INTRODUCTION

The Consumer Protection Act, 1986 initially did not include medical services under its purview. Cases of medical negligence at that time were dealt with in civil courts. India to adjudge cases of medical negligence would rely on various leading judgments given out by the English courts. Furthermore, Supreme Court had given out decisions that clearly stated medical services as ‘personal service’ rendered by the doctors, which did not fall under ‘services’ as defined by the Consumer Protection Act, 1986. The apex court had held any doctor performing his duty taking due caution, and reasonable care cannot be held liable for medical negligence. Patients would have to wait ‘patiently’ to get their matters sorted out. Tables turned when the apex court pronounced judgment of the case IMA V V.P. SHANTHA IN 1996.

Indian Medical Association v. V.P. Shantha , 1956

This was a landmark case through which the Supreme Court had brought in medical services rendered to patients under the scope of ‘services’ as defined under Section 2 of the Consumer Protection Act. It scraped all previous decisions given by the Supreme Court in this regard.

According to this case, any service rendered to a patient by treatment, consultation, or diagnosis will fall under the Consumer Protection Act. Medical services provided by government or private hospitals free of cost will not come under the purview of this Act. Still, any medical service rendered by an independent Doctor free of charge will come under its purview. In case of price discrimination by a hospital, i.e., charging fees from those well off but exempting poverty-stricken people, the services rendered by the institution will come under the purview of the Consumer Protection Act. This case advanced the goal of the Consumer Protection Act to provide speedy and cheap justice. It increased the liability of the doctors and hence to some extent, reduced the chances of people falling prey to medical negligence.

Consumer Protection Act, 2019 further implemented that no litigation charges will be required on cases of monetary value up to five lakh. Research conducted by insurance companies reflects that after the inclusion of medical services under the Consumer Protection Act, lawsuits filed against doctors have seen a significant hike. This can be attributed to the effective functioning of Consumer Dispute Redressal Commissions which served patients with speedy justice.

Medical Negligence

A case of medical negligence has three contributing factors. They are:

The existence of a legal duty
Breach of the legal duty
The damage caused is due to such a breach

The burden of proof lies on the complainant in a case of medical negligence. To claim damages from the accused, the claimant must first prove that the person owed a duty of care to the claimant, breach of which caused the harm suffered. Bolam’s test (derived from Bolam v Friern Hospital Management Committee) is used to determine the reasonable standard of care a medical practitioner owed to his patients. In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole, the apex court, held doctors must follow accepted standards of care established by profession. Any breach of these responsibilities will open him up to a legal suit on medical negligence—the Supreme Court in the case of Vinod Jain Vs. Santokba Durlabhji Memorial Hospital and Ors observed that a doctor not possessing the highest expertise in a field will have the liberty to exercise skills that any ordinary man in a similar situation would undertake. To prevent doctors from prioritizing their safety above their patients, the Supreme Court had come to this conclusion.

Effect of Consumer Protection Act in the Medical Field

Many people allege that the inclusion of medical services within the ambit of the Consumer Protection Act has led doctors to adopt a defensive medication policy which has increased the costs of health services. In simplified terms, it means conducting an excess number of diagnostic tests to be sure of the ailment which needs to be treated and also as a means of defense in case of litigation. However, this statement cannot be considered entirely accurate. Even before the Consumer Protection Act was enacted, medical negligence cases were dealt with in courts. Its inclusion has given the consumers a parallel option to approach consumer courts, anticipating the swift settling of their grievances.

On the other hand, an evidence-based approach in the medical field can be attributed to the rise of prices in this industry. Doctors often bend towards multiple diagnostic investigations bearing in mind the onus to deliver quality health care to patients. What must also be remembered is that the patient gets such treatment at affordable prices.

Consumer Protection Act, 2019 has been enacted with an aim to sweep unfair trade practices from the floors of private health delivery systems. The pandemic has flashed a light on many incidents of unfair trade practices being undertaken by the private health delivery systems. This might stem from the Government using State infrastructure at occasions where the private sector would better serve the purpose.

In Chandigarh Clinical Laboratory vs. Jagjeet Kaur, the National Consumer Disputes Redressal Commission supported the findings of the District and State commissions, ordering the appellant to pay the complainant Rs.25000 plus costs of Rs.2000. The patient had received incorrect reports from the appellant laboratory, for which the Commission stated that the appellant had a “duty of care” to provide the patient with accurate findings, and thus this qualified as medical negligence.

The State Consumer Disputes Redressal Commission, through the case of Jagdish Prasad Singh V Dr. A.K.Chatterjee, established that in a suit for negligence, whether the patient suffered significant harm would not be a judging criterion. In this case, it had directed the accused to pay a compensation of Rs 25,000 and Rs 5,000 as litigation costs to the complainant due to the mental agony and physical harassment caused to him.

CONCLUSION

The medical profession is a noble one. Nothing must soil the integrity of this profession. It must also be remembered that doctors are also humans prone to mistake. Treatments may sometimes not yield adequate results due to various reasons, including the natural course of life. However, if the patient suffers harm on account of negligence contributed by the doctor, he must be made liable. Keeping this in mind, the Supreme Court had included medical services under Consumer Protection Act. This reduced the burden on Civil Courts and also ensured the aggrieved get speedy access to justice.

REFERENCES

CONSUMER PROTECTION ACT, 1986
CONSUMER PROTECTION ACT, 2019
https://www.lawteacher.net/cases/bolam-v-friern-hospital-management.php
https://www.mondaq.com/india/dodd-frank-consumer-protection-act/1062944/medical-negligence-india

The article is written by Debasmita Nandi, a first year law student of CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

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INTRODUCTION

International law is the law governing the issues, when a foreign element is there in a case. The United Nations, is an international intergovernmental organisation formed to promote peace and security across the globe, after World War II. The General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the UN Secretariat are the six principal organs of the UN. The resolutions passed in the General Assembly and Security Council are not officially recognised as a source of International law, but this article will look into the validity of the same.

Source of International Law

The official sources of International law are given in Article 38(1) of the Statute of the International Court of Justice (ICJ), which are, international treaties, international customs, general principles of law, judicial decisions and the teachings of jurists. The priority of the sources is also based on the same order.

Treaties are the basic source of international law. It is an agreement between sovereign countries or international organisation and governed by International law. Customs will be considered as a source of law, when there is no treaty governing the particular issue. It is the oldest source of law. It is mostly the customs followed by two or more countries for a long period of time. sometimes, customs, will be modified to be a treaty. General principles are those principle on whose basis International law is built on. Judicial decisions are not usually applicable in International law but is only taken into account when the other sources are not available. Jurist’s opinion is only used when all the other sources are not available and they are not preferred much because of various reasons, like the jurist might be biased towards his own country, etc.

General Assembly

The General Assembly is the decision-making organ of the UN. It makes decisions on questions related to the peace and security, admission of new members and also about the matters related to the budgets of the UN. The decisions are taken by a voting with a majority and by a simple majority vote, followed by two-third majority present and voting, in case of issues with important questions, where each country has one vote. Chapter IV of the UN Charter talks about the General Assembly, which gives the General Assembly the power to discuss any questions, within the scope of this Charter and to initiate studies and make any recommendations to the member countries, for promoting international cooperation and development of international law. The subsidiary bodies of the General Assembly look into areas of international law and reports it to meeting of the General Assembly. Out of the six committees of the General Assembly, the Sixth Committee looks into the legal matters and reports it to the General Assembly along with the International Law Commission and the UN Commission on International Trade Law. The General Assembly also looks into matters related to the UN’s institutional law, like, the matters related to Staff Regulations and the formation of the internal justice system.

Sir Ian Brownlie in his book ‘Principles of Public International Law’, classified the sources of international law into two: formal sources and material sources. Sources mentioned in Article 38(1) of the Statute of the ICJ are the formal sources of international law, that looks into the methods and procedures necessary for the creation of International law and it creates the law. There are also material sources of international law, which looks into the content and substance of international law and it helps in identifying the obligatory substance, that would later become a part of law. Keeping this in mind, there have been suggestions that the resolutions passed by the General Assembly should be considered as a material source, because they indicate the obligations of the states and it is binding on the states, but it is not a law. Hence, he said that the resolution of the General Assembly is an obligation and not a law.

Security Council

The security council has to maintain peace and security among all the countries. When the other countries only have the power to make recommendations to the members, the Security Council, under Article 25 of the UN Charter, has the power to make decisions that are binding on the member states. The purpose of the Security Council is not to maintain and restore law, but to maintain peace and order and both are not the same. The Security Council does not necessarily make any law and so its resolutions are not considered to be a source of international law, but they work in the interpretation of the law and help in the law-making process. Few examples of the Security Council’s contributions are, recognition and non-recognition of statehood, the law of treaties, international criminal law, international human rights law, international humanitarian law, international administration of the territory, and state responsibility.

The Security Council was referred to as a World Legislature, with the adoption of Resolution 1373, on September 28, 2001, and it was also suggested that a new legislative stage was started along with it. With the adoption of Resolution 1540 on April 28, 2004, the consultation process was described as the first major step for the Security Council to legislate for the other members of the UN and it was also said that the Security Council has replaced the conventional law-making process in international level, by its enforcement powers.

The Security Council resolutions are framed in a general and abstract character of the obligation. An example of this is Resolution 1390, which was about freezing the assets of Al Qaeda, this resolution shows the characters of the legislative resolution. This type of resolution was also referred to as a resolution, which is not in response to a particular fact or situation. Hence, this obligation is similar to those obligations entered by states as international agreements. These resolutions are referred to as international legislation.

CONCLUSION

After looking into all the above-mentioned things, we can conclude that neither the General Assembly resolutions nor the Security Council resolution is a source of International law, but these are resolutions, that the countries are bound to follow. Now comes the question, whether these resolutions can be considered as a source of law, any time soon? My answer to this question would be no. This is because both the General Assembly and Security Council have no legislative authority and acting as it has, would mean that it is inconsistent with the provisions of the UN Charter. On the other hand, these two organs of the UN are also political institutions and not legal institutions and they are not democratic and they also do not have a lot of legal restrictions for their actions.

To make these as a source of International law, would mean that both General Assembly and Security Council should be given a separate legal identity and that would mean that they are separate international organizations and not a part of the UN. To conclude, I would say that both the General Assembly resolutions and Security Council resolutions won’t be considered as a source of International law.

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What is Reservation?

The term reservation refers to keeping back or withholding. While in the Indian context, reservation is positive discrimination that protects the people from the lower caste to share equal places with the others. It is an affirmative action that reserves a percentage of seats in the public sector units, union and state civil services, union and state government departments and in all public and private educational institutions except in the religious\ linguistic minority educational institutes, for the socially and educationally backward classes and the SC and STs who are deprived of such changes. The reservation policy also extends to the representation in parliament. The reservation policy is backed by the constitution of India. It served two main purposes as per the constitution, firstly, advancement of scheduled caste and tribes or any socially or economically weaker sections, secondly, adequate representation of any citizen of backward classes or economically weaker section in the services under state. Not more than 50 per cent of the seats can be reserved. The topic is under for a lot of years and many different opinions are prevalent in society.

History of Reservation

William Hunter and Jyotirao Phule in 1882 introduced the idea of caste based reservation. Reservation policy in India began when the Government of India Act, 1919 was introduced during World War I. The act focused on the development of Indian territory. This act discussed several reforms for governmental institutions along with issues of minorities which included communal electorates. This system was criticized by Montague- Chelmsford as a system that could hinder the self-development policy but because Muslims already had a communal electorate through the Minto- Morley reform of 1909 and thus, they found it unfeasible to take separate electorates for the Muslims. To scrutinize the Montague Chelmsford reforms, Simon Commission came up in 1927. After taking the tour of the entire Indian province they suggested unification of electorates with some of the seats reserved for depressed classes and also demanded a wider province as the economic, educational and social position did not allow them to vote. To scrutinize the report of the commission, and to discuss the ways to incorporate new laws in the constitution, a round table conference was organized in London in 1931. Many Indian delegates joined the conference. Prime Minister Ramsey Macdonald chaired the conference. Mahatma Gandhi disapproved of the idea of many separate electorates while B.R. Ambedkar was in favour of the suggestion. Due to the conflict of interest, this issue remained unsolved at the conference. But after this communal award and Poona act came into being which allowed separate representation to Muslims, Sikhs, Indian Christians, Anglo- Indians, Europeans and Dalits depressed classes and were assigned several seats that were to be filled by election from special constituencies in which only the voters from depressed classes voted. This award was opposed by Mahatma Gandhi but was supported by B.R. Ambedkar and other minority groups. As a result of the hunger strike and revolts, the Poona act came into being which brought a single electorate for each of the seats of British India and new central legislations. The Government of India Act 1935 stamped the provisions of the Poona act 1932. According to the Government of India Act, 1935 reserved seats for the depressed class was allotted.

The Reserved Quota

The vacancy of SCs, STs or OBCs cannot be filled by the candidate other than of SCs, STs or OBCs, as the case may be. About 60 percent of the seats are reserved in India for various sections concerning govt. jobs and institutions. 3 percent of the seats are reserved for differently-abled persons across all categories. This means that only 40 percent of the seats are left under merit. In the merit seats along with the general category, all the candidates of SCs, STs or OBCs, and EWS can also compete. Scheduled tribes are given a 7.5 percent quota in jobs and educational institutions while schedule cast has a quota of 15 per cent in jobs and educational institutions. The Quota for OBC is 27 per cent and of economically weaker sections is 10 per cent for jobs and educational institutions.

Why is Reservation Needed?

The people of the backward classes were deprived of the minimum requirements because of many reasons. They were not able to compete with the creamy layer or they lack motivation because of a lack of facilities.

To remove the historical injustice faced by backward classes in the country.
To provide an equal competition for backward sections as they were not able to compete with those who have had access to resources and means for centuries.
To ensure adequate representation of backward classes.
For uplift the backward castes.
To ensure equality as basis of meritocracy which says that all people must be brought to the same level before judging them based on merit.

Laws Related to Reservation

Part XVI deals with reservation of SC and ST in Central and State legislatures.
Article 15-

“Nothing in this article or in clause (2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”

Article 16-

“Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”

An amendment was made in the Constitution by the act, 1995 and clause 4(A) was inserted in the article which enabled the government to provide reservation in promotion. Constitutional 81^st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on total number of vacancies of that year. Later, after the 87^th amendment consequential seniority was provided to promote the candidates by giving them reservation.

Article 15 and Article 16 enables the central and state government to secure seats in government jobs for SC and ST.

Article 330-

“Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People

Seats shall be reserved in the House of the People for

the Scheduled Castes;
the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and
the Scheduled Tribes in the autonomous districts of Assam

The number of seats reserved in any State or Union territory for the Scheduled Castes or the Scheduled Tribes under clause ( 1 ) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State or Union territory in the House of the People as the population of the Scheduled Castes in the State or Union territory or of the Scheduled Tribes in the State or Union territory or part of the State or Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union territory
Notwithstanding anything contained in clause ( 2 ), the number of seats reserved in the House of the People for the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bears to the total population of the State Explanation In this article 332, the expression population means the population as ascertained at the last preceding census of which the relevant figures have been published: Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census”

Article 332-

“Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States

Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in Nagaland and in Meghalaya, in the Legislative Assembly of every State
Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam
The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in th State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved bears to the total population of the State
The number of seats reserved for an autonomous district in the legislative Assembly of the State of Assam shall bear to the total number of seats in that Assembly a proportion not less than the population of the district bears to the total population of the State
The constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district
No person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district”

Article 330 and 332 provide special representation of seats for Scheduled cast and tribe in the parliament and in state legislative assembly.

Article 243 provides reservation of seats to schedule cast and schedule tribe in every panchayat.
Article 233 provides reservation of seats to schedule cast and schedule tribe in every municipality.
Article 355–

“Claims of Scheduled Castes and Scheduled Tribes to services and posts The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.”

CONCLUSION

Reservation should be provided but only to those that are economically weaker sections of the society. The main loophole in the policy is that it provided reservation to all the people of a cast due to which the upper classes also tend to benefit from such policy. Reservation should only be provided to those who are actually in need of reservation and not to all with the name tag of caste. Government should follow radical measures to exclude the creamy layer from the policy. Agitations by the Patels of Gujrat or the reservation Brahmans of Tamil Nadu are some recent examples which show that how the creamy layer is taking advantage of the policy. In the case, Ashok Kumar Thakur v. Union of India, Justice Ravindran said that when more people aspire for backwardness instead of forwardness, then the Country itself stagnates. The policy cannot be considered as good or bad as when an undeserving candidate secures a seat over a deserving candidate then it is bad on the other hand if a deserving candidate is benefitted it is good. Whether to continue the policy or discontinue policy? Everybody has a different mindset so just a suggestion can be made that government should take decisions that would help the needy and people should not take advantage of the reservation policy, if they are capable then they should man up and do not take advantage of the loophole of the policy.

This article is written by Divesh Gupta a first-year law student at Vivekananda Institute of Professional Studies affiliated to GGSIPU.

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INTRODUCTION

Kelsen belonged to the Analytical school of thought and was one of the jurists responsible for reviving the original analytical thought in the 20^th century. Kelsen through his Pure Theory of Law aimed to present Law in its purest form, free from all the ideologies. His theory addressed the shortcomings of the theories propounded by the ones before him.

Kelsen claimed that the theory is pure on two counts, it distinguishes Law from (1) morals and (2) faith

Assumptions

Pure Theory of Law is based on various basic assumptions. Some of them are listed below: –

Law must always be “what it is” and not “as it ought to be”.
Law is normative not a natural science.
He believed that the application of Law shall be uniform, shall apply to all places at all times.
The legal theory does not concern itself with the effectiveness of legal norms.
This theory reduces the chaos and confusion created by Natural Law philosophy and makes way for order.
This theory is based on Kelsen’s belief that a theory of Law must be free from extra-legal disciplines, contrary to Austin’s concept of command that introduces a psychological element.

The Grundnorm

Grundnorm is a German origin word that means “fundamental norm”. Kelson’s theory is based on a hierarchy of norms in a pyramidical structure with Grundnorm at the top. From that, as it progresses, a legal system broadens becoming more detailed and specific. He defines Grundnorm as the ultimate rule from which other rules are derived or annulled, receives, or lose their validity. A Grundnorm exists due to its popularity as it establishes when it has got a minimum level of effectiveness for itself and when it loses that support, it becomes ineffective and a new Grundnorm is established. This is what we call “revolution” Kelson states that in every legal system, there will always be a Grundnorm of some sorts. Kelsen characterizes Grundnorm to be a mere fiction.

Implications of Pure Theory

Public Law and Private Law are not to be treated as that of different characters as all Laws derive force from the Grundnorm and there shouldn’t be any distinction just because of some dissimilarities.

The Pure Theory of Law does not define Law and State as two different things, they are rather similar. Kelson negates the concept of “sovereign” as a personal entity.

It defines “personality” as the entity capable of being endowed with certain rights and duties. It holds no difference between natural and juristic persons. Reason being that all legal personalities are artificial and derive their validity from superior norms.

It holds that there is no difference between the 3 organs of the Government i.e. Legislative, Executive, and Judiciary as all 3 are “norm-creating agencies”.

Kelson does not consider the concept of rights as essential for a legal system and hence the theory denies individual rights. On the other hand idea of duty seems essential.

Criticism of Pure Theory of Law

Kelson’s Pure Theory of Law happens to address a lot of shortcomings of the theories given by the ones before him and he attempted to devise a logically consistent theory. To some extent, he did achieve his goal but even his theory was not criticism-proofed!

Grundnorm being characterized as vague and confusing. Reasons given- no minimum criteria given by Kelsen for it, depends on sociological factors which are however rejected by Kelsen himself.

Kelsen states that a theory of Law shall be free from extra-legal disciplines but he somehow misses on the point that in modern times, the interaction of Law with disciplines like economics, psychology, etc is necessary.

Kelson altogether ignored the importance and application of customs.

The weakest link of Kelson’s theory is International Law as to when the theory is applied to it, it shows many limitations.

Besides customs, Kelson also in entirety ignored Natural Law and Morality.

Theory’s application and usefulness is somewhat limited to only legal scientists and not of much use to legal judges.

The theory does not address the part that purity of Norms is difficult to maintain.

Application of Pure Theory of Law in India

Tracing the application of the theory, Grundnorm in ancient times was Dharma. The scriptures show that it enshrined a duty on the King to rule and administer justice following Dharma. And it was accepted by the masses too for the survival of the society.

British rule in India rejected the ancient Indian legal system and made a place for Positivism by initiating codification and introducing the British justice system through equity, justice, and good conscience.

Post Independence- Basic structure of the Constitution can be regarded as the Grundnorm of the present time. Reason being that Laws derive their validity from it, meaning that for a Law to be valid, has to be consistent with the basic structure.

Basic structure majorly comprises of: –

Supremacy of the constitution as a sovereign, socialist, democratic, republic as enshrined in the Preamble
A welfare State
The federal character of the Constitution
Separation of powers between the organs
Fundamental Rights (Part III)

Kesavananda Bharati v. State of Kerala (1973) SC

Legal issue- Extent of amending power under Article 368

Decision- A Special Bench13 Judges held that the power to amend does not include amending the basic structure of the Constitution so as to result in changing its identity.

Indira Gandhi v. Raj Narain (1975) SC

Article 329A (4) was struck down as it was beyond amending power of the Parliament. Hence the doctrine of basic structure was followed.

Minerva Mills Ltd. & Ors. v. UOI (1980) SC

The Hon’ble Court stated- Limited powers of Parliament to amend the Constitution, Harmony between Fundamental Rights and Directive Principles and Fundamental Rights in certain cases as a part of basic structure of the Constitution.

CONCLUSION

Even though most of us know Austin as the Father of Positive Law School (honestly, it is rather debatable as Bentham seems to be the founder) but once you come across Kelson’s work, you realize how creatively he gave a new shape and form to this school and tried to acknowledge the shortcomings of his predecessors. Kelson is one of the greatest jurists of his time who propounded the “Pure Theory of Law”. It is an interesting revival of analytical jurisprudence. Even though despite the efforts it is subjected to criticism, it is still used popularly amongst various legal thinkers and jurists and as we saw earlier, has its application in India too.

This article is written by Munmun Kaur, a Law student from Law Centre-I, Faculty of Law, Delhi University.

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What is defamation?

Defamation can be explained as damaging someone’s good reputation. Therefore any person who commits an act that may damage the reputation of a person can be said to have committed defamation. Reputation can be termed as the opinions that others hold towards a person. Reputation is a legal right according to Article 21 and thus damage to one’s reputation is the violation of one’s absolute right.

English Law

Under English Law, defamation has been classified under 2 heads, these being Libel and Slander.

Libel: Libel is a defamatory statement that is in written form and is permanent in nature. Examples include books, articles, movies, etc. This is a criminal offence and is actionable per se.

Slander: Slander is a defamatory statement that is in verbal form and temporary in nature. This is a civil wrong and is actionable under the law of torts.

Indian Law

The Indian Law does not make any such distinction between libel and slander. Defamation under Indian Law is both a civil wrong as well as a criminal wrong. It is defined under Section 499 of the Indian Penal Code as a criminal offence and is also a tort.

It depends on the plaintiff as to what kind of action he wants to bring against the defendant. If the plaintiff wants imprisonment for the defendant, he shall initiate criminal proceedings. If the plaintiff, however, wants to sue for damages, he shall initiate civil proceedings.

We shall only discuss tortious liability in this Article.

Essentials

There are a few essentials that must be fulfilled for a person to be held liable for committing defamation. These are as follows:

A defamatory and false statement must be made

The first essential to constitute defamation is that the defendant must have made a statement that is false, and publication of that statement shall lead to injury to the reputation of the plaintiff. Whether or not a statement is defamatory depends on how a person of reasonable mind shall take it to be.

In D.P. Choudhary v. Manjulata, a statement had been published in a local daily, according to which the plaintiff had eloped with a boy during the night, on the pretext of going for night classes. The statement was found to be true, but the plaintiff had to suffer a lot and also her marriage prospects were affected due to this. Therefore the defendants were held liable.

The statement must be made with respect to the plaintiff

The defamatory statement must be made with respect to the plaintiff. What this means is that the statement made by the defendant must refer to the plaintiff. Whether the defendants had ill intent or awareness of the truth is immaterial. If a defamatory statement has been made with respect to the plaintiff (whether prima facie or innuendo), the defendants shall be held liable.

In Morrison v. Ritihie and Company, the defendants had mistakenly published a statement that the plaintiff had given birth to twins. The defendants were unaware that the plaintiff had been married for only 2 months at that time. They were held liable for defamation.

The statement must be published

The third and final essential to constitute defamation is its communication to a third party. Even though a false and defamatory statement made with respect to the plaintiff was made, if it is not communicated to a third person, it does not amount to defamation.

Thus if a defamatory article is published in a local daily, it amounts to defamation. Similarly, making defamatory statements in presence of various other persons amounts to defamation.

Therefore if a letter that consists of defamatory statements for a person is not read by a third person, it cannot amount to defamation. However, if the letter gets into the hands of a third person and they read it, without the knowledge of the defendant, the defendant cannot be held liable.

In Arumuga Mudaliar v. Annamalai Mudaliar, it was held that when a letter containing defamatory statements is sent and it gets into the hands of a third person and is read in the presence of multiple people, the defendants cannot be held liable for defamation.

Defences

Now that the meaning of defamation and also the essentials which constitute defamation have been covered, we shall now take a look at the defences through which the defendant can avoid being liable. These are as follows:

Truth

If the defamatory statement is true, it is a valid defence. That is if it has been proved that the defamatory statement that was made against the plaintiff is true, the defendant shall not be held liable. The burden of proof that the statements are true lies on the defendant.

In Radheshyam Tiwari v. Eknath, the defendant had published a series of articles. These articles were against the plaintiff. The plaintiff alleged that these were false statements. The defendant was unable to prove that the articles published were true and thus was held liable.

Bonafide Comment

The defence of bonafide or fair comment is available to the defendant if the statement made by him is fair and made in the interest of the public. The 3 essentials of this defence are:

Comment: A comment is the expression of one’s opinion. It is NOT an assertion of fact, but instead, the opinion one holds about a matter.
Fair/Bonafide: For a comment to be fair, it needs to based on true facts. It cannot be a fair comment if it has malicious intent behind it or is based on untrue facts. The comment should be made by the defendant on the basis of his opinions.
Public Interest: Administration of the current government, law, public property and places are all matters of public interest. A fair comment made about these cannot amount to defamation.
Privileges

There are instances where the law recognizes the fact that the right of free speech outweighs the right of reputation. These instances or occasions are treated as privileges. Therefore even defamatory statements made in presence of such privileges cannot amount to defamation.

Conclusion

From the above discussion, it can be concluded that defamation is an actionable offence under both civil and criminal laws. For an offence to constitute defamation, several essentials need to be fulfilled. Also one can rely on a few defences in order to avoid being held liable for the tort of defamation.

The author is Om Gupta, a first-year law student pursuing BBA-LLB from the University School of Law and Legal Studies.

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INTRODUCTION

“An election is a moral horror, as bad as a battle except for the blood; a mud bath for every soul. concerned in it.”

– George Bernard Shaw

Elections are at the Centre of the democratic process. People in a democracy participate in public affairs and express their will through elections. In a democracy, power is transferred in a peaceful and orderly manner through elections, and the government’s authority is given legitimacy. ‘Elections, in this way, not only sustain but also enliven democracy. As a result, holding free and fair elections is a requirement of democracy.’ But for some certain reasons, democratic system does not function properly and there is a general perception that something is not right in the electoral process.

In a democracy like India, public perception of the electoral process can be defined as public opinion gathered through surveys or election studies and sought to be represented in political campaigns or electoral process decisions, ECI interventions, judicial verdicts on reforms such as candidate affidavits, and authoritative reports of commissions set up to investigate electoral reform. Despite the ECI’s high reputation as an independent and trusted institution and the successful implementation of election process changes such as Electronic Voting Machines and Election Photo Identity Cards, voter opinions of the process remained negative.

India chose a Parliamentary democracy when it gained independence six decades ago. The term “parliamentary democracy” means that citizens have the only power to elect their representatives. But now is the time to consider the issues on which we were mistaken in choosing this kind of democracy. We should not just criticize the politicians, but also “we the people of this country,” because we are all to blame in some way. The removal of three horrible things, namely, money power, muscle power, and mafia power, is the first and most important duty that must be completed at this hour. Aside from that, four Cs must be eliminated. Corruption, criminality, casteism, and communalism are elements of this.

Electoral Reforms in India

“Whoever wishes to foresee the future must consult the past; for human events ever resemble those of preceding times. This arises from the fact that they are produced by men who ever have been, and ever shall be, animated by the same passions, and thus they necessarily have the same results”.

-Machiavelli

Elections are the backbone of our democracy in India. Our democratic system gives us the power to choose our state’s representatives. Furthermore, the elected people have the right to choose the state’s leader. India’s elections have a lengthy history. As a result of our federal structure, India has both general and state elections. The Indian Election Commission is the main authority in charge of elections in the country. Both the General and State Elections are held in accordance with the Election Commission’s rules. This Commission is made up of high-ranking government officials and is set up in accordance with Indian Constitutional provisions. The Election Commission has a significant deal of autonomy in terms of exercising control over the election process. Even the Court does not have the authority to meddle in the electoral process.

Electoral reforms that have occupied the Election Process include EVMs (Electronic Voting Machines), which result in more transparency and creditability of elections, Universal Adult Franchise, which was initiated by the 61st Amendment, 1988, and Anti- Defection Law, which prohibits criminals from purchasing tickets for various political parties. Furthermore, Act 1 of 1989 added Section 58A to the Representative of the People’s Act, which allows for the postponement or revocation of elections due to booth capturing.

Free and Fair Elections

India is the world’s largest democracy. Since 1947, free and fair elections have been held on a regular basis in accordance with the Constitution and the Election Commission’s rules. The Election Commission of India is responsible for overseeing, directing, and controlling the entire process of holding elections for the offices of President and Vice-President of India, as stipulated by the Indian Constitution. Elections are held in accordance with the Constitution and laws passed by Parliament. The most important legislation is the Representation of the People Act, 1950, which deals with the preparation and modification of electoral rolls, as well as all elements of election conduct and post-election issues.

Criminalization in Electoral System

The only power the government has is the power to crack down on criminals. Well, when there are not enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

-Ayn Rand

Political criminalization has contributed to a shaky electoral system. Representatives who run for election have a slew of criminal charges filed against them. From the perspective of the common man, it is generally known that these politicians rely on the help of criminal elements to climb the political ladder. It is all about tormenting the citizens who go out to vote for them. Are the politicians cum criminals who are leading us producing a just atmosphere if they vote because it is their fundamental right? The answer is always a resounding “no.” The Law Commission of India Reports offer biographical information on politicians, such as their socioeconomic backgrounds, charges filed against them, and so on. Every person to whom we offer a vote has a fundamental right to know their antecedents. However, only a small percentage of people take use of this benefit. This is due to a lack of understanding among the public. Any candidate who is convicted by a court of law is disqualified under Section 8 of the People Representation Act of 1951. It further states that such a candidate will be forbidden from running for office again for six years after his or her conviction. This demonstrates a stern approach to policing criminalization. But the question is whether or not there is a zealous application of the same. Is it true that we have free officials that are corrupt? Also, how do they feel about the endurance of such background-checking tests? The answer to all of this is still “no.” The reason for this is that money has a lot of clout in politics.

On March 27, 2003, the Election Commission of India issued an order requiring candidates for electoral office to submit an affidavit disclosing their assets and liabilities, in response to a Supreme Court judgement dated March 13, 2003 in the Peoples Union for Civil Liberties &another vs. Union of India case. In its report “Proposed Electoral Reforms,” published in 2004, the Election Commission of India stated that “there have been several incidents where the candidates are reported to have submitted grossly discounted information, primarily about their holdings.” This is bringing the country closer to a state of languishing. It is not a sign of progress. India is considered a developing nation. This mindset, which we have seen so far in our political system, will only serve to enhance crime. This opens the door to all kinds of illegal and banned actions.

Current Situation

The functioning of our legislature, the Lok Sabha, the Rajya Sabha, and the State Legislative Assemblies, does not inspire pride in us. One of the primary issues with legislatures is the large number of unqualified candidates who make it to them. For example, the media stated that more than half of the MLAs in the current state assembly election in Uttar Pradesh had criminal records worth noting. It is typical to place practically all of the responsibility for the current state of affairs on the country’s so-called political elite. Those who just criticize them disregard the fact that this political elite is born out of society. They are not created in a vacuum or in a closed environment. Citizens are the ones who do not take use of the benefits that have been provided to them. As a result, changing the structure in which the political class must work is one method to modify their behavior. Electoral reforms become critical at this point. Our political system, according to the government, is dysfunctional. Fundamental political reform is desperately needed, including an electoral reform referendum, far increased cross-party cooperation, and improvements to our political system to make it considerably more transparent and responsible.

CONCLUSION

The election served as a symbol of hope. When asked why elections mattered, respondents said they were hoping for a “transcendent utopia of equality”that would eliminate the unfairness and injustice that they were confronted with. This is a sufficient cause to ensure improvements, which, as the 2010 Core Committee on Electoral Reforms noted, the election system was in “dire need” of, from candidate selection to election funding. The quality of democracy suffers as a result of the failure to implement reforms. The most disturbing aspect of criminalization of the election process, for example, was “the huge number of elected MPs with criminal accusations pending against them.” Second, the influence of money on elections can be seen in three ways. One possibility is that candidates who are paid to run for office may be driven to recoup their investment once they are elected to power. Two, the winning candidates may be forced to protect the interests of their “investors”by prioritizing policy objectives over others. Third, such candidates may lack both reason and knowledge of the public’s desires.

Electoral reforms in a society that relied on elections for justice and rationalism might not simply be about method and procedure; they might also be about voters’ perceptions of what democracy gave and what they thought they deserved. The SCI and Law Commission’s perspectives provided a substantive basis for election changes and a path to a better democracy.

This article is written by Ayushi Vaid of VIVEKANANDA SCHOOL OF PROFESSIONAL STUDIES.

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ABOUT THE ORGANIZER:

JECRC University, Jaipur, Rajasthan is one of the Premier Universities of North India, established under The JECRC University Act, 2012 of the Government of Rajasthan. JECRC University had started the School of Law in 2017 with the approval of the Bar Council of India. We at JECRC University aim to provide a platform for young students to understand the inter-dependence of today’s world and its myriad challenges and opportunities.

ABOUT COMPETITION

We believe that the objective of modern education should be to create world citizens with the right moral and ethical values, tolerance, discipline, commitment, compassion, and sensitivity. JECRC’s School of Law was the first law school in Rajasthan to start the drift towards a national level Virtual Moot Court Competition for the young law aspirants while defeating the constraints of the Pandemic.

Our last edition was in the format of a Mono-Advocacy Moot wherein, the guests were Sitting Judge of Rajasthan HC, Additional Solicitor General and was adjudged by Advocates on Record, Advocates of RHC and Member, Bar Council of Rajasthan. Last year we witnessed the nationwide participation of more than 50 students coming from top Law Schools of India including NLUs and other Private Institutions. Cash Prizes worth Rs. 10,000 were awarded to the students in which Symbiosis Law School, Pune won the best team prize.

Thus, with greater zeal and enthusiasm, we have come up with our 2nd National Virtual Moot Court Competition wherein, the proposition is related to the emerging IP Rights Laws and the participation cap is 40 teams.

IMPORTANT DATES

Release of Proposition, Rules and Commencement of Registration: June 25, 2021.
Last Date for seeking Clarifications: July 7, 2021.
Release of Clarifications: July 10, 2021.
Last Date for Registration: July 20, 2021.
Last Date of Submission of Memorials (Softcopy): July 25, 2021.
Memorial Exchange: August 6, 2021.
Oral Rounds: 7^th to 9^th August, 2021.

Eligibility

Students of three-year or five-year integrated law degree courses from any University/Law School/College/Department are eligible to participate in the Competition. However, a maximum of one Team shall be allowed to participate from any one University/Law School/College/Department.

Team Composition

Each Team shall consist only of three members, comprising two speakers and one researcher.
Any alteration of the names of the team members shall be informed through writing email to ju.mootcourt@jecrcu.edu.in .
Once the Competition commences, the team composition cannot be altered under any circumstances whatsoever. The inability of any team member to participate in accordance with the rules of this Competition shall lead to immediate disqualification of the Team from the Competition.

REGISTRATION PROCEDURE

The teams interested in participating are required to confirm their participation by filling up the Google form. The link of which is Google Form.
In order to complete the registration process, a team would be required to fill up all the credentials provided in the Google form, including identity cards.
Teams interested in participating will send in the required registration amount of Rs.1500/- via internet banking or any other mode in the following transaction details:

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REWARDS AND PRIZES:

Winning Team Award – The winning Team will receive a prize worth Rs. 15,000/-.
First Runner-Up Team Award –The first runners-up Team will receive a prize worth Rs. 11,000/-.
Best Student Advocate/Counsel – The Best Student Advocate/Counsel will receive a prize worth Rs. 5,100/- .
First Runner-Up Student Advocate/Counsel – The first runners-up Student Advocate/Counsel will receive a prize worth Rs. 3,100/-.
Best Memorial -The Team submitting the best memorial will receive a prize worth Rs. 5,100/-.
Best Researcher – The Best Researcher will receive a prize worth Rs. 3,100/-.
First Runner-Up Researcher – The First Runners-Up Researcher will receive a prize worth Rs. 2,100/-.
Certificate of Participation– To all the participants.
Trophies to the winning team will be delivered at their respective places

CONTACT DETAILS:

Moot Court Committee

School of Law, JECRC University, Plot No IS -2036 to 2039, Ramchandrapura Industrial Area, Vidhani, Jaipur – 303 905 (Rajasthan), India

Email ID: ju.mootcourt@jecrcu.edu.in

Faculty Convener:

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FORMAT OF THE TEST

The entire test would be timed (15 min). The test shall be comprising of 50 Questions (1 Mark each) and would be of multiple-choice accessible via online mode only.

NOTE :

In case of tie in marks , person who submitted quiz first will be decided as winner if he/she falls in top 3.
If in case same marks are scored by 3 participants who score same highest marks then those 3 will be declared as Top 3.
Quiz cannot be reconducted if someone is unable to submit in time.
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WHAT WILL THE TEST COVER?

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ABOUT

Journal for Law Students and Researchers [JLSR] is an Online Journal with ISSN[O]: 2582-306X and 9 indexings, which is quarterly, Peer-Reviewed, published online and JLSR seeks to provide an interactive platform for the publication of Short Articles, Long Articles, Book Reviews, Case Comments, Research Papers, Essays in the field of Law.

JLSR welcomes contributions from all legal branches, as long as the work is original, unpublished, unplagiarized and is in consonance with the submission guidelines.

TOPICS :

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CASE NUMBER

4 P.C. 419.

EQUIVALENT CITATION

(1872) L.R. 4 P.C. 4.

BENCH

Sir Montague E. Smith.

DECIDED ON

27^th July, 1872.

Brief Facts And Procedural History

In this case, W. N. Watson & Co. borrowed some amount of money from Raja Pratap Chandra Singh, but the company failed to return the money back to Raja. So, the company signed a mortgage deed and an agreement with Raja, according to which the company gave the power of control over business to Raja Pratap Chandra Singh and the right to take benefit from the company’s profit until the due amount is paid. Thereafter, the W. N. Watson Co. entered into a contract with Mollwo, March Company (Plaintiff). The W. N. Watson Co. failed to fulfill the contract with the Mollwo, March & Co. As a result, the Mollwo, March & Co. filed a suit against Raja and W. N. Watson Co. as they thought that Raja is a partner in W. N. Watson Co. as he was taking his share in the profits.

Issues Before The Court

The main issue was whether Raja Pratap Chandra Singh can be considered as a partner or not, as he is sharing the profits of the business?

Ratio Of The Case

In this case, the court said that Mollwo, March Company cannot sue Raja as the real intention of the contract between Raja and W. N. Watson Company was not to become partners but to pay the due amount that the company was unable to pay.

Decision Of The Court

In this case, the court held that Raja cannot be considered as a ‘Partner’ (referring to the guidelines given in Cox v. Hickman case), as the contract which was made between Raja and W. N. Watson Company was not a partnership but the company wanted to pay the debt and hence they gave power and rights to Raja on their business. Therefore, the relation between W. N. Watson Company and Raja is of a debtor and creditor and so that is why, the Mollwo, March Company cannot sue Raja.

The case analysis has been done by Priyanka Choudhary, currently pursuing BA LLB from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

The case analysis has been edited by Shubham Yadav, pursuing B.com LL.B. (4th Year) from Banasthali Vidyapith.

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