This case analysis has been prepared by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this case analysis, she has dealt with State Of Rajasthan v. Vidyawati case, a landmark case based on the doctrine of sovereign immunity in the post-constitutional era.

Introduction

This was one of the earliest cases of Post-Constitutional Era in which the Supreme Court gave judgement on the issue of State’s Liability for the acts of government servants. In this case, the claim for damages was made by the wife of a person who died in an accident caused by the negligence of the driver of the collector of Udaipur. This was a very significant case because in this case, the Court didn’t remain stuck with the old concept of sovereign and non-sovereign functions of the state. The decision was given keeping in mind that now the state is a welfare state.

Bench

Sinha, Bhuvneshwar P.(CJ)
Kapur, J.L.
Hidyatullah, M.
Shah, J. C.
Mudholkar, J. R.

Date of Judgement

02/02/1962

Articles Involved

Article 133(1), Constitution of India, 1950
Article 294, Constitution of India, 1950
Article 295 Constitution of India, 1950
Article 300 Constitution of India, 1950

Doctrine involved

Doctrine of Sovereign immunity

Facts of the case

The first defendant, Lokumal, was employed as the driver of a government jeep car of the Collector of Udaipur. The car had been sent to a workshop for necessary repairs. After repairs, when the car was being taken from the workshop to the collector’s bungalow, it was driven very rashly and negligently by the driver, who was an employee of the state government. while driving the car back along a public road, it knocked down one Jagdish Lal, who was walking on the footpath by the side of public road in Udaipur city. In the accident Mr. Jagdishlal received multiple injuries, including fractures of the skull and backbone, resulting in his death three days later, in the hospital where he had been removed for treatment. The plaintiffs, who are Jagdishlal’s widow and a minor daughter, aged three years, through her mother as next friend, sued the said Lokumal and the State of Rajasthan for damages for the tort aforesaid. They claimed the compensation of Rs 25,000 from both the defendants.

Issues

Whether the state, earlier to the commencement of Constitution, Art. 300, would be liable or not in a similar situation akin to the state of Rajasthan.
Whether at the time of the accident, the jeep was being used in the exercise of sovereign power or not?

Procedural History

The Trial Court, after an elaborate discussion of the evidence, decreed the suit against the first defendant ex-parte and dismissed it without costs against the second defendant. The trial court took the view that as the car was maintained for the use of the Collector for the discharge of his official duties. The fact that it was for the use of collector to discharge his official duties alone was sufficient to take the case out of the category of cases where the vicarious liability of the employer could arise, even though the car was not being used at the time of the occurrence for any purposes of the State.
On appeal, the High Court disagreed with the trial court on the legal issue. It’s finding on this issue is in these words:

“In our opinion, the State is in no better position insofar as it supplies cars and keeps drivers for its civil service. It may be clarified that we are not here considering the case of drivers employed by the State for driving vehicles which are utilised for military or public service.”

So, the High Court granted a decree to the plaintiffs as against the second defendant (state of Rajasthan) also for the sum of Rs 15,000.

Then the State of Rajasthan applied for and obtained the necessary certificate “that the case fulfils the requirements of Art. 133(1)(c) of the Constitution of India”. So the case reached in Supreme court.

Judgement

On appeal, the Supreme court confirmed the decision of the Rajasthan High Court and endorsed the view expressed by it.

In support of the appeal, counsel for the appellant raised substantially two questions,

(1) that under Article 300 of the Constitution, the State of Rajasthan would not be liable, as the corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force; and

(2) that the jeep car, the rash and negligent driving of which led to the claim in the suit, was being maintained “in the exercise of sovereign powers” and not as part of any commercial activity of the State. Article 300 deals with the form of proceedings only. Actually, Article 294 and 295 deals with the rights and liabilities of states.

The Supreme court negatived the plea of the respondents. According to the judgement, the first part of Article 300 deals with the nomenclature of a suit and the second part defines the extent of liability in the “like cases”, which refers back to the legal position before the enactment of the constitution of India. The court approved the ratio of Peninsular and oriental stream navigation company case and held that the secretary of state would be liable for the negligence of the employees of the Government in the same manner in which an ordinary employer would have been liable.

The court with reference to the liability of the state said, prior to coming in to force of the state of Rajasthan, there was Rajasthan Union as a corresponding state and the state has failed to show that, the Rajasthan Union would have been immune from the liability in the like case. The Supreme court held that the constitution has established a welfare state, where the functions of the state are not limited to just maintaining law and order. So it would be too much to claim immunity for tortious act of its employees. The court held that the state would be liable for tort in respect of tortious act committed by its servants, within the scope of employment and functioning as such as any other employer.

The Supreme court observed that the driver in the above case could not be said engaged in sovereign functions when he was taking back jeep car to residence of the collector from the workshop. Further, the employment of the driver for the official use of the jeep by a civil servant could not be said as an activity of sovereign character. The court stressed the need to limit the area of sovereign immunity because of multi-faced activities of the government, which are traditionally not considered as sovereign function.

The Court gave very significant decision in this case which formed a strong precedent for many more cases which arose after this case with respect to the vicarious liability of the state for the acts of government servants.

Conclusion

The court gave a very appreciable decision in this case. Court observed that the modern state is not a police state. Now the functions of a state is not confined only to maintain law and order. It is a welfare state, the functions of the state are manifold and all of its function can’t be said to be done in exercise of sovereign power by the state. It extends to engage in all activities including industry, trading, public transport etc. So, it is too much to claim that the state should be immune from the consequences of the tortious acts of its employees committed in the course of their employment. In modern India the concept of the state itself has undergone a drastic change. Now the sovereignty vests in the people and the government are responsible to people for its decisions which is contrary to the provisions of the constitution. The judgement was given in the case and the observations of the honourable court made us think that we need an Act which can clarify the position of state liability in a welfare state.

References

Indian Kanoon
Dr R. K. Bangia, 24^th edition
Sodhganga.inflibnet.ac.in

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to deliver all the basic elements related to consideration in detail and easy way.

INTRODUCTION

The Latin maxim “quid pro quo” means something in return. For a contract to be valid it is essential that there must be something given in return of the favour or promise i.e. consideration. In India, there is a general rule that a contract or agreement without consideration is deemed to be ‘nudum pactum’ i.e. null and void. It simply means that there must be some benefit to one party in return for the promise made by the other party.

As defined by Black Stone, “Consideration is a recompense given by the party contracting to the other”.

Lush J. said that the term ‘Consideration’ can be of any form i.e. some right, interest, profit or benefit conferred by one party or any loss borne by the other party to contract.

For instance, ‘A’ proposes to sell a house to ‘B’ for an amount of Rs. 20 Lakhs. In this transaction, ‘A’ enters into an agreement to hand over the possession of the house to ‘B’ and receives in its consideration an amount of Rs. 20 Lakhs which means that for ‘A’ consideration is Rs. 20 Lakhs and for ‘B’ consideration is the house.

Section 2(d), Indian Contract Act, 1872 defines consideration as, “when, at the desire of the promiser, promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise”.

TYPES

Section 2(d) recognizes three kinds of consideration i.e. Past, Executed and Executory.

a) Past Consideration

The words “has done or abstained from doing” u/s 2(d) denotes that consideration is past. It means that consideration is given after the promise is made i.e. the other party is benefitted after the completion of the promise. For instance, ‘A’ makes a request to ‘B’ to find his laptop and return it back to him. After ‘B’ has returned the laptop back to ‘A’ and if ‘A’ promises to pay ‘B’ Rs. 1,000/- in return, it is a case of past consideration as the consideration is given past to the promise, but at the request of the promiser and is deemed to be a good consideration for the promise.

b) Executed Consideration

The words “does or abstains from doing” u/s 2(d) denotes that consideration is executed or present. It is said to be executed consideration if consideration is given right at the time of making a promise. In the illustration mentioned for the Past Consideration, if the consideration is provided simultaneously alongwith the making of the contract, it is a case of Executed Consideration i.e. if ‘A’ makes an offer that anyone who finds his laptop and brings the same to him, will be given Rs. 1,000/- and ‘B’ does the same, then ‘A’ is bound to pay Rs. 1,000/- to ‘B’.

c) Executory Consideration

The words “promises to do or to abstain from doing” u/s 2(d) denotes that consideration is executory or future. When the parties to the contract make promises to each other and perform them subsequently after making of the contract the consideration is said to be executory. For instance, if ‘A’ agrees to supply certain goods to ‘B’ and ‘B’ agrees to pay for them on a future date, this is a case of executory consideration.

ESSENTIALS

For a valid consideration, there are various legal essentials that must be satisfied:

1) Consideration should be provided only at the pleasure of the promiser

The consideration should neither be merely voluntarily given nor it should be given at the instance of the third party rather it should be provided as per the desire of the person who makes the promise.

In “Durga Prasad vs. Baldeo”, the consideration moved at the instance of a third party to contract and it was held by the court that a promise cannot involve consideration given by the third party and hence the contract was void.

2) Promisee or any other person may also provide Consideration

As per the general rule in India and as mentioned in Section 2(d) the consideration may also move as per the wish of the promisee or any other person and the contract would be deemed as valid. For instance, in “Chinnaya vs. Ramaya” ‘A’ entered into a contract with ‘B’, but the consideration was moved by a third party, ‘C’ to ‘B’ and not by a party to contract i.e. ‘A’. Although ‘A’ is a stranger to consideration, he can still enforce the contract against ‘B’.

3) There must be an Act, Abstinence or Promise by the Promisee to constitute consideration

According to Section 2(d), if nothing is done in exchange for the promise, there is no consideration making the contract null. Hence there must be an act, promise or abstinence in return of promise.

In the situation where there are more than one promisors, they can be bound only if one of them is provided consideration. Also, a mere promise to contribute some amount for the charitable purpose may not be enforceable as held in “Abdul Aziz vs. Masum Ali”

4) Consideration must be real

The consideration should not be impossible in any way be it legal or physical. It should be real and not substantial. However, the consideration is not meant to be adequate. For instance, ‘A’ promises ‘B’ that he can bring back alive a dead person in return of Rs. 1000/-. This is not possible to perform and this is not a valid consideration.

Also, the consideration must not be illegal, immoral or against the public policy.

5) Consideration should not be something which the promiser is already bound to do

If the contract is to be made valid it should involve a consideration that more than what a person already has to do also the person should not be legally bound to perform the specific act. If it is so there is no consideration assumed. Also, if ‘A’ is already bound to perform a particular contractual duty owed to ‘B’, ‘B’’s promise to pay something additional for the same promise is no consideration.

EXCEPTIONS

Section 25 of the Indian Contract Act, 1872, mentions three exceptions to the general rule which says that a contract without consideration is void.

1. If a promise is made out of love and affection in favour of relatives or any other person the promise is assumed to be valid even if there is no consideration.

For instance, mother out of love for her daughter promised to her to purchase land for her.

2. When a person has to compensate for his past voluntary actions it does not constitute consideration but the contract is still valid.

3. A contract is valid even without any consideration if it is a promise to pay a time-barred debt.

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This article is written by Samridhi Sachdeva, pursuing BBA LLB from Gitarattan International Business School, GGSIPU. The link to the linked in profile is. This article tries to talk about the concept of Doctrine of res subjudice and provides a clear view of its objectives and applications.

INTRODUCTION

The common law lays down some principles to ensure justice to every person. It embodies some concepts in the law, to ensure judicial efficiency and provide surety that justice is maintained and achieved in courts. To ensure this, principles like the doctrine of res subjudice and res sub judicata is defined under the Civil Procedure Code, 1908.

Section 10 of the CPC lays down the concept of doctrine of res-subjudice and the section 11 lays down the doctrine of res sub-judicata. The doctrine of res-subjudice talks about the stay of suits whereas the doctrine of res sub-judicata talks about the suits barred in courts.

The law gives the right to people to file any type of suits. But these two concepts were introduced to minimise the trials of court and provide justice to the plaintiff.

Doctrine of Res Subjudice

The word ‘Res Subjudice’ has a Latin origin. ‘Res’ means ‘thing’ or ‘matter’ and ‘Sub judice’ means ‘under consideration of court’ or ‘under a judge’. So, Res Subjudice means matter which is under the consideration of the court. This concept was originated from Roman law as Res Subjudicatae. In the ancient Hindu law, it was known as ‘Purva Nyaya’ or former judgement.

This concept is laid down under Section 10 of the Civil Procedure Code, which defines the ‘stay of suits’. According to the section,

‘No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having the like jurisdiction, or before the Supreme Court.

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit in founded on the same cause of action.’

This states that the court can not run the trial of two or more matter in issue, that is directly and substantially the same. The court has the power to stay on the subsequent suit and can continue with the proceedings of the previously instituted suit.

Also, if any matter in issue is directly and substantially same with any previously instituted suit in Foreign Court, then this Section will not apply, i.e. the powers of Indian court can not be barred by continuing with the matter in issue.

This doctrine only applies to the trial of suits and not to the institution. It does not bar any person to file the suit but it can put stay on the trial of the suit. And the trial of the suit does not mean the dismissal of the suit.

This concept was established to prevent the defendant by being punished for the same offence twice and to save the resources and time of the court.

Illustration

For instance, there are 2 different fruit drink companies, Pulpy and Slushy. And both these companies run nationwide. But Pulpy works from Delhi and the Slushy works from Punjab. The fruit drinks of these two companies have almost similar packing, similar name and similar kind of drinks. So, the Pulpy fruit drink company files a suit in the Delhi court, on 01.01.2018, claiming that Slushy fruit drink company has copied their product idea and style. And on the other hand, the Slushy fruit drink company filed a suit in Punjab court, on 10.01.2018 regarding the same issues. So, the matter in issues is directly and substantially the same. Therefore, section 10 of the CPC will apply and the court will put stay on the subsequent suit by the Slushy company and will continue with the proceedings of the suit filed by the Pulpy company, in the Delhi court.

Ingredients

The court shall proceed with trial of any suit. The word ‘trial’ represents the civil suits. And the court has to put stay on the subsequent suit, no matter at which stage it is, because the previously instituted suit is already pending before the court.
Matter directly and substantially in issue- The issues of the previous and the subsequent suit must be directly and substantially same. Section 10 will only apply if the suits have similar issues, if even one of the issues is different, then this section can not be applied.
Same parties- The suits should be between the same parties for the application of this section.
Same title- The trial of the suit should run on the same title.
All suits are pending- Both the suits should be pending before the courts of competent jurisdiction. The subsequent suit can be pending before the same court as a subsequent suit, or before any court in India, or before any court that is beyond the limits of India but constituted by the Central Government or before the Supreme Court.

Conditions

For the application of this section, the following conditions are necessary:

Two or more suits: When two or more suits with the same issues or directly and substantially the same are pending before the courts, then the subsequent matter will be put to rest.
Same parties: The matter in issue should be necessarily between the same parties to put stay on the subsequently instituted suit.
Same subject matter: The pending suits should be of a similar nature. And must have the same subject-matter, for the application of this section.
Same cause of action: The facts of the suits brought up in the court, shall also be similar to each other.
The court must not ignore to grant relief demanded in the subsequent suit.

Scope and Purpose

The scope of this section is unequivocal, clear, unquestionable and mandatory. It is mandatory, because of the word ‘shall’ in Section 10. The word ‘shall’ implies that the court has to put a stay on the subsequent suit, no matter at what stage it has reached. The court becomes completely responsible to put stay in order to prevent the trial of parallel litigation on the same matter in issue.

Also, the ‘matter in issue’ originates from the Evidence Act, 1872. Matter in issue is of two types:

Matter directly and substantially in issue: Here, ‘directly’ implies immediately or without intervention. And ‘substantially’ implies for essentially or materially.
Matter collaterally and incidentally in the issue.

The purpose of this section is to prevent courts of competent jurisdiction from adjudication and consideration of two parallel suits in respect of the same course of action, same subject-matter and same relief simultaneously. It makes sure that the defendant does not suffer twice for the same offence. It tries to save the resource and time of the court. It saves a person from occurring on the same proceedings and helps to ignore the conflicting decisions.

Exception

When a decree is passed in contravention of this section, it does not convert into nullity. The legal value of the decree passed by the court remains unchanged and intact, even if it disregards this principle. Because the motive and objective of the court is to provide justice to the real plaintiff, so this acts as an exception to this section.

Inherent power to stay

Where the section 10 is not applicable and the court can not put stay on the subsequent matter, the court has inherent power under Section 151 of the CPC to stay a suit or giving a consolidating decree to achieve the roots of justice. And by applying the section 151 to stay a suit, the court may also stay a ‘former suit’ to prevent the abuse of the court proceedings as decided in the case of Ram v. Devidayal, AIR 1954 BOM 176.

Also, this section does not take away the power of the court to pass interim orders.

Conclusion

The doctrine of res sub-judice helps the court to give conflicting decisions on the same matter in issue. And provides a key to hassle-free court judgements. And helps the court to revive its time and resources. By following all the conditions and the necessary ingredients of section 10 of CPC, one can achieve the roots of justice. This doctrine, introduced by common law, helps basically in civil suits.

Unlike, the doctrine of res sub judicata, the matter of the previously instituted suit must not be decided already and prohibits the trial of two parallel suits between the same parties over the same subject-matter.

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This article has been written by Nimisha Mishra, a second-year student of NALSAR University of Law. In this article, the author has explained the Judicial System in India, and how there is a need to reform certain aspects of Judiciary.

INTRODUCTION

The judicial system of India, as we know comprises of Supreme Court, High Court and District Courts, started functioning on 28^th January, 1950. Judiciary plays a lot of essential roles to maintain peace and stabilizes law and order situation of the country. Moreover, judiciary is the nation’s moral conscience, it protects the rights of the citizens, and it also acts as the mediator between Centre-state disputes. Judiciary does not discriminate between rich or poor, educated or uneducated, it treats everyone alike who comes before it to seek justice. Despite all these achievements, a stark difference between an ideal judiciary and reality of judiciary can be observed. The reality being, most of the time judiciary is slow, the appointment of judges is mostly on the basis of hierarchy rather than merits. The representation of women as a judge or advocate is very disproportionate as compared to men. Judiciary in India is a source of confidence among the citizens. Therefore reformation in some aspects is necessary in the judiciary in order to preserve its value.

Structure of judicial system in India

Judiciary system in India consists of Judges and magistrates as a core of Judiciary. Structure of judiciary is in the form of hierarchy with Supreme Court at the top, below that is High Court and below High Court is District Court. The main function of Judiciary includes Dispute Resolution, Judicial Review and upholding the law and enforcing fundamental rights of the citizens.

There is a three tire division system. Every District Court has a jurisdiction over its District, similarly, each High Court has jurisdiction over state. Supreme Court of India is an apex court with jurisdiction over all of India. Supreme Court being the highest court, its decision is final and binding on all the subordinate courts. It acts as a guardian of the constitution and of citizen’s fundamental rights.

Constitution of India has three main organs that are Executive, Legislative and Judiciary. All the three bodies are independent of each other and their main function is to facilitate the smooth functioning of the country and to make it a safe space for people to live at.

Independence of Judiciary here denotes that it is not controlled by the government or the party in power. Judiciary is an absolute essential body of the constitution since it is the protector of citizen’s right from the excessive force of the legislative and executive body. Supreme Court is vested with original, appellate and advisory jurisdiction.

Generally, cases are filed in the lower court and then later they escalated as per the satisfaction of the parties concerned. But at the time of infringement of fundamental rights, an aggrieved party can directly appeal either in Supreme Court or in High Court through various writs available with him.

Problems within the structure

In an ideal situation, the model of Judicial System is structured in such a way which will ensure justice to every individual. But this ideal situation is far from reality.

The inefficiency of courts is a major challenge due to “Tarikh pe Tarikh” there is a lot of delay in providing justice. This delay is in itself an injustice and hence the saying goes that “justice delayed is justice denied”. The main reason for this delay is the pendency of a large number of cases due to the shortage of judges in the court. The problem is not the filing of a large number of cases; it is the less number of cases coming out from the court after being solved.

The connotation of the court as higher in itself promotes hierarchy. Even though the work of all the judges in the judiciary is same and no distinction exists in the constitution, still the courts are given the status of lower or higher judiciary on the basis of their jurisdiction. This hierarchy is doing a great disservice by acting as a de-motivator among the judges in their role of justice delivery.

Another main concern is the unequal representation of genders. Despite the fact that a large number of women are there in the law colleges but still their representation in the legal profession is very limited. It can be seen that the top positions of judge are mostly occupied by men. In the history of Judiciary first time, three women made to the position of judges and are currently deciding cases in the Supreme Court.

The new concern that has arisen is the young student in their mid-twenties becoming a magistrate. The problem here is the legal experience of these young magistrates since they are fresh graduates from the college and they only have book knowledge. Apart from all the field of work, the law is a field which requires years of practical experience, since in this field the innocence or guilt of a person is determined. His respect, life and public image depend upon the hands of the judge pronouncing his fate.

Access to justice is the most essential requirement to fulfil an individual’s entitlement to justice; it ensures that justice does not become a thing of few. Although courts are available to all but its accessibility is denied by the various factors like geographical and location position. The inefficiency on the part of the government to ensure the access of justice creates barriers for people to enjoy their socio-economic, civil and political rights available to them.

Conclusion

With the advancing society citizens are acknowledging their rights it is a need of an hour that the functioning of the judiciary should be improved to meet the ideal situation. It is high time that Judiciary in India should adopt a fast mechanism to deal with mammoth cases.

For the existence of the rule of law, an effective judicial system is necessary. This judicial system should be able to enforce the rights of citizens in a proper manner which inspires the sense of confidence in the administration of justice. For the country with huge population like India, current judicial system if enforced properly is sufficient to ensure justice to its citizens.

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This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the general defences available under the Law of Torts.

INTRODUCTION

When an action for tort is brought against the defendant, the person will certainly be made liable if he had committed the Act. However, in every action for tort, certain defences are open to the defendant, by way of which he can escape his liability. There are eight General Defences are as follows:

Voleneti non fit injuria
Plaintiff the wrongdoer
Inevitable Accident
Act of God
Private Defence
Necessity
Statutory Authority
Mistake

All the general exceptions are discussed in detail below:

1. Volenti non-fit injuria

If the plaintiff has consented to a wrongful act with free consent, without the threat of fraud or coercion to acknowledge the danger voluntarily, he shall have no right to sue the defendant under which both have consented. Consent happens when the plaintiff shows interest in the actions of the defendant. As a result, no man can impose a right that he has willingly surrendered or abandoned and in the case of Hall v. Brooklands Auto-Racing Club^{^[1]}, the court held that the plaintiff had deliberately taken the risk of watching the race. It’s a type of injury that anyone watching the event could predict. In this case, the defendant was not liable.

2. Plaintiff the wrongdoer

The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong. This defence arises from the maxim “ex turpi causa non oritur action” which means no action arises from an immoral cause. Thus, an unlawful act of the plaintiff could lead to a valid defence. If the defendant claims that the plaintiff is the wrongdoer himself and is not entitled to damages, it does not mean that the court will leave him free from responsibility, but that he will not be liable under that heading. In the case of Bird v. Holbrook^{^[2]}, the plaintiff was entitled to recover the damages he had suffered as a result of the sprint guns he had put in his garden without knowledge of the same.

3. Inevitable accident

The inevitable accident was a mishap. It can not be prevented despite the attention and care of the ordinary and intelligent individual. It is also a successful defence if the defendant can show that it neither intended to harm the complainant nor could it prevent injury by taking proper care of him. There is no inevitable accident unless the defendant can prove that something happened that he did not have control over and that the effect could not have been avoided and in the case of Stanley v. Powell, The defendant fired at a pheasant, but the bullet struck the plaintiff after the oak tree had been reflected, and he suffered serious injuries. The incident was considered an inevitable accident and the defendant was not liable.

4. Act of God

The act of God or Vis Major or Force Majeure used in cases where an event over which there is no human control of the act and the damage is caused by the forces of nature. This is beyond human imagination and can not be prevented by human intervention. Act of God is also defined as “Action induced solely by the violence of nature, without any human interference”. Some of the essentials of Act of God are:

The act should be the result of a natural force.
It’s extraordinary in nature.
No human interference at all

In the case of Nichols v. Marshland^{^[3]}, there has been an exceptional storm, the highest in human history. It caused the lake bank to burst, and the escaped water carried away four bridges belonging to the plaintiff. It was therefore held that the bridges of the plaintiff had been swept by an act of God, and that the defendant would not be held liable for the same thing.

5. Private Defence

Private defence refers to the defence, where the defendant seeks to protect his or her body or property or any other property and harms another person with reasonable force in imminent danger, where there is no time to report to the authority, it is, therefore a private defence.

6. Necessity

If an action is taken to avoid more damage, even though it has been done deliberately, it is not actionable and acts as a good defence. It gives a person or state the right of using or taking away the property of another. It is well described in the maxim “Solus Populi Suprema Lex,“ i.e. people’s wellbeing is the ultimate law. The act that causes certain damage is, therefore, an excuse when it is done for a large number of people or to avoid harm. It can be explained in the case of Carter v. Thomas^{^[4]}, the defendant, who breached the plaintiff’s property in good faith to extinguish the fire in which the firefighter had already served, was held responsible for the trespass.

7. Statutory Authority

If an act is authorized by a legislative statute or enacted by the legislature, the defendant will not be held responsible for damages arising from the statute. The powers conferred on the legislature should be exercised with caution so that no unnecessary damage is done and the person must act in good faith and not exceed the powers conferred on the legislature. In the case of Hammer Smith Rail co. v. Brand^{^[5]}, the plaintiff’s property value was depreciated as a result of loud noise and vibrations produced while the train departed from the railway line, which had been made under statutory provisions. The court held that nothing could be claimed for the damage suffered as had been done under the statutory provisions. In the case, the defendant was held not liable.

8. Mistake

If the defendant acts based on a misconception in certain situations, he may use the defence of error to avoid liability under the law of wrongdoing. This defence can be well explained in the case of Consolidated Company v. Curtis^{^[6]}, the auctioneer auctioned some of his customer’s goods, believing that the goods belonged to him. But then the true owner filed a suit against the auctioneer for a conversion error. The court held that the auctioneer was liable and stated that the mistake of fact was not a defence, which could be pleaded in this case.

Conclusion

Thus, to sum up, there are various general defences available to the defendant which can be pleaded by him to escape the tortious liability. The plaintiff must bring an action against the defendant for a particular tort, the plaintiff is required to prove all the essentials of that particular tort. If the plaintiff fails to prove all the essential ingredients, the defendant cannot be made liable for the act. However, once the plaintiff proves all the ingredients, the burden of proof then shifts to the defendant who pleads for the defence.

^[1] (1932) 1 KB 205

^[2] 1825

^[3] (1876) 2 ExD 1

^[4] 1976

^[5] [1869] LR 4 HL 171

^[6] (1892) 1 QB 495

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This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “The Doctrine of Judicial Review in India” and is qualified in its entirety by reference to the Constitution of India.

INTRODUCTION

Article 13 of the Indian Constitution states the compulsion of judicial review as described the fundamental rights in Part III. It has been laid down that neither the state nor the Union shall make any such rules that may take away or abridge the essential rights of the people of the country. Judicial Review is an asset recognized as a basic and vital requirement for the construction of a novel civilization in order to safeguard the liberty and rights of the individuals and it is vested significantly on the High Courts and the Supreme Courts of India. It is the power of Courts to pronounce upon the constitutionality of legislative and executive acts of the government which fall within their normal jurisdiction and any law made by the Parliament or the state legislature will be considered void if it contravenes the provisions of the article under the fundamental rights. One can understand judicial review can be as a court proceeding where the lawfulness of a decision or action is reviewed, usually held in the Administrative Court, by the Hon’ble Judge.

When the constitutional values are harmed by either the Legislative, Executive, or the Judiciary, and any right that been made definite to the inhabitants of the country by the Indian Constitution have been, judicial review plays a crucial role in providing relief and acts as a protector safeguarding the well-justified rights of the citizens. Whether the laws have been correctly applied and whether the right procedures have been followed is the concern behind filing for a judicial review. Judicial Review is made available as a remedy in cases where no effective means of the challenge is left with the aggrieved party.

It is important to note that under Article 246 and Schedule 7 of the Constitution of India the working zone of the regulation construction between the state and the centre has been marked which can be referred to in case any difficulty arises between the state and the centre.

Evolution of Judicial Review

For the first time ever the Doctrine of Judicial Review was propounded by the Supreme Court of America. Even though the Constitution of America did not expressly provide a provision regarding judicial review but the Hon’ble Supreme Court of America assumed this doctrine in the case of Marbury v Madison.

In India the Doctrine of Judicial Review was being practised even before the Constitution of India was implemented, thanks to the British Parliament which through the Government of India Act, 1935 introduced the Federal System in India gave both, the centre and the state, separate plenary powers in their own territories. This Federal system was to function as an arbiter in the central and state relationship and to inspect any violation of the Constitutional guidance in the distribution of powers. Here, the doctrine of Judicial Review was not discussed explicitly but with the constitution being federal now the court was indirectly held liable with the function of interpreting the constitution and determining the constitutionality of various legislative acts passed.

This system was followed in India for a significant time and was able to uphold its dignity through various constitutional decisions dealt by the Federal Court of India and the High Courts. Later, this system was inherited by the Supreme Court from its predecessor because the wise constitution-makers were of the view that the Supreme Court of India should be graced with the power of judicial review.

If one was to look over the evolution of judicial review from a broader perspective, this doctrine has evolved into three dimensions, which are:

Protection of essential rights provided under Part III of the Constitution of India.

Authorization of the disinterest of organizational achievements.

Interrogating the interest of the public.

Judicial review in India

A very adaptable and healthy system of judicial review has been envisaged by the constitution of India where the duty to maintain the spirit is on the Indian Judges. The courts have been granted a wide range of power of judicial review by the statutory and constitutional provisions and these provision judicial review by the constitution and statutes are very different from each other and the court has the responsibility to practice these powers with great caution and self-control has to be practised. Phasing out from the boundaries of appropriate influences of judicial assessment that has been laid down is not expected from the courts at any cost.

In the current democratic pattern in the country, the courts are not expected to ask the aggrieved party to wait for the opinion of the public against the tyranny of the legislative and take up a passive attitude, but it has been empowered by the constitution to perform a more active role and, if there’s a violation of the constitution, declare the legislation void for being ultra vires.

In India, the Doctrine of Judicial Review plays a very important role to assess in case either the legislature, executive, or the judiciary harms the values of the constitution of India or denies the rights of the citizens. Since, a Parliamentary form of government exists in the country, in the process of decision making and policymaking every section of people are involved. The groundwork of social equity is the application of rules which is the primary duty of the court. Everyone who is invested in public duty can be held accountable and they are obligated to work within the democratic provisions provided under the Constitution of India. Under Article 226 and 227, and Article 32 and 136, the influence of Judicial assessment has been laid down in case of a High Court or the Supreme Court, respectively.

One may say the concept of Separation of Power and Rule of Law is Judicial review itself in India.

In India, the fundamental subjects of Judicial review relate to

Violation of fundamental rights.

Violation of various other constitutional restrictions embodied in the constitution.
Enactment of the legislative act in violation of constitutional mandates regarding distribution of powers.
Delegation of essential legislative power by the legislature to the executive or any other body.
Violation of implied limitations and restrictions.

Mechanism of Judicial Review in India

Three aspects are covered by judicial review in India.

The Judicial review of Legislative actions.
The Judicial review of Judicial actions
The Judicial review of Administrative Actions.

In the case of L. Chandra Kumar v. Union of India ((1997) 3 SCC 261), the Supreme Court discussed these facets of judicial review and stated that the legislation has to be interpreted by the High Courts to the limit that the Constitutional values are not disrupted, and in order to achieve this end the Judges need to keep in mind that equilibrium of control, which has been specified in the Constitution of India, should not be disturbed.

ARTICLE 13 OF THE CONSTITUTION OF INDIA

An express provision for Judicial Review has been provided under Article 13 of the Constitution of India. It provides for the judicial review of legislation of India and is applicable in a retrospective manner as well. It confers the right on the High Court and Supreme Court of India to declare any legislation unconstitutional if it is held inconsistent with any provision of Part III of the Constitution. It entitles the court to strike down or declare any law void under Article 13(2) if it abridges any fundamental right.

In the case of A. K. Gopalan v. State of Madras (AIR 1950 SC 27), the court held that all laws must be in conformity with the constitution and it is on the judiciary to decide whether any enactment is constitutional or not, and a similar idea was held in the case of State of Madras v. V. G. Row (AIR 1952 SC 196), as well.

Some Important Judicial Pronouncements to follow

In the case of Shankari Prasad v Union of India (AIR 1951 SC 458), it was held by the six judge bench out of which five judges did not agree to amending the essential rights provided in the Indian Constitution, however, in the case of Keshavananda Bharati v State of Kerala (AIR 1973 SC 1461) overruling the Golaknath v. State of Punjab case, six out of seven judges held that modifying influence the Parliament has and all portions of the Constitution can be amended. The Supreme Court held that the essential rights cannot be modified.

After taking inference from cases like Keshavananda Bharati v. State of Kerala, Minerva Mills Ltd. and ors. v. Union of India (AIR 1980 SC 1789), Indira Gandhi v. Raj Narain (1975), and Chandra Kumar v. Union of India and Ors. (AIR 1997 SC 1125), in R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), it was held that Judicial Review is an integral part of the constitution.

Some other landmark cases which further illustrate the importance of Judicial Review are: Brij Bhurshan v. State of Delhi (AIR 1950 SC 129), Romesh Thapper v. State of Madras (AIR 1950 SC 124), Sajjan Singh vs State of Rajasthan (AIR 1965 SC 845), ADM Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207), S.P Sampat Kumar v. Union of India (AIR 1987 SC 386), Shayara Bano v. Union Of India (W.P.No. 118 of 2016), Joseph Shine v. Union of India (AIR 2018), Anuradha Bhasin v. Union of India (2020 SC), and P.U.C.L v. U. O. I (AIR 1997 SC 568).

To conclude, over the years judicial review has presumed a permanent status by the means of judicial decisions and is a part of the basic structure of the constitution of India, thus, it cannot be done away with but has to be understood as a very important in maintaining harmony and keeping a restrain on the actions of the executive, legislative, and judicial government bodies.

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In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses the Powers and Duties of Directors along with the kinds of Directors under the new Indian Companies Act, 2013.

INTRODUCTION

The companies act what is in force was revised in 2013 and prior to this amendment, there was no statement of legal obligations or duties or liabilities of directors. The acts of directors were previously supervised in the context of their powers in different positions in different companies according to section 291 of the Companies Act, 1956 and other applicable laws, along with their several legal precedents as laid down in common law. The Companies Act 2013 specified the roles and responsibilities of a director alongside amending section 149 which introduces the concept of independent director which was previously a part of listing agreements only, and the duties and liabilities of the same.

Director & the Board in Companies Act

The companies act, 2013 in section 2(34) defines the term “director” as “a director appointed to the Board of a company”. In the same definition clause “Board” in relation to a company, is defined as the collective body of the directors of the company.

As per the amended Companies Act provisions, every director shall be appointed by the company board members and the stakeholders in annual general meeting, provided they have been allotted the Director Identification Number (DIN) and on submission of a declaration that he/she is not disqualified to become a director. Section 166 (4) provides for the appointment of the new director, approval of minimum two-thirds of the total number of the existing directors of the company is needed, and such appointments may be made once in every three years and casual vacancies of such directors shall be filled.

The Power and Duties of a Director

Section 166 of the Companies Act, 2013 states the power and duties of Director Act which applies to all types of Directors. The Duties and Responsibilities can be broadly classified into two categories:

Promoting corporate governance through the sincerest efforts and being proactive solving of critical corporate issues and mature decision making to avoid unnecessary risks to the corporate entity and its shareholders.
Keeping a balance between the interests of the company and its stakeholders, instead of his/her personal interests.

The powers and duties of Directors in accordance with Companies Act, 2013 is mentioned below;

A director has to act in accordance with the Articles of Association (AOA) of the company in any possible circumstances and cannot arbitrarily take any decisions according to his/her own whims and fancies.
A director must always pursue the best interests of the stakeholders of the company, but also maintain a balance between the objects of the company and Shareholder’s interests in good faith.

A Company cannot make a contract before it is incorporated because, before incorporation, it has no legal existence. Therefore, a Company after incorporation cannot ratify a contract previously made or deny the Contract and that decision depends on the existing directors of the company. It must make a fresh contract. In the case of Kelner v. Baxter the Court of Common Pleas held that where a person purports to sign a contract as an agent, but has no principle in existence at the time, he is personally responsible.

A director is free to use his/her own judgement to exercise his duties according to the present circumstances at hand but always keeping in mind the interests of the company and with due and reasonable care, skill and diligence.

In the case of R.K. Dalmia and others v. The Delhi Administration it was held that,

“A director will be personally liable on a company contract when he has accepted personal liability either expressly or impliedly. Directors are the agents or the trustees of a Company.”

A director ought to always know about any conflict of interest situations and should always try to avoid such conflicts for the greater interest of the company.
Before approving any related party transactions, the Director of the company has to ensure that adequate deliberations are held and such transactions are being approved in the sole interest of the company.
Confidentiality of sensitive proprietary information, Commercial Secrets, technologies, unpublished price to be maintained by the Directors of the company and should not be disclosed to any third party unless approved by the rest of the board or required by law.
A Director of a Company must not assign his office and any assignment so made, and if done those acts shall be deemed void.
If a director of the company contradicts the provisions of this section such director shall be penalized with fine which shall not be less than One Lakh Rupees and which may get extended to five Lac Rupees depending upon the facts and circumstances.

A director is always bound by the Latin maxim delegatus non-potest delegare. He/She gets appointed by the Shareholders because of their faith in his/her skills, competence and integrity and they may not have the same faith in another person delegated by the Director. It was held in the case of J.K. Industries v. Chief Inspector of Factories that the directors being in control of the company’s affairs cannot get rid of their managerial responsibility by nominating a person as the occupier of the factory or delegating his/her own duties to another person not chosen by the Shareholders.

Types of Directors

There are 8 kinds of Directors mentioned in the 2013 acts but before discussing the types here are the minimum requirement of the number of Directors for various kinds of”

i. One Person Company:- One Director.

ii. Private Limited Company:- Two Directors.

iii. Public Limited Company:- Three Directors.

According to the provisions of the amended act a maximum of 15 directors can be appointed in any format of Company be it OPC or Public or Private. But in special circumstances, bypassing Special Resolution a Company can increase the number of Directors beyond 15. The types of Directors are mentioned hereunder;

1. Residential Director:- Residential Directors are those Directors of the Companies who have stayed at least 182 days in India in the previous calendar year or previous financial year as per Section 149(3) of Companies Act,2013.

2. Independent Director:- Independent director in a company, means a director other than a Managing Director, Whole Time Director Or Nominee Director as per section 149(6) of Companies Act 2013. As per Rule 4 of Companies Act 2013, some companies have to appoint at least two(2) Independent Directors;

A} IF, Public Companies having Paid-up Share Capital-Rs.10 Crores or More;

B} IF, Public Companies having Turnover- Rs.100 Crores or More;

C} IF, Public Companies have total outstanding loans, debenture and deposits of Rs. 50 Crores or More.

3. Small Shareholders Directors:- A listed Company may have one director elected by small shareholders. May appoint upon notice of not less than 1000 Shareholders or 1/10th of the total shareholders, whichever is lower have a small shareholder director which elected form small shareholder.

4. Women Director:- According to Section 149 (1) (a) of the 2013 act, certain categories of companies require to have at least One Woman director on the board. Such companies include any listed company and any public company-

IF, they have Paid Up Capital of Rs. 100 crore or more, or
IF, they have a Turnover of Rs. 300 crore or more.

5. Additional Directors: As section 161(1) of the New Act an Individual can be appointed as an Additional Directors by a company at the discretion of the existing the Directors and members of the board.

6. Alternate Directors:- A company May appoint if the articles confer such power on the company or a resolution is passed (if a Director is absent from India for atleast three months) as per Section 161(2) Companies Act,2013.

8. Nominee Directors:- In case of mismanagement in running the Company or any kind of Oppressive Directors who are usually appointed by certain shareholders or third parties through contracts or lending public financial institutions or banks or by the Central Government as per Companies Act,2013.

9. Shadow Director:– Shadow Directors are those directors or members not present at the Board of Company Board but has some control over the functions of the company and can easily be appointed as a member of the Board of Director based on his/her will.

Conclusion

The above analysis deals with Powers, Duties as well as liabilities of Directors as per the Companies Act 2013 and also deals with the types of Directors a company can have. The 2013 enacted Corporate Governance in the companies system. However, more than adherence to purpose its relies on adherence for survival which may fail as we have already seen. Hence, here are some suggestions for the improvement of the existing legislature;

It needs to be more straight forward while assuring shareholders interest.
Corporate Governance needs to be implemented into the core of the system through tangible benefits to the followers and only then it will become the goal of the companies and will be followed religiously and possibly all stakeholders and shareholders of the companies will have faith in the Companies Act.

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This article is Preeti Bafna pursuing BBA LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, she has tried to explain the extent and operation of the Indian Penal Code. While understanding the Indian Penal Code 1860 it is important to know about the operation of the Indian Penal Code. The Indian Penal Code is the main criminal code of India. It extends to the whole of India except to the state of Jammu and Kashmir.

History of the Indian Penal Code

During the period of British, the Governor-General appointed the “Indian Law Commissioners” to judge the condition of the penal laws prevalent in India and suggest a comprehensive Penal Code. In the year 1834, the First Law Commission was headed by Lord Macauley for drafting the Indian Penal Code. The Draft goes through by various levels of scrutiny and was finally passed and received the Governor General’s assent on 6^th October 1860 and came to force on 1^st January 1862.

Extent and Operation of Indian Penal Code

Chapter 1 (Sections 1-5) of the Indian Penal Code deals with the extent and operation. According to Section 1 of the Code, the Name of the Code shall be Indian Penal Code and the same shall apply to the whole of India except Jammu and Kashmir wide Article 370 of the Constitution of India. Every person will be liable to punishment under the Indian Penal Code for every act or omission contrary to the Act and not otherwise.

Section 2 of the Act deals with the Intra Territorial Jurisdiction, i.e. offence committed in India and punished under the Code. To cite the code it must be proven that the offence was committed within the territory of India. The term “Indian Territory” has been defined to include land, water (inland water including the river, canals etc.) and the portions of the sea.

CASE LAWS

In the case of State of Maharashtra vs. M.H. George (AIR 1965 SC 722), it was held that the foreigner who enters India by accepting the allegiance of Indian laws is also liable for punishment in case an offence is committed under the code and that he cannot take a plea of “ignorance of the law”.
In the case, of R vs. Esop [(1836) 7 ER 203], it was held that no person can take the plea of not being aware of the criminality of the act in the country.

In this case, the person had contended that unnatural offence was not a criminal act in his land of origin Baghdad and that he was not aware of the fact that the same was a criminal act. Such an argument was negated and the person was convicted.

In the case of Mobark Ali vs. State of Bombay (AIR 1957 SC 857), Pakistani citizen made a false representation while in Karachi the complainant in Bombay through letters, phone calls and telegrams which induced the complainant to part with an amount of around Rs. 5 lakhs to the agent of the accused in Bombay so that rice could be shipped from Karachi to Bombay. NO rice was supplied. The accused was caught in England and brought to Bombay where he was prosecuted and convicted under Section 420 for cheating. The Supreme Court upheld the conviction even though the person was physically present in Bombay.

The application of the Act depends upon the place where the offence is committed and not on the place of residence of the offender. So, if a person physically present

Outside India can commit an offence within India and shall be punishable under the code.

Section 4 of the IPC defines the application of the code to an offence committed outside India by an Indian citizen and offence committed on a ship or aircraft registered in India. The rationale behind this extension of criminal jurisdiction of the courts is based on the contention that every sovereign state can regulate the conduct of its citizen, where they might be for the time being. Clause 2 of section 4 gives Admiralty jurisdiction to the Indian Courts and the power to try offences committed on any ship or aircraft registered in India. A ship is considered to be a floating island belonging to the country whose flag it is bearing. Thus all the vessels are considered as the part of the territory of the country whose flag they fly.

Those Officers engaged in the Government services are provided with this benefit as they are serving the nation. Treating them in the same manner as all offenders are treated under the Indian Penal Code may not be right.

If there are situations where the person has been discharged or dismissed from his duty from the services and he is no longer involved in the service of serving the nation so that the provisions of IPC will be accordingly applicable to such person.

The introductory sections of the code specify that no person shall be discriminated based on his nationality, colour, caste, creed, and rank. If a person has committed an offence which is against the public policy, wrong against the society, he shall be punished under the provisions of the Indian Penal Code.

Exceptions to Applicability of the Act

Section 5 IPC states that the laws as well as provisions of this code which will not apply to the categories which have already existing laws to deal with the respective matters.

Section 5 of the Indian Penal Code, exempts the jurisdiction of IPC in the cases related to the officers engaged in the service of the Government of India. Some of these issues are the desertion of officers, soldiers, sailors or the airmen.

For example that the issues related to the rebellion against the constituted government and desertions of officers are dealt with the separate laws. In case of any issue that has arisen in the Indian army, to resolve such an issue, there is separate act to solve that issue like Army Act 1950.

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This article has been written by Alok Kumar. In this article, he has tried to explain the role of Mediation in order to achieve Justice. Along with this, he has also discussed the importance of Mediation in todays time.

Introduction

ADR I.e. alternative Dispute Resolution as it very well may be effectively comprehended by the words that ADR is an alternative technique to resolve disputes now first we need to comprehend that what is the conventional method that is “court”. In India, as we all know there are a great deal of cases pending and courts can’t resolve all the cases and the Indian judiciary is inefficient to manage the pending cases. The administration knows about this reality and that is the reason the legislature has supported for setting up in excess of a thousand fast track courts and these courts help a ton to break up and settle a large number of cases. Be that as it may, much after that the number of pending cases is expanding day by day.

To manage this sort of circumstance ADR can assume an extremely indispensable job. ADR can resolve the dispute swiftly and the decision that gets through this ADR is acknowledged by both the parties. ADR is generally acknowledged on the grounds that it settle the dispute in practice a wide range of issues like commercial, civil, family and industrial issues, and so on. (1)

Relation of ADR with Constitution & Other Acts

At the point when we talk about ADR in the Indian situation so ADR in India was founded on the Constitutional article 14 right to equality and Article 21 right to life and personal liberty. Article 39 A, DPSPs, are likewise included in the ADR for giving justice and free legal aid, Furthermore, when we talk about explicit acts that are connected with ADR so for the Arbitration and Conciliation Act 1996 and legal services authority act 1987 is there. Section 89 of CPC 1908 likewise discusses the alternative method, this section gives that opportunity to the individuals, in the event that it seems to court there exists a component of settlement outside the courts at that point court figure the particulars of a potential settlement and allude the equivalent for arbitration, conciliation, mediation and Lok Adalat. (2)

Why ADR is the need of the Time?

Since this procedure is quick thusly less time-consuming in contrast with conventional court procedures. Less expensive than litigation and saves money as well. It is adaptable and liberated from the technicalities of courts and individuals can resolve their disputes without any problem.

It is a nonbinding procedure with the exception of from few methods people are allowed to express and they can reveal the true facts identified with the case.

Types of ADR

Arbitration
Conciliation
Negotiation
Mediation
Lok Adalat

But there we only understand about mediation and how mediation is a tool for access to justice.

What is the Significance of Access to Justice?

In 1999 the then chief justice of the family court Alastair Nicholson, and sue lynch wrote: “any conversation of access to Justice should be set inside a more extensive setting than that of the legal framework alone and in the time of 2009 the access to justice task force in the commonwealth attorney, journals dept. Published ‘ a key structure for access to justice in the federal civil justice framework. Access to justice is key to the standard of law and basic to the enjoyment regarding fundamental human rights, it is a basic precondition to social incorporation and a basic component of a well-working majority rule government. An effective justice system must be available in the entirety of its parts without this, the framework dangers losing its significance to, and the regard of the network it serves availability is about more than straightforward entry to land stone structure or getting legal advice. While courts are a significant part of the justice system, there are numerous circumstances courts are the last spot individuals will get the result they are searching for to determine issues.

The basic test is whether our justice system is simple, reasonable, and affordable. It is additionally significant that the framework gives viable early mediation to assist individuals with settling issues before they raise and lead to digging in a disservice. (3)

An alternative mechanism to improve value and access to justice and accomplish lower cast civil dispute resolution, in both metropolitan regions and provincial and remote communities and the expense and advantages of these.

Where parties can’t arrive at a private resolution, the civil justice system gives them different approaches to determine the dispute and mediation is one of the ways.

What is Mediation?

Mediation is one of the methods of alternative dispute resolution(ADR) accessible to parties. Mediation is basically a negotiation encouraged by an impartial third party. Unlike arbitration, which is a procedure of ADR fairly like a trial, mediation doesn’t include decisions by the impartial third party. ADR techniques can be started by the parties or might be constrained by enactment, the courts, or legally binding terms.

Is Mediation right for you?

At the point when pieties are reluctant or unable to resolve a dispute, one great option is to go to mediation. Mediation is commonly a short term, structured, task-situated, and “hands-on” process.

In meditation, the disputing parties work with an unbiased third party, the mediator, to determine their disputes. The mediator encourages the resolution of the parties’ disputes by regulating the exchange of information and the haggling procedure. The mediator enables the parties to discover shared opinions and manage unrealistic desires. The individual may likewise offer inventive arrangements and help with drafting a final assessment. The role of the mediator is to decipher concerns, transfer information between the parties, outline issues, and characterize the issues

When Is Mediation Required?

Mediation is generally a voluntary procedure, albeit now and again resolutions, rules, or court orders may require participation in mediation. Mediation is regular in small claims courts, housing courts, family courts, and some criminal court projects and neighbourhood justice system.

Dissimilar to the litigation procedure, where a nonpartisan third party (normally a judge) imposes a decision over the issue, the parties and their mediator commonly control the mediation process – choosing when and where the mediation happens, who will be present, how the mediation will be paid for, and how the mediator will interface with the parties. (4)

What is the role of the Mediator?

Every time the last decision is taken by the parties and the mediator doesn’t decide anything and he has no power to decide the dispute between the parties and essentially put he is the guardian of the procedure and he can’t give his recommendation gave it is evaluative mediation. Be that as it may, what does the mediator do is he simply offer his input and attempt to come to a conclusion which is generally of the parties by their own points.

Procedure

Opening statement
Joint session
Separate session
Closing

In the opening statement, the mediator just gives all the information about his appointment and he proclaims that he is an unbiased individual and he has no interest in the subject matter. In the joint session, the mediator attempts to comprehend the facts and the issues of the case and he assembles each data identified with the dispute by welcoming both the parties and parties present their case and give their point of view looking into the case.

In the separate session fundamentally mediator accumulates information by taking both the parties in confidence separately and he attempts to comprehend the core of the dispute. In the wake of hearing both the parties and when he comprehends the entire dispute, he attempts to make alternatives for settlement through parties on the statement, facts which are given by the parties subsequent to being asked by the mediator.

Mediation is not quite the same as conciliation as conciliation is the formulation of opinion and conveyance of verdict. Be that as it may, in mediation, a mediator is just a facilitator and just render his opinion in the dispute and he can convey his verdict with respect to the contest anyway the conciliator plays more interventionist role and make a proposition for the dispute and this was decided in the case of Salem Advocate Bar Association v. U.O.I; in this case, SC held that mediator is merely a facilitator while the conciliator by making proposals for a settlement of the dispute and by reformulation the conditions of the settlement assume a progressively dynamic the mediation is the procedure of structured negotiation including various stages like a joint session, introduction, separate session and so on.

How is Mediation a Tool for access to Justice?

As we already understood that what is the significance of access to justice and how it is related to ADR now let’s try to understand how it is a tool for access to Justice.

At the point when parties can’t arrive at a private resolution then the civil justice system gives them different approaches to determine the contest mediation at that point turns into the most embraced structure for this since it is the nonbinding decision by the mediator. Parties can without much of a stretch access the Justice through their own particular manner by giving the fact to the mediator and thus resolve the dispute, access to Justice implies the capacity to get Justice by any individual and the most ordinary method for getting justice is through a court of law yet nowadays courts are overburdened by loads of cases at the principal example court alludes the parties to determine the dispute through mediation.

As has just been expressed that a mediator is a nonpartisan third party that goes about as a guardian of the procedure without mediating in the topic makes it a method for settling disputes agreeably and it additionally is a swift and adaptable method for resolving disputes with sets aside both money and time. Since mediation isn’t a procedure to be recorded for the public record their for it likewise spares the generosity of the parties from being discoloured. Every one of these highlights of mediation makes it the fittest method for resolving disputes between parties in today’s time when the courts are troubled with cases. (5)

CONCLUSION

Mediation is one of a few ways to deal with resolving disputes It contrasts from the antagonistic resolution process by temperance of its simplicity, familiarity, flexibility, and economy. Mediation gives the chance to parties to concur terms and resolve issues without anyone else, without the requirement for legal representation or court hearings.

Why mediation is important and how it is a tool for access to justice, following are some of the benefits which typically associated with mediation:

Recognition
Empowerment
Speedy trial
Economical
Confidentiality
Quality of settlement
Avoid bad outcomes

The prior is only a portion of the convincing reasons to mediate disputes. Besides, there is only here and there any genuine drawback to mediation. While some may hesitate “to lay it all out there” in mediation, in this period of disclosure driven litigation, the old “trial by ambush” long stretches of civil litigation are progressively turning into a relic of times gone by. Mediation works not just on the grounds that it centres around the parties, own interests, and agendas. yet in addition since it gives the chance to parties to move beyond dispute proficiently and graph their own future.

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This article has been written by Aaditya Kapoor, a law student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light upon contingent contracts, with special emphasis on two of its types: indemnity and guarantee.

According to Section-31 of the Indian Contract Act, the term ‘Contingent Contract’ is defined as a contract that requires action or abstinence from action, depending upon occurrence or non-occurrence of some event contingent to said contract. Simply put, contingent contracts are those where the Promiser only fulfils his obligation when certain conditions are met. While a contingent contract is based on an absolute commitment to do something in the event of a particular future occurrence, the agreement is conditional in the sense that the party is only liable to fulfil if the event happens (or does not occur).

This article shall shed light on two major types of Contingent Contracts: Indemnity and Guarantee.

CONTRACT OF INDEMNITY

An indemnity contract is one of the most significant types of trade contracts. Many businesses depend on such contracts, such as the insurance industry. This is because such contracts are of a sort. We ultimately allow companies to account for their losses, and therefore increased their risks. That is extremely important for both small and large enterprises. An insurance deal ultimately includes one party agreeing to make up its damages to the other. Such losses may occur either because of the other party’s actions or someone else’s. To compensate for something basically implies to make a loss fine. In other terms, one party must reimburse the other in the event that it experiences any damages. For instance, A promises to deliver some goods to B every month for Rs 2,000. C steps in and offers compensation for the damages of B if A fails to produce the product in this way. That is how B and C enter into mutual indemnity agreements.
An insurance policy is somewhat close to that of benefit contracts. The insurer here agrees to indemnify the insured for his damages. He gets appreciation in return in the form of a premium. However, this sort of exchange is not exclusively regulated by the Contract Act. This is because there are unique requirements for insurance contracts in the Insurance Act and other similar rules.

ESSENTIAL ELEMENTS OF INDEMNITY CONTRACT

1. Parties to Contract: There must be two parties, namely, the promisor or compensator, and the promisor or compensator.

2. Protection of Loss: An indemnity contract is concluded with a view to protecting the promisee from the loss. The loss may be caused by the Promiser’s or any other person’s actions.

3. Express/Implied Clause: The indemnity contract either be explicit (i.e. worded or written) or implied (i.e. inferred from the actions of the parties or the circumstances of the particular case).

4. Essentials of Legal Contract: Special kind of contract is an indemnity contract. These are similar to the principles of general contract law found in Sections 1 to 75 of the Indian Contract Act, 1872 and therefore, it must include all the basic elements of a legal contract.

RIGHTS OF INDEMNITY HOLDER

Pursuant to Section 125 of the Indian Contract Act, 1872, the following rights are available to the Promisee / Indemnified / Indemnified Holder against the Promisor / Indemnifier, given that he has behaved within the limits of his control.

1. Right to Recover Damages Paid in an Action [Section 125(1)]: An indemnity-holder has the right to recover from the indemnifier any damages which he might be forced to pay in any action in respect of any matter to which the contract of indemnity relates.
RIGHT TO RECOVER Expenses INCURRED IN DEFENDING A SUIT [SECTION 125(2)]: an indemnity holder shall be entitled to recover from the indemnifier all expenses which he might be liable to pay in any such suit if, in bringing it in or defending it, he did not contravene the promiser ‘s orders and behaved as it would have been wise for him to act in the absence of any insurance deal.

2. Right to Recover Amount Paid under Compromise [Section 125(3)]: An indemnity holder shall also be entitled to recover from the indemnifier all amounts which he may have paid under any compromise of any such action, provided that the compromise was not contrary to the promiser’s orders and was one which the promised holder would have been prudent in the absence of any compensation contract.

CONTRACT OF GUARANTEE

The Contract Act also governs warranty contracts aside from indemnity contracts. Those contracts may seem similar to contracts for compensation but there are some differences between them. One party issues a guarantee contract to fulfil a third party commitment or discharge a third party liability. This will occur in case the third party refuses to meet its commitments and defaults. The burden of discharging the debt would, therefore, fall first on the defaulting third party.
The person granting the guarantee is the Surety. On the other hand, the principal debtor is the individual the Surety gives the guarantee for. Likewise, the person to whom he grants such a guarantee is the Creditor.

Example: A delivers products to B on C which guarantees payment from B to A. That means C would be liable to pay if B fails to pay. This is a “Guarantee Contract.” Here B is the principal debtor, C the guarantor, and A the creditor.

ESSENTIALS OF CONTRACT OF GUARANTEE

1. Agreement between all the parties: All three parties, namely the principal debtor, the creditor and the surety, must agree to enter into such a contract.

2. Liability: The liability of the surety is secondary in a guaranteed contract, i.e. the creditor must first proceed against the debtor and if the latter fails to fulfil his promise, then only he can proceed against the surety.

3. There’s a Debt: A guarantee contract pre-assumes the existence of a legal enforceable liability. If there is no such liability, then there can be no guarantee contract. So where the debt that is sought to be secured is already time-barred or invalid, there is no liability for the surety.

4. Consideration: Between the creditor and the guarantor there must be consideration to make the contract enforceable. The argument, too, must be true. In a guaranteed contract, the consideration that the principal debtor receives is taken as being the appropriate consideration for the protection.

5. Essentials of a Valid Contract: It must have all the essential elements of a valid contract, such as offer and acceptance, intention to establish a legal relationship, contracting capacity, genuine and free consent, legal object, legal consideration, certainty and possibility of performance and legal formality.

6. No Concealment of Facts: The creditor should disclose to the security the facts which are likely to affect the liability of the guarantor. The guarantee obtained from disguising such facts is invalid. Thus, if the borrower obtains it by concealing relevant evidence, the guarantee is null.

RIGHTS OF SURETY

1. Rights vs. Creditor: A borrower is liable for any protection that the creditor has against the principal debtor as per section-141. This holds true even if the security was unaware of the existence of such security at the time of entering into the guarantee contract.

2. Rights against the Principal Debtor: Once the surety discharges the debt, he obtains the rights of a creditor against the principal debtor. Now, due to the main debtor’s default, he can sue the principal debtor for the amount of debt he pays to the creditor.

3. Surety’s rights against the co-guarantees: When a surety pays the creditor more than its share, he has the right of co-guarantees to contribute, who are equally liable to pay.