Month: June 2020

Attorneylex: Online Internship Opportunity

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About the organization

Team Attorneylex is a newly developed organization which is devoted for the law students of the country and our main purpose is to guide the law students about their legal research and legal writing, how to analyze the case, how to read or understand the judgments passed by the Courts etc. because we believe that these things are the most important part of the legal profession.

We have a team of dedicated professionals who are willingly ready to help the students in everything related to their legal Professional career for free.

Along with the other activities the endeavor is to deliver legal help to the sectors of society that are unable to access existing legal services due to illiteracy and poor economic conditions.

Nature/ type/work of internship

The basic purpose of this internship is to provide the platform to the students of law where they can learn new things like legal writing, legal research, how to analyze a case, how to read the judgment of the courts, etc. We at Team Attorneylex believe that ‘legal research and legal writing’ are the top-notch quality of any legal professional, that’s why we are providing this opportunity to the law students of the country so that they can learn these important things which will help them in their future. 

Number of Interns required – 15 (fifteen)

Internship Location – Work from Home (this is an online internship)

Who can apply – any law student of any recognized university/ college may apply for this internship.

Stipend – No stipend, but we will provide a certificate of internship, and Letter of Recommendation shall also be provided if work found satisfactory.

Duration of Internship – One Month

Application Procedure – Interested Students are required to send their CV at internship.teamattorneylex@gmail.com 

Contact Info – +919616696008, Mr. Gaurav Yadav. Students can also connect with us on teamattorneylex@gmail.com 

Official Link – https://teamattorneylex.in/ 

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Webinar on Trademarks Law: Procedure & Practice in Courts by LicitElite

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About the Organizer

LicitElite focuses on providing assistance to Law students in self-grooming while acquiring better knowledge, by generating an exclusive learning platform through activities like law classes, blog writing, competitions etc. It also aims to connect with legal experts to design better learning opportunities.

 About the Program

During this pandemic situation, we are forced to live in the four walls of our homes, but this can in no way stop us growing and fortunately we have applied science to help us grow more through virtual interactions. Webinar is essentially an enthusiastic way to exchange the views, to interact and create interpersonal and humanistic spaces of discourse and deliberation.
With the development of trade worldwide, brand names, trade names, marks, etc, have attained an extensive value that requires uniform minimum standards of protection and efficient procedures for enforcement as were recognised under the TRIPS. In view of the same, we feel the requirement to unroll the expert knowledge about the procedures of court with relation to registration of Trademark and application of the trademark law during infringement of rights related to trademarks, among the students & legal fraternity.
In this interaction with Advocate Sofia, our speaker for the day, we will discuss the procedure involved in registration of trademark in brief and also the stages & requirements in filing the infringement case for trademark with respect to commercial courts act as well.

 Topic :

Trademarks Law: Procedure & Practice in Courts

 Highlights:

• Procedure of registration of a trademark in brief
• The stages & requirements in filing the infringement case for trademark
• The Commercial Courts Act, 2015

 Venue

Google meet on 4th July 2020 from 5:00pm  Onwards

 About the Speaker

Advocate Sofia Bhambhri practices in High court of Delhi and Trademark & Copyright Law is the area of her expertise.

Registration Details

Registration for the Webinar is FREE.

Note: Certificates will be sent only to the registered participants who will fill out the feedback form at the end of the session.

 How to apply
To apply click here:
https://forms.gle/R6gNgiJcy9zsZd3J9
or visit us at
https://www.licitelite.com/event-details/webinar-on-trademarks-law-procedure-practice-in-courts

Whatsapp us at: +91 98107 93800

Email-id: admin@licitelite.com

HPNLU Shimla : Call For Paper

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ABOUT THE HOST

Himachal Pradesh National Law University  (HPNLU Shimla) is a National Law University located at Shimla, Himachal Pradesh, India. It is the 20th National Law University established in India. National Law University, is set up with the vision to provide affordable quality legal education with an aim to educate and cater to the needs of students. NLU Shimla is governed by the High Court of Himachal Pradesh

NAME OF THE EVENT

Call for paper

ABOUT THE EVENT

The Himachal Pradesh National Law University, Shimla, is launching the Third Volume of its annual publication, Shimla Law Review (SLR) (ISSN: 2582-1903). The volume is scheduled to be out in the month of December 2020. In this connection, submissions, under different categories, are invited form interested faculty members, research scholars, judges, and professionals. The volume is not restricted to any particular theme and manuscripts with an interdisciplinary perspective on contemporary socio-legal issues, theories, and developments awaiting scholarly treatment are encouraged. The last date for submission of contributions is September 01, 2020. Selection of entries are based on double-blind peer review. Queries about the submission of papers and related matters may be directed to: editorslr@hpnlu.ac.in.

DATES AND DEADLINES

01 September 2020

THEME OF THE EVENTS

There is no specific or particular theme(s) or topic(s) for the Volume. All submissions, relating to law, directly or otherwise, are welcome.

TERMS AND CONDITIONS OF THE EVENT

  1. The manuscripts should be well researched/ documented following uniform citation method for footnotes given above.
  2. The manuscripts should be the original work of the contributor and not a compilation of pre-existing works on the subject. It should not amount to the violation of others’ copyright. The contributor has to give a declaration as to the originality of the work.
  3. The copyright in all articles, published in the Volume, shall vest in the owner of the Shimla Law Review i.e. HPNLU, Shimla.
  4. The views adopted from other sources and others’ work must be quoted and sufficiently acknowledged.
  5. Paraphrasing another author’s work shall not be considered as original work. The source has to be acknowledged.
  6. The Contributor has to cover the risk of being sued for copyright, defamation or contempt and shall be liable to suffer the losses if caused by violating copyright.

IMPORTANT GUIDELINES

  • All submission in Electronic form: All contributions have to be submitted in electronic form. The manuscript should be typed in MS Office double spaced, with a left margin of one and a half inches, and send to: editorslr@hpnlu.ac.in.
  • Abstract: Abstract of the paper in 250-300 words should be sent along with the electronic submissions.
  • Covering Letter: Author(s) must send a covering letter mentioning the title of the paper, name, designation and details of the author(s) and institutional affiliation. The author(s) are compulsorily required to make a solemn declaration about the originality of the manuscript and that the same has not been published or submitted for publication elsewhere.
  • Communication of Acceptance: The decision on the acceptance of the paper for publication will be that of the Editorial Board (Shimla Law Review), which shall be final. The decision of acceptance will be communicated to the contributor in eight weeks of receiving the submission.

CONTACT DETAILS

MILE, SHIMLA-MANDI NATIONAL HIGHWAY, GHANDAL DISTRICT SHIMLA, HIMACHAL PRADESH-171014. INDIA.

Ph. 0177-2779802, 0177-2779803, Fax:0177-2779802. Email: editorslr@hpnlu.ac.in; Website: CLICK HERE

Initial Concept of Corporate liability

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In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the Corporate Criminal Liability in India.

INTRODUCTION

While determining Corporate Criminal Liabilities the Latin maxim played a huge part which is Actus non facit reum mens sit rea which means that to make a person or any entity liable it must be shown that there is an act or omission which is forbidden by law and with Mens rea which is legally understood as having a guilty mind. Since the concept of Criminal offence or criminal liability evolved throughout the world it has been made pretty clear that for one person to commit a crime and later to be held responsible for the same act it is very important that the two major elements of the crime are present. The first one is Actus Reus which means the actual commission of such act. In other words, for a person to be charged with the liability of committing a criminal act that person has to do the same act in person. And the other essential element is Mens Rea which means the intention to do some act. In other words, this means for a person to be charged with the liability of committing a criminal act not only that person has to do the same act in person but also with the intention of doing the act, that is to say with full knowledge of the kind and circumstances of the act. If these two elements are not found in a particular case the person charged can not be held responsible for a criminal act. Now the main problem was a Company or a Corporation is a separate legal person but a Company or a Corporation can not have a mind of its own and hence it can never have any Mens Rea. So it was very difficult to charge a company with Criminal liability. A Corporation or a Company is also not regarded the same as it’s shareholders or the owners of the company as it has its own separate legal entity.

A corporation is considered as a separate legal entity distinct from its shareholders. It can be described to imply as an association of persons for some common object and it has no strictly any legal or technical meaning. It is understood that criminal liability is attached where there is violation as per criminal law.

Definition

In simple words, Corporate crimes are those crimes which are committed by corporations or members of corporations where liability is imposed for performing any acts or omissions which are punishable by law.

Corporate criminal liability can be defined as a crime which has been committed by individual or association of individuals who for pursuing a common purpose or make a business gain in course of their occupation commit such acts or omission which is forbidden by law and with the guilty mind where it is for the benefit of the corporation or any individual out of the association of individuals.

Development of the concept of Corporate Criminal Liability

However, the initial concept of Corporate Criminal Liability changed over the due course of time and mainly due to this newly evolved doctrine and principles in the field of law. The doctrines and Principles which played a major part in holding the directors or the owners of the company criminally responsible for the criminal acts performed under the name of the company are mentioned hereunder;

The Doctrine of Vicarious Liability

This Doctrine finds it’s origins in the law of torts, it states that in a master-servant relationship, when a master authorizes his/her servant to do a certain act criminal or illegal in nature and then the servant actually performs such act with knowledge and authorization from his master, then the servant who is doing that act will definitely be criminally responsible for the act committed by him/her directly but also the master who authorized or ordered such act will also be held liable criminally for such act vicariously.

Similarly, in the case of Ranger v. The Great Western Railway Company[1] it was held by the court that the company is vicariously liable for the acts committed by its employees as those acts were performed by them during their course of employment which implies the authorization of such act by the Company itself. it is done in the course of its employment.

The Doctrine of Identification

If we follow this particular Doctrine it says that when a senior partner or director or owner of a company in his/her own capacity commits a criminal act but being under the name of the Company, those individual acts are identified with the whole company and not just with the individual person committing the act. Notable part in this Doctrine is that for this doctrine to be applicable in Cases the person committing the cat has to be in the controlling position of the Company to make decisions for it, else this Doctrine won’t apply.

The Doctrine of Collective Blindness

This Doctrine in simple words, means that if it is found that a particular company or a corporation is liable for criminal acts and it is later on found that any particular employee of such company is not at fault where as a considerable amount of the employees of the company is at fault, the company will be regarded as a whole unit and it will be held liable criminally.

The Doctrine of Willful Blindness

This Doctrine states that if the directors or the owners or the people at the controlling position of the company know that a certain illegal or criminal act is committed and still choose not to take any action or measures to prevent such acts then the application of this doctrine of willful blindness will kick in.

The Doctrine of Alter Ego

Doctrine of Alter Ego states about the personality that one has but yet others can not see. In the current scenario this means that although a Company or a Corporation has a separate legal entity than the directors or the owners of the same, but also at the same time a company can not function on it’s own. The directors or the owners of the company are the people who in reality runs the company and makes the decisions under the company’s name and hence when some illegal or criminal act happens under the name of the company these are the people who will be held liable. Although there is one limitation to this principle which is the acts done by the managing partners or the directors of the company can be attributed to the name of the company but not vice versa as this doctrine always works in reverse.

Important Legislations and Case Laws

There has been a lot of case laws in this country by which the concept of Corporate Criminal Liabilities has evolved and is still evolving in this country. Unfortunately, though a several times various proposals and recommendations have been made to the existing laws but in this country the only remedy for Criminal acts under the Company names is still only penalty depending upon the circumstances.

In State of Maharashtra v. Syndicate[2] the High court pronounced that a Company or a Corporation can not be tried for offences that will lead to definitive Corporal punishment or Imprisonment because even if the Company is found to be guilty of the charge they were tried for they can’t be punished with corporal punishment or imprisonment because neither can be done to a Company.

In the case of Zee Tele films Ltd. v. Sahara India Co. Corp. Ltd[3], it was decided that a Company can not be held liable for criminal activities like defaming a person or other such companies as though a company is separate legal person in the eyes of law but it does not have any mind and hence the element of Mens rea is missing.

But as we progressed as a society and faced new problems at our way the laws and concepts also changed to suit the changing needs of the people of the society. Hence, in Iridium v. Motorola[4] a different viewpoint was taken by the court as it that a company could be held liable for statutory offences as well as common law offences including those offences where the mental element or Mens Rea is essentially required.

Limitations

Although the Doctrine of Corporate Criminal Liability has evolved in all these years but there are still certain limitations of the same. The first one being whenever certain crimes are committed for which there is mandatory imprisonment as punishment if found guilty. For example, in case of Fraud under section 447 of the Indian Penal Code, there is mandatory punishment of imprisonment whereas companies are an artificial legal person and thus they cannot be imprisoned, and can be only be punished with fine and not otherwise.

The second limitation of this Doctrine is Mens Rea. As mentioned earlier, for the Commission of the Crime there has to be requisite Mens rea for committing the Crime, however in case of Companies there is absence of Mens rea to hold a Company liable for crime. Although in present cases the court applies the Alter Ego Doctrine to and hold the managing partners or the directors of the company liable for the criminal acts performed under the name of the Company.

[1] [1859] 4 De G & J 74. 33

[2] AIR 1964 Bom 195

[3] (2001) 1 CALLT 262 HC

[4] AIR 2011 SC 20

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Panel Discussion: DME

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EVENT: Panel Discussion

HOST: Delhi Metropolitan (GGSIPU)

DATES & TIME: Saturday 4th July 2020 between 11:00 am to 12.30 pm.

TOPIC: Macroeconomic Implications of COVID- 19 and the way a

REGISTRATION PROCESS:

Participation is on the base of first come and first served basis.

https://docs.google.com/forms/d/e/1FAIpQLSeL4Ckaux9uCCLwaSkiuxdGExgTniwWZP_LDrhWtFe27W5P8A/viewform

They will also share the YouTube link of the recording on the registered email ids 2 days after the panel discussion.

Mode: Zoom Meeting

Meeting ID: 947 0626 1543

Password: 8QDxXa

Link for Zoom Meeting of the Panel Discussion by DME is here.

https://zoom.us/j/94706261543?pwd=MjlITkxYc2ZGOVNYb3NYcDh6ZnpRUT09#success

CONTACT INFORMATION:

Ganesh Nair: 9968159019 (Student convener, Research Cell DME)

Aashna Aggarwal: 9811043614 (Student convener Research Cell DME)

Rohit Kumar: 7004024218 (Student member Research Cell DME)

NLSIU Bangalore, Karnataka: CFP

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EVENT: Call for paper

HOST: NLSIU Bangalore, Karnataka

REGISTRATION FEE: Rs.500

It is to be paid by NEFT/RTGS/IMPS/Demand Draft in favour of DIRECTOR NLSIU SCHEMES AND PROJECTS, payable at Bengaluru, along with the duly filled Registration Form attached. Upon remittance of Course Fees, the participant(s) shall send the Transaction Details along with a duly filled Registration Form to Ms Susheela at susheela@nls.ac.in.

DATES OF SEMINAR:3-4 July 2020

Participants are encouraged to register before June 30th 2020

Submission of Abstracts along with Registration: June 30th 2020

Selected Abstract Communication: July 1st 2020

Submission of Final Paper (After the Webinar): July 30th 2020

TOPIC:  Migrant Workers and Urban Governance: Responsibilities of Urban Local Bodies and Human Rights.

ELIGIBILITY: Academicians, Researchers and PhD/Doctoral Scholars from the field of Urban Planning and Management;

Lawyers and Legal Professionals, Consultants;

Government Officers, Officers of Public Sector Undertakings;

Representatives of Governing and Regulatory Bodies;

Stakeholders from Non-Governmental Organisations, Think-Tank Groups, etc.

Participants will be awarded E-Certificate.

Town Area Committee v. Prabhu Dayal, AIR 1975 All 132

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This case analysis has been done by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this case analysis, she is dealing with the case of Town Area Committee v. Prabhu Dayal. 

INTRODUCTION

Town Area Committee v. Prabhu Dayal is one of the leading cases of the maxim ‘Damnum sine injuria’ which means “no action will lie if there is actual loss or damage but there has been no infringement of legal right”. Here, in this case, the plaintiff has to prove that he suffered because of an illegal act of the defendant, along with malice.

Bench

Justice Hari Swarup

Facts

Plaintiff’s case was that he had made the construction of 16 shops on the old foundations of the building and the defendant Town Area Committee illegally demolished these constructions. According to him the notice under Section 186 of the U.P. Municipal Act was bad as it gave to the plaintiff only two hours’ time to demolish the constructions and not a reasonable time as contemplated in Section 302 of the Act. It was also asserted that demolition after this notice was bad as the notice was served at a time when the plaintiff was out of the station. The action was said to be mala fide.

The plea of the defendant was that the constructions had been made by the plaintiff without giving the notice of intention to erect the building under Section 178 and without obtaining necessary sanction under Section 180 of the Act. It was asserted that the notice to demolish the constructions had been given earlier on 18th December requiring the stoppage of further constructions and removal of constructions already made and when it did not comply with an order had been passed by the District Magistrate directing the Town Area Committee to take action under Section 186. Thereafter another notice was given on December 21, which also was not complied with and only then the building was demolished in accordance with the law.

Issues 

  1. Can Malice disentitle a person from taking a course of law?
  2. Can the plaintiff suffer legal injury because of an illegal act?

Legal Reasoning

Hari Swarup said, while reasoning, that the plaintiff could get compensation only if he had proved to have suffered an injury because of an illegal act of the defendant and not otherwise. Further, he said Malice does not enter the scene at all. A legal action, though motivated by malice, will not make the actor liable to pay the damage. Mere malice cannot disentitle a person from taking recourse to law for getting the wrong undone and that law does not take into account all harms suffered by a person which caused no legal injury. He recognized the damage that was done as damnum sine injuria and that the damage did not gave the sufferer any right to get compensation.

Damnum Sine Injuria

In respect of legal reasoning given by the bench in this case, the meaning of the soused maxim is important to understand. Damnum sine Injuria refers to as damages without injury or damages in which there is no infringement of any legal right which are vested with the plaintiff. If no legal right has been infringed so no action lies in the cases of damnum sine injuria.  The maxim is based on the general principle which is if one exercises his common or ordinary rights, within reasonable limits, and without infringing other’s legal right; such an exercise does not give rise to an action in tort in favour of that other person. Damages can be in any form either in the form of any substantial harm or loss suffered from respect to the money, comfort, health, etc.

This can be better explained in the following case:

Gloucester Grammar School Case [1]

The defendant was the schoolmaster intentionally opened the school in front of the plaintiff’s school, causing damage to him. Because of an increase in competition, the plaintiff had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that despite the plaintiff had suffered harm but there was no infringement of any legal right, therefore, the defendant couldn’t be held liable.

Mogul Steamship Co.  Vs.  McGregor Gow and Co. [2] 

In this case number of companies trading in steamships, combined their hands with the intention to drove the plaintiff’s company out of the tea-carrying company, by reducing and offering assistance at a reduced price. It was held that the plaintiff had no cause of action as no legal right were infringed by the other companies.

Ushaben vs. Bhagyalaxmi Chitra Mandir [3]

In the case, the plaintiff pleaded before the court of law to issue a permanent injunction order on the film named, “Jai Santoshi Maa”. According to her, the film harmed the religious feelings of the plaintiff. It was observed that hurting of religious sentiments did not result in any legal injury, and also that other than the plaintiff no other person feelings were hurt. Therefore, it was held that the defendant was not liable.

Judgement

Justice Hari Swarup  held the decision by stating “There is no merit in the contention of the learned counsel that the plaintiff had suffered injuria by the act of the demolition of the building because he had a fundamental right to hold and enjoy the property even though it was constructed without prior sanction from Municipal authorities. There is no right to enjoy property not legally obtained or constructed. A person has been given by law a right to construct a building, but that right is restricted by various enactments, one of which is the U.P. Municipalities Act. If a person constructs a building illegally, the demolition of such building by the municipal authorities would not amount to causing “injuria” to the owner of the property. No person has the right to enjoy the fruits of an act which is an offence under the law. As the plaintiff has failed to prove that he had suffered injuria in the legal sense, he is not entitled to get any compensation”.

Citations

[1] (1410) Y.B. Hill 11 Hen, 4 of 47, p. 21, 36.

[2] (1892) A.C. 25.

[3] A.I.R. 1978 Guj. 13.

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White v. John Warrick & Co. Ltd, (1953) 2 All ER 1021

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This case analysis has been done by Parul Sharma , pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this case analysis, she is dealing with the case of White v. John Warrick & Co. Ltd. 

INTRODUCTION

This case was considered the issue of exclusion clauses and whether or not an exclusion clause in a contract involving the hiring of a tricycle could relieve the hiring company from liability in both contracts and therefore, the tort of negligence.

Bench

Lord Justice Singleton

Lord Justice Denning, and

Lord Justice Morris

Facts of the Case

The plaintiff, a newsagent and tobacconist carried a business at Canonbury, entered into an arrangement with the defendants that they should supply him with a tradesman’s tricycle, a tricycle which has a large carrier in front, for the purpose of delivering the newspaper. The arrangement was embraced in a written contract dated Apr. 13, 1948. The contract was on a printed form used by the defendants, on which their name appears in print, and the agreement is stated to be made between them (described as the owners) and the plaintiff, who is described as the hirer.

On Saturday, June 3, a representative of the owners went to the plaintiff’s shop and left a tricycle which was out of order which was supposed to be a spare tricycle. The plaintiff didn’t examine the tricycle but soon rode it to go to his work. When he had gone about a quarter of a mile the saddle went forward in such a manner that he was thrown off the tricycle on the ground, and was injured. He said he got up and pushed the tricycle back to his shop, the saddle then sloping down on to the crossbar, and when he examined the tricycle, he found that the saddle was loose. He was not thought, at first to be badly hurt, but unfortunately, he had suffered an injury to his knee. He was in the hospital for some considerable time suffering from synovitis. PARKER. J. who heard the plaintiff’s claim said that, if he had found the plaintiff entitled to damages, he would have awarded £505. That was a provisional assessment and no more. The plaintiff took the matter to the Court and wanted the defendants to be held liable in tort (for negligence) as well as in contract.

Issues

  1. Whether there was negligence on the part of the defendant?
  2. Whether there was a breach of duty and contracts?

Essentials of Negligence

In an action for negligence, the plaintiff has got to prove the subsequent essentials:

  1. DUTY TO TAKE CARE: One of the essential requirements for liability for negligence is that the defendant owed a legal duty towards the plaintiff. The following case laws can be referred for this essential element.
  1. DUTY TO WHOM: In the case of Donoghue v. Stevenson [1], carried the idea further and expanded the scope of duty saying that the duty so raised extends to your neighbour. Justifying so as to who is was the neighbour LORD ATKIN stated that the answer shall be “the persons who are so closely and directly stirred by my act who are needed to be taken in consideration are being so affected once I am directing my mind to the acts or omissions which are called in question”.
  1. DUTY MUST BE TOWARDS THE PLAINTIFF- It isn’t sufficient that the defendant owed a duty to take care. It must also be proved that the defendant owed a duty of care towards the plaintiff.

In Bourhill v. Young [2], the plaintiff, a fishwife, alighted from a tram car. While she was being helped in putting her basket on her back, a motor-cyclist after passing the tram collided with a motor car, 15 yards afar on the other side of the tram and died instantly. The plaintiff could see neither the deceased nor the accident because the tram was standing between her and the place of accident. She simply heard about the collision and after the dead body was removed, she went to the place and saw blood left on the road. Resulting in she suffered a nervous shock and gave birth to a still-born child of 8 months. She sued the representatives of the deceased motorcyclist. It was held that the deceased didn’t hold any duty of care towards the plaintiff and hence she couldn’t claim any damages.

  1. BREACH OF DUTY TO TAKE CARE: Yet another important condition for the liability in negligence is that the plaintiff must prove that the defendant committed a breach of duty to take care or he didn’t perform that duty well.

In Municipal corporation Delhi v. Subhagvanti [3], a clock-tower in the heart of the Chandni Chowk, Delhi collapsed causing the death of a number of people. The structure was 80 years old but its normal life was 40-45 years. The Municipal Corporation of Delhi having the control of the structure couldn’t take care and be, therefore, liable.

In MCD v. Sushila Devi [4], a person passing by the road died because of the fall of a branch of a tree standing on the road, on his head. The Municipal Corporation was held liable.

  1. The last essential requisite for the tort of negligence is that the damage caused to the plaintiff was the result of the breach of the duty. The harm may fall into the following classes: –
  • physical harm, i.e. harm to the body;
  • harm to reputation;
  • harm to property, i.e. land and buildings and rights and interests pertaining thereto, and his goods;
  • economic loss; and
  • mental harm or nervous shock.

In Achutrao Haribhau Khodwa v. State of Maharashtra [5], a cotton mop was left inside the body by the negligence of the doctor. The doctor was held liable.

Judgement

It was stated by Lord Denning, that there were two possible heads of liability on the defendants, one for negligence, the other for breach of contract. The liability for breach of contract was more strict than the liability for negligence. The defendants could have been liable in contract for supplying a defective machine, even though they were not negligent. Counsel for the defendants admitted that, if the negligence was a completely independent tort, the exemption clause would not avail, but he said that the negligence alleged was a breach of contract, not an independent tort. The facts which gave rise to the tort are the same as those which gave rise to the breach of contract and the plaintiff was not allowed to recover just by framing his action in tort instead of contract. 

The claim for negligence, in this case, was founded on tort and not on contract. That could be seen by considering what would be the position if, instead of the plaintiff himself, it was his servant who was riding the tricycle and had been injured. If the servant could show that the owners had negligently sent out a defective machine for immediate use, he would have had a cause of action in negligence. That shows that the defendants owed a duty of care towards the servant. And with more reason, they also owed the same duty to the hirer himself. In either case, a breach of that duty is a tort which was established without relying on any contract at all. The hirer could also rely on a contract if he had wished, but he was not bound to do so, and if he could avoid the exemption clause by framing his claim in tort he was entitled to do so, according to the judgement of the Court of Appeal. 

Therefore, it was finally held by The Court of Appeal that the clause only extended to the strict (non- negligent) liability (contract), this would, therefore, allow action in tort for negligence.

Citations 

[1] 1932 AC 562

[2] 1943 AC 92

[3] AIR 1966 SC 1750

[4] AIR 1999 SC 1929

[5] (1996) 2 SCC 634

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Concept and Evolution of Socio-economic offences

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This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article tries to explain about the types of offences and focusses more on the socio-economic offences and its evolution.

INTRODUCTION

According to the modern scenario, crimes are increasing day-by-day. The crimes are categorised into two types, one that includes the mens rea and the other one that is without mens rea. The crimes which include mens rea are known as conventional offences and the crimes that are without mens rea are known as non-conventional offences  The conventional offences include murder and robbery and the non-conventional offences include the White Collar crime,, socio-economic offences and organisational crimes etc.

Socio-economic offences are generally the ones which affect the society at large. A number of people are affected by the socio-economic offences. And it does not involve Mens Rea. 

Concept 

Socio-economic offences are the one which affects the social and economic situation of a country. Mens Rea is not included in these type of crimes. And they affect a number of people at a large scale,  the crime is committed against a very large number of people and thus affects the whole of society. It affects the morals and social health of the society and the economy of a country is also affected by this type of crime. Some examples of these type of crimes are black marketing, food/drug adulteration, tax evasion etc.

 It is believed that White Collar crime and socio-economic offences are the same. But, White Collar crimes and socio-economic offences are different from each other as the White Collar crimes are committed only by the rich and the upper caste people whereas the socio-economic crimes can be committed by anybody whether it is a low caste person or upper-caste person.

 It is usually done in the need of money or the greed. The desire for wealth and their lust to gain more money pushes the criminals to commit these crimes. These offences are done deliberately and wilfully and there is no need to prove the intention of the crime committed. If it is found that the crime is committed then the person who committed it will be punished under the competent provisions.

Like other crimes, the criminal may have some relation with the victim, but here there is no emotional relationship between the victim and the criminal. The victim under such crimes is basically the state or the consumers of any goods and services. And everyone together, is affected by the act of the accused. 

Though the crime is committer against a large part of the society, there can be scenarios like, when some of the commodities are adulterated or hoarded, then though there will be a single victim but the act has the capacity to harm the large part of the society.

Evolution

The concept and idea of socio-economic offences emerged from the transformation between ancient and modern times. Industrial evolution plays a greater role in the occurrence of socio-economic offences. As in the early times, the country was totally agricultural-based and coping up with the new trend of industries led to a drastic change in the offences committed. The business and technology during this period transformed and developed a lot. New business opportunities came with more competition and the new technology reduced the belief and faith in God which increased the greed and desire for money in people. 

The fear of judgement or what others will say disappeared, the morals declined and thus increased the fraud, hatred and different types of non-conventional crimes amongst the public. The state decided to leave things as they were and lack of public resentment resulted in grave consequences which are now noticeable in our country. But the crimes can be dealt with, if proper experimenting and thorough study are done upon the psychology of people and the basic nature of the crime. 

Laws on Socio-economic offences

With the increase in a number of crimes, the authorities and the government made different types of laws to assure that the social and economic condition of the country is sustained. There are many bare acts that deal with the socio-economic offences in our country and each of them has different provisions related to the crimes identified in the modern period. Some of them are:

  1. The Drugs and Cosmetic Act, 1940
  2. The Foreign Exchange Regulation Act, 1947
  3. The Prevention of Food Adulteration Act, 1954
  4. The Essential Commodities Act, 1955
  5. The Wealth Tax Act, 1957
  6. The Income Tax Act, 1961
  7. The Customs Act, 1962 
  8. The Prevention of Corruption Act, 1988

Conclusion

With time and increasing technology and competition, the malpractices were introduced. In earlier times, the malpractices practised by the people were very simple but now in the modern era, the malpractices practised by the people became even more harmful, complex and advanced.

People think that conventional offences are the only important one and the criminal in that cases needs to be punished. But they should also know that punishing the guilty person of the non-conventional offences is equally important. Conventional crimes like murder, robbery etc.is known to everyone but no one thinks about saving the social and economic structure of the country.

Socio-economic crimes affect a large part of society and not just one person. The shareholders or anyone holding any type of securities also get affected. The breach of contract, tax evasion and black marketing are the crimes in the trend that people commit to gain more money. People agree to do all this just for their desire for more money.

Everyone should think about securing the social and economic structure of society. The laws and the provisions made for every socio-economic offence should be followed and psychology of the criminals should be taken under consideration to determine the nature of the act. And like, every other resource of our country, the social and economic resource is important as well and people should think of securing them as well. 

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Laws related to Cyber Hacking

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This article is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law. The article speaks about the brief explanation of cyber hacking and the laws for the protection of humans from hackers. 

INTRODUCTION

Cyber Hacking is identifying weakness in computer systems or networks to exploit its weaknesses to gain access. Example of Hacking: Using password cracking algorithm to gain access to a system. Computers have become mandatory to run a successful business. It is not enough to have isolated computers systems; they need to be networked to facilitate communication with external businesses. It is ironical to see that the most trusted source of information and a store for data can turn out to be a wide platform for some to steal information. It means using computers to commit fraudulent acts such as fraud, privacy invasion, stealing corporate/personal data, etc. Cybercrimes cost many organizations millions of dollars every year. Businesses need to protect themselves against such attacks.

Unlike the majority of computer crimes which are regarded as clear cut in terms of legality issues, computer hacking is somewhat ambiguous and difficult to define. In all forms, however, computer hacking will involve some degree of infringement on the privacy of others or the damaging of a computer-based property such as web pages, software, or files. 

As a result of this definition, the impact of computer hacking will vary from a simple invasive procedure to an illegal extraction of confidential or personal information.

Different forms of Cyber Hacking

One of the most frequent threats of hacking is those faced by the websites. It is very common to see a particular website or online account being hacked open intentionally using unauthorized access and its contents being changed or made public. The web sites of political or social organizations are the frequent targets by groups or individuals opposed to them. It is also not uncommon to see governmental or national information website being hacked. Some of the well-known methods in website hacking are:

Phishing

This implies replicating the original website so that the unsuspecting user enters the information like account password, credit card details, which the hacker seizes and misuses. The banking websites are the frequent target for this.

Virus

These are released by the hacker into the files of the website once they enter into it. The purpose is to corrupt the information or resources on the website.

UI redress

In this method, the hacker creates a fake user interface and when the user clicks with the intent of going to a certain website, they are directed to another site altogether.

Cookie theft

Hackers access the website using malicious codes and steal cookies which contain confidential information, login passwords etc.

DNS Spoofing

This uses the cache data of a website or domain that the user might have forgotten about. It then directs the data to another malicious website.

Laws on Hacking in India

Section 43 and Section 66 of the Information Technology Act (IT) Act cover the civil and criminal offences of data theft or hacking respectively.

Under Section 43, a simple civil offence where a person without the permission of the owner accesses the computer and extracts any data or damages the data contained therein will come under civil liability. The cracker shall be liable to pay compensation to the affected people. Under the ITA 2000, the maximum cap for compensation was fine at Rs 1 crore. However, in the amendment made in 2008, this ceiling was removed. Section 43A was added in the amendment in 2008 to include corporate shed where the employees stole information from the secret files of the company.

Section 66B covers punishment for receiving stolen computer resource or information. The punishment includes imprisonment for one year or a fine of rupees one lakh or both. Mens rea is an important ingredient under section 66A. Intention or the knowledge to cause wrongful loss to others i.e. the existence of criminal intention and the evil mind i.e. the concept of mens rea, destruction, deletion, alteration or diminishing in value or utility of data are all the major ingredients to bring any action under this Section.

The jurisdiction of the case in cyber laws is mostly disputed. Cybercrime does not happen in a particular territory. It is geography less and borderless. So it gets very difficult to determine the jurisdiction under which the case has to be filed. Suppose a person works from multiple places and his data gets stolen from a city while he resides in some other city, there will be a dispute as to where the complaint should be filed.

CONCLUSION

It can be seen that the threat of computer crime is not as big as the authority claim. This means that the methods that they introduce to combat, it represents an unwarranted attack on human rights and is not proportionate to the threat posed by cyber-criminals. Part of the problem is that there are no reliable statistics on the problem; this means that it is hard to justify the increased powers that the Regulation of Investigatory Powers Act has given to the authorities. These powers will also be ineffective in dealing with the problem of computer. The international treaties being drawn up to deal with it are so vague that they are bound to be ineffective in dealing with the problem. It will also mean the civil liberties will be unjustly affected by the terms of the treaties since they could, conceivably, imply that everybody who owns a computer fitted with a modem could be suspected of being a hacker. The attempts to outlaw the possession of hacking software could harm people who trying to make the internet more secure as they will not be able to test their systems. The cyber hacking is protected under the IT Act which performs as prevention not cure. 

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