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This article is written by AASHIKA AGGARWAL, pursuing BBA-LLB (H) from AMITY UNIVERSITY, GURGAON.

The Sabarimala Temple is a temple complex located at Sabarimala inside the Periyar Tiger Reserve in the Perinad village, Pathanamthitta district, Kerala, India. It is one of the largest annual pilgrimage sites in the world with an estimate of over 40 to 50 million devotees visiting every year. The temple is situated on a hilltop amidst eighteen hills at an altitude of 1260m above sea level and is surrounded by mountains and dense forests. This temple is managed by the Travancore Devaswom Board (TDB). The Supreme Court has made a rule about the Sabarimala temple that women of all ages can visit the Sabarimala temple now.

The shrine at Sabarimala is an ancient temple of Lord Ayyappa also known as sasta and dharmasastra. There is a strong belief of everyone that in the 12th century, Manikandan, a prince of Pandalam Dynasty, meditated at Sabarimala temple and became one with the divine. Manikandan was an avatar of Ayyappa. If we will talk about the Lord Ayyapa then the Lord Ayyappa is a pure god that means Hindu God. They are known as eternal celibate. The Lord Ayyappa fully believes in celibacy which means no contact with the female and they maintain a huge distance with the females, that’s why they have been given a title named NAISHTIKA BRAHMACHARI. Since this temple is for Lord Ayyapa, then purity is very important. All the males visiting at the temple their purity is very important, not only from the body but also mentally. The devotees are expected to follow a vratham (41 days austerity period) before the pilgrimage. This begins with wearing a special mala (a chain made of rudraksha or tulsi beads is commonly used, though still, other types of chains are available). During the 41 days of vratham, the devotees who have taken the vow is required to strictly follow the rules that include following only a Lacto-vegetarian diet, follow celibacy, follow teetotalism, not use any profanity and have to control the anger, allow the hair and nails to grow without cutting them.

In 1990, a petition was filed in the Kerala High Court seeking a ban on the entry of women inside the Sabarimala temple. In 1991, the Kerala High Court restricted entry of women above the age of 10 and below the age of 50 from offering worship at the shrine as they were of the menstruating age. In 2006, a petition was filed in the Supreme Court by the Indian young lawyers association seeking entry of women between 10 to 50 years. In 2008, the matter was referred to a three-judge bench two years later. In January 2016, the Court had questioned the ban, saying this cannot be done under the Constitution. In April 2016, the United Democratic Front Government of Kerala led by Chief Minister Oomen Chandy informed the Supreme Court that it is bound to protect the right to practice the religion of Sabarimala devotees. On November 6, 2016, the Kerala government had told the Supreme Court that it was in favour of allowing all the women inside the temple. Advocate Jaideep Gupta, representing the state government, said it would support the entry of women of all the ages to the temple. In 2017, the Supreme Court referred the case to the Constitution bench. On September 2018, a five-judge bench of Supreme Court headed by Chief Justice, Dipak Misra, in a 4:1 verdict, said banning the entry of women in Sabarimala temple is gender discrimination and the practice violates the rights of Hindu women and allowed the entry of women of all ages in the revered shrine. The state government sought time to implement the verdict, however even after the entry was allowed a large number of followers camped outside the shrine to prevent the entry of women of all the ages inside the temple. In February 2019, the order was reserved by the Apex Court. The order expected to be announced is likely to uphold or set aside the 2018 order. While Justice of India R F NARIMAN and DY CHANDRACHUD concurred with the CJI and Justice of India A M KHANWILKAR, Justice of India INDU MALHOTRA (only a single female judge) gave a dissenting verdict.

The observations of Judge INDU MALHOTRA said that the petition does not deserve to be entertained. She was of the view that it is not for the courts to determine which religious practices are to be struck down except in issues of social evil like SATI. Adding that the issue is critical to various religions, he said, issues of deep religious sentiments should not be ordinarily interfered by the courts. The Sabarimala shrine and the deity are protected by Article 25 of the Constitution of India and the religious practices cannot be solely tested on the basis of Article 14 of the Constitution of India. ‘Notions of rationality cannot be invoked in the matters of religion’, said Justice Indu Malhotra adding ‘what constitutes essential religious practise is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practice their beliefs. The court should not interfere unless there is any aggrieved person from that section or religion.’

Now the final thing comes that the temple is open for worship only during the days of mandalapooja (approximately 15 November to 26 December), makaravilakku or Makar Sankranti (14 January) and maha vishuva sankranti (14 April) and the first five days of each Malayalam month. Here, the Supreme Court verdict is very revolutionary and path-breaking. In India, there is a wave going on for feminism. Recently, the Section-497 of the act has been scrapped and now the Sabarimala temple issue. A few years back, in the USA, there came a lot of waves on feminism and there the USA has empowered women.

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This article is written by Tulip Das, currently pursuing BBA L.L.B(H) from Amity University Kolkata.

INTRODUCTION

International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that governs the conduct of war (Jus in Bello). It is a part of international law which attempts to limit the effects of armed conflict by protecting persons who are not participating in hostilities, and by restricting and governing the means and methods of warfare available to combatants. IHL has its headquarters in Geneva, Switzerland.

The IHL regulates the activities during armed conflict and situations of occupation. It is distinguished from and applies irrespective of, the body of law that regulates the recourse to armed force. This framework is recognized as the jus ad bellum and is enshrined in the UN Charter. It regulates the conditions under which force may be used, namely in self-defence and pursuant to UN Security Council authorization. Whenever there is an armed conflict, IHL applies to all the parties, whether or not a party was legally justified in using force under the jus ad bellum principles.

The balance of humanity and military necessity is seen in the foundational IHL norms of distinction and proportionality. Parties to an armed conflict are needed to distinguish, at all times, between civilians and combatants and between civilian objects and military objects. Moreover, an attack may not be launched if it is anticipated to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive in relation to the direct military advantage expected. Additional IHL principles include the duty to take precautions to spare the civilian population before and during an attack, the prohibition against the infliction of unnecessary suffering or superfluous injury, and the prohibition of indiscriminate attacks.

Key Instruments of International Humanitarian Law

The two main sources of IHL rules and regulations are treaties and customary international law. Treaties are referred to as agreements between States, and those States that ratify a treaty are bound by its terms. Though a non-State armed group cannot sign a treaty, IHL treaty rules like Common Article Three and Additional Protocol II but apply to these actors too.

Many IHL rules are now considered to exhibit customary international law as well. Customary international law consists of rules acquired from the consistent practice of States based on a belief that the law requires them to act in that way. Such rules and regulations are binding on both states and non-State armed groups. The International Committee of the Red Cross published a study thereby creating a database on customary international humanitarian law.

The key IHL treaties incorporate the 1907 Hague Regulations, the four Geneva Conventions, and their Additional Protocols.

1907 Hague Regulations (Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907)
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005.

How Does IHL Protect?

IHL governs the manner of hostilities by the parties to a conflict and protects persons in enemy hands. It also:

• Requires the parties to a conflict to distinguish between combatants and civilians, and to abstain from attacking civilians

• Prohibits the use of weapons that are particularly cruel or that do not distinguish between combatants and civilians

• Requires the parties to a conflict to care for the wounded and sick and protect medical personnel

• Requires the parties to a conflict to ensure that the dignity of prisoners of war and civilian internees is preserved, in particular by allowing visits by the International Committee of the Red Cross delegates.

Whom Does IHL Protect?

IHL protects combatants and those who are not, or are no longer, participating in hostilities, such as:
• civilians
• medical and religious personnel
• wounded, shipwrecked and sick combatants
• prisoners of war
• civilian internees

Recognizing their specific needs, IHL grants women and children additional protection.

When Does IHL Protect?

IHL applies in three situations:

• International armed conflicts, which involve at least two nations

• Situations where the whole or part of a country’s territory is occupied by a foreign power

• Armed conflicts that arise within a country between a government and one or more organized armed groups, or between multiple organized armed groups.

IHL applies to all the parties to a conflict, regardless of who started it.

Application of International Humanitarian Law (IHL)

International Humanitarian Law (IHL) applies in situations of armed conflict. It offers two systems of protection: – one for international armed conflict and another for non-international armed conflict. The rules applicable in a specific situation will, hence, depend on the classification of the armed conflict.

A) International Armed Conflict (IAC)

IACs occurs when one or more States resort to the use of armed force against another State. An armed conflict between a State and an international organization is also categorised as an IAC. Wars of national liberation, in which peoples are fighting against colonial domination and alien occupation and racist regimes in the exercise of their right of self-determination, are classified as IACs under certain conditions.

B) Non-International Armed Conflict (NIAC)

Many armed conflicts today are non-international in nature. A NIAC is an armed conflict in which hostilities take place between the armed forces of a State and organized non-State armed groups, or between such groups. For hostilities to be considered a NIAC, they must reach a certain level of intensity and the groups involved must be adequately organized. IHL treaty law establishes a distinction between NIACs within the meaning of common Article 3 and NIACs falling within the definition provided in Article 1 of Additional Protocol II.

• Common Article 3 applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties.” These include armed conflicts in which one or more organized non-state armed groups are involved. NIACs may occur between State armed forces and organized non-State armed groups or only between such groups.

• Additional Protocol II applies to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” The definition of a NIAC in Additional Protocol II is narrower than the notion of NIAC under common Article 3 in two aspects.

1) It introduces a requirement of territorial control, by providing that organized non-State armed groups must exercise such territorial control “as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

2) Additional Protocol II expressly applies only to armed conflicts between State armed forces and dissident armed forces or other organized armed groups. Unlike common Article 3, Additional Protocol II does not apply to armed conflicts between organized non-State armed groups.

In this context, it must be kept in mind that Additional Protocol II “develops and supplements” common Article 3 “without modifying its existing conditions of application.” This means that this restrictive definition is relevant only for the application of Additional Protocol II; it does not extend to the law of NIAC in general.

CONCLUSION

Even wars have limits. International humanitarian law, whose bedrock is the Geneva Conventions, is a set of rules which endeavour to safeguard the people who are not, or are no longer, participating in the hostilities and to restrict the means and methods of warfare. International Humanitarian Law or the IHL is there for the safety of civilians, army personals and others who are involved and indulged in the war business. International Humanitarian Law is doing an extremely good job by protecting the people, we, as responsible individuals must say no to the concept of war and try our level best, be good, sincere, and honest and make the world a better place to live in. We must always remember the words of Thomas Mann who said that, “War is the only cowardly escape from the problems of peace”.

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This case analysis is made by Bhavna Arul, a fourth-year law student from Symbiosis Law School.

Case Number

Criminal Appeal No. 43 of 1955

Judges

Vivian Bose, B. Jagannadhadas and Bhuvaneshwar Prasad Sinha, JJ.

Decided on

7/10/1955

Citation

AIR 1956 SC 171 / 1956 Cri LJ 338

Facts

The two appellants and the deceased have had a long ongoing dispute regarding a certain piece of land. On the night between the 18th and 19th February 1953 the two appellants, Rawalpenta Venkalu and Bodla Ram Narsiah, along with three others, with the intention of causing the death of the deceased had set fire to the hut of the deceased, Md. Moinuddin when he was asleep. In addition to setting fire, they had also latched the front door from outside to make sure the Moinuddin could not leave the house.

Soon after the hut was on fire, Moinuddin had started crying for help. This woke up an old servant who was sleeping in front of the cottage. The servant soon after waking up tried going and helping Moinuddin and he also called the other workers working for Moinuddin who were near-by to help.

When they came near the cottage to help, they were beaten with sticks by the appellants. The servant was beaten severely. The hut was also set on fire again as the previous fire was put off by the wing. The employees of Moinuddin were kept at bay by the superior force of the accused and their associates. These employees later called more villagers to help them. When the villagers came, the appellants and others prevented them from going to the rescue Moinuddin who was stuck in the cottage by throwing dust in their eyes and beating using their sticks.

The first information report of the occurrence was lodged at the Penpabad police station on the morning of the 19th February by Yousuf Ali, a cousin of the deceased, to the effect that some goons of the village had set fire to the cottage occupied by Moinuddin after chaining the outer door, with the result that he was burnt alive and that the villagers who tried to extinguish the fire had been beaten away by those goons. The villagers thus became terrified and had to retreat to the village.

Procedural History

On 22^nd and 23^rd February, the appellants had made their confessions to the munsif magistrate and were subsequently arrested. These two appeals by special leave arise out of the same judgment and order of a Division Bench of the Hyderabad High Court confirming those of the Sessions Judge of Nalgonda. In Criminal Appeal No. 43 of 1955 Rawalpenta Venkalu is the appellant and in Criminal Appeal No. 44 of 1955, Bodla Ram Narsiah is the appellant. Both these persons were sentenced to death under Section 302, Indian Penal Code for the murder of Md. Moinuddin. They were placed on their trial along with three others who were acquitted by the learned trial Judge. The sentence of death was the subject matter of a reference to the High Court. The two condemned persons had also appealed to the High Court which was dismissed. The case was then tried in the Supreme Court as a reference petition.

Issue

Whether the appellants had the intention to kill as per Section 300 (intention to murder) or not?

Rule

Section 32, IPC- Common Intention

Section 300, IPC- Definition Clause- Murder

Section 302, IPC- Punishment for Murder

Ratio Decedendi

The appellants argued that the death of the deceased, Moinuddin was a result of culpable homicide and not murder. The basis for this argument was to reduce the sentence of the sessions court from the death penalty to life imprisonment.

When we look at the definition sections of murder and culpable homicide, it reads as follows-

Section 299. Culpable homicide. —Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—

—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—

—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—

—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

The definitions of both may sound the same as both of the definitions talk about 2 key ingredients- the intention to cause death and an act that has caused death. However, culpable homicide is considered less severe than murder as the gravity of intention in culpable homicide is lower than the intention in murder.

The Supreme Court observed the following-

The appellants and the victim had an ongoing dispute over a piece of land which instigated the appellants to kill the victim.
Both the accused lit matches to set the cottage on fire.
They took measures to make sure the victim doesn’t leave the house by locking the front door from out.
They also did not let anyone help the victim out as they brutally
attacked anyone who tried helping by beating with sticks and throwing dust in their eyes.
The murder was preplanned as the appellants had attacked the victim in the middle of the night after he had gone to sleep.

By stating the following reasons, the Supreme Court established intention to kill under Section 300 of the IPC.

Judgment

The Supreme Court upheld the decision of the Sessions Court and decided that this was a clear case of Murder under section 300 and awarded the death penalty under section 302.

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(The case discusses whether the appellant had the Locus to challenge the decree passed by the Trial Court.)

Petitioner’s contention:

The plaintiff contends that the registered agreement dated 05.08.1992 should be barred due to the limitation in time, as it went beyond the time the contract should be declared as null and void, which makes it unenforceable and inoperative. The petitioner also contends that the registered agreement in the office of Sub Registrar Yelahanka Bangalore dated 31.10.1989 and an unregistered agreement dated 23.05.1988 both are barred by time. The petitioner claims that the court should grant a permanent injunction restraining the defendants and any agent acting on behalf of them not to interfere with the possession of the said property. He also claimed that the defendants would bear the entire cost of the proceedings. Learned counsel of the Petitioner had stated that there is no locus to challenge the decree passed by the Trial Court and stated that their application has been rightly dismissed.

Facts:

The suit property is an ancestral property and the plaintiffs of the case are the co-owners of the land.
Therefore the defendant had no right to execute the agreement of sale ignoring the interest of the plaintiff.
Hence the transaction that took place was not valid and became unenforceable.
The Trial decreed the suit of the Plaintiff and gave decisions favoring the contentions of the petition.
The Defendants claimed challenging the order given by trial court by filing a Writ petition in the High Court.
The Honorable High Court stated that the appellant/defendant do have an independent right which they have derived from the sale deed executed by the owner of the land.
High rejected the appellants leave to appeal.
As it was executed by the owners of the land, the nature of declaratory relief granted by the Trial Court won’t affect the interest of the Appellant.
The main question was whether the appellants had the locus to question the judgment passed by the Trial Court and whether the decision by the High Court was justified?

Respondent’s Contention:

The respondents were aggrieved by the decision of the trial court, so further claimed in High Court by filing a Writ Petition challenging the order passed by Trial Court. The Appellant’s contention is that the judgment given by the Trial Court has affected their interests with the property as they are in possession with the property which is under the dispute.

Judgment:

Honorable Supreme Court after looking upon some of the important precedents held that the “appellant has failed to show that they were affected by the decree and their legal rights stand jeopardized which puts them within the ambit of the expression “person aggrieved” entitling them to maintain appeal against the decree.” Therefore the Court found no wrong in the judgment given by the High Court and thus dismissed the Appeal.

Reported by Karthi Shankar

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Case Number

184

Citation

AIR 2004 SC 184

Bench

R.C. Lahoti, Ashok Bhanu

Decided on

29 August, 2003

Relevant Act/Section

Section 23 of the Consumer Protection Act, 1986.

Brief Facts of the Case

In this particular case, the appellant had a savings bank account with the respondent bank. After few days, the appellant found out a certain problem at his account and on the basis of which he filed a complaint to the National Redressal Forum alleging deficiency of the services provided by the respondent and also submitted that the bank had mistakenly debited an amount of RS. 75,70,352 in the account of the appellant by honouring certain cheques as forged cheques i.e. fully fake and not appropriate and in some of the cheques that were submitted, the amount was wrongly tampered by someone. The photocopies of the fake cheques were submitted along with the complaint made. It came into notice that as many as around 72 cheques were issued on the same date when one of the persons who actually made the tampering at the cheque was found dead. The other one denied the signatures given and all such disputed signatures did not even tally the standard signatures of the complainant. The line of suspicion arose when the entire suspect went towards one of the employees of the bank who was suspected to be the main culprit of this entire scenario that happened. A complaint was filed in the police against that employee immediately and the case went to the Supreme Court of India at that instant. The court was entirely focusing on section 23 of the Consumer Protection Act, 1986 which talked about the Appeal with reference to subclauses of section 21 of the act. The court took help from the National Forum in order to have a detailed analysis of the case and therefore come into a conclusion so as to get the entire facts and to check whether the Respondents were actually guilty in this case or not. The court had given a detailed and equitable justice for the parties after looking into several other cases.

Issues

Whether crime was committed by the respondents by tampering the cheques?
Whether it was a case under section 23 of the Consumer Protection Act, 1986?
Whether it was the case of NCDRC?

Judgement

The Judges of the particular case made a quite detailed judgement by analysing the matter quite properly with each and every issue being studied deeply. The complaint was filed under section 23 of the Consumer Protection Act. The main issue which arose over here was about determining the flora and fauna of the commission. The court had held that it cannot be denied that fora at the National Level, the State level and at the District level have been constituted under the Act with the avowed object of providing a summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the fora established under the Act. These fora have been established and conferred with jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing such fora is to relieve the conventional courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure which at times is accompanied by technicalities. The court took cognizance of landmark cases like Dr. J.J Merchant & Ors. v. Srinath Chaturvedi, [2002] 6 SCC 635, Indian Medical Association v. V.P. Shantha and Ors., [1995] 6 SCC 651 and Amar Jwala Paper Mills (India) and Am. v. State Bank of India, [1998] 8 SCC 387. In each of the cases, the judges had a really different opinion on the basis of the exact flora and fauna of the commissions and the hierarchy in which it actually works. Like for supposing in the case of Amar Jwala Paper Mills (India) and Anr. ‘s case the Court had set aside the order of NCDRC relegating a complainant to a Civil Court in spite of the complexity of the matter because the hearing had almost concluded before the Commission. Therefore, after looking into the arguments advanced, issues raised and also a detailed study of the entire case, the court had held that the decision that was given by the NCDRC was a premature opinion. The entire commission seeks to have issued a particular notice to the respondents and which was taken as pleadings. Only when pleadings for both of the parties were available, the commission at that instant should have formed an opinion on the basis of nature and also the scope of the enquiry which means whether all the questions that arose in the light of the proceedings of both the parties were actually detailed and even a complicated nature of the investigation was made into the facts which were not at all capable of being taken in a speedy manner. The commission then could have formed justifiably an opinion which could have been proved a lot useful for removing the complaint to the civil court. It was just a complicated nature of the entire facts and also the law for the decision which could not be decisive at all. The appeal was allowed and the decision of the National Commission was set aside. The case was again sent back to the commission for fresh hearing and fresh study of nature and then taking a final decision. There was no order made with respect to the costs of the case. Thus, the court made and equitable decision which was quite relevant too because the commission did not perform their job nicely. They should have studied the entire case deeply and then they should have decided whether this case actually had a proper judgement or not.

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This Article is Written by Manav Sony from Amity University, Kolkata. The Article talks about the Socio-Economic Offences and also gives a critical analysis of the two important reports under this terminology.

INTRODUCTION

Socio-Economic Offences are considered normally as synonyms with the white-collar crimes but a deep analysis of this term gives out a provision that even though there is an intersection created between the socio-economic offences and also the white-collar crimes, but the latter i.e. socio-economic offences have a really narrow scope as compared to the former under quite a lot of aspects. White-collar crimes are defined as all those crimes which are actually committed by the upper sections of the society with respect to their occupations. One such example which can be applied over here is a big MNC found guilty of committing tax evasions. A pensioner who submits any fake return may not be committing any offence under white-collar crimes but the interesting fact which comes over here is that it is a socio-economic offence. Socio crimes are defined as those which actually results in the downward effect to the nation’s economy as a whole and even which affects the health and morality standards of a committee at large. Therefore, we can safely assume without any hassle that socio-economic offences are those offences that affect the economy of the country and also the societies material and health. In our country, the 29th Law Commission Report had suggested taking the Santhanam Committee Report, 1964 into deep consideration. The committee also observed clearly that the IPC does not deal with any sort of satisfactory matters along with acts which may be described as any social offences with regards to the special scenarios under which they all are committed and also have become a dominating figure of the powerful sections under the Indian Strata’s. in most of the aspects which were identified into two features that could be witnessed i.e. Economic Benefits and also Unjust Enrichments. Socio-Economic Offences were clearly enumerated in the leading case of Mak Data Pvt. Ltd v. CIT. In this particular case, the petitioner had tried to hide his income so as to get evaded from the taxes. After a cause notice was given to him, he decided to surrender himself to a particular amount so as to avoid litigation. It was in the end declared by the Supreme Court that the surrender of the sum which was done was actually done when the detection was made. If the intention of the appellant would have been good, he could have filed a return including the sum which was surrendered by him later on after the assessment of the proceedings.

The Santhanam Committee Report, 1964

In the year 1962, Lal Bahadur Shastri had appointed Santhanam so as to preside the operations of the committee based on anti-corruption. The committee earned an immense reputation almost everywhere because of the fact that they did a thorough investigation along with the recommendations that were actually needed in the workings. The committee came to be known as the Santhanam’s Committee on Anti-Corruption. In his CrPc,1976 he mentioned about the conduct of persons who are in the power, authority or in any position of the trust in our country as a whole. In this definition, he widely included all the Ministers, Members of the Parliament and also State Legislatures. There has to be no illegal usage of the position for any personal or family advantages and also no actions should be motivated by giving considerations of any party, religion, caste, creed or community and no unofficial type of dealings will be taken place with the businessmen or any hospitality or gifts will be accepted. This particular committee was credited with the formation of the Central Vigilance Commission in the Year 1964 and earned statutory status in the year 2003. This particular committee had their first-ever meeting on 10^th September,1962 and till they completed their report with over 87 proceedings. The committee members had also visited Bangalore, Calcutta and Bombay so as to analyse the problems deeply regarding the corruption with relation to the undertakings made in public, import or export of controls, income tax, customs and excise duty and all places the representatives from other organisations and committees used to meet and discuss the aspects widely. In their first Appendix, the committee had mentioned about the witnesses who portrayed their ideas about the corruption problems at their state respectively. The witnesses included certain Cabinet Ministers, Members of Parliament and also some Famous Journalists. Soon after the few days of the formation of the committee, the Aggression with the Chinese took place and a National Emergency was declared in the entire country by the Honourable President. The committee then examined about certain provisions which came upon the basis of the Defence of India Bill and they also made some important recommendations from the maintenance of the integrity of in the public services point of view. All these aspects and detailed material were given up by the committee under Annexure I. In Annexure 11, the government has mentioned several important amendments made with respect to Article 311 which talks about services Government. The committee has made several groups of reports during the setup of Central Vigilance Commission on aspects like modification of government servants code of conduct rules and also changes in certain rules that related to disciplinary proceedings and a final report on the questions of the public servants. The government has not able to analyse each and every issue really deeply that actually concerned the integrity of the government servants and the removal of the corruption from public life. Four members are from the Lok Sabha and two from the Rajya Sabha who actually attended the work of the parliament and its committees. The committee was pleased to record their deep appreciation of their strenuous and able work.

The 47th Law Commission India Report, 1972

This particular Report came into force in order to deal with certain questions that deal with the deep interpretation of certain acts. These offences are classified as social and economic offences. This report is known as TRIAL AND PUNISHMENT REPORT ON SOCIAL ECONOMIC OFFENCES. The Government of India had made a quite deep analysis in the basis of certain provisions for the benefit of the entire public in general and also there are certain sections and acts which are really anti-social in nature like Essential Commodities Act, Food Adulteration and Drugs Act, Import & Exports Act, Foreign Exchange Regulation Act etc. these particular acts leads to a pool of evasion of taxes and one question that actually arises in mind is that how strict and penal action can be taken in order to stop the evasion of these taxes and thus the taxes are paid to the government for the benefit of the general public at the instant. This report was really formed because of the fact that there are trial and punishment of the offences that lead to the evasion of the tax. There have been critical analysis made with respect to certain provisions that are lined up in a pile.

Conclusion:

It is submitted that purposes of punishment stand in historical order and were given in different social backgrounds. The retributive theory had its source in the notion of private vengeance in the primitive society. When society developed further, and priesthood came to dominate it, the expiatory theory seems to have come into being. The preventive & deterrent theories came when the social organisation had grown stronger and the state had become powerful. In this way, through the various stages of development, the purpose of punishment went on expanding. In modern times, the researches in various fields of knowledge, new inventions and discoveries etc. have made a complete change in our look towards the concept of the society, the individual and the state. Now the main purpose of punishment is to ensure social security & welfare. It is in this background that the reformative theory came into existence. At present, a significant number of Economic Offences are not being reported to the enforcement agencies. Such rampant nonreporting of Economic offences has kept people unaware of the seriousness of the challenges posed by Economic Offences. In fact, the Researcher feels that under-reporting of crime is applicable to the general crime as well. As there are no two opinions about ill the effects of Economic Offences in particular and crime in general, it is felt that drastic steps will have to be taken to ensure a free registration of offences. A fire registration of offences will keep the professionals working in various parts of the Criminal Justice System and the policymakers informed about the true magnitude of the offences. One such solution is to separate the function of registration of offences from agencies pursuing an investigation of offences. Such a step will require a lot of political courage, matured response from all parts of the Criminal Justice System and the Media because the number of offences getting registered will increase substantially. As the investigation of all the registered cases will not be feasible, the success of such a system will depend upon the use of fair and rational criteria for selection of cases for in-depth investigation. In the opinion, the Researcher, the democratic institutions in India, at present, are not matured and strong enough to take this bold step. This solution, however, should be a long-term goal of policymakers and should guide all the professionals handling the ‘crime problem’.

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This article is written by Tulip Das, currently pursuing BBA L.L.B(H) from Amity University Kolkata.

INTRODUCTION

An audit is an “independent examination of financial information of any entity, whether profit-oriented or not, irrespective of its size or legal nature when such an examination is conducted with a view to express an opinion thereon”. It even attempts to ensure that the books of accounts are properly maintained by the concern as required by law.

Auditing is the process of examining the financial statement and information of the entity. In this process, we examine whether the company is making a profit or not. It is a systematic method in which we analyse the economic condition and actions. Let us learn in more detail about it.

The International Federation of Accountants has given the following definition of an audit, “audit is an independent inspection of the financial information of any organization, whether profit-oriented or not profit-oriented, irrespective of its legal form, status or size when such examination is conducted with a way to express an opinion thereof”.

The one important thing to remember is that an audit is a close inspection of the books of accounts, but it does not absolutely guarantee error-free books. The auditor only expresses his opinion on the accuracy of the books, he does not give his opinion on the financial status of the company or predict its future.

Auditing in India- Origin and Development in India

In India, the Companies Act 1913 made an audit of company accounts compulsory. With the increase in the size and the number of the companies and the volume of transactions, the objective of audit shifted and the audit was expected to ascertain whether the accounts were loyal and fair rather than detective of errors and frauds.

Henceforth, the emphasis was not only on mathematical accuracy but also on a fair representation of the financial efforts the Indian Companies Act 1913 also prescribed for the first time the eligibility of auditors.

The previous developments in auditing pertain to the use of computers in accounting and auditing.

In conclusion, it can be said that auditing has come a long way from hearing of accounts to seeking the help of computers to examine digital accounts.

Features of an Audit

Auditing is a systematic process. It is a logical and scientific procedure to examine the accounts of an organization for its accuracy. There are rules and procedures to follow.
The audit is always done by an independent authority or a group of persons with the necessary qualifications. They have to be independent so their views and opinions can be completely unbiased. There should not be presence of any third-party in the process of auditing.
An audit is the examination of all the books of accounts and financial information of the company. So, it is essentially a verification of the final accounts of the organization, i.e. the profit and loss statement and the balance sheet at the end of the financial year.
Auditing is not only a review of the books of accounts but also the internal systems and internal control of the organization.
To conduct the audit, one needs the help of various sources of information. This includes vouchers, documents, certificates, questionnaires, explanations, and all other required evidence. One may scrutinize any other documents he deems fit like Memorandum of Association, Articles of Associations, vouchers, minute books, shareholders register etc.
The auditor must fully satisfy himself with the accuracy and authenticity of the financial statements. Only then can he arrive at the conclusion that they are true and fair statements. His opinion about his own self should never be questioned.

Classification of Types of Audits in India

There are many audit types in India, and all of them can be categorized into the following:

Statutory audit:
1. Statutory audits are conducted by the Indian government to check the financial state of the company/business. Qualified auditors, working as external or independent parties, take up the task of statutory audit. The Statutory audit report is made as per the directions and forms provided by the government.
Internal audit:
1. A company/business conducts an internal audit to check up on the financial health of the company. Internal audit is conducted by the internal staff or an independent contractor.

Statutory Audits in India

There are two common types of statutory audits that a company has to conduct each financial (fiscal year). They are as follows:

Tax audits:
1. Required under the Section 44AM of India’s Tax Act 1967, the tax audit is mandatory for every business with an annual turnover of over INR 1 Crore and for every professional who is earning more than INR 50 lakhs per year.

Tax audit report has to be filed in the prescribed format by September 30 after the end of the previous financial year. If the required person or the business fails to file that report, they have to face a penalty equal to 0.5 percent of turnover.

Company audits:
1. The details and provisions of company audits are explained in detail in the Companies Act, 2013. They state that every company, irrespective of its annual turnover or business type, has to get its financial accounts audited by a qualified professional (auditor).

As per the company laws, you can appoint an auditor for the duration of 6 annual general meetings. If you are a partnership/sole proprietorship, you can’t have the same auditor for more than two terms.

Internal Audits in India

There are several types of internal audits. So many in fact, that picking the most important among them is difficult. Therefore, let us give a brief introduction of some of the most common audit types of internal audit:

Operational Audit: Operational audit is conducted to evaluate the efficiency of a particular aspect, function or department of a business. It doesn’t always require financial data, but the information about whether the department/function/aspect is performing its tasks properly or not.
Compliance audit: There are many types of compliances that a company or any other type of business has to follow to stay in business. The compliance audit is therefore done to check whether the company/partnership/sole proprietorship is following the rules and regulations set up by the government.
Financial audit: Financial audit is conducted to check the fairness, accuracy and reliability of the financial data. There are several companies that falsify their financial information to get a better PR. Financial auditing ensures that such fraudulent tactics don’t happen. Because accuracy and fairness are needed, independent contractors take up the task to conduct unbiased financial auditing.
Investigative Auditing: Investigative audit takes place when there is some suspicious activity in the business entity’s finances. In other words, it’s done if there is something wrong in the financial details of the business. Another reason to do an investigative audit is to assess the risk factors of the business.
Management Audit: Management audits are done by independent contractors who provide insight of the management structure of the business. Similar to operational audit, management audit is done to check the performance of business as a whole.

Legal Auditing

According to the National Association of Legal Fee Analysis (NALFA), legal auditing is a litigation management practice and a risk management mechanism, used by insurance and other consumers of legal services, to determine if hourly billing errors, abuses, and inefficiencies exist by carefully examining and identifying unreasonable attorney fees and expenses. Because the majority of the corporate law firms charge their clients on an hourly basis, base attorney promotion and compensation nearly entirely on the number of hours billed, rather than the results accomplished for clients, lawyers and law firms have much incentive to the bill as many hours as possible, and little incentive to work efficiently or to bill fewer hours. Legal audits have now become a necessity in all corporate law firms in order to keep business records.

Scope of an Audit

Legal Requirements: The auditor can determine the extent of an audit of financial statements following the requirements of legislation, regulations or relevant professional bodies. The state can frame rules for determining the extent of audit work. In the same way, professional bodies can make rules to conduct audits.

Entity Aspects: The audit should be organized to cover all aspects of the entity as far as they are relevant to the financial statements being audited. A business entity has many areas of working. A small entity may have few functions and a large entity has many functions. The auditor has to go through all the functions of the business.

The audit report must cover all the functions so that the reader may know all about the workings of a concern.

Reliable Information: The auditor should gather reasonable assurance as to whether the information contained in the underlying accounting records and other source data is reliable and sufficient as the basis for the preparation of the financial statements.

The auditor can use various techniques to test the validity of data. All auditors while auditing, apply the compliance test and substance test. The auditor can show such information in the report as well.

Proper Communication: The auditor should decide whether the relevant data is properly communicated in the financial statements or not. Accounting is an information system. Facts and figures must be so presented that the reader can easily get information about the business entity. The auditor can mention this fact in his report as well.

The principles of accounting can be applied to decide the disclosure of financial information in the statements.

Evaluation: The one who audits, assesses the authenticity and sufficiency of the data contained in the underlying accounting records and other source data by creating a study and evaluation of accounting systems and internal controls to determine the type, extent, and timing of other auditing methods.

Test: The auditor evaluates the reliability and sufficiency of the information so obtained in the underlying records of accounting and other source data by carrying out other tests, inquiries and other verification procedures of accounting transactions and account balances as he considers appropriate in the particular circumstances.

There are compliance and substantive tests to examine the information. The vouching, verifying and valuation technique is also used.

Comparison: The auditor determines whether the relevant information is properly communicated by comparing the financial statements with the underlying accounting records and other source data to see whether they properly summarized the transactions and events recorded therein.

The auditor compares the accounting records with financial statements to check whether the same has been processed for preparing the final accounts of a business concern or not.

Judgments: The auditor decides whether the relevant information is well communicated by considering the judgment that management has made in preparing the financial statements, accordingly.

The auditor assesses the selection and consistent application of accounting policies, how the information has been classified and the sufficiency of disclosure.

Objectives of an Audit

There are two objects of an audit: (1) Primary objectives and (2) Subsidiary objectives

Primary objectives: –

Examining the system of internal check.
Checking arithmetical accuracy of books of accounts, verifying posting, casting, balancing, etc.
Verifying the authenticity and validity of transactions.
Checking the proper distinction between capital and revenue nature of transactions.
Confirming the existence and value of assets and liabilities.
Subsidiary objectives: –

These objectives help in attaining primary objectives. They are as follows:

Detection and prevention of errors: Errors are those mistakes that are committed due to carelessness or negligence or lack of knowledge or without having vested interest. Errors may be committed without or with any vested interest. So, they are to be checked carefully. Errors are of various types. Some of them are:

Errors of principle
Errors of omission.
Errors of commission.
Compensating errors.

Under-or-over-valuation of stocks

Normally such frauds are committed by the top-level executives of the business. So, the explanation given to the auditor also remains false. So, an auditor should detect such frauds using skill, knowledge, and facts.

Other objectives

To provide information to the income-tax authority.
To satisfy the provisions of the Companies Act.
To have a moral effect.

Advantages of Audit Program

It acts as a permanent record or guide to the conduct of the audit work.
The auditor can be assured that certain cardinal areas of audit works are covered.
The progress of the work can be ascertained at any point in time and easy for auditing staff to carry on the work of another.
It allows for budget and plan for staff allocation

Disadvantages of Audit Program

It tends to stifle initiative and flexibility on the part of audit staff
Audit staff may rush to complete a required schedule by placing “ticks” at programmes not yet covered hence errors and frauds may not be located.
Client`s staff may exploit any loopholes in the conduct of the audit by committing fraud.
Audit assistants may not be able to recommend amendments to the programs.

CONCLUSION

I would like to conclude by saying that audits are the most effective when performed by qualified professionals who work together and are focused on clear objectives. Auditing tasks is the determination of compliance of facts with pre-defined specifications. Auditing is the review of an organisation`s quality system in order to achieve quality throughout the process.

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This article is written by Shambhavi Shree, a student of KIIT School of Law, Bhubaneswar (4th year). In this article, I am dealing with Winding Up of a Company under the Company’s Act, 2013 and Insolvency and Bankruptcy Code, 2016.

Companies Act, 2013

Section 2(94A) of Companies Act, 2013 means winding up under this act or liquidation under the Insolvency and Bankruptcy Code, 2016. It states that the company is dissolved by the liquidator to pay off its debts. In this the assets are released, liabilities are paid off and the surplus is distributed among its members. A company can be Private Limited Company, Public Limited Company as well as a One-Person Company.

Companies Act, 2013 can be divided into four parts:

PART I-Section 270-303

PART II-Section 304-323 [Replaced by Insolvency and Bankruptcy Code, 2016]

PART III-Section 324-358

PART IV-Section 359-365

A company can now be wound up under this act only by the Tribunal.

Reasons for winding up of a company

The company’s objective for its establishment has been fulfilled.
The company is incapable to carry business.
Death of promoters.
Bankruptcy.
The company is unable to pay its creditors.
The company disposes of its business to another company or an individual.

What are the grounds and circumstances in which company may be wound up by the Tribunal?

Compulsory winding up by the Tribunal under Section 271 of the Companies Act, 2013 can be applicable on five grounds-

Special resolution
Sovereignty and integrity
Fraudulent activity
The annual and financial return
Just and equitable

Who can file a petition for winding up?

Section 272 of the Company’s Act, 2013 states that petition to be filed to National Company Law Tribunal (NCLT) by:

Company
Contributory
Both or either
Registrar of companies (ROC)
A person authorized by the Central Government
Central Government or State Government

What are the powers of Tribunal?

Section 273 of the Company’s Act, 2013 states the tribunal to make decisions stated below within 90 days.

Dismiss with or without cost.
NCLT can make an order for winding up with or without cost.
If the NCLT thinks fit, can go for an interim order.
If NCLT thinks fit then he has the power to appoint a provisional liquidator to check the financial statements, assets, and liabilities, etc.
Any other order as NCLT thinks fit.

Section 274 talks about the directions for filing the statement of affairs. Firstly the company is entitled to prepare the list of assets and liabilities and then gives details about books of accounts within 30 days.
According to Section 277 company has to establish a winding-up committee which is-

Secured creditor
Official liquidator
Professionals
A liquidator has to submit a preliminary report to NCLT within 60 days as stated under Section 281. The preliminary report includes assets, liabilities, paid-up share capital, receivables, guarantees, intellectual rights, contracts, details of the fraud, viability, list of contributory, etc.

Who is a liquidator?

A liquidator is a person appointed by the Tribunal who manages the entire assets of the company when it is in a winding-up position.

Powers and duties of a liquidator

Section 290 of the Company’s Act, 2013 and Section 35 of the Insolvency and Bankruptcy Code, 2016 states the powers and duties of a liquidator:

to carry business.
pay creditors.
sell assets.
raise loans.
execute deeds.
approach NCLT.
to protect and preserve the assets.
if required can take help from adjudicating authority.
obtain professional assistance.
to deal with the legal heir of deceased contributory.
and to perform such other functions.

Section 292 states that if the liquidator is not calling a meeting then 10% of the creditors and 10% of the contributor consults the liquidator to call for a mandatory meeting.
Section 292(4) states that any aggrieved person may apply to the tribunal against the liquidator.
If there is a need to end the corporation or to dissolve the company then the liquidator is entitled to give application to NCLT as per Section 302 of the Company’s Act, 2013.
Section 329 refers to the situation when the transfer is not in good faith then the liquidator informs the tribunal and the tribunal takes all such assets into their custody.
If an officer of a company at the time of winding-up sells the assets then he shall be liable with a minimum imprisonment of 3 years which may extend to 5 years and with fine ₹1 lakh-₹3 lakhs which may further extend to ₹3 lakhs-₹5 lakhs.
Section 356 of this act states that the tribunal has the power to declare dissolution of a company void within 2 years of dissolution. In case the Registrar of Company thinks fit then they can regenerate the company.
Any creditor who is not satisfied with the liquidator can apply to the Central Government under Section 364.
Section 365 states that the dissolution of a company has to be consented by the Central Government and the tribunal.

Insolvency and Bankruptcy Code, 2016

It received the assent of the President of India on 28th May 2016 was established in October 2016 and its headquarter is in New Delhi.

Insolvency and Bankruptcy Code, 2016 is divided into five parts-

PART I-Preliminary (Section 1-3)

PART II-Insolvency of corporate forums (Section 4-77)

i) Resolution insolvency process

ii) Liquidation insolvency process

iii) Fast track insolvency process

iv) Voluntary insolvency process

PART III-Insolvency and individual partnership (Section 78-187)

PART IV-Insolvency entities (Section 188-223)

PART V-Miscellaneous provisions (Section 224-255)

A company can be wound up under this code in two ways:

By court
Voluntary winding up

Advantages of Insolvency and Bankruptcy Code, 2016

Sick Industrial Companies Act (SICA) is removed and solvency was taken by Insolvency and Bankruptcy Code.
There are two phases of the insolvency:

a) Resolution process (Section 6-32)

i) Interim Resolution Professional (IRP)

ii) Resolution Professional (RP)

b) Liquidation process (Section 33-54)

3. The control is with the Committee of Creditors (COC). If COC gives 66% voting rights then only is passed.

4. It pronounces insolvency of all different persons that is individuals, firms, corporate, etc.

5. There are two types of creditors:

a) Financial Creditor (FC)

b) Operational Creditor (OC)

6. It establishes a central database which is Information Utility (IU) for complete transparency during insolvency.

7. Courts

Composition

1 Chairperson
3 members from Central Government
1 person nominated by Reserve Bank of India (RBI)
3 members nominated by Central Government

Eligibility (Regulation 5)

He/she passed the Limited Insolvency Exam (LIE) in the last 12 months.
He/she has completed a pre-registration educational course from an Insolvency Professional Agency (IPA).
He/she has completed any of the following:

a) 10 years experience as a Chartered Accountant (CA), Company’s Secretary (CS), and Certified Management Accountant (CMA) or

b) 15 years experience in management after receiving a bachelor degree or

c) Completed National Insolvency Programme (NIP) or

d) Completed Graduate Insolvency Programme (GIP).

The minimum amount of default under section 4 of Insolvency and Bankruptcy Code, 2016 is ₹1 lakh and can be extended by the Central Government up to ₹1 crore.
Section 7, 9, and 10 of the code states that the financial creditor, operational creditor, and the company itself can file an application known as initiation date to NCLT. The tribunal within 14 days has to appoint Interim Resolution Professional (IRP) and the date in which it is appointed is known as the commencement date.

Powers of Interim Resolution Professional (IRP)

Section 17 of the Insolvency and Bankruptcy Code, 2016 states the powers of IRP:

Manage the corporate debtor business.
Exercise powers of the board of directors or management of corporate debtors.
Reporting of business.
Instructions to the Financial Institution (FI) like banks.

Duties of Interim Resolution Professional (IRP)

To collect information about a corporate debtor.
To constitute Committees of Creditors (COC).
To monitor assets of the corporate debtor and manage its operations.
To perform duties specified by Insolvency and Bankruptcy Board of India (IBBI).
To control assets of corporate debtors.

Who Applies before NCLT for Insolvency?

Section 7 states that the financial creditor along with the other financial creditors gives application to adjudicating authority along with the necessary documents. Now adjudicating authority will identify if there is any default and whether there is pending of disciplinary proceedings within 14 days of receipt. If there is any default then adjudicating authority will reject by giving notice to the financial creditor within 7 days of receipt of the notice. But in case there is no default then within 7 days of application adjudicating authority will intimate it to the applicant and the corporate debtor (defaulting person).

CASE STUDY

British Water Gas Syndicate V. Notts Derby Water Gas Co. Ltd. (1889)^[1]

If members of the company want to wound up then they can do so by passing a special resolution.

West Hills Realty Private Ltd. and Ors V. Neelkamal Realtors Tower Private Ltd. on 23rd December 2016^[2]

The Hon’ble High Court stated that the petitions which are at the pre-admission stage and have not been served on the respondent will be transferred to the Tribunal.

Allan Ellis (Transport and packing) Services, Re (1989)^[3]

If a voluntary liquidator of three companies failed to fulfill the requirements or court orders were disobeyed under section 551 of the Company’s Act, 2013 then they shall be liable with 3 months of imprisonment.

Bidyut Baran Bose V. Official Liquidator 535(1980) 151 Cal^[4]

In this, the property of the company was sold and the possession was delivered within 1 year of the commencement of winding up of the company. The transaction and the deed were not done in good faith therefore it was held that the transaction is void ab initio under Section 531 A and 536(2) of the Company’s Act, 2013.

Pabna Dhanbhandar Co. Ltd., Re (488 1936)6 CC 425 (Cal)^[5]

In this case, it was held that the maintenance of a bank account is an integral part of carrying on liquidation.

Madras Provincial Co-operative Bank V. Official Liquidator, South Indian Match Factory (1944)14 CC 228^[6]

The bank in which the liquidator deposits the cheque then that bank shall have the notice of liquidators duty. If there is any negligence on part of the liquidator then the bank is liable to pay the loss.

REFERENCE

https://indiankanoon.org/doc/51057115/
http://mca.gov.in/SearchableActs/Section336.htm
https://www.lexology.com/library/detail.aspx?g=88950cdd-4eaf-4a32-b09c-332c67255739
https://www.supremecourt.gov.sg/rules/court-processes/civil-proceedings/other-civil-proceedings-and-processes/company-winding-up-proceedings
http://www.legalservicesindia.com/article/1319/Winding-Up-of-a-Company.html#:~:text=It%20is%20the%20mode%20of,process%20of%20voluntary%20winding%20up.
https://lawtimesjournal.in/winding-up-of-company-under-company-law/

^[1] British Water Gas Syndicate V. Notts Derby Water Gas Co. Ltd (1889)

^[2] West Hills Realty Private Ltd. And Ors V. Neelkamal Realtors Tower Private Ltd. on 23^rd December 2016

^[3] Allan Ellis (Transport and packing) Services, Re (1989)

^[4] Bidyut Baran Bose V. Official Liquidator 535(1980) 151 Cal

^[5] Pabna Dhanbhandar Co. Ltd., Re (488 1936)6 CC 425 (Cal)

^[6] Madras Provincial Co-operative Bank V. Official Liquidator, South Indian Match Factory (1944)14 CC 228

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This article is written by Pooja Lakshmi, a law student at Bennett University

ABSTRACT

The veto power possessed by the five permanent members(China, Russia, the USA, the UK, and France) of the United Nations Security Council on any proposed resolution is mentioned under article 27(3) of the Charter of the United Nations (Charter). Vetoes frustrate the majority preference. This power is the most controversial and heavily criticized aspect of the Council since its inception. It also played a significant part in hindering the ability of the Council to effectively carry out its primary role of maintaining international peace and security despite decades of debate. The system had been a significant force resisting the full actualization of global peace and security and renders the global system chaotic and anarchic. This paper discusses the problems inherent to the current unqualified veto power as the paper is of the view that the system is undemocratic, lacks morality and transparency.

INTRODUCTION

Veto power is the power of the five permanent members that include China, France, Russia, the United Kingdom, and the United States of the United Nations Security Council to veto(i.e., cancel or postpone the decisions, enactments) any “substantive” resolution. The abstention or absence of a permanent member does not prevent a draft resolution from being adopted.

Veto power cannot be removed as members having veto power might withdraw from the UN, and possibly form their forum if veto rights are abolished, making the UN completely pointless because those great powers will no longer uphold it. Vetoes are used for protecting lesser interests or allies other than to protect the security or sovereignty of the P5.

Country and its Veto Power

The creators of the United Nations Charter conceived that five countries — China, France, the Union of Soviet Socialist Republics (USSR) (the one which was succeeded in 1990 by the Russian Federation), the United Kingdom and the United States, because of their critical roles in the establishment of the United Nations, would continue to play an essential role in the maintenance of international peace and security.

They were granted the special status of Permanent Member States at the Security Council, along with a unique voting power known as the “right to veto.” The drafters agreed that if any of the five permanent members cast a negative vote in the 15-member Security Council, the resolution or decision would not be approved.

All five permanent members have exercised the right of veto at one time or another. If a permanent member does not fully agree with a proposed resolution but does not wish to cast a veto, it may prefer to abstain, thus allowing the resolution to be adopted if it obtains the specified number of nine favourable votes.

China- Since the victory, after the end of the Second World War, China has got veto power and had become one of the permanent members of the United Nations Security Council. The Republic of China, led by Chinese People, defeated the Japanese invader during the Second World War. China became one of the initiators to find the UN.

France- In 1945, the US and Britain pushed for France to have an occupation zone in Germany and a UN Security Council seat. After intense negotiations, the Soviet Union agreed to both. France applied the veto for the first time on June 26, 1946, concerning the Spanish Question.

Russia- Since 1992, Russia has been the most frequent user of the veto. The Union of Soviet Socialist Republic was a charter member of the United Nations and one of five permanent members of the Security Council. Following the Soviet Union’s dissolution in 1991, the UN seat was transferred to the Russian Federation.

The UK- The United Kingdom is a founding member of the United Nations. The UK has used the veto 32 times, and the first instance took place on Oct 30, 1956 (S/3710), during the Suez crisis. The UK is also the fifth-largest contributor to the UN’s peacekeeping budget, paying 6.68% of $7bn a year.

US- Since 1970, the US has used the veto far more than any other permanent member, most frequently to block decisions that it regards as detrimental to the interests of Israel.

Amnesty International claimed that the five permanent members had used their veto to “promote their political self-interest or geopolitical interest above protecting civilians.” France and the United Kingdom have not used the veto since 1989.

Facts

The Holy See is the only fully independent nation to choose not to be a member of the United Nations.

An affirmative vote shall make decisions of the Security Council on procedural matters of nine members.

Each member of the Security Council shall have one vote.

Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

Opposition to Abandonment of Veto Power

Russia has made it abundantly clear that it will oppose any modification of the veto power apart from what exists at present in the United Nations Charter. Furthermore, neither the United States nor any other great powers, though deploring abuse of the right of veto, has shown any readiness to forgo it except in the field of atomic-energy control. Because there is little likelihood that the Charter can be amended at this stage, it is more practical to follow the Australian approach to the problem.

Trygve Lie, Secretary-General of the United Nations, observed in a report that the organization was “founded upon the basic assumption that there would be agreement among the permanent members of the Security Council upon major issues.” He added: “The fact that the Charter gave the right of veto to each of these permanent members, imposes on them an obligation to seek agreement among themselves.”

CONCLUSION

It has been argued that with the adoption of the “Uniting for Peace” resolution by the General Assembly, and the given interpretations of the Assembly’s powers that became customary international law as a result, that the Security Council “power of veto” problem could be surmounted. The five permanent members have to limit themselves in the use of the instrument that allows them to influence the entire international system as it is unlikely that they will give their consent to a reform which they are against and to put reform in place every other member needs to persuade them.

It has been evident that the use of veto has created disruptions in the working of the council and the process of negotiation has got complicated. The use of veto has also broken the feelings of the people who were hoping the council to work efficiently. The practical issue in front of the United Nations is that veto can be imposed even if judgment of a single nation will want it to. This is a major threat that needed to be handled. As we have seen examples that a single power has imposed veto several times creating disruptions, the question that stands before the Interim committee of the General Assembly is what steps should be taken to prevent or reduce the repeated usage of veto by a single great power in future as it has been in the past?

REFERENCES

A CRITIQUE Of THE UNQUALIFIED VETO POWER. https://uwailchome.files.wordpress.com/2018/02/georgia-papalia.pdf
CEEOL – Article Detail. https://www.ceeol.com/search/article-detail?id=741501
What is the veto, and how did it come to be? – Stop …. http://stopillegitimatevetoes.org/about-the-veto/what-is-the-veto-and-how-did-it-come-to-be/
Amnesty calls on UN powers to lose veto, BBC News. https://www.bbc.com/news/world-31617141
Non-Member Countries of the United Nations. https://www.thoughtco.com/non-members-of-the-united-nations-1435429
Voting System | United Nations Security Council., https://www.un.org/securitycouncil/content/voting-system
United Nations Charter and the Veto Power, https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1946091808

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