Month: August 2021

Death Penalty

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 Legislative Acts of death penalty

The death penalty is a process that provides punishment to an individual if she or he commits an act that is forbidden by law. It is also known as capital punishment. Capital punishment is an inherent part of the Indian judicial system. 

Article 21 of the Indian constitution is a fundamental right of every citizen. It is given “right to life” and “right to personal liberty.” This means the right to live will not be taken away from any individual except due procedure established by law. The offenses punishable by death are heinous crimes. 

 The death sentence is given under Cr.P.C. Section 354(3) and Section 368 of Criminal Procedure Code, High Court has the power to give a death sentence.

Death sentence punishable in IPC and the other Acts those offenses are:

  • 120B – Punishment of criminal conspiracy.
  • 121 – Waging, or attempt to wage war or abetment of war-waging, against the government of India.
  • 132 – Abetment of mutiny (in the armed forces), if mutiny is committed in consequence of that abetment.
  • 194 – Giving or fabricating false evidence with the intention to procure conviction of a capital offence.
  • 302,304 – Murder.
  • 305 – Abets the commission of suicide to child or insane.
  • 376A, Criminal law amendment Act, 2013 – In the rape case, if the victim died or incapacitated in persistent vegetative state caused by injuries.
  • 396 – Dacoity with murder.

Capital punishment present as a penalty in legislative acts:

  • Army Act, 1950, Air Force Act, 1950, and Navy Act 1956 under section 34 of these Acts.
  • Under Section 32- A of Narcotics Drugs and Psychotropic Substance Act, 1985.
  • Under Section 4 of the Sati (Prevention Act), 1987.
  • Under Section 3(2) (I) of the Scheduled Caste and Scheduled Tribe Act, 1989.
  • Under Section 3(2) of the Prevention of Terrorism Act, 2002.

Earlier mentioned laws are not applicable in all cases. The death sentence is present in Section 53 of IPC. Punishment is rarely used. 

Validity of the death penalty

The Supreme Court upheld the validity of the death penalty in ‘rarest of rare cases. In the case of Jagmohan Singh v. the State of U.P., the death penalty has been discussed first time in this case. The validity of the death sentence was challenged on the grounds of articles 19 and 21 because it violates the right given under Article 19(1) and 21. The second argument was that procedure prescribed under Cr. P.C. was only limited to findings of guilt and not awarding death sentences. The last argument was Article 14, which guarantees “equality before the law.” This means everyone is equal before the law. In this case, two accused had committed murder, one was sentenced to death, and the other was sentenced to imprisonment for life. The Supreme Court held that the choice of the death sentence is made according to the procedure of law. It was observed that the Judge can choose between imprisonment of life and death sentence based on facts and nature of the case.

In Rajendra Prasad v. the State of U.P., the Supreme Court held that the death penalty is a violation of articles 14, 19, and 21. The death penalty should be abolished or not as a matter of legislature. The court should not decide whether it should be abolished or not.

Criteria for rarest of rare case

This principle has been laid down in the landmark judgment in Bachan Singh v. State of PunjabThis case has overruled the decision of Rajendra Prasad. It held that the death penalty in case of murder is not unreasonable and hence not a violation of article 14,19 and 21 of the Constitution of India, because in clauses (2) to (4) of Article 19 is mentioned: “public order” that is different from “law and order.” The death penalty will be awarded in the rarest of rare cases. The precedents of this case were used to award a death sentence.

In Machhi Singh v. the State of Punjab, in this case, the court held that the death penalty is given in rarest of rare cases. The Supreme Court has given some guidelines for conviction of the death penalty. These guidelines included Manner of Commission of the order, the motive for commission of murder, socially abhorrent nature of the crime, the magnitude of the crime and, the victim of the crime.

Clemency Powers

The prisoner can submit a mercy petition to the President of India and the Governor of State. Article 72 states the President of India has the power “to grant pardon or commute or remit the death sentence.” Article 161 states the governor of a State shall have the power to grant pardon or commute or remit and suspend. If the death sentence has been given in the session court judgment, then it should be confirmed by the High Court.  If the High Court has sentenced the death penalty then the accused can appeal to the Supreme Court. If the Supreme Court has sentenced the death penalty then he can file a mercy petition to the President of India. If the President rejects the “mercy petition” then the accused can file a petition under Article 32 of the Indian Constitution for judicial review of the rejection of the mercy petition. In the case, Kehar Singh v. Union of India Indira Gandhi was shot dead by Satwant Singh and Beant Singh. She was Prime Minister. Kehar Singh had planned the murder. His son filed a mercy petition before the President of India but it was rejected. The court held that this case is the rarest of rare cases.

International Scenario

The death penalty is not only found in India but in many other countries as well. In recent years, 90℅ of the death penalty is found in Iraq, Saudi Arabia, and Pakistan, and China. According to an Amnesty report, 2,307 death sentences were passed in 56 countries in 2019. But some of the death sentences will be commuted. According to the Amnesty report, 106 countries have not allowed the death penalty. Eight countries have permitted the death penalty only for serious crimes in exceptional circumstances. In 142 countries, it has either been abolished in law or practice.

In India, many NGOs have supported the abolition of the death penalty. The main purpose of the NGOs is to stop inhumane punishment. The abolition of the death penalty movement was also supported by the United Nations during the drafting of the Universal Declaration of Human Rights (UDHRs). Russia has capital punishment but, it has not been used since 1996. Among the European countries, Portugal and Netherlands were the first countries to abolish the death penalty. Belarus is the only European country to practice the death penalty. It is found the practice of the death penalty is more in communist countries than in democratic countries.

Conclusion

The death sentence is a process provided by law. In India, the death sentence is given in the rarest of rare cases. Statutes and legislative Acts have provided the death sentence in certain cases. There are certain circumstances where less punishment has been provided to the accused like if he is a minor, pregnant woman, and co-accused. Now many countries are against capital punishment, and they have abolished the death penalty. If God has given life, then no one can take an individual’s life from him. 

The article has been written by Prachi Yadav, a 2nd  Year student from Mody  University of Science and Technology, Laxmangarh, Rajasthan.

The article has been edited by Shubham Yadav, a 4th-year student at Banasthali Vidyapith, Jaipur.

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PIL Seeking Guidelines for Search and Seizure at Advocate’s Premises

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The High Court of Delhi received a PIL by Advocate Nikhil Borwankar regarding the implementation of the new legislation on the police who are performing search and seizure in the advocate’s premises.

Advocate Prashant Bhushan appeared on the petitioner’s side stating that the police who perform search and seizure in the advocate’s premises are forcibly snatching the mobile of the Advocate which contains confidential data and conversations of their clients, which is in a draconian manner and is against the rule of law. By criticizing the incident of search and seizure performed by police in advocate’s premises dated 28, December 2020. He seeks to issue a notice to the government on this unduly intimidation of the police. And the plea also states that intimidating the Advocate’s professional digital devices is a grave and egregious violation of the privacy of the private citizen and that too with the member of the bar council who is always engaged with their clients. Hence, pray of the plea is that the issuance of the search warrant must be sanctioned by the director of the prosecution and the warrants issued by the court must have some alternative way to perform such search and seizures in the Advocate’s premises.

The Additional Solicitor General Chetan Sharma who represented on behalf of the Union of India stated that it is impossible to bring fresh legislation as per the petition. And he also opposed the plea stating that the search and seizure guild lines in according to the different acts. And he also pointed that the petition doesn’t contain any detail regarding whom and where such act of search and seizure took. At least the petition must have some names of the parties to the case. Or however, the national investigation agency and the intelligence bureau have to be parties in this case.

As per the request made by the Additional Solicitor General Chetan Sharma, the court asked to reply to the notice directed to the central government to hear this case further. Until then the court remarked that the court is simply adjourning by awaiting the reply of the central government, by deciding to hear remaining on September 3, 2021.

-Report by AJISHA

Product Liability

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Introduction

The Consumer Protection Bill’s Chapter IV addresses “product liability,” a much-needed provision of the CPA of 1986. It refers to the duty of a product manufacturer or seller of any product or service to compensate a customer for any harm caused by a faulty product produced or sold or by a failure in related services. However, any damage caused by a violation of warranty terms, as well as any commercial or economic loss, would be excluded. A plaintiff may file a product liability lawsuit against a product manufacturer, a product service provider, or a distributor who significantly influences the product’s design, testing, or modification.

In the new Consumer Protection Act of 2019, the concept of product liability was added. The obligation of a product producer or seller of any product or service to compensate a consumer for any harm caused by a defective product created or sold or a deficit in connected services is known as product liability. 

The old Act only addressed physical injuries, but the new Act also addresses mental anguish or emotional distress caused by a product. For example, if a product does not harm one but harms one’s property, and as a result, he suffers emotional distress, he can file a claim against the product’s manufacturer. And if the product manufacturer were not included in the product’s sale, the manufacturer would be held responsible. This rule would also extend to e-commerce sites. The accident, death, mental anguish, loss of consortium, or any other harm should be caused by the faulty good. The manufacturer will be held to a higher level of responsibility. The damage must be genuine and exclude any financial loss. Looking at this new definition of product liability, we can see that the government is now pressuring manufacturers to produce decent goods so that customers are covered, which is a significant change in the new Act.

 Product Liability Law In USA ( Comparison between USA and Germany)

Product liability issues should be considered by German enterprises selling their products in the United States. Manufacturers, distributors, suppliers, retailers, and others who make commodities available to the public can be held liable for damage caused by those products under US product liability law. Manufacturers, dealers, suppliers, retailers, and those who produce goods available to the public may be held liable for accidents caused by such products under U.S. product liability law. The manufacturer or someone else in the supply chain may be held accountable if a faulty or unreasonable unsafe product harms a buyer, consumer, or bystander. Product liability cases brought by individuals or groups of individuals can be expensive and time-consuming. 

 Types of liability:

The claims of the consumers are based on (i) negligence, (ii) warranty violation, or (iii) strict liability.

The specifications in the production process become more stringent as the risk of bodily harm increases. The customer must establish a manufacturer’s breach of duty as well as the cause of specific harm.

A warranty is an express or implicit agreement between a manufacturer or distributor and a customer regarding the suitability of the goods. Express warranties can be established using a salesperson’s comments, literature included with the goods or promotional materials. If the vendor fails to fulfill the terms of the promise, argument, or representation regarding the product’s quality or form, the warranty is breached. Implied warranties exist even if no such claims are made. Unless the seller expressly rejects this, a seller implicitly warrants that a commodity is merchantable and fit because he knows the buyer will utilize it.

Strict liability holds a manufacturer or retailer liable for any injury incurred by a faulty product that poses an unreasonable risk to the customer, client, or property. Unlike warranty statements, it makes no difference whether the customer or consumer has a link to the manufacturer. Unlike negligence claims, there is no requirement to show that the maker behaved with reasonable prudence plaintiff merely needs to show that the goods were faulty when they left the defendant’s hands and that the defect harmed the consumer, who must be a reasonably anticipated user.

 Types of defects

The various kinds of defects are as follows ;

a.       Manufacturing defect: The buyer must prove that the product was unsafe for its intended use due to construction or manufacturing defect.

b.      Design defect: A design defect implies that the product was made correctly, but the design poses a risk to users. Because a design error is a problem in the manufacturing process, it usually affects the entire product line rather than a single piece.

c.      Failure to warn: The manufacturer’s responsibility is frequently to warn the user about a potentially harmful use or to provide instructions on how to use the product properly. In most cases, such cautions are provided in the labeling or instructional materials. Furthermore, if a flaw is identified after the product has been sold, the producer must always notify consumers. In general, US legislation is significantly stronger than German law when it comes to product warnings. While German courts typically do not require a warning because the product’s intrinsic hazard is considered self-evident, American courts are more consumer-friendly.

Defenses

The manufacturer may raise a variety of defenses to avoid liability. For example, he could claim that the consumer tampered with or misused the product or assumed the risk. Also, contributory negligence or a lack of proximate cause of injury are two other common defenses. 

Damages

In The United States and Germany, the various forms of liabilities and flaws are indistinguishable, and most of the differences in our practice are seen in the area of damages. Consumers who have been affected by a product can seek damages in the same league as those accessible in Germany. They may also be reimbursed for non-economic damages like pain and suffering, as well as monetary losses such as medical bills and property damage. Non-economic damages in the United States, on the other hand, are frequently significantly more significant than in Germany. More importantly, in the United States, punitive damages may be awarded. Punitive damages are meant to penalize the tortfeasor and dissuade him and others from engaging in similar activity in the future rather than to pay the harmed consumer. As a result, the manufacturer must engage in malicious, evil, or particularly reckless behavior. Punitive damages are not often (in fact, they are rarely) awarded, but when they are, they can be enormous.

Case Laws:

In India, product liability lawsuits have been decided using the doctrines of negligence and strict liability. Historically, however, statutes have been quiet on the issue of seller or manufacturer liability for defective goods and services.

Henningsen v. Bloomfield Motors

In Henningsen v. Bloomfield Motors, Inc (1960), An automobile was bought by the plaintiff from the dealership of the defendant. The plaintiff’s wife was involved in an accident after the steering failed ten days after delivery. The plaintiff filed a lawsuit against the dealer and the car manufacturer. A condition in the plaintiff’s warranty, according to the dealer, absolved the defendant of any liability for personal harm. For 90 days or 4000 miles, the guarantee only covered the repair of damaged parts. However, Henningsen was awarded monetary damages by the court. It was determined that the sale of any object included an implied warranty of safety. Furthermore, because Henningsen’s wife incurred damages, the defendant could not argue that it was not accountable. According to the court, the warranty covered “every anticipated use of the products.”

Liebeck v Mc Donald’s Restaurants

Sheila Liebeck was severely burned after spilling a cup of McDonald’s coffee in her lap. Liebeck was in the hospital for eight days. Her medical therapy lasted two years and included skin transplants.

Liebeck offered her a $20,000 payment to cover her medical bills and lost wages. The matter went to trial after McDonald’s declined to accept an offer of US$800. Liebeck’s legal team was successful in proving that McDonald’s was liable since its coffee was served at a scorching 180°F to 190°F temperature. Coffee was served at a lower temperature of 140 degrees Fahrenheit in other establishments.

In 1994, a jury awarded Liebeck $2.86 million in punitive damages as well as $160,000 in medical costs. The so-called “Hot Coffee Case” became the most divisive product liability case in American history. Finally, the trial judge decreased the final settlement, and the parties agreed on a discrete amount. 

Conclusion

The Consumer Protection Act, 2019 is significantly more extensive and in accordance with global consumer protection laws than the previous Act of 1986. The implementation of a product liability framework is a good reform that will aid in the streamlining of product liability lawsuits. The buyer beware principle has clearly given way to the seller beware principle. Despite certain ambiguities, the new regime is expected to change India’s product liability legal environment. The ease of approaching consumer forums, combined with the strict rule, will only encourage consumers to test these provisions to new heights. Product manufacturers, sellers, and service providers will need to complete their due diligence correctly to meet various legislative requirements. A checklist of such requirements, backed by appropriate legal and technological guidance, would go a long way toward safeguarding their and consumers’ interests. 

The article has been written by Shruti Bose, a student of Christ (Deemed to be University), Lavasa.

The article has been edited by Shubham Yadav, a 4th-year student at Banasthali Vidyapith, Jaipur.

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Denying Opportunity to Eligible Female Candidates to Join NDA is Violation of Fundamental Rights: Plea Filed in Supreme Court

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A bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy of the Hon’ble Supreme Court granted the Centre a final opportunity to file its response on a plea seeking directions to allow eligible and willing female candidates to join National Defence Academy(NDA), appear for the Naval Academy Examination and train at the National Defence Academy.

Petitioner Kush Kalra represented by Senior advocate Chinmoy Pradip Sharma said that the UPSC had issued a notice on June 9 declaring the date of exams for admission to the military force wings of the NDA. One of the eligibility criteria of a candidate applying for the examination is that the person shall be an unmarried male. This condition excludes female candidates willing to join the academy. While male candidates with a 10+2 level of education are considered eligible to sit for the examinations, female candidates with the same level of education are considered ineligible for the same.

The plea stated that the notice is a violation of Articles 14, 15, 16, and 19 of the Constitution. It also said that the NDA denies admission solely based on gender without a justifiable explanation which is a violation of the fundamental rights of equality before the law and equal protection of the law.

It was in the case of Secretary( Ministry of Defence) v. Babita Puniya that the Supreme Court had unequivocally stated that a woman’s gender roles or her physiological characteristics have no bearing on her equal rights guaranteed under the Indian Constitution.

Previously, A Public Interest Litigation was filed by advocate Kush Kalra on 10th March this year challenging the exclusion of women candidates from applying or entering the National Defence Academy and Naval Academy. A three-judge bench headed by the erstwhile Chief Justice of India S.A. Bobde had issued a notice to the Ministry of Defence, Department of Defence, and the NDA.

The bench has listed the matter to August 18 to consider it for interim relief and has asked the Centre to file its response within two weeks.

-Report by VANESSA RODRIGUES

Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR 1964 SC 1882

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Equivalent Citation

1964 AIR 1882, 1964 SCR (8) 50

Bench

HIDAYATULLAH, M.

WANCHOO, K.N.

GUPTA, K.C. DAS

AYYANGNAR, N. RAJAGOPALA

Decided on

29 APRIL, 1964

Relevant Act/ Section

S. 69 OF INDIAN PARTNERSHIP ACT, 1932 (9 OF 1932)

S. 8(2) OF ARBITRATION ACT, 1940 (ACT 10 OF 1940) 

Petitioner 

JAGDISH CHANDRA GUPTA

Respondent 

KAJARIA TRADERS (INDIA) LTD.

Facts 

On  30 July 1955, the respondent Messrs. Kajaria Traders (India) Ltd. and Messrs. Foreign Import and Export Association (exclusively owned by the appellant Jagdish C. Gupta) entered into a partnership to export between January and June 1956, 10,000 plenty of manganese ore to Phillips Brothers (India) Ltd., New York. Each partner was to provide a particular quantity of manganese ore. The agreement has arbitration clauses. The corporation claimed that Jagdish Chander Gupta did not carry out his part of the partnership agreement. The corporation wrote to Jagdish Chander Gupta on February 28, 1959, that they had appointed an arbitrator and asked Jagdish Chander Gupta either to confirm Mr. Kolah’s appointment as the only arbitrator or to appoint his arbitrator. Jagdish Chander Gupta postpones consideration and on St Patrick’s Day, 1959, the corporate informed Jagdish Chander Gupta that as he had not assigned an arbitrator within 15 days, they were appointing Mr. Kolah as the only arbitrator. Jagdish Chander Gupta discovered this. And on March 28, 1959, the company filed a plea under s. 8 (2) of the Indian Arbitration Act, 1940 for the nomination of Mr. Kolah or any other person as arbitrator. Jagdish Chander Gupta appeared and demurred the petition.

Issues before High Court

  1. Whether S. 8(2) of the Indian Arbitration Act was applicable in this agreement because it was not expressly provided in the Letter of Intent that the arbitrators were to be appointed by consent of the parties?
  2. Whether S. 69(3) of the Indian Partnership Act, 1932 petition can be filed because the partnership was not registered?

Judgment by High Court 

 Mr. Jagdish Gupta firstly argued that if the appointment is not made within 15 days of notice, on the application of the party who has given the notice, and following the principle of Audi Alteram Partem, the court may appoint an arbitrator. The Bombay High Court bench consists of Justice Mudholkar and Justice Naik, who agreed on the first contention constructed by Mr. Jagdish.

But the division bench contradicts the 2nd point. Justice Mudholkar believed that the application cannot be filed under s. 69(3) of the Indian Partnership Act, 1932, while Justice Naik has a different opinion. Then the case went to Justice KT Desai who agreed with Justice Naik’s view. And the court held that the application was held to be competent.

Contentions before Supreme Court

After the Bombay High Court Judgement, the appeal was filed in which it was contended that the High Court wrongly interpreted the grounds under S. 69(3) of the Indian Partnership Act, 1932.

Judgment by Supreme Court

The Supreme Court held that the words ‘other proceeding’ in S. 69(3) of the partnership act must receive their meaning and must be unaffected by words’ claim of set-off. Therefore, the appeal is allowed to rescind the decision of the Bombay High Court.

Conclusion 

The judgment answers the question of whether an unregistered firm can initiate arbitration proceedings negatively. Despite the arbitration clause, the arbitration proceedings were barred in this case. Hence, to function like a well-oiled machine, the firm must get registered.

The case analysis has been done by Megha Patel, a 2nd year Law Student at the Mody University of Science and Technology, Laxmangarh, Rajasthan.

The case analysis has been edited by Shubham Yadav, a 4th-year student at Banasthali Vidpyapith, Jaipur.

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Inter-Country Adoption

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Adoption abroad, which is also called transnational adoption, describes the process of a couple or individual adopting a child from a different country, taking full responsibility for their care and maintenance the same way their natural parents did. A surge in international adoptions occurred during the Second World War. As a result of World War II, a large number of children was abandoned, the underdeveloped and developing countries were unable to provide them with a safe home. The idea of international adoption was born as a means of providing children with a healthy and safe environment where they could develop their full potential. In addition, the countries signed the Hague Convention for Protection of Women and Children to provide a framework for inter-country adoptions and to enable various laws in their respective countries to enforce such adoptions. It motivates many to go for adoption legally. Concerning international adoption and child protection, India has ratified the Hague Convention. Following that, India made several amendments to its inter-country adoption law. The adoption process has become more advanced over time regarding both intra-country adoption and international adoption.

Inter-country Adoption and Indian provisions

Inter-country adoption refers a social tradition, whereby, a baby born into one family becomes part of another through adoption, removing old biological lines and establishing new, socially approved ones.[i] In India, adoption was governed by the Hindu adoption and maintenance act, 1956, before The Hague Convention and it does not provide for international adoptions. Adoptions of juveniles and abandoned children are covered by the juvenile justice act 2000. In India, inter-country adoptions had been governed by the guardians’ act, 1890, which requires prospective adoptive parents to apply to the government for the appointment as guardians of the child. The proceeding of appointing a guardian was to be conducted before the district court, which is only authorized to pass an order if it is in the minor’s favour. Later on, a series of developments had made in the laws on transnational adoption, especially in India by the impact of Hague convention guidelines and also through various precedents.

Hague convention

As one of the leading organizations in the area of private international law, the Hague Conference on Private International Law drafted the “Hague Convention on the Protection of Children and Co-operation” regarding International Adoption. The agreement entered into force on 1 May 1995, three years after it was signed on 29 May 1993. The Convention provides formal recognition of inter-county adoptions at the international and intergovernmental levels. The Hague Convention requires a central authority to regulate and control all inter-country adoptions and to serve as the principle for such inter-country adoptions. A subsidiary principle of the Hague Convention is that transnational adoption can only be employed when the children are at risk of abuse or neglect in their country of origin, and it is preferable to place the children locally whenever possible.[ii] Hague Convention Guidelines stipulate that the central authority responsible for adoptions should make sure that the child is of the right age and informed of the adoption and its consequences. A child’s consent is a crucial part and it must be reassured that it has not been obtained through duress or by compensation. The guideline emphasizes preserving the child’s origins, his medical history, and the true parents, but access can also be limited in exceptional circumstances. There are various guidelines provided by the convention to bring the uniform and standard set of rules regarding adoptions abroad to ensure the welfare of the child.

India and Hague convention

The Hague Convention on Protection of Children and Cooperation of International Adoption is ratified by India which leads to the adoption of the same principles as the Hague Convention. For instance, the principles like establishing a system of cooperation between the contracting states to ensure the safeguards are adhered to before a transnational adoption occurs[iii]  were followed in India as well. An independent body under the Ministry of Women and Child Development was created and named “The central adoption resource authority (CARA)”. CARA examines transnational adoptions and establishes guidelines and frameworks with respect to adhering to The Hague Convention guidelines. CARA stipulates that any foreign couple wishing to adopt in India must be sponsored by a child welfare organization or social service agency that is recognized by the government. Inter-country adoption agencies should be affiliated with the respective state or union territory. The agency responsible for the placement of children under inter-country adoption is called a placement agency (PA) and all such agencies must be registered and recognized by the central adoption resource agency (CARA). CARA guidelines encourage intra-country adoption; however, a new guideline allows only three types of children to be adopted. They were abandoned, surrendered, and orphaned children under a legitimate agency. Even though there are various guidelines set up by the CARA with respect to the Hague convention, Judiciary plays a prominent role in dealing with the unspoken issues of inter-country adoption, especially in India.

Precedents and their guidelines

 Among the most prominent lawsuits relating to inter-country adoptions Lakshmi Kant Pandey v Union of India[iv] stays above all. After examining the inter-country adoption process in India, the Supreme Court issued guidelines for inter-country adoption. “Essentially, adoption is the best non-institutional way of rehabilitating a child. For a child to grow best he must be placed in his own culture; therefore, inter-country adoptions should only be considered as a last resort when all other efforts to place him in his country have failed and the child’s welfare demands. In both cases, whether it be adoption within the country or outside the country, the interest of the child shall always hold the utmost priority and all orders thus passed shall be paramount to the interest of the child”.  As a result of the guideline from the case Government of India establishes a regulatory agency, ‘CARA’ in 1989. Thus, the agency setup plays a key role in regulating inter-country adoptions, as well as all other adoption agencies across the country. The court further held that “It is preferable to place a child in international adoption before he or she reaches the age of three.” According to the Supreme Court, “The chances of a child becoming integrated into a foreign environment and culture are greater if he or she is adopted before the age of three”.

During the case of Craig Allen Coates v. State through the Indian Council for Child Welfare and Welfare Home for Children, [v] the SC Court observed that “no adoption can be approved unless clear and convincing reasons are provided for inter-country adoption and the Adoption Reform Act should enforce stricter guidelines on this point”. Here, the SC clearly points out that the motive behind the adoption will be considered as a prominent factor in allowing the adoption. It was brought with an idea to avoid child trafficking.

SC of India had also allowed direct adoption in certain cases. Taking into account the unique circumstances in the case of Mr. Tim Cecil v Unknown[vi], the court held that the Supreme Court of India permitted a direct adoption outside of any of the countries that had ratified the Hague Convention on Inter-Country Adoption.

In the recent case of Varsha Sanjay Shinde & anr. v. Society of Friends of the Sassoon Hospital and others[vii], it was held that once a couple has approved a child, the child cannot be shown to Indian parents, who simply because they are Indian Parents should be given preference over overseas Indians and foreign couples. Through all of these judgments, the Supreme Court makes it clear that the preference should be given to parents of Indian descent, even when adoption is inter-country so that the child can grow and prosper in its own culture and heritage.

Indian judiciary had timely taken effective steps in solving the procedural and also the substantial questions that had been unsolved by the guidelines. In all these cases the judiciary is given prominence to the welfare of the children. The welfare of the children post-adoption guidelines was framed by the judiciary and they play a vital role in resolving the latency issues that arise.

Conclusion

As stated in Lakshmikant Pandey’s case[viii] “Every child has a right to love and be loved, to grow up in a loving and caring environment, and to be protected from both material and moral evils, and only a family can provide this”. In India, inter-country adoption is a relatively new trend. Various amendments and actions have been taken by the government to ensure the enforcement of inter-country adoptions in India and to ensure adoptions in other countries are legal. The Supreme Court has also outlined rules that need to be followed while any inter-country adoption takes place. Where the adoption is based on love and care, many times it was misused. Child trafficking in inter-country adoption has been on the rise, and only a very few cases have been reported. It emphasizes the lack of laws and guidelines preventing such activities. Children are the treasure and they are needed to be protected.

[i] Soura subha ghosh, inter-country adoption procedure, supreme court guidelines- adoption laws in India, http://www.legalservicesindia.com/articles/adopt.htm, accessed on 24.07.2021

[ii] Hague Convention, Article 4

[iii] Hague Convention, Preamble and Article 1

[iv] 1984 AIR 469

[v] 162(2009) DLT 605

[vi] AIR 2011 MAD 247

[vii] 2014(5)ALLMR297

[viii] Ibid,4

This article is presented by Bharatee Preeya A.K., pursuing B.B.A.LL.B (hons) at Alliance University, Bangalore.

Edited by- Deeksha Arora

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NATIONAL JUDICIAL ACADEMY, Bhopal (MP) is Hiring

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The National Judicial Academy provides national level judicial education to judges from across the country
and abroad; undertakes research into justice and judicial institutions; and to strengthen the administration of
justice. Established by the Supreme Court of India as an Autonomous Body chaired by the Hon’ble Chief
Justice of India, NJA is fully funded by the Government of India. NJA’s is located in a state-of-art world
class 62 acre campus located on a picturesque hill-top in the outskirts of Bhopal, overlooking Bhopal’s famous
lakes.


NJA seeks well qualified and hardworking candidates to fill a number of posts on deputation or
contract basis.

Applications, complete in all respect, should be received by NJA (in person/by post/by courier) in a sealed
cover addressed to: The Registrar(Administration), National Judicial Academy, Bhadbhada Road, Suraj
Nagar P.O., Bhopal- 462044 (M.P.) latest by 31.08.2021. The candidate should super scribe the name of the
post applied for on the top of envelop.

General Information:


a) The incumbents opting for deputation must send their application through proper channel
with ‘No Objection Certificate’ and CR Dossier/ Attested copies of the ACR/APAR of the
applicant for the last five years from the employer, with an advance copy to NJA. The terms
and conditions of the deputation service will be governed by Government of India’s Rules
applicable in this regard.


b) Age Limit : (i) Minimum age – 21 years
(ii) Upper age limit – for contract- upto 45 years, for deputation– upto 55 years
(Upper age limit shall be relaxed upto 5 years for the existing employees of NJA)


c) The cutoff date for determining age will be the closing date of application submission.


d) The applicant should submit application in the prescribed format along with self-attested
latest photograph and copies of testimonial in respect of educational qualification, date of
birth, experience, extra-curricular activities caste certificate etc. along with two self addressed envelopes (size 22 x 10 cm and with Rs.5/- postal stamp affixed). If applying for more than one post, separate application should be submitted for each post.


e) No TA/DA will be admissible to attend aptitude/ skill test/interview.

f) The Academy reserves its right to reject incomplete applications or applications received
after the due date.


g) The mode of selection for Group–A post will be either through aptitude/skill test and/or
interview to adjudge the candidates professional and practical ability. Only short listed
candidates will be called for aptitude/skill test.


h) The mode of selection for Group–C posts will be based on merit of the candidate in skill/
written test. Only short listed candidates will be called for skill/ written test.


i) The number of vacancy is subject to change and the Academy reserves the right to fill up
or not to fill up any or all the posts or to short-list the candidates in any grade based on
qualification and experience.


j) Interested candidates may download the application form from Academy website
www.nja.nic.in and send duly filled application in the prescribed format, super scribing the
name of the post, so as to reach in the office of the Registrar (Administration), National
Judicial Academy, Bhadbhada Road, PO Suraj Nagar, Bhopal- 462044 (M.P.) on or before
5.45 p.m. on 31.08.2021.

FOR MORE DETAILS VISIT-

http://www.nja.nic.in/Vacancies/2021/Employment%20Notice%20for%20the%20post%20of%20Manager(DCPR),%20Law%20Associate,%20Driver%20cum%20Attendant%20(13-07-2021).pdf

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HPNLU, SHIMLA is hiring for Teaching & Non-Teaching Posts

Posted on

Applications are invited for recruitment to under mentioned posts on terms and conditions specified. The Prescribed
format of the application forms are available on the University website i.e. http://www.hpnlu.ac.in. . Interested
candidates are required to apply in the prescribed format along with certified copied of requisite/relevant documents and certificates.

Age

Age for direct recruitment- between 18 to 45 years.

The minimum and maximum age limit of 18 to 45 years will be reckoned as on 10-08-2021. The upper
limit is relaxable by five years for candidates belonging to Scheduled Caste, Scheduled Tribes and
Other Backward Classes, Persons with disabilities & Children/Grand Children of Freedom Fighters of
Himachal Pradesh. The upper age relaxation is also available to Ex-servicemen candidates of H.P. as
per provisions of relevant rules/instructions of H.P. Government.

Other Terms & Conditions: –

  1. For the Teaching Posts (Group-A), the qualifications/eligibility and other terms and conditions
    of the appointment and service shall be as prescribed by the UGC Regulations and Himachal
    Pradesh National Law University, Shimla.
  2. For other categories B & C posts, terms and conditions of eligibility, appointment and services
    shall be governed by the relevant rules of the University.
  3. Application fee for Teaching Post, System Analyst and Computer Technician shall be
    Rs. 2500/- and for Computer Lab Attendant Rs. 1000/-, payable by Demand Draft, in favour
    Page | 3
    of Registrar, Himachal Pradesh National Law University, Shimla.
  4. Application form should be accompanied with experience certificate, wherever required, from
    appropriate institution/authority clearly specifying duration of service, pay scale and last salary
    drawn.
  5. Only Bonafide Residents of the Himachal Pradesh shall be eligible candidates to apply for posts
    under group C. Provided that, a candidate shall be eligible for applying for the post of groups
    C if he/she passed, wherever applicable, Middle, Matriculation and 10+2 from any
    School/Institution situated within the Himachal Pradesh.
  6. All further communications related to the above recruitments shall be through letter/ notices
    displayed on the University website i.e. www.hpnlu.ac.in
  7. The envelope containing the applications should be super-scribed with the name of the post
    applied for.
  8. Applications received after the prescribed date and time shall be rejected summarily. The
    University shall not be responsible for postal delay.
  9. The prescribed Application Formats are available on the University website.
  10. The Completed application form may be sent, by post or submitted by hand, to The Registrar,
    Himachal Pradesh National Law University, Shimla; 16 Mile, Shimla-Mandi National
    Highway, Ghandal, District-Shimla, Himachal Pradesh-171014, latest by 10-08-2021,
    5.00 PM

FOR MORE DETAILS VISIT-

https://www.hpnlu.ac.in/

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HC OF JUDICATURE, ALLAHABAD: APPLICATION FOR THE POST OF LAW CLERK(TRAINEE)

Posted on

Applications are invited from all eligible candidates for the post of ”Law Clerk
(Trainee)” in the establishment of High Court, Allahabad/Lucknow Bench carrying a
fixed honorarium of Rs. 15000/- per month with no Dearness Allowance and/or any
other allowances and also without any other perquisite such as residential
accommodation etc. The engagement shall be purely contractual based for a fixed term
of one year. However, the term may be terminated at any time, without any notice.
Number of Vacancies: 94
Essential Qualifications:

  1. Three Years Professional/Five Years Integrated Degree in Law from any Law
    College or recognized University throughout the country. Applications shall be
    accepted from such ‘Law Graduates’ who have not started practice as an
    advocate or engaged in any other profession or vocation/service. Those who
    have appeared in LL.B. (Final Year) in 2020-21 Examination and are awaiting
    results may also apply. Law graduates having scored not less than 55% marks in
    their LL.B. examination are only eligible to apply for the post of Law Clerks
    (Trainee). They will be required to submit their final mark sheet of LL.B.
    Examination at the time of interview, which may be held in the month of
    September, 2021.
  2. Computer knowledge, i.e., Data Entry, Word Processing and Computer
    Operations.
    Age Limit:
    The Candidates must have attained the minimum age of 21 years and must not
    have attained the age of more than 26 years as on 01.07.2021.
    Selection Procedure:
    For making selection, competence would be judged on the basis of interview
    only, which will be held only at Allahabad. The candidates for interview will be called
    only after screening. No T.A. will be payable for attending the interview.
    Nature of work:
    The successful candidates will be attached with Hon’ble Judges sitting at
    Allahabad and Lucknow Bench, Lucknow and shall discharge duties under directions of
    their Lordships. Basically, the Law Clerk (Trainee) will be required to carry out search
    and research on legal points and principles as desired by the Hon’ble Judge with whom
    he/she remains attached. He/she shall assist the Hon’ble Judge in searching out case
    law, articles, papers and other relevant material required by the Hon’ble Judges in
    discharge of judicial as well as administrative work. Besides attending the Chambers of
    Hon’ble Judges, the Law Clerk (Trainee) may also be asked to be present in Court
    during hearing of the arguments, take down or prepare notes in Court. The research
    work assigned to Law Clerk (Trainee) may include performing legal research, drafting
    memorandums and opinion, comments on statutes, relevant to questions of law.
    Assistance from the Law Clerk (Trainee) may also be taken in proper maintenance of
    the case files. Assistance in administrative functioning of the Judge shall also be
    desirable which shall include maintaining of administrative files, preparation of research
    of academic papers, maintaining record of judgments, the points of law decided in
    various judgments by a Judge, maintenance of records regarding administrative
    correspondence etc.
    Apart from the above mentioned duties and responsibilities enumerated above,
    the Law Clerk (Trainee) shall perform any other duty as assigned by the Judge
    concerned with regard to His judicial and administrative functions. The nomenclature
    ”Law Clerk (Trainee)” makes it abundantly clear that they shall be imparted training with
    regard to procedure and substantive law to assist the Hon’ble Judges in discharging
    their judicial and administrative functions. The Law Clerk (Trainee) will also be provided
    the schedule of training and the details of the nature of job, which they have to perform
    during their year of engagement. Specific assignments shall be given by the Hon’ble
    Judge with whom they are attached.
    Restriction on Practice:
    Law Clerk (Trainee), from the date of termination of his/her engagement as Law
    Clerk (Trainee) shall not appear in any case handled by the Hon’ble Judge(s) with
    whom he or she had attached, irrespective whether he/she had or not worked on that
    case during the period of his engagement. The candidates shall furnish an undertaking
    to the above effect on proforma prescribed herein after.
    Other Conditions of Engagement:
    The Law Clerks (Trainee) shall be governed by such rules of attendance, leave
    and other related matters as might be prescribed from time to time by Hon’ble
    Committee/Hon’ble the Chief Justice, High Court of Judicature at Allahabad.
    Period of Engagement:
    The engagement shall be for a fixed term of one year only from the first date
    fixed for joining, which may be terminated without notice at any time.
    Marital Status:
    A candidate having more than one spouse or married to such a person who
    already had a living legally wedded wife/husband, will not be eligible.
    Disqualification:
    (1) A candidate involved in any kind of criminal case whether convicted or
    charge-sheeted shall be barred from applying for the above post.
    (2) Those who have already worked as Law Clerk (Trainee) will not be eligible to
    apply again.
    How to Apply ?
  3. The application forms can be purchased from the counter in the High Court
    Judicature at Allahabad and at it’s Lucknow Bench on payment of Rs. 300/- in
    cash. The applications forms are also available on the official web site of
    Allahabad High Court (www.allahabadhighcourt.in) and may be downloaded and
    used subject to payment of application form of Rs. 300/- to be paid through bank
    draft drawn in favour of Registrar General, High Court of Judicature at Allahabad.
  4. The application form along with one duly attested copy of High School Mark
    Sheet, High School Certificate in proof of age/date of birth, Intermediate Mark
    Sheet, Intermediate Pass Certificate, Graduation/Post Graduation Mark Sheets
    and Certificates and testimonials regarding Extra Curricular Activities and
    Computer Knowledge along with two self addressed envelope (size 5”x10”) each
    bearing postage stamps worth Rs. 40/- should be sent to the Registrar General,
    High Court of Judicature at Allahabad either by Speed Post, Registered Post with
    AD or through Courier.

Application Form-

file:///C:/Users/dell/Downloads/event_9663_26-07-2021.pdf

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Case Analysis: SNOW WHITE FOOD PRODUCTS LTD v. SOHANLAL

Posted on

CASE NUMBER:

Suit number 597 of 1961

EQUIVALENT CITATION:

AIR 1964 CAL 239

BENCH:

Single judge bench, Judge Bijayesh Mukherji presiding.

DECIDED ON:

Friday, 10th January 1964

RELEVANT ACT/SECTION:

  1. Section 68 of the Partnership Act, 1932
  2. Section 28 of the Partnership Act, 1932
  3. Section 67 of Evidence Act, 1872
  4. Section 114 A of Evidence Act, 1872
  5. Order 14 of the Procedure Code

BRIEF FACTS AND PROCEDURAL HISTORY:

Shree Hanuman Transport Company (hereafter referred to as Transport Company) was a firm involved in the shipment business. Snow White Food Product Company Ltd (hereafter referred to as Snow White) contracted the Transport Company for the shipment of two products, namely refined groundnut oil and Balloon brand vegetable product, to Raiganj and Islampur in the district of West Dinajpur. The said delivery was to take place on 20th April 1960. According to the facts of the case presented, the Transport Company, for the benefit of Snow White, had insured the goods to be delivered with an insurance company bearing the name of New India Assurance Co. Ltd. (hereafter referred to as the Insurance Company). The complaint filed by Snow White Company claims that while the goods were in transit, the goods were tampered with and damaged by the partners of the Transport Company, namely Sohanlal Bagla and Madanlal Poddar, also the Insurance Company. The plaintiff claimed damages of sixteen thousand for the goods to be delivered to Islampur and a subsequent amount of rupees nine hundred and thirty-one for the goods to be transported to Raiganj. This comes to a total of rupees seventeen thousand five hundred and thirty-one. Out of this, the Transport Company had already paid the plaintiff rupees four thousand and five hundred. Snow White Food Product Company Ltd brought this suit to recover the remaining damages of Rs 13031.

ISSUES BEFORE THE COURT:

The issues in question before the Hon’ble Court were:

  1. Whether Sohanlal Bagla (first defendant) was ever a partner of Shree Hanuman Transport Company (third defendant)?
  2. Whether Shree Hanuman Transport Company had insured the goods delivered to Snow White Food Products Ltd. from the New India Assurance Co. Ltd for the plaintiff’s benefit (Snow White Food Products Ltd.)?
  3. Whether the consignment called in question were damaged or converted to benefit their use by the defendants when the goods were in transit?
  4. Whether New India Assurance Co. Ltd (fourth defendant) is liable to pay the amount of the claim to Snow White Food Products Ltd.?
  5. Whether the plaintiff is entitled to any reliefs, and if so, then what reliefs must be granted?

RATIO OF THE CASE:

Sohanlal presented certain evidences before the Court sufficient enough to prove that he was not a partner of Shree Hanuman Transport Co. Ltd. To corroborate Sohanlal’s statements in the Register of firm’s entries, Madanlal Poddar and Babulal Saraogl were mentioned as the partners of the Transport Company. Against this evidence, Snow White put before the Court that although the terms on paper were maybe different, Sohanlal, through his various actions, has provided a reasonable reason for Snow White to believe him to be a partner of the Transport Company. It presented before the Court, evidence of official communication between Snow White and the Transport Company through letters signed by Sohanlal on behalf of the firm. Not only this but also the surveyor of the Insurance Company, on instructions from Sohanlal, had sold the damaged good to the highest bidder and returned the proceeds of the sale (Rs 11556) to Sohanlal. Thus, this gives reasonable reason for Snow White to believe him to be a partner of the Transport Company, making him liable to pay for the loss suffered due to the non-delivery of goods.

DECISION OF THE COURT:

After careful consideration of the facts of the said case and taking into account the pieces of evidence and witnesses presented, the Calcutta High Court concluded that Sohanlal had presented himself as a partner when dealings were taking place between the Transport Company and Snow White Food Product Company Ltd. He had also signed documents it the capacity of a partner and thus is qualified as a partner by holding out of the Transport Company. Therefore he was made liable to pay the remaining amount of the claim to Snow White Food Product Company Ltd.

This case analysis is provided by Debasmita Nandi, a first year law student at CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

Edited by- Deeksha Arora

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