Month: July 2020

Liability for Dangerous Premises

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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

Have you ever wondered that if there is any kind of liability of a person who is inviting someone to his premises?. Are there some precautions that a person is required to take if children are entering his/her premises?

The tort has over the years taken on different forms depending on the circumstances of the incident. In general, tort liability is associated with monetary awards, but some forms of liability can lead to other remedies such as restraining order or injunction. The responsibility of a person for possession of land and building to take reasonable care about their safe condition arises towards a person outside the premises and towards a person entering the premises.

While his duty towards the person outside his premises arises if that person makes improper use of his property. Whereas, responsibility towards a person entering the premises arises when the latter invites or grants permission to the person to enter the premise. 

According to the Occupiers Liability Act, 1957, is an act that was enacted in England. Earlier this act created a lot of confusion hence later on it was simplified. So according to the act liability of a person arises for 3 people. Firstly, towards a person residing outside the premises. Secondly, duty arising towards a trespasser or, a person entering the premises, and in the third case, the obligation rising towards children. A claim under Occupier’s Liability Act works similarly to the claim for negligence. A breach of duty and duty of care has to be shown alongside the damages resulting from such a breach of duty. 

Objective

The main objective of the act is it deals with the liability or obligations towards lawful visitors, trespassers, and children.

Who is an Occupier?

An occupier is a person who has complete control over his premises. He need not be the physical owner. There is no test to determine if a person is an occupier or not. Thus, only the facts of the case will determine if the person is an occupier or not

Duty Towards Lawful Visitor

The position has always been governed by Common Law rules. Once the Occupiers’ Liability Act, 1957 was passed. There are two categories of visitors:

1. The invitees-The visitor was known as Invitee if the visitor and the occupier of the premises had a common interest in the visit of the visitor.

E.g.-When a person enters a shop as a buyer then it doesn’t matter if he bought things or not.

2. Licensees-When the visitor has no interest in the business of the owner and enters the premises with the consent of the owner of the premises then he was known as Licensee.

E.g. – Any guest invited to the party.

Types of invitees-

Public invitee: these are the type of invitees that enter the premises with a similar objective with which the other public enters the premises that means that these invitees enter the premises for the same reason the premises is open to the public.

Business Invitee: This includes the people who enter or remain on the premises for the purpose which is related to the business of the occupier.

Duty Towards Invitee

The occupier was supposed to take the most amount of care towards an Invitee. The owner of the premises has to ensure that the Invitee is safe from any dangers on the property.

The occupier’s liability act mentions that the Invitee is liable only for the loss caused by an unusual danger, in this respect, he is not only liable for the danger which he is aware of but also for the danger for which he is unaware.

It must be noted, that the occupier is required to take reasonable care to prevent any damage to the invitees. Reasonableness varies from one case to another, depending upon the facts and circumstances of each case. Thus, a person is required to take reasonable care which a well-judged person would have taken under similar circumstances.

Duty Towards a Licensee

A licensee is a person who enters the premises with some work related to the business of the occupier directly or indirectly with consent. 

Under the Common Law, the occupier had the duty to provide the details about any latent defect, which he was aware of. However, the occupier was not liable if the danger was not known to him. The owner was also not liable for the danger which was obvious and that the licensee appreciated the same. The owner of premises owed a duty that he would not injure the licensee intentionally or maliciously. Reasonable notice was to be given to the Licensee if new danger was created.

Duty Towards Children

Occupier’s Liability Act, 1957 mentions that the owner of the premises is expected to be much more careful when children enter the premises.it is expected that he knows that he has to be more careful when children are entering the premises. He has to protect the children even from the dangers in  which adults need no protection this is because children do not react to a dangerous situation in a similar way in which adults react hence they need more protection

Liability of Landlord

Generally, whenever a building is given on rent, then it is the tenant who is liable to the visitors for any damage caused to them in the premises:

Common Areas: The landlord is liable for the common areas which are shared by all tenants like stairways, hallways, etc.

Latent Defects: Any defect which the landlord was previously aware of and despite that defect agreed to the tenancy then any harm caused because of that defect will make the landlord liable.

Contractual obligation to repair: Generally, the landlord is not responsible to make repairs in the building. However, if he had agreed with the tenant in writing an undertaking to repair the building whenever necessary. Then it will be the landlord who will be responsible if any injury is caused to the visitors because of the negligence in repair.

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WBNUJS’ Society for Advancement of Criminal Justice: Call for Blogs

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ABOUT WBNUJS’ Society

The Society for Advancement of Criminal Justice at WBNUJS is a premier academic society at WBNUJS working in the area of Criminal Law and its allied disciplines. Since its inception in the year 2005, the Society has focused to foster upon a conducive environment to promote discourse in its area of work.

ABOUT THE BLOG

The piece of work submitted must be original, unpublished and not under review anywhere. Any form of plagiarism will result in an automatic disqualification. Before submitting any work it is requested to refer to our ‘Conditions for Publication’ dealing with our submission policies regarding plagiarism, copyright infringement and ownership provided on the website.

FEE

There is no publication fee for the approved works.

SUBMISSION PROCESS

All the submissions must be mailed to sacjblog[at]gmail.com and must be in word format (‘.doc’s or ‘.docx’).

IMPORTANT GUIDELINES

The submissions are accepted under the following heads:

  • Blogs: word limit for the same shall ideally be within 2000 (excluding footnotes).
  • Case Comments: should ideally be confided between 1500-3000 words.
  • Essays: word limit is 6000 words.
  • Articles: should ideally be confided between 3000-6000 words.

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CONTACT INFORMATION

In case of any other queries, you can reach out to on sacjblog@gmail.com

Teaching Associate at Lal Bahadur Shastri National Academy of Administration: Salary 40,000 p.m.

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ABOUT THE INSTITUTE

Lal Bahadur Shastri National Academy of Administration (LBSNAA), Mussoorie, the apex institution for the training of senior civil servants wishes to engage the services of bright young professionals as Teaching Associates (Research Interns) to assist the faculty of Law in teaching/training and Research activities. Post Graduates in the relevant discipline who have an interest in and aptitude for training/research are eligible.

JOB DESCRIPTION

The position is contractual with an initial contract period of six months which may be extended for another two terms of six months each based on performance appraisal. Teaching Associates (Research Intern) will be paid a consolidated sum of Rs. 40,000 and will be provided accommodation in hostels on payment of prescribed rent.

ELIGIBILITY

Qualifications and Terms of Appointment for the post of Teaching Associates (Research Intern)

  1. Post Graduation Degree in a discipline relevant to the subject i.e. in Law with at least 55% marks and having an aptitude for academics and research.
  2. Candidates should be proficient in the use of computers.
  3. Preference will be given to persons who are registered for a PhD or are pursuing M.Phil program in the relevant discipline and to those who may have worked in a similar capacity in the past.
  4. Teaching Associates (Research Interns) will be appointed on Contract for a term of Six Months, which may be extended by another two terms of Six months each based on performance appraisal. No Teaching Associate (Research Interns) will be engaged beyond three terms in any case.
  5. In casework of any Interns is not satisfactory, the contract can be terminated any time after giving a notice of 1 month or, at the discretion of the Academy, by giving one-month remuneration in lieu of the notice. An Intern may also terminate the contract after giving one month’s notice or payment of one-month remuneration in lieu thereof.
  6. Teaching Associates (Research Interns) will be paid a consolidated remuneration of Rs 40,000 p.m. If they are to travel on official duty, they will be reimbursed travel expenses at the rates applicable for Group ‘8’ employees.
  7. Candidates should be below 35 years of age.

SALARY

Teaching Associates (Research Intern) will be paid a consolidated sum of Rs. 40,000 p.m. and will be provided accommodation in hostels on payment of prescribed rent.

Click Here for the DetailsDownload

Details of the vacancies are as mentioned below:
No. of Vacancies – 01(Law)

APPLICATION PROCESS

Interested candidates are required to submit their application in the prescribed proforma to Director, LBSNAA, Mussoorie or mail the same to adminsec.lbsnaa@nic.in.
Applications found incomplete will not be considered.
The recruitment will be a rolling process and engagement will be done as and when the vacancy arises. Applications will be valid for the current financial year. All valid applications available in the Academy by the 20thof any month will be considered monthly, for any vacancies available at the time of consideration.

Right to Legal Aid

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This Article is Written by Akanksha Chowdhury from Amity University, Kolkata. The article talks about legal aid along with a wider approach to scope, criteria and also landmark cases where the importance of Legal Aid has been portrayed. 

Introduction

Legal aid helps to provide assistance to people who are unable to afford legal representation and access the court system. Under section 2(1)(c) of the Legal Services Authorities Act, 1986 includes the providing of any service in any case or legal proceeding before any authority or tribunal. 

Basically, the term legal aid is a modern phenomenon which helps to provide support to various special poor people in the society thus it is mainly designed to help the poor, socially deprived and backward classes of our population who are unable to protect their interests. 

A large section of our society has lost their will to fight against any kind of injustice, though the government introduced various welfare schemes for the benefit of these people but due to lack of resources these schemes cannot be implemented in a proper way. The population of India are mostly illiterate and thus becomes an easy target of injustice prevailing in our country and since these people do not know much about their rights, they are not able to protect themselves in the court and thus start using their muscle power and makes the matter worse. Since the year 1976 the concept of free legal aid was introduced in article 39-A of the constitution of India.

Article 39 A – It says that the state must ensure that the legal system should work in such a way that it provides equal opportunity to everyone and also must provide free legal aid with the help of suitable legislation.  

The right to legal aid services across the globe has been recognized as an important part of human rights and also a fundamental right. In our country , most of the population is poor and most of these people are not able to approach the court of law through  a good lawyer because of lack of resources and thus they suffer a lot however if free legal aid is provided to them then at least even they will have a chance  to protect their interests in the courts . 

The evolution of the idea of legal aid first arrived in France, the government there had introduced an act which could help to provide all kinds of free legal aid to the needy. However, in India this concept of legal aid arrived a little late around the year 1952, again in the year 1980 a committee was formed for supervising the various legal ai programs throughout the country under the chairmanship of Justice P.N. Bhagwati.

In 1987, the Legal Services Authority Act was enacted so as to promote legal aid, however this act was properly enacted in the year 1995.

According to section 12 of the above-mentioned act the following people are eligible for free legal aid: –

> Any member of scheduled caste or schedule tribe 

>Any person who has suffered from any kind of natural calamity, children, lunatic, physically handicapped person etc. 

> Anyone having annual income of less than 1 lakh 

> Any women 

> Order by court 

> Victims of human trafficking  

Criteria for Providing Legal Aid Services

There are some of the criteria which are mentioned who can obtain legal aid services as per the Constitution of India. The criterions are mentioned as accordingly: –

  1. A Member of Scheduled Cast, Schedule Tribe or Other Backward Class;
  2. Any person victim of Serious Human Trafficking or Abuse;
  3. A Women or a Child Facing serious issues anywhere;
  4. Any disabled person or a person having mental disorder;
  5. Any victim of a natural disaster like Earthquake or flood;
  6. A person who is in custody by police;
  7. Any person facing financial problem;

These are some of the categories who have the right to get legal aid and also there are some more criteria mentioned under them which has to be taken care of properly. 

Some cases in which Legal Aid Cannot be Provided

These are some of the cases under which Legal Aid cannot be provided and is therefore really tough to get at. The cases involved under this heading are as follows:

  1. Cases of Defamation;
  2. Cases involving Contempt of Court;
  3. Cases involving lying under oath;
  4. Cases involving certain Economic Conflicts;
  5. Cases where fine of more than 50 rupees is not imposed;
  6. Cases involving Social Laws;

How to Approach for Legal Aid

Talking about the procedure, there are some vital points which clearly outline how a particular person must approach for a legal aid service so as to attain immediate justice as and when needed. The steps are as under:

  1. A proper Written Application has to be made to the particular concerned Authority;
  2. The Authority will look the entire case carefully and record the matter in a rigorous matter and after that take the signature or thumb impression of the one who came to the authority for seeking justice;
  3. The person who came to file for legal aid must file an affidavit before the court which is a really important aspect lying here.

Scope of Legal Aid

Talking about the scope, Legal Aid is really very essential in providing justice to the people at large. In each and every part of the country, citizens have the right to attain legal aid and get access to justice sooner and faster. Especially, the lower sections of the society must be given a certain knowledge about the rights and thus make them introduce through this system. Also, one important aspect which lies over here is about Para-Legal Services which can be given to those having low income. There are certain volunteers who are there to provide justice to these people at an easier and fully free of cost approach. Legal aid provides social and economic justice to the parties affected in the matter. It also protects some of the rights of the individuals like Constitutional, Human and Social rights.

Cases

 Air India Statutory Corporation vs United Labor Union 

In this case a wide scope of article 39 A has been explained. The court had said that article 39A furnishes light to the fact that justice should be provided to everyone on the basis of equality and also no one should be denied justice on the basis of economics or any other factor. 

Hussainara Khatoon vs State of Bihar 

This case played an enormous role in formation of the legal aid system and also providing rights to the poor and lower caste people. Also, in this case the court has given importance to article 39 A which focused on the fact that free legal aid shrive was an important element in order to provide reasonable, fair and equal justice and also right to free legal service which is guaranteed under article 21. 

 State of Haryana vs Darshan Devi-

 In this case the court had also held that poor and needy people should not be neglected in getting free legal aid service. 

Khatri vs State of Bihar  

The supreme court had held in this case that the state was constitutionally bound to provide legal service by hiring a particular law to an accused not only during the trial stage but also when they are produced for the first time before the magistrate  and this right should not be denied on the grounds of financial or administrative reasons . The magistrate and sessions court judges has the responsibility to inform the accused regarding his rights. 

Sukhdev vs Arunachal Pradesh

In this particular case justice P.N Bhagwati had outlined the importance of constructing legal awareness to the poor people as they are not aware about their legal rights and further observed that people who stay in rural areas are illiterate , these illiterate people do not possess significant knowledge regarding their rights therefore this absence of knowledge fails to make them understand about the importance of a lawyer in order to seek justice whenever needed. 

This particular case is considered to be a landmark case in the books of constitution of India.

Sheela Barse vs State of Maharashtra

In this particular case, a writ petition was filed by a journalist Sheela Barse speaking for enquiry in custodial violence to women prisoners while they were locked in a police lockup in the city of Bombay. The petitioner had said that there were 15 women prisoners in Bombay Jail and out of which 5 women were assaulted brutally by the police. Out of these 5 girls, 2 girls were tortured more brutally. The main purpose of this writ petition was to have a clear- cut investigation on the grounds in which these 15 women were arrested. The court had claimed the journalist does not have the right to interfere in this case, the Supreme Court after looking into the writ petition ordered the inspector who was accused of torturing these girls to present herself before the court. The court also directed that these girls should get free legal aid through the help of an NGO. The court had given the order to the inspector general and the authorities of the police department to have a clear- cut investigation in the matter. 

 Conclusion

After jotting and summarizing everything, we can see that how Legal Aid plays a critical role in providing justice to the public at whole irrespective of caste, color, creed, religion, sex etc. it can also be said that the Goddess of Justice can dispense justice safely with a blind- folded approach only if the administrators, justice givers and the ones who practice justice keep their eyes opened widely and poor and needy people are being given helped in order to have a peaceful living. 

And this can be ensured only by way of effective provisions of legal aid in all societies; developed, developing or the underdeveloped.

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Applicable Laws in International Commercial Arbitration

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This article is written by Akshat Mehta, a student at the Institute of Law, Nirma University, Ahmedabad, Gujarat. In this research article, he has tried to highlight the significance of Arbitration in parlance to International Commercial Transitions. Also, he has mentioned the applicable laws in International Commercial Arbitration which could settle the disputes more effectively and efficiently.

INTRODUCTION

With the growing pace of Globalization, transitions between companies or parties of two different countries have gradually increased over the years. But, these increased global transitions have also contributed towards disputes among the parties involved. Some parties prefer to approach the International Court of Justice, National Courts, and International Dispute Resolution Centers while some prefer to follow Arbitration and various other International Conventions and Treaties for the resolution of disputes. Most of the companies are now a day’s optimistically opting for Arbitration centres for the resolution of disputes because normal court settlement takes more time and money to settle the minimal disputes which could be easily sought out by the companies out of court. Arbitration centres usually focus more on the material facts of the case while resolving any matter. Material facts in the international commercial arbitration cases include the hearing witnesses, zest of the meetings, and clauses of the agreement or contract. In this article, I will be focusing on the possible mechanisms that arbitrators usually refer to while hearing a matter concerning International commercial transition.

Need for International Commercial Arbitration

1.     Surpassing National Frontiers: Whenever any individual crosses the boundary of two nations he automatically enters in one legal system from another and the things which are permissible in one nation might not be necessarily permissible in another. In the same way, when two companies from different nations engage in any kind of business activity the applicable laws concerning nations automatically gets applicable and companies often end up violating such laws and hence the need for the arbitration cell is established.

2.     Doctrine of Autonomy of Parties: So far as international contracts are concerned the ‘Doctrine of autonomy of Parties’ prevails, which purposefully states that parties are free to choose by themselves what laws will be applicable to their contract. Now, the problem with this doctrine is that in each and every business transition there will be one party who is in the superior bargaining position, and every time that party will try to have such clauses and laws in the contract which will eventually benefit them only. Here comes the need for arbitration cells to act as a watchdog where one party is unjustly enriching its interests. Also in such a situation, the contract is declared as ‘Unconscionable Contract’ which doesn’t adhere to the principles of Justice, Equality, Good Conscience, and Fairness.  

3.     Recognition by International Convention: Generally if parties tend to seek resolution of disputes at courts in one or the other nation to which the party belongs, lex terrae i.e. Law of the Land applies and also it takes a longer time to get the disputes resolved but, if companies opt for resolution by arbitration then they can have the freedom to choose the applicable international law on their contract. There are various International Conventions available for this purpose such as The European Convention (1961), The UNCITRAL, rules of International Criminal Court, The Washington Convention (1975), The New York Convention (1959) and United Nations Convention on Contracts for International Sale of Goods [CISG] (1980).

Applicable Laws

Let’s discuss some of the applicable laws in the arena of International Commercial Arbitration:

1.     National Law: National Law is applicable in the cases where the state or state-sponsored entity is a party to the contract and at the same time party to the dispute. In such cases, the law of that country will be applicable to which the state the sponsored company belongs to. But, over a period of time, it seemed that the dispute remains unresolved if both the parties or companies are government-sponsored, in such a case it is very difficult to decide which country’s law will prevail and a dispute remains unsettled for a longer period of time. Other than dispute related to ‘National Law’, there are also some other disputes which could remain the contract unsettled are:

a)     Unsuitability of International Trade

b)     Unfair Treatment by one of the party or government concerned

c)     Conflicting National Interests

In the event of such issues certain ‘Stabilization Clauses’ were included at the later stage so that disputes could be settled and an agreement could be performed in a harmonious manner.

2.     Public International Law: As per the older applications either Public International Law is acceptable or National Law is acceptable. In Serbian leans case the permanent court held that “any matter in which state is not a party, will come under the ambit of International Law”. But, presently this narration doesn’t hold true because Public International is no longer limited to states, it does also includes organizations like UN, ICC, etc. and also the emergence of Transnational Laws gives room to new International Commercial Trade Law.

3.     Concurrent Law: It often seemed in the International Commercial Arbitration that after signing the contract states have moulded the contract according to the advantages of the state. For settling such disputes Arbitration often uses National Laws or International Conventions.

4.     The Tronc Commun Doctrine (or Combined Laws): This doctrine is based on the proposition that parties are free to choose their own ‘National Laws’ in order to establish a common consensus over International Commercial Arbitration. In such cases arbitration cells drafts contracts in lieu of the combined laws prevalent in both the nations so that any kind of dispute could be avoided at the later stages.

5.     The Islamic Shariat Law: Most of the contracts and agreements in the Islamic countries are governed according to the Shariat Law as per the holy Quran but, with the emergence of International Laws and Conventions many Islamic countries have shifted towards UNCITRAL and CISG for settling disputes through International Commercial Arbitration Mechanism.

6.     Transnational Laws: The positive idea of Arbitrators behind shifting to Transnational Laws is to minimize the efforts and to provide the exact solutions of disputes concerning the matters specifically related to conventions and laws. For example, the concept of ‘Lex Mercatoria’ is referred by the whole International Business Community in order to settle any dispute related to International Business Transition, General Principles of Law were being referred by the International Criminal Court in order to settle any criminal the dispute between two or more nations and in the same way UNIDROIT principles were being referred by International agencies to draft the contract on International platforms so that uniformity could be achieved.

7.     Principles of Equity and Good Conscience: As I have already mentioned about the ‘Unconscionable Contracts’, the International Commercial Arbitration often gives decisions on moral grounds and award compensation because the clauses of the contract or the intentions of one of the parties or both the parties involved don’t adhere to the principles of Justice, Fairness, Equality, and Good Conscience.

CONCLUSION

With the growing arena of Globalization, arbitration as a dispute resolution mechanism has emerged to a great extent. Multinational Companies, Global Business startups, and Foreign Investors often try to invest and engage in business activities in foreign countries and while doing so they have to keep a note of National Laws of the countries, International Laws and also about various International Conventions. In an event of any dispute companies have to face many issues regarding Jurisdiction and Maintainability of the case if they approach National or International Courts but, if companies prefer to have an arbitration mechanism for the resolution of such disputes then they can resolve such disputes much efficiently and at a very low cost. In this article, we have already seen the various applicable laws in International Commercial Arbitration.  

REFERENCES

[1]. Rituparna Padhy, Applicable Law in International Commercial Arbitration (September 8, 2019),http://lawtimesjournal.in/applicablelawininternationalcommercialarbitration/#:~:text=Difficulties%20arise%20when%20one%20or,the%20four%20laws%20is%20different%E2%80%9D.&text=If%20the%20parties%20have%20not,parties’%20contract%20or%20international%20principles.

[2]. The Applicable Law in an International Commercial Arbitration: Is It Still a Conflict of Laws Problem? https://scholar.smu.edu/cgi/viewcontent.cgi?article=3599&context=til.

[3]. Anand Pratap Singh, Choice Of Law: Problems In International Commercial Arbitration (13 January 2017), https://www.mondaq.com/india/arbitration-dispute-resolution/559850/choice-of-law-problems-in-international-commercial-arbitration.

[4]. International Arbitration, Choice of Law in International Commercial Arbitration (March 28, 2017), https://www.international-arbitration-attorney.com/choice-of-law-international-arbitration/.

[5]. Applicable Law in International Commercial Arbitration, http://www.ketencilaw.com/applicable-law-in-international-commercial-arbitration.html. 

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Definition of State under Article 12

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Author Mansi Malik a fourth-year law student at Lovely Professional University, Phagwara, she is currently interning with Lexpeeps.in

“The article parlance about the definition of state under article 12 of the Indian Constitution

INTRODUCTION

Indian Constitution was presented to the nation on 26th January 1950. Indian Constitution is known as the supreme law of the land, a bag of borrowings. It lays down the principle and framework of government. Indian Constitution lays down salient features, for instance, Codified law, The Largest constitution in the world, Amendment combination of rigid and flexible, Parliamentary form of government, and Federalism. Fundamental Rights are stated in part III from an article (12-35)

Fundamental Rights are inherited from America. Fundamental Rights are justiciable. Fundamental Rights uphold Equality, Dignity, and Unity of Nation. It prevents Despotic rule in the country.

Definition under Article 12

Article 12 defined the term state (only) that applies to article 12-35 of the Indian Constitution. It includes: –

  • Executive and Legislative of Union
  • Executive and Legislative of State
  •  All Local Authorities defined under section 3(31) of General Clause Act Example- Municipalities, Panchayats, District Board
  • All Other Authorities Example- LIC, ONGC, IFC, and Electricity Board

The Supreme Court in one of his landmark judgments held that all agencies even Private Bodies fall under the Meaning of state.

Issue Arose in Article 12

 The Issue raised in article 12 was what is included in other authorities and Landmark Judgements

  •  The University of Madras v. Shantabai AIR 1954 – Supreme Court held that the university formed under Madras Act, falls under the definition of the state. Court laid down the Latin term EJUSDEM GENERIS means (of the same kind). It was held that the Preceding government is sovereign, government, and parliament, government, and state legislature and local authorities.
  • Ujjambai v. The State of UP– Supreme court has overruled the above decision and held that the term ejusdem generis approach is restricted. and also held that article 12 does not drive any common generis among three preceding authorities.
  • Electricity Board of Rajasthan v. Mohanlal – Supreme court formulated a new idea and said if the body is created by statute (Law) in the Indian Constitution, it will fall under article 12. Apex court also held that the body doesn’t need to be sovereign and perform a governmental function. It was held that all universities fall under a state.

Now the question raised that body created by law but created for any commercial purpose whether that will fall under the definition of a state.

  • Sukhdev v. Bhagat Ram – Supreme court held that statutory bodies like LIC, ONGC, and IFC that are set up under special statutes are stated under article 12.
  • R.D Shetty v. IAA AIR 1979 – Issues raised that International Airport Authority formulated from Airport Authority under Parliamentary Act falls under the definition of the state. Although Parliament has the authority/ power to appoint the chairman, other members, the entire capital amount for the establishment of IAA was invested by the central government. The Supreme Court held that even if private bodies exist but if the usual degree of control is within the government. And the government has extraordinary financial assistance, therefore such an instrument/ agency (Private Bodies will fall under the definition of state under article 12 of the Indian Constitution).
  • Som Prakash v. Bhagat Ram– Supreme court held that Bharat Petroleum that is incorporated under the Companies Act will fall under the definition of state supreme court laid down five criteria to check whether a Body or an Authority is a state or not. Financial Resources shall be a chief funding source, Functional Character should be governmental, Plenary control shall reside with government, Prior History of the same authority being carried out by the government and made over the new body, some element must be of authority/ command.
  • Ajay Hasia v. Khalid Mujid AIR 1981- Supreme court laid down the determining test and held that determining test emphasizes that the body is acting as an agency of the state. it was held that Entire share capital shall be held by the government, Deep and pervasive control shall be by the government, perform the function of public importance, Status of monopoly enjoys, and Government department is transferred to that cooperation.

Whether Judiciary Falls under the Definition of State

  • Prem Chand Garg v. Excise Commissioner – The Hon’ble Supreme Court held that if State is exercising rulemaking power. Then it will fall under the definition of state under article 12 in the Indian Constitution.
  • A.R Antulay v. R.S Nayak– Seven Constitutional benches of supreme court laid down the landmark observation, and held that court cannot issue any direction that abridges/ violates any fundamental rights. And laid down a remark judgment that if the court is performing Non- Judicial function then it will fall under the definition of state under article 12 of the Indian Constitution. And if the court is performing the judicial function it will not fall under the definition of state under article 12 of the Indian Constitution.
  • L. Chandra Kumar v. Union of India AIR 1997 SC 1125- Supreme court held that no writ proceeding can be entertained if the court does not have proper jurisdiction.
  • Keshvananda Bharti case (Mathew J) – Supreme court held that definition of state given under part III does not apply to other parts of the Constitution. And the definition given under article36 does not apply to part III.

Whether Article 12 is Inclusive or Exhaustive

  • “The State” includes the Executive and the Legislative of the union, Executive and Legislative of states, local authorities, and other authorities within the territory of India.
  • Bidi Supply Co. v Union of India AIR 1956 – Supreme court held that the Income-tax department falls under the definition of the state. 
  • According to J. Bhagwati, it was held that article 12 cannot be stretched, and not every authority can be brought under the definition of state under the Indian Constitution and also held that NCERT DOES NOT FALL UNDER ARTICLE 12.

Article 12 Relationship with Fundamental Rights

  • The legal advisor of the committee has enhanced the article 12 “STATE” in part III from article 12-35 of the Indian Constitution. Because the state can enforce its dominant power and violate the fundamental rights of the citizens therefore to control their dominating power the state has been defined under the Indian Constitution. If Universities, LIC, IFC, District Boards, Electricity Board, Municipalities, etc. If it violates/ abridges the fundamental rights of any citizen or non-citizen guaranteed under article 12- 35 can move to court Under article 32 to Supreme court and article 226 to High court. 
  • NCERT, Co-operative banks are courts if performing judicial functions cannot be considered under the definition of state article 12 of the Indian Constitution.
  • Fundamental rights are available against state

CONCLUSION

Indian constitution was constituted by legal advisor B.N RAO, DR B.R Ambedkar, the ideology of state was ransacked from USA Article 12-35 Part III which lays down the definition of state under the Constitution. Its parlance about the definition of state and whether the article 12 is restricted or not, it also parlance about the Body, agencies and other co-operative societies, The Income- Tax, Municipalities falls under the definition of state or not Article 12 definition of the state is only applicable to part III of the Indian Constitution. And Article 36 where the definition of a state is provided does not apply to the Fundamental Rights.

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Right to Privacy- A Constitutional Perspective

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

Synopsis 

This article explains a very captivating dimension given to Article 21 of the Indian Constitution – the right to privacy. The right to privacy is attributed to many facets as and when developments occurred and are being discussed with a few case laws. 

INTRODUCTION

Privacy is defined as the avoidance of publicity, to live without unwarranted interference by the public in matters which the public is not necessarily concerned with. It determines how secluded a person may be in various spheres of life. It consists of aspects right from sensitive information shared on a phone call, letters, electronic mail to safeguarding physical indulgence from becoming public. With the developments in human rights, the advancement in right to privacy can be well equated. Privacy is considered to be an indispensable civil liberty to an individual’s freedom and dignity and stands as a hallmark of cultured existence. There was an extended dimension given to Article 21 of the Indian Constitution post-Maneka Gandhi’s case. The Supreme Court of India, in the privacy bench, unanimously held that the right to privacy is protected as an intrinsic part of Article 21 of the Indian Constitution and as a fundamental right guaranteed under Part III of the Indian Constitution. The judgment overruled the earlier decisions of the Supreme Court in the case of Kharak Singh and M.P. Sharma. 

Right To Privacy in India 

The Supreme Court has clarified the status of the right to privacy as a fundamental right under the Constitution of India and has not created any new right of privacy under Part III of the Constitution. It was recognised under the right to life and personal liberty and also found it’s shadow under Article 19 of the Indian Constitution. The decision awarded by the Supreme Court of India is –

  1. To protect individuals from unwanted intrusion in their private lives; and 
  2. To gratify the State in adopting measures that are vital for the protection of an individual’s privacy.

The ruling provided the following ratio decidendi – 

  1. Privacy is an inviolable right – Privacy is not bestowed on individuals but exists because they are humans. The right was reserved and recognised before the commencement of the Constitution and not created by it. Hence, it is not capable of being taken away.
  2. Privacy and dignity – The State claimed that privacy required the Constitutional amendment and could not be rightly interpreted under the Constitution. However, privacy was intrinsic as the other liberties guaranteed under Part III of the Constitution. It ensures humans lead their life with dignity, essentially to make the right choices and to express oneself. The core meaning of Article 21 includes the right to live with dignity and no person shall be deprived of life and personal liberty. 
  3. Protection of Human rights – The Constitution of India recognised privacy as part of the fundamental rights to protect human rights under the International Covenant Of Civil And Political Rights. This recognises the right to privacy as a human right. 

Right to Privacy in search and seizure

The right to privacy in case of the State’s power to search and seizure has gained a lot of attention and decisions were given on this subject not only in India but also in other countries. The Court referred to the Universal Declaration of Human Rights and held that the State shall not have an unrestrained right of search seizure. The State shall have access to all public records and documents. Where a document has got private details, there is a right to privacy unless established by a reasonable cause to believe that such details will lead to the discovery of fraud. 

Right to Privacy in Telephone Tapping 

Telephone tapping is a process of overhearing or maintaining a tab on conversations made over phone calls. The analysis here is such that is it constitutionally permissible in India? This question was answered in the case of the People’s Union for Civil Liberties v Union of India. The case dealt with a Public Interest Litigation rampant telephone tapping of a politician by CBI. The Supreme Court held that the tapping of phones is a serious invasion of privacy. This also means that telephone tapping would infract Article 21 unless it is allowed under the procedure established by the law. The procedure shall also follow justice, equity and good conscience. 

In cases of telegraphs, under Section 5 of the Indian Telegraph Act provides for interception of messages to safeguard public interest against arbitrary excise of Governmental powers. Section 5(2) of the Act authorizes the interception of communications in accordance with the provisions of the Act. “Happening of any public emergency” or in the best interest of public safety” is the sine qua non “to apply the provisions under section 5(2) of the Act unless a public emergency has befallen or the interest of public safety demands, the authorities have no dominion to exercise the powers under the said legislation.

The development of Right to Privacy 

After the declaration of the right to privacy as a constituent of fundamental rights, privacy rights still come in conflict with the investigations undertaken by police on aspects such as narco analysis, brain mapping tests and polygraph tests. However, under Article 22, the above-mentioned investigations are an exception to self-incrimination. In the case of Directorate of Revenue and Anr v. Mohammed Nisar holla, the Supreme Court discouraged the unnecessary infringement of the right to privacy in having a sophisticated technology to detect whether an inmate has kept narcotic elements. Therefore, the Court of law must see that such rights are not necessarily infringed with the development of technology.

Notable Case Laws 

Rajagopal v State of Tamil Nadu 

A prisoner called Shankar, employed in a famous Tamil magazine publication office “Nakheeran” was a continuous offender. During his sentence period, he wrote an autobiography and his relationship with prison authorities and wished to publish the same through the said magazine. The authorities and inspector general of Prisons claimed the autobiography was false and threatened legal action to the publication if they proceed. The question here was, can a person prevent publishing or writing his autobiography? Does it infringe on his right to privacy? The Supreme Court ruled that the right to privacy was a distinctive right of an individual and protection from unwanted governmental intervention. The petitioner (associate editor) had a right to publish even without authorization. However, the publications shall be liable for going beyond what is true which may invade into his right to privacy. 

Naz Foundation Case (2009) Delhi High Court Case 

This case gave the landmark ruling on consensual homosexuality. Section 377 of IPC, Articles 14,19 and 21 were challenged. Held that individuals need a shelter where they can be free from societal control to drop his mask and desist from what image he has got to show to the world. 

Justice K. Puttuswami v Union of India 

The petition filed by a retired Justice of Supreme Court of India challenged the biometric Aadhar card which would be mandatory for access to government benefits as an infringement of privacy. The Government claimed that privacy is not an exclusive right given under the Constitution of India including protections thereof. The court ruled that the right to privacy is incidental to Article 21 of the Indian Constitution. The Court also identified this is a restrictive right corresponding to a legitimate aim of the State. 

Conclusion

With our lives becoming a public platform through social media handles or spy cameras splattering across places, there must be some protection for us to function as per our choices without unwarranted interference. The privacy right may find its place where a person needs not have second thoughts in doing his actions and owe no explanations to others but himself. 

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1st National Moot Proposition Drafting Competition: LicitElite

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About LicitElite 

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

 About the competition 

The Moot problem drafting competition, not only enables the Law aspirants to formulate their own proposition but also upgrade their intellectual skills. The theme shall either be Family Law or Criminal Law. This Moot problem drafting competition is open to Law Students, Academicians, Research Scholars, Lawyers and all others who belong to Legal fraternity. 

Important Dates 

Registration ends on 5th August, 2020
Last date to submit the draft: 10th August 2020

Guidelines for competition 

Word Limit- within 1000 words.Font Style- Times New RomanFont Size- 12Line Spacing- 1.5Page Borders (1 inch)There must be at least 3 Legal Issues in your MOOT Problem.
File Name of the draft shall be Person’s Name & Affiliation
Do not specify any of your details on your MOOT Proposition
 Submissions should be mailed at editor@licitelite.com

Awards 

1) Winner- Rs. 500 cash prize + Merit Certificate + 2 months free Publication in our Blog + Publication Certificates.

2) Next 2 Contestants- Merit Certificate + 1month free Publication in our Blog + Publication Certificates.

3) Next 2 Contestants- Appreciation Certificate + 15 days free Publication in our Blog + Publication Certificates.

4) All other Registered Participants will receive a Participation Certificate.

Registration fee: Rs 100/- for Single AuthorRs 150/- for Co-authorship 

Registration Link: https://forms.gle/mH9jf3Pj1WRwiZuc6
or 
https://www.licitelite.com/event-details/1st-national-moot-proposition-drafting-competition

Participants are required to pay through Paytm + 91 99710 87756
Uploading the screenshot of payment receipt is mandatory to submit the registration forms.


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National Article Writing Competition by Vakalat Works in association with The Legal Assistance (TLA)

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About the Organizers:

“Vakalat Works” is an initiative to bring to you all the law ’Full’ information. We aren’t as complex as judgments pronounced we’re precise. We build study materials from all the subjects of law and regularly update it on our social media accounts. We only focus on the conceptual clarity of the reader so that complex things can be easily understandable. We have conducted various competitions and webinars among 1000+ law students. Our sole motto is “Let’s make legal subjects easy”.

The Legal Assistance (TLA)

“TLA” is a community platform for law academia started by a bunch of Law Students with an objective to nurture the young generation to make them good legal professionals by imparting critical, analytical, and
strategic thinking skills required in the field of law and encourages multi-disciplinary approach for over-all development. TLA strives to exceed the benchmarks of professional standards and constantly innovates
in its processes and methodologies in legal education.


About the Competition

Vakalat Works in association with ” The Legal Assistance”  organizing the ‘National Article Writing Competition’ on “social and contemporary legal issues”. The competition is intended to provide a platform to the law students across the country for their participation and showcasing their research and writing skills and abilities.


Articles are invited within the scope of the following topics:

  1. Custodial Death: A threat to Rule of Law
  2. Corona Virus Crisis: Impact of Lockdown in Domestic Violence 
  3. PM Cares Fund: Need, Scheme, and Concerns
  4. Rights of Tenants: COVID-19 Force Majeure and its Impact on Performance of Contract
  5. Pros and Cons of Webinars and its significance in a student’s life.

Eligibility

 Students pursuing the three or five-year LLB course from any Law school/college/university in India are eligible to participate.

 Students pursuing their LLM from any Law school/college/university are eligible to participate.

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

 Advocates, NGOs and Think Tank.


Evaluation Process


The contribution shall be evaluated on the basis of originality, innovativeness, conceptual clarity, grammar and language.


Submission Guidelines

 The work must be original which must be written solely by the Author(s) in English, and should not have been submitted for publication elsewhere.
 Word Limit: 1200-1800 Words
 A uniform mode of citation should be followed throughout the article. Participants should not mention their name or any kind of identification mark in the manuscript. A separate cover letter regarding the information of the author shall be sent which should include- Name, Designation, Email, Contact Information, Address and a brief introduction of both the author.
 Plagiarism is strictly prohibited. Any paper found with plagiarism above 15% shall be immediately rejected.
 All submissions have to be made in MS Word format in Times New Roman with font size 12 and 1.5-line spacing.
 No entry will be entertained without registration.
 It is the author’s responsibility to ensure that the submissions do not contain any material that is defamatory, obscene or otherwise unlawful or litigious.

Prizes

 Three Best Article: Cash Prize: Rs. 1000/- + Certificate of excellence + Publication of Article on our website + Certificate of Publication + Internship opportunity with The Legal Assistance (TLA)
 Top 10 Articles will be published on our website: thelegalassistance.in + E-Certificate of
Publication will be provided + E-Certificate of Appreciation)
 All other participants would be entitled to receive E- participation certificates (E-certificate of
appreciation can also be awarded in case of remarkable works
Registration Procedure
 Registration Fees: Single Author- Rs. 70 , For Co-Author – Rs.100
 Via: Paytm or Google Pay on 9650347830
 Take the screenshot of the successful payment receipt
 After Successful payment fill the registration form:- 

https://docs.google.com/forms/d/e/1FAIpQLSdyoltfvNxGZtvAJjjlxlhvwFSbC8TN1ed9VIGBCv3PkmbkoQ/viewform

 Contact – +91-8743940621 and 8171957118 for further queries


Important Dates

 Last date for registration: 15 August 2020
 Last date for submission: 20 August 2020
 Declaration of Results: 25 August 2020

Jurisdiction and Place of Suing under CPC

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This article is written by Bhavna Arul, a fourth-year law student from Symbiosis Law School.

INTRODUCTION

Jurisdiction is derived from the Latin words Juris which means “law” and Dicere which means “to speak”. Jurisdiction refers to the power of the Court to take the cognizance of an offense and to determine the cause of action. The Civil Procedure Code provides the procedural law for all civil matters in the country. It is based on the English principle of “Ubi Jus Ibi Remedium” which means where there is a right there is a remedy. When the right of a person has been infringed, they can approach the court for a remedy or compensation. The CPC lays down rules about which court can be approached for what matters. A suit needs to be filed in a court having jurisdiction to try the case and pass an order or decree. Which court has the right jurisdiction is a question determined by the CPC. Sections 9-21 cover all aspects relating to the fundamentals of jurisdiction.

Jurisdiction of A Civil Court: Sec-9

Section 9-

On the face of it, S.9 seems to be pretty clear and simple. As per S.9 civil courts have jurisdiction to deal with all matter of civil nature that it is not expressly or impliedly barred. However, this section fails to define the word civil, so when we look at a dictionary definition it refers to the private rights and remedies as distinguished from criminal and political. A suit of civil nature can hence be defined as a suit in which the fundamental question for determination in the case is related to the private rights of citizens. A suit is said to be expressly barred if any enactment that is in force expressly takes away the judicial power of the civil court on certain matters. The legislature can bar the jurisdiction of the civil court with respect to a particular class of suit keeping itself within the ambit of the power conferred on it by the Constitution of India. A suit is impliedly barred when a general principle of law bars jurisdiction. 

The Supreme Court in case of Most Rev. P.M.A. Metropolitan V. Moran Mar Marthoma explained Section 9 as follows-

1. The phraseology used in the section is both positive and negative,

2. The earlier part opens the door widely and the latter debars the entry of those which are expressly or impliedly barred.

3. The two explanation, one from the inception and the second added in 1976 reflects the legislative intentions.

4. That those religious matters in which rights of the property or the office is involved irrespective of the fact whether any fee is attached to the office or not is a matter of civil nature and the civil court is competent to try such suit.

5. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of rights.

6. The word ‘shall’ makes it mandatory.

7. No Court can refuse to entertain a suit if it is of the description mentioned in the section.

The jurisdiction in CPC is of 3 types-

1. Pecuniary Jurisdiction

2. Territorial Jurisdictions, and

3.   Subject Matter Jurisdictions

A matter can only be tried by a court if it operates within all three kinds of jurisdictions. When a court with a faulty jurisdiction tries the case, it will be termed as an irregular exercise of jurisdiction or lack of jurisdiction which may turn the decision void or voidable depending upon the situations. Sections 15-20 explicitly talk about the types of jurisdiction and Section 21 talks about judgment passed by a court with no jurisdiction. The territorial and pecuniary jurisdiction in civil matters is usually set in concerned state enactments on the subject of civil courts. 

Pecuniary Jurisdiction: Sec.15

Every suit shall be instituted in the Court of the lowest grade competent to try it.

This section states that a suit should be filed in the lowest civil court that is empowered to try matters of the specific pecuniary value. Pecuniary jurisdiction of the court divides the court on a vertical basis. The valuation to decide on jurisdiction for filing a suit is generally done by the plaintiff, however, if the valuation of the plaintiff is prima facie incorrect, then the court valuates and directs the party to approach the right forum. The valuation of the suit cannot be arbitrary, and the plaintiff must not overvalue or undervalue the suit to approach a specific court.

At present the pecuniary jurisdiction of the Delhi courts is as follows:

· Suits amounting to Rs.1 – Rs.20,00,000 lie before district courts.

· Suits over and above Rs. 20,00,000/- lie before High Courts.

It is essential to note that the monetary value to decide the pecuniary jurisdiction is different for all High Courts. This limit is decided by respective High Court Rules. In many states High Courts have no pecuniary jurisdiction. All civil suits go before District Courts, and only appeals lie before the High Court.

Territorial Jurisdiction: Sec.16-20

Territorial Jurisdiction divides jurisdiction of courts on a horizontal basis. All courts that have power to take cognizance of a case have the same powers and no court is considered above the other. Territorial jurisdiction in CPC is further divided into-

  1. Suits related to immovable property (Section 16 to 18)
  2. Suits related to Movable property (Section 19)
  3. Other suits (Section 20)

Immovable Property: Sec- 16-18

Sections 16-

This Section states that when a suit is filed regarding relief or compensation for wrong caused to an immovable property that is held by the defendant or any other person on the behalf of the defendant where the relief can be obtained through his personal attendance then suits may be instituted in a court within whose local jurisdiction of either where the property is located or where the defendant resides or carries out business. 

Section 17-

According to this Section, when an immovable property falls under the jurisdiction of two or more courts, then it is up to the discretion of the plaintiff to decide which court to file the suit at. When a property shares the jurisdiction of multiple courts, the plaintiff can choose as per their convenience. E.g.-If a dispute relating to an immovable property spread over Delhi and Noida arises, then the Plaintiff can file a suit in the court of either Delhi or Noida, both courts have valid jurisdiction.

Section 18-

This section states that when the local limits of the jurisdiction of courts is uncertain, and any of the courts is satisfied that there is a ground of uncertainty, then such court can record the statement and proceed with hearing the case and passing a final decree. The decree passed by such court will have the same effect as if the property was situated within the local limits of the jurisdiction of the said court.

In case the court taking cognizance of the case does not record the statement and an objection is raised before the Appellate or Revisional Court, the Appellate or Revisional court shall not allow the objections unless it is satisfied that at the time of institution of the suit there was no reasonable ground for uncertainty as regards to jurisdiction of Court and there has been a failure of justice. 

Movable Property– Section 19

When the suit filed is regarding a movable property, then the jurisdiction for filing such suit shall be in the court under whose local limits the right was violated or where the defendant resides or carries on business. It is the discretion of the plaintiff to decide which of the above jurisdiction to invoke. E.g.- If the issue relating to the movable property arises in Bangalore and the defendant is a resident of Mumbai, then the plaintiff has the option of either filing the suit in Bangalore or Mumbai.

Other Suits- Section 20

Civil suits under the purview of CPC that aren’t related to property, both movable and immovable, come under the ambit of this section. This includes matters such as breach of contract or commercial transactions. When a suit is filed under this section, the jurisdiction for filing such suit shall be in the court under whose local limits the right was violated or where the defendant resides or carries on business. It is the discretion of the plaintiff to decide which of the above jurisdiction to invoke

Subject-Matter Jurisdiction

Different courts are empowered to decide different types of suits. Certain courts have no jurisdiction to entertain certain kinds of suits. For example, the Court of Civil Judge (Junior Division) cannot pass a decree in suits for testamentary succession, divorce cases, probate proceedings, insolvency matters, etc. This is known as subject matter jurisdiction, where only if a court has jurisdiction over a certain class of cases can a case from such a class be approached. Subject matter jurisdiction has been excessively gaining popularity with the recent trend of the Tribunal System. Under the tribunal system, the administrative establishes quasi-judicial bodies that have expertise in the given subject matter. E.g.-Company Law related cases generally is tried by the Company Law Tribunal in the first instance and the judiciary is approached in an appellate stage.

Objections as to Jurisdiction: S.21

This section states that a judgment passed by a court with no jurisdiction is an irregular judgment. The objection regarding judgment is to be brought by the parties in the instance itself. If the error in the jurisdiction is related to the subject matter and irrespective of whether it is objected before the court in the first instance or not, the judgment can be considered null and void, and such an issue can be raised in an appellate or revisional level as well. However, if the error in jurisdiction arises because of a pecuniary or territorial error and is not brought before the court in the first instance, the judgment is held to be irregular but no objection relating to jurisdiction can be raised in an appellate or revisional stage.

Conclusion

Jurisdiction plays an important role in the justice system. Approaching the right court with an appropriate jurisdiction is the first step to justice. A plaintiff must hence keep in mind the importance of approaching the right forum. A defendant must always check for a fault in the jurisdiction as it would greatly affect the case. Jurisdiction plays a major role especially at times of appeal and revision.

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