Month: July 2020

Doctrine of Caveat Emptor

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This article is written by Anushka Singh, a second-year student pursuing BBA-LLB at Unitedworld School of Law, Karnavati University.

INTRODUCTION

Caveat Emptor is a Latin phrase which means ‘to let the buyer be aware’. It is a principle of contract law that places the onus on the buyer to perform careful examination and inspection before buying. Emptor in Latin is the buyer and the verb cavere is a verb of caution: caveat emptor was the perfect principle for transactions involving not massive quantity of goods.

This doctrine is a crucial part of the Sales of Goods Act and is specifically defined in section 16 of the Act. It states that the buyer cannot hold the seller responsible if the product is not fit for his usage or it is defective. As the duty to ensure that the product was suitable for his usage falls on the buyer because when an individual buys a product he does so after a thorough inspection and after he is satisfied with the quality.

Example- A bought a car from B. A wanted to participate in the car race with the bought car. However, the car was not capable of racing as it was a daily use car. Here as A did not inform B of his intentions of car racing, B will not be responsible for the sale of the wrong car. And the Doctrine of Caveat Emptor will be applied. However, a buyer can shift the responsibility to the seller if the given below three conditions are fulfilled[1]–

  1. If the buyer mentions his purpose or usage of the product while buying.
  2. If the buyer relies completely on the knowledge and judgement of the seller.
  3. The seller sells such goods.

Scope of Caveat Emptor

Ward v. Hobbes (1878) 4 AC 13, the House of Lords held that a seller cannot be expected to use pretence or disguise to hide the facts about a product that the buyer is buying in order to trick the buyer, as that would amount to fraud. The doctrine of caveat emptor does not enforce a duty on the seller to disclose every little defect with regards to the product he is selling but instead puts the responsibility on the buyer to check and verify the product before buying the product.

In Wallis v. Russel (1902) 2 IR 585, the Court of Appeal explained the scope of caveat emptor-“Caveat emptor does not mean in law that the buyer must take a chance but rather it means he must exercise care. This doctrine applies to specific purchases; ones where the buyer can use his own judgement and skill to what he buys. It applies also whereby usage or otherwise it is a term of the contract, that the buyer shall not rely on the skill or judgment of the seller.”[2]

Exceptions to the Doctrine of Caveat Emptor

Explained below are the exceptions to the doctrine of caveat emptor-

  1. Best Product for Buyers use- While buying a product if the buyer informs the seller, of his purpose or use behind buying that product, it is then implied that he is relying on the seller’s judgement and it becomes the duty of the seller to make sure that the product he buys matches his expectations or mentioned desires. For example, if A, the buyer informs B, the seller he wants to buy a car for sales and marketing purposes in rural areas. Here if B sells a luxurious car with less mileage, it won’t fulfil A’s purpose as he needs a car with high mileage and tough to be able to travel long distances.
  2. Branded Products- When a buyer buys a branded product under a famous company’s name, the seller cannot be held liable for the usefulness or quality of the product. Therefore, there is no implied condition in this situation that the good will be the best fit for the buyer’s intended use.
  3. Goods bought on Description- When a buyer buys a product based only on its description. If the said product does not match the description then in this situation the seller will be held liable.
  4. Merchantable Quality Products- The exception of merchantable quality is mentioned in section 16(2) of the Sales of Goods Act, 1930. It states that the seller who is selling products by description has a duty to provide products of merchantable quality i.e. products that pass the market standard. So, if a product is inferior to the market quality, then the seller will be held responsible. However, if a buyer is given sufficient time to examine the product this exception will not apply.
  5. Sale by Sample- If a buyer buys a product after a thorough examination of its sample, then this doctrine won’t be applicable. Even if the goods do not live up to the same standard as the sample, the buyer cannot be held responsible.
  6. Sale by description as well as a sample- If a product is sold with a sample in addition to its description, then the buyer will not be held responsible for the product not being similar to the sample or its descriptions. The responsibility here falls solely on the shoulders of the seller.
  7. Usage of Trade- Buying a product may also establish an implied condition with regard to the quality or fitness of goods for a particular purpose. For example, A bought a car from B. But B did not inform A that certain parts of the car were damaged, and so the rules of the doctrine will not apply here.
  8. Fraud or Misrepresentation- If a seller gets the consent of a buyer by committing fraud (knowingly lying to him) then this doctrine will not apply here. Similarly, if a seller gets consent or sells a product by actively trying to hide/ coverup certain facts about the product, this will be misrepresentation by the seller and the buyer will not be held responsible.

Cases

Mariappan v Inspector General of Registration, Department of Registration, Chennai and others, in this case it was held that the petitioner should have bought the property with more careful inspection or in other words the application of Caveat Emptor. As a buyer he shouldn’t be ignorant about the details of the property he is buying from another party.

In the case of Indrani Kailash v Debt Recovery Appellate Tribunal, it was that the petitioner had previously purchased the property in 1995 and did not take any action against the seller for fraudulently selling the property to her, even though the mortgage was executed by her Power Agent. The principle of Caveat Emptor was applied to the case of the petitioner.

Conclusion

In 1935, Lord Wright said that the old rule of caveat emptor is being superseded by caveat venditor as such change is necessary with the daily new developments in commerce and trade. The first time the doctrine of caveat emptor suffered a blow was in the case of Priest v. Last, this case gave the first traceable judgement on the reliance that a buyer places on the seller and his judgement. After this it was only a matter of time before it became obvious that caveat emptor is a dying doctrine and taking its place is caveat venditor i.e. need for disclosure on seller’s part.

[1] https://www.toppr.com/guides/business-laws/the-sale-of-goods-act-1930/doctrine-of-caveat-emptor/

[2] https://blog.ipleaders.in/exceptions-rule-caveat-emptor/

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McLoughlin v. O’Brian (1982) 2 All ER 907 (HL)

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This case analysis is written by Akshaya V, a student at CMR University, School of Legal Studies, Bangalore.

INTRODUCTION

Negligence is one of the civil wrongs covered under the tort law. In a general sense, the extent of liability in tort is determined by the number of damages a party has incurred. In the instant case, the House of Lords determined another dimension of providing damages for psychiatric harm caused through negligence to the plaintiff.

Equivalent Citations

(1982) 2 All ER 907 (HL)

Bench

Lord Wilberforce, Lord Edmund-Davies, Lord Russell of Killowen, Lord Scarman, Lord Bridge of Harwich.

Date of Judgement

6 May 1982

Relevant Law

Law of torts

Concept

Negligence

Facts

The husband of the claimant and their children met with an accident after a colliding into lorry driven by the first defendant and owned by the second defendant. One child lost his life and others were severely injured. They were hospitalized for treatment. McLoughlin was informed of this by her neighbor and rushed to the hospital. Upon arrival, she learned that her youngest child was no more and witnessed the extent of injury caused to her husband and other children. Looking at them, she underwent a tremendous shock resulting in psychiatric harm to her and she brought an action against the defendants.

Issues before the Court

  • Is the plaintiff’s plea maintainable?
  • Is the plaintiff sufficiently proximate to the event in question to claim damages for her psychiatric illness?

Points of Determination

Negligence, by its general meaning, is the breach of duty of care resulting in undesirable damages. Where a person fails to exercise the required standard of care as a reasonable man would do in a particular situation. It can also be malfeasance by doing something which should not have been done. The defendant had been negligent in driving that lead to the accident. However, it has to be determined if the defendant owed a duty of care to the claimant in the instant case. To recover damages, the plaintiff has to prove that she was in proximity to the cause of action.

To find if O’brian owes a duty of care towards Mcloughlin, the following points shall have to be determined –

  1. Duty of care – This is one of the essential conditions to hold a person liable for a negligent act. The duty should be legal and shall not be unlawful or immoral. Therefore, it has to be ensured it is done with a duty of care. In the above case, the defendant has not shown a duty of care towards driving which resulted in an accident.
  2. Breach of duty to take care – O’brian has breached his duty. He did not observe the standard of care. He should have rather acted wisely and not omitted an act which he was ought to do.
  3. Proximate cause – It means the legal cause. It may not be the first event that may occur in a sequence of events and may not be the last event before the injury occurs. A defendant in a negligence case is only liable for only those damages within his contemplation and could have foreseen through his actions. In the above case, the collision may have been foreseen by O’brian but the injury caused to the defendant may not have been foreseen.
  4. Duty of care towards the plaintiff – A duty arises when the law identifies a relationship between the plaintiff and defendant. The establishment of a duty of care towards the plaintiff is determined by the Court. In the instant case, there is no established relationship between O’brian and McLoughlin. The duty of care should have been established by O’brian towards the family that was driving on the opposite side.
  5. Actual cause or cause in fact – The plaintiff who is suing the defendant for negligence has the liability to prove that the defendant’s violation of duty was the actual cause of damage incurred by him. Here, McLoughlin does not have an actual cause but an incidental cause thus not falling a direct victim to the defendant’s action.

The Ratio of the Case

The House of Lords, in determining the ratio of the case said that the duty of the defendant is extended to those who came immediately after the accident, even if they did not witness the incident. The house of Lord determined the circumstances in which the plaintiff would succeed.

  1. Damages are not awarded for grief and loss. However, it shall be awarded for nervous shock caused by negligence without showing the direct impact.
  2. The plaintiff may also recover damages for a nervous shock if the injury caused to a person is their near relative.
  3. Three classes of persons whose claims are to be recognized –
  4. The means by which the shock was caused and the proximity of the person to the accident.
  5. A shock in its nature is capable of affecting a wide range of people, an emphasis has to be given only to a certain extent. For instance, a close relative of the victim.
  6. As regards proximity, it must both in time and space. The time shall be immediate or “immediate aftermath” of the incident. Space means in and around the place of incident.  The shock shall come through sight or hearing about the event or of its immediate aftermath. 

Judgment

The trial Judge held in favor of McLoughlin and said the defendants owed a duty of care to the claimant.

The Court of Appeal Judgement held the psychiatric illness was foreseeable and a duty of care was owed to McLoughlin. However, Mcloughlin was not allowed to recover damages.

Lord Wilberforce held that ‘one who comes very soon upon the scene, should not be excluded under the “aftermath doctrine”. Normally a parent or a spouse could be regarded as being within the scope of foresight and duty. The class of persons who could be considered proximate to the event are those who come within the immediate aftermath of the event. The appeal was allowed and the claimant was entitled to receive compensation for psychiatric illness.’

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3rd All India Essay Competition on Law and Economics by GNLU’s: Prizes Worth Rs. 15K

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About the Organizer

GNLU Centre for Law and Economics has grown as a niche area dealing with the interface of the two subjects, wherein economic tools are used to better understand the efficiency and working of Law.

About the Competition

Centre for Law and Economics, GNLU is organizing the 3rd All India Essay Competition on ‘Law and Economics’. This comes out as a great opportunity for the students to research as per their interests in law and make an economic analysis of the same and get it published with one of its kind journals in India.

Eligibility

The competition is open to the students who are currently pursuing graduation or post-graduation in bonafide Universities.

Themes

  1. COVID-19 and the Role of a Welfare State
  2. COVID-19, Surveillance, and Privacy
  3. COVID-19 and the state of Public Healthcare
  4. COVID-19 and Employment Law/ Labour Law
  5. COVID-19 and Intellectual Property Rights
  6. COVID-19 and International Liability
  7. COVID-19 and Criminal Justice Responses
  8. COVID-19 and Corporate Law
  9. COVID-19 and the Global Economy
  10. COVID-19 and the Role of International Organisations in Pandemics
  11. COVID-19 and Competition Law
  12. COVID-19 International Trade Law, and International Cooperation

Registration Form

https://docs.google.com/forms/d/e/1FAIpQLSc39P7MiAChqU5Bxb_njFRKzUcKdFP5kMAfo0bOLcn4hdY_2g/viewform

Submission

Submissions will be made at cle@gnlu.ac.in with the subject ‘Law and Economics Essay- Author’s Name’.

No late submission will be accepted.

Guidelines

  1. The essay should be written in English only.
  2. Only one essay per participant may be submitted. Multiple Submissions will lead to disqualification.
  3. Co-authorship to a maximum of 2 authors is permitted. In the case of co-authorship, the registration form should be filled for each other.
  4. The students can’t enter as sole author and co-author. It will lead to multiple submissions and therefore disqualification.
  5. Only original essays will be considered for the competition. Moreover, any form of plagiarism will result in disqualification. Any identification mark in the essay will also lead to disqualification.
  6. The Centre may choose one or more essays for publication in the 3rd Volume of the GNLU Journal of Law and Economics.

Deadline

September 15th, 2020, 11:59 PM.

Perks

  • First Prize: Rs. 15,000/- cash prize (Special consideration for publication in the GNLU Journal of Law and Economics)
  • Second Prize: Rs. 10,000/- cash prize (Special consideration for publication in the GNLU Journal of Law and Economics)
  • Third Prize: Rs. 5,000/- cash prize (Special consideration for publication in the GNLU Journal of Law and Economics)

Contact

Email Id: cle@gnlu.ac.in

WEBSITE LINK

https://www.gnlu.ac.in/GNLU/Home

1st Blog Writing Competition: Lawgical Forum

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About the Organization 

Lawgical Forum, a platform for voicing the collective conscience of the law students, practitioners, academicians in the form of opinions, blogs, articles, case analysis, etc. aspires to ingeminate the significance and multi-disciplinary approach of law and the legal world. We intend to engender discourse on contemporary burgeoning socio-legal issues and provide an assessment of the same. It envisions to nurture the underlying interface of legal intricacies with society. The initiative aims to provide comprehensive research pertaining to the trans-disciplinary approach towards law and society. The portal, in its process of proliferating legal awareness amongst masses, looks forward to providing quality socio-legal content. It fosters to propagate the voice of the vulnerable section of the society and impart justice at every level through eclectic writing. We strive to provide a platform and encourage everyone to contribute original, unpublished, and unplagiarized work. Hence, our objective is to materialize the social and legal conviction of public-spirited individuals. 

About the Competition 

Lawgical Forum aims to eradicate the legal illiteracy in India and assure that its citizens exercise their fundamental right to freedom of speech and expression with the help of legal writing. The blog writing competition will give a chance to ponder over, widen horizons, and pen down their views, thoughts, opinions, etc. on contemporary social and legal issues existing in the society. This is vital to bring various aspects of the consciousness of people that require unfettered attention. This aims to bring a change within oneself through the voice of youth. 

Who can participate? 

• Academicians, Researchers, and Ph.D./Doctoral Scholars from the field law. 

• Law students pursuing bachelors or masters in law (UG and PG) 

• Advocates, NGOs, and Think Tank. 

• Government officers and employees of Government undertaking 

• Representatives of Regulatory Bodies. 

Theme: 

Any contemporary issue relating to law or society. 

Guidelines for Submission: 

All the blogs should strictly adhere to the guidelines. Any submission found not following the 

same shall be outrightly rejected. The guidelines are as follows: 

• The title of the blog should be appropriate. 

• The blog must be within 1500 words. 

• Writing should be the original work of the participants. Only 15% of plagiarism would be allowed. Any submission having more than 15% plagiarism shall be disqualified. 

• The Uniform method of citation must be followed. 

• The body of the paper shall be in Times New Roman, font size 12, 1.5-line spacing. 

Footnotes should be in Times New Roman, size 10 single line spacing. 

• A margin of 1 inch shall be left on all sides of the paper. 

• The paper shall be in MS Word Format. 

• Co-authorship is allowed for not more than 2 people. 

• No participant can make more than one submission. 

• The copyright of the blog shall lie with the organization. 

• All the entries shall be sent to submissionlawgicalforum@gmail.com with a subject titled- “Submission for Blog Writing Competition”. Full names of both author and co-author along with designation, institution, and contact number(s) must be mentioned in the body of the mail. 

• Judgment shall be based on points given on the criteria of content, language & uniqueness. The decision of the editor shall be final. 

Awards and Perks: 

• Winner: INR 500 + Post of Student Editor + Blog Publication + Internship Opportunity + 10% off in Katog courses 

• First Runners up: Post of Student Editor + Blog Publication + Internship Opportunity + 10% off in Katog courses 

• Second Runners up: Blog Publication + Internship Opportunity + 10% off in Katog courses 

• Top 3 participants shall also be given an Internship Opportunity at C.L.A.W Legal. 

• Top 10 shall be given a certificate of merit along with Blog Publication. 

• 30% off in publication fee shall be given to all the participants who successfully submit their blogs, provided the paper is selected for publication. 

• 10% off in Katog courses shall be given to all the participants. 

• E-certificate shall be given to all the participants who submit their blog successfully. 

Mode of Registration: 

• There shall be a nominal fee of Rs. 150 and Rs. 200 in case of co-authorship. 

• The payment can be done through Google Pay/BHIM/PhonePe on 9828733985 (Archie Anant). For any other mode, drop us a mail on submissionlawgicalforum@gmail.com. 

• After the payment, fill the given form below and attach the screenshot of payment. 

A confirmation mail shall be sent to the participant within 48 hours. 

Registration Link:

https://docs.google.com/forms/d/e/1FAIpQLSd5fWlznanK01eJQ9e6ruy71uMmrhbsFk9CiCoxZOAqVhEZqg/viewform

Important Dates: 

• Last date for registration (by filling the form): 12th August 2020 

• Last date of submission (Any blog received after the deadline shall not be given any consideration): 15th August 2020 

• Declaration of the result: 5th September 2020 

Contact us: 

You may feel free to contact the following in case of any query: 

Email: submissionlawgicalforum@gmail.com 

Contact Number: 9828733985, 7062347885. 

Website link

https://lawgicalforum.com/

Extradition Laws in India

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This article is written by Harshit Khandelwal, 2nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the basic meaning of what  Extradition is, the procedure of extradition of a fugitive offender from one jurisdiction to another. 

INTRODUCTION

Extradition is a process where a person accused or convicted of committing a crime is delivered from one jurisdiction to another jurisdiction, over to their law enforcement. It is a process of cooperative law enforcement between two jurisdictions and depends on the arrangements made between two jurisdictions.  

Other than the legal aspect of this process, it also involves the physical transfer of a person’s custody being extradited from one jurisdiction to another jurisdiction. 

When one jurisdiction requests to another jurisdiction, it is known as the Extradition process. Extradition is normally synchronized by treaties between the countries. When extradition is forced by laws, among sub-national jurisdictions, then it is known as rendition. If the offender is found within the territory of the requested jurisdiction, then the requested state may arrest the offender.

Extradition Offence

Extradition offence is defined under section 2(c) as – 

  • An offense punishable under Indian law or any other foreign law with an imprisonment of not less than one year.
  • An offence in part or wholly in Foreign or Indian state, which would constitute an extradition offence.

A fugitive offender can be extradited as per section 2(f) it is a person who :

Who is convicted or accused of an extradition offence committed within the jurisdiction of a state – 

 If a person has committed an offence in a foreign state from within the parts of India, then he/she will be liable to be extradited and is known as a fugitive offender.  

Extradition Process  

  • Receipt of Information

The process of extradition starts with the receipt of requisition regarding the fugitive offenders wanted in foreign countries. This information can be received –

1. Directly from the diplomatic channels of the particular country with the necessary information regarding the fugitive offenders; or 

2. In the form of red notices from the General Secretariat of Interpol.

  • Magisterial Inquiry 

When a requisition is received, the central government calls for an inquiry by the magistrate directing him/her to enquire into the case. The initial enquiry doesn’t need to be a detailed one before ordering a magisterial inquiry. There is no need for a pre-decisional hearing required to be given to the fugitive before ordering the magisterial inquiry. The function of the magistrate is quasi-judicial under this section. The magistrate should issue an arrest warrant against the fugitive offender on receipt of the order. Once the offender is brought in front of the magistrate then the magistrate starts inquiry in the case.

Procedure Under the Indian Extradition Act, 1962 

The government of India currently has bilateral extradition treaties with around 42 countries and also extradition agreements with 9 more countries to ease the process of extradition. In India, the extradition of an offender from a foreign country to India or vice-versa is governed by the provisions of the Indian Extradition Act, 1962. Section 3 of this act states that notification could be issued by the Indian Government extending the provision of the act to the countries notified. The basis of Extradition could be a treaty between a Foreign country and India and when there is an absence of a treaty, an agreement of Extradition.    

Extradition Treaties and Agreements

There is no country in the world which has an extradition treaty with all other countries, just like the United States does not have an extradition treaty with China, Namibia, North Korea, Bahrain, and many other countries. 

1. Indian Extradition Law

The extradition of a fugitive offender from a Foreign country to India and vice-versa is covered under the provisions of Indian Extradition Law, 1962 which forms the legislative basis for this area of law. The first principle of extradition law is laid down by this act. 

2. EXTRADITION TREATY 

Section 2(d) of the Extradition act means an agreement, treaty, or arrangement with a foreign state relating to the extradition of fugitive offenders is known as the Extradition Treaty. 

3. NEED AND UNDERLYING PHILOSOPHY OF THE LAW OF EXTRADITION

Crimes are increasing day by day and are turning International nowadays. Many serious offences have crossed the border implications. In the case of Traditional crime, offenders frequently cross borders to escape from prosecution. 

The traditional principle of territoriality of Criminal law states that a state does not usually apply its criminal law to acts committed outside the jurisdiction of the state. However, the current situation between different states says that states should co-operate in the international battle against crime. Even though the state refuses to put direct criminal sanctions to all the offences which are committed abroad, the states usually co-operate with each other in bringing perpetrators of crime to justice. 

The process of extradition, therefore, evolved under the principle of comity of nations whereby one state surrenders a criminal to the other state for bringing him to justice where the offender has committed the offense. Extradition means to resolve two conflicting principles –

1. Criminal jurisdiction extends only to offences committed within the geographical boundaries.

2. The rule that frowns over a criminal going unpunished on account of jurisdictional reasons.

CONCLUSION 

Extradition is considered to be a great step towards international cooperation in the suppression of crime. Extradition should be considered as an obligation by the states resulting in international solidarity in the fight against crime. 

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Marital Rape in India

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INTRODUCTION

India is a country which is full of diverse culture and values and marriage is considered a very essential ingredient, it is a bond between two individuals which gives legitimacy to have sexual intercourse. Now let us begin with understanding the meaning of rape –

Rape is defined under section 375 of the Indian Penal Code, it is defined as a criminal offence, further, it is stated that when a man has sexual intercourse with any women without her consent or will it be termed as rape. Also, under this section, just penetration is enough for being held liable for offence of rape. There are certain conditions that are mentioned under this act such as: –

> If the offence is committed without her consent

>If it is done without the will of the women

>When a woman gives her consent however, she gives her consent as she might believe that the person is her lawfully wedded husband

>Proper consent was present but the women did not know the nature or result of her consent

>If the girl is below 16 years then also her consent will not matter.[1]

Another form of rape is marital rape, however the problem with it is that it has still not been criminalized in India. So basically, marital rape, is an act of sexual intercourse with one’s spouse without the spouse’s consent. Although the problem is that in India marital rape has not been given the proper recognition, it is believed that in a marriage the spouse has the right to engage in the act without proper consent too. Marital rape is more widely experienced in women, it is regarded as a chronic form of violence and especially exists in abusive relationships. [2]Most countries had criminalized marital in the late 20th century onwards they have occurred in various ways including the removal of statutory exemptions from the definitions of rape, judicial decisions etc.

Historically marital rape was seen as a crime or tort of theft of man’s property and not much importance was provided to it.

Mathew Hale had described that a husband could not be charged with rape of his wife, it was not till 1990 that ICC statute recognized crimes of sexual violence as any violent crime even rape was to given much value before. [3] The Indian culture has a lot of expectations from women they want her to be ‘pativrata’ and they consider marriage to be a sacred bond which should not be broken anyhow and due to this societal pressure, most women tolerate the heinous crimes that take place with them almost daily.

Even in history women were treated as the property of males, first the property of their father and then their husbands due to this reason they are often not provided with education as it is thought that women are made to serve their husbands and education will thus be of no use.[4] Also, India has proved by not criminalizing marital rape that even after so much development women are still the property of their husbands and thus, they could do anything as they please.

Article 14 of the constitution is concerned with equality however when it comes to the topic of women getting sexually abused in marriage, this article fails miserably to provide any kind of equal rights to women. [5]

After the Delhi Gang Rape, a committee named Verma Committee had even suggested that marital rape should be included in article 375 however there was no progress and the question regarding criminalizing of this heinous crime did not get any answer as the government is continuously delaying it.

Kinds of Marital Rape

The following kind of rapes are part of martial rape – [6]

Battering rape – In these cases unfortunately the women is subjected to both sexual and physical violence and the violence experienced can be of various ways. Some are left battered during the violence or sometimes the violence takes place after sexual intercourse, the majority of victims fall under this.

Force only rape – In these types of cases the husbands use force to obtain the consent of their wives here a lot of violence is however not involved.

Obsessive rape – It is also termed as sadistic rape this involves various kinds of torturous sexual act; they are generally very violent and involve a lot of physical injuries. 

Protection of Women from Domestic Violence Act

This act was introduced in the year 2005, to protect women from any kind of violence that they had to face in their marriage however this act was not enough for protecting women from the crime of Marital Rape as till now it is not recognized in India properly and any women who become the victim of such crime can only separate from her husband on the grounds of cruelty, therefore, this act was not of much help in giving any kind of protection to women with regards to this particular crime. [7]

Case- Laws

  • Queen Empress v. Haree Mohan Mythee

In this particular case, the daughter of the defendant Phulmonee Dassee, who was eleven years old was brutally raped and because of which she died. The medical evidence report had claimed that she died because of the ruptured vagina that happened due to the brutal rape done. The ruptured vagina started to bleed a lot and due to excess blood overflow, she died on spot.

  • Anuja Kapur v. Union of India: –

In this particular case, a Public Interest Litigation was filed before the Honorable High Court of Delhi regarding some framing of important guidelines or bye-laws relating to marital rape as a proper ground for seeking divorce and also fixing some punishment/ penalties for violating such framed guided laws. The high court had held that framing of laws, guidelines and provisions is the function of legislature and not the court. The court is more actually concerned with interpretation of laws and not in the framing of laws.

  • State of Karnataka v. Krishnappa: –

In this particular case, the court had held that Non- Consent Intercourse would lead to violation of the rights and also lead to sexual violence. The convicts would be punished with heavy fines along with imprisonment which would also lead to life imprisonment.

  • Suchita Srivastava & Anr. V. Chandigarh Administration:

In this case, Supreme Court had given a judgement that a woman’s right to reproductive choices is a dimension of personal liberty as mentioned in Article 21 of the Constitution of India. It is really important that the rights are exercised and also everything is done under consent without any infringement of any right which might lead to imprisonment along with fine or both. It also leads to violation of woman’s dignity and reputation too.

Conclusion

Therefore, from the entire article it is fully portrayed that how marital rape is considered as a social evil and how many women are victim of this. Their rights are not even protected and it leads to violation of personal status and reputation. We need to protect our woman and make this country a safer place to live in otherwise sooner or later our country will become one of the most unsafe places to live which it has already become. Continuous cases of rape are being recorded even during this corona situation. We need to have a stricter law and also stricter leaders who can do something in order to stop the rape cases happening day to day and making night time unsafe for women. Husbands should be loyal and respect the choice of the women. They are not an animal or a servant of yours. Even the have a life and husbands should treat them with love and respect all the time and make their woman feel safe.

[1] https://en.wikipedia.org/wiki/Rape. (last visited 24th July, 11:29)

[2] https://www.merriam-webster.com/dictionary/rape. (last visited 24th July, 13:13)

[3] https://www.independent.co.uk/topic/rape. (last visited 24th July, 16:49)

[4] https://kidshealth.org/en/teens/rape-what-to-do.html. (last visited 24th July, 18:37)

[5] https://www.met.police.uk/advice/advice-and-information/rsa/rape-and-sexual-assault/what-is-rape-and-sexual-assault/. (last visited, 24th July, 21:58)

[6] https://blog.ipleaders.in/marital-rape-criminalization/. (last visited 25th July, 12:11)

[7] https://www.aljazeera.com/topics/issues/rape.html. (last visited 25th July, 18:36)

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How to Register a Copyright in India: Procedure under the Copyright Act, 1957

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. This article focusses primarily on how copyright can be registered in India. In India, various provisions of copyright registration are governed by the Copyright Act, 1957 and the Copyright Rules, 2013.

INTRODUCTION

Copyright is a legal means of protecting one’s work for example work of an author or an artist etc. It is one of the many intellectual property rights available to a person and it serves the purposes of exclusive publication, distribution and usage rights for the owner of such copyright. Whenever someone creates any content which is new and is a result of one’s creativity and hard work, one certainly wants to enjoy the benefits to accrue therefrom: pecuniary or otherwise.

In India, copyright can be secured for having original works in various areas viz. literary works, fashion designs, music, cinematography films, artistic works such as paintings, performances, software and other computer programs and compilations etc. It is noteworthy that copyright does not protect titles, names, ideas, concepts, slogans, methods, and short phrases.

Need for Registering a Copyright

Generally, when one creates any original work, a copyright is automatically generated. The problem arises when someone copies or steals your work. No doubt, the legal redress is available and it will be easier for one to prove that the work is originally theirs if they have the copyright registered for the same. Thus, it serves numerous purposes of legal ownership and an evidence, using one’s work for broadcasting it and or earning profits therefrom and most importantly it creates a public record of one’s creation.

Who Can get a Copyright Registered in his Name?

The person who developed the original work can get copyright registered in his name by submitting an application for the same. Such a person is called Author of the work. He is legally allowed to get a copyright for his work. It also includes the ‘work made for hire’ i.e. if the original work is made during the course of employment then the employer will be the author.

Another person that can get copyright registered in his name can be the Owner of exclusive rights. In India, the copyright law grants such a person to exclusively control, use and distribute the original work. It includes many rights with respect to the original work viz. the right to reproduce or make copies or distribute the copies, the right to the public display of the work, the right to perform as well as the right to change or make derivates of the original work. Thus, such a person called the owner of these exclusive rights can make an application for registering his claim to the original work.

Another category includes the Copyright Claimant i.e. either the author or any person or organization that has obtained ownership rights from the author. This can be done in many ways i.e. through a will, contract etc.

There is another category namely the Authorized Agent i.e. a person who has been authorized to act on behalf of an author or the copyright claimant or the owner of exclusive rights.

There is no age bar as to who can get a copyright registered therefore, a minor can also register the same. The rationale behind this is there can be no age restraint when it comes to creativity.

In case where the number of creators exceed one then they are co-owners of such a copyright unless they have agreed otherwise.

General Documentation Requirements

It would be helpful to discuss the vital documents which are required to register a copyright under the Indian Copyright Act, 1957. It should be kept in mind that there are different requirements for different kinds of work but generally these are as follows:

  1. If the work is published then three copies of the same and if it is unpublished then two copies of the unpublished work are required. And if the copyright is required for software, then source code and object code of such work are also mandatory.
  2. In case it is a published work then the year and address of first publication is also a requirement along with any and every information regarding the year and country of subsequent publications.
  3. The authorization requirements must be met if the work is not of the person applying for getting a copyright from the owner of the work.
  4. The special Power of Attorney must be signed by both the attorney as well as the party authorizing the attorney to file an application on their behalf.
  5. The information specifying the name, address and nationality of the applicant. If the applicant is not the author or the author is deceased, a document containing the name, address and nationality of the author and/or the date of his death as the case may be must be submitted. The applicant also needs to provide his email address and mobile number.
  6. The information regarding the title and language of the work must be submitted.
  7. No-Objection requisites: A no-objection certificate is required from the office of trademarks if the work is intended to be used on a product. A no-objection certificate and/or authorization from the author is required if the applicant is not the author. Also, in case there is any photograph of any person appearing in the work, then a no-objection certificate from him is required as well. Whereas in case there is a publisher involved and he is not the applicant, a no-objection certificate from such publisher is required.

Procedure for Registering a Copyright

The original work can be registered under the Register of Copyrights (ROC) by virtue of Chapter X of the Copyright Act, 1957. There are also various rules incorporated in the Copyright Rules, 2013 and Chapter XIII governs the registration of a copyright.

The steps involved in the registration process are: filing an application, examination of such application and then registration of the copyright. They are briefly discussed below:

  1. Filing of an application: The applicant (author, owner of exclusive rights, copyright claimant or an authorized agent) can file an application either by submitting it physically in the Copyrights Office or through registered/speed post or through e-filing the application on copyright.gov.in which is an official government website. One must keep in mind that there is different registration for each work and thus, a separate application must be filed. There is a requisite fee which is different for different works and must be given at the time of filing an application. It must be noted here that all the requisite documents as specified above must be submitted along with the filing of such application. Then a diary number will be issued by the Registrar of Copyrights.
  2. Examination of Application: Once the application is filed, there is a minimum thirty days waiting period for reviewing the application as well as to see if there are any objections raised with respect to the said application.

Then, in case there are no objections raised, the examiner will review and scrutinize the application and see if the documents attached therewith are complete and in case there are no discrepancies found then the application reaches the next stage else the applicant is asked through a Letter of Discrepancy to appear in a hearing before a Registrar based upon the applicant’s reply to such an application. As soon as the discrepancy is solved, the application reaches the next stage.

In case there are any objections raised by someone, then letters for attending a hearing before a Registrar are sent to both the parties. If the objection is rejected, the application is reviewed for any discrepancy as explained above and if it is cleared then it moves to the next stage. In case the objection is not clarified or the discrepancy is not resolved, then the application is rejected and a letter of rejection is sent to the applicant.

  • Registration of Copyright: The registrar may ask for any additional documents if it is required. As soon as the Registrar is satisfied by the claim made by an applicant, then the details of the copyright are entered in the register of the copyrights by the Registrar and then a certificate is issued of such registration to the applicant. The process culminates when extracts of the Register of Copyrights is issued to the applicant.

CONCLUSION

Therefore, registration of a copyright is a fool proof method of securing one’s right of his intellectual property. It is this sense of security that thrives the creativity of the people as well as enable people to economically benefit from their work. In a society where such rights are not provided to the authors, the spirit of creativity and growth would perish.

To provide suitable redress or protection to the copyright holders, the Copyright Act, 1957 provides imprisonment from six months to three years and a fine of not less than INR 50,000 in case their right is infringed by someone. Thus, a copyright comes into existence as soon as an original work is created. The process of registration facilitates the redress in case of violation of one’s rights.

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Job Opportunity: Assistant Professor [Law] at Amity Law School

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About the Organisation

Amity Law School, Delhi is a law school in Noida. Founded under the aegis of the Ritnand Balved Education Foundation (RBEF) in 1999. Amity Law School is looking for dedicated and committed faculty members who believe in institution building and have a passion for academic excellence and quality resources

Eligibility

  1. 1st class LL.B & LL.M degrees from reputed college / University.
  2. The applicant must have cleared the National Eligibility Test (NET) conducted by the UGC.
  3. Desirability PhD or Pursuing PhD from reputed Institute / University
  4. At least 2 years of teaching experience.

Click on the link below

https://portal.amity.edu/Careers

1ST LAWSCHOLE VIRTUAL MOOT COURT COMPETITION [AUG 28-30]; REGISTRATION ON FIRST COME FIRST SERVED BASIS, REGISTER NOW!!

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ABOUT THE ORGANISER

From the beginning, Lawschole has been driven by the interests and involvement of our incredible and engaged law students. We are a great resource, offering opportunities for students to be active in a variety of topics and to engage with each other in an interesting and safe online environment. It is a forum where law students can share thoughts, seek opinions and advice, and learn something new from other members of the forum. We are a hub of various events including webinars, various
competitions, courses, moot court competition series, and blogs.

ABOUT THE MOOT COURT COMPETITION

The 1st Lawschole Moot Court Competition aims to provide law students with excellence in the world of mooting. The top 8 rankers of the competition will also get a chance to represent their institution in the “Yearly Rounds of the Pracs Series- Lawschole Moot Court Competition”, which shall be held in January every year. The top 8 rankers shall get a direct entry to the yearly rounds of the competition at a global level. This event is an excellent opportunity for law students to turn things around and use their time wisely. The event will enhance the advocacy and drafting skills of the participants. The aim of this competition is to enable law students all across India to participate and showcase their majesty over law and legal principles over a virtual platform.


ELIGIBILITY

Students of three year and five-year law degree courses or PG students from any University/Law School/College/Department are eligible to apply for registration of their team.


TEAM SIZE AND OTHER INFORMATION

Each team shall consist of a minimum of two participants and a maximum of three; two participants shall be the speaker and one participant as a Researcher. However, a team consisting of two participants are allowed as Speaker 1 and 2.
Maximum 20 teams are allowed to participate in the 1st Lawschole Virtual Moot Court Competition on a first-come-first-served basis.


REGISTRATION PROCEDURE

i) The last date of registration shall be August 5, 2020. Early Bird Registrations are open from July 20 to July 31, 2020. The registration shall be on a first-come-first-served basis. Therefore, if the Team cap limit of 20 (Twenty) Teams is filled beforehand, the registration for the competition shall close.


ii) Registration amount is Rs. 500/- (From July 20 to July 31, 2020). – EARLY BIRD DISCOUNT
Registration amount is Rs. 600/-. (On or after August 1, 2020, to August 5, 2020)


iii) The Registration shall be done by filling up the Application form, available here:
https://forms.gle/vknyjmbDXnw7hweN6 and after the payment, the participating team shall attach a screenshot of the payment receipt.
iv) Participants can submit the Registration fee via PayTm UPI Money Transfer, Bhim UPI, or Gpay by using the following UPI ID OR SCANNING THE QR CODE GIVEN IN THE RULE-BOOK ATTACHED BELOW (PLEASE NOTE: We DO NOT accept payments in Paytm Wallet. Make sure the transfer is a UPI MONEY TRANSFER.)


UPI ID- aprajitabhardwaj18@okicici
or,
PAYTM UPI ID- 7461015926@paytm
The registration fee shall be non-refundable and non-transferable.

IMPORTANT LINKS

 FIND THE RULE BOOK HERE-
https://drive.google.com/file/d/10MmuEeLPWEfbYOZ4jlfwYSD0hZtNdeh2/view

 FIND THE MOOT PROPOSITION HERE-
https://drive.google.com/file/d/1FQiFnJrIdx_6tCn_kEIifwYjaZlxcvB-/view

 REGISTER HERE-

https://forms.gle/vknyjmbDXnw7hweN6


IMPORTANT DATES

Registration Starts: July 20, 2020
Moot Problem Releases: July


Last Date Of Registration: August 5, 2020
Submission Of Memorial: August 22, 2020
Date Of The Competition: August 28-30, 2020

MAXIMUM NUMBER OF TEAMS ALLOWED: 20
REGISTRATION ON FIRST COME FIRST SERVED BASIS. (Note that the registration shall close prior to the date mentioned if the maximum number of teams (20 TEAMS-CAP LIMIT) fills prior to the registration date.

PRIZES

Winner: Prizes worth Rs. 3000+ Certificate of Achievement+ 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.

Runner up- Prizes worth Rs. 2000+ Certificate of Achievement + 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.

Best Speaker- Prizes worth Rs. 1000+ Certificate of Achievement + 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.

Best Memorial- Prizes worth Rs. 1000+ Certificate of Achievement+ 20% discount on Courses provided by Memo Pundits+ an opportunity to work with the team of Lawschole.

Top 8 teams in preliminary rounds: Certificate of Merit+ 20% discount on Courses provided by Memo Pundits

Other Participating Teams: Certificate of Participation + 20% discount on Courses provided by Memo Pundits

OFFICIAL LINKS

For more details visit- https://www.lawschole.com/moot?cid=9d95bda3-8b9a-4d65-b031-ff785d43203c&utm_campaign=afe6a475-92f1-4724-9179-47693d2d4faf&utm_medium=mail&utm_source=so
Visit our website on- https://www.lawschole.com/

QUERIES

i) For any queries, you may drop an email at lawschole@gmail.com
ii) You may get in touch at:

  • Siddhi Shubhangi, Convenor, LVMCC, 2020 – +91 9835214477
  • Tanya Shishir, Co- Convenor, LVMCC, 2020 – +91 8009831216

Hambrook v. Stokes Bros

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In this article, Sagnik Chatterjee, who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, analyzes the case Hambrook v. Stokes Bros.

Equivalent Citation 

[1925] 1 KB 141, 94 LJKB 435, 132 LT 707

Bench

Atkin, Bankes, Sargant LJJ

Decided on

1925

Relevant Act/ Section

The Fatal Accidents Act 1846 (9 & 10 Vict. c.93), commonly known as Lord Campbell’s Act, was an Act of the Parliament of the United Kingdom that, for the first time in England and Wales, allowed relatives of people killed by the wrongdoing of others to recover damages. The Act came into effect in August 1846 and gave personal representatives the right to bring a legal action for damages where the deceased person had such a right at the time of their death. Compensation was restricted to the husband, parent, or child of the deceased and was for “such damages … proportioned to the injury resulting from such death.” The wording left the question of how damages were to be assessed. 

Brief Facts

The defendant’s employee left a lorry at the top of a steep narrow street unattended, with the engine running and without having taken proper steps to secure it. The lorry ran violently down the hill. The plaintiff’s wife had been walking up the street with her children and had just parted with them a little below a point where the street made a bend when she saw the lorry rushing around the bend towards her. She became very frightened for the safety of her children, who by that time were out of sight and who she knew must have met the lorry in its travels. She was almost immediately afterwards told by bystanders that a child answering the description of one of hers had been injured. As a consequence of her fright and anxiety, she suffered a nervous shock which eventually caused her death.

Issue

Could people outside the zone of immediate physical danger be owed a duty of care?


Ratio

Bankes and Atkin LJJ (Sargant LJ dissenting) held that on the assumption that the deceased’s shock was caused by what she saw with her own eyes as distinct from what she was told by bystanders, her husband was entitled to recover notwithstanding that the shock was brought about by fear for her children’s safety and not by fear for her own. Atkin LJ said: 

‘In my opinion it is not necessary to treat this cause of action as based upon a duty to take reasonable care to avoid administering a shock to wayfarers. The cause of action, as I have said, appears to be created by breach of the ordinary duty to take reasonable care to avoid inflicting personal injuries, followed by damage, even though the type of damage may be unexpected – namely, shock. The question appears to be as to the extent of the duty, and not as to remoteness of damage. If it were necessary, however, I should accept the view that the duty extended to the duty to take care to avoid threatening personal injury to a child in such circumstances as to cause damage by shock to a parent or guardian then present, and that the duty was owed to the parent or guardian; but I confess that upon this view of the case I should find it difficult to explain why the duty was confined to the case of parent or guardian and child, and did not extend to other relations of life also involving intimate associations; and why it did not eventually extend to bystanders.’

Sargant LJ, dissenting have sought to keep the line resting on the basis of shock caused by fear of injury to oneself, and not to have extended it to that caused by fear of injury to another: 

‘In my judgment, it would be a considerable and unwarranted extension of the duty of owners of vehicles towards others in or near the highway, if it were held to include an obligation not to do anything to render them liable to harm through nervous shock caused by the sight or apprehension of damage to third persons.’

He continued: 

‘It seems to me that, when once the requirement is relaxed, that the shock is to be one caused by the plaintiff’s apprehension of damage to himself, the defendant is exposed to liability for a consequence which is only reached by a new and quite unusual link in the chain of causation, and which cannot therefore properly be held to have been within his ordinary and reasonable expectation. And the extent of this extra liability is necessarily both wide and indefinite, in as much as it may vary with the precise degree of connection between the person injured and the plaintiff, and also, perhaps, with the circumstances attending the realisation by the plaintiff of actual or apprehended injury to the third person.’

And then he asked: 

‘For instance, should it extend to a shock occasioned to a daughter by apprehended danger to a mother, or to a sister by apprehended danger to a brother? And where, as in this case, the apprehended danger is out of the sight of the plaintiff, ought the plaintiff to be entitled to recover for the illness by shock, if the facts were that the person whose safety was in question had turned off the dangerous highway, or had for some other reason never been in imminent danger at all?’

Decision of the Court

The husband was entitled to recover for the shock inflicted on her due to the reasonable fear of the immediate injury to her child from the runaway lorry. An express distinction was to be made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case. Persons outside the zone of physical danger were nevertheless owed a duty of care, because injury by shock was the only kind of injury that was foreseeable in such circumstances.

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