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Jan 31, 2024

Centre for Research in Schemes and Policies (CRISP) Fellowship 2024

About CRISP Centre for Research in Schemes and Policies (CRISP) is an organisation formed by 10 senior civil servants, who have served at the level of Secretary to Government of India, for working with the State and Central Governments for designing/redesigning schemes and policies in the Social Sector. It desires to make large-scale impact by conducting ‘concurrent evaluation’ of schemes, setting up monitoring systems, and drafting policies covering rural, urban development, poverty alleviation, education, health and institution building. The objective of CRISP is to bring systematic reforms, thus shifting focus from input-oriented implementation to outcome-focused roll-out. More details about the organisation can be had at www.crispindia.net. About the Fellowship The CRISP Fellowship Programme is a one-of-its-kind experiential learning model in India that involves strategic collaboration between CRISP and State/Central governments, helping young professionals work at high echelons of governance in the social sector. The Fellowship provides a platform for young talent to drive impactful large scale projects while working closely with the public administration. Eligibility A bachelor’s degree or higher from a renowned educational institution in policy-relevant subjects including Public Policy, Economics, Development Studies, Business Management, Law, Human Resources, Accounting etc. Candidates with academic and practical experience in technology, data management and analysis, and systems design/architecture are also encouraged to apply. Good educational record, and evidence of having participated in activities or should have internships in socially relevant programmes at the college level. Upto 2 years of work experience after graduation in social sector – covering areas such as education, rural development, health and gender empowerment. Proficiency in English and in one among following languages- Tamil/Telugu/ Kannada/Hindi. Exceptional writing skills to prepare Professional and Research Reports. Maximum age at the time of application shall not exceed 30 years. Lock-in period (Duration of Fellowship) Only candidates who are willing to spend 2 full years on this Fellowship shall apply. No person awarded the Fellowship shall leave the Fellowship programme before conclusion of 12 months. In the event the Fellow has to exit the Fellowship programme within one year, the entire cost on the Fellowship programme invested by the organisation shall be recovered as decided by the organisation before relieving the Fellow. Not withstanding the above, if the performance of the Fellow is found to be below par, the organisation can terminate the Fellowship with one-month notice period. Fellowship structure The Fellowship will be a two-year full time paid programme. Will be allotted a project arising out of MoU with State or Central Government. Expected to study/implement the project independently and after making field visits. Prepare an action plan giving goals, strategies, implementation process, expected outputs and anticipated outcomes. The plan should have activity-wise timelines. CRISP Fellows will work under the overall supervision of a State Team Leader. Fellowship compensation Each CRISP Fellow will receive a monthly Fellowship amount of Rs. 75,000/-, subject to taxes. 5% of this would be the variable pay released at the end of the year based on assessment of performance. In addition, travel expenses for field visits undertaken in the state will be reimbursed. Application process Application shall be online on the website only Applicant shall enclose a Statement of Purpose stating why she thinks she is the best fit for the CRISP Fellowship (in about 500 words) Submit an assignment answering a problem statement that would be displayed in the Application Form. Important Dates Application Start Date : 6 th January, 2024 Application deadline : 5 th February, 2024 Intimation of shortlisting of top-100 for the 2nd round : 10th February 2024 2nd Round – Group Discussions (on VC) : : 13th and 14th February Final round (interviews on VC for the top 20) : 20th/21st/22nd Febrary Declaration of result and Offers : 25th February 2024 Joining and start of orientation programme : 3rd April, 2024 Contact Details Centre for Research in Schemes and Policies Email : [email protected] , [email protected] Important Links Click here to read the application process in detail. For brochure click here Refer to the official publisher here

Pooja

Jan 31, 2024

Understanding Contracts; Binding and Non-Binding

In the intricate choreography of our daily lives, contracts act as silent conductors, orchestrating exchanges and upholding promises. From renting an apartment to buying a car, from collaborating on a project to signing up for a gym membership, contracts permeate every corner of our interactions. But within this vast, complex realm, a crucial distinction emerges: the line between binding and non-binding contracts. Understanding this distinction is essential for protecting your rights and ensuring smooth sailing in a world governed by agreements. The Essence of Contracts: Legality and Intent At its core, a contract is a legally enforceable agreement between two or more parties. It outlines the mutual exchange of promises, with each party committing to specific obligations in return for something of value from the other. These obligations can be tangible, like delivering goods or performing services, or intangible, like confidentiality or loyalty. For an agreement to qualify as a binding contract, it must fulfill several key elements: Offer and Acceptance: One party must present a clear proposal (offer), which the other party explicitly accepts, creating a mutual understanding of the terms. Consideration: Each party must receive something of value (consideration) from the other, be it money, goods, services, or even a legal obligation. Capacity: All parties involved must have the legal capacity to enter into a contract, meaning they are of sound mind and legal age. Lawfulness: The contract's terms cannot violate any laws or public policy. Once these elements are in place, the contract becomes legally binding. Breaching the terms of the contract, without a valid reason or excuse, can have legal consequences, ranging from compensation to termination of the agreement. The Shades of Grey: Stepping into the Non-Binding Realm But not all agreements rise to the level of binding contracts. In the grey area between contracts and simple conversations, lie non-binding agreements. These are essentially promises that lack the necessary elements to be legally enforced. Some common examples include: Agreements in principle: These are preliminary discussions or "good faith" understandings, typically used to explore the feasibility of a future contract. They lack the specificity and formality required for legal enforceability. Agreements lacking consideration: If one party offers something of value but receives nothing in return, the agreement may not be enforceable due to lack of consideration. Social understandings: Casual arrangements with friends or family, like sharing a meal or splitting a taxi fare, often fall under this category. They are governed by trust and social etiquette, not legal obligations. While non-binding agreements lack legal teeth, they still carry practical value. They can serve as helpful tools for: Building trust and communication: Informal agreements can establish good faith and pave the way for future collaborations. Outlining basic terms: In complex negotiations, preliminary agreements can lay out the foundation for a formal contract to be drafted later. Guiding expectations: Even without legal enforceability, non-binding agreements can clarify expectations and prevent misunderstandings between parties. Deciphering the Contractual Landscape: Recognizing the Clues So, how do you differentiate a binding contract from a non-binding agreement? Here are some helpful clues: Formality: Formal contracts are often written documents with clear terms and conditions. Non-binding agreements can be verbal, informal emails, or simple handshakes. Specificity: Binding contracts outline specific obligations and timelines, while non-binding agreements tend to be more general and flexible. Legal language: Binding contracts often use legal jargon and phrases like "consideration," "agreement," and "warranty." Non-binding agreements tend to use simpler language. Intention of the parties: Ultimately, the intention of the parties involved plays a crucial role. Did they intend to create a legally enforceable agreement, or were they merely exploring possibilities? Navigating the Maze with Confidence: Tips for Contractual Success Whether you're entering a binding or non-binding agreement, there are steps you can take to ensure clarity and minimize potential for conflict: Communicate clearly and openly: Express your expectations and listen attentively to the other party's understanding. Document everything: Even for non-binding agreements, putting key points in writing can prevent misunderstandings later. Seek professional advice: For complex contracts, consult a lawyer to ensure your interests are protected. Understand your rights and obligations: Whether the agreement is binding or not, know your rights and responsibilities under the terms.

Tripti

Jan 24, 2024

Key Clauses in Employment Contracts and Red Flags to Avoid

Introduction Entering into a new employment arrangement is an exciting yet critical step in one's career journey. An employment contract serves as the cornerstone of this relationship, outlining the terms and conditions that both the employer and employee agree upon. However, it's crucial to carefully scrutinise the clauses within the contract to ensure a fair and transparent agreement. In this article, we'll delve into the important clauses in employment contracts and highlight red flags employees should be cautious of to safeguard their interests. Job Description and Duties The job description and duties outlined in the employment contract set the foundation for the employee's role within the organization. It's imperative to ensure that the document accurately reflects the responsibilities expected of the employee. Red flags may include vague or overly broad language, as this can lead to misunderstandings later on. Employees should seek clarity on their day-to-day tasks, reporting structure, and performance expectations to avoid potential conflicts in the future. Compensation and Benefits One of the primary reasons individuals seek employment is for financial stability. The compensation and benefits section of an employment contract is pivotal in understanding how the employee will be remunerated for their services. Pay attention to details such as salary, bonuses, benefits (healthcare, retirement plans, etc.), and any potential incentives. Red flags may include ambiguous language regarding the calculation of bonuses or unexpected deductions from the salary. Working Hours and Overtime Understanding the standard working hours, overtime policies, and compensation for additional hours worked is essential. Some contracts may include clauses that require employees to work beyond regular hours without proper compensation or clarification on overtime rates. Employees should be cautious of such red flags and negotiate fair terms regarding overtime pay to avoid exploitation. Non-Disclosure and Confidentiality Agreements Many employment contracts include clauses related to non-disclosure and confidentiality. While it is common for employers to protect sensitive information, employees must be aware of the extent of these obligations. Red flags may include overly restrictive confidentiality clauses that hinder an employee's ability to pursue future opportunities or share industry knowledge. Non-Compete Agreements Non-compete agreements restrict employees from working for competitors or starting their own competing business for a certain period after leaving the current employer. While these clauses can be valid under specific circumstances, red flags arise when they are excessively broad or have an unreasonable duration. Employees should carefully consider the impact of such restrictions on their future career prospects before agreeing to them. Termination Clause Understanding the circumstances under which employment can be terminated is crucial for both parties. Pay close attention to the termination clause in the contract, including notice periods, severance packages, and reasons for termination. Red flags may include unilateral termination rights heavily favoring the employer or vague language that leaves room for arbitrary dismissals. Intellectual Property Ownership Many employment contracts include clauses regarding the ownership of intellectual property created during the course of employment. Employees should be aware of the scope of these clauses and ensure that they do not unintentionally surrender rights to their personal creations outside the scope of their job duties. Dispute Resolution and Arbitration The dispute resolution mechanism outlined in the employment contract determines how conflicts between the employer and employee will be addressed. Some contracts may include mandatory arbitration clauses, limiting the employee's ability to take legal action in court. Red flags may include clauses that heavily favor the employer or deny employees their right to a fair dispute resolution process. Notice Period and Resignation The notice period required for resignation is a critical aspect of an employment contract. Both parties should be aware of the time frame within which notice must be given before terminating the employment relationship. Red flags may include excessively long notice periods that could hinder an employee's ability to transition to a new job promptly. Miscellaneous Clauses Employment contracts often include miscellaneous clauses that cover a range of issues, such as force majeure, governing law, and amendments to the agreement. Employees should carefully review these clauses and be wary of any that could potentially disadvantage them. Red flags may include clauses that grant the employer unilateral power to modify the contract or ones that are heavily skewed in favour of the employer. Conclusion Carefully reviewing employment contracts is crucial for establishing a fair and transparent working relationship. Understanding the key clauses and being vigilant for red flags can help employees protect their rights and negotiate better terms. It's advisable to seek legal advice if there are concerns about any aspect of the contract. By taking a proactive approach to contract negotiation and scrutiny, employees can ensure a more secure and mutually beneficial employment arrangement.

Tripti

Jan 17, 2024

Plea Bargaining in India: Balancing Justice and Expediency

Introduction: Plea bargaining, a legal process allowing a defendant to plead guilty to a lesser charge in exchange for a lighter sentence, has gained prominence in India as a mechanism to expedite the judicial process and reduce the burden on an overburdened legal system. The concept was introduced in India through the Criminal Law (Amendment) Act, 2005, amending the Code of Criminal Procedure, 1973. While plea bargaining offers efficiency, critics argue that it may compromise justice. This article explores the intricacies of plea bargaining in India, examining its evolution, legal framework, and presenting case studies that shed light on its impact. Evolution of Plea Bargaining in India: Before the introduction of plea bargaining, the Indian criminal justice system faced challenges such as an overwhelming backlog of cases and prolonged trials. Plea bargaining was envisioned as a solution to expedite the resolution of cases by encouraging accused individuals to admit guilt in exchange for a reduced sentence. The legal framework for plea bargaining in India is primarily governed by Chapter XXI-A of the Code of Criminal Procedure (CrPC), 1973. This practice was introduced in the CrPC in 2005. Sections 265-A to 265-L lay down the procedure and conditions for plea bargaining. The process involves the accused and the prosecution mutually arriving at a satisfactory disposition, subject to the court's approval. However, it is not permissible for offences punishable with the death penalty, life imprisonment, or a sentence exceeding seven years. The CrPC does not allow for a bargain to be struck for a lesser offence or for compounding the offence, and the accused will be considered to have confessed and been convicted of the offence. In India, plea bargaining is limited to sentence bargaining, or negotiating a lighter sentence in exchange for the accused's guilty plea. Plea Bargaining in “The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023”: BNSS2 retains the above clause from CrPC but has added a condition which requires the accused to file an application for plea bargaining within 30 days of the framing of charges, which can limit the effectiveness of this practice. Understanding the Importance of Plea Bargaining: India's judiciary grapples with a staggering number of pending cases, exceeding 4.7 crore (47 million) as of July 2022. Traditional trials, often time-consuming, contribute significantly to this backlog. Plea bargaining offers a possible solution by incentivizing guilty pleas in exchange for reduced sentences or charges. This can benefit both the accused, who experience shorter incarceration and lower legal expenses, and the state, by alleviating court workloads and freeing up resources for more complex cases. Additionally, plea bargaining can facilitate closure for victims and contribute to societal peace by resolving cases swiftly. Limitations and Concerns: Despite its potential benefits, concerns surround plea bargaining's potential for abuse and injustice. Critics argue that it can disadvantage vulnerable defendants, particularly those unaware of their rights or lacking adequate legal representation. The pressure to plead guilty, even for the innocent, can be immense, especially in light of lengthy incarceration periods and overburdened judicial systems. Furthermore, concerns regarding fairness arise when powerful or privileged defendants negotiate more favourable outcomes compared to their less fortunate counterparts, potentially exacerbating existing inequalities within the legal system. Comparison with Foreign Systems: Examining plea bargaining systems in other countries provides valuable insights into its potential pitfalls and best practices. In the United States, for instance, plea bargaining is far more prevalent than in India. However, robust safeguards, including stricter judicial oversight and stricter rules regarding prosecutorial discretion, aim to mitigate its negative consequences. In comparison, plea bargaining in Germany is less common and subject to stricter regulations, such as mandatory judicial approval and limitations on its applicability to more serious offenses. Case Studies: State of Maharashtra v. Swapnil Tripathi (2014): In this case, the accused was charged with offences under the Narcotic Drugs and Psychotropic Substances Act. The accused opted for plea bargaining, and the court, after considering the facts and circumstances, agreed to the plea bargain. The accused received a reduced sentence, showcasing the effectiveness of plea bargaining in swiftly resolving cases involving non-violent offences. Suresh v. State of Haryana (2017): This case involved a white-collar crime where the accused was charged with financial fraud. The accused entered into a plea bargain, admitting guilt and agreeing to cooperate with the investigation. The court accepted the plea bargain, emphasising the need for expediency in dealing with complex financial crimes. Critiques and Challenges: While plea bargaining offers advantages in terms of efficiency, it has faced criticism on various fronts. Concerns include the potential for coercive tactics, unequal bargaining power, and the fear that innocent individuals may opt for plea bargains to avoid the uncertainties of a trial. Critics argue that this could undermine the fundamental principle of 'innocent until proven guilty' and compromise the integrity of the justice system. Conclusion: Plea bargaining in India represents a pragmatic approach to address the challenges faced by the criminal justice system. While it has proven effective in expediting certain cases, there is an ongoing debate regarding its implications on justice and fairness. As the legal landscape continues to evolve, it is crucial to strike a balance between expediency and the protection of individual rights to ensure a just and equitable criminal justice system in India.

Tripti

Jan 10, 2024

Promissory Estoppel: Exploring Binding Promises Through Case Studies

When talking about contracts, where agreements and consideration reign supreme, a fascinating doctrine known as promissory estoppel stands as an exception. It goes beyond the classic handshake deal, enforcing promises even when there is no formal contract or written document. This article delves into the essence of promissory estoppel, dissecting its core elements and illuminating its application through captivating case studies. The Essence of Promissory Estoppel: At its core, promissory estoppel prevents a promisor from reneging on a promise if the promisee has relied on it in a way that causes them detriment. It essentially upholds the principle of fairness, ensuring that individuals don't suffer for placing trust in genuine, albeit informal, promises. Key Elements of the Doctrine: To successfully invoke promissory estoppel, several key elements must be present: Clear and Definite Promise: The promise made by the promisor must be clear, unambiguous, and intended to influence the promisee's actions. Reasonable Reliance: The promisee's reliance on the promise must be reasonable and foreseeable by the promisor. Detrimental Reliance: The reliance must have caused the promisee some form of detriment, such as financial loss, changed position, or forgone opportunity. Injustice in Refusal to Enforce: If the court refuses to enforce the promise, the resulting injustice to the promisee must be uncorrectable through other legal means. Case Studies: Bringing Promissory Estoppel to Life: 1. Central Inland Water Transport Corporation Ltd. v. Brojo Nath Chatterjee (1988): Facts: Mr. Chatterjee was verbally promised a permanent job by the government-owned Central Inland Water Transport Corporation. He resigned from his existing job based on this promise and joined the Corporation. However, later, the Corporation refused to formalise his appointment due to procedural issues. Holding: The Supreme Court applied promissory estoppel. Although no formal contract existed, the Corporation's clear promise and Mr. Chatterjee's reliance on it by resigning from his previous job caused him detriment. The Court ordered the Corporation to grant him permanent employment. 2. T.N. Rangaswami v. The Eastern Spinning Mills Ltd. (1962): Facts: The Eastern Spinning Mills announced plans to expand its factory and promised preferential employment to those who would purchase shares in the company. Mr. Rangaswami bought shares based on this promise. However, after the expansion, the company refused to give him preferential hiring. Holding: The Madras High Court upheld the applicability of promissory estoppel. The Court found that the company's unambiguous promise induced Mr. Rangaswami to purchase shares to his detriment (financial investment). They directed the company to consider him for a suitable position. 3. Technoflex Industries (Madras) Pvt. Ltd. v. A.P.S.R.T.C. (1995): Facts: Technoflex Industries submitted a tender for supplying buses to the Andhra Pradesh State Road Transport Corporation (APSRTC) based on an alleged verbal assurance of receiving the contract. They invested resources in preparing the tender but ultimately lost to another bidder. Holding: The Andhra Pradesh High Court rejected the application of promissory estoppel. The Court ruled that mere hope or expectation arising from a casual conversation, without a clear and specific promise, does not constitute detrimental reliance. Technoflex's investment in preparing the tender was considered insufficient to invoke the doctrine. 4. A.R. Antulay v. R.S. Nayak (1988): Facts: Mr. Antulay, the Chief Minister of Maharashtra, assured a contractor, Mr. Nayak, that his tender for a construction project would be accepted. This assurance allegedly violated due process and contravened public policy. Holding: The Supreme Court acknowledged the existence of promissory estoppel but clarified its limitations. The Court ruled that the doctrine cannot be used to enforce promises that are illegal or contradict public interest. As Mr. Antulay's promise violated public policy, Mr. Nayak's claim based on estoppel was rejected. 5. Central London Property Trust Ltd. v. High Trees House Ltd. (1947): A landlord promised a tenant they could retain rent-controlled status if they carried out extensive repairs. The tenant spent significant money on renovations, and the court ruled that the landlord was stopped from reneging on their promise due to the tenant's detrimental reliance. 6. Cobbs v. Neil (1859): A father promised his son an annual allowance in exchange for the son abandoning a lucrative career prospect. The son complied, but the father later stopped payment. The court found that the son's detriment (giving up his career) justified enforcing the father's promise through promissory estoppel. These cases highlight the nuanced application of promissory estoppel. While it serves as a safety net for those relying on genuine promises, the courts carefully balance it with commercial logic and considerations of potential abuse. Conclusion: Promissory estoppel stands as a testament to the human value of trust and fairness in the legal system. It reminds us that sometimes, even promises spoken in whispers can hold the weight of law. As we navigate the complexities of agreements and expectations, understanding this doctrine empowers us to protect ourselves from broken promises and uphold the integrity of our interactions.

Tripti

Jan 03, 2024

Traditional Insolvency Procedure vs Pre-Packaged Insolvency Resolution Process

Introduction In the current economy, companies often face financial challenges that require strategic intervention to ensure their survival and sustained operation. One such intervention is the insolvency process, a legal framework that facilitates the reorganisation or liquidation of a distressed business. Traditionally, insolvency proceedings have followed a structured path, but in recent years, a novel approach known as the Pre-Packaged Insolvency Resolution Process (PPIRP) has gained prominence. This article explores the concept of pre-packaged insolvency, starting with an overview of bankruptcy and the traditional insolvency process. What is Bankruptcy? Bankruptcy is a legal status that acknowledges an individual or entity's inability to meet its financial obligations, leading to a formal declaration of insolvency. This process serves as a mechanism for debtors to either reorganise their financial affairs and continue operations or, in the case of liquidation, distribute their assets among creditors to settle outstanding debts. The concept of bankruptcy is rooted in the principle of providing a structured framework for resolving financial distress while balancing the interests of debtors and creditors. It involves a court-supervised procedure where a trustee or an insolvency professional oversees the evaluation of assets, the formulation of a repayment or reorganisation plan, and the equitable distribution of resources among creditors. Traditional Insolvency Process In India, the traditional bankruptcy process is governed by the Insolvency and Bankruptcy Code, 2016 (IBC). The IBC introduced a comprehensive and time-bound framework for the resolution of insolvency and bankruptcy cases. The traditional bankruptcy process in India typically involves the following key steps: Initiation of Insolvency Proceedings: The process begins with the financial creditor, operational creditor, or the debtor itself initiating insolvency proceedings by filing an application with the National Company Law Tribunal (NCLT). Admission or Rejection of Application: The NCLT examines the application and determines its admissibility. If accepted, the tribunal admits the application and initiates the insolvency resolution process. If rejected, the reasons for rejection are provided. Moratorium: Once the application is admitted, a moratorium is declared, suspending all legal proceedings and prohibiting creditors from enforcing any security interest over the debtor's assets. Appointment of Interim Resolution Professional (IRP): An Interim Resolution Professional (IRP) is appointed to manage the affairs of the debtor during the resolution process. The IRP takes control of the debtor's assets and conducts a thorough assessment of its financial position. Formation of Committee of Creditors (CoC): The IRP convenes a meeting of the Committee of Creditors (CoC), consisting of financial creditors. The CoC makes key decisions, including the approval or appointment of a resolution professional and consideration of resolution plans. Submission of Resolution Plans: Interested resolution applicants submit their resolution plans to the CoC. The plans outline how the debtor's assets will be utilised to repay creditors and revive the business. Approval of Resolution Plan: The CoC evaluates the resolution plans and votes on their approval. A plan that receives the highest vote and meets the statutory requirements is submitted to the NCLT for approval. Approval by NCLT: The NCLT reviews the approved resolution plan to ensure compliance with the IBC and may either approve or reject the plan. Upon approval, the resolution plan becomes binding on all stakeholders. Implementation of Resolution Plan: The successful resolution applicant implements the approved plan, and the resolution process is considered complete. The debtor's control is handed over to the new management, and the moratorium is lifted. Liquidation (if resolution fails): If a viable resolution plan is not approved, or if the approved plan is not implemented within the specified time frame, the NCLT may order the liquidation of the debtor's assets. The Novel “Pre-Packaged Insolvency Resolution Process” (PPIRP) Pre-packaged insolvency, also known as a Pre-Packaged Insolvency Resolution Process (PPIRP), is an innovative approach to corporate restructuring that involves negotiating and preparing a restructuring plan for a financially distressed company before formally initiating the insolvency proceedings. In essence, key stakeholders, including creditors, shareholders, and management, collaborate to devise a comprehensive plan to address the financial challenges faced by the distressed business. This plan is then implemented swiftly once the insolvency process officially begins. Here are key differences between pre-packaged insolvency and the traditional insolvency process: Pre-Negotiation of Terms: Traditional Process: In a traditional insolvency process, negotiations and discussions regarding the restructuring plan typically occur after the initiation of insolvency proceedings. This can lead to delays and uncertainties. vs Pre-Packaged Process: Pre-packaged insolvency involves negotiating and finalising the terms of the restructuring plan before the formal commencement of insolvency proceedings. This pre-negotiation allows for a faster and more efficient resolution. Speed and Efficiency: Traditional Process: The traditional insolvency process can be time-consuming, involving court hearings, creditor meetings, and the formulation of a restructuring plan after the initiation of proceedings. This can lead to delays in implementing necessary changes. vs Pre-Packaged Process: With pre-packaged insolvency, the restructuring plan is ready in advance. Once the insolvency proceedings begin, the plan can be swiftly implemented, reducing the time spent in court and minimising disruptions to the business operations. Minimization of Disruptions: Traditional Process: The uncertainty surrounding the outcome of insolvency proceedings can result in disruptions to day-to-day business operations, affecting employees, suppliers, and customers. vs Pre-Packaged Process: By having a pre-negotiated and agreed-upon plan, pre-packaged insolvency minimises disruptions. The business can continue operating more seamlessly, and key stakeholders may experience less upheaval. Preservation of Value: Traditional Process: Lengthy court proceedings and uncertainty may lead to a decline in the value of the distressed business and its assets. vs Pre-Packaged Process: The goal of pre-packaged insolvency is to preserve the value of the business. By quickly implementing the restructuring plan, the company's assets and operations can be better safeguarded. Stakeholder Collaboration: Traditional Process: Stakeholder collaboration often intensifies after the initiation of insolvency proceedings. Negotiations may occur under the oversight of the court. vs Pre-Packaged Process: Pre-packaged insolvency promotes early collaboration among stakeholders, fostering a more cooperative and proactive approach to resolving financial challenges. Pre-Packaged Insolvency Resolution Process in India The Indian economy thrives on the backbone of its vibrant MSME sector, contributing significantly to employment and GDP. However, unforeseen circumstances and economic headwinds can quickly throw these enterprises into financial disarray. The traditional Corporate Insolvency Resolution Process (CIRP) under the Insolvency and Bankruptcy Code (IBC), while robust, can be cumbersome and time-consuming for MSMEs. Its prolonged timelines, high administrative costs, and potential disruption to operations often outweigh the benefits, potentially pushing these ventures towards liquidation. Recognizing the unique challenges faced by MSMEs, PIRP was introduced in 2020 as a more targeted and efficient instrument for debt restructuring. It departs from the rigid formalities of CIRP by embracing a pre-negotiated resolution pathway. While pre-packaged insolvency has its advantages, it is essential to note that its success depends on the willingness and cooperation of key stakeholders in the early stages of financial distress. Additionally, the appropriateness of pre-packaged insolvency may vary depending on the specific circumstances of the distressed company. The Pre-Packaged Insolvency Resolution Process is still in its infancy, but its potential to revolutionise MSME debt restructuring in India is undeniable. By continuously refining its framework, building awareness, and fostering a collaborative ecosystem, PIRP can play a pivotal role in strengthening the resilience of the Indian

Tripti

Dec 27, 2023

Analysis of Key Reforms in Indian Parliament: Important Legislative Bills of 2023

Introduction As 2023 comes to an end, it is worth mentioning that this year has been explosive and dynamic for our Indian Parliament. The Indian Parliament, more active than ever managed to pass some very important legislations in its Monsoon(July to September) and Winter session (November to December) This article will give you a brief idea about the following legislations passed: Bhartiya Nyahya (Second) Sanhita, 2023 (BNS2) The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 The Bharatiya Sakshya (Second) Bill, 2023 The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 Bhartiya Nyahya (Second) Sanhita, 2023 (BNS2) Timeline Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Dec 12, 2023 Dec 20, 2023 Dec 21, 2023 Key Highlights The Bharatiya Nyaya (Second) Sanhita (BNS2) maintains a majority of offences from the Indian Penal Code (IPC). However, it introduces community service as a form of punishment, replacing sedition as an offence. The BNS2 also creates a new offence for acts endangering the sovereignty, unity, and integrity of India. This includes terrorism, defined as an act intended to threaten the unity, integrity, security, or economic security of the country, or to strike terror in the people. organised crime is now an offence, encompassing crimes such as kidnapping, extortion, and cybercrime committed on behalf of a criminal syndicate. Furthermore, petty organised crime is also an offence under the BNS2. Murder committed by a group of five or more individuals based on certain identity markers such as caste, language, or personal belief is punishable with life imprisonment or death, and a fine. Key Issues The age of criminal responsibility in India remains at seven years old, with the possibility of extending to 12 years depending on the maturity of the accused. This does not align with international conventions and recommendations. According to the BNS2, a child is defined as anyone under the age of 18. However, the age threshold for certain offenses, such as rape and gang rape, is different for the victim. Additionally, the BNS2 does not incorporate recommendations from the Justice Verma Committee (2013), such as making rape a gender-neutral offense and including marital rape as a crime. The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 Timeline: Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Dec 12, 2023 Dec 20, 2023 Dec 21, 2023 Key Highlights The Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS2) aims to revise the Criminal Procedure Code (CrPC) of 1973. The CrPC outlines the procedures for arrest, prosecution, and bail. The BNSS2 mandates the incorporation of forensic investigation for offences punishable with seven years of imprisonment or more. Forensic experts will visit crime scenes to collect and document evidence. All legal proceedings, including trials, inquiries, and investigations, may be conducted in an electronic format. The production of electronic communication devices, likely to contain digital evidence, will be allowed for investigation, inquiry, or trial. If a wanted criminal has fled to avoid trial and there is no immediate possibility of arresting them, the trial may proceed in their absence. In addition, specimen signatures, handwriting, fingerprints, and voice samples may be collected for investigation or proceedings, even from individuals who have not been arrested. Key issues Under the BNSS2, an accused person can be held in police custody for up to 15 days, which can be authorised in parts during the initial 40 or 60 days of the 60 or 90 days period of judicial custody. If the police have not exhausted the 15-day custody limit by the end of the initial period, the accused may not be granted bail for the entire duration of their judicial custody. The Code of Criminal Procedure (CrPC) allows for bail for an accused person who has been detained for half the maximum imprisonment for the offence. However, the BNSS2 does not provide this facility for individuals facing multiple charges. Since many cases involve charges under multiple sections, this limitation on bail may be particularly significant. Despite recommendations from high-level committees to reform sentencing guidelines and codify the rights of the accused, these recommendations have not been incorporated into the BNSS2. The Bharatiya Sakshya (Second) Bill, 2023 Timeline: Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Dec 12, 2023 Dec 20, 2023 Dec 21, 2023 Key Highlight The Bharatiya Sakshya (Second) Bill of 2023 (BSB2) amends and replaces the Indian Evidence Act of 1872 (IEA). While maintaining many provisions of the IEA, the BSB2 introduces significant changes regarding evidence types. The IEA categorises evidence into documentary and oral evidence, with documentary evidence consisting of primary (original documents) and secondary (proving the contents of the original) evidence. The BSB2 retains this distinction and classifies electronic records as documents, making them primary evidence. Additionally, the BSB2 expands secondary evidence to include oral and written admissions and the testimony of an expert in document examination. Furthermore, the BSB2 includes information stored in semiconductor memory or communication devices, such as smartphones or laptops, within the definition of electronic records. Key Issues At present, electronic records must be authenticated through a certificate to be considered valid legal documents. However, the BSB2 has retained this requirement while also categorising electronic evidence as documents, which creates a contradiction. Additionally, under the IEA, any fact discovered through information obtained from an accused in police custody is provable, which the BSB2 has also retained. However, courts and committees have noted that these facts may be obtained through coercive means without adequate safeguards. The Law Commission has made several recommendations, including the presumption that the police officer is responsible for any injuries sustained by an accused in police custody, but these recommendations have not been incorporated into the law The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 Timeline: Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Aug 10, 2023 Dec 12, 2023 Dec 21, 2023 Key Highlights The Bill replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991, which outlines the appointment, salary, and removal of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). Under the new Bill, the CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee comprising the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition/Leader of the largest opposition party in the Lok Sabha. The Selection Committee's recommendations will remain valid even if there are vacancies in the Committee. A Search Committee headed by the Cabinet Secretary will propose a list of candidates to the Selection Committee. To be eligible for the positions, individuals must have held or currently hold a post equivalent to that of Secretary to the central government. The salary and conditions of service for the CEC and ECs will be the same as those of the Cabinet Secretary, which is currently equivalent to the salary of a Supreme Court Judge. Key Issues The Election Commission's selection process may be vulnerable to government influence, which could compromise its independence. Accepting recommendations from the Selection Committee despite a constitutional vacuum could result in the government having a monopoly on selecting candidates. Additionally, making the Chief Election Commissioner (CEC) and Election Commissioners' (ECs) salaries equal to that of the Cabinet Secretary may give the government undue influence over their appointments, as their salaries are set by the government. This is in contrast to the salary of a Supreme Court judge, which is determined through an Act of Parliament. Furthermore, the fact that CECs and ECs perform quasi-judicial functions suggests that limiting their positions to senior bureaucrats may exclude other qualified candidates.

Tripti

Dec 20, 2023

Arnold Ventures Criminal Justice Innovation Fellowship

About the Organization The Social Science Research Council, a nonpartisan nonprofit founded in 1923 by seven professional associations in the social and behavioral sciences, mobilizes policy-relevant social and behavioral science for the public good. About the Fellowship The Arnold Ventures Criminal Justice Innovation Fellowships will support five post-doctoral fellows who are pursuing policy-relevant causal research designed to innovate and evaluate cost-effective and scalable policy solutions that advance the efficacy and equity of criminal justice practices. Fellowships will begin in September 2024, and will be available for periods of up to three years. Fellows will be expected to conduct research relevant to criminal justice practices in the United States, and will be required to devote up to 25% of their time to work on Arnold Ventures research projects. Eligiblity Should have received a Ph.D. no earlier than September 2019 and no later than September 2024. Fellowship Amount Fellows residing in the United States will receive salaries of $120,000 with full benefits and annual salary increases. Fellows may choose to reside outside of the United States and receive fellowship stipends of $120,000. How to Apply Applicants are asked to provide the following materials: Current CV Research Paper Contact information for three references Proposed research agenda during the period of the fellowship. The proposed research agenda should be no longer than 5 pages (single-spaced), and should propose a program of policy-relevant causal research designed to innovate and evaluate cost-effective and scalable policy solutions that advance the efficacy and equity of criminal justice practices. Click here to apply. Important dates Last date to apply :Jan 15th, 2024 Contact details Email : [email protected] Refer to the official publisher here

Pooja

Dec 20, 2023

Difference Between Vendor Contracts and Service Level Agreements (SLAs)

In the bustling world of business, contracts and agreements are the cornerstones of every successful relationship. But when it comes to vendor management, two key documents often cause confusion: vendor contracts and service level agreements (SLAs). While they may sound similar, understanding the crucial differences between them is vital for ensuring a smooth and productive partnership with your vendors. Vendor Contracts: The Foundation of the Relationship Think of a vendor contract as the blueprint for your entire partnership. It outlines the scope of work, deliverables, payment terms, and legal responsibilities of both parties. It's a comprehensive document that covers everything from the specific services or products to be provided to dispute resolution mechanisms. Key Elements of a Vendor Contract: Scope of Work: Clearly defines the services or products the vendor will deliver, including specific tasks, timelines, and deliverables. Payment Terms: Outlines the payment schedule, including any milestones or deliverables that need to be met before payment is due. Intellectual Property: Defines ownership of any intellectual property created during the project, including software, data, and creative materials. Confidentiality: Protects sensitive information shared by both parties. Termination Clauses: Specifies the conditions under which either party can terminate the agreement. SLAs: Ensuring Service Quality and Performance While a vendor contract lays the foundation, an SLA is a living document that focuses on service quality and performance. It defines the specific metrics and benchmarks by which the vendor's performance will be measured. This ensures that the services delivered meet the agreed-upon standards and that you, as the client, are getting the value you expect. Key Elements of an SLA: Service Levels: Clearly defines the expected performance standards for each service, such as uptime, response times, and resolution times for any issues. Metrics and Reporting: Specifies the methods and frequency of measuring service performance, including reporting formats and data collection protocols. Service Credits: Outlines how service credits will be applied in case of performance issues, compensating the client for any downtime or missed deadlines. Escalation Procedures: Defines the process for escalating service issues to the appropriate level within the vendor organisation. The Interplay: Complementary Partners, Not Duplicates Here's where the distinction becomes crucial: A vendor contract is static, acting as the overarching framework for the relationship. An SLA is dynamic, continuously monitoring and adjusting to ensure service levels are met. Think of it like this: The vendor contract is the map, and the SLA is the GPS. The map provides the overall direction, while the GPS guides you along the way, constantly assessing your progress and adjusting the route if necessary. Conclusion Understanding the differences between vendor contracts and SLAs is essential for effective vendor management. Both documents are vital, but they serve distinct purposes. While the contract establishes the foundation and boundaries of the relationship, the SLA ensures that the vendor delivers on their promises and meets your expectations for quality service. By utilising both effectively, you can build strong, mutually beneficial partnerships with your vendors, paving the way for success in your business endeavours. Remember, clear communication and open dialogue with your vendors are key to ensuring both the contract and the SLA are aligned with your needs and expectations. Building trust and a collaborative relationship with your vendors will ultimately lead to a successful and productive partnership.

Tripti

Dec 13, 2023

Google Found in Violation of Antitrust Laws in Epic v. Google

Case: Epic v. Google Introduction A federal jury has recently delivered a landmark decision in a case involving Google's alleged violation of antitrust laws in the operation of its Play mobile app store. The jury, comprised of nine individuals, deliberated for just over three hours before finding Google guilty. This case marks the culmination of a nearly three-year legal battle between the two parties, with significant implications for the future of mobile app development and distribution. This landmark case has major implications for the app store landscape and the broader digital economy. The outcome of this legal duel carries far-reaching implications, not just for app stores and video games, but for consumer choice, fair competition, and the future of the internet itself. Background Epic Games, the developer of the popular video game Fortnite, took Google to court in 2020, alleging that the tech giant's control over the Google Play Store constituted an illegal monopoly. The Accusation: A Monopoly in the Digital Marketplace. This store, pre-installed on billions of Android devices, serves as the gatekeeper of apps, dictating how developers can reach their audience. Epic points to two key practices as evidence of this monopoly – the mandatory 30% in-app purchase fee levied on all transactions and the requirement for developers to use Google's own billing system. These, Epic argues, stifle innovation, limit consumer choice, and ultimately harm both developers and users. The tech giant argues that its Play Store has been instrumental in Android's success, providing developers with a secure and accessible platform to reach millions of users. The 30?e, they claim, is necessary to cover the costs of maintaining and securing the Play Store, ensuring a safe and reliable experience for both developers and users. Google further contends that Epic's case is fueled by self-interest rather than genuine concern for competition. According to information provided by Google through their official platform, the Google Play Store, app creators are subject to payment fees ranging between 15% and 30% for various transactions conducted through the digital marketplace. Specifically, these fees apply to both subscription-based apps as well as those offering in-app purchases (IAPs) obtained via the Play Store. Notably, Google claims that an impressive 99% of developers are eligible for a fee structure of no more than 15%, with certain exclusions applying to specific circumstances. The Jury's Verdict On December 11, 2023, the jury delivered its verdict, siding with Epic. The jury's findings were unanimous across all 11 questions presented, indicating a comprehensive rejection of Google's defence strategies. Specifically, the jury determined that Google's actions constituted a violation of Section 7 of the Clayton Act, which prohibits the maintenance of a monopoly through unfair or anticompetitive means. Furthermore, the jury concluded that Google's conduct caused harm to Epic Games, potentially paving the way for the imposition of remedial measures aimed at redressing this injury. While the specific penalties and remedies are yet to be determined, the jury's ruling has sent shockwaves through the tech industry and beyond. This verdict represents a major victory for Epic Games, which has been actively seeking to challenge the dominance of Google and Apple in the mobile app space since 2020. In light of the complexity involved in addressing these issues, Judge James Donato will not deliver his ruling until early 2024. Impact of the verdict By successfully arguing that Google's actions constitute a violation of antitrust laws, Epic Games may now be poised to reshape the regulatory landscape surrounding mobile app development and distribution. Notably, the jury's decision could empower other developers to explore alternative app stores and payment systems, ultimately reducing the control exercised by Google and Apple over the mobile app ecosystem. Google is expected to appeal the verdict, potentially leading to years of legal battles. Regulatory bodies are likely to take a closer look at the practices of major tech companies, with potential for stricter regulations and antitrust enforcement. The future of app stores and the entire digital ecosystem hangs in the balance. However, it remains to be seen what specific remedies will be implemented as a result of this verdict. Nevertheless, the prospect of increased competition within the mobile app industry holds significant promise for innovators and consumers alike, as it may lead to improved choices, reduced costs, and enhanced overall user experiences.

Tripti

Dec 06, 2023

Insight Fellowship Program 2024

About the Organization We are a global leadership advisory non-profit, challenging exceptional individuals and teams to perform at their best.Informed by our work with world-leading organizations, we share the best leadership and conflict management theory and skills with those who cannot usually access them, from NGO field staff to political officials. About the Fellowship The Insight Fellowship allows exceptional individuals to grow professionally and personally as they study and promote conflict management at non-profits they choose outside of their home country.The Fellowship supports entrepreneurial individuals with a passion for conflictmanagement to helporganizations work more effectively – whether that’s through training teams, conducting research or strengthening pivotal relationships in the field.Fellows complete the year with strengthened conflict management expertise, significant field experience and increased self-awareness, equipped to pursue their interests as global citizens throughout their personal and professional lives. The first three-month placement is held in Concord, Massachusetts at the offices of Insight Collaborative and its sister organisation, Insight Partners. During this placement, Fellows undergo rigorous training and coaching in communication, negotiation and mediation theory and skills. Fellows put learning into practice by observing and assisting Insight Partners consultants, and also gain access to Insight’s network of academics and practitioners. During this period, Fellows often volunteer to support local conflict management organizations, and pursue additional training they may need for their placements, such as language lessons. The remaining nine months typically include three foreign placements which the Fellows design and arrange during their Concord placement, with guidance from Insight Collaborative. Each Fellow identifies a broad theme upon which they will focus during their Fellowship, such as conflict and the environment, or methods of creating trust. Within a month of their return from their final placement, Fellows submit a written paper and provide a presentation on their Fellowship experience to Insight Collaborative. Each fellow is expected to submit journal entries to the Insight Collaborative blog during their placements. The Fellowship includes a US $30,000 expense allowance for the entire year, provided by our generous donors. Each Fellow pledges to ‘refill the pot’ for the next fellow through fundraising and sponsorship by the end of the calendar year in which their Fellowship ends, primarily during their first placement in Concord. Eligibility To be eligible for the Fellowship, you must be: A graduate of an accredited college or university or set to graduate prior to the start of the Fellowship. Committed to serving 12 consecutive months from the start of the Fellowship. – Dedicated to fulfilling the objectives of the Fellowship program, following the Fellowship Principles and willing to pledge to raise the funds required to ‘refill the pot’ for the next fellow. Fluent in English. Experience related to the study or practice of conflict management or alternative dispute resolution is preferred, but not essential. Important Documents To complete the application, you will need to submit: Your resume/CV Post-secondary educational records and transcripts A personal statement A proposal for how you will use your Fellowship, including desired placements Short paragraphs describing your cultural experience, your interest in alternative dispute resolution and the challenges you foresee during the Fellowship Three letters of recommendation Photograph of you (optional) Last Date February 15, 2024. Refer to the official publisher here

Pooja

Dec 06, 2023

Indira Gandhi v. Raj Narain and Anr.

Citation: (1975) 2 SCC 159 Case Name: Indira Gandhi vs Raj Narain The case of Indira Gandhi v. Raj Narain and Anr. is one of the most significant legal battles in the history of Indian democracy. Mrs Indra Gandhi, the then prime minister of India was accused of electoral malpractice when she got re-elected as the Prime minister by one Mr Raj Narain. Background The case is of 1971 general elections in India, where Indira Gandhi sought re-election as Prime Minister. Indira Gandhi, leader of the Indian National Congress, contested the general elections held in 1971, winning by securing 352 seats out of 518. Raj Narain, an opposition candidate from Rae Bareli, contested her victory and alleged several electoral malpractices included the accusation of use of government machinery for the election campaign, bribery, booth capturing, and misuse of state resources to influence voters. The case was filed in the Allahabad High Court, and Justice Jagmohanlal Sinha presided over the proceedings. Contention of the parties One of the central contentions was that Indira Gandhi had used government officials and resources for her election campaign, which was against electoral norms code as written under Representation of People’s Act, 1951. It was alleged by Raj Narain that bribery had been employed to influence voters, raising concerns about the fairness of the electoral process. Furthermore, Booth capturing, a practice where unauthorised individuals seize control of polling booths to manipulate the voting process, was alleged to have occurred during the election. During the trial, Indira Gandhi and her legal team vehemently denied the allegations, arguing that the election was conducted fairly and that there was no evidence to support the accusations. Verdict of the Allahabad High Court On June 12, 1975, Justice Jagmohanlal Sinha delivered a historic verdict, declaring Indira Gandhi's election from Rae Bareli void. The court held that she had indulged in corrupt electoral practices, marking the first instance of an Indian court nullifying the election of a sitting Prime Minister. As a consequence of the verdict, Indira Gandhi was not only unseated from her parliamentary seat but was also disqualified from holding any public office for six years. The ruling triggered a series of events that led to the imposition of a state of emergency in India, with civil liberties suspended and political opponents arrested. The legal battle did not end with the Allahabad High Court's verdict. Indira Gandhi appealed to the Supreme Court of India, seeking a reversal of the decision. This appeal came at a time when the Supreme Court was on a vacation and hence the vacation bench ordered an executional stay on the High Court's decision by Justice Krishna Iyer. Meanwhile, the then president Fakhruddin Ali Ahmed declared National Emergency on grounds of Political and internal disturbances and through the 39th amendment, Article 329A was introduced. Article 329A The Article put down Special provision as to “elections to Parliament in the case of Prime Minister and Speaker”. This stipulated that the election of the Prime Minister and Speaker could not be contested in any Indian court. As a result of this amendment, the Supreme Court's authority in the Indira Gandhi case was curtailed. Issues before the court In the Supreme Court the main issue presented was the Constitutional validity of Article 329A. Further the validity of “Representation of People’s (Amendment) Act, 1974”, “Election Laws (Amendment) Act, 1975” and the election of Indira Gandhi was itself questioned. Contention of the Parties The respondent claimed that Article 329A eliminates the jurisdictional authority of the courts. The constitutional setup in our country emphasises the separation of powers among the three branches of government. Therefore, it is unjust to the judiciary if its powers to adjudicate are nullified or diminished. They further contended that the principles of the rule of law and judicial review are integral to our constitution, and they cannot be harmed or altered, as established in fundamental rights cases. Supreme Court Judgement The Honourable Court, with a majority decision, ruled that the Amendment Acts are incompatible with the Basic Structure of the Indian Constitution. Consequently, these acts were invalidated on the basis that they infringe upon the court's jurisdiction and undermine the principle of judicial review. The Supreme Court, relying on the landmark ruling in the Kesavananda Bharati case, declared Article 329A, clause 4, as constitutionally invalid. The court was of the view that the Amendment's alteration was considered to violate the principle of “separation of powers”, as it placed an impartial legal function under the authority of Parliament. The Supreme Court, in a split 4-1 decision, upheld the lower court's verdict but modified the disqualification period to six years from the date of the decision. The lone dissenting judge, Justice Khanna, delivered a powerful dissenting opinion, asserting the importance of judicial independence and upholding constitutional values.

Tripti

Nov 29, 2023

Case Law: I C Golaknath and Ors v. State of Punjab (1967)

Case: Golaknath v. State Of Punjab Citation: 1967 AIR 1643, 1967 SCR (2) 762 Facts of the case In the year 1953, Henry and William Golaknath, two farmers from Jalandhar, Punjab who owned around 500 acres of agricultural land, were confronted by the Punjab government and ordered to forgo 470 acres of their land holdings as under the recent “Punjab Security and Land Tenures Act 1953”, they would only be allowed to hold 30 acres. This meant that the 470 acres of land will be declared surplus and taken over by the government of Punjab. This Act came after the 17th Constitutional Amendment which modified Article 31A and the 9th Schedule of the Constitution. The Golaknath brothers, dissatisfied with this limitation, decided to contest the Punjab government's actions in the Family court, leading to the elevation of the case to the Supreme Court in 1965. Punjab Security and Land Tenures Act 1953: The Punjab Security and Land Tenures Act of 1953 was a piece of legislation enacted in the Indian state of Punjab. The primary purpose of this act was to regulate the rights and obligations of landowners and tenants, particularly in the context of agricultural land. Post-Independence Agrarian Reforms: The period following India's independence saw a wave of agrarian reforms aimed at addressing issues of land ownership, tenancy, and ensuring social justice. Various states, including Punjab, implemented land reform measures to bring about equitable distribution of land and alleviate the agrarian crisis. Land Ceiling and Tenancy Regulations: The Punjab Security and Land Tenures Act was part of the broader legislative framework that sought to address concerns related to large landholdings, absentee landlordism, and the rights of tenants. Issues of the case The petitioner’s contested the new Act under Article 32, claiming that the Act denies them the constitutional right to hold property and practise any profession [provided under Article 19 of the Indian Constitution]. It was before the courts to decide whether the parliament, through any act, can limit the rights given under the Indian Constitution. The court considered the broader issue of whether the Parliament possessed the authority to amend/limit Fundamental Rights under Article 368 through introduction of a new Act(s). Furthermore, the court scrutinised the constitutional validity of the 17th Amendment. Contentions of the Petitioner The petitioners, Henry and William Golaknath, argued against granting Parliament the power to amend or alter the Constitution of India. They contended that the term "amend" should only pertain to making minor adjustments, not an outright replacement or overhaul of a Fundamental Right. Further, they argued that Article 13 prohibits any state or central government from making any amendments that limit the rights mentioned under part III of the Constitution. Article 13(3)(a):Article 13 of the Indian Constitution is a crucial provision that deals with the laws inconsistent with or in derogation of Fundamental Rights. It plays a pivotal role in safeguarding the fundamental rights granted to Indian citizens and ensures that no law enacted by the legislature infringes upon these rights. Clause 3(a):This subclause clarifies that the term "law" in Article 13 includes not only existing laws (as mentioned in Clauses 1 and 2) but also any amendment to a law made by the legislature in the exercise of its constituent power to amend the Constitution under Article 368. In simpler terms, if there is any amendment made to the Constitution that violates or abridges the fundamental rights, Article 13(3)(a) ensures that such an amendment would also be considered void to the extent of its inconsistency with fundamental rights. Landmark Judgment: On February 27, 1967, the Supreme Court, with its largest-ever bench at the time, delivered the judgement in favour of the Golaknath brothers by a slim 6:5 majority. The court held that the Fundamental Rights enshrined in Part III of the Constitution were immune from amendments under Article 368. Further they stated that if any of such rights provided under part III are to be amended, a new constituent assembly must be convened for making a new constitution or radically changing it. The court ordered that any “Amendment” to the Constitution of India is to be considered ordinary law and has to pass the test of Article 13, where in and individuals rights are being protected This landmark decision marked a significant departure from the precedent set by the case of Shankari Prasad v. Union of India (1951), wherein the court had upheld Parliament's authority to amend all aspects of the constitution, including Part III relating to Fundamental Rights. Consequently, the Golaknath case resulted in Parliament losing its power to amend fundamental rights. Consequences and Legacy: The Golaknath case left an indelible mark on the constitutional history of India. It reinstated the supremacy of Fundamental Rights and reinforced the idea that these rights were beyond the reach of parliamentary amendments under Article 368. The decision established a precedent that shaped subsequent interpretations of constitutional law and set the stage for future legal battles over the scope of parliamentary authority. The judgement, with its far-reaching consequences, played a crucial role in defining the limitations of parliamentary authority and reaffirming the sanctity of the Constitution as the foundational document of the Indian Republic.

Tripti

Nov 21, 2023

KARM Fellowship 2023

About KARM Fellowship 2023 Our experience has taught us the value of Education, Mentoring, Life Skills and Community Service. Basing our Fellowship on these key pillars, we aim to enable the professional aspirations of future women leaders in their areas of choice. The KARM Fellowship aspires to foster a community of financially independent, compassionate, driven women who are committed to becoming enablers and change leaders in communities of their choice. Eligibility Criteria Open only to female candidates who wish to study in Delhi University The combined family income of the applicant must not exceed 5 Lakhs per annum The candidate must be pursuing grade 12 The candidate must display basic proficiency in English and use of technology Last date to apply Dec 1st 2023 Refer to the official publisher here

Pooja

Nov 21, 2023

Case Law- KM Nanavati v State of Maharashtra

Case: K.M. Nanavati v. State of Maharashtra Citation: 1962 AIR 605 1962 SCR Supl The KM Nanavati v State of Maharashtra case, which unfolds in the late 1950s and early 1960s, stands as a landmark in the context of Indian jurisprudence. It is centrally concerned with the prosecution of Commander KM Nanavati, a naval officer, for the murder of businessman Prem Ahuja, after Nanavati discovers the alleged extramarital affair between his wife, Sylvia Nanavati, and Prem Ahuja. Facts of the Case On 18th April 1959, Nanavati returning from his ship, addresses his wife’s distant behaviour towards him, comes to know of the affair between his wife and an acquaintance namely Prem Ahuja. Sylvia and Prem had developed an illicit relationship during the time Nanavati was away on a long voyage The confession of his wife led him to confront Prem Ahuja at his residence that evening. After an exchange of heated words, Nanavati shoots and causes the death of Prep Ahuja, the act which is later claimed to be of spontaneous nature, committed in the heat of the moment. Following the shooting, Nanavati immediately goes to the police station and surrenders himself. This raised legal questions regarding the applicability of the doctrine of "grave and sudden provocation," which, if validated, could mitigate the charge to culpable homicide not amounting to murder. Issues of the Case The central question that loomed over the case was the nature of Nanavati's act – was it a crime of passion, a result of "grave and sudden provocation," or a premeditated murder? This distinction would be pivotal in determining the severity of the charges brought against Nanavati. Legal Proceedings and Judgment Initially, a jury in the sessions court acquitted Nanavati, accepting the defense's argument that the act was committed under "grave and sudden provocation." However, dissatisfied with the verdict the Sessions judge referred the case to the Division of bench of Bombay High Court The High Court, on appeal, overturned the verdict, finding Nanavati guilty of culpable homicide not amounting to murder. This turn of events prompted reflections on the adequacy and reliability of the jury system in delivering justice. Nanavati then appealed to the Supreme Court, seeking a reversal of the High Court's decision. The Supreme Court, after meticulous examination of the case, rejected the claim of "grave and sudden provocation," asserting that Nanavati's act was a "calculated response" rather than an impulsive act. Consequently, the Supreme Court upheld Nanavati's conviction. The Supreme Court summarised the “Principles of grave and sudden provocation” as below: The criterion for determining "grave and sudden" provocation hinges on whether a reasonable individual, belonging to the same societal class as the accused and placed in an identical situation, would be sufficiently provoked to lose self-control. In the Indian context, specific circumstances may render words and gestures capable of causing grave and sudden provocation to the accused, thereby falling within the scope of the first exception to Section 300. The mental state induced by the victim's preceding actions can be taken into account when assessing the culpability of the accused. For the fatal blow to qualify as arising from the influence of passion due to provocation, it must be unequivocally linked to that provocation and not occur after the dissipation of passion through the passage of time, allowing room for premeditation and calculation. The court clarified that, in order to claim protection under the exception of 'grave and sudden' provocation, the act of murder must be directly tied to the immediate provocation and should not occur once the emotional intensity has subsided. Judicial Reforms and Legacy The KM Nanavati case triggered a huge shift in the Indian judicial system. The inadequacies and vulnerabilities of the jury system became glaringly evident during the legal proceedings, prompting a re-evaluation of its role in the Indian legal framework. Subsequently, the case played a pivotal role in the abandonment of jury trials in India. The legal reforms spurred by the Nanavati case were not limited to the abolition of jury trials alone. The case underscored the need for broader reforms to enhance the fairness and efficacy of the legal process. It contributed to the ongoing discourse on legal procedures, the quality of legal representation, and the pursuit of justice. Conclusion Beyond the personal tragedy and emotional turmoil that surrounded the case, it led to a re-evaluation of the Indian judicial system. The case marked the end of an era with the abandonment of the jury system, paving the way for a more evolved and robust legal framework. The legacy of the Nanavati case endures as a reminder of the continuous pursuit of justice and the resilience of the legal system in adapting to the evolving needs of society.

Tripti

Nov 20, 2023

Applications invited for Judicial Fellowship Programme

About the Organization The International Court of Justice (ICJ; French: Cour internationale de justice; CIJ), also called the World Court, is one of the six principal organs of the United Nations (UN).[2] It settles disputes between states in accordance with international law and gives advisory opinions on international legal issues. The ICJ is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law (subject to Article 59 of the Statute of the International Court of Justice). About the Fellowship The Judicial Fellowship Programme, formerly known as the University Traineeship Programme, was established in 1999 to enable recent law graduates to gain professional experience by working for the International Court of Justice. The programme aims to improve participants’ understanding of public international law in practice and the Court’s procedures by directly involving them in the activities of the Court. Judicial Fellows work on a full-time basis under the supervision of a Member of the Court, alongside the Member’s primary legal assistant. Fellows can expect to conduct research and draft memorandums on questions of law or fact relating to cases pending before the Court, attend hearings and sittings, and perform any other duties that may be assigned to them by their respective judges. The duration of the fellowship is approximately ten months, from early September to June of the following year. The Court generally selects 15 participants nominated by universities across the world. Eligibility In making its selection, the Court seeks candidates of diverse nationalities. To be eligible, candidates should be 31 years old or younger at the start of their fellowship. This requirement may be waived only in special circumstances. Candidates must demonstrate excellent results in their legal studies, and an interest in public international law through their studies, publications and/or work experience. Candidates must have an excellent command, both written and orally, of at least one of the two official languages of the Court (English and French); a working knowledge of the other language is considered an asset. How to Apply The deadline for the submission of applications is 5 February 2024 An online pre-screening questionnaire must be completed by the nominating university. The university must also designate an authorized focal point through whom all application materials will be submitted. Following completion of the pre-screening questionnaire, the following six documents must be submitted for each candidate via the email address of the university’s authorized focal point, in the order below: Official letter of nomination from the university ICJ personal history form Letters of reference Official academic records Writing sample Candidate profile summary table Refer to the official publisher here

Pooja

Oct 31, 2023

Same-Sex Marriage Hearing In India

Case - Supriyo and Anr v. Union of India Citation - W.P.(C) No. 1011/2022; Diary No. 36593/2022 The Supreme Court of India on April 18, 2023, began hearing a series of petitions seeking legal recognition of same-sex marriage in India under the Special Marriage Act. The Special Marriage Act[1] of 1954 provides a civil form of marriage for couples who cannot marry under their law. The main petitioners of the case, Supriyo and Abhay Dang, argue that the non-recognition of same-sex marriage amounts to discrimination that strikes at the root of dignity and self-fulfilment of LGBTQIA+ couples. The petitions argued that marriage brings with it several rights, privileges, and obligations that are “bestowed and protected by the law”. The Delhi Commission for Protection of Child Rights (DCPCR) also advocated for the recognition of marriage, filing an intervention application to assist the court with the impact of such marriages on children. On the other hand, the respondents, including the Central government, the national child rights body NCPCR, and a body of Islamic scholars called the Jamiat-Ulama-i-Hind, opposed the petitions. The Centre has maintained its stance against marriage equality, invoking that a marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India. In its submission to the Supreme Court, the Centre has called this petition, a voicing of “urban elitist views”. According to the Centre, the judiciary should leave the task to the Parliament, the people would decide whether such a marriage is socially and religiously acceptable or not. Here’s the chronology of how the case reached the Constitution Bench of the Supreme Court: November 25, 2022: Two gay couples moved the Supreme Court, seeking recognition of same-sex marriage under the Special Marriage Act, following which the court issued notices on the plea that, The petitions sought that the Special Marriage Act be made gender-neutral by taking down any gender-or sexuality-based restriction. The court had noted that in a similar case before the Kerala High Court, the Union Government made a statement through the Deputy Solicitor General that the ministry was taking steps to get all the writ petitions, including the writ petition before the High Court of Delhi, transferred to the SC. The court also took note of petitions pending before various courts on the same subject, including one petition before the Kerala HC and eight others before the Delhi HC. A two-judge bench led by Chief Justice of India DY Chandrachud then issued a notice and sought a response from the Central government, and the Attorney General for India. December 14, 2022: The Supreme Court issued a notice in another plea filed by a same-sex couple. The married couple, including one Indian national and one US citizen, sought legal recognition of their marriage under the Foreign Marriage Act, of 1969. Transfer of cases from High Courts to Supreme Court: January 6, 2023: The Supreme Court directed the transfer of all petitions seeking legal recognition for same-sex marriages pending before different high courts to the Apex Court. A bench headed by CJI DY Chandrachud transferred all petitions pending on the issue before different high courts, including Delhi, Kerala, and Gujarat. The top court posted to March 13 the hearing of petitions seeking recognition of same-sex marriage under various Acts, including the Special Marriage Act, the Foreign Marriage Act[2], and the Hindu Marriage Act[3]. The government was asked to file its response to the pleas by February 15. The court said multiple petitions are pending before different high courts involving similar issues and should be transferred to and decided by the Apex court. The court also granted liberty to petitioners to argue before the court virtually. The court appointed nodal counsel on behalf of both sides to assist the court. The CJI suggested the Solicitor General and the petitioner's counsel discuss and identify the issues to be argued. The CJI also said that 3-4 lead counsels can be decided by the petitioners to ensure there is no repetition. The court had earlier issued notice on some of the pleas and had sought the Centre’s response to two pleas filed by two gay couples, seeking the solemnisation of same-sex marriage under the Special Marriage Act, of 1954. The SC appointed Advocate Kanu Agarwal as the nodal counsel for the Union of India and Advocate Arundhati Katju for the petitioners, to assist the court. January 30, February 10, February 20, & March 3, 2023: The Supreme Court issued notices on more petitions filed seeking similar relief and tagged them with the main case. March 12, 2023: The Centre filed an affidavit before the SC opposing same-sex marriage, stating that the concept of an Indian family involves a biological man and woman and it won’t be possible for the court to change the entire legislative policy of the country that was deeply embedded in religious and societal norms. According to the Centre, a union between persons of the opposite sex was socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation. The codified and uncodified personal laws take care of all branches of every religion, and depending upon the personal laws applicable, the nature of marriage as an institution is different. The Centre’s affidavit stated that "amongst Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again envisaged only between a biological man and a biological woman”. March 13, 2023: The SC referred the case to a constitutional bench, considering the broader context of the petitions and the inter-relationship between the statutory regime and constitutional rights. The petitioners asserted broader constitutional entitlements arising out of the right to life and personal liberty and the right to dignity, which are embodied in the provisions of the Constitution, including its Preamble, and as a natural incident of Articles 14, 19, and 21. The submissions involved the interplay between constitutional rights on the one hand and specific legislative enactments, including the Special Marriage Act 1954, the Foreign Marriage Act 1969, the Hindu Marriage Act 1955, the Citizenship Act[4], and the Transgender Persons Protection of Rights Act[5] 2019. The Supreme Court noted that one of the issues raised before the court relates to the rights of transgender couples to marry, as a natural incident of their constitutional entitlements. The top court found it appropriate for the issues raised to be resolved by a bench of five judges given the provisions of Article 145(3) of the Constitution. April 1, 2023: The Jamiat Ulama-I-Hind (JUIH) opposed the pleas seeking legal recognition of same-sex marriages, claiming that Islam’s position on the prohibition of homosexuality is undisputed and established. The JUIH plea said, “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself. The position of Islam concerning the prohibition on homosexuality is undisputed and established.” April 6: The Delhi Commission for Protection of Child Rights (DCPCR) filed an intervention application, supporting same-sex marriages and the right of same-sex couples to adopt. Case came before the Constitution Bench: April 15, 2023: The Supreme Court notified the composition of the five-judge bench that will hear the batch of petitions seeking legal recognition for same-sex marriage. The five-judge Constitution Bench comprises Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. April 17, 2023: The Centre filed a new application, this time questioning the maintainability of the batch of pleas. The Solicitor General mentioned the application and the CJI directed the same to be listed with the main case. The Centre in its application said same-sex marriages cannot be recognised through judicial adjudication and it is in the exclusive domain of the legislature. The Centre stated that those seeking marriage equality in India merely represent "urban elitist views for the purpose of social acceptance", and that the popular will of the people is that marriage be recognised solely amongst heterosexual individuals. The NCPCR also raised a plea stating that children raised by same-sex parents may have limited exposure to traditional gender role models, which could impact their understanding of gender roles and gender identity. The NCPCR further stated that exposure of these children would be limited and their overall personality development would be affected. However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported the case of the petitioners and said adoption and succession rights must be conferred on same-sex couples. The Bar Council of India (BCI) also recently held a joint meeting with all the State Bar Councils in the country and passed a resolution requesting the Court to leave the same-sex marriage issue for legislative consideration. The BCI's statement was later condemned by the Supreme Court Bar Association (SCBA) stating that the apex court must hear the petition and decide whether it should be adjudicated by the Court or be left to the wisdom of the parliament. After 7 days of hearing the SC on 27 April 2023, they had asked the Centre to come back with its response on the social benefits that same-sex couples can be granted even without legal recognition of their marital status. The court posed the question after observing that the Centre's acceptance of the right to cohabitate with same-sex partners as a fundamental right cast a “corresponding duty" on it to recognise its social consequences. On the 8th day of the hearing, 3 May 2023, the Centre proposed forming a multi-ministry Committee under the Cabinet Secretary to address concerns of the LGBTQ+ community and suggestions given by the petitioners. Solicitor General Tusshar Mehta stated to the Supreme Court that the Committee would have representation from across ministries and it would be headed by the Cabinet Secretary. The next hearing will be held on 9 May 2023. On the 9th day of the hearing, Appearing for the child rights body NCPCR, among others, ASG Aishwarya Bhati submitted that while the concept of gender may be “fluid”, the concepts of mother and motherhood are not. According to her “entire architecture of our laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons, and the State is justified in treating heterosexuals and homosexuals differently,” Meanwhile, the Centre informed the SC that it had received responses from seven states on the plea seeking legal recognition for same-sex marriages. While Rajasthan, Assam, and Andhra Pradesh opposed the plea, the remaining four — Sikkim, Maharashtra, Uttar Pradesh, and Manipur — sought more time. Additionally, petitioners’ advocate Mukul Rohatgi suggested that without an interpretation of the Special Marriage Act in favour of LGBTQIA+ persons, the court could register marriages under the Registration Act, of 1908. On the final day of arguments, the defendants’ Senior Advocate AM Singhvi told the Bench that a civil union, as permitted in some countries, is not a solution to what same-sex couples are asking for, as civil unions are not an equal alternative and do not address constitutional anomalies presented by excluding non-heterosexual couples from the institution of marriage. This exclusion sends a message that it is legitimate to differentiate between the commitments of heterosexual and non-heterosexual couples, by indicating that the latter’s marriages are not as significant as “real” marriages. The Supreme Court on 11 May 2023 reserved its verdict on the batch of petitions seeking legal recognition of same-sex marriages after a hearing that lasted 10 days. The bench, however, did not indicate any tentative time frame for delivering its verdict as the Supreme Court will remain shut for the summer vacation till June 30, 2023, starting May 22, 2023. The judgment is expected only after this break. This debate is being keenly watched in a country that is home to tens of millions of LGBTQ+ people. Over the years, acceptance of homosexuality has also grown in India, especially since the September 2018 ground-breaking ruling that legalised consenting same-sex relationships. But attitudes to sex and sexuality remain largely conservative and activists say most LGBTQ+ people are afraid to come out, even to their friends and family, and attacks on same-sex couples routinely make headlines. https://indiankanoon.org/doc/4234/ https://ncwapps.nic.in/acts/TheForeignMarriageAct1969.pdf https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf https://www.indiacode.nic.in/bitstream/123456789/4210/1/Citizenship_Act_1955.pdf https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf

Sumasri

Oct 23, 2023

Pets and Stray Animal laws in India

Introduction India, the home of the sages, has long been known for its concept of compassion for all living things. When cooking, most Indian households, both rural and urban, set aside some of the food for cows, dogs, and birds. However, because they were born as a superior species, humans believe they have the only right to this planet and all of its benefits. Animals have been pushed from their natural homes, and people who try to aid them are frightened and targeted. Numerous incidents of criminals attacking dog lovers while pretending to be human race savers have occurred. Despite the fact that animals are speechless, society must speak for them. Animals shouldn't be made to feel any suffering or anguish. Animal cruelty causes them psychological suffering. Animals have feelings and can breathe like humans. Stray animals and wild animals require self-determination, food, water, shelter, normal behaviour, and medical treatment. In India, many building societies have discriminatory pet-related restrictions. Pet owners frequently get criticism for disobeying pet-related laws, some of which are absurd and unlawful while others are reasonable and fair. Indian Laws and Provisions The 10 Fundamental Duties listed in Article 51-A of the Constitution can be divided into four categories: duties to one's own well-being, duties to the environment, duties to one's country, and duties to one's own state. Although they are non-justifiable in nature, "Directive Principles of State Policy" instructs the government to keep them in mind when drafting laws. The following categories comprise Directive Principles: Gandhi was a champion of social, economic, political, administrative, legal, environmental, monument protection, and safety and peace[1]. The Indian Constitution (Forty-second Amendment) Act, 1976 added the first specific environmental protection and improvement clauses following the Stockholm Declaration in 1972. The Constitution of India Every Indian citizen has a responsibility to preserve and maintain the natural environment, which includes forests, lakes, rivers, and animals, as well as to show compassion for all living things, according to Article 51-A (g)[2]. The State shall work to preserve and improve the nation's environment, as well as its forests and wildlife, according to Article 48-A[3]. Citizens' fundamental rights are covered in Article 19. So, Article 19 includes the "Right to Protect the Environment.[4]" All citizens are granted religious freedom under Articles 25, 26, 27, and 28 while still upholding India's secularism[5]. All religions are treated equally before the State, according to the constitution. Every religion is free to be preached, practised, and spread by the citizens in their own way. Numerous religions include the practice of feeding animals, such as dogs. Rules under Different Enactments All acts of stray and wild animal cruelty are considered crimes under Section 11 of the Prevention of Cruelty to Animals Act[6]. There are provisions for both fines and imprisonment. There are similar clauses in the Indian Penal Code. The Animal Birth Control (Dog) Rules, 2001, passed under the Prevention of Cruelty to Animals Act, forbid the throwing or driving of stray dogs from one region to another, as well as sterilisation and vaccination as methods of stabilizing/reducing stray dog populations and removing the risk of rabies[7]. Even the killing of stray dogs was outlawed by the Supreme Court of India in certain of its decisions. It is against the law for an individual, RWA, or estate management to remove or relocate dogs, according to the Stray Dog Management Rules of 2001[8]. The canines must be sterilised, given their shots, and then brought back to the same location. The city can't take away pets that have received their shots and been spayed or neutered. A violation of Section 506 of the IPC is making threats against, abusing, or harassing a neighbour for feeding animals[9]. I.P.C. Sections 428 and 429 impose harsh penalties (up to 5 years in prison) on anyone who resorts to dislocation, abduction, or other cruel acts toward domestic pets or other animals in the community[10]. Sections 73 through 79 and 99 of the Delhi Officers Act of 1968 offer police specific authority to intervene when a wild or stray animal offence has been committed. Animal feeders are granted immunity under a Ministry of Public Grievances notification, and an Animal Welfare Board of India notification, both dated March 2008, which prohibit government employees or organisations like Resident Welfare Associations from harassing people who try to feed or assist wild and stray animals. The Environment (Protection) Act of 1986 and the Wildlife (Protection) Act of 1972 provide protection from various forms of cruelty to stray dogs. On November 22, 2010, the Central Mumbai Consumer Disputes Redressal Forum issued a directive sharply criticising housing associations that had been charging residents for the usage of elevators since October 2008 for pets[11]. In 2011, the Delhi High Court issued an order directing the police to protect dogs and dog feeders[12]. The judgement also declared it an offence for anyone to limit, forbid, or annoy anyone who is feeding a street dog, or to resort to removal, dislocation, or killing of a dog. A similar injunction banning the removal, culling, or dislocation of a dog anywhere in India was issued by the Supreme Court of India in 2009. ‘Who’, ‘Where’, and ‘How’ of reporting Animal Abuse Who can report? Animal abuse can be reported by ‘anyone’ and ‘everyone’, when they see it happening. One may still file a report of animal cruelty even if they were not present when the incident occurred but learned about it from a friend or neighbour as long as they know the location of the animal. They can even compel the eyewitness to speak out in opposition to the cruel treatment of any animal, whether it be a dog, a bird, or even a wild animal. Anyone who is around living things shouldn't put up with even the smallest act of cruelty or damage. One should be informed of the options available for reporting animal abuse, including phone and internet options. Even animal abuse observed on television, in a movie, or in any internet series can be reported. If the other person believes the pet's owner has treated the animal cruelly in any way, they may even file a complaint against the owner. Where to report? Animal cruelty is forbidden by the Prevention of Cruelty to Animals Act of 1960. A police officer can be informed of animal cruelty. If someone sees animal abuse of any kind or believes it will happen somewhere, they should dial 911. One must contact PETA India via postal mail, telephone, fax, web form, or e-mail. To help an animal who's in immediate physical danger or in urgent need of veterinary care, PETA India’s emergency number is 9820122602. For non-urgent situations, alternative contact numbers are - 9619167382? or 9167907382. One might dial the police or the police station in the reputable neighbourhood where the maltreatment is occurring. If one is unable to contact any legal authorities, one can get in touch with organisations that help stray animals or people. Even online, one can report an instance of animal abuse on websites like "The Pet Nest." For reporting various sorts of animal cruelty, PETA[13] India offers several options. For instance, there is a different form[14] for reporting animal abuse in a lab, and there is a different form[15] for reporting animal abuse in a movie or on television. Animal advocacy groups like "The Humane Society" invite people to report animal abuse on their page or to the police. Along with reporting animal cruelty, one is required to take additional actions, such as contacting a veterinarian, confronting the perpetrator, and filing an FIR right away. The Royal Society for the Prevention of Cruelty to Animals[16], an organisation dedicated to animal welfare since 1824, offers a website where people can report instances of animal mistreatment. Each nation has its own reporting guidelines and hotlines for both present and past acts of animal cruelty. One must be knowledgeable of the laws and regulations of the nation or state they currently reside in. How to report? When filing a complaint, one can document the incident to aid the prosecutor in bringing the abuser to justice. Animal cruelty reports should be as thorough as possible, which means they should include the times and circumstances of the incident. A witness or other proof of the alleged act is very helpful in establishing the accused's guilt. The person filing the complaint does not have to come forward in person. He or she has the option to remain anonymous and file a complaint. When one witness an act of animal cruelty, one should immediately contact animal control or a police officer to file a complaint. It is encouraged that even if you are unsure if the act qualifies as animal cruelty or not, you nonetheless report it to animal control so they may check into it and make sure no cruelty occurs. One should be cautious and aware of their surroundings while visiting a location where animal cruelty is occurring so that they do not put themselves at any risk. This is because it is extremely likely that the perpetrator or the animal would react in a way that is harmful or lethal for the witness. One must take extreme care with unknown creatures who might be scared or in distress, and they must never enter another person's property without their permission or invitation. Giving police enforcement the names and phone numbers of the people who were there when the crime was committed would be very helpful. The person filing the complaint, or the person he contacted and who is in charge of the complaint, must also keep an accurate record so that, in the event that the official does something dishonest or improper, the person may inform higher authorities. One might get in touch with their local or native animal welfare organisation for assistance if they are unsure of the procedures or tactics to employ in fighting animal cruelty cases. Instances of Animal Abuse in India vis-a-vis Kerala Incident, 2022 The problem of stray dogs has long plagued Kerala. An estimated 280,000 strays live on its streets, and their number is increasing by 20% yearly. In Kerala, another 900,000 dogs are kept as pets. Attacks by stray dogs on women, children, and the elderly are frequent occurrences. Approximately 100,000 individuals have been bitten by stray dogs this year so far, and 21 rabies-related fatalities have been documented[17]. Following a wave of brutal attacks on people, including children, in the state of Kerala, a street dog that was supposedly accused of attacking people was beaten to death and then publicly hanged. More than a dozen stray dogs were also discovered dead in various parts of the southern state, apparently as a result of poisoning, thus this wasn't the only incident[18]. Animals are granted "five freedoms," according to the court in the 2014 case of Animal Welfare Board of India v. A.Nagaraja & Others (2014)[19]. These include the freedom from hunger and thirst, discomfort, suffering, disease, and damage; the freedom from fear and anguish; and the freedom to act normally. Additionally, the court, in this case, ruled that bulls should not be utilised in any races or bullfights and should not participate in bull-taming sports like Jallikattu. The Court acknowledged that Article 51-A(g) and (h) of the Indian Constitution, along with Sections 3 and 11 of the Prevention of Cruelty to Animals Act, guarantee both the right to live in a healthy and clean environment and the right to receive protection from humans against needless suffering or pain. The Punjab and Haryana High Court ruled that the entire animal kingdom of their respective states will be considered a legal personality and have a separate identity with the corresponding rights, duties, and liabilities of a legal person in another case of Karnail Singh and others v. State of Haryana (2019)[20]. As the human face for the protection and care of the wild and stray animals, all State citizens have been recognised as persons in loco parentis. However, a similar petition asking the Supreme Court to recognise the entire animal kingdom as a separate legal species with equal rights to sue and be sued as well as obligations under the law was submitted. The government received notification from the court, and the case is still pending in court. In Subhas Bhattacharjee v. State of Tripura (2019)[21], the Tripura Court determined that the state's practice of offering animal sacrifices in its temples was unconstitutional. The court pointed out that under Article 25 of the Indian Constitution, religious freedom might be restricted if it interferes with other fundamental rights or if it endangers the public's health, morals, or order. While respecting the fundamental rights of wild and stray animals, the court noted that sacrificing animals for religious purposes is wrong and disturbs one's ability to maintain their mental calm. Additionally, according to Section 28 of the PCA Act, only necessary ceremonies may be used to protect someone from punishment for killing an animal in line with their faith or society. Conclusion Animal regulations in India were passed many years ago and are now out of date in light of the socioeconomic climate of the country. Animal rights activists and other NGOs have pushed for improvements to India's animal legislation, but so far, no concrete steps have been done by the authorities. The Indian Constitution's Article 51A(g) also states that it is our duty to protect and uphold animal rights. Due to a lack of efficient controls, animal cruelty has significantly increased over time. The courts have been essential in protecting animal rights by extending the application of Article 21 of the Indian Constitution. Animals should not be used for entertainment, religious sacrifice, or any other action that constitutes animal cruelty. The Animal Welfare Board, the government, the courts, and non-governmental organisations should all thoroughly investigate any such activity (NGOs). Humans do not control animal life, thus we must live in harmony with it. JAGRUTI INDIA, https://jaagrutiindia.files.wordpress.com/2013/03/a-dossier-of-indian-street-dog-related-laws-and-court-rulings.pdf INDIA CONST. art. 51A, cl. g. INDIA CONST. art. 48A. INDIA CONST. art. 25, 26, 27, 28. INDIA CONST. art. 19. Prevention of Cruelty to Animals Act, 1960 § 11, No. 59, Acts of Parliament, 1960 (India). MINISTRY OF HOME AFFAIRS, https://www.mha.gov.in/MHA1/Par2017/pdfs/par2016-pdfs/ls-020816/2572 E.pdf Ibid. Indian Penal Code, 1860 § 506, No. 45, Acts of Parliament, 1860 (India). Indian Penal Code, 1860 § 428 and § 429, No. 45, Acts of Parliament, 1860 (India). Supra note 1. Supra note 1. PETA INDIA, https://www.petaindia.com/ PETA INDIA, https://www.peta.org/issues/animals-used-for-experimentation/hero-animals-labs/ PETA INDIA, https://www.peta.org/about-peta/contact-peta/report-cruelty/ Royal Society for the Prevention of Cruelty to Animals, https://www.rspca.org.uk/ Jeemon Jacob, How stray dog menace is getting out of control in Kerala, INDIA TODAY, (Sep. 8, 2022, 05:38 PM), https://www.indiatoday.in/india-today-insight/story/how-stray-dog-menace-is-getting-out-of-control-in-kerala-1997968-2022-09-08. Sniggha Choudhury, Inside Kerala’s Stray Dog Menace: 21 People Dead Due To Rabies; Brutal Visuals Of Killing Dogs Emerge, INDIA.COM (Sep. 18, 2022, 8:43 AM), https://www.india.com/news/india/kerala-stray-dogs-menace-street-dogs-killed-poisoned-21-people-dead-rabies-vaccine-5637893/. Animal Welfare Board of India vs. A. Nagaraja&Ors., Civil Appeal No. 5387 of 2014. CRR-533-2013. 2019 SCC Online Tri 441.

Sumasri

Oct 19, 2023

Sambhaavnaa Youth Fellowship Program 2023

About Sambhaavnaa Institute The Sambhaavnaa Institute of Public Policy and Politics is an alternative learning and living space for those concerned with social and political change. Nestled in the village of Kandwari, in the lap of the mighty Dhauladhar ranges of Himachal Pradesh, Sambhaavnaa’s primary objective has been to nurture value-based leadership by encouraging individuals, especially the youth, to discuss and develop a critical perspective on the ideals and ideas that define a just society. The Institute was founded under the aegis of the Kumud Bhushan Education Society in 2004. Since 2011, it has emerged as a platform for individuals and organisations to reflect on and engage with the injustices that prevail in society today. Background Anyone with moderately open eyes would agree that there is an urgent need to question and challenge the inequities and ecological crises resulting from our current social, economic and political structures, and to radically change many of these structures and their functioning to better serve the public interest with the principles of equality, justice and ecological harmony. In light of the above, for the last thirteen years, the Sambhaavnaa Institute has been organising short term (4 days to six-weeks) participatory, reflective, perspective and skill building programs on a range of social-political-economic issues of India and the world. Sambhaavnaa seeks to encourage civil society members, and youth inclined in such directions to develop a critical perspective on the ideas and ideals that define a ‘just’ society – and actively deploy the same in manifesting such a society. Our workshops have panned specific yet intersectional themes like gender, environment, development, economics and finance, caste, communalism, public service delivery, agriculture and many other topical issues. We also organise a range of skill building programs around theatre, writing and journalism, research methods etc. Some of the young people who have come for our workshops have expressed a desire to be here long-term where they can develop a better understanding of the Indian socio-political-economic reality through attending more and diverse programs. They also believe that such an opportunity would help them meet and interact with a range of people engaging in different ways towards a more just society. While the Institute aims to design longer programs for youth that could serve this purpose, we have currently decided to experiment with a fellowship format where we house a very small number (two to three) of individuals who have this interest in learning by being here over a longer time period. This learning opportunity by attending workshops is however dovetailed with the fellows assisting in the functioning of the institute while being here. The fellowship is thus a middle ground that can meet both the expectations of such youth, and help them give back meaningfully to the institute while they are here. Learnings The program foresees following capacity building skills for the fellows. Understanding of the social-political issues currently facing our society Learn from and interact with, activists and academics facilitating the Sambhaavnaa workshops. Learning the complete process of organising the Sambhaavnaa workshops in their entirety 4-6 week internship to a grassroot organisation or some contemporary campaign. Program Details The fellows’ time would be spent along the following four major dimensions: A. The primary benefit to the fellow is an opportunity to attend these workshops, and interact with not only a diverse set of participants from across the country but also close interactions with the resource persons. Attending the workshops also offers a chance to remain connected with some of these resource persons to get advice and support through the course of their fellowship, and even later on in life. B. Assisting in organising a workshop involves a host of activities Assist the office team in outreach for the workshop, including designing and updating our social media Research and collate materials (articles, movies, and other resources) that could be used during the workshop Assist the office team in managing logistics for the participants and resource persons After attending a workshop, the fellows would be expected to Update captured pictures and videos of the workshop on social media Make a report on the workshop that you attend Review the workshop to figure ways of improvement – be it regarding program design, participant selection, content and delivery. Figure ways to strengthen best practices at Sambhaavnaa C. During the course of fellowship the fellow must choose a particular issue that is of interest or close to their heart, and work on strengthening their understanding on the same. At the end of the fellowship they will be required to produce an output which could be a research document/presentation/ article/video story/ a workshop session plan and content etc. D. Sambhaavnaa has good relationships with many grassroot organisations across the country, working on a diverse set of issues. We would arrange a 4-6 week internship for the fellows in some organisation / area of interest of the fellows’ choice. At the end of the internship, the fellow would be expected to share their learnings with the other fellows and the Sambhaavnaa team. Fellowship Period November 15, 2023 to July 15, 2024 Eligibility Applicants should have an innate interest in working for a just world. They should additionally possess the following traits: Someone who wants to work for social justice and environmental justice. Willingness to learn Is a team player Disciplined, dedicated and self-driven regarding their work: this is critical. The Fellowship is open to all Indian citizens who meet the following eligibility criteria: Between 23-30 years Qualification – Masters degree Good command over both English and Hindi; Should be able to write well in one of these languages too. Basic knowledge of IT, Social Media, Zoom, MS Office etc Knowledge of basic video editing will be an added value. Application Interested candidates can apply via the link given below at the end of the post. Honorarium Rs 10000 per month. Click here to apply.

Sumasri

Oct 06, 2023

Case Analysis: Mohori Bibee v. Dharmodas Ghose

Name - Mohori Bibee v. Dharmodas Ghose Citation - (1903) ILR 30 Cal 539 (PC) Any agreement or deed in which the minor is a party to it or is included in such agreement shall be declared null and void because such agreement is not an agreement in the eyes of the law. In cases of minors parents or custodians shall not be liable for the dealing done by the minor without their consent, and hence they will be not liable to return the amount back taken by the minor out of the moral obligation. FACTS OF THE CASE Dharmodas Ghose was the respondent in this case. He was a minor (i.e. has not completed the 18 years of age) and he was the sole owner of his immovable property. The mother of Dharmodas Ghose was authorised as his legal custodian by the Calcutta High Court. When he went for the mortgage of his own immovable property which was done in the favor of the appellant i.e. Brahmo Dutta, he was a minor and secured this mortgage deed for Rs. 20,000 at a 12% interest rate per year. Brahmo Dutta who was a money lender at that time and he secured a loan amount of Rs. 20,000. Dharmodas Ghose’s mother sent a notification to Brahmo Dutta informing him about the minority of Dharmodas Ghose on the date on which such mortgage deed was commenced, but the proportion of the sum of loan that was actually provided was less than Rs. 20,000. The representative of the defendant, who actually acted instead of on behalf of the money lender has given money to the plaintiff, who was a minor and he fully had knowledge about the incompetency of the plaintiff to perform or enter into the contract and also that he was incompetent legally to mortgage his property which belonged to him. Hence, Dharmodas Ghose along with his mother brought legal action against Brahmo Dutta by saying that the mortgage that was executed by Dharmodas was commenced when he was a minor or infant and so such mortgage was void and disproportionate or improper and as a result of which such contract should be revoked. When this petition or claim was in process, Brahmo Dutta had died and then further the appeal or petition was litigated by his executors. The plaintiff argued or confronted that in such case no relaxation or any sought of aid should be provided to them because according to him, the defendant had dishonestly misinterpreted the fact about his age and because if a mortgage is cancelled at the request by the defendant i.e. Dharmodas Ghose. ISSUES OF THE CASE Whether the deed was void under sections 2, 10, and 11 of the Indian Contract Act, 1872, or not? Whether the defendant was liable to return the amount of loan which he had received by him under such deed or mortgage or not? Whether the mortgage commenced by the defendant was voidable or not? CONTENTIONS OF THE PARTIES The respondent was a major when he executed the mortgage. Neither the appellant nor his agent had any notice that the respondent was a minor. The respondent made a fraudulent declaration regarding his age and is hence disentitled from seeking any relief. The respondent is stopped by section 115 of the Indian Evidence Act, 1872 from claiming that he was a minor at the time of executing the mortgage. The respondent must repay the amount advanced according to sections 64 and 38 of the Indian Contract Act (1872) and section 41 of the Specific Relief Act (1877). JUDGEMENT According to the verdict of the Trial court, such a mortgage deed or contract that was commenced between the plaintiff and the defendant was void as it was accomplished by the person who was an infant at the time of execution of the mortgage. When Brahmo Dutta was not satisfied with the verdict of the Trial Court he filed an appeal in the Calcutta High Court. According to the decision of the Calcutta High Court, they agreed with the verdict that was given by the Trial court and dismissed the appeal of Brahmo Dutta. Then he later went to Privy Council for the appeal and later the Privy Council also dismissed the appeal of Brahmo Dutta and held that there cannot be any sought of contract between a minor and a major person. The final decision that was passed by the council were- Any sought contract with a minor or infant is void/void ab- initio (void from the beginning). Since the minor was incompetent to make such a mortgage hence the contact made or commenced shall also be void and not valid in the eyes of the law. The minor i.e. Dharmodas Gosh cannot be forced to give back the amount of money that was advanced to him, because he was not bound by the promise that was executed in a contract.

Sumasri

Oct 04, 2023

The Reginald F. Lewis Fellowship 2024-25 for Law Teaching at Harvard Law School

About Harvard Law School Harvard Law School provides unparalleled opportunities to study law with extraordinary colleagues in a rigorous, vibrant, and collaborative environment. About Lewis Fellowship The Reginald F. Lewis Fellowship for Law Teaching is made available through a gift from Reginald F. Lewis, a graduate of Harvard Law School (1968) and his wife, Loida Nicolas-Lewis. Shortly before his death in 1993, Mr. Lewis gave the largest grant at the time in the Law School’s history. Harvard Law School’s International Law Center was renamed in his honor. Mr. Lewis was founding CEO of TLC Beatrice Foods International. He was also the author of the book Why Should White Guys Have All the Fun? Eligibility Harvard Law School will offer the Reginald F. Lewis Fellowship for Law Teaching, with an appointment expected to commence July 1, 2024. The Fellowship is designed to support a recent law graduate who has demonstrated a strong interest in legal scholarship and who is preparing for a career in law teaching. The Lewis Fellowship program particularly supports the training of prospective law teachers who will enhance the diversity of the profession. Harvard Law School especially encourage applications from candidates who will diversify the legal academy. The Lewis Fellow is required to prepare at least one major article for publication. Additionally, the Lewis Fellow has an opportunity to audit courses and attend workshops at the law school. The Lewis Fellow is expected to follow a schedule of research and work to be agreed upon with the Lewis Committee. Duration The term for the Lewis Fellowship will be from July 1, 2024, through June 30, 2025. Stipend The Lewis Fellow will receive an annual stipend of $55,000. The Lewis Fellow is expected to be in residence at Harvard Law School during the academic year. Required Documents a comprehensive résumé or curriculum vitae, a detailed (four pages maximum) description of the research and writing project that will be undertaken with a view to publication during the Fellowship, a statement of the applicant’s interest in law teaching and legal scholarship (four pages maximum), including a description of the fields in which the applicant expects to teach and pursue scholarship, copies of all transcripts, and two letters of reference addressing the applicant’s potential for success as a legal scholar and law teacher. How to Apply? Interested applicants can apply through the link given at the end of the post. Application Deadline Deadline to submit your application is no later than Thursday, October 5, 2023. Click here to apply. Click here for the official notification.

Sumasri

Sep 27, 2023

Marital Rape In India

Introduction Marital rape can be understood as any other form of rape with the only difference being that it is committed by a husband on his wife. Basically, it is a term used to describe sexual acts committed without a wife's consent and/or against her will by her husband. Indian laws treat rape and marital rape differently to an extent that the former is criminalised and the latter is not. While the topic was discussed widely on news channels and debates as Delhi HC sat to hear petitions on criminalisation of marital rape, several men took to social media threatening to boycott the institution of marriage if marital rape is criminalized. Several men’s rights organizations claimed that “there were large-scale violations of civil liberties and human rights in the name of women's empowerment in India”. This article answers the questions such as: what exactly does the law say, why marital rape is not penalised and whether the situation is the same across the world? Read on! What The Law Says Section 375 of the Indian Penal Code, 1860 provides that a man commits the criminal offence of rape if he engages in sexual intercourse with a woman against or without her consent, or if she is a minor i.e. under 18 years of age. However, Exception 2 to Section 375 provides that sexual intercourse by a man with his own wife is not rape if the wife is of 18 years of age or above. This makes marital rape legal in India and consequently allows using physical violence or any other form of threat or engaging in sexual intercourse without the valid consent of the wife to make this happen. The Domestic Violence Act, 2005, and Section 498A of IPC cover the offence of physical and mental cruelty against a woman by her husband or his family. However, the former being a civil law, can only provide protection and monetary compensation to women victims without any further punishment, and under the latter, the perpetrator has to serve a maximum punishment of three years in prison along with a fine. Moreover, the heinous crime of rape is not justified when it is put under the contours of mere ‘cruelty’. Why Marital Rape Is Not Seen As Rape Reasons, why India does not consider marital rape as rape, can be summarised in a few words: established norms in the patriarchal society, misogyny and misconceptions. The reasons have been discussed below in detail: Fear Of The Law Being Misused One of the arguments currently prevalent against criminalising marital rape is that women will use the law against marital rape to falsely accuse their husbands. Such an argument finds its resort to various domestic violence laws being enacted for the protection of women in India such as the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC which are said to be misused by some women. Even the Union Government was seen supporting this view a few months ago when it submitted an affidavit to the Delhi HC stating that a law criminalizing marital rape can become an “easy tool to harass the husbands”. The Notion Of Marital Sanctity Justice Verma Committee which was formed after the Nirbhaya rape case in 2012 recommended that marital rape be criminalized but the parliamentary standing committee on Home Affairs said that if marital rape is brought under the ambit of criminal law, it will harm the entire family system. The thought of criminalising marital rape is often related to the destruction of the sanctity of marriage. In a nutshell, India is ready to sacrifice a woman’s moral, sexual, and fundamental rights in the belief that it will preserve an institution called ‘marriage’. It is important to understand that consent must be constant irrespective of the circumstance, institution or relationship between the victim and the perpetrator. Moreover, if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly can not either. Women Being Objectified As Husbands’ Property As a consequence of IPC being drafted during colonial rule, the pattern of English law was followed while adding Exception 2 to Section 375 which considered a wife to be the private property and chattel of the husband. Another justification was given by William Blackstone in 1753 as he defended the common law doctrine of coverture by stating that the very being or legal existence of the woman is suspended during marriage. Societal Beliefs And Practices In a country like India, women are usually expected to devote themselves as dutiful wives to their husbands and a woman is presumed to have given her perpetual consent to sex once she marries a man. Consequently, this supports the belief that a husband can ‘demand’ sex from his wife at any time that suits him. All this is furthered by the stereotypes that a woman likes to be taken by force and even her no means yes. Case Laws RIT Foundation v. The Union of India (2022) On May 11, 2022, the two-judge bench of the Delhi HC gave a split verdict on a batch of petitions challenging the marital rape exception (MRE) under Section 375 of the Indian Penal Code. On one hand, Justice Rajiv Shakdher observed that the classification between married and unmarried couples under MRE was unreasonable and arbitrary as it seems to convey that forced sex only outside marriage is “real rape” and not otherwise. MRE was thus found to be violative of Article 14 of the Indian Constitution. It was further observed that the fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing, thereby violating Article 21. MRE was also found to be violative of Articles 15 and 19(1)(a) since it triggers discrimination against women based on their marital status and violates their constitutionally guaranteed freedom of expression. Keeping all the hitherto observations in mind, it was held that MRE under Section 375 must be struck down. On the other hand, Justice C. Hari Shankar pointed out that there is a right to expect sexual relations from both sides in marriage but no such right exists when the parties are unmarried. It was stated that there is no support available to substantiate that every act of non-consensual sex by any man with any woman is rape. Thus, MRE was held to be non-violative of Articles 14, 19(1)(a), and 21 of the Indian Constitution, and a petition challenging the same was held to be unsustainable. Due to the HC’s split verdict, the court granted a certificate of appeal to the Supreme Court stating that substantial questions of law are involved in the matter. The matter is now pending before the SC. Hrishikesh Sahoo v. State of Karnataka & Ors (2022) In this case, the single judge bench of the Karnataka High Court held that a man can be prosecuted for offence of rape with his wife and that MRE cannot be absolute. It was observed that MRE leads to inequality and runs counter to Article 14 of the Indian Constitution. The HC also stated that it is for the lawmakers to ponder over the existence of such inequalities in law. However, soon after the judgment, the SC put an ad-interim stay on it, and acting on a plea by the aggrieved husband, the criminal proceedings initiated in a Bengaluru court against him were also suspended. X v. X (2021) Through this case, the Kerala HC upheld that marital rape, although not penalised in India, is a good ground to claim divorce. It was also held that marital rape falls in the frame of physical and mental cruelty. X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Anr (2022) In this case, it was held that the Medical Termination of Pregnancy Act and Regulations must be interpreted to cover "marital rape". The Court held that spouses who had children due to their husbands forcing them into sexual activity would also be considered "survivors of sexual assault or rape or incest." under the Medical Termination of Pregnancy Act 1971. The judgement also laid down a slew of directions to be followed by state government authorities, such as making sure that all segments of the population are informed about reproduction in general and responsible sexual behaviour. Additionally, it must ensure that everyone in society has access to contraception in order to avoid undesired pregnancies and organise their families. Thus, this judgement, laid down by D.Y. Chandrachud, widened the ambit of the Medical Termination of Pregnancy Act vis-a-vis victims of marital rape. Comparative Analysis With Other Countries While marital rape is criminalised in more than 100 countries across the world, there are still more than 30 countries, including India, where it is not a crime. Below discussed are the laws relating to marital rape and punishment prescribed for the same in USA and Canada: USA Marital rape in the USA is criminalized under the laws of all 50 States of the country. All the States have separate laws regarding marital rape wherein some States penalize marital rape like any other rape. In such States, fine ranges between several thousand dollars to over $50,000, and punishment with imprisonment varies between several years and life imprisonment without parole. On the contrary, some States have differentiated between rape and marital rape in their respective laws. For instance, South Carolina laws provide that a prosecution for spousal battery (rape) may not proceed unless the offending spouse's conduct was reported to law enforcement within thirty days of the event. Another State, Virginia provides for marital or personal counselling in lieu of court proceedings in some cases of marital rape. However, this option is available only if the victim agrees to it, and may only be used once. Canada Marital rape is criminalised in Canada under Sections 271 and 278 of the Criminal Code of Canada. In the country, sexual assault provisions apply regardless of the relationship between the victim and the accused. The law is rather progressive since it protects all persons regardless of their gender and no reconciliation is allowed. Section 278 allows legal action to be taken regardless of whether or not the spouses were living together at the time of the alleged sexual assault. The maximum punishment for sexual assault under Section 271 is 14 years if the victim is under 16 and 10 years in all other cases. It is important to understand that not only marital rape law but every other law can be misused, for determining which and taking appropriate actions, we have the courts of justice. There is no justification for following an age-old colonial law based on patriarchal notions and even though many challenges lie ahead such as setting up criteria for proving marital rape, this must not stop the crime from being punished. People have high hopes for the Supreme Court to finally see marital rape being recognised as ‘rape’ under Indian laws, now that the matter is pending before it. In conclusion, it may be reiterated that India has still a long way to go in terms of having more gender-neutral rape laws and moving beyond the societal norms.

Sumasri

Sep 22, 2023

Justice Leila Seth Fellowship by iProbono

About iProbono iProbono is a global organization, founded in 2009 as a company limited by guarantee in the UK (a non-profit organisation) and registered with the Charity Commission. In India, iProbono is incorporated as a s8 company. iProbono’s mission is to enable people to access their rights in pursuit of a just society. By promoting active citizenship and engaging a holistic model they: Advance justice for all by representing people in need. Strengthen the impact of civil society. Advocate for policies that promote social equity and end discrimination. iProbono provides holistic counsel with a strong, lean team that delivers strategic direction and execution, while also leveraging the expertise and commitment of a wide community of pro bono lawyers. About the Fellowship The Justice Leila Seth Fellowship is an 18-month program that will build a cohort of exceptional lawyers who understand what it takes to create positive change in society. The fellowship will focus specifically on issues pertaining to child rights. Eligibility Criteria The required academic qualification is an undergraduate law degree. Applicants should be able to work with people of diverse occupational, geographic, and ideological profiles. Application Process Stage 1: Interested candidates can apply through the link given at the end of the post with a detailed CV, video cover letter, and writing sample expressing interest and suitability by September 22, 2023. Stage 2: Attend a first-round in-person interview at the Delhi office, or virtual if you’re not in Delhi. Stage 3: Attend a virtual interview with members of the Fellowship Selection Committee. Evaluation Fellows will be judged on their demonstrated commitment to social justice, knowledge of the law, and other compelling experiences. Application Deadline September 22, 2023. Location In this paid fellowship, fellows will work from iProbono’s Delhi office, with secondments to a partner organization either in Delhi NCR or another location in India. Click here to apply.

Sumasri

Sep 18, 2023

Lee v Lee's Air Farming - Lifting of Corporate Veil

CASE NAME: Catherine Lee v. Lee’s Air Farming Limited CITATION(S): [1961] UKPC 33, [1961] AC 12 As per the Companies Act, 2013 Separate legal entity means that a company which is registered under this act as a non-profit organization, private limited company, public company, government company, or chit fund company shall have a legal identity of its own and will have rights under the law and will treat as a separate entity from its shareholder. It can own property in its name enter into contracts with other persons and represent itself in a court of law through its representative. A separate legal entity also acts as a veil between the company and its members. This means that the assets of the company shall be used only for the objective of the company as set in the Memorandum of Association and its liabilities should be paid by itself and not from a personal asset of the member of the company. FACTS OF THE CASE In 1954 the appellant’s husband Lee formed the company named Lee’s Air Farming Ltd. to carry on the business of aerial top-dressing with 3000 thousand shares of 1euro each forming share capital of the company and out of which 2999 shares were owned by Lee himself. Lee was also the director of the company. He exercised unrestricted power to control the affairs of the company and made all the decisions relating to contracts of the company. The company entered into various contracts with insurance agencies for the insurance of its employees and a few premiums of the policies were paid through the company's bank account for the personal policies taken by Lee in its name but it was debited in the account of Lee in the company's book. Lee apart from being the director of the company was also a pilot. In March 1956, Lee was killed while piloting the aircraft during aerial top-dressing. His widow claimed compensation for his death on the grounds of personal injuries caused to her husband during his employment. She claimed that her husband was killed while piloting the company’s aircraft and thus, was liable for compensation under the Workmen Compensation Act of New Zealand. The insurance company opposed the claim. It was argued that no compensation could be paid because Lee and Lee’s Air Farming Ltd. were the same person. It was contended that Lee was not a worker because the same person cannot be the employer and the employee. ISSUES OF THE CASE Can Lee, being the controlling owner and having the maximum number of shares in the company, be entitled to receive compensation under the Workmen Compensation Act? Can he be treated as an employee in the company for the grant of compensation or can he be denied such compensation because he was also the managing director? Does a master-and-servant relationship exist between Lee and his company, Lee’s Air Farming Ltd.? GOVERNING LAW This case illustrates the application of the principles established in the landmark case of Salomon v. Salomon and Co. Ltd. Salomon’s case is well-known for establishing the principle of corporate personality. Once a company is validly constituted, it becomes a legal person distinct from its members. The principle of corporate personality holds that a company formed under the Companies Act is vested with a separate corporate personality, which allows it to carry its name, act under its name, have its seal, and have assets separate and distinct from those of its members. It is a distinct ‘person’ from the individuals who form it. As a result, it can own property, incur debts, borrow money, have a bank account, hire people, enter into contracts, and sue or be sued in the same way as an individual can. Its members are its owners, but they might also be its creditors. Even when a shareholder owns nearly the entire share capital, he cannot be held accountable for the company’s actions. The company cannot be bound by the actions of the shareholders because they are not the agents of the company. Moreover, members cannot file a lawsuit to assert the company’s rights or be sued in connection with its obligations because the company does not hold its property as an agent or trustee for its members. JUDGEMENT The Court held that Lee was a separate person having an identity distinct from the company he formed. Contractual relationships were entered into between Lee and his company, both being distinct legal persons, under which Lee became a chief pilot and a servant of the company. The Privy Council observed that in the capacity of being the managing director of the company, he could give himself orders (in his other capacity as a pilot) on behalf of the company. The relationship between himself, as a pilot, and the company, was that of a servant and a master. Hence, compensation was payable to him for the loss suffered during his employment. The compensation was recovered by his widow under the Workmen Compensation Act. In effect, the principle of corporate personality enabled Lee to become the master and servant at the same time and still enjoy the benefits of both. The Court further held that a member of a company can contract with the company of which he is a shareholder. Valid contracts of service can be entered into between a member and a company as both operate as separate legal entities. Moreover, to claim the amount under workmen’s compensation legislation, the directors are not precluded from being an employee of a company. Thus, directors are also eligible for compensation. Regardless of the level of control that Lee had over the affairs of the company, a valid contract of service existed between Lee and the company. Therefore, Lee was deemed to be a worker. And Mrs Lee was entitled to get compensation.

Sumasri

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