Mitesh J. Shah & Association (Practicing Company Secretaries ) is looking forward to hire articled trainee.
Vacancy- Two Article trainee
Address- Their office situated at Malad-West ,Mumbai.
What are you waiting for.!!!
Interested candidates can post their CV at mitesh@mjshah.com .
Niti Manthan is opening both technical and research Internship applications starting from Septemberâ2020 under various fields.
Time Period: One month (Can be extended depending on the field of internship)
Mode of Work: Work from Home-Virtual Internship
Last Date of Application: 22nd September 2020
The departments open for Internship currently are as follows:
Kamakhya: Niti Manthan Menstrual Health Project:Â The project would both be a collaborative awareness effort to create a real difference. The focus would be on preparing menstrual health awareness modules and percolating awareness amongst school students and kids in the semi-urban spaces. The project would also aim at empowering the women community in vulnerable sections of society by aiding them to establish a manufacturing chain of cloth-based sanitary napkins.
Eligibility Criteria: An enrolled student of any field of study who is interested in working at the ground level
Perks: Internship Certificate
Interns Required:Â 5
Selection Criteria: First shortlisting on the basis of your CVs followed by an interview round
2. Centre for Medical and Health Law Ethic Studies: This Niti Manthan research centre is a unique effort to collaborate the complexities of legal rulings and medical issues. The aim is for young upcoming professionals to have open conversations towards an effective policy making in the healthcare sector. For the centreâs first project, a doctrinal research shall be conducted to understand the âConflicting Rights and Responsibilities of the Physician-Patient Relationship w.r.t the Medical Protection Act (MPA)â.
Eligibility Criteria:Â A regular student of Law, Medicine or Psychology is eligible to apply. The learning affinity and a spirit for constructive research is a sine-qua-non.
Perks: Internship Certificate, Publication
Interns Required:Â 5
Selection Criteria: Submit your CV along with a Statement of Purpose (Max. 200 words submitted in the same document as the CV). In case the number of applicants is high, a second shortlisting could be conducted on basis of an interview round.
3. Legal Content Writing:Â Become a legal content writer for the Niti Manthan website. The selected interns shall be required to submit 8 articles in a period of 1 month. For 4 of those, topics shall be given to them by their content heads and the rest can be of their own choice. Even if you donât get selected for internships of this month, you shall be added to the concerned group to apply in future for the same internship.
Eligibility Criteria:Â A regular student pursuing either 3 or 5-year law from any University.
Perks: Internship/Publication Certificate, Certificate of excellence for the best writer in that tenure
Interns required: 15
Application Process: Submit an original article/research paper written by you either published/unpublished [The same should be submitted in the column where “CV” is required. Note: only the paper/article needs to be submitted. ]
4. Digital Content Creator:Â Become a part of the Niti Manthan Content Creator team by carrying on weekly assignments. Creating content on the allotted themes/ topics for the Niti Manthan social media handles would be the broad tasks. These could vary from generating posters, research and other edited pieces for events, special occasions and trending legal news.
Eligibility Criteria: Students with basic skills in Photo editing and research
Perks: Internship Certificate, Moral rights over the original content generated during the period of internship, Free access to all the webinars of Niti Manthan
Interns required: 10
Application Process:Â Submit your CV along with a sample poster (URL of the open drive link of the work could be attached) (in the same document) on the theme âLegal Literacyâ.
5. Video Editors:Â Broad tasks for this internship shall be; generate digital content including news feeds, short videos, graphics and edit/upload videos of lecture series, e-classes, webinars and interviews by Niti Manthan. The work shall be given on an assignment basis whenever needed and not on a daily basis.
Eligibility: Students adept in graphic designing, video editing and content management. They must be well versed with iMovie, Premiere pro, Vega pro or any other video editing software.
Perks:Â Internship Certificate, Moral rights over the original content generated during the period of internship, Free access to all the webinars of Niti Manthan
Interns required:Â 3
Application process:Â Along with your CV, in the same document attach a URL link of your sample production Viz. Digital poster, video clip, graphic design, etc.
6. Frontend Developer/coder:Â In this domain, the intern would be required to create modern, aesthetic and Responsive UI and pages which will be integrated with the Niti Manthan Website.
Eligibility:Â Student/professional who is comfortable working with normal front end tech stack i.e. JS, CSS, HTML. Basic knowledge of Django would be appreciated.
Perks:Â There would a stipend based on performance and according to market standards. In addition, certificate and LOR would be provided. Learning from the industry experts would be an additional perk.
Interns required:Â 2
Application process:Â Along with your CV, in the same document attach a URL link of your sample work.
CONTACT: (WHATSAPP ONLY)
Architi Batra: +91 9643720882
Madhav Gawri: +91 8700568976
Nidhi Pathak: +91 9599583729 (For video editors and digital content)
Or write to us at nitimanthan@gmail.com
For more information https://nitimanthan.in/blog-posts/blog-niti-manthan/2020/08/22/niti-manthan-internships/
INTRODUCTION
India does not recognize same-sex marriage or civil unions. In fact, it does not possess a unified marriage law. Every Indian citizen has the right to choose which law will apply to them based on their community or religion. Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue.
The PIL, filed on September 8, 2020 in Delhi High Court, by four members of the LGBTI (lesbian, gay, bisexual, transgender, intersex) :-
PIL filed through Raghav Awasthi and Mukesh Sharma, petition pointed out that the Supreme Court read down Section 377 of the Indian Penal Code in 2018 and decriminalized consensual homosexual acts in the country.
The petition said that Gopi Shankar M âwishes to marry someone from the LGBT community as per his own choice in India.â Denying the LGBT community the option to marry âis absolute discriminatory and creates them a second class of citizens (sic)â, it added. It then asserted that the Hindu Marriage act âdoes not distinguish between homosexual and heterosexual marriageâ. This is because Section 5 of the Act lays down the conditions for a Hindu marriage and begins with the words, âa marriage may be solemnized between any two Hindusâ. The petition submitted that despite there being no statutory bar under the 1995 Act against gay marriage, it is not being registered throughout the country. âAs a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to themâ it stated.Â
 The petition also pointed out that the right to marry is a part of the right to life under Article 21 of the Constitution. âThe non-recognition of the rights of LGBT couples who wish to get married is a violation of the Right to Equality guaranteed to all persons within the territory of India under Article 14 of the Constitution,â it contended.
Tushar Mehta, the Solicitor General of India, one of central governmentâs top lawyers, seeks to challenge the petitioners.
Mr. Mehta argued that marriage is a sacrament, adding that there are other provisions of law that do refer to a âhusband and wifeâ. He cited the Section 498A of the Indian Penal Code, which talks about âhusband or relative of husband of a woman subjecting her to crueltyâ. Mr. Mehta submitted that the âculture of any country is codified in a statutory law like degrees of prohibited relationship, special or additional rights to wife, different age limits for husband and wife, use of
the terms husband and wife â which cannot be be determined in the same sex marriage.â He said the relief sought by the petitioners cannot be granted unless several laws are altered. This, he said, is something the courts cannot do. Mehta added that he will file a note in the court on these provisions.
âSame sex marriages are neither a part of âour cultureâ nor a part of the law, Tushar Mehta told the Delhi High Court Monday (14 September 2020), opposing a petition demanding marriage rights for the gay community under the Hindu Marriage Act 1955.
The submission was made during a hearing before a bench comprising Delhi High Court, Chief Justice D.N. Patel and Justice Prateek Jalan.
After the submission of Tushar Mehta, bench has asked the petitioners to file affidavits from the members of the community who are aggrieved by the refusal of authorities to register same sex marriage.
The petition will next be heard in October.
REPORT BY-
AKANKSHA RAJPUT
INTRODUCTION
A sense of commotion raised when Prime Minister Narendra Modi announced a countrywide lockdown in March. But this was more problematic for the worker classes who not only lost their only source of income but also their shelter. This caused a state of desperation and they started for their hometowns on foot or whatever vehicle they could manage. They were evicted from their homes which forced them to take such a step.
With no source of income, and the sources of income drying up, the labourers walked for days and days, hungry, tired and ailing. This was a terrifying scene to behold and this costed many workers their lives. Many workers died even before reaching their home.
This led to a lot of criticism and protests from the opposition. The Centre asked the states to seal borders. After weeks and weeks of migrants on roads, the Centre started running special trains for the labourers, but even this did not prove to be helpful to the labourers, confusion over who was to pay for the tickets and the mismanagement of lists, many labourers continued to find their way home on foot, three-wheelers and illegal trucks, sometimes leading to accidents.
Ignorance by the Government
However, when on Monday, the Central Government was asked about the data on the number of deaths in Lok Sabha, it said that it does not have any data.
Three MPs, K. Navaskani, Suresh Narayan Dhanorkar and Adoor Prakash asked the Government that whether it has data of migrant workers who returned to their own own states and whether itâs aware that a number of migrant workers lost lives during their return to the hometown and if so, the details same, State-wise. They even asked whether the Government has provided any compensation/economic assistance to the victimâs family and whether it has done any assessment of the job loss among migrant workers due to the COVID-19 crisis and if so, the details thereof. To this, Union Ministry of Labour and Employment replied âNo such data is maintainedâ. Since no such data has been maintained, the Government has not provided any compensation/economic assistance to the bereaved family. But, this response proves to be in contrast to the data provided by the Railway Protection Force. According to this report, almost 80 migrants died on the Sharmik Special trains, between May 9 and May 27. This ignorance of the Government not only would face criticism but would also cost lives of those unprivileged worker class.
REPORT BY-
ABHILASHA KUMARI
23rd October, 1992
AIR 1993 SC 341, 1993 Cri LJ 183, 1993 Supp (2) SCC 740
Raghubar Dayal, Raghubar Subbarao and K. Mudholkar, J.R.
Arms Act 1959 â Section 25; Code of Criminal Procedure, 1973 (CrPC) â Section 313; Terrorist and Disruptive Activities Act, 1987 (repealed) â Section 5
In favor of Accused
In the 1980s, the Country was riddled with many instances of disruptive activities and serious law and order situations. In the state of Punjab, it was noted that terrorists had been indulging in wanton killings and arson and had expanded their activities to many other states including Delhi, Haryana, Uttar Pradesh, and Rajasthan. Many innocent lives had been lost and explosions had led to the destruction of public property. Fear was created in the minds of the public and communal peace and harmony were disrupted. To deal with the situation at hand, the Central Government enacted the Terrorist Affected Areas (Special Courts) Act, 1984, and the Terrorist and Disruptive Activities (Prevention) Act, 1985. The objects and reasons of the Act stated that the new and overt phase of terrorism which requires to be taken serious note of and must be dealt with effectively and expeditiously.
The T.A.D.A, 1985 was meant to last only for two years. On the expiry of the said period, the Centre enacted legislation, Terrorist and Disruptive Activities (Prevention) Act, 1987. Most of the provisions of the Act were similar to its predecessor. The validity of the Act was in the first two years and thereafter extended to four, later six, and finally eight years. It thus remained valid till 1995. The above Acts in a gist laid down the following controversial provisions that were challenged in the case by the petitioners;
1. The Central Government could declare any area as a âterrorist affected areaâ and make it a single judicial zone. Activities in the area falling under the TADA would be tried by a Special Court under this Act.
2. Sections 3 and 4 of TADA, 1987 prescribed and applied to acts that already constitute offenses under ordinary laws. There was no understanding as to which law would be applied when.
3. Under Section 11 of the TADA, the concurrence of the Chief Justice is sought for the transfer of cases if the atmosphere is not conducive for the trial in that State. In doing so, the accused was not given a chance or hearing to conduct his case.
The Petitioners in the present case challenged the constitutional validity of the below mentioned Acts on the grounds that; a) the Legislature was not competent to make them and b) they violate the rights mentioned in part III of the Indian Constitution. An analysis of the Court decision based on the issues presented ahead.
In giving its decision, the Court emphasized that the legislation must be seen in the light of the context in which it is made. It was noted that terrorism is a worldwide phenomenon and India is not an exception.[1] In the words of the Court, âin recent times the country has fallen in the firm grip of spiraling terroristsâ violence and is caught between the deadly pangs of disruptive activities. In such a situations measure must be taken to solve the issue.â
From a legal perspective, the debate ends with the Supreme Court decision in Kartar Singh v. State of Punjab[2] where it upheld the validity of anti-terrorist laws describing them as the need of the State. Such laws were held to be the need of the hour in light of the social situation prevalent in the country and thus held valid by a five-judge bench headed by J. Pandian in the case.
One of the major fallacies in this judgment is then the Courtâs assumption that the legislative intent and social context of the Act must be taken into consideration at all times irrespective of its violation of any rights in part III of the Constitution.
The judgment was given by the Court in Kartar Singh then is erroneous. In the name of the security of the State, legislation cannot compromise the rights of the individuals. All along with the case, the Court has stressed that the situation in the country demands the need for strict measures and even if they violate the rights in part III, they are justified. We must not forget that we are a democracy, in fact, the worldâs largest democracy.
When a government is made for the people and by the people, it must protect the rights of everyone and not just a majority. The judiciary in our country has never been rights-oriented. It has always sought to protect the interests of the State vis-a-vis the individuals.[1] This was more recently seen in the case of PUCL v. Union of India[2]where the Court upheld the validity of the Prevention of Terrorism Act (POTA).
[1] https://www.scribd.com/document/374627144/Indian-Penal-Code-Case-Analysis
[2] Peopleâs Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.
[3]Â Kartar Singh v. The State of Punjab, 1994 SCC (3) 569. para 22.
[4] 1994 SCC (3) 569.
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810
Honâble Justice Koshal, A.D. Koshal; A.D. Singh, Jaswant, Kailasam, P.S.
15 September, 1978
1979 AIR 185
Section 375 and 376 of Indian Penal Code
This case is basically the Mathura Rape Case in which the three courts gave different judgements and finally justice was delivered in a landmark controversy. In this case, a young girl named Mathura used to live with her brother Gama. Their parents had died during their childhood because of some accident which shook the life of the entire family all around. Since they had no one who could earn at their family, Mathura used to work as a house maid at the house of Nunshi. One day, Mathura met Nunshiâs sisterâs son Ashok. Mathura and Ashok started developing feelings for each other. Their bond of feelings was there for quite a lot of days. Mathura and Ashok had sexual intercourse with each other and after that they decided to get married to each other. The things were going quite normal for quite a long. On 26th March, 1972 Gama lodged a Police Complaint because his sister Mathura was missing for quite a lot of days. He told police that he suspected Nunshi, her husband Laxman and Ashok for the kidnapping. All the statements given by Gama were recorded by The Head Constable of Police Baburao, who was the 1st Appellant at around 10:30pm. After few moments, Mathura and Ashok came to the police station. The police constable also took the statements of Ashok and Mathura also with full details regarding the tragedy that happened. After all the investigation, the constable had asked Gama to bring any entry which contained the birth date of Mathura for some police record reasons. As soon as Gama went to complete some formalities, Baburao had asked Mathura to stay at the Police Station. She was not allowed to go before all the formalities were completed. As everyone left the police station i.e. all the officers and the rest of the staff, Baburao had closed the door and switched off the lights of the police station. He took Mathura to the washroom and then he raped her. After Baburao, there was another person (Appellant 2) who stroked at her private parts and tried to rape her but he could not do it because he was highly intoxicated due to Alcohol. Nunshi, Ashok and Gama were waiting for Mathura to come out after completing all the process which was left. As Mathura came out of the police station, she revealed all the story which happened with her inside to all three of them. After that they immediately tried to file a complaint at the police station. She was examined by Dr. Kamal Sashtrakar on 27th March. Doctor said that there were no signs of rape and injury at her private parts. The doctor did not even find any sort of semen or pubic hair. But there was some semen found on her clothes.
This case is based on Mathura Rape Case and it comes under Section 375 and 376 of IPC
The Judgement in this case was totally divided into three different parts based on the opinion of various courts.
If we look into the judgement given by the Session Court, the Judges said that both the appellant were not liable of the rape offence. The judges said that Mathura had given consent for sexual intercourse and thus she was making false stories to Ashok, Gama and Nunshi. Mathura was habituated to sexual intercourse. It was also said that Mathura was a shocking liar who was filled with falsehood and fake story. If there would have been rape, the doctors would have got some evidence of it. In the end the judges said that Mathura did not made any sound because of the fact that she was afraid of Gama, Ashok and Nunshi.
If we look into the judgement of the High Court, the judges had reversed the order of the Sessions Court and said that this was not at all a case of consensual intercourse but it was a case of rape which was committed by both the appellants. A critical distinction was made by the judges between consent and passive submission. The judges also stated one fact that both the accused were strangers and it was obvious that they were not there in order to satisfy her sexual desire. It had been also observed that her statements immediately after the incident to her relatives and crowd clearly states that she was subjected to âforcible sexual intercourseâ. The Court further held that the âabsence of semen on the vaginal smears and pubic hairâ was because of the fact that she was examined 20 hours after the incident and it is presumably for her to have taken a shower in the meantime.
Now, if we look into the judgement delivered by none other than Supreme Court, it was a very comprehensive judgement delivered by them. Their judgement was the same which was delivered by the Sessions Court. The Supreme Court had clearly held that this was a case of consensual sexual intercourse and not at all a case of rape. There was no such evidence of battle found at her private parts and she did not raise any sort of alarm because of which it is clear that Mathura had completely made a false story and tried to deceive all three of them on false grounds and nothing else. It has been also observed that Mathuraâs mistake to point out the exact appellant who had raped her further worked against her because the Court stated that if she could go against her initial testimony by changing the accused from Tukaram to Ganpat, it was possible that she had lied about everything else too.
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This article is written by Yash Dodani, a student of NALSAR University, Hyderabad .
The law has impact on every aspect of the society and essentially in every issue which comes in a society. It shapes itself as and when the issue comes up in the picture of the society. We are going now through one such issue which has disrupted the daily economic, legal, social working of the people. The COVID 19 whose first case was reported in the month of December 2019 in China, has now spread in almost all parts of the world. It has come up with lots of deaths, fear amongst the people, so much so that the people are not able to do their daily activities and are sitting in homes. But it makes certain things either delayed or impossible if the time is of essence. It is when the Law of Contracts and the COVID-19 crisis intersect and it is to be determined whether a situation like COVID-19 is a Force Majure and thus discharge the parties form their obligation or suspends their obligation until the situation is in control? This has become important so as to dodge the breach of contracts.
The contractual obligations of the parties can be discharged in two ways in lights of novel Coronavirus [COVID-19]. Now-a-days, the parties make a provision [clause] in their respective contracts namely âForce Majeure Clauseâ. In general terms, it is known as âAct of Godâ. But the term Force Majeure not only covers Act of God but also covers some supervening situations like Strikes, Epidemic etc. The term âforce Majeureâ has been defined by the Supreme Court of India in the case of Dhanrajmal Gobindram v Shamji Kalidas and Co[1]. The Court said thus:
âThe expression “force majeure” is not a mere French version of the Latin expression “vis major”. It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in “force majeure”. Judges have agreed that strikes, breakdown of machinery, which, though normally not included in “vis major” are included in “force majeure”. An analysis of rulings on the subject into which it is not necessary in this case to go, shows that where reference is made to “force majeure”, the intention is to save the performing party from the consequences of anything over which he has no control.[2]â
We can see the force majeure clause in different forms in the Contracts drafted. Some contracts contain a broad meaning of the term âforce majeureâ which says the term âbeyond reasonable control of the partiesâ like Act of God, war, labor dispute, strikes etc. Whereas in some other agreement, a long list of events is given, occurrence of one of such events will attract the force majeure clause.
The courts had in early times, provided a very narrow interpretation to the term âForce Majeureâ. [3] This can also be seen in the case of Md Sirajuddin v State of Orissa[4] where the court said thus:
âTherefore the words “any other happening” must be given Ejusdem generis construction so as to engulf within its fold only such happenings and eventualities which are of the nature and type illustrated above in the same clause with close attention to the nature and terms of the lease, and would not reasonably be within the power and control of the lessee.â
It means that if a general term follows a specific term, that general term will be seen in the context of that specific terms used in the contract which are beyond the control of parties. Thus, the COVID-19 outbreak would be interpreted on case to case basis.
The COVID-19 outbreak can be considered as an event which might trigger the force majeure clause. The next thing to do is to invoke the clause which was explained by the Supreme Court in the case of Satyabrata Ghose v Mugneeram Bangur and Company[5] where the Supreme Court said the following lines;
âAccording to the Indian Contract Act, a promise may be express or implied (vide Section 9.). In cases, therefore, where the Court gathers as a matter of construction that the contract itself contained impliedly or expressly a term, according to which it would stand discharged on the happening of certain circumstances the dissolution of the contract would take place under the terms of the contract itself and such cases would be outside the purview of Section 56 altogether. Although in English law these cases are treated as cases of frustration in India they would be dealt with under, Section 32 of the Indian Contract Act which deals with contingent contracts or similar other provisions contained in the Act.â (emphasis supplied)
The Supreme Court in the same case further said that:
âIt must be pointed out here that if the parties do contemplate the possibility of an intervening circumstance which might affect the performance of the contract, but expressly stipulate that the contract would stand despite such circumstance, there can be no case of frustration because the basis of the contract being to demand performance despite the happening of a particular event, it cannot disappear when that event happens.â
If the force majeure event occurs, the parties have an obligation to work in the same manner as specified in the contract. The manner may include but is not limited to a reasonable notice, alternative way to perform the contract and any other way which may be agreed by the parties. However if the contract has already a force majeure clause, that clause will be dealt under section 32 of the Indian Contract Act[6][see Satyabrata Ghose v Mugeeniram Bangur and Company] but if there is no such clause, the party who is alleging that the contract has been frustrated because of the force majeure event, they have to justify the same. However, there is no existed list of the events which can come under the preview of the force majeure events. It has and will be decided by the Indian Courts on case to case basis.
Having discussed the meaning of the force majeure and the enforceability of the same, it is the time to discuss what other ways which are available to the parties if there is no express provision of a Force Majeure event. The contracts which are not made on company level basis have very general terms and are not often focused on the specific terms like that of force majeure. In that case it is important to discuss the alternate remedies which the parties have.
A perusal of the Act provides a legal principle in such situations, which is postulated in Section 56 of the Act evincing the doctrine of frustration.[7] The contract which the parties have entered into can be classified into two broad categories where the parties can file a plea of frustration. First is when the contract is impossible from the beginning when the parties have entered into an agreement. The second situation is where the agreement can not be performed due to some event which took place after the drafting of the contract. This is called âsubsequent impossibilityâ where the event can be anything which can stop the parties from performing the contract where that event canât be controlled by the parties who are responsible to perform such act.
The Supreme Court has very beautifully analyzed Section 56 of the Indian Contracts Act, 1872 in the following lines in the case of Satyabrata Ghose v Mugneeram Bangur and Co[8]
âThe first paragraph of the section lays down the law in the same way as in England. It speaks of something which is impossible inherently or by its very nature, and no one can obviously be directed to perform such an act. The second paragraph enunciates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general, and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word “impossible” has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and unless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act which he promised to do.â
Now in order to analyze that the COVID-19 outbreak will be in the ambit of Section 56, we need to first understand the essentials of the Doctrine of Frustration. The remedy which is generally filed is the remedy of ‘Restitution’.
In order to succeed in a plea under Section 56 of the Act, the underlying event causing the impossibility or illegality should be an intervening event or change in circumstance which is so fundamental as to be regarded by law striking at the root of the agreement and beyond what was considered by the parties when they entered into the agreement.[9] The party needs to prove that the change in situation is such that there canât be any option but to cancel the contract under the plea of frustration. If that very event doesnât hit the fundamentals of those contracts, the plea of frustration will not succeed.
Letâs now take the current COVID case. Currently the governments of various countries have announced a nation-wide lockdown. The contracts of construction where time is of essence will be hit by the doctrine of frustration. The contracts of manufacturing will also be hit by the frustration because of the lockdown [a fundamental change], the manufacturing of units of products will not be possible because of absence of labors. But at the same time, a work which can be easily done from home, that contract will not be hit by the Doctrine of Frustration for the very simple reason that this change will not be a fundamental change in situation and can be performed. Similarly, the supply contracts may also be hit by frustration because of the lockdown and the non-availability of the transport.
The events which are unforeseeable by the parties can also come under the frustration. If the parties, at the creation of the contract, have contemplated the happening of the event, or could have foreseen the event [as a reasonable person would do], the doctrine of frustration canât be allowed. Also, events such as an abnormal rise or fall in prices or a sudden depreciation of currency, do not by themselves affect the bargain made by the parties.[10] It is because the parties are expected that they have contemplated on it and these are those risks which are assumed by the parties that they need to take those risks.
When there is more than one way to perform that contract and that alternate way can be used in the case when some unforeseen event occurs, the plea of frustration canât be allowed. If in the COVID condition, any contract can be performed by any alternate way, the contract will not be set aside just because any unforeseen event has occurred. This essential was explained by the Supreme Court of India in the recent case of Energy Watchdog and Ors. v. Central Electricity Regulatory Commission & Ors.[11] Where the court has used an English decision to very beautifully explain the essential in the following lines-
â37. It has also been held that applying the doctrine of frustration must always be within narrow limits. In an instructive English judgment namely, Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH 1961 (2) All ER 179, despite the closure of the Suez canal, and despite the fact that the customary route for shipping the goods was only through the Suez canal, it was held that the contract of sale of groundnuts in that case was not frustrated, even though it would have to be performed by an alternative mode of performance which was much more expensive, namely, that the ship would now have to go around the Cape of Good Hope, which is three times the distance from Hamburg to Port Sudan. The freight for such journey was also double. Despite this, the House of Lords held that even though the contract had become more onerous to perform, it was not fundamentally altered. Where performance is otherwise possible, it is clear that a mere rise in freight price would not allow one of the parties to say that the contract was discharged by impossibility of performance.â
When the performance becomes impossible due to the act of the party itself, in that case frustration canât be allowed and the defaulting party may be directed to pay the damages to the other party. In a very earlier case under the line of frustration, it was said as under:
âthe essence of “frustration” is that it should not be due to the act or election of the party and it should be without any default of either party and if it was a party’s own default which frustrated the adventure, he could not rely on his own default to excuse him from liability under the contractâ.[12]
So when the contract canât be performed due to the self-induced event, the plea of frustration will be rejected.
To recap, the parties in the current COVID condition needs to prove that there has been a fundamental change in the condition, but for that change the contract would have been performed, they also need to prove that the contract canât be performed by any alternative way. If the court by any chance, found that the contract can be performed by any way, let it a more expensive way, they will ask the party to perform the contracts. The court has said in many cases that if the contract can be performed by any chance, they will direct the parties to perform the contract. The court also need to be satisfied that the contract was nor self-induced.
This is now important to understand the difference between frustration and Force Majeure. The Force Majeure event does not directly place the contract under the preview of section 56. When the parties have a force majeure clause in the contract, it canât come under the ambit of section 56 but under section 32 in Indian law. The rationale behind this position is that, the parties should not be absolved from performing their obligations in entirety on the happening of an event that was contemplated by them in the contract, and the recourse to be adopted by them on the happening of such event has been expressly stipulated therein.[13] To explain this lets take a case where the force majeure clause says that in the happening of that event, the parties will be suspended from performance and not termination, the parties canât now take the plea of frustration because it will render the contract void and that was not the very intention of the parties when the contract was made.
If a force majeure event occurs and the party is filing a plea of frustration, they need to be care full that if the party is doing so, the contract will be void altogether when such a plea will be accepted. But when a party is taking the defense of force majeure event, there is an option with him or the courts can also direct that the performance can be done once the event is done.
When the parties enter into some very long-term supply or constructions, it requires the parties to have performance security. One such security is bank security. If the performance has not been done by either of the party, the other party can ask the bank who has guaranteed on the behalf of the defaulting party. The Bank HAS to give the money and then the bank may collect that money from the party who has guaranteed. In the case of COVID, many contracts are being canceled, and if the Bank is asked to pay that amounts, that will be highly unjust. As said the bank HAS to pay, but it can lift from paying under two cases. Firstly, if the guarantee has been taken by fraud, and secondly when there are some special circumstances. In the COVID situation, there is very less liquidity in the market as all the businesses are closed due to lockdown. If the banks are asked to pay in these special cases, it will be highly just and the banks will fall down. Therefore, the banks should not be directed to pay in these cases. Â
To sum up, COVID 19 has made the world stop at the place where it is. When the contracts have a force majeure clause, the Courts will deal it under section 32 of the Act and when there is no force majeure clause, the parties can file a plea of frustration which will render the contract void. However, the COVID has stopped the working of the whole commercial world and there is a huge uncertainty until when it will go like this and itâs affecting the working of a large number of Contracts which could go good if these conditions would not have arrived.
[1]AIR 1961 SC 1285.
[2] Id.
[3] Energy Watchdog and Ors. v. Central Electricity Regulatory Commission & Ors. [(2017) 14 SCC 80].
[4] AIR 1969 Ori 152. Also see TGV Projects & Investments Pvt. Ltd. v. National Highways Authority of India [2019 (173) DRJ 717].
[5] AIR 1954 SC 44.
[6] The Indian Contract Act, 1872 [Act 9 of 1872].
[7] Halsbury’s Laws of England, Vol. 7, page 213.
[8] Supra n, 5.
[9] Energy Watchdog and Ors. v. Central Electricity Regulatory Commission & Ors. [(2017) 14 SCC 80].
[10] Alopi Parshad and Sons v. Union of India [AIR 1960 SC 588].
[11] (2017) 14 SCC 80.
[12] Maritime National Fish Ltd. v. Ocean Trawlers Ltd. [AIR 1935 PC 128 (A)].
[13] NTPC Limited v. Voith Hydro Joint Venture [2019 (176) DRJ 241] and Bharat Heavy Electricals Limited v. G+H Schallschutz GMBH, decided on July 9, 2018 by the High Court of Delhi.
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The article is written by Khan Mahe, a student of Rizvi Law College. Picture credits to Rappler
The term narcotic initially known as any scientifically compound with sleep-prompts properties, with semi-synthetic substitutes and also euphoric properties .In Layman language ,a narcotic substances is an addictive drug that decreases pain, produces sleep and change personality or behavior of the person who consumes it , which leads in changes of person’s mental or physical health. On the other hand it can have impact on the way persons brain projects ,and  also ability to understand your senses.
The effects of such  drugs varies from person to person depending on the persons trait and how it has being taken and the  depends upon environment a person is in when using the drug ,however  it often leads to people becoming more depressed, angry, aggressive, sleepy, unmotivated, paranoid, anxious or loquative. Its use can also have impact on social and emotional problems and negative effects on relationships with family and friends.
It’s consumption often leads to the rise in the crime rates of the country, In this modern  time, drug abuse and addiction are among the largest and most strenuous problem facing society today, An estimated 208 million people internationally consume illegal drugs and Drug use which is  responsible for 11.8 million deaths each year, however  Consumption of which has been declared illegal by many countries however Drug prohibition law is being adopted by many countries in the world .
The essentials laws of India relating to the drug consumption are the Narcotic Drugs and Psychotropic Substances Act (1985) and the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act (1988)
History :
The constant use of drugs in many forms were prevalent in India long before any other country of the modern world. Earlier, society was self-adjusting and did not need precise law for effective narcotic drugs. However itâs  consumption was fetch out openly, which was later got  legitimized by cultural groups ,not restricted by traditional demand. With International intervention and various internal pressure by treaties indigenous controls have been displaced by a single model, developed primarily for the West.
In the Indian context, the imposition of this model has resulted in the replacement of culturally sanctioned use by secular use and of traditional suppliers by criminal networks. Furthermore, adherence to the United Nations Drug Control Conventions ensures that most nation states adopt a similar prohibition-oriented approach when formulating their national drug control legislation. Thus  The Narcotic Drugs and Psychotropic Substances Bill, 1985 was introduced in the Lok Sabha on 23 August 1985.Later on, It came into force as The Narcotic Drugs And Psychotropic Substances Act, 1985 (NDPS ACT) , As on The Narcotics Control Bureau (NCB) was established and become the chief law enforcement and intelligence agency of India responsible for fighting drug trafficking and the abuse of illegal substances in India. The rules and law made by NCB would be applicable to all states and union territories.
As per the Bare act âThe Narcotic Drugs and Psychotropic Substances Act, 1985 is an Act of the Parliament of India which prohibits the person for manufacturing ,cultivation ,possession, production, sale, purchasing, transport, storage, and or consumption of any narcotic drug or psychotropic substance.
The Act was passed to bring Indiaâs narcotics control law as per with international standards and to reach the goals of international treaties,moreover the main agenda of the act is to have a control on manufacture, possession, sale and transport of such narcotic and psychotropic substances The act however bans around 200 psychotropic substances resultant upon these drugs are not available over the counter for any walk in individual over a prescription.
Under the or provision of NDPS Act, Various specialized courts was established to deal with offenses relating to any narcotics,further the act empowers the government to set up as many Special Courts as it deems fit for the expeditious resolution of disdisputThe Special Court consists of a single judge who is appointed with the concurrence of the Chief Justice of the High Court and who must be a sitting Sessions Judge or Additional Sessions Judge at the time of his appointment.
The  level of punishment of Person concerned with consumption and smuggling of drugs depends not only on nature but also in quantity with a sentence extending as long as 20 years and a fine as much as Rs.2 lakh. Violation of which  may result into punishment including rigorous imprisonment or fine or both If the drugs are used for personal use then the punishment may be lesser. Although since the establishment of the law, it has been amended time and again. But due to the availability of  drugs and issues relating to local  drugs and modern drugs, the problem in dealing with new drugs having properties of substance of abuse is a not an easy task .
As per the NDPS Maximum of 1 year rigorous imprisonment or a fine up to Rs 10,000 or Both for small quantities of drug (1g to 100g) for the drug fieser /dealer and Rigorous imprisonment from 10 years (min) to 20 years (max) and a fine from Rs 1 lakh to 2 lakhs would be awarded if the quantity exceeds up-to kilos According to Sections 19, 24 or 27A of the NDPS Act and those relating to commercial quantities of drug would not get bail under any circumstances .
Various amendments have been made since of its enforcement ,in 2014 new amendment came into force or Under section 71 of NDPS act which explains the management of drug dependents cases and the rules for treatment facilities was incorporated. And also , the amendments increased penalties for low-level offences and continued to criminalize the consumption of drugs.
The amendment has ensure a uniform regulation for the whole country, by eliminating state wise Altercation. The very important Narcotics Drugs which are used in scientific preparations includes Morphine, Fentanyl and Methadone, have relaxed for easy  availability among younger generations. The death sentence for repeated conviction for trafficking large quantities of drugs has been diluted with giving courts to give Sentence for 30 years. On the other hand, punishment has been increased for âsmall quantityâ offences from a maximum of 6 months to 1 year imprisonment after this amendment.
I believe that organization working towards narcotics approach and laws around the world have proven to be largely incompetent in controlling the production of illegal narcotics.Â
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The All India Journal on Analysis of Contemporary Legal Affairs (AIJACLA) Competition Quest for âNext Best Legal Analystâ by Aequitas Victoria aims to unearth the Best Legal Analyst in India.
The organizers believe that the legal research scenario in India should be molded in such a way that new researchers are encouraged, recognized and appreciated for their work. They believe that these researchers have the ability to take central stage in policy making. This competition will engage with students to develop their research skills and will foster their
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