lexpeeps lexpeeps – Page 44

Case Number

Cri. Revn. Case no. s 585, 586, 658 of 1999

Equivalent Citation

1999 SCC OnLine Mad 604: 2000 Cri LJ 1552: (2001) 1 BC 211

Bench

Single judge bench of A. Ramamurthi, J.

Decided on

10^th August 1999.

Relevant Act/Section

Section 451 of the Code of Criminal Procedure, 1973 – Order for custody and disposal of property pending trial in certain cases.
Section 91 of the Code of Criminal Procedure,1973 – Summons to produce document or other thing.
Section 379 of the Indian Penal Code, 1860 – Punishment for theft.
S.203 of the Code of Criminal Procedure, 1973 – Dismissal of Complaint.

Brief facts and Procedural History

Mr. Sekar had filed two revision petitions in the trial courts asking back for the custody of the lorry that he alleged being the owner of. He had filed a complaint under sections 451 as well as section 91 before the learned Magistrate asking for the lorry from the respondent. Along with it, Mr. Sekar filed a complaint of theft under S.379 of IPC stating that the respondent, Bank of Madura, had committed an offence under the aforementioned section by taking away the lorry from the rightful owner. The learned Magistrate dismissed the complaint under S.203 which resulted in the petitioner filing a complaint with the Additional District Judge of Trichy wherein his petition was allowed. The respondent part, Bank of Madura, aggrieved by this order, filed a revision petition wherein the Sekar’s petitions were dismissed by the trial magistrate. Aggrieved against this, Sekar filed the current revision petition in the High Court of Madras contending that the magistrate has erred in dismissing his petitions. The respondent bank states that it was well within their rights as a lender of finance to take away the lorry on default of any contractual agreement between the bank and an individual/group.

Issues Before the Court

Whether the learned magistrate has erred in dismissing the petitions of Mr. Sekar?
Whether the bank should be punished for an offence committed under S.379 of the Indian Penal Code?

Ratio of the Case

The ratio decidendi in the above case is that the bank cannot be said to have committed an offence under S.379 when it was strictly doing its job as a finance lending institution that has the rights to seize the borrower’s property in case of default of payment even after countless warnings by the bank.

Decision of the Case

Ramamurthi, the presiding judge in the above case, after a careful perusal, stated that none of the judges except the Chief Judicial Magistrate of Trichy has made a mistake in dismissing the petitions of Mr. Sekar. Sekar himself entered into a hypothecation agreement with the respondent Bank for funds. When it was time for Sekar to pay back the amount, he failed to do so even after repeated warnings. It is the right of the Bank therefore to seize the security of the borrower and then sell it to whoever they want to, because Sekar ceased being the owner of the lorry when he defaulted on payment.

Therefore, the court held that the learned magistrate has not committed any mistake in dismissing the petitions and that the decision will be upheld by the High Court also. The bank has also not committed an offence under S.379 of the Penal Code.

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This article is written by Indra Priyadarshini, a student of Alliance University, Bangalore. This paper discusses the compensation available to victims of a crime in India.

INTRODUCTION

According to Article 1 of the United Nations General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power, the term ‘victim’ means “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.” Thus the word “victim” refers to any person, group, or entity who has suffered some injury or loss due to harmful or illegal activities of another person, or group. This harm can be physical, economical, or mental. According to Article 2 of the UNGA Declaration, this term does not only apply to the person who suffers the harm or loss, in some cases, it can also be used to refer to the near and dear of the victims. It also includes persons who have suffered harm while helping a distressed victim or while preventing victimization. A person will be referred to as a victim even if the offender is not identified, prosecuted, convicted, or apprehended.

The word ‘compensation’ refers to something which compensates or is given for the purpose of compensating an injury or loss incurred by another. It is a counterbalancing factor or the amends made, in monetary form, to compensate loss or injury, or for requisitioned property. Compensation to the victims denotes to something that is given in order to recompense i.e. equivalent rendered. The objective of compensation is to make good the loss sustained by the victim or legal representative of the deceased.

In India, the right of a victim to receive compensation was recognized under the previous Code of Criminal Procedure of 1898 as well. But this right could only be exercised in cases where a substantive sentence or fine was imposed and limited to the amount of fine actually realized. However, this provision was not invoked very often. Later on, this right was read as a part of the fundamental right under Article 21 of the Constitution. Section 357A was inserted in the Code of Criminal Procedure, 1973(hereinafter referred to as CrPC). This section mandates the states to provide for compensation to victims out of the victim compensation fund created for the purpose. The following are few of the laws relating to compensation to victims of crime:

From CrPC- sections 357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250.
From the Constitution- Articles 14 and 21 provides certain safeguards to victims of crime.

Compensation under Various Provisions of CrPC

The 41st Report of the Law Commission discussed Section 545 of the CrPC of 1898 extensively. The report stated that the importance of recovering the compensation should be enforceable in a civil court, similar to the public remedy available to tort. Earlier, the use of the word “substantial” posed a demarcation on the gravity of compensability which excluded cases where nominal charges are recoverable. However, the report debated against the demarcation since the courts rarely utilised their discretion in applying this provision while directing compensation for victims. Thus, the Government of India introduced the Code of Criminal Procedure Bill, 1970, according to the recommendations of the Law Commission Report. It was aimed at revising Section 545 and re-introducing it in the form of Section 357 as it reads today. The CrPC then incorporated the changes proposed in the said Bill of 1970. In the Statement of Object and Reasons it stated that Section 357 was “intended to provide relief to the poorer sections of the community” whereas, the amended CrPC gave the power to court to order payment of compensation by the accused to the victims of crimes “to a larger extent” than was previously allowed under the Code. Section 357 brought about certain significant changes. The demarcation was removed with the exclusion of the word “substantial”. Furthermore, two new subsections were inserted. Subsection (3) allows for the payment of compensation even in cases where the sentence does not impose a fine, while subsection (4) outlined the jurisdiction and powers of courts with respect to the section. It states that an order awarding compensation may be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

In the case of State of Gujarat v. Hon’ble High Court of Gujarat the Supreme Court stated that
“Section 357 of the Criminal Procedure Code, 1973 provides some reliefs to the victims as the court is empowered to direct payment of compensation to any person for any loss or injury caused by the offence. But in practice the said provision has not proved to be of much effectiveness. Many persons who are sentenced to long term imprisonment do not pay the compensation and instead they choose to continue in jail in default thereof. It is only when fine alone is the sentence that the convicts invariably choose to remit the fine. But those are cases in which the harm inflicted on the victims would have been far less serious. Thus the restorative and reparative theories are not translated into real benefits to the victims.”

Section 358 deals with the interpretation of who is a ‘victim’ and what would constitute ‘compensation’ for that purpose. While defining who a victim is, the Supreme Court has stated that “the term ‘Victimization’ is defined neither by the Central Act nor by the Bombay Act. Therefore, the term ‘Victimization’ has to be given general dictionary meaning. In Concise Oxford Dictionary, 7th Edn., the term ‘Victimization’ is defined at Page 1197 as follows : make a victim; cheat; make suffer by dismissal or other exceptional treatment.” Section 358 states that compensation should be provided to any person who would be a victim of an arrest without reason. It states that in such situations, the Magistrate may award compensation of up to ₹1,000/- to the person who is a victim of such an arrest. However, as per this section, a direct connection between the arrest and the complainant is required. To apply this provision, the arrest must have been caused by the informant without any sufficient grounds.

Section 359 deals with cases where an accused is convicted by the court upon a complaint being filed for a non-cognizable offence to a court. It states that a Court of Session, an Appellate Court, or the High Court, while exercising their revisional jurisdiction, can make an order for the payment of costs in such situations. Apart from the penalty imposed, the court may also order the accused to pay to the complainant, either in whole or in part, the cost which is incurred by the complainant in the prosecution. Furthermore, the court may also sentence the accused to a simple imprisonment for a period not more than thirty days in case he does not make the payment.

The CrPC also, under section 237, deals with cases where the accused may be victim to false allegations. Sections 237 deals with compensation to such peculiar victims. This section allows the Court of Session to take cognizance of an offence in accordance with section 199 (2) of the CrPC. If, in the opinion of the court, there is a lack of reasonable ground for the allegation, it may order the complainant to pay compensation of an amount not exceeding ₹1,000/- to the victim of such false accusation, after recording reasons for the same. Similarly, section 250 empowers the Magistrate to order the complainant to provide compensation to the person against whom baseless allegations were made.

Compensation under the Indian Constitution

The Constitutional provisions, especially Articles 14 and 21, could be widely interpreted so as to include rights of the victims of crime including the right to compensation. Similarly, the constitutional remedies for human rights violations, is extensively applicable to the victims of crime. There are provisions in Directive principles of State Policy which could be liberally construed to cover victims of crime entitling them the right to compensation. Article 38(1) states that the state should strive to promote welfare of the people by securing and protecting, as effectively as it may, a social order in which social, economic and political shall inform all institutions of national life. This provision if interpreted creatively is inclusive of victims’ rights. In the case of Delhi Domestic Working Forum v. Union of India, the Supreme Court observed that “It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result.”

Article 39 (provides for policies to be followed by the state to secure economic justice) and Art 40 (which provide for equal justice) are inclusive of victims’ rights to compensation. Article 41 states that the state shall make effective provisions for securing public assistance in the “cases of disablement” and in the “case of undeserved want”. The expressions disablement and other cases of undeserved want could be surely interpreted to include victims of crime and hence state is obliged to provide public assistance to victims by way of monetary compensation apart from guaranteeing other rights to them. These directives though non justiciable, imposes obligation on the state to take positive action for the welfare of the people. Moreover many of the Directives are elevated to the status of Fundamental Rights by judicial decisions. Apart from these, as per Article 51-A of the constitution it is the Fundamental duty of every citizen, “… to have compassion for living creatures” and “to develop humanism”. These provisions also could be creatively interpreted to include victims of crime.

CONCLUSION

The victim compensation in India is still not the strongest point of our criminal law. The remedies currently available under the law are limited, segregated, uncoordinated and demarcated. This is the major loophole that’s present in the system, which must be remedied by enactment of a set of comprehensive laws by the legislature. Nevertheless the criminal justice system has changed its approach and the legislatures and judges have been playing an important role in the exceeding of the rights of victims of crime in the criminal justice administration. But still there are cases where the victims have not received their due concern and their rights have not been given their due weightage. Victims have few legal rights to be informed, present and heard within the criminal justice system. But unfortunately, victims do not have to be notified of court proceedings or of the arrest or release of the defendant, they have no right to attend the trial or other proceedings, and they have no right to make a statement to the court at sentencing or at other hearings. Further, the coordination between the courts, the police, the DLSA and the State Legal Services Authority must be more specific. Therefore, each instrument must inform and assist the victim in realizing compensation.

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This is authored by Janaki Nair a 3^rd year B. A. LLB student in Symbiosis Law School Pune. The following article deals with the system of taxation in India and how the taxpayers navigate around the same topic. It also deals with the problems that taxpayers may face while filing tax returns to the Government.

INTRODUCTION

The taxation system of a country is the system where the Government of a particular country levies a financial charge or some other sort of levy on the citizens of the country. These citizens are known as the taxpayers and can range from individuals to established organizations and businesses. Tax is levied so that the Government can fund its spending and other public–oriented expenditures for the benefit of the public. It is compulsory by almost every citizen and a failure, resistance, or evasion to payment of taxes by any individual or group would result in punishment by law.

Broadly speaking there are two categories of taxes:

Direct Tax: This type is also known as Progressive Tax as the amount to pay increases by an increase in the income of the taxpayer. Direct Tax is the one that is levied directly onto the income earned by individuals as well as corporations. Regarding direct tax, the taxpayer cannot shift it towards any other person or group and therefore has to pay it by themselves. It is said to help reduce inflation and inequalities in society. Payment of Income Tax is the most well–known direct tax in the world.

Indirect Tax: This type is also known as Regressive Tax as everyone, regardless of their economic status, is expected to pay the same amount of tax to the Government. It widens the gap of social inequality that is already big in India. The rich get richer whereas the poor get poorer. Indirect Tax is imposed by the Government on the sale and business of goods and services. The seller of these commodities and services can shift the burden of paying the tax to another individual or group who becomes the buyers in the transaction. An example would be the recently introduced Goods and Services Tax (GST) of India.

General Rights of Taxpayers

Tax payment is an extremely vulnerable and crucial thing to inculcate into the minds of the citizens because there are so many ways in which it could go wrong. The authority would need to develop incredible amounts of trust for the citizens to be completely okay with paying their income to the Government for a better life.

Taxpayers therefore also have some general basic rights under the numerous rules and regulations of the country. They are as below:

Right to Legal Certainty: According to this, tax authorities would be restrained from arbitrariness by protecting taxpayers from them. Furthermore, this right helps an individual taxpayer to predict the obligations and liabilities that he may have while also ensuring him by making him aware that the rights cannot be changed arbitrarily. This right, therefore, protects a taxpayer against forceful and coercive methods and also gives him the right to appeal in case of any violations.
Right to non-retroactivity: If tax payment were retrospective in nature, it would violently violate the rights of the taxpayer. Therefore, the country denies the freedom for retroactive changes in tax law in many Indian states. This stems from the fact the rights of these taxpayers consist of the effect that the tax consequences would have on the economic decisions of the taxpayer.

Other than the national laws and regulations that provide some sort of rights to the taxpayers, there are also international conventions of which India is a signatory to that talk about providing taxpayers with rights. These conventions ensure that the people get some form of protection from International law when the domestic law proves to either not provide them with any or sufficient form of protection.

The most important international convention with regards to tax payment is the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 1950. Under this, Article 1 of the first protocol on ‘protection of property’ basically states that tax must be imposed only according to the law of the land, the system must serve a valid purpose that is in the public or general interest of the country and that the laws adopted must be reasonable and not further violative of any fundamental rights of the people.

Charter of Taxpayers Rights and Problems

India has time and again produced several charters on the rights of taxpayers of India. However, almost all of them were purely theoretical and had almost no practical implementation. The first Income Tax Charter was drawn up by the Government in the year 1998. Under it, the Income Tax department ensured that they would be dedicated to the commitment provided by the taxpayers by being – fair, helpful as well as efficient in their dealings with any form of grievances. They had also stated that the Charter would acknowledge any communication from the taxpayer at the time of complaint–making (the latest being within 7 days of complaint) and furnish replies the latest within 30 days. Further, they ensured that it would redress and resolve all complaints within 30 days of complaint and all of them will be kept confidential.

However, these promises were later held to be empty as a review of all the taxpayer Charter programs by the Central Government through the first 15 years of the 2000s showed that the Charters were extremely poorly drawn up and implemented in the states.

It was realized that the major issue regarding this failure in implementation is because – the absence of any statutory backing of the Charters and lack of awareness of the Charter by the taxpayers. Due to the above two reasons, the Charter of Taxpayers’ rights did not have any impact on the tax-paying community.

Therefore, an important step had been taken by the Indian Government in August 2020 to rebuild the lost trust of the taxpayers and also to ensure that the rights and obligations of the taxpayers are well looked after by an accountable Government. Therefore, the Charter was enshrined under Section 119 A of the Income Tax Act of 1961. Under the section, taxpayers would be treated as true customers, will be made aware of every information as accurately as possible, confidentiality shall be maintained, and the authorities would be held accountable for everything. Taxpayers may also approach any department for redressing their grievances and complaints.

CONCLUSION

To conclude, the main purpose behind the latest Charter and its subsequent enshrinement into a statute was to hold both the taxpayers as well as the authorities liable for their actions before the law. Accountability fosters more responsibility. Trust and transparency can be strongly established when the base is strongly implemented. Instead of passing orders merely for tax collection, it will only be met with disdain and not acceptance. Therefore, the need of the hour is to ensure that proper administrative work is set up that allows for smooth and fair functioning of the tax system.

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This article is authored by Sujata Porwal, third year BA LLB (Hons.) student at Symbiosis Law School, Pune. The article aims to provide an understanding of the term Juvenile Delinquency and its current legal position in India. The article also suggests reformative measures to prevent juvenile delinquency.

What is Juvenile Delinquency?

The conduct of an anti-social or criminal activity by a child (below 18 years of age) that is in conflict with or in violation of any prevalent law of the nation shall be considered as ‘Juvenile Delinquency’. In other words, juvenile delinquency is an act that reflecting crime, if committed by an adult.

The Indian justice system believes that such children, termed as a ‘child in conflict with law’, needs special care in order to eradicate the roots of the crime that is budding in the mind of the child. It is common to observe juvenile offenders turning into uncompromising criminals if they do not receive adequate care.

The term juvenile finds its boundaries in sub-section (35) of Section 2 of Juvenile Justice Act, 2015 (hereafter referred to as ‘JJ Act’) whereas, the term delinquency attains its meaning from sub-section (45 & 54) of section 2 of the JJ Act.

It is believed that no child is born a criminal. Such behavior is often the result of surroundings in which a child is brought up or lack of proper education and parental attention. However, it is easier to restore a child from such criminal activities. In the words of Sir Fredrick Douglass, ‘It is easier to build strong children than to repair broken men’.

Moreover, the vital cause that leads children towards criminal or unlawful acts is habitually rooted in the neglect or abandonment that a child is forced to go through. It is therefore not justified to accuse the child of the act by subjecting him/her to harsh punishment. Thus, India has adopted a restorative justice mechanism to protect and reform the young minds that bend towards such activities.

What causes delinquency among children?

There can be several causes as to why a child falls prey to juvenile crimes. It can be fostered by a wide range of factors including social structure, financial conditions, social institutions, etc. Some major causes are discussed below:

Rational choice

Several psychological theories and analysis suggest that a child might be attracted towards a delinquent act as a result of a rational choice. In other words, the child deliberately chooses to commit such an act. Such acts might be a source of satisfaction for the child that withholds their understanding of right and wrong.

Social Disorganization

The Indian system of joint-families is losing its significance, due to the emerging trend of nuclear families, where both the parents cater to their proficiency by stepping out to work. Children belonging to such families feel neglected and abandoned. Quoting the words of the Great Noble laureate Gabriel Mistral, ‘We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life’.

Such children have a higher tendency to incline towards juvenile delinquency.

Outside influencers

The friends and the surroundings of a child have a huge impact on his/her habits, way of thinking and life in general. A minor indulgence with the wrong company can lead to major changes in a child’s life, directing him/her towards unethical actions.

Influence of the wrong people provides direct as well as indirect encouragement to the child to commit crimes. Besides, the neighborhood and environment at the child’s home also have a major impact on his/her behavior. Outside influence can also depend upon the child’s access to internet, television and social media.

Labeling

One of the most deep-rooted problems of the recent times is labeling. We, as a society, have set standards and norms which every member is expected to follow. If we observe anything outside that box, we invite it with grave criticism. For example, a boy who cries is not manly enough.

Such labels push the child towards committing a wrongful act. Punishing someone for being their original self either guides that person towards depression or forces him to choose the path of revenge, both of which can be hazardous to a healthy society.

The Legal Angle

The JJ Act is the primary central legislation that deals with the matter of Juvenile Justice in the country. Erstwhile, each state had separate legislation to address juvenile justice.

The constitution of India also provides for certain provisions that tackle issues related to Juvenile Justice. These consist of:

Article 15, clause (3)
Article 39, clause (e) (f)
Article 45
Article 47

The government of India ratified the UN Convention on the Rights of the Child, 1989 on 11^th December 1992. The government also enacted a law titled Juvenile Justice Act, 1986 in lieu of the ratification to guarantee the right to survival, protection, development and participation to the child.

The failure of the above-mentioned Act led to the adoption of an amended version of the Act known as Juvenile Justice (Care and protection of children) Act, 2000. The act aimed at modifying the existing juvenile laws in the country and provide care and protection to the children in conflict with law by catering to their growth and development in a child-friendly method. The act strived to work in the best interest of the children.

However, a further renewed version of the act was made applicable in 2015, famously known as the JJ Act or the Juvenile Justice (Care and Protection of Children) Act, 2015.

Preventing Juvenile Delinquency

Developing a strong system of preventive techniques will save the country from an increasing crime rate. Therefore, prevention of juvenile delinquency acquires great value in the Indian scenario. The foundation of prevention lays at the ground level of a family by assisting children from the very beginning. The primary step is to identify the children who are in dire need of help. If a child inhabits criminal tendencies at a young age, it is quite likely that he might turn into a habitual offender as an adult.

Juvenile delinquency can be handled through individual as well as environmental programs that assist a child towards positive attitude and change. While individual programs encompass counselling and psychotherapy, the environmental programs focus on improving the socio-economic situation that is likely to encourage delinquency.

Although, prevention of delinquency continues to remain a vast and unexpired term that bears the capacity to attain multiple meanings owing to the situation.

Inference

There has been a surge in the issues related to children in the recent years. This not only hampers the individual growth of a child, but also leads to turmoil in the whole society. The urgency to deal with the social, economic and other factors responsible for juvenile delinquency thus becomes imperative. Since the Juvenile Justice system is bent towards a restorative form of justice, attempts shall be made to ensure that a child is restored even before he commits the crime. In other words, if a hungry child is likely to commit theft, the bigger problem of poverty and hunger shall be dealt with rather than investing resources to restore the child through psychotherapy. Besides, child abuse, in its entirety, shall be eradicated from the society.

India is known for its rich heritage and culture that instills high morals and strong values in its citizens. The state shall take measures to ensure that this legacy is preserved and the children and enlightened and educated about ethical ways of living in order to uplift the society as a whole.

References

Juvenile Justice (Care and Protection of Children) Act, 2015

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This is authored by Janaki Nair 3^rd year B. A. LLB student in Symbiosis Law School Pune. The following article aims to showcase the deep and complementary relationship between the Fundamental Rights as well as the Fundamental Duties prescribed in the Indian Constitution.

INTRODUCTION

The Constitution of India is a revered legal document for the Indian governance system. It is the supreme law of the land and it encompasses the basic code that differentiates among the various structures, procedures, powers, rights as well as the duties of both the citizens as well as the governing authorities of India. The Constitution is preceded by what is known as the Preamble that states the aims and visions, as well as the purposes of the Constitution – an example of it is to state that India would be a sovereign, socialist, secular, democratic republic. The Constitution is divided into numerous parts that all have certain rules prescribed into them.

Out of them, arguably, the most important ones are three Parts –

PART III – Fundamental Rights of the citizens of India
PART IV – Directive Principles of State Policy
PART IVA – Fundamental Duties

The Fundamental Rights and Fundamental Duties can be said to be the basic and indisputable rights that belong to every Indian with no discrimination based on gender, sex, caste, religion, etc. Fundamental Duties are the obligations that bind a fellow Indian to observe and behave accordingly and in consonance with the principles of the nation. The Directive Principles of State Policy (DPSP) are the guidelines that every state authority needs to consider and keep in mind before taking any decision that might affect the country either partly or wholly. All three of these parts are extremely important to the smooth functioning of governance in India and were developed between the years 1947 to 1949.

The following article will be focused on the Fundamental Rights and Duties and how they complement as well as differ from each other.

Rights and Duties under the Constitution

Fundamental Rights, as mentioned, consist of the most basic rights of every human that cannot generally be taken away by a government authority unless under extremely special and extraordinary circumstances. Fundamental Rights are, therefore, enforceable by the court of law; anyone who feels as if one or more of their fundamental rights were violated can appeal before the judiciary. Following are some cases that pinpoint the importance of Fundamental Rights in Indian law –

Kesavananda Bharti v. Union of India AIR 1980 SC 1789 – In the above, the court had held that fundamental rights formed part of the basic structure of the Constitution and hence were not allowed to be amended in any form.
re Kerala Educational Bill AIR 1980 SC 1789 – In the above, the court had stated that in a situation of conflict, the DPSP cannot override the fundamental rights. However, the court also stated that care must be taken to ensure that all these important parts of the Constitution are existing harmoniously with each other.

Fundamental Duties, conversely, are the obligations that the same citizens have by simply being Indians towards the country. Fundamental duties stem up in the form of ensuring that the people in the country are upholding the dignity and principles dear to the nation. They are the moral obligations that the citizens promote to encourage patriotism and unity among the diversity of the nation. Some of the duties are as follows – to abide by the Constitution and respect it, to uphold and protect the sovereignty, unity, and integrity of the country, etc.

Relationship between the Rights and Duties

It is extremely clear after reading the Constitution that the relationship between fundamental rights and fundamental duties is not mutually exclusive. They are, on the other hand, extremely compatible and even complementary to each other when it comes to announcing the rights and duties of the citizens.

Even though fundamental duties are not legally enforceable before the Court unlike the fundamental rights, the Indian judiciary has time and again stated that the fundamental duties, along with the directive principles of the state prescribed under the constitution, should not be restricted because of a mere legal unenforceability. The judiciary has time and again stated that the duties will not be taken for granted and strict implementation of these principles will be seen by the Government.

In the case of Chandra Bhawan Boarding v. State of Mysore 1970 AIR 2042, 1970 SCR (2) 600, the court had opined that it is a grave mistake to think that the Constitution only primarily guarantees the Fundamental Rights and not the duties. The Supreme Court further stated that Part IV and Part IV A of the Constitution are also present that aims at establishing Indian society as welfare – oriented society both nationally and internationally.

The fundamental rights cannot be exercised without the fundamental duties. As a prudent citizen of the country, every individual has certain rights as well as responsibilities bestowed upon him/her/them under Parts III, IV, and IV A of the Constitution. These rights and duties are also mostly overlapping and redundant of each other. For example, Article 26 of the Indian Constitution under Part III talks about the Right to Education that is fundamental to every citizen of the country. Similarly, Article 51A (k) under Part IV A of the Constitution states how every parent or guardian figure of a child should provide educational opportunities for the child from the ages of 6 years to 14 years. Therefore, both of the rights and duties have worked together towards securing the right to education of a child between the ages of six and fourteen.

Article 21 of the Indian Constitution is the fundamental right to life and dignity of an Indian citizen. Similarly, A. 51 A (c) and (e) are fundamental duties to ensure that the dignity of both the nation as well as the individual is upheld by ensuring harmony and freedom based on religious, gender, social, etc. differences.

CONCLUSION

Therefore, it is clear that the main purpose of both the rights and duties is to ensure that the country is run along with the ideals of sovereignty, freedom, secularity, and dignity. Both of them ensure that the individuals are treated equally and respectfully thereby upholding the ideals of both the Preamble and the Constitution through their interrelatedness.

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This is authored by Janaki Nair a 3^rd year B. A. LLB student in Symbiosis Law School Pune. The following article revolves around the impact that tax imposition would have on businesses of different capacities in India and around the world.

INTRODUCTION

Taxation refers to how the Government of a particular country levies a financial charge or some other sort of levy on the citizens of the country. These citizens are known as the taxpayers and can range from individuals to established organizations and businesses. Tax is levied so that the Government is able to fund its spending and other public–oriented expenditures for the benefit of the public. It is compulsory by almost every citizen and a failure, resistance, or evasion to payment of taxes by any individual or group would result in punishment by law.

Broadly, two types of taxes are levied in India – Direct Tax and Indirect Tax.

Direct, just like the name, refers to the tax that is levied directly onto the income earned by individuals as well as corporations. Concerning direct tax, the taxpayer cannot shift it towards any other person or group, and therefore has to pay it by themselves. It is said to help reduce inflation and inequalities in society. It is called a Progressive Tax as the taxable amount increases per the income generated by the taxpayer. An example would be the infamous Income Tax of India.

Indirect tax on the other hand is the tax imposed by the Government on the sale and business of goods and services. The seller of these commodities and services can shift the burden of paying the tax to another individual or group who becomes the buyers in the transaction. However, this tax is called a Regressive Tax because it widens the gap of social inequality as everyone, regardless of their economic statuses, is supposed to pay the same amount of tax. The economic divide between the rich and the poor becomes even wider. An example would be the recently introduced Goods and Services Tax (GST) of India.

Corporation Tax on Companies

Taxation does not discriminate between people and organizations. The businesses are as responsible as the individuals are to pay their taxes in the correct time and amount to the Government. Business corporations, from the year that they start reaping profits, are liable to file their Income tax returns annually. The corresponding provision of law that deals with this topic are the Income Tax Act of 1961. Section 17 and 18 of the Act talks about the types of companies that are required to pay Income Tax annually.

Taxation based on Size of Company

However, the amount of Income-tax that is expected from each of the business corporates differs with the size of the firms. As it is based on progressive means, smaller business organizations have certain advantages over the bigger ones when it comes to paying tax annually. Smaller businesses of certain criteria are eligible for a tax known as Presumptive Taxation. According to Section 44AD of the Income Tax Act, a business with an annual turnover of less than Rs. 2 crores is said to be an ‘eligible assessee’ for this method. Under this, the eligible assessee does not have to maintain any records of accounting and does not have to audit these records. Additionally, these businesses only have to declare 8% (non – digital) or 6% (digital) of the gross receipts as taxable income to the Government.

Thus, this method was established to give some form of relief to small business owners who have lesser amounts of capital and profits to give away than their bigger counterparts. One more feature of presumptive taxation is that the taxpayers would have to pay advance tax under this scheme. However, instead of calculating the income and paying it every quarter, presumptive taxpayers can pay all of their tax before March 15^th of the concerning financial year. Therefore, the major advantage that this method provides to small businesses is the huge reduction of the bureaucratic burden on the small business owner.

The country has also made enough initiatives to ensure that India is a good place for the small start–up companies to establish themselves by initiating schemes and programs such as Start-Up India, Made in India, etc. These businesses are also given an advantage through specific provisions in the Income Tax Act, 1961.

According to Section 80 of the 1961 Act, eligible businesses do not need to file any part of their profits as tax for 3 consecutive years out of a 7 – year – period. They are also free to choose which 3 years can be used for the above purpose, thus helping the business choose the 3 most profitable ones to exempt from tax payment. According to the amended Section 54GB of the 1961 Act, if any individual or HUF sells their property and gets a Long-Term Capital Gain out of the sale, then such gain will not be taxable if the consideration is used for subscribing to Equity shares of another eligible company and if the company utilizes the consideration received for acquiring assets for itself within one year of the subscription date.

To qualify as an eligible business, it needs to be:

Incorporated as a private limited company or an LLP or as a partnership firm.
Annual turnover should not have been less than 100 crores in any of the earlier financial years.
a business shall be considered as a ‘start-up’ till 10 years from its date of incorporation.

Unlike their smaller counterparts, big businesses do not have many advantages when it comes to tax exemptions. According to Section 115BA, companies having a turnover of more than 400 crores would have to pay 25% of the gross profits earned in the financial year. Companies (both domestic and foreign) would have to pay or file for their income tax return either on or before 30^th October every year (with the due date being extended to 30^th November for Financial Year 2019-2020 because of the pandemic). According to Section 44 AA of the 1961 Act, if a company does not pay the correct amount of tax of the particular year, or if they fail to maintain proper accounts, then a fine of Rs.25,000 will be levied on them.

CONCLUSION

In conclusion, the taxation system in India can be said to be continuously developing. One of the most famous news regarding tax in India was the implementation of the Goods and Services Tax (GST) in the year 2017. GST has replaced several pre-existing tax schemes that were levied throughout the country by introducing a uniform code of tax system. The effects of it have shown both good and bad results and it can only be properly understood in the long run.

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This artice is authored by Sujata Porwal, third year BA LLB (Hons.) student at Symbiosis Law School, Pune. The article actively attempts to analyze the issue of oppression and mismanagement in a company and suggest viable solutions for the same.

INTRODUCTION

As per the ‘Cardinal Rule’ of Company Law, if a member acquires shares of a particular class, he/she is eligible for an equal right to vote. A company is said to function through the decisions of the Board of Directors, which highly depend upon the majority view of the members. Therefore, it is clear that the decisions of a company are controlled and affected by a multitude of members who are entitled to exercise their powers.

The majority decision is binding on the shareholders, provided that it fuses with the legal framework and the articles of the company. However, the working of a company, guided by the majority rule, might often result in the oppression of the minority groups existing within the company. Moreover, the ‘correctness’ of a decision cannot be paralleled with the number of people who stand in favor of it.

The Companies Act, 2013 (hereafter referred to as ‘the Act’) doesn’t render such minorities deserted. The Act guarantees relief in form of remedy to file a case in the tribunal to curb oppression and mismanagement within the company. The regulations and provisions lay a mechanism for statutory protection of the investors against misuse of powers and rights by others.

Comprehending Oppression

The term oppression finds no place in the Act. While the Act suffers from the deficit of an explicit definition of the term, the common dictionary meaning portrays it as exercise of an act in an unruly, harsh or wrongful manner. Lord Cooper explains it as ‘the essence of the matter seems to be that the conduct complained of should at the lowest involve a visible departure from the standards of fair dealing, and a violation of the conditions of fair play on which every shareholder who entrusts his money to the company is entitled to rely’. The essence of the statement is that it must be established that the oppression is caused to a person in his capacity as a member only and that no other form of oppression shall be entertained under this head.

Moreover, merely filing a case with the tribunal doesn’t declare the majority, guilty of oppression and/or mismanagement. The court, in the case of Shanti Prasad v. Kalinga Tubes Ltd., laid down certain essentials that need to be established as a proof;

Inequitable conduct
Lack of fair deal or probity
Prejudice against the member, preventing him from exercising legal and other rights bestowed on him in the capacity of a shareholder

Over a period of time, the Indian judiciary has laid down a diverse ground for adjudging whether a situation accounts for as being oppressive or not. Certain examples of oppressive situations include:

Barring a shareholder from receiving his due share of dividend as well as his right to vote
Forceful introduction of risky objects on a reluctant minority
Ruling out minority from profit participation

Similarly, certain examples portraying non-oppressive conduct are:

Declaration of a moderate rate of interest even when the profits of the company provide scope for a higher rate of dividend
Withdrawal of salary by the director in a state where the company is suffering losses
Inability to declare dividend

Comprehending Mismanagement

Mismanagement can be understood as a state of gross misconduct and deviation from the original course of action of a company amounting to substantial failures and loss to the public and the company.

In other words, mismanagement can be summarized as:

Conduction of company’s affairs in a manner that is detrimental to the interests of the company
Occurrence of substantial change in management of control of a company
Alteration in ownership of shares of the company or Board of Directors
In situations where alteration mentioned above causes occurrence of prejudicial behavior

Certain examples of mismanagement, portrayed by the Indian judiciary, are:

Causing hinderances in the way of a director or barring him from performing his duty
Selling assets at lower prices thereby failing to comply with the Act
Disobeying the provisions of memorandum and articles of the company

Certain examples where courts adjudicated that the conduct cannot be termed as mismanagement are:

Change in management of the company that does not qualify as an ultra vires act towards the company
A bona fide decision to withhold the dividends and accumulate profits into reserves, by the directors
Arrangement of directors of a company and the creditors to shift the creditors to the position of shareholder in order to recover the company from losses.

Provisions for Prevention of Oppression and Mismanagement under Companies Act, 2013

Sections 241-245 of the Companies Act, 2013 deal with prevention of oppression and mismanagement within a company. The sections are described in brief below:

Section 241: Application to the Tribunal for relief
Section 242: Powers of Tribunal
Section 243: Consequences of termination or modification of certain agreements
Section 244: Right of members to apply for Tribunal
Section 245: Class Action

The provisions lay down rules for filing complaint against oppression and mismanagement in the company. However, the rules are structured in such a technique that they protect the rights of the minorities without being biased against the majority.

It wouldn’t be wrong to conclude that the Act, along with the courts, tries to balance the Right of Majority while providing protection to the minority.

An application to the tribunal can be made by individuals as well as groups of people who are of the opinion that oppression or mismanagement has taken place in the internal or external matters of a company. Moreover, the government itself can make an application to the tribunal if it believes that a company’s actions are prejudicial to the interest of general public. The tribunals are bestowed with great responsibility and power to handle such matters.

After critical analysis, it can be ascertained that the Companies Act, 2013 strives to protect minority rights in a comprehensive and inclusive way.

However, it must be ensured that such principles are implemented in an appropriate method to address the contemporary gaps in the implementation of the legislation. Methods to inculcate confidence among minority shareholder shall also be devised in order to obtain the desired results.

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This article is written by Indra Priyadarshini, a student of Alliance University, Bangalore. This article discusses the role and significance of audit committees in India. INTRODUCTION

INTRODUCTION

The main purpose of establishing good corporate governance is to bring about a more transparent and accountable system. As the number of corporate scandals is increasing in both India and other countries around the world, corporate governance is emerging rapidly in order to improve the financial scenario by acquiring the confidence and trust of investors. In this regard, Audit Committees are significant as they provide a mechanism to ensure reliability on financial statements.

The Audit Committee facilitates the independence of an audit process. The process of auditing the operations of a corporation is quite complex. It requires a proper understanding of the rules and judgments taken by the management while preparing financial statements. Section 177 of the Companies Act, 2013 and Rule 6 and 7 of Companies (Meetings of Board and its Powers) Rules, 2014 deals with the Audit Committee. It acts as a channel for the flow of information from the management to the auditors. It also helps in reducing the pressures of management on an auditor. Thus, it is essential that the audit committees are independent of the management. These committees have the responsibility of deciding the work or scope, fixing the audit fees, and determining the extent of non-audit services.

Functions and Powers of Audit Committee

The following are the functions of an audit committee:

It has to supervise various activities of the management like the management of credit, liquidity, and market along with legal and other risks of the corporation.
The committee has to aid the Board in the implementation of its oversight obligation relating to review procedure, arrangement of inside control, and inspecting the consistency with other laws and principles.
It has to set up an internal audit function and appoint an independent internal auditor along with the terms of the commitment and dismissal.
It has to evaluate and check whether the annual internal audit plan is in accordance to the corporation’s objectives.
It has to observe and review the sufficiency and adequacy of the internal control framework of the corporation.
The committee has to evaluate the reports made by the internal and external auditors as well as the quarterly, half-year, and annual financial statements.
Review and fix the non-audit work, if any, of the external auditor and evaluate non-audit fees paid to the external auditor in connection to its significance to the total annual income of the external auditor as well as the corporation’s general consultancy costs. The committee should prevent any non-audit work that will conflict with the obligations of the external auditor or may risk his independence. All the permitted non-audit work has to be reported in the yearly report.
Finally, the committee must also decide the reporting line of the Internal Auditor in order for him to carry on his duties and obligations. He will practically report to the Audit Committee. The Audit Committee has to make sure that in the execution of the work of the Internal Auditor, he shall be free from any obstruction by outside parties.

The following are the powers of the audit committees:

The audit committee has the authority to call for the comments of the auditors about internal control systems, the scope of the audit, and the evaluation of financial statements before their submission to the Board.
It can examine any issues regarding the internal and statutory auditors and the management of the corporation.
The committee can inspect any matter related to the items referred to it by the Board.
It can receive professional advice from external sources.
Finally, the audit committee can have access to all the information available in the records of the corporation.

Importance of Audit Committee

The audit committee plays a crucial role in any corporation. It contributes to the regulation and enhancement of financial practices and detailing. The committee often hold discussions with the Chief Executive Officer and financial officers to audit and ensure the viability of hierarchical controls and outer financial reporting. They regularly work along with the finance committee. The committee provides productive anti-fraud programs. The audit committee is more experienced in various fields like management, finance, legal and operational issues. Thus, they can ensure a more proactive job working along with the NFP’s leadership team and auditors in making and reviewing an organization-wide fraud prevention and recognition program and ensure that proper investigations take place in case any fraud is revealed. The committee can also provide support to the organization’s leadership team in establishing extensive morals and consistent programs. The audit committee plays a proactive role in the review process of both programs.

The audit committee helps to improve the internal audit function. The general respectability of the internal audit function increases when the organizational structure allows the internal audit team to reveal specifically to the audit committee. Under such organizational structure, the internal audit team can assist the audit committee in matters relating to the organization’s capability to fulfil its financial and consistence obligations and ensure that the organization changes its practices and internal controls as and when needed. The external audit of an organisation is directed by the audit committee. The audit committee, along with the external auditors, screen their administrations and activities to ensure that autonomy is persisting between the external auditor and the organization’s management team. The committee also discusses their independent perceptions on management’s capacity with the external auditors in order to maintain the strong internal controls, financial reporting and proper business practices.

The audit committee has another important function, which is to re-establish reliability with the stakeholders. An NFP’s reputation is its most significant resource. The committee showcases an image of independence, credibility and trust. Therefore, it builds the confidence among present and potential constituents, contributors, creditors, and other stakeholders. NFPs and their audit committees can maintain and further expand on this positive image by showing the role and composition of the committee, achieving transparency in financial disclosures, and communicating the organization’s compliance and ethics policy.

CONCLUSION

The Audit Committee has a very significant role to play in a corporation. Thus, it is necessary to improve its working and efficiency through the enactment of a proper and comprehensive code of conduct and other rules and regulations. The minimum financial qualification and functional experience recommended for eligibility to be an audit committee member should be increased from having merely a comprehensive set of knowledge about financial statements, where only the Chairman is required to be an expert in the committee. A minimum of six audit committee meetings should be held in a year, out of which two meetings must be for the purpose of reviewing the control environment and risk management related matters thoroughly. There must be a proper method established to keep a check on the maximum number of audit committees a person can be a member of. The audit committee meetings must be held at least one day prior to the board meeting, so that there is sufficient time to deliberate and discuss the major issues. The appointment of the audit committee should be done through a properly established selection procedure and should not be done by the chairman, board or promoters. The tenure of the audit committee members should be specifically defined, and a transparent succession planning process must be established. The appointment of internal auditors and their reporting should be done by and to the audit committee. These are few ways through which the efficiency of the Audit Committee can be increased for better management of companies.

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This article is authored by Sujata Porwal, third year BA LLB (Hons.) student at Symbiosis Law School, Pune. The article presents a critical analysis of ‘Acceptance under Indian Contract Act, 1872’.

INTRODUCTION

Acceptance has acquired a varied meaning under the Indian Contract Act, 1872 as compared to the common understanding of the term. Defined in Section 2 (b) of the Act, acceptance is a mode of signifying assent to another person. When assent is expressed with regards to a proposal made to the individual, the offer is considered to be accepted under the law. Any proposal, upon receiving assent, converts into a promise. The pre-requisite of such assent is that it shall be ‘unconditional’ in nature. If a condition is attached with the acceptance then it becomes a counter-offer instead of a promise.

Example – X offers to sell his white horse to C for 2,00,000/- and C accepts the offer. Such offer can hence be termed as a promise.

It is important to note that a proposal/promise is irrevocable in nature. While an offer creates no legal obligation on any party, acceptance to that offer ushers legal meaning to the agreement thereby creating legal obligations on both the parties. An offer can be subjected to revocation or withdrawal before it is formally accepted.

The Indian Contract Act, 1872 has laid down several rules to ensure a smooth and steady flow of contracts in the country. These rules are the guiding light of a contract that is free from legal errors. Such rules, with regard to valid acceptance, are:

Acceptance can be Communicated, only by the Person to whom the Offer was Made

If an offer is made to someone, acceptance to that offer can only be provided by that person itself. For example, if A proposes to sell his toy car to B for 2000 Rs. then C cannot enforce a legally binding contract against A by giving acceptance to such offer. Therefore, no third party, without the knowledge of the offeree, shall accept the contract.

However, an exception to this rule is general contracts which are made to a huge group of people. A general offer can be accepted by anyone.

Acceptance shall be Absolute and Unqualified

The communication of acceptance shall be free from any conditions to the original offer. A conditional acceptance gives rise to a counter-offer, nullifying the effect that a valid acceptance has on an offer.

Besides, acceptance must be expressed in the manner prescribed by the laws. If the laws do not express a prescribed manner then the acceptance shall be communicated in a reasonable manner, as under normal course of events

Implied acceptance is also considered to be valid acceptance under Indian law. This shall not be equated to ‘silence as a valid acceptance’. If no reply is given, the offer shall not be deemed to be accepted.

Communicating Acceptance

An important pre-requisite of a contract is the communication of acceptance to the offer. The condition also exists in cases of implied acceptance. Moreover, the offeree must have adequate knowledge of the offer in order to accept the offer so made. An offer cannot be accepted if the offeree is not aware of the terms of the offer.

Acceptance can be revoked before it is communicated. In other words, if A sends a letter of acceptance to B for the offer made by B but successfully stops the letter mid-way, before it reaches B, then the acceptance shall not be supposed to be communicated.

The ‘Prescribed’ Mode

If the offeror has laid down a method of communication of the acceptance that it shall be strictly adhered to. For example, if A demands that B shall communicate with him through emails only then an acceptance through a WhatsApp message may be deemed invalid. However, the method prescribed by the offeror shall be reasonable in nature.

The lack of a prescribed method of acceptance leads to the presumption that the offeror is open to accept communication in any form. One must also abide by the time limit set by the offeror.

For example, A asked B to communicate his acceptance or rejection by 5^th March, failing which the offer shall no longer be open to B. A sold the antique miniature aircraft to C on 7^th March. In this case, if B conveys acceptance to purchase the miniature aircraft on 6^th March, it does not give rise to a valid contract that can be enforced in the court of law.

The rules governing a valid acceptance, therefore play an vital role in the structuring of a valid contract.

Types of Acceptance

Expressed Acceptance

It is a mandatory requirement of certain contracts that the acceptance shall be written in nature. Such contracts include contracts of lease, sale, etc. However, one may also express an oral consent for certain contracts. Thus, expressed acceptance can be communicated orally as well as in the written form.

Implied Acceptance

The offeree can also choose to express his/her consent without the use of words i.e., through implied gestures or actions. Section 8 of the Indian Contract Act, 1872 has laid the premises for the same.

For example, if A says to B that, ‘if you want my white pony then you must reach port station at sharp 5pm with 1 Lakh Rs.’ and B is found at thee exact time with the required amount of money, his actions would be considered as valid acceptance even though he did not express his consent vividly. It can be concluded that implied acceptance is communicated by conduct instead of words.

Conclusion

It is noteworthy that valid acceptance constitutes as a part of the basic structure of a valid contract. A contract can only take shape once the acceptance is communicated by the offeror to the offeree. The acceptance shall be given with an intention to enter into a legally binding contract and with a free will in order to be considered as a valid acceptance.

References

Indian Contract Act, 1872

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This is authored by Janaki Nair a 3^rd year B.A LLB student in Symbiosis Law School Pune. The following article revolves around the topic of the law of Torts and how ‘inevitable accident’ serves as a valid defense on that topic.

INTRODUCTION

One of the many instances in which the law of torts differs from other law is the purpose with which it is imposed. The law of torts deals with ‘civil wrongs’ – wrongs that are civil and therefore, they are not deterred based on the criminal form of punishments. So, tort law deals with civil wrongs that are usually punished in the form of payment of damages. Damages refer to the money–based compensation that is granted to the aggrieved plaintiff by the respondent so that the former is compensated for the sufferings that s/he/they went through because of the wrongs committed by the latter. Damages can be of three types – nominal, compensatory, and punitive – in nature. If the aggrieved has a right to claim damages, then the respondent has the right to counterclaim them by bringing up good defenses.

The court has to hear both of the sides – the complaint as well as the defenses and then arrive at a proper decision. There are various defenses in the law of torts – volenti non fit injuria, necessity, private defense, an act of god, etc. The current paper will be about the defense of an ‘inevitable accident’.

Inevitable Accident

The term ‘inevitable’, according to the particular defense, refers to some sort of event or action that could not have been avoided even with all necessary care and precaution taken from the side of the wrongdoer. Sir Pollock, a famous jurist of the 17^th century, defined an inevitable accident as something that could not have been avoided despite precautions taken by a reasonable and prudent individual. There needs to be the existence of two principles that need to be satisfied under the defense of Inevitable accident and they are:

The damage was unintentional.
The circumstance surrounding the damage could not have been avoided by the person despite all care, caution as well as a skill that could have been employed by the person who committed the wrong.

A daily life illustration of an inevitable accident can be as follows: A was driving past a fairly busy junction. The car undergoes routine maintenance and was in tip–top condition. Suddenly, while crossing the signal, the brakes of the car failed which resulted in A losing control and swerving left, resulting in it hitting a bullock cart that was on that particular side. A can lead the defense of ‘inevitable accident’ as she took all the measures to ensure that there would not be any mechanical failures. However, she could not have predicted the sudden brake failure. As stated above, the damage is done to the bullock cart and its driver was unintentional; and the car-driver had taken all necessary precautions that she could have given the situation.

Judiciary on Inevitable Accident

The court, while considering the plea of an inevitable accident will look for the following:

Whether the occurred event was, in actuality, outside the scope of control of the tort–doer.
Whether the tort–doer had exercised a reasonable amount of precaution given the situation.
Whether the tort–doer could have avoided the situation if the precaution was exercised.

The courts that talked about the defense of inevitable accidents had to discuss who the burden of proof would rest on. The first to decide on that was the case of Homes v. Mather, (1875) LR 10 Ex 261, where the court had announced that the burden of proof existed on the plaintiff to prove that:

the defense was built on lies,
the respondent had scope to foresee the event,
the respondent did not take necessary precautions.

However, this was overruled in a subsequent case of the name Stanley v. Powell, (1891) 1 QB 86. In the case of Stanley, the plaintiff and defendant were shooting members who went for a pheasant shooting party. The defendant aimed the gun to shoot at a pheasant, but the bullet, unfortunately, bounced from a nearby object and shot the plaintiff who got injured. The plaintiff took the matter to court wherein the defendant pleaded the defense of the inevitable accident. The court favored the defendant on the topic by stating that there was no way in which the defendant could have foreseen the bullet ricocheting and striking the plaintiff. Another important decision, in this case, was that the burden of proof rests on the defendant who has to prove that his actions arose from circumstances that were beyond the control of the defendant.

Similarly, in the case of Hidasi v. Hidasi, 2011 BCSC 583, the court again favored the defendant wherein he had taken necessary care and precaution to drive on a slippery road, but the car still slipped and injured the plaintiff. The court had accepted the defense which stated that the mechanical failure of the car which caused the slip was beyond the scope of control or foreseeability of the defendant.

After this, there came several case laws that discussed whether the onus of proof should rest on the defendant or the plaintiff. By the end, most of these courts reached a more or less unanimous decision of letting the onus shift between both the parties on a case-to-case basis.

The most famous Indian case on this subject is A. Krishna Patra v. Odisha State Electricity Board 2 (1998) ACC 367, 1998 ACJ 155, AIR 997 ORI 109, which dealt with the difference between negligence and inevitable accident as tort defenses. The defense in question had pleaded negligence whereas the defendant pleaded the defense of an inevitable accident, where a woman died after getting electrocuted by a naked electrician lying on the road. The court had stated that the electricity board cannot plead the defense of the inevitable accident as they had not taken the proper precaution and care by checking up on the electrician from time – to – time as an employee of their company. Therefore, compensation of Rs.50,000 was awarded to the defendant company to be paid to the aggrieved plaintiff.

Act of God and Inevitable Accident

The tort defense of Act of God and Inevitable Accident are frequently held to be similar because both of them satisfy the following – events that are beyond the scope of control of the tort – doer. However, the main difference between the two is that the former is restricted to acts of nature whereas the latter is not.

An illustration of the two would be as follows: A was driving through a narrow road on top of a bridge that is the only one available to reach his relative’s house. He had only decided to drive after checking for the weather update several times the previous day which showed sunny and pleasant weather. However, halfway through the road, a severe rainstorm started coming up, and right before A could park to the side, the bridge broke under the thunder causing the car to skid and collide with a pole, injuring the plaintiff standing near it. This can be an Act of God.

On the other hand, A was driving through the same bridge. But, if the bridge was nearing wear and tear, and the movement of the car caused it to collapse, then, it was due to a man–made error and therefore, will come under ‘inevitable accident’.

CONCLUSION

In conclusion, the inevitable accident is a bit tricky to deal with as the court needs to be sure whether the case falls under an act of negligence or a genuine accident that was not foreseeable by the wrongdoer. This is, however, an extremely helpful defense for drivers who commit injuries without meaning to and without being able to foresee them.

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