Month: August 2020

Page v. Smith: Case Analysis

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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 concepts of primary and secondary victim in the case of tort of negligence under the Law of Torts.

Case Number

HL/PO/JU/18/255

Equivalent Citations

[1995] 2 WLR 644; [1995] UKHL 7; (1995) 2 ALL ER 736

Bench

Dissenting opinion: Lord Keith of Kinkel; Lord Jauncey of Tullichettle

Concurring judgment: Lord Ackner; Lord Browne-Wilkinson; Lord Lloyd of Berwick

Decided on

11 May 1995

Relevant concepts of Law

Negligence in the Law of Torts

Brief Facts of the Case and Procedural History

Mr. Page was the plaintiff in the present case. He was involved in a minor car accident and did not suffer any physical harm or hurt in the collision with the defendant. But the crash did result in the reappearance of Magic Encephalomyelitis also called Chronic Fatigue Syndrome. The plaintiff suffered from that disease for nearly twenty years but his disease was, at the time of accident, in remission. The plaintiff was in the hope to join his job again as a full-time teacher. Due to the collision, the disease of the plaintiff reappeared. This rendered the plaintiff’s condition to become chronic and permanent. As a result of it, he was incapable to return to his job as a teacher and take up any full-time employment. The plaintiff, therefore, claimed damages from the defendant because due to the negligent driving of the defendant, the plaintiff had suffered psychiatric harm. The defendant admitted that he had driven the car negligently and the collision was his fault. At the same time, he also contended that he cannot be made liable for the psychiatric harm caused to the plaintiff because the same was unforeseeable and cannot be claimed as damages. The defendant claimed that an ordinary person would not have suffered the injury which was incurred by the plaintiff.

The Court of Appeal ruled in favour of defendant and the present appeal was filed before the House of Lords by the plaintiff.

Issues Before the House of Lords

Whether, where a claim is brought in negligence by the plaintiff for any psychiatric damage caused by the defendant, it was necessary to establish that this particular type of harm was a foreseeable consequence of the defendant’s negligence, or whether it would be sufficient that some form of compensable harm was foreseeable, such as a physical injury.

Or, in simple words, whether the claimant was competent to recover for such extreme and unforeseeable mental injury caused by the negligent driving of the defendant.

Or, in other words, whether a duty of care was owed and, if it did, whether the loss was too remote to be claimed by the plaintiff.

Ratio of the Decision

The reasoning given by Lord Lloyd, with whom Lords Ackner and Browne-Wilkinson concurred, was that where the claimant is a primary victim, then it was “unnecessary to ask whether [the defendant] was under a separate duty of care not to cause foreseeable psychiatric injury.” They further said, “It would be inappropriate to separate physical and psychiatric harm into different ‘kinds’ of loss with separate tests.”

Thus, the only requirement was that the defendant owed a duty of care towards the claimant to avoid causing them ‘personal injuries.’ This includes both physical and psychiatric harm.

Lord Lloyd then went on to explain it simply and also avoided drawing difficult distinctions in the law:

“Suppose, in the present case, the plaintiff had been accompanied by his wife, just recovering from a depressive illness, and that she had suffered a cracked rib, followed by an onset of psychiatric illness. Clearly, she would have recovered damages, including damages for her illness, since it is conceded that the defendant owed the occupants of the car a duty not to cause physical harm. Why should it be necessary to ask a different question, or apply a different test, in the case of the plaintiff? Why should it make any difference that the physical illness that the plaintiff undoubtedly suffered as a result of the accident operated through the medium of the mind, or of the nervous system, without physical injury?”

The House of Lords, therefore, considered the aspect that the plaintiff was a primary victim in the incident and there was a risk of injury involved to him due to the collision. Hence, there was no need to consider if the psychiatric shock was foreseeable or not.

Though the plaintiff did not suffer any mental harm, the crash resulted in reappearance of his disease which was, prior to the collision, in a state of remission. Thus, the psychiatric harm, that too to a primary victim, was to be treated as a direct personal harm.

Furthermore, Lord Lloyd held that in the case of primary victims there arises no question of the victim’s proximity to the defendant’s act and thus, he rejected the ‘floodgates’ argument.

Decision of the House of Lords

The House of Lords gave their decision in favour of the plaintiff, albeit by a bare majority as Lords Keith and Jauncey were having a dissenting opinion. Thus, it was held that if any sort of personal injury was foreseeable then it did not matter it to have been physical or psychiatric.
the primary victim also need not establish that any psychiatric harm was foreseeable. 

Moreover, the Court rejected defendant’s contention that an ordinary person would not have suffered the injury which was incurred by the plaintiff. The Court held that it is well established law that ‘the defendant must take his victim as he finds him under the thin skull rule.’

The plaintiff was successful and he was awarded £162,000 in damages from the defendant.

CONCLUSION

The Page v. Smith case is significant in the branch of Law of Torts because it enhanced the distinction between primary and secondary victims. The House of Lords held there was no difference between physical and psychiatric harm for the purposes of the duty of care in the tort of negligence.

The distinction between primary and secondary victims was not there prior to this case. And it was assumed that reasonable foreseeability of psychiatric illness was a requirement in all cases of tort of negligence where psychiatric illness was involved. Further, it was also assumed, prior to this case, that all the plaintiffs must be persons of normal disposition. The House of Lords by a majority in Page v. Smith improved the claim of damages of the primary victims over the secondary victims. 

From this case onwards, a primary victim can recover for psychiatric illness even when the same will not be reasonably foreseeable, if the physical injury (which now is not a need to actually occur) is foreseeable. Per contra, in the case of a claim by a secondary victim, it is restricted to a larger extent than the primary victim.

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A Case Analysis on Nervous Shock: King v. Phillips

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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.

Case Number

[1953] 1 All E.R. 617.

Equivalent Citation

[1953] 1 QB 429

Bench

Lord Justice Denning

Relevant Concepts of Law

Nervous Shock and Negligence under the Law of Torts.

Facts of the Case

In the present case, a taxi driver negligently backed his taxi. Owing to this act of the driver, a child behind his taxi, on a tricycle, got slightly injured. The mother of the child saw the taxi running into the tricycle of his child from seventy to eighty yards away but she did not see her child at that time. Consequently, the mother suffered shock due to the incident. Thus, the mother filed a claim for seeking damages from the driver claiming that she suffered a shock owing to the driver’s negligent driving and claiming him to be held liable for the same.

Issues Before the Court

Whether an action will lie for nervous shock, where the shock results, not from apprehension of injury to himself, but from fear of another’s safety?

In other words, whether the taxi-driver could reasonably have FORESEEN the risk of damage to her and thus is liable to pay the same?

Ratio of the Case

The taxi driver could have contemplated the injury has been inflicted on the child as his tricycle was behind his taxi while he was reversing the same but he could not have contemplated that the mother of the child could have suffered shock as she was seventy to eighty yards away from the place of incident. She suffered the shock merely at the sight of the tricycle being hit by the taxi. The child was the primary victim and if any sort of nervous shock could have been caused to or suffered by him, the taxi driver would have been liable. But the mother, who was not the victim in the case and was merely a spectator, cannot hold the driver liable for any damages caused to her because the driver could not have foreseen any damage to her. The Lord Justice Denning applied the principles laid down in Bourhill v. Young and held that “the driver could not have reasonably foreseen, that to back a cab in the way in which he did, would cause the injury complained of or any injury to the child’s mother, and that therefore owed no duty of care to her.”

Lord Justice Denning further said, “‘there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.’ A person ‘who suffers shock on being told of an accident to a loved one’ cannot recover damages from the negligent party on that account.”

Decision of the Court

As the taxi driver did not have any duty to care towards the mother of the child, she did not succeed in her claim to hold the taxi driver liable. Thus, the case of the mother was dismissed. The taxi driver was not held liable. The taxi driver was held liable only to the extent that the negligent driving resulted in a slight injury to the child and was held liable to pay damages to the child only.

CONCLUSION

Therefore, this case acknowledged that the test for liability of mental injury is based on the foreseeability of the injury caused. There cannot arise an action if a mere spectator who suffers the injury or nervous shock owing to the incident of negligence but is so distant that the negligent party could not foresee any damage being caused to such party.

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Juvenile vs. Adult Criminal Legal System

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

INTRODUCTION

This article explains the main differences between the laws made for the juvenile and the adult. It emphasizes on the legal system dealing with both the age groups of the country and how they are treated by the laws or legislations laid down. 

Who is a Juvenile?

A child is said to be the country’s future. The age between 0 to 18 years is the period in which children grow and learn about life. They are full of positive energy, zeal and skills, which guide them towards a bright future for themselves, as well as the nation. Thus it is the duty of the nation to protect the children and provide them with extra care under 

As per the Indian law, a juvenile is any person who is below eighteen years of age. However, the Indian Penal Code states that a child of seven years of age and below cannot be tried in the court of law.
There are various legislations which provide an umbrella to the juveniles to protect and guide them to leave the path of criminal activities. Laws such as:

  • Article 15 (3), 21A, 24, 39, 39 (e) and 47 of The Indian Constitution protect the children from various illegal practices or traditions.
  • Juvenile Justice Act, 2015 (with amendments) 

Juvenile Justice (Care and Protection of Children) Act, 2015

After the incidence of the “Delhi Gang Rape case, 2012”, a few amendments were made to the juvenile legal system, which led to the introduction of The Juvenile Justice (Care and Protection of children) Act in the year 2015. The Juvenile Justice Act came into force on 15th January 2016, thus replacing the acts of 2000 and 2006.

The said act introduced various new provisions in the area of care and protection of children who are involved in unlawful activities.
It aims to adjudicate the cases by keeping in mind all the possible solutions to guide the juvenile towards a crime-free world.  

Prime Amendments Made

  • Children between 16 to 18 years of age can be tried as adults if a heinous crime like rape, murder, etc. is involved, only after the approval of the Juvenile Justice Board (JJB). 
  • Penalties for committing offences such as buying or selling of the children, any kind of cruelty against them or kidnapping of children have been introduced by the said act. 
  • Opening and registration of various rehabilitation centres or child care institutions in all the states to safeguard the children and provide them with good education and skills to live a normal life. 

Who is an Adult?

A person who attains the age of 18 years of age is known as an adult in the eyes of law. He or she attains the legal age of majority and is thus bound by various laws of the country.
When a person attains the age of majority, he/she can apply for a driving license, vote to elect their choice of government, enter into a contract with another person and so on.

Laws for the Adult

The Indian Constitution being the supreme law of the country provides the citizens with certain fundamental rights to enjoy and fundamental duties to abide by. Like we know all the citizens are equal in the eyes of the law, so no person can be discriminated on the basis of caste, sex, creed or age. 

Laws such as:

  • Indian Penal Code, 1860
  • Indian Contract Act, 1872
  • Hindu Marriage Act, 1955
  • Motor Vehicle Act, 1988
  • Sales of Goods Act, 1930, etc. are few of the examples of those legislations which make it mandate for a person to attain the age of majority, or become an adult before entering into a contract with the other party. 

Though a minor can also be a part of a contract or any transaction, but it is followed by certain restrictions which the minor and his guardian have to follow in a strict sense. 

Therefore, an adult has the obligation to abide by all the rules, laws and regulations set by the nation in order to prevent the happening of crimes or any illegal activities and promote harmony, security and peace around the globe. 

Juvenile vs. Adult Criminal System

The key difference between a juvenile and an adult is the age group. Juvenile is the one who is below the age of 18, while an adult is the one who falls in the age group of 18 and above. 

Differences

  • Juveniles are tried in the juvenile court system, while the adults are tried in the normal court systems such as the district court, session’s court, etc. After the Nirbhaya case, if a child of 16 to 18 years of age commits a serious offence, in that case, he or she can be tried as an adult in the Indian legal system.
  • The crimes committed by the juvenile are known as ‘Delinquent acts’ instead of ‘crimes’, which is used in the case of an adult.
  • Juveniles get the bonus of extra care and protection in the juvenile court system, whereas no such advantage is given to an adult.
  • The juvenile court system is informal as compared to the courts in the adult criminal system as the children are in their tender age and are still growing and learning the difference between right and wrong.  
  • Last but not the least, while giving the decision in the matter of a juvenile, a judge has to act in the best interest of the juvenile and must follow certain guidelines and rules which are easy on him/her. 

 CONCLUSION

India’s constitution is known to be one of the best constitutions of the world. It protects all the citizens, despite their gender, caste or creed. Our legal system not only guarantees equal treatment to all the people, but also assures that all the individuals get justice in the court of law. It is essential for every law system to keep a close check on the activities of the juveniles as well because of the increasing rate in the number of crimes committed by the teens.
In India, juveniles get separate treatment in respect to the treatment given to the adults as they are in their growing age, where they are yet to learn the difference between right and wrong and explore a lot of things about life.
Hence, it gives a second chance to the children to learn from their mistakes and grow up as a better individual as nobody is born a criminal. 

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The doctrine of Remoteness of Damage

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This article is written by Anushka Singh, a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article aims to explain the doctrine of remoteness of damage in tort law with the help of relevant case laws.

INTRODUCTION

When a person commits a tort, it has consequences, these consequences in return may have more consequence therefore further leading to a chain of such events. The doctrine of the remoteness of damages is a method or test used to calculate the losses caused due to wrongdoing or breach or to what extent the previously mentioned chain consequences is the defendant responsible for. By this method, the liability of the defendant within reasonable bounds is decided through certain tests. 

The General Principle

The general principle behind the doctrine of the remoteness of damage was laid down in the Court of Exchequer, in the case of Hadley v. Baxendale, the plaintiff’s mill had come to a stop because of a break in their crankshaft. The defendant failed to deliver the broken crankshaft to the manufacturer within the agreed time, which in turn led to delay in restarting the mill. The plaintiff bought a case against the defendant to recover the profits lost because of the delay in restarting the mill. The profits of the mills should be stopped by an unreasonable delay in the delivery of the broken crankshaft to the third person held by the court while rejecting the claim. 

The rule guiding the judges in such cases is when a contract between two parties is breached by one of them, the other party is entitled to receive damages but only if the breach of contract has arisen naturally, fairly and reasonably.

For example- A drunk driver crashed into a truck, which then in turn collided with the side of a small building, leading to the collapse of the building and death of 50 people. The collapse of the building and debris fell onto its surroundings killing more people.

Now in the above example, one can see how one accident had multiple consequences, even though they were not intended nor comprehended beforehand by the defendant. Now in such scenarios on whom does the blame of so many deaths fall? The answer to this question was given by Lord Wright in the case of Liesbosch Dredger v. S.S. Edison-

“The Law cannot take responsibility for all the consequences of a wrongful act; some acts fall outside the scope of its selection, because it was infinite of the law to judge the causes of causes, or consequences of consequences. In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons.”

It was ultimately held by the jurists that the defendants will be liable only for the consequences which were proximate and not remote consequences of his wrongdoing.

Test of Remoteness

Now that we’re aware of, a defendant is held liable for only the proximate consequences of his wrongdoing. Let us look at how it is decided that what consequences are proximate and which remote-

1. All Direct Consequences Test

An individual is held liable for all his direct consequences, even if one could not foresee them beforehand as all consequences which directly come after the wrongdoing are not remote and come under proximate. Further under this test, if one could foresee the damages, one is held liable for all the direct consequences. 

Re Polemis Case (1921)

This case was a landmark judgement in the test of directness. The court of appeal found the test of reasonable foresight to be relevant whereas later the privy council upheld the test of directness. Facts of this case are- Defendant was employed by the charterers of a ship to unload it. A plank was negligently dropped into a hold which caused sparks with chemicals and petrol they were supposed to be unloading. The sparks, in turn, lead to chemicals and petrol catching fire and burning the entire ship. It was ultimately held that even though they could not have foreseen that the ship would be destroyed by the negligently dropping of a plank they were found to be liable as the fire was a direct consequence.

2. The Foreseeability Test

Today this test is preferred over the directness test. Sir Frederick Pollock also advocated for this test, He opined, in cases Rigby v. Hewitt and Greenland v. Chaplin, that the “liability of the defendant is only for those consequences which could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer.” In this test, an individual is held liable only for the reasonably foreseeable consequences of his wrongdoings. It is to be decided by the court if the consequence was foreseeable beforehand or not.

Wagon Mound Case

For a while, the test of foreseeability lost its popularity to test of directness but it was the case of Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd., also popularly known as the Wagon Mound Case that bought it back in the limelight for jurists. 

Facts– The Wagon Mound was moored at a wharf in Sydney Harbour. Due to the negligence, oil spilt into the water and was mixed with the flotsam and floated around to another wharf where a ship was being repaired by welding. Because of the oil the flotsam caught fire and ignited the wharf. The owner of the wharf claimed damage caused to him. 

The Supreme Court held the appellants liable on the precedent of Re Polemis case, but when the matter reached the Privy Council the judgement of the SC was reversed and Re Polemis case declared an unfit for further rulings. It was held that appellants could not have reasonably foreseen the damage to the respondent’s wharf. Therefore, forty years later the Privy Council rejected the test of directness that was upheld in the Re Polemis case.

CONCLUSION

The doctrine of the remoteness of damage is used to decide the compensation to be given when after a breach or wrongdoing. The wrongdoing may have multiple consequences arising from it which are divided into two categories- proximate and remote. Only the consequences that fall in the proximate are the ones the defendant will be held liable for. They’re divided into these categories by the test of directness and test of foreseeability. Today the test of foreseeability is considered to be more relevant than the test of directness, as an individual should be held liable only for probable consequences of his wrongdoing.

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Contingent Contract

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This article has been written by Shivani Kumari, a student of Lloyd law college, Greater Noida. This article will impress upon a type of contract which is contingent. Contingent contracts are uncertain contracts and depend upon the occurrence and non -occurrence of a certain event.

INTRODUCTION

 A contract is defined under section 2(h) of the Indian contract Act, 1872. A contract is a legally binding promise between the parties to fulfill the terms and conditions in return for some lawful consideration. The basic elements of a contract are proposal, acceptance, intention to create a legal relationship, competency to contract, free consent, and lawful consideration. If a contract does not satisfy these elements, then the contract is said to be void.

 A Contingent contract is derived from the Indian contract Act, 1872 under section 31-36. According to the definition given under section 31 of the Indian Contract Act, a ‘contingent contract is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen’. These contracts are mainly formed for some uncertain event and the enforceability of such contracts directly depends upon happening or not happening of those events. The main element which differs from other contracts is, it is not dependent on consideration rather it is dependent on condition. Whenever a condition is fulfilled, the contract is said to be discharged. The contract made on an impossible event is void.

Main Provisions

  • The performance of a contingent contract depends upon the happening or non- happening of some future events.
  • The event upon which the performance of a contingent contract depends must be collateral to the contract, not a party of consideration of the contract.
  • A contingent contract must have all the essential elements of a valid contract.

Enforcement of a Contingent Contract

The provision for enforcement of a contract is given under section 32-36 of the Indian Contract Act.

Section 32: Enforcement of contracts contingent on an event happening

A contingent contract is made on certain conditions, the moment that condition happens, the contract is enforced. It is the contract to do or not to do anything in an uncertain future event, however it cannot be enforced by law unless that event has happened.

For instance- A makes a contract with B to sell his horse at a specified price. However, a condition was included, if C to whom the horse has been offered, refuses to buy. Here, the contract cannot be enforced unless C refuses to buy the horse.

Section 33: Enforcement of contract contingent on an event not happening

This type of contract relies on not happening at an event. These contracts are unassertive. It is to do or not to do anything if an uncertain future event does not happen, however, this can be enforced only when the happening of this event becomes impossible.

For instance- A and B make a contract and A agrees to pay B a sum of money if a certain ship does not return which means either the ship sunk or lost in the sea/ ocean. The Sinking of the ship makes the contract enforceable by law.

Section 34: Enforceability of contingent contract on the conduct of a living person

Under this section, a contract is contingent to be deemed impossible, if it is the future conduct of a living person. These types of contracts are not time-bound and thus create an exceptional condition for the parties involved. It is enforceable if the act shall be considered as impossible. The main element of this contract is the future conduct of the living person.

For instance- A makes a contract with B and agrees to pay a sum of money to him, if B marries C, meanwhile C gets married to D. the marriage between B and C must be considered impossible until D dies and that C may afterward marry B.

Section 35: contracts contingent on an event happening within the fixed time

 Fixed time is the essence of these types of contingent contracts. A contingent contract is enforceable if an uncertain event happens within a fixed time. Such a contract is void if the event does not happen and the time lapses. It is also void if before the time is fixed, the happening of the event becomes impossible. It is similar to the happening and not happening of the contract but it is time-bound.

For instance- A and B make a contract and A agrees to pay B a sum of money if any certain ship will not return within a year. The contract is enforceable if the ship does not return within the year.

Section 36: Agreements on impossible events are void

A contingent agreement to do or not to do anything for an impossible event happens, are void. the impossibility of the event may be known or not to the parties to the agreement at the time when it is made. In simple words, whenever a contract is made for an impossible event, the agreement becomes void.

For instance- A agrees to pay B a sum of money if B will marry C. C was dead at the time of the agreement. Thus this event is impossible and thus void.

Usage of Contingent Contract

  • Insurance: Every insurance company may be a life insurer, health insurer, or fire insurer, because uncertain events deal with contingent contracts. Insurance is an agreement by which a company undertakes to provide a guarantee of compensation for specified loss or damage in return for the payment of a specified premium.

For instance- In a life insurance contract, the insurer pays a certain amount if the insured dies under certain conditions. The insurer is not called into action until the event of the death of the insured happens. This is a contingent contract.

  • Indemnity: Contract of indemnity is a contract in which one party promises to save the other party from loss caused to him by the Promisor or someone else. These contracts are based on uncertain events.

The case of Chandulal Harjivandas v. Commissioner of Income-tax held that the contract of indemnity and insurance are contingent contracts.

  • Guarantee: A contingent guarantee is a promise to make a future payment as long as certain contractual terms are met. A contingent guarantee is often used when the seller is doing business with a buyer with whom there is an increased risk of default.

All the three above mentioned contracts are the commercial application of contingent contracts.

CONCLUSION

A Contingent contract is a contract based on assurance. These contracts do not involve reciprocal promises. It is a valid contract under the Indian Contract Act, 1872. The parties involved in these contracts have an interest in this. ‘Contingent contracts’ are also called ‘conditional contracts’ in English law. The terms of these contracts are certain and depend on the occurrence or non-occurrence of a future event.      

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Appearance and Non-Appearance of Parties under CPC

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This article is written by Harshit Khandelwal, 2nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the laws regarding the appearance of parties and what are the consequences of non-appearance of parties. 

INTRODUCTION

The fate of any case depends on an important factor i.e., the appearance and non-appearance of parties in a civil suit. Non-appearance of any party in the count on a determined day may result in an adverse decision. The provisions of the CPC (Civil Procedure Code, 1908) states that no proceedings detrimental to the interest of any of the parties to the suit shall be conducted before the court. The parties must appear in front of the court on the due date which has been fixed by the court of law. In the case of the non-appearance of one party to the suit, the judgement may go in favour of the other party appearing in front of the court. 

Rule 1 of Order IX of the Code of Civil Procedure, 1908 states that the parties to the suit need to attend the court either in person or by their pleaders on the due date which has been fixed by the court of law. If on the given due date either plaintiff or the defendant do not appear in the court and neither have the sufficient cause for the non-appearance, the court is empowered to decide under Rule 12 of Order IX as follows –

a) If the defendant does not appear in the court of law on the due date, the court can dismiss the suit.  

b) If the plaintiff does not appear in the court of law on the due date, the court can pass ex-parte order. 

Rules regarding the appearance and non-appearance of parties under Order IX of the CPC – 

  • Rule 2 states the consequences regarding the non-deposition of fees by the plaintiff. 
  • Rule 3&4 states the consequences of non-appearance of both the parties to the suit. 
  • Rule 8, 9, and 9A deals with the consequences of non-appearance of the plaintiff to the court of law. 
  • Rule 6, 13, and 13A deals with the consequences of non-appearance of the defendant to the court of law. 

Appearance of Parties

Appearance means the appearance of the party to the suit before the court of law. This appearance can be by the party in person or through his advocates or any person along with the advocates of the party. The appearance of the parties on the date of the first hearing of the case is mentioned in Rule 1 of Order IX. 

When Neither Party Appears

According to Rule 3 & 4 of Order IX of CPC, 1908 states that when both the parties to the suit does not appear before the court of law on the due date fixed. Rule 3 of Order IX states that in such a case the suit can be dismissed by the court of law and Rule 4 states that plaintiff can file a new suit if he satisfies the court the sufficient reason for his non-appearance in court. 

When Only Plaintiff Appears

An ex-parte order can be passed against the defendant when only the plaintiff appears and the defendant does not appear in the court of law on the due date. The court can proceed for an ex-parte order against the defendant only when services of the summon are proved in the court and then the court may pass a decree in favour of the plaintiff. This provision does not apply for the subsequent hearings but only applies to the first hearing and the same was held in the case of Sangram Singh v. Election Tribunal.

When Only Defendant Appears

The legal consequences of the non-appearance of the plaintiff and appearance of the defendant in the court of law are mentioned in Rule 8 of Order IX of the CPC, 1908. According to this rule, in a case when the defendant appears in the court of law on the due date and the plaintiff remains absent, then the court has the power to pass an order of dismissal of the case unless the defendant admits a claim.

Ex-Parte Decree

Rule 6(1)(a) of the CPC, 1908 states that the court has the power to pass any judgement ex-parte in the case where the defendant does not appear in the court of law on the due date which has been informed to him by the summon duly served on him of the case. An ex-parte decree is voidable at the option of one party which may seek the order of annulment of the decree.

Remedies

The following remedies are available when an ex-parte decree is passed against the defendant – 

1. A suit can be filed on the grounds of fraud.

2. The defendant can apply for a review under Order 47 Rule 1. 

3. The defendant can appeal against that decree under section 96(2) of the code, or prefer revision under section 115 of the code when no appeal lies.  

Setting Aside an Ex-Parte Decree

An application should be made by the defendant for setting aside an ex-parte decree. There are some rules which need to be followed for setting aside an ex-parte decree and when the defendant satisfies the court with sufficient cause, after that only the ex-parte decree which has been passed can be set aside. 

There is a limitation period for setting aside an ex-parte decree and within that period an application should be filed i.e. 30 days.

There are certain grounds on which an ex-parte decree can be set aside-

1. When the summon has not been served.

2. Due to any sufficient cause, the defendant could not appear on the day of the hearing. 

CONCLUSION

The appearance and non-appearance of the parties directly affect the case and helps in letting everyone know whether it will be carried on for the next hearing, dismissed or an ex-parte decree will be given. During the whole procedure, the court must keep in mind that nowhere any miscarriage of justice is done during the dismissal or while passing an ex-parte decree.

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Base Erosion and Profit Shifting (BEPS)

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This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year).

INTRODUCTION

Base erosion and profit shifting, shifts profits in a country were there is less tax or no tax. The taxpayers strive to reduce the tax burden by using various tax planning strategies so the profits are shifted from jurisdictions that are having high taxes to the jurisdictions having low taxes. The burden is on the individual taxpayers that affect the well-being and growth of the economy. New startups face problems while competing with multinational enterprises. The government has to cope with less revenue and higher cost. Economic growth is affected due to the lack of tax revenue and fair competition is harmed in this process. The major reason for base erosion is excessive payments to foreign companies in the form of fees, royalties, and interests.

Establishment 

Base Erosion and Profit Shifting (BEPS) were initiated by the Organization for Economic Cooperation and Development (OECD). It was developed in the year 2012 by G-20. OECD and G20 together developed the BEPS Action Plan, 2013-2015 which sets deadlines to implement an action plan, identifies actions, and the resources needed therein. BEPS deals with addressing the tax challenges of the digital economy. After the development of the action plan, developing countries started focusing on the avoidance of tax. In 2016, the OECD BEPS multinational agreement instrument was signed to stop treaty abuse. More than 85 countries and jurisdictions have signed the multilateral BEPS convention. In March 2019, India and the US signed an agreement to exchange country by country reporting. It involves sharing all the details including profits earned and the tax paid. BEPS tools are responsible for tax losses of about $100 to $240 billion per annum. According to June 2018 research Ireland is the world’s biggest tax havens.

BEPS Action Plan: In July 2013 OECD introduced Base Erosion Action Plan and a final report was initiated in October 2015. There are three fundamental pillars of the 15 action plans that are coherence, substance, and transparency. According to the BEPS  Action Plan 1, India introduced ‘equalization levy’ in the Finance Act, 2016 which provided levy at 6% for any services rendered by a non-resident who does not have a permanent establishment in India and carrying on business in India if such consideration exceeds 1 lakh during the financial year. The action plan has an impact on domestic as well as global laws which comprises of-

1. Digital economy

2. Hybrid mismatch arrangement

3. Designing Effective Controlled Foreign Company Rules

4. Limit before erosion

5. Counter harmful tax practices

6. Country can prevent treaty abuse by Limitation of Benefits (LOB) and by Principle Purpose Test Rule (PPT)

7. Prevent the artificial avoidance of permanent establishment status

8. Transfer pricing for controlled transactions including intangibles

9. Transfer pricing for risk and capital

10. Transfer pricing for other high-risk transactions 

11. Indicator of Base Erosion and Profit Shifting (BEPS)

        i) Increase in Foreign Direct Investment (FDI) 

       ii) Low tax jurisdiction profit is more than that of multinational enterprises.

      iii) Profit is shifted from the high value-creating company to less value-creating company.

      iv) Royalties received by the entity is located in the low tax countries accounted for 3% of total royalty

       v) Increase in the debt were there is the higher statutory tax rate

12. Disclosure of tax planning regime

13. Re-examine transfer pricing report

14. Dispute resolution mechanism 

15. Multilateral instrument agreement 

Case laws

1. CIT V. RD Aggarwal and Company 56 ITR 20 (SC)

RD Aggarwal and Company was having its place of business in Amritsar, Punjab. In March 1951, assesses were appointed as sale agents of woollen yarns for the Italian company to the Indian company. The issue was whether the assessee and the non-residents of taxable territories amounted to business connection. Supreme Court focused on the term ‘business connection’ between the non-resident and the taxable territories. It further stated that the Income-tax Act, 1961 does not define the exact meaning of the term business connection. Business connection means a real and intimate relation carried on by non-resident which are concerned to earn a profit. It was held that sale made through the agent in India is not taxable.

2. ITO V. Right Florists Private Limited (2013) 25 ITR(T) 639 Kolkata

In this case, it was held under section 5(2)(b) of Income Tax Act, 1961 that the income arising in India is chargeable to tax in India. The servers of Google and Yahoo were not located in India so their ‘permanent establishment’ will not be in India. Section 9(1)(i) of the Income Tax Act, 1995 talks about the income accruing or arising, whether directly or indirectly in India will not be applicable in this situation as there is no ‘business connection.’ Google and Yahoo do not come under the purview of section 9(1)(vi) because it is a service rendered by the search engines and there is no requirement of human touch. 

Conclusion

India has actively participated and contributed to the BEPS project. In order to put the impact on any specific business and to reduce the negative effects of BEPS, a micro-level analysis should be taken into consideration. Developing countries with a less developed industrial base have been the participant of the BEPS project. They also face issues related to BEPS. Recently in 2011, OECD began working on transfer pricing simplification and treatment of intangibles. Measures implemented by the business at a group level could be more effective than the ones implemented separately. In this changing scenario, the global economy is undergoing certain alterations so it is very difficult to adopt any specific methodology. In order to avoid harmful tax practices, the government must continue to work together as a unity.

References

*http://www.oecd.org/tax/beps/beps-actions/

*https://www.google.com/search?q=www.oecd.org%2Fctp%2FBEPSACTIONPLAN.pdf&oq=www.oecd.org%2Fctp%2FBEPSACTIONPLAN.pdf&aqs=chrome..69i58j69i57.39856j0j4&sourceid=chrome&ie=UTF-8

*https://indiankanoon.org/doc/98785989/

*https://indiankanoon.org/doc/1705242/

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The Kanooniyat Kuriosity Kuiz Series: 1st National Online Quiz Competition on Constitutional Law and Criminal Law by Kanooniyat: Register by 20th August 2020

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About Kanooniyat

 Kanooniyat is a legal website providing daily legal updates to its user base comprising law students, law aspirants, lawyers and legal professionals, in the form of articles, opportunities and legal news.

 View our Instagram profile – https://www.instagram.com/kanooniyat/ 

Visit our website – https://kanooniyat.com  

About Kanooniyat Kuriosity Kuiz Series

 The Kanooniyat Kuriosity Kuiz Series is the flagship annual series of quizzes conducted by Kanooniyat comprising 10 quizzes with 5 quizzes on Constitutional Law and 5 on Criminal Law each.

 The tentative dates for all the quizzes are as follows –

  1. 1st Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series

1.1  Quiz on Constitutional Law – 22nd August 2020

1.2  Quiz on Criminal Law – 23rd August 2020

  1. 2nd Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series

2.1  Quiz on Constitutional Law – 14th September 2020

2.2  Quiz on Criminal Law – 15th September 2020

  1. 3rd Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series

3.1  Quiz on Constitutional Law – 2nd October 2020

3.2  Quiz on Criminal Law – 3rd October 2020

  1. 4th Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series

4.1  Quiz on Constitutional Law – 25th October 2020

4.2  Quiz on Criminal Law – 26th October 2020

  1. 5th Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series

5.1  Quiz on Constitutional Law – 19th November 2020

5.2  Quiz on Criminal Law – 20th November 2020 

You can Register for either the Constitutional Law Quiz or the Criminal Law Quiz in the 1st Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series to be held on 22nd and 23rd August respectively

OR

You can register for both – Constitutional and Criminal Law quizzes in the 1st Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series (special discount) to be held on 22nd and 23rd August

OR

You can Register for either the Constitutional Law Quizzes or the Criminal Law Quizzes of the entire Kanooniyat Kuriosity Kuiz Series (tentative dates given above)

(Includes 5 quizzes each with special discount)

OR

You can Register for the entire Kanooniyat Kuriosity Kuiz Series (tentative dates given above) (Includes 10 quizzes with bumper discount – 5 from Constitutional Law and 5 from Criminal Law)

 Scroll down for registration & fee details

About the 1st Online Quiz Competition on Constitutional and Criminal Law from the Kanooniyat Kuriosity Kuiz Series (to be held on 22nd and 23rd August respectively)

  •  This quiz competition will contain 2 quizzes – one on constitutional law and one on criminal law which are to be conducted in two consecutive days, i.e. 22nd and 23rd August.
  • A candidate can register for either one OR both of the quizzes. (Special discount for registering in both the quizzes. Scroll down to know the fee details)

 Click here – https://docs.google.com/forms/d/1fvnIjJgQ9PVlEZKijtf28zHqhdkU5Cb_sJGVMDufolk/edit?usp=sharing to Register

 Eligibility

  • This Competition is open for all interested candidates who are pursuing UG/PG courses, are studying in schools or are legal professionals. Participation is not in any way limited to only law students and registrations from students from different streams, UPSC aspirants, Law Entrance Exams Aspirants and Judiciary Aspirants are welcome.

 Mode of Participation

  •   Online via Google Forms.
  • The Link for the quiz would be sent on the WhatsApp Group so formed by the coordinators for the quiz.
  • The registered candidate will be added automatically to the group by the coordinators.

Quiz Format

  1. Constitutional Law Quiz
  • The quiz will comprise of 25 questions divided into 2 sections:

a)  MCQ (15 questions)

b)      Short text- One word or one line (10 questions)

  • Quiz Time: 4:00 PM – 4:20PM (22nd August 2020)
  • The duration of the quiz will be 20 minutes. Any submission after 20 minutes will not be recorded.
  • The quiz will be based on Constitutional law and it also may contain historic events based on this.
  • There will be NO Negative marking for any wrong attempt or un-attempted questions.
  • Each question will carry 1 point.

2.  Criminal Law Quiz

  • The quiz will comprise of 25 questions divided into 2 sections:

a)      MCQ (15 questions)

b)      Short text- One word or one line (10 questions)

  • Quiz Time: 4:00PM – 4:20 PM (23rd August 2020)
  • The duration of the quiz will be 20 minutes. Any submission after 20 minutes will not be recorded.
  • The quiz will be based on Criminal law and its axillary laws. It may also contain historic events based on the subject.
  • There will be NO Negative marking for any wrong attempt or un-attempted questions.
  •  Each question will carry 1 point.

The Kanooniyat Kuriosity Kuiz Guidelines

  1.  The link to the quiz will be provided to all the registered participants on the WhatsApp group formed by the coordinators. Participants are required to have an internet connection to take the quiz.
  2. Any form submitted after the 20 min deadline will not be accepted and no points will be given to any question therewith.
  3. All ties will go through a 2-stage process:

a)      Stage 1: Special “Star Marked (*)” questions are placed at Q5, Q10, Q15, Q20, Q25. In case of any ties, the participant who has attempted more star marked questions will be given preference.

b)  Stage 2: In case of tie even after the Stage 1, the participant who has finished the quiz earlier will be given preference.

 General Rules

  • Both the Quizzes will be conducted on Google Forms as it’s a viable platform that is secure and easy to comprehend for even the first timers.
  • The link of the Google form quiz will be open to all participants who have completed their registration process.
  • Any kind of discrepancy in the registration process may lead to disqualification in the quiz.
  • Participants can take the quiz on their devices like phones, laptops, tablets, etc.
  • The coordinators will NOT be responsible in case of failure of the Internet connection or the device failure during the quiz.

 Important Dates

EventsDates
Last Date of Registration20th  August 2020
Constitutional Law Quiz22nd August 2020
Criminal Law Quiz23rd August 2020
Results27th  August 2020
Circulation of Certificates and Awards31st August 2020

NOTE: Results will be declared on the WhatsApp group so formed, our website – https://kanooniyat.com and Social Media handles.

 Registration Fee:-

  1.  For the 1st Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series to be held on 22nd and 23rd August

a.   For Constitutional Law Quiz (22nd August) – Rs. 90

b.  For Criminal Law Quiz (23rd August) – Rs. 90

c.   For both, Constitutional and Criminal Law Quiz – Rs. 140

  1. For the complete Kanooniyat Kuriosity Kuiz Series

a.   For all Constitutional Law Quizzes (total 5) – Rs. 350

b.  For all Criminal Law Quizzes (total 5) – Rs. 350

c.   For the complete series (total 10 quizzes – 5 Constitutional Law Quizzes and 5 Criminal Law Quizzes) – Rs. 650

 NOTE: On successful registration, an acknowledgment mail be sent to you within 24 hours of the registration.

 Registration Procedure

  1. For registering in the 1st Online Quiz Competition of the Kanooniyat Kuriosity Kuiz Series to be held on 22nd and 23rd August:

Step 1: Complete the payment of registration fee by visiting this link: https://pages.razorpay.com/kanooniyatkuriositykuiz and take a screenshot.

Step 2: Fill the google form by visiting this link: https://forms.gle/qd5gASU7TmJBzzFj6  and upload your screenshot

Step 3: Sit back and relax and we will send an acknowledgment mail to your email Id in 24 hours

  1. For registering for the complete Kanooniyat Kuriosity Kuiz series comprising 5 quizzes on Constitutional Law and 5 quizzes on Criminal Law:

Step 1: Complete the payment of registration fee by visiting this link: https://pages.razorpay.com/serieskanooniyatkuriositykuiz

Step 2: Fill the google form by visiting this link: https://forms.gle/qd5gASU7TmJBzzFj6  and upload your screenshot

Step 3: Sit back and relax and we will send an acknowledgment mail to your email Id in 24 hours

Payment Details

  1. Payment for 1st Online Quiz Competition on Constitutional and Criminal Law from the Kanooniyat Kuriosity Kuiz Series (to be held on 22nd and 23rd August respectively): https://pages.razorpay.com/kanooniyatkuriositykuiz
  1. Payment for the complete Kanooniyat Kuriosity Kuiz Series Comprising of 10 quizzes (5 Constitutional Law Quizzes and 5 Criminal Law Quizzes; tentative dates mentioned above): https://pages.razorpay.com/serieskanooniyatkuriositykuiz

 Awards & Prizes

  • Winner: Cash Prize of Rs 1600 to the winner in both the quizzes – Constitutional and Criminal (Rs. 800 in each quiz) + Online Internship Opportunity by Lawinternships under a recognized Law firm or Advocate + 50% off on Memo Pundit’s Online Memorial Course + Certificate of Merit
  • 1st Runner Up: Cash Prize of Rs 1000 to the winner in both the quizzes – Constitutional and Criminal (Rs. 500 in each quiz) + Online Internship Opportunity by Lawinternships under a recognized Law firm or Advocate + 50% off on Memo Pundit’s Online Memorial Course + Certificate of Merit
  • 2nd Runner Up: Cash Prize of Rs 600 to the winner in both the quizzes – Constitutional and Criminal (Rs. 300 in each quiz) + Online Internship Opportunity by Lawinternships under a recognized Law firm or Advocate + 50% off on Memo Pundit’s Online Memorial Course + Certificate of Merit

NOTE: 15% Off on LiveLaw Subscription Plans + 20% off on Memo Pundit’s Online Memorial Course + Participation Certificates to all the Participants.

Contact us

 For any Query Please contact us at:

 Phone No. 7007873010, 8209992708

Email: kanooniyat@gmail.com

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Important Links

International Organisation: The Legal Framework

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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 Framework of International Organisation, its norms and duties.

General Provisions

International Organisation is an organisation where several states come together and form several binding agreements. Till date, more than 240 formal agreements have been established by intergovernmental organisations. Moreover, a non- governmental organisation is also part of the (IGOs).  International organisations have been developed to serve the world Intellectual property rights along with other general provisions, such a task is a high risk associated and has more complexity. During the French revolution, and European war in an 18-19th century the leaders of the European came up with the provisions of serving the status quo and for preserving their organisations from the sovereign powers. For instance, the International Telegraph Union was set up in 1865 to protect their government from sovereign rebellion.

Conferences were upheld by the Hague Conventions, that involved the stoppage of War in 1951 from Peace of Westphalia. To provide Neutral states various meetings were served out.

Legal Framework

  • In mid- 1985 total eight meetings were organised with the Head of the International state’s government
  • Summit was held by the country chairman, the organisation of the structure comprises of the council of ministers, Foreign Minister for each state which are agreed for the agreement
  • The council of ministers of each state government meets once in a year for the proper mechanism of the work.
  • The International Organisation structure comprises of SARC, SAPTA which was established as a draft committee to uphold the unity of the Trading Agreements
  • For smooth working for the SARC committee, the Integrated program of action was established and it focused into many fields for upliftment in Agriculture, Rural Development, women empowerment, Education, Human trafficking, Telecommunication.
  • The international organisation plays a dual role in both international as well as setting standards for Individual levels.

Principles

  • International Organisation plays a role in various fields like Trade, Commerce, Hierarchy, Administration staff.
  • Established the concept of a Sovereign State in 1648 after the end of protest reformation in the Peace of Westphalia.
  • Two assumptions were laid down by the International Organisation one was the check the interstate aggression by use of Sovereign and other was to establish the Secular reforms in the 16-18th century.
  • HAGUE CONFERENCE THE SOCIAL, ECONOMIC AND POLITICAL SETS WERE LAID DOWN FOR THE INTERSTATE DEVELOPMENT IN ALL SECTORS
  • The emphasis laid down upon the economic and social reformation, the IO has gradually started functioning into voluntary acceptance of the membership to curb the coercion influences.
  • Whereas the International Organisation has been a radical and complex ideological context that has made the world hypothetical also looks into the federation concept of DOCTRINE OF SEPERATION WHERE DIVISION OF POWER WAS MADE TO UNION AND PROVINCIAL GOVERNMENT.
  • The poles of a division of powers were divided into real head and nominal head in European reforms

Challenges in Building IO

  • It took five stages in building the International Organisation
  • First was to establish the memorial of design including structure
  • second thing was to set up conferences and meetings to curb the social and economic evils
  • The third stage was to try with an experimental effect
  • and the last was Developing into premovement IO
  • After the evolution of such stages, the League of Nations was founded by Thomas Jefferson.

Rights and Duties of International Organisation in International Law

  • According to Article 13 Aid is being provided for the wrongful commission of act at international level
  • In the case of Human Right violation, the UNESCO will provide suitable remedies to overcome from such crisis
  • Article 16, mandates that International organisations can seek Suo moto cognizance if it is responsible.
  • To resolve the counter, measure the article 21 emphasis about preserving the rights of their members
  • If the wrongful act has been committed by the organisation will be equally liable for the act.
  • One of the major responsibilities of the International Organisation for developing founding treaties, for instance, the Lisbon Treaty, to explicit the ambiguous and arbitration.
  • Other Right of the International Organisation is to guarantee the legal personality to each state governmental member.
  • Pacta tertiic nec nocent nec prosunt
  • The powers and responsibilities can be divided among states and even the powers can be executed 
  • Following Article 2(c) International Organisation is an independent body it has its sovereign context and balance of inter- aggression among states to interfere at any cost.
  • Duties towards Principles of the provincial government under art. 57ILC, the welfare and the economic activities for state context was raised in the Hague Conference
  • The context of self-defence under the UN Charter was not extremist and it was seen as an attack to the states as well. 

Committee of International Organisation

  • The International Organisation focuses on many objectives, stages. it states about membership which is provided to both individuals as well as collectively, and also provides universal adult franchise that includes voting rights.
  • The International Organisation ensures the parameters, about fair and regular operations of an election, also the constitutional power to its member of the states.
  • It helps in establishing the organizational structure, with evident value
  • It consists of collective membership, ideology, manifestation, geographical cells
  • International Organisation also ensures fair play of provincial states
  • It regulates the working of agencies

Regimes of International Organisation

  • To set a sovereign relation among both internal and external state international organisation has played a vital role
  • World Trade Organisation was set up in 1995 to regulate trade affairs all over the world
  •  League Nations mandates about the provisions of Arbitration, Conciliation and Mediation
  • South Asia stabilizes about the sovereign state, social justice in aspect to UDHR
  • International Organisation aims in developing sustainable economic development
  • It also establishes  the World Bank, at the centre level and helps in monetary financing 
  • International Organisation has regained friendly relations and has established a separation of the wall
  • It helps in promoting peace and eradicate the interrelations aggression between states and its cooperative member

CONCLUSION

The International Organisation is facing future challenges regarding the domestic level of the inter-state sovereign, economic issues and the World Bank has uplifted the political issues related to monetary finances and fiscal deficits. League Nations has also set aims in developing and maintaining good relations with state members in the International Organisation.

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Future of Social Security in India: Social Issues about Pensions, Gratuity Funds

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INTRODUCTION

This article is written by AASHIKA AGGARWAL pursuing BBA-LLB (H) from AMITY UNIVERSITY, GURGAON. 

INTRODUCTION

India has made colossal steps in decrease in the primary decade of the 21st century.  Social security basically involves access to health care and income security, especially in your age groups, like old age groups, for example- people who are unemployed, people who are sick, invalidity ( which means who cannot work), people who have work injury, women who are dealing with maternity, loss or a main income earner. Social security deals with vulnerable groups. It basically means that these household people should meet their minimum basic needs. Social security is related to the welfare state.

Social security means a program that requires the Government to create a fund or system which can be used to make payments to people who are unable to work because of circumstances. The social security paradigm is not a simple goodwill gesture from a Government to the citizen but a RIGHT. 

The first major social security program in Southeast Asia came into operation in India on February, 24, 1952. The program, which was initiated on a limited basis, will cover about 2.5 million factory employees when it comes into operation throughout the main industrial centres.

The government of India has given high priority to a program of social security for its many workers. India is the most popular country in this world with a democratic form of government and rank second among the industrial nations of Asia. The adoption there of a social security program is an important development. The new nation faced and still faces numerous problems. Illiteracy is widespread. The population is increasing at the rate of about 5 million a year.  Initially almost all security schemes and programs were focused on younger generations and issues related to health care and disability. Old age security was considered as a family subject as most people lived there with their children. With rapid increase in population of older persons and fast changing socio-economic scenario, issues concerning old people are now also being included within the social security schemes over the years.

Government of India has also prioritized old age-related issues in its social security and social protection and schemes and programs. Generally, India’s social security schemes cover the following social security schemes:-

  1. Pension
  2. Health insurance and medical benefits
  3. Disability benefits
  4. Maternity benefits to women
  5. Gratuity

 1. Employee State Insurance Act, 1948

This act includes factories and companies with 10 or more than 10 employees. Each and every organisation has to enrol their company and even their workers under this act so that they can get all the medical benefits and protection to all the employees and their families.  This act has a family pension benefit as well in case of any disability with the worker or death of any worker.

2. Health Insurance and Medical Benefit Schemes

India’s national social insurance framework does exclude free clinical consideration for the whole populace. The employees’ state insurance (ESI) act makes a reserve to give clinical care to representatives and their families, just as money benefits during affliction and maternity, and regularly scheduled instalments if there should be an occurrence of death for those working in industrial facilities and foundations with at least 10 workers.

 3. Payment of Gratuity Act, 1972

In this act, 15 days wages are paid if you complete minimum 5 years of service. They calculate service like at the time of resignation, if the salary of a person is RS.100000/- p.m. then 1 lakh is divided by 2 as you get 15 days and then they multiply by 5. Minimum 10 workers are required to get this act enforced. There are even some amendments in this act but they are not officially enforced. 

  4. Maternity Benefit Act, 1961

This act gives 12 weeks wages to the women during the whole maternity period. They even get 12 weeks leave during the maternity period. 

 5. Payment of Bonus Act, 1965

This act gives annual payment of bonus. Ceiling has been revised to RS.7000/- from RS.3000/-. This act has more than 20 persons in the factories. In this act, some of the employees are eligible to earn RS.21000/- but not all the employees are eligible. 

 6. Employee Pension Scheme, 1995

In this act, the pension is guaranteed. In the employee pension scheme, there is both employer plus government contribution. They need more than 20 people establishments.  This act gives pension to the widow/ widower if pensioner is dead. To avail this act, one must be a member of EPFS.

7. UAN (Universal Account Number)

It is a 12 digit unique number which is allotted to each member of EPF. This number gives online access to every EPF member. Basically, any person of EPF can check their money online or withdrawal the money online, so this is the benefit of having UAN. It has allowed the EPF accounts online. The online access EPF account is by Ministry of Labour and Employment. 

 8. LIN (Labour Identification Number)

This is the single and unique identification number for the factories and establishments. This LIN is applicable under all the labour laws. This number is going to replace all the different licenses under the Ministry of Labour and Employment.

  •  Organised Sector under Social Security
  1. Government sector is an organised sector and the MNC’s which are working in India, which are being established.
  2. Establishments covered under Factories Act, 1948. 
  3. Organised sector have all the social benefits and they are covered under all schemes. 
  4. They have shops and establishments act of State Government.
  •  Unorganized Sector under Social Security
  1. No legal coverage. 
  2. No social security coverage.
  3. Casual nature of work.
  4. Unorganised sector have low wages.
  5. Unorganised sector workers include Agro labourers, marginal farmers, animal husbandry, street vendors, hawkers, cobblers, construction workers, vegetable vendors, etc.

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