This case analysis has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi.

INTRODUCTION

This is a landmark English tort law case related to nervous shock.

Equivalent Citation

[1992] 1 AC 310

Bench

Lord Keith of Kinkel

Lord Ackner

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

Lord Lowry

DECIDED ON

28 December, 1991

Court

House of Lords

Relevant Law

Law of Torts

Concept

Negligence

Facts

On 15 April 1989, a semi-final of the F.A. Cup of a football match was arranged between two teams Liverpool and the Nottingham Forest football clubs at Hillsborough Stadium, Sheffield. On that day, the disaster occurred the South Yorkshire police force, which was responsible for crowd control at the match, allowed an excessively large number of spectators to enter the ground at the Leepings Lane end, an area reserved for Liverpool supporters. They cramped into pens 3 and 4, below the West Stand, and in the resulting crush 95 people were killed and over 400 persons were physically injured. The disaster was broadcast on live television and recordings were broadcast later. The Chief Constable of South Yorkshire has admitted liability in negligence in respect of the deaths and physical injuries, as he permitted too many supporters to crowd in one part of the stadium. Sixteen separate actions were brought against him by persons none of whom were present in the area where the disaster was occurred, although four of them were elsewhere in the ground. All of them were connected in various ways with the persons, who were present in that area, being related to such persons or, in one case being a fiancé. Sixteen claims were brought against the defendant for nervous shock resulting in psychiatric injury. At trial ten of the claims were successful. The defendant appealed against the findings in nine and unsuccessful claimants appealed. The Court of Appeal found for the defendants in all of the claims. Ten appeals were made to the House of Lords.

All the plaintiffs claimed damages for nervous shock resulting in psychiatric illness which they alleged was caused by the experiences inflicted on them by the disaster. A joined action was brought by Alcock and several other claimants against the head of the South Yorkshire Police.

Issues Before the Court

The issue raised before the House of Lords was to determine those who suffered psychiatric harm from seeing an event at which they were not physically harmed, nor present was sufficiently proximate for a duty to be owed.

Ratio of the Case

Lord Oliver made a distinction between primary and secondary victims. A primary victim one who involved mediately or immediately as a participant and a secondary victim one who is no more than a passive and unwilling witness of injury to others. The claimants were all classed as secondary victims since they were not in the physical zone of danger.

The secondary victims must meet the following criteria:

A close tie of love and affection to primary victim
Witness the event with their own unaided senses
Proximity to the event or its immediate aftermath
The psychiatric injury must be caused by a shocking event

Decision

The House of Lords, in finding for Defendant, held that in cases of purely psychiatric damage caused by negligence, a distinction between primary and secondary victim. A primary victim one who was present as a participant in the event. A secondary victim must meet the following criteria:

A close tie of love and affection to primary victims
Witness the event with their own unaided senses
Proximity to the event or its immediate aftermath
The psychiatric injury must be caused by a shocking event

Neither Alcock nor the other claimants could meet the above following situations, therefore the appeal was dismissed.

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

INTRODUCTION

International Humanitarian Law (IHL) is that part of international law which takes its basis from considerations of humanity. It aims to minimize the suffering of those who do not believe in war or believe in fighting in a more humane manner by restricting the use of barbaric weapons. Complex disasters bring together many organizations. Each has its own institutional history and culture, often indeed its own jargon. The International Red Cross and Red Crescent movement dates back to the middle of the last century and, over intervening years, has witnessed numerous changes both on the world scene and within its own fabric. Wars, civil unrest and national emergencies; floods, famines and earthquakes; epidemics of malaria, cholera and AIDS; industrial disasters and transport crashes; hostage-taking crises; rural and urban catastrophes—numerous such situations have been responded to by national and international missions, under the aegis of the Red Cross and Red Crescent.

The International Red Cross and Red Crescent movement encompasses a family of 169 national societies (1998), hinged with the International Committee of the Red Cross (ICRC) and the International Federation of Red Cross and Red Crescent Societies (IFRC). The national societies vary enormously in scale, program responsibilities, and depth of human and material resources. The movement is committed to seven fundamental principles and pursuit of the Geneva Convention.

The IFRC focuses largely on natural disasters, rehabilitation, community development, health programs, etc. In many respects the IFRC is a support secretariat for the national societies. Both the ICRC and the IFRC are located in Geneva, with regional delegations. There are numerous occasions when the ICRC and IFRC reinforce each other at planning and operational levels, given the frequent overlap of functions in complex post war and revolutionary situations, including the support of refugees.

History and Origin

The Red Cross movement traces its origins to Henry Dunant, a Swiss businessman, whose book, Un souvenir de Solferino (1862), led to the formation of the “International Committee for Relief to Wounded Military Personnel”, to the calling of a diplomatic conference in Geneva and to the consequent “Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field” . The Swiss flag in reverse was adopted as the emblem of the new movement and an international symbol of humanitarianism. In Muslim countries, the red crescent on a white background became the equally respected emblem of the same movement.

The values of the Geneva Convention both as entry points and as foundations for international humanitarian law and also a dynamic body of “principles and rules”, acted as a guide and measure of support for the movement.

The Red Cross initially was only working on war related issues, but over time it has extended services to other humanitarian causes as well. The earlier post-World War II era not only saw expansion in the numbers of national Red Cross and Red Crescent societies (and their branches), the period also witnessed significant changes in the priorities of the Red Cross. These included a growing interest in, and influence of, developing-country concerns such as child nutrition, primary health care, the meeting of basic needs, and natural disaster reduction. Today, the Red Cross and the Red Crescent are seen as internationally respected emblems of humanitarian service, neutrality and non-aggression. What started off as a movement, has today been established as a globally accepted institution.

Position Today

Today, the most important problem faced by the world is the lack of global peace. Unstable governments, political tension and ongoing wars are not only some issues, but also causes of other humanitarian issues such as hunger, poverty, diseases, natural disasters, etc. Climate change is another important issue that is of global concern. The nature of crises is changing, with violence increasingly happening in urban areas and against civilian populations, and the consequences of armed conflict and natural disasters have become more protracted. In some contexts, humanitarian actors have been on the ground for decades, dealing with the complex aftermath of crises, resurging violence, or protracted crises. Camps for refugees and internally displaced persons have become long-term temporary solutions. The United Nations High Commissioner for Refugees (UNHCR) estimates that the average duration of the thirty-two protracted refugee situations at the end of 2015 was twenty-six years. Three of the four camps that constitute Kenya’s Dadaab complex, for example, were established in 1991 and 1992, and the complex today hosts over 230,000 refugees and asylum seekers. Sudden or recurring natural disasters often lead to protracted crises in countries with insufficient capacity to respond to the ensuing impacts on their population and infrastructure.

Responding to the humanitarian needs of those affected by conflict and disaster is not a short-term endeavour. There is recognition within the humanitarian community, as reflected in the outcome of the 2016 World Humanitarian Summit, that there is a need to rethink the linkages between humanitarian action, development, and peace and security. Humanitarian actors increasingly perceive a responsibility to work toward bridging what has been described as the “humanitarian-development divide”3 and not to overlook the nexus between addressing and reducing humanitarian needs and building the foundations for sustaining peace. This issue briefly aims to explore how principled humanitarian action, in synergy with other types of responses and initiatives, can contribute to creating the conditions for self-sustaining peace.

CONCLUSION

The UN sustaining peace resolutions recognize the role that humanitarian action can play in safeguarding or strengthening the preconditions for peace. Indeed, when possible, conflict-sensitive, localized, and sustainable humanitarian action can have a positive impact on communities’ resilience and capacities for peace. Institutions working towards humanitarian acts should keep the following in mind in order to engage in complementary efforts that contribute to sustaining peace:

Humanitarian action must remain guided by the principles of neutrality and independence. Political objectives should not be mixed into humanitarian interventions. The linkages identified between humanitarian action and peace efforts do not suggest that they should be intertwined. Peacebuilding efforts or processes should be developed in parallel to humanitarian activities.
Policies that address the humanitarian-development divide will help ensure humanitarian action that helps build sustainable services and resilient communities. Given the prevalence of protracted crises, achieving a meaningful and sustainable impact requires that humanitarian actors engage in longer-term planning to find more durable solutions.
Humanitarian and peacebuilding actors should more closely interact. Respecting humanitarian principles and interacting more closely with peacebuilding actors are not necessarily mutually exclusive. There should be more coordination between the two spheres to ensure not only a good understanding of their respective mandates and objectives, but also complementarity in their efforts. This would help in particular when it comes to developing a shared understanding of the context.
Both humanitarian and peacebuilding actors would benefit from exploring further how humanitarian action can contribute to creating the conditions necessary for sustaining peace. A good example to follow would be the ICRC’s initiative on international humanitarian law (IHL) and peacebuilding, which aims to explore whether respect for IHL during a conflict strengthens the foundations on which peace can be built.

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This article is written by Shreya Shanu, a student of Sardar Patel Subharti Institute of Law, Meerut.

INTRODUCTION

In this era of world a “global village,” even small firms must master cross-border tax issues to serve their clients well.

Companies face a number of domestic tax challenges throughout all stages of their business cycle (i.e. entry, operation and exit). It is important that companies are also aware of the various international tax and cross-border impacts of their activities.

India is considered to be the fastest growing economy in the world, India is now the third largest economy globally and the recent mega initiatives of Make in India and Digital India certainly make India an exciting market for global business community.India has the world largest democracy which has seen smooth shift of power 15 times over the past 6 decades and independent judiciary.

Cross Border Taxation

Companies with employees who visit or reside in the US and multinational groups have tax authorities from both sides of the border playing a tug-of-war to tax the same dollars of corporate profit.

One of the challenges and greatest areas of opportunity for a multinational company today is effectively managing local and foreign taxes in a way that aligns with its overall business objectives and operations.While business considerations primarily drive overseas investment decisions, tax and regulatory aspects also play an important role in the decision-making process. Optimising overall tax burden and aligning tax functions to the business strategy has become more crucial than ever for businesses. We, at Block Development Office in India, strongly believe that entrepreneurs should focus on their businesses, without having to worry about the repercussions under the tax and regulatory framework in the chosen investment destination.

At Block Development Office India, our approach is to first understand the business rationale behind an investment decision and provide solutions that are tailored to the needs of the business, sector and time sensitive requirements. It helps multinationals reduce taxes on earnings, enhance margins, and grow their business. We provide customised cross border tax services under the following broad categories:

Cross Border Structuring
Inbound / outbound investment
Transaction & Income Structuring
Tax Risk Management

Here the latest income tax slabs and rates

The Finance Minister introduced a new tax regime in Union Budget, 2020 wherein there is an option for individuals and HUF to pay taxes at lower rates without claiming deduction under various sections. This new tax system has been made optional and continues to co-exist with the old one that comprises three tax rates and various tax exemptions and deductions available to a taxpayer. New tax regimes slab rates are not differentiated based on the age group.

The new income tax slabs and rates HAVE come into effect from April 1, 2020.

Structure of tax rates under new tax regime for FY 2020-21(Rs)

If the income of the people is upto 25 lakh per year, then it will have to pay nil income tax.
If the income of the people is from 2,50,000 to 5,00,000,then it will have to pay 5% tax.
If the income of the people is from 5,00,000 to 7,50,000,then it will have to pay 10% tax.
If the income of the people is from 7,50,000 to 10,00,000 ,then it will have to pay 15% tax.
If the income of the people is from 10,00,000 to 12,50,000,then it will have to pay 20% tax.
If the income of the people is from 12,50,000 to 15,00,000,then it will have to pay 20% tax.
Above 15,00,000 then it will have to pay 30% tax.

Individuals with a net taxable income of up to Rs 5 lakh in a financial year will be able to avail tax rebate of Rs 12,500 under section 87A in both the existing and new tax regimes. Effectively, this means that individual taxpayers with net taxable income of up to Rs 5 lakh will continue to pay zero tax in both the tax regimes.

Inbound / Outbound Investment

The permission granted by the Indian Regulations to permit inbound and outbound investments from India into overseas companies, Government Bonds, Branch Offices, joint ventures, etc. The overseas business entities to settle in India and overseas need to understand the concept of cross-border taxes and Regulatory challenges. The Government in almost all sectors provides tax benefits to attract foreign investors for the development of our economy. The business and legal environment in India differs from the environment overseas. The reform process has deregulated the economy and encouraged domestic and foreign investment destinations.

Under the existing tax regime, the basic tax exemption limit for an individual depends on their age and residential status. According to their age, resident individual taxpayers are divided into three categories:

1.Resident individuals below the age of 60 years
2. Resident senior citizens above 60 years but below 80 years
3. Resident super senior citizens above the age of 80 years

EU Taxpayers and Cross-border Tax Issues

It is likely that EU citizens buying or investing or working or moving frequently across borders will have to pay taxes and make tax declarations in two or more countries. This is often the case for:

People living in one country and working in another (cross-border commuters or frontier workers)
Workers posted abroad
Retired persons abroad

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This article is written by Akanksha Chawdhary, a student of Amity University.

INTRODUCTION

This act was enacted in 1986 to protect the interests of consumers in India however it was replaced by the Consumer Protection,2019. Almost daily consumers are duped by sellers, however previously there were no proper laws that helped these consumers only cases could be filed under the law of torts. This act was regarded as the ‘Magna Carta’ in the field of consumer protection for keeping a watch the no unfair trade practices take place. Another important term that was developed within this act was ‘Caveat Emptor’ which means let buyers beware so basically this term says that the buyers should also be cautious before buying any kinds of product therefore whenever a buyer is buying something he should make sure of the product and ask all the relevant questions as if it is, later on, found that the buyer had put very little efforts on knowing about the product then even if the product is defective no compensation can be received by him. [1]However, as we know the seller knows a lot more than the buyer usually does so if he intentionally hides any fact then he will be liable to pay the compensation.

For example – Suppose A goes to a shop to buy a car and he does not bother to ask anything about the car and later finds it to be defective then he cannot get the compensation however if A asks everything that he wanted to know and despite that some problem or deject is found then he will be entitled to damages.[2]

We should also keep in mind about another term known as Caveat Vendor which means ‘Let Sellers Beware’, this means that whenever a seller is selling something he should let the consumers know about it properly and should not conceal any facts as if it is found later on that he had intentionally hidden some fact then he has to pay compensation. Also, there might be a huge chance that he might get deceived by the consumer so he should be careful.

Let us understand who a consumer is under the Consumer Protection Act, 1986 –

>Any person who buys good for consideration which is either paid or partly paid or is under any kind of deferred payment and includes the use of such goods other than the person who buys it.[3]

>Any services for a consideration which has been either paid or partly paid or under any system of deferred payment and includes a beneficiary of such services if it is availed with the approval of the hirer.

Under the Consumer Protection Act, 1986 complainant can be defined under section 2b they are the following people –

1. Any Consumer

2. Voluntary consumer association

3. Central or state government

4. One or more than one consumer if there are a lot of consumers

5. If a consumer dies then his legal heir or representative can also file a complaint.

Various Forums under Consumer Protection Act

Talking about the forums, there are three important Forums which are governed under the consumer protection act. These forums are as follows:

1. District Consumer Redressal Forum:

This forum consists of a president who is qualified as a District Judge appointed by the State Government. It also consists of two other members, one of the members should be a woman who should not be more than 35 years of age and should also possess a reputable bachelors degree from a well- known university.[4] Along with this, the members should have experience of at least 10 years and also should have the ability, capability, and knowledge of solving the disputes and solving all such matters based on economy, law, commerce, accounts, industry, or public affairs. The term of office for such members is 5 years or 65 years of age, whichever comes first. In a district forum, a consumer files complaint regarding the goods, the value of which should not exceed more than 20 lakh rupees.

2. State Consumer Redressal Forum: –

This forum consists of a president who is qualified as a High Court Judge appointed by the State Government. It also consists of two other members, one of the members should be a woman who should not be more than 35 years of age and should also possess a reputable bachelor’s degree from a well- known university. Along with this, the members should have experience of at least 10 years and also should have the ability, capability, and knowledge of solving the disputes and solving all such matters based on economy, law, commerce, accounts, industry, or public affairs. [5]The term of office for such members is 5 years or 67 years of age, whichever comes first. In a State Forum, a consumer files complaint regarding the goods, the value of which can exceed 20 lakhs but cannot exceed 1 crore.

3. National Consumer Redressal Forum: –

This forum consists of a president who is qualified as a Supreme Court Judge appointed by the Central Government. It also consists of four other members, one of the members should be a woman who should not be more than 35 years of age and should also possess a reputable bachelor’s degree from a well- known university. Along with this, the members should have experience of at least 10 years and also should have the ability, capability, and knowledge of solving the disputes and solving all such matters based on economy, law, commerce, accounts, industry, or public affairs. The term of office for such members is 5 years or 70 years of age, whichever comes first. In a National Forum, a consumer files complaint regarding the goods, the value of which can exceed 1 Crore

There are three important procedures which has to be kept in mind while filing a consumer complaint. These procedures are enumerated as follows:

1. District Forum to State Forum

2. State Forum to National Forum

3. National Forum to Supreme Court

Case Laws –

Karnataka Power Transmission Corporation vs Ashoka Iron Works Private Limited –

So basically, in this case, the respondent happened that the complaint was not maintainable as a company or corporate body is not considered as a person under the consumer protection act. Also, it was said that disputes related to sale and supply of electricity was also not included under ‘service’ however the court took into consideration the case of Dilworth vs Commissioner of Stamps and certain other cases such as Southern Petrochemical Industries where it was held that supply also included the sale and thus the supply of electricity will be included in section 2 of this act and they also decided that in this particular case the corporate body was included in the meaning of persons in the consumer protection act. Therefore the complaint was allowed and then the case was

Indian Medical Association vs V.P. Shantha and others

In this case, a writ petition was filed by the Indian Medical Association which said that the Supreme Court should declare that the word medical profession does not apply to the consumer protection act. However, the court held that all the services that are rendered by a medical professional will fall under services, it also rejected the fact that a medical practitioner being a professional and falling under the scope of the Indian Medical Council Act stands excluded from the Consumer Protection Act.

Springs Meadows Hospital and Anr vs Harjol Ahluwalia

This appeal was filed before the Supreme Court by a hospital defending the negligence of its nurse and a doctor which had put a minor in a permanent vegetative state, the question was whether the parents could ask for compensation as they were not the patients, the court held that definition of services in Consumer Protection Act was wide enough to include the child and the parents and thus the child was paid compensation for the cost of equipment’s and expenses that he has to bear for his vegetative state.

Sehgal School of Competition vs Dalbir Singh

In this landmark judgment concerning educational institutions which dates back to 2005, a student was asked to deposit a fee of Rs 18,734 as fees for the coaching of medical entrance for the next two years however after paying the money he found out that the coaching institute was not up to the mark due to which he demanded back however the institute refused him to pay back the money.

The commission held that all educational institutions which charge lump sum fees for the whole duration or should refund the fees services are deficient therefore anyone saying fees once paid is not refundable is not enforceable and this view is maintained by all the forums.

Conclusion

As is clear from the study, consumer protection has social, ethical, and economic dimensions. Each country has had a movement for providing consumer justice peculiar to their historical, social, economic, and legal background. The United Nations has played a very important role in laying down the guidelines which serve as a consensus on minimum standards for all countries, where consumer protection is concerned. The countries all over the world are required to incorporate the same in their local consumer laws taking into consideration their specific needs and requirements. In India, consumer protection can be traced to ancient India where the unscrupulous traders were required to keep restraint and if they failed, the punishment was prescribed. In modem India the sacred documents, the Constitution envisaged social and economic justice, of which consumer justice is a part. To fulfill the pious objectives a large number of laws were enacted by the Parliament for the protection of consumers. However, many of them had become either outdated or needed suitable amendments to make them more effective. These laws provided relief or inadequate relief to aggrieved consumers.

[1] http://ncdrc.nic.in/bare_acts/Consumer%20Protection%20Act-1986.html. (last viewed 31st July, 21:12)

[2] http://chdslsa.gov.in/right_menu/act/pdf/consumer.pdf. (last viewed 31st July, 21:30)

[3] https://www.toppr.com/guides/business-studies/consumer-protection/consumer-protection-act/. (last viewed 31st July, 21:52)

[4] https://www.mondaq.com/india/consumer-trading-unfair-trading/624830/the-consumer-protection-law-in-india. (last viewed 1st August, 18:28)

[5] https://blog.finology.in/Legal-news/Overview-of-Consumer-Protection-Act-1986. (last viewed 1st August, 18:58

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This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of Law, University of Mumbai. The right to claim Penalty or Liquidated damages is because of ‘Breach of Contract’ which is a legal term. Hence, it is appropriate to understand this term.

What is meant by Breach of Contract?

Breach of contract usually occurs only when a party to the contract violates any of its laws mentioned in the contract such that it infringes on the other party. It may even hamper a party to execute its duties. A violation can be both whole or in part of the agreement. It should satisfy the below mentioned four conditions before a breach of contract can be upheld by a court of law:

The contract should have a valid offer, acceptance. The capacity to enter into a contract must also be present in terms of age and mental ability, intent, and object of the contract.
A plaintiff who is seeking penalty or liquidated damages should satisfy the court that the defendant has infringed the terms of the agreement, and consequently monetary loss has occurred.
The Plaintiff has to full all the duties required of him as per the contract.
The Plaintiff has to notify the defendant in writing of the breach that has been committed.

Some Types of Breaches are:

Material breach: A material breach is the most significant one which is required to destroy the value of the contract. It also includes the right to sue; it also relieves the party from performing his part of the contract.
Partial breach: This is not a significant breach and does not relieve the aggrieved party from executing his share of duties.
Anticipatory breach: When a party suspects from acts undertaken that the other party is willing to do his duties specified under the contract.

Liquidated Damages

‘Liquidated damages’ is an “ amount legally stipulated as an estimation of actual damages to be recovered by one party if the other party breaches the contract; also if the parties to a contract have agreed on Liquidated Damages, the sum fixed is the measure of damages for a breach, whether it exceeds or falls short of the actual damages.”

Liquidated damages are a calculated amount based on expected breaches. Whereas unliquidated damages cannot be calculated, maybe because of unknown factors that cannot be predicted in advance. As the Liquidated damages are assessed, hence the parties to the contract are aware of the consequences that follow a breach of an agreement. The damages are awarded to protect the commercial interest of the parties. They are so quantified so that the economic status of the affected party remains unaffected by the breach.

However, it cannot act as a source of enrichment. On the contrary, it must remain within the confines of what is called reasonable.

The Burden of Proving Monetary Loss

Section 106 of the Indian Evidence Act says that it is binding upon the person to know the fact to prove the same.it means that the burden to prove loss due to breach of contract rests with the affected party. The only exception is when the loss is noticeable but it is impossible to prove.

Can liquidated damages be awarded without proof of breach?

Section 74 of the Indian contract Act contains an expression which says that the parties complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby”

The above expression does not mean that even when actual loss or damage can be ascertained still it will be waived, and the party wrongfully shall be entitled to the estimated Liquidated damages. it is only applicable in cases where it is difficult or nearly impossible to prove the actual loss. Even then, the court shall first ascertain that it is impossible to prove damages in this case.

Penalty

An understanding of Liquidated damages which is a genuine loss that has been computed for breach of a contract. if the certain amount fixed is without any regard to possible loss but is mostly intended to refrain the other party from committing the breach, it is called a penalty. The specified sum is very extravagant and hence does not appropriate with the damage likely to occur. Penalty operates as a punishment and not compensation for loss endured.

Interpretation of S 74 by The Indian Courts

In case the amount is set out by the way of penalty, proof of damages is required. The Court will award to the party aggrieved only reasonable compensation not exceeding the amount named or penalty mentioned. Or absolutely, damages cannot be bestowed beyond really sustained. Contrarily, the penalty is defined as a sum calculated disproportionately to a loss in value.

Important features of Liquidated damages in commercial contracts

It is always drafted with mutual consent.
Breaches are usually listed.
It foresees the loss in advance and protects the parties
It is always legally enforceable.
It is a Simple dispute resolution process.
Fear of liability makes a person’s performance.
Once liability is proven or admitted the clause comes into subsistence.
Liability and compensation are known entities.
Provides stability to the contract.
In any wrongful termination claim, the operator does not need to prove either its entitlement to loss of profits or the value of its loss of profits claim.

Difference Between a Penalty and Liquidated Damages

The penalty is something that is usually used in a contract for securing the performance of the contract. The main purpose of the same is to make sure the money is paid. Also where the loss has been recovered is greater than the pre-estimated loss then it amounts to a penalty. Whereas liquidated damages are always compensatory in nature and are pre-estimated damages. The purpose of liquidated damages is to promote certainty in the commercial field. Liquidated damages are based on the pre-estimate of the loss, whereas the penalty is based on the doctrine of reasonable compensation.

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This article is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School. This article goes on to entail what Doctrine of Privity is & its exceptions by referring to the relevant case laws and jurisprudence.

INTRODUCTION

As defined by D. M. Walker “ A contract is an agreement between two or more persons intended to generate a legal obligation between them to be legally enforceable.”1 Creating contract means creating rights and obligations for the parties just in case any of the contracting parties fails to perform the contract the opposite party is entitled to the rights for the legal remedy. The law of contract has been a crucial aspect in our everyday life. It has been directed by certain rules and doctrine of privity is also a core rule of it. This particular rule has been established since a long time but is not free from limitations.

P.S. Atiyah observes that, Privity of contact means- ‘a person cannot enforce a right arising under a contract if he was no party to it, even where it was intended that he should have a right. Likewise, a person cannot have any obligation enforced against him/ her where the obligation arises under a contact to which he was no party’.

G.H. Tretel says “The common law doctrine of privity means that a person can’t acquire rights or be subject to liabilities arising under a contract to which he is not a party.

The core of the doctrine of privity is the notion that only such parties related to the contract can have the rights or liabilities under it. It is closely linked to the rule that consideration must move from promise, but can be shown to be distinct from it.

Therefore, the doctrine of privity comprises of two prominent rules:

A person who is not a party to a contract cannot claim the benefit of it even though the contract was entered into with the object of benefiting that third party.
A third party cannot be subjected to a burden by contract to which he is not a party.

Accordingly, a person cannot acquire rights under contract to which s/he is not a party.

In 1861, the seminal case of Tweddle v. Atkinson established the rule privity of contract as a mainstay in English law. Here Where the fathers of a bride and groom agreed with each other to pay certain sums to the groom, adding that the groom should have the power to recover those sums by action if either failed to pay. The bride’s father defaulted and the groom sued, but his action failed on the grounds that he was not a party to the contract. Prior to the Tweddle decision, English law had no clear position regarding whether a third party could enforce a contractual term. The rule of privity of contract set forth by Tweddle was solidified in a case decided in 1915: Dunlop Pneumatic Tyre case. In the case, Viscount Haldane, L.C., viewed the rule of privity of contract as a fundamental principle of English law. He stated that a benefit could be conferred on a third party but not to the point that the third party could enforce the contract in person. Lord Sumner added that “undisclosed principals” to a contract cannot sue on a contract. The court as a whole did not discuss the rule of privity at any length; instead, the court assumed that privity of contract was well established in English law and was therefore uncontroversial. The privity of contract doctrine may be invoked as a matter of substantive or procedural law. In the common-law tradition, the doctrine is fundamental in all contractual relationships. By operation of the doctrine, only parties to an agreement can enforce it. This prevents a party or parties to a contract from imposing an obligation on a third party. A third party is also prevented from enforcing a right in a transaction though it may have an interest.

While applying the rule of privity, English Court has considered these two propositions:

Consideration must move from the promisee and the promisee only. If it is furnished by any other person, the promisee becomes a stranger to the consideration and, therefore, cannot enforce the promise.
A contract cannot be enforced by a person who is not a party to it even though it is made for his benefit. He is a stranger to the contract and can claim no rights under it.

Exceptions/Limitations to the Privity Contract

Acknowledgement or Estoppel: where by the terms of a contract is required to make a payment to a third person and he acknowledges it to that third person, a binding obligation is thereby incurred towards him. Acknowledgement may be expressed or implied. In the case of Khirod Behari Datta vs. Man Gobinda acknowledgement had generated the right to third parties to enforce the contract between the parties. In this case, the tenant and the sub-tenant of a piece of land agreed between themselves that the sub-tenant would pay the tenant’s rent directly to the landlord. Later, the landlord was allowed to get a decree for his rent directly against sub-tenant i.e. the sub-tenant was stopped from denying his liability to pay the tenant’s rent for the reason that there was no such contract between him and the landlord. Moreover, a third party could also be able to seek relief against a promisor on the basis of promissory estoppel principles. To succeed the third party would need to establish the elements of promissory estoppels.

Agency: The contract between the principal and the third party is recognized if an agent enters into an authorized contract with a third party on behalf of his/her principal. When the agent makes a contract with a third party on behalf of his principal, that contract is regarded by law as having been made by the principal himself/herself. Thus, s/he can sue on it and be sued on it.

Beneficiaries under trust or charge or other arrangements: a person in whose favour a charge or interest in some specific property has been created may enforce it though he is not a party to the contract. The beneficiary under the trust can sue the trustees in the situation even if s/he was not a party to the original agreement. It was established founded in the case of Klans Miltelbachert vs. East India Hotels Ltd where a beneficiary was allowed to take action directly against the hotel keeper who was injured by the negligent maintenance of the hotel premises. Similarly, in England, “trust” has been used as a device for holding the promisor to his promise. In case of Gregory & Parker vs. Williams Williams was made liable to the debt to Gregory as the promise he made, to do so with Parker.

Covenants on land: The rule of Privity may also be adapted by the principles concerning the transfer of immovable property. The principle of the famous case of Tulk vs. Moxhay is that a person who purchases a land with notice that the owner of the land is bound by certain duties created by an agreement or covenant affecting the land, shall be obligated by them even though he was not a party to the agreement. For instance, A transfers his land to B who covenants (promises) not to erect a piggery on the land. Subject to proper legal formalities, B’s promise will bind future owners of the land. So, if B sells the land to C, C is bound by B’s promise. A or A’s successors in title can legally enforce the covenant.

Insurance: according to the doctrine of privity no one except the parties to contract can claim for rights and be burdened with liabilities. However, in case of insurance contract, though the person who has insured one’s life, if dies then his /her relatives can claim the insured amount though they were not the party to contract. In the case of Tattersall v Drysdale it was decided that the driver of a motor vehicle is granted the benefit of an insurance policy made with an insurance company by the owner of the vehicle and which seems to cover the driver. Thus, this implies that insurance is another exception of the Privity of contract.

Marriage settlements, partition or other family arrangements: In the cases where a contract is made relating to the marriage, partition or other family arrangement and a provision is made in the interest of the person, such person may/can take advantage of the agreement though s/he is not the party to it. In the case of Daropti v Jaspat Rai the defendant’s wife was permitted to get benefit from the promise made between her husband and her father. Similarly, in another case of Veeramma vs. Appayya the mother was allowed to maintain a suit for the specific performance even though the contract was made among the father, daughter and daughter’s husband to keep the mother safe if the father’s property was inherited by the daughter.

Conclusion

The doctrine, whose main theme is preventing any rights or obligations to the third parties arising from the contract is now accepted as one of the foundations of the law of contracts. It was also held that ‘no stranger to the consideration can take advantage of a contract, although made for his benefit’. Entering into a contract creates interest in each party that the contract will be performed. The parties are bound to fulfil the promises done in the contract. However, the promises are only for the parties and any other person apart from them are exempted from the duties and rights conferred by the contract. This very principle which is one of the pillars of the law of contract is ensured by the doctrine of privity which is also accepted in our legal system.

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This article is written by Akshat Mehta, a student of the Institute of Law, Nirma University, Ahmedabad. In this research article, he tried to explain the validity of sting operations in India in the context of Constitutional Morality. He also expressed his ideas on negative outcomes of sting operations when it violates the Fundamental Rights of the citizens.

GENERAL INTRODUCTION

The credibility of sting operations has always been in question since its inception, not because of its end result but because of its means to reach the ultimate end. The word ‘Sting’ literally means “a carefully planned operation, typically one involving deception”. A sting operation is an informal gathering exercise which could also be called ‘Investigative Journalism’ and ‘Undercover Journalism’. A sting operation is often organized to expose or uncover the unreachable truth but the way it is being carried out is often termed as unscrupulous and unethical. In the Indian context, earlier it was being done only to expose the corruption cases and political mishaps but now is often organized by journalists and normal citizens to uncover the curtains from the so-called morality of public authorities and to expose them before the mainstream media.

Sting Operations in Indian Context

In Indian context ‘Sting Operations’ are sometimes regarded as unethical and unscrupulous because of two main reasons:

1) Sting operations have not been defined in any of our legislations and statutes nor it has been explicitly mentioned in any provisions of CrPC and IPC. Even after some cases being upheld by the Court of Law, none of the judges have given any guidelines in any of the judgments which could be used as a precedent in regard to ‘Sting Operations’.

2) It is mostly done by the journalists and high profile media personalities and such acts ultimately pose questions on the very credibility of media houses and journalists. How far is it justified to use any method of getting the information? Is it ethical for the journalists to use hidden cameras while reporting any story or case? Can media persons use false identities to access anywhere? Up to what extent the media can go and what is the ambit of covering and serving the information?

Although we don’t have any specific law to govern the ‘Sting Operations’ but an individual can freely approach the Court in seek of protection of his rights and freedom in existing laws. For example, wire trapping which is one of the vital parts during the string operation and provisions regulating it could be found in the Telegraph Act, 1885.

Violation of Rights

In regards to the Constitution of India, ‘Sting Operations’ violates two Fundamental Rights enshrined in the Constitution. These are:

1) Violation of Right to Freedom of Speech and Expression under Article 19(1) (a): The perpetrators of Sting Operations often claimed that ‘Sting Operations’ are covered under Reasonable Restriction of ‘Decency and Morality’ under Article 19(2) of the Constitution. On the contrary victims of the ‘Sting Operations’ call it violation of their basic Fundamental Right of free speech and expression. They also seemed to claim it as opposed to ‘Public Morality’ because it is not a legally defined and legally supported manner of accessing any information and exposing anyone.

In the case of ‘Romesh Thappar v. Union of India’ and ‘Brij Bhushan v. State of Delhi’, Honorable Court firmly affirmed that except the ‘restrictions’ mentioned under Article 19(2) of the Constitution, there could not be any other restrictions on the ‘Freedom of speech and expression’. The Court also cleared that no new restrictions could be added in the already existing category of ‘reasonable Restrictions’ under Article 19(2) because clause (2) was added after the enforcement of the Constitution by bringing the 1^st amendment which already imposes certain reasonable restrictions on this freedom.

2) Violation of Right to Privacy under Article 21: ‘Sting Operations’ were also criticized for violating the most crucial Fundamental Right of ‘Right to Privacy’ covered under ‘Right to Life and Personal Liberty’ under Article 21. As held in the case of ‘R. Rajagopal v. State of Tamil Nadu’, “the Right to Privacy is covered under the ambit of Right to personal liberty guaranteed under the Constitution of India.” It was also recognized that the right to privacy can be both an actionable claim and also a fundamental right.”

Types of Sting Operations

‘Sting operation’ and its types were as such not defined explicitly anywhere but over the period of time, based on the end result and outcome; it is divided into two types:

1) Positive Sting Operation: These are the operations undertaken keeping in mind, the benefit of society. Such cases were brought into the public domain to protect the interest of the society, which if not exposed could prove detrimental for the well being of society.

2) Negative Sting Operation: These are the operations that are in contravention to the rights and freedom of individuals and organizations. These operations don’t serve the interest of the society and are harmful to the person who was being exposed in the mainstream media.

Incidents Related to Sting Operations in India

Let’s have a look upon some of the cases of ‘Sting Operations’ in India:

1) Bangru Laxman Case: This was the first sting operation done in India by Tehelka in 2001. In this incident, the former president of BJP Bangru Laxman was caught taking bribes from the journalists who impersonated as the officials of Arm Dealer UK based West end International company. In this case, the court sentenced him to jail for four years.

2) Babu Bajarangi Case: Babu Bajarangi was one of the main accused of the Gujarat riots in 2002. He was caught on camera saying that he was proud of killings on 28 February 2002, which occurred a day after Godhra train carnage in which 97 Muslims were dead. The Court used the testimony of sting operation while convicting him.

3) Jessica Lal murder case: This case was again exposed by Tehelka, in which three witnesses by the name Shayan Munshi, Karan Rajput, and Shiv Dass were turned hostile and were later found to be bribed to change their statements in the Court of law.

CONCLUSION

All the claims related to validity or inadequacy of ‘Sting Operations’ are claimed using two arguments. One is totally supported by the Constitutional mechanism but the other one is claimed with the backing of ‘Public Morality’ and principles of Justice, Equality, Fairness, and good Conscience. Recently the chief minister of Delhi announced and appealed to the people of Delhi to carry out ‘Sting Operations’ for exposing corrupt government officials.

His decision was widely criticized by some people and appreciated by some. This is so because all of us have subjective notions when it comes to the ‘Morality and Ethics’. What might be morally justified for one individual might not necessarily be justified for another. So in my opinion there is a need to have a proper Law or Statute to legally justify the credibility of ‘Sting operations’ in India.

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This article is written by Joyita Mukhopadhyay, a student of Amity university Kolkata.

INTRODUCTION

Strict starting points and conventions in law have been subjects of examination in numerous nations among scholars, law specialists, and students of history. This has prompted a rich assortment of near lawful writing, enlightening juristic ideas and giving some huge experiences into the establishments of current lawful frameworks. Donald Davis Jr’s. The Spirit of Hindu Law is a near second to the works of art on Indology in analyzing the job of Dharma in Hindu lawful and strict customs. He has embraced a between disciplinary methodology and similar strategy which is both invigorating and uncovering. For Davis, “law is the religious philosophy of common life” and the European thought of law, as rules supported by sanctions implemented by the state, is an unnatural thought created at a specific crossroads in history to serve certain provincial destinations. Among the benefits he recognizes in the idea is that it recognizes and clarifies the hole among ‘rule’ and ‘conduct’ in regular day to day existence and features the higher reason included at whatever point law is conjured.

The genuine idea of law lies in its fundamental relationship with religion, however the two are various elements and have various tasks to carry out in the public eye. Regardless of a few centuries of purposeful secularization, the state couldn’t expel components of religion from the law even in countries that are generally common, liberal, and just. The approach he receives is to examine some select key ideas drawing support from definitive Sanskrit messages, relate them to the all out Hindu legitimate custom, and lastly draw out their importance to contemporary equity framework in similar circumstances. Hindu law is believed to be the most ancient legal system which is approximately 6000 years of.Hindu law is based on immemorial custom and secular law which is called Dharma. Dharma played an essential role in forming Indian law.

Provenance of Hindu Law

There are two type of provenance in Hindu law ,they are

Modern source of Hindu law and ancient source of Hindu law.

Ancient Sources of Hindu Law

Sources of hindu law are divided under

Shruti
Smriti
Digest and commentaries
Customs

Shruti

It is derived from shru which means to hear ,it signifies what is heard and it is considered as primary source of hindu law The shrutis consist of four vedas and upanishads dealing with the religious right that contained the meaning attaining true knowledge and moksha . There are four Vedas to be specific, Rig Veda (containing psalms in Sanskrit to be discussed by the main cleric), Yajurva Veda (containing recipes to be presented by the directing minister), Sama Veda (containing sections to be recited by diviners) and Atharva Veda (containing an assortment of spells and chants, stories, forecasts, apotropaic charms and some theoretical songs).

Every Veda has three sections viz. Sanhita (which comprises for the most part of the songs), Brahmin (discloses to us our obligations and methods for performing them) and Upanishad (containing the quintessence of these obligations). The shrutis incorporate the Vedas alongside their parts.

Smriti

The word smriti derived from smri which has significance to remember, They are utterance and precepts of almighty which have been heard and remembered by rishis from generation to generation. The smrities are divided into Dharma sutra (prose)and Dharmashatras ,the exact number of smritis is not defined but Manusmriti is the earliest one. The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for commission of a wrong).

Digest and Commentaries

After smriti’s the next step in the development of Hindu law was the number of commentaries and digest based upon smritis. The commentaries is to interpret the law as laid down in the smriti’s. So a writing of a particular smriti is called commentaries while writing on different smrities is called Digest

They are number of commentaries but main commentaries are Daya Bhaga by jimutavahana and Mitakshara by Vijanamshwara

Custom

Custom is viewed as the third wellspring of Hindu law. From the soonest period custom (‘achara’) is viewed as the most noteworthy ‘dharma’. As characterized by the Judicial Committee custom connotes a standard which in a specific family or in a specific class or region has from long use gotten the power of law.

Custom is a rule source and its position is close to the Shrutis and Smritis yet utilization of custom beats the Smritis. It is better than composed law. There are sure qualities which should be satisfied for announcing custom to be a legitimate one. They are:-

The custom must be antiquated. The specific utilization more likely than not been drilled for quite a while and acknowledged by basic assent as an administering rule of a specific culture.

(ii) The custom must be sure and ought to be liberated from such an uncertainty. It should likewise be liberated from details.

(iii) The custom must be sensible and not against any current law. It must not be corrupt or against any open strategy and

(iv) The custom more likely than not has been constantly and consistently followed for quite a while.

Indian Courts perceive three kinds of customs viz: (a) Local custom – these are customs perceived by Courts to have been pervasive in a specific district or territory. (b) Class custom – these are customs which are followed up on by a specific class. Eg. There is a custom among a class of Vaishyas such that departure or deserting of the spouse by the husband repeals the marriage and the wife is allowed to wed again during the life-time of the husband. (c) Family custom – these are customs which are official upon the individuals from a family. Eg. There is a custom in groups of antiquated India that the oldest male individual from the family will acquire the bequests.

Modern Sources of Hindu Law

(I) Justice, Equity – Equity and Good Conscience

Once in a while it may happen that a question precedes a Court which can’t be settled by the utilization of any current principle in any of the sources accessible. Such a circumstance might be uncommon however it is conceivable on the grounds that few out of every odd sort of certainty circumstance which emerges can have a comparing law administering it.

The Courts can’t decline to settle the debate without law and they are under a commitment to choose such a case moreover. For deciding such cases, the Courts depend upon the essential qualities, standards and guidelines of fairplay and respectability.

In phrasing, this is known as standards of equity, value and great heart. They may likewise be named as Natural law. This guideline in our nation has delighted in the status of a wellspring of law since the eighteenth century when the British organization clarified that without a standard, the above rule will be applied.

(ii) Legislations

Enactments are Acts of Parliament which have been assuming a significant job in the development of Hindu law. After India accomplished freedom, some significant parts of Hindu Law have been arranged. Not many instances of significant Statutes are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, and so on.

After codification, any point managed by the arranged law is conclusive. The institution abrogates all earlier law, regardless of whether dependent on custom or in any case except if an express sparing is accommodated in the order itself. In issues not explicitly secured by the classified law, the old printed law contains an application.

(iii) Precedents

After the foundation of British principle, the chain of importance of Courts was built up. The tenet of point of reference dependent on the standard of rewarding like cases the same was set up. Today, the choices of Privy Council are official on all the lower Courts in India aside from where they have been changed or adjusted by the Supreme Court whose choices are authoritative on all the Courts with the exception of itself.

Schools of Hindu Law

Schools of Hindu law are viewed as the essential wellspring of Hindu law which comprised in the advancement of the Hindu law from its underlying foundations. It is otherwise called the discourses and the digestives of the smritis. These schools have enlarged the extent of Hindu law and unequivocally contributed in its turn of events. These schools have enlarged the extent of Hindu law and unequivocally added to its turn of events.

The two significant schools of Hindu law are as per the following-

Mitakshara

Daya Bhaga

Mitakshara School

Mitakshara is one of the most significant schools of Hindu law. It is a running analysis of the Smriti composed by Yajnvalkya. This school is pertinent in the entire piece of India with the exception of in West Bengal and Assam. The Mitakshara has an extremely wide purview. Anyway various pieces of the nation provide legal counsel contrastingly in view of the distinctive standard principles followed by them.

Mitakshara is additionally separated into five sub-schools to be specific

Banaras Hindu graduate school

Mithila graduate school

Maharashtra graduate school

Punjab graduate school

Dravida or Madras Graduate School

These graduate schools go under the ambit of Mitakshara graduate school. They appreciate a similar essential rule yet contrast in specific conditions.

Benaras Graduate School

This graduate school goes under the authority of the Mitakshara graduate school and covers Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada are a portion of its significant critiques.

Mithila Graduate School

This graduate school practices its clout in the regional pieces of tirhoot and north Bihar. The standards of the graduate school win in the north. The significant discourses of this school are Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Bombay Graduate School

The Maharashtra graduate school has the power to practice its locale over the regional parts including Gujarat Karana and the parts where there is the Marathi language is capably spoken. The primary specialists of these schools are Vyavhara Mayukha, Virmitrodaya, and so on.

Madras Graduate School

This graduate school will in general spread the entire southern piece of India. It likewise practices its specialists under Mitakshara graduate school. The fundamental specialists of this school are Smriti Chandrika, Vaijayanti, and so on.

Punjab Graduate School

This graduate school was dominatingly settled in east Punjab. It had set up its own traditions and customs. The primary discourses of this school are viramitrodaya and its built up customs.

Dayabhaga School

Dayabhaga school transcendently won in Assam and West Bengal. This is additionally one of the most significant schools of Hindu laws. It is viewed as a review for the main smritis. Its essential centre was to manage parcels, legacy and joint family. As indicated by Kane, it was fused in the middle of 1090-1130 A.D.

Dayabhaga school was detailed with the end goal of destroying the various ridiculous and counterfeit standards of legacy. The quick advantage of this new condensation is that it will in general expel all the deficiencies and impediments of the recently settled standards and incorporation of numerous cognates in the rundown of beneficiaries, which was confined by the Mitakshara school.

In Dayabhaga school different discourses were followed, for example,

Dayatatya

Dayakram-sangrah

Virmitrodaya

Dattaka chandrika

Mitakshara and Dayabhagha schools are differed on important issues as regard to inheritance

Mitakshara the standard of blood relationship or association is followed if there should arise an occurrence of legacy though in the event of Dayabhaga school the legacy is represented by the standard of the contribution of pinda.

Mitakshara school the cognates are delayed to agnates or not favored upon agnates while if there should arise an occurrence of Dayabhaga cognates are favored upon the agnates.

Mitakshara school extended its acknowledgement to a restricted degree with respect to the acknowledgment of the precept of factum valet however Dayabhaga, then again, has extended it acknowledgement to the full degree.

Under the Hindu law the contrast between the Mitakshara school and the Dayabhaga school isn’t perceived as in the current situation there exists one uniform law of progression for all the Hindus.

Muslim Law

Muslim law is derived from divine the primary source of Muslim lw is sharia. Sharia law is Islam’s legitimate framework. It is gotten from both the Koran, Islam’s focal content, and fatwas – the decisions of Islamic researchers.

Sharia actually signifies “the unmistakable, very much trodden way to water”.

Sharia law goes about as a code for living that all Muslims ought to cling to, including petitions, fasting and gifts to poor people.

It plans to assist Muslims with seeing how they should lead each part of their lives as indicated by God’s desires. The divine communicate to Mohammad prophet who prescribe Quran, so the Quran is the foremost primary source of Muslim.

Features of Quran are

They are divine origin, first source, verse form, admixture of religion law morality , unchangeable &authoritative

Other than Quran another primary sources of Muslim laws are

Sunna

The word sunna implies the trodden way and as this significance shows it indicates a practice and point of reference. It is conviction of Muslim that disclosures were two sorts show (zahir) and inward (batin). Show disclosure is correspondence which is made by holy messenger Gabriel under the course of god to Mohammad in the very expressions of god. Quran is made out of show disclosures.

Interior disclosure is assessments of the prophet which is conveyed now and again on questions that happened to be raised before him. Sunna implies the model conduct of the prophet. The portrayals of what the prophet stated, did or implicitly permitted is called hadis or customs. The conventions, nonetheless, were not decreased to composing during the lifetime of Mohammad. They have been saved as customs passed on from age to age by approved people. The significance of hadith as a significant wellspring of Muslim law has been set down in the Quran itself.

Sorts Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat

2. Ahadis

These two have been characterized into the accompanying three classes based on mode or way in which it has really begun:

Sunnat-ul-come up short i.e., Traditions about which prophet did himself.

Sunnat-ul-qaul i.e., Traditions about which he urged by words.

Sunnat â€”ul-tuqrir i.e., The things done in his quality without his objection.

The three class of Ahadisare:

Alhadis – I-mutwair i.e., Traditions that are of open and general legitimacy and are held as totally legitimate. In such hadis the chain is finished.

Ahadis – I-mashhoor i.eTraditions which are known to a dominant part of individuals, don’t have the character of all inclusive appropriateness.

Ahadis-I-wahid i.e., Traditions which rely upon secluded people.

In this way two sources, in particular, the Quran and Sunna may hence be said to frame the crucial underlying foundations of Islamic law.

3. Ijma

It was similarly authoritative on the individuals to follow up on a rule (not as opposed to the Quran or hadis ) which had been built up by understanding among exceptionally qualified lawful researchers of any ages.

Ijma has been characterized by Sir Abdul Rahim as understanding of the legal scholars among the supporters of Prophet Mohammad in a specific inquiry of law. The legitimacy of ijma, as containing a coupling point of reference, depends on a hadis of the prophet which says that god won’t permit His kin to concur on a blunder. Ijma hence becomes a wellspring of law. As indicated by the old style hypothesis, bombing Quran and customs, and accord among the associates of the prophet is perceived as the best guide of law. In this way it is the third wellspring of law, both in purpose of time and significance.

The authority of ijma as a wellspring of Muslim law is additionally established on Quranand Hadith. The law is something living and evolving. The point of law is to satisfy the necessities of the general public. The rule of ijma depends on the content for example god won’t permit His kin to concede to a mistake and whatever Muslims hold to be acceptable is acceptable before god. Muslims religion doesn’t concede the chance of further disclosure after the passing of the prophet, the standard of ijma is the main expert for enactment in the current Muslims framework.

Sorts Of Ijma

Ijma is of three sorts:

Ijma of the allies of the prophet â€” is the consensual assessment of partner which is generally adequate, all through the Muslim world and is unrepealable.

Ijma of legal scholars is the consensual assessment of legal scholars which is accepted as its best ijma after ijma of sidekicks. All the legal scholars ought to sit together and talk about the thinking, and a larger part of the legal advisers is of the view that unanimity to shape ijma.

Ijma of the individuals â€” is the assessment of Muslim populace in general may have any significance however in genuine practice ijma of Muslim open had no an incentive with respect to lawful issues yet in issues identified with religion, petition and different observances have more worth connected to it.

Ijma can’t be limited to a specific period or nation. It is finished when the legal advisers, after due consultation, go to a discovering .it can’t be addressed or tested by any individual law specialist. Ijma of one age might be switched or altered by the ijma of the equivalent or ensuing age.

4) Qiyas

This is a last essential wellspring of Muslim law. Qiyas implies thinking by similarity from over 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are concluded by the activity of reason.

Qiyas might be characterized as a procedure of finding by which the law of the content is applied to cases, which however not secured by the dialects are administered by reason of text. Consequently, it ought to be noticed that Qiyas doesn’t indicate to make another law, yet just to apply old built up standards to new conditions.

Like Hindu law secondary sources or modern sources of Muslims laws are

Judicial decisions

Legislation

Justice equity and good conscience

Schools of Muslim law

Schools have no territory or regional like Hindu law. The schools of Muslim law can be extensively ordered into two classifications:

Sunni Schools

Shia Schools

Sunni Schools

In Sunni group, there are four significant schools of Muslim law which are as per the following;

A. Hanafi School

Hanafi School is the first and the most well known schools in Muslim law. Before being named Hanafi, this school was known as Koofa School which depended on the name of the city of Koofa in Iraq. Afterward, this school was renamed as Hanafi School dependent on the name of its organizer Abu Hanafee.

The Prophet had not permitted his words and conventions from being composed, the Hanafi School depended on the traditions and choices of the Muslim people group. In this way, Hanafi School classified the point of reference which in predominance during that time among the Muslim people group.

The originator of this school Abu Hanafee had not recorded any book for laying the standards of this school and hence this school had developed through his two supporters Imam Muhammed and Imam Abu Yousuf. Them two provided for the Juristic inclination (Isthi Hasan) and arranged the Ijma’s of that period.

This school turned out to be generally spread in different regions, thus, most of Muslims in nations, for example, India, Pakistan, Syria, and Turkey have a place with Hanafi School. In India, since most of Muslims are from Hanafi School, the Courts choose the instance of a Sunni Muslim according to the Hanafi School except if it is indicated that they have a place with different schools.

In Hanafi School, Hedaya is the most significant and definitive book which was made over a time of 13 years by Ali receptacle Abu Baker al Marghinani. This book gives laws on different angles aside from the law of legacy. Ruler Warren Hasting attempts to make an interpretation of the Hedaya to English. He named numerous Muslim Scholars to interpret the book.

In any case, the Sirajiyya is considered as the legitimate book of the Hanafi Law of Inheritance. The book is composed by Sheik Sirajddin, and the principal English interpretation is composed by Sir William Jones.

B. Maliki School

This school gets its name from Malik-receptacle Anas, he was the Mufti of Madeena. During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his devotees prospered with Hanafi Schools. He found around 8000 customs of the Prophet however went along just around 2000 of them. At the point when the supporters of Imam Abu Haneefa classified their law dependent on Ijma’a and Isthihsan.

The maliki school gives the significance to the Sunna and Hadis while the Hanafi school gives the significance to the individuals and Isthihsan. According to Maliki School and Law, they infrequently acknowledge the Ijma’a. According to the Law, the individual gave Fatwa testing the sovereign authority of Khaleefa, he confronted ill will and of absence of help from Muslim governments. Accordingly, this Maliki school didn’t get a lot of prevalence.

In India, there are no adherents of this school however when the Dissolution of Muslim marriage act 1939 came in the image, a portion of the laws and arrangement of this school was considered as they are giving a bigger number of rights to the ladies than some other school. In Hanafi School, if the ladies do not get any updates on her better half, she needs to hang tight work 7 years for Dissolution of the marriage, while in Maliki School the ladies need to sit tight 2 years for Dissolution of the Marriage.

Mu-atha of Imam Malik is considered as the most definitive book of the Maliki School. This book is additionally the main book composed on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.

C. Shaffie School

The Shaffie School gets its name on the name of Muhammad canister Idris Shaffie, his period was between 767 AD to 820 AD. He was the understudy of Imam Malik of Madeena. At that point he began working with the supporters of Imam Abu Haneefa and went to Khoofa.

He finishes up the thought’s and the hypotheses of Hanafi School and Maliki School in an amicable way. The Imam Shaffie was considered as one of the best legal scholar of Islam. He made the old style hypothesis of the Shaffie Islamic Jurisprudence.

As indicated by this school, they considered Ijma’a as the significant wellspring of the Muslim law and give legitimacy to the traditions of the Islamic individuals and follows more techniques for Hanafi School. The fundamental commitment of Shaffie School is the Quiyas or Analogy.

The Al-Risala of Imam Shaffie was considered as the main definitive book of Islamic Jurisprudence. In that book they talk about and decipher the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal thinking) Isthihsan (Juristic inclination) and Ikhthilaf (Disagreement) in isolated part in his book Risala. His other book Al-Umm is the expert on Fiqh (study of lifestyle).

The devotees of Shafie School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.

D. Hanbali School

The Ahmad receptacle Hanbal is the author of the Hanbali School. He found the Hanbali school in 241 (AD 855). He is the pupil of Imam Shaffie and supports Hadis. He unequivocally restricted the Ijthihad strategies. He presented the hypothesis of following the foundation of Sunna and Hadis and attempt to find the solution all his inquiry. His hypothesis was to come back to the Sunna of the Prophet. At the point when the Imam Shafie left for Baghdad, he proclaimed that the Ahmad container Hanbal was the just one after him who is the better law specialist after him. The adherents of Hanbali school found in Syria, Phalastine and Saudi Arabia.

Shia Schools

According to Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They appreciate the political force just in Iran however they don’t have the larger part in that state moreover.

A. Ithna-Asharis

These schools depend on the accompanying of Ithna-Ashari laws. The supporters of these schools are for the most part found in Iraq and Iran. In India likewise there is most of the shia muslim who follows the standards of the Ithna-Asharis School. They are viewed as political quietists. This school is considered as the most predominant school of the shia muslims. the ja’fari fiqh of the shias much of the time indistinct from at least one of the four sunni madhahib, with the exception of mutah is considered as the legitimate marriage. The individuals who follow the Ithna Asharis school accept that the remainder of the Imams vanished and to be returning as Mehdi(Messiah).

B. The Ismailis

As per Ismailis school, in India there are two gatherings, the Khojas or Western Ismailis speaks to the adherents of the current Aga Khan, who they considered as the 49th Imam in this line of Prophet, and the Bohoras for example the Western Ismailis are isolated into Daudis and Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the devotees of this school. It is viewed as that the supporters of these schools have unique information on strict tenet.

C. Zaidy

The adherents of this school are not found in India however are most extreme in number in South Arabia. This faction. of the Shia school is the most predominant among all in Yemen. The devotees of these schools are considered as political activism. They regularly dismiss the twelve Shia school ways of thinking.

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This article is written by Nazar Nawaz Abbasi pursuing LLB from Faculty of Law, University of Delhi.

Numerous laws are there which are having the provisions for the appointment of auditors. The law under which we appoint auditors lays down the procedure of their appointment and also the rights, duties and the functions of the auditor. Sections 138 to 148 of the Companies Act, 2013 concerned with accounts, audit and auditors. These provisions will have far-reaching impacts on the audit profession. Here we discuss the appointment and their role as an auditor under Companies act, 2013.

Who the Auditor is?

An Auditor is an independent person who is qualified to perform audit. In accounting, an auditor is the person who is responsible for evaluating the validity and reliability of a company or organization’s financial statements.

Appointment of Auditor under Companies Act, 2013

Chapter X, section 139 of Companies Act, 2013 deals with the appointment of an Auditor. Section 139(1) tells about when the appointment of an auditor can be done.

Section 139 clause (1) states that –“Subject to the provisions of this Chapter of the Act, each and every company shall, at the first annual general meeting, appoint a person or a firm as an auditor who shall hold the office from the conclusion of that meeting till the conclusion of its sixth annual general meeting and thereafter till the conclusion of every sixth meeting….”

As per section 139, it is a prime requirement for every company that it shall at the first Annual General Meeting appoint an auditor who is either an individual or a firm. It is important to note that the term Appointment includes reappointment.

The manner and procedure of selection of auditors by the members of the company will be such as prescribed. It is compulsory that before such appointment of the auditor is made, the written consent from him to such appointment, and also a certificate from him stating that the appointment, if made, shall be on par with the conditions/norms as may be prescribed, shall be obtained.

Tenure

An individual can be appointed as an auditor for more than a term of 5 consecutive years and if an audit firm is appointed as auditor then for more than two terms of 5 consecutive years.

Section 139(2) states that- “No listed company or a company belonging to such class or classes of companies as may be prescribed, shall appoint or re-appoint—

(a) An individual as an auditor for more than one term of five consecutive years; and

(b) An audit firm as an auditor for more than two terms of five consecutive years

Provided that—

(i) An individual auditor who has completed his term under section 139(2) (a) shall not be eligible for re-appointment as auditor in the same company for five years from the completion of his term;

(ii) An audit firm which has completed its term under section 139(2) (b), shall not be eligible for re-appointment as auditor in the same company for five years from the completion of such term.”

In a Government company, within a period of 180 days from the commencement of the financial year, the auditor shall be appointed who shall hold office until the conclusion of the annual general meeting.

Section 139(5) states that-“Notwithstanding anything contained in sub-section (1), in the case of a Government company or any other company owned or controlled, directly or indirectly, by the Central Government, or by any State Government , or partly by the Central Government and partly by one or more State Government, the Comptroller and Auditor-General of India shall, in respect of a financial year, appoint an auditor who is qualified to be appointed as an auditor of companies under Companies Act, 1963, within a period of one hundred and eighty days from the starting of the financial year, who shall hold office till the conclusion of the annual general meeting.”

Eligibility, Qualification and Disqualification of an auditor

A person shall be eligible for appointment as an auditor only if he is a Chartered Accountant.

Following are the disqualifications of an appointment to auditor of a company as per mentioned in Section 141(3) of Companies Act, 2013.

(a) An officer or employee of the company cannot be appointed as an auditor.

(c) A person who is a partner, or who is in the employment, of an officer or employee of the company cannot be appointed.

(d) A person who or his relative or partner-

(i) is holding any security of or interest in the company or its subordinate, or of its holding or an associate company or a subordinate of such holding company.

(ii) is obliged to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, in excess of such amount as may be prescribed.

(iii) has given a guarantee or provided any security in connection with the beholden of any third person to the company, or its subsidiary, or its holding or associate company or a subordinate of such holding company, for such amount as may be prescribed.

(e) a person or a firm who, either directly or indirectly, has business relationship with the company, or company’s subsidiary, or its holding or associate company or subordinate of such holding company or associate company of such nature as may be prescribed.

(f) a person whose relative is a director or is the employer of the company as a director or key managerial personnel.

(g) a person who is in employment elsewhere or a person or a partner of a firm holding appointment as its auditor, if such persons or partner is at the date of such appointment or reappointment holds appointment as auditor of more than twenty companies;

(h) a person who has been convicted by a court for an offence involving fraud and a period of ten years has not been completed from the date of such conviction;

(i) any person whose subordinate or associate company or any other form of entity, is engaged as on the date of appointment in consulting and specialized services as provided in section 144.

Powers of an Auditor

1. Right to access

Auditors of a company shall have the right to access books of accounts and vouchers of the company. The Auditor is entitled to require from officers of the company such information and explanation as he may consider necessary for performance of his duties.

There is an incorporating list of matters for which the auditor shall seek information and explanation. This list helps auditors to take care of serious issues. The list includes:

(a) Proper security for Loan and advances,

(b) Transaction by book entries

(c) Sale of assets in securities in loss

(d) Loan and advances made shown as deposits,

(e) Personal expenses charged to revenue account

(f) Case received for share allotted for cash

The auditor of the holding company also has the same right.

2. Auditor to sign audit reports

The auditor of the company shall sign the report or sign or certify any other document of the company and financial transactions or matters, which have any unfavorable effect on the functioning of the company mentioned in the report shall be read before the company in general meeting and shall be open to inspection by any member of the company.

3. Auditor in general meeting

It is a major requirement under section 146, that the company must send all notices and communication to the auditor, relating to any general meeting, and an auditor shall attend the meeting either through himself or through his agent, who shall also be an auditor. Such an auditor must be given a fair and sensible opportunity to speak at the meeting on any part of the business which concerns him as the auditor.

As per section 101 of the Companies Act,2013, notice of general meeting must be given before 21 days either in writing or through electronic mode to the auditor in such a form as may be prescribed. Every notice of a meeting specifies the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting.

4. Right to remuneration

The payment of the auditor of a company shall be fixed in its general meeting or in such manner as may be determined therein. It must include the cost incurred, if any, incurred by the auditor in connection with the audit of the company and any facility extended to him but does not include any payment paid to him for any other service rendered by him at the request of the company.

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The author seeks to explain briefly the role of the present case in the growth of the concept of nervous shock in one branch of Law i.e. Law of Torts.

Equivalent Citation

(1901) 2 KB 669

Bench

Justice Kennedy

Justice Phillimore

Relevant Concepts of Law

Nervous Shock and Negligence under the Law of Torts.

Brief Facts of the Case

The plaintiff, in the present case, was standing behind the bar of a public house at the Bonner Arms in Bethnal Green from the roadway. She was pregnant at the time when the incident happened. Then the defendant’s servant negligently drove horse-drawn carriage into the building of the public house. The horse-drawn carriage did not hit the plaintiff because the defendant stopped it just before the carriage was about to hit her. As consequents to such incident, the plaintiff suffered from a shock and gave birth after nine days of the incident prematurely to a baby who was said to be an idiot by the plaintiff. The plaintiff then claimed damages for the tort of negligence against White and sons. The plaintiff further sought damages for the shock which was caused to her by the incident. The defendants contended that the tort of negligence requires physical injury which was, in the present case, too remote. The defendants further claimed that the psychiatric harm suffered by the plaintiff, due to the fear of getting hit, was not foreseeable and thus, they are not liable to pay any damages to her.

Issues Before the Court

Whether fear alone was enough to create a mental injury claim in the present case?

Ratio of the Case

The court was of the opinion that although the plaintiff had not suffered any physical injury, the traumatic incident, of the driver losing control over the horses and thereby driving them into the building where the plaintiff was working behind her husband’s bar, led to nervous shock and the premature birth of her child. In this case, mental illness was escorted by a physical injury i.e. miscarriage. Moreover, the plaintiff had established that the ‘nervous shock’ which was caused by the accident, resulted from her fear for her own safety.

In other words, the ‘terror wrongfully induced and inducing physical mischief gives a cause of action.’ The plaintiff could recover in respect of the physical consequences of ‘nervous shock’ caused by reason of ‘reasonable fear of immediate personal injury to oneself’.

In the words of Kennedy, J:

“If impact be not necessary, and if, as must be assumed here, the fear is proved to have naturally and directly produced physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual impact, why should not an action for those damages lie just as well as it lies where there has been an actual impact ? It is not, however, to be taken that in my view every nervous shock occasioned by negligence and producing physical injury to the sufferer gives a cause of action. There is, I am inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.”

Kennedy, J. considered the argument that fear, where physical injury is directly produced by it, cannot be a ground of action merely because of the absence of any accompanying impact, to be ‘both unreasonable and contrary to the weight of authority.’

The argument was unreasonable and contrary to the weight of authority, but Justice Kennedy limited the type of shock for which damages were recoverable to that suffered from fear for oneself only: “The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.”

Justice Kennedy further extrapolated, “Mere fright not followed by consequent physical damage will not support an action, but if it is followed by consequent physical damage, then, if the fright was the natural result of the defendants’ negligence, an action lies, and the physical damage is not too remote to support it.”

Justice Phillimore said, “Where there is a legal duty on the defendant not to frighten the plaintiff by his negligence, then fright with consequent physical damage will support an action.”

Decision of the Court

It was held that an action could lie in negligence for nervous shock which had arisen from a reasonable fear for one’s own (in the present case, plaintiff’s) immediate safety. Such an injury could be compensated.

In obiter, Kennedy, J. suggested this rule might also cover cases where the shock is produced, “by horror or vexation arising from the sight of mischief being threatened or done either to some other person, or to her own or her husband’s property.”

CONCLUSION

Thus, this case established that a claimant may recover damages in the tort of negligence for psychiatric harm caused to him or her due to the reasonable fear induced by a negligent act of the defendant.

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