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Vanshika Arora is a first-year student at Army Institute of Law, Mohali. This article provides the meaning and mechanism of the process of conciliation.

INTRODUCTION

Conciliation is an alternate dispute resolution (ADR) technique. ADR is an attempt to devise mechanisms that are an alternative to the conventional justice systems. These alternatives are endorsed since the courts cannot take all the burden of administering justice. Some disputes can be amicably settled outside of court, hence sparing money, time, and effort of the aggrieved party as well as the judicial system. The pendency of cases in the courts is another reason that ADR techniques are preferred. A meeting of Chief Ministers and Chief Justices, held in 1993, formed a resolution to undertake and promote methods of ADR such as arbitration, conciliation, mediation, and negotiation. The meeting emphasized that these “out of court” techniques are flexible in terms of procedure, and save a lot of time and expenditure as compared to the traditional court dispute resolution.

Conciliation

Part III of the Arbitration and Conciliation Act, 1996 deals with the procedure and mechanism of conciliation. According to Wharton’s Law Lexicon, conciliation is the “settling of disputes without litigation”. It is done outside of court, with the help of a third party called the “conciliator”. The parties involved, arrive at a decision themselves, with the assistance of the conciliator, and no administrative or judicial intervention is observed, as is the case with arbitration, wherein the final judgment is decided by the Arbitration Tribunal.

According to Halsbury’s Law of England, “Conciliation is the process of persuading parties to reach an agreement, and is plainly not arbitration, nor is the chairman of a conciliation board an arbitrator.”

Meaning

Section 61 (Application and Scope): This section of the Arbitration and Conciliation Act, 1996, clearly states that conciliation proceedings can only be carried out in disputes arising out of a legal relationship, that could be contractual in nature. For a dispute to arise out of a legal relationship, the right to sue should exist. Moreover, conciliation proceedings cannot be carried out in such disputes where by virtue of law, conciliation is prohibited.

Role and Appointment of a Conciliator

Section 63 and 64 lay down the qualification, number, and process of appointment of conciliators. According to Section 63, the number of conciliators may vary from one to three. In the case of more than one conciliator, they must function jointly.

Section 64 provides that for assistance in the appointment of a conciliator, parties can approach a suitable institution for hiring a conciliator.

Section 66 further provides that the conciliator is not bound by the Code of Civil Procedure(1908) and the Indian Evidence Act(1872).

Role of Conciliator(Section 67): This section provides that the conciliator has to carry the process amicably, in an independent and impartial manner. He can conduct the conciliation proceedings in any manner he deems fit and does not have to adhere to any manner stipulated by any enactment. He may also at any point in time refer the dispute to settlement proceedings, without furnishing any statement enumerating reasons for the same.

Lastly, the conciliator has to be guided by the principles of objectivity, fairness, and justice.

For better conduct of the proceedings, parties may also seek the administrative assistance of a suitable institution or party, as given under Section 68.

Restrictions on Role of Conciliator

As per Section 80 of the Act, the conciliator shall not act as an arbitrator in any proceeding subject to conciliation. Moreover, he shall not be presented by the parties as a witness in any arbitral or judicial proceedings.

Procedure

The procedure of conciliation is carried out in the following manner:

Section 62(Commencement of Conciliation Proceedings):

This section provides that the party wishing to conciliate shall send a written notice enumerating the objective of conciliation, to the other party. The other party can accept or reject the notice. If rejected, no conciliation proceedings can be carried out. If the sending party does not receive a reply within thirty days, or within such a period as defined under the notice, this should be treated as a rejection.

Section 65(Submission of Statements to the Conciliator):

This section provides that, upon the election of a conciliator, he can furnish a written statement from both parties, describing the dispute. This statement has to be sent to the opposite parties too. Further, the conciliator may also furnish a written statement, of a party’s position, facts and ground, and any document or evidence corroborating their plea. This statement too has to be exchanged between both the parties. At any stage of the conciliation proceedings, the conciliator may ask for any additional statements.

Section 69 (Communication):

This section provides that the conciliator may communicate with the pirates orally or in a written manner. He may communicate with them together or separately. Also, the place of conciliation shall be decided by the conciliator, unless both parties have mutually agreed upon a place.

Section 70 (Disclosure of Information):

According to this section, when the conciliator receives any factual information from a party, he shall disclose it to the other and demand any explanation. If a party provides any information, demanding it be kept confidential, the conciliator has an obligation to furnish the same to the other party.

Settlement

As stated earlier, Section 67 provides that the conciliator may at any point in time refer the case to settlement. Moreover, the parties can also, under Section 72, suggest the settlement of the dispute.

Section 73(Settlement Agreement):

According to the section, when it appears to the conciliator that elements of settlement exist, he may formulate terms of such settlement and submit them to the parties, which can suggest observations for re-formulation. When the parties reach a settlement, they need to draw up and sign a written settlement, which shall be binding upon both parties.

In the case of Harsh Dayaram Thakur v State of Maharashtra, the Apex Court held that a settlement formulated by the conciliator on his own, in secrecy is sent to the Court in a sealed manner, shall not be valid since the act requires it to be signed by both parties.

Section 74(Status and Effect of Settlement Agreement):

According to this Section, a settlement agreement shall have the same status and effect as if it were an arbitral award under Section 30 of the Arbitration and Conciliation Act, 1996. Moreover, in the case of Mysore Cements Ltd vs Svedala Barmac Ltd, the Supreme Court held that not every agreement, arrived through any manner in a conciliation proceeding will have the effect of an arbitral award under section 30. Only those agreements that have been concluded “in conformity with the manner stipulated and form envisaged and duly authenticated in accordance with Section 73” can be called an agreement of settlement in the effect of an Arbitral Award.

Termination of Conciliation Proceedings

Section 76 provides four ways in which conciliation proceedings can be terminated:

By signing a settlement agreement. The date of settlement is the date of termination.
Written declaration by the conciliator, that states further efforts of conciliation are not justified. The date of declaration is the date of termination.
By a written declaration of the parties, addressed to the conciliator that the proceedings are terminated. The date of declaration is the date of termination.
By a written declaration furnished by one part to the other and the conciliator stating that conciliation proceedings stand terminated. The date of declaration is the date of termination.

Under section 77, parties also have the option to resort to judicial or arbitral proceedings. As a general rule, during the time of conciliation, such restoration is not permitted unless either party considers it important for the protection of its rights.

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This article is written by Rishita Naredi, First-year B.B.A.-LLB. student in NMIMS Kirit P. Mehta School of Law, Mumbai. In this article, the researcher discusses in detail the rights of the victim of human trafficking.

INTRODUCTION

According to UN Office on Drugs and Crime, Human trafficking refers to an act of recruitment, transportation, transfer, harboring, or reception of a person for profit by force, fraud, or deception. This crime, which occurs in every corner of the world, can affect men, women, and children of all ages and backgrounds. According to the report, sexual exploitation is the most common form of human trafficking (79%). Women and girls are disproportionately the victims of sexual exploitation. Forced labor (18%) is the second most prevalent type of human trafficking, but this figure may be misleading since forced labor is less commonly observed and documented than trafficking for sexual abuse.

Women make up the majority of traffickers in 30% of the nations that gave statistics on their gender. Women trafficking is common in several regions of the world. More than 20% of the victims of human trafficking worldwide are children.

Human Trafficking mainly consists of 3 forms- Domestic, Intra-regional, and across the Continent. From these three forms, the former two are the most common types of human trafficking across the globe.

The article will highlight the rights of victims of human trafficking in India and as well worldwide.

Rights of Victims in India

There is a legal framework for the protection of victims of human trafficking in India. This section will in detail highlights those provisions.

India Constitution

The Indian constitution, including the UN Charter, the Universal Declaration of Human Rights, and other international covenants, places a high value on human dignity. The Indian Constitution resonates with the principles of the Universal Declaration of Human Rights and so there are some provisions listed below.

According to Article 23 of the Indian Constitution, traffic in human beings and forced labor is prohibited in India.

(1) Traffic in human beings and the beggar and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offense punishable in accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for a public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste, or class or any of them.

One of the fundamental rights of every individual living in India is the right to be free from exploitation.

Indian Penal Code, 1860

The Indian Penal Code of 1860 includes the provisions for human trafficking. Section 370 and Section 370A deal with human trafficking. It outlawed the trafficking of women and girls and imposed harsh penalties on anybody who did so. It states that anyone who buys or sells a person under the age of 18 for prostitution, sexual exploitation, or other immoral objectives faces up to ten years in prison and a fine.

The section also recognizes cross-border prostitution, and anyone who brings a girl under the age of twenty-one years into India with the intent or knowledge that she will be forced or persuaded into unlawful intercourse with another person is penalized by up to 10 years and shall be liable for a fine.

Immoral Traffic Prevention Act

In 1950, the Indian government ratified the International Convention for the Suppression of Immoral Traffic in Persons and the Abuse of Others. The GOI, passed the Suppression of Immoral Traffic in Women and Girls Act (SITA) in 1956 as a result of the convention’s ratification. But this act fell short in terms of deterrent punishment, let alone the delicate treatment of victim rescue and recovery. Even the conditions of rehab been very poor become a source of re-trafficking. Due to high poverty and corruption rates, India has become the worst sufferers. So, the act was further amended in 1986 which is now known as the Immoral Traffic Prevention Act, 1986. This law is divided into 25 sections and one schedule aims at preventing immoral trafficking and prostitution in India.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Many of the victims of human trafficking are members of vulnerable communities. Mostly, those areas that are socially and literately backward are targeted by traffickers. This provides another method to protect women and young girls from scheduled castes and scheduled tribes, as well as increasing the pressure on the trafficker or perpetrator to prove his lack of complicity in the crime.

If the perpetrator is aware that the victim belongs to one of these groups, this act can be used to effectively combat human trafficking. Atrocities against people belonging to Scheduled Castes and Scheduled Tribes are dealt with in Section 3 of this act. It covers various forms of trafficking such as forced labor, bonded labor, and even sexual exploitation of women. Minimum punishment of 6 months which may extend to 5 years is prescribed in the act.

International Provisions

Some many International Conventions and treaties prohibit Human trafficking across continents. Some of the major conventions are discussed below.

Universal Declaration of Human Rights, 1948

One of the historic declarations was The Universal Declaration of Human Rights, 1948. It is commonly referred to as UDHR which was adopted by UN General Assembly in the year 1948. These are natural rights that, while not legally binding, are extremely significant and can result in a slew of legal repercussions if they are violated. Since child trafficking is one of the most heinous types of human rights abuse, it violates the declaration’s values. Freedom, dignity, equality, and solidarity are the key principles for the provisions formed.

Worst Form of Child Labor Convention, 1999

This convention was adopted by International Labor Organization in 1999. This makes it mandatory for countries that ratify the convention to prohibit perpetrators from using children below the age of 18 years in any form of slavery-like trafficking and/or prostitution. This has effectively brought child labor down in many countries.

Statute of International Criminal Court

There are several ad hoc international criminal tribunals that deal with sex trafficking cases regularly. Under Article 7.1(c) of the Statute of the International Criminal Court, human trafficking is recognized as a crime.

CONCLUSION

Despite the progress made so far, fighting human trafficking still requires broad-based programs and approaches that can resolve both the causes and mechanisms associated with the phenomenon. The program should involve not only the victim but also his family members, communities, traffickers, exploiters. The formation of worldwide as well as nationwide programs is required. The program should be well-coordinated at all levels and must be strongly implemented. Better implementation will deter the perpetrators to commit such crimes in the future.

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This article is written by K.Lasya Charitha pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses the problems faced by the witnesses in India and The Witness Protection Scheme,2018.

INTRODUCTION

Witnesses are considered to be one of the most indispensable elements in the criminal justice system, and the trial has found certain reasons for them to reach a fair conclusion. The criminal procedure is based on the construction of legally admissible evidence. This requires witnesses to provide direct or indirect evidence. Today, witnesses are a persecuted group, not just because witnesses are bribed, threatened, kidnapped, or even dismembered or killed, but because of all these and many other reasons why they are unwilling to be witnesses.

Definition of Witness

Neither the Criminal Procedure Act of 1908 nor the Indian Evidence Act of 1872 defines a “witness.” According to Black’s Law Dictionary, ‘witness’ has been defined as: “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, ‘witness’ has acquired the sense of a person who is present at and observes a transaction.”

The Witness Protection Scheme,2018 defines the term “witness” in Section 2(k), which means that a witness is “any person who has information or documents about any offence.”

The High Court of Delhi defined a witness in the case of Ms.Neelam Katara v. The Union of India as: “A witness is a person who gives a statement that has been recorded by the investigating officer in accordance with Article 161 of the Criminal Procedure Code,1973 which is relating to a crime that is punishable with death or life imprisonment.”

Jeremy Bentham defines witness as: “Witnesses are eyes and ears of justice.” An Honest and truthful witness can provide honest opinions to the police during the trial of the crime and to the court during the trial of the case to help them in discharging justice.

Therefore, a witness refers to a person who has certain information or has any written or documentary evidence about any crime. Witnesses play an important role, especially in crimes related to national security, peaceful treatment, murder, rape, robbery, and other serious crimes, where the punishment can be extended to the death penalty.

The Present Situation of Witnesses

The condition of witnesses in the Indian legal system can be described as “very miserable”. The witnesses hesitated in the face of anger, pressure, and threats about their lives from the accused, so they became hostile and gave testimony in favor of the accused persons. The witness did not begin to tremble because of fear of being questioned or cross-examined in court. But because he is worried that he may not be analyzed for a few days, and all such days he would be nailed to the precincts of the courts anticipating his opportunity of being examined. These witnesses had no remedial measures nor were not treated appropriately. Modern legal systems take witnesses completely for granted.

Some of the most high-profile cases such as the Jessica Laal murder and the B.M.W Hit and Run case are that the main witness has turned hostile not only due to threats, coercion, deception, and monetary considerations but also fear of kidnapping and threat to life. It is undoubtedly said that one of the main reasons for witness hostility is that the state does not adequately protect witnesses.

The Hon’ble Supreme Court of India emphasized that in the cases of Zahir Habibullah H. Sheikh and others vs the State of Gujarat, witnesses need to be protected. When defining “fair trial”, the Hon’ble Supreme Court found that “if the witness gets threatened or compelled to make falsehoods Statements will not lead to a fair trial.” Furthermore, the Supreme Court of India ruled in the case of State of Gujarat vs Anirudh Singh that: “Every witness who knows of a crime has a responsibility and should assist the country in issuing a statement or evidence.”

Development of Witness Protection Scheme

The various reports of the Indian Legislative Council and the Marimatha Council have all explained the necessity of the plan. The 14th(fourteenth) report of the Law Commission of India is the first to deal with the issue of witness protection. Later, the 154th report of the Law Commission dealt with the plight of witnesses. The 172nd and 178th reports of the Law Commission emphasized the protection of witnesses from the outrage of the accused. In particular, the 172nd report inherited most from the judgment of Sakshi v. Union of India, which defended a closed/camera trial to keep the witness away from the accused and ensure that the witness’s approval or testimony was obtained without causing any public fear. The 198th report titled “Witness Identity Protection and Witness Protection Programmes” emphasized that the witness protection system should not be limited to terrorism or sexual crime, but should be expanded to include all serious crimes to thereby increase its scope and functions.

On December 6, 2018, the Supreme Court approved the draft of the witness protection scheme. The draft involves the participation of 18 states and Union territories, various soliciting suggestions from staff, police, judges, and civil society were later explicitly finalized by the National Legal Services Authority (NALSA). The bench composed of Justice A.K Sikri and Justice S. Abdul Nazeer determined the witness’s right to testify in accordance with Article 21 of the Constitution and stated: “The right to speak freely and impartially in court without subjecting to pressure or threat from anyone which is currently under serious attack. If someone is unable to testify in court due to threats or other pressure, then it is a violation of Article 21 of the Constitution.” Furthermore, according to Article 141/142 of the Constitution, the bench regarded this scheme as “law”. Before relevant laws on the same subject are passed, the state must comply and follow the same.

Witness Protection Scheme, 2018

The purpose and the main aim of the scheme are to ensure that criminal investigations, prosecutions, and trials of criminal cases are not disrupted by intimidating witnesses or fearing to testify without protection from violence or criminal charges. By ensuring the safety of personnel directly or indirectly involved in assisting the authorities responsible for the enforcement of criminal law and general justice. The scheme categorizes witnesses into three categories based on their degree of danger to them and defines a step-by-step method to ensure the security of the individual classification.

The scheme provides three categories of witnesses based on the perception of threats:

Category A: If the threat extends to the life of the witness or his immediate family members, during or after the investigation or trial.
Category B: If the threat extends to the safety, reputation, or property of the witness or his family member, during or after the investigation or trial.
Category C: If the threat is Moderate and increases to harassment or intimidation of witnesses or his family members, reputation, or property during or after the investigation or trial.

The plan provides for the establishment of a state witness protection fund to cover the cost of the plan. This fund is managed by the Ministry of Home under State Government/UT’s includes the following:

State government allocates budget funds to the annual budget;
The number of fees collected/ordered by the court to be deposited in the witness protection fund;
Donations/donations from charities/charities and government authorized personnel.
Donations are made within the framework of corporate social responsibility.

Drawbacks of the Scheme

Although the scheme provides witnesses with important security-related periods during and after the trial, it also has some shortcomings, such as:

1. The function of the criminal justice system is the responsibility of the state and Some states may not have sufficient resources. To effectively implement the system the alternative method is to be carried out with the help of the center, but anywhere in the plan, the center has no right to donate a penny to the Witness Protection Fund;

2. The witness protection order is limited to three months;

3. The task of defining the content and preparing the threat assessment report has been delegated to the police district chief so that in high-level cases involving politicians or influential people, so that police officers can be put under pressure to provide those people the information about witnesses.

Conclusion

This scheme is the country’s first attempt to comprehensively protect witnesses, and it will greatly eliminate secondary victims. The scheme is designed to provide adequate and reasonable protection for witnesses. The country’s judicial system will strengthen the criminal justice system, therefore, improve the state of national security. Therefore, it needs to be properly implemented to ensure that the principles of natural justice and the rule of law stipulated in our Constitution are preserved and certain steps should be taken to decrease the drawbacks of the scheme and scheme should be properly implemented thereafter for proper protection of the witnesses.

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This article is written by Sonam Sanjay Pandey, a student of DY Patil Deemed to be University School of Law, Navi Mumbai. Through this Article the author tends to analyse the details of the maxim “Volenti Non-Fit Injuria” and its application under law of torts.

Definition

Volenti Non-Fit Injuria from Nolo’s Plain Law Dictionary is a Latin term for “to a willing person, no injury is done.” This basically means that a person who knowingly and willingly puts himself/herself in danger cannot sue for any injuries resulting from the same.

Applicability

In a case where a person gives his consent to do an act and it leads him to get himself injured, he cannot claim damages or sort relief from the court. The consent of the plaintiff is the defense which is Volenti Non-Fit Injuria which means no injury is done to a willing person.

Essential Elements of Doctrine

For the use of the defense of Volenti Non-Fit Injuria there are some elements that should be present and only when they are satisfied, this defense can be taken to prevent liability. They are:

The Plaintiff has the knowledge of the risk

The plaintiff should be aware of the possibility of the harm which is likely to be caused by an act but still he accepts to do that act and thereby has agreed to suffer the injury caused by that act. The defendant won’t be liable for any damages because of the said act. But mere knowledge is only a partial defense that is recognised which is “Scienti Non-Fit Injuria”

In the case of Dan v. Hamilton, the plaintiff chose to travel in Defendant’s car, even though he knew that the defendant was drunk. The car crashed, causing injuries to him. The defense of Volenti Non-Fit Injuria is only applied when the plaintiff has complete knowledge of the danger which is present in this case as Dan i.e. the plaintiff even after knowing that Hamilton was drunk, voluntarily got in his car. Thus the Hamilton i.e. the defendant can rely on this maxim of Volenti Non-Fit Injuria.

The Plaintiff knowing the risk, voluntarily agreed to incur it

For the maxim to be applicable it must be proved that the Plaintiff readily, knowing the risk, agreed to incur it.

In the case of Imperial Chemical Industries vs Shatwell, the employees ignored measures for safety and undertook the risk of the work despite such measures being provided for by the employer. Here the court observed that the employees were negligent in their task and consented to the work without any compulsion from the employer, thus could not hold the Defendant liable, as he could exercise defense under Volenti non-fit injuria.

The Consent must be freely given

Just like in Contractual agreements, consent should be free. Free consent means a consent not caused by coercion, undue influence, fraud, misrepresentation and mistake. For the defense of Volenti Non-Fit Injuria. In the case where a person is incapable of giving his consent by reason of comatose, insanity or minority, then the consent can be taken by the parents or guardians and are sufficient to be concluded as valid.

Consent may be expressed or Implied

An essential for the consent, in this case, is that the consent to suffer such harm may be expressed or implied. Under implied consent, the consent given is not expressly given but derived from one’s actions in the circumstances surrounding the case. An example here would be when the person put himself in a position where he knows the consequences, the defendant can take the defense of Volenti non-fit injuria.

Consent obtained by Fraud

In order for the defense of the maxim to be applicable, the consent must be free and it should not be acquired by any fraudulent means.

No consent for illegal act

No consent can legalize an act which is prohibited by the law, and the defense of Volenti non-fit injuria will not be applicable. It has been observed that no person can give another person consent for committing a crime.

Exceptions to the Maxim

However, this defense is not absolute and comes with some limitations and exceptions. In all matters concerning this defense the Consent must be free:

This defense will not be applicable in cases where the consent of the plaintiff has been obtained by unlawful means such as fraud or compulsion. The defendant will not be able to take this defense and escape from the liability arising out of such activities. Consent by illegal means is not real consent. The act done by the defendant must be the same for which the consent was given.

In the case of Lakshmi Rajan v. Malar Hospital Ltd., a woman aged 40 years had developed a tumor in her breast. She went to the hospital to get it surgically removed. She gave her consent for the removal of the tumor which had nothing to do with the uterus. But during the surgery, the doctor removed her uterus without any justification. The hospital was held liable as the act done was not the same for which the consent was given.

In the case of R. v. Williams, a music teacher persuaded his minor student for sexual intercourse by saying that this act was a method to improve her voice. He was held liable for rape by the court because the consent was obtained by fraud and therefore it was not real consent.

In another case of Bowater v. Rowley Regis Corporation, the plaintiff was a cart driver employed under the Municipal Corporation to go around the streets and collect road sweepings. The plaintiff was ordered by his employer to drive a horse which they both knew to be unruly and had run away on two occasions. Plaintiff protested but was ultimately ordered to drive the horse. He obeyed the order and took out the horse. But the horse bolted and he was injured thereby. When the matter was taken to the court, it was held that the defense of violent non-fit injuria is not applicable as the consent obtained was under the compulsion to do the duty and the defendant was liable.

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This article is written by APURVA, a student of the Fairfield Institute of Management and Technology, GGSIPU.

INTRODUCTION

In civil litigations, a ‘Receiver’ is considered to be an officer of the court who is appointed by the court to protect and preserve the subject matter of suit till the time the court decides the matter. According to the court it is sometimes in the best interest of both the parties to appoint a receiver who will be responsible for the management of the subject matter. The subject matter generally be a movable or immovable property.

The Receiver is liable to take care of the property akin to a prudent man who will take care of his own personal property. He is supposed to follow the directions of the court or else his property can be attached by the court to recover the amount which is due to him.

A Receiver under the Civil Procedure Code

According to the order 40 of the Civil Procedure Code (CPC):

A Receiver is an independent and impartial person who is appointed by the court to administer or manage, i.e., to protect and preserve a disputed property involved in a suit. He is not a representative of any of the parties, and he is regarded as an officer of the court working in the interest of neither plaintiff nor defendant but for the benefit of all the parties.

For example, if there is a dispute between A and B regarding an immovable property. The court thinks that the possession should be taken from B and given to an independent person if it is in the best interest of both the parties, a receiver may be appointed by the court who can manage the property till the time that the suit is being decided. Such a receiver appointed by the court is responsible for the maintenance of the property and he can also collect the income like rent or any other profits and utilize it for the maintenance of the property. Apart from the expenses incurred in maintenance of the property, the remaining amount from the income received, the receiver will have to submit, in the court.

The court provides to the parties a form of interim protection who makes the application till the time that matter gets adjudicated by the court.

The Receiver is considered as an officer of the court as an extended hand of the court. He is entrusted with the responsibility of the disputed property or money by the court, and he manages such property or money till the time a decree is passed, or the parties have compromised, or any other period as the court decides. The property entrusted to the receiver is considered to be the custody of the law and the receiver has no other power than those entrusted to him by the court while being appointed.

How is a Receiver Appointed

According to the section 51(d) of the Civil Procedure Code, the court before which the proceedings are pending can appoint a receiver if it appears just and convenient to the court to appoint. It is the discretionary power of the court. In a suit, the trial court can appoint a receiver, whereas, in an appeal, the appellate court can appoint a receiver. However, the discretion is not arbitrary, absolute, or unregulated. The expression “just and convenient” does not mean that the appointment is based on the whims and wishes of the judge on any grounds which stand against equity and the Court has to keep the various principles in mind before appointing a receiver.

Case law: T. Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., AIR 1955 Mad 430

In this case, the Madras Court introduced the following principles which are well established in Indian jurisprudence as well:

It is a discretionary power.
Unless the plaintiff shows prima facie that he has a strong case against the defendant and it is more than likely that he will succeed in the suit, a receiver should not be appointed.
It is one of the hardest remedies as it deprives the defendant of his right to possession before the final decree. Therefore, the court shall not resort to it merely on the ground that it will do no harm and there should be a strong apprehension that the property is in danger, or the plaintiff will be in a worse situation if the appointment of a receiver is delayed.
A receiver is appointed only when there is a possibility of wrong and is shown that the subject matter is not in the possession of any of the parties and it is in the common interest of both the parties to appoint a receiver for the maintenance of the property.
The court is supposed to look at the conduct of the party who makes the application for appointment of a receiver.

In Chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following process is provided:

Application for appointment shall be made in writing and shall be supported by an affidavit.
A Receiver other than an official receiver has to give security.
The security is to be given should be satisfactory to the registrar.
The receiver has to provide personal bonds with a number of sureties required by the registrar where the personal bond will be double the amount of annual rental value of the property or the total value of the property which the receiver is going to administer.
The receiver will have to submit a report providing the details regarding the property such as inventory of property or books of account etc., within a week of appointment,
The directions on where to invest the money received by the receiver from the property will be given by the Registrar.

Who can Apply for the Appointment as a Receiver

A plaintiff as well as the defendants can file such an application for the appointment as a Receiver, but a third party is not allowed to file the application. Although, if he is interested in the protection and preservation of the property, he can make an application after taking permission from the court. A person needs to be independent, impartial, and totally disinterested to be appointed as a receiver and that person should not have any stake in the disputed property.

If the court is of the opinion that either party should not hold the property in dispute, he can appoint a receiver before or after a decree and can remove from the possession of the property and commit the same property in the custody or management of the receiver.

Under section 94(d), the receiver can be appointed to prevent the ends of justice being defeated and under section 51(d) the court has the power to appoint a receiver for the execution of a decree.

There are provisions in other acts as well which provides for the appointment of a receiver by the court. For example, section 84 of the Companies Act, 2013 provides for the appointment of a receiver, section 69A of the Transfer of Property Act, 1882 also provides for the appointment.

Powers of a Receiver

Under order 40 rule 1(d) powers of the receiver are provided as following:

Collection of rents and profits arising out of the property.
Application and disposal of such rents and profits.
Execution of documents as the owner himself.
To institute and defend the suit.
Such powers as the court may deem fit.

Also, there are indirect powers which a receiver enjoys being the hand of the court. For example, if a person obstructs or interferes with the receiver’s right to possession, it will amount to obstruction in a court proceeding and such a person can be made liable for contempt of court. Similarly, property in the hands of the receiver cannot be attached without the leave of the court.

The court has the discretionary power to not confer all the rights on the receiver. Even if the court has given all the powers to him, he should take the advice of the court in all important decisions related to the property to protect himself.

Without the permission of the court, the receiver cannot:

Grant lease on the property.
Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.

Duties of a Receiver

Under order 40 rule (3), duties of a receiver are provided as follows:

Furnish security to account for what he will receive from the property as income.
Submit accounts (half yearly) for such period or form as directed by the court. The account basically includes the income received and expenses incurred for the protection and preservation of the property.
Pay the amount due to the court.
Take responsibility for any reduction in the value of the property because of the receiver’s willful negligence.
Discharge the duties personally and should not delegate or assign any of the rights entrusted to him by the court.

The receiver has to fulfil all the duties and responsibilities entrusted to him by the court. Otherwise, the court can take action against him and make him personally liable for any loss which might occur due to his negligence or wilful failure to protect and preserve the property.

Liabilities as a Receiver

According to Order 40 rule (4), When a receiver fails:

To submit the reports as specified by the court or,
To pay the amount due from him as directed by the court or,
Causes loss to the property due to gross negligence.
Any other duty which court directed him to do,

The court may order the attachment of property of the receiver to recover the loss caused due to his willful default or negligence.

The court, after recovering all the losses from the proceeds received after selling receiver’s property, will pay the balance (if any) to the receiver.

The receiver is bound in keeping down the expenses and taking care of the property in his possession as a prudent man would observe in connection with his own property under similar circumstances.

Receiver Entitled to Remuneration

Receivers are entitled to remuneration as fixed by the court for the services rendered by them. Also, a receiver has to be provided for the loss or expenses incurred by him for maintaining the property.

Under order 40 rule (2), the court can fix the remuneration to be paid to the receiver for the services provided by him. The court can pass a general or specific order regarding the same.

For example, The Delhi high court has provided in Delhi High Court (original side) rules,1967, for remuneration of the receiver as follows:

Rents recovered, outstanding recovered, the value realised on the sale of movable and immovable properties calculated on anyone estate:

On Rs. 10,000 : 5 %
Above Rs. 10,000 up to Rs. 20,000 : 3 %
Above Rs. 20,000 up to Rs. 50,000 : 2 %
Above Rs. 50,000 up to Rs. 1,00,000 : 1 %
Above Rs. 1,00,000 : ½ %

Similarly, for taking custody of money, 1 %, for taking custody of Government securities of stocks, shares, 1 % of the estimated value.

If no remuneration is specified for any work, such remuneration can be granted, as the court may think reasonable, on the application of the receiver.

A Collector as a Receiver

According to Order 40 rule 5, if the revenue generated from the property is received by the government, the court can appoint a collector as a receiver if the court thinks that management of such property by collector will promote the interests of those who are concerned.

CONCLUSION

It can be concluded that the receiver plays a vital role whenever the court requires. A receiver is appointed by the courts as an officer of the court and subject matter is managed by him which is considered to be in custody of the law. A receiver should be impartial who has no stake in the subject matter and can manage the property just as a prudent man will do with his own property. The receiver should take complete care while making an important decision related to the subject matter appointed to him as he is personally liable for any damage to it. For safety, he can consult the court before making such decisions.

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This article discusses the temporary injunction mentioned under the Code of Civil Procedure.

INTRODUCTION

An “Injunction” is an impartial solution which is “a judicial process that compels a party to refrain from doing or to do a particular act or thing”. If any individual violates the Order of Injunction approved by the Competent Court, then there can be harsh financial punishments and even detention in some cases. The main objective of giving interim relief is the protection of property in disagreement till lawful rights and contradictory assertions of the parties prior to the court of law are resolved. Though, Injunction can also be altered or suspended if conditions shift in future. Section 94, 95 and Order 39 of the Civil Procedure Code exactly talks about Injunctions but, the temporary and permanent injunctions are well-defined under Section 36 to 42 of the “Specific Relief Act”.

Temporary Injunction

The “Temporary Injunction” is granted by the Court of Law when the Defendant is about to the do some kind of damage or injury to the property or threatens the Plaintiff to deprive the said property or makes a thirty party interest in that property, then in such conditions, the Court may grant a temporary injunction to confine the Defendant to do act or make other instructions to stop the dispossession of the plaintiff or avoid the instigating of injury to the plaintiff in relation to any property in argument or making any thirty party rights in the property.

Temporary injunction is an “interim remedy” that is raised up to preserve the subject matter in its current situation and which may be conferred on an “interlocutory application” at any stay of the suit. Its objective is to avoid the postponement of the plaintiff’s rights. Section 94 of the CPC requires the supplementary proceeding so that Plaintiff can avoid this right, whereas Section 94 (c) and (e) of Code of Civil Procedure, the Court may permit a temporary injunction or make such additional interlocutory orders. These are temporary injunction because its legality is, up until the additional order passed by the court or till the final decree of the court case.

Who may Apply for Temporary Injunction and against whom Injunction may be Issued?

Application for interim injunction along with affidavit can be made both by Plaintiff and Defendant.
An Injunction can be made only against a party and not opposed to a stranger or third party. Additionally, the injunction cannot be made against the Court of Law or the Judicial Officers.

Basic Principles of Temporary Injunction

The granting of temporary injunction is the practice of the judgment which must be in a judicial manner. Consequently, it is well resolved that, prior to awarding the Temporary Injunction, the Judge must contemplate whether the Application is falling into below-mentioned classifications:

Is it a Prima Facie case: In every single application, the Applicant or Plaintiff should make a prima facie argument in favour of the claimed right by the Plaintiff. The Court must be satisfied that there is a bona fide disagreement between both the parties in which the inquiry is needed. The Plaintiff must prove and appease the court by prominent evidence or witness and make a prima facie case in his favour. The plaintiff must come to Court with relevant facts and in case these facts are suppressed by the Plaintiff then, in this scenario, the Plaintiff is not accountable for any relief.

In Prakash Singh vs. State of Haryana, 2002 (4) Civil L.J.71 (P.H.) [5] – The Court has clarified that Prima Facie does not imply that a Plaintiff should have a complete proof argument in his favour which will prosper in all probabilities. It implies that the plaintiff has a case which cannot be denied swiftly or rejected outright. It presents concerns which can be deemed on merits.

Is there any Irreparable Injury: The claimant must convince the court that he will endure severe injury if the injunction is not given. The Court is convinced that the Plaintiff needs to be safeguarded from the effects of apprehended damage. An injury will be regarded as severe in which there is no specific economic standard for assessing losses.

The term irreversible injury however does not imply that there would be no chance of fixing the injury. It only indicates that the damage must be a significant one. i.e., which cannot be sufficiently reimbursed by damages. An injury will be considered as irreversible where there is no specific monetary standard for assessing injuries.

The Supreme Court in Shanti Kumar Panda v. Shakuntala Devi, 03.11.2003[7], the court held that “At the stage of passing an interlocutory order such as on an application for the grant of ad interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent Court shall have to form its opinion on the availability of a prima facie case, the balance of convenience and the irreparable injury – the three pillars on which rests the foundation of any order of injunction”.

Is there any Balance of Convenience: The Claimant must demonstrate in this application that the sense of balance of accessibility is in his favour i.e. the relative mischief, difficulty or hassle which is expected to be caused to the Applicant if that injunction is refused. The balance of accessibility comes into the light when there is uncertainty as to the sufficient remedies in reparations offered to either party or both.

Other factors: The Court also contemplates some other considerations before granting the injunction. The relief of injunction may be rejected on the basis of delay, or acquiescence or if the plaintiff has suppressed material facts or not, or where financial compensation is sufficient relief.

Grounds for Granting Temporary Injunctions from Court

Where there is a sufficient apprehension and threat of alienation or removal of property by any party to the suit or by unlawful misuse of the property.
Where there is an apprehension of estrangement or removal of the property to deceive creditors.
Where Defendant endangers to deprive the Plaintiff or else causes harm to the interest of the Plaintiff or otherwise causes damage to the interest of Plaintiff regarding the property in dispute.
Where the Defendant is just about to perpetrate a breach of contract
Any other damage is expected to be instigated or likely to be recurrent
Where the Court is of the view that to safeguard the interest of any party, or in the interest of fairness and justice injunction or stay is essential and necessary.

CONCLUSION

It can be concluded that grant of temporary injunction cannot be demanded by the party as a question of right nor can be rejected by the Court subjectively. The injunction is an impartial remedy and draws the use of the maxim “he who seeks equity must do equity”. The Court has full responsibility to either grant an injunction or to reject it. The relief of injunction cannot be taken as an issue of right but according to the applicant’s case as may be. The authority to award an injunction must, consequently, be implemented with the best judgment, caution, and care.

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This article is written by Saba Banu, a 3^rd year law student, from Pendekanti Law College, Hyderabad.

INTRODUCTION

The study of jurisprudence, as other branches of law, was started among Romans first. The word ‘jurisprudence’ springs from the Latin word ‘jurisprudentia’ which suggests the knowledge of law. Jurisprudence is that the theory and therefore the study of law. Law is a very complex subject. The understanding of an idea differs from one person to different person.

Historical school of jurisprudence deals with the origin and development of the overall principles of law. The origin of the law is a continuous process and it does not stop by any command or anything.

Reasons for the Evolution of Historical School

The reasons for the origination of the historical school are that;

a) Reaction to the natural school: As the believers of the natural school believes that the origin of law is by the divine power. The believers say that it has been already in existence, and it is not the same as of the historical school of law. Under, the historical school of law, the believers think that it is not originated by the divine power, but has formulated by the people, which is not as same to the natural school.

b) The historical school of law, opposes the ideology of the analytical school of law.

Austin is considered to be the father of analytical school of thought, the method which Austin applied, and he confined his field of study only to be the positive law. On the basis of Austin’s conception of law. It shall be convenient to discuss Austin’s theory under two main heads:-

1) Austin’s conception of law.

2) His method.

Jurists of Historical School of Law

Montesquieu: Maine described him as the first jurist who proceeded on the historical school of law. This particular jurist made researches into the institutions and laws of the various societies and made a conclusion on the researches made by him that “that laws are the creation of climate, local situations, accident or imposture”. The suggestion of relativity of law, and that the law should answer the needs as according to the time and place, is a step in the directions of new thinking.

Savigny: Savigny is considered as the father of the historical school of law. The Law has source within the general consciousness of the people. He said that Law develops like language and Law features a national character. Law, language, customs and government haven’t any separate existence. There’s one force and power in people and it underlies all the institutions. The law, language, develops with the lifetime of people.

Savigny’s theory is often summarized as follows:

1) That law may be a matter of unconscious and organic growth. Therefore, according to him law is found and not made.

2) The law is universal in nature, like language, people and lots of other things within the world.

3) Custom not only precedes legislation, but it’s superior thereto. The Law should conform the favored consciousness

4) Legislation is that the last stage of law-making and thus, the lawyer or the jurist is more important than the legislator.

Criticism of Savigny’s theory

1) Inconsistency within the theory: He emphasized the national character of law, but at the equivalent time he recommended a way how the Roman law are often adapted.

2) Customs not always supported on popular consciousness: Savigny’s view is whole not perfectly sound, because many customs originated just for the convenience of a powerful minority. Sometimes, customs completely against one another exist within the different parts of the country which can’t be reflecting the spirit of the whole community.

3) He ignored other factors that influence law: Another criticism against him was ‘so occupied with the source of law that nearly forgot the stream’. The creative function of the judge was also ignored by the Savigny’s theory.

4) Many things were unexplained: Certain traits, like mode of evolution and development weren’t explained by the Savigny.

Savigny’s Influence Very Wide

The theory of school, later on, influenced many jurists. It had been after Savigny that the worth of historical method was fully understood. His method was followed in England by Maine, Lord Bryce, and lots of others who made studies of various legal systems on historical lines.

Puchta’s Contribution

Puchta made a valuable contribution to jurisprudence by giving the two-fold aspects of the human will and origin of the state. On some points, Puchta made improvements upon the ideas of Savigny and made it more logical.

Main Doctrines of Historical School

The principle doctrines of the school, by Savigny’s and a number of his followers, maybe summarized as follows:

(1) ‘Law is found, not made’. A special view is taken of the facility of act. The evolution of law is actually biological process.

(2) As law develops from a couple of easily grasped legal relations within the communities to the greater complexity of law in modern society. The lawyer, is therefore a comparatively more important law-making agency than the legislator.

(3) Laws aren’t of universal validity or application. Each individual develops its own legal habits, because it has language, manners and a constitution. Savigny insists on the parallel between language and law.

Stages of Evolution of Law

1) Law made by the ruler: Laws are the command of the ruler, back in those days. The decisions rendered by them are the decisions of god.

2) Customary laws: The laws were used as precedents as ordered by the courts.

3) Knowledge of law in minorities: The law was controlled by the priests, the power of the ruler weakened and the believe in the priests and customs took in their hand.

4) Codification: The law was codified.

CONCLUSION

The historical school deals with the past and the present, Historical school of jurisprudence describes the origin of law. Many jurists like, Montesiqueu, Puchta, Savigny were the supporters of the historical school.

According to maine, Montesquiue was the first jurist of the school.

Savigny was the father of the historical school. He told that law is like a language which develops and have a national character. Puchta made improvements in the Savigny’s theory and made it more logical.

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Vanshika Arora is a first-year B.A.LLB student at Army Institute of Law, Mohali. This article is a birds-eye view of the validity of e-contracts under Indian law the umpteen challenges faced in an e-contract transaction.

INTRODUCTION

At the outset, through the advancement of technology, especially the internet, business transactions have taken a big leap and become trans-continental. More specifically, this trans-continental trade largely takes place through the electronic mode and is hence called ‘e-commerce’ (electronic commerce).

The Indian Contract Act, 1872 was curated as a statute to deal with traditional contracts, namely, contracts over a piece of paper, requiring signatures of parties, and all prerequisites mentioned in the act. However, it is not viable to hope for age-old legislation to supply answers to every evolving mode of business, trade, and contracts. Therefore, The Information Technology Act, 2000 attempts to answer questions of validity and lay down processes for the contracts entered into through the online mode.

What are E-Contracts?

An E-contract is a kind of contract formed by negotiation between two or more individuals through the use of electronic means, such as e-mail, the interaction of an individual with an electronic agent, such as a computer program, or interaction of at least two electronic agents that are programmed to recognize the existence of a contract. The UNCITRAL (United Nations Commission on International Trade Law), Model Law on Electronic Commerce, 1996, does not define e-contracts, but merely states in Article 11 that a contract can be made by exchanging data messages and when a data message is used in the formation of a contract; the validity of such contract such not be denied. Therefore, there exists no formal definition of an e-contract, provided by any statute.

Types of E-Contracts

There exist three broad types of e-contracts, namely click-wrap, shrink-wrap, and browse-wrap or web-wrap.

Shrink-Wrap: Such contracts have been part of traditional transactions too and are not indigenous to the e-commerce industry. This type of contract can be understood through the example of computer software one may purchase from the electronic store. On the box of the software, a clear plastic wrap is attached, displaying a warning sign that the software is subject to terms of a license agreement that the user cannot read unless she purchases it. If the user does not wish to enter into a contract, she may choose not to purchase the software. However, the moment she opens the plastic wrap, she shall enter into a valid contract with the manufacturer. In the case of Pro CD Inc. v. Zeidenburg, the court observed that once the user checked the product, used it and reviewed the license, and chose not to reject it, shrimp wrap would be treated as valid.
Click-Wrap: These contracts are fairly common on the web. Before purchasing merchandise, a service, or even surfing on a website, netizens may come across a dialogue box displaying terms and conditions, that after being read can be assented to, through the “I Agree” option, or dissented to, through the “I disagree” option. In the case of Hotmail Corp. v. Van $ Money Pie Inc., the defendants violated the click-wrap agreement and sent pornographic content to the user, to which the court granted the injunction. These contracts can also be classified further into two categories:

Type and Click: In such contracts, the user is required to type, “I agree” and submit her response
Icon Clicking: In such contracts, the user is already provided with two clickable options of “I Agree” and “I disagree”, from which she merely needs to choose.
Browse-Wrap/ Web-Wrap: In such contracts, browsing through a particular website to purchase their services or goods, or merely use these services, shall be considered to be a contract.

Are E-Contracts Standard Forms of Contracts?

To answer this question short and crisp, yes, most e-contracts such a click-wrap and shrink-wrap are standard forms of contracts. In such cases, the user has no autonomy to dictate terms and is only at the disposal of either accepting or rejecting the terms. Moreover, every user is subject to the same standardized terms and conditions, which, in the absence of legal regulations, may also be discriminatory and aversive to user rights. The most recent example of this is the Whatsapp Privacy Policy Update, 2021 which renders WhatsApp users with only the choice of agreeing to the update, or not being able to utilize the services of WhatsApp.

Validity of E-Contracts

As far as the validity of e-contracts is concerned, the Information Technology Act, 2000 is the statute dealing with the same. This act is based on UNCITRAL Model Law on Electronic Commerce, 1996, and aims to provide legal recognition to transactions carried out through the means of the internet. Section 10A of the IT Act, 2000 states that “wherein, a contract formation, the communication of proposals, acceptance of proposals, the revocation of proposals and acceptances, as the case may be, is expressed in the electronic form, or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.”, this provision corresponds with Section 3 of the Indian Contract Act. Moreover, the Indian Evidence Act, 1872, also lays down provisions for the recognition of electronic records as evidence. Therefore, even though devoid of a formal definition, e-contracts are recognized as valid under Indian law. The case of Trimex International FZE Ltd. v. Vedanta Aluminum Ltd. recognized that e-mail exchanges between parties regarding mutual obligations constitute a contract.

Whether a contract is traditional in nature or over the internet, it needs to satisfy some pre-requisites of a valid contract, mentioned under the Indian Contract Act, 1872, which are the following:

Offer: In a traditional contract, the offeror has to make an offer, as the very first leg of a valid contract. In the case of e-contracts, the user browses through the website and chooses a product or service of his liking. This practice loosely constitutes an offer.
Acceptance: Once an offer is made, it has to be accepted to constitute a promise. A non-acceptance even in the case of e-contracts shall not make them valid. In case of electronic mode, acceptance is complete as against the offeror, when the electronic mode is dispatched and enters into the program of the offeree, to be outside the control of the originator. Similarly, acceptance is complete as against the offeree, when it enters an information system designated by the offeror for this purpose. In the case of Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas and Co., the Supreme Court held that Section 4 of the India Contract Act is only applicable in non-instantaneous forms of contract such as an email and not instantaneous forms such as a click-wrap contract. In the case of instantaneous forms of contracts, the contract is concluded when the offeror receives the acceptance, rather than when it is put in course of transmission so as to be out of the power of one party.
Lawful Consideration: For the formation of a valid contract on the electronic mode, there should be a valid consideration.
Free consent: Consent is said to be free when it is not caused by coercion, misrepresentation, undue influence, or fraud. In the case of e-contracts, wherein there is no face-to-face interaction and even any sort of active communication in some cases. Therefore, the “click-through procedure” displayed while users surf through the website, ensures free consent.
Competency of Parties: Only parties that are competent to enter into a contract, under the Indian Contract Act, can form a valid contract. More often, a minor may click “I agree” options of a click-wrap contract on the internet. According to the India Contract Act, an agreement entered into by a minor is void. The legal fraternity has so far been silent upon this issue of competency of e-contracts.

Challenges accorded with E-Contracts

The most contentious issue accorded to e-contracts is that of jurisdiction, traditionally a court of law can exercise territorial, subject-matter, or pecuniary jurisdiction. In the case of e-contracts, since the contract has basically been entered into over the web, the matter of territorial jurisdiction, stands questionable. If a user from India has clicked on the “I Agree” option of a website based in the US, what territorial jurisdiction would matters of this contract has? Or, if a user based in India enters into a contract through an email, with an individual, based in the US; what would be the territorial jurisdiction in this case? The Delhi High Court, in the case of Casio India Co.Ltd. v Ashita Tele Systems Pvt Ltd, held that if a website is accessible from Delhi, then territorial jurisdiction can be invoked. However, in the case of India TV Independent News Service Pvt Ltd. v. India Broadcast Live LLC, it was held that since a particular website is accessible from a place, does not render a reason enough for the contract to fall under the jurisdiction of that place.

Conclusion

Electronic contracts have facilitated communication and business around the world since they pose no boundary restrictions, however lack of proper guidelines have also aggravated ambiguity. The confusion around the time and place (jurisdiction) of when and where has an electronic contract concluded, still lies unanswered. Hence, the government has to step-up and take necessary action to regulate and facilitate e-commerce for consumer interests.

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This article is written by Rishita Naredi, a First-year B.B.A. LL.B. student in NMIMS Kirit P. Mehta School of Law.

INTRODUCTION

According to Merriam Webster, betting is an act of giving a pledge, or stake between 2 parties which leads to the formation of a contingent contract. In layman language, it refers to forecasting the future of a particular event.

People often confuse betting with gambling. But there are some differences which ought to be highlighted. Gambling is wholly based on the concept of probability, permutation, and combination. The outcome ranges from ‘win’ or ‘loss.’ It is also heavily reliant on one’s good fortune and coincidence. A person’s ability is rarely used in the game. On the other hand, Betting is a broad concept. It is a more calculated risk where the parties take into account the circumstances, external forces, etc.

This article will mainly focus on different aspects of Sports Betting in India.

Sports Betting

Nowadays, sports betting in India is growing at a tremendous rate. A large number of individuals want to wager on every sporting event because of the huge profits people make out of winning without much effort. There are many people who bet on sports, ranging from cricket to football to basketball including ice hockey as well as field hockey. Sports betting is further divided into 6 more sub-categories. These are listed below-

Straight Bet

This is the simplest form of a bet. Here, the individuals are supposed to choose an individual or team, which they predict might win or the match will end in a draw. If the said team wins, individuals win the money for correct estimation.

Pre-Betting

This is relatively an old form. Here, the individuals bet on a team or individuals before the match begins. This is similar to in-play betting, but the individuals are supposed to bet before the game.

In-play Betting

This is a revised form of Pre-betting. Here, the individuals bet on a team while the game is still ongoing. This is less risky and less profitable as well.

Accumulator Betting

In this form of betting 2 or more bets are combined to form one single bet known as Accumulator’s bet. For example, a person might bet that England would lose over India, and India will score more than 2400 runs if both the bets are fulfilled the person wins money.

Single Bet

It is part of Accumulator’s bet. It refers to one bet a person might go for, Example, RCB will win the next IPL is a single bet.

Spread Betting

This is a relatively different concept. Here the person betting on specific sports forecast whether an outcome will be above a particular number or below. This is called Spread betting. For example, a person bets that Brazil will score more or less than 7 goals in the football World cup.

Legality of Sports Betting

Laws related to sports betting are very vague and ambiguous in India. This might be because there are no specific international laws related to betting. Each country has a different set of laws for sports betting.

According to the Indian laws, betting in ‘Games of Luck’ is illegal as it amounts to gambling, and betting on ‘Game of Skill’ is legal. The main issue lies in determining whether a game is of luck or skill. Fantasy sports are legal according to the laws of India because it involves ‘Game of Skill’ where the opponent is a human being, who can be analyzed. Most states allow betting on games such as horse race betting and card games which are based on players’ skills rather than fortune. On the other hand, traditional betting is not legal in India, but has its acceptance in many other countries like Australia, Western Europe, and even the US.

According to the Indian provisions Public Gambling Act, 1867 and Technology Act, 2000 apply to the majority of India. Sports betting is prohibited by such rules, but individual states have the authority to enact their legislation. All forms of gambling are illegal in India, according to the Public Gambling Act (1867).

There are no specific laws for online betting which encourage people to bet illegally online. Many betting websites work freely making it accessible to every individual. While bookmarks are illegal in India, there is no law prohibiting an individual customer from placing an online bet with a bookmark based outside the country.

Online Betting

With the technology up-gradation around the world, including India, more than 5 million people are connected with the internet. This has made the online websites more accessible which were earlier not even known by many. One of the most visited websites is online betting. According to a study, more than 40% of the internet users in India gamble, and reports further point that India may soon surpass the United Kingdom in terms of gamblers per capita.

Online betting usually involves placing a bet through the internet and earning money thereafter. All the transactions take place in a virtual environment. Some of the online games are Rummy, Three-card games, etc.

Legality of Online Betting

No laws are governing Online betting in India, still there are some provisions in laws that help the judges to decide the legality of betting on a game-to-game basis. For example, games like Three-card are purely based on luck. On the other hand, Rummy cannot be categorized as a game of chance. This is because rummy requires players to have a certain level of ability, particularly when it comes to memorizing. While bookmarks are illegal in India, there is no law prohibiting an individual customer from placing an online bet with a bookmark based outside the country.

Several state governments have banned online gambling applications, including those in Andhra Pradesh, Telangana, Tamil Nadu, and Punjab. The Government of Sikkim released the Sikkim Online Gaming Rules, 2009 as a memorandum.

CONCLUSION

In India, there is no clear law that governs gambling and betting. To protect the public from the negative effects of these activities and to improve transparency, proper legislation governing gambling and betting activities is required. The IT Act, 2000 which governs cyber operations in India, does not include “gambling” or “betting”, so it is up to the courts to define and interpret the laws and give judgments accordingly. The allure and dignity of sports must be protected at all costs and so there is a need for more specific laws governing betting in India.

REFERENCES

https://www.asianfortunenews.com/2015/06/understanding-the-basic-distinction-between-gambling-and-betting/
https://www.merriam-webster.com/dictionary/bet
http://www.legalserviceindia.com/legal/article-3111-sports-betting-and-laws-relating-to-it.html
https://www.thequint.com/tech-and-auto/online-gambling-apps-in-india-is-it-legal-to-play-details-here

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This article is written by K.Lasya Charitha pursuing BA LLB in Damodaram Sanjivayya National Law University, Visakhapatnam. In this article, the researcher discusses theories and the classification of rights and duties in Jurisprudence.

INTRODUCTION

Rights and Duties are interrelated, because where there are rights, there are duties, and people are given rights to protect them and fulfill their duties to the state. Duties and rights go hand in hand. It is not wrong to say that both twins grew up from one root. Both concepts of rights and duties have been thoroughly discussed under the Jurisprudence. Many internationally renowned lawyers and scholars try to define their ideas and criticize the ideas of others.

Meaning of Rights

The Rights in the general sense mean different things, but it is usually understood as the standard of actions allowed in a given area. As a legal term, it refers to the standard of conduct permitted by law. Such permitted action of the people is called their legal right. The Legal right should be distinguished from the moral right or natural right. Legal rights are the interests recognized and protected by law. Violation of this interest is a violation of the law and respect for that is a legal duty. Moral law or natural law refers to the interests recognized and protected by natural justice. Violating this interest would be moral evil and respect, for that is, a sense of moral duty.

Definitions of Rights

Broadly speaking, it means that actions permitted by law are called legal rights, or actions recognized or protected by the state are called legal rights. The definition is given by many lawyers such as Holland, Austin, Pollock, etc.

As per Austin, right is personnel which lives in a determinate party or parties by temperance of a given law and which profits against a party or parties (or answers to an obligation lying on a party or parties) other than the party or parties in whom it lives. As indicated by him, an individual can be said to have a privilege just when another or others are bound or obliged by law to accomplish something or hold back concerning him. It implies that a right has consistently a relating duty. This definition, as it shows up on its very face, is defective on the grounds that in this definition there is no place for blemished rights.

Holland in one way or another follows the definition given by Austin. As per him, “capacity residing in one man of controlling, with the assent and assistance of the state the actions of others.”

Salmond characterizes directly from an alternate point. He says, “A right is an interest recognized and protected by a rule of right’. It is an interest in respect for which is a duty, and disregard of which is wrong.”

According to Gray: A legitimate right is “that power which the man has, to make an individual or people to do to or limit from doing a specific demonstration or acts so particularly far as the power emerges from society forcing a lawful duty upon the individual or people.” He expresses that the “right isn’t simply the interest, it is the way to appreciate the interest got.”

In the case of the State of Rajasthan versus Union of India, the Supreme Court expressed that “Legal rights in the exact sense are correlatives of legitimate duties and lawful rights are characterized as the interests which the law ensures by forcing duties on different people. In any case, the lawful right in the exacting sense implies right is the insusceptibility from the legal power of another. Immunity is no subjection by any means.”

Rights Guaranteed under the Constitution of India

The Constitution of India has ensured certain rights to the residents of India which are known as Fundamental Rights which are viewed as the main rights. On the off chance that these rights get disregarded, the individual has the option to move to the Supreme Court of India or the High Court of any state for enforcement of these rights.

The fundamental rights guaranteed by the Constitution of India are: ✓ Article 14: Right to Equality

✓ Article 19: Right to Freedom

✓ Article 21: Right to life

✓ Article 23 and 24: Right against Exploitation

✓ Article 25: Right to Freedom of Religion

✓ Article 32: Right to Constitutional Remedies

Theories of Rights

❖ Interest Theory

The interest theory was developed by Rudolf Von Jhering. Rudolf Von Jhering said that legal rights are interests protected by law, and he emphasizes the interests of the people, not the will of the people. The main goal is to protect people’s interests and avoid conflicts between personal interests. You are interested in the life of the community itself, and you are not bound by any laws.

Salmond’s opinion: He Supports the theory, but he states that compliance with the theory is an important condition. He Criticized the theory of interests on the ground

that interests are not protected by the state. In order to confer a legal right, the important thing is to protect the interests and be recognized by the state.

Gray‘s point of view: He said that the theory is partly correct because the lawful right itself is not an interest, it is only to protect the personal interests. He also pointed out that legal rights impose legal obligations on individuals through “state” laws, thereby giving them the right to take certain actions/temperance.

Dr. Allen‘s point of view: It can be said that the two theories are not contradictory, but this is a combination of the two theories. He tried to combine these two theories and pointed out that the essence of a legal right is not the right protected by law, nor the right protected by itself, but the right to exercise legal protection of interests. It can be concluded that both theories are an important part of the legal right.

❖ Will Theory

This theory is supported by Kant, Hagel, Hume. According to this theory, “rights are the inalienable attributes of human will.” The purpose of the law is to achieve freedom of speech. The Subject Matter comes from human will. Austin, Pollock, and Holland defined right as will. John Locke believes that “the foundation of the right is the will of man.” Puchta believes that legal rights give a person the right over an item, and according to the law, the item can obey the wishes of the person who uses the right.

Duguit’s view: According to him, the basis of law is not subjective will, but objective will. The purpose of the law is to protect only those measures that further support social solidarity. In addition, he found that subjective law theory is a metaphysical abstraction.

❖ Protection Theory

The state grants all rights in the form of laws and regulations, so rights are permitted by government agencies. Therefore, the most significant feature of the legal right is its recognition by the legal system and its judicial enforceability.

Elements of Legal Right

All legal issues and practices revolve around the rights and duties of individuals and authorities. Despite the existence of moral rights, all rights in our time are legal. According to Salmond, all legal rights include the following elements:

➢ Person of Inheritance or Subject of right object: This is the person who owns the right. This is the subject of law. Such people are called persons of inheritance. Even if the property is bequeathed to the unborn child, even if it is not safe, the unborn child still owns the property.

➢ Person of incidence or Subject of Duty: Another person has a responsibility to respect and recognize the rights of other persons. That person has a legal duty and is called a person of incidence.

➢ The content or subject matter of the legal right: The object of the legal right is an essential element. This is a legal issue; it refers to doing something or not doing certain actions or indulgence; it forces a person to abstain from voting or to act on behalf of a person with legal rights. Example: Y purchased a Van of 20,000 rupees. Here, Y is the subject of the right. Subject (Y) has legal rights and can exclude others.

➢ Objects of legal rights: Objects of rights are things or objects over which legal rights are exercised. Example: A bought a car at a price of 100,000 rupees, and the car here is an object.

➢ Legal right title: Title is the process of transferring or transferring rights to an individual. These are certain events whose previous owners have obtained their rights, such as through purchases, gifts, or wills.

Classification of Rights

➢ Right in rem and Right in persona: Right in rem is a right that is available to the entire society. Right in persona refers to the rights that individuals can use. An example of a breach of contract: If a breach of contract occurs, the party initiating the lawsuit will bring a lawsuit against the party concerned. Rights in persona are temporary and can become right in rem. Right in rem is permanent.

➢ Positive and negative rights: A positive right is a right when an action must be carried out by a person who has the corresponding responsibility. The person in charge must take positive action. Negative rights are the right to prevent you from taking certain actions. Negative rights correspond to negative responsibilities. The person on whom this duty is imposed is deprived of the opportunity to perform certain actions.

➢ Personal rights and proprietary rights: Personal rights are rights that respect the owners of the right. Personal rights have no economic value and are related to them i.e., Personal wealth or well-being. For example, the right to dignity, the right to freedom of speech. Proprietary right is granted to the owner of the property. These rights are rights with a certain currency or economic value and are estates of a person. For example patent rights, land rights, debts, etc.

➢ Perfect and imperfect rights: Perfect rights are protected and recognized by law, and infringers can be sued. Example: B borrows a loan from A and he needs to repay the loan, and A has the right to demand the loan amount. If B fails to pay, A has the right to file a lawsuit. Incomplete rights refer to rights that are not recognized or protected by law. Example: If the loan expires, you can claim the money, but you cannot execute it.

➢ Principal and Accessory Rights: According to law, the principal right is the most important. This is a basic right granted to people. Accessory rights are indirect rights or security rights. They are not important, but they are considered to be a fundamental right.

➢ Right in Re-aliens and Right in Re-propria: The rights in Re-aliena are available rights against the property of others. One example is the right to easement. This is the result of inheriting the concept of Jurisprudence from rulers and ministers. The right in the Re-propriais the right related to one’s own property, and this right leads to absolute ownership of the property. This is the result of the legal concept of ownership.

➢ Corporal and Incorporeal rights: Both rights are protected by law. Corporal rights are rights over tangible objects or material objects. These rights refer to the rights over objects that can be seen or touched. Incorporeal rights are rights to objects that cannot be seen or touched. Example: the right to reputation.

➢ Legal and Equitable rights: legal rights are protected by common law (ie, English courts). Common law depends on habit and custom. Equitable rights are protected by the equity court or the court of chancellor. The basic principles are natural justice, equity, fairness, and Clean conscience.

➢ Primary and Sanctioning Rights: Primary right is very important, and it is also a very basic right. These rights are independent in nature and have a Binding force. They are right in rem. For example, right of reputation. If these rights are violated in this situation, the person can go to court. This right is protected by law and takes the form of compensation, fines, or imprisonment. Sanctioning rights are the ultimate rights. These are rights that support primary rights. They are right in persona which results in some wrongdoing. Example: in violation of primary rights and private rights.

➢ Public and Private Rights: Public right is the right enforced by the state. For example, voting rights, travel rights, etc. Private rights are exercised for personal benefit. Examples: the right to sleep, the right to drink water.

➢ Vested and Contingent Rights: vested rights are rights granted to someone from the beginning. There is no need to do anything to grant someone these rights. It depends on the current situation. Contingent rights are rights granted to individuals on the occurrence or nonoccurrence of certain actions. This right depends on future actions. When a prescribed act occurs, only then the person is granted these rights.

Concept of Duties

Duty is also an action. Duty is a service to others, A person is responsible for a country and a man. It acts against unfair laws. These are the main duties enforced by the law. If the duty is not properly performed, it will constitute an offense under the law. The kinds of duties consist of moral and legal duties. The classification of duties includes primary and secondary duty, positive and negative duty, and absolute and relative duty, such as protecting and maintaining the environment. Cleanliness is a person’s responsibility to the country.

Duties under the Constitution of India

Article 51-A of the Constitution of India guarantees certain duties to all Indian citizens. Article 51-A of the Constitution of India stipulates that all Indian citizens must abide by the provisions of the Constitution and respect the national flag and the National anthem:

1. To safeguard the sovereignty and integrity of India

2. To follow the noble ideals of a national struggle

3. To defend the country and contribute to national service when called 4. To preserve the national heritage of the country;

5. To promote and maintain the harmony of brotherhood amongst the people of India. 6. To protect the dignity of women

7. To protect the natural habitat, including forests, lakes, rivers, and wildlife; 8. To protect public property and to avoid violence;

9. To contribute to the development of the nation in all spheres.

Classification of Duties

➢ Moral duty and legal duty: Legal duties are opposite to legal rights, and are recognized by the law in the administration of justice. Moral duty is the opposite of moral right. Although it is not recognized by law, it is implemented in accordance with established norms and social values.

➢ Antecedent duty and remedial duty: The duty that exists independently of another duty is the antecedent duty, and the duties arising from the infringement of rights constitute the remedial duties.

➢ Fundamental duties and legal duties: Fundamental duties are obligations imposed over citizens in accordance with their country and the constitution, while legal duties are obligations imposed by laws and regulations.

➢ Positive duty and negative duty: When the law forces us to take a certain action, it is called a positive duty, and when the law forces us not to take a certain action, it is called negative duty.

➢ Primary duty and secondary duty: Primary duty is an independent duty, and is an absolute duty, independent of other duties, while secondary duty is a duty that is not independent of other duty, and is the result of a violation of a duty.

➢ Vested duty and Contingent duty: Vested duty is a direct duty, while contingent duty is conditional duty.

➢ Duty in rem and duty in personam: Duty in rem is the duty with respect to ownership of property, while Duty in personam is the duty with respect to human dignity and transitional rights.

➢ Duty in repropria and duty in realiena: The duty in repropria means an absolute duty to own property, and the duty in realiena means the duty of partial property.

➢ Corporeal duty and incorporeal duty: Corporal duties are duties over physical property, while incorporeal duties are duties for non-physical properties like intellectual property rights.

➢ Absolute duties and Relative duties: Absolute duties are not corresponding and are not relative, while relative duties are related to each other and are corresponded with a man’s duty, which is interdependent.

Conclusion

Therefore, the concept of rights and duties occupies an important position in all legal systems in the world. Without rights and duties, citizens can only exist as animals. Merely granting of rights and duties is of no use, If they do not have the support of the rule of law, this is the legal protection that can be enforced in court. In modern times, the concept and scope of rights and duties have continued to expand, and even non-human rights are important and recognized. Various trends are seen in the practice and application of these rights and duties. The courts have adapted to the changing needs of society.

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