Month: July 2020

INTERNATIONAL WEBINAR ON MASTERING THE PSYCHOLOGY OF MEDIATION

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About us

Mediate Guru is a PAN India initiative, led by students across the nation from distinguished universities. 

The aim of the organisation is to bridge the gap between general public and litigation. 

Here our organisation comes into picture. We are creating a social awareness campaign for making mediation as a future of alternative dispute resolution to provide ease to judiciary as well as to the pockets of general litigants.

About the Speaker

Ms. Amy L. Lieberman, Esq 

Amy Lieberman, Esq. is a mediator who resolves workplace and business conflict, in the conference room and in the courtroom. Amy was ranked #1 in ADR in Arizona, by Ranking AZ’s Best of Business 2013. The author of Mediation Success: Get it Out, Get it Over, Get Back to Business, available on Amazon.com, Amy has mediated and resolved over 1000 employment disputes and related commercial matters, including lawsuits, class actions, EEOC charges, internal DRP matters, claims asserted in demand letters, executive and managerial conflict, and conflict between business partners. 

Amy advises and trains managers, human resource professionals and senior level executives on employment issues and resolution of workplace conflict.

Ms. Lieberman is recognized both locally and nationally for her professional skills in resolving disputes. She has repeatedly been selected by her peers as one of the “Best Lawyers in America” in ADR (Alternative Dispute Resolution).

Who is it for?

For all Law Students / Academicians and Practicing Professionals.

Note: E-Certificate will be provided to participants who will fill the attendance form at the end of the session.

Location

The platform will be Google Meet / YouTube Live.

Date and Timings

The Webinar will be conducted on 30th July, 2020.

9:00 PM Indian Standard Time

8:30 AM Pacific Standard Time

4:30 PM British Summer Time

Registration Procedure

click here: https://forms.gle/aobYve7rr5ktPUwz7

Or visit us at: 

https://www.mediateguru.com/event-details/international-webinar-on-mastering-the-psychology-of-mediation

Registration Fees:

Kindly note there is no registration fee for the webinar. 

Deadlines

The registration will close on 29th July 2020-07-08

Contact info:

For any query mail us: 

admin@mediateguru.com 

Event Coordinator: 

Ms. Garima Rana

+91 8800 474 226

Roadmap to Become a Finance and Insolvency Lawyer After Law School by Lexpeeps: Register Now!!!

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ABOUT US:

Lexpeeps is totally dedicated to the legal fraternity law professionals get an opportunity to flourish their career in a better way. Lexpeeps organises various events like debates, seminars of its own and also organises the major law school activities on tie-ups with leading law school. Lexpeeps is not only limited to managing the legal events but it also provides internships to law students where the law professionals come in touch with each other and grow by associating with the company.
Lexpeeps is also focusing on several social works like providing information and free legal aid to the poorer section of society.

ABOUT THE EVENT:

Lexpeeps.in is organising a live workshop on “Roadmap to Become a Finance and Insolvency Lawyer After Law School”. Through the workshop, students will get to know about the career prospects in Bankruptcy and Insolvency Sector.

EXPERT GUEST:

ADV. ISHITA SHARMA,

Legal Practitioner & Academic Author

Moderator:

NIDHI CHHILLAR

Additional Director Lexpeeps

Date and Time:

JULY 31,2020 4:30-5:30 P.M.

Registration Procedure:

Registration Fee: Totally Free

Registration Link:

https://docs.google.com/forms/d/1BDyN5WrrJYWSoGoFsi_v4XdFX8JKi6NjZxTzwjAEbQA/edit

Link to join the webinar will be sent through mail after a successful registration

Perks: Free E Certificate

Limited Seats Hurry UP (First Come First Serve Basis)

For Queries Contact Us:

Email: lexpeeps.in@gmail.com

Whatsapp: 8340132731

Economic Reservation in India

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This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of  Law, University of Mumbai.

INTRODUCTION

The Constitution Bill 2019, was introduced in the Lok Sabha on January 08, 2019, to provide reservation in higher education and public employment to ‘economically weaker sections’ of the society. The Bill was passed in the Lower House of the Parliament with only three members voting against it out of the 326 members present, and voting, and subsequently being passed by Rajya Sabha as well without any recommendations. After being approved by both the Houses of the Parliament.  The President of India also gave his assent to the Bill, the Constitution Act, 2019, came into force with effect from January 14, 2019, as notified in the official gazette by the Central Government.

The passage of the amendment was very hurried hence it has raised many doubts regarding the intention of the government. Many people are questioning the democratic accountability has raised certain doubts on the intentions of the Government, questioning democratic accountability.

The Amendment (103rd Amendment)

The provisions that have been amended by the Constitution Act, 2019, are Articles 15 and 16 wherein Clause 6 has been inserted to the Articles as follows:

“In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:

(6) Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making,—

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation will be an addition to the already existing reservations and subject to a maximum of ten percent of the total seats in each category.

“In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—\

(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten percent of the posts in each category.

Explanation –  Article 15 and Article 16, “economically weaker sections” shall be such as notified by the State on timely basis as there are many indicators which determine if one is economically weak or not.”

Eligibility Requirement set by the Government

Following is the eligibility criteria set by the government:

1.10% reservation to be provided for the economically backward section of the society

2. All the members of the family who together earn less than Rs.8 lakh per annum and all those who have less than five acres of agricultural land will qualify for the same.

3. Individuals whose families own more agricultural land, or any residential flat or area of 1000 sq. ft or larger or a residential plot of area 100 yards or 200 yards or more the same will be notified to the municipality, those people will not qualify for the same

4. It covers people from communities like Muslims, Sikhs, Christian, Buddhists, and other minority communities.

 The quota will be over and above the existing 50% reservation to the SC-ST and OBC.

Challenge

A non-governmental organization named Youth for equality and several others have challenged the amendment by way of the petition because the amendment violates the basic structure of the constitution and it exceeds the capping of fifty percent as fixed for reservations by the Apex Court.

 As there is a contradiction with the provisions of articles 15 and 16 hence it is argued that it violates the constitutional amendment 103rd. Moreover, the amendment provides for a ten percent economic reservation over and above the existing reservations, which implies that the reservation would exceed the 50 percent capping as set up by judicial precedents because the present status of reservation quota has already reached 50 percent. Another argument of challenging the constitutionality of the amendment is that of arbitrariness. 

The definition of “economically weaker sections” is unpredictable in the sense that it does not specifically provide as to what constitutes ‘other indicators of economic disadvantage’ and the definition is left for the state to be made assumptions from time to time.

Basic Structure Doctrine

In the case of I.C. Golaknath v. the State of Punjab, the Supreme Court has been saying that any provisions of the Constitution of India, which also includes the Fundamental Rights, could be amended by passing an act called as the Constitution Amendment Act, according to the Article 368. In the case of Golaknath, the previous decisions were overruled and it was also held that the Fundamental Rights which are contained in Part III of the Constitution. These fundamental rights will be excluded from the power of amendment by Article 368, thereby making the Fundamental Rights not amendable.

A full bench was established for the case of Kesavananda Bharati v. the State of Kerala, in which the “basic structure doctrine” was laid down by the Hon’ble Supreme Court of India, overruling the judgment of Golaknath in 1967. According to this doctrine, the objectives specified in the Preamble, make up for the basic structure of the Constitution and it cannot be amended for the exercise of the powers conferred under Article 368 of the Constitution. Any amendment of the Constitution which affects the basic structure is liable to be interfered with by the Court on such a ground. As the question is as to what is a ‘basic feature’ and it would be determined by the Court and in each case that comes after this case After the Kesavananda Judgment, a large number of features have been considered as the basic feature of the Constitution by various judgments.

An understanding of the basic structure doctrine makes it clear that all it requires is a basic feature, equality, and it is difficult to see how the economic reservations would damage or destroy the concept of equality. Article 15(6) and 16(6) has been formulated to eliminate discrimination based on economic status, allowing the section of people who are deprived of adequate representations in the educational institutions or jobs, hence striving towards equality and not challenging the basic structure.

CONCLUSION

The framers of the Indian Constitution, at the time of drafting the Constitution, always kept in mind the prevalent state of affairs that adversely affected the equality of the country. There has been an outsized number of underprivileged sections of individuals who have experienced social discrimination throughout their lives because they were always under the garb of the caste system and therefore the members of such so-called lower classes required an adequate representation within the society. Efforts have been made to bring these weaker sections at par with the opposite sections of the society through the policy of reservations, which is taken into account considering as positive or protective discrimination implemented in the Constitution. As the changing times today, caste no longer is the sole criterion for detecting socially backward classes because some of them have achieved economic status, thereby finding a social standing as well. However, even today poverty has always remained a barrier to attain equality because there is significant discrimination between the people of different economic statuses. The Government has through this step has taken a step ahead to eradicate this form of discrimination as it is a way of achieving equality in the nation.

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Types of Wages in India

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The article explains the various sort of wages prevalent in India. The Minimum Wages Act, 1948 governs the provisions related to the minimum wages in India which have been brought into effect by the Government of India due to the duty conferred on it by the Constitution of India, 1950.

INTRODUCTION

According to Merriam-Webster, wage is “a payment usually of money for labour or services; usually according to contract and on an hourly, daily, or piecework basis.”

“Wage is a remuneration to labour for the work done or the service rendered by it to the employer. Of all the problems that face the worker that of wage is the most vital and important to him.” 

Thus, a wage is a monetary employee compensation paid by an employer to an employee in exchange for the work done by such an employee. It can be fixed on hourly basis as well as collectively based on quantity of work or task done.

Difference between wages and salary: Wages are generally associated with the employee compensation which is based on multiplication of an hourly rate of pay with total number of hours worked. Usually, it is paid daily or weekly.

Salary, on the other hand, is also associated with employee compensation but it is based or quoted on an annual basis. Usually, it is paid on a semi-monthly or monthly basis.

Definition under the Minimum Wages Act, 1948: According to Section 2(h) of the Minimum wages Act, 1948 the term ‘wages’, “means all remuneration capable of being expressed in terms of money which would if the terms of the contract of employment express or implied were fulfilled be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance but does not include-

(i) the value of –

(a) any house accommodation supply of light water medical attendance or

(b) any other amenity or any service excluded by general or special order of the appropriate government;

(ii) any contribution paid by the employer to any person fund or provident fund or under any scheme of social insurance;

(iii) any traveling allowance or the value of any traveling concession;

(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) any gratuity payable on discharge.”

Variation in Wages

The various differences existent in wages rate or level is known as variation in wages. There are various wage varieties resulting due to political, behavioural, ethical, social and economic factors on which wage levels depend. The three types of variations or wage varieties in wage rates are:

  1. Regional variation which depicts the difference in wages in different regions of same industry as it might be due to demand and supply of the workers or standard of living etc.
  2. Time Variation implies the change in wage rates during various times such as inflationary or depression period going on in the country etc.
  3. Industrial Variation indicates that one industry may be paying differently to workers working in same industry and same kind of work i.e. Wages may differ from industry to industry depending upon nature of work, demand and supply of labour, working conditions in the industry etc.

Types of Wages in India

There are three main types of wages in India viz. Living, Minimum and Fair wages. The concept of living wages, fair wages and minimum wages was formulated by The Fair Wages Committee when its report got published by the Government of India in 1949. These are explained below:

1. Living Wages

The wages which sufficiently serve the need of certain basic facilities as well as other needs of the employee and his family according to their social status are termed as Living wages. They are usually sufficient for the betterment of the employee. The term ‘living wages’ is not defined in the Minimum Wages Act, 1948.

According to the Committee on Fair Wage, “The living wage, represented the higher level of wage and, naturally, it would include all amenities which a citizen living in modern civilized society is entitled to when the economy of the country is sufficiently advanced and the employer is able to meet the expending aspirations of his workers. As the traditional doctrine interprets it, living wages as is ‘a will’ the wish which floats a little further ahead an arm’s length out of reach. Its pursuit belongs to the same category as ‘sparing the circle.’”

In All India Reserve Bank Employee Association vs. Reserve Bank of India, Hidayatullah J. remarked: “Our political aim is ‘living wage’ though in actual practice living wage has been an ideal which has eluded our efforts like an ever-receding horizon and will so remain for some time to come. Our general wage structure has at best reached the lower levels of fair wage though some employers are paying higher wage than the general average”.

Article 43 of the Constitution of India, 1950 confers a duty on the state to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.

Thus, to put it briefly, living wages need to be sufficient for some other leisure activities in addition to food, clothing and shelter which are the basic necessities of man. This other leisure or comfort needs generally include education for children, treatment during ill-health, the requirement of essential social needs and measures of insurance against old age etc.

2. Minimum Wages

The term Minimum Wage(s) has not been defined in the Minimum Wages Act, 1948. The minimum wage is the lowest wage in the scale. Below the minimum wage, the efficiency of the worker is at stake. It includes the simple physical necessities of the worker as well as some comfort such as the conventional necessities as otherwise, any wage below it will necessarily need to depletion of the efficiency of the worker. Thus, the minimum wage must take note of some basic measure of education, medical requirements, and amenities of the worker and his family.

Any employer who cannot or is unable to pay the minimum wage to his employee has no right to exist as the same will come under the purview of  ‘forced labour’ within the meaning of Article 23 of the Constitution of India, 1950 and therefore, entitles the person to invoke Article 32 or Article 226 of the Constitution of India, 1950 to get a legal redress against such employer. Thus, an employer has to at least give minimum wages to its workers or employees to continue its existence in the industry.

It is to be noted here that the notion of minimum wages should be dynamic and requires to be keep changing with time and standard of living of people as well as other socio-economic and political changes taking place.

3. Fair wages

Fair wage is something which is more than the minimum wages. It is derived as a mean between the minimum wage and the living wage. In Express Newspaper Ltd. v. Union of India, Das Gupta J. defined ‘fair wage’ “which may roughly be said to approximate to the need-based minimum, in the sense of a wage which is adequate to cover the normal needs of the average employee regarded as a human being in a civilized society.” Moreover, in the words of Hidayatullah, J. in Hindustan Times Ltd. V/S their workman: “‘Fair wage’ lies between the minimum wage which must be paid in any event and the living wage which is the goal.”

A fair wage relates to the earning capacity and workload. Therefore, the lower limit of a fair wage, certainly, should be the ability to pay minimum wage and the upper limit is the ability or capacity of the industry to pay. Between these two limits, the actual wage will depend on a consideration of certain variables such as prevailing wage rate, the productivity of the labour, national income and its distribution among various sectors and the level of industry in the economy of the country. Thus, it means the wage which is paid to the workers for various jobs which require equal efficiency, difficulty and pains.

CONCLUSION

The Directive Principles enshrined in the Constitution of India, 1950 confers a duty on the state to secure a basic living wage for the working class. Practically speaking, this cannot be achieved overnight as the government also has to undertake the interests of the industry and its survival so that the standard of living rises of the working class.  The higher the standard of living, higher will be the minimum wage rate in the country.  So, there should be tireless efforts towards achieving the goal enshrined in Article 43 of the Constitution of India, 1950 for the betterment of the working class.

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De Facto and De Jure Recognition of States under International Law

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The article seeks to explain the two modes of recognition and the difference between them. As recognition can be of a state or a government, the author has focussed on the recognition of a state only.

INTRODUCTION:

In International Law, “recognition” is the formal acknowledgement by one state that another state exists as a separate and independent government. As per Black’s Law Dictionary, recognition means: “Official action by a country acknowledging, expressly or by implication, de jure or de facto, the existence of a government or a country, or a situation such as a change of territorial sovereignty.” According to Phillip Jessup, recognition means that an existing state acknowledges the political entity of another state, by the overt or covert act. Article 1 of the Montevideo Convention, 1933 states: “The state as a person of international law should possess the following qualifications:

  1. a permanent population;
  2. a defined territory;
  3. government; and
  4. capacity to enter into relations with the other states.”

These four qualifications are often termed as essentials of recognition of a state.

Recognition of a state leads to the state being recognized to become a member of the international community and thus, it becomes vital for a state to be recognized as a member of the international community to enjoy various rights, duties and obligations of international law. It is the acknowledgement by the existing state or states that a political entity has the characteristics of statehood.

The question or need of recognition arises mainly when a State disintegrates into several States or when two or more states merge to form a new state or a former colonial territory acquired statehood.

Legal Effects of Such Recognition

The act of recognition is a political or discretionary act but it should be granted keeping in view various legal consequences that follow such recognition. Main legal effects are:

  1. The recognized state gets an entitlement to sue in the courts of the recognized state.
  2. The recognized state may enter into diplomatic and treaty relations with the recognizing state.
  3. The recognized state becomes entitled to its sovereign immunity as well as its property in the courts of recognizing state.
  4. The act of recognition also leads to the retroactivity of recognition i.e. the recognizing state can give effect to past legislative and executive acts of the recognized state.

De Jure and De Facto Recognition

These are the two modes of recognition of a state which are explained below:

De jure recognition: When the state who is giving recognition to the new state is of the view that the new state is capable of possessing and has all the essential attributes of the statehood along with stability and permanency, then such recognition is de jure recognition of that state. It results from an expressed declaration or a positive act which indicates the clear intent to grant the recognition. It is final and cannot be revoked or withdrawn once it is given. It can be granted immediately or directly when any nation comes into existence through a peaceful and constitutional mode and there is no need for prior de facto recognition.

De facto recognition: Such recognition is given when the new state has not acquired sufficient stability in the opinion of the existing state. Then, in such a scenario, the recognition is given provisionally and is called de facto recognition. This situation arises when the existing state is of the view that though the new state has a legitimate government., its effectiveness and continuance to govern is uncertain. Thus, de facto recognition means that the state which is recognized possesses all the essentials of statehood and is able to be a subject of international law but it is doubted whether such a country seeking recognition is willing or capable of fulfilling its obligations under international law.

Examples: The Soviet Union was established in 1917 and the UK government recognized it on the basis of de facto mode but it was only in 1924 that the UK government gave it a de jure recognition. In March 1971, Bangladesh was established and India and Bhutan gave the recognition to Bangladesh after nine months of its establishment whereas the US recognized it after almost a year in April, 1972.

Difference between the two modes of recognition

  1. The de facto recognition is a lesser degree kind of recognition as compared to the de jure recognition as de jure is recognition to its fullest extent.
  2. The de facto recognition is not final and it is dependent on conditions with which a new state has to comply and in case the new state fails to fulfil such conditions the recognition given can be withdrawn unless it is a de jure which is final and cannot be withdrawn.
  3. De facto recognition may be given when a state comes to power through revolt whereas de jure recognition may be given in case the new state came to power peacefully and constitutionally.
  4. The representatives of de jure recognized states have full immunities while the immunities given to de facto recognized states are not full.
  5. The de facto recognized state cannot claim property situated in the territory of the recognized state as it lacks such extra-territorial jurisdiction. Whereas the de jure recognized state can claim so.
  6. In the case of de facto recognition, full diplomatic relations cannot be established whereas it can be done so in case the recognition is done through de jure mode.
  7. The state with de facto recognition cannot undergo state succession while the state with de jure recognition can under state succession.

CONCLUSION

Thus, it is clear from the above discussion that the recognition of a state is vital for it to enjoy all the rights and privileges in the international domain and under international law. The two modes of recognition do hold a political outcome on the international stage as the degrees of both kinds of recognition have a significant impact on relations between various nations. It is often noticed that stronger or powerful nations try to impede in recognition of new states. Sometimes, recognizing state withdraws such recognition in case the conditions are not fulfilled.

Indian practice of recognition is in conformity with the international law as India accords recognition as soon as the prerequisites of the statehood are conformed to. Indian policy is certainly influenced by various political, economic, national interest, expediency and strategic considerations. As a matter of general policy, India has attached primacy to the de facto mode of recognition. And India has always maintained its strong commitment to the principle of self-determination and national liberation movements. Thus, India has always been hostile towards oppressive regimes and this certainly has affected India’s policy of recognition under the International Law as recognition is more of a matter of policy than law.

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Corporate Financing

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This article is written by Sambavi Marwah, a fourth-year law student, from Delhi Metropolitan Education, GGISPU.

INTRODUCTION

Finding funds is one of the most essential requirements for a business, to begin with. Without appropriate funds, it becomes difficult for the organization to expand and grow. It is essential for the organization to decide their source of funding, whether to go by equity or debt. 

Capital Requirement

Corporations need money or funds to grow and expand in the market. They do so by either asking investors to invest in their business or by using the profits earned so far by the company itself. Financing is the process used by the corporates to raise funds or finance their existing or new projects to develop and face their competitors. 

Financing can either take place for short term purposes or long term purposes. 

  • Short term financing is needed when a corporate requires money for a short term basis, i.e., for one year. It can also be referred to as working capital financing. Short term financing is required to raise funds to pay the wages of the workers, buy raw materials, etc.
  • Long term financing is needed when a corporate requires money for a long term basis, i.e., for more than five years. It is also known as fixed capital financing. Long term financing is required to raise funds to start a new business, buy land or machinery, etc.

An organization either raises funds from internal sources or external sources, depending upon their requirements and availability. 

  • Internal Sources are the internally available sources, i.e., within the company, like owner’s investment, retained earnings, sale of assets, etc.
  • External Sources are those sources which help the company to raise its funds outside their business. Sources like equity shares, preference shares, debentures, etc. 

The organization must research, study and analyze all the factors and sources before opting for the best possible source to raise the funds. 

Main Sources of Funding

Corporations always seek resources to raise funds to expand their business, either by investing in a new line of business or by developing the existing one. It needs a constant flow of money not only to expand but also to meet the daily expenses. 

The main external sources used by the corporations are either Equity or Debt. 

  • Equity funding is used by companies to raise money from the public. It offers a specific number of shares in exchange for the money being invested by the public. A person buying those shares gets ownership rights.
    The disadvantage of opting for equity funding is that the company has to share its profits with the shareholders for the long term.
  • Debt funding is when a company obtains loans from the banks. It also includes debentures, leases and mortgages. When the company opts for debt funding, it has to face the demerit of paying an extra value (interest) time to time to the banks.

Sometimes when a company is unable to opt for external sources to raise money, they go for the internal sources available to them, which can be in the form of retained earnings or sale of an asset.

  • Retained earning is the amount left with the company after paying the dividends to the shareholders. The company retains the left out amount for any future emergencies. Using retained earnings can be a drawback as it is not very cost-effective
  • Sale of an asset is when a company sells off any of its assets and the cash generated by the sale is used internally to meet the necessary expenses. 

Hence, it can be seen that there are several solutions available to the corporation to raise the funds or expand their business.  

Corporate Funding

As we already read above the corporations raise capital either through equity or debt to grow their operations.
Corporate funding is a low-cost alternative to debt or equity for financing the business.

Thus it comprises of:

  • Tax incentives 

Tax incentives or tax concessions are the benefits provided to the corporations to expand and grow their business in the market. These are the relief given by the government to the corporations so that they can easily invest and raise funds for its growth.
 

  • Zero-interest loans
    Zero-interest loans are the ones where the corporation has to pay only the principal amount and no interest is charged upon it, provided the whole amount is paid within the prescribed time. Failure to comply with the date, penalties can be levied on the corporation. This type of loan helps the company to save money.
  • Grants
    Startups and small businesses often require help from large corporations to give them a kick start to enter into the market. These large corporations then offer corporate grants to these small businesses to help them with their capital requirement.
    Grants are non-refundable and carry a high rate of interest. 
  • Fundraisers
    Fundraisers are those events organized by the corporates to help them to raise the capital amount. Fundraisers can be in the form profit donation, charities, etc. 

Legal Framework

The laws which cover the aspect of corporate funding are:

  • The Companies Act 2013
  • Securities and Exchange Board of India Act, 1992
  • The Securities contract (regulation) act, 1957
  • Depositories Act, 1996
  • Foreign Exchange Management Act, 1996
  • Reserve Bank of India Act, 1934

These laws provide the basis and certain grounds for the companies to follow while sourcing the finance. A company needs to abide by the laws while taking the decision related to every financial or non-financial activity.

CONCLUSION 

As it is correctly said, “Plans are nothing, planning is everything”. Without effective planning of the raising of funds, a company cannot achieve its desired goals on time as the foremost requirement for a business to flourish is the capital money. To start a business, the first and the most essential element for a company is to collect money and invest it towards the building up of its business.
A company can opt either for the internal sources or the external sources to raise capital for the expansion. Sometimes companies go for both the solutions in order to collect the funds as, without it, no business can flourish in the market with other competitors already present.

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General Rules of Succession of a Hindu Female

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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 general rules of succession of a Hindu Female.

INTRODUCTION

There are mainly two schools of Hindu Law: Mitakshara and Dayabhaga. Both schools have different basis of ‘Law of Succession”.

 Mitakshara School based its ‘Law of Succession’ on “Principle of Propinquity” means nearer to blood relationship i.e. 

  • Class I Heir, 
  • if there is no member in Class I Heir then Class II Heir, 
  • if no member exists in Class I Heir or Class II Heir then agnate, 
  • if no member found of Class I Heir or Class II Heir or no agnate available then cognates, and 
  • if all of the class are not existing then Government.

In Dayabhaga School, the ‘Law of Succession’ based on the “Principle of spiritual benefit and religious efficiency” means that one who conferred more religious benefits descendant entitled to inheritance in the preference to other who confers a less spiritual benefit. 

Now, a question arises whether everyone does succession of their property?

Yes, all people whether male or female does succession of their property. But there is a difference between a person who make a will and who do not make a will. Let’s discuss the meaning of succession. Succession refers to the rules of devolution of property in case a person dies without making a will. Will means a legal declaration of the intention of the testator w.r.t his property which he desires to be carried into effect after his death.

Types of Succession

There are two types of law of succession:

  1. Testamentary Succession- A person who dies after making a will is called a testator. The law of testamentary succession is concerned about how best the effect could be given to the wishes of the testator. Testamentary succession is to devolve one’s property through a will.  Section 30, The Hindu Succession Act, 1956 defines testamentary succession, “ any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provision of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.
  2. Intestate Succession- A person who dies intestate i.e. who dies without making a will.

Section 3(g), The Hindu Succession Act, 1956 defines intestate, “a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect”.

Hindu Succession Act, 1956 (‘HSA, 1956’, ‘the Act’) lays down a uniform law of succession for all the Hindus. It only deals with intestate succession among the Hindus. But there are some exceptions when HSA, 1956 is not applicable. The following exceptions are:

  1. When Hindu marries under the Special Marriage Act to a non- Hindu.
  2. When Hindu converts into another Non- Hindu religion.

Now, a question arises that who has the right over a woman’s property after she dies?

The right over a woman’s property after she dies intestate depends on the condition whether the woman is married or not, whether the property is inherited or self -acquired. To get a clear explanation of the above-stated question, let’s first discuss section 14, 15 and 16 of the Hindu Succession Act, 1956.

Section 14 in The Hindu Succession Act, 1956

14. Property of a female Hindu to be her absolute property-

  1. Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation– In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by a gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement of this Act.

  1. Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

As you all know that Hindu Succession Act, 1956 commenced from 17 June, 1956. This section 14(1) clearly explains that any property whether movable or immovable, if any Hindu female, having the physical control over that property, whether she acquired that property before or after the commencement i.e. before or after the 17 June, 1956. Then, according to this section, the female is considered as full owner of the property not recognized as a limited owner.

The essentials of Section 14, Act,1956:

  • The female must be Hindu;
  • The property must be movable or immovable property;
  • The female must have their physical control over the property;
  • She must acquire the property before or after the commencement of the Act;
  • She is considered a full owner of the property, not a limited owner.

The main objective of the section is to protect the interest of a woman and it does not matter when she has acquired that property, it may be before or after the commencement of the Act. She is considered as a full owner not the limited owner of the property. She enjoyed all the rights and liabilities over that property.

Section 15 in The Hindu Succession Act, 1956

15. General rules of succession in the case of female Hindus-

1. The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16-

a. firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

b. secondly, upon the heirs of the husband;

c. thirdly, upon the mother and father;

d. fourthly, upon the heirs of the father; and

e. lastly, upon the heirs of the mother.

 2. Notwithstanding anything contained in sub-section

a. any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

b. any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

This section mainly explains the devolution of a woman’s property as per the priority:

If a female dies intestate in 2018, then property pass to her son and daughter (son or daughter also includes the children of pre-deceased son or daughter), and husband.

If son or daughter (including son or daughter of pre-deceased son or daughter) and Husband are not present?

 If a situation arises that intestate neither having their son or daughter nor children of pre-deceased son or daughter or husband, then property passed to the heirs of husband. 

If the heirs of the husband are not present? 

 And even if all above stated are not present, then property devolves upon the mother and father of the female. 

If the mother and father of the husband are not present? 

Then property passed upon the heirs of the father. 

And if none of the above are present? 

Then property will pass to the heirs of the mother.

If the female inherited any of the property from her father or mother, and there is an absence of any son or daughter of the deceased including the children of pre-deceased son or daughter then devolution of property takes in a specific manner discussed below not according to the sub- section 15(1).

If any female died intestate and inherited their property from her father or mother, no existence of the person mentioned in sec 15(1)(a), then property devolves upon the heirs of the father.

If the female inherited any of the property from her husband or father-in-law, and there is an absence of any son or daughter of the deceased including the children of pre-deceased son or daughter then devolution of property takes in a specific manner discussed below not according to the subsection 15(1).

If any female died intestate and inherited their property from her husband or father-in-law, no existence of the person mentioned in sec 15(1)(a), then property devolves upon the heirs of the husband.

The main objective of section 15(2) is to ensure that the property left by a Hindu female does not lose the real source from where the deceased female had inherited the property.

The intention of the Legislature is clear that the property if originally belonged to the parents of the deceased female, should go to the legal heirs of the father. So, under section 15(2)(b), the property inherited by a female Hindu from her husband or father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property the fact that a female Hindu originally had a limited right and later acquired the full right, in any way, would not alter the rules of succession given in section 15(2); Bhagat Ram (D) by L.Rs. v Teja Singh (D) by L.Rs., AIR 2002 SC

Now, a question arises: what is the manner of distribution of the intestate property among heirs of a female Hindu?

To get a clarification of the above-stated question firstly, we have to discuss section 16, Hindu Succession Act, 1956.

Section 16 in The Hindu Succession Act, 1956

16. Order of succession and manner of distribution among heirs of a female Hindu-

The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate property among those heirs shall take place according to the following rules, namely:

Rule 1-Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. 

Rule 2-If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate’s death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate’s death.

 Rule 3-The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.

It is clear that section 15 and 16 are closely related. That section 15 of the Hindu Succession Act, 1956 specifies the order of succession whereas section 16 describes the manner of the distribution of the intestate property among those heirs. 

Rule 1 explicitly declares that among the heirs enumerated in entries section 15(a) to (e), those heirs referred to in prior entry are to be preferred to those in any subsequent entry and those included in the same entry are to succeed simultaneously.

Rule 2 states in that in case of the children of the pre- deceased son or daughter, they shall not take per capita with the son and daughter of the intestate but shall take according to per stirpes i.e. the children and the pre- deceased son or daughter shall succeed to the property of the intestate as if the predeceased son or daughter was alive at the time of inheritance.

Rule 3 is applicable only when succession is in terms of entry of section 15 (b), (d) or (e). this rule is invoked when under rule 1, the heir of the husband or the father or the mother are to be ascertained for the purpose of distribution of property.

CONCLUSION

There are two schools of Hindu Law i.e. Mitakshara and Dayabhaga. Both schools are based on different rules of succession, former based on “Law of propinquity” and latter based on “Law of spiritual benefit and religious efficiency”. Both male and female under The Hindu Succession Act, 1956 has a right to succession. There are two types of succession: Testamentary and Intestate Succession. Testamentary succession is to devolve one’s property through will. Testator is a person who dies after making a will whereas an intestate is a person who dies without making a will or other binding declaration. The Hindu Succession Act, 1956 deals only with intestate succession. The Hindu Succession Act, 1956 is not applicable in the following situations: when Hindu converts into non-Hindu religion or when Hindu marries under Special Marriage Act to a non-Hindu.

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Teaching Positions at ICFAI University, Tripura: Job Opportunity

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About the Organisation

ICFAI University, Tripura is a nonprofit private university located at Agartala, Tripura, India. It was established in 2004 through an Act of State Legislature.

Job Details

ICFAI University, Tripura is opening job posts of Professor, Assistant Professor and Associate Professor under International Law, Cyber Law, Criminal Law, IPR & Corporate Law.

Eligibility

  1. The Applicants should have PG, UGC-NET preferably with PhD in appropriate discipline with first class at the preceding degree.
  2. In addition, teaching/research/industry experience as applicable for different positions, the applicants should have excellent academic record through.

Remuneration

As per University Norms, However Salary is not a constraint for deserving Candidates

Application Procedure

  1. Interested candidates may send their detailed resume through e-mail by mentioning the position applied for in subject line to at careers@iutripura.edu.in.
  2. Alternatively, the applicants may send their resume by courier/speed post to “The Registrar, The ICFAI University, Tripura P.O. Kamalghat, Mohanpur, Tripura (West) – 799210

Location

Agartala-Simna Road, P.O. Kamalghat, Mohanpur, Agartala, Tripura 799210

2ND NATIONAL ONLINE QUIZ COMPETITION ON ‘RECENT JUDGMENTS ON CONSTITUTIONAL LAW AND IPC’ ON AUGUST 15, 2020 @LEXSTRUCTOR: REGISTER BY AUGUST 14 [CASH PRIZES & OTHER PERKS AWAITING]

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About the Organization:

Lexstructor is an online, open access legal news, journals publication and education imparting platform, which is dedicated to express views on varied legal issues, thereby generating diversified research emerging areas in law. This platform shall also encourage the intent of young law students, professionals and members of academia to contribute to the field of law and its relation with various aspects of technology, policy making, management and other disciplines of academia, through journal and blogs sections. Besides, it provides free access of daily legal news updates to literate a lawman as well as a layman with the contemporary legal developments and know-how.

About the Competition:

Lexstructor Legal News & Publication is organizing ‘2nd National Online Quiz Competition on ‘Recent Judgments on Constitutional Law and IPC’ on August 15, 2020. Considering the upcoming competitive exams, this competition provides an opportunity for the aspiring candidates as well as the law students to test their skills and brush up their knowledge on contemporary legal issues. Also, it is an endeavour to provide a platform to all the law students throughout the nation to enhance their knowledge of current affairs and recent judgments. We are inviting everyone who has a keen interest in current legal affairs to participate in this competition and make it a grand success.

Important Dates

Last date of the Registration: August 14, 2020

Date of the Quiz Competition: August 15, 2020 

Date of the Result: August 16, 2020. [The result will be published on our website and social media handles]

Eligibility:

The competition is open for everyone who has a keen interest on this field.

  • Registration fee – Rs. 50/- per participant.
  • Payment Mode – UPI ID : namrata12345@indus (or, scan the QR code), or 

you can opt for Bank Transfer (details are mentioned in the registration form)

  • On successful payment, the participant shall fill up the form through the following link : 

https://docs.google.com/forms/d/e/1FAIpQLSeUUP2Wlh0GSrw3s617pHUgdJnfayvgmXWHsCLBx_NzG332Gg/viewform?usp=pp_url

Rules of the Competition:

  • After the completion of registration process, the registered participants will be sent a confirmation mail, containing the link to a Whatsapp group, in which the link for the quiz will be shared. In case any participant does not join the group, Lexstructor won’t be held responsible and liable to refund.  
  • 40 multiple choice (1 mark each) and total 30 minutes duration, No negative marking.
  • Ranking will be dependent upon total time taken and the accuracy in answers.
  • Lexstructor shall not be liable for any technical glitch caused from your end.
  • The decision of the organizers in case of any dispute will be final. Lexstructor reserves the right to change/amend /alter terms and conditions of the competition. 

Prizes:

  • Winner: Cash Prize of Rs. 600/- + E-Certificate of Excellence + An acknowledgement in our website and social media handles.
  • 1st Runner Up: Cash Prize of Rs. 300/- + E-Certificate of Excellence + An acknowledgement in our website and social media handles.
  • 2nd Runner Up: Cash Prize of Rs. 150/- + E-Certificate of Excellence + An acknowledgement in our website and social media handles.
  • Top 10 participants will receive E-certificate of Excellence mentioning their ranks.
  • Other Participants will receive E-certificate of Participation via email.

Contact Information:

In case of any queries related to the competition, contact us at- Email: lexstructorltj@gmail.com

WhatsApp: 9641060192 or, dm us in any of our social media handles. [We’re available in Instagram, Facebook & linkedin]

Bhopal Gas Tragedy: Development in Tort and Environment Law

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This article is written by Akshat Mehta, a student of the Institute of Law, Nirma University, Ahmedabad. In this research article, he has tried to define the changes and development that occurred in Tort and Environmental Law through landmark judgments after the drastic incident of Bhopal Gas Tragedy.

The Deadly Incident

The Bhopal Gas Tragedy was one of the worst disasters which had taken place in the history of India as well as the world. This incident exposed the government and state machinery which was not very serious in regards to the lives of its citizens. One factory plant of Union Carbide Corporation (UCC) was set up in Bhopal in the 1970s when the government was encouraging foreign direct investment in the domestic industries. The Indian government also holds 22% shares in UCC by a subsidiary company by the name Union Carbide India Ltd. (UCIL). UCC was asked to make a pesticide called Sevin, commonly used pesticide in Asia but, over the time UCC was allowed to manufacture harmful toxic chemicals which are not suitable as per the geographical location of Bhopal because it comes under light industrial zone which cannot be used for making hazardous substances.

On December 2, 1984, the deadly ‘Methyl Isocyanate gas’ leaked from the plant of UCC which killed almost 4,000 people immediately within 2 hours of the leak of the gas. Most people died were the people of the slum area residing near the geography of the plant. Till the morning the death toll reached up to 8,000 because lethal gas spread throughout the city. Around 40,000 people died in the next 20 days and more than 1,00,000 people suffered permanent disability. The most horrible part of the incident was that UCC was found shifting the whole liability to Union Carbide India Limited.  

Development under Tort Law

Hardly after one year, a similar incident occurred on December 4, 1985, at Shriram fertilizer Factory at New Delhi where oleum gas leaked from the tanks due to human and mechanical errors. Although there were not as many casualties occurred in this incident as compared to Bhopal Gas Tragedy but after these two incidents the government had to face criticism due to its unsympathetic approach towards the life of its citizens in search of industrial growth and revenue centered approach. 

In lieu of this, a PIL was filed by MC Mehta and the concept of ‘Absolute Liability’ emerged in the Indian Law as a product of that PIL. Let us understand the difference between already existing strict liability and newly emerged absolute liability from the case of ‘MC Mehta v. Union of India’. 

The concept of Strict and absolute liability comes under NO-FAULT LIABILITY under the law of Torts. For having ‘strict liability’ to be applied there are three conditions which need to be satisfied:

⮚  There must be a dangerous thing which has been brought on to the land of the defendants. 

⮚  Such dangerous thing must be used for a non-natural purpose.  

⮚  Such a dangerous thing must escape from the control of the defendants.

There are five exceptions to strict liability through which it could be avoided:

⮚  If the plaintiff was himself at fault.

⮚  Plaintiff’s consent to suffer the harm.

⮚  Act of a stranger (3rd party).

⮚  Act of God, and

⮚  Statutory Authority.

Now for the ‘Absolute Liability’ to be applied there are four conditions necessary to be satisfied and three of which are same as of strict liability but the fourth one is:

⮚  Such dangerous things must be brought into the land of defendants for the Profit Motive. 

Now as the concept is introduced to make absolutely liable to the offender there are no exceptions to the concept of absolute liability. 

Further after the MC Mehta v. Union of India in the case of ‘Charan Lal Sahu v. Union of India (1990)’ the Honorable Court held that defendants have the absolute liability and they cannot escape by the liability by contending that they have taken the ‘reasonable care.’ So this again proved that there is no exception available to the absolute liability. Also in the case of the ‘Indian Council for Environmental Legal Action v. Union of India (1996)’ the Court held that “Once the event is carried related to hazardous substance then is liable to take all the loss caused to another person irrespective of taking reasonable care while carrying out the activity.” 

So this is the major and significant development in the arena of Law of Torts after the Bhopal Gas Tragedy. 

Development under the Environmental Law

After these two incidents the government was questioned from multiple angles for not having proper environmental regulations and laws which took away the lives of thousands of people. 

After the deadly incident, the Indian Government implemented and passed ‘The Environment Protection Act 1986’, which strengthens the regulations and acts as a vigilant authority over the hazardous industries. This act provides the direction for pollution control and environmental protection from all types of hazards for humans, animals, plants, and all living creatures. The purpose of this act was to strictly implement the narratives and guidelines of Stockholm, The conference is also known as the United Nations Conference on Human Environment which was held in 1972. This act empowers the central government to lay down guidelines, rules, and punishment for emission, discharge, and management of toxic substances. This act also mentions ‘waste management and handling rules’ under Section 25. 

The Environmental Impact Assessment Notification, 1994, defines the kinds of activities which could be a potential threat to the environment in any manner. This notification makes it mandatory for the government to assess the potential threat every industry could cause to the environment and human lives. So this act somewhere poses a sought of liability on the government to properly analyze each and every new industry before allowing it to start its operations. This act also provides ‘Right to know’ to the people who are interested to know what impact will be there on their lives if that specific industry will be set up in their locality and also whether they have any harm from it or not. 

In the case of ‘Subhash Kumar v. State of Bihar’, the Honorable Court held that “the right to life guaranteed under Article 21 also includes right to pollution-free water and air resources.”

CONCLUSION

Recently Visakhapatnam could also become new Bhopal because of the gas leak in a similar manner as in Bhopal. Since independence India has gone through various tragedies but the Bhopal gas Tragedy was a nightmare for the whole country especially for those who live in Bhopal. There was a serious need on the government’s part to have a proper analysis before allocation of tenure to the industries who are engaged in making and procurement of toxic and hazardous substances and chemicals which could be a threat to environment and people, because somewhere lives of the citizens and their future safety is much more important than boosting the industrial sector of the country. 

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