This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, NOIDA. It talks about the capacity of witnesses under the Indian laws, and focuses on the question: Who may testify?
Introduction
A witness is a person who has personally seen an event happen. The event could be a crime or an accident or anything. Sections 118 – 134 of the Indian Evidence Act, 1872 talks about who can testify as a witness, how can one testify, what statements will be considered as testimony, and so on.
Capacity of witness
A witness who needs to testify before the Court must at least have the capacity to understand the questions that are posed to him and answer such questions with rationality. Sections 118, 121 and 133 of the Act talks about the capacity of a witness.
Who may testify?
Any person who has witnessed the event is competent to testify, unless – the Court considers that they are unable to understand the questions posed to them, or unable to give rational answers as prescribed in Section 118.
Rational answers should not be expected from those of tender age, extreme old age, or a person with a mental disability.
The section says that generally, a lunatic does not have the capacity to testify unless his lunacy does not prevent him from understanding the question and give a rational answer.
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Can a child testify?
A small child of even 6 or 7 years of age can testify if the Court is satisfied that they are capable of giving a rational testimony.
In the case of Raju Devendra Choubey v. State of Chhatisgarh, the sole eyewitness of murder was a child of 13 years old, who worked as a house servant where the incident took place.
He identified the accused persons in the Court. However, the accused persons had no prior animosity with the deceased and were acquitted as the case could not be proved against them beyond reasonable doubts.
The Supreme Court on this matter held that – the child had no reason to falsely implicate the accused, as the accused raised him and provided him with food, shelter, clothing, and education.
Therefore, the testimony of a child cannot be discarded as untrue.
In Dhanraj & ors v. the State of Maharashtra, a child of class VIII was a witness to the event. The Apex Court observed that a student of 8th standard these days is smarter, and has enough intelligence to perceive a fact and narrate the same.
The Court held that the statement of a child who is not very small is a good testimony for the same reason.
Therefore, a child can testify provided that he is not a toddler.
Witness unable to communicate verbally
Section 119 of the Act says that a person who is not able to communicate verbally can testify by way of writing or signs.
A person who has taken a vow of silence and is unable to speak as a result of that vow will fall under this category for the purpose of this Section.
In the case of Chander Singh v. State, the High Court of Delhi observed that the vocabulary of a deaf and dumb witness may be very limited and due care must be taken when such witness is under cross-examination.
Such witnesses may not be able to explain every little detail and answer every question in detail using the sign language, but this limitation of vocabulary does not in any way mean that the person is any less competent to be a witness. A lack of vocabulary does not affect her competence or credibility in any way.
If a dumb person can read and write, the statements of such persons must be taken in writing. The same was held by the Supreme Court in State of Rajasthan v. Darshan Singh.
Can judges testify?
A judge or a magistrate is not compelled to answer any question regarding his own conduct in the Court, or anything that came to his knowledge in the Court – except when asked via special order by a Superior Court as stated in Section 121.
He may, however, be subject to examination regarding other matters that happened in his presence while he was acting as a judge or a magistrate.
For a better understanding of this provision, let’s look into the illustrations provided.
Harry is being tried before the Court of Session. He says that deposition was improperly taken by Magistrate Draco. Draco is not obligated to answer unless there is special order by a Superior Court.
Hermoine is accused of having given false evidence before the Court of Magistrate Draco. He cannot be asked what Hermoine said unless there is a special order by a Superior Court.
Ron is accused of attempting to murder a witness during his trial in the Court of Magistrate Draco. Draco may be examined regarding the incident.
This section gives a judge or a magistrate the privilege of a witness and if he wishes to give it away, no one can raise any objection.
So, if a magistrate has been summoned to testify regarding his conduct in the Court, no one can raise any objection if he is willing to do so.
A magistrate or a judge is a competent witness and they can testify if they want to but they are not compelled to answer any question regarding their conduct in the Court.
Can a Judge testify in a case being tried by him?
We have already seen that a judge can be a competent witness if he wants, but what if the case is being tried by himself?
In the case of Empress v Donnelly, the High Court of Calcutta stated that a Judge before whom a case is being tried must conceal any fact that he knows regarding the case unless he is the sole judge and cannot depose as a witness.
It was held that such a judge cannot be impartial on deciding the admissibility of his own testimony. He will not be capable of comparing his own testimony against that of others.
If he has to testify, then he must leave the bench and give away his privileges in order to act as a witness in the case.
Can accomplice be a witness?
Section 133 of the Act says that an accomplice to a crime is competent to be a witness against the accused. The conviction made on the basis of such testimony is not illegal.
An accomplice is a person who is guilty of helping the accused to commit a crime. He can be appropriately described as a partner in the crime of the accused.
In the case of C.M. Sharma v. The State of A.P, it was held that if a person has no other option than to bribe a public officer for getting his work done, such a person will not be considered as an accomplice.
Cases of bribery are difficult to corroborate as bribes are usually taken where no one else can see, but, in this case, there was a shadow witness who accompanied the bribe giver (a contractor in this case) and the case could be corroborated with his help.
The public officer pleaded to treat the contractor to be treated as an accomplice, but his plea was rejected on the ground that the money was extracted from the contractor against his will.
Therefore, an accomplice is someone who has either wilfully participated in committing a crime with an accused or helped him in some manner. If he has been forced to break any law against his will, then he may not be regarded as an accomplice.
It is also clear from this case that an injured person or a victim will be a competent witness in a case. This type of witness is called ‘injured witness’.
In the case of Khokan Giri v. The State of West Bengal, it was held by the Apex Court that even though an accomplice can be a competent witness, it would not be very safe to make a decision solely relying on his testimony.
The Court suggested that the testimony of an accomplice should not be accepted by any court without corroboration of material facts. Such corroboration must be able to connect the accused with the crime and it must be done by an independent, credible source. This means that one accomplice cannot corroborate with another.
With respect to corroboration of statements given by an accomplice, in another case of Sitaram Sao v. State of Jharkhand, the Supreme Court held that Section 133 must not be read by itself, but, should be read with Section 114(b) which says that an accomplice is not worthy of credit unless corroborated with material particulars.
This Apex Court further says that the Court should always presume that an accomplice is unworthy of credit, and no decision must be made solely based on his testimony unless the facts have been corroborated.
Types of accomplices
For the purposes of this section, accomplices can be divided into three categories.
The principal in the first degree: Also called ‘principal offender’, this is a person who has actually committed the crime. There can be multiple persons who committed the crime together, each one of them will be principal offenders.
For example – Harry and Ron plan to murder Tom. – Both drive to Tom’s house and shoot him.
In this case, Harry and Ron both are the principal offenders.
The principal in the second degree: This refers to someone who is present at the crime scene and helps the principal offender in any way.
For example – Ron and Harry plan to murder Tom. – Ron provides Harry with weapons. – Harry drives to Tom’s house and shoots him.
In this case, Harry is the principal offender and Ron is the principal of the second degree.
How many witnesses can there be?
There is no prescribed number for minimum or maximum witnesses to be in a case in any provision. Section 134 lays down the same. It says that there is no requirement of a particular number of witnesses to prove any fact.
In the case where there are multiple witnesses that have seen the same event, not all of them are required to be examined for proving a fact, examining two or three of them would be enough to establish the case.
The same was held in the case of Amar Singh v. Balwinder Singh, whereinthe Supreme Court said that if out of all the witnesses, only two or three have been examined, it will not mean that the prosecution was incorrect.
The credibility of a single witness
It is a general rule that goes unsaid that the Court must act on the testimony of a witness even if he is the only one and his statements are uncorroborated.
In the case of Ramesh Krishna v. the State of Maharashtra, there were multiple witnesses who could not stand with their statements given during the investigation. On the other hand, one of them stood firmly with his statement who was deemed to be a credible witness.
The Court, in this case, held that – the testimony of one credible witness will outweigh the same given by other questionable witnesses.
A witness is considered to be credible if he stands by his statements and the same can be proved later on.
Witnesses may also need to identify the accused person, and there is no minimum number of witnesses required to identify an accused in order to get him sentenced.
In Binay Kumar v. the State of Bihar, the Supreme Court said the same; it held that there is no rule of evidence that conviction can not happen unless there is a particular number of witnesses to identify the accused.
Any conviction is not influenced by the quantity of the witnesses but by the quality and credibility of witness testimonies.
Conclusion
The laws in India regarding competence and protection of witnesses are up to par and are legislated keeping everyone in mind. Judiciary has further strengthened this act by way of interpretations, broadening its scope and applicability.
It is irrelevant whether a person can speak or not, if he is capable of understanding questions and answering them, he is capable of being a witness.
To learn more about Examination and Cross-Examination of witnesses, click here.
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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 circumstantial evidence and the conditions for its admissibility. This article also delves deep into the concept of admissibility of evidence in subsequent proceedings.
Introduction
Almost everyone must have seen movies where lawyers establish their points using the circumstances of a situation. If a theft had occurred, and the suspect was seen on a shopping spree soon after, then the lawyer would probably try to use this fact to prove that the suspect did commit the theft. These kinds of situations, wherein the circumstances surrounding the case are analyzed and used to make points, happen in the courts everyday. This article will take a closer look at the concept of circumstantial evidence and on what basis it is admissible in a court of law. The article looks into the circumstances when evidence from an earlier case can be admitted in a later case, or at a later stage of that case.
What is the condition for allowing a piece of evidence to be admissible?
According to Section 5 of the Indian Evidence Act, 1872, the general condition for some evidence to be considered admissible is that it should be relevant. In R.M. Malkani v. State of Maharashtra AIR S.C.157 (1973) it was stated that even illegally obtained evidence has been held to be admissible in court. However, the value of this evidence may be affected through cautious analysis of that evidence. The source of the evidence does not matter for now, but with the ‘Right to Privacy’ being declared a fundamental right in Justice K.S. Puttaswamy v. Union of India 1 SCALE 10 2017, there may be changes in the future.
Section 6 of the Indian Evidence Act, 1872, contains the doctrine of res gestae. Res gestae facts are part of one and the same transaction. If any act fails to form a linkage with the transaction, then it is not considered res gestae and therefore, is not part of the transaction. This doctrine does not have any exact translation.
Facts, other than the facts in issue, may be proved to be res gestae, but both these sets of facts should be connected to each other. Though hearsay evidence is not admissible, when it is part of res gestae, it may be admissible. This is due to the fact that the spontaneity and immediacy of the statement would be such that there is hardly any time for concoction. So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter.Under this doctrine, a test had been laid down for admissibility wherein it can be decided whether a hearsay statement made by a bystander or the victim which indicates the identity of the attacker is admissible or not:
Whether the identification was relevant?
Whether it was spontaneous?
Was there an opportunity for concoction?
Whether there existed any real possibility of error?
What is circumstantial evidence?
Evidence, in general, can be referred to as ‘fact findings’. Therefore, evidence helps to determine what actually happened. It allows the court to gain insight into the depths of the case.
Circumstantial evidence can be defined as that evidence which attempts to prove the facts in dispute by proving other facts. These facts revolve around the circumstances surrounding the case. Circumstantial evidence is generally not taken as full proof, but it usually serves as a guide to establishing the rest of the facts, which could actually serve as hard and full proof. Therefore, circumstantial evidence works on deduction. It is precisely due to these reasons that circumstantial evidence is also called indirect evidence.
Most criminals obviously try their best to leave no direct and incriminating evidence, therefore the prosecution often depends on circumstantial evidence to prove their side or to prove that the criminal did the act knowingly and intentionally. Only if there is a chain between the facts which are being proven by the circumstantial evidence and the other main facts of the dispute, then the conviction will succeed on the basis of circumstantial evidence. In Ashok Kumar v. State of Madhya Pradesh AIR 1989 SC 1890, it was held by the Supreme Court that there should be a complete chain of events and it should establish the guilt of the accused beyond reasonable doubt, that he committed the offence without any possibility of an alternative.
For example: A, B and C live in the same house. B is woken up by a loud commotion coming from A’s room. B hurries over to A’s room and sees C coming out of that room covered in blood and holding a knife. A is later found to be dead.
In this situation, B’s evidence about C carrying a knife and being covered in blood will be treated as circumstantial evidence as B did not actually see C killing A. It can only be inferred from this evidence that C killed A.
Essentials for conviction purely through circumstantial evidence
The circumstances which establish the guilt of the accused have to be proven.
The facts that have been established ought to be according to the hypothesis of the accused.
The circumstances should be conclusive in nature and tendency.
There should be a complete chain and linkage of proof which establishes beyond reasonable doubt, the guilt of the accused and also establishes that the act had been committed by the accused.
The circumstances present must exclude all other hypotheses or scenarios or situations from happening, except the one which is being tested by the evidence.
Even in the famous Jessica Lal murder case, [Siddharth Vashisht alias Manu Sharma v. State of NCT of Delhi, 2010 (69) ACC 833 (SC)], the admissibility of the circumstantial evidence was called into question. The witnesses in this case had turned hostile, which compelled the Trial Court to give the decision in the favour of the defendant i.e Manu Sharma. The Trial Court also gave the reason that the police had failed to recover the weapon. There was also no proof to support the theory of the prosecution that two cartridges whose empty shells were found at the crime scene, were fired from the same gun.
However, the High Court overturned the decision stating that the Trial Court did not consider the testimonies of witnesses properly and also established that the cartridges belonged to the accused. The Supreme Court also gave the same decision, stating that the presence of the accused at the crime scene had been established through several witness testimonies. The Court held that the circumstantial evidence wherein the vehicles and cartridges were connected to the accused and his conduct after the crime, wherein he absconded for a short period; all pointed to the fact that he was guilty beyond reasonable doubt.
Similarly, in the case of Santosh Kumar Singh v. State Th. Cbi (2010) 9 SCC 747, otherwise known as the Priyadarshini Matto case, a student had committed rape of Priyadarshini Matto. The Trial Court erroneously held that there was no evidence to suggest that Santosh Kumar committed the rape. The High Court, and subsequently, the Supreme Court disagreed with the Trial Court’s decision and held the accused to be guilty under Section 302 and Section 376 of the Indian Penal Code, 1860. The Court also held that the evidence was incompatible with the innocence of the accused.
Admissibility in proceedings
Therefore, looking at the above criteria for admitting a piece of evidence to the Court, one can conclude that circumstantial evidence would certainly be admissible in Courts on the basis of its relevance in that particular case. Furthermore, there should be a chain and direct causage between the circumstances on which the prosecution has built its case and the rest of the facts and the act of the accused. Various judgments have laid down guidelines for the situation when circumstantial evidence can be used for conviction.
Admissibility of evidence in subsequent proceedings
The question often arises: can evidence from a case be used in a separate case, or in a later stage of the same case? Section 33 of the Indian Evidence Act, 1872 has a provision for admissibility of certain evidence in a subsequent proceeding, for the purpose of proving the truth of the facts in that particular proceeding.
Elements of Section 33
The evidence given by a witness in an earlier proceeding or before any person authorised by law to take evidence can be used in subsequent proceedings. This is applicable in a subsequent proceeding when:
The witness is dead.
The witness cannot be found.
The witness is incapable of giving evidence.
The witness is kept out of the proceeding by the adverse party.
The witness’s presence cannot be obtained without an amount of delay or expense, which the Court finds unreasonable in the circumstances.
This is also subject to three conditions:
The proceeding (the earlier proceeding) was between the same parties or between the same parties’ representatives.
The adverse party in the first proceeding had the right and the opportunity to cross examine.
The questions in issue were the same in the first and the second proceedings.
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Whether parties to the latter proceeding should be parties or the representatives of the parties to the earlier proceeding or vice versa?
In English law, the parties to the latter proceeding must be the same as the parties or must legally represent the parties in the first proceeding. The Privy Council, in Krishnayya v. Venkata Kumar AIR 1933 PC 202, held that the section did not invert the normal principle of representation. However, jurists have argued that this section needs to be like the provision in English law.
It has been noted in the 185th Report of the Law Commission of India, that while following the Indian statute, if parties in an earlier proceeding are slated to be the legal representatives of the parties in the latter proceeding, one must have regard to the limited span of human life. Therefore, this section would get restricted to cases where, in the earlier proceeding, younger people would be the representatives of the old people who would be parties in the later proceedings. Therefore, the principles of representation in this situation is wrong.
Therefore, the Commission has recommended amending Section 33, in accordance with Sir James Stephen’s Digest, wherein it has been stated that under English law, the the party to the latter proceeding must be party or representative in interest of the party in the earlier proceeding.
Conflict when one case is civil in nature and the other is criminal in nature
The 185th Report of the Law Commission has discussed Section 33 in detail. Another problem regarding Section 33 is explained below-
The explanation to Section 33 states that: ‘A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused’. For example: if a ditch dug by an independent contractor is left uncovered and without any warning signs, and a person falls in and injures himself, then he may claim damages from that contractor, and in that case the suit will be a private one. However, the State can also levy charges on the contractor for criminal negligence and other relevant Acts; then a criminal case is formed.
Some of the witnesses who had appeared in the criminal case may be dead by the time the civil case comes up for trial. Therefore, if the evidence given in the criminal case is used in the civil case, it may be objected on the ground that the parties are different in the cases, with the parties being the State and the contractor in the criminal case, while the parties in the civil case would be the victim and the contractor.
For the above ambiguity, the 69th Report of the Law Commission of India suggested that Section 33 be amended to include two parts wherein one would deal with a criminal case based on a private complaint and the other would deal with a suit instituted by the State.
Therefore, it suggested that the criminal proceeding instituted by a private person should be deemed to be a proceeding between the victim and the accused, if the victim is permitted to prosecute the accused under Section 302 of the Code of Criminal Procedure, 1973, while the the case between the State and the accused would already amount to a criminal proceeding.
Provision for adverse party to have the opportunity and right to cross examine
In the case of Dal Bahadur v. Bijoy AIR 1930 PC 79, the Privy Council has held that the adverse party must have the right and opportunity to cross examine. However, in some cases, like in Sundare v. Gopala AIR 1934 Mad 100, it has been held that if the opportunity was there but the cross examination had still not taken place, then the party cannot later claim that it had not cross examined and evidence would still be admissible in the subsequent proceeding.
However, the Supreme Court, in V.M. Mathew v. V.S. Sharma 1995(6) SCC 122, supported the view of the Privy Council and stated that in ex parte proceedings against the defendant, he would not have the right and opportunity to cross examine the witness. However, since he would not have the right to cross examine, the evidence from the witness, against the defendant, would not be admissible in a subsequent proceeding.
Question in issue
In re: Rama Reddi (1881) ILR Mad 48, it was held that a question in issue in the two criminal proceedings need not necessarily be identical, but it would be sufficient if they were substantially the same.
Inter admissibility of evidence between civil and criminal cases
In Bal Gangadhar Tilak v. Shriniwas Pandit AIR 1915 PC 7, it was held when there was no proof that the conditions under Section 33 were satisfied, then the evidence given in the earlier civil proceedings would not be admissible in a later criminal proceeding.
In Kottam v. Umar ILR 46 Mad 117, it was held that the conditions can be waived through consent in civil cases, but not in criminal cases.
Other judgments
In R v. Scaife (1851) 20 L.J.M.C 229: Tay sec. 472 fn, the case involved three prisoners who were indicted for felony and a witness for the prosecution was absent as he had been induced by one of the prisoners. It was held that the evidence in the subsequent proceeding would be admissible only against the person who induced the witness to be absent.
Conclusion
Circumstantial evidence is admissible on the basis of its relevance, but is not taken as full proof, instead serving as a base for establishing the full proof evidence. Tests have been laid down by the courts for situations when circumstantial evidence can be the sole basis for conviction. This article also looked into the conditions for admissibility of evidence in subsequent proceedings and what are the problems and ambiguities in that provision. The Law Commission has recommended several changes to the wording of Section 33, but these have not been carried out; instead, various judgments have been given to clear ambiguities.
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This article has been written by Ansh Mohan Jha, a student of BA LLB, First Year at Pune University.
Introduction
Not only has the deadly COVID-19 brought the whole world to a standstill, but it has also claimed more than 6000 lives and is still counting. As per the experts, as long as the vaccine of COVID-19 is not developed, we need to take some precautionary measures to contain its outbreak such as avoid going in public places, using alcohol based hand sanitisers and masks, maintaining hygienic conditions at our homes and in our surroundings, consulting a doctor in case of experiencing the symptoms of the coronavirus, etc. To combat the pandemic, the Central Government of our country has invoked a colonial-era law-the Epidemic Diseases Act, 1897, the Disaster Management Act, 2005 and the Essential Commodities Act, 1955. Unlike other countries, India has been successful in containing the outbreak of the coronavirus to a great extent till now. In this article, not only will we discuss these three Acts but we will also analyse how these Acts are helping the Central and State Governments to thwart the exponential growth of the coronavirus.
The Epidemic Diseases Act was enacted in 1897 to combat the outbreak of bubonic plague in the then Bombay state. This Act was primarily enacted to prevent the proliferation of dangerous epidemic diseases. Under the provisions of this Act, special powers are conferred upon the local authorities to implement precautionary measures to contain the outbreak of any epidemic disease. Let’s discuss this Act minutely.
Objective
The Epidemic Diseases Act, 1897 was enacted with the objective of providing for the better prevention of the spread of Dangerous Epidemic Diseases.
Applicability
It extends to the whole of India.
Key Provisions
If the State Government, at any time, is satisfied that the state or any part of the state is threatened with the outbreak of any dangerous epidemic disease and it thinks the existing provisions of the law are insufficient to contain its outbreak, it may formulate temporary regulations, which are necessary to thwart the further dissemination of the disease. The temporary regulations need to be observed by the public, or by any person, or class of persons.
The inspection of persons travelling by railways or other modes of transportation and arrangements shall be made to accommodate infected persons, identified by inspecting officers, in separate wards of the hospital so that other patients shall not be caused harm.
If the Central Government, at any time, is fully satisfied that India or any part India is threatened with the outbreak of any dangerous epidemic disease and it thinks the existing provisions of the law are insufficient to contain its outbreak, it may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port. After inspection, if any people or vessel are found to be a potential threat leading to the outbreak of epidemic disease, then such people or vessels shall be detained.
Any person disobeying regulations or orders issued under this act shall be punished under Section 188 of the Indian Penal Code.
No legal proceedings shall lie against any person for any action that has been done under the provisions of this Act.
Temporary Regulations enacted by Central and State Governments
All the states and union territories of India are asked to invoke Section 2 of this Act to contain the outbreak of the coronavirus, which has been proliferating at an alarming rate across the globe. Initially, it outbroke in Wuhan province of China, but the present epicentre of the coronavirus, according to the World Health Organisation, is Europe. To date, India has successfully restricted its outbreak. The temporary regulations enacted by the Central and State Governments under this Act are mentioned below:
The Home Ministry has prohibited cruise ships, crews, or passengers from coronavirus affected nations to come to India till March 31.
Actions shall be taken against any suspected or confirmed case if he or she refuses to get quarantined and treated by medical officers.
Schools and Colleges are closed in several states until further orders.
In several states, shopping malls. cinema theatres, gyms, swimming pools, etc. have been closed.
All museums of the country shall be closed until March 31.
People are asked to avoid going to restaurants, public gatherings, seminars and conferences. In Delhi, all seminars, conferences or any big event attended by more than 200 people are cancelled.
The Delhi Government has ordered to disinfect the public places such every day.
People are requested to avoid unnecessary travelling.
Use of hand sanitisers and masks is prescribed.
Every sport event has been cancelled.
These are some of the precautionary measures that have been enacted by the Central and the State Governments of our country. Each state has released its own temporary regulations after assessing the threat from the coronavirus under the provisions of this Act.
On March 12, a Google employee, a resident of Bangalore, on returning from Italy was tested positive for the coronavirus. His wife was in quarantine, but she somehow managed to evade the authorities and took a flight to Delhi. She reached her parental home in Agra after boarding a train from Delhi, threatening the lives of her co-passengers. The health officials reached her parental home so as to move her to an isolation ward, but they were misled by her father, a railway engineer, on asking about her whereabouts. After the intervention of the police officials, her father revealed the truth and finally she was shifted to an isolation ward. Both his wife and her father in law have been booked under the Epidemic Diseases Act. Several cases have come up in which people are refusing to be quarantined, risking their lives.
Although the Epidemic Diseases Act is 123 years old, it continues to find relevance in the outbreak of the modern-day diseases and has been enforced routinely to curb the further proliferation of epidemic diseases such as swine flu, malaria, etc. This Act has significantly aided the Governments at all the levels to fight against the coronavirus. All the advisories issued by the Health Ministry and the State Governments are enforceable under Section 2 of this Act. Constitutional experts opine that there is no need to amend this Act if the Government believes that the enforcement of this Act could restrain the outbreak of an epidemic disease.
After the outbreak of the COVID-19, hand sanitisers and masks are in great demand across the world as both these commodities serve as a great precaution from getting infected with the coronavirus. As a result, the prices of hand sanitisers and masks started skyrocketing and their quality degraded as well. Moreover, the shortage of these commodities was also felt which led the Central Government of India to amend the Essential Commodities Act to include these commodities- surgical masks and hand sanitisers- under the Schedule of this Act.
Objective
This Act was enacted with the object of controlling the production, supply and distribution of, and trade and commerce, in certain commodities.
Applicability
It extends to the whole of India.
Key Provisions
According to this Act, a commodity is said to be essential if it is specified under the Schedule of this Act. The Central Government may amend the Schedule of this Act to include or exclude any commodity if it is satisfied that it is necessary to do so in the public interest and for reasons specified in the notification published in the Official Gazette.
The Central Government, if it considers necessary, may maintain or increase the supplies of essential commodities, supervise their equitable distribution and availability of these commodities at a fair price.
No essential commodity ordinarily kept for sale can be withheld from sale.
A person engaged in the production or in the business of buying or selling of any essential commodity need to sell the whole or specified part of such commodity held in stock or produced or received by him to the Central Government or a State Government or to an officer or agent of such a Government or to a Corporation owned or controlled by such Government.
If any person contravenes any order issued under Section 3 of this Act, he shall be punished with imprisonment for a term which shall not be less than 3 months and may extend to 7 years and shall also be liable to fine. However, in case of an order issued under clause (h) or clause (i) of sub-section (2) of Section 3, he shall be punished with imprisonment for a term which may extend to one year and shall also be liable to fine.
Due to the hike in the demand of face masks and alcohol based hand sanitisers, several cases came up regarding the hoarding, black marketing and sale of substandard face masks and gloves. As soon as the Governments at all the levels started publicising the use of these commodities, the producers and sellers started exploiting the consumers. As a result, the Central Government invoked the Essential Commodities Act to regulate the supply, equitable distribution and price of these commodities.
The Disaster Management Act has been invoked not only to provide for an exhaustive administrative set up for disaster preparedness but also to ensure price regulation and availability of masks, alcohol based hand sanitiser and gloves. The National Pharmaceutical Pricing Authority requested the Ministry of Health and Family Affairs to declare above -mentioned items as drugs so that NPPA could regulate their prices and availability in the market.
Objective
The Disaster Management Act was enacted with the object of providing for the effective management of disasters and for matters connected therewith or incidental thereto.
Applicability
It extends to the whole of India.
Key Provision
The National Executive Committee may evaluate the preparedness at all governmental levels to combat any disaster or threatening disaster situation. It may also direct to improve the preparedness if it finds the arrangements made to combat any disaster or threatening disaster situation is insufficient.
The Ministry of Health and Family under the above mentioned provision has given the responsibility to National Pharmaceutical Pricing Authority to control the availability and pricing of alcohol based hand sanitisers, surgical masks and gloves. Due to the enactment of this provision, black marketing, hoarding, and inadequate pricing of these commodities will come to a halt, relieving the consumers.
Note: The National Executive Committee is headed by the home secretary but all the powers exercised by him under Section 10 of the Disaster Management Act have been delegated to the Ministry of Health and Family Welfare.
Combined invoking of the Epidemic Diseases Act and the Disaster Management Act
Unlike other countries, the invocation of both these Acts has been preventing the coronavirus from spreading rapidly in our country The Epidemic Diseases Act confers overarching powers to the Central and State Governments to control any epidemic disease while the Disaster Management Act provides for set up of management systems for a coordinated response speedily. The invocation of Disaster Management Act makes the Epidemic Diseases Act more effective.
Conclusion
The rate at which the coronavirus is proliferating across the globe is a matter of serious concern, but at the same time, the measures taken by the Indian Government to contain its outbreak is commendable. The invocation of three Acts- The Epidemic Diseases Act, 1897, the Essential Commodities Act, 1955 and the Disaster Management Act, 2005 has been significantly aiding the authorities at all levels responsible to restrain the outbreak of the coronavirus. We need to blindly follow the guidelines issued by the Central Governments and our respective State Governments, otherwise all the actions taken by the Governments at all levels would be futile. If we do not follow these advisories, we will not only threaten our lives but also the lives of other people will be put at risk. At the same time, we need to spread awareness among the common masses and bust all the myths revolving around the coronavirus. We must remember that prevention is better than cure.
Say No to Panic, Say Yes to Precautions.
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This article is written by Mohd Sarim Khan from Lloyd Law College.
“Never forget that justice is what love looks like in public”
-Cornel West
A Career in Bihar Judicial Services
As a law graduate, we have many options, we can opt to join in house counsel, advocacy, corporate firm, etc. But judicial service is one of the noblest professions in the legal system. Judges are responsible for administrating, interpreting and applying laws and articles of the Constitution. Judicial officers enjoy a sense of security, intellectual and social satisfaction, high self-esteem, work- personal life balance and most importantly a respectable position in society. In spite of this, no position or money can compete with the feeling a judge feels when the parties stand in front of him/her in the hope to get justice. In this Profession, there is a lot of respect and power to decide on the matter relating to the nation.
Cases such as the Nirbhaya Case or Terrorist case which realize the power of the judge. Judges in India seem to be like God for Victims as they solve various critical issues relating to the offenses or serious crimes done by the Convict.
If you are passionate to become a judge and want to deliver justice, then appearing for the 31st Bihar Judicial Services Competitive Examination is a very bright opportunity.
How to become a Judge in the State of Bihar
Within the State of Bihar, there are two paths through which one can become a Judge:
The first is by appearing and getting selected for the lower judiciary competitive exam conducted by the Bihar Public Service Commission.
Secondly, by appearing for any competitive exam for the Higher Judiciary after litigating for a minimum of 7 years before any High Court / District Court.
The focus of this article shall be upon the civil judiciary services of Bihar.
Frequency of exam
It is conducted yearly or twice a year depending upon the number of vacancies estimated by the Patna High Court. The tentative dates for the 31st Bihar civil judiciary preliminary exam are going to be conducted in July 2020 and the mains exam falls in September 2020.
Number of seats
Bihar is the second most populated state in India with a population of approx 10 crores in which 89% of people are in the rural area. Approximately for every 73,000 people, there is one judge in the State who sorts a huge bundle of cases in the Court. However, with the creation of adequate infrastructure as well as the impending need to finish the pendency of cases in the judiciary, the urgent need to recruit more number of civil judges are constantly being realized by the Patna High Court. This year in 2020, Bihar civil judge PCS J has 221 seats in total.
Eligibility
The following essential qualifications must be met:
The candidate must be a citizen of India.
The candidate must be a holder of a degree in Law which is recognized by the Bar Council of India**.
**Please note that enrolment with the Bar as an Advocate is not a condition for appearing.
The candidate shall attain the minimum age prescribed i.e 22 years from date 01.08.2019. If a candidate crosses the age of 35 years from date 01.08.2018, he shall be ineligible. However, the upper age limit relaxation is of 5 years for Female, P.H category candidates.
Mode of applying
Applications are received online. A candidate is required to register himself or herself as a ‘new user’ on the Bihar Public Service Commission website (http://bpsc.bih.nic.in/). Who has already registered with the website is required to click on the ‘registered user’ link, available on the website.
The gate of fee payment is through e-payment e.g. Debit Card, Credit Card and Net Banking (Rs. 600 for General Category and Rs. 150 for S.C/S.T/P.H. of Bihar domicile and Rs. 150 for all category Female of Bihar domicile).
General Science is of 100 marks and has 100 questions.
Vidhi law is of 150 marks and has 150 questions.
Preliminary ExamTwo Consists of eight papers-
General knowledge including current affairs
Elementary general science
Law of evidence & procedure
Constitutional law and administrative law of India
Hindu law and Muslim law
Law of transfer of property, principal of equity, the law of trust and specific relief
Law of contract and tort
Commercial law
The second Preliminary exam consists of eight papers all are compulsory to attempt. The candidate has three hours to give the exam.
The result of the preliminary exam is declared within 30-35 days.
A candidate has approx. 30 days to prepare exclusively for the Mains exam after the preliminary examination.
The mains exam consists of five compulsory papers-
Mains exam consists of eight papers in which five are compulsory without any option and three are optionally selected from the list given in list 2.
List- 1
General knowledge including current affairs is of 150 marks.
Elementary general science is of 100 marks.
General Hindi is of 100 marks.
General English is of 100 marks.
The Law of evidence and procedure is 150 marks.
Consisting of five optional papers out of which each candidate has to select three subjects of their own choice.
List-2
Constitutional and administrative law of India is of 150 marks.
Hindu law and Muhammadan law is of 150 marks.
Law of transfer of property, principal of equity, the law of trusts and specific relief is of 150 marks.
The Law of contract and tort is 150 marks.
Commercial law is of 150 marks.
Candidates have appeared for eight papers of exam in mains in which five papers are compulsory and three are from optional category.
On the basis of the merit list of mains exam, three times of total seats offered candidates are called for the interview.
An interview is of 100 marks and a minimum of 35 marks are compulsory to pass in the interview otherwise the candidate will be rejected.
Click Above
Syllabus
QUALIFYING PRELIMINARY EXAM
So far in this First exam of Preliminary, all the question are MCQs based.
There is no negative marking in the examination.
S.NO
TOPIC
MARKS
1.
GENERAL SCIENCE
100
2.
LAW
150
PRELIMINARY EXAM
So far as Paper-I, Paper-II, Paper-III, Paper-IV, Paper-V, Paper-VI, Paper-VII, Paper-VIII are concerned. The syllabus is for the mains examination.
The subjects and syllabus for main (narrative) examination are as follows:
S.NO.
TOPIC
1.
GENERAL KNOWLEDGE INCLUDING CURRENT AFFAIRS
2.
ELEMENTARY GENERAL SCIENCE
3.
LAW OF EVIDENCE & PROCEDURE
4.
CONSTITUTIONAL AND ADMINISTRATIVE LAW OF INDIA
5.
HINDU AND MOHAMMEDAN LAW
6.
LAW OF TRANSFER OF PROPERTY, PRINCIPAL OF EQUITY, LAW OF TRUST AND SPECIFIC RELIEF
7.
LAW OF CONTRACT & TORTS
8.
COMMERCIAL LAW
Mains Exam
So far as Paper-1, Paper-2, Paper-3, Paper-4, Paper-5 are concerned, the syllabus for the mains examination is the same.
The subjects and syllabus for Preliminary (narrative) examination and marks for each paper are as follows:
S.NO
TOPIC
CODE
MARKS
PAPER-1.
GENERAL KNOWLEDGE INCLUDING CURRENT AFFAIRS
01
150
PAPER-2.
ELEMENTARY GENERAL SCIENCE
02
100
PAPER-3.
GENERAL HINDI
03
100
PAPER-4.
GENERAL ENGLISH
04
100
PAPER-5.
LAW OF EVIDENCE & PROCEDURE
05
150
S.NO
TOPIC
CODE
MARKS
PAPER-6.
CONSTITUTIONAL AND ADMINISTRATIVE LAW OF INDIA
06
150
PAPER-7.
HINDU LAW & MUHAMMADAN LAW
07
150
PAPER-8.
LAW OF TRANSFER, PRINCIPLES OF EQUITY, LAW OF TRUSTS AND SPECIFIC RELIEF
08
150
PAPER-9.
LAW OF CONTRACTS & TORTS
09
150
PAPER-10.
COMMERCIAL LAW
10
150
For mains examination, each candidate shall have to select three subjects from Paper-6, Paper-7, Paper-8, Paper-9, Paper-10
Weightage of each subject and specific strategy
Preliminary Exam
Marks: 150 marks
The weightage of the Bihar preliminary exam is mainly considered on general knowledge and general science:
General Science and General knowledge
Indian Contract Act and Transfer of Property Act in Civil Law II
Hindu law and Muhammadan law
Law of contract & tort
Commercial law
Constitutional and Administrative law of India Constitutional
Law of evidence and procedure
Bihar judiciary focuses mainly on general knowledge and general science very few law subjects are asked in the preliminary exam to try to consider more on the general knowledge. In the whole syllabus of preliminary neither CrPC nor CPC is included it can also be a plus point for the candidates.
After the changes in the question format in Bihar judiciary rather than four multiple answers in question now it is five answers, you have to select one correct answer out of five.
Preliminary exam marks are not counted to get the rank only mains and interview are counted to get final rank.
Mains Exam
Marks: 1000 marks
The mains exam paper is divided into 2 parts. The first part is compulsory, five papers, while 5 papers are optional.
General knowledge and current affairs
Elementary general science
General Hindi*
General English*
Law of evidence and procedure
*General Hindi and General English paper is just to the qualifying exam you need a minimum 30 marks to qualify Hindi and English paper these marks will not be counted in mains.
Rest the same mains exam also focus on the general knowledge.only 10% of the students will appear in the mains exam and cut off for appearing in mains exam shall be 45% for the reserved category and minimum 40% is must for the general category to appear in the mains exam. The rest three papers are important and count in the mains.
There are five subjects on an optional basis out of which every candidate has to select three subjects to attempt them in the mains exam.
Commercial law
Constitutional and Administrative law of India Constitutional
Law of evidence and procedure
Hindu and Mohammedan law
After the selection of three subjects from the optional list, each candidate has to give the mains exam of eights paper.
Interview
Marks:120 marks
There is huge competition to crack the interview because maximum students are rejected in an interview for not getting a minimum of 35 % marks to get qualified for the interview otherwise you will be rejected.
Bullets Points
Bihar judicial exam mainly focuses on general knowledge and general science, while studying law subjects make equal time for general knowledge also.
In the past, the law of Indian Evidence and procedure has proven to be advantageous to candidates who have appeared for the mains examination.
Many questions in the mains exam paper are repeated from the previous year paper, thus, it is not good to ignore while preparing.
Carefully read all the illustrations of all Sections of the Bare Act as often questions are directly framed upon them.
Level of Competition
Bihar judicial exam competition level is increasing day by day because the number of students appearing in the exam, now not only students of Bihar but other state law graduates and law students move toward the Bihar judiciary.
The syllabus pattern of the judicial exam is not very difficult. Focus is more on procedural law rather than substantive law in the mains exam. One important thing to note is that the preliminary exam is just for qualifying, no marks will be added in the score of the students and only mains and interview will decide the rank of the candidate. The number of students who are appearing from Bihar as well as adjoining areas saw an exponential rise.
Thus, a great number of seats are offered in the judiciary, which means great numbers of candidates will appear in the exam and the level of competition will be high. Candidates must still be conscious of the fact that the real competition is always between a few serious candidates.
How to Prepare?
The key mantra to crack the BPSC exam is to ‘divide and learn and make continuous extensive revision.’ It is advisable to create a daily basis schedule and cover the entire syllabus in the limited time, so that proper revision can be done, it is not important how much you learned rather how much you retain with you. Adequate time shall be allotted for the revision.
Ladders to preparation
First, pick up the lengthy and relatively difficult laws such as the law of evidence & procedure and commercial law.
Give yourself a time frame of 4-6 months to cover them once.
Cover the following laws together for a better understanding:
Contract Law and Specific Relief Act
Transfer of Property Act and Hindu Law
Commercial law and Indian Evidence Act
Whichever subject you choose from optional subjects list, first go through the past year papers of both prelims and mains to have an idea about the types of questions that have been asked in the previous year exam.
Since the preliminary exam comprises MCQs questions, regular revision is extremely important.
The best technique to remember the section of the bare act is to attain the skill of framing the questions from it, this skill is acquired by the student once the student has complete clarity of provision of the bare act.
Make specific sets of notes to be used for last-minute revision.
An attempt at least 10-20 Multiple Choice Questions from the topics that have been covered on a daily basis to regular revision.
The language paper is in both Hindi and English.
As general Hindi and general English are also part of the mains exam but for the qualifying nature make some time to give English and Hindi grammar, make a habit to write in Hindi with handwriting.
Daily familiarisation with 10 new words from Hindi vocabulary is advisable along with the revision of Hindi grammar and English essays after the mains exam.
Read the editorial section of an English newspaper such as The Hindu, Times of India.
Mistakes to avoid while preparing
The preparation of the mains and prelim shall go hand in hand. Focusing more on theory is not a good strategy while MCQs questions are kept for the last days of preparation.
Waste time in collecting and covering a lot of material when the key is to read and revise the same material again and again and never forget that most of the questions are framed directly from the Bare Act. It is more fruitful to make short questions from the provision of the bare act.
Leaving the lengthy laws for the end, first, try to cover short law.
Ignoring past year papers or leaving them only for a reference and sample paper for the end.
Socialization and discussion over the exam spending times are also a fruitful act than actual studying.
This article is written by Yash Singhal, a student pursuing B.A.LLB from Vivekananda Institute of Professional Studies, New Delhi. This is an exhaustive article which deals with the various aspects of witnesses under the Indian Evidence Act, 1872.
Introduction
The witnesses are a crucial part of a criminal case with their testimony being the major proof in favour of or against the accused providing a fair judgement delivered on the principle of justice. The Indian Evidence Act provides certain provisions as to the persons capable of testifying in court of law and its admissibility. The article covers an extensive research based article on the information of the provisions on witnesses in the Indian Evidence Act.
Who is a witness?
The Criminal Jurisprudence in India has been established on certain principles founded by the Judiciary through its pronouncements. These are exhaustive in nature with wide acceptance across the country.
It is a presumption that every accused is innocent until proven guilty in a court of law provided all principles of natural justice were followed in a fair trial.
The burden of proof lies on the prosecution to prove the guilt of the accused rather than him proving innocence.
The proof shall be conclusive enough to prove the guilt beyond the reasonable doubt.
In case of any doubt regarding the guilt of the accused, the benefit of doubt is provided to the accused and he shall be acquitted.
To satisfy all these requirements of criminal jurisprudence, just and fair trial are carried out with each party putting their contentions before the judge. Investigation is the tool to detect a crime which comprises omissions by the investigating officers, later to be completed by the testimony of the witnesses that had first hand information of the crime committed. The statements by the witnesses are submitted as evidence in a Court made under an oath, whether oral statements or written testamentary deposition. It is the obligation of the witness to assist the court in delivering justice by attending the proceedings when required.
Who can be a witness?
Section 118 of the Act states the persons who can be a witness. The court identifies all competent individuals who can testify with proper knowledge of the crime. There are restrictions placed in consideration by the court on those who are incompetent in understanding the questions put to them, these include:
by tender years;
extreme old age;
disease, whether of body or mind, or any other cause of the same kind.
The condition of the witness does not bar him from testifying but his incompetency to understand the questions or answer rationally exclude him from being a witness.
Different kinds of witnesses
Prosecution witness– Any witness who has been brought into the court to testify by the prosecution while supporting their claims.
Defence witness – Any person who justifies the contentions of the defence by providing such statements that can discharge the accused from any charges filed.
Eye witness – Any person who helps the court by describing the acts committed on the crime scene with complete authenticity as it was present there and has first hand information.
Expert witness – Any person who has the professional, educational or judicial expertise on the matter beyond any average individual, and the court can rely on its testimony to declare a verdict.
Hostile witness – Any person who by his consequent statements gives out an impression of not letting out the truth or not desirous of hiding the truth.
Child witness – A child who has the understanding of the questions of the court or has the rational answers to the questions put forward can testify in a court as per section 118 of Indian Evidence Act.
Dumb witness – Any person who is not capable of giving oral statements can be allowed to provide statements in written declaratory form in the court. Such written statements shall be deemed as oral evidence.
Chance witness – Any person who by the matter of coincidence happens to be present at the site of crime committed.
Accomplice witness – Any person who was connected to the crime in its illegal commission or omission provides the statements in the court.
Interested witness – Any person who has some interest in the case or its verdict in order to extract some material benefit out of it.
How can dumb witnesses provide evidence?
Every witness is important to the court for its statements regarding the crime committed helping the court in delivering justice. The inability of a witness to speak shall not be a hindrance in him testifying before a court, thus, Section 119 of the Act provides the dumb witnesses with other means such as by writing or signs which could be understood in the court. The written statements required to be made in an open court, given equal values as an oral evidence.
This case states that if a person has vowed to keep silence owing to a religious practice, he shall testify in writing answering all the questions put to him and this be submitted in court as evidence.
Admissibility of a child witness in a court of law
A testimony by a child in a court of law is not given much importance due to the possibility of the coercion induced statements which would threaten the authenticity of the witness. A child can have a different perspective to different situations according to their mental development.
The maturity of every individual is subjective to the environment he/she resides in and the socio-economic development of that individual.
This case states that a 5 year old child testifying would be admissible as evidence in a court if he understands the question and has the capacity to answer rationally. It was declared that no minimum age is required for a witness to testify in a court.
This case states that a child of 12 years is more mature than a 7-8 year old and that on the satisfaction of the court on the competency of the child to understand the questions put to him, he can be considered a witness to the case.
Principle of Vol dire Test
This test was established to identify the competency of the child to be a witness according to the conditions provided in section 118 of the Indian Evidence Act, 1872. The child can be asked some questions out of the scope of the case details which include preliminary questions on name, father’s name or their place of residence. If the court is satisfied with the answers of the questions, the capability of the child to understand the questions and answer them rationally, can the child be allowed to testify in court.
This case states that a man who killed his wife and his adolescent children gave testimony against their father leading to his conviction. The question over admission of child witnesses was raised in the appeal. The man contended that his children were tutored thus their statements need not be accepted. It was decided that the age of the children does not restrict them from testifying but also an innocent cannot be held guilty on the statements of child witnesses as they can be easily tutored.
This case states that every person is competent to testify in a court of law unless restricted by the court itself in matters of the witness not understanding the question put before him/her.
Child Abuse in cases of sexual violence and molestation
The cases of sexual violence and molestation against children in India have been observed in the recent past with the 2007 survey of Ministry of Women and Child Development showing 53% of children been sexually abused. The children witness in their own cases of sexual violence are scared of disclosing the same to their parents which led to the enactment of ‘Prevention of Chilren from Sexual Offences (POCSO) Act, 2012’ to punish the sexual offendors committing such crimes against children.
The statements made by a child are always questionable, but there is a requirement to devise systems to verify the testimony, free from any external factors and deal with extreme care and caution.
Interested persons as Witness
An interested person according to the English Law is someone who has any material benefit from the case. The one who has an interest in the outcome of the case by virtue of him attached to the case in some manner.
Whether evidence by an interested person is credible or not
The court shall take utmost care while hearing the interested person testifying in a court and not take it as conclusive evidence due to the witness association with the case. The testimony cannot be discarded but caution shall be there as a related person can be an interested person.
This case states that a court shall not deny the testimony of a related person only on the grounds of the witness being a related person. It is the duty of the court to carefully examine and scrutinise the evidence.
This case states that the evidence by an interested person needs to be scrutinised even more. It cannot be discarded on it being produced by an interested person. The truth needs to be found out by the court.
Cases where the witnesses are compelled to produce a document
Communications between husband and wife
Section 122 of the Act states that no person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married. A wife cannot be compelled to make the communications made to her in a court. However, the spouse can depose off the communication if the other spouse gives the consent for doing so. The consent given should be expressed. Consent in such cases cannot be implied.
Communications made to public officer
Section 124 of the Act states that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. The documents which are prepared by the official following the procedure of law shall be accepted as evidence in a court of law. The official needs to decide about the disclosure not going against public interest and produce it accordingly.
Information is given to Magistrate in case of commission of offense
Section 125 of the Evidence Act provides for information as to commission of offences. No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
The police officer is under no obligation to reveal the sources of information and how the information was collected regarding the commission of an offence.
Communication made to legal Advisors
Section 129 of the Evidence Act states that no person can be compelled to reveal their communication details with the legal advisor unless it decides to be a witness in which case the court can ask the person for the communication details to explain any evidence in the court of law.
When the witness is not a party to a suit, he can be compelled to produce title deeds
Section 130 of the Evidence Act states that no person can be compelled to produce any documents as to the title deeds to any property or any such document that might criminalize him, unless he has written to the production of such documents with the person seeking production.
Cases where the witnesses cannot be permitted to make a particular statement
Click Above
Communications between husband and wife
Communications between husband and wife are categorised under privileged communication that shall remain confidential among the two and cannot be asked to reveal in a court. This doctrine is envisaged under section 122 of the Evidence Act. The communication even if relevant to the case cannot be used as an evidence with the implication of the doctrine of privileged communication. The spouses are provided with this privacy as to maintain the social principles prevalent in society.
Evidence when the affairs of the State are concerned
This immunity is included in the Section 123 of the Evidence Act to protect the interest of the state affairs. The unpublished official records regarding the state affairs cannot be compelled to be produced as evidence by any person unless the permission to present such records has been procured from the officer at the head of the department concerned.
Attorney-Client Privilege
Section 126 of the Evidence Act restricts the legal advisor from disclosing any communication, documents or anything else with his client. The provision only states about any person in the capacity of legal advisor barred from sharing confidential details. This privilege is applicable to all the communications, either documentary or oral.
Section 127 of the Evidence Act extends the ambit of section 126 by including all other people employed by the legal advisors into the restrictions mentioned in the previous section.
Section 128 acts as the waiver for the client to avoid providing any information unless it is its own will to produce such information, calling the counsel as a witness.
Number of witnesses required by the court in any case
Section 134 of the Indian Evidence Act states that no particular number of witnesses are required for the proof of any fact.
This case states that the section 134 of IEA clearly mandates that “in any case no particular number of witnesses is required for the proof of any fact of the case.
The court is not concerned with the number of the witnesses in a case but with the quality of those witnesses. If the court is satisfied with the testimony of either one of the witnesses, the other numerous witnesses contending similar testimony would be immaterial to the case.
Corroboration of Testimony of Sole Witness
Section 134 of the Indian Evidence Act exclusively does not provide for any particular minimum number of required witnesses in a case, hence, testimony of sole witness in a case is credible if it is enough to prove the case beyond reasonable doubt.
This case states that even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.
The Rajasthan High Court laid down the observation regarding corroboration of evidence of single witness held as under:
(1) As per a general rule, there is no fixed number of witnesses required for any particular case; a court can act on the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by Statute, in the exceptional cases where the nature of testimony of a single witness itself requires corroboration which courts should insist upon, for example in the case of testimony of a child whose evidence is that of related character or an accomplice.
(3) The requirement of the corroboration of the testimony of a single witness is dependent on the facts and circumstances of each case and there is no general rule which can be laid down on this matter like this and it also depends on the discretion of the Judge who deals with the case.
Rights that witnesses have
Witness Protection Scheme, 2018
Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat assessment and protection measures inter alia include protection/change of identity of witnesses, their relocation, installation of security devices at the residence of witnesses, usage of specially designed Court rooms, etc.
The Scheme provides for three categories of witness as per threat perception:
Category ‘A’: Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.
Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.
Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation/trial or thereafter.
Need for witness protection scheme
The witness protection scheme is necessary to encourage the witnesses to produce testimony in the court without the fear of being killed or tortured while helping the court in deciding the case.
Importance of Witness
A witness is the one with the first hand information of the crime committed and plays a huge role in the investigation process as well revealing the truth behind the circumstances that led to the crime. They help the court by clarifying what happened at the crime scene and all other details they know of the crime, all of which is relevant to the case and assist the judge in deciding criminal matters.
Threats to the Witnesses
There are certain types of threats associated with witnesses:
Forcing the witness to testify false information, or not testify at all.
Offering bribe to a witness in monetary or non monetary terms.
Threatening a witness with physical harm or personal property damage.
Threatening to kill or harm the family members of the witness.
Making arrangements to prevent a witness from reaching the court for proceedings.
All these probable threats pose an issue with the witnesses not ready to testify in a court, thus, provisions to protect these witnesses from any harm whatsoever are to be formulated.
Incidents involving a threat to witnesses
Vyapam Scam
A medical entrance examination scam was unearthed in Madhya Pradesh in 2013 where 13 entrance exams were conducted for admission to various professional courses. The candidates who applied for the examinations were replaced by meritorious medical students or medical practitioners impersonating as candidates in exchange of monetary benefits.
The investigating officers that were involved in the case along with the whistleblowers on whose information the investigation was carried out received threats from those involved in the scam. Around 23 whistleblowers while getting details of the scam. These whistleblowers are secret detectives of police authorities that are entrusted with providing details of any illegal activity being carried out in their local area. In this case, these whistleblowers would have been presented in court as witnesses but they were killed before anything could be testified in court.
Asaram Bapu Case
Self styled godman, Asaram Bapu resided in his ashram as a devotee to god and messenger of divine powers on Earth. He was accused of several rape charges by the women who visited him for prayers but were instead forced into submission by him for sexual favours. The witnesses in the case involved all the women who were raped by him. These witnesses received threats by his men along with his followers. The investigating officers were also threatened to stop the investigation or would be subjected to dire consequences.
Conclusion
A criminal case requires testament of the witnesses who have the first hand information of the crime to fill the void of the investigation process and ease the task of the judiciary in dispensing justice. The Indian Evidence Act provides provisions as to who can be a witness and what could be the admissibility of testaments of all sorts of witnesses. The quality of witness is kept over the quantity and need for a certain witness protection scheme has been identified considering the importance of the witnesses and the threats they are subjected to.
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This article on Facts which need not be proved under the Indian Evidence Act has been written by Arkadyuti Sarkar, a student currently pursuing his B.A. LL.B from Shyambazar Law College under the University of Calcutta.
Introduction
As a general rule of law, the party to a suit is required to establish his cause before the Court by adducing either oral or documentary evidence which includes electronic evidence. However, under certain scenarios, provided under the Indian Evidence Act, 1872, where the parties to a suit are not required to provide evidence in favor of their assertions.
Section 56 to Section 58 of the Indian Evidence Act contains the provisions related to non-imperativeness of admission of evidence by the parties to the suit before the Court to endorse the credulity of their statements.
Facts which are judicially noticeable need not be proven
According to Section 56 of the Indian Evidence Act, 1872, the facts of which the Court will take judicial notice need not be proved.
Simply put, any judicially noticeable fact does not require to be proven before the Court. Now for comprehending this statement, first understanding the meaning of the clause “taking judicial notice”is necessary.
This expression means recognizing something without proof of being existing or truthful. Judicial notice is the acknowledgement by the Court on certain matters which are so infamous or transparently established that their existential evidence is deemed inessential. The clear reason behind this is that such facts are expected to be within the ambit of knowledge of the Judge and therefore any attempt of proving them would indirectly undermine the judicial competency.
According to Lord Stephen, certain facts are so notorious by nature or have such authentic assertion and accessible publications that they do not require any proof. The Court, if it is unknown to such facts, can inform itself about them, in prior to taking evidence. These facts are deemed to be judicially noticed.
This Section has to be understood in unison with Section 57, reckoning the instances when the Court shall take judicial notice such that adducing any evidence would be unnecessary.
Facts of which the Court must take judicial notice
According to Section 57 of the Indian Evidence Act, 1872, the Court shall judicially notice the following facts:
All existing laws within the territory of India;
All previously enacted legislations or future legislations made by the UK Parliament, and all local and personal legislations made under its direction;
Articles of war for the Indian Army, or Navy, or Airforce;
This refers to the Articles contained in the Army Act (XLVI of 1950), for soldiers, officers, etc.
The Parliamentary proceedings of the United Kingdom, the Indian Constituent Assembly, and any other provincial or State Legislature;
This refers to all legislative and other proceedings by the Parliament of the United Kingdom. Indian Constituent Assembly referred to the Central Legislature of the British India, however, subsequent to Independence it refers to the legislative and other proceedings held in the Upper House and the Lower House of the Parliament. The provincial or the State Legislatures refer to the Legislative Assemblies located in all the States constituting the Union of India. For Eg: the State of West Bengal, Andhra Pradesh, Maharashtra, etc.
The accession and the sign manual of the existing Sovereign of the United Kingdom and Ireland;
Accession refers to the attainment or acquisition of a position of rank or power; and Sign Manual is the signature of the Sovereign, by affixation of which it expresses its pleasure either by order, or commission, or warrant. Here the Sovereign refers to the King or Queen of the United Kingdom.
The Seals of all the Indian Courts, the seals of all the Courts outside India established under the jurisdiction of the Central Government or the Representative of the Crown, the Seals of the Admiralty Courts and of Public Notaries, and all other seals which any person is authorized of using under the Constitution or a Parliamentary Act of the U.K. or an Act or Regulation having a legal operation in India;
The accession to office, names, titles, functions, and signatures of the persons occupying any public office, in any state, if the fact of their appointment has been declared by notification in the Official Gazette;
The recognition of the existence, title, and national flag of every State or Sovereign by the Government of India;
The time divisions, the geographical divisions of the world, public festivals, facts and holidays which are promulgated by notification in the Official Gazette;
The territories which are located under the paramountcy of the Government of India;
Any “notification” related to commencement, continuance, and termination of animosity betweenany other State or body of persons and the Government of India;
In simpler words, any declaration by the Government of India in relation to the beginning of hostility, continuation of hostility, and end of such hostility. For Eg: Declaration of War, continuation of war, and end of war.
The identity of the judicial officers and members, including their deputies, subordinate officers, assistants, including all the officers acting towards executing the judicial process. Also of all the advocates, the attorneys, the proctors, the vakils, the pleaders and other persons legally authorized to appear or act before the Court;
The rule of the road, either at land or at sea.
In case of road, the horses and all other forms of vehicle should keep to the left side of the road. At sea, it is the rule that ships and steamboats, on coming across, shold port their helms for passing on the port or left side of each other; steam boats should stay away from the route of sailing ships; and every vessel, while overtaking another vessel should stay away from its way.
In all these cases, including all matters related to public history, literature, science or art, the Court may refer to appropriate books or documents.
On being called upon to take judicial cognizance by any person, the Court may refuse to do so unless and until that person produces any such book or document which it may consider necessary to enable it to do so.
Facts admitted need not be proved
According to Section 58, no fact requires to be proved in any suit which the parties to the suit, or their agents agree of admission at the hearing, or which they agree to admit in writing, prior to the hearing or which they under any existing rule of pleading are deemed to have been admitted through their pleadings.
However, the Court by exercising its discretionary potency may require the admission of such facts in some other way for submission.
Thus, this Section contains three circumstances:
Facts which the parties to the suit or their agents agree to admit at the hearing.
Facts which the parties to the suit or their agents agree to admit, prior to the hearing, in writing.
Facts deemed to be already admitted by the parties to the suit through pleadings.
In this case, the appellants were Union Leaders of the Northern Railwaymen’s Union. They were accused of instigating other workmen towards striking and were booked under Rules 118 & 119 of the Defence Of India Rules, 1971. They were sentenced with 6 months of rigorous imprisonment by the Metropolitan Magistrate of Delhi. The conviction order was upheld in a Revision Appeal by the Additional Sessions Judge of the Delhi High Court.
However, the previous judicial decisions were set aside by the Supreme Court, which observed that mere summary instead of the exact words cannot be deemed as the ground for conviction. The statement of the only witness may although be truthful cannot be relied upon, in absence of the exact words which were delivered at the meeting by the accused. The list of facts of which the Court shall take Judicial notice under Section 56 to be read with Section 57 is non-exhaustive, and shall, therefore, depend upon the discretion of the Court and vary from case to case.
Here, in this case, the respondents were husband and wife by relation and had 2 shops located at Trivandrum. Their residences were also located in the vicinity of those shops.
The petitioners, i.e. the Officers of the Customs Preventive and Intelligence Unit, on obtaining information that foreign goods were being sold in those shops and also stored in the houses of the respondents, searched the shops and also the house premises and seized them.
A trial was held under the Customs Act, 1962 with the prosecution asserting that the respondents were guilty of committing an offense under Section 135(1) of the said Act.
However, the respondents contended that the seized and confiscated goods were not for sale and also the notifications by the Central Government are not laws for consideration under Section 57(1) of the Indian Evidence Act, 1872, thereby pleading not guilty.
The Trial Court maintained the contention and ordered in favor of the respondents to which the petitioners appealed before the High Court of Kerala.
The High Court of Kerala after making due observations and considerations, overruled the trial Court’s decision and held that Central Government’s notifications are indeed laws within the ambit of Section 57(1) and therefore the respondents were held guilty.
In this case, the appellant along with the accomplices of four others were found guilty of murdering one Babdya and were convicted under Section 323 of the Indian Penal Code by the Trial Court.
The appellant was a friend of the main accused Subhash Maruti Avasare and was also acquainted with the family of the deceased. The appellant had gone to inquire of the whereabouts of the deceased at his house and was informed by his mother of the deceased’s absence at that time. The deceased after returning had been informed about it and then he allegedly disclosed to her mother that the accused no. 3 (Rakesh Tukaram Pawar) had asked for a bottle of beer from him and on his refusal had slapped him. He further disclosed that an attempt of assault with a knife was also made on him but he had managed to escape.
On 30.10.1996 at about 6:30 PM, i.e the day of the incident, the deceased had gone to a clinic of a doctor with his wife for medical check-up of their ailing son. After some time, the victim’s wife runningly returned home and informed the witness no.1 (the deceased’s mother) that some people had picked up a quarrel with her husband in front of the hospital of Dr. Babar.
The prime witness went to the spot with her daughter-in-law and witnessed her son being mortally stabbed by the appellants. By this time the victim’s father and his son had also arrived at the spot, and the accused-appellants escaped in the meantime. The deceased was first taken to a local hospital and then transferred to the Sassoon hospital, where he died due to his injuries.
A post mortem was conducted and the cause of death was deemed to result from 7 succumbed external injuries and 5 internal injuries.
The Trial Court after observing the reports and testimonies of the accused persons and witnesses of the cases convicted the accused persons. The decision of the Trial Court was maintained both by the High Court of Maharashtra and the Supreme Court.
Conclusion
In the light of the above provisions from the Indian Evidence Act and the judicial decisions, it can be concluded that facts judicially noticeable by the Courts, such as laws operating in India; articles of war; governmental seals; facts related to legislative, executive and judicial proceedings in India or any other Sovereign or State recognized by the government of India; the rule of the road, at the land or at sea, etc; need not be proved by the parties to a Suit.
It is imperative for providing evidence under Section 57 that exact words and not the gist of the assertion is necessary for the purpose of conviction as mere gist is insufficient. Also, every notification or order made by the Central Government under the empowerment of any legislation is deemed as an operating law under Section 57.
Also, the facts admitted by the parties to a suit either prior to or at the hearing by themselves or their agents need not be endorsed with evidence. Such admission includes written admission.
References
Books
The Law of Evidence by Ratanlal & Dhirajlal (26th Edition), Published by LexisNexis in 2017.
This article is written by Rajat Chawda from the Institute of Law, Nirma University. This article explains the various ways through which a law firm can increase its revenue.
Introduction
Money is considered as one of the best incentives to engage in work. With capital, a person or an organization has the ability to expand any business further and reach new avenues. Therefore, money is an important asset which any person would not risk to lose at all. The same can be said for the various law firms, whose main agenda is to earn money by providing different services and client satisfaction.
Therefore it becomes important to understand how law firms generate revenue, what are the various practices which are more profitable? What are the new avenues of law which are yet to be explored and potentially profitable?
Law firms
A law firm is generally a partnership where two or more lawyers agree to work together and share profit, loss, and liability accordingly. It is important to understand the type or kind of law firm because it ascertains the amount of risk in a law firm and the revenue it can generate to partners and keep running the business.
Types of law firms
Law firms can be categorized on the basis of strength & arrangements or the practice of law that the firm deals with.
On the basis of arrangement
This is based on the agreement between the partners for the kind of law firm they need to establish. The arrangement determines the overall sharing of all the profits, losses and liabilities:
Sole Proprietorship
In this, a single lawyer is wholly and solely responsible for profit, loss, and liability of the firm.
General Partnership
Where two or more lawyers of the firm work together sharing profit, loss, and liability altogether.
Professional Corporation
In this type of firm, stocks are provided to the lawyers.
Limited Liability Company
In this, the lawyers-owners are members of the firm but are not directly liable to the third party creditors.
Limited Liability Partnership
In this lawyers-owners are partners but no one is liable for any act of negligence of any other partner.
On the basis of the strength/size of Law Firm
The size of a law firm determines the revenue a law firm will be able to generate. It is the principle of efficiency, more is the workforce, more is the amount of output produced in a given duration of time. The same can be inferred from the size of the law firm, the more the number of associates a law firm comprises, the more billable hours it charges and increases the output provided and therefore the strength of the firm increases the total revenue of the firm.
In terms of strength the law firm can be classified into the following:
Boutique Law Firm
These firms are limited to small cities and towns and are limited to conventional practice. Lawyers are specialized and practicing in only one kind of law.
Virtual Law Firms
Use of modern communication technologies to conduct business with no physical presence. This is yet to be developed in India.
Big Law Firms
The law firms hire a large number of associates and charge more. These full-service law firms.
Full-Service firms
These firms consist of lawyers specialized in different areas of law.
Worldwide Firms
The global presence of a law firm to represent a client at an international level.
It should be kept in mind that the strength and arrangement of a law firm is only an initial plan of how a firm will function. A firm will always generate revenue with the quality of service it provides and the value it adds to a client’s interests. Therefore, it is better to diversify the portfolio of practice areas and specialize in every aspect to reach on top of the competition.
Working of law firms
A conventional law firm diversifies the area of practice with time to increase its revenue, provide services in various fields of law and provide legal solutions. But recently, this practice has been changed. A law firm now in order to make credibility and generate leads which last long and create more impact, have started to engage in the areas of researching, legal products, and legal training too. These are explained below:
Legal Solutions
What can be a better USP of a law firm which can resolve the problems of a client efficiently, effectively and as per the interests of its client? This involves client counseling, dispute resolution, legal arrangements, contracting drafting, compliance due diligence, etc.
Researching
Research involves policy-making, analyzing legislation, and in-depth study of law to contribute to the academia of legal. Research enables a law firm to create a lasting impact as their research can be referred to as a citation and thereby generating leads and prospective clients.
Legal Products
With the rapid change in technology, law firms are also indulging in research to improve and modernize the legal fraternity so that it can dispense justice efficiently and effectively. In 2017, CAM setup the CAM Innovation Lab to embrace the opportunities technology and use it to provide the best in class services to the clients.
Legal Training
The major setback effectiveness and efficiency in the legal industry is the gap between the theoretical knowledge given in the institution and the lack of practical knowledge on the ground. To cover this up, a lot of law firms and lawyers engage in legal training by conducting lectures, seminars, workshops or internships. To improve the practical skill of lawyers and aspiring lawyers, the law firm improves its potential efficiency by improving the quality of the workforce and thereby increasing the revenue of the firm.
Apart from this, there are also new areas of law that a law firm should not ignore and indulge and specialize in them because there lie the potential business and revenue which a law firm will lose if it does not regard these areas of law.
New areas of law which are developing and profitable
Law is a dynamic subject if one needs to remain in the competition he needs to update and familiarize himself with various growing fields of law. With the advent of globalization and rapid development in technologies, the conventional fields are not the only place to increase revenue. In the competitive laissez-faire market, there are various organizations coming to a consensus to work together, or seeking efficient means to resolve their disputes, worried whether their online data is secure and what can be controlled, protection of the company’s brand and various other things.
If a lawyer can resolve such difficulties, he will be earning a considerable more money than others in the market. A law firm earns a significant clientele by specializing in such fields and establishing its credentials. Some of the areas of law which are developing and profitable are mentioned below:
Mergers & Acquisitions
Every business aims to increase profits, increase clientele, generate more leads and reach the top of the competition. Therefore, every business looks for the opportunity to work with others, acquire other businesses and expand itself more in the market.
Look at the deal feed of Legally India, daily millions of dollars of deals are made to expand the avenues of business. A law firm has to also deal with the Competition Commission and Security Exchange Board of India. A transaction of such type requires a lot of speculation, must adhere to compliance rules and it is not a simple and easy task. A lot of revenue can be earned if a law firm commands expertise and credibility in this field.
Intellectual Property Rights
R&D is an important part of the development of new technologies. Billions of dollars are invested to develop new technology. The vast amount of time is invested by authors to produce novel intellectual creations. When these creations are introduced to the public it encourages others to further develop the innovation but at the same time, it is possible that their ideas might get stolen. Therefore, to protect their novel innovations and works, there exists trademark, patents, and copyright under the field of intellectual property rights which provides protection to business marks, novel innovations, and artistic works.
The different areas in intellectual property include trademarks, patents, copyrights, and related rights, Industrial Designs, Layout Designs of Integrated Circuits, Plant Varieties, Information Technology and Cybercrimes, and Data Protection.
The work in IP ranges from drafting contracts, litigation, filing and registering the trademark, copyright or patent, detecting and prosecuting IPR infringement, managing an IP portfolio, etc. A dedicated IP Law firm can earn enormous revenue if specialized in each and every branch of IP.
Arbitration
It is said that it is good if a person does not get to visit three places in his life: Police Station, Hospital and Court. In India, the condition of the judiciary, in terms of faster dispute redressal is not good, the Supreme Court of India alone has 59,272 cases pending before it. It takes years through the court to resolve a dispute. There are a lot of business companies that need binding speedy dispute resolutions and do not want to waste their capital on lawyers dealing with a single dispute for years. In this scenario, arbitration provides an alternate dispute resolution to contending parties to sit together and come to a conclusion. In this way the outcome reached would be favorable to both the parties and therefore will be obliged by both of them. Earlier, people used to hesitate to go for arbitration and preferred to litigate but with the changing scenarios, a law firm that specializes in dispute resolution will have an ace against the other competitors.
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Technology Law
This field is emerging rapidly with the pace of development in technology. There are various legal issues in this area from disputes in online trades and transactions to a simple click on the ‘I Agree’ button on terms and conditions of a website. To specialize in this area, a person should learn about the technical aspects of a business, its vulnerabilities, and various legal aspects involving the same.
A law firm, which can provide specialized services like Software Licencing, Dispute Resolution in tech, agreements for cloud service, IT services, etc will definitely give more revenue as this field generates a value to support a global population of over 7 billion people and growing.
Media & Entertainment Law
As per a report by IBEF, this sector is expected to grow up to $37.55 billion by 2021 in India. A media company has to comply with broadcasting rules, advertising procedures, enter into a contract with various persons and logistics, resolve disputes, comply with cyber laws and many other areas.
A law firm providing services in such a field can chunk out some revenue from this $37.77 billion.
New firms which are successful
There are various law firms that specialize in these developing fields of law and are earning revenue by showcasing their skills and credibility to prospective clients.
Algo Legal
The firm has been specialized to serve the needs of investors and startups. The firm focuses on delivering the best in class service with the aid of technology for improved efficiency and effectiveness.
Krida Legal
Sports Law is also one of the emerging areas of law and this firm provides services of law with specialization in sports law.
Economics Law Practice
This firm has been recognized as one of the leading Litigation, Arbitration, and Dispute Resolution firms in the country.
Advantages of working in law firms
The advantages of working in a law firm are as follows:
Early growth
If a lawyer starts his solo practice or sets up his own law firm, it takes a lot of time, money and investment to grow. On the other hand, if a lawyer commands appropriate skill sets he can work at a law firm and earn a decent amount of money during the starting phase of his career.
Vast exposure in terms of clientele
A lawyer practicing solo will at least take 2.3 years to establish his name and credibility in the market. While at a law firm, already diverse clientele exists and there is no dearth of work. So, a lawyer does not need to worry about a lack of work while working at a law firm.
Working with experts
A solo practitioner is the boss of his own, he has to manage all the things which include improving and updating himself with the different areas of law and affairs surrounding it. While at a law firm, a lawyer gets to interact with various experts of the legal fraternity and even work with them. This opportunity provides enormous value to a lawyer and helps him to build his network even further.
Steady Job
In a solo practice, every day is a new day whereby a lawyer searches for work to earn money. While on the other hand, there is no dearth of work at a law firm. The lawyer needs to keep working and the money keeps coming every month.
Interest driven choice
Working in a law firm is thrilling and adventures. It is the interest and passion of an individual law to choose to work in a law firm. When the choice is interest-driven, a person cannot be unsatisfied with his work and he is expected to grow immensely by the tremendous opportunities provided by firms to increase one’s potential.
Conclusion
Therefore, in this way a law firm makes money and by specializing in these developing areas of law, a law firm can grow further. It is important to diversify the practice areas and increase portfolios to earn more revenue. But, at the same time, the quality of service should not be compromised at any cost.
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This article is written by Rohit Raj, a student currently pursuing B.A.L.L.B.(Hons.) from Lloyd Law College. This is an exhaustive article which deals with all the aspects of Declaratory decree and what will be the effect of Declaratory decree and is there any existence of discretion of the court in it.
Introduction
If you’ve ever wondered why the Concept of ‘declaratory decree’ emerges and for whom it comes into the picture, here’s everything you need to know. This whole article deals with the concept of ‘declaratory decree’ and what are the essentials of filing declaratory suit, whether the court can exercise its discretion in the case of the declaratory decree and if yes, under what circumstances. This article also deals with other aspects of ‘declaratory decree’.
Declaratory decrees
The declaratory decree is the edict which declares the rights of the plaintiff. It is a binding declaration under which the court declares some existing rights in favour of the plaintiff and declaratory decree exists only when the plaintiff is denied of his right which the plaintiff is entitled to. After that specific relief is obtained by the plaintiff against the defendant who denied the plaintiff from his right.
According to Section 34, of the Special Relief Act, 1963, any Person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Declaratory decree provisions bring out to merely perpetuate and strengthen the Plaintiff in case of an even adverse attack so that the attack on the Plaintiff can not weaken his case and it is mentioned in the case of Naganna v. Sivanappa. And by the arguments made in this case, it encourages the plaintiff to come forward to enjoy the rights which they are entitled to and if any Defendant denied the Plaintiff from providing any rights for which the Plaintiff is entitled, then it gives them the power to file the suit and get special relief.
Discretion of court as to declaration of status
As in the Section 34 of Special Relief Act, 1963 the condition mentioned for the declaration of status or right i.e. (1) the plaintiff at the time of suit was entitled to any legal character or any right to any Property (2) the defendant had denied or was planning or interested in denying the rights of the plaintiff (3) the declaration asked for should be same as the declaration that the plaintiff was entitled to a right (4) the plaintiff was not in a position to claim a further relief than a mere declaration of his rights which have been denied by the defendant. But, it is not compulsory that even after the fulfilment of all the four essential conditions required for declaration, the specific relief will be provided through a declaration to the plaintiff. It is totally on the discretion of the court whether to grant the relief or not to the plaintiff. The relief of Declaration or specific relief cannot be asked as a matter of right, it is a total discretionary power which is in the hands of the court.
In the case ofMaharaja Benares vs. Ramji khan,it was declared that if the suit is filed and the necessary party is absent then the court will dismiss the suit for the declaration. So, it is necessary that both parties should be available. There is no specific rule to decide whether the discretionary power of the courts should be granted or not, the discretionary power of the court is being exercised according to the case and there are no specific criteria to decide in which cases the court will exercise its discretionary power.
Essentials of a declaratory suit
There are a total of four essential elements considered for a declaratory Suitor for the valid suit for Declaration and all the four elements are mentioned below.
The plaintiff at the time of suit was entitled to any legal character or any right to any Property.
The defendant had denied or was planning or interested in denying the rights of the plaintiff.
The declaration asked for should be the same as the declaration that the plaintiff was entitled to a right.
The plaintiff was not in a position to claim a further relief than a mere declaration of his rights which have been denied by the defendant.
Requisites
According to the Section 34 of the Special Relief Act, 1963 it put forward certain conditions which are to be fulfilled by the plaintiff to file a valid suit for declaration for the rights which is denied by the defendant. In the case of the State of M.P. vs. Khan Bahadur Bhiwandiwala and co., The court observed that in order to obtain the relief of declaration the Plaintiff had to fulfil the four conditions as mentioned above.
The object of Section 34 of the Special Relief Act, 1963 to provide a perpetual bulwark against adverse attack on the title of the Plaintiff and to prevent further litigation by removing the existing cause of controversy. If any of the essential elements are missing then the court will not provide any relief of declaration. The Plaintiff has to prove that the defendant has denied or is interested in denying to the character or title of the Plaintiff and the Plaintiff has to establish that there must be some present danger to his interest. The denial must be communicated to the Plaintiff in order to give him a cause of action. The court must exercise their rights while granting declaratory decree and only in proper cases, this legal remedy should be granted so as to avoid multiplicity of suits and to remove clouds over legal rights of a rightful person.
Legal Character
We have talked about the requisites that a person should be entitled to the legal character. So, what we mean about the Legal Character. Legal character is attached to an individual’s legal status which shows the person’s capacity. Legal character by names itself denotes character recognized by law. In the case of Hiralal v. Gulab, it was observed that variety of status among the natural person, can be referred to the following listed causes i.e. Sex, minority, rank, caste, tribe, profession any many more list.
Person Entitled to any Right to Property
The second condition which is to be fulfilled by the Plaintiff for the successful relief of Declaration or we can just say that for getting Special relief which should be related to Plaintiff Right to Property. A person seeking special relief has a condition that they must have a right to any property, only then they can go for special relief under Special relief Act, 1963. The Bombay High Court has made a distinction in ‘Right to Property’ and ‘Right in Property’ and it has been held that to claim and go for a declaration the Plaintiff need not show the right in Property. The Plaintiff only has to show that he has Right to Property from which he has been denied.
Declaration asked should be the same as the declaration that the plaintiff entitled.
The third condition is to be fulfilled by the Plaintiff for the Declaration and for Special relief. This is considered as essential because it is very necessary to look that the Plaintiff asking for the declaration from the Court should be the same as the declaration to which the Plaintiff is entitled under the right to any Property.
Plaintiff should claim only for mere Declaration
The fourth and the last one which is to be fulfilled by the Plaintiff is that the suit filed by the Plaintiff should claim only for mere declaration and he is not entitled to more than that. Excess relief seeking suits will not be entertained by the court in any manner and there is no restriction or any hard and fast rule to entertain such cases where the suit filed is seeking relief more than just mere declaration.
When suit for declaration is not Maintainable
A suit for the declaration will not be maintainable under some circumstances which are to be mentioned below.
In the case of a declaration that the Plaintiff did not infringe the defendant’s trademark.
For a declaration that during the lifetime of the testator, the will is invalid.
No one can ask for a declaration of a non-existent right of succession.
A suit by a student against a university for a declaration that he has passed an examination.
If any person is seeking for a mere injunction without seeking for any declaration of title to which the Plaintiff is entitled so, then the suit will not be maintainable and will not be laid down within its ambit. In the case of P. Buchi Reddy and Others vs. Ananthula Sudhakar, it was held that the Plaintiff’s suit for a mere injunction without seeking a declaration of the title is not maintainable.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the case of the bare injunction, Plaintiff and Defendant both are claiming the title on which effective possession cannot be proved. And the suit for bare injunction is not maintainable under Section 41(h) of the Specific Relief Act, 1963.
‘Suit for a bare injunction’ is a condition where the suit is not maintainable because in the case of the bare injunction, Plaintiff and Defendant both are claiming the title on which effective possession cannot be proved. And the suit for bare injunction is not maintainable under Section 41(h) of the Specific Relief Act, 1963.
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Effect of declaration
Before going into an in-depth analysis of what is the effect of the Declaration, first, we should look at what it is according to Section 35 of the Special Relief Act, 1963. According to this Section, a declaration made under this section is binding on both the parties to the suit and the persons claiming through them respectively and, where any of the Parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.
Lets understand how the effect of the declaration is being in process with the help of an illustration i.e. Ram, a Hindu, in a suit to which Komal, his alleged wife, and her mother, are defendants, seeks a declaration that his marriage was duly commemorated and an order for the restitution of his conjugal rights. The court makes the declaration and order. Shumbham claims that Komal is his wife, then sues Ram for the recovery of Komal. The declaration made in the former suit is not binding upon shubham.
Case laws
There are several case laws related to the declaratory decree under the Special relief Act, 1963 in which several aspects of the Declaratory decree has been covered up and Judgment have been declared on that and were setting precedents to be followed up in the new cases of Declaratory Decree.
Some of the Cases are mentioned below with their judgment related to Declaratory decree for the sake of convenience of Reader.
Tarak Chandra Das vs. Anukul Chandra Mukherjee, it was held that the court had absolute discretion to refuse the relief if considered the claim to be too remote or the declaration if given, would be ineffective. In this same case, it was observed that the term mentioned above in this article ‘Right to Property’ showed that Plaintiff should have an existing right in any property, not the mere interest in that property would lead to special relief.
Ram Lal vs. Secretary of Staten this case was held that by virtue of section 35 of Special relief Act, 1963, a judgment is binding only upon the inter partes, which is not in rem and does not operate as res-judicata. No other party who is not the party of the suit does not come under the ambit of Section 35 of Special relief Act, 1963.
Conclusion
Declaratory decree is a provision which focuses on the rights of the Plaintiff and gives immense power to the Plaintiff to deal effectively against the defendant. How the court uses their discretionary power under what circumstances and other aspects analysis helps the reader also to analyse and understand the Declaratory decree concept in the simplest way. According to my opinion and analysis, Declaratory decree is a concept which is to be wider and covers more aspects than it currently does and the main thing according to my opinion should be amended in a long-term is that there should be a limitation on the use of discretionary power by the different courts and fixation should be done in which cases or in which type of cases, the discretion of court can be used.
Really good attempt, good article and well written.
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This article has been written by Arkadyuti Sarkar, a student currently pursuing his B.A. LL.B from Shyambazar Law College under the University of Calcutta.
Introduction
Many of the law aspirants might have idolized Harvey Specter from Suits or Bobby Donnell from the Practice, and dreamed about becoming an associate or a partner at a popular law firm. However, for an aspirant working at a law firm, there might be variation in the experiences they earn from the T.V series or films as to what they experience in actuality. Also, working at a law firm differs in terms of experiences accrued from working under a litigator or for a company. So let us now learn in detail about various law firms, what they are, what they do and many other relevant facts.
About Law firms
A law firm is a business entity, formed by an association of lawyers who are engaged in legal practice. In general, the members of a law firm share a variety of clients, and the profits are thereby accrued by providing services to those clients.
The obvious question that might be arriving by now in the mind of the reader is why would the lawyers come together for working in a group, when they can work independently as a litigator or solely for a company ? Well the lawyers do this purporting to provide more and specialized services to the clients, while working under the same roof. Also, by coming together, the lawyers are able to share various resources, such as- rents, staff, furniture, technology, internet, library, and all other benefits.
Conventionally, the law firms were based on partnership. However, with changing times, they are organized in different ways, dependent upon the jurisdiction of their operations.
Law firms provide a variety of specialized legal services to individuals, or associations, or companies. The primary service of a law firm is being an advisory to the clients about their legal rights and liabilities, and representing them in matters related to civil, criminal, business transactions, intellectual properties, real estate, taxation and all others in which their assistance is sought.
Based on their arrangements, law firms can be of the following types:
Sole Proprietorship
This law firm consists of only one lawyer who is responsible for all profits, loss, and liabilities arising out of such firm.
General Partnership
In this type of law firm, all the lawyers who are members in the firm jointly share the profits, losses, and liabilities accrued therein.
Professional Association
This type of law firm operates in a manner similar to a business corporation and issues stocks to the lawyers or advocates.
Limited Liability Company
Here the advocate-owners are regarded as members but are not directly liable to third party creditors of the law firm.
Limited Liability Partnership
In this form of law firm there exists a partnership among the advocate-owners with each other. However, there is neither any liability of a lawyer member towards the creditor of the law firm nor any responsibility for any negligence caused on part of another member. The LLP is taxed as a partnership firm while being a beneficiary of the liability protection of a corporation.
Working structure
Now we shall look into the working structure of a typical law firm, consisting of the following persons:
Partners/CEO
They are the joint owners and business directors of the legal operation.
Associates
They are the employees in a law firm, looking forward to becoming partners. Generally, junior advocates who are new to the legal domain start their career as associates at a law firm. Depending upon the nature of the firm, they may be categorized into junior associates & senior associates.
Interns
They are usually the law students from various law schools who come for acquiring relevant practical knowledge and skills necessary for pursuing a career in their area of interest. Sometimes, even fresh law graduates who are yet to obtain the enrollment go for interning at the law firms. Simply put, these interns are the ones who may although have theoretical or bookish knowledge but in need of developing the imperative and requisite practical skills. They look forward to obtaining a PPO (pre-placement offer) and thereby becoming an associate at a law firm of their choice.
Works assigned to every member:
The Partners being joint owners hold ownership interest in the firm. Also, being business directors in designation they supervise various organizational and other activities of the firm.
The Associates usually deal with the clients of the firm and deal with the cases coming to the firm. In terms of experience the Senior Associates look into the more complex matters, while the junior associates introspect matters involving lesser complexity and expertise.
The interns are assigned with various assistantial works like checking case lists, drafting assistance, preparing drafts, research and analytical tasks, etc. Sometimes they may have to perform menial tasks like obtaining a photocopy, or a print out.
Service Provided by Law Firms
Depending upon the nature of a law firm, it may either provide legal service in a specific legal domain or as in case of big law firms it may render various forms of services in different legal areas.
Here we shall look into some of the major areas, in which a typical and multipurpose law firm usually renders its services:
Administrative law
It is a parcel of public law dealing with the governing activities of the administrative agencies of the Government, such as- rule making, adjudication, or enforcing a specific regulatory agenda. Administrative law pivotally deals with the decisioning of administrative units of the Government as tribunals, boards and commissions which are branches of a national regulatory scheme in areas such as police law, manufacturing, international trade, immigration, taxation, etc.
Arbitration
This involves settlements outside the courtrooms on Civil and Commercial matters. The disputing parties agree and present a matter before a single arbitrator who then decides upon the matter which the parties have already agreed to comply with. It is increasingly common in international disputes in a pre-agreed jurisdiction instead of turning to litigation.
Aviation law
This area involves matters related to air travel and international law. It also involves maritime law but the International Civil Aviation Organization largely regulates the commercial aspects of air travel. Space law is an emerging field which is predominantly based on aviation law.
Banking & Financial law
This is a diverse legal area which involves the regulation of financial activities and products, and primarily centered on loan transactions. A financial lawyer is involved in works ranging from advising on simple bank loans being granted to companies, to working on highly structured financial agreements across various jurisdictions. This area requires a practitioner to be highly commercially minded and capable of considering the business as well as legal consequences of every business deal.
Competition law
This area involves promotion and maintenance of market competition by regulation of counter-competitive practices by the corporate bodies. Implementation of the competition laws is done through various public and private enforcement agencies. Competition law is known in different names in different nations. In the USA, it is known as Antitrust law; in China and Russia, it is called anti-monopoly law; in the European Union, it is remarked as both the antitrust law and competition law; in Australia and UK in recent times it has come to be known as trade practices law.
Corporate law
This is also known as business law, or enterprise law or company law. It is an organ of the legal body dealing in rights, relations, and behavior of individuals, businesses, companies and organizations Corporate law encompasses the area related to formation, funding, governance and death of a corporation.
Criminal law
It is the area of law dealing with criminal acts and omissions. It specifies conducts which are threatening, harmful or otherwise perilous to an individual and his or her property, health, safety, and moral well being of people. Criminal law deals with violators, punishment, and rehabilitation.
Contract Law
This area deals with various forms of agreements, contracts, merger and acquisitions between different parties. The basis of civil and commercial laws have their plinths in the contractual law.
Constitutional law
A Constitution is the paramount enactment of a sovereign State. All other laws, whether statutory or procedural, originate from the Constitution. Thus it is imperative to be well versed with constitutional knowledge and being able to solve various matters involving constitutional significance.
Environmental law
Various enactments have been made and various guidelines have been issued by the Government to preserve the ecological balance and extend environmental protection. Issues relating to violation of these rules and guidelines by individuals or the industries come within the ambit of the environmental law.
Intellectual Property Law
Ever heard of issues like copyright infringement, design theft, trademark violation, patent infringement and all? Well all these issues come under the scope of intellectual property laws. Intellectual properties being a creation of human intellect are abstract and incorporeal in nature but in no way are they denied the legal protection because of such abstractness.
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Property and Real Estate laws
Sale, gift, mortgage, lease or other transferable modes of an immovable property lie within this domain. Also, rights relating to ownership, possession, tenancy, encumbrances, etc are guided by the property laws.
Thinking about investing in real estate or just wanting to rent a shop in a newly constructed shopping mall? This is where the property and real estate laws come into play.
Labor law
Disputes are a common occurrence between the workmen and the management, in an industry. Again providing a safe working environment for the employees or the workmen is incumbent upon the employers in an industry. All these and other resembling issues are dealt in accordance with the provisions of the Labor laws.
Information and Technology law
With advancement in science and technology, the internet has been turned into another essential of the modern lifestyle.
Therefore, alongside the development of internet technology, various financial, banking, commercial, and transactional activities are now occurring in the virtual space. Also, criminal activities are occurring online, such as hacking, data theft, pornography, privacy violation, cyber terrorism, cyber fraud by the use of internet-capable communication devices. Information and Technology law endeavors towards dealing with all of these issues.
Taxation Laws
Government taxes its citizens either through indirect taxation or direct taxation. Apart from the citizens the Government also imposes taxes upon various commercial organizations, both national and foreign. Taxation is done by the Government so as to earn revenue from different sources which it spends towards paying its employees, funding areas like education, healthcare, defense, construction, science, telecom, etc.
Every matter related to tax filings, income tax returns, tax benefits, tax assessment, etc or disputes relating to tax evasion, tax planning, tax default, etc are guided by tax laws and come under the domain of taxation laws.
This list is inexhaustive; there are several other areas which are also practised by the law firms. This list contains the areas which are usually being taught in law schools. The reader shall get a brief idea about them through this article.
Special features of the firms
Many law aspirants or law students who are yet unsure or reluctant in pursuing a career in a law firm. They must firstly be acknowledged about the special characteristics of a successful law firm.
Partnership relations
This is a pivotal foundation of a successful law firm. There is a healthy partner culture in a successful law firm, where:
The partners share common vision and purpose.
The partners possess respect towards one another.
The partners deal fairly and honestly with each other.
And lastly, there is involvement of the members in problem solving discussions for dealing with varying issues and difficulties.
Leadership
The second rudimentary feature of a successful law firm is dependent upon the leadership. This leadership can be achieved by a sole person or a core member group, and not necessarily arrive from the formalized management structure of the firm.
This leadership behavior includes:
Development and empowerment of people.
Ability to influence others.
Encouragement of team play.
Introspecting multiple options.
Taking calculated and intelligent risks.
Feeling passionate towards work.
Being a clear and strong visionary.
Leadership makes things happen and pushes a firm forward, facilitates new directions and helps in attaining new goals, and brings flexibility to cope with the dynamic competitive climate of the present day.
Management
This is the third plinth of a successful law firm. Law firms which are successful, already contain a good governance system and well placed management structure for the purpose of effective management, which includes the following:
Productive activities which include individuals and also the whole firm.
Economic, qualitative, and quantitative soundness of the work.
Formation of determinant policies which would display the character of the firm.
Development of business and marketing.
Systems for partner compensation and profit distribution.
Remuneration of the partners
This is the fourth plinth of a successful law firm. A well placed partnership remuneration system is what the successful law firms already have.
A well paid person is more passionate towards their work. Thus an employee with better payment feels more enthusiastic in performing better at his work.
Planning
This is the fifth plinth of successful law firms which is already well placed behind their success.
An effective business plan should include:
Decision as to directing the law firm.
Data collection and reviewing.
Chalking out action plans.
Implementation and follow-up mechanisms.
Client Service
Successful law firms which deliver outstanding client service not only focus on the expectations of their clients but also on surpassing those expectations.
Delivering great client service is highly crucial in today’s market. While an increasing number of lawyers and law firms are competing for fewer clients with drop in the client loyalty. It is insufficient in the present day legal environment to simply be competent or an expert in the legal domain. A successful law firm is determined through a client’s work experience with that firm and not solely upon the quality of work done by such firm.
Marketing
This is the seventh rudiment of a successful law firm.
Those days are a thing of the past when the advocates or lawyers were simply involved in legal practice. Presently they experience cut-throat competition, shrinking service demand and increasing supply of professional talent, availability of substitutes, and marketing of professional services. Therefore, marketing is vital for a successful firm to survive in the future.
Advantages of working in a Law Firm
Now being acknowledged about the special features of a successful law firm, let us introspect the advantages which a law firm associate has over an independent litigator and compare the working of law firms with the independent practice and litigator.
Monetary Security
Working in a law firm means having a pay cheque signed on your name every month. So as long as you are an associate at a law firm you are guaranteed a certain monthly remuneration. On the contrary, as an independent litigator, there is no fixed earning. You earn depending on the number of clients you get. There might be times when you earn tenfold than a firm’s associate, again there might be situations when you do not have any earning.
Job Security
As long as you are an associate at a law firm you have a job. Whereas, as an independent legal practitioner, you do not have any fixed job. Whether you get to work on a case is dependent upon how many clients are coming to you.
Diverse Client Base
In a law firm, there is an abundant and diverse client base. So even if a client decides on moving his case to somewhere else, it shall not affect the firm financially. Whereas, as a litigator where you have already have no of getting clients, any such decision on the client’s part is bound to affect you financially.
Office
Working in a law firm means that there shall be an office of the firm for the associates, partners and other employees to work in. Expenditure for such an office shall go from the firm’s funding and not from your wallet. Contrarily, if you are a litigator, then although you can have your chamber but for that, you will have to spend your dime which can be strenuous most of the time, at least in your initial years.
Training Programs
Law firms often go for investing in comprehensive training and mentoring programs for their employees, especially the associates. Such training programs may include- detailed summer associates program, onboard training for new employees, in-house educational programs, continuing educational backing, etc.
On the opposite, working as a litigator you cannot avail this kind of training. You learn from your experiences which usually takes a long time.
Well-credentialed colleagues
Getting to work at a law firm as an associate or an intern means having an opportunity to work with accomplished, successful, and credentialed colleagues. Contrarily, as an independent practitioner having these opportunities are not guaranteed.
Advancement Opportunities
Most law firms work on the hierarchical order. The better you perform there, the better is your opportunity. You may join as a junior associate and depending on your performance you may become a partner where there are new experiences and responsibilities in waiting. Simply put, you experience growth throughout.
However, as a litigator, there is no such scope. The only matter concerned here is how many clients you get which in turn determines your earning.
Diversity in experiences
As a member of a law firm, you have to work with a diverse client base and thus deal in complex, diverse, and technical legal matters. Thus you have the scope of diverse experience in your professional life. Whereas, as a litigator, such experiences are scanty to nil.
Conclusion
Thus, from the aforesaid assertions, it can be ascertained that working with a law firm has manifold advantages and scopes for a young law graduate, fresh out of the law school. However, aside from the advantages, we must be aware of the disadvantages of working at a law firm.
Many law firms are personality driven organizations rather than being institutionally run. This means a higher than normal dose of ego and politics in the workplace.
Work timings can be insane in case of a law firm. There can be jovial phases when you arrive at the office at 10 am and leave at 7:30 pm. Again there are horrendous ones when you may have to work until late 1 am of the night. This in turn tells upon your health and destabilizes your work-life balance.
Usually a law firm job is by nature a desk-job throughout which means sitting before a computer for extensive hours, thereby affecting your body.
Even senior employees who fail to manage teams or bring in clients are fired. So although you have a job security that does not mean it is permanent.
Thus after comparing all the features, pros, and cons of working in law firms the readers are now expected to make a clear decision. However, one suggestion on the end note- everything in life comes with both pros and cons. So before you make a decision, ascertain your goals, your skills, etc. then decide and attempt to remain dedicated to it.
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This article has been written by Mridul Tripathi who is currently pursuing BBA LLB from Vivekananda Institute of Professional Studies. This is an exhaustive article that deals with challenges faced by the law firms while making the employees work from home and some suggestions to resolve the same.
Introduction
Who’d have thought that we would have such a start to the year 2020? Starting with the protests that turned violent at the universities to the communal riots and now the ongoing worldwide war against COVID-19 where it seems like the entire human race is advised to self-isolate and practice social distancing, everybody has latched their spirits to the four-letter word ‘hope’.
India, like multiple other countries, is facing a complete lockdown due to the pandemic and people here, if at all working, are working from home. Where it is blissful and easy for some, others find it utterly difficult to work remotely from their homes.
While the major Indian law firms have already implemented work from home policy and also assured fully equipped structure to support the same, but for the policy to work well for lawyers, indubitably they need to have stark technology backing that could enable smooth day to day tech related transactions like conference telephone or video calls.
This article is written to exhaustively cover the challenges that the law firms are facing in making their employees work from home which will end up either transforming the traditional law firms or prove to be a moratorium.
Challenges faced by law firms
Less physical interaction
The most basic of the hindrances that are caused due to work from home is – very little to no physical interaction. When it comes to a law firm there is generally a multi-faceted chain of command that is to be followed. The associates according to their ranks and experience have to coordinate with the senior associates who in turn coordinate with the partners. All of a sudden this has become too cumbersome due to this shift and it becomes more time taking as an employee might not always be available over the phone due to unavoidable reasons such as no access to the mobile network. Also, a lot of law firms still follow the in-house contact as it keeps the lawyers and the staff connected.
Many firms still have paper-based file systems and hire clerks for their management. In India, where cases linger on for years, sometimes a client’s files are as old as time itself and their unavailability can prove to be a problem. A break in daily physical interaction between the employees can also weaken the interpersonal bonds between departments and chain of hierarchy as well.
Distraction due to personal works
Grant Walsh (managing partner) of the Culhane Meadows Haughian & Walsh, a global law firm, belongs to the school of thought that sees a silver lining in this shift and says that it has enabled him to be present more in the lives of his family.Where one might be glad at performing his duties more efficiently at home, this type of informal setting has added a risk of setting unprofessionalism into the working environment. An employee might be able to meet the deadline and submit his work but the unquiet environment at home will surely affect the efficiency of the work submitted.Even for an attorney to focus and work effectively on a day to the day conference call, there needs to be an atmosphere of silence that could help him focus on what is being said over the phone. An employee who is accustomed to the deskwork on a daily basis is bound to face logistical issues.
Many employees find it difficult to motivate themselves to start working as they are conditioned to see their homes as a place to rest after long hours of work at the office. Not only the distractions affect the productivity and harm the employer, but they also affect the physical health of the employees.Some might choose to start working on a legal draft right after they get up with a crouched back while being still in bed and some might munch all the way through the long hours of work and not take a proper lunch break. There might not be part-time working spaces at every household in the country. The majority of the homes don’t even have separate rooms for each family member. In such a situation, it is a tough task to focus on work in addition to maintaining and leading a disciplined life.
Threat to confidentiality
Work from home poses risks to client confidentiality as telephonic conversations can be easily overheard by the family members or anyone passing by. The ministry of corporate affairs has formally told the corporates to implement work from home but the policy lacks provisions to ensure that the client’s confidentiality is not lost. With a profession as that of a lawyer, one of the greatest risks that work from home poses is regarding the confidentiality of the information provided by the client. It is very difficult to track the telework performed by the employee when they start working from home. Indemnification that the staff will provide for working from home due to any of the loss caused by him to the client in absence of supervision and his negligent work should be clearly mentioned, adhered to and decided in advance. Personal networks are prone to phishing attacks especially during the times of COVID-19 because some IT departments fail to provide secured networks which results in the business getting conducted through personal networks thereby resulting in an increase in the number of attacks. The firm needs to ensure that important files are not sent through insecure networks.
Difficulty in providing internet servers
As the entire country sits home, the internet service providers witnessed a huge surge in the traffic over the internet. The surge is so huge that the only possible solution could only be to divert the network services to priority areas and sectors by shutting down the internet at other places.Providing safe servers and prepping up the IT department to cope up with this shift seems like a Herculean task. One of the major problems with personal servers is to ascertain their reliability. With a surge, this great and no adequate time to come up with a robust safe structure, establishing it and smoothly kickstarting it has proven to be a big challenge.Even after it kickstarts, is the IT department competent enough to quickly resolve equipment-related issues? In a country like India, there are areas where there are still no wifi servers available.
There are complaints of the server drop on a daily basis. Virtual meetings and conferences on poor strengths of the servers can be a nightmare as the parties struggle and waste their time in getting their voices across each other. If at all any data related phishing incident occurs, the firm needs to be equipped with a department to tackle such issues which is difficult to build at such a short span of time.
Cybercrimes
Cybercriminals are always on the lookout to hack into servers and unlawfully gain an advantage by gaining information. Working from home makes it very difficult to maintain the attorney-client privilege as the work becomes susceptible to high-risk phishing cyber attacks.There have been reports of a new cyber virus recently that has phished data from many US law firms which goes by the name of the ‘maze ransomware’. The hacker group, Maze, sends an email containing the virus to a lawyer and a single click on the link enables it to phish info on important clients. The Hackers then upload a piece of the document on a public site and demand ransom in return for not uploading the rest of the document and putting down the name of the company from the site.With most of the work now being conducted online, the attorney-client privilege seems at great risk if the computers aren’t installed with highly upgraded security software.
Other Necessary Materials not accessible
Good research becomes a tough task when a person doesn’t get access to relevant material. In order to make a research work comprehensive and exhaustive, employees depend upon legal periodicals and other materials that are available at the workplace in hard copy, that are too expensive to be bought for personal use.
Working at home affects the quality of the work when the necessary matter becomes inaccessible. There is already a lot of hue and cry in the market to understand the legal ramifications of the myriad problems that have taken birth due to the lockdown, like what will happen to the ongoing contractual undertakings or where will the concept of ‘force majeure’ apply, or if it will be applied at all or not.The more number of problems make it all the more necessary for good research and the tools not being accessible thus turns out to be a bigger problem.
Unaccounted periods of work
One of the guidelines requires the employer to maintain an accurate and updated record of hours worked at home daily within the span of working hours to keep a watch and motivate the employees, this again turns out to be a tough task as verification of hours actually worked is difficult to be ascertained when one is working from home.
Even if the associate has been given a deadline-based work, there is a risk of him exhausting himself as the burden of the work might prove to be too much to handle along with what is going on at his place. This might result in less or no resting hours and the employee somehow coping up to complete the work in time.
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Difficulty in maintaining competency
With no physical supervision, employees working on the client matters can mess up the situation when it comes to direct dealing with the clients. To ensure that this does not happen and the client is satisfied, the firms should rely on e-learning as a mode of training the employees and holding virtual meetings as well as conferences to ask for continuous periodical updates on the client matter at hand.
The International Bar Associations has recently held webinars where they have dealt with various issues at hand and have come up with ways through which they can bring about a change starting with adding a window in the site that is only devoted to COVID-19.
Possible steps that could be taken to counter these challenges
Make sure that the IT structure of the law firm is robust enough to support enough remote working.
Ensure clear and periodical communication through webinars virtual meetings, make sure that the message gets delivered through any possible mode.
Framing work from home agreements where it is expressly mentioned as an imperative for the employee to make him available during the working hours, failing which the employees would be liable to be subjected to appropriate action.
Provide secured laptops, secured servers, authorizations and make sure that the employees are updating their systems to the latest security patch.
Make sure that the provisions included in the agreements are exhaustive to ensure the safety of clients’ confidential documents by penalising the negligent conduct on behalf of the employee.
Ensure that the work from home employees feel connected to the company by regular and consistent communication and advice as to how they can improve their work, workspace so that they see possible growth.
Ensure that the employees are using enough measures to log in their daily hours of work and not overburdening them with tasks just because they are working from home.
A firm should beef up the staff or create a department that is supposed to deal with the crisis and help the employees contact the person that would help them with even the minuscule of problems related to that of the internet or other logistical needs.
If the firm is into litigation, then make sure to get dates from the courts of the matters that will not be heard during the lockdown period and proactively take up the matters to the court that are deemed to urgently taken like that of interim reliefs.
A law firm should keep a positive outlook towards this shift in the workspace. They need to ensure that their attorneys don’t start feeling insecure about their jobs and that this doesn’t affect their efficiency as well.
Conclusion
It can be said indubitably that in a short span of time, things have taken a sharp curve. It is also due to the unpredictability of the situation in which we have found ourselves today has left most of the sectors of the economy unprepared.
Many of which were solely dependent on human interaction and physical work are rendered cold. This long term COVID-19 crisis will definitely prove to be a phase of transformation for the traditional law firms and the key to debugging the ongoing problems is to positively transform rather than shooting for adapting to the changes.
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This article is written by Yash Singhal from Vivekananda Institute of Professional Studies, New Delhi. The article is based on the impact of COVID-19 on M&A transactions while explaining the legality of these transactions in India.
Introduction
In the last few months, there has been a situation of panic in the whole world due to the transmission of a new disease, COVID-19 or coronavirus disease. It has been so much talked about in the news channels all around the world that they have not reported any other news than the statistics of the transmission of coronavirus. The World Health Organization has issued an advisory report on the virus stating it as a non-deadly disease that spreads on human interaction while stressing upon precautions to be taken to prevent it.
The presumptions surrounding the virus has developed a bias in the general public regarding their perspective on China. It is contended that it all started with a human being consuming a bat in China which was infected with such a virus. The individual further transmits the virus by coming in contact with other human beings. Some have argued that China conspired the spread of this virus to wipe out other countries, by developing the virus in their laboratories.
The Chinese city of Wuhan, where it originated, is the worst affected area. The virus later spreads in around 170 countries to send the whole world into a shutdown. The world economy has been at standstill with healthcare facilities overburdened with work. The people have been advised to stay within their homes and avoid any sort of human contact. In case of an emergency, the people should wear masks and carry alcohol sanitisers with them while going out of their houses.
According to WHO, infected people will experience mild respiratory illness, while the old people who are suffering from any problem such as diabetes, respiratory issue, cardiovascular disease would be likely to develop serious illness. It has not been labelled as a deadly disease yet the treatment of the virus is still not achieved by any medical practitioner.
The best way to counter the transmission of the disease is to be well informed of the symptoms, prevention methods, and its causes. Every individual should have access to sources providing relevant information on the virus to make the public aware of all necessary steps required to prevent it from spreading.
The virus has been identified as a pandemic with its effects being observed in almost every country which makes it a global issue. This pandemic has impacted all spheres of life everywhere. The social distancing concept to maintain distance in a social setting to avoid contact, all businesses at a standstill with share markets recording great losses, the underprivileged being the worst sufferers with no option to save themselves from this virus.
Economic impact of COVID-19 on India
The Coronavirus disease since its detection has sent shockwaves everywhere around the world. The government of every country has devised certain strategies to tackle the transmission of the virus. They have made the general public aware of the situation by posting regular updates on social media platforms along with news channels reporting all the major developments on the issue 24*7.
The economic impact of COVID-19 on India has been significant with all the sectors of the economy incurring losses due to lack of consumers.
Manufacturing Sector
The manufacturing sector would be suffering with most of its raw materials procured from China. China has already witnessed a slowdown in its economy since the discovery of the first case of the virus. The Indian manufacturing sector would have to find any other source to get their raw materials from. The market has also observed low demand with national lockdown announced in India and all public places have been shut down including markets. The export business of these manufacturing companies has been on a downfall with international movement restricted owing to the lockdown. The air travel along with sea shipment has been held back and this resulted in the time-lapse clause of the contract and leading to cancellation of orders on the part of the international buyers.
Service sector
The service sector which is entrusted with its services to the nation has also seen a significant slowdown. The professionals are experiencing lack of work with the local population restricted movement during the lockdown period and the international contracts lapsing on the shutdown of international travel.
The medical practitioners are working overtime to treat the infected persons in hospitals who are more prone to mental breakdown than any economic loss as such. The legal professionals are working from home over digital means, conducting court proceedings over video conferences. They are not approached with new cases as courts are shut and taking extremely urgent cases over video conferences.
The airlines authority will be paying maintenance charges and parking charges of the aeroplanes from their own pocket with no operational profit earned due to mass shutdown of all services. This period is the highest profit earning period for airlines as summer vacations are provided in schools/colleges and families plan long trips within & outside India. Most of the aeroplanes are purchased on a lease with the interest rate, which is paid out of the operating profit of airlines authorities. During COVID-19, the airlines would have to bear such costs without government concession.
Non-operation of industries all over India would decrease the energy consumption substantially which will adversely affect the earnings of the energy-providing companies.
What are M&A transactions?
Mergers and Acquisition (M&A) transactions are specifically aimed to consolidate two companies through economic transactions of either taking over the assets of the other company or combine own shares with the shares of the other company to increase valuation of the consolidated company.
In cases, where the parent company takes over the other company while establishing itself as the owner of the new combined legal entity, it is called Acquisition. The stocks of the other company ceases to exist with trading continued in the name of the owner through its own shares. A Merger is the mutual agreement of two equal worth companies to come together and merge the value of their shares. The new single entity is legally identified and mutually operated.
The manner of consolidation of two companies determines the type of transaction, with the acquisition being a forced action against an entity to purchase its shares. The Board of Directors of the company acquired are removed from their position with immediate action. Mergers are well planned out strategic transactions with mutual consent to come together to increase the net worth of total shares. The Board of Directors of both companies, in cases of mergers, remain in their positions and mutually take decisions in the interest of the newly formed company.
Valuation of companies
The process of valuation is conducted to get the exact worth of the company to be compared with their own worth, after which the form of transaction to be undertaken is decided. If the worth of the other company is lower than the worth of the own company, then the acquisition transaction is favoured to reduce competition in the market. In case of the net worth of the other company similar to the worth of the own company, the merger transaction is favoured after communication with the concerned company.
It is an attempt from both buyer and seller to value that company in which the acquiring company has shown interest, in a way that would prevent the M&A transaction. The buyer would value the company at the least possible price for it to purchase the company and the seller, in turn, would value the company at the highest price possible for it to go beyond the purchasing power of any other company.
There are certain metrics on which the valuation of a company is carried out:
Price Earnings Ratio- This is an offer made by the acquiring company as to the price payable to the other company being multiple of their earnings.
Enterprise-Value-to-Sales Ratio- The acquiring company makes an offer of the transaction which is multiple of revenues of the other company.
Replacement Cost- The acquiring company would warn the other company to either accept the transaction at their terms or they will replace the company.
Discounted Cash Flow- The tool to determine the company’s current value by estimating future cash flows. There is a link between future estimated cash flows and the present value of the company.
Legality of M&A transactions in India
The M&A transactions are legally identified transactions that are enforceable under various statute laws:
Companies Act, 2013
Section 232 of the Act provides for the Tribunal’s power to call a meeting of the companies that are merging. The compromise must be for the reconstruction purposes of the companies. All the undertakings and liabilities of the company are required to be transferred to the other company. Section 233 provides for the procedure of the merger of certain entities, the description of the entities is provided in the section.
Section 237 of the Act provides for powers of the Central Government to merge companies in the public interest.
Securities and Exchange Board of India (Listing Obligation & Disclosure Requirements), 2015
Regulation 11 of the Listing Regulations provides that arrangement of financial transactions like merger, acquisition, amalgamation, etc does not violate the provisions of securities laws.
Regulation 47 of the Listing Regulation states that all listed entities that want to undertake arrangement must file a draft of stock exchanges to obtain a no-objection certificate from the Tribunal.
Income Tax Act, 1961
The provisions of the Income Tax Act, 1961 has identified M&A transactions as legal entities entitled to pay taxes as a single entity. It also states the need to transfer all capital assets from one company to the other company on amalgamation under Section 47 of the Act.
M&A transactions impacted by COVID-19
As per the experts, the most probable impact of COVID-19 would be a worldwide recession. The recession would mean an increase in the rate of unemployment, lack of demand in the market, low money supply in the economy and other such negative effects.
The companies could sense the futuristic impact of the COVID-19 on the Indian economy and make informed decisions to not put themselves in a disadvantageous position. The current scenario would be dictated by the ability of each company to expect the ratio of their incomes to expenditure. A positive ratio would motivate the companies to make quality transactions while a negative ratio would force the companies in taking precautionary measures to mitigate the losses.
The following are a few ways in which M&A transactions would be impacted in India:
Valuation
The expectation of the risk posed by the virus on the Indian economy is the subjective evaluation by each company. Every company would be valuing their company on the expected future capital assets worth. Some companies would be able to succeed even in the period of recession while some might struggle to earn adequate amounts. The uncertain future situation would lead the companies in holding back transactions, in debit or credit. The companies would be thinking of valuation by adjusting factors affecting it to function on minimal costs.
Material Adverse Change (MAC)
The volatility of the M&A transactions calls for a clause to be accepted as a protective measure to mitigate risks. Material Adverse Change is a clause which is available since the time of entering into the agreement until the completion of the transaction. This provides the right to either party to terminate the contract in case of an event that negatively impacts the economic viability of the companies. This clause would be utilised by the companies if the situation under COVID-19 becomes such that significantly affects their economic ability.
Assurances in form of Warranty
The applicability of MAC clauses in the M&A transactions would allow the companies to not fulfil their obligations as per the terms of the contract leading to major losses of the other company. Certain assurances in the form of warranties would be demanded by the parties to the contract to safeguard their interest while being satisfied with receiving monetary or non-monetary compensation in the non fulfilment of the contract by another party.
Middle of a transaction
In the present situation, the companies that are in the process of completion of M&A transaction estimates a certain loss in the future due to limitations placed during the COVID-19 occurrence, has to decide among the present situation and future expected situation while valuing the other company and benefits it would bring to them. In such cases, a number of fallouts may be recorded with only a few taking the risks.
Conclusion
The M&A transactions are a form of contracts which are among companies to consolidate with each other after a process of valuation being carried out. The merger is the mutual coming together of financially equal companies while the acquisition involves a company acquiring the assets of the other company replacing the Board of Directors of that company. In both cases, the singular entity is established with complete right over decision making. These transactions are legal in India under various statutory provisions.
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This article is written by Vandana Shrivastava, a student of B.A. L.L.B.(Hons.) at the Institute of Law, Nirma University, Ahmedabad. This article highlights several issues that would arise due to the recent outbreak of the pandemic in India. Those issues belong to different forms of litigation. The issues and their respective laws have been discussed.
Introduction
Determination of current and potential work is essential for survival in the legal profession. With temporary cancellation of Court proceedings, there are abundant cases to be taken up before the Courts after the resumption. A lockdown does not signify a pause on legal disputes. In fact, lawyers should utilise this time to identify emerging disputes so that those issues could be thoroughly researched beforehand.
These are hard times. Despite considerable efforts by the government of India, certain disputes are bound to arise, such is their nature. The placement of lockdown was inclusive of a sudden halt on all activities, which largely comprises the day-to-day lives of people. This article is an illustration of all possible disputes of legal action which could arise in India due to the pandemic of COVID-19 in the country.
Kinds of litigation that can arise out of disputes caused by COVID-19 crisis
Breach of contracts
Breach of a contract makes the party which has so breached the contract liable to pay compensation to the aggrieved party. A similar situation of breach of contract is becoming prevalent in India. Landlords across the country have been harassing their tenants who are engaged in medical and aviation services to evict their residencies.
Before renting out a property to someone, a written agreement has to be drafted and signed by the owner and tenant. The Acts associated with rental services, which differ from State to State have specified the sole grounds for the eviction of a tenant. The grounds include non-payment of rent, subletting the property to a third-person without the landlord’s permission, doing acts in the property or acting in a non-acceptable manner.
None of the grounds are breached by the medical and aviation staff. On the contrary, unwilling doctors are being forced to perform their duty or face suspension. Similarly, aviation staff was not allowed to take leave to avoid travel. They are required to be quarantined at home by the government, except when duty calls.
Additionally, a tenant who is using the property for residential purposes is also a consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986. Any breach in the agreement or a disturbance to the tenants would be wrong against a consumer.
Frustration of Contract
Market operations had to be stopped within 4 hours of the announcement of the lockdown. Market trust is based on contracts. There are manufacture, sale, and delivery of goods under a contract. The lockdown was inapplicable only on essential services, which were decided by the government. Among all things, the order would’ve had a significantly adverse effect on the sale of perishable goods.
The frustration of a contract is based on the Doctrine of Frustration. The doctrine could be enforced in situations where performance of the object has become impossible due to an unforeseen event. Essentially, none of the parties to the contract have a fault in frustration of a contract. Force Majeure is covered under the doctrine. It exempts the parties to the contract from their liabilities and/or obligations when an unforeseeable or unavoidable event takes place. It includes events such as riots, strikes, epidemics and events like floods, tsunamis, earthquakes and volcanic eruptions that are covered under the Act of God.
Every non-performance of contracts, except for contracts concerned with essential services would be covered under Force Majeure, as long as the same can be proven before the Court.
The doctrine of Frustration is divided into specific categories, to help in the interpretation of the applicability of the doctrine in cases:
Destruction of subject matter
Death or Incapacity of party
Subsequent Impossibility
Government Intervention
War
Extension of Limitation
Before moving forward, it shall be noted that the Supreme Court was taking up Court proceedings via video conferences after the placement of lockdown. Proceedings were being conducted in subordinate Courts as well. Later, on realisation that most of the Courts do not have access to the same technology and continuation of physical proceedings would endanger the lives of many, the Court passed an order of discontinuation of all proceedings in all the Courts of the country and extension of the limitation period under all types of cases.
The Court has the special power to pass such orders under Article 141 of the Indian Constitution. The Limitation Act, 1963 allows suits, applications and appeals to be filed before the Courts till a specific period. The apex Court’s decision would be binding on all Courts under Article 142 of the Indian Constitution.
Hereafter, all the disputes discussed under this article fall under the ambit of the Limitation Act and would be bound by the Supreme Court’s order on the extension of the limitation period.
Insurance litigations
Health/Mediclaim and Life Insurance: The patient count of the novel coronavirus is rising in India every day. Many of those patients have health insurances or mediclaim policies. If a person who has any of these insurances is diagnosed with COVID-19, claiming insurance would not be easy.
Commonly, insurance companies give a detailed account of the types of diseases which will be covered under insurance claims. COVID-19 is new, and there could not be a special category for the virus in insurance premiums. Therefore, insurance companies will make attempts to pull the novel virus out of any of their insurance categories, to avoid indemnity. The same will cause disputes.
Corporate Insurance: The lockdown led to a sudden stop of all market activity. For unforeseen or inevitable situations where there is a loss of profit, Corporations take insurance of material damage and business interruption. In case of any of these, the Corporations could claim insurance. However, material damage is only inclusive of loss by fire or flood or any pre-decided cause. Business interruption can be claimed solely when there is material damage. Identification of enforceability of Corporate Insurance could cause disputes between the parties.
Employee Insurance: COVID-19 and lockdown are causing losses to the business. As a repercussion, many jobs would be lost to recover from losses. If an employee loses their job without their fault, they are entitled to claim “unemployment cash benefit policy” under Employees’ State Insurance (ESI). While the entire purpose of establishing ESI is to provide support to employees, a situation could arise where an employee would have to provide evidentiary support to prove that they became unemployed due to the pandemic and there was no fault on their part.
Marine Insurance: Due to the imposition of travel ban amidst the outbreak of pandemic in India, a heavy amount of cargo has been left unattended at various ports. The Marine Insurance Act of 1963 governs marine insurance claims.
Because all ports across the nation are in the same, stagnant position, several disputes on the payment of insurance claims will arise. Cases concerned with insurance are governed under the Insurance Act, 1938.
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Commercial Disputes
Commercial disputes are governed under the Commercial Courts Act, 2015. The major disputes in the sector would be concerned with frustration of contracts and would distortion of joint ventures. Joint ventures are entered into for a specific period of time or for a specific reason. The lockdown would affect the dates of ventures and develop complexity. All those cases which have a limitation period of 3 years would be a part of the extension of the limitation period.
Negligence: The Government has imposed a lockdown to curb the spread of the pandemic. Due to negligent acts of several people, the rate of people diagnosed with COVID-19 is rising. Performing a negligent act that endangers the lives of other person(s) by posing a risk of a disease is a punishable offense under Section 269 of the Indian Penal Code, 1860 (IPC).
Disobedience to Quarantine: Prior to the placement of lockdown, the government had ordered all the people arriving from foreign countries to stay under quarantine for a period extending to 14 days. People who disobeyed the order spread the virus to other people. Their carelessness has contributed to the rise in patients. Section 3 of the Epidemic Diseases Act, 1897 has criminalised the act of disobeying the orders of government amidst an epidemic under Section 188 of the Indian Penal Code, 1860.
Adulteration of Drugs: People have been advised to clean their hands frequently. Given the large population of India, there are not enough sanitisers and disinfectants for all people. Cases of manufacture and sale of adulterated sanitisers, handwashes, and fake drugs, claiming to be a cure for COVID-19 have been exposed. Such acts are crimes under Section 274 and Section 275 of the IPC. Manufacture of drugs and selling them on a false claim of being a cure for COVID-19 would amount to the offense of cheating as defined under Section 415 of the IPC.
Domestic Violence: Patriarchy is still prevalent in parts of the country. Victims of abuse and violence would be staying with their abusers right now. After the lockdown is lifted, they might break free and file complaints against the same. Section 498A of the IPC criminalises the act of cruelty, which is associated with domestic violence.
Medical Negligence/Malpractices: People could be wrongly diagnosed with COVID-19 and be treated for the same. If the patient count goes too high, doctors might overwork themselves and act negligently. Also, if hygiene is not maintained by a doctor or medical staff, they could infect innocent people with COVID-19. For foregoing reasons, there is a probability of such cases coming into light very soon. This act will arise liability under Section 304A of the IPC and a consumer complaint under Consumer Protection Act, 1986.
Constitutional Law
Right to Life: The State has ordered all people to stay indoors, except to buy essential items. Police posts are established in every region to ensure that no one goes out unless it is urgent. Article 21 of the Indian Constitution states that every person has a right to live peacefully unless there is a reasonable restriction.
Several instances of police brutality have been exposed. Policemen have hit civilians without asking their reason behind coming out on the streets. Such action by the Police is unreasonable and is equivalent to the crime of battery.
Right to Privacy: False lists of people diagnosed with COVID-19 are being circulated nationwide. Those lists consist of original details of people who are not diagnosed with the virus in reality. Spreading such information without the consent of subjects of information is a violation of the Right to Privacy under Article 21 of the Indian Constitution.
All such acts which amount to interference in another person’s life would be an unconstitutional act.
Racial Discrimination: People from the North-Eastern parts of India are facing racism in the country. They are harassed by people who allege that they are of Chinese origin and are responsible for the outbreak of the pandemic in the country. Such acts infringe Article 15 of the Indian Constitution which states that there could not be any discrimination on the basis of race.
Conclusion
The world does not witness a pandemic frequently. In the process of doing right, there would be many wrongs. Such wrongs need to be rectified and made just by the application of the law. Law is very broad and people specialize in different laws. There persists an urgent need of combined efforts from all the people involved in the profession to interpret the law in a manner that is most suitable for all.
There are several technical or uncommon forms of disputes which are yet to happen. The current article is an eye-opener to make lawyers realise that there is a need to stay updated with all incidents around the world. It will help in combating potential problems that would arise as a consequence of COVID-19.
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This article is written by Anubhab Banerjee, currently pursuing BBA-LLB (Hons) from the School of Law, Alliance University. This is an article which deals with the professionals who need to learn about tech contracts.
Introduction
Globalisation has increased our dependence on the Internet in today’s world. There are various jobs and various kinds of work which are carried out by MNCs, small companies as well as by governments online.
Increasing use of online platforms has facilitated e-contracts/electronic contracts/tech contracts in becoming a very important aspect of interconnecting people around the world. E-contracts are edging towards replacing conventional contracts because of certain advantages such as security i.e. through digital signature, ease of tracking and eventually the ease of constructing such contracts.
These are the kinds of contracts for which the user is just not limited to legal professionals, they have been simplified in such a manner that they can be used by varied professionals around the world. This article presents an idea about the use of e-contracts by professionals other than those related to law and the advantages of the use of such e-contract.
Other professionals who need to learn about tech contracts
The concept of e-contracts should not just be limited to lawyers. E-contracts have endless boundaries and various professionals in different aspects of life need to have a general idea about e-contracts.
Some of these Professionals who should have knowledge with regards to e-contracts are:
Chartered Accountants
They are the professionals who are responsible for handling accounting and auditing work across various sectors of the economy. They are responsible for performing tasks such as managing the finances of an entity, providing financial advice and helping their clients out with money management. They not only do this work for different businesses but also individuals and governments. With the advent of globalisation i.e. the world having been connected better and the rise of transactions through online mediums, it is important for them to have sufficient knowledge about e-contracts, as that would help them firstly assess the details about the contractual obligations of their clients well. And secondly, having sufficient knowledge about e-contracts also helps them in expanding their business through online forums, where e-contracts have become the most effective way of signing up for a particular service.
Company Secretaries
Company Secretaries are considered to be one of the most important organs of a business. Their main responsibilities lie in the areas of administration of a company. They look after compliances with regards to the statutory and regulatory provisions concerning the company they are working for. They are concerned with ensuring that the decisions of the board of directors are implemented in the policies of the company well. Company Secretaries are professionals who should be well accustomed to the concept of e-contracts as they need to check with the statutory and the regulatory provisions laid down by the respective bodies for a company to enter into particular kinds of transactions and advise their companies accordingly.
Contract Analysts
As the name suggests, contract analysts are people who help companies in avoiding disputes with regards to the contracts which they enter into. If any such disputes with regards to contracts arise then they can lead to lengthy court battles, huge legal costs, negative publicity, etc. and can end up being disastrous for a company. Thus, the work for contract analysts is mainly associated with saving the companies from such troubles which they might end-up entering into because of faulty contracts or any other obligations in a contract which might function against the principles of such a company. They are responsible for assessing every contract that a company they are working for are entering into i.e. they are responsible for analyzing all the clauses, stipulations and liabilities provided under a contract to ensure that such provisions suit the company. Thus, it is vital that they have proper knowledge with regards to the requirements and validity of e-contracts.
Work from Home employees
As mentioned earlier, globalisation has played a huge role in bringing the world closer. Nowadays it is possible for potential employees to seek jobs from employers online i.e. employees can seek jobs in which they can work from home and are never actually required to be physically present at the offices of a company they are working for. These kinds of jobs can either be temporary, permanent or part-time. The considerations for such jobs are mostly done online and thus, the employment agreements between the employers and the employees are mostly through e-contracts. Therefore, the HR’s of a company who are hiring such employees and the employees who are applying for these work from home jobs, both should be well aware of the legal implications associated with e-contracts.
Brokers at the stock market
The stock Market and its functionaries nowadays have become online and have been made easily available to most people. People can now access the stock market from their homes. Although, for this, they need to enter into certain contracts and follow the required legal provisions associated with it. Most of these contacts are the ones which are performed online. An individual who is interested in the stock market and wants to invest or trade in stocks has to do so with the help of a broker. A broker is an individual or a firm which provides a platform for investing or trading for the people who are interested in doing so. They are basically the intermediaries between an investor and a securities exchange. A broker or a brokerage firm acts as an agent for its customers and charges a particular commission for their services. Since most of these services provided by the brokers are online, even the contracts which these brokers enter into with their customers are mostly by the means of e-contracts. Thus, it is important for them to have proper knowledge with respect to the functioning of e-contracts so that such contracts do not end up landing them into trouble because of a lack of knowledge and blindly following the market trends.
Retailers on different e-commerce platforms
Retailers are the people whom we generally know as merchants. They deal with buying and selling of goods with the purpose of earning profits. Retailers are the people who buy the goods from wholesalers and get those goods to the markets for the purpose of selling them to people with an intention to earn profits out of such transactions. These retailers or merchants can either have a physical presence or online presence. The retailers who have an online presence are the ones who should hold sufficient knowledge about e-contracts. As with the immense rise in e-commerce and mainly online shopping when we are concerned with such retailers, it has become important for them to have an online presence to keep a stronghold on the competition in the market. Most retailers nowadays are associated with e-commerce platforms for selling their goods. These retailers and the companies operating the e-commerce platform never actually meet in person, though, they have contracts which exist between them. This process is facilitated with the help of an e-contract. As e-contracts have become one of the most important aspects of e-commerce it is expected that even such retailers associated with e-contracts have a basic knowledge concerning e-contracts.
Governmental Officials
Government officials are the professionals who act as intermediaries between the government and the public. They carry out several functions such as coordinating legislative efforts by working with state, local and federal governments as well as the media. Government officials are responsible for performing research and managing internal and external communications on behalf of the government, as a part of their jobs. They are also responsible for creating policy proposals on behalf of the Government and work with different government agencies and the public in general. For the above-said functions they might require a certain degree of knowledge with respect to e-contracts as with most countries around the globe desiring to become digital economies, these people would need to maintain government records, along with checking or verifying such records which deal with e-contracts signed on behalf of the States. Thus, a certain degree of knowledge with regards to electronic contracts is required by government professionals.
Production Houses
Production Houses are basically businesses concerned with producing either live or recorded entertainment. They can be companies which are associated with hosting live concerts, facilitating the making and distribution of films and television programs, etc. Production houses are often responsible for financing films and television shows and hence are responsible for making budgets with regards to the cast and crew for these films. These production houses in their daily course of business come across several forms of e-contracts, which they are supposed to enter into. Thus, the members of these production companies who are the ones usually responsible for entering into such contracts should be well accustomed with the provisions with regards to e-contracts, as the lack of such information can end up causing huge financial losses to their companies in case of any mishap.
Sports Managers
As their name suggests these are the people who are responsible for handling the different business matters which are associated with the athletes whom they are representing. Certain professionals are even involved in managing different teams in the field of sports around the globe. A sports manager is the one who is responsible for arranging media events, managing relations, organizing promotional events, etc. for the teams or the players whom they are representing. They shall also be responsible for managing the finances for the individuals or organizations which they work for. It is a common practice among sports managers to hire players, coaches and staff for clubs, facilitate player transfer if the individual they are representing is changing his/her club, etc. Most of the work which is done by sports managers involves a huge number of contractual obligations. With the online platform being regarded as one of the safest means of storing data, a lot of the contracts handled by these managers on behalf of their players or clubs are constituted through online means and are in the form of electronic contracts. So having a clear idea and proper knowledge about e-contracts is very important for such sports managers in today’s world.
Nutritionists & Doctors
Health has become a rising issue in the lives of people because of the unhealthy food routines that we have developed now. This is where nutritionists come in and help us design our diets accordingly. Such healthy diets eventually help people in the aspect of improving their health conditions. Nowadays people do not have time to pay timely visits to a nutritionist. So most nutritionists have started providing online services for their clients or the people who opt-in for such. Doctors as well up to a certain extent provide medical advice to their patients online. There are certain e-contracts which they enter into when a customer signs up for their services. Thus, they should have proper knowledge about such kinds of e-contracts as there are various legal complications attached to providing medical and dietary advice to people and only when they are well aware about the functioning of e-contract should the doctors start giving such nutrition-related or medicine-related advice to their clients online. Otherwise, they might land themselves into trouble if those e-contracts are not tailored as they would have wished them to be and it might become very difficult for them to handle consumer complaints which arise due to the flaws in such contracts.
Fashion Designers
The fashion and textile industry is one of the most globalised industries in the world. As fashion is something which isn’t limited to just one area in the world but once a trend is set, it is followed throughout the world. Thus, designers and fashion related companies around the world are conducting their businesses across various areas in the world. The fashion industry might have a design made in India, manufactured in China and sold in Europe depending upon the cost and quality of products available across different areas in the world. Fashion Designers are the heart and soul of this industry. As most of the work carried out in this profession has such a global perspective to it, electronic contracts make it easier for people sitting at two corners of the globe to enter into a contract without actually meeting every time they need to enter into a contract. Fashion Designers have certain things to worry about such as the Intellectual Property Rights for their designs which are being sold to their clients. For such purposes when such a person is entering into an e-contract with his/her clients it is expected that they have minimal knowledge about such e-contracts so that they are not fooled by any aspects of such a contract because of which their hard work goes in vain.
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Advantages
The importance of the internet and e-contracts across several professions has already been discussed above. There are several advantages associated with having a certain degree of knowledge with respect to e-contracts. Some of the advantages which a professional who has knowledge about e-contracts would have over those without such knowledge are as follows:
Ease of Use
Online Agreements or E-contracts are very easy to use, as online templates for these agreements are easily available online. A person creating an e-contract just needs to choose a suitable template, fill in the required details and attach their digital signatures. Anyone can use e-contracts with minimal knowledge.
Low Transactional Costs
Electronic contracts automatically reduce the costs of an organization while considering the construction of a contract. As with such easy to fill contracts available, organisations or individuals do not have to hire legal professionals, who charge high legal fees, for the purpose of framing a contract for them.
Time-Saving
It saves time as for the purposes of entering into an agreement the parties do not have to meet each other physically and can perform all their obligations through an online platform where all required considerations for such e-contracts can be discussed, and then signed accordingly.
Helps in Avoiding Errors
Manually made contracts though are made with precision might at times have certain errors in them. E-contracts, on the contrary, are made and updated by legal experts and are proofread multiple times to avoid any errors in them.
Enhanced Securities
All e-contracts need a confirmation to be attached to them by the means of a digital signature. Digital signatures help enhance the privacy and security of such contracts as once a digital signature is attached to an e-contract, it cannot be copied. Hence there is no manipulation possible for such contracts.
Reduced Operational Costs
E-contracts help reduce operational costs such as that of paper, printing, post, ink, etc.
Electronic contracts help improve customer service
E-contracts help businesses and individuals to connect with their customers faster as it is a simple process where such a digital contract i.e. an e-contract can be sent to a customer at any corner of the world and can be entered into in a matter of minutes. Thus, it helps save time and effort for both the customer as well as the business/individual.
E-contracts are much easier to monitor, track and find data associated with them
E-contracts are mostly available in online databases, which makes them all the more easier to be searched or tracked when required. Such is mostly not the case with usual contracts on paper as they are subject to being lost, misplaced, etc.
Environmental impact is almost negligible
With the world looking forward to more environmentally sustainable means in all sectors, e-contract plays a huge part. E-contracts eventually help reduce the usage of paper and ink which is a huge pro in this aspect.
What is the overall impact of such professionals knowing about e-contracts
There are numerous advantages of knowing about and using e-contracts. With the popularity of e-contracts rising through different professions and being applied at different instances because of the ease of using them, they are starting to have a huge impact on all sectors of life.
Before the advent of e-contracts professionals always had been heavily dependent on lawyers and legal professionals for the purpose of tailoring a contract as per their needs. This process of hiring legal professionals for such contractual needs used to cost these professionals a lot and now with e-contracts having come into the scene such costs have been reduced significantly and in some cases have even become negligible. There are free templates for e-contracts available online which can be tailored according to the requirement of these professionals by themselves. The only requirement is just some basic knowledge about e-contracts and digital signatures.
It’s not just the convenience of entering into contracts that is facilitated by the use of e-contracts. It has an enormous effect on the environment as well. The environment and its degradation has become a global concern. With the degrading quality of the environment, it won’t be long before the Earth is no longer able to support life on it. Thus has come up the concept of environmental sustainability according to which we should use the resources available on Earth in such a way that we end up saving those resources for the future generations to come as well. Paper has also been considered to be one of the materials which has a huge environmental impact. Be it the making of paper or be it dumping everything associated with paper, it has its own environmental consequences. Thus, if all professionals pledge to shift towards a digital medium for entering into contracts such as e-contracts instead of using the traditional forms of contract on paper, then such a step would eventually help save a lot of trees and help the environmental footprints for such individuals.
Along with all its environmental benefits, e-contracts in today’s date is considered to be a much-secured form of contract, which are easy to track as well. Considering all these factors the impact that e-contracts have on all of the above-mentioned kinds of professionals and others can be incredible with the increased use of such types of contracts.
Conclusion
In today’s date, e-contracts are no more the future, they are an instrument of the present. More and more professionals and people around the world should start getting accustomed to e-contracts and their use. E-contracts have proved themselves to be an example of ‘technology making lives easier’.
This article is written by Vandana Shrivastava, a student of B.A. L.L.B.(Hons.) at the Institute of Law, Nirma University, Ahmedabad. The article illuminates a variety of cases which will arise after the lockdown is lifted, with the intent of intimating lawyers to be prepared with concerned legal work, which is highlighted as well.
Introduction
The world is currently struggling to fight a pandemic. In India, the lockdown imposed by the Central Government combined with the rise in the number of people diagnosed with COVID-19 has instilled fear in the minds of people. When this is over, it’s going to take a while before things settle up. The lawyers and law firms across the nation need to be prepared with potential works beforehand to avoid wasting time later.
All client meetings, court proceedings, and meetings stand cancelled or postponed. There is the paperwork that needs to be filed on the resumption of the Courts. The internet and technological devices are our savior in this hard time.
After the lockdown is lifted, there is going to be a plethora of legal work to be done. Given India’s high population, lawyers are going to earn big, but there could also be too much work to handle. So, buckle up. This article seeks to highlight the things which all concerned law firms should be ready for in advance.
Kind of legal works which is likely to flood law firms after the lockdown is lifted
Courtroom appearance
Few Courts in India began to take up online court proceedings via video conferencing. The majority of the Courts in India became non-functional because they lack resources and the workers are not trained for conducting online Court proceedings. Their work largely depends on paperwork. Moreover, the continuation of Court proceedings would have gathered many people, defeating the purpose of lockdown. Therefore, the apex Court stopped all proceedings until the continuation of lockdown.
The usual conduct of Court proceedings in India is on a halt. India has a high number of pending cases. Amidst the lockdown, old cases, current cases, and potential cases are all waiting to be heard in the Court of law. When proceedings begin again, lawyers and law firms would be required to act fast. The number of pending cases before the Court would be higher than ever. Wasting time would slow down the judicial process, adding to the pile of pending cases. Therefore, it is necessary to act fast and be prepared.
Firms should:
Draft legal notices to be sent. Be prepared with their replies to legal notices on behalf of their clients which have been received by them.
Prepare their clients for statements that they would be giving on the resumption of the Court.
Draft the paperwork for their cases- affidavits, bail and anticipatory bail applications.
Prepare their clients for cross-examinations, and should prepare for cross-examinations of the opposite sides.
Issues of limitation
Under the Limitation Act, 1963, the phrase “period of limitation” has been defined under Section 2(j) of the Act as a period until which any suit, appeal or application can be filed before the Court. Such a period will depend on the nature of the case, as defined under the Schedule of the said Act.
The apex Court had been taking up proceedings via video conferences amidst the lockdown. The Court is aware that lower Courts and Tribunals do not have adequate resources to adopt the same. Therefore, the Supreme Court gave an order after the placement of lockdown, granting an extension of limitation to all cases in all the Courts across the nation, irrespective of their nature of limitation.
The Court has a special power to pass such an order under Article 142 of the Indian Constitution and by the virtue of Article 141, all orders of the Supreme Court are binding on all subordinate Courts.
Corporate Sector
Matters relating to Company law are heard by the National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT). In the light of the Supreme Court order regarding extension of limitation, until the lockdown is lifted, both tribunals have issued notifications in consonance with the order, extending the period of limitation for filing applications.
Commercial Cases are covered underthe Commercial Courts Act, 2015. Schedule 1 of the Limitation Act lays down the limitation period for all cases governed by the Act. All commercial cases having a limitation period of 3 years under the Limitations Act can be filed in reliance with the Supreme Court’s order on the extension of the limitation period. Ongoing cases and pleadings will also be continued after the resumption of Courts.
Effect on cases related to Civil Law
Contractual Cases
Business transactions are largely associated with contracts. Entering into a contract creates a legal obligation on the parties to abide by the terms of the contract. This way, if any of the parties to the contract breaches their duty, the other party can sue them.
This topic is essential for this article because many cases of a breach of contract are going to arise during the lockdown. The principles associated with a breach of contract are discussed below.
Frustration of Contract
A contract is frustrated when the performance of such a contract becomes impossible due to an unforeseen event. Under this, none of the parties to the contract are at fault. The essence of trade is contract, either written or unwritten. Due to the lockdown, several contracts could not be performed. Force Majeure acts as a supplement to the doctrine of frustration in exempting the parties to a contract. It is a general provision in contracts, which includes unforeseeable natural events that hinder the performance of a contract.
Several contracts could not have been performed due to the lockdown. Once things get back to normal, multiple people will file lawsuits to claim losses from non-performed contracts. For these cases, Force Majeure could be enforced.
There are certain defenses of doctrine of frustration which would be common to the lawsuits:
Subsequent impossibility: When the parties entered into the contract, it was legal and there was no foreseeable hindrance to the performance of the contract, but it arose subsequently, owing to which the contract could not be performed.
For instance, let’s assume that a production house had entered into a contract with an actor, which states that the actor will work for the said production house from January 1, 2020, to April 10, 2020, to act in a movie. The lockdown was imposed from March 25, 2020, to April 14, 2020, and the people have been asked to stay in home quarantine by the government. People are not allowed to gather for any reason whatsoever. In such a case, the contract between the parties will terminate on April 10, but they cannot shoot the movie due to restrictions imposed by the government.
The contract, when entered, was legal. However, due to unforeseen and inevitable events, the contract could not be performed by either of the parties. Neither of the parties will be liable for claiming damages or compensation from each other.
Destruction of the subject matter: When the underlying purpose of the contract ceases to exist. For instance, there was a contract of sale of fresh fruits between two parties. If a van containing fruits which were to be delivered in one day took 5 extra days to reach the destination due to lockdown, perishing the fruits to the extent that they become non-consumable, they would be rendered as destroyed.
Death or Incapacity of the party: If a person who was diagnosed with the novel coronavirus entered into a contract but died before the contract could be performed, then the other party would not be able to claim compensation. Similarly, if a singer was supposed to sing in a live concert but the concert was canceled due to the lockdown, such a person would not be liable because he/she is incapable of performing the contract.
Government, administrative or legislative intervention: The government has imposed several restrictions, allowing the operation of essential services only. Various manufacturers throughout the country are currently suffering because their products are not yet manufactured, or ready products cannot be transported due to travel restrictions. This includes textiles, automobiles, technological devices, and luxury items.
The intervention of war: Several nations and people believe that China has waged a biological war against the entire world by spreading a virus so deadly. This could act as a possible defense against non-performance of contract.
Breach of Rental Agreements
Medical and aviation staff are facing harassment amid the pandemic. Neighbours are filing complaints seeking their eviction, stating that they are endangering the lives of many. Many landlords have issued eviction notices to their tenants who are employed in medical services and aviation.
All States have different Acts to govern rental services. General grounds for evicting a tenant in India, when there is a fault on tenant’s part are non-payment of rent, subletting the rented property to another person without landlord’s permission, using the rented property for illegitimate causes, loss of value of property, objectionable conduct by the tenant and conversion of property.
A landlord cannot ask a tenant to evict the property unless the landlord requires the property for personal use. Issuing eviction notices to medical and aviation staff will, therefore, amount to harassment. They could file complaints against neighbours and landlords for disruption of peace and harassment.
Not only this, issuance of eviction notice without valid grounds is also a breach of the rental agreement.
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Insurance recovery cases
Mediclaim Policy and Health Insurance
Persons who have been diagnosed with COVID-19 will claim expenses of their hospitalization from the mediclaim policy of their insurance company. The ones who have health insurance wound claim the entire expense from their insurance company.
Very often, these insurances cover specific pre-stated diseases. The novel coronavirus is not covered under the policies of insurance companies unless there is a general term that is inclusive of viruses or life-endangering diseases. With the current rate of increase in the number of patients, insurance companies would attempt to evade insurance claims. Therefore, thorough interpretation is the only means of recovering insurance from companies.
Corporate Insurance
Corporations in the country take insurance to cover loss of profit. The same has two categories- material damage policy and business interruption. The former could be enforced when there is a loss due to unforeseen inevitable accidents like fire or flood. It is usually specified while adopting the policy. Business interruption could be claimed only when there is a loss due to material damage.
Ideally, whether or not insurance can be claimed largely depends on specificity of the terms of the insurance. Use of general terms like unforeseeable events makes the scope of claiming insurance premium very large. Most of the firms have their employees working from home. Despite that, productivity could not be as much as it is in the normal course of operations.
Many businesses are going to suffer losses in the foreseeable future. For the same, there are going to be several insurance claims. Insurance companies would not go about indemnifying every firm for its loss.
Employees’ State Insurance
Industrial workers are entitled to Employees’ State Insurance (ESI) as a part of a scheme by Employees’ State Insurance Corporation (ESIC). The pandemic has had a tremendously adverse effect on the world economy. India is facing an economic crisis as well.
The fall of an economy is directly proportional to the increase in unemployment. When an industrial worker loses his/her job without their fault, they are entitled to unemployment cash benefit policy of the ESI. Ongoing market conditions give a hint of potential unemployment in the industrial sector.
ESI is an autonomous corporation which was established by the Ministry of Labour and Employment in India. Though it was set up for employee benefit, there are still chances of certain employees not receiving their rightful benefit. In lieu of the same, there are going to be controversial claims which might require legal representation.
Criminal Law
Negligent and Malignant Acts
There are several people who do not understand the grave threat posed by COVID-19 to humanity and the importance of social distancing. Some people understand it, but they deliberately break the law because they are resistant to a change in their life. However, a threat to humanity is greater than the comfort of an individual.
Section 269 of the Indian Penal Code, 1860 (IPC) states the punishment for negligent acts of people which risk the lives of others or infect someone else with a life-endangering disease and Section 270 of the Code lays down the punishment for a malignant act of a person which poses a threat to, or endangers someone else’s life. The difference between the two sections is that the former lacks an intention to commit the crime and the latter possesses an intention to perform the criminal act.
Disobedience to Quarantine
All the persons who have returned from foreign countries were asked to stay under home quarantine for 14 days from the date of their return. When a person is hit by COVID-19, it usually takes five to 6 days to begin showing symptoms. If the movement of such a person is not restricted, that person could infect all those which they meet.
Disobedience of quarantine due to foreign travel and lockdown is to avoid risking the spread of the virus. Section 3 of the Epidemic Diseases Act, 1897 has laid down the punishment for disobedience of quarantine under Section 188 of the Indian Penal Code, 1860.
All the people in India are currently in quarantine, and many are in isolation as per the orders of the Central Government. According to Section 188, any person who disobeys the order of a public servant and endangers the lives of others would be criminally liable for their act. Several people are disobeying the law by performing the aforementioned act. Several cases of this nature are going to arise in the forthcoming future because posing a risk to the lives of all the people.
One of the Indian celebrities who was diagnosed with COVID-19 had a travel history from foreign. She disobeyed her home quarantine and attended a party with 200 guests. The act amounted to an offence under Sections 269 and 188 of the IPC. There are many people with similar travel history who did not follow the guidelines laid down by the government. All these people would be criminally liable, and the persons who suffer due to their acts would be entitled to file a complaint against them.
Adulteration of Drugs
The WHO has advised people to sanitise their hands with alcohol-based sanitizers frequently, to avoid the risk of contracting the disease. People are also advised to use surgical masks, so that droplets from their sneezes and coughs do not fall anywhere. It is for everyone’s safety. India does not have a vaccine to cure COVID-19 but there are many companies claiming to have found a cure for the same.
Pharmacies across the nation are facing a shortage of sanitisers, disinfectants and masks. Cheap, adulterated sanitisers, medical appliances, disinfectants are circulating in the country. Central Drugs Standard Control Organisation (CDSCO) is the regulatory body in India for pharmaceuticals and medical appliances. Drugs Controller General of India (DCGI) is the department which approves new drugs in the country. Only then could a drug be sold in the country.
Section 274 of the IPC criminalises the manufacture of adulterated drugs and medical appliances, while Section 275 criminalises the sale of such products if the retailer knew about such adulteration and sold the products regardless. Any drug which is not approved is illegal and any person who consumes such drug could file a complaint against the manufacturer and retailer.
Cheating
There are several people claiming to have a cure for the novel coronavirus. If anyone endangers the life of a person on the pretext that such a person has a cure for diagnosed people and/or a vaccine for healthy people, when in reality, that person is acting maliciously, such person would be made liable under Section 415 of the IPC for the offense of cheating.
There is a large section of the Indian population that believes in superstitions and has faith in self-proclaimed saints. Such people are often robbed of their money. Many ill people die during their pseudo treatment from such deceivers.
Miscellaneous Criminal Acts
Theft
The lockdown has given an opportunity to habitual offenders. Thieves and burglars take undue advantage of the lockdown since most of the police force is engaged with saving the lives of many more people. People are not going to their offices and workplaces. There must be many cases of theft and robbery which will come into the light once things get back to being normal.
Not only this, stealing food grains out of fear of scarcity, sanitisers, and masks for either stocking them or for resale are few of the common crimes which are currently being committed. Their trials will begin after Courts reopen.
Domestic Violence
Many people, especially women and children are subjected to domestic violence in their homes. Normally, people have the option of going out. But during a lockdown, with nowhere else to go, many people would be subjected to domestic violence in their houses.
The victims might get a chance to evade and file complaints when the restriction on movement is lifted. There will then be a rise in such cases.
Medical Malpractices
Worldwide, doctors are working day and night to treat patients, trying to curb the spread of the pandemic. India is also witnessing a rise in the number of people diagnosed with COVID-19. If the number of diagnosed people continues to rise, there would be chaos.
A high patient count will lead to haphazard actions. Unhygienic conditions in hospitals, incomplete treatment, or anything which has an adverse contribution to any patient’s condition would force the wronged patients to file complaints against doctors.
Causing the death of a person through a negligent act amounts to the offense of culpable homicide under Section 304A of IPC. There is no specific provision for crimes committed by doctors. The Courts have developed criteria to check the liability of a doctor through the interpretation of the law in several landmark judgments.
A Bolam Test could be conducted to determine the liability of the doctor. If a medical association or a body acknowledges that due care was exercised by the doctor in medical terms, then the accused doctor would not be liable.
It is mandatory for healthcare workers to do their jobs at present. There are several doctors who are resigning from their jobs out of fear. Legal notices have been issued to such doctors for non-fulfilment of their duty and for breaking their oaths.
If a virus hits a person and an ill person is admitted in the same location, and the virus infects the ill person because due care was not taken by a medical worker, then they would be liable under Section 188 IPC and Consumer Protection Act, 1986.
If the virus spreads to the extent that doctor to patient ratio becomes too high to manage, doctors will have to prioritize between patients. A similar situation arose in Italy, where doctors had to choose among patients because they could not treat all patients at a time.
In the foreseeable future, there are going to be several new cases against doctors, hospitals and everyone associated with healthcare. Their prime responsibility now is to plan for a large patient count from now, so that when the situation arises, patients could be treated systematically. If the same is not done by the medical workers now, the death of any person caused due to medical negligence would be their fault.
In case of medical negligence and medical malpractice, the accused, if convicted, would be liable for punishment under the IPC and/or for compensation under the Consumer Protection Act, 1986.
Consumer Protection Cases
Ever since people anticipated a lockdown/curfew-like situation, they began hoarding or stocking goods. In a pandemic, every household tries to do the same, which leads to a shortage of goods. Manufacturers then begin to supply cheap, adulterated products to meet the demand. The consumption of such products deteriorates the health of people at large.
In the prevailing situation, if someone is hospitalized due to the aforementioned circumstances and that person contacts the novel coronavirus, a heavier penalty would be imposed on manufacturers. Section 2(1)(d) of the Consumer Protection Act, 1986 defines the meaning of a consumer.
Issuance of eviction notices to residential tenants, sale of adulterated products to a retail customer, medically negligent conduct and medical malpractice would all be triable by the Consumer Courts. If found guilty, the defendants would be liable to pay compensation to aggrieved parties. Such cases are going to escalate in the future, there is currently a shortage of numerous essential commodities.
Constitutional Law
Violation of civil rights of citizens
Central and State Governments across the country are conducting awareness campaigns, in addition to imposing a national lockdown. There are multiple videos of police brutality surfacing on the internet. The number is so huge, that a Public Interest Litigation could be filed against these people.
Unreasonable restrictions are being imposed on the public in the name of security. Besides this, there are multiple false rumours doing rounds in the country. These rumours state that a couple of States have issued shoot-at-sight warrants against people infringing on the lockdowns. Facts stated by a person should be verified by lawyers as well.
Infringement of Right to Privacy
In different regions, there are several lists of alleged COVID-19 diagnosed people. The lists are not released by the Government except for a few States. In others, there are people who are not even diagnosed, but their details are surfacing on the internet. This is done without the consent of the people concerned. Furthermore, false health updates of quarantined, isolated and diagnosed people harm their reputation. It is also an act of unlawful interference and disturbs people.
Non-maintenance of social distance with a person against their will would also amount to infringement of their Right to Privacy. Since many people are not following the instructions of the government, they may be sued by any such person whom they forcefully come into contact with and endangers their life. In a country with a population of more than 1.3 billion, hundreds of such cases will arise.
Racism
Citizens of North-Eastern origin in India are subjected to racial discrimination ever since the pandemic began to spread in India. There are instances of people calling them out for being Chinese and spreading COVID-19 in the country. Similarly, an instance of a man spitting on a North-Eastern girl, calling her Chinese was recorded.
In one of the regions in India, North-Eastern people were denied entry into a supermarket, alleging that they carry the novel virus and will infect others. A complaint was lodged against the manager of the supermarket.
Many similar incidents would not have been covered by the media, but there is gross racism in the country. It is violative of Article 15 of the Indian Constitution for discrimination on the basis of race and infringes Article 21 of the person concerned.
Miscellaneous Cases
Divorce Cases
A large part of the married urban population included both working spouses. People are used to a certain lifestyle. A sudden change, when people are locked in their houses for weeks could take a negative turn. Couples might realise their incompatibility. In one of the COVID-19 struck countries, there was a remarkable increase in the rate of divorce cases after lockdowns were imposed.
Animal Rights
It is alleged that the novel coronavirus spread from a man who ate a bat soup. Since then, several rumours have spread that animals carry the virus and spread it to humans, but the same has not been proven yet. There are no cases of animals infected with COVID-19 either.
Incidents of pet owners abandoning their pets in the streets have recently come into the light. Without any scientific evidence, there are instances of killing and abandonment of pets in many cities. Unreasonable abandonment of pets in a manner that hurts them in any manner as specified under Section 11(1)(i) and Section 11(1)(j) of Prevention of Cruelty to Animals Act, 1960 (PCA Act), would be punishable under the said Act.
Killing or maiming any animal worth more than 50 rupees is punishable under Section 428 and Section 429 of the IPC. Observing the high number of cases of cruelty against animals, there are going to be several complaints against the same.
Conclusion
Everyone must keep in mind that no one has seen a pandemic before. Combined efforts of all sectors are needed to restore the loss of the country. Lawyers and legal firms should be ready with potential legal work and research for timely justice. The motive should be the curtailment of the already pending number of cases in the country, instead of contributing more to it.
Many people are going to be wronged in the process of saving lives. It should be ensured that such people do not lose faith in the judiciary and are aided at all costs.
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This article is written by Khushi Sharma, currently pursuing B.A.LLB (Hons) from IIMT and School of Law, IP University. This is an exhaustive article which deals with all provisions of the Specific Relief Act, 1963.
Introduction
As the main objectives of the Act have been vested in the very title of this statute i.e Specific Relief; because of which all of us can have a basic understanding that the Specific Relief Act is a legal statute dealing with reliefs or recovery of the damages of the injured person. This Act was enacted in 1963 following the approach that when a person has withdrawn himself from the performance of a particular promise or a contract with respect to another person, the other person so aggrieved is entitled to a relief under Specific Relief Act, 1963. This Act is considered to be in one of the branches of the Indian Contracts Act, 1872.
Section 2(a) deals with obligations which are duties imposed on a person by the law or the legal body.
Section 2(b) deals with the settlement that means delivery of the movable or immovable property to their successive interests when it is agreed to be disposed of.
Section 2(d) deals with the word “trustee” which means the person holding trust in the property.
All other definitions which have not been explained herein are the same as referred to the definitions of the Indian Contracts Act, 1872.
Specific relief
Section 4 of this act explains that this Act grants special relief for the enforcement of individual rights and not for imposing penal laws. The enforcement under this Act only bases itself on the individual civil right and the substantive nature must be established for that fact. To be understood in a simpler way specific relief is related to providing relief for the infringed civil rights of the individual. Its main objective is to focus on the rights and if there is any penal nature of the case, it may have to be established for proving the same.
Recovering the possession
The recovery of possession of this Act is provided under two heads: recovery of the immovable property and recovery of the movable property. The law of Specific Relief Act,1963 works on a basic principle that “Possession is itself a prima facie evidence of the ownership”.
Recovery of the possession of immovable property
Section 5 explains the remedies available to a person when he is disposed from his property. If a person has been removed through the line of possession or wants to recover what lawfully is his property, then that person can do so through the recovery procedure provided by the Code of Civil Procedure, 1908 and in which the person will prove that the title belongs to him.
Section 6 of this Act details that if a person has been dispossessed or divested from the property against the nature of law, then that person can file a suit for recovery of possession. This section is not only a mere legal rule but also has a wide practical approach. There are certain essential requirements for fulfilment of recovery under this section that are as follows:
The person suing for dispossession must be in possession of that property.
The person must be dispossessed from the property and such divest from the property must be unlawfully done or must be carried out against the nature of law.
The dispossession must be without the consent of the person suing.
Section 6 sub-clause (2) explains that no suit can be bought by a person after the expiry of 6 months from the date of dispossession.
Section 6 sub-clause (2) also explains that no suit by a person can be brought against the government.
If the person has not filed any suit in the prescribed time period (section 6) then the only relief open to him is that of section 5 i.e to prove his title of the property in a better way. Section 6 has certain limitations which explains that if any order or decree has been directed by the court in regards to section 6 then, no appeal or review shall lie against such order or decree but such order is open to revision.
Recovery of the possession of movable property
Section 7 explains that when a person wants to recover the possession of the movable property, they can follow the procedure expressed by the Code of Civil Procedure,1908. section 7 has further two sub-clauses which further details that a trustee may file suit against the beneficial interest he was entitled to and the other sub-clause explains that the ownership of the property can also be expressed with the presence of a special right given to the person suing; which would be enough as an essential to file a suit.
Essentials of section 7 are as follows:
There must be a presence of movable property which is capable of being delivered or disposed of.
The person suing must have the possession of the property in question.
There may be an existence of a special or temporary right on the property.
Section 8 of the Specific Relief Act,1963 explains that when a person is in the possession of the article to which is he is not the owner, shall be compelled to deliver such article to the person who will have its immediate possession in following cases:
When the article is held by the defendant as the trustee of a person who has the immediate possession.
When compensation in money is not an adequate relief.
When it is difficult to ascertain actual damage caused to the person.
When the possession of the article has been wrongfully transferred from the person so entitled.
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Specific Performance of contracts
Section 10 includes in what condition-specific performance of the contract may be enforceable, specific performance usually depends upon the discretion of the court but there are certain conditions for performance which are mentioned as follows:
When the damages or loss occurred due to the non-performance of the contract cannot be ascertained.
When money as compensation is not an adequate relief due to the non-performance of the contact.
Until the contrary is proved it is presumed by the court that (i) that the breach of contract of immovable property cannot be adequately fulfilled by money (ii) the breach of contract of movable property can be relieved except in the cases of a) where the property is not an ordinary article of commerce, b) where the property is kept by the defendant as a trustee for the property.
Contracts that cannot be specifically enforced
Section 14 mentions certain contracts which cannot be specifically enforced which are as follows:
When there is a non-performance for the act, and money is adequate compensation.
.A contract that is full of many details and its nature is personal to the parties, these can not be specifically enforced.
The contract requires continuous work for which the court cannot supervise.
The court whose nature is determinable.
Persons against whom the contracts can be specifically enforced
Section 15 deals with the person against whom the contracts can be specifically enforced:
Any party to contract or any party to suit.
Representative in interest or principal, which holds certain important ingredients-
Any special skill, or any qualification.
The principal in interest shall be not be entitled to specific performance.
Where the contract is for settling a marriage or to compromise the situation between the family members.
When a contract has been entered into by a tenant over a property for life.
Enforcement of awards
Section 21 deals with the power to award compensation; in various cases, compensation can be done through the court to the aggrieved person. There are certain cases which are as follows:
When there is a suit filed for specific performance of the contract due to its breach the aggrieved person may also demand compensation in addition.
When according to the court the specific performance may not be granted but there has been a breach of contract, the court accordingly will order for compensation to be given to the aggrieved party.
When the court thinks that in this case specific performance of the court shall be granted but it will not be an adequate relief so, compensation in money can be ordered.
No compensation shall be awarded when the relief for money is not itself mentioned in the plaint.
Rectification of instruments
Section 26 deals with the ways in which instrument can be rectified:
When through fraud or mutual mistake the parties do not show their real intention then:
Either party or representative in interest may file a suit for rectification of the instrument,
The plaintiff in his plaint may plead for rectification of instrument,
The defendant in his defence may claim for rectification of instrument.
The court can direct rectification of instruments in cases where the party through fraud does not show their real intention to prevent violation of rights to the third party.
Requirement for rectification
The party who wants to rectify the instrument firstly must give them in writing and then mention them in their pleading. No relief shall be granted when the rectification is not specifically mentioned.
Recession of Contracts
Section 27 deals with the recession of the contract, in law, recession means withdrawing of the contract or in simpler terms: cancellation of the contract. It brings the party in a situation as if the contract did not happen i.e status quo ante meaning in its original state.
Recession when cancelled
A contract can go through the recession by the pleading of any party except there are some cases in which recession may be cancelled. Recession can be cancelled in certain ways: a) where the contract has been terminated or “has been deemed” voidable by the plaintiff, b) when the contract is unlawful.
Cancelling the contracts through recession
A contract may be cancelled through the recession in cases:
a) where the plaintiff has himself given consent to the contract,
b) where the third party has gained interest in the contract and where their rights come into question,
c) where only a portion of the contract is to be cancelled but it is in such a position that the faulty portion cannot get separated from the contract.
Cancellation of the contracts
Cancellation is one of the remedies which is available to parties against injuries in a contract; section 31 to 33 deals with cancellation of instruments through the court.
Section 31 explains that when an instrument is void or voidable against a person then he can get that instrument if it may cause damage to it.
Section 32 deals when a contract can be partially cancelled; for example in cases where there are certain rights and obligations connected with some parties through that contract, then the court accordingly may cancel the faulty portion and let the other in motion.
Section 33 has two heads in it i.e powers to aggrieved party after cancellation and orders to the defendant after cancellation.
Power of aggrieved party
When the contract has been successfully cancelled, the aggrieved party may receive all the restoration of benefit and compensation to ensure justice.
Orders to the defendant after cancellation
When the suit has been proven voidable against the defendant, he is required to restore every benefit to the plaintiff which the defendant may have received during the contract.
Declaratory decrees
Section 34 and 35 deal with declaratory decrees which are declared through the courts to the parties to suit or contract.
Section 34 deals with that when any person has a certain right or obligation over the property and he has been denied that right by any party, then the aggrieved party may file a suit for the enforcement of the right over the property which has been denied to him. The Court will give a declaration after looking over the case that the aggrieved party has a right over the title of such property and so a declaratory decree will be passed. Such declaratory decree will not be passed by the court when the plaintiff demands something more than the title over that property.
Section 35 deals with the effect of the declaration which explains that this decree will be binding to only to those which are the parties to suit, the decree will be binding to only the parties to suit and the trustees at the time of suit if any.
Preventive relief
Preventive relief is considered to be any relief which abstains a party from doing any act; a relief from the court which details that the party should not perform certain acts for which the relief shall be prescribed. Such reliefs can be imposed in the form of injunctions.
Injunctions
Injunctions are a specific order under which a party must abstain from performing any act. Injunctions under the Specific Relief Act,1963 may be divided into different types namely temporary, perpetual and mandatory. Injunction is mentioned from section 36 to 44.
Perpetual injunctions
Perpetual injunctions are known as permanent injunctions. They can only be imposed after hearing the parties on the merits of the case in which the defendant has enjoyed an assertion of the right and by affecting the plaintiff on the contrary. The perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation and imposing rights in his favour. When the defendants invade the plaintiff’s right to enjoyment, a perpetual injunction may be applied in certain cases where:
The defendant is the trustee of the property.
Actual damage cannot be ascertained.
Money as compensation would not be adequate relief.
Injunctions are necessary to prevent multiplicity of judgments.
It was held by the Hon’ble Supreme Court that when the plaintiff files suit regarding the dispossession, it is enough if he proves that he is entitled over the title of that property. Once the title is proved other details like being divested from the property or other things are not required to be proved.
It is held by the Court that when in a case it is observed that the plaintiff itself did not perform his portion in the contract or neither does he want to perform, so the decision regarding specific performance act will be issued under this favour.
The Court, in this case, held that when a contract is valid no doubt of it being cancelled arises and when it is void ab initio (meaning no existence in the law from the starting ) then no also no option of cancelling it arises as it is not present in the eyes of law. When a contract has no existence no action is enforced on it.
Conclusion
Specific relief act, 1963 has a set of reliefs given to the parties to suit. They have different reliefs and enforcing rules which focus on providing enough compensation to all. This legal statute’s main aim is that no person shall live with the damages and losses and those who have caused such a situation they must be in a position to restore all unlawful benefits received by them. This act focuses on providing justice to all and not inequitable favouring a single party.
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This article is written by Vishesh Gupta from Institute of Law, Nirma University, Ahmedabad. This article discusses the importance of renegotiations of contracts in the times of COVID-19.
Introduction
The whole world is currently facing one of the biggest crises in the modern era. COVID-19 has spread all around the globe. The World Health Organisation has declared it to be a pandemic and many countries including India, United States of America, Singapore have imposed extreme measures of “Lockdown”.
The novel coronavirus has severely affected the global economy and commercial market. International trade including export and import, the international movement of people from one country to another and businesses have been effectively stopped for an indefinite time.
In these challenging times, one has to think about the impact of the lockdown on his previously entered contractual obligations. Therefore, this article discusses whether a contract could be renegotiated during this COVID-19 crisis. This article also puts light on the importance of renegotiations of contracts during COVID-19.
Why is there a need for renegotiation of contracts?
The highest law in any commercial contract is the principle of Pacta Sunt Servanda which means that agreements must be kept and must be performed in good faith. However, because of the COVID-19, the world is in a state of lockdown and supply chains have been disrupted and the demand and supply curve has also been reduced. Any import or export is not allowed.
Businesses have been exposed to heightened risks of legal implications which impacts the small companies and manufactures more severely than the large Multinational Corporations. Even these MNCs are not entirely unaffected.
Global trade and the world economy are in shambles and it has a direct consequence on every individual. In these circumstances, it is difficult to conduct business and fulfil any previously entered contractual obligations.
Therefore, parties to the contract seek to absolve, delay, or alter the terms of their contractual obligations so as to minimise any unjust costs and legal implication.
Can a contract be renegotiated in the light of COVID-19?
A contract could be renegotiated when the subject matter of the contract becomes impossible to perform. This is a common law principle also known as the frustration of contraction. Further, parties can invoke the clause of Force Majeure (if it is drafted in a contract).
Generally, a well-drafted contract always contains the Force Majeure Clause so as to save the parties from any unforeseeable loss or liability which involves no fault from the parties.
Force Majeure Clause
Force Majeure is one of the essential clauses in a contract which protects a party from liability for the failure of performance of the contractual obligations because of unforeseeable events which are beyond the control of the parties.
For instance, In the case of Peter Dixon and Sons, Ltd. v. Henderson Craig and Co. Ltd.(1919) 2 K.B. 778, British ships were no longer available because of the war for carriage of wood pulp from Canada to Grimsby in England. It was held to be a hindrance to the performance of a contract for delivery of pulp and came within the meaning of the force majeure clause in the contract under consideration in that case. It was held that the boilers were not liable for non performance of shipping pulp.
It has not been expressly mentioned in the Indian Contract Act but it derives its authority from the doctrine of frustration which is mentioned inSection 32 and Section 56 of the Indian Contract Act.
In the case of Energy Watchdog v CERC, (2017) 14 SCC 80, it was clearly stated that force majeure is governed by the Indian Contract Act. If the force majeure clause is mentioned in a contract, it is governed by Section 32 of the Indian Contract Act. However even in the cases where force majeure event is outside the scope of the contract, it will be governed by Sec 56 of the Indian Contract Act. The latter is known as the doctrine of frustration and will be discussed in the next section of the article.
Force Majeure includes the Act of God, war or war-like situations, labour unrest or strikes.
It is pertinent to note that force majeure and Act of God cannot be used interchangeably. Force Majeure is a broader concept than the Act of God as force majeure includes an act of god and any event which involves human agency unlike events in the Act of God. The rationale behind the Force majeure provision is to protect a party from the consequences of a breach of contract on which the party has no control.
Whether COVID-19 is covered under Force Majeure?
There is no universal answer to this, but Indian and Chinese governments have answered this in affirmative. The legislative body and the judiciary of China have effectively categorized COVID-19 outbreak Corona under Force Majeure. The China Council for the Promotion of International Trade issued over 1,600 ‘force majeure certificates’ to Chinese companies in February.
In India, the Department of Expenditure, Procurement Policy Division, Ministry of Finance issued an Office Memorandum on Feb. 20, 2020, in relation to the Government’s ‘Manual for Procurement of Goods, 2017’. The Memorandum has effectively stated that the COVID-19 outbreak could be covered by a force majeure clause.
Also, in some cases, the question of whether pandemics, in general, could be covered in force majeure can be answered by expressly including pandemic in Force Majeure clause of the contract. In cases of contract law, a well-drafted contract is essential. Every liability and responsibility is determined based on what is written in the contract.
It may be general in nature where the Force Majeure clause is included in the contract but has not been defined in specific terms. On the other hand, the exact scope of Force Majeure has been expressly written. Proving pandemic as a force majeure event is more difficult in the case where the clause of Force majeure is not defined in specific terms.
Doctrine of Frustration
Even if a contract does not contain the Force Majeure clause, parties to the contract can rely on the common law doctrine of frustration as Force majeure derives its authority from this doctrine.
The doctrine of frustration is embodied in Section 56 of the Indian Contract Act which states that if an act becomes impossible to perform the contract shall be deemed void.
The court, in the case of Satyabrata Ghose v. Mugneeram Bangur and Co., stated that if the event was outside the anticipation of the contract, Section 56 of the Indian Contract Act would apply and render the contract void even if no implied or express provision regarding Force Majeure was present. In this case, Satyabrata(plaintiff) sued the defendant for wrongfully repudiating the contract of developing the land. Defendant took the defence of frustration as the land which needed to be developed were temporarily requisitioned by the Government under the defence rules for an unspecified period of time. The court declared that the contract had not become impossible to perform as the circumstances of war were known to the parties and the reasonable time in which the contract was to be completed was not mentioned.
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What things are to be taken care of before enforcing force majeure?
Duty to Mitigate- The provision of Force Majeure has been misused in a plethora of cases as a means to escape the contractual obligations. The party invoking the exception of Force majeure has the burden of proof to show that there were no reasonable measures to mitigate or avoid the consequences of the force majeure event.
Notification requirement- Force Majeure clause contains a time-bound notification requirement. Such provisions are enforceable, and so complying fully with all notice requirements will be important for parties seeking to invoke the exception of force majeure.
In cases of the renewable energy sector, companies claiming for time extension shall submit an application to Solar Energy Corporation of India Ltd (SECI) or other implementing agencies. Companies also have to provide all evidence in support of their claim and on reviewing all the evidence, agencies may grant Extension of Time.
Defence of economic hardship is not adequate to invoke frustration of the contract. The doctrine of frustration does not relieve a party from performing their contractual obligation simply because the force majeure event has made the performance more difficult or expensive.
Benefits of Renegotiations
The circumstances at the time of the formation of the contract are always fluctuating and sometimes the unexpected events change these circumstances in such a way that the execution of the contract in the new conditions, without the adjustment/renegotiation of contract, makes the performance extremely difficult and unbearable.
The rapid spread of COVID- 19 around the world was not reasonably foreseeable by anyone. So, any contractual obligation or performance of a contract that seemed possible in December 2019 and January 2020, is now almost impossible to perform because of the complete lockdown.
Breach of contract is justiciable in a court of law and may cause unjust losses to the parties. Renegotiation is an effective way of modifying various aspects of a contract which is more suitable to the prevailing situation of the market and the world in general.
Looking at the current developments of COVID-19 in India and the rest of the world, there remains huge uncertainty about when the normalcy will prevail again. So any contract, whose performance is due now or in a foreseeable future should be considered for renegotiation of the terms of the contracts.
Remedies for Force Majeure Event
The wordings of the contract would determine the future course of Action when the Force Majeure event takes place.
Termination of Contract: Parties may terminate the contract in toto or suspend only a few clauses of an agreement.
Freezing of contract: Some parties may decide to put on hold the contractual obligations until the force majeure event is over.
If the force majeure event is prolonged, a clause of termination will be enforced in a certain period of time as prescribed in the contract.
However, this is not applicable in all cases. For instance, for a contract in which perishable goods are the subject matter, freezing or prolonging the contracts is not reasonable.
Scope of Re-negotiation clause in contracts
The concept of renegotiation tries to uphold the principle of pacta sunt servanda. Scope of Renegotiation can be found in the terms of the contract itself. There may be a clause of renegotiation which specifies in which circumstances can the contract be renegotiated. Renegotiation clauses include cancelling/absolving the contract, delaying the obligations till future notice when the contract could be enforced.
Renegotiation may also exist in different clauses like material adverse change clauses, to limit or exclude liability for non-performance, price adjustment clauses, limitation or exclusion clauses etc.
Material adverse change clauses state that if the status of the subject matter or the status of the parties has adversely changed since the time when the contract was entered, the contract will be deemed to be void. This clause is commonly found in acquisition, merger and lending agreements.
These clauses provide flexibility to a contract and the main reason for the inclusion of these provisions is to ensure that parties do not face losses and that the contract could be performed, not as originally agreed, but in such a manner as to reduce risk of losses and legal implications.
Renegotiation for different subject matters
In the current scenario, renegotiation shall differ for contracts involving different subject matter. It is important for a party to a contract to decide whether they want to absolve the contract altogether or they want to prepone or postpone the commitment.
Essential commodities: As we all are in the state of lockdown, the supply of essential commodities like groceries and medicines are very important and therefore, the contracts of supply of these commodities shall not be absolved. The terms of the contract regarding the time period, jurisdiction covered, mode of performance and consideration can be altered. This is more applicable to those vendors who don’t have a huge supply chain.
Renewable Energy: The government is offering leniency in the renewable energy sector as the renewable energy sector can cite COVID-19 as the force majeure to delay the projects. This is because this sector may face project delays because of COVID-19, which could prove fatal to the country’s flagship 175GW target for 2022.
Absolving the contract in toto should be used in those cases only where the performance cannot be possible for a foreseeable future and in the cases where the time of performance of the contract is of the essence and non-performance at the stipulated time will lead to non-recoverable losses.
Effects of force majeure certificates issued by Chinese government
The certificates will no doubt be beneficial to chinese companies in the domestic market, but these certificates might not hold up at the global stage as other countries have strict terms for claiming Force Majeure.
Further, many companies in China have contracts that call either for disputes to be adjudicated in jurisdictions other than the Chinese courts or arbitration forums or to apply laws other than China’s. Outside China, the legal value of those certificates is unknown.
Conclusion
The crisis that humanity is currently facing has no end date confirmed. No vaccine has been created and the virus is spreading like wildfire. Determining the date when the world will return to normalcy seems implausible. This puts uncertainty in most of the contracts which are currently impossible to perform and this ultimately affects the parties as non-performance leads to losses for the parties involved in a contract.
However, a well-drafted contract can save a party from losses. A well-drafted contract is a contract that anticipates any loss that parties might incur and also don’t put any additional burden on the parties.
Contracts should have the force majeure and renegotiation clause as it provides more flexibility to the contract. In these uncertain times, a contract should be renegotiated in such a way that it becomes possible to perform in these uncertain times.
The role of advocates is of great importance for renegotiating contracts. The intricacies of a contract could be understood by an advocate and he can guide the parties towards amicable discussions for renegotiations. It is advisable to keep an open mind during renegotiations so that parties could make the best of the worst situations.
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This article has been written by Mridul Tripathi, currently pursuing BBA LLB from Vivekananda Institute of Professional Studies. This article juxtaposes the right to bail that persists during normal times to the shape it has taken in the wake of the CoronaVirus.
Introduction
In an order dated 23rd March 2020, the Supreme Court exercising its suo motu cognizance issued a direction to all the states and UTs to form High-Level Committees in order to determine the class of prisoners that could be released on parole or on interim bail. The period for which they would be granted parole is to be decided by the committee. This direction has been issued to decongest the prisons in the wake of the Coronavirus.
‘Indian prisons are overcrowded’, the top court has relied upon a report of the NCRB (National Crimes record Bureau) to substantiate this statement. The report has mentioned the occupancy rate of Indian prisons to be as high as 117.6%. In Uttar Pradesh, this ratio shoots up to 176.5%. This data alone is enough to prove the need for steps to be taken to decongest the Indian prisons.
Right to Bail as a right during normal times
Before we move on to analyse the right to bail in the wake of the Coronavirus, we need to understand what the right entails during the normal times i.e. not during the time of a crisis.
Let’s start with the definition of the term ‘bail’ as provided u/s 2(a) of Cr.P.C.
Definition
Bailable offence, as defined u/s 2(a) of Cr.P.C, means any offence mentioned in the first schedule of the Code or any other offence made bailable under any other law in force. After a study of the schedule it could be said that mostly the offences that have punishment lesser than that of 3 years are bailable while the rest are non-bailable.
Bailable Offences
The right of an accused to demand and to be granted bail has been mentioned in Section 436 in the case of bailable offences. In bailable offences, when a person is detained or arrested without a warrant, by an officer in charge, at any stage of the proceeding, such a person can file an application to be released on bail. The section also states that if the person subsequently fails to comply with the conditions mentioned in the bail bond then his bail can be cancelled, and he can also be made liable to pay a fine.
Non-Bailable Offences
There are several grounds laid down under Section 437 as to when bail can and cannot be granted for a non-bailable offence.
When can the bail not be granted
Section 437(1) states that a person (arrested or detained without a warrant) can not be granted bail when there appears to be a presence of either of these two grounds.
If there exist reasonable grounds to believe that the person has been guilty of an offence punishable with death or imprisonment for life. If the person has committed a cognizable offence and had been previously convicted of an offence punishable with death, imprisonment for seven years or more, he had been a convict for more than two times of a non-bailable and cognizable offence. However, the proviso to this subsection states that the person can be released on bail if the court is satisfied that it is just and proper for a special reason to release him on bail.
Provisos to this subsection also state that the person might be released on bail despite the presence of above-mentioned grounds in case of a non-bailable offence if the person is under the age of sixteen years are sick, a woman or an infirm. The accused cannot be denied bail only for the purpose of making him be present for identification by the witnesses during a police investigation.
When can the bail be granted for a non-bailable offence
Section 437(2) states that if the reason to believe that such person has committed any extinguishes during the trial or investigation, so does extinguishing the reason to deny him bail even if there are sufficient grounds to hold him up for further investigation.
Subsection (6) puts a bar on the number of days in which the trial of a non-bailable offence should end failing which the person accused will be granted bail (the magistrate can deny granting bail but the reasons should be recorded in writing). The bar is set to be 60 days from the date of the collection of first evidence.
After the end of the trial and before the deliverance of judgement, if the court is of the opinion that the accused has not committed the offence, he shall be released. If he is in the custody of the police, he should be released on the execution of a bail bond without sureties.
Anticipatory Bail (Sec 438 of Cr.P.C)
The right to grant anticipatory bail has only been vested only in the High Court and Sessions Court. As the name suggests, when any person anticipates an arrest for committing a non-bailable offence, he may apply to either of these courts for a direction that he should be released on bail in the event of such an arrest. It is a discretionary power vested in the courts. Subsection (2) has mentioned certain conditions that might be considered while delivering the order. An application for Anticipatory Bail can be filed even before filing of an FIR.
Interim Bail
Interim Bail or Temporary Bail is granted when the accused’s application for a grant of regular bail or anticipatory bail is pending before the Courts.
Right to Bail in the wake of Coronavirus
Is there any alteration in the rights
In the wake of the Coronavirus, the Supreme Court issued regulations in its order, In Re: Contagion of COVID-19 in prisoners suo motu Writ Petition (C) NO. 1/2020, dated 23rd March, which has stated that a High-powered Committee should be set up in every state and UT that would decide on the matters in which the parole and interim bail should be granted for a period that might be thought appropriate. The paroles and interim bails so granted are being granted in order to facilitate decongestion and to ensure social distancing amongst prisoners. The committee shall be constituted of:
State Legal Services Committee’s Chairman,
The Principal Secretary of the Prison/Home,
Prison’s Director-General.
Any specific alteration to the rights has not been clearly mentioned in the judgement. The High Powered Committee is supposed to exercise complete discretion in deciding which class of prisoners are to be released on parole or who should be granted interim bail.
However, keeping it completely open for the high powered committee to decide, the basis of judging the matters are set to the following grounds:
The nature of the offence,
The number of years to which the prisoner has been sentenced, or
The severity of the sentence with which a person is charged and is facing trial or any other relevant factor.
Via an order dated 16th March 2020, the SC of India had issued a show-cause notice to various Government of States and Union Territories that why shouldn’t a direction be issued to States and in a reply to it, every State has enumerated the steps that it has taken. Steps mentioned included letting the visitors communicate to the inmates through telephones or video calls only, building temporary places near the prison to keep the prisoners, identifying the group of prisoners which faces more risk of contracting the virus (based on their age and past ailments) and providing extra protection to the group etc.
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Offences for which bail was offered
The Supreme Court has directed that the States and Union Territories could consider the release of prisoners convicted or an accused undertrial for offences whose prescribed punishment is lesser than 7 years with or without fine, and the prisoner got convicted for lesser years than the maximum.
Bail granted to prisoners
Since the day the Supreme Court’s Order came out, various High Courts have come up with their own procedure to implement this guideline. ‘Only the urgent matters are being heard’ is being reiterated by every court but what ‘urgent’ means is still not clear. There is no uniform pattern or a nexus observed between cases deemed as urgent. The Supreme Court on the 23rd of March cancelled all proximity cards and lawyers only for special reasons can enter the premises, after being authorised by Supreme Court Bar Association.
Patna High Court announced that the interim bail applications would be treated as urgent but the no of cases listed every day is too less to make a change. Madras High Court has been especially lenient in delivering these bail orders according to the reports by the various media houses. It was reported that bail was granted (bond of Rs 10,000) to a 40-year-old woman who was accused of committing the murder of her abusive husband.
The High Court has stated that it is impossible for it to answer every individual application made online or via mail due to the inadequacy of the staff. It is only entertaining urgent bail applications based on special reasons.
Offences for which bail was denied in light of the crisis
There isn’t a group of offences specified by the Supreme Court that would straightaway be rejected or wouldn’t get considered for a grant of interim bail. As observed through various media reports, the following cases are the ones that were denied bail even in the light of the crisis:
Madras High Court has refused to grant interim bail to an accused under the POCSO Act, 2012 (Prevention of Children from Sexual Offences).
59 yr old Christian Michael, one of the accused as middlemen in the Agusta Westland Scam approached the SC for a grant of interim bail in cases booked against him by the CBI and the Enforcement Directorate. He has gone to the apex court as the Delhi High court didn’t consider his plea as an ‘urgent’ matter on the ground that his age has made him more vulnerable to catch the virus as compared to others in the jail. The Supreme Court refused to entertain the plea and asked him to move again to the High Court.
Interim Bail was denied by the Gujarat High Court to Asaram Bapu, who is a self-styled godman of 84 years. His application was denied on the grounds of the seriousness of the offences committed and the contention of the State to use the rejection of applications of regular bail by the High Court and the Apex Court as a precedent, was also accepted. There appeared no reason to grant him an interim bail due to any urgent reasons.
A Special Court (Patiala House Courts) rejected Deepak Talwar’s (who is above 60 years of age) interim bail application. Deepak Talwar (an aviation consultant) is accused of diverting money received by his NGO from a European Defence Manufacturer. Talwar complained a sore throat and tried to make the court take into consideration his ailments to grant him interim bail. The court denied this contention citing the medical report that showed that the accused was given all the medical facilities and was stable. Deepak Talwar is accused of lobbying with officials of the Ministry of Civil Aviation to provide favourable rights to the companies at the cost of Air India.
Conclusion
There clearly seems to be a ruckus in the working of the Courts in various States as there doesn’t seem to be any uniform structure. The Supreme Court hasn’t yet come up with clear guidelines like with definitions of important terms such as ‘urgent’ or with a list of offences that should be clearly rejected or not considered.
COVID-19 for sure has tested the preparedness of the courts in the country and with the reports popping from different States, it cannot be said that it is faring well. Looking at the brighter side, one can only say that the Courts though minimally yet somehow have managed to work through video conferencing. But indubitably, a clearer picture and certain reforms are overdue.
This article is written by Anubhab Banerjee, from the School of Law, Alliance University. This is an article on blockchains and blockchain-related technology contracts.
Introduction
Technological developments have led us to a new age. All our day-to-day activities today are in some way or the other associated with the internet. Be it professional work, or studying, everything has been facilitated with the presence of the internet. A drastic change in the technological world has been the introduction of the concept of blockchains. The use of blockchains and the technology associated with them has helped evolve a concept known as smart contracts.
This article will put forth credible information on blockchains as well as the smart contract which are formed with the help of these blockchains.
Blockchain technology
All of us would have heard about the sudden breaking in of bitcoins in all markets across the world. To break it down into simpler words, bitcoins are a denomination of currency which is non-traceable i.e. if a person transacts using bitcoins the source for such a transaction becomes anonymous and cannot be traced.
Bitcoins have their own advantages though there are certain regulatory disadvantages which they hold with them. Such disadvantages are mainly associated with the level of secrecy maintained in such transactions using bitcoins which makes it impossible even for governments to track them. Hence, this gives rise to a number of illegal activities which are conducted through their use. This is where bitcoins differ from blockchains. Blockchains are something to which we can associate high levels of traceability and security.
Blockchains are nothing but the technology which was responsible for keeping records with regards to bitcoins. Blockchains simply signify a chain of blocks. To help understand it better we should break down the words block and chain.
Block is the digital piece of information which is available online whereas chain signifies the database which is used to store such information.
These blocks i.e the digital pieces of information can be divided into three parts:
The blocks which store information related to data, time and the amount involved in a particular transaction performed online.
The blocks which store the information about the people who are participating in a transaction.
The block which stores such information which helps distinguish a particular transaction from others.
How do blockchains actually function?
Whenever the blocks, mentioned above, store new data about a transaction, such data is added to a blockchain. Though this whole process is broken down into 4 simple steps:
First of all, a transaction should occur i.e. a transaction has to take place to initiate the chain.
The transaction must then be verified, with other public records. This job is however left upon the computer in the blockchain network.
The transaction is then stored in a block. The details of the transaction, the receiver’s digital signature and the sender’s digital signature are all stored in the same block.
Once the verification process is completed for a block, it should be given a hashtag i.e. a unique identification code to identify the transaction.
After such information is uploaded on a blockchain, such information becomes available for public viewing.
Are blockchains secure?
The next question which arises in our mind is whether such blockchains are secure or not. To understand this we must go a little deeper into how the information is stored in a blockchain. So as soon as a transaction is completed and such data is uploaded under a block, such data is given a particular identification number as discussed already. So the data under every block is stored under a chronological order. As soon as a new transaction is updated it is added to the bottom of the list in its concerned block and the process continues for every new addition.
Here comes the part where blockchains can be considered to be one of the most secured means for the storage of such data. This is because when a transaction or its details get uploaded under a block the hashtag it gets cannot be changed. Once the data has been added at the end of a blockchain, it is very difficult to go back and alter the contents of the block. That’s because every block contains a unique hash for itself which also includes the hash for the previous block before it.
This is where the important part comes in. Imagine a hacker wants to hack your transaction on Amazon and wants to make you pay double of the amount you are required to for purchasing a particular product. For this, he has to alter the code for that particular transaction and in the process of doing so, the identification number for that concerned block will change, while the next block will have the same hash code as before, which makes it traceable instantly. So, if someone wants to do so, he shall have to change the hash codes for every block possible to make it untraceable, which is practically impossible. Such proof being generated instantly does not make the data immune to hacking but what it surely does is makes such activities easily traceable. Thus, hacking such information becomes a big risk for hackers.
Blockchain technology contracts
Now that we have an idea about what blockchains are and how they function, we shall unlock into the concept of blockchain technology contracts. These kinds of contracts are also known as smart contracts.
A smart contract is basically a code which represents self-executing contracts between a buyer and a seller. This code itself controls the execution of the contracts as well as the transactions involved. These smart contracts are trackable and irreversible.
The main purpose of smart contracts is to allow trusted transactions and agreements to be carried out between anonymous parties without the need for a central authority regulating such transactions. The whole concept of smart contracts can be better understood with the help of the following three points:
They are self-executing contracts with the terms and conditions related to such agreements already enlisted in the codes.
The inventor of a virtual currency known as ‘Bit Gold’, Nick Szabo defined smart contracts as computerized transaction protocols that execute terms of a contract.
The transactions executed with the help of smart contracts are traceable, transparent and irreversible.
The basic use of smart contracts is to help its users exchange money, property, shares, or anything of value in a transparent and conflict-free manner without requiring the services of a middle man i.e. a lawyer or a contract analyst, etc.
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Advantages of blockchain technology contracts
There are several advantages associated with the use of smart contracts. A few of those advantages are discussed below:
Accuracy
Recording the data associated with the terms and conditions of a smart contract is done in an extremely precise manner. As any omission shall result in transactional errors and thus, there is hardly any manual work involved in it.
Transparency
Smart contracts provide the terms and conditions associated with them in a very transparent manner. Any person who wishes to enter into such a contract is very well aware of its terms and conditions before agreeing to it.
Clear Communication
There is no communication or considerations involved between two parties who enter into such a smart contract. Thus, the terms and conditions associated with them have to be very clear to avoid any miscommunication in context with such contracts.
Speed
Speed is one of the main features of smart contracts as these contracts exist over the internet and can be entered into in a matter of seconds.
Security
The highest level of encryptions available are used for such kinds of contracts. Hence they are one of the most secured things available over the internet. The aspect of security with respect to blockchains has already been discussed earlier in this article and the same are the features with regards to smart contracts.
Efficiency
As already discussed smart contracts are a derivative of speed and accuracy. Thus, efficiency is a by-product of smart contracts. As already discussed there is no scope for error in such contracts and hence, they can be utilised to their full potential.
Paper Free
The whole world has started using environmentally sustainable ways for daily operations for quite some time now. As environmental damage is something which is out of repair. Thus, smart contracts are a green initiative towards a greener earth. Smart contracts indeed help reduce the huge amounts of paper that are wasted for the purpose of maintaining written records for contracts.
Storage and Backup
Another problem with contracts written on paper is its storage and traceability. As firstly these papers end up physically occupying space and at a time when they are required it may even become difficult to search for such documents if not arranged properly. Though, when we consider smart contracts storage, backup and traceability isn’t even a real issue. As all of these documents are available online in the form of blockchains.
Saving
Saving in terms of money is a huge bonus which comes with the use of smart contracts. As the costs which would have been required to be paid to the middlemen i.e. lawyers, contract analysts, etc. in the purpose of drafting a contract are reduced to zero.
Trust
The high level of transparency and security provided by the use of smart contracts eliminates the risk of any kind of manipulation of such data stored in the form of smart contracts.
Guaranteed Outcomes
This removes the unnecessary need for litigation or court proceeding because of any discrepancies in the performance of contracts. Smart contracts are structured in such a manner that by agreeing to the terms and conditions of such contract the parties commit themselves to bind by the rules and regulations associated with the performance of their obligations under such a contract.
Scope in the future
Smart contracts are a thing for the future. It is mostly because of the non-complicated procedures associated with them and the ease of use associated with them. Once, such smart contracts become fully operational throughout the world, it’s going to be the reason for disrupting several professionals and their flow of work across the globe. A few of those professionals would include people in the banking sector, insurance, telecommunication, art world, music and film, education and many more.
Right now smart contracts are regarded to be more of a technological development with a lesser amount of legal or regulatory involvement in them. Though, the benefits which are associated with the smart contract are soon going to become the reason for them comes into the big picture. They are something which would be more often than not preferred by most companies and MNCs around the world because of the advantages associated with them as have been discussed above.
The enhanced security and traceability with regards to blockchains associated with smart contracts have already been discussed earlier in this article. Once these companies start regular use of such smart contracts it would be highly convenient for them in handling matters associated with consumer complaints or employee issues. As people would firstly accept the pre-existing terms and conditions for such contracts, which would automatically make them ineligible to reap any benefits out of the transactions if any terms and conditions are not fulfilled. Thus, no liability for the performance of such smart contracts would lie on the companies associated with them.
Smart contracts are not just a thing for the future, as they are already being used in several areas. Though, it is to be seen on how their increased use is viewed by the Governments and other regulatory bodies. As they can be present everywhere from stock-markets to real-estate to agriculture to education and to most other places wherever there is the possibility of a transaction taking place and a contract is being entered upon.
Conclusion
The concept of blockchains is still quite nascent and it will take some time to develop itself and involve more and more people in its use. Smart contracts in today’s date do not have much of a legal context to it, but the legal aspects of small contracts should also be looked upon carefully as at the end of the day they are ‘contracts’. Smart contracts can be considered to be without any loopholes though such is not proved yet as no one has been able to challenge them as such. Maybe in the future people would even come out with certain loopholes which are present in them and that’s when its actual growth starts, with such challenges coming on its way.
This article is written by Khushi Sharma, currently pursuing B.A.LLB (Hons) from IIMT and School of Law, IP University. This is an exhaustive article which deals with industries which are getting more investments during COVID-19.
Introduction
COVID-19 being the most hyped-up issue in recent times has been in publication for almost four months globally and for almost two months in our Country. It has and still is enjoying the limelight to the fullest. All of us are mostly aware of what COVID-19 is, so I will not go into detail about what it is and rather focus on the impact which this crisis is having presently on investment in the industrial sector. This pandemic is not as light as people are supposedly taking it. It has been infecting people which has led to an adverse situation and an unthinkable circumstance for the society.
But on the contrary, Due to this virus, Indian investors are witnessing a full-blown bear market and the frontline BSE Sensex index has tanked 30% from its January peak. The earlier crash had seen the index lose 60% of its value. But in contrast, you will be amazed to hear that it has led to a good and a positive impact for some industries. Investments of such industries which I will talk about further in this article are being increased.
Though this virus is leaving negative impacts on the economy, people and of course corona beer, it is still making a good source of money for some industries at the same time. You will see, the investments of the industries that have been extremely moderate earlier are raised to a real hype and this is happening not only in our country but worldwide.
Industries which are getting more investments because of COVID-19 crisis
Now, we will understand in detail which industries are having increased investments and are being the actual primary suitors for the general public to resort to. Some of these industries are being noted below as follows:
Hospital
Hospitals are the only industries in business that will never run out of workload. In a way by helping millions inclusive of having a continuous increase in its investments. There has been a rapid increase in the investments of hospitals due to this pandemic. Many industries like Mercedes-Benz and Patanjali are investing in hospitals and helping in hospital equipment.
Hospitals are currently holding approximately and widely about more than four thousand citizens and not only holding but by also giving them all sanitations and required treatment for this virus. Every person, even those who have not been affected rushes there at the slightest symptom of COVID-19.
As you all know, it’s not only under this crisis that we see hospitals as the first place to go in need. This also happens in usual scenarios. In this present situation, people are becoming more and more conscious about their health and are ready to invest even more just for some consultation from these facilities. Just as we are talking about hospitals, we must not forget to appreciate the nurses and the doctors who have been working day and night to remove us from this crisis. Thus, according to my data, the hospital will be the primary and the most invested industry amongst all.
Pharmeticuals
Another important industry that never runs out of business is pharmaceuticals which work hand in hand with hospitals. Pharmaceutical industries might have investments at the same level as the hospitals. Rather than going to doctors and hospitals directly, people find it easier to just go to pharmacies and chemists and get medications for themselves.
The general increased investment in this area is because chemists and pharmacies are widely and easily accessible. This is also because they are more affordable for people rather than to approach hospitals, except in chronic and serious issues. Pharma stocks have seen a gradual increase in investment because of COVID-19.
The reason for increased investments in the present situation is because this can be treated only through ICU. The general public not only invests but is also keen to be informed about the researches and solutions which are in process for this virus. Moreover, due to this amid lockdown, people have been stocking medicines to a great extent. This is because people cannot get out of their houses so they have stacked up all the essential medicines.
Further, the government has been investing a lot in the treatment of patients and are investing in pharmaceuticals as well as hospitals. The department of Pharmacy has introduced schemes for pharma based growth almost worth Rs. 10,000 crores.
Diagnostics
Here comes another branch of the health industry that is diagnostics. Diagnostic centres are basically testing centres like centres for blood tests or for other types of body testings. Such centres also deliver reports of the test and make advisory comments which you have to get checked by a doctor. They are probably the most important centres in this crisis. Their work is to tell whether a person is infected with this virus or not. They conduct tests in order to find out the results. The investments in such industries have increased due to the fact that a lot of tests have been conducted on a regular basis.
The government has created various test centres in different areas and some private centres have also started conducting COVID-19 tests. This is at a great disadvantage as they are really expensive and people prefer government aid, which is why the government is investing in such centres. The people who are suspected of having this virus take this test once but the people who were tested positive of novel coronavirus have to take it various times to check whether they have been recovered by it or not which actually increases the investment in some way.
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Online Platforms
There has been a gradual increase seen in the online platform as it is the only refuge for everyone under lockdown. Every person resorts to online sources in one way or the other; either in a work form or an entertainment form. There has been an extreme rise in viewers of Youtube and I think a person of any age resorts to Youtube as it is the most widely used application.
Online usage has been also consumed by a huge level from the work aspect. Every person is working from home the only way of doing the same is through conferences or usage of the internet. This also increases the investment in these areas as extensive data is being used. The other online platform is none other Netflix, which is the home to millions right now. Coming back to investments, Netflix stands the most invested online platform because it is being used worldwide and by almost every person.
People are also investing in the online platform by showcasing their talents through different apps like Tik Tok and sharing their food recipes to Youtube and Instagram. Due to this increase in demand, their investments have become higher than the usual. With increasing workloads and even with the risk of being infected, the media has also been channelizing the current position of our country to its public on a daily basis.
The general public is more attracted to news and media instead of movies and series as some households are avoiding newspapers as it increases the risk of virus, the alternative for the general public stands the media and the news channels. As there is a full day coverage about this virus in the media; people can watch it anytime. There has been an increase in investment in the media industry due to this reason. It has also helped many small news channels to cover headlines and help the public in general.
Sanitary product manufacturers
Sanitary product manufacturers have been subjected to a Industries and manufacturers of sanitizers, masks, cleaning sprays, toilet papers and tissue papers were moderately invested industries earlier, but it has been hit with such extreme demand. Earlier, only a few people used to resort to sanitizers and masks but after the COVID-19 crisis, not even a single shop was seen with the stock of these.
Sanitizers and masks are hugely in demand, People went on buying them in numbers which left the other people who may actually need it without a proper supply, people started even selling fake sanitizers. Before this lockdown, people started stocking tissue papers and toilet papers and which left in lack of supply.
Online shopping sites
With this amid lockdown, the only source of purchasing things are shopping sites. As people do not go out of their houses, so the only option left with them is to purchase through online websites and applications. Though these apps and sites have set their priority to basic necessities and not on other things. Applications like Big Basket, Groffers, Amazon and Flipkart etc have seen an increase in investments. Due to this increase in demand, their investments have become higher than the usual.
Television
Another area which has seen an increased investment is the television industry, as all the family members are present in the houses and nobody has to go out, the television is the best leisure. The people who don’t have internet services, television still stand for their favourite past-time. As a huge public is watching T.V, the TRP (Television Rating Point) of the shows are actually increasing. As we all know the government has taken the initiative to start shows like Ramayana, Mahabharata and Shaktiman on Doordarshan. Due to the nostalgia one feels when watching these shows, Television has been subjected to a growing TRP.
Digitized payment alternatives
As we know this virus is very contagious and can spread through human contact very easily. Money still remains one of the very risky factors of spreading such viruses. People are realizing how highly dangerous it would be to transact via handing money. They have started adopting digitized money transactions.
There has been an increase in investment in applications like Paytm, Googlepay and Phonepe etc. As people are usually shopping online there is also an increase in using digital cards and the people are also not spending more and more on going out, so they have started saving money while increasing investments in the banks too.
Conclusion
These were the basic impacts which had on the investments of different industries. People have been scared because of this virus and are actually following the lockdown, due to which the best remaining alternative for past-times remains online platforms like Netflix, Youtube, and Instagram, etc. Another point is that the alternative for them to buy groceries and other essentials reach only to online shopping sites, due to which the demand of these industries have actually increased.
Media are channelizing the current information or news almost daily on a full day coverage which also increases the investment as more and more people are keenly interested in knowing as to what is the current status of our country. The most invested industry still stands to be hospitals in which the doctor and the nurses are actually working so hard to get the people out of this virus and recover them.
Pharmaceutical and hospitals work collectively, without pharmacies and people assisting it, the medications for the treatment would not be delivered and the process of recovery could not have taken place. The diagnostic centres also are very important for such a condition because they only inform people about their actual condition.
With the world running over face masks and sanitizers, some people are actually busy making them and giving them to people who actually need it. It is our time to return to all these services with our cooperation and standing together. We have to fight his crises together and also have to take care of our family.
This article is written by Yash Singhal from Vivekananda Institute of Professional Studies, New Delhi. The article elaborates on certain activities in which litigators can indulge themselves to utilise their free time when courts are closed.
Introduction
The spread of COVID-19 has sent a warning sign around the country to take precautionary measures against human interaction that is the cause of transmission of this virus. The social distancing concept to maintain a minimum distance of 1m between two human beings is advocated by the government to prevent the transmission.
The Indian Prime Minister addressed the nation to impose a nationwide lockdown for 21 days from 24th of March to 14th of April. This lockdown would be observed with restrictive movement outside the houses and all public places are to be shut down with immediate effect. The essential services could be procured or movement in an emergency is allowed. Every workplace being shut down, the authorities have adopted work from home principle to reduce the official work loss.
The courts have also accepted the health advisory issued by the government. All courts have ceased to operate physically with a Supreme Court notification to carry out the proceedings through video conferencing. The Supreme Court has also decided to just take up urgent matters during this period and postpone other less significant matters.
The closure of courts has impacted all people associated with them from court staff to all advocates and judges to even the general public who are awaiting justice. With the cases of transmission of virus at an increase in India, the possibility of the lockdown ending on the specified date looks bleak. Thus, all litigants have to search for sources to use their free time productively.
Productive use of free time by litigators
Litigators usually have a packed schedule that includes regular court visits to get justice for their clients. The litigators are required to analyse the cases in hand, prepare arguments and counter arguments to be used in their case and research about relevant case laws to substantiate the argument put forward by them. It all takes a lot of commitment and diligence on the part of the litigator to carry out all these tasks everyday. The productivity of the litigators are evident in their success rates.
The national lockdown has closed all the courts and thus affected the schedule of these litigators. There might be some litigators who would not be having much idea about ways to keep themselves busy while putting the free time into maximum productivity. It is understandably difficult for regular hardworking persons to stay within their homes but the current crisis has left no other option than to maintain distance from human contact while finding solutions to utilise the home time productively.
There is no exhaustive list of techniques to keep oneself busy during this period but some proposed sources for litigators to spend this free time productively include:
Learning new skills
Every individual is expected to learn new skills every time he/she is exposed to some unknown challenge. This is the dynamic quality which is associated with human beings in order to survive through a new challenge. No fixed number is attached as to how many skills an individual can learn in his/her lifetime and at what age they can be acquired. This has motivated people to pick up all the positive qualities in their way and achieve expertise in them. Once the expertise is achieved, the quality becomes a skill that can be used to earn monetary or non-monetary benefits.
Litigators may need a specific category of skills to excel in their careers. An adequate amount of time and practice is required to master these skills. This lockdown period provides these litigators with enough time to add some feathers to their hat. Some of the skills which might prove beneficial to litigators are provided below with a short brief on how it would be useful to them.
Why do litigators need Cross-Examination skills?
Every case, whether civil or criminal, involves cross-examination skills of the counsel to examine the witnesses and extract relevant information from them. The practice of cross-examination is within the statutory powers of the counsel to catch any false information of the witness under oath in the court.
The main reason behind cross-examination has been to detect any false information in the testimony of the witness which shall make the statements of that witness inadmissible in court. A court relies on the testimony of the witnesses to the case, to provide sufficient details for the court to analyse them and dispense justice.
The authenticity and credibility of the evidence is questioned by the opposite counsel to disqualify that evidence. Any litigator with the skills to cross-examine has the potential to discredit any false evidence provided by opposite counsel.
What are the advantages of negotiation skills for a litigator?
Every litigator is appointed by a client on the promise that their interest would be at the helm of the litigator’s duties. A court proceeding is concerned with two counsels putting forward their own sets of contentions, evidence, case laws to support both, until any of them is able to prove their side to be the ultimate truth beyond a reasonable doubt in a criminal case and preponderance of possibilities in a civil matter.
The prime focus of the counsel is to get the verdict of the case in its favour but might be forced to fall on the secondary option of negotiation to decrease the compensation (civil matter) or lower the term of punishment (criminal matter). The litigators are required to approach the negotiation with calmness rather than aggressively.
In a civil matter negotiation, the damages claimed can be increased or decreased by the ability of the litigator to negotiate. The criminal case negotiation would settle the matter peacefully with saving of time, money and other resources.
Why do litigators require communication skills?
A great deal of attention needs to be paid by legislators to improve their communication skills. The manner of communication within a court is formal with proper guidelines established under the Code of conduct of a court. The art of negotiation and Cross-Examination arise out of the ability to communicate conveniently in a manner suitable to the environment they are present in.
The understanding of the person with whom the communication is required to be established is the foremost concept followed by the objective of the conversation kept in mind. These two principles are significant in developing communication skills by a litigator. These skills of identification and clarity of communication do not come naturally to all, hence, the need to transform these skills is observed. The litigator must have the convincing capability to ensure that the judge takes note of the evidence presented by the counsel.
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What is the purpose to develop organisational skills by a litigator?
A litigator must be organised in a court with his/her files, dressing, argumentation and thought process. An organised counsel is favoured by the clients to represent them in court. Organisational skills would allow the litigator to have all the resources in his/her presence thus saving time of the judiciary. It is equated with a litigator’s work efficiency that leaves an imprint in the minds of its clients.
A well organised file with all documents in a particular order is visually attractive to the judge and also helps the litigator themselves to locate a document easily without wasting argumentation time. It works as an assurance to the client in the court about the litigator’s confidence in itself.
Learning new technology
Technology has reached every corner of our lives and it would be clear stupidity to not adopt this change. A smart individual is the one who is dynamic in nature and has the ability to adapt itself to those changes. Courts are also conducting proceedings through video conferencing amid the notification of the Central Government to shut all public offices.
The current generation of litigators are supposed to be tech savvy with adequate knowledge of technology to counter every crisis that they may encounter in future. Digitisation is the way forward for courts to settle pending cases over online video conferencing applications without causing inconvenience to the people to attend court proceedings.
Even in the present situation, courts do allow submission of online documents for convenience of people. The litigators with skills to operate technology do not have to travel to courts to submit those documents. Also, the scope of cyber law or the technology law has been growing since the inception of Information Technology Act, 2000. Litigators who have the knowledge of technology would be able to take advantage by taking up cases from these fields of law.
Information of emerging technology, study on ways to integrate law and technology, online legal documentation, assessing risk and its management are certain areas which are less explored currently and need a deep understanding of both technology and law which can be achieved by devoting this free time into learning a new technology. The advent of legal policy formation of every company registered online is a new field that employs legal professionals to guide on legal implications of the breach. The exhaustive research into the matter would provide more minute information to those interested in venturing into these careers.
Deliver online lectures for law students
The litigators with the experience of attending court proceedings can choose to conduct online video lectures for law students to watch them and learn the intricacies of argumentation in a court. The law students are suffering due to the shutting of their colleges/institutes/universities and cannot even opt for an internship with any legal professional. The litigators should take up the responsibilities of training the next generation of legal professionals to carry on the legacy. This would lead to collective benefit for the litigators and the law students.
Some litigators could make the exercise more productive through interactive sessions where law students could ask their queries. Litigators would have to extensively research about a particular topic to conduct these sessions. This would widen the horizon of litigator’s knowledge of law.
Organise paperwork
Every legal professional maintains a room which is full of thick files containing old case material. This room is only visited when the person wants a reference from his early cases but it takes quite a lot of time to locate the particular case paperwork. The emails of these professionals are filled with applications from everywhere to take up their matter.
Organising the old case material in that room or mails in the email is ignored by them due to lack of time. The current situation has been an opportunity for these professionals to organise all these old online and offline documents.
Apart from the legal paperwork, there are other issues which can be dealt with in this free time such as evaluating expenditure, calculating earnings, organising books, and keeping track of legal developments.
Conclusion
The nation has gone into a standstill during this period of national lockdown. The courts are closed and the litigators have to indulge in productive tasks to utilise their free time. They have enough time to learn a new skill, learn new technology, online tutoring law students and organising paperwork. These are certain suggestions which would help them to stay connected with their profession while achieving maximum utilisation of resources available.
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