for filing a divorce. The wife was unwilling to give her consent for divorce and therefore she did unilaterally revoked her consent. 

Upon reading the judgement of the Supreme Court we can conclude that a party can unilaterally withdraw their consent if the same has not been freely given.

After the first motion has been passed the parties will have agreed to settle on various issues such as alimony, custody of children and other marital expenses. Now, If one of the parties unilaterally withdraws their consent the other party may suffer prejudice that could be irreversible.

In Rajat Gupta v. Rupali Gupta, the court says that the agreement between the parties to settle their issues and opt for divorce by mutual consent is a binding agreement and a form of undertaking. If a party now unilaterally withdraws their consent, they would be in breach of their undertaking made before the court of law, resulting in civil contempt of court by wilfully disobeying an undertaking. If the consent has to be withdrawn unilaterally, it must be done so on a just and reasonable ground and the other party must not suffer prejudice.

Therefore, consent can be unilaterally withdrawn only in exceptional cases on reasonable grounds.

Conclusion

Divorce is a serious issue and must be used only as a last resort, however, these days people do not think twice before getting divorced. It splits families and the child of the separating couple has to go through serious trauma growing up with separated parents. 

Having said all that, countries having higher divorce rates have higher standards of women empowerment. People get to exercise their right to choose to end the marriage if they are not happy.

Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage.

References

• The Hindu Marriage Act, 1955 
• Stey by step procedure to file for a Mutual Divorce
• Divorce: Costs, documents needed and steps involved
• Divorce by Mutual Consent
• Divorce by Mutual Consent in India- Step by Step Procedure 

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This article is written by Sangeet Kumar Khamari of KIIT School of Law, Odisha. This article tells about the origin, nature and scope of Hindu law. It also discusses how can a Hindu be determined.

Introduction

This world has a population of 8 billion, out of which 1.38 billion people live in India presently. India is a secular State where many religions like Hindu, Muslim, Sikh, Christian and Parsi live together. In this country two types of laws are there:

(i) General law

(ii) Personal law

General law includes the IPC, Constitutional law, Indian Contract Act and many more. And the Personal law includes Hindu law, Muslim law and many more. We will discuss the Hindu Law in this article.

Origin of Hindu Law

In Dharmasastra there is no word such as ‘Hindu’. It is a foreign origin. The word ‘Hindu’ came into existence through Greeks who used to call the residence of the Indus Valley nation as ‘Indoi’. Later it becomes a ‘Hindu’. This nation came to be known as ‘Hindustan’ and its people as Hindu. In history, the word ‘Hindu’ not only indicates a religion, but it also indicates a nation basically. The Hindu law has been modified through centuries and been also existing since last 5000 years and has also continued to govern the social and moral figure of Hindu life by following the different elements of Hindu cultural life.

Concept of Dharma

We know that the word Dharma is related to Hindu law. Let me explain to you, the word “Dharma” according to Hindu Mythology means “duty”. Looking at the contexts and the religious references Dharma has different meanings just like, the Buddhists believe that the word Dharma means only a universal law which is very much essential and the Jains and the Sikhs believe that it is only a religious path for the victory of the truth.

According to the Hindu Jurisprudence, Dharma means the duties in many ways. Just like the sociological duties, legal duties or spiritual duties. Through this context, we can say that Dharma can be referred to as the concept of justice.

Sources of Dharma

As referred to the  “Bhagwat Geeta”,  God creates a life using the principles of Dharma. They are patience, forgiveness, self-control, honesty, sanctity (cleanliness in the mind, body and soul), control of senses, reasons, knowledge, truthfulness and absence of anger. Accordingly, The salvation which means “Moksha” is the eternal Dharma for humans according to Hinduism.

Hindu epics like the Ramayana and Mahabharata also refers to Dharma. They say that executing one’s Dharma is the right aim of every individual. And also at that time, the king was known as Dharmaraj because of the main motive of the king was to follow the path of Dharma.

Nature of Dharma

Despite the other schools of Jurisprudence, the Hindu Jurisprudence takes more care over the duties more than the rights. The nature of these Dharma changes from person to person. There are many duties of many people in this world like earlier, the king’s duty was to uphold the religious law and the other hand a farmer’s duty is to produce food, the doctor has to cure the people, the lawyers have to fight for justice. Being a highly religious concept in nature, Dharma is multi-faceted. It contains many laws and customs in a large range of subjects which is essential and needed to be followed by each and every person. For example, Manusmriti deals with religion, administration, economics, civil and criminal law, marriage, succession, etc. These we study mainly in our law books.

Who are Hindus?

A person can be called as a Hindu, who:

• Is a Hindu by religion in any form.
• Is a Buddhist, Jaina or Sikh by religion.
• Is born from Hindu parents.
• Is not a Muslim, Parsi, Christian or Jews and are not governed under Hindu law.
• Lodge in India.

The Supreme Court of India in the landmark case of Shastri vs Muldas expressly defined the term ‘Hindu’. This case is related to the Swami Narayan temple in Ahmedabad. There are a group of people called the Satsangi who were managing the temple and they restricted non-Satsangi Harijans to enter the temple. They argued that Satsangi is a different religion and they are not bound by Hindu Law. The Supreme Court of India held that the Satsangi, Arya Samajis and Radhaswami, all these belong to the Hindu religion because they are originated under Hindu philosophy.

Hindu by Religion:

• If any person follows the religion by practising it or by claiming it can be called as a Hindu.

Conversion and Reconversion to Hinduism:

• Under the codified Hindu law, any person if converted to Hinduism, Buddhism, Jainism or Sikhism can be called as a Hindu.
• From the case of Perumal vs poonuswami, we can say that a person can be called a Hindu by conversion. 

In this case, Perumal was the father of Poonuswami who got married to an Indian Christian. In the future due to certain differences, they were living separately. In the future, the mother of Poonuswami asked Perumal for the share of his properties. Perumal denied and said “marriage between a Hindu and a Christian is void”. The Supreme Court of India held that a real intention is sufficient evidence of conversion and no formal ceremony of purification is needed (Conversion of Hinduism). So it is not void and Poonuswami would get a share.

• For conversion, the person should have a bonafide intention and also shouldn’t have any reason to be converted.
• Reconversion basically happens, when a person is Hindu and gets converted to a non-Hindu religion and he will again become Hindu if he/she gets converted into any four religions of Hindu.
• If a person is born from a Hindu family, he/she is a Hindu.
• When one of the parents of a child is Hindu and he/she is brought up as a member of the Hindu family, he/she is a Hindu.
• If a child is born from a Hindu mother and a Muslim father and he/she is brought up as a Hindu then he/she can be considered as a Hindu. We can explain that a child’s religion is not necessarily that of a father.
• The codified Hindu Law lays down that a person who is not a Muslim, Parsi, Christian or Jews is governed by Hindu Law is a Hindu.

To whom Hindu Law does not apply?

1. To an illegitimate child whose father is a Hindu and mother is Christian and the child is brought up as a Christian. Or also, the illegitimate child of a Hindu father and a Mohammedan mother, because these children are not Hindus either by birth or by religion.
2. To the Hindus who are converted to Muslims, Christians, Parsi or Jews.
3. To the Hindus who don’t follow the principles of Sastra.

Enactments through which Hindu Law is applied

Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 came into force to secure the rights of marriage for the wife and husband who are Hindu and they are bound under the religious bond of marriage under any ceremony. As there are many ways that a man and a woman can conduct this religious act, so this law does not define kinds of the ceremony to be carried out. After marriage, the registration process should be conducted properly and if any problem occurs between the parties and they want a divorce, they can carry out the divorce proceedings and also if they want to get remarried after divorce then the process for the same can be understood by this act.

This act is only applicable for any person who is Hindu, Jain, Sikh and Buddhists and not for particularly Muslims, Christians, Parsis and Jews who are being governed by some other law. This law is only applicable for the person who is a Hindu by birth or Hindu by religion. Section 2 of the Hindu Marriage Act, 1955 describes all these things.

Important components of the Hindu Marriage Act, 1955

Section 5 of the Hindu Marriage Act, 1955

This Act mentions some grounds that should be followed for the marriage, including:

• No party should have a spouse living before or at the time of marriage.
• None of the party should be suffering from any mental disorder or should be unfit for the marriage and procreation of children or no party should be subjected to recurrent attacks of insanity and also during the time of the consent for marriage no party should be unsound of mind.
• The bridegroom should be of age 21 and the bride of 18 for marriage.
• If the party is within a degree of prohibited relationship, it can be considered as void.
• For marrying the parties shouldn’t be sapindas of each other, unless any customs or usage allows for them to marry.

If all these grounds are followed then we can consider the marriage as a ‘valid marriage.’

If the above grounds aren’t fulfilled then the marriage can be defined as ‘void or voidable marriage‘.

Grounds of void marriage:

• No party should have a spouse living at the time of marriage. It is also known as bigamy.
• No party should be within a degree of prohibited relationship.
• The party should not be the sapindas of each other.

Grounds of Voidable marriage:

• If the marriage happens without the consent of the bride or the bridegroom or any force or fraud.
• If a party is suffering from any kind of mental disorders which makes him/her unfit for the procreation of children.
• If the bride is pregnant by another man other then the bridegroom.
• If any of the party is subjected to recurrent attacks of insanity.
• If any of the party is under aged such as the bridegroom is below 21 years and the bride is below 18 years.
• If one of the parties is unsound of mind during the time of consent for marriage.

Section 3 of the Hindu Marriage Act, 1955 

This section withdraws the restricted degree of relationships as given in Smriti and replaced with a new restricted degree of relationships. For e.g. A person can’t marry the wife of his brother. But, this provision will not be applied in the case of divorce and widow women.

Section 8 of the Hindu Marriage Act, 1955

This Section states the provisions of registration of the marriage. Some provisions are:

• A marriage can’t be registered if a ceremony hasn’t been performed.
• A marriage can’t be registered if the two parties are not living together as husband and wife.
• Both the parties must submit an application to the marriage officer of the district for the registration within 30 days of the ceremony of the marriage.
• The Hindu Marriage Act has allowed the State Government to make the rules for the registration process particularly for the State only.
• Registration is the written proof of the marriage.

Divorce

Though marriage is a religious ceremony, the Hindu Marriage Act, 1955 permits the parties to divorce on the basis of unhappiness, or if one of the party can prove that their relationship cannot go forward.

For divorce, one of the parties has to file after one year of registration, or in exceptional case if the party who is filing the divorce is suffering from mental insecurities because of the opposite party then the Court may allow the party to file before one year.

Grounds for divorce (Section 13)

A marriage can be dissolved by Court order in the following reasons:

• Adultery- If one of the parties has had sexual intercourse with another man or woman other than the party who filed the divorce.
• Cruelty- If one of the parties had physically or mentally tortured or abused the other.
• Desertion- If one of the parties has left the other for not less than two years.
• Conversion to another religion- If one of the party was Hindu but he/she has accepted another religion.
• Unsound mind- Since the marriage ceremony, if one of the party is found to be of unsound mind to such an extent that he/she thinks that married life is no more possible with the other party.
• Disease- If one of the parties is suffering from an incurable disease which is infectious.
• Presumption of death- If one of the parties hasn’t been seen alive by the other party for seven years or more.

Grounds on which a wife can file for divorce:

• If the husband has already been married and the wife of the husband is still alive.
• If the husband is found guilty of rape or cruelty.
• If the person is not able to maintain the general expenses and needs of the wife.
• If the wife got married forcefully under the age of 18.

Hindu Succession Act, 1956

Introduction

It is one of the first laws relating to property and family separation. In today’s business world Hindu succession Act, 1956 is very important in commercial and corporate legislation because of the family separation and also the property separation between them. This Act governs the intestate succession law among the Hindu.

Applications of the Act

• This Act is applied to any person who is Hindu by religion, as well as who is a Buddhist, Jain, Parsi and Sikh by religion or the person who are not Muslim, Christian, Parsi and Jew by religion.
• This act can also be applied to a child whose both the parents are Hindu, Buddhists, Jainas or Sikhs by religion or to a child who is brought up in a Hindu family or any person who is reconverted to Hindu, Buddhist, Jains, and Sikhs.

Important component of the Hindu Succession Act, 1956

Male intestate succession:

Mainly the rule governing the intestate succession of Hindu males is mentioned in Section 8 to section 13 of the Hindu Succession Act, 1956. The property of an intestate Hindu male get transferred to the following heirs which are mentioned below:

• Firstly, class I heirs.
• Secondly, if the class I heirs are not available then class II heirs are being used.
• Thirdly, if class II heirs also are not available then Agnates are used.
• Lastly, if there are no Agnates, cognates are used.

Female Hindu’s property

Section 14 of the Hindu Succession Act states that all the properties including the movable and the immovable property which belongs to a Hindu who is female are held by her as only the owner of the properties, not as a limited owner of the properties. These properties include being gifted by someone, purchased, or got on marriage. Thus, a Hindu woman has a supreme power to deal with her properties and she can dispose off her properties by her will, gifting someone, selling someone, etc. Earlier this section was not into any action (the woman had no power to give or sell her property by will) but, now that is removed by the force of statutory provisions.

Female intestate succession

Mainly the rule governing the intestate succession of Hindu females is mentioned in section 15 and section 16 of the Hindu Succession Act, 1956. The property of an intestate Hindu female gets transferred on the following heirs which are mentioned below:

• Upon her son and daughter.
• Upon heirs of her husband.
• Upon her parents.
• Upon heirs of her father.
• Upon heirs of her mother.

Hindu Minority and Guardianship Act, 1956

Introduction

This Act was proposed for the minor’s protection and to protect their property in 1956. This was mainly proposed for the Hindu minor children.

Important components of Hindu Minority and Guardianship Act, 1956

Application of the Act (Section 3)

This Act is applicable to the followings people:

• A person who is Hindu by religion.
• A person who is Buddhist, Jaina or Sikh by religion.
• Any person who is not a Muslim, Christian, Parsi and, Jew.

Natural guardians of a Hindu Minor (Section 7)

The natural guardian of the minor and the minor’s property are as follows:

• If the minor is a boy or an unmarried girl then his/her father would look after, or if they are below age 5 then they would stay under mother custody too.
• If the minor is an illegitimate boy or an illegitimate unmarried girl then his/her mother after then his/her father shall be his/her guardian.
• If the minor is a married girl then her husband will be her guardian.
• If the minor is an adopted then after adoption, his/her adoptive father and after then his/her adoptive mother would take care of them.

Some important powers of natural guardians (Section 8)

• The actions for the advantage of the minor can be acted by the natural guardians like the protection of the minor, education of the minor, etc. but the guardians can’t restrict the minor for personal motives.
• Without the permission of the Court, the guardian cannot:

1. Mortgage or charge, sell, gift someone or exchange the immovable property of the minor.
2. Give the property of the minor in lease more than five years or continuing more than one year after the date on which the minor will reach his majority position, for the immovable property.

• Any disposal of the minor’s property by the natural guardians is voidable at the case of the minor or any other person claiming for him.
• The court will not grant the natural guardians to do any act mentioned above, in case of necessity for the advantage of the minor.

A minor can’t be the guardian of a minor’s property (Section 10)

• A boy or a girl who is less than 18 can’t be the guardian of a minor’s property.

Testamentary guardians of a Hindu minor

• The person whose name is in the will so as to act as a guardian shall be the testamentary guardian.
• Generally, these guardians are appointed by the minor child’s mother who doesn’t have her husband.

Some important powers of testamentary guardians (Section 9)

• Any Hindu father who is a natural guardian of a minor legitimate child has an authority to select any person to be the guardian of the child and its property.
• If the mother selects someone for the testamentary guardian in her will then if the father made an appointment will be not carried out. The testamentary guardian selected by the mother would have the preference, but if the mother didn’t mention anyone in her will then the person selected by the father will be the testamentary guardian.
• If the father of the minor legitimate child failed to be the natural guardian then the mother of the child can appoint someone as the testamentary guardian to look upon the child and it’s property too.
• A Hindu mother who is entitled to be a natural guardian of the minor illegitimate child can appoint a testamentary guardian for care of him/her as well as his/her property.

Hindu Adoptions and Maintenance Act, 1956

Introduction

The Hindu adoption and maintenance Act, 1956 came into power on 21 December 1956. 

This Act mainly tells about the adoptions of a child. 

Applications of this Act

This Act may apply:

• To a person who is a Hindu by religion and formed and developed by the Hindu law. This includes a Virashaiva, a lingayat or a follower of the Brahmo, Prathana or Arya Samaj.
• To any person who is Buddhist, Sikh or Jain by his/her religion.
• To any person who is not a Muslim, Christian, Parsi and Jews. And also those people who aren’t being governed by these religion’s law.

Who can be adopted?

Under the Hindu adoption and maintenance Act, 1956 a person can be adopted if:

• He/she is a Hindu.
• He/she has not been adopted.
• He/she is not married.
• He/she is below the age of 15.

Certain purposes for adoptions are:

• If someone doesn’t have a child he/she may adopt one.
• To protect themselves and provide care during their old ages.
• To establish the family name and lineage in the future.
• A child can be adopted by someone to secure their family property from falling into someone else’s hands.
• To perform rituals of the funeral after the death of a person in their family.

The essentials for making a valid adoption: (Section 6)

• The person who is adopting should have the capacity as well as the right to take adoption.
• The person who is giving adoption should have the right to give adoption.
• The person who will be adopted should be a Hindu as well as should be below age 15.
• If a male is adopting a child of same-sex then the father should be of at least 21 years older than the child who is being adopted.
• Similarly, if a female is adopting a child of same-sex then the mother should be of at least 21 years older than the child who is being adopted.

Who can adopt a child?

Adoption by a male (Section 7)

There are certain requirements for a man for adoption:

• He should be a major.
• He should have a sound mind.
• He should take the prior permission of his wife (if he got married). Her wife’s consent is also very necessary.

Adoption by a Female (Section 8)

There are certain requirements for a woman for adoption:

• She should be a major.
• She should have a sound mind.
• She should be unmarried or in case of married her marriage should be dissolved or her husband is no more.

Who can give a child up for adoption?

Section 9 of this Act describes the people who can give adoption. The following peoples are as follows:

• The person who is the natural guardian of the child only has the power to give adoption.
• If the father is alive then he has the right to give adoption. No consent is provided by his wife unless and until his wife is not a Hindu or, she is unsound mind as declared by a competent Court.
• Similarly, a mother can give in adoption if the child’s father is no more or ended to be a Hindu or has been declared by the competent Court as an unsound mind.
• If both the parents of the child are dead or declared as the unsound mind by the competent Court then the present guardian of the child can give adoption with prior permission of the Court.

Hindu Women’s Right to Property Act, 1937

Earlier women had no rights on any property and they were given protection by the male members of the family, joint Hindu family. As per the successive ruling government, they had taken some steps for the protection and improvement of property rights to women.

The Hindu women’s right to property Act, 1937 states the rights for Hindu widow, or her husband dying without making any will. In that case, the widows are allowed to share the property as that of a son. But, interest in that property and Hindu women Estate are in limited interest. Many changes were made in the property rights of women by the Hindu Succession Act, 1956.

Section 14 of the Hindu Succession Act states about the rights of a female in any of the property of a Hindu Woman. These rights include:

• many natural rights like disposal of property,
• rights that are unrestricted.

Section 14 of the Hindu Succession Act encloses both movable and immovable property which are obtained by:

• inheritance, 
• partitions, 
• in lieu of maintenance, 
• arrears of the maintenance, 
• gift, 
• property purchased by her own, 
• property obtained by her own skills, 
• prescription or in any other manner.

Hindu Law under the Fundamental Rights

Fundamental Rights of The Constitution of India on which the Hindu Law lies on, are as follows:

1. First of all, we shall start with Article 15 of the Indian Constitution, which comes under Right to Equality. It talks about prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. Hindu law is related to this because of the discrimination against the religion as Hindu is also a religion. 
2. Article 25 says about the freedom of conscience and free profession, practice and propagation of religion which comes under Right to freedom of Religion.
3. Article 26 says about the freedom to manage religious affairs.
4. Article 27 says about freedom as to payment of taxes for promotion of any particular religion.
5. Article 28 says about freedom as to attendance at religious instruction or religious worship in certain education constitutions.
6. Article 29 states the protection of the interests of minorities.
7. Article 30 states about the Rights of minorities to establish and administer educational institutions.

References

1. https://www.netlawman.co.in/ia/hindu-marriage-act-1955
2. https://www.lawyersclubindia.com/articles/A-Brief-on-Hindu-Succession-Act-4282.asp
3. http://lawnotesforstudents.blogspot.com/2017/06/hindu-law-guardianship-under-hindu-law.html

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