LEXPEEPS editor – Page 344

Civil Appellate Jurisdiction:

Civil Appeal No. 545 of 1967.

Equivalent citations:

1971 AIR 1015, 1971 SCR (3) 365

Bench:

Grover, A.N.

Date Of Judgement:

15/01/1971

Act:

Income Tax, 1922 – S. 26A

Partnership Act, 1922 – S. 58, 59, 69-Rule 2(b)

Facts:

A deed of a partnership signed October 6, 1955, established the assessee firm. It was scheduled to go into force on November 5, 1954. The assessee applied for firm registration under section 26A of the Act for 1956-57. The firm’s prior year was shown as ending on October 26, 1955. On October 14, 1955, the Income-tax Officer received the application. The assessee submitted a statement under section 58 of the Indian Partnership Act, 1932, with the Registrar of Firms on October 20, 1955. The Registrar of Firms filed the assessee’s statement and made entries in the register of firms on November 2, 1955. The Income-tax Officer issued an order on March 23, 1961, and refused to register the company under s. 26-6A, citing, among other things, the fact that the application had not been submitted on time. The Appellate Assistant Commissioner’s appeal was dismissed. The Tribunal also supported the decision of the lower courts. The High Court ruled in favor of the assessee, holding that on the date the application is filed, the partnership should be considered registered and the rules would be satisfied if the partnership was registered under the Partnership Act after s.26A application was filed.

Issue:

The underlying question is whether a partnership’s registration under the Partnership Act results on the day the application for registration is filed under section 58 of the Act.

Ratio Of The Case:

A partnership is registered under the Partnership Act when the requisite entry is made in the register of firms, according to Ram Prasad v. Kamta Prasad. Even under the Partnership Act’s section 69, which addresses the repercussions of non-registration, it has been decided repeatedly that a firm’s registration did not resolve the problem after a complaint was filed.

Kerala Road Lines Corporation v. Commissioner of Income-tax, – a firm cannot be considered as registered when The Registrar receives the statement required by sections 58 and 59 of the Indian Partnership Act. The case has been referred to the Supreme Court for further hearing in January.

Decision Of The Court:

The appeal is granted, and the High Court’s decision is reversed. The answer to the referred question must be approbative and adverse to the assessee. In this Court, the appellant is entitled to costs.

The case analysis has been done by Shruti Bose, a student of Christ (Deemed to be University), Lavasa

The case analysis has been edited by Shubham Yadav, a student at Banasthali Vidyapith, Jaipur.

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What are Swap contracts?

In the year 1982, Swap Contracts were introduced when the World Bank and IBM entered into an agreement. Swap contracts are one of the four types of financial derivative contracts, where two counter-parties exchange the cash flow of one party for those of the other party’s cash flow for a fixed period.

To understand the system of swap contracts, let us assume that there are two parties. A, who lives in India, goes to the market and notes that the cost of a Samsung mobile is Rs.40000 and the cost of an iPhone is Rs.65000 and B, who resides in the USA goes to the market and notes that the same model of phone that A checked is available for Rs.65000 and Rs.40000 for Samsung and iPhone respectively. Now, these two parties decided to enter into a contract to exchange their commodities and reduce their purchasing cost. This arrangement is defined as swap agreement.

These swap agreements are useful for the financial institutions who want to convert their floating rate to a fixed rate and vice versa. These contracts are executed through a swap bank that works as a matchmaker and assists the transactions between the parties.

Types of contracts

Countless swap agreements exist in the financial ecosystem. Here, we will discuss most commonly used variations:

Interest Rate Swap: Interest rate swap is one of the most commonly used methods in financial derivatives. These swaps do not include the retail investors and the contracts are of an OTC nature and are executed between businesses and financial institutions.

Let us consider an example, Company A, a newly incorporated company with no financial standing in the market, approaches the bank for a loan and the bank says that they will provide the loan but at a variable rate of interest. On the other hand, Company B, which has an excellent financial standing in the market, approaches the bank for a loan. The bank agrees to give the loan at a fixed interest rate with the same time and notional principle. Now, the companies observe that the interest rate for Company A is going to increase and the interest rate for Company B is going to drop, but due to the fixed rate of interest, the Company would still be paying more. Hence, both the companies agree and swap their interest rate nature and are executed between businesses and financial institutions.

Consider another example, where Company A is newly incorporated and does not have any financial standing in the market. It approaches the bank for a loan and the bank says that they will provide the loan but at a variable rate of interest. On the other hand, Company B, which has an excellent financial standing in the market, approaches the bank for a loan. The bank agrees to give the loan at a fixed interest rate with the same time and notional principle. Now, the companies observe that the interest rate for Company A is going to increase and the interest rate for Company B is going to drop, but due to the fixed rate of interest, the Company would still be paying more. Hence, both the companies agree and swap their interest rate.

2. Currency Swap: Currency swap agreements are used by financial institutions that are planning to expand their businesses internationally and require financing. Through swap contracts, the companies get a more favourable loan rate from their local banks as compared to the banks from that country and minimise the risk associated with the currency fluctuation. It involves the exchange of the principal amount along with the interest payments from one currency to another.

For example, an India based company “X” is planning to enter the Australian market and simultaneously, an Australia based company “Y” is planning to diversify their portfolio by purchasing a company in India. For company X, the expansion would require a funding of $22 million and for Y the acquisition would require the same amount of loan. Now, the Indian banks might give Company X a loan at 9% but for Company Y, it will be at 12%. Likewise, Australian banks will give a loan to Company Y at 9% but for Company X it will be at 11%. However, both companies could have an advantage if they borrow in their domestic currencies and enter into a swap contract. In this way, the companies will receive the desired foreign currency at a cheaper loan and the risk factor for currency fluctuation will reduce.

3. Debt-Equity Swap: Debt-Equity Swap agreements are one of the recent additions. They are used to trade the debt or obligations of a company for something that has an equivalent value such as equity, bonds or stocks. This type of contract is used to maintain the debt to equity ratio of the company to keep a good credit rating in the market. The debt-Equity swap value depends on the market rates but the lender may provide a much higher exchange offer.

For example, Company X suffers a drop in the revenue because of the economic crisis and it has the potential to avoid going bankrupt but due to cash flow problems, they will not be able to make the scheduled instalment. So they approach the bank and offer them 5% equity in exchange for the remaining loan. This swap is called the debt-equity swap.

4. Commodities Swap: Commodities swaps are used to hedge the fluctuation in the commodities pricing and set a fixed price. This will benefit both the buyer and sellers in the market as there will be a fixed selling price and buying price. Generally, it is always the cash flow that swap and not the actual commodities.

For example, if a company is purchasing 1000 gallons of oil and has agreed to pay a fixed price of $2 per gallon, then, at the time of payment if the price increased by 20 cents, the company would be paying $200 extra if the price was not fixed. Now, if the price drops by 20 cents the company will have to pay $200 more. Hence, if the price of the commodities that a company uses as input is floating then the profits of that company will also be volatile, that is the reason the companies prefer to enter into the commodities swap agreements.

Applications of Swap

There are various applications of swaps in the financial markets. Some of them are :

Hedging of Risk: The most important and primary application of swaps is to hedge risk. For instance, Company A is in a contract with a floating interest rate and has reasons to believe that in near future the interest rates will increase significantly. So to save themselves from higher interest rates, the company has to exchange the floating interest rate for a fixed interest rate.

Similarly to hedge against the fluctuation in currency exchange, the enterprises involved in international business enter into currency swaps.

2. Low borrowing rate: The comparative advantage that one company has is exchanged with the advantages possessed by another company. Hence, both the companies are benefitted from the swap and the purchasing cost is significantly decreased.

3. Access to the International market: The companies enter the foreign markets by using the swap system which will help them in avoiding the fluctuation in financial transactions. For instance, if a company of Canadian origin wants to invest in a business entity in the Indian market, they will enter into an interest rate swap agreement with an Indian company, as the rate of interest for a domestic company would be lower compared to that for the company itself.

4. Avoiding bankruptcy: Using the debt-equity swap, a company can save itself from declaring bankrupt. For example, if a company suffers a revenue drop due to a crisis and the cash flow is not enough to pay company’s regular expense, they can offer the bank equity in their company in exchange for the loan to get approved.

Usage

Commercial and comparative advantages are the two basic categories in which swap contracts are used. When a company enters into an agreement where they have to pay a certain interest rate which can be fixed or floating rate, then swaps can reduce the risk of fluctuation in the financial market. Companies that are planning to enter a new market can have a comparative advantage by using the currency swap agreements.

For example, if Indian company wants to expand its business in Malaysia, it is more likely for the company to get a favourable agreement in India. So, by entering into a currency swap, the company can have the finances it needs to expand its business in Malaysia without paying extra interest rates.

Exiting a Swap Agreement

There are three frequently used ways to exit a swap contract before the expiration of the term period. They are:

Buy-out: With the consent of the counter-party the market value of the swap agreement can be calculated and the amount can be paid by the party and this way the company can exit the swap contract.
Sell the Swap: With the consent of the counter-party, the company can sell the swap to a third party at the current market value.
Offsetting Swap: A company can nullify the effect of a swap agreement by entering into a reverse swap contract. For example, if a company is in a swap where they receive a fixed interest rate, then they can enter into another swap with a third party to exchange the fixed interest with the floating interest rate.

The blog is written by Abhinav Bansal ), B.A.LLB student at Trinity Institute of Professional Studies.

Edited by- Deeksha Arora

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An Introduction of CCI

Competition Commission of India (CCI) is a statutory body of the Government of India responsible for enforcing The Competition Act, 2002 and promoting competition throughout India, and preventing activities that have an appreciable adverse effect on competition in India. It was established on 14 October 2003.

About the Internship

In view of Covid-19 pandemic, the regular CCI internship programme has been suspended for the time being. However, for the benefit of students, the Commission will continue its Online Internship beyond June 2021 and upto September 2021.

For July 2021 to September 2021 Online Internships, eligible applicants whose applications received by 7th of preceding month (for example, for internship of July 2021-application should be received by 7th of June 2021, for internship of August 2021- application should be received by 7th of July 2021 and for internship of September 2021 application should be received by 7th of August 2021) shall only be considered. Applications mandatorily be in the prescribed format available on CCI website at: –https://www.cci.gov.in/sites/default/files/cci_pdf/internships1.pdf. Applications in other formats shall be rejected summarily. Statement of Purpose should be accompanied with the application which should reflect reason for selection and probable area of research/internship project.

Applicants shall submit their applications duly signed/ endorsed by their colleges/institutions in the space specifically provided in application form with the heading ‘CERTIFICATION AND RECOMMENDATION BY INSTITUTION’ Or in alternative, applications must be accompanied with a scanned copy of email/letter from the respective institution certifying that the student is a bona fide student of the institution and pursuing the course (with year) mentioned in the application for internship. Such email/letter must be issued by Dean/Registrar/HoD/Director/Authorized Officials. Applications shall be sent in PDF mode by online only. Hard copies of applications shall not be accepted.

The emails carrying such requests shall indicate “Online Internship during the month of (mention intended month) 2021” as subject/title of email. All such requests for online internship must be sent at email- internships@cci.gov.in. Applications sent at/addressed to any other email ID shall not be considered.

The shortlisted candidates shall be allocated guides/mentors who are Officers of CCI. The interns will be provided contact details of their mentors/guides for being in regular touch with them to complete the assigned work. The duration of online internship (a week/ two weeks/ three weeks/ a month) shall be decided by the mentor/guide depending on the work assigned. In first week of every month, online orientation programme will be organized for selected students by Advocacy Division of CCI and a review meeting will be conducted in second week of the month through virtual mode. No request for internship beyond one month shall be accepted.

On certification/confirmation by concerned mentor/guide that the assigned intern has worked/completed the internship to his satisfaction, an electronic certificate for the period of internship shall be awarded to the interns through electronic mode. Shortlisted candidates shall be intimated through contact details (email id) provided by them in their requests/applications.

*NOTE– NO STIPEND/HONORARIUM SHALL BE PAID TO INTERNS FOR ONLINE INTERNSHIP.

No queries/enquiries, whatsoever, shall be entertained regarding online internship.

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Applications are invited for recruitment/empanelment of following manpower purely on contract basis for
deployment in the office of National Commission of Homoeopathy, New Delhi.

Consultant Technical (Homoeopathy)
Consultant (Accountant)
Consultant (IT)
Legal Officer (Consultant)
Consultant (Admn.)
Private Secretary
Sr. Technical Officer
Stenographer
Stenographer

Selection will be made as per the prescribed norms and requirement of the job.

Selection will be made as per the prescribed norms and requirement of the job.
No TA/DA will be paid for attending the test/ written exam/ interview/ joining the duty on selection.
Application must be submittedONLINE only forthe above post.
For applying please visit the BECIL website www.becil.com. Go the ‘Careers Section’ and then click ‘Registration
Form (Online)’. Please read ‘How to Apply’ carefully before proceeding to register and online payment of fee. The
instruction (How to Apply) for filling up the ONLINE Application/ Registration is attached below for reference.
Candidates are advised to view the BECIL website regularly after submitting their application successfully for any
notification/ updates.
Candidates must review their application forms carefully before final submission, BECIL will not accept any
request for changes to be made in the information submitted by the candidates wrongfully

In case of any doubt/help please email as below:

For technical problem faced while applying ONLINE : khuswindersingh@becil.com

For queries other than technical : maheshchand@becil.com

For other queries : 0120-4177860

Last date for submission of application forms is 09.08.2021.

HOW TO APPLY

Candidates are required to apply online through website www.becil.com or
https://becilregistration.com only. No other means/mode of application will be accepted. (Before applying for registration candidates are advised to have their Photo, Signature, Birth Certificate/10th Certificate, Caste Certificate scanned images for upload the file size should be not more than 100kb.) If you want to apply for more than one post against the same advertisement, you need to register once only. The fee chargeable will vary according to the number of posts applied for.
Candidates are required to have a valid personal e-mail ID. In case a candidate does not have a valid personal e-mail ID, he/she should create his/her new E mail ID before applying online
Candidates are required to go to the website of BECIL i.e. www.becil.com or https://becilregistration.com and click on the link “Career”.
Candidates are required to follow below process for registration.
Registration to be completed in 7 steps:
 Step 1: Select Advertisement Number
 Step 2: Enter Basic Details
 Step 3: Enter Education Details/Work Experience
 Step 4: Upload scanned Photo, Signature, Birth Certificate/ 10th Certificate, Caste Certificate
 Step 5: Application Preview or Modify
 Step 6: Payment Online Mode (via credit card, Debit card, net banking, UPI etc.)
 Step 7: Email your scanned documents to the Email Id mentioned in the last page of application form.
Candidates will have to upload scanned copy of passport color photo, signature scan copy, size of these
scanned copies should be within 100 kb and in jpg/.pdf files only.

Only online payment of registration & application processing fees (non-refundable) is applicable. There will not be any other mode of payment of registration & application processing fee. Demand Drafts, Cheques, Money Orders, Postal Orders, Pay Orders, Banker’s Cheque, postal stamps etc., will not be accepted, towards registration & application processing fee.

Category-wise registration & application processing is given below:

General – Rs.750/- (Rs. 500/- extra for every additional post applied)
OBC – Rs.750/-(Rs. 500/- extra for every additional post applied)
SC/ST – Rs.450/-(Rs. 300/- extra for every additional post applied)
Ex-Serviceman – Rs.750/-(Rs. 500/- extra for every additional post applied)
Women – Rs.750/-(Rs. 500/- extra for every additional post applied)
EWS/PH – Rs.450/-(Rs. 300/- extra for every additional post applied)

Note: The GST and Bank charges will be borne by the candidates.

8. BECIL will not be responsible for any network problems in submission of online application.

9. Candidates are advised to fill the post judiciously as per the advertisement released by BECIL.

10. Candidates are requested to enter the details in the online application format carefully. Before final submission of application, there will be a preview available to the candidates in case of modification required. After submission of the application, no modification will be permitted and fees once paid will not
be refunded.

**Candidates are advised to apply through above mentioned website only, candidates will be solely responsible for submitting their through any other website. The candidates are requested to check their email & messages regularly. BECIL will inform the selected candidates through email & sms. BECIL will not be responsible for any delay on candidate’s part. **

FOR MORE DETAILS , PLEASE VISIT-

file:///C:/Users/dell/Downloads/1928c22eedc7c7471a341afc0316b322.pdf

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Introduction

Judicial review is the power of the court to review or scrutinize the actions of the legislative and the executive and the judicial actions. Judiciary has the power to interpret any law and order made by the legislature and executive and if it is found unconstitutional, then the judiciary can declare any law and order void. The power of the judiciary is to review the constitutional validity of law and an order passed by a legislature and executive known as “judicial review”. High courts and the Supreme Court both have the power of judicial review. Judicial review is part of the basic structure of our constitution. Judicial review is viewed as the power of the court to set up checks and balances between the legislature and executive.

Under the Indian Constitution, parliament is not supreme. We are following the rule of law, which means the constitution is the supreme law. This power is given to the court to examine the actions of the legislature, executive, and administrative arms of government and to ensure the constitutional validity of the law.

Judicial review has two functions;

Legitimate government action.
The protection of the constitution against the intrusion of the government.

History of judicial review

The concept of judicial review was first introduced in the United States Supreme Court. American Supreme Court has the power to review the law passed by Congress and executive orders.

In the case, Marbury v. MadisonPresident Adam belonged to the Federalist Party, which came to an end and President Jefferson came to power. On his last day, Adam appointed the judges of the Federalist Party. Jefferson was against this, so Madison, secretary of state, had not sent the appointment letter to judges. Marbury, one of the judges, filed the writ of mandamus in the Supreme Court. Court refused to entertain the plea and opposed the order of the legislature. Then the Congress and the US Supreme Court developed the concept of judicial review.

In India, judicial review was discussed for the first time in Emperor v. BurahIn this case, the Calcutta high court, as well as the Privy Council, adopted the concept of judicial review in the Indian courts.

Constitutional provisions for judicial review

The power of judicial review is given in the Constitution. The Constitutional provisions guarantee a judicial review. The Articles are:

Article 13(1) – All laws are in force before the commencement of the constitution is void if they abridge the fundamental rights.
Article 13(2) – The state shall not make laws which abridge the rights conferred by this part, and if any law made which contravenes this clause shall be void.
Article 13(3) –The law includes any ordinance, order, bye-law, regulation, and custom in India; force of law and the law in force includes laws passed by the legislature or competent authority in India which is pre-constitution and not repealed, any such law or any party shall not be operated.
Article 13(4)–This article shall not apply to any amendment of the Constitution made under Article 368.
Article 32 and 226 –A person can approach the High Court and Supreme Court to violate fundamental rights.
Article 251 and 254 –Conflict between the union and state laws, the state law shall be void.
Article 245–The legitimacy of legislation can be challenged in the court if the provision of law infringes fundamental rights.
Article 131-136–Court has the power to adjudicate disputes between individuals, individuals and state, state and state, state and union; the court is required to interpret provisions of the Constitution and interpretation given by the Supreme Court becomes the law of the land.
Article 372 (1) –Judicial review of the pre-constitutional legislation.

Grounds for judicial review

Constitutional Amendment

Review of the constitutional amendment done by the authority. All those amendments which are violating fundamental rights are declared void by the Supreme Court.

Administrative Actions

Illegality – The decision-makers have made decisions beyond their power or their acts and decisions are illegal. Their acts and decisions can be illegal if they fail to follow the law.
Irrationality –The authority should act properly. It should not be irrational and unreasonable. The court can raise the question if the decision that has been taken by an authority is unreasonable.
Procedural impropriety – This principle is a matter of procedure decision taken by decision-makers. This case should be decided and heard by people to whom it is delegated and not the other persons. The rules are:

Audi alteram partem.
Nemo judex in causa sua.

Public authorities should act fairly before decision-making. If they act unfairly, it would be an abuse of power.

Judicial pronouncement

Shankar Prasad v. Union of Indian in this case, the zamindars challenged the constitutional validity of the first amendment which is related to land reforms. The ground was a violation of fundamental rights under Article 13(2) of the Constitution. The court held that the amendment made under Article 368 is not a law under Article 13.

Golakh Nath & Ors v. the State of Punjab In this case, the constitutional validity of the 17^th amendment was challenged and it was heard by a special bench of 11 judges. The court held that Parliament under Article 368 has no power to abridge the Fundamental Rights. The court observed that Article 368 states the only procedure to be followed making amendments to the Constitution.

After this case, in article 13 clause 4 was included by the 24^th amendment of 1971 which States that any amendment made under Article 368 is not a law under Article 13. Marginal note 368 has changed which state “power of Parliament and the procedure to amend the constitution”.

Kesavananda Bharati v. the State of Kerala, in this case, the 24th and 25th amendments were challenged. The court held that the legislature can amend the Constitution but cannot amend the basic structure of the constitution. The basic structure of the constitution is the supremacy of law, council, and democratic form of government, secularism, separation of power, and federalism.

Minerva Mills v. Union of India In this case, the court struck down clauses 4 and 5 of article 368 which were inserted by the 42^nd amendment. The court held that these clauses destroyed the basic structure of the Constitution. Judicial review has inserted the basic structure of the Constitution.

Conclusion

Judicial review has covered legislature action, executive action, and judicial decision. India has adopted judicial review from American Constitution. The Supreme Court can not apply for judicial review. It can be used when the question of rule of law is challenged in the High Court or either Supreme Court. The concept of judicial review is the basic structure of the Constitution and it has become part of the basic structure in the case of Minerva Mills v. Union of India. It is used as a check and balance to check the other two organs of government. Judicial review is not an extended power of the judiciary. Excess use of judicial power without checking validity may violate the separation of power.

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

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

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Legislative Acts of death penalty

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

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

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

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

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

Capital punishment present as a penalty in legislative acts:

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

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

Validity of the death penalty

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

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

Criteria for rarest of rare case

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

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

Clemency Powers

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

International Scenario

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

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

Conclusion

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

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

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

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

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

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

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

-Report by AJISHA

Introduction

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

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

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

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

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

Types of liability:

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

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

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

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

Types of defects

The various kinds of defects are as follows ;

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

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

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

Defenses

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

Damages

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

Case Laws:

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

Henningsen v. Bloomfield Motors

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

Liebeck v Mc Donald’s Restaurants

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

-Report by VANESSA RODRIGUES

Equivalent Citation

1964 AIR 1882, 1964 SCR (8) 50

Bench

HIDAYATULLAH, M.

WANCHOO, K.N.

GUPTA, K.C. DAS

AYYANGNAR, N. RAJAGOPALA

Decided on

29 APRIL, 1964

Relevant Act/ Section

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

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

Petitioner

JAGDISH CHANDRA GUPTA

Respondent

KAJARIA TRADERS (INDIA) LTD.

Facts

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

Issues before High Court

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

Judgment by High Court

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

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

Contentions before Supreme Court

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

Judgment by Supreme Court

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

Conclusion

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

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

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

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