Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the Incoming and Outgoing partners in a firm. Also, she has tried explaining in the conclusion, the status of partnership firms after such changes in the constitution of partners.

Who is a Partner?

Section 4 of the Indian Partnership Act, 1932 defines “Partnership”^[1] as ‘the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all’. And on the same lines, it defines a Partner, the person who enters into such a partnership with another person. In other words, partners are persons working collectively for a common business to share profits. In the case of ‘Mohd. Laiquiddin and Ors. vs. Kamala Devi Misra (Dead) by L.Rs. and Ors.’[2] the hon’ble supreme court went ahead to interpret Section 4 to declare a partnership one purely contractual matter. Now it is important to note what a Partnership Deed is. It is this instrument which formalises the agreed terms of a partnership by the partners. It may be written or oral, but in any case creates a legal agreement. There are a total of nine kinds of partners in any firm. These include:

Active Partners
Quasi Partners
Dormant Partners
Nominal Partners
Sleeping Partners
Salaried Partners
Minor as a Partner
Major Partners
Senior Partners

However, on the basis of the deed effect, there are two more kinds of Partners i.e. Incoming and Outgoing Partners. The new partners are the Incoming Partners while Outgoing Partners can be the retiring partners, the insolvents or the deceased. Chapter V of the Indian Partnership Act, 1932 explicitly lays down the rights and liabilities of these Outgoing and Incoming Partners.

Incoming Partners

Incoming Partners are the new partners who get admitted to the firm. Such admission is subject to any procedure that the firm at its will and understanding adopts to include new members. Section 31[3] of the Partnership Act lays down two rules for the inclusion of new members. Firstly, the new members can only be admitted with the consent of all the existing partners. Secondly, once a person is made a partner in the firm, he shall become jointly liable to only the acts that happened after him joining the firm. Therefore we can say that the legal liabilities of any new member begins only after he is admitted to the firm and not before that.

Outgoing Partners

The Indian Partnership Act states four kinds of situations in which a person may on his own or due to other reasons be ousted from the firm. Sections 32-35 states such four conditions, viz.

Retirement of a Partner (Section 32)
Expulsion of a Partner (Section 33)
Insolvency of a Partner (Section 34)
Liability of estate of deceased Partner (Section 35)

Thus, now we will see how the act details these four outgoing conditions of a partner:

1. Retirement of a Partner

There are three ways a partner may retire out of a firm. Firstly, he may retire with the consent of all other existing partners; secondly, if an expressed contract between the partners instructs such retirement, and; thirdly, in situations of partnerships at will, the retiring partner may serve a written notice disclosing his intention to retire. Further, the retiring partner in no circumstances can get off the liabilities of the acts that the firm did when he was an existing member and continues to be liable until a public notice of the retirement is served. Such notice can be either served by the retiring partner or the other existing partners of the firm. However, once a partner retires he may discharge himself from any liability towards any third party through an agreement stating the same between him, the third party and the remaining partners. In absence of any express agreement, there can be an implied notion of the same if the third party is aware of the retirement and went ahead with dealings with the reconstituted firm.

2. Expulsion of a Partner

Generally, a partner can only be expelled from a firm in the presence of a pre-decided procedure through an express contract. For such expulsion to happen, there must be a majority of the partners to agree to the same. Also, such expulsion must be done only in the exercise of good faith. Good Faith is tested through three sets of rules: firstly the expulsion shall be in the interest of the firm; secondly, due notice shall be served to the partner before expelling him and thirdly, the concerned partner shall be given an opportunity to justify the actions that were leading him to an expulsion. Until all these requirements are fulfilled, a partner cannot be expelled whatsoever. Further, after the expulsion, a partner shall be treated like a retired partner and have the concerned liabilities as under section 32 of the act.

3. Insolvency

Whenever any partner is ‘adjudicated’ as an insolvent, he becomes an outgoing partner and ceases to be a part of the firm from the date of such order of adjudication. Where such insolvency does not ipso facto dissolve the firm, the liabilities of the insolvent partner to the firm changes. The date on which such adjudication of insolvency is given, the partner’s estate is no longer liable to any act done by the firm after such date. Also, in the same way, the firm is no longer liable to the acts done by the insolvent partner.

4. Liability of estate of deceased Partner

Usually, death of a partner renders the partnership firm dissolved. However, the exception to it is an expressed contract stating otherwise. In the case of ‘Mohd. Laiquiddin and Ors. vs. Kamala Devi Misra (Dead) by L.Rs. and Ors.’ the court laid down that the death of a partner automatically dissolves the firm of two members. Also, after the death of a partner, his estate is liable to the firm only to the extent of acts done in the firm during his life. Acts done by the firm after the death of the partner have no liability to be born by the deceased’s estate.

Further, Sections 36 and 37 lays down the rights of the outgoing partners:

1. Rights of outgoing partner to carry on competing business (Section 36)

On leaving the firm, the outgoing partner has the right to start and advertise any business that competes with the firm he left. However, at the same time, if there is no express contract to the contrary, there are restrictions on the outgoing partner to either use the firm’s name he left; or misrepresenting himself as the partner of the same firm. Also, the outgoing partner cannot solicit the customs of the clients of the previous firm while he was still a partner there. The second clause of section 36 talks about the restraint of trade. Herein, any express contract can restrict the outgoing partner from exercising any business similar to that of the firm within a reasonable local limit or time. However, such a contract between the outgoing partner and the existing partners shall be tested on the basis of reasonability. In one such case of ‘Firm Daulat Ram vs. Firm Dharm Chand’[4], when two ice factories under a partnership decided to work one at a time and distribute the accruing profits amongst each other, the restriction was considered reasonable. Section 36(2) of the act is an exception to section 27 of the Indian Contracts Act, 1872 which renders any contract that restricts trade void.

2. Right of outgoing partner in certain cases to share subsequent profits (Section 37)

When a person dies or becomes an outgoing partner due to any other reason, and the firm still continues to exist and work, such person or his estate through his legal representatives are entitled to the shares in profits made after the person ceased to become a member. The share of profit shall be either attributable to the use of his property share in the firm or interest of six percent per annum on his share of the property in the firm. However, this is only the case where there is no final settlement of accounts between both parties. In the case of ‘Addanki Narayanappa and Ors. vs. Bhaskara Krishtappa and Ors.’^[5] the hon’ble supreme court reaffirmed the sharing of profits to the representatives or estate of a deceased partner under section 37. However, this profit sharing is subject to any contract to the contrary. Therefore, in cases where the firm purchases the remaining interests of the outgoing partner in the firm, such partner does not remain further entitled to any profit sharing.

Conclusion – Status of the new firm

One more question that is important is whether a partnership firm dissolves after a new member is added or an existing member ceases to be a part of the firm? This was answered in the case of ‘Tyresoles (India) Calcutta v. Commissioner of Income-Tax, Coimbatore’^[6] where the court laid down the status of any firm after inclusion of any new member as reconstitution of the existing firm rather than the complete dissolution of the older firm. However, at the same time the ‘Mohd. Laiquiddin Case’ laid down the principle of a ‘firm dying with the partner’ in case it is a firm of two partners only. But generally, Reconstitution of a firm keeps it subsisting in another form, and thus the inclusion of a new member or exclusion of an existing member are examples of rearranging the original form of the firm into a novel one. It is for this reason that section 38 of the Act lays down that in case of reconstitution of any firm, the guarantees given to the firm or a third party are automatically revoked in absence of any contract to the contrary. It is thus important to note that once the constitution of partners changes in a firm, the liabilities and status of the firm also takes another side.

^[1] INDIAN PARTNERSHIP ACT, 1932 Section 4 – Definition of partnership, partner, firm and firm name.

^[2] Mohd. Laiquiddin and Ors. vs. Kamala Devi Misra (Dead) by L.Rs. and Ors., (2010) 2 SCC 407.

^[3] INDIAN PARTNERSHIP ACT, 1932 Section 31 – Introduction of a partner.

^[4] Firm Daulat Ram vs. Firm Dharm Chand, AIR 1934 Lah 110.

^[5] Addanki Narayanappa and Ors. vs. Bhaskara Krishtappa and Ors., AIR 1966 SC 1300.

^[6] Tyresoles (India) Calcutta v. Commissioner of Income-Tax, Coimbatore, [1963]49ITR515(Mad).

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This article has been written by Yash Dodani, a Second-year law student at NALSAR University of Law. He has tried to explain the position of the nervous shock in tort law.

Overview

The tort law was always considered as unwritten principles for physical injuries. The courts have earlier said that nervous shock or we say it psychiatric injury will not be entitled to any compensation. They said that in no manner nervous shock can be considered as same as physical damage. However, they were very clear that if the nervous shock is so direct to the physical damage that it can cause harm to mind, then they have allowed damages for a nervous shock as well. However, through various cases and the precedents, the courts have recognized the mental trauma as a pigeon-hole for compensation under the tort law. This article will get the reader to understand how the courts have and will consider various determinants for understanding to what extent the shock is caused and how much damages or compensation should be given to the affected party. All the guidelines are also meant to close the floodgate to the claims. Introduction

“In the case of mental shock… there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability”.[1] Tort law has not been made by any written codified law. Instead, it is made up of precedents in the case laws which come to the courts. Tort means a civil wrong. Tort law is made up of various forms of faults done by any individual or a group of people, may be artificial. Fault is the whole point In a tort law. Tort law tries to bring the party who suffered to the original position, as they were, prior to the happening of that very wrong. It can be something like insurance, which also has a similar motive. Tort law aims at making good the loss suffered by the plaintiff, i.e. it seeks to make the plaintiff whole.[2] The tort law does not give any punishment to the person who has done wrong until that wrong was done with wrong intentions. It majorly gives compensation to the innocent party for what losses they have suffered for the negligent behaviour of the wrong doing party. The English legal system has however often said that including nervous shock in the purview of tort law will be a big controversy. Various judges and scholars have said the results of including nervous shock in the purview of tort law will have unwanted results. This is often called as nervous shock or mental trauma. In recent years the courts have begun to move away from this terminology and have begun to talk about ‘psychiatric illnesses rather than nervous shock.[3] This article will, through case laws will bring the development of nervous shock as an area of development, the tests which are used to determine the extent of shock and also to determine the compensation and inside, close the floodgates of claims.

For many years in the English legal system, the talk to include nervous shock in the tort was rejected by the courts because of the controversial nature of it. It was argued that if any injury can’t be seen, it can’t be shown to the courts and hence the damages can’t be claimed. Various scholars tagged it as less worthy to ask for compensation. However, with the development of the time, the courts have given recognition to the nervous shock. Lord Macmillan has given the elements that a plaintiff must prove in order to get damages for nervous shock.

Duty of care;
Breach of that duty;
That breach caused the shock;
The shock is not too remote.

Out of fear for false claims and unrestricted liability of defendants, the courts have created a number of “control mechanisms” which can limit liability.[4] It was first seen in the case of McLoughlin v O’Brian.[5] It gave a three-part test in order to restrict the compensation. The distinction between the physical harm and the nervous shock is also important and it is discussed in the case of White v Chief Constable of South Yorkshire. It also discussed the problems of giving nervous shock a recognition due to the following reasons:

It said that there is a lot of evidential problems;
Opening of the floodgates;
The problem of posing liability on the defendant to give a lot of compensation, and will be unfair.

However, the Law Commission report in 1998 claimed that these reasons equally apply to physical harm as well. It also suggested that it is however not really possible to prove the kind of harm that the plaintiff is in- in a nervous shock.

Primary and Secondary Victims

Before we go and analyse the report of the Law Commission, it is important to understand the development of this field and how judges have placed the limitations in order to restrict the scope of the word ‘mental injury’. A very early case on this front is the case of Dulieu v White and sons, where Kennedy J gave a test to determine the liability of the defendant in a nervous shock case. The test is a two-fold test.

The degree to which the shock is presented in the courts should be foreseeable and
The shock must arrive from a reasonable fear that might cause physical harm.

This test made a distinction between a primary victim and a secondary victim in the sense that the party who is directly involved in an accident and has a reasonable fear of having a physical injury is a primary party and rest all are secondary victims.

But this test was reduced in the case of Page v Smith where the judges held that where the reasonable foreseeability can be proved, there “physical and psychiatric harms are not of different types, so that if the former is foreseeable, the claimant can recover in respect of both physical and psychiatric harms, even where the latter is not in itself foreseeable”. This means that the requirement for the plaintiff is to prove that they were in the purview of the physical injury and then they are directly eligible to get compensation for the nervous shock/ mental illness. But this may open the floodgates, if the nervous shock was not foreseeable.

But some well 2 decades after, the case of Hambrook v Stokes Bros[6] came where the judges said that the nervous shock can also come to the close relatives and friends of the victim and they can also claim the damages for the same. These people were said to be the secondary victims of the case. Now the judges have also included the proximity part while limiting the scope of the nervous shock liability.

The number of cases of this front were increasing at a rapid pace. Then came the case of Bourhil v Young where the counsels for the plaintiff had tried to expand the scope of the tests and were trying to establish that the person who is not at all related to the primary victim, nor is in proximity to the accident, or not even a prime witness to it, can also claim for the damages. But they were failed to do that.

So the final test for primary victims claiming the compensation under the nervous shock must prove that they were in the zone of physical danger and the secondary victims need to prove proximity and the relation between them and the primary victim.

Control mechanism

The courts have taken different approaches to evolve the concept of nervous shock as a tort. Like the case of McLoughlin v O’Brian where the House of lords was clear that the compensation can be given in this case but the split came out while deciding the test of liability. Some judges said that the liability should not only be based on foreseeability and the following factors should also be taken into account:

The class of plaintiff in the sense that the relation between the plaintiff and the primary victim.
Proximity in rime and space.
the means by which the psychiatric illness was caused – it must come through the plaintiff’s own sight or hearing of the event or its immediate aftermath; communication by a third party was not sufficient.

This test was given by Lord Wiberforce and afterwards, it was known to be ‘Alcock test’ and this test was used to control the number of claims. This test was also applied a decade later in many cases one of which was the case of Alcock v Chief Constable of South Yorkshire.[7] However, by applying this test the court said that the claim could not be allowed because the above conditions were not fulfilled. However, to my opinion, the House of Lords have taken a very narrow approach then what actually this test was. However it is also important to do so to stop the public from making such claims, but it can be allowed for those who saw a live telecast and seeing their loved once to die in front of them. The test is an ‘and’ criteria and not an ‘or’. It means that all the conditions need to be proven. One plaintiff in the Alcock case who saw two brothers of his dying, failed to prove his claim because he suffered from stress much after the incident took place.

However, the situation today is the same as it was made by the courts. These controls need to be taken into account while making claims of nervous shock. These mechanisms need to be taken into account to control the floodgates of claims.

Law Commission Reports

The law commission report suggested that the claims with regards to the secondary victims need to be restricted otherwise it would open the floodgates to the number of cases. At the same time, it should also work according to the judicial precedents and use of judicial powers to give justice to the innocent. The law commission also said that the proximity in terms of time and space should not be used. They said it after giving this example “How many hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother’s consequential psychiatric illness”[8] However it can be argued in both ways. However, to the floodgates argument, the commission said that the love and affection fold should be strictly used and to give more clarity, they gave a fixed list of relationships.

They accepted that the floodgate will be open by their reforms but then it said that the courts should look at the policy considerations to allow/reject those claims.

[1] Bourhill v Young [1943] AC 92

[2] Mullany, NJ and Handford, PR (1993), Tort Liability for Psychiatric Damage

[3] Napier, M and Wheat, K (1995) Recovering Damages for Psychiatric Injury

[4] Teff, H (1983) ‘Liability for Negligently Inflicted Nervous Shock’ 99 Law Quarterly Review 100

[5] [1982] 2 All ER 298

[6] [1925] 1 KB 141

[7] [1992] 1 AC 310

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This article is written by Deepika Prashar. She is currently pursuing BA-LLB from IIMT &School of Law, GGSIPU, Delhi. In this article, she has discussed term Contract, with respecting to this term she has also tried to explain the concept of ‘Standard forms of contract.’

Introduction

In the modern global world, millions of contract are drafted every day. It has become an integral part of our life. In order to discuss the main topic ‘the Standard Forms of Contract’. We must first know, what exactly a contract is?

So, in simple words, ‘A contract is an agreement which is enforceable by law.’ But, this isn’t it, the journey of forming a Contract starts with an offer, which is made by one person to another person, and only upon acceptance of such offer by another party, an agreement is formed. An agreement comprises of reciprocal promises between the two parties. For the agreements to turn into a valid contract, the conditions given in section-10 of Indian contract Act are needed to be satisfied. It is only upon all conditions being satisfied, a Contract is said to be made.

A contract creates an obligation on the parties to perform their part in the contract. Contract is a powerful tool, as it protects the legal rights of either party against breach made by another party.

A contract to perform a promise may rise in the following way:

By agreement and contract
By standard form contract
By promissory Estoppel

In this article, we will take a look into ‘Standard forms of contract’.

Standard forms of Contract

A ‘standard form of contract’ is a contract between two parties in which the terms of a contract are prepared beforehand by one of the parties and the other party does not have much say in the matter. There is no place for negotiation, it is a kind of ‘take it or leave it ‘ contract. Due to a great rise in the volume of trade and business, a business concern may have to enter into a large number of contracts with its customers or clients. So from a practical point of view and for the sake of convenience to save time and money a standard form for the numerous contracts is used. The contract with standard terms may be drafted by one party and on the same terms contracts may be made with several persons.

For example, an insurance company may prepare a draft of insurance policy on which it can enter into contracts with a large number of persons. It is often a contract entered into unequal bargaining partners in which one side has all the bargaining power and uses it to write a contract mainly for his or her advantage.

Nature

Standard form contracts have prefixed terms and condition. The terms are drafted and included in the contract by the party having more bargaining power and the weaker party has only one function i.e. is to sign on the dotted line and the contract is made. Whether the other party, who does not have any bargaining power, knows that there is any term in the contract, whether there is limiting or exclusion clauses or not, that is immaterial. The consent is inferred from the fact that the party has put his signature on the contract.

Indian contract system does not have any specific differentiation between Standard form contract and general contract, as the standard form contract is a kind of contract which is governed by the same laws through which general contracts in Indian contract Act 1872 are governed. Due to an enormous increase in business trends, these kinds of contract have become very common and are entered into large numbers nowadays. This had led to the demand of formulation of fledge rules on the standard form of contract to protect the rights of the weaker party in a standard form of contract who have less bargaining power and can be exploited easily.

Why people accept Standard Form of Contract?

Usually, people don’t read the contract clauses thoroughly as they are lengthy and are in legal language so even if they read they are unable to understand it.
In some contracts, there are clauses like if you accept the given terms and condition then they will tell the full terms and condition of the contract.
In Standard form contract is a kind of contract the party generally focus on the price mentioned in the contract; he doesn’t really care about other different clauses of less probability of occurrence which might be exploitative in nature.
Social pressure on the party is created by another party to sign standard form contract, in the beginning, all the negotiation and the terms had been discussed orally and explained to them. So it creates a pressure on the party to sign the contract. The pressure can be from some other sources as well.
The major point in the standard form contract is that they are taking it or leave basis, so they don’t have any choice but to accept the contract.

Exclusion or limitation of liability by one person

In standard form contract generally, the terms of the contract are pre-drafted by one of the parties and the other party is supposed to just sign on the dotted lines, without having any opportunity to get the terms altered. The party who is in the greater bargaining position drafts the terms according to his advantage and at times tries to exclude or limit his liability without caring for the interest of the other party who is in a weaker bargaining position. So keeping in mind the unequal bargaining power of the two parties, the court and the legislature have evolved certain rules to protect the interest of the weaker party.

Ways to limit exploitation from Standard Forms of Contract

These devices are effective to protect the interests of the party who is in a weaker bargaining position in the contract:

There should be a Contractual Document

The parties are bound if the terms are contained in a contractual document. For making the terms binding it needs to be shown that the document containing those terms were contractual. In Chapelton v. Barry Urban District Council it has been held that if a document is a mere receipt and doesn’t create a contract, the terms contained in such a document are not binding. In this, it was held by the court that the exemption from liability clause which was printed on the ticket was no more than a receipt so the defendant couldn’t claim exemption from liability on the basis of anything printed on it.

There should be No Misrepresentation

Even if a person signs a document containing certain terms but there is found to be a different oral misrepresentation about the contents of the document, the document would not be binding. In Curtis v. Chemical cleaning and drying co., The plaintiff was asked to sign a receipt where the misrepresentation was made by the shop assailant regarding the contractual terms. It was held by the court of appeal that as there was misrepresentation as to contractual terms which mislead the plaintiff as to the extent of defendants’ exemption of liability, so the defendants were bound to pay damages.

There should be reasonable notice of contractual terms

For making the terms of the contract binding a reasonable notice containing all the information should be given to the other party to draw the attention of the other party to those terms. It can be by the way of printing on a ticket “for conditions see back” or any other method. If reasonably sufficient notice about the terms of the contract has not been given then there is no binding contract on such terms.

In Parker south Eastern Railway Co., the plaintiff deposited a bag in a cloakroom managed by defendants at a railway station. In return, he got a ticket on the front side of which it was stated ‘see back’. One of the conditions printed at the back stayed that the liability of defendants for any package was limited to 10 euro. The plaintiffs bag valued at 24 euro and 10 shillings was lost. The plaintiff in his action to recover the whole of the loss contended that the term limiting the defendant’s liability to 10 euro should not be binding on him because he hadn’t read the terms. It was held that the defendants had made reasonably sufficient efforts to draw the attention of the plaintiff to the terms and so the terms were binding and the liability of the defendants were to pay 10 euro only.

Notice should be contemporaneous with the contract

Any notice regarding exemption from liability should be given at the time of entering into the contract and not thereafter. If the contract has already been entered into without the exemption clause, any subsequent notice about exemption from liability will be ineffective. If subsequent notice will be allowed, it will be a great tool for exploiting the weaker party.

In Marlborough Ltd. case, the plaintiff and her husband hired a room in the defendants’ hotel and paid for one weeks boarding and lodging in advance. When to went to occupy the room they found a notice which stated ‘ the proprietors will not hold themselves responsible for articles lost or stolen, unless handed to manageress for safe custody’. Due to the negligence of the hotel staff their property was stolen from the room. It was held that the notice in the room did not form part of the contract and the defendants were therefore liable for the loss.

The terms of the contract should be reasonable

It is not just enough that terms of the contract should have been brought to the knowledge of the other party by a sufficient notice before the contract is entered into, it is also necessary that the terms of the contract should be reasonable and not arbitrary. If the terms of the contract will be unreasonable and opposed to public policy they will not be enforced even if agreed between the parties.

In Central Inland Water Corporation Ltd. v/s Brojo Nath, one of the clauses of the contract employment provided that the employer could terminate the service of the permanent employee by giving him a 3 month’s notice or 3 month’s salary. In accordance with the clause, the service of the respondent and another were terminated instantly by giving notice and a cheque fie 3 month’s. It was held by the Supreme court that such a clause was wholly unreasonable and against public policy and therefore void under section 23 of the Contract Act.

Fundamental breach of the contract

This device is used to see that enforcing the terms of the contract does not result in the fundamental breach of contract. The main obligation under the contract is not allowed to be negatived by any term of the contract. No exemption clause is allowed to permit the non- compliance of the basic contractual obligation. In Alexander v. Railway Executive, the plaintiff deposited his luggage in defendant’s cloak-room and on return received a ticket. A term printed on the ticket exempted the defendant from liability for loss or misdelivery of the luggage. The plaintiff’s luggage was delivered to an unauthorised person without the production of the ticket. It was held that non-delivery of the luggage to the plaintiff amounted to fundamental breach of contract for which defendant was liable.

Non-contractual liability

Exclusion of contractual liability may not negative any other kind of liability like liability in tort. In White v. John Warrick and Co.Ltd the plaintiff hired a cycle from the defendants under an agreement stipulating that “nothing in this agreement shall render the owners liable for any personal injury “. While the plaintiff was riding the cycle, its saddle tilted forward as a consequence of which he was thrown and injured. It was held that the exemption clause excluded only contractual liability of the defendant whereas they still remained liable for negligence under the law of torts.

Liability towards third parties

If A and B enter into a contract under which B tries to exclude his liability by an exemption clause such a clause wouldn’t exempt any other person, say C, from liability because of the rule that C is a stranger to the contract and he can’t take advantage of a contract between A and B. In Morris v. C.W. Martin and Sons Ltd., the plaintiff gave her fur garment to a furrier for cleaning. Since the furrier himself couldn’t do the job, he has this garment to the defendant for cleaning with the consent of the plaintiff. The defendant’s servant stole the garment for which the plaintiff brought an action against them. The defendants sought exemption from liability on the basis of an agreement between the plaintiff and the furrier. The defendants were not allowed exemption and were held liable.

Conclusion

Standard form contract is a contract which is drafted by one party beforehand in which the party is a weaker bargaining position has no say. It is like ‘take it or leave it ‘ for them. It is true that it is not practically possible for a big firm, banks etc to enter into a separate contract with each individual so this method is devised but this form of contract can be a very big tool to exploit the weaker party in a contract. Usually, the party in higher bargaining position tries to limit or exclude their liability without caring for the interest of the other side. so the court has evolved certain devices e.g. giving reasonable notice to protect the interest of the weaker party.

References

DR. R. K. Bangia, 7^th Edition
Avtar Singh, 12^th Edition

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This article is authored by Pankhuri Pankaj, a 2nd-year student pursuing her BA-LLB degree from Vivekananda Institute of Professional Studies. She is currently interning with Lexpeeps. This article summarises certain key provisions of “attempt to suicide and abetment to suicide” under the Indian Penal Code and is qualified in its entirety by reference to the Indian Penal Code, 1860.

INTRODUCTION

A partner in a firm holds the highest position and is a person responsible for the running of the organization owning a co-ownership with the other partner(s) with the goal to earn the profit. All partners in a firm are entitled to form an agreement with regard to their mutual rights and duties, keeping in consultation the certain duties mentioned in the Indian Partnership Act, 1932 which cannot be altered by entering into an agreement to the contrary and this principle has been given statutory recognition under Section 11 of the Indian Partnership Act, 1932. This principle is commonly referred to as one of the two fundamental principles which help govern the relation of one partner to the others.

The second principle which is recognised by Section 9 of the Indian Partnership Act, 1932 provides that the relation of one partner to the other is of the utmost good faith. It also suggests that every contract entered by one partner in the name of the firm will be binding on other partners too. It says that every partner is an agent of each other and thus it concludes that the relation of partners to one another is based on mutual trust. This principle can be said to be of fundamental nature.

Rights of a Partner in a Firm

In a partnership firm law confers the following rights on a partner:

1. Right To Take Part In The Conduct Of The Business

This right has been conferred on the partners through Section 12(a) of the Indian Partnership Act, 1932. It provides that every partner has the right to take part in the conduct of the business of the firm. This firm does have the right to allow only a few partners to actively participate in the functioning of the business by curtailing this right by the provision of the agreement.

It is necessary that this right should be used by the partners for the purpose of promoting the business of the firm and not for damaging the firm’s business and a similar contention was held in the case of Suresh Kumar Sanghi v. Amrit Kumar Sanghi (AIR 1982 Del 131) where the Delhi High Court imposed an injunction against the partner concluding that his act was to damage the business of the firm.

2. Right To Access And Inspect Books

According to Section 12(d) of the IPA, 1932 the partners in a firm have the right to access, inspect and copy the account books of the firm and this right can be accessed by the partner in the first person or through his/her agent but the information gained by either is strictly prohibited from being used against the firm.

In case a partner denies granting access to the books of the firm a reasonable ground for the same needs to be provided. If the reason given by the person is found to be trivial, he will have to grant access to the books even if he is reluctant.

3. Right To Be Consulted

Under Section 12(c) of the Indian Partnership Act, 1932 a partner’s right to be consulted has been granted. This right provides that in the matters of resolving disputes related to the ordinary course of business a majority between the partners is to be seen. Every partner is given the right to express an opinion before the matter is decided.

In case the dispute is related to the Fundamental matters of business of the firm, it is necessary to get the consent of every partner in the firm. This provision can be further understood by taking the example of the case when a minor is to be included as a beneficiary in the firm.

4. Right To Share Profits

In a partnership firm, every partner has been granted the right to share profits equally in the firm and has been prescribed under Section 13(b), Indian Partnership Act, 1932. This right to share profits is not to be affected by the fact that the partners may have contributed unequally or possess different skills and the same contention was held in the case of Mansha Ram v. Tej Bhan (AIR 1958 P&H 5) where the Punjab and Haryana High Court held that the partners were entitled to share equal profits in a firm irrespective of the fact whether they had been paid separately and had done unequal work.

5. Right To Interest

Under Section 13(c) of the Indian Partnership Act, 1932 it has been stated that generally a partner is not entitled to make a claim on the capital of the firm but if there exists an express agreement between the partners which allows interest on the capitals then such an interest has to be paid out of the profits of the firm. A partner is deemed to be an adventurer rather than a creditor and therefore, interest is not to be provided to the partner on capital except when there is an agreement or usage to that effect.

In case of interest in advance, under Section 13(d) it is stated that a partner is rightfully entitled to an interest of maximum six percent per annum for the advances made by him to the firm beyond the capital he agreed to subscribe to.

It is important to note that the interest in the capital of a partner ceases after the dissolution of a firm but the interest on advances would continue to exist until it is paid completely.

6. Right To Be Indemnified

Right to indemnity has been provided to the partners under Section 13(c) of the Indian Partnership Act, 1932 under two circumstances, which are:

A partner is granted the right to be indemnified to recover any expenses he may have incurred in the ordinary and proper conduct of the business; or
In the cases wherein order to protect the firm from the loss, the partner incurred expenses in any emergency. Here, it is necessary that the partner acted in a reasonable manner.

This right is not lost with the dissolution of the firm and continues to exist. Mere settlement of accounts is also not important to indemnify the partner.

The reason behind this right is pure fairness. It is believed that the burden of expenses of the partners should not be borne by a single partner.

7. Right To Remuneration

Under Section 13(a) of the Indian Partnership Act, 1932 it has been provided that in a firm no partner is entitled to claim remuneration for the act of taking part in the conduct of the business. In the same breath, it is provided that remuneration can be provided to certain partners along with the share in the profits if that has entered into an agreement to that effector when such remuneration is payable under the continued usage of the firm.

Along with these rights, the partners may compile some mutual rights which generally depends upon the provisions of the agreement.

Duties of a Partner in a Firm

In addition to the multiple rights enjoyed by a partner in a firm, certain duties have to be performed by them to hold entitlement over those rights too. These duties of partners emerge directly from the second principle discussed above, i.e. the relation of the partners to one another of utmost good faith.

1. Duty To Act In Good Faith

Section 9 of the Indian Partnership Act, 1932 states that it is the duty of every partner in a firm to act in good faith of the firm and to act for the greatest common advantage of the firm. It provides that the partners should work honestly to secure the greatest profits for the firm and no profit should be gained by the partner at the expense of the firm.

In the case of Bentley v. Craven ((1853) 18 Beav 75) where the partner who was entitled with a responsibility gained secret profits wrongfully, the court held that the partners are not entitled to make secret profits and therefore, the firm was held entitled to the profits earned by the partner.

It is important to note that this duty does not cease to exist even after the partnership ceases to exist. The partners in the firm owe the duty to legal representatives of the partner as well as the former partner.

2. Duty Not To Compete

Under Section Section 16(b) of the Indian Partnership Act, 1932 a partner should be held accountable for all the profits that he gains if the partner makes them by engaging in business which is similar to or competing with the firm.

To understand this duty better the case of Pullin Bihari Roy v. Mahendra Chandra Ghosal (AIR 1921 Cal 722) can be taken into account where the accused was held liable to account to his co-partners for the profits earned by him.

However, it is important to note that this duty does not restrict the partner from carrying out any business outside the scope of the business of the firm.

This duty can be altered by the partners through partnership deed and partners may enter into an agreement which allows a partner to carry the business competing with the business of the firm or can restrict the partners too from carrying out any business other than that of the firm and such an agreement will be held legally valid owing to the provisions provided under Section 11 of the Act. In case a person breaches such an agreement and carries out a business not competing to that of the firm then, such a partner will not be held liable for the profits but the other partners will be given the right to apply for the dissolution of the firm.

3. Duty To Be Diligent

Under Section 12(b) of the Partnership Act, it has been provided that a partner in a firm is bound to diligently attend to his duties and under Section 13(f) of the act, it has been provided that the partner must indemnify the firm in case of any losses incurred by the firm due to the wilful neglect of the partner.

It is important to note that the partner cannot be held liable for simple errors of judgement or for acts done in good faith but for wilful negligent behaviour only.

This duty can be better understood by taking the example of the case of Cragg v. Ford (62 ER 889).

Only the firm or the partners on behalf of the firm can bring an action for indemnity under this head and a partner cannot bring an action for indemnity in his personal capacity.

4. Duty To Render True Accounts

In case of things related to the firm or things that affect the firm, the partners are bound to disclose and provide full information about it to any partner or his legal representative and the same has been laid down under Section 9 of the Indian Partnership Act, 1932. To understand this duty in general terms, the partners are prohibited from concealing things from other co-partners in relation to the business of the firm.

In the case of Law v. Law ((1905) 1 Ch 140 (CA)), the court held that in case a partner possesses some extra information then he is legally bound to deliver the same to the co-partners in the firm. If the partner enters into a contract with other co-partners without furnishing them the material details which are known to him but not his co-partners then such a contract is voidable at the option of the co-partners.

5. Duty To Indemnify For Fraud

Section 10 of the Indian Partnership Act, 1932 deals with the duty to indemnify for fraud and it states that the partner shall be liable to indemnify his co-partners in case a loss is caused to the business because of his actions.

The purpose of this section to inculcate accountability and induce partners to deal fairly and honestly with the customers.

It is important to note that the liability for fraud cannot be excluded merely by entering into an agreement to the contrary because entering into such an agreement would oppose the public policy.

6. Duty Not To Earn Personal Profits

Under Section 16 of the Indian Partnership Act, 1932, it has been provided that a person should account for the property in case he uses the property of the firm to earn profits out of it. This duty is deemed to arise because of the Fiduciary relationship between the partners.

To understand this duty better the example of a partner entering into a business which happens to compete with the business of the firm can be taken. Here, it is held that the partner should account for the profits earned from any such business.

It is important to note that in case a competing business is carried out after the dissolution of the partnership, reasonable restrictions can be put by the firm for carrying out the competing business by the ex-partner.

This duty is not a compulsory duty and can be avoided by a partner by entering into an agreement to the contrary.

7. Duty To Properly Use The Property Of The Firm

It has been laid down under Section 15 of the Indian Partnership Act, 1932, that the property of the firm should be used by the firm only for the purposes of the business of the firm. A partner is not entitled to use this property for his personal use and if he does the same then he will be held accountable to all the co-partners and can be held liable for any loss incurred because of any such use as well.

It is important to note that this duty can be avoided by entering into an agreement to the contrary.

It is important to note that the mutual rights and duties of the partners do not get affected in case there is any change in the constitution of the firm or if the partnership continues after the expiry of the term or undertaking for which it was constituted.

In conclusion, partners in a partnership are entitled to form an agreement and decide mutual right and duties along with the rights and duties legally provided. It is a fundamental principle in a partnership that a partner must act in utmost good faith and should always work for the greater good of the firm and with the common goal to gain maximum profits for the firm. In case no explicit agreement between the partners exists, these rights and duties can be easily abrogated by entering into an agreement to the contrary.

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Advocate Sunil Mallan is a founder of Justice for You Law Firm and a Techno-Legal Expert and Corporate Consultant. He is a practicing advocate in Punjab and Haryana High Court and Supreme Court of Delhi. He is an arbitrator and Global Goodwill Ambassador.

Q: How has been your journey as a lawyer?

The journey has been fascinating, I was an engineer working on various projects and was part of various renowned organizations, I was also an advisor to Punjab Police, however, certain changes in my life compelled me to opt for the noble legal profession, and thereafter I decided to start my Legal Studies and put a halt to my Engineer Career. And now, I am a full-fledged lawyer working before the Hon’ble Supreme Court, Punjab & Haryana High Court and various District Courts.

Q: Students in Law Schools are more inclined towards getting good grades, what is your take on it? Do grades have any significant impact on the career of a law student?

Well, there are two aspects to answer the question. 1. If you want to be a good lawyer? or 2. Do you want to be a lawyer? You might be good at academics or drafting but to my opinion, a lawyer should possess extempore skills, he should have the capability to have swift change. I lawyer in a Courtroom has to answer various questions, for this, a person should possess exemplary extempore skills. Thus, this is not the grades that make you stand out of the crowd but the skills you possess.

Q: What do you think, what other things should the law schools implement to make upcoming lawyers a better version of themselves?

“Law and Logic are two intersecting circles, they may coincide or may not coincide at every point”. If your logics are clear, possess the good legal knowledge and is well versed with the facts of the case, you will win the case. You must be good at SWOT analysis i.e. Strength, Weakness, Opportunity and Threat, work on your threats and weaknesses while preparing the case. A lawyer in itself is an organization where people have a lot of expectation from you. Law schools should work on developing these skills rather than merely focussing on completing the academic syllabus prescribed by the University.

Q: What difficulties you faced as a first-generation lawyer? What mistake did you commit that you would like to share with the young fellows?

As of now, I don’t remember any mistake that I committed as a struggling lawyer. However, at the initial stage of my career, my drafting was a bit blunt. So, focus on your drafting skills, be clear with what you wish to speak. Do your work with passion, if confused, never hesitate to consult your seniors, refer the books, read as much as you can, books are the best ornaments in one’s life. Young fellows should learn three things,

1. What to do

2. How to do and

3. Keeping the time frame in mind, do the work in time.

Q: Non-NLU students often face internship rejections from big law firms, so what will be your advice to those students?

Securing an internship with a big law firm for a non-NLU student is a challenge. The expectations of big law firms are quite high. You need to prove yourself to them, you need to showcase certain exemplary skills. You can for sure secure an internship with the big law firms if you show you are worth the internship, meeting their internship criteria. Hard work along with smart work is the only key to success. You need to be well versed with the latest Supreme Court and High Court Judgments.

Q: Any additional things that you think should be done by students of Private Law Colleges?

Yes, for sure, they should engage themselves in some social work. Many issues around us need to be addressed, for which we can become a whistle-blower. Pick a topic, start researching on it, talk to the people, analyse the situation and come up with a solution to the problem. One may even file a complaint, petition or RTI to the concerned authorities to bring the issue to light. Whatever you do, helps you to upgrade your knowledge.

Q: On a concluding what will be your advice to the young generation lawyers?

Well, the platform like you are doing a great job in creating an opportunity for the young lawyers to build-up their network. The platforms like Lexpeeps must be productively used by the students and should give suggestions about the topics they wish should be addressed. One should master the art of active participation. Develop the habit of reading, always be curious to learn new things in life. Focus on achieving the goal rather than minting money. Give your best to help the people to all the possible extents.

https://www.youtube.com/watch?v=XIFzHxOpU2Q

Mr Satya Kam Sharma is Advocate-Supreme Court of India, (Chamber of Mr. Satyajit A. Desai & Anagha S. Desai, (Advocate on Record)[since October,2018)

Q: How has been your journey as a Lawyer?

It has never been easy. There were difficult times, but the persistence to become a successful lawyer, helped me to overcome those difficult times.

Q: Students in Law School are more inclined towards getting good grades. What’s your take on it? Do grades have any significant impact on the career?

Grades never make successful people; it is merely a tool in the hand which will help you to get a job. Legal profession is not a job. In the legal profession, especially practising lawyer, it is your personality and skill which will outshine your rather than your grades in the law school. Nobody will ask you what your grade is, but will observe you how you perform before the court, or provide professional service to your client.

Q: What are the skills required to succeed in the Legal Profession?

First is patience, you require tons and tons of patience in initial years of practice as a lawyer. You will get no holidays; work on Sunday, no vacation, no fixed timing. You will have to work till midnight and the payment during the initial years will unimaginably be less. But in the long run the hard works pays and mark my word it pays in dividends. Second—read, read, read…. You have to continuously read law books, research on legal points, case laws, update yourself with latest Supreme Court judgments, and then only you will be able to achieve the greatness of a well-read lawyer.

Third —Drafting— you have to have a good drafting skill that comes with practice, the more you draft better you will get into it.

Forth—presentation—speaking skill—this matter a lot—your presentation skill has to be excellent—the way you present matters a lot—this is the crucial factor which decides the fate of a case and your future.. it also, comes with practice you have to practice a lot—

Q: What according to you are some of the changes that have taken place in the legal Education?

Commercialization of legal education and too much of exams being taken during the academic session, students do not get time to understand the concepts and in-depth thinking which is must for a lawyer.

Q: Non-NLU students often face internship rejection from big law firms? What’s your advice to them?

When you appear before the court i.e. any court and not only the Supreme Court, the Judges never ask you which school you belong to… rather it’s your skill to convince the judges about your case which will win the case. And remember internship merely gives you the exposure of the field, but the practical learning takes place only in the courts when you began to appear before them.

Q: You have also spent time being a professor what essential changes you think should be brought in the legal education system?

There are several aspects on which I feel that there should be changes made in legal system.

Law is basically an interdisciplinary study. There has to some rearrangements made in subjects offered to students. Law should be of one course that is there should be no BA or BBA but only Law course should be offered which should include subjects such as sociology, history, political science etc.

Research on legal aspect must be the basis and further students should be encouraged for in-depth thinking over the subject or the legal topic.

Legal writing and presentation skill should be the focus area.

Newer technologies much be adopted and education regarding IT much be imparted to the students.

Q: What is the biggest challenge you faced while settling your own career and if you made any mistake how the upcoming lawyers can avoid that?

The biggest challenge has been on the financial side, in initial years of practice you do not earn a lot, you have to survive anyhow. But as years pass and you gain experience in the field things short out itself and you gain the confidence. Yes, I made several mistakes. Unless you don’t make mistakes you will never learn and grow in your life.

Q: On a concluding note, what should be your advice to the new generation lawyers?

Keep yourself updated with latest happenings around you in the legal field and learn the advancement of technologies which are being incorporated in the legal field.

My main advice will be to be patient. There is a saying “Tough time never last, but tough people do”

This article is written by Sharat Gopal, a 2nd-year law student, from Delhi Metropolitan Education, GGSIPU. In this article, he has discussed the terms ‘Wrongful Restraint’ & ‘Wrongful Confinement, along with this, he has also tried to distinguish the two terms from each other.

Introduction

When the constitution was drafted, it granted some rights which were essential for the intellectual, moral and spiritual development of individuals. These rights are called fundamental rights. They are enshrined in part-III (article 12-35) of the constitution. All these rights mentioned in part III have reasonable restrictions too. The constitution of India in article 32 guarantees its citizen, if any of these fundamental rights mentioned in part III of the constitution are infringed, they have the right to move to the Supreme Court of India (Article 32(1)).

Constitution

Our constitution gives us the freedom to move freely throughout the territory of India (Article-19(d)) with reasonable restrictions (Article-19(5)) and personal liberty to live life according to his will, except in the cases where it is deprived by procedure established by law (Article-21).

Indian Penal Code

Indian Penal Code 1860, punishes, whoever wrongfully restraints or wrongfully confines any person. While a person is being restrained or confined, his fundamental rights, Article-19(d) and Article 21 are being violated which has been given to him/her by the constitution of India.

Wrongful Restraint

Wrongful Restraint has been defined under section-339 of the Indian Penal Code. It states that “Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.”

In simple words it means, whoever voluntarily obstructs, stops or blocks a person to prevent him/her from moving in a certain direction, which that person has all legal rights to move, is known as wrongful restraint.

E.g., ‘B‘ was moving in a certain direction. ‘A’ stops ‘B‘ in the middle of the road and says that ‘B‘ cannot travel on this road. ‘A‘ was not acting in good faith and he just wanted to stop ‘B‘ from travelling in that direction. Here, ‘A‘ has wrongfully restrained ‘B‘.

Ingredients of Section-399:

There are 3 basic ingredients to this section-

There should be an obstruction on the way.
That obstruction prevented the person from moving in a particular direction.
The person obstructed had a right to move in that direction.

These 3 ingredients are important for the application of this section.

It is not necessary that there is physical obstruction. Mare words can also cause obstruction. If a person finds it difficult, or impossible or dangerous to life, to proceed in a certain direction, it will be covered under section-399 of IPC.

Punishment

Wrongful Restraint is punishable under section-341 of IPC. Section-341 states that “Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.” It clearly states that if any person wrongfully Restraints any other person, he/she will be punished with imprisonment which may be up to 1 month, or a fine up to ₹500.

Case Laws

In the case of Madala Perayya vs. Varugunti Chendrayya (1954 CrLJ 283 Mad), two people were jointly using a well for their agricultural purposes for a long time but one day one of the them came with his bullocks by blocking other person movement and created restraint for another one to use them well and asked him not to use it. The court held that accused had committed the offence of wrongful restraint and will be punished under section-341 of IPC.

In Shoba Rani vs. The King (1950-51 CrLJ 668 Cal.), the landlord prevented tenant from using the bathroom, which tenant had a right to use. The Court held that the landlord was guilty of wrongful restraint and was punished under section- 341 of IPC.

Wrongful Confinement

Wrongful confinement is defined under section-340 of IPC. It states that, “Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said ‘wrongfully to confine’ that person.”

In simple terms, it means that ‘Any person who restrains any person in a manner which he is prevented from going beyond a certain circumscribed limit, is known as wrongful confinement.

E.g., ‘A‘ places ‘B‘ in a room and tells ‘B‘, that if he tries to escape this room, A’s men will fire at him. Here, ‘A‘ has wrongfully confined ‘B‘.

Ingredients of Section-340:

The person should have been wrongfully confined, that means all the ingredients of Wrongful Restraint must be present.
Such restrain was to prevent the person from going beyond certain circumscribed limit.
The person should have a right to go beyond such circumscribed limit.

These are the essential ingredients of Wrongful Confinement under IPC.

Punishment

Section-342 provides punishment for Wrongful Confinement, according to it if any person confines anyone wrongfully then he shall be punishable for imprisonment of either a term which may extend to 1 year, or with a fine which may extend to ₹1000, or with both. There are a variety of punishment given under IPC based on gravity and intention of the accused.

Case Laws

In the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan (1993 CrLJ 248 Guj), it was held that proof of actual physical restriction was not required. If there are sufficient evidences which show that an impression was created in the mind of the victim, that he was not free to depart is sufficient to prove that he was under wrongful confinement and hence a reasonable apprehension in the mind of the victim is sufficient.

Classification of wrongful confinement:

There are some different categories of wrongful confinement which cause vary in its punishments, and are discussed in IPC from section-343 to section-348 as follows –

According to Section-343 (Wrongful confinement for three or more days), i.e., If wrongful confinement takes place for 3 or more days, it will make it punishable with imprisonment of a term which may extend to 2 years, or with fine, or with both.
According to Section-344 ( Wrongful confinement for ten or more days)- If a person is wrongfully confined for 10 days or more, it will make it be punishable with imprisonment of a term which may extend to 3 years and with a fine as well.
According to Section-345 (Wrongful confinement of person for whose liberation writ has been issued) – If a person keeps anyone in wrongful confinement, knowing that a writ for the liberation of that person has been duly issued, then he can be held liable and punishable with imprisonment of either a term which may extend to 2 years and in addition to this he will also be imprisoned for added term according to chapter XVI (OF OFFENCES AFFECTING THE HUMAN BODY).
According to Section-346 (Wrongful confinement in secret)- If a person is wrongfully confined in a manner which indicates an intention that the confinement of such person may not be known to anyone who would be interested in the person confined, or to any other public servant, or the place of such confinement is not known to or discovered by any such person or public servant mentioned above, shall be punished with an imprisonment of a term which may extend to 2 years in addition to any other punishment to which he may be liable for such wrongful confinement.
According to Section-347 (Wrongful confinement to extort property, or constrain to illegal act)- whoever confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, for any property or for valuable security or of constraining the person confined or any other person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with an imprisonment of a term which may extend to 3 years and fine as well.
According to Section-348 (Wrongful confinement to extort confession or compel restoration of property)- If a person is wrongfully confined any person for the purpose of extorting from the person confined or any person interested in the person confined, for any confession or to discard any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining that person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, will be punished with imprisonment of a term which may extend to 3 years and fine.

These are the types of confinement mentioned in the Indian Penal Code.

Difference between Wrongful Restraint and Wrongful Confinement

S.NO.	WRONGFUL RESTRAINT	WRONGFUL CONFINEMENT
1.	It is a wider term and has other types in it.	It is a type of wrongful restraint.
2.	It focuses to restraint in a particular direction.	It focuses on the circumscribing limit.
3.	It is a partial suspension of a persons’ liberty	It is total suspension of a persons’ liberty.

Conclusion

The article provided above, discuses about wrongful restrain and wrongful confinement, and also how they infringe the fundamental rights provided to us by the Constitution of India. Wrongful restrain is “drawing a line” in front of a person and wrongful confinement is, “drawing a circle” around the person. When a person is in wrongful confinement or wrongful restrain, his fundamental right to move freely throughout the country is violated. His fundamental right to live his life with personal liberty is violated. What happened in Jallianwala Bhag on 13 April 1919, was wrongful confinement, where General Reginald Dwyer, closed all gates and open fired at the mob.

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, explaining the topic considered to be a taboo but still dealt with, through legislations- Cyber Pornography.

Introduction

Cyber Pornography is a global problem now. The government has been taking crucial steps to ban websites possessing pornographic content following the Courts. However, people have found ways and means like VPN, DNS Server Change, downloading search engines with inbuilt VPN activation, to continue watching cyberporn. Now, this becomes a very controversial issue because can there be any decision as to if a person should be punished for watching such content? Or are the service providers to be held responsible for possessing pornographic content? Are the laws stringent enough to regulate cyberporn?

Meaning of ‘Pornography’

‘Pornography’ is a Greek origin word, this can be divided into two “Porne” meaning prostitute and “graphos” meaning description. Pornographic content includes any video, pictures or other media that generally contain sexually loud acts considered to be indecent by the public.

The term pornography is used for the publication of the act instead of the act itself, and therefore, this does not cover the ambit of sex shows or striptease. People all over the world have been debating over whether pornographic content is just an artistic expression of the human body and sex as an act or is it an immoral act hurting people’s religious sentiments.

Concept of pornography has never been so broad as it is at this point of time. Pornography as a topic now been divided into softcore and hardcore pornography. The point of difference between the two being the depiction of penetration.

Cyber Pornography as a term means the publication, distribution and designing of pornographic content by using the medium of cyberspace. It is a product of the advancement of technology. Since the Internet has become so easily available in the modern times, people can view different porn on their devices, and even upload such content online.

Cyber Pornography

Internet covers pornography as much as 30 per cent of its total content. But the catch here is only 10% of this content is on the web, rest can be found on dark work and the deep web. According to the statistics of the year 2005, there were almost 2 billion searches for porn, the revenue generated through this industry is also quite a lot, it is the fastest growing industry and is estimated to generate approximately $60 billion in the year 2007. The U.S stands as a first ranker in the entire pornography industry. Almost $12 billion of the U.S revenue is spent on porn followed by the country, Australia, which extracts a total of $1.5 billion revenue from the industry. The easy availability to the Internet has helped a lot of people to view pornographic content even without any hindrance to their privacy and without even disclosing their identity to the site developers.

Legal Aspect

Various legislations are enacted so as to regulate Cyber pornography in our country, India, this includes the Information Technology Act of 2000, the Indian Penal Code, the Indecent Representation of Women’s Act and Young Person’s (Harmful Publication) Act. These are explained briefly below-

Information Technology Act, 2000

Cyber Pornography is not legitimised or even banned under the IT Act of 2000.

The IT Act restricts the production and even distribution of cyber pornography but it does not prohibit the viewers to view or download any pornographic content excluding child pornography.
Section 67 of the IT Act, 2000 makes the below listed acts punishable, the punishment being imprisonment for a term of three years and fine up to Rs. 5 lakhs

Publication, Transmission, Causing to be published or transmitted

The Intermediary Guidelines provided under the Information Technology Act put the burden on the Intermediary or the Service Provider to exercise accurate due diligence so as to ensure that their portal/ site is not being misused.

So, viewing Cyber pornography is legitimised in India as merely downloading and viewing of content does not lead to an offence. Although publication of such content online is illegal storing the same is not an offence but again, transmitting such cyber pornography via messaging, emails or any other kinds of digital transmission is an offence.

According to Section 67 (B) of the IT Act, 2000, any individual not attained the legal age- 18 years is a child. Child pornography is illegal and below listed acts are considered as an offence-

Publication or transmission of any material through electronic means that depict children engaged in a sexually explicit act or similar conduct.
Depiction of children in an obscene act or similar in a sexually explicit manner.
Normalising and encouraging child abuse online.

Although exceptions like media for religious education, for the study of sexology or even if a photograph of a child is utilised so as to explain the anatomy of a child won’t be considered as an offence.

Indian Penal Code, 1860

Section 292 of the Indian Penal Code, 1860 prohibits the sale of any obscene material or any sexually explicit content.

Section 292(1) states the meaning of “obscenity” and also states that any content will be deemed as obscene in case it is lascivious or as prurient or even if any part of such content has the intention to probably corrupt people.

Whereas Section 292(2) briefly explains what will be the punishment for sale, distribution, such materials. This would be applicable to any person who sells, distributes, hires, exhibits publicly or puts any obscene material into circulation. This will also cover the imports or exports of such obscene material. A person involved in receiving profits or advertising content from any such business shall also be held responsible. Offers to do or attempts to do any act which is prohibited under the section.

On the first conviction, a person may face rigorous imprisonment that may be up to 2 years and a fine up to ₹2,000.
On the second conviction of such person, he/ she shall be awarded imprisonment for 5 years along with a fine that may extend to ₹5,000.

Section 293 of the Indian Penal Code, 1860, provides for the punishment of a person who is involved in selling, hiring or distributing any obscene material to any other person who is of age below 20 years.

On the first conviction, a person shall be imprisoned for 3 years along with the fine up to ₹5,000, and
On the subsequent second conviction, imprisonment may extend to 7 years with a fine up to ₹5,000.

Indecent Representation of Women’s Act, 1986

Indecent Representation of Women’s Act, 1986 is a legislation which seeks to prohibit the representation of any women or any of her body part in an indecent manner such that any such representation will hurt the public morality on grounds like indecency, hurting of religious sentiments etc.

POCSO (The Protection of Children from Sexual Offences) Act, 2012

The latest and very popular ‘POCSO Act’ also regulates cyber pornography effectively. Actually, The POCSO Act, 2012 was specially enacted so as to prevent children from any kind of sexual offences. But the act also protects children from crimes such as sexual assault, sexual harassment, and child pornography. This act aims and works so as to protect the interests and well-being of minor children. The Act is gender-neutral and considers any individual below 18 years to be protected as a ‘child’ under this legislation. The provisions relating to ‘Cyber Pornography’ listed under the POCSO Act are explained below:

Section 13 of the POCSO (The Protection of Children from Sexual Offences) Act, 2012, defines the offence of ‘child pornography’, and explains it as whosoever, uses any child in any type/kind/ form of media for purposes of sexual gratification shall be considered as guilty of the offence of child pornography. Also, Section 14 of the same, POCSO Act, 2012, states the punishment for a person guilty of using any child for pornographic purposes.

Punishment for using a child for pornographic purposes in both POCSO Act, 2012 and the bill of 2018 is listed under-

Offence related to	Punishment under POCSO, 2012	Punishment under the 2018 Bill
Child Pornography	Maximum – 5 Years	Minimum – 5 Years
Child Pornography with sexual assault, penetrative, etc	Minimum – 10 Years; Maximum – Life	Same as Act
Child Pornography with extreme and harsh penetrative and sexual assault	Only Life Imprisonment	Minimum – 20 Years; Maximum – Life Imprisonment, Death Penalty
Child Pornography with other sexual assaults	Minimum – 6 Years; Maximum – 8 Years	Minimum – 3 Years; Maximum – 5 Years
Child Pornography with extreme sexual assaults other than above mentioned	Minimum – 6 Years; Maximum – 10 Years	Minimum – 5 Years; Maximum – 7 Years

According to Section 15 of the POCSO (The Protection of Children from Sexual Offences) Act, 2012, provides punishment for a person involved in storing pornography that involves a child, in any kind of form, in that case, he shall be awarded imprisonment up to a period of 3 years or fine or with both.

Conclusion

The regulations in India for cyber pornography are mediocrely stringent and readers should understand that such punishments are fine as ‘porn’ is still a very controversial topic, the most effective and safe method to curb such menace of cyber pornography and the other vices on the Internet is an attempt by the state so as to achieve social maturity by making people aware through education and even after so we live in a state where individual’s choice cannot be controlled, as to what a person wishes to see. Although child pornography resulting in sexual assaults is serious and cannot be neglected no matter what. Parents should be friendly and educate their children the same, that will be the best for under-aged kids curiosity to watch such content.

References

https://www.psychologytoday.com/us/blog/all-about-sex/201611/dueling-statistics-how-much-the-internet-is-porn.
https://pdfs.semanticscholar.org/d5ac/9d42834942df20b7224d4c45831cd487ce91.pdf
https://indiankanoon.org/doc/1318767/
https://www.itlaw.in/section-67b-punishment-for-publishing-or-transmitting-of-material-depicting-children-in-sexually-explicit-act-etc-in-electronic-form/
https://indiankanoon.org/doc/776798/
https://indiankanoon.org/doc/776798/
https://www.advocatekhoj.com/library/bareacts/childrenprotection/13.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Use%20of%20child%20for%20pornographic%20purposes
The Protection of Children from Sexual Offences (Amendment) Bill, 2019; The Protection of Children from Sexual Offences Act, 2012: PRS
https://www.advocatekhoj.com/library/bareacts/childrenprotection/15.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Punishment%20for%20storage%20of%20pornographic%20material%20involving%20child