Author: LEXPEEPS editor

S.no	Contents
1.	Introduction
2.	What is Suspension?
3.	What is Dismissal?
4.	Decoding the Differences between Suspension and Dismissal in the Indian Parliament
5.	Legal Statutes Involving Suspension and Dismissal
6.	Case Laws
7.	Conclusion

Introduction

To be known as the World’s Largest and Fastest Growing Democracy isn’t as easy as it seems to be on paper. The daily reports and the Analysis would present the Nation to be at the zenith of its Democratic Practices, but deep down, are some rooted issues which are highlighted quite scarcely

The halls of Parliament are often filled with heated debates, passionate arguments, and fiery rhetoric. However, amidst all the chaos, there is one thing that is essential for maintaining order and decorum – the power to suspend or dismiss a member.

The functioning of a parliament or legislative assembly is essential for any democracy. It is the place where representatives of people sit together to discuss and make laws for the welfare of the country. But what happens when the power to suspend or dismiss a member is abused? What happens when the disciplinary mechanism is used as a tool to suppress dissent or opposition? These questions have become increasingly relevant in recent times, as lawmakers around the world grapple with issues of free speech, political correctness, and political correctness gone wrong.

In such cases, the speaker or the presiding officer of the house has the power to take action against the errant members by suspending or dismissing them from the house. This article aims to discuss the difference between suspension and dismissal and their relevance in parliamentary proceedings.

The power to suspend or dismiss a member is derived from the rules and procedures of the house, as well as the Constitution in some cases. The presiding officer of the house, such as the Speaker in the UK or the Lok Sabha in India, is typically responsible for enforcing disciplinary actions.

Recently, in the Indian parliament, several opposition MPs were suspended for their unruly behaviour during the monsoon session. The speaker suspended them for the remaining period of the session, which led to a controversy over the extent of the speaker’s powers to suspend members. This incident once again highlighted the need to understand the difference between suspension and dismissal.

What is Suspension?

Suspension means to bar a member from attending the house proceedings for a specific period. The presiding officer of the house has the power to suspend a member if they violate the rules of the house or indulges in any disruptive behaviour. The power to suspend a member is derived from Article 105(2) of the Indian Constitution^[1], which grants each house of parliament the power to punish its members for contempt or disorderly conduct. The rules and procedures of the house further elaborate on the circumstances under which a member can be suspended.

According to Rule 373 of the Lok Sabha Rules of Procedure and Conduct of Business^[2], a member can be suspended for any of the following reasons:

• Continuous disregard for the authority of the Chair
• Wilful obstruction of the business of the house
• Use of unparliamentary language or making defamatory remarks
• Display placards or shout slogans in the house
• Physical attack or assault on another member or a member of the house staff

Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business^[3] provides for the suspension of a member for any of the following reasons:

• Gross disorderly conduct
• Wilful obstruction of the business of the house
• Refusal to obey the Chair’s order
• Use of unparliamentary language or making defamatory remarks
• Display placards or shout slogans in the house

Once a member has been suspended, he or she is barred from attending any meetings of the house or any committee of which he or she may be a member. The member is also not allowed to enter the parliamentary premises during the period of suspension.

The period of suspension can vary depending on the severity of the offence and the discretion of the presiding officer of the house. In some cases, a member may be suspended for a few days or weeks, while in other cases, the suspension may last for the entire duration of the session.

It is important to note that a suspended member continues to be a member of the house, and his or her seat is not declared vacant. However, during the period of suspension, the member is not entitled to receive any salary or allowance from the parliament.

What is Dismissal?

In the Indian Parliament, dismissal refers to the expulsion of a member from the house. It is a severe disciplinary action that is taken when a member has committed a serious offence that is considered to be a breach of the privilege of the house.

The power to dismiss a member is derived from Article 105(3) of the Indian Constitution^[4], which grants each house of parliament the power to expel its members for misconduct or breach of privilege. The rules and procedures of the house further elaborate on the circumstances under which a member can be dismissed.

According to Rule 374 of the Lok Sabha Rules of Procedure and Conduct of Business^[5], a member can be dismissed for any of the following reasons:

• Breach of the privileges of the house
• Refusal to obey the Chair’s order
• Wilful disregard of the authority of the Chair
• Use of unparliamentary language or making defamatory remarks
• Physical attack or assault on another member or a member of the house staff

Similarly, Rule 256 of the Rajya Sabha Rules of Procedure and Conduct of Business^[6] provides for the dismissal of a member for any of the following reasons:

• Breach of the privileges of the house
• Refusal to obey the Chair’s order
• Wilful disregard of the authority of the Chair
• Use of unparliamentary language or making defamatory remarks
• Physical attack or assault on another member or a member of the house staff

Once a member has been dismissed, his or her seat is declared vacant, and a by-election is held to fill the vacancy. The member is also not eligible to contest any by-elections for the remainder of the term of the house. It is important to note that the power to dismiss a member is a discretionary power of the house, and is exercised only in the most extreme cases. The decision to dismiss a member is taken by a vote of the house and requires the support of a majority of the members present and voting.

Dismissal stands to be a severe disciplinary action that is used in the Indian Parliament to maintain discipline and uphold the privilege of the house. The power to dismiss a member is derived from the Constitution and the rules and procedures of the house and is exercised only in the most extreme cases. The decision to dismiss a member requires the support of a majority of the members present and voting, and the seat of the dismissed member is declared vacant.

Decoding the Differences between Suspension and Dismissal in the Indian Parliament

Suspension and dismissal are two different disciplinary actions that can be taken against a member of the Indian Parliament for breach of privilege or misconduct. While both actions involve the removal of a member from the house, there are significant differences between the two.

• Meaning and duration: Suspension refers to the temporary removal of a member from the house for a specific period, while dismissal refers to the permanent expulsion of a member from the house.

• Severity: Suspension is a less severe disciplinary action than dismissal. Suspension is used to maintain discipline and order in the house and to deter members from engaging in misconduct. Dismissal, on the other hand, is a more severe disciplinary action that is taken only in the most extreme cases of misconduct or breach of privilege.

• Process: The process for suspension and dismissal is also different. In the case of suspension, the Speaker or the Chairman of the house can order the member to withdraw from the house for a specific period. The decision to suspend a member can also be taken by the house, based on a motion moved by another member. The decision to dismiss a member, on the other hand, can only be taken by the house, and requires the support of a majority of the members present and voting.

• Duration of the process: The process of suspension is usually quicker than that of dismissal. In most cases, the decision to suspend a member is taken on the same day as the incident of misconduct or breach of privilege. The process of dismissal, on the other hand, is more time-consuming and requires a more detailed inquiry into the conduct of the member.

• Consequences: The consequences of suspension and dismissal are also different. In the case of suspension, the member is not allowed to attend the house for a specific period but retains his or her membership in the house. In the case of dismissal, the member loses his or her membership in the house, and the seat is declared vacant. The dismissed member is also not eligible to contest any by-elections for the remainder of the term of the house.

• Effect on the member’s reputation: Suspension and dismissal also have different implications for the reputation of the member. While suspension may be seen as a minor blemish on the member’s record, dismissal is a severe strain on the member’s reputation and can have serious consequences for his or her political career.

• Precedence: Suspension is a more common disciplinary action than dismissal in the Indian Parliament. Dismissal is used only in the most extreme cases of misconduct or breach of privilege, while the suspension is used to maintain discipline and order in the house.

While both suspension and dismissal are disciplinary actions that can be taken against a member of the Indian Parliament, there are significant differences between the two. Suspension is a less severe disciplinary action than dismissal and is used to maintain discipline and order in the house. Dismissal is a more severe disciplinary action that is taken only in the most extreme cases of misconduct or breach of privilege. The process and consequences of suspension and dismissal are also different, and the implications for the reputation of the member are also different.

Their Similarities

Although suspension and dismissal differ in severity and the decision-making process, they share some similarities.

• Both are disciplinary actions taken against members who violate the rules and regulations of the house.
• Both can be used to maintain the decorum and dignity of the house.
• Both affect the rights and privileges of the members concerned.

Legal Statutes Involving Suspension and Dismissal

The power to suspend a member is derived from the rules and procedures of the house. In India, the power to suspend a member of parliament is given to the speaker under Rule 374 of the Rules of Procedure and Conduct of Business in Lok Sabha^[7]. Similarly, in the UK, the power to suspend a member of the House of Commons is given to the speaker under Standing Order No. 44^[8]. The rules and procedures of the house also provide for the procedure of suspension, including the duration of the suspension and the appeal process.

The power to dismiss a member is derived from the constitution and the rules of the house. In India, Article 102 of the Constitution^[9] provides for the grounds for disqualification of a member of parliament.

The Parliament (Prevention of Disqualification) Act, 1959^[10], provides for some exemptions from disqualification, but the power to dismiss a member is subject to the Constitution. Similarly, in the UK, the power to dismiss a member of the House of Commons

There have been several legal judgments and case laws related to the power of suspension and dismissal in parliamentary proceedings. In 2019, the Supreme Court of India upheld the power of the speaker to suspend a member under Rule 374 of the Rules of Procedure and Conduct of Business in Lok Sabha. The court also held that the decision of the speaker to suspend a member cannot be questioned in a court of law, as it falls within the scope of the internal proceedings of the house.

Similarly, in the UK, the House of Commons Standards Committee recommended the suspension of a member of parliament for seven days for using derogatory language towards a fellow member in 2020. The recommendation was accepted by the house, and the member was suspended for the said period.

Case Laws Pertaining to the Provisions of Suspension vs Dismissal in Parliament

Certainly! The power to suspend or dismiss a member of parliament is a crucial aspect of parliamentary proceedings, and several famous case laws have helped to define the scope and limitations of this power. Let us take a closer look at some of these case laws.

Subramanian Swamy v. Raju (2011)^[11]

In this case, Subramanian Swamy, a member of the Rajya Sabha, was suspended for his alleged derogatory remarks against the Prime Minister of India. Swamy challenged his suspension in the Supreme Court, arguing that the power to suspend a member should not be used as a tool to stifle dissenting voices.

The Supreme Court, while upholding Swamy’s suspension, held that the power to suspend a member is an essential component of the disciplinary mechanism of the house. The court also observed that the power to suspend should be exercised judiciously and with caution, and should not be used as a tool to suppress dissent or opposition.

Michael Martin MP (2009)

In the UK, the Speaker of the House of Commons has the power to suspend a member for disorderly conduct. In 2009, Michael Martin, the Speaker at the time, suspended a member of parliament for calling him a “little Hitler.”

The member challenged his suspension, arguing that the Speaker had exceeded his authority. However, the courts upheld the Speaker’s power to suspend a member for disorderly conduct and rejected the member’s challenge

Jeremy Corbyn MP (2020)

In 2020, Jeremy Corbyn, a former leader of the UK Labour Party, was suspended from the party for his response to a report on anti-Semitism within the party. Corbyn had suggested that the issue had been overstated for political reasons. The suspension sparked a controversy, with some members of the party supporting Corbyn and others calling for his expulsion. Eventually, after an internal investigation, Corbyn’s suspension was lifted, and he was readmitted to the party.

This case highlights the importance of the disciplinary mechanisms within political parties and the need to balance the right to free speech with the need to maintain party discipline.

Lok Sabha v. Re. Vijay Kumar Malhotra (2006)^[12]

In this case, the Lok Sabha (the lower house of the Indian parliament) suspended Vijay Kumar Malhotra, a member of parliament, for his alleged involvement in a corruption scandal. Malhotra challenged his suspension in the Delhi High Court, arguing that the power to suspend a member was arbitrary and violated his fundamental rights.

The Delhi High Court rejected Malhotra’s challenge, holding that the power to suspend a member was a necessary component of the disciplinary mechanism of the house. The court also observed that the power to suspend was subject to judicial review but only on limited grounds.

These case laws highlight the importance of the power to suspend or dismiss a member in maintaining discipline and decorum within parliamentary proceedings. However, it is equally important to ensure that the power is exercised judiciously and in accordance with the rules and procedures of the house.

Conclusion

In conclusion, suspension and dismissal are two disciplinary actions that are used in parliamentary proceedings to maintain decorum and discipline. Suspension is a temporary punishment, and the power to suspend a member is derived from the rules and procedures of the house. Dismissal is a permanent punishment, and the power to dismiss a member is derived from the Constitution and the rules of the House. Although the two punishments differ in severity and decision-making process, they share some similarities, and both affect the rights and privileges of the members concerned.

In the UK, for example, the power to suspend a member for disorderly conduct has been used to punish members for everything from shouting in the house to using derogatory language. In some cases, the punishment has been seen as excessive or arbitrary, leading to calls for reform of the disciplinary process.

Similarly, in India, the power to suspend a member has been used to punish members for everything from sleeping in the house to making controversial statements. Some have argued that the power to suspend is being used to stifle dissent and opposition, leading to concerns about the erosion of democratic values.

Of course, not all suspensions and dismissals are controversial or unjustified. In many cases, these disciplinary actions are necessary for maintaining order and decorum within parliamentary proceedings. But it is essential to ensure that the power is not being abused and that the rights and privileges of members are not being unduly curtailed.

In conclusion, the power to suspend or dismiss a member of parliament is a crucial aspect of parliamentary proceedings, but it is equally important to ensure that the power is being exercised judiciously and in accordance with the rules and procedures of the house. As lawmakers continue to grapple with issues of free speech, political correctness, and the role of the disciplinary mechanism in maintaining order and decorum, it is essential to strike a balance between discipline and democracy. Recent legal judgments and case laws have upheld the power of the presiding officer of the house to suspend a member and the power of the house as a whole to dismiss a member in appropriate cases. It is essential to maintain the decorum and dignity of the house, and the power to suspend or dismiss a member should be exercised judiciously and in accordance with the rules and procedures of the house.

---

Endnotes:

1. Constitution of India art. 105(2) (as amended by the Constitution (Forty-Fourth Amendment) Act, 1978)
2. Lok Sabha Rules of Procedure and Conduct of Business, Rule 373
3. Rajya Sabha Rules of Procedure and Conduct of Business, Rule 256
4. Constitution of India art. 105(3) (as amended by the Constitution (Forty-Fourth Amendment) Act, 1978)
5. Lok Sabha Rules of Procedure and Conduct of Business, Rule 374
6. Rajya Sabha Rules of Procedure and Conduct of Business, Rule 256
7. Lok Sabha Rules of Procedure and Conduct of Business, Rule 374
8. Standing Orders of the House of Commons, Standing Order No. 44
9. Constitution of India art. 102
10. The Parliament (Prevention of Disqualification) Act, 1959, Act No. 10 of 1959 (India)
11. Subramanian Swamy v. Raju, (2011) 6 SCC 617
12. Lok Sabha Secretariat v. Re Vijay Kumar Malhotra, [2006] Delhi High Court 269

This article is authored by Rishaan Gupta, a 1st year Student at National Law University, Delhi.

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CE Legal is led by advocate Keval Shah. Keval has extensive knowledge of indirect taxes, particularly in GST and the erstwhile service tax. The firm handles litigation and assessment concerning direct and indirect taxes. The firm supports services in terms of preparation, filing, and liaising with the government department and appellate authorities on behalf of our clients. While running a business is important, planning its smooth sailing is integral to the core.

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About Deepak Sabharwal & Associates

Deepak Sabharwal & Associates (DSA), is a full-service law firm providing legal services for the last 49 years having profound expertise in various fields of law. The firm is a mid-size legal firm operating through its offices in Delhi, Mumbai, Kolkata, Hyderabad, Chennai, and Bangalore apart from having associates in almost all the major cities of India. They are having to represent clients in almost all the high courts and about 250 districts in the country. The firm has been providing specialist services since 1967 to a wide range of industries.

They have also been providing advisory services to our clients in various fields and regulatory approvals from the Foreign Investment Promotion Board (FIPB), Reserve Bank of India (RBI), and other government authorities, etc. Deepak Sabharwal and Associates is noted for its commitment to client service and its ability to solve the most complex and demanding legal & business challenges worldwide in a very cost-effective manner.

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• Work on getting exposure to corporate clients and corporate work

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About the Organization

PhonePe is India’s leading digital payments platform with over 280 million registered users. Using PhonePe, users can send and receive money, recharge mobile, DTH, data cards, pay at stores, make utility payments, buy gold, and make investments. PhonePe went live for customers in August 2016 and was the first non-banking UPI app and offered money transfers to individuals and merchants, recharges and bill payments to begin with. 

Job Title

Manager – Dispute Resolution & IPR

Role & Responsibilities

• To set up a strong, proactive, and effective litigation prevention and resolution function with customer interest at the centre.
• To establish a strong IPR practice – trademark /copyright registration, monitoring, and protection.
• Develop a PAN India legal reach program to resolve consumer, civil and criminal cases effectively.
• Merchant / Partner – recoveries /claim management as per contracts (Drafting Notices/Replies to third parties)
• Legal support in case of detention/police custody/ filing FIR/others of employees on the ground (feet on the street across the country) – the ability to advise on legal strategy and action for on-ground support for timely legal resolution.
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Ideal Candidate (preferably from Bangalore)

• Minimum qualification: LL.B / LLM
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4. Demonstrated ability to create legal defensive or proactive strategies
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About the Organization

The jar is a savings app that helps its users save daily in the form of digital gold — we wish to help Indians rediscover the long-term benefits of habitual daily savings in an era where instant gratification is king. Jar was founded by Nishchay AG, former director and founding member at mobility start-up Bounce, and Misbah Ashraf, founder of community-focused e-commerce platform Marsplay.

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• Maintaining and periodically updating MIS trackers
  

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• Bachelor of Law with relevant experience of 0-6 months
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American University, Washington College of Law is seeking applications for a Visiting Professor in the Janet R. Spragens Federal Income Tax Clinic for the academic year 2023-24.

About Janet R. Spragens Federal Tax Clinic

The Janet R. Spragens Federal Tax Clinic is a single-semester clinic in which student attorneys represent low-income individuals who the Internal Revenue Service is auditing. They offer legal representation for clients before the IRS in appeals conferences and, if the cases do not settle, in U.S. Tax Court. The clinic includes both a lawyering seminar and a fieldwork component.

About the Clinical Program

American University’s in-house, “live-client” Clinical Program recently celebrated 50 years of programmatic excellence and is respected for its leadership in scholarship, development of clinical methodology, contributions to increasing access to justice for under-served clients, and breadth of offerings.

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• Minimum qualifications include a JD degree
• Outstanding academic record
• Three years experience as a lawyer and membership in a state bar.
• Prior clinical teaching experience is preferred but not required.

Note: American University is an EEO\AA employer committed to a diverse faculty, staff, and student body.

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• The Visiting Professors will direct the respective clinic, supervise casework, co-teach the weekly seminar and case rounds, and engage in course planning and preparation.
• The Visiting Professor will direct this clinic during the Fall and Spring semesters.

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Applications that include a curriculum vitae and cover letter should be submitted online via the InterFolio portal at the following link: http://apply.interfolio.com/124282

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Please contact Erica Devine, Faculty Coordinator, at edevine@wcl.american.edu or (202) 274- 4003 if you have any general questions regarding the application process and Professor Llezlie Green, Associate Dean for Experiential Education, llgreen@wcl.american.edu for any other questions about the positions.

Note: The positions will remain open until filled.

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-Report by Sejal Jethva

RITU TOMAR VS. STATE OF U.P. AND OTHERS, in this case, the petition filed under Section 482 of the Code of Criminal Procedure (for short “the Cr.P.C.”) for the quashing of the FIR for the offence punishable under Sections 147, 148, 149, 452, 324, 307, 342 and 506 of the Indian Penal Code (for short “the IPC”).

FACTS

According to the prevailing tradition and practice, the marriage of the appellant’s sister, Ms. Rekha, the fourth respondent in this case, and the third respondent came to be solemnized on May 15, 2011, leading to its consummation and the birth of a baby girl who has since been given the name Tejal.

APPELLANT’S CONTENTION

According to the said Ms. Rekha, who claimed she had been expelled from the marital home, she filed a petition under Section 125 of the Criminal Procedure Code, which was registered as V. No. 230 of 2014 and is currently pending on the file of the Principal Family Judge. As a result, an order was made on July 22, 2017, requiring the third respondent to pay a sum of Rs. 5,000 per month. Additionally, on March 15, 2017, she filed a police report (FIR) with the Harsh Vihar Police Station in North East Delhi for Crime No. 73 of 2017 against the third respondent and others for offences punishable by Sections 498A, 406/34 of the IPC read with Sections 3 and 4 of the Dowry Prohibition Act. The jurisdictional police claimed to have started the inquiry based on the aforementioned FIR that was filed.

RESPONDENT’S CONTENTION

When the aforementioned factual situation occurred, the third respondent filed an Application No. 41 of 2018 under Section 156(3) of the Criminal Procedure Code, alleging that the appellant and Respondent Nos. 4 to 7 had forcibly entered his home and attacked the complainant and his father with a knife on the applicant’s head with the intent to kill them when they refused to heed their demands to leave the village after selling the land and home. On the basis of the aforementioned complaint, which was brought before the Chief Judicial Magistrate-I, Gautam Budh Nagar, a report from the second respondent was requested; as a result, a report was submitted on March 11, 2018, opining that the accused parties, including the appellant, never visited the complainant’s home and that the incident in question had not occurred. However, the Learned Magistrate ordered the filing of a police report on May 3, 2018, and as a result, the second respondent filed a police report in Case Crime No. 55 of 2018 against the appellant and others for the violations listed above. As a result, a plea to nullify the aforementioned FIR was filed; however, when it was denied, the current appeal was submitted.

JUDGMENT

1. We have read the documents and listened to knowledgeable solicitors representing the parties. After giving the claim made by the appellant before the High Court careful consideration and repetition before this Court, we have concluded that the third respondent, who is the appellant’s sister’s husband and who had filed an application under Section 156(3) before the Additional Chief Judicial Magistrate-Ist, Gautam Budh Nagar in application No.41 of 2018, has unquestionably passed away while the current proceedings were pending. His name was consequently removed by order dated January 20, 2020. Regarding responses 1 and 2, none have surfaced.

2. Despite the aforementioned facts and the fact that a dispute between two families had already led to the wife filing two cases, which led to the registration of an FIR against the complainant (the third respondent here) and his family members, as well as the fact that none of the villagers, including the complainant’s neighbours, had supported or testified about the occurrence of any incident on January 26, 2018, as claimed by the complainant.

3. Therefore, insofar as the appellant is concerned, we quash the proceedings filed by the second respondent as Crime No.97 of 2018 under Sections 147, 148, 149, 452, 324, 307, 342, and 506 of the IPC. Therefore, the appeal is granted. 

READ FULL JUDGEMENT: https://bit.ly/3mWmir2

-Report by Arunima Jain

The Mumbai High Court on Friday upheld that any individual representing an agricultureconstituency whilst running for candidature must understand the meaning of being a memberof the committee. If the person’s primary source of income is not from agricultural processes,or if the person holds a trader’s/ commission agent’s or broker’s license, or even if the personhas a future interest in obtaining such a licence, then the person would automatically bedenied the right to partake in the elections for the same. A representative of a “firm” who votes in the APMC election does not have a stake in the “firm’s” operations because he is that “firm’s” representative.

FACTS

For the matter at hand, the facts pertain to the election for the Agriculture Produce MarketCommittee. In the constituency of agricultural credit societies and multipurpose cooperativesocieties in the APMC, Parola, the petitioner submitted his candidature in the OBC categoryand in the Open category. In the present case, the petitioner is a member of Parola Taluka

Cooperative Fruit Society. This society is registered to vote in the merchant’s constituencyand has a trader’s licence. The problem that arose was that according to Rule 10(2)(ii) of theMaharashtra Agricultural Produce Market Committee (Election to Committee) Rules, 2017,an individual associated with a trading licence is ineligible to run for office in an agriculturalseat. In furtherance of the same, several objections and appeals were raised which disqualified the petitioner from participating in the elections. The petitioner has accordinglyfiled a writ petition to clarify the matter once and for all.

CONTENTIONS

Petitioner

The petitioner’s learned counsel has submitted before the High Court that the petitioner is notdisqualified under Rule 10(2)(ii) of the Election Rules 2017 since he serves as a ParolaTaluka Cooperative Fruit Sale Society representative and does not have an individual license.According to the learned counsel, the petitioner cannot be declared ineligible under Rule10(2)(ii) of the Election Rules 2017 since they represent a society with a trader’s license.

JUDGEMENT

Upon giving due regard to the facts and the law in the above-mentioned case, it is contended by the Bombay High Court that it is patently illegal to have passed the orders as have beenpassed by the preceding authorities. The Hon’ble Court held that the petitioner was not disqualified from running for the elections, and thereby, the election authority has beeninstructed to include the name of the petitioner in the final list of nominated candidates. Moreover, as the inclusion of the petitioner’s name in the list of nominated candidates would not affect the election process at this stage, there was no harm in the same. the writ petition was therefore allowed.

READ FULL JUDGEMENT: https://bit.ly/3LlRxVH

S.no	Contents
1.	Introduction
2.	Types and Features of Law of Torts in India
3.	Principles of Torts in India
4.	Lack of Awareness Regarding the Law of Torts in India
5.	Implications of Lack of Awareness Regarding the Law of Torts in India
6.	Various Steps to Increase Awareness Regarding the Law of Torts in India
7.	Conclusion

Introduction

The law of torts in India is a complex and multifaceted area of law that governs civil wrongs or injuries caused to a person, property, reputation, or rights. This body of law has developed over time through judicial decisions, statutes, and other sources of law. Throughout history, the law of torts has evolved from homomorphic retaliation to compensatory damages, from negligent liability to multiple liabilities, from absolute liability to relative liability, and then to absolute liability. Since modern times, continental European law has established the status of tort law, while UK and US torts have flourished based on case law. In general, legal law has always had a remedial and preventive function, but the dominant functions have varied in different periods. However, tort has not flourished in India as rapidly as it should have. India largely inherited tort law from Britain, which introduced common law in India in the 18th century. In the quarter century following the 1857 rebellion, the legal system was rationalized and systematized. Mr Frederick Pollock drafted a Civil Law Bill in 1886 which was prepared for the Government of India, although it was never codified. 

Losses were common between 1914 and 1965 but were few and far between during those 52 years. This trend continued and it was found that there were fewer incidents of harm reported. In the current situation, the number of reported cases is increasing, but this is not a justified increase. It is not true that the court would not emphasize its importance, because individual cases have spoken about the right to compensation and its importance. In one such case, Jay Laxmi Salt Works (P) Ltd v State of Gujarat, the court said that “Indeed, the whole law of tort is founded and built on the moral that no one has the right to harm or injure others intentionally or even innocently. It would therefore be primitive to classify strictly or to close the ultimate horizon of tort liability, which is always expanding and growing. Even from the point of view of social development, orderly growth of society and cultural complexity, a liberal approach to damage liability by the courts is more favourable.

In this article, we will provide a detailed explanation of the law of torts in India, including its scope, principles, and remedies. The article with throw light on the basic aspects of the Law of Torts, with defining reasons why the Law of Torts are still ambiguous to the Majority of People in the Country and suggestions for improving it.

Types and Features of Law of Torts in India

Torts in India are primarily based on English common law, which has been modified by local legislation and judicial interpretations. The term “tort” comes from the French word “tort,” which means “wrong.” Torts are civil wrongs that are committed by one party against another, resulting in harm or injury. The injured party has the right to seek compensation or other forms of relief for the harm suffered. The Three prominent Types of Law of Torts are as follows:

Intentional Torts: Intentional Torts are those where the defendant intentionally or with a deliberate motive causes harm to the plaintiff. The harm may be physical, emotional, or financial. Examples of intentional torts include assault, battery, false imprisonment, trespass to land or property, defamation, and conversion.

Negligent Torts: Negligent Torts are those where the defendant’s conduct falls below the standard of care that a reasonable person would exercise under similar circumstances, and this conduct causes harm to the plaintiff. Examples of negligent torts include medical negligence, professional negligence, motor vehicle accidents, and premises liability.

Strict Liability Torts: Strict liability Torts are those where the defendant is held responsible for harm caused to the plaintiff, regardless of whether the defendant was at fault or not. In other words, the defendant is liable even if they did not intend to cause harm, and there was no negligence on their part. Examples of strict liability torts include product liability cases, where a defective product causes harm to the consumer, and liability for hazardous activities like transporting hazardous chemicals, where the harm caused cannot be avoided even with reasonable care

Principles of Torts in India

There are several key principles of tort law in India that help to define and clarify the scope of the law. Some of these principles include:

• Duty of Care: The principle of duty of care holds that a person has a legal obligation to take reasonable care to avoid causing harm to others. This principle is central to many negligence torts, as it establishes the standard of care that a defendant is expected to meet.

• Causation: Causation is the principle that a defendant’s conduct must have caused the harm suffered by the plaintiff. In order to establish causation, the plaintiff must show that their injury was a direct result of the defendant’s conduct.

• Proximate Cause: Proximate cause is the principle that a defendant is only liable for harm that is reasonably foreseeable as a result of their conduct. This principle helps to limit liability to those harms that are closely connected to the defendant’s conduct.

• Contributory Negligence: Contributory negligence is the principle that a plaintiff’s own negligence may contribute to the harm suffered, and may therefore limit their ability to recover damages.

• Res Ipsa Loquitur: Res Ipsa Loquitur is a Latin term that means “the thing speaks for itself.” This principle applies in cases where the harm suffered is so obviously the result of the defendant’s conduct that no further proof of causation is necessary.

Lack of Awareness Regarding the Law of Torts in India

Despite the significance of tort law in India, there is a lack of awareness regarding this area of law. Many people are not aware of their rights and remedies under the law of torts, which can lead to a lack of accountability and redressal for wrongful conduct. There are several reasons for the lack of awareness regarding the law of torts in India:

• Inadequate education and awareness: The first and foremost reason is the lack of adequate education and awareness about Torts laws in India. Most people in India are not aware of what Torts are and how they can be enforced. As a result, they don’t know how to seek compensation or take legal action in the event of an injury or harm caused by someone else’s negligence or intentional act.

• Limited legal literacy: Legal literacy in India is limited, and there is a significant lack of knowledge about the legal system and its procedures. This lack of knowledge leads to people not knowing how to access legal resources or how to file legal claims, including Torts claims.

• Poor enforcement: Another significant reason is the poor enforcement of Torts laws in India. There is a lack of judicial efficiency in India, with a large number of cases pending in courts. This leads to delays in settlement of claims, which discourages people from pursuing legal action.

• Lack of legal aid: Many people in India do not have access to legal aid or representation, which makes it difficult for them to seek justice in the event of harm caused by others. This is especially true for marginalized and vulnerable populations, who are more likely to be victims of harm.

• Limited media coverage: There is limited media coverage of Torts laws in India. The media often focuses on criminal cases, and civil cases, such as Torts cases, are not given much attention. This lack of media coverage contributes to the overall lack of awareness of Torts laws in India.

In conclusion, the lack of awareness of Torts laws in India can be attributed to several factors, including inadequate education and awareness, limited legal literacy, poor enforcement, lack of legal aid, and limited media coverage. Addressing these factors could help increase awareness and understanding of Torts laws and improve access to justice for those who have been harmed

Implications of Lack of Awareness Regarding the Law of Torts in India

The lack of awareness regarding the law of torts in India can have several implications that affect the working of the Law of Torts in the Country. Due to people’s wrong interpretation of the Law of Torts and their failing to understand these laws, the Law of Torts still poses to be an issue that is untouched. The implications can be as follows:

• Denial of justice: One of the most significant implications of the lack of awareness regarding the law of Torts is the denial of justice. When people are not aware of their rights under the law of Torts, they may suffer harm without any remedy. This leads to a sense of helplessness among victims, who may not know how to seek compensation or take legal action in the event of harm caused by someone else’s negligence or intentional act.

• Increased incidents of harm: Lack of awareness of the law of Torts can also lead to an increase in incidents of harm. People may not take necessary precautions or exercise due care to avoid causing harm to others if they are not aware of their legal obligations. This can lead to an increase in accidents and injuries, which could have been avoided if people were more aware of their legal responsibilities.

• Burden on the legal system: When people are not aware of their rights under the law of Torts, they may not seek legal recourse in case of harm. This leads to a reduced number of cases being filed. However, this also puts a burden on the legal system as cases that could have been avoided or settled through alternative means end up in court, leading to longer wait for times and delays in justice.

• Inefficiency in compensation: The lack of awareness of the law of Torts can also lead to inefficiencies in compensation. Victims may not know how to assess the damages they have suffered or what compensation they are entitled to under the law. This can lead to inadequate compensation or overcompensation, depending on the circumstances.

• Negative impact on business and the economy: Lack of awareness of the law of Torts can also have a negative impact on business and the economy. Businesses that are not aware of their legal obligations may cause harm to customers, employees, or other stakeholders, leading to legal liability and financial losses. This can have a ripple effect on the economy, leading to reduced confidence among investors and consumers.

• Inefficiency of the Legal System: The lack of awareness regarding tort law can lead to inefficiencies in the legal system as victims of wrongful conduct may not pursue legal action due to lack of knowledge.

Various Steps to Increase Awareness Regarding the Law of Torts in India

Increasing awareness regarding the law of torts in India is crucial to ensure that victims of wrongful conduct receive adequate redressal and that tortfeasors are held accountable for their actions. Here are some steps that can be taken to increase awareness regarding tort law in India:

• Public education campaigns: Public education campaigns can be launched to increase awareness regarding the law of Torts. This can be done through media channels such as TV, radio, newspapers, and social media. The campaigns can be designed to target specific groups, such as consumers, employees, and business owners.

• Workshops and training sessions: Workshops and training sessions can be organized for lawyers, law students, and other legal professionals to increase their knowledge and understanding of the law of Torts. This can help them provide better legal advice and representation to clients and ensure that justice is served.

• Inclusion in school curriculum: The law of Torts can be included in the school curriculum to increase awareness among young people. This can be done by introducing the concepts of Torts and their implications in civics and social studies classes.

• Collaboration with industry bodies: Industry bodies such as chambers of commerce and trade associations can collaborate with legal bodies and conduct awareness campaigns among their members. This can help ensure that businesses are aware of their legal obligations and can take necessary steps to avoid causing harm to others.

• Legal aid clinics: Legal aid clinics can be set up in various cities and towns to provide legal advice and representation to those who cannot afford to pay for legal services. This can help ensure that people are aware of their legal rights and can seek legal recourse in case of harm caused by others.

• Simplification of legal language: Legal language can be simplified to make it more accessible to the general public. This can help ensure that people are not intimidated by legal jargon and can understand their legal rights and obligations.

Conclusion

The law of torts in India is an important branch of civil law that governs civil wrongs or injuries caused to a person, property, reputation, or rights. Despite its significance, there is a lack of awareness regarding tort law in India. This lack of awareness can lead to a lack of accountability and redressal for wrongful conduct, an increase in wrongful conduct, and inefficiencies in the legal system. To increase awareness regarding tort law in India steps such as incorporation in legal education, public awareness campaigns, translation of legal material, legal aid services, and inclusion in the school curriculum should be taken. Despite the many areas where the public can go to court, Indian tort remains very underdeveloped and unexplored.

One reason that has remained unchanged in the past and present, which has caused the lack of tort cases, is the lack of codified legal laws, which creates a lot of uncertainty in the regulation and resolution of these cases. In addition, the lack of precedents is a problem, as few cases come to court. To promote this goal in a growing country like India, codification and general public awareness are necessary to inform them about their rights and the remedies available in case of violation of those rights. Local conditions must be vigorously addressed and assistance provided so that people can trust the laws. In addition, lawyers and judges who have played an important role in advancing tort law must continue to facilitate these cases.

 If these issues are taken care of, the law can certainly get a good hold in the Indian context due to the growing economic activities which may also involve large-scale violations. This would help give lay people the opportunity to seek redress for any wrong done to them and would be a much-needed development in legal proceedings. It is crucial that the general public is aware of their rights and remedies under the law of torts to ensure that they are protected from wrongful conduct and that tortfeasors are held accountable for their actions.

This article is authored by Rishaan Gupta, a 1st year Student at National Law University, Delhi.

Read More Articles on Similar topics:

1. Development of the Law of Torts and the Role in Shaping Indian Judiciary, http://lexpeeps.in/development-of-the-law-of-torts-and-the-role-in-shaping-indian-judiciary/
2. Law of Torts: An Overview, http://lexpeeps.in/law-of-torts-an-overview/
3. Definitions and Development of Law of Torts, http://lexpeeps.in/definitions-and-development-of-law-of-torts/
4. Relevance of Torts in Present Scenario, http://lexpeeps.in/relevance-of-torts-in-present-scenario/