In this blog post, Nidhi Gupta, a student of National Law University, Assam writes about the amenability of the preamble in the constitution. This post looks into the enforceability of the preamble in the courts of law with respect to the ideas inscribed in the preamble. The post also highlights the various case laws that have helped decide various aspects of amenability of the preamble.  

 Introduction

The Preamble is an introductory statement, stating the aims and objectives of the constitution. Accordingly, the preamble to the Indian constitution spells out the basic philosophy contained in the body of the Indian Constitution.

The Preamble, in brief, explains the objectives of the Constitution in two ways: one, about the structure of the governance and the other, about the ideals to be achieved in independent India. It is because of this, the Preamble is considered to be the key of the Constitution. Preamble as such is widely accepted as the quintessence or soul and spirit of a constitution, as it embodies the fundamentals and the basic of the constitution as well as the vision and commitment of a newly liberated nation or people after its passing through the inevitable birth pangs of national independence from an oppressive and colonial regime.

Though preamble is the quintessence or soul and spirit of a constitution but it is not free from controversies. One of the controversies about the preamble is its amenability as to whether it possess any accountability in the Constitution of India or not.

The matter of amenability of the Preamble has a wider connotation which includes various aspects related to its accountability which are interrelated to each other. For instances whether Preamble is a part of the Constitution or not, whether or not a citizen of a nation to which he is subject to can challenge in the court of law if in case his rights have been infringed which were mentioned in the Preamble. And if not, then whether the Preamble is merely a preface or introduction piece of a page in the book of our Constitution. And also whether the Preamble is a part of the Constitution would depend on the resolution of the next question, which follows as a corollary- whether the Preamble can be amended. So, while analyzing the authority of Preamble we need to focus on these questions for establishing the responsibility of Preamble of Indian Constitution

Is the Preamble part of the Constitution or not?

Constitutions all over the world generally have a Preamble. The form, content and length of the Preamble differ from Constitution to Constitution. Irrespective of these differences, the Preamble generally sets the ideals and goals which the makers of the constitution intend to achieve through that constitution.^[1] Therefore, it is also regarded as “‘a key to open the mind of the makers’ of the Constitution which may show the general purposes for which they made several provisions in the Constitution”.^[2] Therefore, the preamble is a legitimate aid in the interpretation of the provisions of the Constitution. In this respect, subject to the clarification given below, the preamble of the Constitution stands on the same footing as the Preamble of an Act.^[3]

Under English authorities, it is well settled that preamble is an admissible aid to the construction. It can, therefore, be used as a legitimate aid in construing the enacting parts. As adumbrated by the English authorities, a preamble cannot be used to restrict or extend the enacting part of the statute when the language, object and scope of the Act are unambiguous and not in doubt. It means that the preamble of an Act cannot control, qualify or restrict the meaning and application of its enacting part if that part is explicit and unambiguous. But, if the enacting part is ambiguous, the Preamble can be used to explain and elucidate it. In Powell v. Kempton Park Racecourse Co. Ltd.^[4], Lord Halsbury LC said^:

Two propositions are quite clear: one that a preamble may afford useful light as to what the statute intends to reach; and another, that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment.

Our courts have followed the same proposition laid down by the English authorities in the use of preamble for interpretation of statutes. Our Supreme Court has stated in the same vein, in Tribhuban Prakash Nayyar v. Union of India that^[5] “where there is no ambiguity, it is hardly necessary to have resort to preamble”. The Supreme Court has extended this principle in interpreting constitutional provisions. In Berubari Union and Exchange of Enclaves, re^[6], the Supreme Court stated that “the preamble shows the general purposes behind the several provisions but, nevertheless, it is not a part of the Constitution and is never regarded as a source of any substantive power.” In re, Kerala Education Bill^[7], the Supreme Court held the same view. It stated that “the value of the preamble in respect of the interpretation of the constitution is the same as that of the preamble to any other Act.

The propositions are, however, subject to the clarification that the Preamble to an Act is not part of the Act, because it is not enacted and adopted by the enacting body in the same manner as the enacting provisions. The preamble of an Act is not introduced, discussed and passed in the enacting body – the legislature- like the enacted provisions – sections- of the Act. The Preamble of our Constitution was, however, enacted and adopted by the same procedure as the rest of the Constitution. It was introduced and discussed in the Constituent Assembly and passed by it like the rest of the provisions of the Constitution. The difference was not brought to the notice of the Supreme Court in Berubari Union and Exchange of Enclaves, re^[8], where it is observed that “the preamble is not part of the constitution”^[9]. Later when the constituent history of the preamble was brought to the notice of the court in Kesavananda Bharati v. State of Kerala^[10], it held that “the preamble of the constitution was part of the constitution and the observations to the contrary in Berubari Union^[11] case were not correct”. The Preamble is also part of the basic structure of the Constitution. In the case of SR Bommai v. Union of India^[12] and Union Government v. LIC of India^[13] also the Supreme Court reiterated that the Preamble is an integral part of the Constitution.

Amendment to the Preamble

The issue that whether the preamble to the constitution of India can be amended or not was raised before the Supreme Court in the famous case of Kesavananda Bharati v. State of Kerala.^[14] An interesting argument advanced in this case has been noted by Y.V. Chandrachud, J. that the Preamble may be a part of the Constitution but is not a provision of the Constitution and therefore, we cannot amend the Constitution so as to destroy the Preamble. Discarding the submissions Chandrachud, J. held that it was impossible to accept the contention that the Preamble is not a provision of the Constitution; it is a part of the Constitution and is not outside the reach of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. The Preamble records like a sunbeam certain glowing thoughts and concepts of history and the argument is that by its very nature it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history. Kesavananda Bharati case is a milestone and also a turning point in the constitutional history of India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is amendable under Article 368. He termed submission that the Fundamental Rights are an elaboration of the Preamble, as “an overstatement and half- truth”. Undoubtedly, the Constitution is intended to be a vehicle by which the goals set out are hoped to be reached. In the opinion of H.R. Khanna, J. the preamble is a part of the Constitution and walks before the Constitution”. S.D. Dwivedi, J. expressing his concurrence with the conclusion arrived at by A.N. Ray, J., held that the Preamble was a part of the Constitution because the heading “The Constitution of India” was placed above the Preamble. The Preamble cannot be a source of reading any inherent and implied limitations on the amending power. It is noteworthy that Justice Dwivedi has held the Preamble to be a part of the Constitution and then also referred to it as a provision of it. In view of the provisions contained in Article 368 of the Constitution, Justice Beg discarded the contention that a creature of the Constitution could not possibly possess the power to create a recreate the Constitution as Article 368 expressly provides for the expansion or diminution of the scope of the powers of amendment. The amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations was kept wide, elastic and expansible by the Constitution makers. In conclusion, Beg J. held that there was no limitation on the powers of constitutional amendment found in Article 368.

Kesavananda Bharati case is a milestone and also a turning point in the constitutional history of India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is amendable under Article 368. He termed submission that the Fundamental Rights are an elaboration of the Preamble, as “an overstatement and half- truth”. Undoubtedly, the Constitution is intended to be a vehicle by which the goals set out are hoped to be reached. In the opinion of H.R. Khanna, J. the preamble is a part of the Constitution and walks before the Constitution”. S.D. Dwivedi, J. expressing his concurrence with the conclusion arrived at by A.N. Ray, J., held that the Preamble was a part of the Constitution because the heading “The Constitution of India” was placed above the Preamble. The Preamble cannot be a source of reading any inherent and implied limitations on the amending power. It is noteworthy that Justice Dwivedi has held the Preamble to be a part of the Constitution and then also referred to it as a provision of it.

In view of the provisions contained in Article 368 of the Constitution, Justice Beg discarded the contention that a creature of the Constitution could not possibly possess the power to create a recreate the Constitution as Article 368 expressly provides for the expansion or diminution of the scope of the powers of amendment. The amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations was kept wide, elastic and expansible by the Constitution makers. In conclusion, Beg J. held that there was no limitation on the powers of constitutional amendment found in Article 368.

Thus, the majority of Kesavananda Bharati case bench has held that Preamble is the part of the constitution and it can be amended but, Parliament cannot amend the basic features of the preamble. The court observed, “The edifice of our constitution is based upon the basic element in the Preamble. If any of these elements are removed the structure will not survive and it will not be the same constitution and will not be able to maintain its identity.”

The preamble to the Indian constitution was amended by the 42nd Amendment Act, 1976 whereby the words Socialist, Secular, and Integrity were added to the preamble by the 42nd amendment Act, 1976, to ensure the economic justice and elimination of inequality in income and standard of life. Secularism implies equality of all religions and religious tolerance and does not identify any state religion. The word integrity ensures one of the major aims and objectives of the preamble ensuring the fraternity and unity of the state.

Enforceability of the Preamble in the Court of law

The Preamble of our constitution is part of the Constitution but is not enforceable by courts. The Preamble is non-Justifiable. This means that courts cannot pass orders against the government of India to implement the ideas in the Preamble. The courts can take recourse to the Preamble in order to explain and clarify other provisions of the constitution. This view was given by the Supreme Court in the Berubari Union Case^[15] and Kesavananda Bharati Case^[16] .

Conclusion

Thus, after analyzing various aspects and the various judgments and views in relation to the Preamble, we can derive from are that in active expressive term preamble has limited scope but passively it acts more authoritatively. Which means though the Preamble does not bestow power on legislation, it may only act as director but somewhere on the other it limits the power of legislation because the Constitution and other legislations should be read and interpreted in the light of the vision expressed in the preamble and not beyond or against the vision expressed in the preamble.

This article is reviewed by Pragya and published by Rebecca

Footnotes: 

^[1] ‘The preamble contains in a nutshell its ideals and its aspirations”, per Subba Rao CJ in Golak Nath v. State of Punjab, AIR 1967SC1643.

^[2] Berubari Union and Exchange of Enclaves,re, AIR 1960SC 845

^[3] V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow, 1990, pp.3, For details see,Maxwell, The Interpretation of Statutes (12^th Edn. 1969) pp. 6-9

^[4] 1899 AC 143, 153 (HL)

^[5] AIR 1970 SC 540; (1970)2 SCR 732

^[6] AIR 1960 SC 845; (1960)3 SCR 250

^[7] AIR 1958 SC 956

^[8] AIR 1960 SC 845.

^[9] Ibid.

^[10] (1973) 4 SCC 225; AIR 1973 SC 1461

^[11] AIR 1960 SC 845

^[12] (1994)3 SCC 1; AIR 1994 SC 1918

^[13] 1995

^[14] (1973) 4 SCC 225; AIR 1973 SC 1461

^[15] AIR 1960 SC 845; (1960)3 SCR 250

^[16] (1973) 4 SCC 225; AIR 1973 SC 1461

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In this blog post, Amoolya Narayan, an Associate at Economic Laws Practice (ELP) and a former student of West Bengal National University of Juridical Sciences, gives us a brief view of the Indian Evidence Act, 1872. Amoolya has included several exercises that test our understanding of the Act while helping us understand the nitty-gritty of the Act.

Why do we need Evidence Laws?

Finding proof is a challenging task. Criminals work hard to remove all traces of evidence, and some of it may come to light much after the case has been decided. If there are no laws governing evidence, anything may be passed off as such.

If there are no laws governing evidence, it becomes nearly impossible to know when a case has been definitively solved and closed. Therefore, there are strict rules that regulate the nature of evidence, the quality and the authenticity of the evidence.

 What role does Evidence play in the legal system?

Criminal charges lead to serious consequences for the accused. Therefore, in criminal cases, the level of proof required to resolve a case is very high. It is a strict requirement and the party alleging the crime must prove the claim beyond all reasonable doubt. Therefore, a case that goes to trial must be robust in its legal submissions and be able to prove the claim being made by the party.

The laws have declared that certain types of documents and certain articles of evidence have more weight than others, and would prove the claim convincingly. This can be done by producing relevant documents, or eye-witnesses to the offending incident or circumstantial evidence that increases the probability of the incident.

What is Proof? How does it differ from Evidence?

Anything that can make a person believe that an assertion is true or false. It is distinguishable from evidence such that proof is a broad term comprehending everything that may be adduced at a trial, whereas evidence is a narrow term describing certain types of proof that can be admitted at trial.

A case that goes to trial must be strong in its legal submission and satisfy the Court of the claims made by producing evidence. To do this, there are certain documents and objects that are taken into consideration while deciding on a matter of evidence. The Law of Evidence governs this aspect of criminal proceedings.

The level of proof in a criminal case is a strict requirement and the party alleging the crime must prove the claim beyond all reasonable doubt. This standard is examined by looking at whether a reasonable man would be convinced by the allegations levelled in the face of evidence to the contrary.

This can be done by producing relevant documents, or eye-witnesses to the offending incident or circumstantial evidence that increases the probability of the incident.

Try being a Judge!

In Agatha Christie’s Witness for the Prosecution: the accused was the last person to have been with the old woman who was murdered, and the accused’s wife testified that the accused had confessed to murdering the old woman and there was blood on his shirtsleeves. Do you think this amounts to proof beyond all reasonable doubt that he was the murderer?

The Act has provided definitions to certain words which play an important part in delineating the kind of evidence that may be put forth by either party.

Definitions include:

• Admissibility
• Fact
• Relevant
• Fact in Issue

Admissibility/Admission of Evidence

This lays down the boundaries of what may be admitted as evidence. The Courts consider the evidence gathered by the parties and decides which of them would be eligible for consideration.

An admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances provided for in the Act.

When any person makes an ‘admission’ of a statement in Court, they are stating that it is a fact to be noted for the record, and that it has some relevance to the case in issue.

Fact

We all know what a fact is, but many times in a case, disputes arises over the versions of facts that are put forward by the parties. The most important tool that the Court can use to reconstruct a case and deliver justice is a fact. The definition of a fact is provided in the Evidence Act. For this purpose, fact broadly includes anything in the real or abstract sense that is capable of being perceived by the senses.

For example, if it was proved that a man had lunch at a particular restaurant, then it is a fact that he was at the place before sundown.

This could mean that a mental condition of which any person is conscious could be defined as ‘Fact’. Under this definition, a person’s opinion or his reputation may be considered as ‘fact’ for purposes of the case.

For example, Ashok and Hasan were roommates for 4 years during college. If Ashok opined that Hasan was very disciplined and pious, it would be an opinion considered as fact for this purpose.

Of course, with such a broad definition, even the fact that the sun shines in the sky may be submitted to the court in furtherance of admissible evidence and therefore, there is a requirement that the facts be relevant to the case.

Relevant

The word relevant is used in the Act to mean both (i) admissible, and (ii) connected with the case. One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

If admissibility and nexus are the two criteria for relevance, a submission may be rejected for its irrelevance if

1. the connection between the main facts and the evidentiary facts is too remote, or if
2. the evidence is rendered superfluous due to an admission by the opposite party, or
3. it is rendered superfluous by the admissions of the parties.

For example, if a person’s house has been robbed, then the fact that his maid has an extra key is a relevant fact.

For example, if a Majid has been murdered, the fact that he received a death threat is a relevant fact.

Fact in Issue

A “fact in issue” forms the core of the case. It is the essence of the dispute at hand and it consists of all the facts, due to which or connected to which, there is disagreement between the parties.

It includes any fact from which, either by itself or in connection with another fact, there may be a disagreement about the existence, nature and extent of any right or liability.

For example, Niteshwar Prasad was brought before a Court on the charge of murder of Venkatesh. He pleaded that he committed it upon grave provocation because he had caught Venkatesh committing adultery with his wife. The Court held that determining whether adultery was committed was a fact in issue.

Levels of Proof

Courts require different levels of proof, depending on the merits of the case at hand. Sometimes a court:

1. May presume: Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.

For example, Courts may presume that any message that was sent from a telegraph office was the same message that reached whoever the message was intended for.

2. Shall presume: Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

For example, if certified copies of official documents have been produced in support of the party’s submission, the court shall presume the authenticity of these documents.

3. Conclusive proof: Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

For example, birth of a child during a couple’s marriage, shall be conclusive proof of the legitimacy of the child unless it can be shown that the couple did not have access to each other at the time that the child was conceived.

Once we know a little about the way criminal proceedings are conducted in court, we find out that the rules regarding evidence apply for the entire length of the proceedings, from the manner of gathering or extracting evidence, to the methods of construing evidence, to the procedure for submitting evidence.

Sources of Evidence

There are two main sources of evidence: a. Primary and b. Secondary. Primary evidence is direct evidence or original copies of a document, secondary evidence is copies of those documents, books of account, etc.

Primary evidence is given greater weight than secondary evidence in matters of deciding a case.

Primary Evidence

For example, when two parties enter into a contract, each copy of the contract is primary evidence against the party executing it.

For example, in a continuing contract, that is periodically renewed, each renewal contract is evidence of the contract itself.

Secondary Evidence

For example, a photograph of an original document is secondary proof of the document.

For example, an oral account of a document by a person who has herself seen it is secondary proof of the document.

Adversary Procedure

This refers to the manner in which court proceedings are conducted. In any adversary trial, the opposing sides present evidence, examine witnesses and conduct cross-examinations, each in an effort to produce information beneficial to its side of the case.

Lawyering skills would amount to a lot at this stage, and some exemplary lawyers often produce testimony that can lead to many ambiguities. What seemed absolute in direct testimony can raise doubts under cross-examination.

Under the adversary system, each side is responsible for conducting its own investigation. In criminal proceedings, the prosecution represents the people at large and has at its disposal the police department with its investigators and laboratories, while the defence must find its own investigative resources and finances.

Point to be noted, milord!

Best Evidence Rule: If there exists a dilemma about the quality of evidence to produce and the depth of investigation, there is a simple rule of evidence law which declares that, in order to prove something that is said or pictured in a piece of writing, recording it, or photographing the original must be provided unless the original is lost, destroyed, or otherwise unobtainable.

When judges decide a case, they are basically weighing the evidence from both sides and adding them up according to the values assigned to them, to arrive at a verdict of guilty or not guilty.

For instance, the prosecution is required to provide a lot of evidence to establish a case, while the defence merely has to show an ambiguity or a doubt that may destroy the case.

Typically, in a criminal case, the burden of proof on the prosecution is greater.

Burden of Proof: The burden of producing evidence means that, in general, the party that makes the claim also has the burden of producing the evidence to prove these facts. However, in some exceptional cases, there may be laws that say that the defendant has to prove that he did not perform the wrongful act. This is known as shifting the burden of proof.

For example, under Environmental Law, under the precautionary principle, the burden is on the hazardous industry to prove that it has not violated any environmental norms when it undertakes a project.

For example, under the Dowry Prohibition Law, if a woman who succumbed to burns under mysterious circumstances, had been married for less than 7 years and it can be proved that she was being harassed by her husband or in-laws for dowry, the burden of proving that dowry death was not committed falls on the husband and his family.

Circumstantial Evidence

When a case is reconstructed, it is not possible to count on finding exact proof of events that took place in the past. Many cases have been built and decided on the strength of circumstances surrounding the case.

Circumstantial evidence is not considered to be proof that something happened but it is often useful as a guide for further investigation.

For example, Ram and Shyam were always at loggerheads and constantly fighting. One day, Shyam was found murdered, with a knife in his hand which contained a few bloodstains. The fact that Ram had some gashes on his arms would be circumstantial evidence.

Circumstantial evidence is used in criminal courts to establish guilt or innocence through reasoning. They also play an important role in civil courts to establish or deny liability. However, it is not so much a type of evidence as it is a logical principle of deduction. Deduction is reasoning from general known principles to a specific proposition.

Circumstantial evidence is the basket of unrelated facts that, when considered together, can be used to infer a conclusion about something unknown. Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.

An example of circumstantial evidence is the behaviour of a person around the time of an alleged offence. If someone was charged with theft of money and was then seen on a shopping spree purchasing expensive items, the shopping spree might be regarded as circumstantial evidence of the individual’s guilt.

Point of Interest!

In two famous criminal cases that rocked the Courts, the Jessica Lall case and the Priyadarshini Mattoo case, the accused (Manu Sharma and Santosh Kumar, respectively) were convicted over the strength of the circumstantial evidence.

Confession

A confession made by an accused person is irrelevant as regards admissible evidence, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, by the person in authority. If the Court considers that the threat or inducement made is sufficient to make the accused person believe that he would gain any advantage or avoid any evil in reference to the proceeding against him.
Obtaining an honest confession is tricky business. And while it is highly important for an honest admission to be obtained, the accused possesses all his rights until he is convicted, and even then, he retains many rights. Therefore, in the interest of conducting a criminal proceeding properly, confessions must be got according to the law. For that, the confession has to be made when the authority has not induced him to make that confession through a threat or a promise, in relation to the trial at hand.

For example, when the accused was in police custody, the police threatened to harm his family by planting false charges on them if he did not confess. The accused gave a confession under coercion. This is not a valid confession.

EXAMINATION OF WITNESSES

In a typical criminal proceeding, when the police get notice of a crime, they appear on the crime scene and try to reconstruct the sequence of events that took place. For this, they need to make certain educated deductions, gather evidence and question any witnesses as to their version of the events.

The questioning of witnesses takes place during the trial and is conducted by the counsels for the parties. The version of events that a witness provides is known as a testimony, and it must be a very honest deposition.

Point to be noted, milord!

Giving a false deposition to the court amounts to an offence in itself, known as ‘perjury’ or ‘lying under oath’ and is punishable by law.

There may be witnesses for the prosecution and for the defence. The examination of a witness by the party who calls him is called his examination-in-chief, and when he is examined by the counsel for the opposing side is known as a cross-examination.
Witness examination must be done tactfully, and especially for the defence, it is a golden opportunity to uncover doubts and expose holes in the prosecution’s case. In a criminal proceeding, the prosecution’s job is harder than that of the defence, because the defence must merely cast doubts on the case that the prosecution has made. After one round of examination and cross-examination, the party that called the witness is allowed to re-examine his witness to set some records straight and clarify the final testimony.

Of course, the cross-examination and the re-examination are a prerogative of the parties and are not a necessary part of the procedure. The examination and cross – examination must relate to relevant facts but the cross –examination need not be confined to the facts to which the witness testified on his examination–in-Chief.

What is re-examination?

The re-examination may be done for a clarification or explanation of matters referred to in cross-examination. If new matter is introduced in re-examination, the adverse party may further cross-examine upon that matter. 

Leading Questions

Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

For example, Where did you leave the weapon after committing the murder?

Leading questions must not be asked in an examination-in-chief or in a re-examination if objected to by the adverse party – unless the counsel has the permission of the Court.

This provision of the law has been enshrined in most Bollywood film court scenes with a thunderous “I object, Your Honour!”

The Court shall permit leading questions as to matters which are considered as conclusively proved, or not requiring any evidence. And leading questions may be asked in cross- examination.

Dying Declaration

It essentially means a statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death.

Point of Interest

The legal maxim “nemo moriturus proesumitur mentiri” translates to “a man will not meet his maker with a lie in his mouth.”

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. This is the reason Court also insists that dying declaration should be of such a nature as to inspire the full confidence of the Court in its correctness.

It cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated.

For example, if a man declares to a doctor, just before his death, that he was pushed from the top floor of a building to his demise, it is a dying declaration.

For example, if a newly married bride confides in her mother that her in-laws are ill-treating her very badly and she dies under mysterious circumstances a few days later, it is not a dying declaration.

Expert evidence

When the Court requires the assistance of persons skilled in foreign law, science, art or in the analysis of handwriting to provide their expert opinion on any of those matters, their testimony is known as expert evidence.

For example, a forensic scientist providing his opinion on the time of death of the deceased would be expert evidence.

For example, a handwriting expert providing his opinion on the handwriting on a suicide note would amount to expert evidence.

Hearsay

Hearsay is an out of court statement, made by someone other than the witness testifying at trial. If a statement is a hearsay, the statement is inadmissible as evidence. However, there exist certain exceptions where the rule against hearsay does not apply.

Generally, the material submitted as evidence will be evaluated as to how material it is to the case, and how relevant it is to the facts at hand. The rules regarding hearsay evaluate the manner in which the evidence is offered. The purpose of the rule against hearsay is to ensure that the adverse party is afforded an opportunity to cross-examine the declarant to test whether his testimony is accurate.

There are some statements, that although hearsay, are deemed to be trustworthy and therefore admissible as exceptions to the hearsay rule. Some of these exceptions require a declarant to be unavailable.

A declarant is unavailable if he is exempted from testifying by a court ruling, if he:

1. refuses to testify despite a court ruling
2. lacks memory to testify
3. cannot testify due to death or illness
4. cannot attend the trial

For example, if a man who has witnessed a murder suffers a stroke and cannot speak anymore, anyone who has heard an account of the event from him will be able to submit hearsay evidence.

For example, if a woman whose daughter was raped has lost faith in the judicial system and does not want to be involved in the trial, the trial may be held with hearsay evidence being submitted on her behalf.

Oral testimony

Oral evidence must, in all cases, be direct, i.e., If the evidence is a fact that was seen, it must be given by the person who saw it. Similarly, if the evidence is of a fact that was heard or perceived in any other sense, it must be affirmed by the person who heard it or perceived it in any other sense or manner.

If it refers to opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

For example, if a woman sitting in her apartment heard a gunshot in the next room, she must give oral evidence in court that she heard it.

Witness

A witness is someone who has firsthand knowledge about a crime or significant event through their senses (e.g. seeing, hearing, smelling, touching), and can help certify important considerations to the crime or event. A witness who has seen the event first hand is known as an “eye-witness”. Witnesses are often called before a court of law to testify in trials.

The Code has set out certain parameters for a witness to be eligible to testify. Logically, there is a need to exclude those who cannot, whether due to age or health conditions, understand the questions posed to them while making their testimony.

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind or any other cause of the same kind.

For example, a man of 80 who is hard of hearing but has a reliable memory with regard to the events of which he has to provide his testimony will not be prevented from testifying, as he can read the questions put to him and answer accordingly.

For example, a woman who is at the final stages of her pregnancy who may go into labour very soon will not be prevented from testifying, although the court will consider her condition and postpone the date of her giving testimony.

For example, a boy of 14 with a rare medical condition that causes him to go into hysterics when addressed by strangers will be considered to be unable to understand the question put to them or to provide rational answers to the same, and hence prevented from testifying.

Privileged Communication

If every divulgence and confession may be taken as evidence, secrets would not be safe anymore. For professional purposes or other reasons, confidential information may have been divulged to certain individuals. In the absence of any protection by the Act, these individuals may have been obligated to give evidence using that information or based upon it, to attest to the truth or falsity of any allegation.

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached to professional communication between a legal adviser and the client. Section 126 and 128 mention circumstances under which the legal adviser can give evidence of such professional communication. Section 127 provides that interpreters, clerks or servants of the legal adviser are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the confidential communication which has taken place between him and his client.

Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to:

1. Disclose

• any communication made to him by or on behalf of his client, or
• any advice given by him to his client in the course and for the purpose of his employment;

2. To state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.

There are certain exceptions to this rule. This Section does not protect from disclosure:

1. any communication made in furtherance of any illegal purpose
2. any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement of the employment

Questions and Answers

Principle: The first rule is of Experts educational background. That means even the doctor is examined and is subjected to scrutiny and cross-examination. And if his opinion and observations contained in his statement are supported then the report can be looked at otherwise not. So even the examination of Doctor becomes essential.

If a person does not have the necessary educational background to qualify as a doctor, but still proffers an expert opinion as other people refer to him as an expert – will his opinion be counted as such?

(a) Yes, as long as he is aware of medical procedures to be able to offer an opinion.

(b) No, it is essential that the expert opinion be delivered by someone who is a qualified doctor.

(c) Yes, as long as the judge is convinced that he is an expert.

(d) None of the above.

Ans: (b). As stated in the principle, the qualification of a doctor to give the opinion carries as much weight as the opinion itself.

Principle: When the language used in a document is plain in itself but is not clear with reference to the facts, evidence may be given to clarify the reference made.

Mr Chatterjee had signed a deed pledging ‘his property in Kolkata’ to Mr Banerjee. It was found that he did not have property in Kolkata but in Howrah. Can Mr Chatterjee be allowed to provide more evidence to show that he was referring to the Howrah property?

(a) No, the words of a document should be read as to give effect to their natural meaning.

(b) Yes, because although the words make sense by themselves, the reference to the property in Kolkata is ambiguous as Mr Chatterjee does not have property in Kolkata.

(c) Since there is no ambiguity in the statement, there need not be any additional clarification provided.

(d) Yes, because his property in Howrah does not have the same description as his property in Kolkata.

Ans: (b). Following from the principle, if the document brings out an uncertainty with reference to the facts of the case, additional evidence may be provided to clarify the facts with reference to the case.

Principle: When the Court ‘may’ presume a certain fact, it is open for rebuttal by either of the parties by providing evidence as it is only a provisional acceptance of the statements.

Upon examination of witnesses and the circumstantial evidence, the Court provisionally presumed that the accused was present at the crime scene. However, after the results of the forensic tests came back, they were negative and thus, brought the presumption of the Court under threat. Can the accused give rebuttal evidence using the forensic results?

(a) No, as circumstantial evidence carries more weight than forensic evidence.

(b) Yes, as forensic evidence carries more weight than circumstantial evidence.

(c) Yes, as the presumption could be rebutted by providing convincing evidence of the opposing view.

(d) No, as any presumption of the Court will be binding upon the parties.

Ans: (c)

Principle: Judgements in rem are those that are pronounced as regards the legal character of a person or certain property and the entitlement of such person or to such property shall be against the rest of the world, and these shall be taken as conclusive evidence as to the legal status of the properties.

In which of the following cases would the judgement be taken as conclusive evidence?

(a) Probate on a Will is conclusive evidence of the title of the executors and the validity of the Will.

(b) A gets a decree against B for a right of easement over a particular piece of land.

(c) A judgement on possession of property that was never enforced as the property was acquired by the State.

(d) S gets a decree of judicial separation from T and is now living separately.

Ans: (a) and (d). (a) discusses the legal status of certain properties and as to the legal character of the executors of the Will. (b) is as to A’s right of easement which is only against B. (c) is a judgement that does not carry any weight. (d) is as to the legal character of S and T.

In the following two questions, there will be an assertion and a reason provided. You have to decide whether the assertion is right, and then decide whether the reason provided for it is valid.

Assertion: Hearsay information from a person who is now dead is not admissible as evidence, except if the information relates to the circumstances of his death.

Reason: If a person provides clear and accurate information as to the circumstances of his death, at the time of his death, it is admissible  as conclusive evidence of dying declaration.

(a) Both assertion and reason are right, but the assertion is not an effect of the reason.

(b) The assertion is not valid, but the reason provided is a valid statement.

(c) The assertion and reason are both false and invalid.

(d) The assertion and reason are both right, and the assertion is a natural consequence of the reason.

Ans: (d). One of the exceptions to the hearsay rule is the law on dying declarations. A declaration by a person on his death bed as to the nature and circumstances of his death is taken to be conclusive evidence because of a rule of evidence that states that a person does not meet his maker with a lie in his mouth.

Assertion: Electronic evidence is now acceptable on the same terms as documentary evidence.

Reasoning: Documentary evidence can amount to either primary or secondary evidence.

(a) Both assertion and reason are right, but the assertion is not an effect of the reason.

(b) The assertion is not valid, but the reason provided is a valid statement.

(c) The assertion and reason are both false and invalid.

(d) The assertion and reason are both right, and the assertion is a natural consequence of the reason.

Ans: (a). Through some amendments to the Evidence Act, electronic evidence is being treated on par with documentary evidence, in terms of admissibility, as long as the digital signature and authorisation are present.

Birth of a child during marriage leads to the presumption of the child’s legitimacy. Vidya and Krishna had a son after they were married, which proves that Vidya did not have extra-marital affairs. The logical structure of the argument above is most similar to which one of the following?

(a) If Lucy were in the school, I would not be able to call her. Therefore, the fact that I can call her shows that she is not in school.

(b) If Bhatt were rich, he would not spend his vacation in India. Therefore, his spending his vacation in the Europe shows that he is rich.

(c) If Sita were sociable, she would not avoid her friends. Therefore, the fact that she is sociable shows that she does not avoid her friends.

(d) None of the above.

Ans: (b). (a) and (c) both presume what they set out to prove. The logical structure and the point of fallacy is the same in both the question and (b), as both situations presume that only one factor is needed to determine a certain fact.

Which of the following fall under the head of facts that need not be proved i.e., (a) can be judicially noticed (b) have been admitted?

(a) The plaintiff’s accusation which the defendant first admits and then denies.

(b) The fact that a certain area has been attacked by terrorists and requires utmost attention.

(c) The accusation that a helpless woman was gang raped by her drunk acquaintances.

Ans: Since (a) consists of an admission which is subsequently redacted, and (c) requires proof beyond reasonable doubt to convict the alleged rapists, only (b) remains a fact that does not need to be proved because the Court can take judicial notice of the apparent state of affairs.

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In this blog post, Abhiraj Thakur, student NALSAR University of Law writes about ambush marketing. While aiming to explain about Ambush Marketing, Abhiraj also describes the different laws that help protect consumers against the same.  

Every day we see numerous advertisements on television depicting the speciality and characteristics of the product concerned, claiming it to be the one that you should buy. New goods and services are introduced in the market every day, but a hard fact is that no customer buys the good just by seeing it.[1] This is where marketing assumes the place of prime importance. Put in simple terms, Marketing encompasses a wide range of activities from promotion and pricing to the very conception of the good. It is a cautiously planned and skill based activity to sell ones’ product or service.

All most all companies today have active marketing teams that perform various activities to sell the concerned product or service so as to make profits and achieve organisational objectives. Marketing means having the know-how to sell your product. Today, the corporate world is dominated by aggressive marketing where companies go to every possible limit while promoting their product. Many a time these measures lead to practices that become unfair for the other companies. Ambush Marketing is one such unfair practice in the arena of marketing.[2]

First time used by marking strategist Jerry Welsh in 1984, Ambush Marketing refers to the practice of unfair utilisation of an event’s publicity to garner marketing advantage over competitors.[3]

When a company associates itself with a well-known event without contributing financially to it, it is said to be marketing its product in ambush or just ‘ambushing’. To gain marketing advantage is one of the obvious reasons to ambush marketing, some other reasons are:

Ensuring Maximum returns from Marketing: Aggressive marketing strategies in the corporate world are often accompanied by the huge outflow of money which raises the pressure to perform and achieve profits. Often ambush marketing is practised as a measure to gain maximum benefits in a short span of time.

Raising Brand Equity: Although unscrupulously, associating itself with a world known event often results in the rise of the brand value of the product. The impact of association with such events is direct and effective, it appeals to the minds of the audiences and further help in garnering potential customers.[4]

Types of Ambush Marketing

It is broadly classified into two categories, Direct and Indirect Ambush marketing. There have been numerous instances of both types ambush marketing in the past.

Direct Ambush Marketing

It is considered the most serious form of ambushing as it directly infringes the exclusive rights of usage of the aggrieved party. It is unauthorised use of symbols or other marketing elements by another company. The most well-known incidents of Direct Ambush marketing was the case of American express.[5] The company made unauthorised usage of Olympic logo during the 1984 summer Olympics to promote its credit card. This was done to gain an advantage over rival Visa Inc. Similar incidents happened with sporting events such FIFA world cup and US open in the decade of 1980s popularly referred to as ‘credit card wars‘.[6]

Indirect Ambush Marketing

It can be done by two ways. Being onsite or by use of media. Onsite ambushing is done at the very site of the event concerned to be utilised for publicity. The case of Samsung Electronics v State of Atlanta dealt with onsite ambushing. The company Samsung electronics during the 1996 Atlanta Olympics projected its logo on CN Tower. As a result, the logo of the company loomed over the Olympic stadium. The company was alleged for ambush marketing and held liable for the same.

Ambush marketing by media is the most common form and is widely seen throughout the world. It is characterised by sponsoring the event and exploiting the publicity of it to as much as possible, often to unbound limits so as to reach a greater number of customers. A well-known instance is of McDonald and Wendy.[7] McDonalds became the sponsor for Olympics whereas Wendy was just ABC corporation’s (company responsible for broadcasting games in the US) sponsor of the game. To gain an unfair advantage over McDonalds, Wendy started using Olympic logo on its plates, bags and other items in all its restaurants. This was considered ambush marketing. Some of the well-known consequences of ambush marketing include decline in the commercial value of the event, adverse impact on the funding for the event and the most intriguing is that it creates an unhealthy competitive environment in the market

Legal Recourse to Ambush Marketing

Ambushing is considered unethical and unfair in the world market and so companies often resort to legal means when they feel ambushed. In Indian context, one can get remedies under different laws once proved victim of ambush marketing.

Violation of Intellectual Property Rights

Trademarks and Copyrights

The TRIPS agreement also talked of curbing unfair market practices. The trademark law in India stands in consonance with TRIPS. Section 2(b) of the Trademarks Act, 1999 describes trademark as a mark capable of distinguishing a good or a service from other. The companies can register their logos as a trademark and have an exclusive right of usage of it. So when another party uses it without authorization, they can claim remedy under the infringement of the trademark.

Once an original work gets a copyright, a wide range of rights flow from it. Original works of a company can be copyrighted and so usage for marketing by other entities can be prevented. The greatest limitation of copyright in cases of ambush marketing was iterated by Supreme court of India in the case of Castrol Ltd. v. V.O. Muralidhar Reddy. While ambush marketing, the company alleged of it just associates itself with the aggrieved company while to get the remedy law requires reproduction of the copyrighted work which in most cases is absent.

Remedy in Tort Law

The most effective legal recourse for ambush marketing is considered to be in the arena of tort law. The tort of ‘passing off’ often comes to the rescue of companies being host to ambush marketing. Although not defined under the trademarks act, it is referred to in Section 27(2) of the Act.

This section lays down the right of action against tort of passing off. For a plaintiff to succeed in the action of passing off, following essentials need to be fulfilled:

• Firstly, the plaintiff had goodwill.
• Secondly, the defendant made such a representation that had the potential to deceive/confuse the public.
• Lastly, the misrepresentation has damaged the goodwill of the plaintiff by creating a confusion/deception in the market.

In the case of National Hockey League et al v. Pepsi Cola Ltd, the defendants Pepsi Cola promoted their product in such a way that it created confusion in the minds of common people that their product is endorsed by the plaintiffs and there exists a business relationship between the two which harmed the goodwill of the plaintiffs. The defendants were held liable for ambush marketing and made to pay compensation for the tort of ‘Passing-off’. Another case of same nature was of H.P Bulmer Ltd v J Bollinger.

A majority of cases dealing with ambush marketing are settled in light of tort law however some issues still exist that need to be sorted out:

Proving confusion in Market: The Element of Intent

One of the essentials to get a remedy in tort for ambush marketing is that there must be a confusion prevailing in the market. In many cases over the years, it is observed that it often becomes difficult for the claimant to establish such confusion. The case of ICC Development (International) Ltd. v. Arvee Enterprises and Anr. dealt with the issue of establishing confusion in the market. The court highlighted a significant difference between passing-off and ambush marketing. In former the court considered the element of deceit whereas in latter there is nothing. The court remarked that an ambush marketer does not seek to suggest any connection with the event but just gives his own brand, a larger public exposure, attached to the event, without any authorization of the event organiser. However, in such cases, there is no deception, therefore, the defendants’ conduct cannot be categorised as wrongful or against public interest and so they were not held liable.

In today’s era dominated by consumerism and a free market, it becomes very necessary to ensure free and fair competition. Unethical practices such as ambush marketing are an impediment to the notion of fair competition. These practices by disrupting the market harm the victim company as well the consumers and so need to be curbed at the earliest. Having a specific legislation against ambush marketing must be called for.  As Economist N. Gregory Mankiw puts in his book[8], ‘free and fair market is as necessary for a greater public good as water is to human body’.

[1] Rise of the pseudo-sponsors: A history of ambush marketing”. SportPro, 3 January 2015, Last accessed 23rd may 2016.

[2] Ambushed!”. The Wall Street Journal. 25 January 2010. Retrieved 7 October 2014.

[3] http://economictimes.indiatimes.com/definition/ambush-marketing

[4] “A Torchbearer’s Commercial Coup”. The Wall Street Journal. Retrieved 18 August 2012.

[5] “Visa, American Express Play Negative-ad Card”. Chicago Tribune. 30 October 1994. Retrieved 6 January 2015.

[6] Credit Card War Erupts at Olympics: Advertising: IOC accuses American Express Co. of ‘ambush marketing’ in campaign aimed at rival Visa.”. Reuters. 19 February 1994

[7] http://www.nytimes.com/1992/02/03/business/the-media-business-advertising-companies-go-for-the-gold-using-ambush-marketing.html

[8] N. Gregory Mankiw, Principles of Economics, Harvard University, USA.

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In this blog post, Abhiraj Thakur, a 1st-year student of NALSAR University of Law writes about the legality of ad blocking software. This software is widely used by internet users all over the world today as they find it convenient to block the ads which hamper the speed of the network. At the same time, the websites that are blocked claim it to be the infringement of their copyright. The legality of these ad blocking software has been subject to much debate since the internet boom.

When we open a web page, we sometimes come across color snippets of different sizes appearing or to say popping up on the screen. These snippets invariably show us something to buy or subscribe or for that matter they are advertisements. However, sometimes we also find some pages suddenly opening up by them containing ads, which in turn slows down the loading of the page we want and so we are annoyed, and we block these ads using ad blocking software available. This routine process of blocking or staying away from promotions by viewers is not another new thing; it is in pervasiveness since TV reached homes of people. This process of people voluntarily opting to avoid television advertisements is popularly termed as “Commercial Skipping”.

Legality of Commercial Skipping

While India has still not seen any cases similarly as Commercial Skipping is concerned, the courts in the United States have had various chances to manage such cases including promoters and individuals required in the matter of creating advances which give the viewers the choice, or the power to avoid advertisements.

US courts for the first time tussled with the issue of business hindering on account of Sony versus Universal Studios Inc.[1] The VCR(Video Cassette Recorder) created by Sony gave an alternative to the clients to record the TV program and avoid the promotions amid playback. TV and film studios attempted to battle that Sony must be held contributory at risk for copyright encroachment for assembling video tape recorders, which, by the goodness of empowering clients to make video tape recordings of TV projects, would likewise empower them to skirt the plugs amid playback. These contentions were however dismisses by The Government Court, which held that Sony couldn’t be held contributory at risk for an element of the VCR that was assistant to its honest to goodness target that is the capacity to participate in time moving and record a TV program with the end goal of watching it at a later date.

Another case is of Replay TV.[2] Replay TV had arrangements to incorporate into its DVR, a component called Commercial Advance, which would permit viewers to naturally skip advertisements. It was this element that was the premise of a claim against Replay TV, conveyed by media organizations trying to challenge the lawfulness of Commercial Skipping. It should be seen that the unmistakable component of Replay TV’s Commercial Advance development was that it conveyed on the DVR to delete advertisements consequently while recording, so that amid playback, a viewer would not see any advancements at all amid a business break.

The Court in Sony surrendered that clients may quick forward through advertisements amid playback and that settling on such a decision was not unlawful in that it didn’t adjust or abuse the copyright of the project as it was being telecasted. The premise of the contention against ReplayTV depended on a presumption made by the Sony Court: that methodically quick advance through ads was ‘excessively dull a movement, making it impossible to genuinely represent a risk.’Here, the offended parties contended that the Commercial Advance element made Commercial Skipping exponentially simpler and along these lines ought to be viewed as an encroaching action. They encourage contended that Replay TV’s elements assault the major financial underpinnings of free TV and essential non-show administrations. Promoters won’t pay to have their commercials put inside TV programming conveyed to viewers when the notices will be undetectable to those viewers.

An examination of these cases makes one thing clear; promoters don’t have an issue when viewers of their volition skip advertisements, and regardless of that fact every one of us does it at our homes constantly. A large number of us intentionally arrange our exercises, when our most loved show is on air, to do them amid the promotion breaks. So where precisely does the issue lie for the publicists? The issue for the promoters lies in the accessibility of such an innovation at the transfer of the viewers which empower them to totally remove the notices from their review experience.

Copyright Encroachment of a Site

With the web now turning into the significant wellspring of amusement and data for the general population everywhere, sponsors will undoubtedly run to the web to publicize their item and administrations. The issue on the internet begins with the accessibility of innovation which totally disposes of ads from their web searching background. The accessibility of promotion blocking programming which gives the web clients the fundamental apparatus to maintain a strategic distance from notices in-all is frequently seen as an encroachment of the copyright of the website admin.

This was the premise for cases which as of late happened in Germany against Eyeo GmBh (The organization that has made the most renowned advertisement blocking programming Ad Block Plus), alongside having some case under the German Competition Law also. As a major aspect of the decision, the Hamburg region court rejected the daily paper’s contention that Ad Block Plus was meddling in an agreement peruses were going into with the daily paper that included tolerating advertisements and held Ad hindering in-all to be legitimate. The German case conveys light to the issue the significance of Commercial Skipping in the web age, and this makes for an intriguing civil argument in the matter of how might Commercial Skipping would be dealt with under the Indian Copyright Act, 1957.

In any case, before diving into the Indian framework let us first observe how the Commercial Skipping is taken a stand at in the copyright administration of US.

U.S. Position

The present contention against Commercial Skipping in the US depends on a hypothesis of copyright encroachment.

If there should be an occurrence of WGN Continental Broadcasting Co. v. Joined Video, Inc.,[3] the court gave the premise to Commercial Skipping as an infringement of copyright:

“A copyright licensee who ‘makes an unapproved utilization of the basic work by distributed it in a truncated form’ is an infringer-any ‘unapproved altering of the fundamental work, if demonstrated, would constitute an encroachment of the copyright in that work like whatever other utilization of a work that surpassed the permit allowed by the proprietor of the copyright.”

Here, the sites influenced by Ad Block Plus would claim the individual client is making an unapproved subsidiary when he utilizes a promotion blocking programming to expel notices from the format of the site. To demonstrate contributory copyright encroachment, an offended party would need to encourage demonstrate the respondent’s (Ad Block Plus’) conduct fulfills the accompanying three components:

• support in the encroachment,
• goal to actuate to encroach,
• and a creation of the method for encroachment.

Fulfilling these components would not be troublesome; fulfilling the main component would just require the offended parties to recognize a direct infringer who utilized Ad Block Plus to thwart advertisements from showing up on the Web web page. Finding a person who got to the Web website being referred to while using Ad Block Plus ought not to be excessively hard, given the quantity of individuals who have apparently downloaded and introduced Ad Block Plus. Next, the offended party must demonstrate that the makers of Ad Block Plus had learned that its item was being utilized to encroach upon another’s copyright. If Ad Block Plus had a critical non-encroaching utilize, an offended party would need to demonstrate that not just did Ad Block Plus have helpful information that its clients were using the item for an encroaching reason, yet that it incited people to use its item to encroach. Nonetheless, because the sole motivation behind Ad Block Plus is to piece ads from sites, consequently making an unapproved subsidiary, the Court in Grokster10 insinuated that an appearing of actuation may not be vital, and verification of valuable learning would be adequate. Given the notoriety of Ad block, Plus-it was incorporated into PC World’s 100 Best Products of 2007 Show; it is exceedingly improbable that the maker is ignorant that there are individuals who are utilizing the project to piece promotions.

Indian Position

In India, the position is somewhat diverse. The sites when all is said in done are not conceded any assurance but rather once the creativity basis is fulfilled it is allowed insurance as an “artistic work.” Sites are conceded security as indicated by the substance which they have on their site, henceforth, for each of the substance they need to record separate copyright application.

It can further be said that the promotions make a part of the site and are introduced in the structure chosen by the Registrant of the site to the client. Any change, deduction or adjustment in the site by hindering the notices might be considered as an encroachment of the result of the site proprietor/registrant rights over its site.

In this manner, Commercial Skipping may be equivalent to encroachment in India. The Plaintiff will need to build up the commitment of Ad Block Plus in the encroachment as the essential infringer might be the client who energetically utilized the components of the Ad Block Plus as under different purviews.

However there being a lack of judicial precedents in India about commercial skipping it would be wrong to make a premature assumption about the interpretation by Indian judiciary of the provisions of laws. Ad blocking is on a constant rise in India as well. The latest estimates stating the number of users to be between 2-4 million,[4] thus it becomes pertinent to look forward how the Indian judiciary will deal with the issue of the legality of Ad blocking.

Footnotes

[1] 464 U.S. 417 (1984)

[2] https://freeexpression.in/2016/03/legality-of-ad-block-software-in-websites/

[3] 693 F.2d 622 (1982)

[4] http://www.livemint.com/Consumer/5bcehCufiNvivo5PZpdRHP/The-rise-of-ad-blocking-software-in-India.html

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In this blog post, Dhiren Sehgal, a recent graduate of Jindal Global Law School and currently a student of the Diploma in Entrepreneurship Administration and Business Laws course by National University of Juridical Sciences (NUJS), Kolkata and iPleaders, analyzes the legal and conceptual aspects of Anti-Dumping Laws with respect to India. 

Introduction

As per the General Agreement on Tariffs and Trade (GATT), a multilateral agreement regulating international trade and commerce, which lays down the guidelines and principles to be followed by the member states to the agreement. In 1995, the World Trade Organization replaced the General Agreement on Tariffs and Trade (GATT) and had about 162 signatories as member nation states as of November 2015.

These principles are to be adhered to when it comes to imposing of anti-dumping duties and safeguard measures. This general agreement on tariffs and trade guidelines and principles have been incorporated into the national legislation of the member countries of the world trade organization.

Now, dumping takes place when a product is sold at a relatively lower price by an exporter when compared to the exporter’s domestic market. However, the practice of dumping isn’t illegal or anti-competitive on the face of it, as the prices set by producers to sell do vary in different markets depending on the situations involving different demand and supply conditions. This sort of practice can be deemed anti-competitive or illegal when the discriminatory pricing leads to causing substantial or material injury or damage to the domestic market where the goods are being imported. In cases where a substantial or a material injury to the domestic market can be foreseen or has in actuality caused the injury then the concerned authority can initiate its investigative procedures and eventually impose anti-dumping duties.

An example of this would be, the Anti-dumping Duty imposed by the Indian government in order to protect the domestic iron and steel industries of India, the government has imposed an Anti-dumping Duty for six months on steel pipes, tubes and other imports from the country. The Anti-dumping Duty is reported to be between $961.33 – $1,610.67.

The application was moved to the directorate general for Anti-dumping and Allied Duties (DGAD) for the imposition by Indian Seamless Metal Tubes Ltd. And Maharashtra Seamless.

Legal Framework (India)  

The established legal framework for dumping activities has been laid down under the Customs Tariff Act, 1975. This act was amended in the year 1995 to incorporate the principles and guidelines established in the GATT, in the local laws of the nation. This amendment led to the inclusion of certain anti-dumping rules involving identifying, assessing and collecting the appropriate anti-dumping duty on dumped articles into the country and also for the determination of the injury caused to the domestic market. The customs tariff rules framed in 1995 form the basis for investigative procedures for anti-dumping activities and for levying anti-dumping duties on dumped articles. These laws have been incorporated in furtherance to Article VI of the GATT, 1994.

Section 9A of the Customs Tariff Act, 1975 amended in 1995 talks about instances in which the central government of India may impose antidumping duty after inquiring and determining the export price and the normal/original value of the article and the margin of dumping on cases to case basis. The central government of India under this section makes rules pertaining to identifying the articles to be held liable for any dumping duty and also shall provide for the manner for determination of the export price, margin if dumping and the normal value of the article in contention.

Section 9b of the Act talks about the Central Government of India levying dumping duty or any additional duty only in cases of a material or substantial damage to the domestic market. Material damage can be analyzed by the concerned authority in two ways by analyzing the effect of the volume of dumped articles imported into the country, which includes analyzing the influx of dumped imports in comparison with the production and consumption in India and how this import is going to affect the domestic market of India. Then comes the analysis of the effect of dumped imports on the prices of ‘like articles’ in the Indian market, this analysis includes analyzing the extent to which dumping is causing a decrease in prices in the Indian market or if in a way is preventing price increase which would’ve been possible otherwise. An example of when a material damage is considered would be China’s dumping of steel products in India as it caused material and substantial retardation of the domestic industry of India. 

Section 9c of the Act revolves around appealing against the order of determination of dumping in relation to import of any article shall be directed to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962. An appeal shall be accompanied by a fee of fifteen thousand rupees, and an appeal has to be filed within ninety days of the date of the order. An appeal may be entertained after the expiry of the 90-day period if it can be proved that the appellant was obstructed by sufficient cause from filing the appeal in time.

The Ministry of Commerce is the deemed authority for investigations and recommendations, and the imposition and collection of the amount of duty to be paid will be headed by the Ministry of Finance respectively.

How do You Determine Dumping?

It occurs when the export price of any article which is being imported to India is less than the normal/original value of the article in the exporting nation.

What is Normal Value?

It is the price at which any article or good are sold, under ordinary trade circumstances, in the domestic market of the exporter’s territory or country. The act provides us with two methods for determining the normal value of any product, which are –

• By comparing the export price to some other appropriate country. In this case, an appropriate country could be any country the goods are being exported to simultaneously by the exporter. For example, in the dumping case of China, China was exporting/dumping steel products in India and to the United Kingdom simultaneously. In this case, the United Kingdom would be the other appropriate country to tally the export prices with.
• By taking the production cost in the country of origin and adding adequate costs of selling for profit purposes.

What Is an Export Price and How Do You Construct One in the Absence of an Export Price?

The price of the goods being imported into India paid for the articles imported by the first buyer in India is the export price of the article.

In cases where the export price is impossible to determine or isn’t reliable because of some agreement between the exporter and the importer, then in this scenario, the export price is evaluated on the basis of the price at which the imported article is resold to a buyer. In cases where the article isn’t resold in a similar condition as it was imported in, then the export price will be determined on a reasonable and logical basis.

What is Margin of Dumping?

It refers to the difference between the normal value of the product in the country it is being exported from and the export price of the product. This margin of dumping is normally calculated on the basis of comparing the average normal value with the average of prices of export transactions; another way is comparing the normal value and the export price on a transaction to transaction basis.

There are multiple factors affecting this comparison of the normal value and the export price, the prices of export value and the normal value of the goods have to be put on the same pedestal and then compared which is normally at the ex-factory stage. Factors such as the physical aspects, levels of trade, the quantity being traded, taxation regimes and the terms of sale, in way that affects price comparison of the normal value and the export price.

The cause of action when it comes to anti-dumping can only arise if there’s a market for the articles being dumped into India, there has to be an Indian industry producing ‘like article’ when being put into comparison with the article being dumped.

Material Injury to the Domestic Industry

To have a cause of action against the alleged dumping of articles into India, one of the key requisites that need to be established is ‘material industry to the domestic industry.’ The injury can’t be based or anticipated on threats, statements, and allegations. There has to be concrete evidence supporting and proving material or substantial injury. This material injury can be analyzed by the concerned authority in two ways by analyzing the effect of the volume of dumped articles imported into the country, which includes analyzing the influx of dumped imports in comparison with the production and consumption in India and how this import is going to affect the domestic market of India.

Then comes the analysis of the effect of dumped imports on the prices of ‘like articles’ in the Indian market, this analysis includes analyzing the extent to which dumping is causing a decrease in prices in the Indian market or if in a way is preventing price increase which would’ve been possible otherwise.

Competency to File an Application

On receiving a written application from the domestic industry players, a dumping investigation can be initiated. However, a valid application has two prerequisite conditions which are to be fulfilled-

• The domestic market producers filing the application should be holding at least 25% of the total production of the said article in the Indian domestic industry.
• The domestic producers in express support of the application must account for more than 50% of the total production capacity of the said product by those supporting and those opposing the application for investigation.

What Constitutes a Domestic Industry?

Includes the totality of Indian producers of the ‘like article’ in question, or it can be deemed as those producers who are collectively producing a major chunk of the total output being produced in India. Importers of the like articles or those in relation to the exporters and importers of the like article are not deemed a part of the domestic industry.

Relief Recourses for the Aggrieved Industry

• Anti-dumping Duties: it is a protectionist measure in the form of duty or tariff that is imposed by the domestic governments on foreign imports, to protect the domestic industry in question. This can be imposed on ad valorem basis which basically means ‘to the value.’
• Lesser Duty: according to the GATT guidelines, duties more than the margin of dumping can’t be imposed. According to the Indian laws, the designated authority has to restrict the duty to the lower out of the dumping margin and the injury margin. The injury margin is basically the difference between the fair selling price of the domestic industry and the landed cost of the product in contention.

In cases where any exporter’s margin of dumping is below 2% of the export price, will be excluded from the anti-dumping duties, even when the injury and the causal link has been known. Also, the investigations against the exporter country shall be terminated in cases where the dumped imports are less than 3% of the total imports, provided that the sum of imports from all those countries, who are individually accountable for less than 3% of the total imports, should not be more than 7% cumulatively. This is known as the De Minimis margins.

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An anonymous NALSAR student writes about NALSAR as an University. How is it to study in this University regarded as one of the best?

NALSAR Academic Block

College Environment and infrastructure

Friendly relations between juniors and seniors are hallmark of almost all the NLUs, but at NALSAR its quite at another level as its a small campus, away from the city almost inside a forest area and people in the campus are your only friends, family and social circle.

People here at NALSAR are not just occupied with books. There is a strong sporting culture that is imbibed since the inception of our journey in NALSAR. Precisely the reason why we have an excellent infrastructure which furthers our interest for sports.

There is proper cricket-cum football stadium in the campus itself. The stadium has a capacity of more than 1000 spectators. Apart from that we have two tennis clay courts, 2 basketball courts, a gym for the girls as well as the boys.

Size dominates everything in NALSAR. The campus is really massive. We have a 55-acre campus, the biggest among all the National Law Schools. The hostel space crunch that plagues other NLUs is never an issue here at NALSAR. We always have surplus rooms (around 10-15), though we get single occupancy only from the third year!

Food is never an issue either. The Mess Food is far too great as per the mess standards, and those who have a fetish for South Indian food will never miss the home food.

There is a widespread misconception that NALSAR lacks good faculty. However, I beg to differ. It goes like this. I think only those persons have the locus stand to speak about the faculty standards, who have studied in both the Universities they are comparing. If I’m from NALSAR, it’s sheer stupidity to demean the faculty of NLS and preach that they lack good faculty, as compared to NALSAR’s, because I’ve NEVER been taught by them.

Prof. Vijender Kumar is the authority in Family Law in this country. He has edited Mayne’s version of Hindu Law, which has been cited in scores of SC’s judgment. He has written dozens of books in the family law. Prof Amita Dhanda is an international authority in disability jurisprudence. She was a part of the UN committee appointed to draft and formulate guidelines for disable people. And both are fantastic teachers. MOST of the teachers in NALSAR are really good, barring a few exceptions, who I must admit are really bad.

NALSAR certainly has demerits as well.

The foremost being its location, which is a bit far from the city. This makes the curfew timing a bit strict for ensuring security and safety. However, most of us believe that it’s a blessing a disguise for us. Being there in the same place, in a way, coerces us to study.

Mooting at NALSAR

Research is what drives people in NALSAR. The fact that we have been winning MPL for the two consecutive years bears testimony of the same as well. Though this year’s dismal performance is accounted for some internal matter, and we are pretty much sure of putting up a great show next year too.

I think this sums up all. Though I wrote in a haphazard manner, I hope it helps. Moreover, I wanted you to write on your own, because as I said earlier, we’re not allowed to vent out anything about our college outside the college.

The post Know this Law School: NALSAR appeared first on iPleaders.

In this blog post, Sunidhi, a student of the Rajiv Gandhi National University of Law, Patiala writes about Armed Forces Special Powers Act (AFSPA), 1958. The blog post compares AFSPA with law prevalent in the rest of India and the atrocities faced by people due to this Act.

The Armed Forces Special Powers Act (AFSPA), 1958 owes its inception to the Britishers. It was first enforced in 1942 by the Britishers to suppress the Quit India Movement. AFSPA, 1958 was originally enforceable in Assam and Manipur only but with an increase in terrorist activities in that region, the Act was expanded to all the Seven Sisters.

The AFSPA has conferred special powers on Indian Armed Forces in North-East India (disturbed area). A similar Act was passed in Jammu & Kashmir in 1990, and it is still in force. If in any State or Union territory of India, the Governor of the State or the Administrator of the Union Territory or Central Government is of the opinion that the whole or any part of the State or Union Territory is in a dangerous or disturbed situation, then that area can be declared as ‘disturbed area’ and AFSPA can be imposed in that region.

This Act empowers Indian Armed Forces to shoot, arrest or search any person and to destroy any place where laws are being violated, or the officer believes that the laws are being violated. No prosecution will lie against that officer who has taken such an act in North-East India under this Act except with the previous sanction of the Central Government. This Act is criticized by many because it curbs the fundamental rights of the citizens as well as others. It also violates the human rights of an individual.

No prosecution since its inception

The Act was passed 58 years ago in 1958 with only seven sections. Still, it is one of the most brutal and inhuman legislation. Section 4 and 6 give immense power to the army officers to destroy anyone’s life. Section 4 gives the power to kill or arrest the suspect and destroy any dangerous place. Section 6 rescues officers from criminal prosecution if any action is taken under this Act. Numerous people have been killed, raped, and their properties have been destroyed under the garb of this Act. But till date no officer has been punished for committing violence against civilians. In 1960s, many villages were burnt down by army officials in Nagaland and Mizoram but no one has been punished for such cruelty till date. No effort has been made to rehabilitate all those villagers who were forced to leave their homes and their property at gunpoint. This horrible history is less known to Indians.

Violation of human rights and fundamental rights of victims

Article 3 of The Universal Declaration of Human Rights, 1948 declares that everybody has the right to life, liberty, and security of person. Article 14 of the Indian Constitution guarantees equality before the law. Article 21 guarantees the right to life and personal liberty not only to citizens but everyone. And many more provisions of the law de jure (according to law) protect rights of everyone. But in reality, what happens is that the houses of civilians are destroyed, and they are herded together at common sites where they spend a very miserable life. A life without even the basic necessities. Hence, the words of law remain enforceable on paper only.

AFSPA v. Domestic law for rest of India

• Power to arrest

Section 4 of AFSPA gives power to officers to arrest anyone, without a warrant, who has committed cognizable offense or is suspected to have committed a cognizable offense.

Section 41 of CRPC, states that police can arrest a person, without a warrant, if substantial proof is available against the suspect;the person is a proclaimed offender; or against whom a reasonable complaint has been made.

• Power of search and seizure

Section 4 of AFSPA states that an officer can search a premise without a warrant only on his/her belief that the suspect has entered the premise.

Section 47 states that police can search a premise where he/she reasonably believes that the suspect has entered without a warrant.

• Power to open fire even to the extent of causing death

Section 4 of AFSPA empowers officers to open fire to the extent of causing death if he/she believes that it is necessary to maintain peace and order.

Section 76 of IPC states that any act done by a person by mistake of fact and not by mistake of law which the person is bound to do by law is no offense. Section 100 states that if a person, to avoid death in private defense kills, someone is not offense, under some restrictions.

• Immunity from legal consequences

Section 6 of AFSPA immunes army officers from persecution, suit or any other legal proceedings, except with the prior sanction of Central Government, for the acts committed under this act.

Section 197 of IPC states that neither Judges nor public servants can be prosecuted for an offense alleged to be committed while performing their services except with the prior sanction of the government.

Thus, it can be concluded that AFSPA has given too much of powers to army officers whereas the law for the rest of India has many safeguards to protect citizens from atrocities of officers.

Need to amend the law

AFSPA, 1958 has done more harm than the good it was supposed to do. It is high time that the act should be amended as the cruelties done by the officers are increasing due to unaccountability. The number of murders, rapes, and cases of violence is increasing day by day. Under the garb of AFSPA, the officers have committed numerous crimes and escaped punishment. The army personnel are trained for dealing with terrorists. They are not trained in how to deal with the civilians. As a result, the army personals mistreat the civilians. And the civilians have to face consequences of this ‘draconian law’.

There is an urgent need to amend the Act and make the officers accountable for the reckless killings, murders, and rape of innocent civilians. They should also be trained to deal with civilians in an appropriate way and should not treat the civilians as terrorists.

The post AFSPA – An Abomination In The North East appeared first on iPleaders.

In this blog post, Sreeraj K.V, a student of Government Law College, Ernakulam, Kerala writes an article on the topic gender discrimination in the legal profession. The topic covers various issues and challenges faced by female lawyers in their profession as well as the various remedial measures that may be adopted by the concerned authorities regarding the same.

In India, the attitude of discrimination against men and women has existed for generations and this affects the lives if both the genders. Even though the Constitution of India has provided equal rights to both men and women, gender disparity remains. Women are perceived to be disadvantaged at work.[1]

The issues regarding gender discrimination have affected the field of law and the legal practitioners as well. The issue is mainly affecting the female lawyers who have just started their profession as a junior under their superior. In India here are no surveys regarding gender discrimination being conducted in the field of law. There was a gender appearance survey conducted in Australia, which signalled a marked disparity of gender appearance in Australia’s superior courts. The barristers in the survey reflected same gender proportion as they existed in the bar population, 81% male and 19% female.[2]

Although, women in legal profession no longer face gender discrimination which was faced by them twenty or thirty years back, yet there are several unique issues, based on gender discrimination which they have to face. Women lawyers are always judged and compared to their male counterparts. While aggressive women attorneys are judged as harsh and unpleasant, those who are not so aggressive are termed as weak and unfit for this job. They also face certain comments on their physical attributes like height, weight or voice which are considered to convey experience and authority in the profession as well as in our society.[3]

Challenges faced by female legal practitioners

There are several challenges that are faced by female advocates during the time of their profession, especially during the beginning of their profession. Some the challenges include:

• It affects their career

 Majority of the women lawyers might have faced some problem or the other in their career. While entering the profession, female lawyers believed that gender discrimination is a thing of past, but later; they realize that it still exists in our society.

• Intimidated by male colleagues

Women lawyers have largely been the target of several intimidation methods by their male colleagues at some point in their career. The male colleagues often use certain ‘bully tactics’ instead of arguing facts to gain a strategic advantage in their case and career.

• It is not unique to female lawyers

Women attorneys have to face overly aggressive and negative response during their profession, but these issues are not unique to women. Other minority attorneys face them too in many other countries. Hence such behaviour imposes special challenges to female lawyers also.

• Affects both professional and personal life

 In this context, it has to be stated that when compared to male lawyers, female lawyers face more challenges in bringing a balance between their career and their family. Many females state that they encounter the worst kind of gender discrimination in their office or the firms with which they are associated to.[4]

Under representation of female lawyers in the Bar Associations also stands as a major issue of concern. This is because many women take leave from their career, such leaves ranging from a few months to several years. The grounds for leave include a desire for a family. But during such gap, many changes occur in the profession including development of new law, technology and also losing contact with professional networks. In such instances, policies providing flexible work arrangements for women could enable the employer to retain valuable staff who are (or “intending to”) returning to work on a later date. There is also a need for bodies that represent the legal profession to collect data on various aspects of gender disparity, including the difference in salary among men and women, and the reasons for the lack of female lawyer retention, particularly after 5 years of professional experience.[5]

Need for a change

Change must take place from the grass root level onward. Both the working environment as well as the justice system must change themselves so that there exists a friendly environment mainly for the female, who can work freely without any interference.

Strategies for legal employers and Bar Associations

• Assessment of problems and responses; policy evaluation and training;
• Evaluation of leadership and professional opportunities;
• Improving quality of work and implementing work – family initiatives;
• Monitoring various activities and formulating women networks;
• Preventing sexual harassment.

Strategies for justice systems 

• A standing committee or administrative board with adequate staff and resources to address gender bias;
• Effective education in socio-economic as well as psychological research that enables informed decision making on gender-related issues;
• Proper complaint structure that provides an option for confidentiality and protection against retaliation;
• Code of conduct that specially addresses gender bias;
• Initiatives to ensure equal opportunities for women at all the levels of the justice system;
• Collaboration with other groups within and outside the courts concerned with eliminating gender bias;
• A collection of data to identify the problems as well as to monitor the effectiveness of responses.[6]

Conclusion

There must be a joint commitment towards the realization of change and improvement in the situation of female lawyers in the legal profession worldwide. A gender diverse legal profession will strengthen the standards of social justice and serve as a benchmark for other professions.[7]Although there are barriers faced by female lawyers in this profession, no one can deny the fact that women lawyers have achieved significant progress in this profession. The number of women entering various law schools is equal to men now. Despite this, many female lawyers face unequal experiences and subtle discrimination in this field. It forces them to leave their workplace and search for another place with a good working environment or else leave the profession altogether. The law firms have now started providing a friendly working environment for the women lawyers by promoting their work as well as diversifying the work. Although this is just the beginning, there is a hope for tremendous change in the future.[8]

Footnotes:

[1] Retrieved on: https://en.wikipedia.org/wiki/Gender_discrimination_in_India

[2] Retrieved on: http://www.latrobe.edu.au/news/articles/2012/opinion/gender-equality-and-the-law-profession

[3]Retrieved on: http://ms-jd.org/blog/article/issues-affecting-women-in-the-legal-profession

[4] Retrieved on: http://ms-jd.org/blog/article/issues-affecting-women-in-the-legal-profession

[5]Retrieved on: http://www.latrobe.edu.au/news/articles/2012/opinion/gender-equality-and-the-law-profession

[6]Retrieved on: http://womenlaw.stanford.edu/pdf/aba.unfinished.agenda.pdf

[7] Retrieved on: http://www.latrobe.edu.au/news/articles/2012/opinion/gender-equality-and-the-law-profession

[8] Retrieved on: http://ms-jd.org/blog/article/issues-affecting-women-in-the-legal-profession

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In this blog post, Sreeraj K.V, a student of Government Law College, Ernakulam, Kerala writes on the laws that safeguard the rights of the disabled in India. The blog post discusses the discrimination faced by the physically challenged people, the various legal remedies available to them as well as an analysis on Rights of Persons with Disabilities Bill, 2014.

Disability in India

India is the largest democracy in the world. It includes rights of citizens in every sphere of life.  In such a context, the term ‘citizen’ includes each and every person who is born in India. Persons with a disability also come under this term. But the real fact is that the persons with disability in India are treated in a very disappointing way resulting in their basic rights as the citizens of this country being hampered. It has been stated by various persons dealing with such matters that around 70 million people in India are disabled in one way or the other. Such persons are forced to confront segregation, discrimination and stereotypes.[1] Even though there are certain laws and statutes in favour of the disabled in India, such as the Persons with Disabilities Act, 1995, Mental Health Act, 1987, The Rehabilitation Council of India Act, 1992 and also National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999[2], the impact of such statutes in our society is very less because of the prevailing socio-economic condition of our society.

The Constitution of India provides certain rights for the citizens of India, mainly fundamental rights which are enumerated under Part III of the Constitution. Same rights are available for the physically challenged people as well or rather a bit more when compared to normal citizens. The central as well as the state governments have implemented various schemes and policies for the physically challenged people to uplift them in the society. Apart from this, laws and statutes of our country provide certain special rights to them so that they stay away from all such discrimination as well as inhuman activities.

Discrimination faced by the disabled

There is some forms of discrimination that the physically challenged face right from the time of birth.

• Lack of educational opportunities at primary and higher levels.
• Lack of employment opportunities.
• Lack of access to the built infrastructure.
• Lack of information in their accessible formats.
• Denial of rights to promotion and payment during employment.
• Denial of reasonable accommodation, education, and employment.
• Denial of access to various civil/political rights.
• Discrimination faced by physically challenged women.[3]

United Nations and the physically challenged

United Nations has seriously intervened in the matters concerning the physically challenged people and their empowerment in their society. Various plans have been implemented so that such people will not be isolated from the society and they will be able to contribute to their own development. Such plans include:

• People with disabilities will have same rights as other human beings have.
• They are to be provided with proper medical, health care facilities so that they will be able to develop in their life and attain maximum potential.
• Right to economic security and decent standard of living.
• Right to live with his/her family and participate in various activities of the community.
• Right to a qualified guardian for his/her personal assistance and well-being
• Right against exploitation, abuse, and degrading treatments.
• Whenever a physically challenged person is not capable of enforcing his/her rights, there must be proper procedure for enforcement or such denial must be based on an evaluation by socially qualified experts.[4]

Persons with Disabilities Act, 1995

This Act, popularly known as the PWD Act, has been enacted by the legislature to provide certain empowerment as well as some special rights to the disabled as compared to other people. Chapter I deals with certain important definitions like disability, blindness, hearing impairment, etc. Chapter III deals with the importance and implementation of various committees such as State Co-ordination Committee to look after the matters concerning physically challenged people in various States. Chapter IV deals with the prevention and early detection of disabilities whereas Chapter V looks into the educational needs of the physically challenged. The chapters preceding include various provisions regarding employment, affirmative actions, non-discrimination, recognition of various institutions for physically challenged people, authorities concerned, as well as provisions concerning the social security of the physically challenged. All such provisions are being enacted to make them equal to the other common citizens of the country. The Act strictly looks into various issues wherein any physically challenged person is being discriminated against or harmed in the society.

There are many landmark judgments on the right of the disabled, both from the Supreme Court as well as various High Courts. In Deaf employee’s Welfare Association v. Union of India[5], the Supreme Court held that “there cannot be discrimination between people with blindness as well as people with hearing impairments. Equality before the law and equal protection of law has to be afforded to persons with disabilities while participating in Government functions. It was also held that dignity of such persons must be ensured by the State. Such people must also be given certain transportation allowances at par with other physically challenged people working under the Government.”

Rehabilitation

Even though there are many laws and landmark judgments for the physically challenged people in India, those people are strictly in need of various rehabilitative measures for their betterment. Such methods have been adopted by the Rehabilitation Council of India Act, 1992 wherein, it imposes various guidelines to treat such people with impairments. Such guidelines include:

1. Right to be served by qualified rehabilitation professionals who are registered under the Council.
2. To have a guarantee of minimum standard of education for recognition of rehabilitation qualification by universities or institutions in India.
3. To have guarantee of minimum code of conduct and professional ethics by rehabilitative professionals.
4. To have a guarantee of regulation of the profession of rehabilitative professionals by a statutory council under the control of the Central Government. [6]

Rights of Persons with Disabilities Bill, 2014

This bill was introduced as a replacement of the Persons with Disabilities Act, 1995. For that, a committee was set up by the Ministry of Social Justice and Empowerment. The bill clearly defines as to what is clearly meant by the term disability. A person will be treated as disabled if he shall suffer 40% disability. The bill includes various provisions to prevent physically challenged persons from any harassment while obtaining a disability certificate and also lays down strict punishment for the people who violates the provisions. The bill also provides other provisions such as the formation of National Commissions for the persons with disabilities. On the whole, the bill enhances various new provisions in the field of disability as well as for persons with disabilities. The bill also ensures maximum rights and freedom for the disabled people, not as a separate section of the society but as one among the society itself. The bill also makes certain sub-divisions within the term ‘disability’ so that nothing will be missed out. The bill also contains various other provisions which were derived from the UN conventions for the rights of the physically challenged. [7]

Conclusion

Various experts give a new definition to the term disability as well as a new dimension to the enforcement of rights of the physically challenged. That the term ‘disabled people’ has to be changed into ‘specially abled’ or ‘diffently abled’ so that the meaning of the term will change from negative to positive. This will be one of the first and finest steps towards the empowerment of the physically challenged people in our country. Various state governments have also implemented various schemes and policies in favor of physically challenged people such as creating a friendly environment for them mainly in government offices, providing space for them in every sector of daily life, providing an easy environment for them to move around without anyone’s help, etc. Such changes make a huge difference in the attitude of the people in such a way that they accept such differently abled people as one among themselves.

Footnotes:

[1] Retrieved on: http://www.hrln.org/hrln/disability-rights.html

[2] Retrieved on: http://vikaspedia.in/health/mental-health/guidelines-for-parents-of-children-with-disabilities/legal-rights-of-the-disabled-in-india

[3] Retrieved on http://www.hrln.org/hrln/disability-rights.html

[4] Retrieved on: http://vikaspedia.in/health/mental-health/guidelines-for-parents-of-children-with-disabilities/legal-rights-of-the-disabled-in-india#section-24

[5]Deaf Employees Welfare Association v. Union of India WP (C) 107 of 2011

[6] Retrieved on: http://vikaspedia.in/health/mental-health/guidelines-for-parents-of-children-with-disabilities/legal-rights-of-the-disabled-in-india#section-24

[7] Retrieved on: http://blog.ipleaders.in/rights-of-persons-with-disabilities-bill-2014-a-review/

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In this blog post, Sreeraj K. V., a student of Government Law College, Ernakulam, Kerala writes about the legal procedures to be complied with when a cheque is dishonoured. This blog post covers areas like the importance of cheque, dishonor of a cheque and its remedies and the legal recourse available with the help of certain laws in India.

Introduction

All banks in India are being administered and their operations amended purely with the help of certain statutes, mainly by the Negotiable Instruments Act, 1881, the Reserve Bank of India Act, 1934 and the Banking Regulations Act, 1949. Now, let’s look into the various matters affecting a cheque as a major negotiable instrument and the legal formalities to be fulfilled by the parties when a cheque gets bounced or is dishonoured.

Cheque

A cheque as a negotiable instrument has been clearly defined under Section 6 of the negotiable instrument Act. A ‘cheque’ is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand, and it includes the electronic image of a truncated cheque and a cheque in the electronic form[1]. In simple words, a cheque is a document drawn by a person for another person to whom he has agreed to pay a certain sum of money within a certain period. Business transactions are growing at a rapid pace. So, it is difficult for a person to transfer liquid money to another person. In such situations, a cheque acts as a medium of transferring money from person to person so that the transfer will be safe and both the parties can save their time to a great extent.

Even though a cheque has many merits on one hand, transfer of money through the way of cheque needs some procedures to be followed.The person who issues the cheque (drawer) must have a bank account; the cheque must be given some liability to the recipient (payee) and in terms of money, there must be sufficient amount in the bank account of the drawer for the cheque to be issued and not to be dishonoured due to insufficiency of fund; and most importantly, it must be a crossed cheque so that only the payee can receive the amount and the misuse of cheque can be reduced.

Dishonour of cheque

Business transactions of people is increasing day by day and the stability of maintaining bank balance has been fluctuating depending upon the financial needs of the people. If a person issues a cheque to another, he/she may not be aware of the current bank balance and thus the cheque may be dishonoured. In such situations, the drawer of the cheque is given a 30 days’ time for repaying the amount back to the payee. But after that period, if the drawer is not willing to pay the amount, the payee has an option to file a suit against the drawer for payment of the amount of the cheque as well as an amount of interest as compensation for the default caused by the drawer.

Legal recourse

When a cheque is dishonored, the bank will issue a ‘cheque return memo’ to the banker of the payee mentioning the reason behind the dishonor of cheque. The banker then transfers the cheque return memo along with the dishonored cheque to the payee. Then the payee may issue a notice to the drawer for the payment of amount within 15 days from the date of issue of the cheque and resubmit the cheque within 30 days from the date mentioned on the cheque on a belief that the cheque will not be dishonored this time. If the cheque is being dishonored again, the payee has the right to prosecute the drawer legally for the dishonour of the cheque. The payee can prosecute the drawer of the cheque only when the cheque has been issued towards the discharge of liability or debt by the drawer. If the cheque was issued as a gift or towards lending of loan for any unlawful purposes, the payee has no right to sue the drawer when the cheque gets dishonoured.

The Negotiable Instruments Act, 1881 deals with the cases of dishonour of cheques. According to Section 138 of the Act[2], dishonour of the cheque is a criminal offense and is punishable by an imprisonment of two years along with a monetary compensation as fine or both. This Section of the Act states that the dishonour of the cheque may occur when a person, for the payment of any liability or debt to another person, issues a cheque in favour of that person and due to the insufficiency of fund or if the prescribed amount exceeds the limit of amount to be paid from that bank, then the person is deemed to have committed the offence. The bank also has a right to stop the cheque facility to the person and even close his account when repeated offenses of cheque bounce occur.

In certain cases, the defaulter can appeal to the Sessions Court within one month from the date of judgment of the lower court. If both the parties are not interested in wasting much time, an out of court settlement is also applicable at any point. In many cases, the party files a separate civil suit against the defaulter for the recovery of the amount mentioned in the cheque along with a reasonable rate of interest as compensation.

Summary suits

In many circumstances, the defendant will have no defense of his own. In such a situation, the plaintiff can file a ‘summary suit’ under Order 37 of the Code of Civil Procedure, 1908[3]. Here the defendant will be given no chance to defend himself unless he procures permission from the court to defend. Summary suits are being filed mainly in civil matters based on recovery procedures. It includes promissory notes, bills of exchange and cheques. It does not have a form of criminal charge as it only focuses on the recovery of the debt or property from the defendant without much delay.

Amendment to the Act

Even though Negotiable Instruments Act has been amended many times due to several reasons, the landmark amendments in the Act were done twice before the recent amendment done in 2015. The latest amendment adopts various principles regarding the jurisdiction of the courts in dealing with such matters. In many cases, the drawer will be in one place, and the payee will be far away from the drawer. In such cases, the parties find it difficult to go through the penal actions which follow. By the new amendment, the holder of the cheque can file a suit before a magistrate at his place of residence and the place where he tendered the cheque. Thus litigation expenses will be reduced, and the drawers of the cheque will be more careful while signing the cheque[4].

According to the newly implemented Section 142A, any case of the same nature, whether filed before or transferred before, shall go to the courts having jurisdiction under the new procedure[5].

Conclusion

Dishonour of the cheque is one of the major issues faced by the parties while transferring money through negotiable instruments. It will make the drawer liable even though he was unaware of the insufficiency of the fund in his account within a prescribed limit of time. But the law itself provides a reasonable time for them to repay back the amount to the payee. The default made after such a period has to be considered as a criminal act as it involves an unlawful intention of not paying back the money to the deserving party. Thus, the law makes it clear that the parties while signing a cheque have to be aware of the amount of money in their concerned banks.

Footnotes:

[1]Section 6 – Negotiable Instruments Act, 1881

[2]Section 138 – Negotiable Instruments Act, 1881

[3]Order 37 – Code of Civil Procedure – Summary suit

[4]Retrieved on http://www.business-standard.com/article/opinion/the-negotiable-instruments-amendment-bill-2015-115080900761_1.html

[5]Section 142 A – Negotiable Instruments Act, 1881, retrieved on http://www.business-standard.com/article/opinion/the-negotiable-instruments-amendment-bill-2015-115080900761_1.html

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In this blog post, Sunidhi, a student of the Rajiv Gandhi National University of Law, Patiala has written about irregular migrant workers. The blog post basically highlights their rights.

Introduction

Irregular migration is usually the movement that takes place outside the regulatory framework of the sending, transit and receiving countries. There is no clear or universally accepted definition of irregular migration. Looking at it from the point of view of destination countries, it is the unauthorized entry and residence in the country. In other words, the migrant does not possess the required documents to enter or stay in the country. From the perspective of the sending country, irregular migration refers to leaving the country without obtaining necessary documents.

The word used for such migrant is irregular and not illegal because the word ‘illegal’ is very negative. Also, an act can be illegal, but a person can never be illegal.

Types of irregular migration

In most cases, the irregular migrants enter the destination country secretly but become irregular after entering the country. They include:

• Those who overstay their visa or permit of residence.
• Persons whose employers withdraw an authorization to work that is tied to the immigration status.
• Those who have been cheated by recruiting agents or smugglers that make them believe that they are crossing the border in a regular way.
• Asylum seekers in the destination country after refusal to provide refugee status.
• Those who have crossed the border secretly, this includes those smuggled or trafficked.

The International Convention on The Protection of the Rights of All Migrant Workers

The UN General Assembly adopted the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families by Resolution 45/158 on 18 December 1990.[1]

This international instrument is the most relevant document for the protection of migrant workers. It protects the core rights of a migrant, regardless of the fact that the migrant is regular or not. As the name suggests, this instrument is to protect not only worker migrants but also their family members.

The primary difficulty with this instrument is that it has not been widely ratified despite being of fundamental importance. The following are the rights of the migrant workers and their family members:

• Article 7 of the Convention guarantees that all the migrants and their family members have equal rights, and the State will protect these rights of all the migrants without any discrimination by sex, race, color, marital status, birthplace or any other ground.
• Article 8 of the Convention guarantees that the migrant and his/her family can leave the destination country or any other country, including their country of origin at any point in time and enter his/her country of origin without any unreasonable restriction. There is an exception to this right which is that the State can impose reasonable restriction on the entry and exit of the migrant if it affects the public safety, health or threatens national security.
• Article 9 guarantees the right to life to the migrant and his/her family members. The migrants and their family members have the right to live a dignified life in the destination country who is a signatory to this convention.
• Article 10 protects the migrant worker as well as his/her family members from inhumane and cruel treatment. It protects them from all kinds of torture in the destination country.
• Article 11 protects the migrant worker as well as hi/her family members from the chains of bonded labor or slavery. It expressly prohibits slavery as well as forced labour of the migrant workers.
• Article 12 states that all the migrant workers and their family members have the right to freedom of thought, conscience, and religion. They can follow the religion of their choice, and no one can force them to change their religion or impose their thoughts on them. But this freedom will be curtailed if it affects the national security, public order or health.
• Article 13 provides freedom to hold opinion and expressions to the workers and their family members without any interference. This freedom includes freedom to receive and impart to others the opinion of migrant workers and their family members. But this right should not be misused to disrespect others or defame others.
• Article 14 ensures that others do not invade the private life of the migrant worker and his/her family members. Article 15 protects their property. It protects them from illegal deprivation of their property.
• Article 16 protects the migrant worker as well as his/her family members from mental as well as physical violence by police officials and private persons or institutions. It also protects them from unlawful arrest by police officials. It states that they should be informed of the grounds of arrest in their language, in case they are arrested.
• Article 17 states that all those migrant workers and their family members who are deprived of their liberty should be treated with dignity.
• Article 18 states that the person who is detained shall be given the chance to be heard and should be given the chance to fair trial by a competent court.
• Article 19 protects the migrant workers as well as their family members from retrospective application of criminal laws.
• Articles 20-24 protect the migrant worker and his family members from undue influence during the time they are deprived of their liberty. It protects them from collective expulsion and destroying their travel documents without any authorization. Article 23 provides consular and diplomatic assistance to the migrant and his family members.
• Article 25 ensures that the terms of service and payment of the migrant workers as well as their family members are not less than what the nationals of that state receive. Article 26 provides them the right to form trade unions.
• Article 27 and 28 ensure social and medical security to the migrant workers and their family members.
• Article 30 ensures that the child of a migrant gets a name, nationality and birth certificate.
• Article 31 protects migrant’s cultural identity.
• Article 32 gives the right to repatriate a migrant’s earnings and savings.

Some of the rights provided in this Convention are the basic human rights that are even drafted in other human rights documents, while others are some special rights to ensure that the migrant and his family members live a life of dignity in the destination country. These rights are certainly very important for survival in a foreign country.

Footnote:

[1] http://www2.ohchr.org/english/law/cmw.htm.

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In this blog post, Disha Pareek, a student of RGNUL, Punjab gives an overview of the laws and the government authorities as well as autonomous agencies that regulate the field of sports in India.

Sports law in general

India being a unity in diversity is also a home to a diverse population which is fond of several sports. The work of administration and funding of sports is in the hands of the Ministry of Youth Affairs and Sports, which is headed by a cabinet minister and managed by the National Sports Federations. Sports law is one of those fields of law is law that is applied in the field of sports, physical education and its related areas. It is a pure law as opposed to theoretical law and is concerned with how law in general interacts with the activity known as Sports[1]

Sports have always been a form of recreation, but sports have evolved, and India is considered as one of the best places to hold international sports events. In this scenario, a need was felt to regulate the laws in the field of sports and to eradicate the grey areas. Even the United Nations, in its resolution 58/5 adopted by its General Assembly in 2003, has recognized sport as a means to promote education, health, development and peace[2] and therefore, a state should have an interest in sport-related matters.

Everything about sports legislations in India

Per se, there are no central or state legislation to regulate sports in India; the Ministry, which was set up by the government was responsible for achieving excellence in different sports events which were conducted in India and also to build a good infrastructure for sports. By and large, the administration of sports activities is in the hands of autonomous bodies, such as Sports Authority of India (SAI), Indian Olympic Association (IOA), Hockey India (HI) and Board of Control for Cricket in India (BCCI).

These governing bodies are recipients of government’s aid and are also registered under the Societies Registration’s Act of 1860.[3]

The following govern the whole of the Sports Law:

• National Sports Policy, 1984/2001

The main objective behind enacting this was to raise the standard of sports for the reason that it was degrading due to corruption, betting, etc. It was later realized that the Bill of the year 1984 was incomplete, and its implementation was not complete, and in a bid to revise the bill the same was reformulated in the year 2001.

The guidelines are three-fold:

• Firstly, to earmark the areas of responsibilities which different agencies have to undertake to develop and promote sports.
• To lay down the procedure to be followed by the autonomous bodies and federations to make the assistance and aid by the government available.
• And also identifying the sports federation that is eligible for coverage under these set guidelines.

It was only after this policy that the lawmakers realized the importance of sports and therefore ‘Sports’ was included in the Constitution in the State list of the Seventh Schedule (Entry 33). The central government by the provisions of this policy aims to achieve excellence in sports on the national and global plane and collaborates with the state government and other agencies to achieve it.

• Sports Law and Welfare Association of India

It is a non-profit national organization that aims to understand, and work for the advancement of ethical sports law in India for promoting sports. The primary task of the organization is to provide consultancy services on different matters like Indian sports policy, sports injuries, health and safety in sports, IP issues in sports, etc. It also provides a forum for legal practitioners who represent different people, to set up rules for ethics for sports persons.

• Sports Authority of India

The Sports Authority of India (SAI) is an apex National Sports body set up in the year 1984 by the Ministry of Youth Affairs and Sports for broad-basing and bringing excellence in sports across India as a whole. It is located across 9 regions at Bangalore, Gandhinagar, Chandigarh, Kolkata, Imphal, Guwahati, Bhopal, Lucknow and Sonepat; and two Academic institutions like Netaji Subhash National Institute of Sports (NSNIS), Patiala and Laxmibai National College of Physical Education. It also accounts for academic programs like coaching and physical education awareness programs.[4]

• The Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act

This Act was passed in the year 2007; its main objective was to provide access to listeners and viewers so as to encourage a larger audience. It shall cover the sporting events which are of national importance through mandatory sharing of sports broadcasting signals with Prasar Bharati and for matters related to it. The Act provides that no content right owner or holder or television or radio broadcasting service provider can carry out a live TV broadcast of important national sporting events. For doing this, it has to share its live broadcasting signal simultaneously (except advertisements) with the Prasar Bharati.

Role of different stakeholders

Ministry of Youth Affairs and Sports

• To lay down the conditions for eligibility of National Sports Federation to get recognition
• The conditions that have to be fulfilled by NSFs and other agencies if they wish to acquire government aid and support.
• To provide assistance to the NSFs if they carry out long-term development program.

National Sports Federation

The responsibility for the complete management, direction, supervision and regulation of the discipline and promotion, development and sponsorship of the discipline is on National Sports Federation. They are expected to discharge these responsibilities in consonance with the principles laid down in the Olympic Charter or the Charter of the Indian Olympic Association in compliance with Government guidelines applicable to NSFs.

SAI

For providing the necessary support to NSF for the identification, training, and coaching of sportspersons, also to improvise infrastructure, equipment, and such other facilities, the SAI plays a significant role. Further SAI will also be responsible for releasing funds to NSFs against proposals approved by the Government.  The release of funds to IOA shall, however, continue to be made by the concerned Ministry.[5]

National Anti-Doping Agency

The centre has set up a National Anti-Doping Agency (NADA) as an autonomous body. It consists of persons from government and non-government agencies, scientists as experts and also members from IOA. In the recent past, the controversy surrounding the intake of dope by sports persons is prevalent and in this light, NADA was set up. It shall carry out ‘in competition’ and ‘out of the competition’ testing on the sportsman. NADA helps in the regulation of sports activities so that it can be corruption-free and non-controversial.

Sports law of United States of America

The U.S.A. has a very systematic law for sports. They have not provided with single legislation, but have divided it into 3 categories-:

• Amateur sports

It includes athletic activities from high school athletics to organize inter-collegiate or international competitions which are often organized and managed by groups that make rules for eligibility and competition, and courts do not interfere with the actions of these groups as long as they abide by the rules. The Amateur Sports Act of 1978 created the Athletic Congress, a national body for governance of amateur athletes, which administers a fund that allows amateur athletes an option to get funds and sponsorship payments and also not lose their amateur status.

• Professional sports

In the case of some professional sports activity, most sports leagues do have a standard player’s contract, and that shall be the guiding force behind a contract between players and owners.

• International sports

The two main international sports events include the Olympics, sponsored by the International Olympic Committee, and the World Cup, which is sponsored by FIFA. The United States has done the charting of the United States Olympic Committee (USOC) in the year 1950.

Grey areas in sports law in India

The realm of sports law is new in India and time and again, there has been an in-depth inquiry and research into this. Despite having several federations and independent bodies in India, our country lacks a good sports system, and it fails in every major event due to a precise and uniform law for sports. Firstly, there is no single body or legislation under the umbrella of which the ministry, and different sports federation, primarily the National Sports Federation would come.

In recent past, the dark sides of the competitive world has come to be known which depicts the maladministration of the sports law, such as the Olympic Games Scandal related to bidding, the recent IPL scam, FIFA scandal and allegations of sexual assault, etc. are few of those scandals.

The major loopholes which our sports law face include labour and employment issues, drug use, broadcasting rights, sports injury and the concurrent liability, harassment in sports, etc. The constant failure of India in different sports events is an indication of widespread corruption and poor infrastructure and therefore, the need of the hour should be to enact a proper legislation and forum to ease the activities of sports in India.

Conclusion

Given the close relation of sports with national pride and the kind of influence it has on the mind of the nation, the state has the most important role to play. It is very clear that the existing model has not succeeded in achieving its objective and it is time for a new model to be made. Also, it is quite clear that our culture and our attitude towards sports is the biggest hindrance in improving sporting standards.

Footnotes:

[1] Available at http://www.asser.nl/sportslaw/about-the-centre/community/national-sports-law-associations/sports-law-welfare-association-of-india-india/

[2] Sport for Development and Peace, UN General Assembly Resolution, 3 November 2003

Available at http://www.un.org/wcm/content/site/sport/home/resourcecenter/resolutions/pid/19431

[3] Available at http://www.delhi.gov.in/wps/wcm/connect/98f8250046a2ddbd902e915d9d3d91ee/Registration+of+Societies.pdf?MOD=AJPERES&lmod=-299975412

[4] Available at https://en.wikipedia.org/wiki/Sports_Authority_of_India

[5] Available at http://yas.nic.in/sites/default/files/File918.compressed.pdf

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In this blog post, Disha Pareek, a student of RGNUL, Punjab, critically analyses the principle of Res Ipsa Loquitor. 

Res Ipsa Loquitor is a legal term which means ‘the thing speaks for itself.’[1] It is a very popular doctrine in the law of torts; it is circumstantial or indirect evidence which infers negligence from the very nature of the accident that has taken place and there is the absence of direct evidence against the defendant. Res Ipsa Loquitor is applied when it can be said that without the defendant being negligent, the accident would not have happened.

Background

Accidents happen all the time and many a time, it is because of someone’s negligence. And in the law of torts, to prove somebody’s negligence, the burden of proof is on the plaintiff, that is, someone who is the victim of the tort. It becomes really difficult to prove that the defendant was at fault and also to gather evidence against his act or omission. Therefore, keeping this in mind, the principle of Res Ipsa Loquitor came into force under which a plaintiff can use circumstantial evidence to establish negligence.

Elements of Res Ipsa Liquitor

Before claiming the tort of Res Ipsa Loquitor, a plaintiff must meet a few requirements to claim compensation

• The event that caused injury to the plaintiff does not occur unless someone has acted negligently.
• The evidence adduced rules out all the possibilities of the fault of the plaintiff or third party.
• There is a duty of care of defendant towards the plaintiff which he breached.

Development of the principle

The roots of the principle are in common law countries, which are England in the case of Byrne v. Boadle. The facts of the case were that in 1863 in England, a barrel of flour fell from a two-storey building and hit the plaintiff’s head, but the plaintiff could not acquire direct evidence against defendant to allege negligence on his part. But the court held the judgment for the plaintiff and opined that the circumstances were different in this case, and there could be a presumption of negligence.

Distinction between Res Ipsa Loquitor and prima facie

Prima facie evidence just tends to prove if a certain circumstance could or could not have occurred. It is not conclusive in nature and hence, is true only till it is rebutted and so in any given case, it just tends to state that for a given situation there is enough evidence to prove the liability but does not prove the liability of it. But Res Ipsa Loquitor states that facts are evident of the liability as there cannot be any other probable cause for the same.

Hence, the keynote difference between the key doctrines states that while prima facie aims at providing the evidence to prove liability, Res Ipsa Loquitor states that it is reasonable that liability lies with the defendant and hence, no further evidence is required to be furnished. But both the doctrines are rebuttable in the sense that the defendant may prove the case in opposite to the stated evidence and hence negate the applicability of the doctrines.

Essentials of Res Ipsa Loquitor

• Inference of negligence

For the element of Res Ipsa Loquitor to be made applicable in any case, the accident should be such as which could not have happened if ordinary course of things had happened without negligence. For instance, a barrel of flour cannot randomly fall on someone’s head if the party is reasonably careful. And also, a Clock tower in the heart of the city will need extra care and if it falls and causes injury to several people, the defendants will but obviously be held liable for the same under this principle. In such cases, direct evidence of proving negligence is not important, but the plaintiff has to establish a prima facie case, either by direct or circumstantial evidence of defendant’s negligence.

• Exclusive control by defendant

The thing that has caused the damage must be under the direct control of the defendant or his representative. It is not always necessary that all the circumstances are under the defendant’s control, but if the events leading upto the accidents were under the control of others besides the defendant, then the mere happening of the accident is insufficient evidence against the defendant. For instance, if a surgeon at the time of the operation leaves a mop inside the patient’s abdomen, here the doctor had exclusive control over the patient’s health and so, therefore, he would be liable under the principle of Res Ipsa Loquitor.

• Freedom from Contributory Negligence

The third essential for the principle is that the plaintiff or any third party did not cause or contribute to the injuries suffered by him. If it is found that the plaintiff or third party contributed to the act that caused damage to the plaintiff, then the principle shall not apply.

Once these elements are established, there is a possibility that courts treat it as a possible assumption of negligence on the part of the defendant. Normally, following this the jury in question presumes that the defendant is liable. The jury, however, is not bound to presume such things. In such cases, the burden of proof is on the defendant that he was not negligent. Thus this principle is rebuttable and if the defendant can successfully rebut the claim of negligence, he will win the case. Otherwise, he shall be made liable.

Landmark case-laws

• Scott v. the London and St. Katherine Docks Company[2]

The facts of this case were that plaintiff was an officer of Customs. He was instructed to go from the East Quarry to Spirit Quarry by his surveyor. There were warehouses on the Spirit Quarry. He went to the entrance of one of the warehouses to find Mr. Lilley, the Surveyor. He was told that Mr. Lilley is in another Warehouse. He went to the first door to meet upon the Quarry. He went into the Warehouse and met a labouring man about two yards within warehouse. He enquired from the Labourer about Mr. Lilley, and he was informed that he could find Mr. Lilley in the next doorway. In passing from one doorway to another, six bags of sugar fell upon him, and he suffered injuries as the servants of the dock company were lowering the bags of sugar. Except plaintiff, there was nobody else on the spot of the accident. There was no warning signal and no fence or barrier. The majority of the Court came to the conclusion that falling of bags of sugar on the plaintiff itself is not reasonable evidence of negligence and directed the case for a new trial.

• Rampeary and Another v. Jai Prakash and Another[3]

In this case, the injured/plaintiff was a minor girl about nine years who was passing by the road on its left side along with her mother. Defendant was playing in the middle of the road. Another defendant was sitting on the rod of the cycle. Suddenly, the cyclist turned his cycle on his wrong side (to his right side) and collided with the minor as a result of which she suffered compound fractures in two of her bones in the right leg with other bleeding injuries.

The pleadings of the minor were that she suffered injuries due to negligence on the part of the cyclist and defendant No.2, and they are liable for damages. Both the defendants denied the contentions. Trial Court discussed the entire evidence and decreed the suit for the sum of Rs.567/-. The Ld. First Appellate Court set aside the judgment of Ld. Trial Court and dismissed the suit by holding that the plaintiff failed to lead satisfactory evidence of negligence which can be said to be a proximate cause of accident and injury to her.  However, the Ld. First Appellate Court awarded her Rs.300/- towards expenses for her treatment. The injured/plaintiff approached Hon’ble Patna High Court. Hon’ble Patna High Court (Second Appellate Court) set aside the judgment of Ld. First Appellate Court and remanded the case for fresh decision.

• State of Punjab v. Modern Cultivators, Ladwa[4]

The facts of this case were that plaintiff Modern Cultivators suffered losses due to flooding of its land as a result of a breach in a canal belonging to the State of Punjab. The Trial Court awarded damages and decreed the suit which was upheld by the First Appellate Court and in Second Appeal by Hon’ble High Court. However, High Court reduced a number of damages. Both the parties approached Hon’ble Supreme Court. The Hon’ble Apex Court held the defendant was negligent by applying the rule of Res Ipsa Loquitor.

Footnotes:

[1] Available at  http://dictionary.law.com/Default.aspx?selected=1823

[2](1865) 159 E.R. 665

[3](2 Camp. 79)

[4]1965 AIR 17, 1964 SCR (8) 273

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In this blog post, Sunidhi, a student of the Rajiv Gandhi National University of Law, Patiala discusses how the Human Rights Commissions have failed to bring desired results of protecting the human rigths of the citizens of India.

Introduction

Human rights are those rights which every human being is entitled to by virtue of them being a human being. These are the basic rights that every human being is entitled to without any discrimination by caste, creed, color, sex, etc. These are those basic rights without which no individual can lead a dignified life. These rights are inalienable.

All the human rights, whether civil, political, economic or cultural, are interdependent and indivisible. The advancement in one will directly lead to advancement in another. Similarly, derivation of one right will automatically lead to deprivation of many other rights.

Human Rights Commission

Universal Declaration of Human Rights (UDHR), 1948 is the landmark document on Human Rights. It was the first document to put human rights in black and white. There are many other international documents supporting human rights, and most of the states have ratified such documents.

To protect human rights, the Indian Parliament passed Human Rights Protection Act, 1993 and under this Act, a provision was made to establish Human Rights Commissions (HRCs) in India. The Act made provisions for State Human Rights Commissions and one National level HRC, for those states where there is no State HRC. Although, the Indian government succeeded in creating HRCs, it failed to give them appropriate powers to function properly and stop human rights violation in India.

Lack of power

The Human Rights Commission of India is the powerless organization which is duty bound to stop human rights violation but has no power to stop it.

• The main problem of the Human Rights Commission is that they can only make a recommendation to the government. For example, they can only recommend that a criminal case should be filed against the accused, the departmental inquiry should be instituted against government official if he/she is delinquent in performing his/her duties or granting compensation to the victim. Also, it is not binding on the government to adhere to the recommendation of the commission. In the majority of the cases, government either partially adheres to their recommendation or out right neglects it. Therefore, it should be given adequate power to institute a suit against the accused and punish government officials for their inefficiency.
• As per the Act, the Commission cannot take cognizance of a matter if the time gap between happening of an event and filing of the complaint is more than one year. In a country like India where there is widespread unawareness, how can this law be beneficial to the public. The time span should be increased so that the general public can benefit from what is meant for them. Also, the Act can serve its purpose.
• 55% of cases in the HRCs are filed against police officials. Civil society groups should be mobilized to keep a check on the efficient working of police officials and their misbehavior with the civilians. Also, there is a need to implement a new Police Act as the present police act belongs to the year 1861. It was made by Britishers to oppress Indians. Hence, a new Police Act should be drafted according to the changed scenario.
• The Human Rights Commission has no authority to investigate matters where army officers are the culprits of human rights violation. Human rights are basic rights essential for survival, then how can army officials be allowed to violate such rights? Therefore, they should also be brought under the ambit of the Human Rights Commission.
• Most of the Commissions do not have all the 5 members to run it. This hampers their working. For example, at present Punjab State Human Rights Commission is running without a Chairperson. As a result, it fails to operate because the bench cannot decide a case in the absence of a chairperson. This leads to delay in delivering justice. Therefore, the succeeding Chairperson and other members should be appointed before the existing member retires. This will bring efficiency to the appointment of the Chairperson and other members and would not hamper the working of the Commission.
• The commissions are not provided with required funds, and this directly affects their working. Most of the funds provided to the commission are spent on office expenses and in the salaries of the members. The funds, therefore, are not used for what they are meant. To avoid this, commissions should be provided with enough funds for the sole purpose of existence. The salary and other maintenance expenses of members should be paid separately out of government funds.
• These commissions work in a bureaucratic way. For example, the staff appointed for these commissions is the retired government officials. So, this develops a hierarchy in the organization system in HRCs. Young blood should be infused in such commissions who can bring fresh perspective in this changed scenario.
• The second highest number of cases registered with HRCs is women related. Therefore, one of the members should be a woman.
• The Act specifies that the retired judges should be appointed as chairpersons. The result is any judge whether he is experienced in human rights or not may become a chairperson. Therefore, only those judges should be appointed as chairpersons who have at least 10 years of working experience in human rights.
• A bureaucrat fills the non-judicial member’s post. This position should be reserved for human rights activists who have at least 10 years of working experience in human rights.
• The service matters are excluded from the jurisdiction of HRCs. This is the hub where humans face discrimination the most. Therefore, this should also be covered under the jurisdiction of HRCs.
• HRCs do not take cognizance of private party disputes. Sometimes, these are the most heinous cases of human rights violation. For example, a rape survivor files a case in HRC for violation of her human rights but because she has not filed a police complaint, her case will be not be heard. Therefore, a very serious case will be rejected, and this defeats the basic purpose of the commission.

Hence, the Human Rights Commission should be given adequate powers so that they can serve the basic purpose for which they are established.

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In this blog post, Sunidhi, a student of the Rajiv Gandhi National University of Law, Patiala has written about Mercantile Law of India. The blog post highlights various sources of Indian Mercantile Law.

Introduction

Mercantile law or commercial law is the law that regulates commercial activities of the economy. It is a very wide term and all the laws that regulate commercial transaction in India are covered under its ambit. The pre-requisite of such transaction is a valid agreement between the parties to the contract. It can either be express or implied.

It is concerned with the rights and obligations of traders arising out of the commercial transaction. The trader can be an individual, partnership firm or a company. All the Acts in India that govern trade or commerce are part of Mercantile Law of India. For example, Indian Contract Act, 1872; Sale of Goods Act, 1930; Companies Act, 2013;, etc.

Origin

The Mercantile Law in India developed with the enactment of the Indian Contract Act, 1872. Before this, all the commercials transactions were governed by the personal laws of the party to contract. For example Hindu Law, Mohammedan Law, etc. The first attempt to codify Mercantile Law in India was made by the Britishers in 1872 by the enactment of Indian Contract Act. Since then, numerous laws have been enacted in India to regulate commercial transactions, such as Partnership Act, Negotiable Instruments Act, etc.

Sources Of Indian Mercantile Law

The Indian Mercantile Law has developed from many sources. The following are the main sources of Indian Mercantile Law:

• English Mercantile Law:

The Indian Mercantile Law owes its origin to the English Mercantile Law. For a very long time, India was under the control of Britishers. Therefore, it has a direct influence on Indian law, and Indian Mercantile Law is no exception to it. The dependence of Indian Law on English Law is so high that, in the absence of any provision related to the issue in question, the direct recourse is to refer to the English Mercantile Law. The sources of English Mercantile Law are Common Law, Equity, Law Merchant, and Statute Law. The Common law of England or the judge made law is the preliminary source of Indian Law. It is the unwritten law of England that consists of judicial decisions and customs. With the passage of time, this law became rigid. This rigidity led to the development of Equity in England.

The remedy under Common Law was available by obtaining writs, but the writs were very specific and less than required. This led to dissatisfaction among people. And in many cases, the remedy under Common Law was not adequate. So, the people would appeal to the King. The King transferred the cases to the Chancellor, who would decide those cases by his common sense, natural justice, and conscience. This led to the development of Equity Courts. Law Merchant is the law that consists of the principles developed out of the principles of customs and usages. This ultimately became a part of Common Law of England.

Statute law is the written law of England enacted by the Parliament of England. This written law always overrides the unwritten law i.e. Common Law and Equity. It is one of the very vital sources of Mercantile Law of England. For example English Partnership Act, 1890, Sale of Goods Act, 2015, etc.

• Acts enacted by Indian Legislature:

The greater part of Indian Mercantile law is Legislature enacted. The Acts enacted by the Indian Parliament are that source of law which makes it possible to bring uniformity in Indian Law. Changes can be brought in Indian Law effectively by legislative enactments.

• Judicial Decisions:

Judges interpret the law and put life into the black and white letters of law for its effective implementation. The decision of judges is binding on all subsequent decisions unless overruled by a higher court or a larger bench. For example, the decision of a High Court is binding on all the lower courts under its jurisdiction, and the decision of a Supreme Court is binding on all the courts of India except for the Supreme Court itself. The decision of the Supreme Court has persuasive value for the same bench, but it has binding value in the case, a larger bench gave the earlier ruling.

The doctrine of the binding value of earlier judicial decisions i.e. the precedent is followed to maintain uniformity in delivering justice. Whenever the law is silent on a certain issue, then the judges interpret the law in such a way that the yawning gaps in the law are filled to ensure justice. The precedents have binding value to ensure that no two alike cases are decided on two different principles as this will result in injustice to some. This principle ensures justice for each and every individual along with a measure of certainty for the law itself.

Before independence, the decisions of Privy Council were binding on all the lower courts as it was the highest court of Appeal for Indians. At present, the Supreme Court of India is the highest court of Appeal, and its decisions are binding on all the courts of India. But even today, the decisions of Privy Council and House of Lords are referred to as precedents in deciding certain cases and in interpreting certain statutes in India.

• Customs and Trade Usages:

Customs and Usages had played a very vital role in regulating the commercial transactions in India when there was no codified law. In fact, the codified law of India has given superseding powers to the customs and usages. For example, Section 1 of Indian Contract Act states, “Nothing herein contained shall affect any usage or custom of trade not inconsistent with the Act.”[1] A custom becomes binding when certain pre-requisites are fulfilled. For example, antique, reasonable, consistent with law, not against public policy. Then, the custom is recognized by courts, and it becomes a legal obligation. Hundi is the best example of this, and it has been recognized by the Negotiable Instruments Act as well.

The need for mercantile law is felt when a dispute arises between the two parties to the contract. Awareness about the law of the land is essential as ignorance of law is no excuse. Therefore, each and every individual should have knowledge of the mercantile law of their country. In the absence of knowledge, no rights can be enjoyed, and no obligations can be met.

Footnote:

[1] Section 1, Indian Contract Act, 1872.

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This article is written by Varun Chopra, a student of National University of Advanced Legal Studies, Kochi. This article talks about the process through which CBI chooses which complaints it should act on and proceed to investigate and which ones to reject.

Since the jurisdiction of the CBI has now gone beyond the initial restrictions of just dealing with cases of bribery and corruption, the CBI has started receiving a plethora of complaints dealing with issues relating to social and economic offences as well. Furthermore, these days the government is not the only one who can invoke the jurisdiction of CBI with a notification.

In the case of Nirmal Singh Kahlon vs. State of Punjab[1], The Supreme Court declared that “the provisions of the CBI Manual, from a perusal whereof it appears that the Director, CBI exercises his power of superintendence in respect of the matters enumerated in Chapter VI of the CBI Manual which includes reference by the State and/ or reference by the High Courts and this Court as also the registration thereof. The reference thereof may be received from the following:

(a) Prime Minister of India;

(b) Cabinet Ministers of Government of India/Chief Ministers of State Governments or their equivalent;

(c) The State Governments;

(d) Supreme Court/High Courts“.

The power to invoke the investigative jurisdiction was further opened up to the general public as well, which means that the Central Board of Investigation now gets complaints from a lot of different quarters. As per the provisions governing the working of the CBI, it is mandatory for the Bureau to enter every complaint in the complaint sub-module of the CRIMES module or in the temporary Complaint Register maintained in the branch offices. The sources of these complaints do not matter. They might be from the branch head, from the government or fro the public. The complaints so filed with the CBI office are assigned a temporary number by which the matter is referred to. If the complaints are not sent to the particular branch under whose jurisdiction the case falls, then the complaints are to be centralised and forwarded to the respective branches. Once the complaint has been forwarded to the respective branch which has jurisdiction over it, the complaint is accorded a regular complaint number by the concerned authorities. The complaints so recorded cannot be verified at any stage before the awarding of the regular complaint number by the competent authority. All the complaints so received are treated as highly confidential at all times.

PROCESSING AND VERIFICATION OF COMPLAINTS

Once the complaint has gone through the initial phase of distribution and allotment, the next important step in dealing with these matters is processing of these complaints. When the case has been awarded to the branches having jurisdiction over it, the Superintendent of Police, working at that branch, are required to have a preliminary look at each complaint and decides whether or not it will fall under the ambit of the crimes that can be handled by the CBI. In case the complaint is too trivial and does not merit the attention of the CBI, the case has to be forwarded to the next competent authority at the earliest stage possible. When such a case is forwarded to the next best authority, it should be so done along with an endorsement stating that the case has not been enquired into by the CBI so that the authority getting the case can start investigating it with a fresh outlook. Such disposal of cases should be recorded.

Other complaints which are not too trivial and fall under the ambit of the offences investigated by the CBI are analysed specifically in a way to see whether a criminal offence can be made out, which is of enough proportions to require an investigation by the CBI. Once the case has been analysed and it has been seen that the complaint pertains to an issue which falls within the ambit of the CBI, the same is verified once more with the permission of the competent authority which gets the case. This verification is done in a secret manner. It is the job of the S.S.P and the other verification officers to ensure that the departmental records are examined in a discreet and low-key fashion so as to not alert the public servants against whom the investigation is being initiated. The records that need to be accessed are consulted informally through oral contact with the CVO/Head of the Department of the ministry or the department which the complaint is concerned with. Written requests for information are avoided as per the general policy of the CBI and if such written requests are absolutely necessary, such requests go to the concerned vigilance officers under the signature of the Superintendant of Police.

Such verification must be done away with within a time period of a maximum of three months since the date the complaint was received. In certain cases, where the process of verification is too complicated for it to be completed within three months, an extension of a month can be obtained for the purpose of verification with prior permission of the D.I.G. concerned. To further ensure that the process of verification is done properly the DIG is supposed to review all pending complaints every month and to send a report to the head office with their comments and opinions on how to deal with te complaints that have been pending for more than three months.

The same procedure is to be followed for complaints which have their source in Central Government Departments, Public Sector Undertakings, State Governments, Union Territories and Members of Parliament. However, such complaints are to be dealt with in a more prompt manner. Similarly, for orders to investigate a particular case which have been received from the Supreme Court or the High court, it is mandatory for the S.P to immediately notify the head office and start a processing of the complaint as mentioned above. Orders by the lower court are dealt with in a different manner. In the case of such an order being given by a lower court, the order is to be referred to the head office who decide whether any further action is to be taken or not.

Cases that have been referred to the CBI by the Central Vigilance authority or CVC have to be examined on priority basis. If, before referring the complaint to the CBI, the CVC has already done a preliminary study of the complaint, there is no need to re-verify the complaint. In these cases, the relevant facts and circumstances should be immediately reported to the CVC so that a decision regarding the initiation of a proper and open investigation can be take at the earliest. If the request from the CVC regards a request for a mere report on the complaint, then, a preliminary report without any thorough verification has to be sent back, with a notice stating that the accusations contained in the report have not been properly verified. Also, if a verified complaint is received by the CBI from any special task force, with a Self Contained Note[2] along with orders of the competent authority, the same has to be verified and acted upon as soon as possible.

GENERAL RULES REGARDING INITIATING INVESTIGATION OF COMPLAINTS BY CBI

To further improve the efficiency and effectiveness of the verification process, the CBI follows some general guidelines in respect to dealing with cases. As per these general guidelines, complaints falling under the following categories are usually not considered for verification:

•    Complaints which are anonymous and pseudonymous. Such complaints need not even be sent to the Ministry/Department/ Public Sector Undertaking concerned by CBI. They should be filed after entry in the complaint register. If there is any doubt about a signed or pseudonymous complaint an enquiry may be held to the limited extent to check whether the signature is genuine and whether the signatory admits having sent the complaint and stands by it. On such a check, if it is found that the signature is genuine, further action should be taken as on the basis of a genuine /signed complaint. Otherwise, no further action need be taken. However, if such a complaint is received against the conduct of a CBI agent, then verification will have to be done even if the complaint so signed is under a pseudonym.
•    Complaints containing vague and unverifiable allegations.
•    Where the allegations relate to service matters, which can be better looked into the departmental authorities.
•    Complaints of petty nature not involving specific allegations of bribery or corruption which can be better dealt with by the Vigilance Wing of the department or local Police
•    Complaints not otherwise falling within the purview of CBI.
•    Complaints which have already been looked in to or are being looked into by the department or its Vigilance Wing and the allegations prima facie do not reveal that these would require an open investigation by CBI.
•    Complaints pertaining to matters/incidents, which have occurred in the distant past.
•    Complaints involving only State Government servants or private individuals and which are of no interest to CBI.

Verifications of complaints falling into these categories are to be taken up only under certain special circumstances or if the government passes a notification or a competent court passes an order to that effect. Any other complaint which does not fall into these categories is to be dealt with according to the verification and processing procedure mentioned earlier. As per these rules, any case which falls into the following category have to be taken up for verification:

•    Complaints pertaining to the subject-matters which fall within the purview of CBI either received from official channels or from well-established and recognized public organizations or from individuals who are known and who can be traced and examined.
•    Complaints containing specific and definite allegations involving corruption or serious misconduct against public servants etc., falling within the ambit of CBI, which can be verified

[1] (2009) 1 SCC 441

[2] A Self Contained Note refers to an official document that should be self explanatory, concise and to the point. Information in such notes is to be properly divided into paragraphs, each dealing with a different aspect of the issue in question.

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This article on The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (also known as the SARFAESI Act) is written by Vidit Mehra from Symbiosis Law School.

Introduction

Debt or asset securitisation is one of the latest techniques which financial markets have been witnessing. Under asset securitisation, a financial institution pools and packages individual loans and receivables, creates securities against them, get them rated and sells them to investors in a market. Thus, asset securitisation is nothing but a process of stimulating assets into securities and securities into liquidity on an ongoing basis, increasing thereby turnover of business and profits, while also providing for flexibility in yield, pricing, pattern, size, risks and marketability of instruments.

Development of the SARFAESI Act

The first structured asset securitisation occurred in 1970 in the United States in which securities were backed by a pool of mortgage loans. These pools for security were then sold in the form of certificates to the investors by putting similar securities together. From 1970 to 2000, the securities backed by assets other than mortgage has increased to almost $60 billion. The Financial crisis of 2008 has taken a toll on business all over the world. Post-crisis analysis showed inadequate understanding and pricing of risks inherent in the process of risk transformation. This further lead to the present situation in which India had to develop its own securitisation policy. The previous legislation enacted for recovery of the default loans was Recovery of Debts due to Banks and Financial institutions Act, 1993. SARFAESI Act, 2002 was passed after the recommendations of the Narsimham Committee – I were submitted to the government. This act had created the forums such as Debt Recovery Tribunals and Debt Recovery Appellate Tribunals for expeditious adjudication of disputes with regard to ever increasing non-recovered dues. However, there were several loopholes in the act and these loopholes were mis-used by the borrowers as well as the lawyers. This led to the government introspect the act and this another committee under Mr. Andhyarujina was appointed to examine banking sector reforms and consideration to changes in the legal system. With a view to formalize the operations of the securitisation market in India and to ensure financial discipline and control in respect of the rights and obligation of the players, the legislature passed SARFAESI Act, 2002 which overrides previous Recovery of Debts due to Banks and Financial Institution Act, 1993[1] which is used as an effective tool by banks for bad loans and NPA (Non-performing assets). It is only possible when such NPAs are backed by hypothecation, mortgage or assignment. It aims to regulate securitisation and reconstruction of financial assets and enforcement of security interest. It is only effective in case of secured loans where banks can enforce underlying security and the only exception is agricultural land. Another feature of this act which removes intervention of Courts in this procedure makes it speedy and swift unless the security is invalid or fraudulent.

Operation of securitisation under SARFAESI Act-

Securitisation of assets involves a lending institution termed as Originator, whose loans and receivables will be converted into securities and a trust or Special Purpose Vehicle (SPV), through which the former will liquefy its assets. The Originator picks up a pool of assets which are similar in nature from the balance sheet and passes them on to the SPV through a pass through transaction. It is then converted into marketable securities for investment. The resultant cash flow will enable Originator to create further assets and periodical cash flows from the underlying collaterals by the way of repayment of loans and interest payments will enable the SPV pay off its obligations of principal and interest to its debtors.

Objectives and Application of SARFAESI Act, 2002

The Financial Sector has been one of the key drivers in India’s effort to achieve its success in rapidly developing its economy. While the banking industry in India is progressively complying with the international norms and accounting practices, there are certain areas in which the banking and financial sector require legal framework. In India, banks and financial institutes lack the power to take possession of securities and sell them which has resulted into slow pace of recovery of defaulting loans and mounting level of NPAs of banks and financial institutions. Acting on the suggestions given by two committees, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 came into the picture. This will enable the banks and other financial institutes to realize long-term assets, manage problem of liquidity, asset liability mismatches and improve recovery by exercising powers to take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery or reconstruction.

Features of SARFAESI Act, 2002-

1. SARFAESI Act is Procedural in nature – This act is procedural in nature and lays a procedure for providing remedy of enforcement of security interest in secured assets, not through Court but by the secured creditor directly with the intervention of the Tribunal and Appellate Tribunal are not relevant for holding the Act is not of procedural nature[2].
2. Retrospective provisions of SARFAESI Act- The provisions of this Act have been held to be retroactive in nature. The language used by the legislature in this Act is more than sufficient to show the intention of the legislature to include the transactions of loan already entered into on the date when the Act came into force and therefore, merely because in sub-section (2) of the Section 13 there is a use of words “makes any default”, it cannot be read that the Act would not apply to the loan transaction and security created prior to the Act came into force. If such interpretation is given, it will frustrate the very intention of the legislature and also nullify the effect and operation of number of provisions of this Act. As such the Act intends to cover up all the transactions of loan already entered into the subject to the provisions within the period of limitation and the defaults in making repayment and the debts already classified as non-performing assets and such future contingencies too.
3. Constitutional validity of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002- The constitutional validity of this Act has been upheld by the Supreme Court. There was failure on the part of borrower to discharge his liability in full within the period specified. Notice of 60 days as required was given. After measures under Section 13(4) are taken, mechanism provided under Section 17 of the Act is for the borrower to approach Debt Recovery Tribunal (DRT). On measures taken under Section 13(4) before the date of sale/auction of property, it would be open to the borrower to file appeal (petition) under Section 17 of Act before DRT. Borrowers would get reasonably fair deal and opportunity to get matter adjudicated upon before DRT. Impugned provisions of the Act were not unconstitutional as the object of the Act is to achieve speedier recovery of dues declared as NPAs and better availability of capital liquidity and resources to help in growth of the economy of the country and welfare of the people in general to save public interest. The Constitutional validity of the Act and its provision was upheld except Section 17(2) of Act, which was declared Ultra vires Article 14 of Constitution.
4. Action under SARFAESI Act during pendency of civil suit- During pendency of the bank’s civil suit, the bank can resort to simultaneous action under Section 13(4) of the Act[3].
5. Writ Jurisdiction- The remedy of appeal is available under the Act against actions relating to recoveries of dues of banks and financial institutions. Hence, it is not necessary to resort to writ jurisdiction under Article 226 of the Constitution. Section 13(4)(d) gives power to creditor to require the borrower to pay to the secured creditor a sum of money sufficient to discharge the secured debt such notice is given under Section 13(2). The action to be taken is contemplated under Section 13(4)(d) of the Act. The order passed by the DRT directing bank to proceed under the section during pendency of the petition was upheld.
6. Can Co-operative Banks take action under SARFAESI Act- The provisions of this Act enabling co-operative banks to take resort to the Act cannot be challenged on the ground that members of co-operative banks are governed by the provisions of the bye-laws which inter-alia, provide for filing of suits before the Nominee, which cannot be nullified by the provisions of the present Act. Validity of Securitisation Act so far as inclusion of co-operative banks is concerned cannot be challenged on the ground that since provisions for recovery by co-operative bank is already made under Gujarat Co-operative Societies Act and therefor remedy under any other law is excluded.

Methods of Recovery under SARFAESI Act

According to this act, the registration and regulation of securitization companies or reconstruction companies is done by RBI. These companies are authorized to raise funds by issuing security receipts to qualified institutional buyers (QIBs), empowering banks and Fls to take possession of securities given for financial assistance and sell or lease the same to take over management in the event of default.

This act makes provisions for two main methods of recovery of the NPAs as follows:

• Securitisation: Securitisation is the process of issuing marketable securities backed by a pool of existing assets such as auto or home loans. After an asset is converted into a marketable security, it is sold. A securitization company or reconstruction company may raise funds from only the QIB (Qualified Institutional Buyers) by forming schemes for acquiring financial assets.
• Asset Reconstruction: Enacting SARFAESI Act has given birth to the Asset Reconstruction Companies in India. It can be done by either proper management of the business of the borrower, or by taking over it or by selling a part or whole of the business or by rescheduling of payment of debts payable by the borrower enforcement of security interest in accordance with the provisions of this Act.

[1] Garlon Polyfab Industries v. State Bank of India (2003) 3 BC 626

[2] Apex Electrical Ltd. v. ICICI Bank Ltd., 2003 CLC 1323, (Guj.)

[3] Sushil Kumar Agarwal v. Allahabad Bank, (2004) 2 BC 94

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This article on Preliminary Enquiry by CBI is written by Varun Chopra, a student of National University of Advanced Legal Studies, Kochi.

In the cases where the information and the complaints received by the CBI in relation to a particular case is such that there is enough evidence to show misconduct of the public servants but, not enough to justify the registration of a case under Section 154 of the Code of Criminal Procedure, a preliminary enquiry is usually initiated.

Conditions To File A Preliminary Enquiry

Such preliminary enquiries can only be initiated with the consent and orders of the competent authorities. Even in cases which have to be investigated as per the orders of the Supreme Court and the High Courts, if a preliminary enquiry is to be initiated, the same can only be done after receiving the consent and orders of the head office.

In a case where the commission of a cognizable offence is apparent according to the complaint or the information provided to the CBI, a preliminary enquiry cannot be registered.

Therefore, it is necessary that the Superintendent of Police must carefully analyse the material available at the time of evaluating the verification report submitted by the Verifying Officer so that the registration of a preliminary enquiry is not resorted to in situations where Regular Cases can be filed under Section 154 of the CrPC.

When the verification of a complaint as well as source information reveals the fact that a cognizable offence has indeed been committed, a preliminary enquiry can be changed into a regular case as is enjoined by the law. In certain cases, like when a case regarding the unnatural death of a person is referred to the CBI for enquiry, a preliminary enquiry is to be setup to ensure that the cause of death is ascertained and to decide whether there is enough evidence for the filing of a regular case.

Whenever there are requests from other branches to include a part of enquiry in their Preliminary Enquiry within the local limits of the branch concerned, the complaints should be  entered by the latter branch. However, the procedure for the same is a little different. These cases are to be recorded in a separate crime register of Personal Enquiry and given a serial number for reference. The SP receiving such request may get the part- enquiry done at the earliest and forward the report to the concerned SP as early as possible.

• Which cases can be Investigated by CBI?

Registration Of A Preliminary Enquiry

There are various important things that are to be kept in mind while registering a preliminary enquiry pertaining to the abuse of official position by a public servant.

For instance, in the case of abuse of official powers in the matter of business or commercial decisions, one matter that needs to be reviewed very carefully before initiating a preliminary enquiry is the difference between a legitimate business risk and malafide intentions.

This ensures that decisions are taken in good faith by the officials.

Hence,  the decisions that are a bit risky will not be investigated by the CBI as it’s the legitimate business risk but, any mala-fide intention that is shown in a business decision, taken by an official, will be investigated and prosecuted as a corrupt act.

The registration of a Preliminary Enquiry against a retired Civil Servant should be resorted to very rarely. Section 9(2)(b) of the Central Civil Service Pension Rules, 1972, the Departmental proceedings, if not instituted while the Government Servant, when the said servant was in service, the same can not be instituted, whether before his retirement or during his re-employment, such a suit can not be instituted, in respect of any event, which took place more than 4 years before him/her leaving such institution.

If such proceedings are to be instituted, it can only be done with the consent of the president of India. Therefore, the decision to register a PE against retired Government Servants should be taken at a senior level and after careful examination of all the facts in the light of the provisions detailed above.

In cases where it becomes clear that soon after the enquiries are started, nothing useful is likely to come out or that the case is really fit for a departmental probe only. No time should be wasted over such cases and the Preliminary Enquiries should be recommended for the closure or for departmental probe, as may be appropriate, as early as possible.

Creating A PE Registration Report

As soon as it is decided to register a preliminary enquiry, the Superintendent of Police report prepared, which has to be vetted by him in any case. In certain cases, where the enquiry regards a situation of critical importance, the enquiry can even be drafted by the Superintendent of Police.

Registration Report of PE should be written in the PE Registration Report Form and not on the form prescribed for recording First Information Report under Section 154 Cr.P.C..

A registration report should contain the allegations levied in the complaint, along with all important details about the suspects involved in the case.

If the case involves the public servants, the registration report should include:

1. Their Group
2. The Service they worked for
3. Present designation
4. Scale of pay
5. Present pay
6. Date of superannuation (if available)

In those cases where the names of more than one suspect is involved in the complaint, extreme care should be taken while drafting a Preliminary Enquiry report.

• Only those suspects should be named in the Preliminary Enquiry Registration Report to whom overt acts have been attributed to.
• Officers of the rank of SP and above should, therefore, thoroughly scrutinize every draft PE Registration Report from this point of view and satisfy themselves, that persons against whom no prima facie evidence is available are not named in the PE Registration Report.
• A serial number of the branch shall be allotted to each Preliminary Enquiry Registration Report in the format prescribed in CRIMES module.
• The relevant details will be entered in the CRIMES module immediately thereafter.
• Wherever the CRIMES Module is not operational, the same may be entered in the Crime Register of PE.
• Developments in each PE will be noted in the CRIMES Module or the relevant columns of the register from time to time.

Collection Of Evidence

The preliminary Enquiry into the complaints that have been vetted should be done in a quick and efficient manner.

• The enquiries related to allegations of corruption should be restricted to the scrutiny of records.
• The interrogation of persons should be done in a way that it provides enough information in less time.
• To ensure all the substances in the complaint have been enquired .
• To decide whether the case is worth pursuing or not.
• The documents and records so collected should be done in lieu of a proper receipt memo.
• The statements being made by the witnesses under the course of investigation under the Preliminary Enquiry should be recorded in the same manner as it is done in the case of the investigation under the Regular Cases.

However, issuance of notices under sections 91 and 160 of the Code of Criminal Procedures.

Conclusion Of Preliminary Enquiries

In Case Of The PEs Against The NGOs in which “Suitable Action” by the concerned Department is recommended-

• The documents collected from the Department- to which the suspect public servant belongs – can be sent to the CVO of the concerned Department, along with the SP’s Report- with a detailed list.
• If some documents have been collected from other departments Or private persons/firms etc., they need not to be sent to the CVO along with the SP’s Report their certified copies would suffice instead .
• After the SP’s Report is despatched to the CVO of the concerned Department, the Branch SP should write a D.O. Letter to the CVO asking him to let him know specifically- within a period of two months from the date of receipt of the SP’s Report- whether he requires any of the documents collected from other departments, private persons/firms or whether those may be returned  to the departments/parties from which these were collected.
• If the SP receives any request from the CVO, he may examine the same in the interest of the case and act accordingly.

In PEs Against The Gazetted Officers in which only “Suitable Action” is recommended-

• All the documents can be kept in the Branch Malkhana till the advice of the CVC is received by the department and their final decision is known.
• If the CVC also agrees with the CBI recommendation for “Suitable Action”, the documents can be sent to the CVO in the aforementioned manner.

In cases in which the CVO desires to see the documents collected from other departments or parties before deciding the nature of administrative action, they can be shown or sent to him with a detailed list.

Completion Of Preliminary Enquiry

The process of the preliminary Enquiry must be finished within 3 months of the initiation of the enquiry. Hence, the respective DIsGs are supposed to monitor all the Preliminary Enquiries which are been pending for more than three months.

At the conclusion of enquiry in every PE, the Investigating Officer will prepare an Enquiry Conclusion Report in the prescribed form and submit it to the Superintendent of Police.

The SP will pass final orders in respect of PEs, involving non-gazetted public servants and Non-Commissioned Officers.

In appropriate cases, the SP may dispense with preparation of FR-II by the Law Officers. He shall seek orders from the Regional DIG/Zonal JD/Head Office, as the case may be, in respect of the cases of other categories by forwarding Enquiry Reports along with his comments. Final Report in the prescribed form need not be prepared when a PE is converted into RC.

This’s all about Preliminary Enquiry by CBI for now. Did you find this post useful? Let us know in the comments section. Don’t forget to Share!

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This article on “Should National Anthem Be Made Necessary in Movie Halls?” is written by Ishita Mehta.

With an aim to create and instill patriotism and nationalism in citizens, the Supreme Court has come out with a ruling  that the National Anthem should be played in all cinema halls across India before screening of a film, accompanied by national flag on screen. This step has been taken because of the belief by the Honorable judges that the citizens of India don’t really know how to sing the national anthem and people must be taught.

• There have been different reactions by Indians with respect to mandatory singing of National Anthem. “It can rile, it can rally, it can inspire or enrage”.
• Many have taken stand in favor of  this Law being enforced. Many have argued for standing up during the National Anthem. “What’s the harm in standing?”

There are a lot of people who actually believe that there is nothing wrong in standing and it is a matter of just a minute which leads to nothing bad. They believe that this will again awaken the feeling of nationalism in Indian Citizens and everyone should stand up for the pride of India.

According to ANI, the order comes with additional caveats such as everyone present in the hall must rise and “pay respect” to the National Anthem. The court said- “Time has come when people should feel they live in a nation” and “even in  Shastras, nationalism was accepted.

The plea had said that Maharashtra, Goa and several southern states have had the practice of playing the national anthem in cinema halls and also observed that a few decades ago, it was mandatory to play the national anthem at the end of the screening of a movie. It has also been said by the judge that all the doors of cinema halls must be closed when the national anthem is being played to prevent people from entering or exiting.

Also, a protocol has been issued for the playing or singing of the anthem at functions where constitutional dignitaries are in attendance.

An average Indian may not watch more than a movie in theater in a month. The national anthem is merely for 52 seconds. We can surely give 52 seconds of our time in a month for singing national anthem and remember the sacrifices made by our freedom fighter for liberating our country.

• SCs stand on playing ” jana gana mana” in cinema hall

Is The “Imposition” Really Working?

Unfortunately, the sense of patriotism does not kick in where it should for most of these people. There have been a lots of incidents relating to public heckling of citizens who aren’t standing up during the singing of the national anthem.

But, by jeering or heckling someone inside a theater for a reason purely personal, and by making them leave out of sheer exasperation, it gives them a sense of dominance. It gives them this false sense of achievement where they think they stood up for their nation and its pride.

The Ministry of Home Affairs (MHA), in orders relating to the singing of the Anthem, says- “Whenever the Anthem is sung or played, the audience shall stand to attention”, but, the order does not say anything about any penalty or any monetary compensation for failure to comply with the order. So, basically here it serves as an advisory role.

Here, I am also gonna talk about Section 3 of the Prevention of Insults to National Honour Act, 1971 which says that Nobody should intentionally cause any disturbance to the assemble engaged in singing and prevent singing of the Anthem. If they do cause any disturbance they will be punished with the imprisonment of the term, which may extend to three years or they can ask you to pay a certain amount of fine. By this accord, those who force others to stand or leave if they don’t ‘respect’ the National Anthem in turn are creating a ruckus and are in fact those who do not respect the National Anthem.

But, cinemas refuse to take an official stand on-`whether a person should stand or not’; They say it’s up to each individual. But the MHA ( Ministry of Home affairs) has stated an exception in this segment i.e in any course of a newsreel or documentary, if the anthem is played, there is no need of audience to stand up as it will lead to dilemma and confusion among-st everyone.

There is a little  history behind this sudden playing of national anthems before screening in the movie theater. In 2003, the then Congress-NCP government had accepted a demand from the Nationalist Youth Congress to restart and enforce the practice of playing the national anthem before each film, which had faded in the 1980s.

Till the 1980, news reels screening important national or international events had the national anthem as a part of it. Exhibition of films is a state subject and Exhibitors have produced their own versions of the national anthem which they are currently playing before a film screening and such films will then fall into the category of short films and it is approved  as per the Cinematography Act, 1952.

Playing National Anthem Is Not A Good Idea!

There also have been a lot of views against playing of the National Anthem in the theatres. People have been wondering that how can playing of National Anthem can put a Patriotic feeling inside every citizen. It has come to this point that citizens of India don’t want to show  patriotism, respect and love for this great country by singing the national anthem in a cinema hall. Basically, they have been saying that people go to the cinemas for just some entertainment and not to get any certificate on patriotism. Playing the National Anthem can be mandated only in school and colleges.

It has been said that the love and respect should come from within and not just by singing the national anthem before start of a film. Also, according to The Orders Relating To The National Anthem Of India, cinema halls are not listed as one of the places to showcase the National Anthem.

The simpler argument, however, is that you have a captive audience which is there to watch a film and if you play the National Anthem just before the film starts, the audience have literally nowhere to go but be a part of it. It is a way in which the government is force-feeding you national pride and this can totally dilute the importance of National Anthem when played before the film.

There have been a lot of cases where people have been harassed and forced to get out of the cinemas.

This only makes it cheaper by forcing people to listen to it and then add to this the hooligans who take it upon themselves to serve ‘justice’ when someone does not want to get up. People believe that this is promoting a spirit that has nothing to do with patriotism of any sort.

The National Anthem was last ordered to be played in cinemas in India after the country’s 1962 war with China but the practice was discontinued in 1975 after most moviegoers ignored it.

In the sixties, after the India-China war, it was mandatory for cinema halls to play the national anthem after every movie, but the disrespect led to the practice being discontinued.

I wonder where next we might be required to display our patriotic credentials. It is no one’s case that the national anthem or flag not be shown due respect but a movie theater, where people are not really focused on nationalistic sentiments – unlike say a major sporting event – seems hardly the place to reiterate one’s patriotism.

Using potent symbols of nationalism and patriotism in mundane circumstances or places, could undermine their effectiveness in inspiring people. Of course, now that the apex court has ruled, theaters will have no choice but to carry on with this. But, it promises to increase the chaos and confusion that we already see in any public space and takes away a bit of the enjoyment people might hope to experience, while talking in a movie, while letting down their hair.

Opinions of people should be taken into account. My opinion here is to let the anthem play in the movie halls on special days, like the Republic Day or Independence day.

Playing it on every single day before every show in every theater in the country is over doing it, in my opinion. Of course, I will stand up whenever and wherever the anthem is played if this decision is enforced. But, when it is forced down on millions of people, like this, it detracts from the specialty of the anthem. A movie hall experience is not a formal Government inauguration ceremony, or convocation or similar formal functions.

Lastly, I would like to quote a few words by Rabindra Nath Tagore.

“Clever lies become matters of self-congratulation. Solemn pledges become a farce—laughable for their very solemnity. The Nation, with all its paraphernalia of power and prosperity, its flags and pious hymns, its blasphemous prayers in the churches and the literary mock thunders of its patriotic bragging, cannot hide the fact that the Nation is the greatest evil for the Nation. that all its precautions are against it and any new birth of its fellow in the world is always followed in its mind by the dread of a new peril.”

― Rabindranath Tagore, Nationalism.

What Do you think about playing of National Anthem in Cinema Halls? Should it be mandated? Drop your views in the comment box below & invite a lucrative discussion.

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This article on “How to Get Divorce Without Mutual Consent-Complete Guideline” is written by Anubhav Pandey.

In India divorce for Hindus under the Hindu Marriage Act, 1955 can be enforced in two ways-

• One is through mutual consent (Section 13B of the Act), and
• The other is by the wish of any one party.

Suggested Read: Grounds for Dissolution of a Marriage

When one of the party in a marriage is not willing to give divorce then the option left is to fight for divorce in a court of law and such divorce are called contested divorce.

Under the Hindu Marriage Act, 1955, any marriage solemnized, on a petition presented by either the husband or the wife will be dissolved by a decree of divorce on any of the following ground mentioned below.

Grounds Of Divorce Without Mutual Consent Applicable To Both Husband & Wife

• If other party in a marriage have sexual intercourse with someone else after solemnization of the marriage, it results in a valid ground for divorce without mutual consent under the Hindu Marriage Act;
•  After the solemnization of the marriage, treated the partner with cruelty;
• The other party has deserted the divorce seeker for a continuous period of not less than two years, immediately preceding the presentation of the petition;
• The other party has ceased to be a Hindu by conversion to another religion;
• The other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent, that the divorce seeker cannot reasonably be expected to live with the other party in a marriage.

Mental disorder is mental illness, or incomplete development of mind. Psychopathic disorder or any other disorder or disability of mind includes schizophrenia.

Psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.

•  The other party has been suffering from a virulent and incurable form of leprosy;
• The other party has been suffering from venereal disease in a communicable form;
• The other party has renounced the world by entering any religious order;
• The other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, if the party had been alive.

Along with the above conditions, either party to a marriage, may also get a divorce without mutual consent for the dissolution of the marriage on any of the following grounds too-

1.  There has been no resumption of cohabitation as between the parties to the marriage for a period one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties.
2. There has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

Rights Given To A Wife Only for Divorcing The Husband

A wife under the Hindu Marriage Act, 1955, can contest for divorce without mutual consent on the following grounds-

• The husband had married again or that any other wife of the husband married before the contented marriage was alive at the time of the solemnization of the marriage of the petitioner, provided that, in either case, the other wife is alive at the time divorce is contested.

The Necessary Ingredients of The Section Are:

• Having a husband or wife living,
• Marries again in any case,
• Such marriage should be void,
• By reason of its taking place during the life of such husband or wife.

• The husband has, since the solemnization of the marriage, had been guilty of rape, sodomy or bestiality.

If Other Party is Involved in Sexual Intercourse With Someone Else After Marriage – a Valid Ground for Divorce under Hindu Marriage Act

A single act of voluntary sexual intercourse by a marriage partner with any person other than their spouse is a ground for a decree of divorce without mutual consent under Section 13 (1) (i) of the Hindu Marriage Act,1955.

The birth of a child during the marriage is conclusive proof of legitimacy unless it can be shown that the parties to the marriage had no access to each other at any time when they could have been together.

The contention that, wife has been living separate from him since June,1973 and she gave birth to a child on 1st May,1974 and therefore, it must be held that the wife had voluntary sexual intercourse with a third person, proved to be a valid ground for divorce without mutual consent on the satisfaction of several other considerations.[1]

After the Solemnization of Marriage, Treatment of Divorce Seeker with Cruelty – a Valid Ground for Divorce

Cruelty comprises of both physical as well as mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party.

The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence, is of greater cogency in cases falling under the head of mental cruelty.

Thus, mental cruelty has to be established from the facts.[2] Cruelty for the purpose of divorce is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that, it is not safe for him or her to continue the matrimonial relationship with the other.[3]

The Other Party has Deserted the Divorce Seeker for a Continuous Period of Not Less Than Two Years Immediately Preceding the Presentation of The Petition or Desertion – A Valid Ground for Divorce

In its essence desertion means the intentional forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but, from a state of things.

In order to get a decree on the ground of desertion, the petitioner must establish that the other party has deserted him/her for a continuous period of not less than two years immediately preceding the presentation of the petition without reasonable cause and without the consent or against the wish of the petitioner. [4]

The Other Party has Ceased to be a Hindu by Conversion to Another Religion- A Valid Ground for Divorce

Also, when a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or to her after such conversion and their descendants, are disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when succession opens. [5]

The Other Party in a Marriage is of Unsound Mind, Or has Been Suffering Continuously or Intermittently from Mental Disorder – Valid Ground for Divorce

Section 13(1)(iii) of the act does not make the mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of a marriage. The context in which the ideas of unsoundness of “mind” and “mental disorder” occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the mental disorder.

Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognized as grounds for grant of decree.

If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would indeed survive in law.[6]

Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible, it may furnish a good ground for nullifying the marriage because, to beget children from a Hindu wedlock is one of the principal aims of Hindu marriage where samskara of marriage is advised for progeny and offspring.[7]

The Other Party has been Suffering from a Virulent and Incurable Form of Leprosy – A Valid Ground for Divorce

Leprosy is an infectious disease, chronic, contagious, resulting in disfigurement, one of the causes of permanent disability in the world and is primarily a disease of the poor.

Leprosy is a ground for divorce and judicial separation under most of the matrimonial laws of the Indian communities. Incurable and virulent form of leprosy is a ground for divorce (or judicial separation) without mutual consent and also the Venereal disease in a communicable form come with refinement and the question as to whether or not the petitioner had communicated the disease to the respondent is now immaterial.

Renounced the World by Entering any Religious Order – Valid Ground for Divorce

The requirements of this ground are two:

1. Renunciation of world by the respondent, and
2. Entering into a holy order by him.

• A person may renounce the world, such as when he does not take any interest in the worldly affairs or retires to a single room, withdraws from cohabitation, or takes a vow of celibacy, or becomes a mauni, yet he may not join a holy order. Such a spouse will not be covered under this clause, though his conduct may amount to desertion or cruelty.

Unless the second condition is also fulfilled, the other spouse cannot sue for divorce (or judicial separation) without mutual consent under this clause.

• A person enters into holy or religious order when he undergoes the ceremonies and rites prescribed by the order, which he has entered.

Becoming a chela of a guru does not by itself mean entering a holy order may not always amount to renunciation of the world. The mere fact that a person declares that he has become a sanyasi or that he calls himself or is described by others as such or wears clothes ordinarily worn by sanyasis, would not be sufficient to make him a perfect sanyasi.

Other Party has Not been Heard of as Being Alive for a Period of Seven Years or More by Those Persons Who Would Naturally have Heard of It, If the Party had  Been Alive – A Valid Ground for Divorce

• The lady seeking divorce without mutual consent in a case was 24 years of age when she got married. The marriage lasted for four to five months only when she was compelled to leave the matrimonial home.
• The marriage between the parties was not consummated as the respondent was not in a position to fulfill the matrimonial obligation.
• The parties have been living separately since 1993.
• 13 years have passed they have never seen each other. Both the parties have crossed the point of no return.

A workable solution was certainly not possible. Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream. The lady seeking divorce without mutual consent did her PhD.

In such a situation, court decided in favor of wife and granted a divorce.[8]

After Judicial Separation, No Resumption of Cohabitation for One Year or More- A Valid Ground for Divorce

Judicial separation is when, still being legally married the couples are living separately in separate house.

If there is sexual intercourse of the parties to the marriage, it is no doubt a good ground to presume the resumption of cohabitation but, that is not the conclusive evidence for this purpose.[9]

In the relationship of husband and wife, once there is judicial separation without contesting the matter seriously before the court and if the matter is not retrieved, it is in the interest of the justice that marriage be put to an end to as early as possible.

If the wife had obtained decree for restitution of conjugal rights but, the husband did not respond to it, even if she wanted to resume cohabitation the husband did not want it, in such a situation divorce without mutual consent is granted.

If it is proved by either party that still after a period of one year, there is no resumption of cohabitation between husband and wife and this will be a suffice ground for divorce.

No Restitution of Conjugal Rights for One Year or More – A Valid Ground for Divorce

The remedy of restitution of conjugal rights presupposes the existence of marriage between the parties. According to Hindu Law, marriage is a holy union and the relationship between the husband and wife imposes upon each other certain marital duties and gives each of them certain marital rights.

The petitioner applying for restitution decree will have to prove two things:

• Firstly, that the respondent has withdrawn from the society of the petitioner, and
• Secondly, that such withdrawal has been without reasonable excuse.

The court may order restitution of conjugal rights if it is satisfied of the truth of the statements made in the petition and that there is no legal ground why the decree should not be granted.

The power of the court to grant a decree for restitution of conjugal rights is discretionary. Non-resumption of cohabitation for a period of one year or upwards, after the passing of the decree for restitution of conjugal rights, is a ground for divorce available to either party to a marriage under Sections of Hindu Marriage Act.

A Wife has These Following Absolute Grounds to Seek Divorce – Section 13(2)

1. When husband is already Married – A valid ground for divorce without mutual consent. Section 494 of IPC says.

Marrying again during lifetime of husband or wife—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, will be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Generally speaking, three kinds of decrees can be obtained, namely- restitution of conjugal rights, judicial separation and divorce, and almost all of those can be prayed for by either spouse, except those under section 13(2), which remedy is available to the wife alone.

Where a husband is already married and still enters into the sacred bond of marriage, it is a valid ground for divorce. This section empowers women as there were many cases where conversion of Hindu men into Islam for the purpose of marriage was observed.

2. Husband guilty of Rape, sodomy, bestiality
Second ground, available only to women for seeking divorce is, when husband since solemnization of marriage been guilty of rape, sodomy or bestiality.

3. Married before 15 and repudiated the marriage before the age of 18  → A valid ground for divorce without mutual consent only for women under Hindu Marriage Act.
When a women proves that her marriage was solemnized before she attained the age of fifteen years and she repudiated the marriage before attaining the age of eighteen years, it is a valid ground for divorce without mutual consent under the Hindu Marriage Act.

To attract this provision the marriage should have been solemnized before she attained the age of 15 years and she has to repudiate the marriage after attaining that age but, before attaining the age of 18 years. The conditions for a Hindu marriage are informed in Section 5 of the Hindu Marriage Act, 1955.

Section 5(3) places requirement that the bridegroom should have been completed age of 21 years and the bride 18 years at the time of marriage. Noteworthy, it is that the breach of such condition does not render the marriage void under Section 11 or voidable under Section 12.

That’s all about “How to Get Divorce Without Mutual Consent” for now. In case you’ve an extra knowledge about the topic, feel free to share it with us in the comments box below. We’ll love to update it through our next article.

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References,

[1] 1981 SCC OnLine Del 364
[2] Mulla’s Hindu Law, 17th Edn., Vol. II, p. 91
[3] Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706
[4] Bankim Chandra Banerjee v. Chinmoyee Banerjee, 2003 SCC OnLine Cal 512
[5] The nature of the changes introduced in the Hindu Law in respect of the Law of Inheritance with regard to Women, (1959) 72 LW (JS) 27,Sri D. Krishnamurthi Iyer
[6]  Ram Narain Gupta v. Rameshwari Gupta, (1988) 4 SCC 247
[7] Alka Sharma v. Abhinesh Chandra Sharma [AIR 1991 MP 205]
[8] Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778
[9] 1999 SCC OnLine Bom 578

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