Month: September 2022

About the Organization

In 1947, Kothari Legal Services was founded. We work hard to uphold our legacy and offer services to the best of our abilities since we have a solid history and foundation of family lawyers. Our law business was founded with the goal of making a difference, and we are dedicated to handling our customers’ legal needs wherever and whenever they arise. Our team is made up of competent people with backgrounds in real estate, banking, mergers & acquisitions, trade, arbitration, and banking.

About the Responsibilities  

A Legal Associate Position Available at Kothari Legal Services

Location

Pune, Maharashtra

Salary

Pay will depend on work history and, if applicable, current CTC.

Eligibility

• Familiarity with Title and Search Reports
• IBC and DRT
• Conveyance
• Arbitration Matters
• Litigation
• Drafting

How to Apply?

Interested candidates may apply from here: – siddharth@kotharilegalservices. You can even call/whatsaap on +919881042626

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When discussing the idea of plea bargaining, the adage “Justice delayed is justice denied” has the utmost weight. Although the quantity of court cases pending is astounding, people have come to accept it as routine. Because individuals have begun to accept this as their fate, these startling statistics are no longer shocking. Since the start of criminal law, the idea of a plea agreement has not existed. Indian legal experts and jurists took this situation into account when incorporating this idea into Indian criminal law. It is an agreement between the accused and the prosecution, as the name suggests. This idea has been adopted by the criminal justice systems of many nations.

What does Plea Bargaining mean?

Plea bargaining is a pre-trial agreement in which the accused offers to plead guilty in exchange for the prosecution making specific concessions. In exchange for the prosecution dropping more serious accusations, the defendant enters a plea agreement to a lower offense. It is not possible for all crimes; for example, one cannot use a plea deal after committing a serious crime or a crime that carries a death sentence or a life sentence.

History of Plea Bargaining

The jury system did not feel the necessity for plea bargaining because the defendants were not represented by counsel. Later, in 1960, when legal representation was permitted, plea bargaining became necessary. Although the history of American law contains the earliest indications of the concept of plea bargaining. Since the late 19th century, this idea has been in use. Judges encouraged confessions by engaging in this bartering.

India’s Plea Bargaining

Plea Bargaining is not a concept that emerged from the Indian legal system. It is a recent improvement in the Indian Criminal Justice System (ICJS). It was incorporated into the Indian Criminal Justice System after a load of pending cases on the judiciary was taken into account.

The Criminal Procedure Code and Plea Bargaining

Sections 265A through 265L of Chapter XXIA of the Criminal Procedure Code deal with plea bargaining. It was a part of the Criminal Law (Amendment) Act of 2005. It allows plea discussions in certain situations:

• When the acts are not committed against women or children under the age of 14.
• when the maximum sentence is seven years in prison, and
• when the offenses have no impact on the nation’s socioeconomic situation.

The first suggestions for “plea bargaining” in the Indian Criminal Justice System were made in the Law Commission’s 154th Report. Plea Bargaining was described as an alternate strategy that ought to be used to address the massive backlog of criminal cases in Indian courts.

The NDA administration then constituted a committee to address the issue of the growing number of criminal cases, which was headed by Justice V. S. Malimath, a former Chief Justice of the Karnataka and Kerala High Courts. The Malimath Committee recommended that India put the plea bargaining system into place. According to the committee, it will facilitate a quicker resolution of criminal cases and lessen the burden on the legal system. The Malimath Committee also emphasized the effectiveness of the US system to highlight the importance of plea negotiations.

As a result, the draught Criminal Law (Amendment) Bill, 2003 was presented to the legislature, and on July 5, 2006, it finally passed and was put into effect across India. It aimed to change the Indian Penal Code.

(i) witnessed becoming antagonistic

(ii) Plea-bargaining

(iii) Combining Section 498A of the IPC (Husband or relative of the husband of a woman subjecting her to cruelty) with another offense; and

(iv) Scientific expert testimony in cases involving phony money notes.

Finally, it brought the idea of plea bargaining to India by introducing Chapter XXIA Sections 265A to 265L. The following provisions were added by it:-

Anyone charged with a crime that is not punishable by death, life in prison, or a sentence of more than seven years has the option of entering into a plea agreement, according to Section 265-A (Application of Chapter). Violations may be reported to the Central Government, under Section 265 A (2) of the Code.

The violations that affect the nation’s socioeconomic position are listed in Central Government Notification No. SO1042 (II) dated 11/7/2006.

Article 265-B (Application for Plea Bargaining)

1. Anyone who has been charged with a crime is eligible to apply for a plea agreement in cases that are still in progress.
2. Brief information regarding the case must be included in the accused’s application for plea negotiations, which they must submit. It includes the offenses to which the case relates and must be submitted along with an affidavit signed by the accused stating that he has voluntarily applied, a plea agreement outlining the nature and severity of the punishment prescribed by law for the offense, and a statement stating that the accused has never before been found guilty of the same offense.
3. The concerned public prosecutor, the case’s investigating officer, the case’s victim, and the accused will then receive notice from the court of the date set for the plea negotiation.
4. When the parties attend, the court will interview the accused in secret without the other parties to the case present to ensure that the applicant has applied freely.
5. Article 265-C (Guidelines for Mutually satisfactory disposition) outlines the steps the court must take to reach a mutually acceptable resolution. In a case brought based on a police report, the court must notify the public prosecutor involved, the case’s investigating officer, the victim, and the accused to attend a meeting to discuss how best to resolve the case. The Court must notify both the accused and the case’s victim in a complaint case.
6. Article 265-D (Report of the mutually satisfactory disposition) This clause discusses the creation and submission of a report on a mutually satisfactory resolution.

Here, two scenarios could occur, namely

1. If a suitable resolution to the issue has been reached in a conference held by section 265-C, the court is required to prepare a report detailing that resolution. It needs to be signed by everyone who attended the meeting, including the court’s presiding officer.
2. The Court shall record such observation and continue by the provisions of this Code from the stage the application under sub-section (1) of section 265-B has been filed in such matter, if no such disposition has been reached.
   • When a suitable resolution to the case is reached, the method to be followed is prescribed in Section 265-E (Disposal of the Case). The Court must hear from the parties regarding the severity of the punishment or the accused’s eligibility for release on probation for good behavior or after admonition after the proceedings under Section 265-D have been completed and a report has been prepared and signed by the presiding officer of the Court and parties present. The accused may be sentenced to prison or released on probation under the terms of Section 360 of the Code, the Probation of Offenders Act of 1958, or any other applicable legislative laws. When sentencing the accused, the Court may, at its discretion, impose the minimum punishment prescribed by law for the offenses committed by the accused or, in the absence of such a provision, impose a sentence equal to one-fourth of the punishment specified for the offense.
   • The Court’s Pronouncement of Judgment in Terms of Mutually Satisfactory Disposition is discussed in Section 265-F (Judgment of the Court).
   • No appeal may be made against such a verdict, according to Section 265-G (Finality of Judgment), although a Special Leave Petition (under Article 136) or a writ petition (under Article 226 or 227) may be submitted.
   • The powers of the court during plea negotiations are covered in Section 265-H (Power of the Court in Plea Bargaining). These powers include those related to bail, criminal offense trials, and other aspects of how a case is resolved in this court under the Criminal Procedure Code.
   • According to Section 265-I (The accused’s term of detention shall be set off against the sentence of imprisonment), the accused’s period of detention shall be set off against the sentence of imprisonment imposed under this chapter by Section 428 of the Criminal Procedure Code.
   • The declarations or facts provided by the accused in a section 265-B application may only be utilized for the purposes listed in the chapter, according to section 265-K (Statement of the Accused to be Used).
   • This chapter will not apply to any juvenile or child as specified in Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, according to Section 265-L (Non-application of the Chapter).

Kinds of Plea Negotiations

Plea bargaining typically comes in three forms, specifically:

• Sentence Negotiating: The primary goal of this form of negotiating is to obtain a lighter sentence. In a sentencing deal, the offender agrees to admit guilt to the charged offense in exchange for a lenient punishment.
• Charge negotiating: This type of plea bargaining takes place to get less serious charges. This is the most typical type of plea agreement used in criminal cases. In this case, the defendant consents to admit guilt to a lower charge in exchange for the dismissal of more serious accusations. For instance, pleading guilty to manslaughter in exchange for dismissing the murder charges
• Fact bargaining: Due to allegations that it violates the criminal justice system, this is typically not used in court. It happens when a defendant consents to admit certain facts to exclude other facts from the evidence.

Plea Negotiations and Court Decisions

• The Hon’ble Supreme Court attacked plea bargaining in Murlidhar Meghraj Loya v. State of Maharashtra and claimed that it interferes with society’s interests.
• The Supreme Court declared that plea bargaining is against public policy in the cases Kasambhai v. State of Gujarat and Kachhia Patel Shantilal Koderlal v. State of Gujarat and Anr. Additionally, it regretted the magistrate accepting the accused’s plea agreement. Additionally, the Hon’ble Court called this idea a particularly despicable practice. The Court further declared plea bargaining to be illegal and unconstitutional conduct that tends to promote corruption and collusion while tainting the pure source of justice.
• In Thippaswamy v. the State of Karnataka, the Court ruled that it would be against Article 21 of the Constitution to pressure or coerce an accused into entering a guilty plea under a promise or assurance.
• In addition, the Court said that “In such cases, the Court of appeal or revision should set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can if he so desires, defend himself against the charge and if he is found guilty, a proper sentence can be passed against him.”
• The Supreme Court derided the idea of plea bargaining and declared the practice to be illegal and unconstitutional in the State of Uttar Pradesh vs. Chandrika. Here, the Honorable Court held that the plea negotiating process could not be used as a foundation for concluding criminal matters. A merit-based decision must be made in the case. In support of this, the court ruled that if the accused admits guilt, he must receive the proper punishment stipulated by law.
• In the case of State of Gujarat v. Natwar Harchandji Thakor, the court recognized the value of plea negotiations and stated that not every “plea of guilty” is considered to be a component of the legal procedure in a criminal trial should be interpreted as a “plea bargaining” per se. It is a legal issue that must be resolved on a case-by-case basis. The court stated that the entire purpose of the law is to give easy, inexpensive, and quick justice by resolving conflicts, taking into account the dynamic character of law and society.

Reasons to oppose plea negotiations in India

• Mechanism adopted voluntarily

According to the legal clause governing plea bargaining, it is a voluntary process that is only considered when the accused chooses it voluntarily. However, the legislation is mute on the issue of whether or not the settlement achieved is at odds with the goals of the justice system.

• Participation of Police

Critics also criticized the police’s involvement in plea negotiations. Because police in India are notorious for torturing prisoners, The idea of plea bargaining is more likely to make things worse in this instance.

• Corruption

Additionally, the victims’ role in the plea negotiation process is undervalued. The victim’s position in this procedure would encourage corruption, which would ultimately negate the goal of the action.

• A Separate judicial body

The Plea-Bargaining provisions do not establish a separate court authority to review plea-bargaining applications. This is one of the most obvious arguments against it. The court’s in-camera questioning of the accused may cause public skepticism and mistrust of the plea-bargaining process. Any court judgment denying an application that is not kept confidential may result in bias against the applicant.

Justifications for plea negotiations in India

• Quickly Removing Cases

Because there is no chance of losing the case outright at trial, plea negotiations are advantageous for both the prosecution and the defense. Since both parties have bargaining power, it makes it easier for attorneys to represent their clients. Long-running disagreements can be settled in this way, and the court won’t have to deal with a backlog of case files. Plea bargaining also helps the courts save limited resources for the cases that need them.

• Less serious infractions on a person’s record

In a nation like India, society is essential. A person finds it extremely challenging to survive once they are stigmatized by society. Ostracism frequently follows stigmatization. Plea bargaining in this situation enables a defendant to enter a guilty or no contest plea in exchange for a decrease in the number of charges or the severity of the offenses. As a result, less serious violations are listed on an accused person’s official court records. This may work in the accused’s favor if he is ultimately found guilty.

• It keeps quiet about it

Plea bargaining is also a useful tool for preventing exposure because the longer the case drags on, the more attention the accuser receives. Plea bargaining thereby prevents such publicity by hastening the resolution of the case. renowned and common People whose livelihood depends on their standing in the community and those who wish to avoid unwarranted shame. When compared to news of a trial, the news of the plea itself may be public, but it only persists for a brief period.

• A painless strategy

India is renowned for its protracted legal dispute. Many court cases drag on for 8 to 10 years, which hurts both sides. In certain cases, the accused was sentenced to longer time in prison than the maximum allowed by law. Such incidents demonstrate a serious violation of their human rights. A person can enter a guilty plea through plea negotiating without retaining legal counsel. However, if they waited to go to trial, they would have to look for and engage a lawyer, as well as invest time in working with the attorney to prepare for trial and pay the attorney. The idea of a plea bargain protects these people’s interests by sparing them the difficulties they experience when the case is still pending.

How to manage plea negotiations?

There is no exact science or quantitative technique to become adept at plea bargaining. Experience is the only way to become an expert, and the only way to gain experience is to do the thing. One needs to be skilled at negotiating and communicating to become a master of plea bargaining. Plea Bargaining ultimately comes down to negotiating. How well you negotiate on your client’s behalf is key. The better outcomes you get for your client, the better bargainer you are. Knowing the facts and the pertinent laws is necessary to handle plea negotiations. Your ability to persuade people is one way that you stand out. Every case in the legal field presents a fresh opportunity to learn because cases are unique in and of themselves. You will get more skilled at plea negotiating as you negotiate more cases. In addition to these abilities, the ability to reason logically and analytically is particularly important for plea bargaining because it is exceedingly difficult to refute a claim supported by solid reasoning. As a result, having a combination of all these abilities makes you an expert at plea negotiations.

Conclusion

Plea bargaining is not altogether a foreign concept in India. It was acknowledged when India received its constitution in 1950. The Indian Constitution’s Article 20(3) forbids self-incrimination. People claim that plea bargaining violates the aforementioned article. However, as time went on and the burden on the courts increased, the Indian court realized the importance of plea bargaining for the country’s judicial system. It can be difficult to embrace change at first, but society and our legal system both need to develop. Everything has benefits and drawbacks, and both must be considered in order to draw a wise judgment. In any event, it would not be fair to reject anything solely because of its drawbacks. It is inappropriate to expect the notion of plea bargaining to be perfect in India because it is still in its infancy. Only conversation, argument, and debate can make it better.

References

1. Encyclopedia Britannica．[Online][Cited: 21 September 2022．]https://www.britannica.com/topic/plea-bargaining．
2. Plea Bargaining in Indian Legal System．[Online][Cited: 21 September 2022．]http://www.legalservicesindia.com/article/1836/Plea-Bargaining-in-Indian-Legal-System.html．
3. Tripaksha Litigation．[Online][Cited: 21 September 2022．]https://tripakshalitigation.com/concept-of-plea-bargaining/．
4. Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929
5. Kasambhai v. State of Gujarat (1980) AIR 854
6. Thippaswamy v. the State of Karnataka, [1983] 1 SCC 194
7. State of Uttar Pradesh vs. Chandrika 2000 Cr.L.J. 384(386).
8. State of Gujarat v. Natwar Harchandji Thakor (2005) 1 GLR 708

This article is written by Kanika Arora, from Delhi Metropolitan Education (Affiliated to GGSIPU).

CASE NUMBER

Appeal case filed in Calcutta High Court against the order of acquittal passed by Session Court of Midnapore in trial no 18 of March, 1980.

EQUIVALENT CITATIONS

1984 CriLJ 1535

BENCH

B. Chakrabarthi, J. Chaudhri

DECIDED ON

16 June, 1983

RELEVANT SECTION/ ACT

Indian Penal Code, 1860

Section 90 of the Indian Penal Code states that a consent is not a consent if given by the person under fear of misconception and injury or consent of a person who is of an unsound mind or intoxication unable to understand the nature and consequence of which he has given consent or consent of child unless contrary appears from context if the consent is given by the person who is under twelve years of age.

Section 376 of the Indian Penal Code states the punishment of rape offence except in sub-clause (2) any person proved to commit rape shall be punished with imprisonment that may not be less than seven years but for life or for a term that extends to ten years and also liable with fine unless the women raped was his own wife and is not under twelve years of age, in which he shall be punished with the imprisonment of term extended to two years or with fine or with both. Only in the special case of judgment, the imprisonment would be less than seven years.

FACTS OF THE CASE

It is the case where the de facto complaint is filed against the order of the acquittal passed by the Additional Sessions Judge acquitting the accused charged with section 376 of the Indian Penal Code.

In August 1978, the complainant filed a police report saying that the accused opposite party No. 2, a teacher at the nearby village school, used to visit her home and one day while the complainant’s parents were away from the house, told her he loved her and that he wanted to marry her. The complainant requested that the marriage be consummated. The person is accused of promising to do so and that he would personally secure her parents’ approval. Relying on this promise, she began living with the accused. This cohabitation lasted for a couple of months, during which time the accused would frequently drop by her home at odd hours and occasionally spend the night with her. She eventually became pregnant, and when she requested that the marriage take place as soon as possible, the accused suggested having the child aborted in exchange for agreeing to marry the complaint after the Panchayat elections. The accused eventually abandoned the commitment and ceased coming to the complainant’s house because she had refused to have an abortion. Debra P.S. Case No. 20 was started based on this accusation. The accused asserted his innocence and said that the accusation was brought against him by a political competitor in an effort to extort money from him; the accuser was a woman of easy virtue.

At the trial stage, it was to be seen whether the age of the consent was there and whether the consent was fraudulently obtained by section 90 of the Penal Code. The judge observed that even when there is a whole false promise is given yet the accused is not liable for the rape offence as the consent of intercourse is not given based on the misconception of fact. There is no concept of fake marriage. The accused did not come under the provision of section 376 of Indian Penal Code so the accused was acquitted. The petitioner has filed a revisional application and obtained the rule

ISSUE

1. Whether the girl was below the age of giving consent or not?
2. Whether the consent was obtained fraudulently or using any force or coercion and was hit by section 90 of the Indian Penal Code?

JUDGMENT

During the trial, two questions were asked about the age of the girl; whether the girl was below the age of consent for intercourse or not; and whether there was any fraud in obtaining the consent of the girl or whether the consent of the girl was acquired by the use of any force or coercion. Firstly, on the question of the age of the girl to give consent for this sexual intercourse, it was clear from the trial that the girl was over 16 years old at the time of the commission of the offence by the accused, as claimed by the accused. Regarding the other issue, whether the complainant’s alleged consent fell under the scope of Section 90 of the Penal Code, the learned Judge made the following observation: Given the circumstances of the case, even if it is assumed that a wholly false promise was made, the accused could not be held accountable for the crime of rape because the accused’s consent to the alleged intercourse was not given under a “misconception of fact” as defined by Section 90 of the Penal Code.

His exact finding is “In terms of the Code, a false promise is not a fact. If the accused had ravished the girl while pretending to be the girl’s husband or in a false marriage, the situation might have been different.” The learned Judge concluded that the act done by the accused did not fall under the purview of the Penal Code and, as a result, cleared him of the offence under Section 376 of the IPC. The failure to maintain the promise of marriage does not come under the misconception of fact under section 90 of the Indian Penal Code. In order to come up with the meaning of misconception, there must be proper evidence. This matter would be held differently if there is a belief made that they are already married. If a fully grown girl consents for sexual relationship and the sexual relationship continues until she becomes pregnant it is not an act induced in section 90 of the Penal Code that is the misconception of fact.  The revision application failed.

This article is written by Sree Lekshmi B J; third-year law student of Sastra University, Thanjavur.

Introduction

Children are viewed as the personification of innocence in a human form. Children are the most pristine manifestations of humanity because they are unaffected by materialistic concerns. It is true that a nation’s fate can be effectively predicted by the state of its women and children. However, when kids are compelled to work and earn a living, their childhood purity, innocence, and morals are taken from them. India, home to the greatest youth population in the world, has one of the oldest and most significant issues with child labour. Despite the fact that the country’s politicians have passed numerous laws, child labour is still pervasive in many places, particularly in rural India.

Child labour is a widespread issue that is not specific to any one nation. The use of children in any type of manual labour is referred to as “child labour.” A “child” is defined as a person under the Child Labour (Prohibition and Regulation) Act, 1986 as someone who is under the age of 14. A child is compelled to labour and provide for his or her family at a young age when they should be expected to develop, enjoy childhood to the fullest, pursue education, and develop strong moral principles.

Article 23 of the Indian Constitution prohibits all forms of forced labour. Article 24 stipulates that no child under the age of 14 may be employed to conduct hazardous employment. Similarly, Article 39 specifies that “the health and vigour of workers, men and women, as well as children’s tender age, are not mistreated.” Similarly, the Child Labour Act (Prohibition and Regulation) 1986 forbids children under the age of 14 from working in hazardous industries or procedures. The Child Labour (Prohibition & Regulation) Amendment Act 2016 outlaws the employment of children under the age of 14 in all occupations and processes, as well as the employment of adolescents (14-18 years) in scheduled hazardous activities and processes.

Children’s participation in the informal economy and home-based jobs is increasing. Children work in agricultural, manual, domestic, and hazardous industries, such as matchbox, rag-picking, brick kilns, beedi-rolling, and so on. The most heinous kinds of child labour entail children being exploited, separated from their families, subjected to dangerous risks and illnesses, and often left to fend for themselves on the streets of major cities at a young age. Slavery, Child Trafficking, Debt Bondage, Serfdom, Forced Labour, and begar are the worst forms of child labour, according to the International Labour Organization.

Education is an essential component as well as one of the most significant tools of social advancement. A country’s growth might be praised or devalued based on its literacy rate. Civil upheaval and other social calamities lead to a shortage of knowledge. Child labour is one of the effects that bring our social behaviour about the country’s destiny into question. Every aspect of civilization, even this one, has been devastated by the worldwide pandemic. Working from home and taking online classes may appeal to a specific demographic. It has been a catastrophe for the remaining impoverished. The situation worsened for the children who had been exposed to the virus, and the struggle for the comfort of the fortunate intensified.

As a diverse country with different civilizations, India conforms to legal boundaries that are equally tolerant of other traditions. Education allows us to make distinctions between good and bad norms. Educational cultures should be regarded as the cornerstone of advancement among distinct civilizations. The research examines all of the various aspects of child labour, as well as the role of education in eradicating it. It is difficult to oppose social taboos without schooling a country’s people, but it is much more difficult to combat social taboos with educated individuals who are not socially conscious.

Importance of Education

Education is the component that contributes to human resource development, which includes a better and more sustainable natural upbringing for everybody. The major goal of the educational system is to give knowledge skills while also transmitting some key values. Economically, the final education package will differ between countries and cultures. In another dimension, it has been observed that the limited number of schools, their absence, the clash of school time and agricultural operations, the cost of schooling, and the limited nature of providing jobs opportunities to enter the labour market facilitate the route of children belonging to the state class. Children are eager to learn, but only with the proper authorization of their owners and parents.

They are particularly concerned about the cost of higher education and other expenses, therefore they want it to be free and close to their house. More than 86 million rural children in the age range of 5-14 years have not been enrolled in the school register, out of 140 million. In rural areas, approximately 62% of children do not attend primary school. Whereas Article 45 (Directive Principles of State Policy) specifies that “the state should attempt to offer” free and obligatory education for all children till the age of 14 years within a period of ten years from the start of this constitution.” However, compulsory schooling for children as an assimilation technique has been proved to be misleading. As a result, the phenomenon of child labour is the result of such apathy toward education. As a result of this disregard for education, the issue of child labour has emerged.

It not only helps children gain vital skills but also allows them to have a respectable life in the future. Education and training are essential drivers of social, economic, and democratic advancement. The elimination of all educational expenditures will result in the education of a huge portion of society. A strategy based on educating children and dragging them out of poverty will lessen the amount of child labour cases we now confront. No one has the ability to reject education as a fundamental right. It helps to change people’s perspectives on life and makes them better people.

Education is a lifelong endeavour. It commences when we are born and concludes when we die. It exists in all societies and takes numerous forms, ranging from the “school of hard knocks,” or learning via experience, to formal institutional learning—from post-industrial to non-industrial communities, rural to metropolitan settings, and young to elder learners. Education fosters critical thinking skills. This is crucial for teaching someone how to utilize intellectuals while making pronouncements and dealing with others. Education enables an individual to achieve basic employment qualifications and increases their chances of obtaining better jobs and a better way of life.

Child labour traps and encompasses them to a life with few prospects. As a result, it is critical to guarantee that every child is safeguarded and not exploited for cheap labour. Education has the potential to transform societies and the planet in general. Education is a strong instrument for making the world a better place to live. Education minimizes societal violence and crime. Teaching people to read has been found to reduce criminal behaviour. The Melissa Institute for Violence Prevention and Treatment, for example, is a non-profit organization that employs education to prevent violence and crime. Education fosters optimism for the future. One of the most profound consequences of education on society is the ability to give individuals hope that they may improve their situation in life.

Suggestions and Conclusion

A range of variables can contribute to poverty, child labour, and unemployment. For all we know, education is not only a solution, but also the most significant component of the formula, and without it, we cannot even contemplate the success sector. Instead, we should go forward and promote awareness about the value of education. Concerning our birthright to equality, it is only through education that we discover the worth of our own rights and have a better grasp of our duties and obligations. Millions of individuals who work as labourers or are compelled to work are unaware that they have the same rights as their employers.

There is simply one constitution that governs all of the country’s residents. No one is unusual in the perceptiveness of law. We can all agree that there are numerous ways to get information, but education provides us with greater power. And no nation can be as prosperous as one in which the majority of its population has access to self-development and self-awareness opportunities. We have not yet found a flawless means to permanently stop child labour since, despite having a remedy in our hands, it still remains. People do not recognize the link when the government implements legislation for the poor, and they do not trust that the government understands what they are going through and their hardships.

As a result, if the government enacts a regulation mandating parents to take their children to school or suffer fines, they will be obliged to comply. They feel they are ruled by a strong organization with conflicting interests, therefore they frequently lie about taking their children to school, often merely to escape a fine. We must promote mutual understanding between provider and receiver, with both sides working toward the same objective, as well as societal progress through education. Absolutely, education is the greatest way to deal with child labour. As an outcome, the government must teach children to evade child labour.

The government should propose measures to assist parents in seeing the benefits of education in their own unique ways. Parents must recognize that they are not required to educate their children, but must do it for their own benefit. Education helps generations grow, and while growth may not be as quick as we would want, it is a continuous and dependable process. A law is only beneficial if it is followed correctly. Rather than the way the government puts out all of the policies for citizens, we should improve the quality of execution. Following the passage of each law, the government should review its execution and implementation to determine how far it has proceeded.

References

1. www.indiacelebrating.com
2. www.ilo.org
3. www.legalserviceindia.com
4. “A Critical Analysis of Child Labour in India” <A Critical Analysis of Child Labour in India – Free Essay Example – Edubirdie>
5. Child Labour laws in India < child labour: all you need to know in Indian context – iPleaders>

This article is written by Devishee Arora, a 4^th year B.COM LLB (Hons.) student at Amity Law School, Noida.

About the Organization

In 2020, Gadi & Associates (or “GnA”) was established in New Delhi. The GnA team addresses a range of issues from different industries and areas. Corporate and commercial law, dispute resolution, and real estate are some of our professional areas. In order to provide effective and efficient counsel, we cater to the needs of all of our clients and strive to take a comprehensive approach to each of our problems.

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A lawyer with two to four years of experience is needed by our Corporate Commercial division.

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Interested candidates may apply from here: – admin@gnalawyers.com

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For its litigation unit in Panchkula, Paramis Legal is seeking an associate. The work is mostly focused on the high courts in Punjab and Haryana. However, the associate will also have access to the trial court.

As an associate you are required to: –

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Location

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Stipend

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• 0–2 year experienced attorneys. (Freshers may apply)

How to Apply?

Interested candidates may apply from here: – adv.aarushigarg@gmail.com

Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.

For regular updates, we can catchup at-

WhatsApp Group:

https://chat.whatsapp.com/G4bxdgRGHY8GRzOPSHrVwL

Telegram:

https://t.me/lexpeeps

LinkedIn:

https://www.linkedin.com/company/lexpeeps-in-lexpeeps-pvt-ltd

About the Organization

Artha Legal was founded in 2012 and has more than 18 years of industry experience. Knowledge of how to resolve disputes involving: construction contracts, joint development projects, the supply, installation, and commissioning of equipment; lease agreements; leave and licence agreements; consulting contracts with public bodies; disputes involving bids; the sale of goods; shareholders’ agreements; and joint ventures.

About the Responsibilities  

hiring freshers.

Eligibility

• 0–3 year experienced attorneys.
• graduates from the business school with expertise in taxes, accounting, and M&A.

How to Apply?

Interested candidates may apply from here: – info@artha-legal.com

Disclaimer: All information posted by us on Lexpeeps is true to our knowledge. But still, it is suggested that you check and confirm things on your level.

For regular updates, we can catchup at-

WhatsApp Group:

https://chat.whatsapp.com/G4bxdgRGHY8GRzOPSHrVwL

Telegram:

https://t.me/lexpeeps

LinkedIn:

https://www.linkedin.com/company/lexpeeps-in-lexpeeps-pvt-ltd

-Report by Vedanti Wanjari

It has been held by the Supreme Court in the case of The Commissioner, Trade Tax, Uttar Pradesh Vs. M/s. Radico Khetan Ltd. that the power of Section 34 can be exercised only in a case where the transfer of immovable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be to defraud any such tax and other dues.

FACTS

M/s. Shaw Scott Distillery (P) Ltd., Rampur, the original assessee, owed trade tax in the amounts of Rs. 11,28,877 and Rs. 53,89,035 for the years 1980-1981, and 1981-1982 respectively. The recovery process had started and a certificate of recovery was issued. The equipment, tools, and products that belonged to the original assessee were purchased by the respondent for an amount of Rs. 12,12,000/-. The assessing officer (AO) discovered that the original assessee had transferred the aforementioned property during the pendency of ongoing assessment proceedings inorder to deceive the Revenue Department. As a result, the recovery certificate was issued in accordance with Section 34 of the U.P. Trade Tax Act in the name of the original assessee and endorsed by the assessment officer concluding the transfer to be void and to be recovered from the purchaser. This endorsement was challenged by the respondents which was initially dismissed but on a second appeal, it was held by the trade tax tribunal that the recovery certificate and the endorsement were bad in law. The appellants filed a revision application before the High Court which was dismissed. Feeling unsatisfied by the decisions of the High Court of Judicature in Allahabad in the area of trade, the appeal had been filed.

COURT’S DECISION

On April 15, 1990, the recovery certificate was issued against the initial assessee. Consequently, when the assessee transferred its immovable property, there was no proceedings under the Act for value/consideration. To the detriment of recurrence, it is remarked that given the case’s particular events and circumstances as previously described, Section 34 of the Act shall not be applicable in any way. It was observed

“Section 34 of the Act shall be applicable only in a case where there is a transfer of immovable property belonging to the original assesee, during the pendency of any proceedings under the Act with the intention of defrauding any such tax or other dues. As per proviso to Section 34, nothing in Section 34 shall impair the rights of a transferee in good faith and for consideration. Thus, the power of Section 34 can be exercised only in a case where the transfer of immoveable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be with the intention to defraud any such tax and other dues.”

It was further held that given the circumstances, the High Court did not err in dismissing the revision applications and upholding the Trade Tax Tribunal’s rulings that had set aside the endorsement of the recovery certificate that had been granted in favour of the original assessee against the purchaser.  In light of the aforementioned and the reasons already indicated, both appeals are rejected and should be dismissed as a result.

-Report by Nandani Soni

It was held by the Supreme Court of India that the order passed by the High court convicting the accused must be quashed and the appellants must be acquitted.

FACTS

An appeal had been registered against the order passed by the division bench of the High Court. The appellants namely, Chaitu Gowala and Ajay Ahari were tried for the offences under sections, 392/149/302/148/323 IPC for having murdered the Managing director of the company in which they were working, named Rupak Kumar Gogoi. Eyewitnesses were examined by the prosecution, who had identified the appellants and the other accused. After the trial, the trial court acquitted 57 of the accused and convicted 13 of them. The present appeal only remained for Chaitu Gowala and Ajay Ahari.

APPELLANT’S CONTENTION

The learned counsel who appeared on behalf of the accused stated that the appellants were merely office bearers at that time and the labourers gathered while they were talking and attacked. They further submitted that there was no evidence to prove that the appellants had in fact committed the offence, hence the conviction of the accused becomes baseless.

RESPONDENT’S CONTENTION

The eye witnesses saw the appellants engaging with the mob and talking to them in their language. Therefore, the appellants were rightly convicted under Section 149 of IPC.

COURT’S DECISION

The court observed that the prosecution failed to gather any concrete evidence for the offences, it was proved that the appellants were merely office bearers at that time and there was hardly any evidence that the appellants even instigated the mob. It was observed:

“If the entire evidence and the deposition of the eye witnesses are scanned, it appears that in fact the appellants were present there as office bearers of the Union. There were some disputes with respect to wages. Even as per the deposition of PW3, on being called, the appellants entered into the office room but soon both of them came out and told the assembled labourers that the Managing Director would distribute their dues and asked them to go to the place where dues were to be distributed. Despite the same, the labourers protested that they would not accept anything other than the full dues and they started shouting…….. in absence of any concrete evidence that the appellants attacked and/or caused any injury to the deceased and/or even the PSO and in absence of any evidence what was uttered by the appellants – accused in their own language and in absence of any evidence that the appellants instigated the labourers – others co-accused, we are of the opinion that the appellants cannot be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC.”

Therefore, the decisions of the High court and the Trial Court were set aside as far as the appellants were concerned and the punishment for the other accused was confirmed.

-Report by Khushi Neb

The Delhi High Court in a recent judgment in Morgan Securities And Credits Pvt. Ltd. vs Videocon Industries Ltd held that The arbitrator must exercise the discretionary power to grant post-award interest reasonably and in good faith, taking into account all relevant circumstances.

FACTS

A contract between the appellant and the respondent was signed on January 27, 2003, and it allowed the respondent to use the appellant’s bill-discounting services. In accordance with the contract, the appellant paid out Rs. 5,00,32,656. The fees were still owed. On 10 January 2006, the appellant served a notice on the respondent requesting payment of the principal sum of Rs. 5,00,32,656 as of the default date of 17 April 2003, as well as past-due interest. The appellant sent out a notification on January 31, 2006, invoking the arbitration provision of the contract because the respondent had not made the required payment. The sole arbitrator rendered an arbitral award in favor of the appellant on 1 March 2013 stating interest at the rate of (i) 21% per annum has been granted from the date of default to the date of the demand notice; (ii) 36% per annum with monthly rests from the date of the demand notice to the date of award (“pre-award interest”); and (iii) 18% per annum on the principal amount of Rs. 5,00,32,656 from the date of award to the date of payment (“post-award interest”). The appellant challenged the said award in Delhi High court where the petition was dismissed holding that the Arbitrator had in his discretion restricted the post-award interest to the principal amount and that the court would not interfere with the exercise of discretion. Following this, the appellant filed an appeal in the Supreme Court.

APPELLANT’S CONTENTION

Quoting the Hyder Consulting case if pre-award interest is awarded on the principal sum, the aggregate of the principal and the pre-award interest is the ‘sum’ on which post-award interest must be granted and once pre-award interest is granted on the principal sum under Section 31(7)(a) of the Act, the interest award loses its character as interest and takes the color of the awarded ‘sum’ for post-award interest under Section 31(7)(b) of the Act. Also, since the arbitral award is silent on post-award interest on the component of interest, the appellant is entitled to the statutory rate of interest on the aggregate of the principal and pre-award interest under Section 31(7)(b) of the Act.

Quoting the SL Arora case the discretion of the arbitral tribunal under Section 31(7)(b) of the Act was only with respect to the rate of the post-award interest and here the arbitrator has awarded post-award interest only on the principal sum solely in view of the judgment in SL Arora. The arbitrator only has the discretion to determine the rate post-award interest. The Arbitrator does not have the discretion to determine the ‘sum’ on which the post-award interest is to be granted; and The contention that Section 31(7)(b) of the Act would be inapplicable in cases where the arbitrator has awarded post-award interest by exercising discretion is not borne out of the decisions in SL Arora or Hyder Consulting (supra).

RESPONDENT’S CONTENTION

Section 31(7)(b) is qualified by the phrase “unless the award otherwise directs and would only be applicable where an arbitral award is silent on the component of post-award interest. Under Section 31(7)(b) of the Act, the arbitrator has the discretion to (a) grant post-award interest; (b) determine the quantum over which the post-award interest should be granted; and (c) determine the rate at which the interest should be calculated; and In Hyder Consulting, a three-Judge Bench of this Court overruled SL Arora to the extent that the latter decision held that the arbitral tribunal does not have the power to award interest over interest. However, in Hyder Consulting, it was not held that it is mandatory that the post-award interest ought to only be granted on the aggregate of the principal and the pre-award interest.

COURT’S DECISION

Keeping in view Justice Bobde’s opinion in the Hyder Consulting case, held that the arbitrator may grant post-award interest on the aggregate of the principal and the pre-award interest.

“According to Section 31(7)(b), if the arbitrator does not grant post-award interest, the award holder is entitled to post-award interest at eighteen percent. Section 31(7)(b) does not fetter or restrict the discretion that the arbitrator holds in granting post-award interest. The arbitrator must exercise the discretionary power to grant post-award interest reasonably and in good faith, taking into account all relevant circumstances. In view of, the above discussion, the arbitrator has the discretion to award post-award interest on a part of the ‘sum’; the ‘sum’ as interpreted in Hyder Consulting. Thus, the award of the arbitrator granting post-award interest on the principal amount does not suffer from an error apparent. Hence, the appeal is dismissed.”