This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. This article deals with the Performance and Frustration of Contract.

INTRODUCTION

The contract imposes a legal obligation on the contracting parties to fulfil their mutual obligations and continues to do so until the contract has been concluded or terminated. The most normal and common way to discharge a contract is to execute it. A person performing a contract by the terms of the contract shall be relieved of any additional obligations. The doctrine of frustration comes into play when the contract becomes impossible to perform, after it has been concluded, because of circumstances beyond the control of the parties.

Performance of Contract

The term ‘Performance of the Contract’ means that both the Contractor and the Contractor have fulfilled their respective obligations under the Contract. For example, A visits a stationery shop to buy a calculator. The shop assistant delivers the calculator and A pays the bill. The contract is said to have been concluded by mutual performance. Section 27 of the Indian Contract Act says that “The parties to the contract must either make or agree to make their respective promises, unless they are exempted or excused under the provisions of this Act or by any other statute.”

Types of Performance

1. Actual Performance

If the contractor has fulfilled his obligation by the terms of the contract, the promise is said to have been made. Real performance provides discharge to the contract and the responsibility of the contractor ceases to exist.

2. Substantial Performance:

It is where the work decided is almost over. The court then orders the payment of the money but deducts the sum needed to correct a minor existing defect. Substantial performance is applicable only if the contract is not an entire contract and is severable. The reasoning behind the development of the doctrine of significant performance is to prevent the risk of one party violating its obligations by arguing that the contract has not been completely enforced. However, what is perceived to be a significant accomplishment is a question of fact to be determined in both cases. It will depend to a large extent on what remains undone and its value compared to the contract as a whole.

3. Partial Performance

That is where one of the parties has entered into the contract, but not fully, and the other party has demonstrated willingness to accept the part of the contract. Partial performance can occur where there is a deficiency in the delivery of goods or where the service is not completely performed.

Concept of Frustration

Contracts entered into between the parties impose contractual obligations on both parties for the performance of the contract. However, many times unforeseen or unforeseen occurrences occur which make the performance of contracts impossible due to no fault of either party. In such cases, the contract is said to have been frustrated. Frustration of the contract results in an involuntary extinction of the contractual obligations of both parties and, consequently, the parties are relieved of their rights and obligations.

Factors of Frustration of Contract

1. Impossibility of Performance

The doctrine of the Frustration of the contract arises from the impossibility of an act. But the principle is not limited to physical impossibilities. In the case of Satyabrata Ghose vs. Mugneeram Bangurn & Co & Anr, it was held that ‘impossible’ was not used for physical or literal impossibility in Section 56 of the Act. The performance of an act may not be impossible, but it may be impracticable and useless, and if an untoward event or a change of circumstances completely upsets the very foundation on which the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the act that he promised to do. Therefore, if the object of the contract is lost, the contract will be frustrated.

2. Change of Circumstances:

The Courts declare disappointment with the contract on the ground that it is subsequently difficult to find that the entire intent or foundation of the contract has been compromised by the interference or nature of an unwanted event or alteration of circumstances beyond what was envisaged by the parties at the time they agreed. The modified circumstances make the execution of the contract unlikely and the parties are absolved from the further performance of the contract because they did not guarantee an impossibility.

3. Loss of Object

The impossibility provided for in Section 56 of the Act is not limited to that which is not humanly conceivable, as held in the case of Sushila Devi vs. Hari Singh. The Court held that if the performance of the contract is impracticable or meaningless in the light of the object and intent of the parties, it must be held that the performance of the contract has become impossible. But the supervening incidents should take away the very foundation of the contract, and it should be of such character that it is at the heart of the contract. As was the case with the lease of property, which, after the unfortunate partition of India and Pakistan, left the disputed property situated in India to Pakistan, making the terms of the agreement impossible.

CONCLUSION

Performance in its literal sense implies the completion of a task or action. Performance in its legal sense means the fulfilment or satisfaction of the obligations of the parties which they have against the other party by the contract they have entered into and in Frustration of contract the contract is void and discharges the contractual obligations of the parties. Nevertheless, Section 65 of the Act provides that, when an agreement has become void, the person who has received some benefit under that agreement is ‘bound’ to restore it or to make restitution for it from whom it has been received. The problem arises as to how this provision even refers to contracts made invalid by dissatisfaction. Frustration of the contract takes place beyond the responsibility or power of either party and, thus, a party should not be made to pay in such a situation. However, the failure to provide adequate compensation may also result in losses for the other party.

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Mr. Govind Chaturvedi is an experienced lawyer with a demonstrated history of working in the law practice industry. Mr. Govind Chaturvedi is currently working with L.S. Davar & Co. He is skilled in Intellectual Property rights, Corporate Law, Commercial Litigation, Transactional and Legal Writing.

Q. How has been your journey as a Lawyer?

A: Overall today where I stand and looking back, I can say that the Legal Profession has its extreme lows and its immense highs and I have experienced both. There are various stages that if you are a first-generation lawyer need to go through, the first being that you need to understand how a lawyer thinks, which is a different form of analysing facts and giving a conclusion. You learn to think in terms of most things of as arguments and also the evidence you will need to back it up.

I have had days in Court wherein I have had great orders and exceeded my own expectation and have also been part of judgements wherein we did not get exactly what we wanted but were able to do more than justice to the matter. Hence, it is important to do your research and be very well versed with your facts as you never know which one fact might change the entire course of the case. However, looking back I do realise that all the highs and lows play an important part in helping you grow both as a lawyer and as a person.

Q: Students in Law School are more inclined towards getting good grades. What’s your take on it? Do grades have any significant impact on the career?

A: Well, I truly believe that there is a huge gap between what is taught in law school and what the profession of law actually is. When someone graduates from law school it actually feels like they are still novices and all the internships and good grade do not account for much. I was never a good performer in School or Law School and the only academics I can boost about is getting 99 percentile in Common Entrance Test. I performed pretty average in Law school and secured a first division, which I was very happy about, but I use to come home and read my law books every day for 2-3 hours, not because of anything else but because I enjoyed it.

However, to answer your question good grades do not translate into success in the career or have an impact, I personally do not think so. Rather, I would advice students to do internships and to learn as much as they can about everything around them and have a sound general knowledge and also have a strong base of knowledge about other industries as well, as when you are doing matters this knowledge is very helpful. Law School is when you have the time, once you are working you need devote your entire day, week after week to learning law and its procedures. So, while maintaining a decent percentage is alright, good grades do not guarantee you any success in the career as that depends completely on your intelligence, ability to think on your feet and ability to deal with situations.

Q: What are the skills required to succeed in the Legal Profession?

A: Well, there are too many and completely depends on what you want to do in law but for litigation, I would state that the following are important:

Confidence, you should be able to state an argument so convincingly that you can get people to agree with you
Patience and perseverance, not all matters or situations will turn out as you like so be patient and keep persevering forward
Research skill, you should be able to pull up case law to support your case
Listening skills, it is a skill that many of us do not have and the problem is that it is very essential that you are able to understand the pulse of a person; whether it’s your client, judge or the Opposite counsel
Client care; as a client are essential for any lawyer we should be able to deal with them effectively and with politeness
Accountability; if something does go wrong in the matter you should be to take responsibility and realise wherein you went wrong and correct it for the future.
Creativity, this I feel is one of the most important skills for any lawyer as you will have limited resources on your side and you need to be able to work with them.

Additionally, I owe a lot of my thinking patterns to my elder brother: Rahul Chaturvedi who at a young age inculcated in me the critical thinking and logical arguments, he also inclined me to read different varieties of books at an early age and got me into the habit of writing which enabled me to put my thoughts in written and verbal form more effectively, which I can say helped me in law immensely. I personally was a vociferous reader and use to love reading books I found fascinating, when I did step into the law profession I was very well versed with a lot of key facts about other industries, so being well-read in general will also get you further than most other things. So, if nothing else I would suggest students to read a book monthly if not weekly to start with and keep increasing the number of books continuously.

Q: Non-NLU students often face internship rejection from big law firms? What’s your advice to them?

A: To be honest, yes NLU students do get more preference, however, there is no need to get disheartened as I personally believe interning with big law firms does not teach you much.

Rather, Non-NLU students should focus on developing skill sets and creating a good portfolio, I would rather suggest students to intern in small firms and with lawyers, wherein you will be entrusted with more tasks and can learn more.

However, if students still want to intern with big firms for the experience of it, I would suggest to the non-NLU students that if they have certain extra skill-sets on their CV, they have a better chance of being taken for an internship, which could be an online certification course or a project they have undertaken, like I ran an NGO in Law School and use to organise blood donation camps, wherein we had created a tripartite agreement between our organisation, the blood donating place and the Red Cross. If nothing else it helped me understand the world of NGO’s and how they worked and how to also develop people skills, we also did other drives like donation drives but our main aim was Blood Donation Camps.

These activities also ensure that students can utilise their time in Law School well by actually working on their own development. Moreover, I truly believe today’s lawyers are blessed as in this day and age of the internet we have access to all types of information so students in law school invest this time well and use it wisely. Once, a Non-NLU student will have these additional attributes on their CV it will make them stand out and could help in securing the internships, I also suggest reaching out to the Alumni working in these big firms as they can be the most helpful, as I tend to get students who reach out to me on Linkedin pretty often and I am more than happy to guide them or at least secure an internship with the Firm for them I am working at.

Q: How hard it is for a young professional to set up a career in the field?

A: The brilliant thing about law is that all you need is your brain and the knowledge and no other resource, it is for the lawyer to want a fancy office or a brand they want to grow. But, honestly. you can even be sitting underneath a tree and client will come to you if you are good at what you do. However, there is an initial struggle I would say for 5 years at the very least for generating clients and creating a stable client base, what I see is that a lot of young lawyers want to set up their firm without working under a senior lawyer, I suggest against that, as you need work with someone senior to be able to have the guidance. If they do not want to work with a senior lawyer, find someone who will let you do your own matters simultaneously. I also believe that the bond between a senior and a junior lawyer is very sacred and every lawyer should have that experience to evolve both professionally and personally,

Q: You have recently done a webinar regarding social media laws; How much do you think social media is legally backed in the country?

A: Well, the problem that most social media platforms that face in India is that they want to be in the ambit of an intermediary, in order to avoid liability if anything goes wrong. What this does is that they cannot interfere with what is being uploaded or cannot screen it, as if they were to do that they would become an active participant and could be held liable in a court of law. This point has been elaborated in a number of cases by the Delhi High Court. So, right now the only laws that do exist are for intermediaries and since the Social media platforms are immune from them due to their own non-interference they do tend to escape liability. There are no laws in India for Social media per se specifically as of now, but social media platforms are largely regulated by established laws like defamation, cybercrimes etc.

The Government is in the process of changing the same and they recently on the 24^th of December, 2018, released the Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 (“the Draft Rules”) to amend the existing Intermediaries Guidelines. These Draft Rules sought to introduce requirements on intermediaries like – tracing out of originator of information for assistance to law enforcement, deployment of automated tools for proactive filtering of unlawful content, a takedown of illegal content within 24-hours, and mandatory incorporation of companies having 5 million + users in India (among other things).

However, the same has been met with criticism as the said rules tend to go against a lot of established norms like “Right to privacy” enshrined in KS Puttaswamy v. UOI due to the traceability requirement under Rule 3(5), “Pro-active filtering of content” which would move the Intermediary liability from a passive entity to an active participant as discussed earlier, Appointment of Nodal Officer under rule 3(7) moreover as the Social media platforms do have their own grievance officers.

However, the flip side is also that the investigation agencies usually tend to hit a dead end while investigating cases for cyber crimes as most Social Media platforms tend to not adhere to Indian laws. So, whereas there is a need for these laws as none exist right now, there is a very fine balance that needs to be made as tilting to either side could have disastrous consequences for the public in either case.

Q: Do find any major loophole in social media laws of the country? And how that can be addressed.

A: I think like I said no particular law exists for these entities and certain modifications can be made to existing precedents like non-filtering of content tends to lead to spreading of fake news that as we have seen can lead to deaths, obscene material being shared and so on. So, the non-interference by the Social media platforms can be modified for certain particular things i.e. fake news, revenge porn etc as they have done the damage before they are even caught or reported.

Moreover, these social media platforms have an unregulated policy of closing down accounts without even giving the reason to the user. This is especially bad for Social Media Influencers who tend to many times loose followers to the tune of 1 lakh to 10 lakh followers and start afresh, this can be addressed by the Social Media Platforms providing clear guidelines and also sharing the data for closing down of the account as Influencers tend to utilise this for monetary gains and have a right to know.

Q: On a concluding note, what should be your advice to the new generation lawyers.

A: Law is a profession that will always be relevant. Moreover, there are enough fields in law i.e. land laws, matrimonial laws, Intellectual property rights etc that it has the bandwidth to accommodate anyone. However, I see a lot of juniors jumping straight into a particular field and saying they want to specialise in it. I would suggest to them that they should not restrict themselves so early in their career, I started with practising family law, consumer law and income tax law and use to argue before the Ghaziabad District courts, Consumer forums and Income Tax Appellate Tribunal then moved on to doing Commercial litigation and argued extensively in the Supreme Court, Lower courts and the High Court and worked on matters ranging from Government work orders, Arbitration to 138 Negotiable Instruments act matters. I was also involved in a software infringement case, Domain name dispute and a family dispute over a trademark, when I developed an interest in Intellectual property rights then moved on to be an expert in Trademark Prosecution and Opposition and thereafter now having gained an interest in Social media laws am working towards that, all my previous experiences have helped in the following fields as I have grown. So, I tell young lawyers to give themselves the chance to practise and also explore other options in law.

This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain about the Evolution of the Concept of Ombudsman.

Meaning of Ombudsman

“Ombudsmen” means “a delegate, agent, officer or commissioner”. A detailed definition of “Ombudsman” isn’t possible, but Garner appropriately describes him as “an officer of Parliament, having as his primary function, the duty of acting as an agent of Parliament, with intend of safeguarding citizens against abuse or misuse of administrative power by the executive”. The “Ombudsman” is thus an official person appointed to receive and inspect complaints of citizens against the govt. and its officers. In other words, if there are irregularities in the functioning of the public administration, the citizens hold the power to register a complaint against the concerned authority. He is an officer of parliament.

He is appointed by Parliament and thus, he’s not an official within the administrative hierarchy. He is higher than party politics and is in a place to think and decide objectively. There is no intervention even by Parliament in the discharge of his duties. He prepares a report to Parliament and sets out reactions of citizens against the administration. He also makes his own recommendations to eliminate the causes of complaints. Very wide publicity is given to those reports. All his reports are also published in the national newspaper. Thus, in short, he’s “watchdog” or “public safety valve” against maladministration, and therefore the “protector of the small man”.

Origin

The word ‘Ombudsman’ is of Swedish root. It was first utilized in its modern sense in 1809 when the Swedish Parliament well- established the office of Justitieombudsman, which was to focus on citizens’ interests in their dealings with govt. Ombudsman was first introduced in Sweden by King Charles XII in the 18th century. The first Swedish ombudsman was Lars Augustin Mannerheim. For quite 100 years, the office remained confined to Sweden and would hardly create any ripple for other countries. Its contagion effect spread in the 20th century when it was adopted within other Scandinavian countries, in Finland (1919), Denmark (1955) and Norway (1962). The introduction of the Danish ombudsman, in 1955, marked the start of the worldwide interest in the ombudsman schemes. After assuming as the very first Danish Ombudsman, Professor Stephen Hurwitz, begin to write and lecture about his office in the English language. This activity heated the interest, which readily spread within the Anglo-Saxon world as more and more article begin to come out about ombudsman in English language publications. The establishment of an ombudsman in New Zealand, the first common law country, in 1962, set off an excellent deal of interest in the ombudsman concept throughout the world.

In England first Ombudsman is established in 1967 by parliamentary commissioner act of 1967 and it is called as Parliamentary Commissioner. He appointed by the govt. on the recommendation of the prime minister and hold office for 65 years.

In the US, there’s no undivided federal ombudsman service. The role of handling complaints against federal authorities has got to some extent been unofficially incorporated into the role of the US Member of Congress. This informal job has become increasingly time-consuming. It is subject to criticism because it meddles with a legislator’s initial duty, namely to read and be knowledgeable about a bill before casting his or her vote. Though there’s a tone of Ombudsman in the USA no Ombudsman has infiltrated the administration except within the 3 states of Hawaii, Nebraska and Oregon for local govt. agencies. Since 1963, in every session the of the congress a bill has been introduced to determine an establishment like Ombudsman was taken in account by the members of the Congress as a haul on their status and power for they consider it their sole prerogative to represent their constituencies and to handle the grievances of the people. However, the congressional investigation and grievances cells established in various departments, just like the police review Boards, discharged the work of Ombudsman.

In India, in 1962, M.C. Setalvad suggested the idea of establishing an Ombudsman at the All India Lawyer Conference. Here, the Ombudsman is known as Lokpal. The word Lokpal is originated from the Sanskrit word ‘Loka’ meaning people and ‘pala’ meaning protector or caretaker. Together it means the protector of the people. The term Lokpal was brought up in 1963 by Laxmi Mall Singhvi, a member of parliament during a parliamentary debate about grievance mechanisms. An Administrative Reforms Commission (ARC) was founded on 5 January 1966 under the Chairmanship of Shri Morarji Desai. It recommended two-tier machinery:

Lokpal at the Centre and
one Lokayukta each at the State level for redressal of people’s grievances.

An attempt to establish Lokpal (ombudsman) in India started in the year 1968 when the Lokpal and Lokayuktas Bill, 1968 was introduced in the Parliament. Due to various circumstances, no conclusion could be drawn in various attempts. The demand for setting up the institution of Lokpal and Lokayukta got new impetus in 2011 when social activist Anna Hazare went on fast unto death to push for the “Jan Lokpal Bill” proposed by the civil society in India in view of all-pervasive governance deficits in the country. Finally, this law got enacted and became law through a notification in Gazette in the year 2014. The Act is known as the Lokpal and Lokayukta Act, 2013.

Powers and duties

The Ombudsman analyses and investigates into complaints made by the citizens against the abuse of discretionary power, maladministration or administrative inefficiency and takes suitable actions. For that purpose, very wide powers are conferred to him. He has access to departmental files. The complainant isn’t required to steer any evidence before the Ombudsman to prove his case. It’s the function and duty of the Ombudsman to assure himself whether or not the complaint was justified. He can even act Suo Motu. He can grant relief to the resentful person as unlike the powers of a civil court, his powers aren’t limited.

Defects

Of course, there are some arguments against setting up of the office of the Ombudsman which are as follows: –

It’s argued that this institution may prove successful in those countries which have a relatively small population, but it might be unsuccessful in populous countries, like the US or India, because the number of complaints may be too large for a single person to eliminate.
It’s also said that the success of the institution of Ombudsman in Denmark owes an excellent deal to the personality of its first Ombudsman – Prof. Hurwitz. He took a keen interest within the complaints made to him and investigated them personally. Prestige and private contact would be lost if there are several such officers, or if there’s a single officer who has always been depended upon a large staff and subordinate officers.
According to Mukherjee J, in India, this institution is not suitable. He expressed it as “an accusatorial and inquisitional institution – a mixture unprecedented in democracy with traditions of an independent judiciary”. It’s an “impracticable and disastrous experiment” which cannot fit into the Constitution.

Conclusion

In a democratic govt., it is expected that the subjects have adequate means for the redress of their grievances. Since the present judicial system isn’t sufficient to deal with all cases of injustices, an institution like the Ombudsman may help in doing full and complete justice to resentful people. But an Ombudsman is not a “panacea for all evils of bureaucracy.” His success depends upon the existence of a reasonably well-administered State. He cannot deal with the situation where the administration is riddled with patronage and corruption.

The Indian Parliament so far has not enacted any Act though a proposal to constitute an institution of Ombudsman (Lokpal) was made by the Administrative Reforms Commission as early as in 1967. Some states, however, have enacted statutes and appointed Lokayukt

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

INTRODUCTION

In the words of the Black Law’s Dictionary, an emergency can be understood as a ¨situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation¨. According to it, a situation of emergency arises due to the failure of the government machinery which demands immediate action from the authority.

While carefully laying down the constitution for the country the wise constitution-makers of the country made sure to have the back of the country even during the crisis of an emergency. Even though the country India is well known for its harmonious working as a quasi-federal nation, it assumes an entirely Unitary role under the constitution in case of an emergency.

The provisions for National Emergency have been laid down from Article 352 to 360 in the Constitution of India. These Articles Prescribe the following:

Article 352: Proclamation of Emergency or National Emergency.
Article 353: Effect of Proclamation of Emergency.
Article 354: Application of provisions relating to the distribution of revenues while a proclamation of emergency is in operation
Article 355: Duty of the Union to protect States against external aggression and internal disturbance
Article 356: Provisions in case of failure of constitutional machinery in State.
Article 357: Exercise of legislative powers under Proclamation issued under Article 356.
Article 358: Suspension of provisions of article19 during Emergencies.
Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies.
Article 360: Provisions as to Financial Emergency.

NATIONAL EMERGENCY

The provision for declaring National Emergency has been provided under Article 352 of the Constitution of India. It provides that if the president is satisfied that there exists a grave situation, wherein the security of the country is threatened on the grounds of wars, external aggression or armed rebellion, he can proclaim emergency to that effect.

Here, the term ¨War¨ is used to describe a situation where a country declares a formal war against India and a violent struggle using armed forces breaks down, in such a case the President of India can impose the National Emergency.

When the term ¨External Aggression¨ is used, it is used to indicate a situation when a country unilaterally attacks India without any formal declaration of war. If such a situation terrorizes the nation then the President of India can impose National Emergency.

The term ¨Armed Rebellion¨ is used to describe when a group of people rebel against the present government which will lead to the destruction of lives and property. In such a case as well the President can impose a National Emergency.

The term ¨Armed Rebellion¨ was incorporated through the Forty-Fourth Amendment Act, 1978 after substituting the term ¨Internal Disturbance¨.

Under this provision an emergency can be declared over the whole territory of India or any part of it and an emergency can be declared by the President only if written advice is received by the cabinet.

It is necessary to acquire a special majority, of 2/3rd present and voting members, to approve an emergency resolution. This proclamation has to be approved by both the houses of the parliament within one month from the date of issuance or else the proclamation shall cease to exist. In case the Lok Sabha dissolves without approving the proclamation, then it has to be approved by the lower house within the first thirty days of its reconstitution, and the Rajya Sabha should approve the resolution in the meantime.

Once this resolution is approved then the emergency can operate for a time period of six months and this time can be further extended for a longer duration subject to approval after every six months. It is important to note that there is no maximum limit till which a National Emergency can be extended.

During a National Emergency the rights guaranteed under Article of the constitution get suspended under Article 358 and other Fundamental Rights, except Article 20 which deals with protection in respect of conviction from offences and Article 21 which deals with the protection of life and personal liberty, get suspended too under Article 359 of the Constitution.

In case of a National Emergency, the State Governments falls under the direct control of the Central Government and has to work as per the directions of the Central Government.

The President may suspend the distribution of financial resources between the centre and the states and he assumes power over the objects of the State List but this power ceases to exist on the revocation of the emergency or after the passage of 6 months.

A National Emergency has been imposed a couple of times in the territory of India, which includes:

The emergency was imposed for the first time during the Indo-China war by the then President, Shri. Sarvepalli Radhakrishnan, in October 1962
The emergency imposed during the Indo-Pakistan war by the then President of India, Mr. V. V. Giri, from December 3, 1971 to March, 21, 1977. This war lasted for a total of 11 days and was considered the shortest war in the world but at the same time, the third emergency got imposed.
The third emergency imposed by the then Prime Minister, Mrs. Indira Gandhi, with the consent of the President, Mr. Fakhruddin Ali Ahmed, due to clash between the Legislature and Judiciary in the nation. This emergency lasted for 19 months from June 25, 1975 to March 21, 1977.

The power to disapprove a resolution of national emergency has been entrusted with the Lok Sabha and it can, at any time, disapprove the operation if not less than 1/10th members of the Lok Sabha submit in writing to the speaker if the house is in session, or to the president, then a special session of Lok Sabha shall be convened with 14 days and if the resolution is passed then the President will have to revoke the National Emergency implemented.

STATE EMERGENCY

Article 356 of the Constitution of India has laid down the provisions for imposing a State Emergency. It states that the President of India can impose a State Emergency, also known as President´s Rule, and become the executive head of the state if he is satisfied with the report of the Governor of the state which elaborates the failure of the Constitutional machinery of the state.

In case a State Emergency is imposed, the administrative machinery of the state gets transferred to the Union and the Governor of the state starts working under the name of the President who becomes the executive head of the state. During this period, the State Legislative Assembly may be suspended or dissolved and the Parliament presumes the role to make laws over the 66 subjects dealt with in the State List and every money bill needs to be referred to the President first while all the State Legislative Assembly ministers get barred from performing any functions.

The imposition of a State Emergency may extend from 6 months to a maximum of 3 years, subject to extension of the period if it gets approved by both the House of Parliament within two 2 months from its date of issuance or it shall cease to exist. In case the Lok Sabha dissolves when the proclamation was issued, then the resolution has to be approved within 30 days from the day the lower house reconstitutes, and the Rajya Sabha must approve the resolution in the meantime.

It is important to note that the functions of the State Judiciary do not get affected by the imposition of a State Emergency and it shall continue to act independently, which shall include entertaining petitions against the Presidential Rule, if any. This particular provision was discovered in depth when in 2016, the Congress Government decided to approach the High Court of Nainital against the State Emergency imposed in the state. In this case, the High Court gave its verdict in the favour of the Congress Government and their government was restored in the state. Afterwards, the judgement was upheld by the Supreme Court of India as well.

In India, State Emergency has been imposed 126 times in total, under different circumstances like:

When the prescribed law and order was not being followed in the state.
In cases of failure to elect a Chief Minister by the Legislature of the State.
When the coalition government in the state collapses.
In case of postponement in the state election due to justified reasons

For the longest time, a President’s Rule was imposed in the state of Jammu and Kashmir, which has always been a target for many external elements, for a period of six years and 264 days from January 19, 1990 to October 9, 1996, to control the situation in the state which was facing a military threat from Pakistan.

Another State Emergency to look at is the President’s Rule imposed in Punjab for a time period of 4 years and 259 days to control the situation created due to the Khalistan Commando Forces which were involved in the genocidal attacks on the Hindu.

Some landmark judgements that one should consider while discussing Article 356 are:

The case of State of Rajasthan and Ors. v. Union of India (AIR 1977 SC 1361), where imposing state emergency continuously as an arbitrary act was considered. The court held that the court holds no power to review the proclamations passed under Article 352, and due to this reason imposing State Emergency continuously becomes arbitrary.
In the case of S.R. Bommai v. Union of India (AIR 1994 SC 1918), the Supreme Court held that under Article 356 the President holds restricted powers and they are subjected to judicial review as well. So, the Supreme Court holds the power to declare an emergency void even if it receives the approval of both the Houses of Parliament.

FINANCIAL EMERGENCY

Article 360 provided under Part XIII of the Constitution of India deals with provisions to declare a Financial Emergency in the territory of India. Under this section, it has been stated that, if the President of India is satisfied that a situation of financial instability has come up in the country or any part of the country then he can proclaim a Financial Emergency.

During a Financial Emergency, the Parliament of India possesses the power to cut the budgets given to the states and reduce the allowances or the salaries of the employees working under the Center or the State Government.

To impose a Financial Emergency it is important that the resolution needs to get the approval of both the Houses of the Parliament or else the emergency imposed shall cease to operate after two months, from the date of issuance. In case within two months the Lok Sabha dissolves, then it is important that the proclamation has to be approved within thirty days from the first day of seating after it reconstitutes, and the Rajya Sabha must approve the resolution in the meantime.

So far Article 360 has never been implemented in India, however, the country had a close call in 1990 but thankfully the situation was brought under control by the Government of India after the New Economic Policies were launched by Dr. Manmohan Singh and in July of 1991 the Reserve Bank of India pledged tonnes of Gold with the Bank of England and the Union Bank of Switzerland to raise $400 Million.

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This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B from Unitedworld School of Law, Karnavati University. The main objective of this article is to describe Quasi Contract, a contract can become a contract without fulfilling its essential elements.

INTRODUCTION

For understanding the meaning of Quasi Contract firstly we have to understand the meaning of contract and what are the required elements for a valid contract.

In general terms, the word contract is derived from a Latin term ‘contractum’ which means ‘meet together’ or ‘to bring together’. And in legal sense according to Section 2(h) of The Indian Contract Act 1872, ‘An agreement enforceable by law is a contract’.

There are some terms which we need to understand for understanding contract-:

(i) An Agreement- When one person makes a proposal or offers to do something and another person accepts that offer[Offer – Section 2(a)] or proposal with some valid consideration then it becomes an agreement. For example, there are two parties A and B. A makes a proposal to B to purchase his property for ₹10 lakhs so a made an offer and B accepts this offer [Acceptance – Section 2(b)] and it becomes an agreement [Section 2(e)]. Here we also need to understand the term consideration [Section- 2(d)] and for A the consideration is ₹10 lakhs and for B the consideration is Property.

(ii) And its Enforceability by law – An agreement may be regarded as a contract if it is enforceable by law, i.e. it gives rise to such obligation as may be enforced by the court. Moral, social and religious obligations do not form any agreement because they do not create any legal duty.

For example- A said to M that come to my house and we will go to the cinema together. M went to A’s house but A could not spare time for the movie due to some urgent work. Here M cannot sue A for damages, if any, due to her not fulfilling the promise, the reason is that A was is a social obligation only. A and M have no intension to create any legal obligation.

CASE LAW- Balfour vs. Balfour

Mr. Balfour was an engineer and he worked for the government as the director in the irrigation sector in Sri Lanka(then Ceylon). Mrs. Balfour was also living with him in Sri Lanka. In 1915, they both came back to Britain during Mr. Balfour’s leave. But Mrs. Balfour had developed arthritis. Her doctor in England advised her to stay in England because Sri Lanka’s climate would be detrimental to her health. Mr. Balfour’s boat was about to set sail, and he orally promised her $30 a month until she came back to Ceylon. They lost contact over time, and Mr. Balfour wrote saying it was better that they remain apart. In March 1918, Mrs. Balfour sued him to keep up with the monthly $30 payments. In July she got a decree nisi and in December she obtained an order for alimony.

Here, in this case, there was no intension to create legal obligations and no contractual relationship was established so the decision was in Mr. Balfour’s favour.

Now we need to understand the essentials of a valid contract given under Section 10 of The Indian Contract Act, 1872.

Section 10 states that all the agreements are contract if they are made by-

i) Free consent of parties,

ii) Competent to contract,

iii) For a lawful consideration with a lawful object and

iv) Are not hereby expressly declared to be void.

So here is the list of essential elements for establishing a valid contractual relationship-:

1. More than one parties

2. Agreement

3. Creating a legal relation

4. Lawful consideration

5. The capacity of the parties to enter into a contract

6. Free consent

7. Lawful object

8. Certainty of meaning

9. Agreement not expressly declared void

10. Possibility of performance

QUASI-CONTRACT

A quasi-contract is based on a principle of, ‘ unjust enrichment of one person at the cost of another’. In the Indian contract act, 1872, quasi-contract is covered form section 68 to 72.

Section 68 describes – Basic necessaries supplied to a person incompetent to enter into a contract. For example: If a major person had supplied basic necessaries (Basic things required to survive) to a minor person who does not have any parent or guardian, this supply of necessaries will result in the formation of a Quasi Contract. The expenses done by the major person can be claimed from the estate of the minor in the future. Because if the person who is supplying the things could not claim the expenses then it would be unjust for that person and that minor person would be benefitted by that action. So there would be unjust enrichment of one party at the cost of another.
Section 69 describes – Payments made by an interested person or party.

For example, I have taken a property on lease and I run a factory on that property and the source of my income is that factory. The owner of that property didn’t pay the taxes that are imposed on the property so the government declared that the factory will be auctioned so that taxes can be recovered. In all this situation the loss is mine because the factory is the only source of my income. So here, I will be the Interested party or interested person. After this, on behalf of the factory owner, paid all the due taxes. Then I approached to the court of law saying that I am not the owner of the land/ property but I paid all the taxes so the court said that in this case, the unjust enrichment is of the property owner so the court imposed a Quasi Contract between me the owner of the property.

Section 70 describes – Payment for Non-gratuitous act

Gratuitous act means for free i.e. without any consideration for example- if somebody saves any person from drowning he/she cannot claim anything in return.

And Non-gratuitous means the one in which consideration is involved.

For example one of my friends supplied raw material to my factory by mistake, fortunately, I used that raw material in my factory because that material was useful for my factory. Later on, my friend came to me for claiming the cost of the material used.

I told him that there was no contract between us, there was no offer and there was no acceptance.

The court in this matter said that if you used the material sent by mistake then there is unjust enrichment and the party is liable to pay for the material used and this is a Quasi-contract.

Section 71 describes – Finder of lost goods.

For example, I found a diamond ring in a playground which is worth ₹10 crores. I tried to search for its owner but could not find anyone. After 1 year the owner of the ring came to me and asked for the ring but at that, I’ve already sold that ring

In this matter, the court said that there is Quasi-contract between the owner of the lost goods and the finder of the lost goods so the finder has to return the goods of the amount equivalent to the goods and the finder can recover the expenses which are incurred in finding the real owner of the goods.

Section 72 describes – Payment made under mistake or coercion.

Here coercion means a payment made under pressure or illegally. For example, Your friend is repaying the loan of ₹5 lakh which you have given to him/her. By mistake he paid extra ₹1 lakh, then that extra money can be claimed back and here Quasi-contract comes into action.

Conclusion

So we can conclude that a contract can be made without fulfilling the essential elements which are required to form a contract. These were the five situations in which a Quasi-contract can be made. In these five conditions, we can see that there is no agreement, no offer, no acceptance, no legal consideration, and no legal obligations but the Quasi-contract is there so that there must not be, ‘unjust enrichment of one person at the cost of another’.

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This article is written by PRANIT BHAGAT pursuing B.A LLB from ILS Law College, Pune. In this article, he has discussed the various types of maintenances under Hindu law and Muslim law and also compared both of them.

INTRODUCTION

The main reason behind the concept of Maintenance is to see that if one of the spouses is not independent financially so the other spouse helps him/her to make the living of another person possible. In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. Maintenance can be defined as the amount paid by the husband to his wife after divorce or the amount which the family member of the husband pays to the widow of their son. Maintenance includes necessities like:

Food, Shelter, Clothing, etc.
The necessary thinks and comfort which a rational man expected to get.

Meaning and Concept of Maintenance

The maintenance is given by the person on whom the other person depends on. The amount of maintenance is dependent on the earning of the person and the necessities which other people required and the necessities which a rational man needs to live a normal life. The people who are entitled to get maintenance under the Hindu Adoption and Maintenance Act are wives, widow daughter in law, child, aged parents, etc. and the people who are entitled to get maintenance are wife, young children, parents, another person within the prohibited degrees under the Muslim Law.

Types of Maintenance

Interim Maintenance
Permanent Maintenance

1. Interim Maintenance

This maintenance is paid from the date of filing of the petition to the date of the dismissal of the suit. Its main purpose is to meet the immediate needs of the petitioner. It is the amount that is paid by the financially independent person and upon whom the other person is financially dependent. This amount includes the expenses of the proceeding as well as other expenses during the proceeding.

2. Permanent maintenance

It is the amount which is been paid by one party to another after the judicial proceeding i.e. result is the dissolution of marriage or judicial separation.

Maintenance under Hindu Law

In case of divorce or in the case where both the partners are not living together, the spouse who is financially dependent on the other spouse can seek the remedy of maintenance. So that she/he can maintain their life as when they lived together. The maintenance is given by the person on whom the other person depends on. The amount to the maintenance is dependent on the earning of the person and the necessities which other people required and the necessities which a rational man needs to live a normal life. Section 24 of the Hindu Marriage Act talks about the maintenance and how a wife or a husband can claim Interim maintenance. Both husband and wife can claim for the interim maintenance under the Hindu and Parsi Marriage Act. The wife can file the petition for Interim maintenance under Section 36 of the Divorce Act. The concept of Permanent Maintenance is introduced as an amount which a person pays to another person as maintenance in gross sum or periodically or monthly as per the orders of the court.

Maintenance of Wife under Section 18 of Hindu Adoption and Maintenance Act, 1956

According to Section 18(1) of Hindu Adoption and Maintenance Act, 1956 the wife has been entitled to get the maintenance amount from her husband until she or he dies. A Hindu wife is also entitled to take get maintenance even if she is living separately from her husband on the following grounds:

1. When the husband is liable for desertion.

2. When the husband is liable for cruelty.

3. When the husband is suffering from leprosy.

4. The husband is liable for bigamy.

5. The husband converts his religion without the consent of the wife.

Maintenance of a Hindu wife under Section 125 of the Code of Criminal Procedure

As per Section 125 of the Code of Criminal Procedure, only a woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who denies living with her husband as he is liable for desertion or liable for cruelty or is suffering from leprosy or liable for bigamy or converts his religion without the consent of the wife can claim a special allowance under this Act.

Caselaw: D.Velusamy vs. D.Patchaiammal,

According to Section 125 of the Code of Criminal Procedure, The wife had filed a suit against her husband with a demand for maintenance where the court had granted it.

Under Section 125 of the Code of Criminal Procedure the person has to maintain:

1. His Wife, who unable to maintain herself.

2. His Legitimate or illegitimate minor child whether married or not married, who unable to maintain itself.

3. His father and mother, who unable to maintain themselves.

Caselaw: Gomaji vs Smt. Yashoda,

The petitioner is the Husband who filed a case under Section 13 of the Hindu Marriage Act seeking a divorce from his wife who is the respondent. Later, she filed an application under Section 125 of Code of Criminal Procedure claiming Maintenance. The court accepted the divorce and thus, passed the order against the petitioner to give monthly Maintenance to his wife.

Maintenance as an Award to Wife under Section 23(2) of the Hindu Adoption and Maintenance Act.

Section 23 of the Hindu Adoption and Maintenance Act talks about the people who can claim the maintenance and how it can be calculated. The analyzing factors of the amount are:

Status and Position of the parties.
The basic necessity of the claimant.
The basic comfort which a reasonable man needs.
The value of the property whether movable and immovable, of the Respondent.
The income of the respondent.
The number of members who depended financially on the respondent.
The degree of relationship between the two.

Maintenance under Muslim Law.

According to the various theories of Muslim Law, A man is considered superior to the woman. They believed that a woman is not capable to maintain themselves as there is a direct dependency on their husbands. In Muslim law, married women have the right to get maintenance from her husband even if she refuses to access her husband and cannot be consummated, but if she is too young and lives with her mother and father she is not entitled to get maintenance. Muslim law has given the right of maintenance to the wife if she has to live separately from her husband because of the cruel nature and non-payment of dower. But she cannot claim maintenance during the widowhood of iddat. Prior the divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But after the judgment given in the case of Shah Bano, divorced women can get maintenance from her husband on reasonable ground and from the family of the husband after his death

.

Maintenance of Muslim Women under Section 125 of the code of criminal procedure, 1973.

The provision of under the code of criminal procedure secular in nature. It talks about a Muslim woman demanding the maintenance under Section 125 of the code of criminal procedure where she can be entitled to get the maintenance only if she is not remarried.

Caselaw: Mohd. Ahmed Khan v. Shah Bano Begum Case

This case talks about the situation where the husband gives divorce to his wife when she was 68 years old and has five children. Under Muslim law, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. The Shah Bano Begum files a case and claims the maintenance under Section 125 of the Code of Criminal Procedure where she gets successful and gets the maintenance from her husband on reasonable ground and the family of the husband after his death. After this historical judgment of Shah Bano Begum, the Muslim Community started criticizing the court of law as according to them the judgment directly affect the provision of their law. According to their law, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But the government at that time under the pressure of the Muslim community brings a law which directly overrules the judgment. The government had approved The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. Finally, all the case pending in the court of law related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

Caselaw: Danial Latifi & Anr vs Union Of India

In this case. The husband had filed a petition against the order of the Madhya Pradesh High Court where he was asked to pay maintenance to his wife as per Section 125 of the Code of Criminal Procedure. He submits the fact that he paid the Mehr amount as well as the maintenance to his wife until her iddat period. Now as per Muslim law, he shall not be liable to pay any amount as maintenance to his wife. The Supreme Court gives the judgment in husbands favour as their case comes under The Muslim Women (Protection of Rights on Divorce) Act, 1986 and the order of the High Court of Madhya Pradesh were as per the Section 125 of the Code of Criminal Procedure so the order of the High Court is not valid.

Comparison of Maintenance of Wife under Hindu and Muslim Law

A Hindu woman is said to enjoy more rights than Muslim women. According to Section 18(1) of Hindu Adoption and Maintenance Act, 1956. A Hindu wife is entitled to get the maintenance amount from her husband until she dies. As per Section 125 of the Code of Criminal Procedure, only a Hindu Married woman either take divorce or given divorce by her husband and who hasn’t remarried any other man is entitled to get maintenance. A married woman who has refused to live with her husband as he is liable for desertion or cruelty or is suffering from leprosy or liable for bigamy or convert his religion without the consent of the wife can claim a special allowance under this Act. But, under Muslim Law, the divorced women does not the right to claim maintenance after the period of iddat and gets the amount of Mehr only and after The Muslim Women (Protection of Rights on Divorce) Act, 1986 came in the picture the Muslim Woman cannot claim maintenance under Section 125 of Code of Criminal Procedure.

Conclusion

As per Hindu Adoption and Maintenance Act, a person is entitled to get maintenance are wives, widow daughter in law, child, aged parents, etc. and As per Muslim Law, the people who are entitled to get maintenance are wives, young children, parents, another person within the prohibited degrees. Under Muslim law, Prior the divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. But the judgment was given in the Shah Bano from the family of the husband after his death case enables divorced women to get maintenance from her husband on reasonable ground and But after the judgment of the case, The government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and get the amount of Mehr only. Finally, all the case which are pending in court related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to highlight the rights and duties under parental and quasi parental authority.

INTRODUCTION

Whenever there is a violation of any legal right or duty and legal damages have incurred the sufferer may bring action against the other under law of torts.

For this, the essentials must be present. However, there are various exceptions to this that include parental and quasi parental authority.

Parental Authority

As per the Hindu law, father and mother are the natural guardians of children. A guardian is a person who takes care of minor and his property. From the birth of a child, parents acquire the rights and duties of a guardian by a natural relationship. It’s the duty of the natural guardians to maintain the child. There is equality of rights for both the parents in respect of children’s custody, education, control, correction and chastisement and upbringing.

A child’s future is in the hands of the parents. There are various restraints that need to be followed as per the necessities of society and for this, parents are given authority to control and correct them by either kind of force and such people are protected under the law of torts only if they act in a reasonable manner and for a good cause. However, what is deemed to be reasonable by the judges or jury changes as per time i.e. there is not an exact manner defined.

Rights under Parental Authority

There are various rights and duties under parental authority:

1) Right to custody: Custody is of two types. First is legal in which there is a right to make decisions for the child and another is physical which means the right and duty to provide housing and care to the child.

2) Right to determine the religion: Parents have the right to determine which religion the child will profess.

3) Right to education: It is the duty and right of the natural guardians to provide the necessary education to their child and help him in making his future bright.

4) Right to control: The parents can also restrict the movement of their minor child if they find it unfit for him and can also take actions against him in a moderate manner.

5) Right of supervision: The parents have the right to supervise and advise their children in life so they can do the right thing.

6) Right to protection and health care: The parents have the right and duty to protect their child from anything harmful and to provide basic healthcare.

6) Right to reasonable chastisement: Chastisement literally means a severe criticism or punishment. The parents have the right to punish the child in a reasonable and moderate manner.

Quasi Parental Authority

The Latin term “loco parentis” means ‘in the place of parents’. The people in loco parentis are called quasi-parents. However quasi parental authority comes with less rights and duties than parental authority. Parents when not in charge tend to delegate their authority to someone else who can take care of their child. For instance in schools, the parents delegate their authority to teachers and principal and they can take decisions for the child.

However, the law is that the parents and quasi parents both can administer punishment on a child for his good or to prevent him from hurting himself or any other person. They have lawful control over the children and can correct him at every point. Parents may also delegate their authority to a babysitter who for a particular time period takes care of the child, she acts as a quasi parent. Similarly, when the child is in the school the parents are deemed to delegate their responsibility to teachers.

Such kind of authority only allows the use of reasonable and moderate punishment but if it exceeds a limit the accused may, therefore, be liable for civil or criminal contempt.

Position under England and India

In England, a parent or quasi parent who has the lawful control or charge of a minor can correct the child and has the right to administer the punishment on the child as per the Child and Young Person’s Act,1933.

In Cleary v Booth ((1893) 1 Q.B. 465) the defendant was a school headmaster. Two boys fought on the way to school and the defendant administered punishment on them. The headmaster was held liable for assault and battery. However, it was held that he was not liable as the authority of teachers is not only limited to school premises but also outside the school. As per the jury, “there is not much opportunity for a boy to exhibit his moral conduct while in school under the eye of the master, the opportunity is while he is at play or outside the school”.

It is obvious that at home the parents have the control of children and at the school the teachers and principal but the main question is who is in charge between the school and house. It can be rightly said that here the authority is delegated to the teachers. They can not only correct them for their wrongs but can also administer punishment upon them. Hence in the above case, the boys fought out of the school and the headmaster had the authority to punish them.

In another case Eisel v Board of Education (1991), a student threatened school counsellors to commit suicide but they failed to inform the parents. This negligence by not providing knowledge to the parents was a loophole and since the school was in authority to control the child it should have informed the parents about the threat as said by Maryland High Court.

Hence as per the law in England the authority of school master is same as that of parents and he represents the parents in the matter of correction as held in Regina v. Hopley (1860) 2 F & 7 202) and Fitzgerald v. Northcote ((1865) 4 F & F 665).

In India, it has been held several times that a teacher plays a very important role in a student’s life. It has been well recognised over the years that quasi parental authority of a teacher comes with the inherent right to take disciplinary actions against the pupil and has been ingrained in the country’s philosophy as said in R.C. Thampan and Ors. v The Principal Medical College (AIR 1979 Ker 171).

In Laxmikant Shri-pat Bhandara v. C. R. Gerrard (AIR 1947 Bom 193), it was held that the schoolmaster has the power of chastisement over a pupil committed to his charge, arising from delegation by the parent or guardian.

The position and rights of a teacher have been deeply explained in the case of Sankunni v. Swaminatha Pattar. Venkatsubba Rao, J. said that the teacher cannot get away with the punishment with the excuse that the punishment has left no marks on the body, in one or another way if the punishment could have caused harm to life and limb of the child the teacher will be accused under the law of torts. However, in the above case, the 2 smacks given by the defendant were not held to be violent and were considered reasonable.

CONCLUSION

Hence it is clear that parental and quasi parental authorities come with certain rights and duties that need to be performed in the welfare of the child and to ensure there is a good upbringing of the child. With these rights comes the responsibility to show the child the right path and to correct him either by words or chastisement in a moderate manner. But this can’t be the excuse to skip the criminal or civil liability like assault, battery etc. The test of reasonability depends upon the courts. The punishment administered should be of such nature that a prudent man would have considered right.

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This article is written by Preeti Bafna doing BBA L.L.B from Unitedworld School of Law, Karnavati University.

While understanding the rights and duties it is important to know the concept of bailment. A ‘bailment’ is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. (Section 148 of the Indian Contract Act, 1872)

INTRODUCTION

BAILOR: A bailor is an individual who temporarily give up the possession but not ownership of a good or other property under a bailment. The bailor gives the possession of the good or property to another individual, known as the bailee.

BAILEE: A bailee is an individual who gains possession, but not ownership, of a good or other property. The bailee is also known as a custodian, is given with the possession of the good or property by another individual known as the bailor.

This relationship, in legal terms as a bailment, is based on a contractual agreement between the bailor and the bailee. The bailment specifies the terms and purpose of the change in custody and is outlined in writing such as a receipt or chit.

RIGHTS AND DUTIES OF BAILOR

Right to enforce bailee’s performance: The bailor delivers goods to the bailee for some specific purpose, and in case of non-gratuitous bailment, the bailor has an elemental right to achieve that purpose or obtain the benefit through the latter.
Right to claim damages: In the case of bailment, the bailor has the right to claim for damages against the loss, if any, caused to the goods bailed due to the bailee’s negligence or misconduct.
Right to claim compensation against unauthorized use of goods: If any third person does some injury to the goods bailed or deprives the rights of bailee of the use of the goods, the bailor may file a suit against the wrong-doer, and recover compensation from him.
Right to demand return of goods along with accretion to, if any: The bailor enjoys the right to have the goods bailed delivered back to him in a safe condition and after the time of bailment has expired or the purpose behind the bailment has been achieved. And, in the absence of any contrary term in the contract, the bailor is also entitled to any accretion to the goods bailed if it occurred while the goods were in the study of bailee.

DUTIES OF BAILOR

Duty to disclose faults: In the case of gratuitous bailment, the bailor is expected to disclose all the defects to the bailee known to him and which would get in the way with the use of goods bailed. A non-gratuitous bailment carries a greater responsibility on the part of the bailor. He will be liable even if he was not in the know of the defects.
Duty to repay bailee’s expenses: A bailor is bound to repay to the bailee expenses incurred by him for work done on the goods received under conditions of bailment, and in which he is not receiving any remuneration or deriving any benefit.
Duty to indemnify the bailee: The bailor is bound to make good the loss suffered by the bailee that is in excess of the benefit derived, where he had delivered the goods without a reason and compelled the bailee to return them before the expiry of the period of bailment.
Duty to compensate bailee for breach of warranty: In every contract of bailment warrants the bailee about the bailor’s title being defect-free. And, if bailee subsequently suffers any loss by the reason of the bailor’s title being defective, it is the duty of the bailor to compensate the bailee for breach of warranty.
Duty to claim back the goods: The bailor is bound to accept the goods returned by the bailee in accordance with the terms of bailment. If he refuses or fails to accept back the goods, if offered at a proper time and at a proper place, without any reasonable ground, he will be responsible for any damage to the goods and not the bailee.

RIGHTS AND DUTIES OF BAILEE

Right to compensation: The bailor is responsible to the bailee for any loss which the bailee may sustain and the bailor was not entitled to make the bailment, or to give directions respecting them. If the bailor has no right to bail the goods or to give directions respecting them and consequently the bailee is exposed to some loss, the bailor is responsible for the same.
Right to expenses or remuneration: The conditions of the bailment, the goods are to be kept, or to have work done upon them by the bailee for the bailor, thus the bailee is to receive no remuneration, the bailor will have to repay to the bailee the necessary expenses incurred by him for the purpose of the bailment.
Right of Lien: If the bailee lawful charges are not paid he may retain the goods. So the right to retain any property until the charges due in respect of the property are paid is called the right of lien. The Supreme Court cited the following passage from HALSBURY’S LAWS OF ENGLAND as to the nature of this right.

DUTIES OF BAILEE

Duty of Reasonable Care: In the cases of bailment the bailee is bound to take as much care of the goods bailed to him as an ordinary and prudent man of sound mind.
Duty of unauthorized use of goods: The bailee should use the goods bailed to him strictly in accordance with the conditions of the contract of bailment. If he illegally uses the goods bailed to him, the contract of bailment becomes voidable at the option of the bailor.
Duty of not to Mix the goods bailed with his own goods: The bailee must keep the goods bailed separate from his own goods. He should not mix his goods with another without any prior permission of the bailor.
Duty of not to set up an adverse title: The bailee holds the goods on behalf of the bailor. So he has to return them to him. He cannot have the right of the bailor as to the ownership of the goods.
Duty of Return the goods: The bailee should return the goods bailed to the bailor on the expiry of the period on the fulfilment of the object for which the goods were bailed. The goods must be returned according to the directions of the bailor. If he fails to do so, he is responsible to the bailor for the loss, even if it arises without his negligence.

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Lawschole is a forum where law students can share thoughts, seek opinions and advice, and learn something new from other members of the forum. From the beginning, Lawschole has been driven by the interests and involvement of our incredible and engaged law students. We are a growing law-student forum focused on improving our collection of law school opportunities, and enhancing the forum experience. We are a great resource, offering opportunities for students to be active in a variety of topics and to engage with each other in an interesting and safe online environment.

The internship opportunity will be a great learning experience for the law students to learn the practical aspect of law along with the academic curriculum taught at the law schools. The applicants may mention their area of interest in order to have a focused learning experience in a specific field they are interested in.

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Law interns will be required to complete the assignment based internship given during the period of the internship with us. The applicants may mention their area of interest in order to have a focused learning experience.

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This article is written by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light upon currently existing laws regarding surrogacy in India, along with its impact on surrogate mothers as well as the institution of marriage.

INTRODUCTION

The reproduction process is considered to be a fundamental element in the sustenance of life, and for good reason. Not only does it perpetually maintain life on Earth, but the birthing of a child is also considered to further one’s heritage and familial legacy. In India, a country where the institution of marriage is considered holy matrimony and bond within the family are particularly emphasized, the birth of a child is not simply a matter of necessity, but one of celebration.
However, not every couple bound by marriage is biologically or medically eligible to birth a child. In such a case, they are free to opt for other methods of expanding their lineage: one such method being Surrogacy.

What is Surrogacy?

Surrogacy is a legal arrangement in which a woman agrees to bear the child for another person. Such a woman is called a surrogate mother and the person with whom she enters such arrangement is deemed to be the child’s parent after its birth. Medical disqualification is not necessary for opting surrogacy, as it can also be pursued by a single parent, or in case there is high risk in undergoing pregnancy for the intended mother. Compensation of monetary value may or not be involved, and the legality of such practice of commercial surrogacy is dependent upon grant of sanction by State.

There are two forms of this practice:

Traditional Surrogacy: In this process, sperm of either the intended father or a donor fertilizes the surrogate’s egg. This can be done either naturally or artificially, and in cases where the intended father’s sperm is used for inseminating the surrogate, the child thus born is genetically related to both the intended father, as well as the surrogate mother.
Gestational Surrogacy: The fetus is not physically linked to the pregnant mother in gestational surrogacy, which is often referred to as a gestational carrier. Instead, the embryo is created through in vitro fertilization (IVF), using the intended parent or donor eggs and sperm, and then transferred to the surrogate.

Surrogacy (of the latter type, especially) has become a prevalent practice in India, with a large number of parents willfully choosing this method of furthering their family. However, there has been a slight gray area in its implementation in the legal framework of the nation. This article shall strive to elucidate the practice’s position in law, as well as its impact on the institution of marriage in India.

How does Surrogacy Affect the Institution of Marriage?

While the practice of surrogacy is mostly favourable for the intended parents, the same may not be easily said about the woman voluntarily deciding to take up the role of being a surrogate. Especially in the current legal scenario, where being married is a prerequisite for qualifying as a surrogate, there can be a significant effect on the married life of the surrogate mother.

In order to ensure the highest possibility of a successful surrogacy, the surrogate may be prescribed fertility medication. As a result of that, the intimacy between the surrogate and her partner shall suffer temporary reduction to prevent a surprise pregnancy between them.
Even though the child is not her own, the surrogate, along with her partner, shall be required to remain extra cautious about the health of both child and surrogate mother. Such application of care on the partner’s part can be just as difficult to attain as it shall be necessary.
Owing to human nature and everything it entails, it isn’t a far-fetched assumption to think that the partner may not entirely support the practice, to begin with. The idea of their spouse carrying another person’s child may not comfort them, which may also, in turn, hamper the surrogacy process.
In India, the institution of marriage is not always an independent establishment, such that marriage in the country is often considered to be a union between families. Therefore, volunteering to become a surrogate mother for another person may not be accepted especially by orthodox & conservative families.
Apart from the aforementioned, even if the rest of the surrogate’s family offers support, there shall be need of reserving herself from usual family activities to ensure the successful birth of a healthy child.
Surrogacy may also delicately impact any children the surrogate may have.

As such, it’s a fair assumption to make, that the life of a surrogate mother isn’t always favourable and she may encounter problems outside her family as well. To that effect, however, the landscape of surrogacy laws in India stands to be evolving seemingly for the better.

Surrogacy in India

In cases of surrogacy where monetary compensation is involved, the practice, as mentioned above, is termed as commercial surrogacy. The catch about this particular construct is that not every jurisdiction permits it freely, and because of such restriction, couples pursuing the practice determine having the procedure conducted in a country that permits commercial surrogacy. It is due to this reason that, prior to 2008, India was considered to be the “surrogacy capital of the world.” Commercial surrogacy was being carried out briskly in India without any government attempts to create a legislative regulatory framework. In 2005, the Indian Medical Research Council (ICMR) formulated some guidelines. However, there was no statutory basis for these guidelines, and surrogacy remained an unhinged practice in the Indian legal landscape. However, there was a brisk change in the implementation of surrogacy laws in the year 2008 when the Supreme Court was called upon to deal with a case involving surrogacy: the case of Baby Manji Yamda v. Union of India, which applied solely to securing travel documentation for a baby conceived and delivered in India through commercial surrogacy with Japanese parents. Although the question of the legality of commercial surrogacy was not raised under Indian law, the Supreme Court made an observation that commercial surrogacy is legal in India. The timing of the aforementioned decision coincided with the 2008 Assisted Reproductive Technology (Regulation) Bill’s introduction, but no steps were made to bring the 2008 Legislation to Parliament. This prompted the Law Commission to suo moto address the issue of research surrogacy, culminating in its 228th Report submitted in August 2009 where the Law Commission mooted the proposal for a revised law to regulate the surrogacy process in India. In furtherance of such proposal, a revised bill was constructed which also availed no legal attention. A similar occurrence prevented surrogacy laws to viably fabricate in the nation in 2016, when the Surrogacy (Regulation) Bill was conceived but failed to pass in the Rajya Sabha. In the meantime, however, a ban on foreign intended parents was issued by law and it came as the axiom to viable surrogacy legislature in India. Finally, in 2019, the Bill of 2016 was re-introduced and passed in 2019 with the following impositions:

Commercial Surrogacy was rendered free of its legal identity and became an illegal practice.
The nation only allowed the practice for infertile couples that were in need of the child.
Validation of marriage of at least five years along with a doctor’s certificate legitimizing claim of infertility was deemed as necessary objectives required to pursue surrogacy.
Surrogate mothers were restricted from undergoing surrogacy more than once, with the woman being eligible to act as a surrogate only if she happens to be married with at least one biological child, while such woman is also a close relative of the intended parents.
Homosexuals, single parents and live-in couples were banned from opting for the procedure of surrogacy.

Are strict Surrogacy Laws necessary?

Like all international surrogacy in less developed countries, there is less protection available for intended parents and surrogates — and it has led to harmful results. When Indian surrogacy first became a booming industry, no regulations were in place, and reaction to unsafe and unethical practices developed.

During this time, the women who opted to become surrogates in India were subjected to unethical treatment, poor living conditions and exploitation. Indian surrogacy agencies effectively ran “baby factories” where Indian women were forced to live until they gave birth to the intended parents’ babies, in order to keep up with the demand from internationally intended parents. Moreover, Indian surrogates received only a fraction of the expenses intended for parents to pay to the surrogacy agency; as a result, the surrogates were commonly exploited in commercial surrogacy. For this financial gain, their poverty and lack of education constantly drew them back into the surrogacy process, and their health declined as they effectively became “baby machines” year after year. Also, during this emotional journey, they didn’t receive the kind of support services they needed for themselves and their family.

Constitutional Validity of current Surrogacy Laws

Restricting surrogacy to a married couple seriously impairs the rights of single persons, LGBT persons, and persons in living relationships; but in retrospect, such classes of persons adopting a child are not prohibited. Such a limitation, however, also militates against the equality principle enshrined in Article 14 of India’s Constitution. While legislation can make room for reasonable classification, such classification must bear a nexus with the object which the legislation seeks to achieve.

The primary purpose of the 2019 Bill is to prevent unethical practices arising from India’s surrogacy services. Allowing a married couple to have surrogacy rights to the exclusion of all others carries no connection whatsoever with this piece and therefore, the aforementioned provision begs question of befitting constitutional validity. Moreover, there is no definition in the Bill of 2019 of the term ‘close relative,’ which the surrogate mother is mandatorily required to be.

There is an imminent need for there to be a more suitable, well-formed legislation for surrogacy in India; one that viably and without exception furthers public interest without breaching the limit of constitutional validity.

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