This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with various different definitions of law given by various scholars and the functions of law.

INTRODUCTION

The term “Law” refers to various forms of rules and principles. The law is an instrument that controls human actions and behaviour. Law is justice, Morality, Reason, Order, and Righteous from society. Law includes the Laws, the Acts, the Rules, the Regulations, the Orders, and the Ordinances of the legislature. Law means the rules of law, the decrees, the judgment, Rules of the courts, and decisions from the judges. Law is, therefore, a broader term, which includes the Acts, the Statutes, the Rules of Procedure, Rules, Orders, Orders, Justice, Morality, Reason, Righteous, Rules of Procedure Court, Decrees, Judgment, Orders of Courts, Injunctions, Tort, Jurisprudence, Legal Theory, etc.

Definitions of Law

The definition of the term law is very difficult. Many lawyers tried to identify the terms of fact. Some of the definitions given by jurists for clarity in different periods, they are categorized as follows.

Therefore, many scholars have different definitions of law as follows:

SALMOND: According to Salmond, “the law can be described as the body of principles recognized and applied by the State in the management of justice.
JOHN CHIPMAN GRAY’S: According to Gray, the “Law of the State or any organized human body is composed of rules governed by the courts, that is the body’s judicial organ sets out the legal rights and responsibilities to be established.
JOHN AUSTIN: John Austin (1790-1859) An English jurist put forward the concept of analytical positivism, making law a sovereign command backed by punishment. Logically he developed a legal system structure in which he gave no place to values, morality, idealism, and justice.

In the strict sense, according to Austin, a rule is the general order of the sovereign person, or sovereign body. Issued in subjectivity to and enforced by the state’s physical strength. According to Austin, “law is an aggregate of rules that are set as a political subject by men who are politically superior or sovereign to men.” Austin says, “A law is a command that obliges a person or persons to behave.

THOMAS ERSKINE HOLLAND: Thomas Erskine Holland, a reputed jurist who followed the concept of the Austin and the nature of the law attempted to define law as law is a general rule of external human action enforced by a sovereign political. Holland also measures or defines law preferably without moral, ethical, or ideal elements which are foreign to law and jurisprudence.
JOHN ERSKINE: Law is the rule of the sovereign, which contains a common rule of life for his subjects, and oblige them to obey.
HANS KELSEN: According to Kelsen, the legal order is the hierarchy of norms, of all norms, derive its validity from the higher norm, and finally there is the highest norm known as the basic norm.
H.L.A HART: According to the Hart Law, there is a combination of primary obligations rules and secondary rules for recognition.
SAVIGNY: Savigny says that the law is not a direct product. Legislation is due, however, to the silent growth of customs or the outcome of unformulated public opinion or professional opinion. It says that the law, not as a body of rules established by a given authority, but as rules, consists partly of a social habitat and part of the experience. He says that the law is found in society, that it is found in custom.
IHERING: Ihering defines the law as ‘the form of the guarantee of the conditions of life’ society, assured by the constraining power of the state. He says that law is a means to an end, and that the end of the law is to serve its social purpose, which is not individual.

However, some more scholars and jurists who define law according to their knowledge.

FUNCTIONS OF LAW

1. SOCIAL CONTROL

The members of society can have various social beliefs, attitudes, and desires. It is necessary to regulate these behaviours and to instil socially acceptable social norms among the members of society. There are informal and formal social controls in place. Law is one of the types of structured social regulation. As for Roscoe Pound, the law is a highly specialized form of social control in a politically organized society. Lawrence M. Freedman discusses the two ways in which the law plays a significant role in social control: First, the legislation explicitly defines the laws and standards that are important to society and punishes deviant behaviour. Secondly, there are other social regulation laws in the legal system. The police arrest the burglars, the prosecutors prosecute them, the courts sentence them, the prison guards watch them, and the probation officers release them.

2. DISPUTE SETTLEMENT

Disputes can not be prevented in the life of society, and it is the task of the law to resolve disputes. Disagreements that are justifiable will, therefore be resolved by law in court or outside the court using alternative dispute settlement mechanisms.

3. SOCIAL CHANGE

Several scholars agree on the role of law in contemporary society as a mechanism for social change. Law helps us to bring about rational, expected, and guided social change. The flexibility of law provides for some measure of discretion in law to make it adaptable to social conditions. If the law is static and unalterable, it does not react spontaneously to changes that may lead to discontent and frustration among subjects and may even lead to violence or revolution. A degree of flexibility is therefore necessary in law

CONCLUSION

Justice, as a central characteristic of the most evolved human societies, has been the focus of philosophic thought since the beginning of Western philosophy in ancient Greece. In the 21st century, the main figures of the modern era — especially Hobbes, Bentham, Hart, and Kelsen — and the schools of realistic jurisprudence continued to shape their concerns. Whether new paradigms in legal theory emerge, marking a break from the trends of the modern age, will ultimately rely on how law and legal institutions change in the future.

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This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. The objective of this article is to describe The Doctrine of Territorial Nexus which is covered from Article 245 to Article 255 of The Constitution of India.

INTRODUCTION

Article 245, clause 1 of the constitution of India states that, ‘Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

Clause 2, states that, ‘No law made by Parliament be held invalid on the ground that it has an extra-territorial operation.’.

The above-mentioned statement implies that State law cannot have extra-territorial jurisdiction. Thus, the Doctrine of Territorial Nexus originates from the Apex Court’s interpretation of this particular provision in context with the extra-territorial operation of a law made by the state government in India.

Explanation: The Doctrine of Territorial Nexus states, that laws that are made by a particular State Legislature are only applicable in that particular State and not outside the territorial boundary of that State, except in scenarios where there is a sufficient nexus between that State and the object. The significance of this can be determined by the Supreme Court’s observation wherein it has stated that ‘Territorial nexus doctrine, thus, plays an important part in the assessment of tax. Tax is imposed on one transaction where the operations which can produce to income may happen partly in one territory and partly in another. The question which might fall for consideration is on whether the income that arises out of the said transaction would be required to be apportioned to each of the territories or not.

Income arising out of operation in more than one jurisdiction would have territorial nexus with each of the jurisdiction on an actual basis. If that be so, it may not be correct to contend that the entire income “accrues or arises” in each of the jurisdiction.”

Judicial Pronouncements

A.H. Wadia vs Income Tax Commissioner, Bombay, 1947

The Apex Court held, that in the case of a sovereign Legislature question of extraterritoriality of enactment can never be raised in the municipal court as a ground for challenging its validity. Further, the Court stated that legislation may offend the rules of international law, and there are chances that they may not be recognised by foreign courts also, or there might be practical obstacles in enforcing them, but these questions are of policy and domestic tribunals should not be concerned and affected by them.

GVK Industries Limited vs. Income Tax Officer, 2011

In this case, it was questioned as to whether the Parliament is authorized to enact laws in respect of extra-territorial aspects or in causes that have no nexus with India, and furthermore, if such laws are bereft of any benefit to India?

The Supreme Court held that ‘The clue of the answer to this question also lies in the word for used in article 245(1). The Court derived the responsibility of the Parliament with the help of the word for used in article 245(1) and stated that Parliament of India is to act as the Parliament of India and of no other territory, nation or people.’ The Court derived two related limitations in this regard, which are as follows:

The Parliament may only apply its power for the benefit of the Country as per the necessity and the laws framed by the Parliament may strengthen the welfare of the people in other territories too but the benefit to or of India will remain the central and primary purpose.
It is also stated that the laws enacted by the Parliament with respect to extra-territorial aspects or causes that do not have any, or maybe expected to not have nexus with India, defy the first condition. The Constitutional Bench headed by Sudershan Reddy J, denied the answer of question logically and stated that the Legislature’s powers to frame laws pursuant to clause (1) of Article 245 might not reach to those extra-territorial aspects or causes that have not any impact on or nexus with India.

State of Bombay vs RMDC

Facts of the case: The respondent was not residing in Bombay (Mumbai) but he conducted competitions with prize money through a newspaper printed and published from Bangalore (Bengaluru) having a wide circulation in Bombay.

All the necessary activities like filling up of the forms, entry fees etc. for the competition took place in Bombay.

The State Government sought to levy a tax on the respondent for carrying on business in the State.

Issue: The question for decision before the Supreme Court was if the respondent, the organizer of the competition, who was outside the state of Bombay, could be validly taxed under the Act.

Judgment: The Supreme Court held that as most of the activities which the competitor is ordinarily expected to undertake took place in Bombay. Thus, it was sufficient to show that there was an existence of territorial nexus and based on this the State Government had the authority to levy a tax on the respondent.

State of Bihar vs Charusila Dasi:

Facts of the case- The Bihar legislature enacted the Bihar Hindu Religious Trusts Act,1950, for the protection and preservation of properties pertaining to the Hindu religious trusts. The Act was made applicable to all trusts any part of which was situated in the state of Bihar.

The Respondent created a trust deed of the properties of several houses and land in Bihar and Calcutta. The trust is situated in Bihar.

The issue-the main question for decision was whether the Act applies to trust properties which are situated outside the state of Bihar. Can the legislature of Bihar make a law with respect to such a trust situated in Bihar and other properties appertaining to such trust which is situated outside Bihar?

Judgement: The Supreme Court after applying the doctrine of territorial nexus stated that the Act had the scope of affecting the trust property situated outside Bihar, but appertaining to a trust situated in Bihar where the trustees functioned. It further stated that the Act aims to provide for the better administration of Hindu religious trusts in the state of Bihar. Therefore, the trust is situated in Bihar, enables the State to exercise its legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust.

Conclusion

By the above interpretation and cases, we can conclude that the Doctrine Territorial Nexus does not debar a State law from having an extra-territorial jurisdiction. It simply lays down that if a State wants to extend its laws beyond its boundary then it will have to satisfy the Court that there is a sufficient nexus between the subject matter concerned and the state making the law.

This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain the rule of equity.

INTRODUCTION

The word “equity” is originated from the Latin word “acquitas” which means ‘levelling’. Equity is the name that we give to the set of rules that traditionally reinforce the common law where the utilization of the common law would have operated too harshly. This was done to obtain what is consistently referred to as natural justice, or more simply speaking, fairness. A Court of Equity, Equity Court or Chancery Court is a court that’s authorized to practice principles of equity, as against the law, to cases brought before it. These courts began with petitions to the Lord Chancellor in England.

The literal definition of equity is “right as founded on the laws of nature, fairness, justice”. Equity, as defined by some of the jurists, may be quoted as under: –

Aristotle defined equity as the correction of the law where it’s defective on account of its generality. Sir Henry Maine stated that equity is a body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law by virtue of a superior sanctity inherent in those principles.

Henry Levy Ulman explained equity as a body of rules, the primary source of which, was custom or written law, but the imperative dictates of conscience and which had been set forth and developed within the courts of Chancery. Blackstone quoted equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed and natural law is obtained by it. Hence, equity is synonymous with justice, in that, it’s the real and sound interpretation of the rule”.

The essence is to be given more importance than the form of a legal provision and the essence of equity as defined by the maxim is “equity will not suffer a wrong to be without a remedy”.

Origin

Equity is that system of justice which was administered by the High Court of Chancery in England in the exercise of its extraordinary jurisdiction. Every true definition of equity should be, to a greater or less extent, a history.

William II, who became the new ruler of England, brought a varied number of governmental reforms, and as a result, he also rebuilt the legal setup of England. Previously, the legal system of England constituted of county courts administered by the bishop and the county sheriffs, who exercised both criminal jurisdictions as well as civil jurisdiction.

William II also introduced the system of Eyre, where 4 judges, who were appointed by the King, performed their main function which was to analyse the activities of the county courts and hear cases of appeals. This system was utilized as a tool to centralize the control over the local courts, this, it provided a base for the development of common law in England. Although, the dawn of this system came with Henry II ascendance to power. He was considered as the portent of a common law system as he created a system of law, which was common to the whole of England. Some of the features of this system are as follows:

A practice was developed of sending judges from his own court i.e. a central court which was established at Westminster, to places around the country in order to decide the cases which were going on in local courts. These cases were decided by the judges, with the help of the local customs.

These cases were recorded and were filed in Westminster, at the permanent court and as time passed, these decided cases were used as a reference in other cases because of having similar facts. This principle of the law came to be known as precedents.

The local customs became the fundamental source of law as they were referred in trials to decide the points of law. A system of the jury was also developed where decided matters of law based on common law knowledge and local customs. Hence the completion of a centralized system of law with the practice of keeping a record of the decided cases for the purpose of future reference, where customs also played an important role to decide refined points of law together which gave birth to what is called “The common law”.

Equity under the Indian Legal System

In India, the doctrine of equity, which is common law, is still followed even after independence in 1947. Thus, the existing Indian legal system can be said to have a contemporaneous existence i.e. with the advent of the English in India. But as common law is based on the principles of equity, natural justice and good conscience, these principles and rules were embodied in the statute law and have been applied to the provisions made therein. The provisions of equity in Indian statute books might have their source in common law or equity or an adjustment between the two, is immaterial. Statutory recognition of the principles of equity are found in:

1. The Indian Contract Act, 1872

2. The Specific Relief Act, 1877

3. The Indian Trust act, 1882

4. The Transfer of Property Act, 1882

5. The Indian Succession Act, 1925

During the 1600s, when the enterprising English East India company invaded India for setting the trade interests, little did the Indian masses or even future rulers had the idea that they would change the whole face of the foundation of modern Indian society.

This change happened in various ways but the most crucial of those developments was to set up a new type of judicial system, which was initially based on the common law system which was followed in England. As the East India Company took over the territories which were given to them by the Mughals for the purpose of trading, they were acquired with the powers that governed all the people belonging to the English govt. and the company within these territories according to the English common laws given by the Crown.

But as the company won the battle of Plassey in 1757, the Mughal legal system was replaced by the English legal system. In the seventeenth-century admiralty courts were set up in the three presidency towns of the British i.e. Bombay, Madras, Calcutta.

Thus, these courts started to derive jurisdictions directly from the company rather than the crown to decide civil and criminal matters. In the 18th century, through a royal charter, Mayors were established, who derived authority from the crown. This was the very first step in the process of establishment of a uniform legal system in India. A system of appeals to the Privy Council, which is a body of advisors to the crown, from such courts was also initiated.

In the late eighteenth century, the mayor’s court was replaced with a supreme court in the presidency towns. This was the first attempt to form a totally separate and independent judicial system in India which was under the direct authority of the King.

The Chief Justice and subsequent Judges were appointed by the King in the court which had jurisdictions over civil, criminal, admiralty and clerical matters and was used to form rules of practice and procedure. Appeals from such courts were laid down to the Privy Council.

This court was expected to be a court of record and to hold jurisdictions as the court of Kings Bench did in England by the common law of England. And the local civil and criminal justice was left under the “Adalat system”.

Later by the mid-19th century, there was another act i.e. Letter Patents Act of 1862 by the crown, through which the High Courts were established in each of the presidency towns replacing the Supreme Court and were later established in other provinces too. These courts practised the same powers as the Supreme Courts and laid appeals to the Privy Council. The setting up of the Law Commission to review the Indian legal setup directed it to the coding of the laws, like the Indian Penal Code of 1862 which was drafted under the control of T.B Macaulay for the matters regarding crimes. The Evidence Act of 1872 and the Contracts Act of 1872 was anticipated by the same commission. Thus, all these developments helped in the creation of a judicial system in India, which was mostly based on the Common Law system of England.

Conclusion

Equity, in fact, plays an important role in the justice delivery system. In the modern hi-tech society with the digitalization of almost all systems, a computer device would be a nice replacement for a human being from the position of a judge because ‘feed the facts and laws into it and obtain a judgment with all accuracy’ would be a very good idea. But it would never be possible, however developed the digital world may be, for the simple reason that, to decide something, what is required is a mind, and a machine doesn’t have it nor will ever have also. To judge something, it requires conscience and to judge a case, it requires a judicial conscience. No doubt, there are so many things in the name of legal provisions, precedents, rules etc. etc. but what supersedes all is justice, equity and a good conscience which, again, stem from the dictates of conscience and each case is to be decided on its own merits for it is an undeniable cardinal principle of the entire legal system that ‘every case is a new case’

This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the principle of necessity and related case laws.

INTRODUCTION

Is every act done with the knowledge considered as an offence? An act done with the knowledge but without any criminal intention is not considered as an offence. If the person, doing an act in good faith to prevent or avoid greater harm, then it is not said to be an offence. There are various General defences available to the person.

Necessity: As a Defence

Necessity in legal context involves the judgement that the evil of obeying the letter of the law is socially greater in the particular circumstances than the evil of breaking it. As a defence law permits the use of reasonable force to protect one person or property but when there is a situation when the person has to choose between to save the life of a person or to save the property of the person then definitely the person chooses to protect the life of a person first. If the person uses the force which is unnecessary to self -defence then the private defence is not available to that person. This exception is based on the maxim ”salus populi suprema lex”, means that the welfare of the people is the supreme law. If a person chooses between the welfare of the community and individual welfare, then he must first choose the welfare of the community. As in order to prevent a greater harm, slight harm is permitted.

Let’s discuss the concept with an illustration,

The motorman came to know that there was a problem in a train because it became uncontrollable and there were two tracks before him, the first track on which there were two persons standing on a track and on the second track there were so many people standing on it. Then he chooses, the first track to move the train further. He is not guilty of this because the principle of necessity would be applied. As the action of the motorman prevents the greater ham and he chooses first track instead of second.

Necessity: In Indian Penal Code, 1860

As we all know, that necessity is criminal as well as a civil offence. But in reality, it is not an offence it is considered as a defense. In order to prevent greater harmless harm is permitted. Section 81, Indian Penal Code, 1860 discusses the principle of necessity under Chapter IV, General Exceptions.

Act likely to cause harm, but done without criminal intent, and to prevent other harm.—Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.

Explanation—It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

It embodies the principle that where the accused chooses lesser evil, in order to avert the bigger. The genesis of this principle emanates from two maxims: “quod necessitas non habet legem” (necessity knows no law) and “necessitas vincit legem” (necessity overcome the law).

Let’s discuss this concept with an illustration,

A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life or property. Here, if it is found that the harm to be prevented was of such a nature and so imminent as to excuse A’s act, A is not guilty of an offence.

In the above illustration, pulling down a house to prevent the fire from spreading, where pulling down a house is an offence per se. But when it is not done with the intention of destroying the neighbour house but only to prevent a greater harm, then the principle of necessity would be applied.

Essentials: Necessity

The damage caused was less than that would have occurred otherwise.
the person reasonably believed that his actions were necessary to prevent imminent harm.
there was no practical alternative available for avoiding the harm.
the person died not to cause the threat of harm in the first place

Restrictions: Necessity

There are some limitations of necessity following as:

In the first place, the defence will not succeed if the necessity is arising out of the negligence act of the defendant himself.
there must be a real or imminent danger to the person or property.
Distinction is maintained between the safety of human life and the safety of property for obvious reasons.

Case Laws: Necessity

Carter v. Thomas, 1976

FACTS: fire accident occurred in the premises of plaintiff where the fire workmen reached and tried to extinguish the fire and at the same time defendant also entered into the plaintiff’s premises in order to extinguish the fire by pouring the water by bucket and at last the fire extinguished.

The plaintiff filed a suit against the defendant that he entered into the premises of the plaintiff without his permission and made a contention that he was liable for trespass.

The defendant took the defence of necessity because it was necessary to extinguish the fire.

OBSERVATION AND HELD: Court observed that in the plaintiff’s premises the fire workmen were already reached and extinguish the fire. So, there was no need for the defendant and he was also entered into the plaintiff ’s premises without his permission. Court held the defendant liable for trespass.

Olga Tellis v. Bombay Municipal Corporation, 1985 SCC 545

The Apex Court held that ”under the law of torts necessity is a plausible defence, which enables a person to escape liability on the ground that the act complained of is necessary to prevent a greater harm, inter alia, to himself. So, the trespass on some property cannot be justified always on the basis of necessity.

The defence is available if the act complained of was reasonably demanded by the danger or emergency.”

Dhania Daji, (1868) 5 BHC (CrC) 59

FACTS: a person placed poison in his toddy pots, knowing that if taken by a human being it would cause injury, but with the intention of thereby detecting an unknown thief who was in the habit of stealing the toddy from his pots. The toddy was drunk and caused injury to some soldiers who purchased it from an unknown vendor.

HELD: It was held by the Court that the person was guilty under section 328 of Indian penal code, 1860(causing hurt by means of poison or any, intoxicating or unwholesome drug or other thing with intent to commit an offence) and that section 81 did not apply.

CONCLUSION

This defence is based on the maxim “salus populi suprema lex’’ which means, the welfare of people is the supreme law. By this maxim, injury to some person is possible for the welfare of the majority of the society. For this, there should be the welfare of the maximum person and injury to the minimum person. It is pertinent to note that the principle of necessity does not specifically discuss the ‘greater evil’ or ‘lesser evil’, it in effect deals with the case of ‘lesser evil’.

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This case analysis is written by Anurag Maharaj, a student of law at Lloyd Law College, Greater Noida.

Allahabad High Court

Appellant – Lalman Shukla

Respondent – Gauri Dutt

Decided on – 17th April 1913

Bench – Justice Banerji

Facts of the case

In January 1913, a nephew of the defendant ran away from home. So, to find the child, the defendant Gauri Dutt sent all his servants to various parts in search of missing child so that he could be quickly traced. They had come from child Cownpore. The complainant was also a servant who went to look for the missing boy.

After a few days of failed attempts, the defendant released a handbill promising Rs 501 as a reward for the person who finds the missing boy. The servants did not know this reward for finding the boy. At that time they were doing a kind of service and the expenses for transportation and everything else were paid.

Now, just after the defendant declared the award, one of his servants named Lalman Shukla found the child in Rishikesh and brought him to Cownpore but he did not realize the reward as he was unaware of the same. He was rewarded with two sovereigns for his kind act, and Rs 20.

When the plaintiff was dismissed from his job after 6 months, he brought a suit against his master claiming that he was not given the reward money promised by the defendant to the person who finds the missing child.

Therefore, the lower court ruled that the complainant will not receive the compensation because (1) Offer was made after the plaintiff left, and (2) no subsequent promise was made to pay the reward.

After that, an appeal was lodged against the order of the subordinate court in Allahabad’s high court in order to give the appellant a claim of the reward. So, this was an application for review against B Shoe Prasad ‘s judgment and order, Cownpore’s court judge of small cases.

Appellants

The appellants strongly claimed that the task was performed, and the performance of a task would be enough to get a reward. It is not relevant that the person performing the act should or should not have knowledge of the reward associated with it. Therefore, the plaintiff is entitled to claim the reward for his specific act.

Respondents

They argued that both approvals of an offer and knowledge of the offer must exist to call it a contract. And the complainant at the time of the performance was unaware of the offer and added reward to it. This is therefore not a legal contract, because the acceptance has not been approved. Therefore, the plaintiff has no right to earn any reward for his performance.

Judgement

The subordinate court held that the complainant will not receive the compensation because (1) Offer was made after the plaintiff left, and (2) no subsequent promise was made to pay the reward.

Them, the Allahabad High Court held that the plaintiff was not entitled to any remuneration because

1. To call it a contract, knowledge and consent is required on a proposal.

2. The complainant had been unaware of the reward for the specific act.

3. Since the plaintiff had no idea of the offer at the time of the performance. So, it can not be said that he accepted the offer and therefore, no contract exists.

The appeal was dismissed by the Honorable High Court of Allahabad, and it was held that the complainant was not entitled to any reward for finding the missing child.

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This article has been written by Nimisha Mishra, a second-year student of NALSAR University of Law. In this article, the author has done the comparative study among the USA, UK and India regarding the defamation law and chilling effect.

INTRODUCTION

Other than life, the thing that man most cares about is his reputation. Men’s reputation is what defines his social position in the society.

In recent times defamation issues are in limelight because of the active media. Media has freedom of speech and expression under Article 19(1)(a) which empowers it to publish and generate information freely. The data broadcasted by the media must be factually correct in order to enjoy their right to freedom of speech and expression.

Defamation

“Defamation is an offence of injuring a person’s character, reputation or fame by false or malicious statement in front of the third person”. Here injury must result in loss of reputation and mere injury to feelings is not an injury. Truth is a defence of defamation. A right-thinking member of the society may avoid him because of the defamatory statement he heard about him.

The aim of defamation law is to protect an individual’s character or feelings from unwarranted or malign attack or statement. Defamation is an internationally recognized ground to restrict freedom of speech and expression. Till the time statement is factually correct it will not be considered as defamation however harsh it may be.

Origin of Chilling Effect

Origin of the chilling effect is dated back from the age of Stalin. In the initial days, any kind of dissent opinion of the ruling government was strictly condemned and hence the chilling effect was heavily propagated.

The chilling effect is a legal action taken by the court or the legislature. In this effect, the court discourages the party from exercising his lawful right, say freedom of speech and expression, by threatening legal sanctions. These legal sanctions are generally of such nature which discourages or threatens people from exercising their legitimate right.

Consequences of Chilling Effect

The chilling effect is a negative deterrence to prohibit from exercising the right to freedom of speech and expression. It is not censoring of free speech by the government, it generally has an impact of self-censorship. People are deterrent of the repercussion that the statement they are publishing may be factually incorrect. To be on the safer side, citizens generally refrain from any kind of engagement from the legal discourse.

The chilling effect varies from the jurisdiction of different nationalities depending upon the resource and knowledge available. This is done in order to suppress the right of an individual when they are unreasonably exercising their lawful rights. Almost every country has a defamation law, it may be with different names such as slander, lese majeste, libel, insult, calumny and so on. The defamation law in the United States of America, United Kingdom and India vary significantly in some aspects. The challenge of the chilling effect is to provide evidence to prove negative consequences of the particular published content.

Comparative Study among UK, India and US

United State of America

In the United States (US), defamation law is much less plaintiff-friendly as compared to its European counterpart due to the enforcement of the First Amendment. The concept of the ‘chilling effect’ was developed in First Amendment cases in the US, but has spread to other jurisdictions to describe an illegitimate threat to freedom of expression in defamation cases.

Chilling effect is in direct violation of the First Amendment of the US constitution and hence rules are being made to discourage the enforcement of this effect. In America, protection from defamation is protected by Libel Law. With the passing decades, the chilling effect in the US is discouraged in order to promote the free flow of public discussion which is in the public interest.

People in the USA are of the belief that limits on the liability of defamation will make the free flow of information possible. The constitution law of defamation in the USA is hanging between the interest in protecting the victims of defamation and interest in promoting the free flow of ideas and information.

India

In India, defamation law is punishable under Section 499 of the Indian Penal Code. This law has been further extended to electronic items because of the growing social media; there are larger chances of defaming the public in social media platforms, where there is greater coverage to reach masses.

Cyber defamation is recently being acknowledged by society. This cyber defamation occurs when an electronic device like a computer or mobile phone connected to the computer is used as a medium or a tool to defame a person. This is a more serious crime because of its mass coverage; there is a high probability that information could reach a large number of people in a very short span of time.

Surprisingly in India, the chilling effect has no foothold. The main reason behind that is the reasoning that the chilling effect may have negative consequences in the way that it can discourage people from entering into a healthy debate. Therefore in India, it is considered more reasonable to consider defamation under civil suits and claim heavy damages for the injury caused to reputation, rather than charging under criminal provisions and thwarting free speech.

United Kingdom

In the United Kingdom, criminalization of libel is abolished as it was considered as anachronistic. There are reforms being made to abolish the chilling effect since most of the times it results in censorship and restriction in free speech. It is also important to abolish this effect since this process consumes a lot of money of the claimant. This disadvantage provides an edge to the rich party which results in injustice.

The United Kingdom has decriminalized the defamation law and also set an example to the countries, where defamation is still criminalized, that criminalization of defamation is no longer necessary in the modern world. In many countries where dictatorship is in practice, the ruling party uses force and suppresses the voice of those who try to speak against them.

The concept of absolute is very prevalent in common law countries. The absolute privilege limits the scope of common law defamation. The concept of absolute privilege applies to any courtroom statement relevant to the subject matter of the proceeding.

Remedy to Strengthen Defamatory Laws

Defamation is a serious issue and with the rising acknowledgement of people regarding the reputation, need to be taken into consideration. Some of the measures that could be taken to strengthen the defamation law include protection of published data in academic journals. There should also be the protection of those published reports and materials which is believed to be of public interest.

The old laws on libel had been criticised for being outdated, costly and unfair – the new law seeks to ensure effective protection for freedom of expression and encourages open and honest public debate, whilst still protecting those whose reputation has been unjustly attacked.

Conclusion

Greater clarity in research, policymaking and law might be achieved through specificity about what is known as the chilling effect is asserted and ideally, evidence of its existence. If this is properly implemented it will help in the formulation of better laws and legal processes relating to human rights and communication.

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This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the Performance and Frustration of Contract.

INTRODUCTION

The contract imposes a legal obligation on the contracting parties to fulfil their mutual obligations and continues to do so until the contract has been concluded or terminated. The most normal and common way to discharge a contract is to execute it. A person performing a contract by the terms of the contract shall be relieved of any additional obligations. The doctrine of frustration comes into play when the contract becomes impossible to perform, after it has been concluded, because of circumstances beyond the control of the parties.

Performance of Contract

The term ‘Performance of the Contract’ means that both the Contractor and the Contractor have fulfilled their respective obligations under the Contract. For example, A visits a stationery shop to buy a calculator. The shop assistant delivers the calculator and A pays the bill. The contract is said to have been concluded by mutual performance. Section 27 of the Indian Contract Act says that “The parties to the contract must either make or agree to make their respective promises, unless they are exempted or excused under the provisions of this Act or by any other statute.”

Types of Performance

1. Actual Performance

If the contractor has fulfilled his obligation by the terms of the contract, the promise is said to have been made. Real performance provides discharge to the contract and the responsibility of the contractor ceases to exist.

2. Substantial Performance:

It is where the work decided is almost over. The court then orders the payment of the money but deducts the sum needed to correct a minor existing defect. Substantial performance is applicable only if the contract is not an entire contract and is severable. The reasoning behind the development of the doctrine of significant performance is to prevent the risk of one party violating its obligations by arguing that the contract has not been completely enforced. However, what is perceived to be a significant accomplishment is a question of fact to be determined in both cases. It will depend to a large extent on what remains undone and its value compared to the contract as a whole.

3. Partial Performance

That is where one of the parties has entered into the contract, but not fully, and the other party has demonstrated willingness to accept the part of the contract. Partial performance can occur where there is a deficiency in the delivery of goods or where the service is not completely performed.

Concept of Frustration

Contracts entered into between the parties impose contractual obligations on both parties for the performance of the contract. However, many times unforeseen or unforeseen occurrences occur which make the performance of contracts impossible due to no fault of either party. In such cases, the contract is said to have been frustrated. Frustration of the contract results in an involuntary extinction of the contractual obligations of both parties and, consequently, the parties are relieved of their rights and obligations.

Factors of Frustration of Contract

1. Impossibility of Performance

The doctrine of the Frustration of the contract arises from the impossibility of an act. But the principle is not limited to physical impossibilities. In the case of Satyabrata Ghose vs. Mugneeram Bangurn & Co & Anr, it was held that ‘impossible’ was not used for physical or literal impossibility in Section 56 of the Act. The performance of an act may not be impossible, but it may be impracticable and useless, and if an untoward event or a change of circumstances completely upsets the very foundation on which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act that he promised to do. Therefore, if the object of the contract is lost, the contract will be frustrated.

2. Change of Circumstances:

The Courts declare disappointment with the contract on the ground that it is subsequently difficult to find that the entire intent or foundation of the contract has been compromised by the interference or nature of an unwanted event or alteration of circumstances beyond what was envisaged by the parties at the time they agreed. The modified circumstances make the execution of the contract unlikely and the parties are absolved from the further performance of the contract because they did not guarantee an impossibility.

3. Loss of Object

The impossibility provided for in Section 56 of the Act is not limited to that which is not humanly conceivable, as held in the case of Sushila Devi vs. Hari Singh. The Court held that if the performance of the contract is impracticable or meaningless in the light of the object and intent of the parties, it must be held that the performance of the contract has become impossible. But the supervening incidents should take away the very foundation of the contract, and it should be of such character that it is at the heart of the contract. As was the case with the lease of property, which, after the unfortunate partition of India and Pakistan, left the disputed property situated in India to Pakistan, making the terms of the agreement impossible.

CONCLUSION

Performance in its literal sense implies the completion of a task or action. Performance in its legal sense means the fulfilment or satisfaction of the obligations of the parties which they have against the other party by the contract they have entered into and in Frustration of contract the contract is void and discharges the contractual obligations of the parties. Nevertheless, Section 65 of the Act provides that, when an agreement has become void, the person who has received some benefit under that agreement is ‘bound’ to restore it or to make restitution for it from whom it has been received. The problem arises as to how this provision even refers to contracts made invalid by dissatisfaction. Frustration of the contract takes place beyond the responsibility or power of either party and, thus, a party should not be made to pay in such a situation. However, the failure to provide adequate compensation may also result in losses for the other party.

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Mr. Govind Chaturvedi is an experienced lawyer with a demonstrated history of working in the law practice industry. Mr. Govind Chaturvedi is currently working with L.S. Davar & Co. He is skilled in Intellectual Property rights, Corporate Law, Commercial Litigation, Transactional and Legal Writing.

Q. How has been your journey as a Lawyer?

A: Overall today where I stand and looking back, I can say that the Legal Profession has its extreme lows and its immense highs and I have experienced both. There are various stages that if you are a first-generation lawyer need to go through, the first being that you need to understand how a lawyer thinks, which is a different form of analysing facts and giving a conclusion. You learn to think in terms of most things of as arguments and also the evidence you will need to back it up.

I have had days in Court wherein I have had great orders and exceeded my own expectation and have also been part of judgements wherein we did not get exactly what we wanted but were able to do more than justice to the matter. Hence, it is important to do your research and be very well versed with your facts as you never know which one fact might change the entire course of the case. However, looking back I do realise that all the highs and lows play an important part in helping you grow both as a lawyer and as a person.

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?

A: Well, I truly believe that there is a huge gap between what is taught in law school and what the profession of law actually is. When someone graduates from law school it actually feels like they are still novices and all the internships and good grade do not account for much. I was never a good performer in School or Law School and the only academics I can boost about is getting 99 percentile in Common Entrance Test. I performed pretty average in Law school and secured a first division, which I was very happy about, but I use to come home and read my law books every day for 2-3 hours, not because of anything else but because I enjoyed it.

However, to answer your question good grades do not translate into success in the career or have an impact, I personally do not think so. Rather, I would advice students to do internships and to learn as much as they can about everything around them and have a sound general knowledge and also have a strong base of knowledge about other industries as well, as when you are doing matters this knowledge is very helpful. Law School is when you have the time, once you are working you need devote your entire day, week after week to learning law and its procedures. So, while maintaining a decent percentage is alright, good grades do not guarantee you any success in the career as that depends completely on your intelligence, ability to think on your feet and ability to deal with situations.

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

A: Well, there are too many and completely depends on what you want to do in law but for litigation, I would state that the following are important:

Confidence, you should be able to state an argument so convincingly that you can get people to agree with you
Patience and perseverance, not all matters or situations will turn out as you like so be patient and keep persevering forward
Research skill, you should be able to pull up case law to support your case
Listening skills, it is a skill that many of us do not have and the problem is that it is very essential that you are able to understand the pulse of a person; whether it’s your client, judge or the Opposite counsel
Client care; as a client are essential for any lawyer we should be able to deal with them effectively and with politeness
Accountability; if something does go wrong in the matter you should be to take responsibility and realise wherein you went wrong and correct it for the future.
Creativity, this I feel is one of the most important skills for any lawyer as you will have limited resources on your side and you need to be able to work with them.

Additionally, I owe a lot of my thinking patterns to my elder brother: Rahul Chaturvedi who at a young age inculcated in me the critical thinking and logical arguments, he also inclined me to read different varieties of books at an early age and got me into the habit of writing which enabled me to put my thoughts in written and verbal form more effectively, which I can say helped me in law immensely. I personally was a vociferous reader and use to love reading books I found fascinating, when I did step into the law profession I was very well versed with a lot of key facts about other industries, so being well-read in general will also get you further than most other things. So, if nothing else I would suggest students to read a book monthly if not weekly to start with and keep increasing the number of books continuously.

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

A: To be honest, yes NLU students do get more preference, however, there is no need to get disheartened as I personally believe interning with big law firms does not teach you much.

Rather, Non-NLU students should focus on developing skill sets and creating a good portfolio, I would rather suggest students to intern in small firms and with lawyers, wherein you will be entrusted with more tasks and can learn more.

However, if students still want to intern with big firms for the experience of it, I would suggest to the non-NLU students that if they have certain extra skill-sets on their CV, they have a better chance of being taken for an internship, which could be an online certification course or a project they have undertaken, like I ran an NGO in Law School and use to organise blood donation camps, wherein we had created a tripartite agreement between our organisation, the blood donating place and the Red Cross. If nothing else it helped me understand the world of NGO’s and how they worked and how to also develop people skills, we also did other drives like donation drives but our main aim was Blood Donation Camps.

These activities also ensure that students can utilise their time in Law School well by actually working on their own development. Moreover, I truly believe today’s lawyers are blessed as in this day and age of the internet we have access to all types of information so students in law school invest this time well and use it wisely. Once, a Non-NLU student will have these additional attributes on their CV it will make them stand out and could help in securing the internships, I also suggest reaching out to the Alumni working in these big firms as they can be the most helpful, as I tend to get students who reach out to me on Linkedin pretty often and I am more than happy to guide them or at least secure an internship with the Firm for them I am working at.

Q: How hard it is for a young professional to set up a career in the field?

A: The brilliant thing about law is that all you need is your brain and the knowledge and no other resource, it is for the lawyer to want a fancy office or a brand they want to grow. But, honestly. you can even be sitting underneath a tree and client will come to you if you are good at what you do. However, there is an initial struggle I would say for 5 years at the very least for generating clients and creating a stable client base, what I see is that a lot of young lawyers want to set up their firm without working under a senior lawyer, I suggest against that, as you need work with someone senior to be able to have the guidance. If they do not want to work with a senior lawyer, find someone who will let you do your own matters simultaneously. I also believe that the bond between a senior and a junior lawyer is very sacred and every lawyer should have that experience to evolve both professionally and personally,

Q: You have recently done a webinar regarding social media laws; How much do you think social media is legally backed in the country?

A: Well, the problem that most social media platforms that face in India is that they want to be in the ambit of an intermediary, in order to avoid liability if anything goes wrong. What this does is that they cannot interfere with what is being uploaded or cannot screen it, as if they were to do that they would become an active participant and could be held liable in a court of law. This point has been elaborated in a number of cases by the Delhi High Court. So, right now the only laws that do exist are for intermediaries and since the Social media platforms are immune from them due to their own non-interference they do tend to escape liability. There are no laws in India for Social media per se specifically as of now, but social media platforms are largely regulated by established laws like defamation, cybercrimes etc.

The Government is in the process of changing the same and they recently on the 24^th of December, 2018, released the Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 (“the Draft Rules”) to amend the existing Intermediaries Guidelines. These Draft Rules sought to introduce requirements on intermediaries like – tracing out of originator of information for assistance to law enforcement, deployment of automated tools for proactive filtering of unlawful content, a takedown of illegal content within 24-hours, and mandatory incorporation of companies having 5 million + users in India (among other things).

However, the same has been met with criticism as the said rules tend to go against a lot of established norms like “Right to privacy” enshrined in KS Puttaswamy v. UOI due to the traceability requirement under Rule 3(5), “Pro-active filtering of content” which would move the Intermediary liability from a passive entity to an active participant as discussed earlier, Appointment of Nodal Officer under rule 3(7) moreover as the Social media platforms do have their own grievance officers.

However, the flip side is also that the investigation agencies usually tend to hit a dead end while investigating cases for cyber crimes as most Social Media platforms tend to not adhere to Indian laws. So, whereas there is a need for these laws as none exist right now, there is a very fine balance that needs to be made as tilting to either side could have disastrous consequences for the public in either case.

Q: Do find any major loophole in social media laws of the country? And how that can be addressed.

A: I think like I said no particular law exists for these entities and certain modifications can be made to existing precedents like non-filtering of content tends to lead to spreading of fake news that as we have seen can lead to deaths, obscene material being shared and so on. So, the non-interference by the Social media platforms can be modified for certain particular things i.e. fake news, revenge porn etc as they have done the damage before they are even caught or reported.

Moreover, these social media platforms have an unregulated policy of closing down accounts without even giving the reason to the user. This is especially bad for Social Media Influencers who tend to many times loose followers to the tune of 1 lakh to 10 lakh followers and start afresh, this can be addressed by the Social Media Platforms providing clear guidelines and also sharing the data for closing down of the account as Influencers tend to utilise this for monetary gains and have a right to know.

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

A: Law is a profession that will always be relevant. Moreover, there are enough fields in law i.e. land laws, matrimonial laws, Intellectual property rights etc that it has the bandwidth to accommodate anyone. However, I see a lot of juniors jumping straight into a particular field and saying they want to specialise in it. I would suggest to them that they should not restrict themselves so early in their career, I started with practising family law, consumer law and income tax law and use to argue before the Ghaziabad District courts, Consumer forums and Income Tax Appellate Tribunal then moved on to doing Commercial litigation and argued extensively in the Supreme Court, Lower courts and the High Court and worked on matters ranging from Government work orders, Arbitration to 138 Negotiable Instruments act matters. I was also involved in a software infringement case, Domain name dispute and a family dispute over a trademark, when I developed an interest in Intellectual property rights then moved on to be an expert in Trademark Prosecution and Opposition and thereafter now having gained an interest in Social media laws am working towards that, all my previous experiences have helped in the following fields as I have grown. So, I tell young lawyers to give themselves the chance to practise and also explore other options in law.

This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain about the Evolution of the Concept of Ombudsman.

Meaning of Ombudsman

“Ombudsmen” means “a delegate, agent, officer or commissioner”. A detailed definition of “Ombudsman” isn’t possible, but Garner appropriately describes him as “an officer of Parliament, having as his primary function, the duty of acting as an agent of Parliament, with intend of safeguarding citizens against abuse or misuse of administrative power by the executive”. The “Ombudsman” is thus an official person appointed to receive and inspect complaints of citizens against the govt. and its officers. In other words, if there are irregularities in the functioning of the public administration, the citizens hold the power to register a complaint against the concerned authority. He is an officer of parliament.

He is appointed by Parliament and thus, he’s not an official within the administrative hierarchy. He is higher than party politics and is in a place to think and decide objectively. There is no intervention even by Parliament in the discharge of his duties. He prepares a report to Parliament and sets out reactions of citizens against the administration. He also makes his own recommendations to eliminate the causes of complaints. Very wide publicity is given to those reports. All his reports are also published in the national newspaper. Thus, in short, he’s “watchdog” or “public safety valve” against maladministration, and therefore the “protector of the small man”.

Origin

The word ‘Ombudsman’ is of Swedish root. It was first utilized in its modern sense in 1809 when the Swedish Parliament well- established the office of Justitieombudsman, which was to focus on citizens’ interests in their dealings with govt. Ombudsman was first introduced in Sweden by King Charles XII in the 18th century. The first Swedish ombudsman was Lars Augustin Mannerheim. For quite 100 years, the office remained confined to Sweden and would hardly create any ripple for other countries. Its contagion effect spread in the 20th century when it was adopted within other Scandinavian countries, in Finland (1919), Denmark (1955) and Norway (1962). The introduction of the Danish ombudsman, in 1955, marked the start of the worldwide interest in the ombudsman schemes. After assuming as the very first Danish Ombudsman, Professor Stephen Hurwitz, begin to write and lecture about his office in the English language. This activity heated the interest, which readily spread within the Anglo-Saxon world as more and more article begin to come out about ombudsman in English language publications. The establishment of an ombudsman in New Zealand, the first common law country, in 1962, set off an excellent deal of interest in the ombudsman concept throughout the world.

In England first Ombudsman is established in 1967 by parliamentary commissioner act of 1967 and it is called as Parliamentary Commissioner. He appointed by the govt. on the recommendation of the prime minister and hold office for 65 years.

In the US, there’s no undivided federal ombudsman service. The role of handling complaints against federal authorities has got to some extent been unofficially incorporated into the role of the US Member of Congress. This informal job has become increasingly time-consuming. It is subject to criticism because it meddles with a legislator’s initial duty, namely to read and be knowledgeable about a bill before casting his or her vote. Though there’s a tone of Ombudsman in the USA no Ombudsman has infiltrated the administration except within the 3 states of Hawaii, Nebraska and Oregon for local govt. agencies. Since 1963, in every session the of the congress a bill has been introduced to determine an establishment like Ombudsman was taken in account by the members of the Congress as a haul on their status and power for they consider it their sole prerogative to represent their constituencies and to handle the grievances of the people. However, the congressional investigation and grievances cells established in various departments, just like the police review Boards, discharged the work of Ombudsman.

In India, in 1962, M.C. Setalvad suggested the idea of establishing an Ombudsman at the All India Lawyer Conference. Here, the Ombudsman is known as Lokpal. The word Lokpal is originated from the Sanskrit word ‘Loka’ meaning people and ‘pala’ meaning protector or caretaker. Together it means the protector of the people. The term Lokpal was brought up in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate about grievance mechanisms. An Administrative Reforms Commission (ARC) was founded on 5 January 1966 under the Chairmanship of Shri Morarji Desai. It recommended two-tier machinery:

Lokpal at the Centre and
one Lokayukta each at the State level for redressal of people’s grievances.

An attempt to establish Lokpal (ombudsman) in India started in the year 1968 when the Lokpal and Lokayuktas Bill, 1968 was introduced in the Parliament. Due to various circumstances, no conclusion could be drawn in various attempts. The demand for setting up the institution of Lokpal and Lokayukta got new impetus in 2011 when social activist Anna Hazare went on fast unto death to push for the “Jan Lokpal Bill” proposed by the civil society in India in view of all-pervasive governance deficits in the country. Finally, this law got enacted and became law through a notification in Gazette in the year 2014. The Act is known as the Lokpal and Lokayukta Act, 2013.

Powers and duties

The Ombudsman analyses and investigates into complaints made by the citizens against the abuse of discretionary power, maladministration or administrative inefficiency and takes suitable actions. For that purpose, very wide powers are conferred to him. He has access to departmental files. The complainant isn’t required to steer any evidence before the Ombudsman to prove his case. It’s the function and duty of the Ombudsman to assure himself whether or not the complaint was justified. He can even act Suo Motu. He can grant relief to the resentful person as unlike the powers of a civil court, his powers aren’t limited.

Defects

Of course, there are some arguments against setting up of the office of the Ombudsman which are as follows: –

It’s argued that this institution may prove successful in those countries which have a relatively small population, but it might be unsuccessful in populous countries, like the US or India, because the number of complaints may be too large for a single person to eliminate.
It’s also said that the success of the institution of Ombudsman in Denmark owes an excellent deal to the personality of its first Ombudsman – Prof. Hurwitz. He took a keen interest within the complaints made to him and investigated them personally. Prestige and private contact would be lost if there are several such officers, or if there’s a single officer who has always been depended upon a large staff and subordinate officers.
According to Mukherjee J, in India, this institution is not suitable. He expressed it as “an accusatorial and inquisitional institution – a mixture unprecedented in democracy with traditions of an independent judiciary”. It’s an “impracticable and disastrous experiment” which cannot fit into the Constitution.

Conclusion

In a democratic govt., it is expected that the subjects have adequate means for the redress of their grievances. Since the present judicial system isn’t sufficient to deal with all cases of injustices, an institution like the Ombudsman may help in doing full and complete justice to resentful people. But an Ombudsman is not a “panacea for all evils of bureaucracy.” His success depends upon the existence of a reasonably well-administered State. He cannot deal with the situation where the administration is riddled with patronage and corruption.

The Indian Parliament so far has not enacted any Act though a proposal to constitute an institution of Ombudsman (Lokpal) was made by the Administrative Reforms Commission as early as in 1967. Some states, however, have enacted statutes and appointed Lokayukt

This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “Emergency Provisions” in the Indian Constitution and is qualified in its entirety by reference to the Constitution of India.

INTRODUCTION

In the words of the Black Law’s Dictionary, an emergency can be understood as a ¨situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation¨. According to it, a situation of emergency arises due to the failure of the government machinery which demands immediate action from the authority.

While carefully laying down the constitution for the country the wise constitution-makers of the country made sure to have the back of the country even during the crisis of an emergency. Even though the country India is well known for its harmonious working as a quasi-federal nation, it assumes an entirely Unitary role under the constitution in case of an emergency.

The provisions for National Emergency have been laid down from Article 352 to 360 in the Constitution of India. These Articles Prescribe the following:

Article 352: Proclamation of Emergency or National Emergency.
Article 353: Effect of Proclamation of Emergency.
Article 354: Application of provisions relating to the distribution of revenues while a proclamation of emergency is in operation
Article 355: Duty of the Union to protect States against external aggression and internal disturbance
Article 356: Provisions in case of failure of constitutional machinery in State.
Article 357: Exercise of legislative powers under Proclamation issued under Article 356.
Article 358: Suspension of provisions of article19 during Emergencies.
Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies.
Article 360: Provisions as to Financial Emergency.

NATIONAL EMERGENCY

The provision for declaring National Emergency has been provided under Article 352 of the Constitution of India. It provides that if the president is satisfied that there exists a grave situation, wherein the security of the country is threatened on the grounds of wars, external aggression or armed rebellion, he can proclaim emergency to that effect.

Here, the term ¨War¨ is used to describe a situation where a country declares a formal war against India and a violent struggle using armed forces breaks down, in such a case the President of India can impose the National Emergency.

When the term ¨External Aggression¨ is used, it is used to indicate a situation when a country unilaterally attacks India without any formal declaration of war. If such a situation terrorizes the nation then the President of India can impose National Emergency.

The term ¨Armed Rebellion¨ is used to describe when a group of people rebel against the present government which will lead to the destruction of lives and property. In such a case as well the President can impose a National Emergency.

The term ¨Armed Rebellion¨ was incorporated through the Forty-Fourth Amendment Act, 1978 after substituting the term ¨Internal Disturbance¨.

Under this provision an emergency can be declared over the whole territory of India or any part of it and an emergency can be declared by the President only if written advice is received by the cabinet.

It is necessary to acquire a special majority, of 2/3rd present and voting members, to approve an emergency resolution. This proclamation has to be approved by both the houses of the parliament within one month from the date of issuance or else the proclamation shall cease to exist. In case the Lok Sabha dissolves without approving the proclamation, then it has to be approved by the lower house within the first thirty days of its reconstitution, and the Rajya Sabha should approve the resolution in the meantime.

Once this resolution is approved then the emergency can operate for a time period of six months and this time can be further extended for a longer duration subject to approval after every six months. It is important to note that there is no maximum limit till which a National Emergency can be extended.

During a National Emergency the rights guaranteed under Article of the constitution get suspended under Article 358 and other Fundamental Rights, except Article 20 which deals with protection in respect of conviction from offences and Article 21 which deals with the protection of life and personal liberty, get suspended too under Article 359 of the Constitution.

In case of a National Emergency, the State Governments falls under the direct control of the Central Government and has to work as per the directions of the Central Government.

The President may suspend the distribution of financial resources between the centre and the states and he assumes power over the objects of the State List but this power ceases to exist on the revocation of the emergency or after the passage of 6 months.

A National Emergency has been imposed a couple of times in the territory of India, which includes:

The emergency was imposed for the first time during the Indo-China war by the then President, Shri. Sarvepalli Radhakrishnan, in October 1962
The emergency imposed during the Indo-Pakistan war by the then President of India, Mr. V. V. Giri, from December 3, 1971 to March, 21, 1977. This war lasted for a total of 11 days and was considered the shortest war in the world but at the same time, the third emergency got imposed.
The third emergency imposed by the then Prime Minister, Mrs. Indira Gandhi, with the consent of the President, Mr. Fakhruddin Ali Ahmed, due to clash between the Legislature and Judiciary in the nation. This emergency lasted for 19 months from June 25, 1975 to March 21, 1977.

The power to disapprove a resolution of national emergency has been entrusted with the Lok Sabha and it can, at any time, disapprove the operation if not less than 1/10th members of the Lok Sabha submit in writing to the speaker if the house is in session, or to the president, then a special session of Lok Sabha shall be convened with 14 days and if the resolution is passed then the President will have to revoke the National Emergency implemented.

STATE EMERGENCY

Article 356 of the Constitution of India has laid down the provisions for imposing a State Emergency. It states that the President of India can impose a State Emergency, also known as President´s Rule, and become the executive head of the state if he is satisfied with the report of the Governor of the state which elaborates the failure of the Constitutional machinery of the state.

In case a State Emergency is imposed, the administrative machinery of the state gets transferred to the Union and the Governor of the state starts working under the name of the President who becomes the executive head of the state. During this period, the State Legislative Assembly may be suspended or dissolved and the Parliament presumes the role to make laws over the 66 subjects dealt with in the State List and every money bill needs to be referred to the President first while all the State Legislative Assembly ministers get barred from performing any functions.

The imposition of a State Emergency may extend from 6 months to a maximum of 3 years, subject to extension of the period if it gets approved by both the House of Parliament within two 2 months from its date of issuance or it shall cease to exist. In case the Lok Sabha dissolves when the proclamation was issued, then the resolution has to be approved within 30 days from the day the lower house reconstitutes, and the Rajya Sabha must approve the resolution in the meantime.

It is important to note that the functions of the State Judiciary do not get affected by the imposition of a State Emergency and it shall continue to act independently, which shall include entertaining petitions against the Presidential Rule, if any. This particular provision was discovered in depth when in 2016, the Congress Government decided to approach the High Court of Nainital against the State Emergency imposed in the state. In this case, the High Court gave its verdict in the favour of the Congress Government and their government was restored in the state. Afterwards, the judgement was upheld by the Supreme Court of India as well.

In India, State Emergency has been imposed 126 times in total, under different circumstances like:

When the prescribed law and order was not being followed in the state.
In cases of failure to elect a Chief Minister by the Legislature of the State.
When the coalition government in the state collapses.
In case of postponement in the state election due to justified reasons

For the longest time, a President’s Rule was imposed in the state of Jammu and Kashmir, which has always been a target for many external elements, for a period of six years and 264 days from January 19, 1990 to October 9, 1996, to control the situation in the state which was facing a military threat from Pakistan.

Another State Emergency to look at is the President’s Rule imposed in Punjab for a time period of 4 years and 259 days to control the situation created due to the Khalistan Commando Forces which were involved in the genocidal attacks on the Hindu.

Some landmark judgements that one should consider while discussing Article 356 are:

The case of State of Rajasthan and Ors. v. Union of India (AIR 1977 SC 1361), where imposing state emergency continuously as an arbitrary act was considered. The court held that the court holds no power to review the proclamations passed under Article 352, and due to this reason imposing State Emergency continuously becomes arbitrary.
In the case of S.R. Bommai v. Union of India (AIR 1994 SC 1918), the Supreme Court held that under Article 356 the President holds restricted powers and they are subjected to judicial review as well. So, the Supreme Court holds the power to declare an emergency void even if it receives the approval of both the Houses of Parliament.

FINANCIAL EMERGENCY

Article 360 provided under Part XIII of the Constitution of India deals with provisions to declare a Financial Emergency in the territory of India. Under this section, it has been stated that, if the President of India is satisfied that a situation of financial instability has come up in the country or any part of the country then he can proclaim a Financial Emergency.

During a Financial Emergency, the Parliament of India possesses the power to cut the budgets given to the states and reduce the allowances or the salaries of the employees working under the Center or the State Government.

To impose a Financial Emergency it is important that the resolution needs to get the approval of both the Houses of the Parliament or else the emergency imposed shall cease to operate after two months, from the date of issuance. In case within two months the Lok Sabha dissolves, then it is important that the proclamation has to be approved within thirty days from the first day of seating after it reconstitutes, and the Rajya Sabha must approve the resolution in the meantime.

So far Article 360 has never been implemented in India, however, the country had a close call in 1990 but thankfully the situation was brought under control by the Government of India after the New Economic Policies were launched by Dr. Manmohan Singh and in July of 1991 the Reserve Bank of India pledged tonnes of Gold with the Bank of England and the Union Bank of Switzerland to raise $400 Million.

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INTRODUCTION

Definitions of Law

FUNCTIONS OF LAW

1. SOCIAL CONTROL

2. DISPUTE SETTLEMENT

3. SOCIAL CHANGE

CONCLUSION

INTRODUCTION

Judicial Pronouncements

A.H. Wadia vs Income Tax Commissioner, Bombay, 1947

GVK Industries Limited vs. Income Tax Officer, 2011

State of Bombay vs RMDC

State of Bihar vs Charusila Dasi:

Conclusion

INTRODUCTION

Origin

Equity under the Indian Legal System

Conclusion

INTRODUCTION

Necessity: As a Defence

Necessity: In Indian Penal Code, 1860

Essentials: Necessity

Restrictions: Necessity

Case Laws: Necessity

Carter v. Thomas, 1976

Olga Tellis v. Bombay Municipal Corporation, 1985 SCC 545

Dhania Daji, (1868) 5 BHC (CrC) 59

CONCLUSION

Facts of the case

Appellants

Respondents

Judgement

INTRODUCTION

Defamation

Origin of Chilling Effect

Consequences of Chilling Effect

Comparative Study among UK, India and US

United State of America

India

United Kingdom

Remedy to Strengthen Defamatory Laws

Conclusion

INTRODUCTION

Performance of Contract

Types of Performance

1. Actual Performance

2. Substantial Performance:

3. Partial Performance

Concept of Frustration

Factors of Frustration of Contract

1. Impossibility of Performance

2. Change of Circumstances:

3. Loss of Object

CONCLUSION

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Meaning of Ombudsman

Origin

Powers and duties

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NATIONAL EMERGENCY

STATE EMERGENCY

FINANCIAL EMERGENCY

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