This article is written by Vanya Verma from Alliance University. This is an exhaustive article which deals with murder and culpable homicide under the Indian Penal Code along with its provisions, punishment, illustrations and case laws.

Introduction

Section 299 and Section 300 of Indian Penal Code deal with murder. All murders are culpable homicides but all culpable homicides are not murders. Culpable Homicide is genus and murder is its species, thus, murder is a culpable homicide but all culpable homicide are not murder. 

The word homicide is derived from Latin where homo means man while the meaning of cide is I cut. Thus, the killing of a man by a man is the meaning of homicide. Culpable homicide is punishable by law. Homicide can be lawful or unlawful. Culpable homicide is further divided into two categories: 

• Culpable homicide amounting to murder.
• Culpable homicide not amounting to murder.

Murder (Section 300)

Murder is defined under Section 300 of the Indian Penal Code. According to this Act, culpable homicide is considered as murder if:

• The act is committed with an intention to cause death.
• The act is done with the intention of causing such bodily injury which the offender has knowledge that it would result in death.
• The person has the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act, this would amount to murder.

Ingredients of Murder

• Causing death: There should be an intention of causing death,
• Doing an act: There should be an intention to cause such bodily injury that is likely to cause death, or
• The act must be done: with the knowledge that the act is likely to cause the death of another. 

Illustrations

• A shoots W with an intention of killing him. As a result, W dies in that consequence, murder is committed by A.
• D intentionally gives a sword-cut to R that was sufficient to cause the death of anyone in the ordinary course of nature. As a consequence, R dies. Here, D is guilty of murder though he didn’t intend to cause R’s death. 

Culpable homicide (Section 299)

Culpable homicide is covered under Section 299 of the Indian Penal Code. Culpable homicide means the act done by a person which causes the death of another with an intention of causing death or causing such bodily injury that is likely to cause death, or he has knowledge that the act committed by him is likely to cause death, is said to commit the offence of Culpable homicide.

Illustration 

• X induces Y to put the fire at the place having the knowledge that Z was sitting behind a covered area. Here, X is liable for the offence of culpable homicide, as he had prior knowledge that Z was present in that area and his actions will lead to Z’s death. Here, intention makes X liable to culpable homicide.
• Y is diagnosed with a terminal illness and to live from day to day he needs certain drugs. Z confines Y in a room and prevents him from taking his medication. Here, Z is guilty of culpable homicide.

Cases

In the case of Reg. v. Govinda, 1876 the accused had knocked down his wife, kept a knee on her chest and gave two to three violent blows with the closed fist on her face. This act produced extraversion of blood on her brain and afterwards, the wife died due to this. The act was not committed with the intention of causing death and the bodily injury was not sufficient to cause death in the ordinary course of nature. The accused was liable to culpable homicide not amounting to murder.

The difference between murder and culpable homicide is intention. If the intention is present the crime is said to be committed under Section 300 of IPC. If the intention is absent, then the crime is dealt under section 300 of IPC.

Exceptions to Section 300 of IPC where culpable homicide is not considered as murder

Sudden and grave provocation 

If the offender is deprived of the power of self-control due to sudden and grave provocation, and his act causes the death of the person who provoked or death of any other person by accident or mistake.

This exception is subject to a certain proviso, that is:

• That the provocation is not sought or is voluntarily provoked by the offender to be used as an excuse for killing or causing any harm to the person.
• That the provocation is not given by anything that is done in obedience to the law, or by a public servant while exercising the powers lawfully of a public servant.
• That the provocation is not done while doing any lawful exercise of the right of private defence.

Illustration

A is given grave and sudden provocation by C. A fires at C as a result of this provocation. A didn’t intend or have knowledge that his act is likely to kill C, who was out of A’s sight. A kills C. A is not liable to murder but is liable to culpable homicide.

Cases

• K.M. Nanavati v. State of Maharashtra, 1961

In this case, the Supreme Court had extensively explained the law relating to provocation in India. It was observed by the Court:

• The test of “sudden and grave provocation” is whether a reasonable man, who belongs to the same society as the accused, is placed in the situation in which the accused was placed would have been so provoked as to lose his self-control.
• Under certain circumstances, words and gestures may also lead to sudden and grave provocation to an accused, so as to bring his act under an exception. 
• The mental background of the victim can be taken into consideration, taking account of his previous act to ascertain whether the subsequent act leads to sudden and grave provocation for committing the offence.
• The fatal blow clearly should trace the influence of passion that arises from the sudden and grave provocation. It should not be after the provocation has been cooled down due to lapse of time, otherwise, it will give room and scope to the accused for altering the evidence.
• Muthu v. state of Tamil Nadu, 2007

ln this case, it was held by the Supreme Court that constant harassment might deprive the power of self-control, amounting to sudden and grave provocation.

When the person exceeds his right to private defence 

Where the act is committed to defend them from further harm. If the accused intentionally exceeds his right to private defence, then he is liable to murder. If it is unintentional, then the accused will be liable to culpable homicide not amounting to murder.

 Illustration

• X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn out by Y, X persists the assault. Y believes that he had no way to prevent himself from being flogged by X, Y fires at X. X is liable to culpable homicide not amounting to murder.

 Case

• Nathan v. State of Madras, 1972

In this case, the landlord was trying forcefully to evict the accused. The accused killed the landlord while exercising his right to private defence. There was no fear of death to the accused as the deceased was not holding any deadly weapon that could have caused grievous hurt or death of the accused. The deceased had no intention to kill the accused, thus, the accused exceeded his right of private defence. The accused was liable to culpable homicide not amounting to murder.

Culpable homicide in case of Public Servant 

The act is done by a public servant who is acting to promote public justice. If the public servant commits an act which is necessary to discharge his duty as is done in good faith and he believes it to be lawful.

 Illustration

• If the police officer goes to arrest a person, the person tries to run away and during that incident, if the police officer shoots the person, the police officer will not be guilty of murder.

 Case

• Dakhi Singh v. State, 1955

In this case, the appellant was the constable of Railway Protection Force, while he was on duty he killed a fireman unintentionally, while he was firing bullet shots to catch the thief. The constable was entitled to benefit under this section section’s benefit.

Sudden Fight

The sudden fight is when the fight is unexpected or premeditated. Both the parties don’t have any intention to kill or cause the death of another. The fact that which party had assaulted or offered a provocation first is not important.

Case

Radhey Shyam and Anr. v. State of Uttar Pradesh, 2018

In this case, the appellant was extremely angry when he got to know that his calf had come to the deceased place. The appellant started abusing the deceased, when it was tried to stop him, the appellant fired at the deceased. The deceased was unarmed at that time, thus the appellant had an intention to kill the deceased, hence, he was held liable to murder.

Consent

If the act is committed with the consent of the victim. The consent should be unconditional, unequivocal and without any sort of reservation.

Illustration

• A instigated F who was under 18 years of age, to commit suicide. F was incapable of giving consent to his own death. Therefore, A is guilty of murder.
• X killed his stepfather Y, who was old and infirm. X killed Y with his consent. This was punishable under Section 304.

Culpable Homicide in the exercise of good faith

Culpable homicide does not amount to murder if it is done in exercise of good faith in order to protect the private or public property. If the act committed by a person exceeds its power provided by law and kills someone in order to save someone or something, then the act does not amount to murder.

Illustration

Y attempts to horsewhip Z, not to cause grievous hurt to Z. Z takes out a pistol, Y persists to the assault. Z in good faith in order to prevent himself from being horsewhipped, shoots at Y, such that he dies because of that. Z is guilty of culpable homicide and not murder. 

The act is punishable under Section 302 of IPC if it does not fall under the exception of Section 300 of IPC.

Culpable Homicide by causing the death of the person other than the person whose death was intended (Section 301)

Under Section 301 of IPC, Culpable Homicide amounts to murder even if the person who was not intended to die, dies due to the act committed by the perpetrator, though he had planned to murder someone else. 

In other words, there is no distinction in the eyes of law between cases where the death is caused to an intended person or whether it results in the death of an unintended person.

Case

Abdul Ise Suleman v. State of Gujarat, 1994

In this case, the accused persons had freely fired on the fleeing complainant party in a commercial locality in the course of an altercation. In the first shot, the person was injured, while a ten-year-old son of a complainant was dead in the 2nd shot. It was held by the Supreme Court that the child death was intentional and hence applies Section 300 read with Section 301 of IPC. 

Causing Death by negligence (Section 304A) 

Under Section 304A of IPC, if someone causes the death of another due to rash or negligent act that does not amount to culpable homicide, shall be punished with imprisonment which can extend up to two years or with fine or both.

Cases

• State of Karnataka v. Mohd. Ismail, 1988

In this case, a 28-year-old motorcyclist had pushed an 85-year-old man from behind. The old man died on spot due to head injuries attained at the time of the accident. The death was a result of rash and negligent conduct.

• M.H. Lokre v. State of Maharashtra, 1971

In this case, the appellant who was not driving rashly was not held guilty under this section for causing the death of the person who came under the wheels of the vehicle while suddenly crossing the road. A man however vigilant and slowly he might be driving he cannot avert an accident if a person suddenly comes in front of his vehicle while suddenly crossing the road.

Dowry Death (Section 304 B)

Section 304 B of IPC states that if within seven years of marriage a woman dies by a bodily injury or burns, or it is revealed that before the marriage the woman was exposed to cruelty or harassment by her husband or by any other relative of her husband, in connection to the demand of dowry then the death of the woman will be considered as the dowry death.

The punishment for Dowry death is imprisonment for a minimum of seven years or a maximum of imprisonment for life. 

Attempt to murder (Section 307)

Section 307 of IPC deals with an attempt to murder. Whoever commits an act with an intention or knowledge and under such circumstances, that causes the death of the person would be held guilty of murder and shall be punished with imprisonment for a term that can extend up to ten years, and shall be liable to fine, and if that act causes hurt to a person, the offender shall be liable to imprisonment for life, or such other punishment as decided by the Court of law.

Illustrations

• R shoots S with an intention to kill her. If under such circumstances death has ensued, R will be guilty of murder.
• P, with an intention to cause death to Q, who is a child of seven years of age, leaves him in a deserted land. P commits an offence under this section, though the death of the child is not ensured.

Attempt to commit Culpable Homicide (Section 308)

Under Section 308 of IPC, whoever commits an act with such intention or such knowledge and under such circumstances, and if that act causes death, he would be guilty of culpable homicide not amounting to murder and shall be punished with imprisonment that can extend up to three years, or with fine or both. If the act causes hurt to any person, the offender shall be punished with imprisonment that can extend to seven years or with fine or both.

Illustration

• A due to sudden and grave provocation fires at Z. If Z dies due to this incident, A will be guilty of culpable homicide not amounting to murder.

Punishment

Punishment for murder (Section 302)

The punishment for murder is provided under Section 302 of IPC. Under this section whoever commits murder is punished with:

• Death
• Life imprisonment
• Fine

Punishment for Culpable Homicide (Section 304)

Culpable homicide is not murder if it falls under any one of the five exceptions given under Section 300. Section 304 of IPC describes the punishments for culpable homicide not amounting to murder, that is:

• Imprisonment for life,
• Imprisonment for either description of a term extending up to ten years,
• Fine.

Punishment for murder by life-convict (Section 303)

Life convict is a person who is found guilty of a crime and is sentenced to life imprisonment by the Court. Section 303 of IPC provides that if any person commits murder who is sentenced with life imprisonment shall be punishable to death. Section 303 is only applicable to the person who is convicted under section 302 read with Section 34 or Section 302 read with Section 149. Section 303 makes capital punishment necessary for the person who is convicted for life imprisonment commits murder. 

It was held by the Court that if a person is released by remission who was undergoing imprisonment for life for murder, is not considered under the sentence of imprisonment for life any longer. If the murder is committed during the period of remission, it will not be considered while giving punishment under Section 303 of IPC. Thus, the accused shall not be given imprisonment for life.

In the case of Mithu v. State of Punjab, 1983 the constitutional validity of Section 303 of IPC was questioned. Section 303 was held to be arbitrary and unconstitutional as it was held by the Court that mandatory death penalty to a life convict is arbitrary and unreasonable, due to:

• There is already a lot of stress that a life convict is exposed to in jail.
• No justification is found for prescribing a mandatory death sentence for the offence of murder that is committed inside or outside the prison by the person under life imprisonment.
• A standard mandatory sentence in the form of death fails to take into account the facts and circumstances of each act.

Conviction of a Pregnant Woman

Section 416 of the Code of Criminal Procedure, 1973 deals with the postponement of capital sentences given to a pregnant woman. Under this Section, if the pregnant woman is convicted, the High Court can postpone the execution of the sentence or reduce the sentence to life imprisonment.

Under this section, the rights of an unborn child are protected. The main aim of this section is to protect the child from being killed who didn’t make any mistake. The pregnancy should be proved with proper medical examination and reports.

Conviction of a Minor

According to the Juvenile Justice (Care and Protection of Children) Act, 2000, the individuals who were under 18 years of age, when the crime was committed cannot be executed. The Juvenile Justice Act, 2000 was replaced by The Juvenile Justice Act, 2015. The amended Act allows the person from 16 to 18 years of age to be tried as an adult if they are found to be liable for any heinous crime like rape and murder. 

Sentence to Co-accused

Section 30 of the Indian Evidence Act provides confession of the co-accused. The persons who are accused of the same crime shall be awarded the same amount of imprisonment. The confession made co-accused holds a proper evidentiary value. It is ensured by the parity principle that the sentence should be similar for the same offenders or persons who are convicted of the same crime. Fairness and equality are ensured by this principle while awarding the sentences. 

Landmark Judgments

Jag Mohan Singh v. State of Uttar Pradesh, 1972

In this case, there was a murder which came up after the amendment of the Code of Criminal Procedure in 1973, where the death penalty was no longer a mandatory sentence for murder and it became subject to the discretion of the Court. The arguments were raised regarding the constitutionality of a death penalty, it was on the ground that a vide discretionary power vested with the Courts as there were no guidelines or standards. It was held that it violated Article 14, Article 19 and Article 21.

It was held by the Supreme Court that the Right to life was not a part of Article 19 and the death could not be called as unreasonable or opposed to public policy since it was the punishment which was part of the law even before the commencement and the legislature would be presumed to know its existence. And since it was not removed, it could be assumed that the legislature did not think of it as unreasonable. 

Article 14 could hardly be invoked in matters involving judicial discretion, as each case would be peculiar to facts and circumstances. The discretion given to Courts to award a death sentence cannot be termed aa unguided. The Code of Criminal Procedure lays down the detailed procedure about when a death sentence is imposed and following the procedure established by law cannot be held as unconstitutional.

Article 19

In this case, writ petitions were filed in the Supreme Court, challenging the constitutional validity of allowing the death penalty as an alternative to punishment for murder.

The significant changes from Jagmohan case to Bachan case was that the scope of Article 19 and Article 21 was expanded by the interpretation given in the Maneka Gandhi’s case. By this time India had become a party to the International Covenant on Civil and Political Rights. It was held by the Court that the Covenant did not outlaw the death penalty. 

If the freedom mentioned under Article 19 are infringed, then Article 19 can be invoked. Since the right to life is not covered under Article 19, it cannot be invoked to determine the constitutionality of Section 302 of Indian Penal Code, that provides death penalty as an alternative punishment to murder. Merely on the ground that the death penalty remotely affects the freedom under Article 19, the death penalty cannot be held to be unconstitutional.

The Court held that a pre-sentencing hearing introduced in The Code of Criminal Procedure was a mandatory requirement. It was made necessary to consider the circumstances of both crimes as well as the criminal. 

Triveniben v. State of Gujarat and Ors, 1989

In this case, the appellant was given a death sentence. He was the main accused for conspiring and by impersonating a customs officer had murdered several persons, by abducting under the guise of interrogating officer in order to rob and then murder them. For eight years the accused was kept in solitary confinement. The appeal was that Article 21 was violated as there was a delay in execution.

It was held that the sentence imposed should be carried out under procedure established by law. If there is a prolonged delay irrespective of the cause in carrying out the execution, it has a dehumanizing effect, which violates Article 21 by unjustly depriving a person of his life and liberty.

If there is a delay beyond two years, it entitles a prisoner for quashing of a death sentence.

Sher Singh v. the State of Punjab,1983

In this case, it was held that delay can be a ground for invoking Article 21 of the Constitution of India. There is no binding rule that the delay entitles a prisoner to quash the death sentence.

Rajendra Prasad v. State of Uttar Pradesh, 1979

In this case, it was discussed about the special situations to be considered before awarding the death penalty. It was held by the Court that not only the nature of the crime but also the various factors of criminals before awarding the death penalty.

Raju Jagdish Paswan v. The State of Maharashtra, 2019

In this case, the Trial Court had awarded the death sentence to the appellant, who committed rape of a nine-year-old kid. The same sentence was awarded by the High Court. On appeal in the Supreme Court, the punishment was reduced, since the death can only be awarded in rarest of rare cases. It was held by the Supreme Court that life imprisonment is a rule while the death sentence is an exception. The death penalty was not awarded by the Supreme Court in this case for reasons:

• There was no pre-planning for the murder.
• The person who committed the act was not a continuous threat to society.
• There was a lack of evidence by the State to prove that the person cannot be rehabilitated and reformed.
• The appellant was just 22 years of age while committing the crime.
• The basic principle is that human life is valuable and a death sentence should be awarded only when it is mandatory if there is no option for any other punishment and even in cases where the range of crime is heinous.

Most famous murder cases you need to know about

Arushi Talwar case

The 14-year-old Arushi was murdered on 16th May 2008 along with Hemraj Banjade who was 45 years old then. There were a lot of suspects on the list of the accused including Arushi’s parents. This case received a lot of media coverage and aroused public interest. 

For a very long time, Arushi’s parents had been held under custody. Still, it is not clear whether it was Arushi’s parents or the other two servants that worked in her house. Though Arushi’s parents have been acquitted, yet no one knows who killed Ayushi and Hemraj.

Jessica Lal murder case

The case got highlighted with the heading ‘No one killed Jessica’ in the year 1999. The eyewitnesses had amnesia and there was hardly anyone who came forward to give an account of how an aspiring model was shot dead. Later people came to know that it was the businessman Manu Sharma who was refused by Jessica to serve liquor had shot her dead.

Pradyum Thakur murder case

A student of II class, Pradyum Thakur was found dead in the washroom of Ryan’s International School in Gurgaon. The kid who didn’t cause any harm was thought to have been killed over a situation of sexual assault by a bus conductor, who got arrested but later it was found that the murder was committed by a student of 11th year, whom the Court said that he will be tried as an adult.

Sheena Bora murder case

Sheena Bora’s mother Indrani Mukherjea was the real culprit who had planned the murder of her daughter Sheena Bora. It was claimed by Indrani Mukherjea that Sheena was her sister and she never admitted to having two children. The limelight was brought to the Murky Financial dealings of Indrani Mukherjea and her husband Peter Mukherjea.

Pramod Mahajan murder case

Pramod Mahajan was a politician in the Bharatiya Janata Party. He was killed in a broad daylight inside his house. April 2006 Pramod was shot dead by his brother, Pravin. After killing his brother, Pravin walked to the nearest police station to confess that he had shot his brother Pramod. Pravin was sentenced to life imprisonment and later on died due to brain haemorrhage.

Amar Singh Chamkila murder case

Amar Singh was a popular Punjabi singer, musician, songwriter and composer. Amar Singh along with his wife and two members of the band were killed on 8th March 1988, by a gang of unknown youths. No one got arrested even when they got killed in front of so many people and in broad daylight.

Sunanda Pushkar murder case

Wife of a former Indian diplomat and famous politician Shashi Tharoor’s wife, Sunanda Pushkar was a renowned businesswoman. She was killed in Delhi’s Leela Palace’s hotel room. It is suggested in the report that when Shashi Tharoor saw Sunanda Pushkar, he assumed she was asleep and when she did not wake up, Shashi Tharoor informed the police.

She died after a day she had accused Pakistani journalist Mehr Tarar of stalking her husband on twitter. According to the post-mortem report, it was concluded that she had committed suicide. But the report from doctors of All India Medical Institute said that the death was due to drug overdose and she had injury marks on her body.

Neeraj Grover murder case

This case received a lot of attention due to how fatal it was. His body was firstly chopped into pieces and then later stuffed in three garbage bags and put on fire in the forest.

Neeraj’s friend Maria Susairaj had filed a missing complaint in the police station. She was later found to be involved in the killing. It was discovered that Maria’s boyfriend in a fit of rage had killed Neeraj suspecting that Maria was having an affair with Neeraj.

Sharath murder case

Sharath was a 19 years old son of an Income-tax officer who was killed in Bangalore. Sharath’s body was found on the outskirts of the city near Ramohalli lake with his hands tied together. It turned out that the kidnappers had strangled Sharath to death and later on the same day they had dumped his body. 

The police found out that the kidnappers were friends of Sharath and his close friend Vishal was the one who had planned this murder and abduction to clear off the loan.

Conclusion

The Court awards death penalty only in rarest situations only in cases where the accused is a threat to the society aa the Court understands the value of life. The Court has all the rights and power to reduce the punishment. 

References

• https://indiankanoon.org/doc/626019/
• http://www.legalserviceindia.com/articles/cri_m.htm
• https://www.lawnn.com/murder-section-300-indian-penal-code/
• https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy
• https://www.project39a.com/landmark-judgements
• http://lawtimesjournal.in/murder/
• https://www.advocatekhoj.com/library/bareacts/codeofcivilprocedure/index.php?Title=Code%20of%20Civil%20Procedure,%201908
• https://www.indiatimes.com/culture/11-most-mysterious-and-sensational-cases-of-murder-in-india-334096.html
• https://theprint.in/report/pradyuman-thakur-murder-connecting-dots/20077/
• https://m.economictimes.com/news/politics-and-nation/police-files-charge-sheet-in-sunanda-pushkar-death-case-in-delhi-court/articleshow/64159153.cms
• https://www.newindianexpress.com/cities/bengaluru/2017/sep/23/friend-plotted-the-kidnap-and-killing-of-i-t-officials-son-1661452.html

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Murder under Indian Penal Code appeared first on iPleaders.

This article is written by Yatin Gaur, a student, pursuing B.A.LL.B. from Hidayatullah National Law University. In this blog post, the author discusses the offence of Mischief as mentioned under IPC. To substantiate the concept, reference is made to all the Sections covered by the topic, with relevant illustrations and case laws. 

Introduction

Let’s imagine a situation when one fine afternoon, a person named Soham was taking a small nap after a long day of labour. But he gets interrupted by his neighbour’s calf who breaks in his home and starts creating chaos. Infuriated with this sudden disruption, Soham starts abusing his neighbour. This starts up an altercation between the two. In a fit of anger, Soham throws a brick towards his neighbour but by accident, it hits his neighbour’s calf tethering its nasal region & the calf subsequently dies. Soham now approaches his lawyer for legal advice.

This incident gives rise to a lot of legal questions that what will be the nature of this offence? Will it amount to mischief against animals? Or are all the essentials of mischief satisfied ? or the fact that it was an accident and not a deliberate intention to harm the calf will play an important role in deciding the fate of the case? To answer all these questions we have to understand the Law of Mischief and how it can land someone in trouble as per IPC.

What is Mischief 

The definition of mischief is mentioned under Section 425 of IPC & the punishment is prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific punishment prescribed for aggravated forms of mischief depending upon the nature & the value of the property damage.

As per the Section 425 of the Indian Penal Code,1860 (hereinafter referred to as IPC) that whenever anyone performs an act either having an intention to cause or is aware that his act is likely to bring, some destruction or damage to any property, destroying or diminishing its value and utility, hence, resulting in an undue loss or damage to the public or any person is said to commit mischief. 

In simpler terms, it can be understood as when an individual intends to perform an act or has the knowledge that his/her act will create hindrance in allowing another person to enjoy the benefit of their property by one means or other, it is called a mischief. However, this act can be even against the public or against a specific person as well.

Objective

The Law of Mischief under IPC is specifically drafted with an objective to provide protection against the destruction of the property causing any wrongful loss or damage to the public or an individual. It is an extension to the legal maxim sic utretuoleadas which means “use your own property, but not in a way that can injure your neighbour’s or other’s property.”

Illustrations

1. “A” intentionally sets X’s home on fire causing him wrongful loss or injury.
2. “A” a doctor deliberately prescribed wrong medicine to “B’s” cattle with an intent to cause wrongful loss or injury.
3. “C” diverts the flow of canal in such a way to prevent “B” from irrigating his field causing him loss by damage of crops.
4. “B” tears off some important business-related documents of A to cause him financial loss.
5. “A” deliberately burns off the standing crop that was jointly cultivated by “A” and “B”.
6. “B” intentionally damages a “signboard“ installed by the order of municipality causing wrongful losses & injury.

Scope of Mischief 

Mischief under Section 425 of IPC covers all those acts that cause any damage or destruction to the property resulting in any wrongful loss or damage. The scope of this section is wide and it applies in the case of both public as well as private damages.

However, the most important point is that it will not have any application in the cases where the element of intention is absent which is further elaborated in this article under the heading of Ingredients of mischief. It is also not essential that the person accused had some valid motive behind or must have been benefited from the act of “mischief”. 

But some other significant questions of consideration are whether this act can be applied in the cases when the accused has damaged his/her own property? Or will it cover situations when the damage caused to the property is a consequence of an illegal act or default in payment?

When accused is the owner of the damaged property 

In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors., the Court held that ownership or possession of the property is not a deciding factor in the matter of the application of section 425 of IPC. Thus, mischief is said to be committed even in cases when the accused is the owner of the property provided all the other essential ingredients mentioned are satisfied.

This is further evident from the illustrations (d) and (e) to Section 425. According to the facts of the above case, the petitioner alleged that the respondent removed the engines of the aircraft diminishing their value and utility. Since the appellants had the right to possess the aircraft it resulted in wrongful loss or injury Hence the Supreme held that the allegations amounted to the offence of mischief as all the essential ingredients of mischief had been satisfied.

Default of Payment or Illegal Act 

In case of disconnection of water supply, sewerage supply, electricity supply, telephone connection, etc., by the concerned departments resulting from the default in payment or an illegal act after following a due process will not come under the ambit of “Mischief”.

Ingredients of Mischief

Essentially there are three key elements to establish Mischief as per the definition laid down in section 425 of IPC which are as follows:

• Intention or the knowledge of the act (mens rea);
• The act resulting in destruction, damage or change in the property or situation thereof; and (actus rea)
• The change must lead to diminishing the value or utility.

Intention or the knowledge of the act may result in wrongful loss or damage (mens rea)

One of the most essential elements of all offences under IPC is that any crime is composed of two parts- Mens Rea & Actus rea. Similarly, “Mens rea” is required to be present in order to establish the offence of Mischief.

The definition of the law of mischief makes it very clear that the only way to prove the act of mischief does not essentially mean that it has to be proved that the accused essentially had any deliberate intention to cause unjustified damage to the property. But rather what can also serve as sufficient proof is the fact that the individual had the knowledge that such action of his/her can result in damage or degradation of the property, causing wrongful loss or damage. 

This can also be understood with a real-life example that if some children while playing street cricket break-up a glass window, it will not amount to mischief but will rather constitute negligence. But if those children deliberately throw the ball to aim at the window resulting in breaking up the glass and causing loss to the owner, then it will amount to mischief.

Similar was the judgement pronounced in the case of Nagendranath Roy v. Dr. Bijoy Kumar Dasburma where the court observed that mere negligence does not constitute mischief. However in certain situations when facts indicate that intention to cause wrongful loss was present along with the negligence causing damage will amount to mischief. 

In the case of Krishna Gopal Singh And Ors. v. the State Of U.P., it was stipulated that if the accused has committed an act without any intent or knowledge that the act in question is likely to cause wrongful loss or damage to any person or the public at large, it will not fall under the ambit of mischief as the element of “Mens rea” is absent. Similarly, if an act is committed without free consent i.e.under some pressure or duress it will also not amount to mischief.

In Arjun Singh v. The State (AIR 1958 Raj 347) it has been observed by this Court:”In order to establish the offence of mischief, it is essential for the prosecution to establish that the accused must have an intention or knowledge of likelihood to cause wrongful loss or damage to the public or any person.”

Wrongful loss or damage (actus rea) by diminishing the value and utility

The second important requirement is that the act must have resulted in some wrongful loss or damage to the owner of the property depriving him of enjoying the same. The act must have caused some damage, injury or destruction to the property to the effect of diminishing its value or utility. This will constitute the “actus reus” of the offence.

Similarly, even a change in the property can also amount to property. For example, altering someone’s research notes. It is also very important that the damage must be the direct consequence of the alleged act and must not be based on some hypothetical or imaginary relation.

In Arjuna vs. State (AIR 1969 Ori 200) case, the court found the accused guilty for damaging the standing crops grown by the complainant on the land belonging to the Government as it caused wrongful loss to the government by diminishing its value.

In the case of Gopi Naik vs. Somnath (1977 CrLJ 1665 Goa), the respondent alleged that the accused had cut their water pipe connection causing them wrongful loss & damage. Upon investigation, the Court found the accused guilty of the offence of Mischief as this act has resulted in diminishing the value of the property, i.e., water supply.

One very important case in this regard is the case of Sippattar Singh vs. Krishna (AIR 1957 All 405) case, where the court separated the offence of theft from mischief. In this specific case, the respondent was guilty of cutting the sugar cane from the field of the petitioner and taking it away. 

The Court found the respondent not to be guilty of the offence of mischief, but he was held guilty of theft, because of two important reasons: first that the respondent had not caused any damage to the remaining field of the sugar cane, & second because the respondent had physically moved certain quantity of sugarcane coupled with dishonest intention to misappropriate it.

In another case of E. In Shriram vs. Thakurdas case, the complainant alleged that the accused, an officer of Municipal Corporation, demolished his house thus was guilty of the offence of mischief causing him wrongful loss and damage. But upon investigation, it was found that it was an unauthorised construction and the accused took the action only after serving due notices.

The Bombay High Court held that the officer acted in the due course of his duties by demolishing the unauthorized construction as per law, thus this act of his attracts no offence under section 425 of IPC.

In the case of Punjaji Chandrabhan v. Maroti, the Court ruled that no mischief was committed under Section 425 of IPC when in a particular case ‘easement right’ to carry water to the field of the complainant through the drain running through the land of the accused. The court observed that the field being a tangible property was not capable of being destroyed thus no wrongful loss or harm was incurred. Hence the accused, the landowner.

Punishment for Mischief

The punishment for Mischief is prescribed under Section 426 which states that it attracts imprisonment of a term which may extend up to three months, or with fine, or with both, as the court may deem fit.

Nature of offence: The offence under this Section is non-cognizable, bailable, compoundable, and triable by any Magistrate.

Aggravated forms of Mischief

Though the punishment for the offence of mischief has been laid down as imprisonment until 3 months, or fine, or both in Section 426 of the Indian Penal Code. However, the IPC recognizes and lists down certain aggravated forms of mischief which have been described under Sections 427 to Section 440, IPC. It prescribes a different level of punishment for each category which is described as under:

Mischief causing damage to the amount of fifty rupees

Explanation: When a Mischief committed results in some pecuniary damage i.e. the damage is quantifiable the magnitude of the punishment will depend upon the amount of damage incurred. 

Punishment: According to section 427 whoever commits any mischief causing loss or damage to the amount of fifty rupees or upwards, will be subject to the imprisonment of either description of a term with a maximum of two years, or with fine, or with both. 

Proof requirement: It is important to establish the element of “Mens rea” in section 427 as well. 

Nature of offence: The nature of the offence under this section is bailable, compoundable, non-cognizable, and triable by the Magistrate.

Mischief by killing or maiming of animals of the value of ten rupees

Explanation: Section 428 provides the punishment in case of mischief committed upon any animal or animals of the value of ten rupees or upwards which includes killing, poisoning, maiming or rendering that animal useless. 

Definition: The word ‘animal’ used in the statute refers to ‘all living creature except human being (see here). By ‘Maiming’ the legislature does not intend causing wounds or temporary injuries (see here) but rather It has to be an injury permanently affecting the use of a limb or other parts of the body.

Object: The object of the legislature to prevent cruelty against animals.

Punishment: It attracts the imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

Nature of the offence: The offence under this Section is cognizable, bailable, compoundable with the permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate.

Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees

Explanation: Section 429 also lays down the punishment of similar nature of the crime but characterises the offence as more grave considering their utility for commercial purposes. punishes those who commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow, or ox, whatever may be the value thereof or any other animal of the value of fifty rupees or upwards.

Object: Apart from preventing cruelty against the animals with commercial viability it looks that another reason behind this statue is to punish the person who tries to cause wrongful loss or damage to the person by inflicting cruelty on animals.

Punishment: The punishment prescribed under this Section is the imprisonment of either description for a term which may extend to five years, or with fine, or with both. 

Nature of offence: The offence under this Section is cognizable, bailable, compoundable with the permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate.

Mischief by injury to works to irrigation or by wrongfully diverting water

Explanation: Section 430 of IPC specifically aims at those cases where the act of mischief results in some injury to the work of irrigation or by unduly diverting the flow of water resulting in wrongful losses & damage. This section applies in the cases where weakening or obstructing the supply of water causes wrongful disturbances & losses in commercial activities such as agriculture, manufacturing or interfering with the drinking and food requirement of human beings or animals.

Object: The object behind the statue is to prevent diminution in the supply of water for agriculture, commercial purposes or to punish any alteration in the water supply resulting in some sort of interference with the drinking and food requirements of humans and animals.

Proof requirement: Mens rea or intention to cause wrongful injury is important to be established for proving the offence.

Punishment: The punishment prescribed in IPC for this offence will be either a description of a term which may extend up to 5 years, fine or both as the court may deem fit.

Nature of offence: The offence under this Section is cognizable, bailable, compoundable with the permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate.

Mischief by injury to the public road, bridge, river or channel

Explanation: Section 431 deals with the punishment when an individual does an act which has the consequence of or which he knows has the consequence of causing inconvenience to the public. It covers those acts which result in damage to public roads, bridge, navigable river or navigable channels (natural or artificial) by making them impassable or rendering them less safe for travelling or conveying property.

Definition: A public road refers to a road used by the public generally (see here). Hence the term public’ under this section mentions the use and not the ownership.

Object: The object is to prevent any damage to the public property causing disruption, trouble and losses to the public at large.

Proof Requirement: Proving Mens rea is essential here, i.e. the intention to wrongful loss or injury to the person.

Punishment: The punishment prescribed under IPC is imprisonment of either description for a term which may extend to five years, or with fine, or with both.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Mischief by causing inundation or obstruction to public drainage attended with damage

Explanation: Section 432 is specifically drafted to prevent any damage, obstruction or injury causing inundation, overflow or diminution to public drainage.

Object: The object behind this is to punish those mischiefs which aim at causing disturbance and interference to public life depriving them of basic requirements of cleanliness and sanitation.

Punishment: The punishment prescribed under this section is either description of a term or extending up to 5 years, or fine, or both i.e. same as the previous section since it is also a public nature offence.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Mischief by destroying, moving or rendering less useful a light-house or sea-mark.

Explanation: According to Section 433 anyone commits mischief that results in destroying, moving or rendering less useful anything placed as a guide for navigators. This may include any lighthouse, sea-mark, buoy or any other thing fulfilling such purpose.

Punishment: The punishment prescribed under this act is more severe that is imprisonment of either description for a term with a maximum period of seven years, or with fine, or both.

Object: The intention behind this is to punish the offender who incurred huge commercial and pecuniary loss caused by this mischief.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Mischief by destroying or moving, etc., a land-mark fixed by public authority

Explanation: Section 434 lays down the punishment for the mischief when any particular act results in destroying, moving or rendering any land-mark less useful which has been fixed by the authority of a public servant.

Object: It assumes the intention of the accused is to cause wrongful loss to the public authorities as the performance of such an act leads to the wastage of the time and money of the public authorities. Further, the authorities must have put that landmark to convey some important message to the public, thus causing general inconvenience. But since the gravity of the offence.

Punishment: The punishment prescribed under this offence is smaller i.e. imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Nature of offence: The offence under this section is non-cognizable, bailable, non-compoundable, and triable by any Magistrate.

Offences of Arson 

Section 435 to 438 of IPC characterises mischief by the method adopted to cause wrongful loss or damage. It deals with the remedies provided by IPC in case of damage being caused by fire. These sections are together called offences of Arson.

Mischief by fire or explosive substance with intent to cause damage 

Explanation: Sec. 435 covers those cases where the mischief is committed by fire or any explosive substance with an intent to cause, or the knowledge that the act is likely to cause damage to any property. This section applies when the amount of damage incurred is one hundred rupees or upwards or ten rupees or upwards when the “property” damaged is an agricultural produce.

Punishment: The section prescribes imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Nature of offence: The offence under this Section is cognizable, bailable, compoundable, and triable by Magistrate of the first class.

Mischief by fire or explosive substance with intent to destroy the house

Explanation: Section 436 also deals with the mischief committed by fire or any explosive substance, but specifically applies when the damage is caused to any building which can be a house, place of worship or as a human dwelling or as a place for the custody of property.

Punishment: Considering the seriousness of the offence the punishment prescribed under this section is more grave which may include life imprisonment, or with imprisonment of either description for a term which may extend to ten years, and fine as the court may deem fit.

Scope: It has been pronounced by courts in various judgments that the word “property” used in this statute not only includes a well-furnished property with bricks and cement but is wide enough to cover structures made up of any material such as grass or matt hut and partially constructed structures as well. (see here)

Proof Requirement: One of the most essential requirements to establish an offence under Section 436 of IPC is that there must be some irrefutable evidence that the accused who actively set fire to the dwelling place or building or instigated someone to do it for him (see here). For example- a testimony of direct eye witness against the accused that he/she set the property on fire. 

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden

Explanation: Section 437 deals with the mischief resulting in destroying or rendering unsafe any decked vessel or any vessel of burden twenty tons and above.

Punishment: The punishment for the offence includes imprisonment for a term which may extend up to ten years and fine.

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Explanation: Section 438 is a special case of mischief specified in Section 437,i.e.when the similar mischief is committed with fire explosives destroying or rendering unsafe decked vessels of burden more than twenty tons.

Punishment: Though this offence attracts a more serious punishment i.e. life imprisonment or description of term extending up to 10 years & fine.

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Intentionally Running Vessel Aground or Ashore to commit theft

Explanation: Section 439 specifically prescribes punishment for the mischief committed by running the vessel aground or ashore with the motive to commit theft or misappropriation of property.

Punishment: It attracts imprisonment for a term as the court may deem fit or maximum extending up to ten years, and fine.

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Mischief committed after preparation made for causing death or hurt

Explanation: Section 440 describes the punishment for committing mischief by making preparations with an intent to cause or create fear of death, hurt or wrongful restraint. 

Punishment: It lays down the punishment of imprisonment for a description of a term which may extend up to five years and a fine.

Nature of offence: The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Conclusion

As society advances, new situations also emerge, and new issues are encountered. Similarly, though the offence of Mischief appears to be very exhaustive and inclusive taking up the whole fifteen sections of IPC. It tries to cover all the possible forms of mischief laying down different punishments for each depending on the gravity of the offence.

But despite this, it still fails to lay down proper punishment for many other kinds of mischief that are very common. Further, it does not lay down various situations that may also fall under the ambit of mischief hence leaving this solely to the discretion of Judges to identify and classify it as an act of mischief and to declare the punishment for the same. Due to this, there have been cases, where different levels of punishment can be witnessed in offences having similar nature & gravity.

Thus it is imperative to identify and implement appropriate punishment for the offence of mischief so that the offender can get due punishment and further, more deterrence can be ensured.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Mischief under IPC – All you need to know about it appeared first on iPleaders.

This article is written by Millia Dasgupta, a student studying BA LLB at Jindal Global Law School. This article covers how the current pandemic will affect the legal industry in terms of policy making, the working and attitude of the courts, firms, and in-houses, legal learning and remote work.

Introduction

The last generation that saw a pandemic which called for this level of social distancing is probably not even alive today (the last pandemic of this severity being the spanish flu).

COVID-19 is going to change the world as we know it. It is going to have a profound effect on society and the way humans interact with each other, even the way our governments have been functioning until now. Among all the professions, the legal professions will be profoundly affected as well. The ways that the legal profession will get affected is the direct fall out of societal changes and also the economic downturn that will follow. Till the vaccination is developed. The physical distancing guidelines are going to have an enormous effect on the food and beverages industry, retail industry and many other big businesses which will directly affect the legal industry. 

This article will not be talking about the bigger implications of the recession that will follow this pandemic, societal and cultural changes and business damages that will affect the legal industry. We will be talking more about specific effects on the legal industry such as work from home, and how that will shape this industry’s future.

What is COVID-19?

Coronavirus is named after the term ‘crown’. They cause common diseases such as the common cold, flu and mild respiratory diseases. Some of them can also affect animals and on rare occasions we see the virus jump from animal species to the human population. 

But there has been a novel type of this virus which is causing such a ruckus. COVID-19 is a new type of virus that experts have not seen before. 1,867,130 have fallen victim to this disease and the most worrying concern is that the virus keeps mutating, thus rendering all previous information about the virus irrelevant. 

The virus can be transmitted through touch. Such diseases are usually transmitted through large droplets (i.e saliva and mucus) from the infected which contain the virus and survive on surfaces. Another fact that has made this virus so potent is that it survives on surfaces for very long. In order to make sure one is not infected by the virus, individuals are asked not to touch their faces and to always wash their hands, especially if they have been in public areas. Due to the quick rate of spreading, our government has imposed a strict quarantine in order to prevent spreading through human contact. 

Policy Making 

During such pandemics, the government plays an extremely important role due to the fact that a pandemic is largely a public health issue. How the government chooses to legislate in order to deal with this historical event will decide the structure and the contours of the legal sphere and the nature of landmark cases. Before we delve into what the future looks like, let us first discuss one of the models that the government follows during such events.

The Four Acts Model

First Act- Progressive Revelation

Progressive revelation is acknowledging that there is a problem and there is an increasing number of cases. Thus through this step, the government must engage the masses and make them realize the gravity of the situation.

Second Act- Managing Randomness

It is the job of the government now to make everyone understand the source, nature and reason of the pandemic. They must prevent religious, spiritual and cultural groups from cashing on this moment and attributing the reason to something else like the will of God.

Third Act- Negotiating Public response

After it has been ingrained in the collective public consciousness that there is an ongoing pandemic, they will demand some kind of action to be taken. It is during this act that strong and decisive leadership is needed in order to enforce some kind of action that has an effect on all the levels of society. This action must be conscious of the various cultural attitudes, class hierarchy and social differences, and must be enacted in such a way to unite everyone as one against this disaster. 

Act Four- Subsidence and Retrospection

This is for after the danger seems to subside and life begins to return back to its normal patterns, it is the job of the government to analyze their actions i.e.- figure out where they could improve and prepare for the next epidemic or pandemic. 

The Future

Looking at the decisions that the government has already taken with regards to lockdown, it seems that the government will implement more strict laws which may be borderline arbitrary. The court’s reaction to these laws might change as well. 2019 was a year of landmark cases such as the Navtej Singh Johar v. Union Of India Ministry of Law that valued individual liberty over public morality/opinion. The court might change this attitude and pass judgements and approve of laws that value public safety and morality over individual liberty.

Courts

The courts in India are one of the pillars on which this country’s democracy balances on. But due to the pandemic, Supreme Courts and High Courts have limited themselves to only see cases which are extremely important. Courts in their own way have been trying to get creative solutions to the problem such as setting up video conferences. Here is how the various courts are dealing with the issue.

Supreme Court

The Chief Justice of India, S A Bobde said that closing down courts was not a favourable option and they would commence with virtual courts in order to tackle the problem. The SC is also encouraging e-filing and video calling. 

Those showing symptoms of cough and cold will not be required to attend the court. 

Delhi High Court

The Delhi High Court shall only be restricted to watching urgent matters and unless dispensable, parties are advised not to make any personal appearances in court. Video conferences shall be used to record evidence.

Bombay High Court

The Bombay High Court is discouraging individuals from unnecessarily visiting the court and that they should visit only when matters are serious. The court shall be open from 12 pm to 2 pm.  HC staff is also exempted from putting their attendance through biometrics and are required to put their attendance by signing a register. The court staff should also avoid crowding rooms and areas like the canteen. 

Calcutta High Court

Like the other courts, the High Court of Calcutta will only be seeing urgent matters. Activities from the Judicial Academy will be postponed until further notice. Lawyers have been directed to not bring their clients into court and video conferencing shall be available for undertrial prisoners. There has been a request for an increase of doctors in not only the High Court but in district courts as well. They shall also be equipped with thermal guns to check the temperature for everyone who enters the court. 

The housekeeping staff shall be reduced to half and shall work on rotation. They have been also asked to maintain hygiene in the court and to disinfect the complex on a daily basis. 

The Future

Due to the pandemic, it seems that the aftermath shall result in courts being able to shift into a structure that they have been very reluctant about changing into i.e- going digital. It seems that they shall be more open to using technology in their daily functioning such as e-filing and video conferencing. 

Law Firms And In-House 

A post-COVID-19 world will prove to be more competitive for firms in terms of finding talent and searching for clients and customers. Due to the problems that this pandemic is causing, businesses will want to go to firms and legal businesses that are able to provide a solution to these unique issues that will arise from the pandemic. This new environment will encourage a new system, where the customer will decide at what amount elite legal expertise will be given, not the firm itself. They will also decide how results are measured. This is due to the fact that there will be a scramble for clientele thus the client will become the real king and will dictate the terms. 

Legal departments will have to look at other areas for insourcing and outsourcing. This is because the recent environment is posing a threat to the traditional structure of such firms and these legal firms must look at unique solutions to these problems. While a lot of the business will go digitized, it will also change many of the traditional ways a firm works. What exactly these changes will be is hard to say from now. 

Mark A. Cohen in his article for Forbes states that the divide between law firms, corporate departments and other supply chain providers will no longer be so defined. Due to the shift to digital work, it will be easier for legal establishments to collaborate and find a solution for their clients. In this new age, expertise, collaboration, delivery, results, and customer satisfaction will matter.

Digital Legal Learning

Law Colleges may follow the example of companies which provide online courses. Such as Lawsikho.com. The advantages of such courses are that they are flexible and accessible. One can tailor their law course to their own needs by choosing the subjects they wish to specialize in. 

Not to mention that online course companies are willing to take the risk of investing in niche subjects (for example space law) due to the fact they will always find a market due to their accessibility. Being an online course also means they are more flexible with their mentors and can update their course material more regularly to meet the needs of their clients AKA students. 

Despite all these perks, Law colleges have adamantly fought off the structure of online courses and have stuck to the traditional classroom structure. It seems that now with COVID-19 forcing major Law Colleges to adapt online classes in their daily working, online teaching will now become the norm. 

It also seems like that online courses will no longer seem to be inferior to mainstream colleges as the masses will get used to the idea of online teaching. The traditional view that physical learning trumps online learning might be shaken off. Law colleges will confront competition from other sources, big tech giants might create legal training and learning centres. They will offer legal courses. Due to the job market becoming more competitive for law students, it is imperative that their coursework is tailored to prepare them for such a job market. 

Work from Home 

COVID-19 has changed the legal workforce drastically. A very prominent change is accommodating remote work in the usual legal culture. Due to this change, many individuals who are a part of the legal workforce have found themselves having to work from home.  Thus we see the solid walls of bureaucracy which were so hard to break down before, have now m finally met its match. 

In order to enforce social distancing, industrial and legal titans have had to employ various tools in order to make sure that despite workers being unable to physically be present in the office, they can still contribute. 

These tools include online conferences with coworkers, clients and bosses, e-filing, more electronic communications and more. While it has been extremely difficult for the legal world to accommodate these changes, it has not been impossible and we have seen it evolving at a rapid rate.

While working from home may seem like a strange and chaotic breakdown of mainstream work culture,  A report by the Society for Human Resources Management (SHRM) states that it is nothing new. In 2019, 69% of organizations allowed their workers to work remotely. And it seems that working from home has more benefits than what meets the plain eye. For one, work from home yields better job satisfaction. Further studies also state that changing the work environment and flexible timings which come with remote work yield a more efficient use of company resources and are more productive.

Conclusion

In this article, we have discussed how the legal industry will get affected in terms of policy-making, the working and attitude of the courts, firms and in-houses, legal learning and remote work. While the future may seem bleak, it seems that a titan like the legal industry will survive. 

Reference

• https://indianexpress.com/article/coronavirus/coronavirus-how-supreme-court-high-courts-are-tackling-the-pandemic-6316738/
• https://www.forbes.com/sites/markcohen1/2020/03/24/covid-19-will-turbocharge-legal-industry-transformation/#7e469d001195
• https://www.ncbi.nlm.nih.gov/books/NBK54171/

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post COVID-19: The Future of the Legal Industry  appeared first on iPleaders.

This article has been written by Arkadyuti Sarkar, a student pursuing his B.A.LL.B from Shyambazar Law College under the University of Calcutta. This article discusses why sport hunting is cruel and unnecessary.

Introduction

There existed a time when Royals, Barons, and other aristocrats would go hunting bears, deers, tigers, wild boars, rhinoceroses or other wild creatures. After finishing them off they would return with their carcasses, peel off the skins, and hang them on the wall of their drawing room or use them as a carpet.

This hunting was a matter of great pride for the aristocrats and often regarded as a sign of elitism and regality. However, with time legislations have penalized trophy hunting or sports hunting.

Nevertheless, not every nation around the globe has illegalized trophy hunting. Sports hunting still continues nowadays and sometimes even in an illegal manner. 

In the next few passages and paragraphs, we shall learn in detail about sport or trophy hunting, arguments in its favor and arguments against it, and the alternative remedies for countering this so-called regal recreation. 

Sport Hunting

Sport hunting or trophy hunting is a hunting wild game purported to human recreation. In this game, the trophy is usually the corpse of the animal or parts of the animal, representing the success of the hunting game. The hunted animal is usually an ornamented male. 

For eg: the one having large horns or antlers. In general, only parts of the animal; such as skin, head, horns, antlers, etc are kept as the trophy, while the carcass goes into being consumed as food. Sometimes, however, the skin is delivered to the taxidermist in exchange for money. This is a rare scenario though as such an act undermines the elitism involved with the game.

The hunters usually keep these animal trophies for display in their home or office and often keep them in specially designed trophy rooms. Sometimes, the hunting weapons involved in the hunting game are being kept for display as well.

Sports/Trophy hunting Statistics

Trophy hunters imported over 1.26 million trophies into the United States of America, in the 10 years from 2005 to 2014. Canada was one of the leading sources of imported trophies.

From 2005 to 2014, the top ten trophy species which were imported into the United States:

1. Snow Goose (111,366)
2. Mallard Duck (104,067)
3. Canada Goose (70,585)
4. American Black Bear (69,072)
5. Impala (58,423)
6. Blue Wildebeest (52,473)
7. Greater Kudu (50,759)
8. Gemsbok (40,664)
9. Springbok (34,023)
10. Bontebok (32,771)

From 2005 to 2014, the ‘Big Five’ trophy species which were imported into the United States, aggregating about 32,500 lions, elephants, rhinos, buffalos, and leopards combined, from Africa include:

1. African Buffalo,
2. African Elephant,
3. African Lion,
4. African Leopard,
5. Southern White Rhino.

Predominant Regions

Canada, South Africa, Namibia, Mexico, Zimbabwe, New Zealand are some of the major nations where sports/trophy hunting is primarily witnessed.

South Africa consists of the largest hunting industry in the world, and it’s the second most popular source of American trophy imports. Trophy hunting has been practiced in Africa since time immemorial and is still practiced in many African nations.

Shocking facts related to sports/trophy hunting

1. In the last 2 decades, trophy hunting has been the cause of death of around 78000 mountain lions.
2. Mexico contains a hunting industry which is valued at approximately $200 million with around 4,000 hunting ranches.
3. Big names like Teddy Roosevelt and George W Bush are associated with sports/trophy hunting.
4. A 21-day lion hunt can range from $52,500 to $70,000.

The legality of Sports Hunting

The Prevention of Cruelty to Animals Act, 1960 was passed with an intent to prevent the infliction of unnecessary pain or suffering on animals. The following are some specified objectives of the Act:

• Declaring certain forms of cruelty as offenses and providing necessary penalties for them.
• Establishing an Animal Welfare Board to promote measures for animal welfare. 

The Wildlife Protection Act, 1972 is a comprehensive legislation relating to the problem of wildlife in India and was passed by the Parliament under Article 252 of the Constitution of India at the request of 11 States. This Act has a view to assure the ecological and environmental security enshrines the provisions relating to the protection of wild animals, birds, plants, and their habitat.

Sports hunting, however, has legal sanctions in many countries, such as African nations. However, there are certain restrictions on the species that can be hunted down, during hunting season, the number of animals an individual can hunt down and the weapons that can be used for hunting purposes.

Hunting permits and government consent are also the requirements. Specific laws related to trophy hunting differ based on the criteria mentioned, and some counties have already put a blanket on sports hunting.

Arguments held in favor of sports/trophy hunting

Now there exist some advocates of sports hunting and they put up some arguments favoring it. Let us see some of the benefits arising from sports hunting as per their contention. 

Creation of conservation incentives

Trophy hunting results in the creation of conservation incentives in places lacking viability of ecotourism, either due to its economic infeasibility or remoteness of the location.

Protection of different Species

The allotment of the land done for the purpose of sport hunting is capable of protecting various species that cannot be protected otherwise. Putting a ban on trophy hunting is likely to transform the allotted land in generating more money, most probably for agricultural or pastoral activities. However, this would negatively affect wildlife and reduce the available habitat.

Generation of significant revenue

Most African nations suffer from funding deficits in animal conservation. Significant revenue is generated from sport hunting which acts as a funding source for these conservational programs.

Beneficial to the locals and the wildlife

Trophy hunting, if done with correctness, is capable of benefiting the local population through employment, money, and food. It can also benefit the regional wildlife.

Maximization of Wildlife Populations

Hunting managers build and maintain waterholes and attempt towards maximizing wildlife populations for making it sustainable, whereas in ecotourism there is the existence of less necessity for large populations as a few individuals of a species are enough for satisfying people and profit maximization.

Lesser footprints compared to ecotourism

Sports hunting has a smaller carbon footprint count in comparison to ecotourism as fewer people generate higher revenue with lesser flights. Also, hunters need lesser infrastructure, meaning lesser degradation in habitat. Moreover, hunters do not mind going for hunting in lesser developed areas, therefore even remote areas can generate higher revenue.

Incentivizes locals in tolerating beasts

Generally, local inhabitants in various wild regions suffer from the attacks of beastly creatures like tigers, panthers, lions, and others. However, if they acquire money from sports hunting they would be incentivized to tolerate these beastly creatures. 

Why is it cruel and unnecessary?

Destruction of nature

Wildlife is an inherent part of nature. Through wildlife, the ecological balance of nature is maintained and preserved. Sports hunting results in the indiscriminate killing of wild animals and thereby inflicts a blow to the natural ecological equilibrium. For example, endangerment or extinction of one form, e.g. tiger, results in the multiplicity of another form of wildlife creatures upon which that tiger would have predated for its survival.

Also, sports hunting disrupts the migration and hibernation of the animals. This is because when animals migrate, they are prone to be hunted down, and therefore they may not hibernate.

Also, the theory that sports hunting has a lesser carbon footprint due to lesser use of flights is a vague theory. The hunters while going to the hunting site may use a jeep or any other form of vehicles emitting an enormous quantity of CO2 into the atmosphere, thereby making additions to the carbon footprint. Upon arrival at the hunting spot, the hunters set up a campsite. In such campsites, there are lots of emission of campfire smokes which make further additions to the carbon footprint. There are also human litters on the grounds which may cause animals to choke, thereby endangering both the wildlife and the environment.

Destruction of wildlife

Sports hunting has drastic consequences on wildlife. Several species of animals are already endangered as some parts of the creature were deemed valuable. Again, some species have been driven to extinction because of sports hunting. According to the news reports of Mother Nature News, there are 13 species of animals that have undergone extinction within the past 200 years, ranging from Tasmanian Tigers to Passenger Pigeons.

Cruelty against animals

A clean shot is akin to the same thing which occurs at a slaughterhouse where a butcher prepares an animal for food. The injuries inflicted on the animals when the hunters miss a shot lead to a higher degree of suffering. Some injuries are such that they render the animal unsuitable for human consumption. Any form of injury is painful, however, if an animal sustains the injury and yet manages to live then the resultant suffering is more severe than instant death.

It is more sport than a necessity

For our ancestors, hunting was never about finding a trophy for hanging on the wall or using a carpet for the drawing-room. They hunted for availing food and sometimes for survival. In modern times, however, hunting has emerged as a sporting event rather than survival means, where some hunters even pose with their kill while having absolute disregard to what happens with the corpse. Hunting merely for sporting opportunity, thus shows an overall lack of concern and respect for nature.

Leading towards abusive practices

Some hunters have gone for luring and feeding stations, especially during deer hunting as a method for making it easier to fill the deer tags. Deer feeding adds a domestication level to the animals and removes multiple benefits that are spoken of while having discussions on the joys of hunting. It is like going to the barn, killing a cow for beef, and then declaring oneself as a great hunter.

Chances of fatalities

Previously, on multiple occasions, sports hunting has resulted in fatal accidents. Sports hunting without complying with the rules could result in serious injuries and death to other humans. Carelessness during hunting can be dangerous to other members of a hunting team, passersby and even the hunter himself. Thus, it is better that such dangerous activities are banned in absolution.

A costly venture

The whole process required for becoming a full-fledged hunter can be a bit of a costly affair.

Firstly, the cost related to obtaining hunting gear, clothing, bows or firearms, etc can be huge. Moreover, there are additional accessories like rifle scope which means additional cost. Again, for obtaining a hunting license there is a requirement of funding around 1528 INR. In certain scenarios, the hunter may be required to pay other forms of charges for a specific animal. All these costs aggregate into a gigantic amount which might be an expensive venture for many.

Other Victims

Hunting accidents result in the destruction of property and inflict injuries or result in the death of horses, cows, dogs, cats, hikers, and other hunters. In 2006, then, Vice President Dick Cheney, shot a friend while hunting quails on a canned hunting preserve. According to the National Shooting Sports Foundation, injuries in 1000 are attributed to hunting in the U.S. every year, and that number only includes incidents involving humans.

The bears, cougars, deer, foxes, and other animals who are chased, trapped, and hunted down through dogs are not the only sufferers from this Sports variant. Dogs used for hunting are often kept chained or penned and are denied routine veterinary checks involving vaccinations and heartworm medications. Some are lost during hunts forever, whereas others are turned loose at the end of hunting season to fend for themselves, and die of starvation, or get struck by vehicles.

Reforms and possible alternatives

The pivotal anti-hunting move can be of course done through strict legislation that would ban hunting safaris. Also, additionally, strict penal provisions are to be legislated for violation of the hunting ban. In many nations, such as India, there is a blanket ban on hunting as it houses various endangered animal species.

Wild Life Protection Act, 1972 contains various provisions related to wildlife preservation, the establishment of sanctuaries, zoos, etc throughout the country.

However, this is not the case in many African countries, South American nations and even in the USA. In all these nations, hunting is deemed legal as a way of wildlife conservation. In the UK hunting is partly legal.

So, it can be noticed that hunting is yet considered legal in many nations, including the developed ones. The only way to counter this is an international consensus towards a blanket ban on any form of hunting. International agreements and treaties, banning hunting altogether, after ratification by various nations might prove effective. However, it is quite possible that many nations will oppose the ban and argue in favor of sports hunting. Therefore, the only way to make them cater to an agreement on the ban would be to acknowledge them about the higher number of disadvantages brought about by sports hunting.

Conclusion

So far, we have been acknowledged about what sports hunting is, the legality of sport hunting, shocking facts related to sports hunting, regions with predominance in sports hunting, critically analyzed sports hunting and have compared their advantages and disadvantages, and have introspected the remedial alternatives to sports hunting.

Thus, it can be inferred in the conclusion that it is no doubt that sport hunting not only destabilizes the ecological equilibrium but also inflicts cruelty upon the animals. Moreover, it is an expensive venture and risky too. So, sports hunting ultimately comes with a higher number of worsening effects over the bettering ones. 

Thus, we wait for the arrival of such a day when sports hunting shall be illegalized all across the globe, and in turn, the animals manage to live and roam free within their natural habitat without the fear of being hunted down.

References

• https://vittana.org
• https://www.weapon-blog.com
• https://www.peta.org
• https://www.conservationconversation.co.uk
• https://www.indiatoday.in

The post Why is Sport Hunting Cruel and Unnecessary? appeared first on iPleaders.

This article is written by Arush Mittal from Hidayatullah National Law University. This is an exhaustive article which deals with Forest Laws and the laws governing the control of timber and other forest produce.

Introduction

Forest is one of the essential natural resources available in India which covers around one-third of the world’s total area. This Act states that every citizen in India has the right to protect and develop the natural environment like lakes, rivers, forests and wildlife and should show kindness towards living creatures. Forest is defined as an area occupied by the government for the conservation and management of biological and ecological resources. Forests have been utilized recklessly for cultivation and destroyed for the consumption of timber and other forest produce. 

Timber products are generally those wooden trees whose height is up to 20cm. Timber usually produces chairs, tables and other wooden furniture. Other Forest Produce includes medicinal leaves and every other biodiversity that exists in a forest environment. This dire need for legislation regulating the forest was met by the Indian Forest Act, 1927 which mainly imposed governmental control over forests classifying them into reserved, protected and village forests. The Indian Forest Act, 1927 was a comprehensive legislation that incorporated all the pre-existing laws enacted to protect the forest such as the legislation in 1865 during the British rule and the amendment of 1878 aimed at improving the deficiencies in the legislation of 1865.

Indian Forest Act, 1927

After India gained its Independence, forests were put in the state list of the Indian Constitution but forest departments of individual states continued to regulate activities related to forest in accord with the Indian Forest Act, 1927. This Act gives jurisdiction to the state over the public as well as over private forests and also facilitates the extraction of timber for profit. To improve the Forest Act, 1875 and make laws relating to forest more effective, a comprehensive, new Forest Act was passed in 1927 called the Indian Forest Act, 1927 which repealed all the previous laws. This Act consists of 86 Sections in total divided into 13 Chapters ranging from the definition of various forests to the penalties that are to be levied on violation of the terms and conditions of the Act.

The main objectives of this Act are- to consolidate the laws relating to forests, regulate and transit forest produce and to levy duty on timber and other forests produce. Forest has not been defined under this Act. The Allahabad High Court, in the case of Yashwant Stone Works vs State Of Uttar Pradesh And Ors, 1987, adopted the definition given by the Food and Agricultural Organization (FAO) while defining the term. According to the FAO, the forest is a land that bears vegetative association that is demarcated by trees of any size which are capable of producing wood or other products related to food. The term forest has a wider ambit and the Act does not actually define the term therefore the Supreme Court is yet to assign a particular definition to this term.

This Act has various sections which deal with the laws governing the control of timber and other forest produce, some of the laws regarding the same are as follows:

Power to impose a duty on timber and other forest-produce

This is covered under Section 39 of the Indian Forest Act, 1927 which is divided into four parts. The first part mainly deals with the Central Government levying a duty on all timber or other forest produce that is either produced in the territories to which this Act extends or that product is brought from someplace which is outside the territorial boundaries of this Act. The second part mainly talks about those cases where the duty is directed to be levied ad valorem. The third part deals with the duty on those timber and forest produce which is levied under the authority of the state government. The final part of this Section says that the state government may continue to levy duty which is lawful until provision to the contrary is made by the Parliament.

Limit not applicable to purchase-money or royalty

Section 40 of the Indian Forest Act, 1927 says that, in this Act, nothing is supposed to limit the amount that is chargeable as royalty or as purchase money on timber or other forest produce. Although this may be levied on such timber and other forest produce while they are in transit.

Power to make rules regulating the transit of forest-produce

Section 41 of the Indian Forest Act, 1927 talks about the rules to regulate the transit of forest produce. This Section is divided into three parts. The first part says that the state government has all the power to control all rivers and their banks for the transit of such timber and forest produce. The second part deals with various aspects such as- prescribing routes providing for issue, production and return of passes, prohibiting import or export of timber without a pass, providing for the establishment of and regulation of depot, etc. The third part says that the state government can say that this particular rule does not apply to a certain class of timber or other forest produce. It may also be for a specified local area.

Powers of Central Government as to movements of timber

Section 41A of the Indian Forest Act, 1927 is in relation to Section 41. This Section says that the Central Government makes the rules for deciding the route by which timer or other forest produce would be imported or exported. It also includes the movement of timber or other forest produce among the territories to which the particular Act extends.

Penalty for breach of rules

Section 42 of the Indian Forest Act, 1927 provides the penalties to the breach of rules as provided in Section 41 of the Act. The first part of this Section states that the state government may, on the breach of rules, provide for imprisonment that would be a year-long or fine that would be maximum up to Rupees one thousand . The penalties mentioned in the first part of the act get doubled if the offender resists the police authorities or where that particular offender had been convicted before for a similar kind of offence.

Forest-officers not liable for damage to forest produce at the depot 

This is covered under Section 43 of the Indian Forest Act, 1927 which says that the Government is not responsible for any damage caused or loss taking place which is in relation to the timber or other forest produce while at depot established under a rule made in Section 41. A forest officer would not be liable unless he has caused such damage or loss negligently, fraudulently or maliciously.

All persons bound to aid in case of an accident at the depot

Section 44 of the Indian Forest Act, 1927 talks about the case in which an accident or emergency has arisen which involves danger to any property at such depot. Every person at such a depot employed either by the government or any private person should provide assistance to the forest officer or the police officer if they demand his aid in averting such danger.

Other Acts related to Forest Laws and the Laws governing Control of Timber and Other Forest Produce

Other than the Indian Forest Act, 1927, there are various Acts which deal with the laws governing the control of timber and other forest produce. Some of the Acts other than the Indian Forest Act, 1927 are:

Forest Conservation Act, 1980

In 1980, the Parliament enacted a legislation called the Forest Conservation Act, 1980 with the main aim to provide for the conservation of forests and for matters ancillary to it. The transfer of forests from State List to Concurrent List of the Constitution gave power to the central government to manage India’s forest directly. This Act seems to be a small piece of legislation that has only 5 Sections but, it has been extremely effective in conserving forests. What led to the framing of this Act was the large-scale deforestation. The basic objective of this Act is to regulate the indiscriminate diversion of forest lands for non-forestry uses and maintain a logical balance between the conservation of natural heritage and development of the needs of the country. 

Diversion of forest land is allowed by the Act only for certain purposes. These purposes include drinking water projects, irrigation projects, railway lines, defence-related projects, transmission lines, roads, power projects, mining, etc. This Act prohibited state governments from allowing the use of forest lands for any other purposes without prior approval from the central government. It was amended in 1988 and 2003 which regulated the diversion of any forest land to non-forest land and included a provision compensatory afforestation in non-forest areas. This Act is applicable to the whole of India. It came into power on October 25, 1980, and on this day the Forest Conservation Ordinance was also broadcasted.

Compensatory Afforestation Management and Planning Authority (CAMPA), 2009

This Authority was incorporated in 2009 under the Chairmanship of Union Minister of Environment and Forest. It was created to monitor, provide technical assistance and evaluate activities that are in relation to afforestation. This is meant to promote the activities of afforestation so that these forest lands can be promoted for the use of its land. An amount of 5 billion US Dollars was constituted as the fund by the Supreme Court. The main utilization of these funds was towards compensatory afforestation.

Some of the aims and objectives of this scheme are:

• Conservation, regeneration, protection and management of natural forest.
• Environmental services including non material benefits, provision of goods such as wood and non-timber products and regulation of services such as climate regulation.
• Compensatory afforestation.
• Capacity building, training and research.

A few functions of the CAMPA 2006 are:

• Promoting and funding compensatory afforestation under the Forest (Conservation) Act, 1980.
• Making and maintaining an account for funds received for protection and conservation of protected areas.
• Overseeing the protection works that are financed by the scheme and also forest and wildlife conservation.
• Creation of transparency for the scheme and mobilization of citizen support.
• Laying down guidelines for the state CAMPA.
• Making recommendations to the state CAMPA for any assistance that might be required.

The Biological Diversity Act, 2002

The Biological Diversity Act, 2002 is an Act passed by the Parliament of India to preserve the biological diversity in India and provide a mechanism for sharing of benefits equally that arise out of the use of traditional biological resources. The main reason why this act was enacted was to meet the obligations under the Convention on Biological Diversity (CBD), to which India is a party. It was formed after an extensive and intensive consultation process. Some of the salient features of this Act are:

• To conserve the use of biological diversity.
• To regulate access to biological resources of the country.
• Setting up of the National Biodiversity Authority, State Biodiversity Board and Biodiversity Management Committees.
• To protect and respect the traditional knowledge of the local communities related to biodiversity.
• To protect and rehabilitate threatened species.
• To notify heritage sites by the state government in consultation with the local body.

The Forest Policy of 1988 

The National Forest Policy of 1988 broadly focused on environmental stability, preservation of biological diversity and restoration of ecological balance which also included checking soil erosion and increasing tree cover. Some of the basic objectives of this policy are as follows:

• Conservation of natural heritage of the country by preserving the remaining natural forests.
• Maintenance of environmental stability through preservation and restoration of ecological balance.
• Increase in the productivity of forests to meet the essential needs of the country.
• Checking soil erosion for the interest of the soil and water conservation.
• Encouragement of efficient utilization of forest produce.
• Maximization of substitution wood.

Joint Forest Management

Joint Forest Management which is often abbreviated as JFM is the official term for partnerships in the forest movement in India that involves state forest departments as well as local communities. The National Forest Policy of 1988 and the Joint Forest Management Guidelines of 1990 contains all the policies and objectives of the Joint Forest Movement. The villagers agree to assist in safeguarding the forest resources and in exchange, they get non-timber forest produce and a share of the revenue from the sale of timber products. Some importance of JFM are: 

• Fulfil basic requirements and supplement income from agriculture and wage labor.
• Achieve significant volumes of timber for valuable production.
• Managing forest and other forest produce.
• Adding value to timber and other forests produce at the local level.

National Afforestation Program, 2006

This program began in the year 2006. The main aim of this scheme was to support the development of forest management. It also focuses on the decentralization of institutions at the village level and at the forest division level. These institutions include the Joint Forest Management Committee and the Forest Development Agency. It also aims at the development of forest resources with a focus to improve the livelihood of the poor people who belong to the forest. A lot of initiatives have been taken under this scheme such as:

• Transfer of electronic funds from the Government to the FDAs for cutting down delays.
• Evaluation and monitoring of the FDA projects.
• Universalization of JFM in all forest-fringe villages.
• Developmental programmes for enhancing the sustainability of JFM.

National Mission for a Green India

The National Mission for a Green India is a 10-year plan that aims to improve the quality of the degraded forests. The aim is to improve the five million hectares of forest cover and replace it with a better forest cover. This was to be done by social and farm forestry. Funds of Rs. 13,000 crore was allocated for the restoration of forests under this Scheme. This was allocated by the Cabinet Committee on Economic Affairs in 2014. Some of the Goals of GIM are as follows:

• Increasing the forest tree cover.
• Improvement in the quality of the forest cover.
• Afforestation of cold deserts, mangroves, scrub, shifting cultivation areas and abandoned mining areas.
• Restoration of wetlands and grasslands.
• To increase the forest based livelihood income.

ST and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

The Act was passed in India on December 18, 2006. It has been called by various names such as Tribal Bill, Forest Rights Act, Tribal Land Act and Tribal Rights Act. This act deals with the right of those communities that dwell in the forest. It talks about those rights that have been denied to them over decades. It tends to make provisions that would make conservation of forest more transparent and effective. There has been a lot of controversy on this law which says that this Act would lead to forest destruction and therefore it should be repealed. Some of the basic rights as laid down in this Act are:

• Right of ownership to collect, dispose and use minor forest produce that included the non-timber forest produce.
• Right to live in the forest for livelihood who is a member of the forest dwelling ST or other traditional forest dweller.
• Community tenures of habitat and other primitive tribal groups.
• Right over disputed lands where claims are disputed.
• Right of conversion of old habitation, forest villages and unsurveyed villages.
• Right to protect and conserve community forest resources for sustainable use.
• Right of access to intellectual property and access to biodiversity. 

Conclusion

The Indian Forest Act, 1927 was enacted with the intention to deal with the lacunae in the previous acts that were related to the laws of the forest. This act was a revised comprehensive legislation. Sustainable management of forest resources falls within the scope of responsibilities of the Central and state governments. This Act provides the overarching legal framework for the protection and management of the nation’s forest resources. The Forest Act requires amendment in the matters where the focus should be shifted towards conservation and enrichment of the use of forest resources to safeguard the ecological stability as proposed in the amendment bill of 2019 that brings some remarkable changes in the Act of 1927. The accounting of various ecosystem goods and services provided by forests should be done properly to access the actual contribution of forests to the Indian economy. The judiciary should take some normative steps to deal with the cases relating to forest laws.

The post Forest Laws and Laws governing the Control of Timber and Other Forest Produce appeared first on iPleaders.

This article has been written by Lakshmi. V. Pillai, pursuing B.A. LL.B from GLS Law College, Ahmedabad. The present article is a case analysis of US Court judgement on a copyright infringement with respect to the Indian legal perspective. 

Artists need to be alert while making their accounts public on social media platforms.

Introduction

Copyright is an exclusive right given to the creator for their artistic work. For artists, it is their blood and bone. As per Sec 2(c) of the Copyright Act, 1957 an ‘artistic work’ covers any painting, drawing, sculpture, photograph, work of architecture, or any work of artistic craftsmanship. In other words, we can say that an ‘artistic work’ should be an original expression of thought in which the artist has applied his skill and judgment other than mere mechanical exercise to create the work. A recent judgment by the Southern District of New York is a bit concerning for the artists with regards to the protection of their rights in the social media platforms like Facebook, Instagram or any other platforms which facilitates the sharing of ideas, thoughts, and information through the building of virtual networks and communities. This judgment also questions the validity of e-contracts and the privacy protection of artists on social media platforms.

Case Analysis

The case of Sinclair Vs. Ziff Davis, LLC, and Mashable, Inc., decided on Apr. 13, 2020, is very interesting, and the findings made by the US court are also quite gripping. The court justified the judgment by giving a clear interpretation of the law. However, the concern lies in the point that, is it justifiable to put artists in dilemma for choosing their account to be in ‘public mode’ or ‘private mode’?

1) Facts of the case

Firstly, we will understand the facts of the case, then we will proceed with the legal aspects. The facts are as follows:

In this case, Sinclair (“Plaintiff”) is a professional photographer who filed the case against Mashable, Inc. and its parent company (together, “Defendants”) asserting that Defendants infringed Plaintiff’s copyright by using the Plaintiff’s copyrighted photographs on the Defendants website. Plaintiff has a public account on Instagram. And in this particular case, Instagram has used the sub-licensing method to give away the photograph to the Defendants. It is also important to note here that before sub-licensing the photo from Instagram, the Defendant contacted the Plaintiff for the photos to which the Plaintiff denied. Certainly, it is to be noted here that Instagram is not a party to this case.

2) Court Analysis 

While reading the judgment it can be said that the court has rightly interpreted the law. However, the question which comes to our mind is that does sub-licensing the photo of the photographer without acknowledging the same to the photographer infringes the right of the photographer or not?

In the judgment, the court has decided on particular legal issues. So let’s just briefly go through the legal points of the court analysis.

• The first point of discussion was on whether Mashable used the photograph pursuant to a valid sublicense from Instagram. On this point, the Court concluded that the Plaintiff while agreeing to the ‘Terms of Use’ of Instagram granted the social media platform the right to sublicense the photograph. Thereby, exercising of the right by Instagram is considered valid by the Court. It is quite interesting to note that while making a public profile on Instagram we consent to grant non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content which we post on Instagram.
• The second issue raised by the Plaintiff was whether Mashable’s failure to obtain a license directly from the Plaintiff and thereafter obtaining sub-license from Instagram shall be considered as invalid. And also the plaintiff argues that Mashable is not a beneficiary in any of the agreements between Instagram and the Plaintiff. But the Court herein differs from the arguments made by the Plaintiff and states that Mashable is not enforcing any of the agreements between Instagram and the Plaintiff, so they cannot be held liable for both arguments presented by the Plaintiff.
• As a subsequent issue, the Plaintiff claimed before the court that Instagram’s ‘Terms of Use’ is “circular”, “incomprehensible” and “contradictory”. The court invalidates this argument stating that while uploading photos on Instagram the user has the right to choose it to be in ‘private mode’ or ‘public mode’. So when the user chooses to have his account in ‘public mode’, then the uploaded content will grant Instagram the authority to sublicense the content to its users.  
• Further, in the arguments, the Plaintiff contended that Instagram violated the terms of its license by granting Mashable to use the photograph and also argued that to make a professional photographer choose the ‘private mode’ is quite not valid. However, the Court states that by allowing the Mashable to embed the photograph on its website cannot be considered as the photo has been “sold”, as Defendant clearly used its right under sub-licensing. The court also showed concern for professionals, as it is tough for them to choose to be in private mode while trying to do business on such platforms. However, the Court clarified that by choosing ‘public mode’ they are covered by the ‘Terms of Use’ of the specific social media platform.

There was a second issue in the case pertaining to the liability of the Allege Ziff Davis’ (who is the owner of the Mashable Inc. and parent company) in Mashable’s alleged copyright infringement. The court ruled out that issue stating that Plaintiff failed to state a claim against Ziff Davis.

So, in this case, the US Court concluded that when one artist opts to have his or her account in ‘Public Mode’ they are validating the ‘Terms of Use’ of the social media platform, so thereby they are permitting all rights to the platform. Therefore, they cannot file a copyright infringement case regarding their work which has been published by them in the platform if the actions are validated as per the ‘Terms of Use’ of the platform.

Indian Perspective

Looking at the issue from the Indian perspective, two things we can consider.

1) The validity of such browse-wrap contracts and clickwrap contracts in the Indian context.

2) The requirements of sub-licensing under the Copyright Act 1957 (“Act”).

1) Validity of e-contracts

The validity of e-contracts depends on the fact that whether the plaintiff party got enough opportunity to get through the terms of the contract or not. Understanding the definition of ‘Contract’ as per the Indian Contract Act, 1872, the electronic contracts and clickwrap contracts are still not covered under the definition of the Indian Contract Act.

Adhesion Contracts

Another point which needs to be considered here is that the contracts signed here are kind of adhesion contracts. An adhesion contract is drafted by one party, so the other party generally does not have a chance to negotiate or modify the terms of the contract. The party who drafted the contract is offering the other party a non-negotiable term, so it is on a “take-it-leave-it” basis. However, the onus of proving such contracts as adhesion contracts lies on the plaintiff. The Indian Contract Act is not considered as adequate and also section 16, 23 and 27 are not enough to protect the weaker party within the four corners of the Indian Contract Act. But as a matter of argument, it is to be noted that consensus ad idem and freedom of contract are predominantly missing in these types of contracts.

In the case of Ferro Alloys Corpn. Ltd. And Ors. vs A.P. State Electricity Board (1993), the Hon’ble Supreme Court extracted the definition of Adhesion contract from the judgment of In Central Inland Water Transport Corporation v. Brojo Nath Ganguly (1986) “adhesion contract” is defined quoting Black’s Law Dictionary, Fifth Edition, at page 38, as follows:

“Adhesion contract. Standardized contract form offered to consumers of goods and services on essentially ‘take it or leave it’ basis without affording consumer realistic opportunity to bargain and under such condition that consumers cannot obtain desired product or services except by acquiescing in forth contract. A distinctive feature of the adhesion contract is that the weaker party has no realistic choice as to its terms. Not every such contract is unconscionable.”

In the case of LIC India vs. Consumer Education and Research Centre (1995), the Supreme Court held that “In dotted line contracts there would be no occasion for a weaker party to bargain as to assume to have equal bargaining power. He has either to accept or leave the service or goods in terms of the dotted line contract. His option would be either to accept the unreasonable or unfair terms or forgo the service forever.”

Taking into consideration case laws and arguments made, we can state that the validity of such clickwrap contracts is questionable in India.

2) Sublicensing as per Copyright Act, 1957

In the Copyright Act, 1957 (“Act”) no direct provisions are there which say about sub-licensing. However, from the plain reading of Section 30, 30A, and 19 what we understand is a written agreement is important while transferring any kind of rights or ownership under copyright.

Section 30 is about licensing of copyright, however section 30 A and 19 is about the assignment of copyright. While giving license no ownership is transmitted but in the case of assignment, ownership is transferred. In this case, we are only considering the licensing part. Section 30 of the Act states that licensing can be done only through writing by the person who authorises the copyright or by the person who is duly authorized agent by the original copyright owner. In this particular case, the plaintiff is the original owner so she is the ‘licensor’ who gave the copyright to the Instagram ‘licensee’. Now the question arises: does the licensee have the right to sub-license the copyright? A direct answer shall be ‘no’ until unless an exclusive and written agreement is in place. However in the “Terms of Use”, there is a term ‘sub-licensable’ to which the licensor is bound to. But when the validity of such a contract in itself is a question, the licensor being bound to such a term, is also a question to be resolved.

Applying this basic understanding to the present case, getting a sub-licensable right which is non-exclusive in nature actually does not give Instagram the right to share the copyright to the third party, until and unless there is an expressive agreement specifically for the transfer of copyright between the licensor and licensee.

For a matter of argument let’s consider that clickwrap agreements are enforceable as in some US cases they are held to be valid, but here, the question is not only limited to the validity of clickwrap agreements, rather it goes beyond, wherein the party is getting right to sublicense the creation of the creator without properly acknowledging the creator about the same. 

Conclusion

Even though considering the above facts, Instagram or any other social media platforms shall not be held directly and legally liable, as they are following the law. Probably a solution for the same is that we can ask them to be more comprehensive in the ‘Terms of Use’ wherein at least the creator or the artist who wants to showcase his art in ‘public mode’ for the business purpose should be aware of such rights given by him to the social media platform. Rather making social media liable for such contracts probably we as netizens can be little alert during clicking on the ‘Terms of Use’.

However, still, the question remains the same, just by including a term ‘sub-licensable’ under the ‘Term of Use’ do that authorise social media platforms to grant the rights to the third party about which the creator was not fully aware of or to whom the creator was not at all directly obliged. Are we ready to give up our creations on social media platforms for the sake of business without proper acknowledgement to us, particularly when the agreement is on a ‘take it or leave it’ basis ?

The post The Public Mode v/s Private Mode of Social Media: a Dilemma for Artists appeared first on iPleaders.

This article is written by Sushant Agrawal, currently pursuing B.A.LLB (Hons) from Department of Law, Aligarh Muslim University. This is an exhaustive article which deals with Consent as a defence under Indian Penal Code, 1860.

Introduction

Under criminal law, the term consent is an active expression of ‘intention’. The crime has two essential ingredients (1) actus rea and (2) mens rea. Actus means an act done by the wrongdoer, whereas mens rea means the intention of doing that particular act. A person will be criminally liable for all the acts that he had done with the intention or knowledge of doing it and possibly know the consequences of his acts.

We will discuss how a doer is protected from criminal liability when he causes or takes the risk of injury with or without the consent of the person harmed.

Meaning of consent

In common parlance, consent is an act done deliberately and by free will. It involves a deliberate exercise of intelligence based on knowledge of the significance and moral effect of the act. It consists of three things- a physical power, mental power and free use of them.

However, the word ‘consent’ is nowhere defined in IPC. But Section 90 of IPC talks about what does not amount to consent. It describes consent in a negative term. It states, a consent given by a person under the fear of injury, or under a misconception of facts, or by reason of unsoundness of mind, intoxication, or a child under the age of 12 years (unless the contrary appears from the context), who is incapable to understand the nature and consequences of the consented act, is no consent.

Consent as a defence

Section 90 of the IPC, though does not define ‘consent’, yet lays down what is not consent. It regulates the operations of Sections 87, 88 and 89 of the I.P.C. There are four cases where a consent given by a person is no consent.

First: Person giving consent under the fear of injury– Under criminal law, consent obtained by threat and violence would not be a defence. For example, Z threatened A with a knife to sign his property paper in favour of X, Z’s son. Here the consent was given under fear of injury.

Second: Person giving consent under the misconception of facts– if consent is obtained under a misconception of facts, then it will have no value in the eyes of law. For example, a woman had a consent sexual intercourse with a doctor on the belief that he was making a medical examination of her. The doctor would be held guilty as he made her believe that he was doing a medical examination of her.

Third: Consent given by insane people– People who are of unsound mind, or in an intoxicated state of mind, incapable to understand the nature and consequences of their acts. For example, A, in a heavily drunken state, signed his property paper in favour of the liquor shop owner just to get one more liquor bottle. In the eyes of the law, his consent has no value.

Fourth: Consent given by child-  The last para of section 90 says consent given by a child under the age of 12 years has no value in the eyes of law. In this case, the consent will be given by the child’s guardians or person in charge of him.    

Conditions needed to plead consent as a defence

Section 87, 88, 89 and 90 of the Code deals with various conditions which are needed to plead consent as a defence. These are mentioned below:

1. Person has consented for the risk.
2. The person must be above the age of 12 years unless the contrary appears from the context and must not be of unsound mind, if yes then the consent must be given by guardians or the person in charge of them on their behalf.
3. Consent be given under no fear or misconception of facts.
4. The said consent must be made expressly or impliedly.
5. The consent was not intended to cause death or grievous hurt.

Express and Implied Consent

Both express and implied consent are recognized under the Section. As long as there is consent and it was freely given, the number of words or specific articulation of the said consent is not necessary.

The term ‘express consent’ as far as criminal law is concerned is used to give permission for something either verbally or in writing. When your friend asked you to rent your flat for a day and you said ‘Yes’. Then, it is your express consent given verbally to him.

X, had an operation of his backbone. But before the operation, the doctor told him to sign a paper in which it was expressly mentioned that operation might cause his death. X signed the paper as he had an unbearable pain. X died. The doctor will not be liable.

The term ‘implied consent’ in criminal law is used to obtain either (1) consent by acts and conducts, or (2) consent presumed. When a person enters a Big Bazaar store and picks up goods that were exhibited for sale, then it can be presumed that there is an implied consent to enter into the shop, to handle goods and to purchase them also. This is an example of consent by acts and conducts.

X, on being friendly terms with Z, goes into his wardrobe in his absence and takes away his shirt without Z’s express consent for the purpose of attending a party tonight, and the intention of returning it. X has not committed the offence of theft as he had an impression of Z‘s implied consent though Z has never given or in any way signified the same. It was presumed consent.      

Scope of Section 89 of IPC

Section 89 of IPC deals with children below 12 years of age and persons of unsound mind and hence, they do not have the legal capacity to give consent as they are incapable of understanding the nature and consequence of their act. Hence, the consent on their behalf is given by guardians or persons legally in charge of them.

The doer must act in good faith and for the benefit of the person harmed.

When the benefit under Section 89 cannot be claimed

The following four provisos have been laid down by the legislature to make sure some additional safeguards other than the fact that the doer should act in ‘good faith’:

1. Act shall not extend to intentional causing of death, an attempt to cause death. For instance, A in good faith intentionally kills his son, who is suffering from incurable heart disease just to give him a peaceful death. A would not be protected under this section.  
2. This provision will not apply in the situations wherein the person was aware or had a knowledge of his act which is likely to cause death unless it was done for the prevention of death or grievous hurt, or the curing of any grievous disease or infirmity. For instance, A in good faith, for his daughter’s benefit without her consent, has consented for transplantation, knowing it to be likely to cause death in the process, but not intended to cause her death. A will be given the defence of section 89, since his objective was to cure her daughter.
3. This provision will not apply in the situations wherein the person voluntarily causes grievous hurt or attempted to cause grievous hurt unless it was done for prevention of death or grievous hurt, or the curing of any grievous disease or infirmity. For instance, A in good faith, for his child’s pecuniary benefit, emasculates him. Here A would not be protected under this provision as A has caused grievous hurt to his child for a purpose, other than preventing death or grievous hurt.
4. This provision will not extend to the abetment of any offence, which is not covered under this provision. For instance, A, in good faith, abets B, his friend, to sleep with his daughter Y, who is under 12 years of age for pecuniary benefits. Neither A nor B would be given protection under this section. 

Landmark Judgments

Dasrath Paswan v. State (1957)

In this case, the accused has failed at an examination for three consecutive years. By disappointing these continuous failures he decided to end his life. He discussed his decision with his wife who was a literate woman of 19 years of age. His wife said to kill her first and then kill himself. Accordingly, the accused killed his wife first and was arrested before he could kill himself. It was held that the wife had not given her consent under the fear of injury or misconception of fact. Hence the accused would not be liable for murder.

Baboolun Hijrah v. Emp. (1866)

In this case, a man submitted himself to emasculation. It was performed neither by a skilful hand nor in the least dangerous way and resulted in the death from the injury. Before the Court the accused pleaded that he did know that the practice of emasculation was forbidden by law and also he acted under the free consent of the deceased. The court held the accused not guilty.

Sukaroo Kaviraj v. The Empress (1887)

In this case, Mr. Kaviraj, a qualified doctor performed an operation of internal piles by cutting the vital part with an ordinary knife. The patient died because of copious bleeding. He was prosecuted for causing death by rash and negligent act. The Court held him liable as he did not act in good faith.

Jayanti Rani Panda v. State (1983)

In this case, the accused was a teacher and frequently visited the house of the complainant. In the course of time, they developed feelings for each other and promised to marry her soon. Upon this assurance, sexual relationships have developed between them. The complainant became pregnant and pressured to perform marriage soon. When the complainant did not agree to undergo abortion, the accused disowned his promise and stopped visiting her house.

A case of rape was filed against the accused. The Court held accused not liable as section 90 will not be applicable because the complainant has given her free consent to series of sexual relations and also the prosecution is unable to establish beyond a reasonable doubt that the accused begin sexual contacts without the intention to marry her. 

Bishambher v. Roomal (1950)

In this case, the complainant molested a girl. Immediately, around 200 people gathered to punish him. Three local people intervened and tried to bring out a middle way. All the people gathered before the Panchayat and the plaintiff agreed to follow the decision of the Panchayat.

The Panchayat ordered the plaintiff to take a round of the village with his blackened face. All the intervening people were arrested and prosecuted for Section 323 and 502 of the IPC. The Court held that the accused were entitled to the benefit of Section 87 of the IPC because they acted in good faith without any criminal intention to prevent serious consequences arising out from the previous act of the complainant.

Udaya v. State of Karnataka (2003)

In this case, the prosecutrix gave her consent to the appellant for having sexual intercourse. It was alleged that the accused Udaya expressed love and promised to marry the prosecutrix on the later date. She started cohabiting with the accused consciously and became pregnant. The accused was charged and tried for committing rape as the prosecutrix pleaded that she consented under the misconception of fact that the accused Udaya shall marry with her. 

Rejecting this contention it was held that the accused Udaya was not liable for the offence of committing rape because the prosecutrix was aware of the fact that they belonged to different castes and proposal of their marriage will be opposed by the family members and yet she started cohabiting with accused consciously and become pregnant. Consent to have sexual intercourse, in this case, cannot be said to be given under a misconception of fact i.e., promise to marry because she also desired for it. False promise to marry is not a fact within the meaning of the Penal Code

Rao Harnarain Singh Sheoji Singh v. State (1957)

In this case, the accused who was an advocate and Additional Public Prosecutor forced his tenant to give his wife for satisfying the carnal lust of Rao Harnarain and his friends. They all ravished her all night that resulted in her death almost immediately. 

Upon being prosecuted, the accused pleaded that the deceased husband had consented for this and also the woman came with her own, therefore they should not be held liable. The Court made clear the distinction between consent and submission. 

The Court said all consent involves submission but not all submission is consent. Here, in this case the deceased made her submission before the accused because her husband was threatened with severe consequences. The Court held all of them liable for committing and rape and murder.

Poonai Fattemah v. Emp. (1869)

In this case, the accused, a snake charmer persuaded the deceased to allow himself to be bitten by a poisonous snake, making him to believe that he had the power to protect him from the harm. Here, the consent given by the deceased was under the misconception of the fact that the accused had a skill to cure snake bites. Therefore, the Court held that the accused was not entitled to protect on the ground of consent of the deceased and held liable.

Conclusion

From the above discussion, we understand why a doer is protected from criminal liability when he causes or takes the risk of injury with or without the consent of the sufferer as he acted in good faith and for the benefit of the person harmed. 

But in case of serious bodily injuries, criminal law does not recognise consent as a defence. For example, a player consented for a certain degree of injuries in a football match but if s/he received more than that in the normal conduct of the game, then it is unlawful.

The post Consent as a Defence under I.P.C appeared first on iPleaders.

This article is written by Abhinav Anand, a student pursuing B.A. LL.B(Hons.) from DSNLU, Visakhapatnam. This article deals with the problem of crime committed by juveniles and suggests changes in the existing legislation to curb the juvenile delinquency in India.

Introduction

The crimes committed by the juvenile have been tackled by enacted legislation such as Juvenile Justice (Care and Protection of Children) Act, 2015. The crime committed by juveniles has increased in the recent past. The reports of various organizations suggest that juveniles are involved in some heinous offences. The reformative punishment given to juveniles has not created deterrence. Juvenile delinquency is a serious issue that should be dealt on the priority basis. The juveniles are the one who will represent our society in the future. If they commit unsocial activities it will be a serious problem for society at large.

The problem of crimes committed by children

According to the recent NCRB data, over 40,000 crimes were committed by juveniles in 2019, 72% of the juveniles are between the age group of 16 to 18. To tackle the problem of this increase in crime by juveniles at an alarming rate, the Parliament has enacted the Juvenile Justice Act, 2015 wherein the juvenile will be treated at par with the adult if they are accused of committing heinous offences. The restriction imposed by the act is that court cannot award the death penalty to the juveniles. The Indian courts while punishing the juvenile observes that if there are two meanings of the Act then the constructive meaning will be considered.

Reasons for a child to commit a crime

These are the following reasons because of which a child commit the crimes:

1. Peer Pressure- Peer Pressure refers to doing something because a person in the social group or the person in the company of the children forces him to do the untoward act. It is the effect of the bad company. The children after reaching the adolescent age develop their own liking. They develop their own perspective of the society and the activities of people in society. The behaviour of the adolescent age is aggressive and dominating, it drags the adolescent to commit the crime.
2. Lack of Education- Education has the power to enable one to make a living. When children don’t get an education, then they begin making their living through Illegal activities and fall into bad company. The lack of education is also a reason for the crime by children. The children who are not taught about legal and moral ethics from the beginning are prone to commit crimes. Education plays a pivotal role in the upbringing of the child. 
3. Substance Abuse- Substance Abuse is an important factor leading the children to commit a crime. The excess use of drugs makes the children mentally weak and stops their constructive thinking. The drug addicts are prone to committing a crime.
4. Lack of Sexual Education- Sexual offences are committed by the adolescent because they are not taught abouttsexuall education in their schools. The sexual awareness will make the adolescent well versed with the hormonal changes their body went through during that time.
5. Negligent Parents- The parents play a crucial role in the upbringing of the child. If they turned callous about the activities and behaviour of their children then it affects the personality and thinking of their children.

Punishments given to the child

The Juvenile Justice Act, 2015 provides for the punishment awarded to the juvenile, if found guilty of offences, irrespective of their age.

Section 18(1) of the Juvenile Justice Act, 2015 Act provides that when the Board finds the child guilty of petty, serious or heinous offences then it can take the following action after looking into the social investigation report of the child.

1. Allow the child to go home after appropriate and proper advice and admonition followed by the proper counselling of the child or the parents.
2. Direct the child to participate in group counselling and similar activities.
3. Order the child to do community service under a specified organisation or person, or group of persons specified by the Board.
4. Order the child or parents or guardian to pay the fine.

Provided that if the child is working, any provision of labour law is not violated for the time being in force.

1. Direct the release of the child on probation and good conduct and placed under the care of any parent, guardian or fit person, or such fit person, parents,guardian,or fit person executing a bond, with or without surety,as the Board may require, for the good behaviour and child’s well being for any period not exceeding three years.
2. Direct the child to be released on probation of good conduct and placed under the care and supervision of any facility for ensuring the good behaviour of the child and his well being for any period not exceeding three years.
3. Direct the child to be sent to a special home, for such period, not exceeding three years, as the Board thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy and psychiatric support during the stay in the special home.

Section 18(2) provides that if an order is passed under clauses (a) to (g) of subsection(1), the board may in addition pass orders to:

1. Attend schools,
2. Attend vocational training,
3. Attend a therapeutic measure,
4. Prohibit the child from visiting, frequenting or appearing at a specified place.

Section 18(3) provides for the preliminary assessment under Section 15 to pass an order that there is need for a trial of the said child as an adult, then the Court may order the transfer of the trial cases to the children’s Court having jurisdictions to try such offences.

In the case of Ram Prasad Sahu vs. State of Bihar, the Supreme Court held that the juvenile offender can be convicted of committing rape or attempt to rape. If a child is not eligible for punishment but he is capable of committing murder then it is against the principle of justice and principle of proportionality of punishment if he is given the blanket immunity. The understanding of a 16 years old is at par with the adult.

In Bodhisattwa Gautam vs. Subhra Chakraborty, the Court held that to provide blanket immunity to juvenile offenders is a violation of the fundamental right to life of the victim under Article 21. In Roper vs. Simmons, the Court held that every juvenile cannot be treated under the same category. They should be tried according to their maturity, intelligence and life experience.

Provisions for the reformation of a child in the Juvenile Justice Act

The Juvenile Justice Act, 2015 is enacted with the objective to help the juveniles by reforming and rehabilitating them. The Act has achieved immense success on some fronts but still needs the changes to accommodate every kind of problems faced by juveniles. The Act in Chapter IV provides a variety of measures needed to be taken for the rehabilitation and reformation of the juveniles.

Section 40 of the Act envisages regarding the process and social integration of the child. The reformation process of the child shall begin during the stay of the child in the juvenile home, the process of reformation can be carried out in the following ways:

1. ADOPTION
2. FOSTER CARE
3. SPONSORSHIP
4. SENDING THE CHILD TO AFTERCARE ORGANISATION

Section 41 of the Act envisages about the adoption:

• The primary responsibility of providing the care and protection of the child is of his family.
• Adoption shall be resorted to for the rehabilitation of the orphaned or abandoned children through the mechanism as may be prescribed.
• In accordance with the guidelines issued by the state government, or Central Adoption Resource Authority, or the guidelines notified by the Central Government from time to time, if the court is satisfied by the investigation carried out by the authorities, that the children are eligible for the process of adoption then, the court shall allow the child for the adoption.
• The state government can recognise one or more than one of its institutions as an orphanage in adoption agencies of each district in such a manner as may be prescribed under the notification issued by the state government.
• No child shall be offered for adoption:

1. Until two members of the committee declare the child free to be placed in the abandoned category.
2. After the completion of the two months, during which the parents of the child deny to reconsider the child.
3. without his consent in the condition when the child is capable of understanding and expressing his will.

The court may allow a child to give in adoption:

• To a person irrespective of his marital status.
• To a childless couple.
• To a person irrespective of the number of children of the same sex that he has.

Section 44 provides for the foster care of the child.

1. Foster care can be used for the temporary placement of those infants who will soon be given for the adoption.
2. In foster care, the child may be given to the other family, for a short or extended period of time, wherein the children of the parents will be visiting the child regularly in the observation homes, and the child can also go to his home.

Section 45 provides for the sponsorship.

1. The sponsorship programme provides supplementary support to families, children’s homes and special homes to meet the nutritional, medical and educational needs of the children.
2. The state government may make various rules for the purpose of sponsorship of children, such as individual to individual sponsorship and group to group sponsorship.

Section 46 provides about the aftercare organisation:

 The state government, may by rules, provide for:

1. For the recognition and establishment of the aftercare organization and make the rules and regulations for them.
2. For the standard and care that should be maintained by such aftercare organisations.

Section 51 provides for the fit facility:

The Board or the committee shall recognize any facility run under governmental control for the purpose of caring for the child after the enquiry. The organisation has to follow the process as prescribed by the board. The implementation of the reformation and social integration is of utmost concern as the state government is not implementing the provision of the above-mentioned sections. The state government should keep close eyes on the torture and harassment juveniles face in observation homes. The machinery involved in ensuring the safety of the Juveniles are not following the laws. According to the report of the Asian Centre for Human Rights out of 39 sexual assault cases studied, 11 of them were committed in observational homes run by the government.

Suggestions for prevention of crime committed by the child

These are the following suggestion for the prevention of crime by a child:

1. The control of juvenile delinquency needs effective implementation of Juvenile Justice Act with full public awareness and with proper training programmes to law enforcement agencies in the country.
2. The application of the UN Rules of juveniles deprived of their liberty (1990).
3. The rules and regulation for the juveniles must be applied strictly.
4. A proper mechanism should be created to assess the needs and requirements of the juvenile.
5. The approach of agencies may be more of a reformative nature rather than penal.
6. The government should implement policies of welfare for the Juvenile in the long term.
7. The government should open a separate establishment for Juveniles. The activities performed by the Juveniles in those establishments should enhance their productivity.
8. The government should implement the policies of the countries where the juvenile delinquency rate has decreased after the reformative approaches adopted by the government.
9. All the stakeholders in the reformation process of the Juvenile should work in networking to ensure the effective implementation of their plans.

Conclusion

Juvenile delinquency has increased exponentially in society within the last few decades. The perversion of the juveniles to commit a crime is a result of our technological advancement. The parents and the authorities involved in the upbringing of the child are entrusted with the duty to ensure that their child should understand the moral and ethical behaviour that is expected from society. It’s the time to focus on a pan India programme in which the government will make the juvenile aware of their capabilities. The programme must enlighten the juvenile to use their power in a constructive and beneficial way so as to do something good for society.

References

1. https://www.thehindu.com/news/national/juvenile-homes-are-hellholes-says-report-on-child-rape/article4637540.ece
2. http://rchive.indiaspend.com/cover-story/juvenile-crimes-rise.

The post How has India tackled the problem of crimes committed by children  appeared first on iPleaders.

This article on the Legal consequences of Admission or Retirement of partners has been written by Arkadyuti Sarkar, a student pursuing his B.A. LL.B from Shyambazar Law College under the University of Calcutta.

Introduction

A partnership firm undergoes reconstitution with the admission, retirement, expulsion or insolvency of its constituent partners.

Section (31-35) of the Indian Partnership Act, 1932 consists of the provisions relating to the legal effects of admission or retirement of partners in a partnership business. Now, let us introspect those provisions and acknowledge the legal consequences.

Introduction of Admission of partners

According to Section 31 of this Act, based upon the contract between the partners and subject to the provisions under Section 30, no one can become a partner of a firm without the consent of all other existing partners.

Also, according to this section and reckoning with the provisions of Section 30, the new partner shall not be liable for any act of the firm which has been done prior to his admission as a partner.

According to Lindley, upon the death of a partner, his executors or devisees are not rightfully entitled to insist on being admitted into partnership with the surviving partners, unless there has been some effective agreement entered into by them.

According to Halsbury, an incoming partner is subject to the partnership terms, except there is variance by an expressed agreement, though he may be unbound by any special term unnoticed by him.

Illustration

1. Mr X desires to become a partner of ABC firm; where A, B, & C are existing members. So Mr X in order to become a partner must obtain consent from A, B, and C.
2. Mr M becomes a member of firm GHI with the consent of its existing members. In succession to his admission as a partner, Mr M shall be liable for all activities of the firm, starting from the date of his admission as a partner and not any activities are done before.

In Income Tax Commissioner v. Seth Govindram Sugar Mills; the Supreme Court observed that the words “without the consent of all the existing partners” imply that the admission of a new partner is reliant upon the consent of the existing partners. The Apex Court held that no heir of a deceased partner is capable of becoming a new partner, with the surviving partner, without obtaining the expressed or implied consent of such surviving partner.

Rights of newly introduced partner

When a new partner is admitted into the firm, the structure of the firm undergoes reconstruction and a new agreement is made with him for carrying on the firm’s business.

Upon admission, a new partner acquires the following rights:

1. Right to share the assets of the partnership firm; and
2. The right to share the profits of the partnership firm.

Illustration: Mr Y is admitted as a new partner in a partnership firm. He acquires the right to his share over the assets and profits of the partnership firm, through such admission. 

Liability of a new partner

According to Lindley, subject to any expressed or implied agreement, a new partner does not become liable for any act of the firm done prior to his introduction, merely because of his introduction as a partner.

Thus, as mentioned previously, a partner becomes liable for all the acts of the firm starting from the date of his admission excepting those acts which had been done prior to his admission.

Illustration

Mr B becomes the partner in a firm on 03.12.2019. Thereby, from 03.12.2019, Mr B becomes liable for all the activities of the firm that shall be made in the course of the firm’s business. However, he is not liable for any activity of the firm committed or omitted prior to 03.12.2019.

Retirement of Partners

According to Section 32(1) of this Act, a partner of a partnership firm may retire:

1. With the consent of all the other partners of that partnership firm,
2. In accordance with an expressed agreement in this regard by the other partners of the partnership firm, or
3. In case of partnership at will, by serving written notice to all the other partners of the firm conveying his intention of retiring.

However, a retired partner is not liable to any third party who deals with the firm lacking the acknowledgment of his partnership.

In Vishnu Chandra v. Chandrika Prasad; the Supreme Court held that a partner is capable of retiring from the ongoing partnership without dissolving the firm. Also, a partner’s right to retirement has to be determined from the agreement terms.

Rights

Section 36 of the Indian Partnership Act enumerates the rights of an outgoing or retiring partner.

According to this section, an outgoing partner may continue a business competing against that firm and may also advertise such business, but depending upon contract to the contrary, he may not:

1. use the name of that firm,
2. claim himself as a representative of the firm’s business, or
3. solicit the firm’s customers, dealing with the firm, prior to his cessation as a partner of that firm.

Also, a retiring partner may form an agreement with other partners of the firm that he shall not carry on any business, similar to that of the firm’s business, within such specified time period or specified local limit, notwithstanding anything contained in Section 27 of the Indian Contract Act, 1872 if reasonable restrictions are imposed.

In Churton v. Douglas, an English Court held that Section 36 contains what is now regarded as settled law in England on the subject of the sale of the goodwill of a partnership firm.

According to Section 37; during retirement, the retiring partner can reclaim his or her capital share contributed to the firm through the settlement of an account with the continuing partners.

This section further clarifies that if no such account settlement occurs during retirement of the partner, and the firm continues to use the retiree’s capital for the purpose of the firm’s business, then the retired partner shall be entitled to his claim even after his retirement, either:

1. At the rate of 6% per annum at his share in the firm’s property, or
2. Such share over the firm’s profits which are attributable to his capital share in the firm.

In M.C. Sharma v. B.C. Sharma & others; the High Court of Allahabad ruled that the benefit of the application of Section 37 of this Act is unavailable to a sole partner, desiring to continue a firm’s business post-dissolution.

Liability

According to Section 32(2); a retiring partner may be discharged from any liability towards any third party or for any act of the firms done prior to his retirement based upon any agreement on his part with that third party and other partners of the reconstituted firm. Also, such agreement may be implied by a deal between such a third-party and the reconstituted firm succeeding his acknowledgment of the partner’s retirement.

According to Section 32(3); until any public notification is made in the promulgation of such retirement, the retired partner along with the other partners of the firm continue to be liable towards the third parties for any act done by them which would have been considered an act of the done if had been done prior to the retirement.

According to Section 32(4), the aforementioned public notification can be made by the retired partner or any partner of the reconstituted firm.

Illustration

Mr G is a partner at a firm. He resigns from his partnership one day. Thereby, he is discharged from any third party liability or any act of the firm which was incurred in the course of his partnership. However, such liability shall exist until the time of the promulgation of his retirement, through a public notification, made either by him or the continuing partners in the firm.

Expulsion of a partner

According to Section 33, a partner may not be expelled from a firm by the majority of the partners, except in the exercise of bonafide powers conferred through a contract between the partners in the interest of the firm.

Also, an expelled partner is subject to the same rights and liabilities as if he were a retired partner.

However, in case of expulsion against the provision of Section 33, such expulsion shall be deemed irregular and shall be ineffective against the expelled partner. In such a situation, the expelled partner is entitled to his reinstatement as a partner or claim refund for his or her share of capital or profits in the firm.

Illustration

1) A, B, C and D are partners in a firm. Here A, B, and D cannot by majority decide to expel C, unless there exists a contract among them that such expulsion is effective on the bonafide interest of the firm.

2) G, H, I and J are partners in a firm. G, I and J decide to expel H as he is casual and reluctant towards the interests of the firm. Such expulsion is effective and H becomes entitled to the rights and liabilities in resemblance to a retired partner of the firm.

3) M, N, O and P are partners at a firm. M, N, and P acting out of personal grievance remove O from the partnership through the majority. O is entitled to either be reinstated as a partner or to his claim on the share capital or profit of the firm.

Insolvency a partner

According to Section 34 of this Act; when a partner has been adjudicated as an insolvent, he thereby ceases to be a partner of that firm, commencing from the date of the adjudication order, irrespective of the dissolution of the firm.

In case a firm is not dissolved because of some contract between the partners after a partner’s insolvency, the estate of the insolvent partner is not liable for any act of the firm and similarly, the firm is not liable for any act of the insolvent done after the date of the adjudication order.

Illustration

X, Y, & Z are partners in a business firm. Y is declared as an insolvent by the Court on 20.01.2020. Thus, Y ceases to be a partner of that business firm from 20.01.2020.

Also, if there is a contract between X, Y & Z that the business firm shall continue to operate after a partner goes insolvent then the firm shall not be dissolved. Also, Y’s estate shall not be acquired by X & Z for maintaining the firm’s capital fund. Similarly, X & Z shall not be liable for any act of Y after 20.01.2020 as he ceases to be a partner of their business firm.

In Scaria Paul v. Paraoka Industries; the High Court of Kerala dismissed the plaintiff’s appeal and held that judicial intervention at the instance of one party for settling the differences by prohibitory orders against the other in the absence of the relief to dissolve the firm and accounts settlement is undesirable and is not in conformity with the provisions of the Partnership Act.

Liability of estate of the deceased partner

According to Section 35 of this Act, in case of existence of a contract preventing the dissolution of a firm after the death of one of the partners, then the estate of the deceased partner shall not be liable to any act of the firm done in succession to his death.

Illustration

D, E, and F are indulged in a partnership business. They have contracted to prevent the dissolution of the business after the demise of any of them. F dies abruptly one day. Therefore, the business shall not be dissolved. Also, the estate of F, if any, shall not be liable to any activities of the firm after his death and cannot be acquired by the firm for the purpose of funding the capital of the business firm. 

Conclusion

In conclusion, let us briefly summarize what we learned from the article by far:

1. Any person can become the partner in business only with the consent of the other partners of that firm. Such a person on admission as a partner becomes entitled to share the assets and rights of the firm. The new partner also becomes liable for every activity of the firm starting from the date of his admission as a partner, however, such liability commences only from his date of admission and not for any act done previously by the firm.
2. A partner may resign from the partnership business, either by consent of all other continuing partners or on the basis of any prior contract on this behalf or by intimating all the other partners about his intention to resign.
3. A partner may not be expelled by the other majority of the partners, except for bonafide interests of the firm, and after the expulsion, such partner shall be treated as a retired partner and shall thereby become entitled to all the rights and the liabilities of a retired partner.
4. In case a partner has been adjudicated an insolvent by a competent judicial body, such partner shall cease to be a partner in the partnership business commencing from the date of adjudication. Also, the estate of such an insolvent partner cannot be acquired by the firm as he ceases to be a partner in furtherance.
5. In case of existence of any contract, restricting the dissolution of a partnership business after the death of a partner, then such business shall operate after the death of a partner and the firm shall not be entitled to the property of the deceased in any way.

The post Legal consequences of Admission or Retirement of partners appeared first on iPleaders.

This article is written by Prateek Singh from Institute of Law, Nirma University, Ahmedabad.

In this article, the author explains the difference between a Private Limited Company and a Partnership by analysing their advantages and disadvantages and the way they are formed.

Introduction

In a marketplace where people come out to start a business venture to boost their chances of survival, they find new ways to invest money and make their fortune out of it. Being part of a Private Limited Company or a Partnership Firm are just two of the many options available in the market. It is the different types of business structures that we will be discussing in this article and whose needs do they suit better is what we will find out. Further in this article we shall go through the definitions of the two names mentioned above, the difference between the two, laws they are regulated under and their advantages and disadvantages.

Private Limited Company

A Private Limited Company is a privately held small business entity which limits the owner’s liability to their shares, it also restricts the number of shareholders to 50 and does not allow to trade the shares publically. It is a business entity held by a small group of people who has to go through a registration process under the Companies Act of 2013 in order to get itself recognised.

The factor to define ownership in a Private Limited Company is the share capital, the ratio of ownership is determined by the shares held by the owners in the company. This structure attracts the investors more than anything else because this allows them to claim ownership in the company and at the same time their liability is limited to the shares that they hold. 

Partnership

A Partnership is a business arrangement consisting of two or more members and they all come together to share the profits and the losses of the business equally among themselves, this is one of the major differentiating factors between a Partnership and a Private Limited Company.

People who can form these partnerships can be from various sectors and sections of the society, they can be governments, businesses, private individuals, non-profit organisations etc. and what they want to achieve from their partnership setup will also vary according to their objectives.

There are 3 major categories of partnership:

1. General Partnership– A general partnership is a business arrangement by which two or more individuals agree to share in all assets, profits, and financial and legal liabilities of a jointly-owned business. In a General Partnership setup, all the legal and financial liability as well as the profits are shared equally by all the parties.
2. Limited Partnership- In a Limited Partnership setup, there are two basic requirements, one that there has to be at least one partner who will bear the total personal liability for the partnership’s debts and there has to be one partner who will only bear the liability of the amount invested. This partner is also called the silent partner. The silent partner will not be a part of the management or day to day operation of the partnership.
3. Limited Liability Partnership- Limited Liability Partnerships are a very commonly practised structure for the professionals, mainly for the likes of lawyers and accountants. In this structure, as the name suggests, the liabilities are limited to the partners for themselves and that helps in saving one’s own assets in cases when one of the partners is being sued for a crime, for example- malpractice. Under no circumstances will the assets of an innocent partner be at risk even if the other partners are being charged legally. This helps in retaining personal properties and hence is favoured by the professionals.

The three above mentioned forms are the major forms of partnership in practice, however, there is one another by the name Limited Liability Limited Partnership, which consists of one or more General Partners and one or more Limited Partners, the partnership is managed by the general partners whereas the limited partners are involved financially but are excluded from the management. This form of partnership is recognised under United States Commercial Law.

Major differences

The first major difference between a Partnership and a Private Limited company is the identity of the two. A partnership does not have an identity of its own, it comes into existence when two or more people join to start a partnership. A company on the other hand is a separate legal entity of its own, it is treated as a person in the eyes of law.

Registration

Registration is not compulsory in case of a partnership but registering a Private Limited Company is necessary. The name should not be identical or similar to that of any other firm doing the same business. One other provision is that the name of the firm should not carry the tags such as emperor, crown, empire etc which shows an approval of the government.

There are 4 steps to register a Private Limited Company:

• Procure a digital signature certificate by filing an e-form on the website of the Ministry of Corporate Affairs.
• Obtain the Director Identification Number which is allotted by the Ministry of Corporate Affairs which stays valid for a lifetime unless it is withdrawn or surrendered.
• Reserving a name that has a distinct identity and the certificate of incorporation. 

Governing Act

The Partnerships are governed by the Indian Partnership Act, 1932 and the Limited Liability Partnerships are governed by the Limited Liability Partnership Act of 2008.

The governing acts for the Private Limited Companies can be classified into two parts, one where there are general laws which apply on all companies and then there are industry-specific laws which apply on the companies based on their area of operations.

General laws that apply to all the companies:

1. Income Tax Act, 1961,
2. Payment of Gratuity Act, 1972,
3. Central Sales Tax Act, 1956,
4. Employees State Insurance Act, 1948,
5. The Maternity Benefit Act, 1961,
6. The Finance Act, 2004,
7. Wealth Tax Act, 1957,
8. Employees Provident Fund and Miscellaneous Provisions Act, 1952,
9. Environment Laws,
10. Labour Laws and Provisions.

Members

To become a member of a Partnership, anyone who is willing has to be of the age of majority, should be of sound mind, should be of a sound state of mind and should not be disqualified by law to enter into a contract.

People who can be a member of a partnership are:

1. An Individual who is qualified by law to become a partner can be a member of the Partnership firm in the capacity as an individual as well as in the capacity of a representative of a Hindu Undivided family.
2. A Karta of a Hindu Undivided Family can be a member of a Partnership firm considering that he contributes his personal skill and labour.
3. A firm, since it is not recognised by law as a person or an individual entity, it can not be a part of a Partnership firm but a partner of that firm can become a part of another partnership in his individual capacity, where he can share profit with others.
4. A Company can be a part of a Partnership firm since it is identified and acknowledged by law as an individual person/entity.
5. Trustees of private religious trusts are seen as juristic persons and hence they are eligible to become a partner in a Partnership firm as well.

There are two ways to become a part of a company, by becoming a member or by becoming a shareholder. A member in a company is someone who has his name in the ‘Register of Members’, this means that the person has willingly become a member of the company and is someone who holds some share of the company.

Some differences between a member and a shareholder in a company:

1. Unlike the member, a shareholder does not have his name enlisted into the ‘Register of Members’,
2. A member is defined under Section 2(55) of Companies Act, 2013 but the shareholder is not listed in the Companies Act,
3. After signing the Memorandum of Association with the company anyone can become a member but in order to be a shareholder he needs to be allotted shares.

The membership of the company can end in various ways, like by transfer of membership, transmission of membership, surrender of membership, forfeiture of membership or by share buy back.

Key differences between a Partnership and Private Limited Company

1. Regulation: A partnership firm is regulated by the Registrar of Firms of the State Government whereas the Registrar of Companies of Central Government regulates the Private Limited Companies.
2. Name: It is necessary for the Company to add Pvt. Ltd. at the end of its name but this does not apply to the Partnership Firm.
3. Capital Requirement: Rupees 1 Lakh is the minimum capital requirement for the Private Limited Company whereas there is no such minimum requirement clause in cases of Partnership Firm.
4. Dissolving: In order to dissolve a Private Limited Company there are legal formalities to be done but that is not the case with partnership firms.

Advantages and disadvantages of Private Limited Company

Advantages of a Private Limited Company 

1. Separate Legal Entity: This makes the company a legal person and by that you can avail its benefits like owning property in the name of the company or can even incur debts. The shareholders or debtors of the company will have no liability to the creditors for those debts.
2. Sue and be Sued: Because the company is a separate legal entity, it has the ability to sue and be sued in its own name. This helps in keeping away the names of members of the company out and the Company fights on its own name.
3. Limited Liability: The liability of the members of a company is limited to the number of shares that they hold. This helps release the additional burden of carrying the responsibility of all on your own.

Disadvantages of a Private Limited Company 

1. Restricted Shareholders: In a Private Limited Company setup, the number of investors can not exceed 50 people. So the chances of further growth or expansion cancels out.
2. Registration Process: The process of registering the Company takes around 10-20 days in total in order to file up all the necessary documents. This makes it a hectic and burdening work.
3. Division of Ownership: in a Company, there have to be at least two directors and two shareholders, so you have to make every decision with the consent of two individuals and even if the other shareholders holds a negligible amount of shares, there is still a need to have two shareholders.

Advantages and disadvantages of Partnership

Advantages of Partnership 

1. Easy to Form: Since there is no requirement of registration, this makes it easier to open a Partnership Firm just with the consent and willingness of two or more people. This makes the beginning a smoother process.
2. Better Management: The partners take interest in day to day business of the Partnership Firm and that helps in a better management of the firm.
3. Sharing of Risk: In a Partnership Firm, every partner bears the same amount of risk as it is one of the core principles of formation of the firm, this cuts the load off of other partners’ heads.

Disadvantages of Partnership 

1. Not Being a Legal Entity: A Partnership Firm is not a legal entity, unlike the Company, it does not have a life of its own. When the partners’ separate, it dies.
2. Uncertainty of Future: The future of a Partnership Firm is very uncertain, it dies if any of the partners’ dies or declares insolvency and the induction of a new partner is only going to be possible when all the remaining partners agree to it.
3. Conflicting Nature: In a setup where there are several people working and they all have the same level of authority, conflicts occur. This hinders with the day to day business of the firm or with the direction in which the firm was supposed to be headed.

Conclusion

We have seen how the two forms of businesses function, what all it takes to register them and make them functioning and after analysing the advantages and disadvantages of both of them it is safe to say that there are different needs, different expected outcomes and different approaches to the both forms of businesses. Both of them have their own sets of ups and downs and it is really a matter of interest for the investor as to where he would want to put his money.

The post Private Limited company vs Partnership appeared first on iPleaders.

This article is written by Paridhi Dave, a student at the Institute of Law, Nirma University. 

This is an exhaustive article which deals with the intricacies attached to the post of Forest Officers under the Indian Forest Act.

Introduction

Forests comprise as an essential natural resource for maintaining the ecological balance in any territory. The word forest has its roots in the Latin word ‘foris’ which means ‘outside’. It functions as a habitat to several species of flora and fauna and also caters to the needs of human beings. In contemporary times where climate change has posed several challenges, it is essential that conservation of forests is given due importance.

In this article, the role of forest officers has been discussed as has been provided under the Indian Forest Act, 1927.

The Indian Forest Act, 1927

The Indian Forest Act, 1927 (hereinafter referred to as ‘the Act’) is legislation governing the law relating to reserved forests, protected forests, village-forests, the transit of forest produce, forest officers, penalties and procedure and other miscellaneous aspects. This Act is revised legislation based on previous colonial forest laws and is more comprehensive. The Act consists of 86 sections divided into 13 chapters. The Act is a special law within the meaning of Section 5 of Code of Criminal Procedure, 1973, as was held in Kailash Chand vs. State of MP (1994).

The objective of the Act is to preserve and safeguard the forests in India. This legislation is in consonance with the basic tenets of the Constitution of India, 1950. Environmental protection under the constitutional framework is a result of evolution through time. The subject of forests and protection of wildlife is in the concurrent list, i.e., List III of Schedule VII under the Constitution.

Under the Constitution, Article 51-A(g), which forms a part of the Fundamental Duties, highlights the duty of Indian citizens to protect and improve the natural environment including forests, lakes, rivers and wildlife and also to have compassion for living creatures.

Article 48-A of the Indian Constitution highlights the duty of the state to protect and improve the environment and safeguard the forests and wildlife of the country. 

Furthermore, under Part III of the Constitution which deals with Fundamental Rights, the right to environment is also included under the ambit of Article 21. The golden triangle of Article 14,19 and 21 has been used for environmental protection. This right was first recognized in the case of Rural Litigation and Entitlement Kendra vs. State (AIR 1988 SC 2187) also known as the Dehradun Quarrying Case. The National Forest Policy, 1988 highlights the importance of forests in supporting environmental stability, ecological balance and ecological conservation.  

Role of forest officers

Forest officers are public servants employed by the Government for the administration and governance of the forests across the territory of India. All the States in India have formulated their own legislations for governing forests in their territory, with the Indian Forest Act, 1927 as the base.

Primarily, the role of the forest officers is to exercise the powers vested in them vide various acts/rules/manuals/etc.

The three primary acts which bestow power upon the forest officers are:

1. Indian Forest Act, 1927 and the rules made thereunder.
2. The Wild Life (Protection) Act, 1972 and the rules made thereunder.
3. The Forest Conservation Act, 1980 and the rules made thereunder.

Apart from these legislations, the forest officers are bound to implement the laws made by the legislatures of the respective States.

Hierarchy of Officers under the Indian Forest Act, 1927

The functioning of the forest officers is distributed according to their post. Therefore, it is important to understand the structure of positions in the forest department.

ADMINISTRATIVE OFFICERS

Principal Chief Conservator of Forests 

Additional Principal Chief Conservator of Forests

Chief Conservator of Forests

  Conservator of Forests

CONTROLLING OFFICERS

Deputy Conservator of Forests

 Assistant Conservator of Forests

IMPLEMENTING STAFF

Forest Range Officer

Forester

PROTECTION STAFF

Forest Guard

Forest Watcher

Duties and responsibilities of forest officers under the Indian Forest Act, 1927

Broadly, the role of the forest officers is to fulfil the range of following duties:

1. Manage policy matters, which includes policies relating to wildlife management and wasteland development.
2. Manage matters relating to the committees of the legislature.
3. Overall control and supervision of territorial and functional changes.
4. Establishment of inland/foreign training assignments pertaining to Indian Forest Services (IFS) Personnel, which includes disciplinary matters.
5. Enforcement of the various legislations governing forests.
6. Conducting a regular inspection of forests.
7. Implementing, supervising and monitoring all activities as approved by the Management Plan.
8. Managing forest utilisation.
9. Monitoring of revenue, timber accounts and depots.
10. Survey of forest resources.
11. Corresponding with the subordinate officers of the department.
12. Management of human resources and development.
13. Management of matters related to forestry research.
14. Formulation of Five Year Plans and Annual Budget Proposals.
15. Monitoring all centrally assisted plans, schemes and programmes.
16. Managing matters related to the acquisition of private forests.
17. To promote afforestation.
18. Conducting departmental examinations.
19. Managing matters pertaining to Minor Forest Produce.
20. Governing issues related to forest lands including demarcation and maintenance of forest boundaries, etc.

This is a wide structure of the roles and responsibilities of the forest officers. The intricate structure of administration differs from state to state.

Powers invested to Forest officers by the Provincial Government

Under Section 72 of the Act, the State Government is empowered to invest any forest-officer with any or all of the following powers:

Further, the evidence which has been collected shall be admissible in a subsequent trial before a Magistrate, provided that it was taken in the accused person’s presence.

The scope of this section is:

1. Power to enter upon any land.
2. Power to issue a search warrant.

Apart from this, a forest officer is granted the power to compound offences under Section 68 of the Act. The State Government through a notification in the Official Gazette can empower a Forest Officer to accept from an offender a sum of money by way of compensation for the offence that such person has been suspected of committing. The sum of money to be accepted as compensation can not exceed fifty rupees.

The compounding of offences by a forest officer excludes offences mentioned in Section 62 and Section 63 of the Act. 

Further, to be empowered under this section the Forest Officer should be:

1. Not below the rank of a Ranger.
2. Should receive a monthly salary amounting to at least 100 rupees.

Under Section 52 of the Act, when there is a reason to believe that a forest offence has been committed in respect of any forest-produce, then it may be seized by any Forest Officer.

Important provision for Forest Officers under the Indian Evidence Act, 1872

In addition, apart from the powers bestowed by the State government, there are instances which give forest officers leverage. A Forest Officer is not a police officer within the meaning of Section 25 of the Indian Evidence Act, 1872 and a confessional statement recorded by a Forest Officer is therefore valid in the court of law. Further, no eye witness is required to corroborate the same. Therefore, this power can be exercised for beneficial purposes.

Forest officers deemed public servants

Under Section 73 of the Act, all forest officers are deemed to be public servants within the meaning of the Indian Penal Code, 1860.

Definition of Public Servant under the Indian Penal Code, 1860 

The term ‘public servant’ has been defined under the Indian Penal Code, 1860.

Section 21 of the Code gives the descriptions of various posts which denote the term ‘public servant’. Under the eighth clause of the provision, all the officers of the Government who have been given the following duties are termed as ‘public servants’.

1. To prevent offences.
2. To give information about offences.
3. To bring offenders to justice.
4. To protect public health.
5. To protect public safety or convenience. 

The forest officers are deemed to be public servants as they are empowered to perform all the above functions. A  forest officer who detects a person committing an offence enlisted under the Act may take him into custody. Therefore, the forest officer is a public servant under this provision, although he has been granted the status of a public servant under the Act.

Under Section 64 of the Act, any forest officer without a warrant and without orders from a Magistrate has the power to arrest any person against whom a reasonable suspicion exists of having committed a forest-offence, punishable with imprisonment of one month or more. 

Thus, the power to arrest without warrant shows that the offences under the Act are cognizable offences as per Section 2(c) of the Code of Criminal Procedure, 1973.

Under 64(2), the forest officer is imposed with the duty to take the arrested person before a Magistrate. This provision explains how forest officers as public servants bring offenders to justice.

Under Section 66 of the Act, every forest officer shall make efforts to prevent or interfere for the purpose of preventing the commission of any forest-offence. This depicts how forest officers in their role as a public servant work for prevention of offences.

Provisions for Public Servant under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973 offers protection to public servants.

1. Under Section 197, a prior sanction is required for prosecuting a public servant for an offence committed by him while acting or purporting to act in the discharge of his official duty.
2. Under Section 200(a), if the complainant is a public servant, there is no need for him to be examined by the Magistrate.

Indemnity for acts done in good faith

Under Section 74 of the Act, it has been laid down that there shall lie no suit against any public servant for anything done by him in good faith under this Act.

The term ‘good faith’ has been defined under Section 52 of the Indian Penal Code, 1860. It is a negative definition. The gist of the provision is that due care and attention function as essential elements to constitute ‘good faith’.

The Indian Penal Code, 1860 also provides instances wherein a public servant cannot be held liable if they have acted under good faith.

For example, in Section 99 of the Code, there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under the colour of his office.

Forest officers not to trade

Under Section 75 of the Act, no forest officer either as an agent or as a principal is allowed to do any of the following, except with permission in writing from the State Government.

1. Trading in timber or other forest produce.
2. Be or become interested in any lease of any forest or in any contract for working in any forest, whether in or outside the territorial jurisdiction of this Act.

It has been provided under Section 168 of the Indian Penal Code, 1860 that if a public servant who is legally bound to not engage in trade, engages in trade, then they shall be punished with simple imprisonment for a term extending to one year, or fine, or both. Since forest officers are deemed to be public servants, this provision applies to them.

Conclusion

There are certain limitations of the law imposed on the officers. Therefore, it becomes important as to how the forest officers carry out their functions and responsibilities. The primary duty of these officers is the implementation of the forest laws and prevention of forest offences. 

The officers are bestowed with numerous powers under various acts, which they should use for the protection, conservation and development of forests.

In the time of climate crisis, it is extremely essential that our forests are safeguarded. It then becomes crucial for the legislative, executive and the judiciary to function in consonance and lay down new environmental laws which cater to the contemporary needs of the society.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Provisions governing the Forest Officers under the Indian Forest Act, 1927 appeared first on iPleaders.

This article is written by Abhay, a student from Kirit P. Mehta School of Law, NMIMS. This is an exhaustive article which deals with various aspects associated with rehabilitation and social reintegration of children under the Juvenile Justice Act, 2015. 

Introduction

The core principle of the Juvenile Justice (Care and Protection of Children) Act, 2015 is change and recovery and not punishment. The Act stipulates that children in conflict with the law and children in need of care and security should be catered for their essential needs by adequate care, safety, growth, treatment, social reintegration, and child-friendly adoption. 

Each child who comes into contact with the criminal justice system is a child in challenging situations that have at some stage dropped out of the safety net and has been deprived of a chance to have a safe and stable childhood. In challenging situations, children in conflict with the law should be viewed as children and the intervention of the criminal justice system should aim at resolving the situation.

The premise behind redemption is that people are not born criminals and an opportunity to be welcomed back to society should always be offered. It also stops them from transforming into violent offenders. Instead of prosecuting them as an offender, rehabilitation aims to bring the change in juveniles who are in conflict with the law through schooling or therapy. The law also makes sure that any child leaving a child care institution at the age of eighteen is provided with financial assistance to promote the reintegration of the child into mainstream society. 

Rehabilitation and Social Reintegration

The recovery and social inclusion of children under the Act is performed on the basis of the child’s individual care plan. It is done ideally by family-based treatment such as return to the family or guardian with or without guidance or support, or adoption or foster care. Provided that every attempt is made to retain the siblings placed together in institutional or non-institutional care. Only if not being left together is in their best interests. 

The method of rehabilitation and social integration is followed in observation homes for children, contrary to the law. It happens usually when the child is not released on bail and held there by the Board’s order in special homes or in a place of protection or with a suitable individual. Section 39 specifies that children who need treatment and security who are not kept in families for any reason as such, on a temporary or long-term basis, can be placed in an institution licensed for such children or with a suitable individual or facility. 

The rehabilitation and social integration process shall be followed wherever the child is placed. Those in need of care and support and live in institutional care or in special homes or places of security may receive financial assistance when they reach the age of eighteen as stated in Section 46. This is to help them reintegrate into the mainstream.

Restoration of a child in need of care and protection

The primary goal of any Children’s Home, Specialized Adoption Agency, or open shelters is the rehabilitation and protection of a child. The Children’s Home, Specialized Adoption Agency, or an open shelter has to take all such measures that are deemed appropriate for the recovery and security of a child who is temporarily or permanently removed from his or her family environment and is kept under their care and protection. 

Section 40 specifies that the Competent Authority under its discretion can return any child in need of care and security to his or her parents, guardian, or fit person after assessing their worthiness to take care of the child. The committee can also provide them with the correct directions regarding anything related to the child. “Restoration and security of a child” means, restoration to parents, adoptive parents, foster parents, guardian, or fit person.

Registration of childcare institutions

Without considering anything found in any other laws for the time being in effect, all organizations, whether operated by a State Government or voluntary or non-governmental organizations have to accommodate children in need of care and security. These organizations have to be registered in compliance with the act, within a period of six months from the date of commencement of the same Act, regardless of whether or not it receives grants from the Central or State Government. 

These institutions should have valid registration under the Juvenile Justice Act. The State Government has to assess and record the institution’s ability and function at the time of registration and register the institution as a Children’s Home, Open Shelter, Specialized Adoption Agency, observation home, special home, or as a place of protection.

Upon receiving a request for registration of an established or new institution housing children in need of care and security, the State Government may grant provisional registration for a maximum duration of six months. The government has to grant this within one month from the date of acceptance of the request, to bring such an institution under the purview of this Act. 

The provisional registration shall stand cancelled if the said institution does not fulfil the prescribed criteria for registration. In a situation, when the State Government does not issue a tentative certificate of registration within one month from the date of application, the proof of receipt of the application for registration can be treated as an interim registration for the purpose of running an institution which may extend up to a period of six months. If the officers of the State Government do not dispose of the application for registration within six months, necessary departmental proceedings are instituted about the same. Section 41 specifies that the registration period of an institution is till five years, and gets renewed after every five years. The State Government may cancel or withhold the registration of institutions that do not provide rehabilitation and reintegration services as stated in Section 53 and the State Government shall manage the institution until it is renewed or granted registration again. 

The licensed child care institutions have the duty to accept children, subject to the institution’s ability as directed by the Committee, whether or not they obtain grants from the Central Government or the State Government. Inspection committee appointed pursuant to Section 54 shall have the power to inspect any institution that houses children, even if not registered for the purpose of deciding whether such institution houses children in need of care and security or not.

Penalty for non-registration

Section 42 provides that any individual or persons in control of an institution that houses children in need of care and in conflict with the law if they do not adhere the provisions of subparagraph (1) of Section 41, they shall be punished with imprisonment for a period of one year or a fine of not less than one lakh rupee or both. Given that every 30 days delay in registering is deemed as a separate offence. 

Open shelter

The State Government may create and maintain as many open shelters as may be necessary as mentioned in Section 43, by itself or by voluntary or non-governmental organizations, and such open shelters have to be registered as such in the manner specified. The open shelters operate on a short-term basis as a community-based facility for children in need of residential assistance with the goal of shielding them from violence or holding them away from life on the streets. The open shelters have to submit reports to the District Child Protection Unit and the Committee every month, in the manner specified, concerning children who have benefited from the shelter services.

Foster care

Children in need of support and security may be taken into foster care, including community care by order of the Committee, after following the protocol as may be recommended in this regard, especially in a family which does not include the biological or adoptive parents of the child or in an unrelated family recognized by the State Government as appropriate for this purpose. 

This can be for the short term or can be extended further by the concerned authorities as prescribed by Section 44. The allocation of the foster family is centred on the capacity, purpose, skill, and previous experience of taking care of the children. All efforts shall be made to hold siblings in foster care together unless it is best for them not to be together. 

The State Government also provides monthly financial support for such foster care through the District Child Protection Unit and also inspects to ascertain the well-being of the children. If the children were placed in foster care because their parents were found to be incompetent or unfit by the Committee, the parents of the child may visit the child in the foster home at frequent intervals, unless the committee feels that such interactions aren’t in the child’s best interest.

The foster parents are responsible for supplying the child with schooling, safety, and nutrition, and are responsible for maintaining the child’s general well-being in the manner prescribed. In order to determine the process, conditions, and manner in which foster care services have to be given for children, the State Government can make rules regarding the same.

The Committee will perform the inspection of foster families each month to ensure the child’s well-being, and if a foster family is found to be failing in child care, the child shall be removed from that foster family and transferred to another. Although, a child cannot be given for long-term foster care. 

Sponsorship

In order to implement various initiatives for the sponsorship of children, such as individual, group, or community sponsorship, the State Government can make rules to facilitate them as mentioned in Section 45. The sponsorship will provide financial resources for families, children’s homes, and special homes in order to meet the children’s medical, nutritional, educational, and other needs in order to enhance their well-being.

The sponsorship conditions include: 

• where the mother is a widow, divorced or deserted by the family; 
• where the children are orphaned and stay with the extended family; 
• where the parents are victims of life-threatening illness; 
• where the parents are injured as a result of an accident and are unable to take care of the children physically and financially.

Observation homes

The State Government may create and maintain observation homes as prescribed by Section 47, for the temporary admission, treatment, and rehabilitation of any child alleged to be in conflict with the law in each district or group of districts, either by itself or by voluntary or non-governmental organizations, during the time period in which inquiry is pending. 

If the State Government considers that any designated institution other than a home founded or maintained is suitable for the temporary reception of a child that institution may be registered as an observation home. Through rules laid down in this Act, the State Government must provide for the management and monitoring of observation homes, including the requirements and different types of services to be given through them for the rehabilitation and social integration of a child. A child who is not put under parental or guardian’s care and sent to an observation home shall be separated as per their gender and age, after giving due consideration to the physical and mental health of the child and also to the degree of the offence committed. 

Special homes 

Section 48 specifies that the State Government must create and maintain, either on its own or through voluntary or non-governmental organizations, special homes registered in any district or group of districts as these may be necessary for the rehabilitation of those who are found to have committed an offence and who is held there by the order from the Juvenile Justice Board (Section 18). 

Through the law, the State Government will have to provide for the administration and supervision of special homes, including the requirements and different kinds of services that are required for a child’s social reintegration, and the conditions and the manner in which, the registration of a special home may be authorized or revoked. The State Government can also provide for the classification and differentiation of children on the grounds of their age, gender, the severity of the offence they had committed, and the mental and physical health of the child.

Place of safety

According to Section 49, the State Government shall create at least one place of protection in a State registered under section 41 to locate an individual over the age of 18 years or a child who is between 17 and 18 years of age and is suspected or guilty of having committed a heinous crime. Every place of safety must provide various arrangements and amenities for these children or individuals to reside throughout the investigation process, and also for those who are convicted of committing an offence. State government may specify the kinds of places that may be approved as a place of protection and the facilities and services which may be given therein.

Fit facility

A facility operated by a public agency or a charitable or non-profit entity licensed under any statute shall be accepted by the Board or the Committee as being capable of temporarily assuming the responsibility of a child for the particular reason after a careful inquiry into the suitability of the facility and the child care agency as mentioned in Section 51. 

Managing Directors

Every institution shall have a management committee to be set up in the manner specified in Section 53, to administer the institution and track the progress of each child. The officer in charge of each institution, housing children over the age of six, shall encourage the establishment of children’s committees to engage in such activities as may be specified, for the health and well-being of children in the institution. 

Inspection of registered institutions

The State Government shall appoint inspection committees for the State and districts as prescribed by Section 54, for those institutions registered or recognized to be fit under this Act. Such inspection committees shall undertake compulsory visits to all facilities housing children in the area designated, at least once in every three months, in a group that at least consists of three members, including one who shall be a woman and one of them shall be a medical officer. 

The committee shall send reports of such visits to the District Child Protection Units or the State Governor within one week of their visit. After the inspection committee submits the report, the District Child Protection Unit has to take appropriate measures within one month, and a compliance report has to be submitted to the State Government.

Conclusion

There is also a necessity for control processes in instances of adoption and foster–care. With the co-operation and sensitization of the officials involved, a shift can be brought in the entire infrastructure. To be effective in recovery and to maintain the children’s well-being, daily follow-up is important. The task of social workers is all the more important because children need continuous assistance even after the recovery. The main objective should be to find a loving and caring family for each adoptable child and to ensure that the child’s ‘best interests’ are always borne in mind. The earlier a child is adopted by alternate families, the better it is for the child’s overall growth and progress.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Procedure to be followed for Rehabilitation and Social Reintegration of the Children appeared first on iPleaders.

This article is written by Aradhya Gupta, pursuing B.A. LL.B.(Hons) from Teerthanker Mahaveer University. This is an exhaustive article which deals with the topic of diplomatic immunity.

Introduction

The concept of diplomatic immunity is a very old or ancient idea that is based upon mutual reciprocal respect and understanding among the different states of societies. Historically the diplomatic immunity emerged from the respect of the messengers who used to deliver there the messages of their rulers or to declare wars, conclude peace, or about other necessary National issues. 

This idea of diplomatic immunity has been developed in order to strengthen the healthy International relations among the Nations in which the states and a person on their behalf to argue for their issues and negotiate upon certain aspects.

In international law, the Vienna Convention of 1961 provides the concept of law on diplomatic immunity.

Meaning

Diplomatic immunity is one of the principles of international law which limits the degree to which the officials and employees of foreign governments would be subject to the other country’s authority of police officers and judges.

Definitions

• Diplomatic immunity is a rule of international law that shields diplomatic agents of the sending State from the jurisdiction of the foreign state where they perform their functions.
• The diplomatic relations among the different states have today become a key element in international relations. The diplomatic agents who act in favor of the state’s interests play a crucial role in building a peaceful Internationalised environment of the world.
• It basically ensures that the diplomats cannot get prosecuted by the authorities of the receiving state. The acts of diplomacy may be performed by the head of the state, government, Minister of foreign relations, or by Diplomatic Agents.

Evolution of Principle of Diplomatic Immunity

The word ‘diplomat’ has been derived from a French term ‘diplomate’ which means a person whose duty is to represent his country in the receiving country and to further negotiate on behalf of his State. Diplomats enjoy a very special status both abroad as well as in the home. The early historians trace the origin of this concept of diplomacy from the Mediterranean region, China, the Middle East, and India.

Historical Evolution in India

The history of diplomatic relations can be traced back to several ancient civilizations. In India, the traces of diplomatic relations and of the concept of diplomacy can be found back to the period of 4th century BC. Arthashastra written by the great Sanskrit scholar Kautilya, is an important source of early Indian diplomatic history. Manusmriti also includes the rules relating to diplomacy. Similarly, the kingdom of Maurya, especially under King Ashoka, also had a spirited diplomatic system.

Vienna Convention Diplomatic Relation, 1961

The development of the aspect of diplomatic immunity over the years led to the evolution of the Vienna Convention which with time became a universal Convention and its provisions clearly marked the progression of customs into the settled law. In 1815, Vienna was the first site of a meeting for the diplomatic Agents. The first international attempt to codify the rules of diplomatic immunity was made in 1895 through the Draft Convention made by the Institute of International Law. This resolution stipulated that diplomats enjoyed extraterritoriality. This extraterritoriality was curtailed in 1929. This is the genesis of the Vienna convention. The Vienna Convention has come into existence as an essential tool in International Law which provides the rules and other various aspects of diplomatic conduct and control all over the world and is treated as the reference point when dealing or examining the concept of diplomatic immunity.

Basis of Diplomatic Immunity

There are certain important theories that very well explain the concept of diplomatic immunity based upon the ideologies of different International jurists.

Extraterritoriality Theory

This theory in international law exempts certain diplomatic persons and Agencies operating in a foreign country from the jurisdiction of the host country. Also it states that these diplomatic persons/Agencies do remain accountable to the laws of their native countries. The concept of extraterritoriality theory was propounded by French legal theorist and jurist Pierre Ayraut. According to him “certain persons and things, while within the territory of a foreign sovereign; remained outside the reach of the local judicial process”.

Representative Character Theory 

The Second theory of diplomatic immunity is the Representative Character theory. 

According to this, the host state should deal with the representative of the other states as if it deals with the Sovereign state itself. This means the receiving state must treat the representatives or ambassadors similar to how it treats the Presidential representatives so that the diplomatic agents do not get subjected to the jurisdiction of the receiving state.

The diplomatic privileges and immunities were based on the fact or idea that attack against the diplomats should be understood as the attack against the ruler or sovereign of the sending state himself as they have the same blood within them.

Functional Necessity Theory

The functional theory is a more practical and expected one in the diplomatic law. It is based on the thesis that diplomatic agents could successfully or perfectly perform their function in other countries, only if they are protected or shielded with the immunity and privileges in the receiving Nation. 

The Preamble of The Vienna Convention clearly states that-

“….the purpose of the immunities and privileges is to make it ensure that the functions of the diplomatic missions are performing efficiently and effectively in the representing state…” 

These lines make it very clear that functional necessity is a fundamental principle for the Diplomatic immunity and privileges in the Vienna Convention.

Reciprocity Theory 

The theory of reciprocity states that the favors, penalties, and benefits which are granted by one State to the citizens or diplomatic agencies of another state should be returned back with dignity and kindness. Like in many previous instances, reciprocity has been used in the reduction of tariffs, relaxation of visa requirements, travel restrictions, etc.

International Peace Theory 

International peace theory is propounded in the writings of Immanuel Kant, 18th-century German scholar. According to the writers and different Scholars of this theory, the Democratic States have succeeded in maintaining peace and security among each other and they are less likely to engage in the war activities with each other.

While on the other hand, the democratic States used to be more inclined to wage wars against the non-democratic States.

Immunities and Privileges

The Vienna Convention on diplomatic relations of 1961 lays down the different immunities and privileges which are granted to the diplomatic envoys or agents. They are as follows:

Inviolability of Diplomatic Agents

Diplomatic agents are inviolable. The Vienna Convention under Article 29 lays down that a diplomatic agent shall be inviolable. He shall not be held liable for any arrest or detention. The host state should give proper respect and shall take all relevant steps to prevent any attack on his persons, dignity or freedom.

Inviolability of Premises

A permanent diplomatic mission needs premises from which it can operate and the receiving state must help the sending state in obtaining premises for the mission. Vienna Convention under Article 22 stipulates the customary rule of International law which states that ‘the premises of the mission shall be inviolable’. Except otherwise provided by the consent of the head of the mission, any member or agent of the receiving state should not enter their premises.

Immunity from Local Jurisdiction 

Diplomatic agents enjoy immunity from the jurisdiction of the local courts. The immunity extends to criminal jurisdiction as well as to civil and administrative jurisdiction.

Immunity from giving Witnesses

Diplomatic agents are immune from being presented as witnesses in a civil, criminal, or administrative code of the state to which they are accredited. Article 31(2) of the Vienna Convention provides that a diplomatic agent is not obliged to give any evidence as a witness in any case.

Immunity from taxes and custom duties

Vienna Convention of 1961 under Article 34 lays down that diplomatic agents shall be exempted from all duties and Taxes imposed, whether personal or real, national, regional, or Municipal.

Immunity from inspection of personal baggage

The bag used by the diplomatic mission for sending letters, documents, and articles to the sending States or to other missions of its States abroad is called a diplomatic bag. 

The Vienna Convention on diplomatic relations of 1961 provides under Article 27 that the diplomatic bag of the envoy shall not be open or detained. However, the general practice of exempting the diplomat’s personal luggage from a custom inspection is attached with the proviso that the inspection can be conducted in the presence of the diplomatic agent if required or if there are serious grounds for suspecting that the articles are not for the official use. 

Freedom of communication

Diplomatic agents are free to communicate any information for official purposes to the state by which they are accredited. Article 27 of the Vienna Convention lays down that the freedom of communication includes the use of couriers and code messages.

Freedom of movement and travel

Article 26 of the Vienna Convention provides that the diplomatic agents are free to move and travel in the territory of the host state.

But this is subject to the laws and regulations made by the receiving States concerning the prohibited security zone.

Right to Worship

The diplomatic agents have a right to worship any religion they like within the premises. But they have no right to preach their religion in the receiving state.

Immunity from local and military applications

Article 35 of the Vienna Convention states that diplomatic agents are exempted from local and military obligations of the receiving state to which they are accredited.

Article 4 of the Vienna Convention on Diplomatic Relations

This article stipulates the restrictions on privileges and immunities.

It states that if central government at any time finds that any state which is a party to the Vienna Convention is breaching or has breached its obligations/duties or otherwise if it appears to it that the Indian mission or agents who are in a state in the context of diplomatic relations do not get as the level of privileges and immunities as provided by the act on the diplomatic mission of that state, then the central government, by releasing the notification in its official Gazette, may take action on such instance, as it considers to be proper.

Diplomatic Agents

Diplomatic agents are those persons who inhabit in foreign countries and act as a representative of a country from whom they are sent the provide a significant link between the country from whom they are dispersed and to whom they are sent.

Types of Diplomatic Agents

Congress of Vienna 1815 has classified the diplomatic agents under Article 1 into three types:

Ambassadors

Ambassadors enjoy the special honor as they are considered to be the personal representative of the Head of their states. They can claim the ‘Title of Excellency’. Ambassadors that are sent within the Commonwealth countries are called High commissioners. Normally, the ministers are appointed with the consent of the receiving state.

When the ambassadors arrive in the state where they are dispatched they present A letter of credence which is given to them by the head of the sending state.

Ministers and Envoys

The ministers and envoys do not enjoy the special Honour as they are not regarded as the personal representatives of the Head of their states. They do not receive the title of Excellency. They also do not enjoy the privileged treatment with the head of the state.

There is practically no difference between the ministers & envoys and the ambassadors.

Charges D’ affairs

They are dispatched not by the head of the state but by the foreign office to the foreign office. They do not enjoy the Honours and titles that are given to the other categories of diplomatic agents. They may be appointed either permanently or temporarily. Charges De affairs are sometimes accredited to a newly recognized government after civil war or revolution.

Article 9 Vienna Convention on Diplomatic Relations

(Principle of Persona non grata)

The Vienna Convention provides that a receiving state may declare any diplomatic agent as Persona non grata if he/she abuses or violates his immunities and privileges allotted to him for such diplomatic mission. This basic principle that the receiving state has the power of expelling the sending diplomat without even explaining the reasons for doing so has been present since a very early time in the practice of diplomacy.

It is considered as the most effective kind of safeguard to a receiving state that has foreign diplomats who are misusing or exploiting their privileges and immunities to an extent that is unacceptable or unavoidable to the receiving state.

Justifications for such actions are as follows: 

• if the diplomat has acted inappropriately or has violated the social norms and/or showed antisocial behavior;
• or when such a person misuses his immunity for committing criminal offenses;
• or where the diplomat acts aggressively towards the state and risks the security of the state;
•  Another reason might be where the state declares the foreign diplomats as persona non grata for revenge purposes, to put pressure on another state to negotiate.

The pronouncement of such instances by the receiving state clearly leads to the non-recognizance of that person by the receiving state as a member of the diplomatic mission. And after such a pronouncement if the person commits any further act as mentioned above, then he may face the legal proceedings. Thereof the diplomatic functions of the individual are terminated.

Article 9 of the Vienna Convention states that:

1. The receiving state at any time and without explaining its decision may notify to the sending State that the head or any envoy of the diplomatic mission is deemed to be as Persona non grata.

In any such case, the sending State shall, as to consider appropriate, may either call such person back to his state or his functions and dealings in regard to that mission. Such a person may even be pronounced or declared as Persona non grata or be terminated from such a mission before reaching that receiving state.

2. As per the declaration made under paragraph 1, if the sending state fails to accomplish its duties or obligations within the specified time period then in such a situation, the host state may refuse to recognize that person as a member of that diplomatic mission.

Key Principles of Diplomatic Immunity 

→ Exemptions and Immunity from State Jurisdiction

Jurisdictional immunity states that the persons with diplomatic immunity cannot be brought before the courts for the allegations of any unlawful acts or offenses committed while being in the State in which they were accredited during the tenure of their dealings in that mission. This extends to all jurisdictions whether civil, criminal, or administrative. Thus, a diplomatic envoy who commits an unlawful act in the state where he is accredited for the diplomatic mission cannot be prosecuted in the local courts. The general reasoning behind the jurisdiction of criminal matters is to prosecute and punish those people who commit unlawful or illegal acts. Immunity from criminal jurisdiction of a diplomatic agent which is provided in Article 31 states that the diplomatic agent cannot be put forth before the courts of criminal jurisdiction of that host state for any illegal acts or offenses committed in that State, which is contrary to the very spirit of the rule of law and justice.

→ Theory of Non-Interference

The principle of non-interference states that the Sovereign state shall not intervene in each other’s internal affairs. 

It is the common principle of contemporary international law that the basis of non-interference in each other’s internal affairs is the duty of “respect for state’s sovereignty and territorial integration” which further governs the relations between the states in regards to their rights and obligations. It is also considered as a general rule of International law in compliance with the purposes and principles of the UN charter.

→ Rule of Reciprocity: (Absolute immunity)

Reciprocity in international law can be best described as a creator of a balance between the interests and actions of the state. 

The Reciprocity principle plays a prominent role in a decentralized system of public international law where there is no overruling legal authority to establish, adjudicate, or to enforce all International rules. The principle or rule of reciprocity in international relations suggests creating an environment where the states help and support each other under a reciprocal relationship for a particular, short, or long-term advantage through the means of balance in their rights, interest, and duties.

Mighell V. Sultan of Johore Case

Facts: 

• The sovereign status of a Sultan was an Issue in one of a court case in England. 
• When Miss Mighell sued the Sultan of Johor who was traveling incognito in the State of the United Kingdom for breach of promise of marriage.
• The Court granted the Sultan an “independent sovereign” immunity from its jurisdiction.
• The decision was on the basis of a letter from the Secretary of State for the Colonies stating that “generally speaking, [the Sultan] exercises the usual attributes of a sovereign ruler without any sort of question.” This further demonstrates the British recognition of the Sultanate of Johor as an independent State.

Issue: Whether sultan Johor will get diplomatic immunity or not?

Decision: Court held that the Sultan of Johor will get the diplomatic immunity as an “independent sovereign”.

Principle: Foreign sovereign shall be treated as an independent sovereign and therefore should have immunity from the local jurisdiction.

→ Personal Inviolability 

The principle of personal inviolability is a very old established rule of diplomatic law which has a very close relation to the concept of diplomatic immunity.

 Article 29 of the Vienna Convention provides that “a diplomatic envoy shall not be liable to any form of arrest or detention and the receiving state shall give him due respect or care and shall take all the necessary steps to prevent any attack on him, his dignity or freedom”.

→ Doctrine of Restricted Sovereign Immunity

The increasing involvement of states in World Trade activities led to the development of a more restrictive approach to State Immunity, where a distinction is drawn between acts of a foreign sovereign nature (acta jure imperii) and acts of a commercial nature (acta Jure gestionis). Under this restrictive approach, Immunity is only available in respect of acts resulting from the exercise of a Sovereign power. As such States may not claim immunity in respect of commercial activities or over commercial assets.

Conclusion

The principle of diplomatic immunity is a very well-established principle of International law. Diplomacy is a foundational fact of international life without which international life will be at risk. The concept of Diplomatic Immunity is very important for the promotion of friendly and healthy relations among the states- be it for the purpose of trade, security, peace, or their cultural relations. 

The Vienna Convention is considered as the major success stone of the United Nations. In this, the Diplomats are provided immunity to effectively perform their functions being the representative of the Head of State. Although, all the rights and immunities provided to the diplomats are not absolute they can be compromised within certain exceptions provided.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Diplomatic Immunity: Everything important you should know about appeared first on iPleaders.

This article is written by Harshit Bhimrajka currently pursuing B.A.LLB (Hons) from NLU, Patiala. This is an exhaustive article which talks about the laws concerning environmental pollution in India, detailed study of Section 133 of CrPC, and an overview of some other provisions. It also talks about how the other laws concerning environmental pollution don’t supervene the old law of the Indian criminal machinery i.e. Code of Civil Procedure, 1973.

Introduction

India is a home for around 1.3 billion people which is nearly a fifth of the world’s population. Population is the major problem of large scale environmental pollution and resource depletion in the country. Environmental Pollution refers to the contamination of the components of the earth’s atmosphere which led to an adverse effect on nature due to the pressure of technological developments and population. Thus, the Indian Constitution provides the right of a person to a pollution-free environment under Article 21 (Right to life and personal liberty).

The Stockholm Declaration, 1972 was perhaps the first guidelines or international principles to conserve and preserve the human environment. This declaration made the States adopt legislative measures to protect the environment. In accordance with this, the Parliament of India amended The Indian Constitution in 1976 by inserting a new article, i.e. Article 48A which directs that state should endeavor to protect and mitigate the environment. After 1972, a new zeal was seen in the Indian judiciary as well as the Indian legislature to interpret and make new laws for the protection of the environment. The Indian Penal Code, 1860, and the Criminal Procedure Code, 1973 (hereinafter CrPC) deal with the remedies and concept of the various nuisances, out of which one is environmental pollution. In this article, we will deal with the provisions under CrPC regarding environmental pollution.

Environmental Pollution and CrPC

Environmental pollution is a type of public nuisance. Section 268 of the Indian Penal Code, 1960 defines the term public nuisance as an act or omission of some act which results in annoyance or common injury to the public. In simple words, it is an act which neglects the common good of the public and harms or annoys them by causing such an act, whereas private nuisance is an act which only harms few individuals rather than the public at large. Section 290 of the Indian Penal Code, 1960 deals with the punishment for public nuisance.

The Code of Criminal Procedure, 1973, or the Criminal Procedure Code is the law that deals with the procedure of administration of substantive criminal law in India. It came into force on 1st  April 1974, which contains 484 sections that have been divided into 37 chapters.

Chapter X of the CrPC, “Maintenance of public order and tranquility” provides efficacious, preventive, and expeditious remedies for public nuisance cases which include air, noise, water pollution, and unsanitary conditions. It contains the procedure for the enforcement. The entire corpus of 13 sections of CrPC under Chapter X i.e. from Section 133 to 144A is devoted to mitigating public nuisance.

Provision for Public nuisance under Chapter X

As discussed in the earlier part, the provisions under chapter X of CrPC provide speedy and effective remedies against public nuisance among which environmental pollution is one. 

Section 133 deals with the conditional order for removal of the nuisance, it empowers a District Magistrate and Sub-Divisional Magistrate to stop the nuisance on receiving such information.

Section 134 deals with the service of summons or notification of order. It can only resort when order is not served in the manner provided. 

Section 135 deals with the person against whom the order is addressed to obey or show cause. Under this section, two contingencies are envisaged that:

1. Perform in a specified manner in the order within the time period, or
2. Appear and show cause in accordance with the order.

It also provides that the person against whom the order is made should be given a reasonable opportunity to be heard and answer the allegations made against him.

Section 136 deals with the penalty if the person against whom the order is made failed to comply with Section 135 of CrPC. The penalty is prescribed under Section 188 of the Indian Penal Code, 1860.

Section 137 deals with the procedure where the existence of public rights is denied. It also applies to those cases only where there is no decision about the existence of right by any competent civil court and strong evidence in support of that against any magistrate.

These are some of the provisions under Chapter X of CrPC, the main and the utmost important provisions are under Section 133, which is discussed further in detail.

Section 133

Section 133 of CrPC provides that a sub-divisional magistrate and district magistrate or any other executive magistrate to whom the powers are granted by State Government can make a conditional order to remove such kind of nuisance on receiving information about the same or the report of any police officer. If the person who is creating nuisance objects to the order then the order can be made absolute by the concerned magistrate. Any order made by the magistrate under this provision shall not be questioned in any civil court. In the case of Govind Singh v. Shanti Sarup (1978), the word nuisance was defined in very liberal terms and it includes the disposal of substances, the construction of structures, the conduct of occupation, and trade, and confinement or disposal of any dangerous animal. 

If the imperative tone of this section is read with the punitive tone of Section 188 of IPC (provides punishment for a maximum of six months and a fine extendable up to one thousand rupees) it makes the prohibited act a mandatory rule. 

To invoke this section, it is not required to have a large number of complaints or protest against the nuisance. It can be invoked on simply receiving a report of a public officer or other information that is deemed to be fit as a piece of evidence. This pronouncement was made in the case of Krishna Gopal v. The State of M.P (2016).  In this case, a complaint was registered against a glucose factory which was causing air pollution due to the discharge of steam in the air resulting in fly ash and noise pollution. This all cumulatively caused discomfort to the residents of that locality.  

To understand the application of the section in a facile manner is to simply understand the conditions required as given in the case of Suhelkhan Khudayar Khan v. State of Maharashtra (2003), these followings conditions have to be satisfied for providing a sanction under this section:

1. There should be a public nuisance i.e. the number of persons injuriously affected is so considerable (there should be danger or inconvenience or it is about to be caused).
2. It should not be a private dispute between the different members of the public and if it is then the adequate forum is the civil court.
3. It should be the case of imminent danger to the public interest.

The nature and the scope of this section is explained by the judges in the case of P.C. Cherian v. State of Kerala (1981). In this case, the Sub-Divisional Magistrate of Kottayam directed the stoppage of mixing of carbon in two rubber industries which were situated in the industrial area. As there was no dissemination prevention equipment. The High Court sentenced that the dissemination of carbon black in the environment is causing a public nuisance and also affecting the respiratory organs of the people.

Independence of Section 133

Section 133 of CrPC is independent of the other laws and statutes. Even after the creation of new legislatures the powers of the magistrate inscribed in this section are not repealed. There are many other special and local laws dealing with public nuisances such as Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986, and many more.

Some examples of independence of Section 133 are as follows:

1. Magistrates have the power to close a factory even after no appreciation certificate from the Pollution Control Board is produced.  – Nagarjuna Paper Mills Ltd. v. SDM and RDO (1987).
2. Section 133 doesn’t get repealed automatically after the commencement of any new law.  – Lakshmi Cement Case (1994).
3. Section 24 of Environment Protection Act, 1986 specifically says that if any act or omission commits an offence under this act or any other act then the offender will be liable according to that other act.
4. The Supreme Court in the case of State of M.P v. Kedia Leather & Liquor Ltd. (2000) declared that the enactment of new pollution control laws doesn’t repeal Section 133. It was also said that areas of this section and pollution laws are not identical in nature.

Landmark Judgments

• Ramachandra Malojirao Bhonsle v. Rasikbhai Govardhanbhai Raiyani (2000), in this case the petitioner who purchased the ground floor flat in a building before the installation of motor filed a complaint of use of electric motor by other flat members as it was causing a nuisance to him. The matter was reported to a Sub-divisional magistrate who directed to shift the motor from below the flat to within the premises so that it causes no pollution. The judgment was challenged on the basis of jurisdiction under Sec 133 as it can be used in respect of public nuisance, not a private nuisance. The Gujarat High Court observed that the magistrate should have to keep in mind that if the nuisance is not created at a public place no direction can be given under Section 133.
• Shaukat Hussain and Anr. v. Sheodayal Saksaina (1957), in this case an application was filed alleging that the small particles of cotton are blown in the air by a cotton carding machine of five horsepower situated in the town of Rewa. It was causing breathing problems to the people and the machine was also producing noise and disturbance to public peace. It was observed that Section 133 of CrPC provides an efficacious, and expeditious remedy in case of urgency where the danger to public health and interest is considered.  Paragraph 3 of Section 133 runs as follows: “That the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated.” The term “community”  means that the public at large or all the residents of that locality.        
• Ram Autar v. State of Uttar Pradesh (1962), in this case the Supreme Court interpreted Section 133 of CrPC. The three appellants who sold vegetables, parked their vegetable carts in front of residential houses. This caused inconvenience and obstruction to the users of the roads. The High Court passed the order that the business of vegetable auctioning cannot be carried without causing inconvenience to the people, it can be prohibited even though it is conducted in a private place and the order of the magistrate is valid. But the Supreme Court with three bench judges: Justice Das, Justice Kapur, and Justice Dayal stated that: “It appears to us that the conduct of the trade of this nature and indeed of other trades in localities of a city where such trades are usually carried on is bound to produce some discomfort though at the same time resulting perhaps in the good of the community in other respects. In making the provisions of section 133 of the Code of Criminal Procedure, the legislature cannot have intended the stoppage of such trades in such part of town, merely because of the discomfort caused by the noise in carrying on the trade.”

Conclusion

It is clear and evident from the above discussion that the laws governing environmental protection are in existence even before the enactment of the Environment (Protection) Act and other specific laws by the Indian Legislature and Judiciary. They use the criminal machinery for the protection of the environment to make sure that problems regarding pollution can be solved rapidly and economically. Environmental pollution is one of the biggest doom for our society and to safeguard the environment as well as the lives of the public at large should be our prima facie concern.

Justice V.R Krishna has well said that “it is not how many laws we have, it is how effectively we implement”. Though in the present situation we have so many laws concerning the environment but provisions like Section 133 of CrPC help to achieve this goal efficiently, and expeditiously. These laws are not enough to preserve our environment, the public support and awareness is also the key component for better environmental governance and also for the abatement of the environmental nuisance.

“The Sky is like Father

The Earth is like Mother and

The Space as Their Son

The Universe consisting the Three

is like a Family and

Any kind of damage done to any one of the Three

Throws the Universe out of Balance”

                                                                 -Rigveda

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Environmental pollution and CrPC appeared first on iPleaders.

This article is written by Gauraw Kumar, a student of BVP-New Law College, Pune. In this article, he has described each and every information related to communication of proposals under the Indian Contract Act, 1872.

Introduction

Indian Contract law occupies the most important place in commercial law. Without the law on contracts, it would have been difficult to exercise trade or any other commercial activity. It is not only the business community that is affected by contract law, but it affects everyone. The purpose of contract law is to ensure that the rights and obligations arising from a contract are respected and that legal remedies are made available to those affected. According to Section 1 of the Indian Contract Act, 1872, this law can be called the Indian Contract Act, 1872.

For constituting a Contract, the proposal of desire is the very first step.

What is a Contract?

Initially, we have to understand the meaning of some terms in order to understand the meaning of Contract under the Indian Contract Act, 1872.

Proposal: According to Section 2(a) of the Indian Contract Act, 1872, when any person signifies his willingness to another person to do anything or abstain from doing anything with a view to obtain the assent of either of such act or abstention, then we will say that person is making a proposal.

Promises: According to Section 2(b), when the person to whom the proposal is addressed signifies their assent, the proposal is deemed to have been accepted. A proposal, when accepted, becomes a promise.

Promisor and Promisee: According to Section 2(c), the person making the proposal is called the “promisor”, and the person who accepts the proposal is called the “promisee”.

Consideration: According to Section 2(d), when, at the option of the promisor, the promisee or any other person has done or refrained from doing, or does or refrains from doing, or promises to do or refrain from doing, something, such act or abstinence or promise is called a consideration for the promise.

Agreement: According to Section 2(e), each promise and each series of promises, which constitute the consideration of each other, constitute an agreement.

Reciprocal Promises: According to Section 2(f), each promise and each series of promises, which constitute the counterpart of each other, constitute a reciprocal promise.

Void agreement: According to Section 2(g), an agreement not enforceable by law would be void.

Contract: According to Section 2(h), a legally enforceable agreement is a contract.

Voidable Contract: According to Section 2(i), an agreement that is enforceable by law at the option of one or more of the parties, but not at the option of the other or others, is a voidable contract.

Communication of Proposal, Acceptance, and Revocation

In accordance with Section 3 of the Indian Contract Law, communication of proposals, acceptance of proposals, and revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revokes, by means of which it intends to communicate this proposal, acceptance or revocation, or which has the effect of communicating it.

Communication of Proposal

Communication of a proposal is the very first step towards making any contract. A proposal can be made by various types which are described below:

Kinds of Proposal

Express Proposal 

A proposal which is made either by word (may be written or spoken) or by conduct, is said to be an express proposal.

Illustration: X says to Y, he will sell his house to him for Rs 3 crore. It is an express proposal.

Implied Proposal 

A proposal that is made, apart from the word, is said to be an implied proposal.

Illustration: If A sits on a bus. Then it is considered that he has accepted the proposal of the bus’s services which was given in an implied way.

A railway coolie carries the luggage of a passenger without being asked to do so. Here any normal person can understand that he is doing this for wages. It is an implied proposal.

Specific Proposal 

When a proposal is made for a person or a particular class of person, then it is considered as a Specific Proposal.

General Proposal 

When a proposal is made for each and every person, i.e. the world at large, then any person can accept that general proposal by performing the terms of the proposal.

In the case of Carlill v. Carbolic Smokeball Co. Ltd., a company manufactured smoke balls and claimed that the person will be rewarded if he/she suffered from influenza after using their products. A lady suffered influenza after using that product. Here, the company is liable for giving a reward because that lady fulfills the condition of their proposal.

In the case of Lal v. Charan Lal, a father published a pamphlet in which it was written that whoever found his lost son will be rewarded. Plaintiff found his son and claimed the reward. Here, he is entitled to get the reward because he has accepted a general proposal from his father.

Essential Conditions for a valid proposal

A valid proposal must fulfill the following conditions:

The proposal must be made for the creation of a legal relationship

Merely, a statement of hope, desire, or intention does not constitute a binding proposal. It is a very essential condition to constitute a legal relationship for the creation of a contract.

Illustration: ‘A’ invites ‘B’ at dinner. This does not create any legal relation, so there is no agreement.

If ‘A’ proposes ‘B’ to sell his car for Rs 2 lakh. ‘B’ has accepted ‘A’ proposal. Here, intent to create a legal relationship is shown.

The proposal must be communicated

An offer is valid only when it is communicated to the offeree. Without communication of the proposal, it cannot be accepted.

In the case of Lalman Sukla v. Gauri Dutt, ‘A’ is a servant of ‘B’. ‘A’ has lost his nephew and he sent his servant ‘B’ in search of the boy. ‘A’ published an advertisement that anyone who finds his nephew will be rewarded. ‘B’ found his nephew and later on, he came to know about the advertisement and he claimed the reward. But his claim failed because in order to constitute a contract, there must be an acceptance of the proposal and without knowledge of the proposal, acceptance cannot be done.

Signifies willingness of proposal to obtain assent to it

In order to constitute a valid proposal, a proposal is of such type in which the promisee has a reasonable opportunity for either acceptance and ignorance of the proposal. The unilateral decision does not amount to a valid proposal.

In the case of Hulas Kunwar v. Allahabad Bank Ltd., the respondent by circular, sent to its constituents, to increase the interest rate. It was held that it did not amount to the proposal because constituents did not have opportunities to say ‘yes’ or ‘no’ in the matter of increasing rate of interest.

The proposal must be constituted with a view to obtaining the assents

The proposal must be made with an intention to obtain the assent of the other party. Merely disclosing the intention of making a proposal does not amount to a proposal.

The proposal must contain a Promise 

The proposal must contain a promise in which it is shown by the promiser that if the proposal is accepted, then something shall be done or not be done, shall or shall not happen. When a person signifies to do or not to do something but does not communicate this to his contracting party. Then it will not be considered as a proposal.

The proposal must be certain and definite

The proposal must not be vague and not be of such a type which is impossible to enforce. A proposal must state the essential term of performance on both sides.

Essential terms include:

1. Subject matter identity;
2. Consideration;
3. Performance timing;
4. Actual work requiring performance.

In the case of Taylor v. Portington, X has purchased a Horse from Y and promised to buy another if the first one will be proved lucky. In this case, it was held that X’s promise is not enforceable as it is vague.

A has two-cars and he made an agreement to sell his car for Rs 1 Lakh to B. B cannot enforce this agreement as it is not clear which car he wanted to sell.

Must not contain a mere expression of intention 

If a proposal contains a mere expression of intention to do anything only, then it cannot be enforceable.

Illustration: A says to B that he wants to sell his car for Rs 1 lakh. B cannot enforce this statement as a proposal from the side of A as it is just an expression of intention.

The proposal must be different from preliminary negotiations 

The advertisement card, catalogues and circular cards that contain price notation do not amount to the proposal because it is just an invitation to the proposal. A simple statement from which no promise can be inferred cannot be treated as a proposal.

Must not contain negative terms 

The proposal must not contain such a clause that if the promisee will give no reaction, then it will be considered that proposal is accepted.

Illustration: If A says to B that he will sell his truck for Rs 30 lakh and if he did not get a reply before next Sunday, then the proposal will be considered as accepted. A cannot enforce B to buy his truck in this way.

Must not contain the false statement

If any of the statements in which proposals are the basis of the acceptance and form the basis of the contract between parties, and are found to be a false statement, then it will consider that contract becomes void and not enforceable.

May be subject to a condition 

A proposal can be created on a subject to condition. When a person accepts an offer that is subject to a condition, then it is presumed that he has accepted that offer with the condition and he cannot deny it later on.

Illustration: A says to B to send a reply of acceptance of the offer via. telegram. But B has chosen another medium to send a reply of acceptance. Here, acceptance of B can be rejected.

Must contain all the term of Contract 

A proposer has to state each and every word in his proposal which he wants to include in the contract, then he cannot leave anything on promisee that he should understand by himself.

When does the Communication of Proposal gets complete?

According to Section 4 of the Indian Contract Act, 1872, the Communication of the proposal is complete when it comes to the knowledge of that person for whom that proposal was made.

Illustration: A sent a proposal letter to B on Monday via. post. The proposal letter reached B’s place on Wednesday. In this case, communication of a proposal is completed on Wednesday, not on Monday.

Telephonic Conversation

The above-described case is only applicable in the communication of the proposal via. Postal services or any other services which take some time for the proposer to convey his/her message. But, a proposal can also be made via. Telephonic conversation.

When the proposer conveys his message on the telephone to other people. Then, communication of the proposal is completed at the same time as the message came in the knowledge of the promisee. In the case of network issues and disconnection of calls during conversations, then it is not considered as a valid proposal as it will not be sure and certain.

Conclusion

The proposal is the very first stage in order to make a contract. The person who made the proposal is called the proposer and the person for which proposal is made is called the promisee. Offeree has reasonable opportunities to say ‘Yes’ or ‘No’ to the offerer for his/her proposal. Communication of the proposal is completed when it comes to the knowledge of the promisee.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Communication of Proposal under the Indian Contract Act, 1872 appeared first on iPleaders.

This article has been written by Rachit Garg from the University of Petroleum and Energy Studies, Dehradun. This article aims to describe the various instances of cybercrimes that have been taking place in India and also explain the laws to prevent it. 

Introduction

With the spread of the Coronavirus (COVID-19) pandemic all over the world, the fear amongst the people is being exponentially created. However, the health risks are not the only bane that is the result of this catastrophic event. It has been noticed that as people are practising social distancing, this has given an opportunity to the dark elements of the society. Uniken, a cybersecurity firm revealed that there is a two to three times increase in the cybercrime in India after the lockdown was announced. 

Every organization, either big or small, have been made to work from home due to the lockdown. This increases the risk of breach of data from the laptops or home PCs as they all may or may not have the same level of firewall and security as in the office setup. 

Cyber crime

A man’s life has become dependent on the internet with the further advancement of technology. It is used in almost all the spheres. However, it also enhanced the growth of cybercrimes whose rate of incidence is increasing day by day. 

According to the Black’s Law Dictionary, cybercrime is defined as ‘a crime that takes place through the use of computers, computer technology or the Internet’. Different types of cybercrimes are:

Unauthorized Access and Hacking

It means when the computer is accessed without the permission of the rightful person who is the in-charge of it. Hacking refers to the illegal activity of breaching into a computer system and/or network. 

Cyber Stalking

It refers to repeated acts of using technology to harass or threaten the victim, which can be a person, group, or an organisation. It can involve false accusations, vandalism, identity theft, etc.

Virus attacks

Virus are those infectious programs that are capable of making a copy of itself and spread into other programs capable of harming it. They often affect the data on the computer. They either alter the data present in the system or delete it. It can be sent via an email, once the person opens the mail the device is attacked by the virus.

Phishing

It refers to an act in which the cybercriminal sets up a bogus website which is capable of extracting personal information such as passwords, credit card details and bank account number of the victim. The victim is directed to the website through an e-mail generally. Once the victim accesses the website, they become vulnerable and their personal information can be obtained by the cyber-criminal.

E-commerce Frauds

In this case, the criminal sets a fake set and lists merchandise or services for the sale of the auction. After the purchase has been made by the victim, the item is never delivered.

Laws preventing cybercrime in India

With the motive of creating an enabling environment for the commercial use of the I.T. and to combat the problem of crimes related to the internet, the Information Technology Act, 2000 was enacted. The acts which are punishable have been defined under the IT Act. 

Offences related to the internet that have been made punishable under the IT Act, 2000 are:

• Section 65– Tampering with computer source documents. The person can be made punishable with imprisonment for up to three years, or with a fine up to two lakh rupees, or both. 
• Section 66– Hacking with computer systems and Data alteration. The person can be made punishable with imprisonment for up to three years, or with a fine up to two lakh rupees, or both. 
• Section 67– Publishing obscene information. On the first conviction, the person can be punishable with imprisonment for up to five years and with a fine of up to one lakh rupees. However, in the case of subsequent conviction, the term of imprisonment can be up to ten years and with a fine up to two lakhs. 
• Section 70– Unauthorised access to a protected system. The person can be made punishable with imprisonment for up to ten years and with a fine. 
• Section 72– Breach of Confidentiality and Privacy. The person can be made punishable with imprisonment for up to two years, or with a fine of up to one lakh rupees, or both.
• Section 73– Publishing false digital signature certificates. The person can be punishable for imprisonment for up to two years, or with a fine of up to one lakh rupees or both.

Instances of Cybercrime during Pandemic

According to the Cyber Security Crime Wing of Maharashtra Police, fraudulent links about COVID-19 are being circulated on the internet through the social media posts and Whatsapp. 

Through these fraudulent messages, fear and vulnerabilities of the people towards the coronavirus are being exploited. According to the officials, such messages are being circulated:

1. Promising employment to the age group of people between 18-40 years, with a Class certificate and with a salary of Rs. 3,500 per month during the lockdown,
2. Remedies and additional insurance for Coronavirus,
3. Free recharge of Netflix or other video streaming services,
4. Free internet data, and
5. Sale of liquor offers.

However, these messages have malicious links. These links have been created for the purpose of collecting information, including sensitive and personal ones which are saved in the user’s devices. The links help in accomplishing various phishing and malware attacks and hence, compromising the safety of the device and the data within. People’s online presence has increased since the lockdown which makes them more vulnerable to such attacks. 

Fake websites

The Cyber Division of New Delhi recently warned the public about the malicious coronavirus related websites. They released the URLs of the website and urged the people to not access them. Following is the list of websites marked as malicious:

• coronavirusstatus[.]space
• coronavirus-map[.]com
• canalcero[.]digital
• coronavirus[.]zone
• coronavirus-realtime[.]com
• coronavirus[.]app
• coronavirusaware[.]xyz
• corona-virus[.]healthcare
• survive coronavirus[.]org
• vaccine-coronavirus[.]com
• coronavirus[.]cc
• Best Coronavirus Protect[.]tk
• coronavirus update[.]tkc

Keeping the shortage in supply of the mask and sanitizers during the lockdown, many scammers have made fake e-commerce websites selling these items. These criminals are preying on the fear of the people for the COVID-19. However, the items never get delivered and the website is shut down after some time. 

Fake Applications on Android/iOS

An application on Google Play Store named- ‘Corona Lie 1.1’ claims itself to be a live tracker of the cases of Coronavirus. People who were using this app believed they were using the app to keep track of the pandemic. Instead, the app turned out to be malicious, invading its user’s privacy. The app can access the device’s location, photos, videos, and camera. 

The information collected can be misused by compromising with the user’s bank account or can be sufficient enough to blackmail the user. 

With the intention to curb the rise of fake apps, the Android Playstore has removed many such apps from their platform. Moreover, they have set rules for these types of apps and categorised them under the “sensitive events” category.

Cyber Crime against Women

Cybercrime against women has been increasing due to the lockdown. According to the National Commission for Women (NCW) stats of cybercrime complaints received in 2020:

• February- 21
• March- 37
• April- 54

Moreover, according to the founder of a public care NGO, Akanksha Foundation, 20-25 complaints were received by them on a daily basis. The complaints are mainly about:

• Abuse and threats;
• Indecent exposure and unsolicited obscene pictures; 
• Malicious emails claiming their account is hacked;
• Ransom demands and blackmail;
• Sextortion, that is, extorting money or sexual favours with the threat of revealing evidence of their sexual activity. 

PM CARES Fund Fraud

The Prime Minister’s Citizen Assistance and Relief in Emergency Situation ( PM Care) Fund is receiving a lot of donations from the people. The Fund’s UPI ID is pmcares@sbi. However, it has come under the notice of the authorities that scammers have made similar UPI IDs such as pmcares@icici, pmcares@yesbank, pmcares@ybi, and so on, to defraud people. The Indian Computer Emergency Response Team (CERT-In) along with banks, ministries and police departments issued warnings to curb fraudulent activities. 

EMI Moratorium Fraud

Alerted by the scammers tactics to exploit the EMI Moratorium Scheme, the indian banks have reached out to their customers and strongly advised them not to share personal information like OTP and ATM PIN with imposters, who started contacting people and promised for help with postponing the EMI payment. 

Scammer listed Statue of Unity for Sale

The Indian authorities have filed a case against the person who listed the world’s largest Statue for $4 Billion on OLX, a consumer to consumer (C2C) platform. According to the advertisement, the money which was going to be generated by the sale of the statute would be used by the government to meet its medical expenses amidst the coronavirus pandemic. 

APT Groups 

Advanced Persistent Threat (APT) groups are referred to as organizations that attack on a foreign nation’s information related to national security or economic importance either through cyberespionage or cybersabotage. These groups continue to evolve and exploit during the pandemic. They have been targeting the Critical National Infrastructure which includes Hospitals with ransomware, malware, and distributed denial of service(DDoS) attacks. Not only the attacks are done with the intention of making profits, but also to extract and get access to login credentials and sensitive information of intelligence value. 

Naikon, a chinese APT group, has been targeting the countries of Asia Pacific region. According to the IT security firms, their method of attacking is to infiltrate a government body and extract confidential information to launch a phishing attack on other government targets.

Zoom-bombing

Zoom, a video conferencing app, enables professionals and students to have online meetings and attend online classes, respectively. However, recently, issues were raised about the security of the app. Zoombombing refers to an activity where hackers can secure access to a particular meeting and bombard it with objectionable content. There have been recent instances where objectionable material like a pornographic film was played during an online classroom session or a meeting. Actions have been taken by the company to prevent zoombombing instances by disabling Personal Meeting IDs for scheduling or starting a meeting and a password will be required for all meetings. Moreover, screen sharing privileges will be for the host only by default. 

Attack on the WHO

The World Health Organization (WHO) has noticed a drastic increase in the number of cyberattacks directed towards its staff since the beginning of the COVID-19 pandemic. According to the reports of the WHO, 450 active email addresses and passwords of WHO were leaked online along with other thousands belonging to those working on the novel coronavirus response. However, the leaked information did not put the WHO system at risk as the data was old but the attack did affect the older extranet system which is used by the current and retired staff along with the partners. 

The number of cyberattacks against the organization is five times more than the same period in 2019. 

How to be safe

One can keep themselves safe from such scam and frauds with the help of vigilance and diligence. Here are some pointers that you can keep in mind:

• Before downloading any app from the Playstore, check the detail of the App, this includes details of the developer, reviews, rating given by other users, and their website, if any. 
• Refrain from downloading an app from the third-party stores of websites and only download them from Apple Store for iOS devices and Google Playstore for android devices. 
• In order to prevent fake and malicious apps from being installed, use effective and reliable antivirus for mobile and desktop.

The Delhi Police and WHO have issued some guidelines considering the imminent threat of cybercrimes. Some DO’s and DON’Ts are as follows:

• In case of receiving any attachments on mail that you have not asked for, refrain from accessing them.
• Pay close attention to the type of personal information you share when asked for it as there is always a reason for it. Under no circumstances, should you share your passwords. 
• Do not trust any emails that come with a sense of panic as any legitimate organization will never want the people to panic and take processes step by step.
• Do not believe that WHO or any other organizations give lotteries or offer prices, certificates or grants on the email.

How to check the authenticity of a website?

• HTTP = Bad, HTTPS = Good. in https://, the ‘S’ stands for ‘secure’. It indicates that the website uses encryption to transfer data and provides protection from a potential hacker. 
• Check for visible signs such as spelling errors or broken links. The legitimate websites domain name generally does not have these mistakes. 
• Look for domain age. Often the age of such domain names is not more than a few months, it can be checked on search engines like Whois.com to check the details of the date of registration of the domain name.

Conclusion

Since the beginning of the pandemic of the coronavirus, a significant increase in the number of cybercrime cases has been noticed. The fact that the people are made to work remotely is one of the contributing factors as this lowered the security of their system. Various instances have taken place and the cybercriminal has left no stone unturned to exploit the vulnerable user by extracting their information for personal gains. However, various efforts are being made by the cybersecurity firms to solve the problem and provide security to the people. Various organizations like WHO or the Interpol, along with Delhi Police have issued guidelines for the people to safeguard themselves.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Rise in Cyber crimes due to Pandemic Lockdown appeared first on iPleaders.

The article is written by Abhishek Dubey, a law student from Indraprastha University. The article provides a greater analysis of all extraordinary general meetings and board meetings.

Introduction

A company is a legal entity and it is run by the board of directors and the shareholders. Section 179 of the Companies Act gives authority to the board to exercise such power as the company is authorised to do. However, the activities are subject to the acts and the Articles of the Association of the companies. The approval of the board of directors or its committees and mode of obtaining approval is one of the most critical processes for taking a decision on the companies. 

The board of the company approves any transaction through a democratic way with proper voting and along with that taking the assent of the director and the other. This has to be also approved by the audit committee and stakeholder committee and also the remuneration and the other types of committees.

The board and its committee may decide on any matters by circulating the resolution by the voted for and against and also through audio and video conferencing.

Cardinal rules for approval of the board meeting

The cardinal rule to discuss the matters with the board member is properly convened and constituted, where the board members are physically present and they are reviewing the documents, paper, and other things. The directors of the company need to act in good faith and in a good manner, the shareholders and the other committee members need to act in good faith with good skill and they should be independent for that.

The Companies Act makes the director as the only person liable for his actions or omissions which has been done through his knowledge, skill, and attributes. The participation of the director should be extra careful so that no liability should occur.

Circular resolution

The circular resolution is defined in Section 175 of the Companies Act, 2013 which states as the passing of the resolution. This is an alternate method of obtaining approval from the board of directors for any transactions. This section also creates an exception that the board of directors of the company shall exercise the option only after obtaining the resolution in the meeting. If in the case that any matter which has to be approved by the board of directors consists of one-third of the members, then, the circular has to be put by the chairman itself. It cannot be approved by the circulation. 

Any resolution which has to be approved by the circulation, it has to be drafted along with that it should contain the necessary papers to all the directors or the committee members and should be delivered to their address through fax or an email and other modes, etc. and it has to be approved by the member’s or directors who Have right to vote in the resolution.

What are the matters that are not part of the circulation can be only done through meeting

Section 179(3) of the Companies Act, 2013 states certain matters which have to be done through meeting not by the way of the circulation:

• To make calls on shareholders in respect of the money unpaid on the shares.
• To borrow money, investing the funds of the company, approval of the financial report and board report, to approve merger and amalgamation and reconstruction.
• To appoint and remove internal managerial personnel etc.

List of matters according to the secretarial standard 1 which has to be placed in board meetings but not by the way of circulation

• Notice of meeting with the audit committee and the other committee according to listing obligation and disclosure requirement notice of a meeting of the audit committee and the other committees according to Sebi regulation 17(7) of the listing obligation and the disclosure requirements.
• Approval of the financial statement and the board reports rule 8(4) of the companies rule.
• Appointment of the secretarial auditor and the internal auditors.
• The section states that approval of the related party transaction which is not in the ordinary course of the business.
• Section 196(4) of the Companies Act, 2013 states the appointment and approval of the whole time or the managing directors.
• Sale of a subsidiary company exemption is for the private company as the 5th June 2015 notification.
• Diversify or expand the business.
• The takeover of another company or the substantial acquisition of another company.

For listed companies as per SS 1

According to Sebi LODR 2015 regulation 17(7) schedule 2( corporate governance) has to be passed in the meeting, not in the circulation.

• Approving the annual operating plans and the budgets.
• Information regarding the payment of employees’ salaries.
• Any updates and also the matters of the capital budgets.
• A fatal or serious accident, dangerous occurrence. 
• Details regarding the joint venture or any other collaboration agreement.
• Any material default in the financials of the company.
• Any development in the wage agreement or the voluntary retirement scheme.
• Also the delay in payment of dividends and the transfer of the share. 
• A transaction that involves substantial payment towards goodwill, brand equity, etc.

Relaxation granted in the lockdown on 19th march 2020

The Ministry of Corporate Affairs had issued the notification on 19th March 2020 with relaxation regarding the approval of certain matters i.e contained in section 179 of the Companies Act 2013 along with the rule 8 of the companies 2014 which was earlier done through the physical meeting has to be deal with the video conferencing from 19th March to 30th June 2020.

The matters which are to be dealt with the secretarial department when the meeting with the board of director and shareholder is going on

• That the meaning of video conferencing or other audiovisual means is given in the rule of the companies 2014 where the term audio conferencing means that all members who are there are able to communicate effectively.
• And notice should provide all the details so that the director participates in the meeting through video conferencing.
• The company should make a necessary arrangement so that there is no failure on the part of the meeting.
• Minutes of the meeting shall contain the fair and correct proceeding of the meeting.
• This has to tend to ensure that no other person other than the director or the other person is attending the meeting.
• The duty of the chairman is to check that the required quorum is present.

Procedure to conduct the extraordinary general meeting through video conferencing

• The extraordinary general meeting can be conducted via video conferencing. Before scheduling the meeting the company needs to ensure that there is a facility for video conferencing and each person is comfortable with that.
• The notice of the meeting should contain the regulation or the framework under which the meeting is to be held and also the helpline number for the default in the meeting such as if any problem is happening in having the meeting the handler should be there as the video and audio handler.
• Instruction on how to access and participate in the meeting. The copy of the notice needs to be uploaded on the websites of the company and these need to be approved by the stock exchange in case of the listed companies.
• According to Section 112 and 113 of the Companies Act 2013, the member can appoint the representative in the meeting.
• The facility should allow 1000 participants to cum the first offer. 500 participants in case the companies have not opted for the e-voting.
•  The persons like shareholders holding 2 percent of the share are allowed to attend without following first cum first serve rule and management person and the key professional can do this too.
• There should be one auditor and one director at the meeting.
• The meeting should be 15 minutes before the time of the meeting and 15 minutes after the time of the meeting.
• The company shall provide the e-voting in case the company has an e-voting system and should not if the company does not have e-voting.
• All resolutions have to be filed within 60 days from the date of holding a meeting with the registrar of the companies.

Conclusion

Due to the lockdown or COVID 19 companies are trying to deal with the new rules and the regulations. A lot of changes have been made but still, there are a lot of practical things which need to be seen. 

There have been a lot of controversies in this regard like e-voting, we all know that the new companies act has given a lot of freedom to use the technology in conducting the meeting. Now notices and receipts can be received through notice and the other things electronically.  

Section 173 of the companies act along with the rule of the companies 2014 has given the freedom to have the meeting through video conferencing or the audiovisuals. This has solved a lot of issues where the directors consist of foreigners.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post All about the board meeting and extraordinary general meeting through video conferencing appeared first on iPleaders.

This article is written by Mehak Jain who is currently pursuing law at the Hidayatullah National Law University. This is an exhaustive article that aims to deal with penalties and procedures under the forest act.

Introduction

The Indian Forest Act, 1927 consolidated all previous legislation regarding forests and forest produce prior to the 1920s. The Act empowered the government and Forest Department to create Reserved Forests and to use them for government use alone.

Some important terms to be understood to enhance understanding of the Act are:

• Forest officer: 

Any person or officer, empowered by State Government to carry out the purposes of this Act, shall be a Forest-officer.

• Forest offense:

The offenses which are punishable under this Act or under any rule made therein are regarded as Forest offenses.

• Forest-produce:

This term has a wide ambit. It includes timber, charcoal, catechu, wood oil, resin, lac, natural varnish bark, kuth, etc. It also includes the following, found in forests, such as trees, leaves, flowers, fruits, and all other parts, plants other than trees including grass, creepers, reeds, etc. and all parts of such plants, and wild animals and skins, tusks, horns, bones, silk, cocoons, etc and peat, surface, soil, rock, and minerals.

• Timber:

It includes fallen trees/ trees felled on purpose, and all wood whether cut up or fashioned or hollowed out for any purpose.

For the purpose of forest conservation, it prescribes a penalty for offenses committed under it under Chapter IX. This involves the seizure of property, confiscation of produce, imprisonment, fine, etc.

Section 52: Seizure of property liable to confiscation

Forest officers or Police-Officers, if they have sufficient reason to believe that a forest-offense has been committed with respect to forest-produce, are authorized, as per Section 52 of this Act, to seize such produce together with tools, boats, vehicles or cattle which might have been used in committing such offense.

If such officer has reason to believe that a vehicle is being used for transportation of forest-produce (in respect of which he/she believes an offense might have been committed) can stop such vehicle and cause it to remain stationary for a time-period which is adequate to examine the contents of the vehicle and inspect all records relating to goods being carried in the vehicle.

A mark shall be placed on such property/ receptacle/ vehicle carrying the produce by the Officer, depicting the same as being seized. A report of the same is to be made to the Magistrate, who shall then decide whether to try the offense on account of which seizure has been made or not.

Section 53: Power to release property seized 

According to Section 53, the power to release property seized under Section 52 of the Act lies with any Forest-Officer, whose rank is equivalent to that of a Ranger, or his/her subordinate who has seized any tools/ boats/ vehicles or cattle after having the owner execute a bond for the production of the property so released, to present before the Magistrate if and when required, to try such forest offense.

Section 54: Procedures on receipt by Magistrate on report of seizure

The Magistrate, on receiving the report made by the Officer who seized property of a person (who he had reason to believe was a forest-offender), shall take suitable measures to go on with arrest and trial of such offender, and for the disposal of property according to law.

Section 55: Forest-produce, tools, etc., when liable to confiscation

By the order of the convicting court, the following forest-produce, tools, etc. are liable to forfeiture–

1. All timber or forest produce not owned by the Government, and in respect of which a forest-offense has been committed; and
2. All tools, boats, vehicles, and cattle used in committing such “offense”.

Section 56: Disposal of produce in respect of which a forest-offense was committed on the conclusion of the trial

When the trial of any forest-offense comes to an end, what is left to be decided is how the produce in question will be disposed of.

1. If the property in question belongs to the Government or has been forfeited- a Forest officer is to take charge of such property.
2. In any other case, such property is to be disposed off, as per the law.

Section 57: Procedure when offender unknown, or cannot be found

In cases where forest-offender is unknown or cannot be found, the Magistrate, if satisfied that an offense has been committed is entitled to order the property in respect to which an offense has been committed to be forfeited along with tools, boats, etc. and taken charge of by the Forest officer/ a person whom the Magistrate deems entitled to the same.

However, no such order shall be made before the expiry of one month, starting from the date of seizing such property, or without hearing the person who is accused of committing a forest-offense.

Section 58: The procedure as to perishable property seized

If the property seized is perishable, i.e. subject to speedy and natural decay, the Forest Officer making such seizure may sell the same and deal with the proceeds as he/she would’ve dealt had such property not been sold and report about every such sale to his/her official superior.

Section 59: Appeal from orders

Any person who is interested in the seized property, or the officer who seized the property, or any of his/her official seniors may file an appeal within one month from the date of order. The appeal should be made to the Court which gave out such order and the order passed on such appeal shall be final.

Section 60: The property when to vest in Government

The property/its portion shall belong to the Government, free from all encumbrances, provided that it follows both the following conditions-

1. An order for forfeiture has been passed, as the case may be; and
2. No such appeal is preferred/ if an appeal is preferred, the Appellate Court confirms such order in respect of such property.

Section 61: Saving of power to release property seized

An officer empowered by the State government is at any time entitled to direct the immediate release of any property seized which is not the property of Government as well as to withdraw any charge made in respect of such property. No provisions of the Act shall be deemed to prevent it.

Section 62: Punishment for wrongful seizure 

There are safeguards also to the power of Forest Officers, to keep them in check and make sure that they don’t abuse them. If a Forest officer/ Police officer, on the pretense of seizing property under this Act, wrongly seize any such property, he/she shall be punishable with imprisonment for a term which may extend to 6 months, or a fine which may extend to Rs. 500, or both. If the convicting court is of the opinion that any fine so imposed, or a portion thereof is to be given to the aggrieved person, such amount shall be given to him/ her as compensation.

Section 63: Penalty for counterfeiting or defacing marks on trees and timber and for altering boundary-marks

The penalty prescribed for-

1. Knowingly counterfeiting the identification mark affixed by Forest Officials, to indicate that such timber/ tree belongs to the Government or of some person, to cause a presumption that such produce has been lawfully cut/ removed;
2. Altering/ defacing/ destroying such identity mark placed on timber/ tree under the authority of a Forest Officer;
3. Altering/defacing/destroying/moving any boundary mark of a forest or wasteland to which this Act applies;

Ranges from imprisonment which may extend up to 2 years, or with fine, or both. 

Section 69: The presumption that forest-produce belongs to the Government

If a question arises as to the question of the authority of the government, to any forest produce, during proceedings taken under this Act/ in the response of anything done under this Act, it shall be produced that such product is the property of the Government until the contrary is proved.

Various Powers under the Act

Section 64: Power to arrest without warrant

This Act confers the power to arrest, without a warrant and without orders from a Magistrate, on any Forest-Officer, Police Officer or Revenue-Officer, provided that the person so arrested gave a whiff of reasonable suspicion in respect to any forest offense punishable with imprisonment for one month or may even extend.

If an officer makes an arrest under this provision, he/she is expected to release in bond, take or send the person arrested before the Magistrate having jurisdiction in the case, or to the officer in charge of the nearest police station without causing any unnecessary delay.

Section 65: Power to release a person arrested on a bond.

In case the person arrested executes a bond to appear, if and when required, before the Magistrate or before the officer-in-charge of the nearest police station, he/she has to be released without any prejudice. Such person can be released by any Forest Officer of a rank equivalent or superior to that of a Ranger, any Police-Officer of a rank equivalent or superior to that of a Sub-Inspector or any Revenue Officer of a rank equivalent or superior to that of a Mahalkari or Tahsildar who (or whose subordinate) was responsible for making such arrest.

Section 66- Power to prevent the commission of the offense

The Act authorizes any Forest Officer, Police Officer and Revenue Officer to intervene and prevent for the purpose of preventing the commission of any offense.

Section 67- Power to try offenses summarily. 

As per the Code of Criminal Procedure, 1973, any Magistrate (of the first class) specially empowered in this behalf by the State Government in consultation with the High Court may try summarily a forest offense punishable with imprisonment for a term which may extend to and not exceeding one year, or fine which may extend to Rs. 2000, or both. The provisions of Sections 262 to 265 (both inclusive) of the said Code are applicable to such a trial. Not countering anything in the said Code, in case of conviction for any offense in a summary trial, the Magistrate may pass a sentence for imprisonment for any term for which such offense is punishable under the Act.

Section 68- Power to compound offenses. 

Section 68 says that the State Government can empower a Forest Officer (by notification in the Official Gazette) to accept a sum of money or (on his/her discretion) an undertaking in writing to pay a sum of money as compensation from a person about whom a reasonable suspicion exists that he has committed any forest offense other than an offense specified in Section 62 or Section 63 of the Act.

When the suspected person has made the payment or accepted to give an undertaking in writing to pay such named value, or both, to the Officer, the Officer must discharge the property, if any, seized and no further proceedings are to be taken against such person or property.

To be empowered under this provision, the Forest Officer should not be of a rank inferior to that of a Ranger, and he/she should also receive a monthly salary amounting to at least Rs 100.

It is important to note that the sum of money agreed to be charged under this provision, in no circumstance, is to exceed the sum of Rs. 500.

Conclusion

The Indian Forest Act, 1927 was largely based on and took its inspiration from previous Indian Forest Acts implemented under colonial rule. The most famous one was the Indian Forest Act of 1878. Both Acts aimed to consolidate and reserve the areas having forest cover, to regulate movement and transit of forest produce, and the duty leviable on timber and other forest produce. 

The Act prescribes a penalty for offenses committed under it. On skimming through it, it might seem that the Forest-Officer is the all mighty, however, a clearer understanding of the Act depicts that there are certain safeguards in place to keep him/ her in check too. The Act, later on, went to take the shape of the Forest Conservation Act of 1870 as it was realized that focus on timber conservation alone was not sufficient.

The post Penalties and Procedure under the Indian Forest Act, 1927 appeared first on iPleaders.

This article is written by Vanya Verma pursuing B.B.A.LL.B (Hons.) from Alliance University, Bengaluru. This article talks about how COVID-19 has impacted the real estate sector and guidelines given by the government, RERA and other authorities in lieu of this COVID-19 pandemic.

Introduction

The COVID-19/Novel Coronavirus pandemic around the globe has resulted in imposing too many restrictions by the Central Government and State Government. The order to impose nationwide lockdown has resulted in shutting down all non-essential services. The imposition of Section 144, CrPC by various States and lockdown had a cascading effect on many people like migrant labour who were left with no other option but to return to their homes due to non-availability of work and thus left with no money for food and other essential items. Other problems that arose due to this pandemic were economic instability that led to cutting down of salaries and wages of the workers and non-transportation of goods across borders and in addition to all this shutting down of raw material and cement factories that have brought the real-estate sector to a grinding halt.

Impact of COVID-19 on real estate

It is expected by a rating agency, ICRA (Investment Information and Credit Rating Agency), that residential developers will witness a decline in their net cash flow on account of this COVID-19 pandemic. ICRA’s Associate head and Assistant Vice President, Mahi stated that “A prolonged outbreak may result in recessionary dynamics which would have a deeper impact on project cash flows and execution abilities. Such an impact combined with the ongoing credit compression and prevailing inventory overhang in the sector, would likely result in significant credit pressures going forward”. Additionally, he said that “Demand risks for the housing sector are likely to enhance, given the rising apprehensions on overall economic growth and contagion related fears directing to reduced walk-ins, thus resulting in some reduction in new sales and associated collections. Committed collections receivable from the already booked sales may also get affected to some extent, given that mile-stone based payments may get deferred and some buyers may delay payments on account of economic uncertainties arising from the imminent possibility of job cuts and pay cuts as the crisis extends. Developer ability to remotely issue and follow up on demand notices will also have a significant bearing on collection efficiency levels”.

The RERA (Real Estate Regulatory Authority) guidelines have rendered an extension of one year in the execution timelines of the projects if the event is beyond the control of the promoter. Therefore, reducing the regulatory risk in the disruption of short-term projects.

Confederation of Real Estate Developers Association of India (CREDAI) released a statement in consideration to the crisis that industries are facing wherein the Ministry of Housing and Urban Affairs immediately sought the following policy relief:

• To extend the registration period by at least one year.
• The principal repayment and interest that are falling outstanding over the duration of the next three months should be put off in real estate projects and instead of three months should be recovered in the next nine months.
• The loans taken by the real estate developers should not be declared as Non-performing Assets (NPA) if they default on payment of principal amount and interest.
• The requirement of additional funds to be met on the same terms to meet the increase in costs from financial institutions without any additional collateral.

CREDAI in consideration to nationwide lockdown has proposed to include COVID-19 as a force majeure under Section 6 of The Real Estate (Regulation and Development) Act, 2016 as it has led to no economic activity and implemented in the private sector the facility to work from home. Except for the ones dealing in essential service, complete shutdown has been ordered in private and public transport as well as shutting down of project sites and manufacturing units.

The migrant workers that work in the organisation have left for their homes from the big cities where most of the construction activities take place. Therefore, due to the acute labour shortage and the guidelines (mentioned above) by the government, all the construction activities have come to a halt. Thus, it has been requested to include COVID-19 as one of the intrinsic factors which might hinder in the completion of construction work within the stipulated time as the developers have provided in their registration or licenses under the RERA sector.

The global lockdown has collapsed the economy and financial markets of industry-based countries like India and China. The Chinese economy has shrunk to 6.8% because of this coronavirus crisis. That is not a good sign as various countries depend upon the raw materials from China.

China has come up with a Yuan 800 billion special refinancing. Italy, in order to support the economy, has come up with emergency purchase programs. A 120 days moratorium has been provided by the US government to the federally subsidised property that is backed by a mortgage loan. Government has released $500 billion for liquidity, took a stance of ‘whatever it takes’ and is even prepared to lend up to zero rates.

The government of the USA has imposed a 60-days ban upon the immigrants who come to the country seeking to work and live in the country, depending upon the situation, the ban can be extended.

Few European countries have either provided the citizens with temporary mortgage relief or curtailed evictions. Further, mortgage holidays have been offered to the commercial real estate owners. 

The GDP of 170 countries is declining as recently projected by the IMF (International Monetary Fund) due to the coronavirus crisis. It has been further predicted that the ill-effects of this crisis will continue even in the next year, that is 2021 and further accelerate the downturn.

The IMF recently stated that despite the coronavirus crisis, India in 2020 will still remain the ‘fastest-growing major economy’.

The global shutdown that has collapsed the economy and financial market has affected the industry-centralized countries like India and China. The consequence of this collapse had a vast impact on the Indian real estate markets.

In 2019, significant investment came from China, Hong Kong, Singapore in the Indian real estate sector. It has been predicted by the United Nations (UN) that India might face substantial immediate trade loss. Even when the world economy will go under recession but not Indian and Chinese economy.

The impact of this crisis will be more on the slow mover commercial real estate market. There is a possibility that the decisions of commercial investment might drift from the real estate if this coronavirus crisis keeps on impacting the economic supply chain than an expected longer duration, as the investors will also like to invest in a more stable market. 

While the residential real estate that has already not been able to cope up with the past turbulence caused by the liquidity crisis, policy reforms and structural changes, the coronavirus crisis in the coming days will further increase the liquidity pressure and gaps in increased cash flow, the reason behind this will be fall in residential demands and new sales due to the investment that many people might have thought of investing in real estate will reconsider it on account of a decrease in pay, retrenchment and many people have lost their jobs and if this crisis keeps on continuing for a long time then these will keep on increasing. Thus, housing sectors might witness a substantial drop in demand and reduction in existing demand in commercial real estate due to downfall in the economy.

Immediate policy action by the government

The government and various other relevant authorities to provide relief in coronavirus crisis have come up with the following policy actions:

• The Reserve Bank of India (RBI) has declared a moratorium of three months on all working capital facilities and loans outstanding as on 1st March, 2020.
• The Ministry of Corporate Affairs in its notification released on 24 March, 2020 has increased the default limit to Rs. 1Crore from Rs.1 lakh as given under Section 4 of Insolvency and Bankruptcy Code, 2016.
• The Maharashtra Real Estate Regulatory Authority on 2 April, 2020 has extended the timeline for the statutory compliances and revised the Project Registration Validity by its order No.13/2020.
• Completion date, revised completion date or extended completion date for all the registered projects expiring on or after 15th March 2020, the validity period has been extended by a duration of three months for registration of these projects and revised timeline for certificates of project completion will be subsequently issued.
• In accordance with RERA, the time limits of all statutory compliances that are due in March, April and May have been extended till 30th June 2020. The RERA authorities of Maharashtra have extended timelines and other states are yet to formulate policy decisions due to the impact of COVID-19 on the real-estate industry.

Anarock Group released a report on the impact of COVID-19 on the Indian Real Estate Sector. According to this report, well-funded projects can take another several months from scheduled deadlines to complete their projects. The report also stated that lockdown will affect 15.62 lakh under-construction homes out of which 57% units are in the metropolitan region of Mumbai and National Capital Region.

The National Association of Real Estate Developers Council (NAREDCO) requested the government to permit the construction at the project sites while adhering to the safety measures and lift the lockdown on these projects. The request was made to minimise losses and complete the maintenance and facilities that are urgent like storm drains, rainwater harvesting pits etc. before the arrival of monsoon.

Measures taken by other countries to provide relief to the real estate sector

The measures taken by various countries to provide relief to the real estate sector due to this coronavirus outbreak are as follows:

• • The USA: The USA government is pondering for a special financial package to help the construction workers and to provide relief to the projects that are federally-funded, as most of the construction activities have been ceased because the activities like construction and building have been categorised as non-essential services in the country.
  • Australia: The Australian Government in order to ensure the flow of capital and availability of liquidity, has lowered the benchmark repo rate. To help the slowing down economy, the country’s government has generated a special funding facility to the amount of AUD 90 billion.
  • France: In France, the government has approved to consider the coronavirus pandemic as force-majeure. The government also stated that there will be no imposition of penalties on the developers and contractors in case of delay due to this outbreak.
  • Canada: The Canadian government will be contributing $27 billion to support the Canadian workers that include construction labourers. Ontario and other states have also included building and construction in the list of essential services. A detailed safety guideline has been released by the Construction Association of Canada amid this pandemic for the construction workers.
  • Singapore: Special laws have been made by the Singapore government to help the labourers and construction industry, who have been affected by the coronavirus pandemic. From 1st April 2020, the construction companies have been allowed a refund on account of Man Year Entitlement (MYE). Further, if foreign construction workers face hardships with the current employer they can change the employer midway.
  • Germany: The government of Germany has released a welfare package of Euro 400 billion, focussing mainly upon the blue-collar workers. It was also vowed that the government will take over the employees’ wages and pay compensation for the working hours that have been lost due to the COVID-19 crisis.
  • The United Arab Emirates (UAE): UAE has released a special package of $27 billion for the construction industry and small and medium enterprises to stimulate the economy that has been affected due to COVID-19 crisis.

The United Nations (UN) and The International Monetary Fund (IMF) have prompted that the developed countries should put the debt payment on hold for some time from the poorest countries so that they can focus on the fight against the crisis due to COVID-19.

The World Bank has also come forward at the time of the coronavirus crisis and has vowed to give a package of $14 billion for the countries to fight against this situation.

Conclusion

The spread of COVID-19 and the crisis that arose due to this pandemic will have an adverse effect on the real estate and its developers. The contribution to national GDP by the real estate sector is 13%. The real estate sector accounts to the second-largest employer in the country and has a direct influence on 250 allied industries. Therefore, it becomes very important that the government should make relaxation on certain regulations to help the builders to fulfil their responsibilities and obligations.

References

• https://www.indialegallive.com/special-story/covid-19-effect-real-estate-sector-95099
• https://www.99acres.com/articles/coronavirus-covid-19-global-real-estate-markets-brace-for-impact.html
• https://www.jll.co.in/en/trends-and-insights/research/covid-19-global-real-estate-implications
• https://housing.com/news/will-there-be-a-drop-in-property-prices-in-india-due-to-the-coronavirus-outbreak/
• https://www.indiatoday.in/business/story/coronavirus-how-covid-19-is-hurting-india-s-ailing-real-estate-sector-1664172-2020-04-07

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post Real Estate, RERA and COVID-19 appeared first on iPleaders.

This article is written by Rajat Chawda of the Institute of Law, Nirma University, Ahmedabad. In this article, he discusses the right to dissent in times of a pandemic like Covid-19.

Introduction

Article 19 of the Constitution of India, 1949 protects the right to dissent and protest by guaranteeing freedom of speech, assembly, and the right to ask the government for a redress of grievances. These rights are fundamental to our democracy. 

In India, where the Shaheen Bagh protestors have to terminate their almost 100 days of protest against the government’s decision on the Citizenship Amendment Act to curb the spread of the COVID-19 virus, it becomes necessary to understand whether the government is not overreaching their powers by restricting the dissent in the name of the protection from pandemic? 

To protest against government policies is one of the fundamental rights of the citizen in a democracy. Protection of this right guarantees democracy to thrive. But, in an unprecedented time like this, where the corona pandemic has resulted in a complete global lockdown, businesses are stranded, the government is struggling and trying its best to control the spread of the virus, the right to protest in such a situation seems unclear. 

This article will try to assess the legitimacy of the government’s action to restrict the right to protest during the pandemic, what are the laws empowering the government to do, whether it affects the constitutional values or not.

What are the Laws Dealing with the Restrictions Imposed?

To control the spread of this virus, both the Central and the State Governments are taking stringent measures to curb the spread of the virus. In such a situation, it is important to ascertain what are the laws which are empowering the government to take such measures. It would also be worthwhile to know whether there is any law or provision which empowers the government to restrict the right to protest or exercise freedom of speech and expression in a pandemic like situation?

The dominant law enforced by the State Governments of India is the 123-year-old British-era statute, known as the Epidemic Diseases Act, 1897, which was developed to prevent the spread of dangerous infectious diseases and consists of only four parts: Introduction, powers of Central Government, penalty, and a Protection Clause. Governments have used this Act to pass laws restricting movement following the outbreak of Coronavirus, and the same act has also been used in the past by States to monitor the spread of H1N1 (swine flu) and other similar diseases.

The Act empowers the State and central governments to take the necessary measures to control further spread of the disease. Section 2 of the Act provides that the State Government may take action if it is satisfied that it is threatened by an outbreak and that the ordinary provisions of the law are insufficient. Section 2A gives the Central Government the right to take inspection of ships and vessels in these circumstances and, if necessary, arrest the persons.

Is this legislation sufficient?

It is worth asking whether this enforced law is sufficient to deal with a pandemic or not, whether it empowers the government to restrict the right to free speech and expression or not. 

The answer would be no! The government, under this law, is not empowered to exercise such power. Since India has a federal structure, the power of the centre is limited in matters related to healthcare. It is so because ‘healthcare’ is a matter, included in the state list of schedule seven of the Constitution. Under this particular law, the Central Government can only exercise its powers for the purpose of inspection, quarantine, or when a penalty has to be imposed. This Act does not allow the government’s intervention if the problem becomes worse. It should also be noted that the legislation does not anywhere mention the power of the government to restrict the fundamental rights of the citizen. 

So, how can the government restrict this right in such times? Can a pandemic be declared as an emergency?

Emergency provisions of the constitutions are strange provisions, these provisions have the power to curtail even the fundamental rights which the State cannot do. Provisions surrounding the declaration of an emergency can be found under Article 352 of the Indian Constitution. The emergency under this Article can be declared on the grounds of war, external disturbances and internal disturbances. Earlier, the term ‘internal disturbance’ was considered as a flexible term that was broad enough to include disturbances caused by an epidemic in the world. The term ‘internal disturbance’ was replaced by the term ‘armed rebellion’ in the 44th amendment to the Constitution, but not in Article 355. 

As per the Article 355, the Union Government must protect the state government from external and internal disturbances. This article also empowers the Union Government to check that State Governments are working within the ambit of the Constitution. The effects of the proclamation of emergency, and permission of the Central Government to direct the State Government on the usage of its executive power and legislating laws for the matters related to State list is mentioned under Article 353. Article 358 & Article 359 are the provisions which mentions that certain fundamental rights of the citizens will become unenforceable during the time of emergency.

The report of the Sarkaria Commission involving these provisions, considered the broad interpretation of Article 355 regarding the term ‘internal disturbances’ and also includes nature-based disturbances. 

Under the report, it was stated that ‘Under Article 355, a whole range of action on the part of the Union is possible depending on the circumstances of the case, the nature, the timing and the gravity of the internal disturbance’. Therefore, the constitution also allows to declare a health emergency and can restrict the freedom of speech and expression of the citizens following the emergency imposed.

But it is a peculiar case, till now, the government has declared this pandemic as a health emergency and has only enforced the Epidemic Diseases Act. Then how is the government able to pass orders to restrict the right to protest and the right to assemble, guaranteed by the constitution? The logic is simple, emergencies like this unlock executive powers, it is the trust of the people and faith towards this democratic institution through which the government can pass such orders. But it is no ground to drastically restrict the freedom of speech and expression of the citizens. 

What’s at stake when the dissent is prohibited?

For a democracy to function efficiently, a voice of dissent is an essential component. It is, therefore, necessary to protest against what they perceive as a government overreach in imposing societal restriction or mishandling of any incident by the hands of the executives.

There are two principles on which the entire core of political rights are based upon. The following principles are:

1. It is the right of every citizen to freely elect their government and when they are dissatisfied with its performance, vote it out of power through a legitimate election. This power is granted to citizens under Article 326 of the Constitution. This is the only procedure through which the citizens can get rid of government. This is a peaceful way of transferring power and is one of the great strengths of a democracy.
2. The second principle is to politically participate not only during but also between elections. This principle is undertaken by actively participating in public discourse, debate and policy-making decisions. This participation is the right of the citizen as long as the discourse is conducted peacefully and any form of public action to challenge the government’s proposals or decisions is also constitutionally legitimate under this.

The role of protest and dissent is very crucial for the legitimacy of the constitutionally elected government. If one considers the role of protesters in giving voice to those who are marginalised or unable to demonstrate publicly themselves, such as asylum seekers in detention, the stakes are much higher for them. Therefore, before restraining the freedom of speech and expression, serious deliberation should be conducted.

Is Limiting the Right to Protest against the Constitution?

Till now, we are aware of what is at stake when the freedom of speech and expression is prohibited in a democratic state. It is essential to understand that the vitality of democracy is based on criticism. In many democratic countries, COVID-19 restrictions must be balanced with protections enshrined in human rights provisions. The right to freedom of speech and expression is an implied power which is guaranteed to every citizen of India.

To ascertain whether this implied freedom is being curtailed or not, there are several key points to examine.

• Does the restriction imposed harm the political discussion?
• Does the restriction imposed serve a legitimate purpose?
• Whether the restriction imposed is proportionate in its impact?

In times of pandemic like the coronavirus, to examine whether the restriction imposed is proportionate or not, alternative ways can be examined, whether there is an alternative practical or legislative means of achieving the purpose of the law. In this case, reducing the spread of a virus– that has a less burdensome effect on the implied freedom of political communication.

If these three questions are given regard and applied to the coronavirus restriction, it would be made quite clear that restrictions imposed do limit our freedom of speech and expression, but the restrictions imposed by the state also serve a legitimate purpose- to ensure the safety and well-being of the community and protection from the virus. 

However, the restrictions imposed by the state are not proportionate. The simple argument for this statement is the belief that there is a way to protect public health while simultaneously allowing a form of protest. Instead of modifying the restrictions and tweaking the freedom of speech and expression, the state has selected to go with a wholesale ban on protesting. 

The government could have adopted some changes to restrictions to allow protest as a permitted reason to leave home if protesters observe social distancing rules. This restriction imposed to exercise the freedom of speech and expression could also include limiting cars to members from the same household or to a maximum of two people in states where gatherings are severely restricted.

The way forward

The ongoing COVID-19 pandemic cannot be used to justify the suspension of the right to free speech and expression. People must be free to express disagreement with government decisions, even when it involves criticism of essential public health measures.

Upholding the constitutional rights need not be at odds with the government’s authority and obligation to protect public health and safety. The emergency decree that calls for social distancing, wearing of face covers or masks, and limits on the size of public assemblies can regulate how protests occur. However, regulations should be narrowly tailored to what is necessary to protect public health and cannot be so broad that they ban protest completely or so poorly drafted that they restrict peaceful demonstrations.

Most protesters have been exercising their constitutional rights without threatening the health of their fellow citizens: wearing masks and standing six-feet apart outside hospitals and other places of business to protest inadequate safety precautions; participating in car demonstrations, and launching digital campaigns. If the protestors adopt such appropriate measures to prevent the spread of the disease, then there in nor reasonable justification to restrict the exercise of the right of free speech and expression. 

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

The post The Right to Protest in times of Pandemic appeared first on iPleaders.