INTRODUCTION

Sedition law got its existence during the era of 1590 in England. It became a part of Indian statute by the arrival of British rule and got added to Indian penal code, 1870 as section 124A. But the visage of the law got redefined once when the case of sedition was charged on Bal Gangadhar Tilak, where the judge presiding over the trial widened the scope of law, equating disaffection to dis-loyalty. Again in 1922, Mohandas Karam Chand Gandhi was charged with sedition for showing disaffection towards British raj by instigating people against their rule via non- violent method.

Later, when India attained its freedom during 1947, there was wide discussion taking place on right to freedom; the use of sedition was debated. Personalities like Sardar Vallabhai Patel, Rajagopal Achari had supported the idea of sedition. But on the other hand individuals like KM munshi and Somnath Lahri was against the law of sedition. Eventually, the idea of sedition got abrogated from constitution but still exists in Indian penal code, 1870.  The seditious charges are still applied on people in India but, in Britain where the law got its origin got scrapped in 2009. Case of Arundati Roy, Kanaihya Kumar, Aseem Trivedi, Umar Khalid, Dhaval Patel etc. are some examples. The debate of whether sedition is good or bad is still on going.

DEFINITION OF SEDITION

Sedition is defined as an apparent act like speech, organisation which can led to rebellious activities against the established order. It can also include demolition of constitution and can also often led to incitement of serious mutiny against the authorities. Sedition can be any type of furore even if it is not aimed at direct violence against the law. Seditious words in written format is called as seditious libel. A seditionist is defined as a person who is engaged in the interest of sedition.

SEDITION UNDER SECTION 124 A OF INDIAN PENAL CODE , 1870 : PROVISIONS AND PUNISHMENT

The term sedition is defined under 124 A of IPC as:

            “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government shall be punishable with life imprisonment”.

It is considered as a reasonable restriction on freedom of speech which was drafted by Thomas Babington Macaulay. It is termed as a high value crime in Indian penal code. It is a cognizable offence in which the offender can be arrested without any warrant and it also allows the police to start investigation without any permission from court.  Sedition is defined as disloyalty towards the authorities. The punishment available for the crime of sedition are it being a non- bail able offence, three years of imprisonment to imprisonment for life added with a fine. The person accused with the crime of sedition cannot apply for a government job or have to live their lives without passport and have to attend the legal proceedings whenever necessary.

SEDITIOUS ACTIVITIES

An act is termed as seditious if it satisfies the following aspects:

• It should instigate hatred or discontent against the government.
• It should results in violence or public insurgency.
• It can include seditious libel: written or spoken sedition which includes posters etc.
• Raising of slogans against government.
• A speech of an individual that incite violence and disturbs public order.

DEFENCES AVAILABLE FOR THE LAW OF SEDITION

The possible defences that are available for sedition are:

1. He/ she didn’t tried to attempt disaffection or disloyalty.
2. The disaffection is not against the government.
3. He/she is not the one who made the remarks against the Government.

SEDITION AND RIGHT TO FREEDOM OF SPEECH OF INDIAN CONSTITUTION

Article 19 (1) (a) of the Indian constitution states that:  “all citizens shall have the right to freedom of speech and expression”. It also provides the right of a citizen to express their views through any modes like:  writing, films, pictures etc. it is deemed as a basic, fundamental right of every citizens of the country. But these rights are not absolute and can be restricted by the norms of reasonable restrictions under article 19(2).

  The sedition law was formulated during the era of British to impose restriction on people to not to speak against government policies. Many famous personalities like Bal Gangadhar Tilak. Mahatma Gandhi etc. was charged with the law of sedition. Currently there are various issues in which the law of sedition was misused to curtail people from excersing their right to speak against government policies. There is always an overlap that exists in case of sedition and article 19 (1) (a).

Long years back, during the drafting of fundamental rights, Sardar Vallabhai Patel urged to include sedition as a reasonable restriction under article 19 (2). Due to the majority opposition, the sedition charges were excluded from article 19 (2).  Currently there are over 8 reasonable restrictions. They are:

1. Sovereignty and integrity of the country.
2. Public order.
3. Contempt of court.
4. Defamation
5. Friendly relation with foreign states.
6.  Decency and morality.
7. Incitement to violence.

From this we can learn that sedition is not a ground for restriction against the right of free speech. But at the same time it can bring a curtail to our right of free speech if it incite public order. Article 124 A of Indian penal code, 1860 states that:

 “Any person by words either spoken or written or by signs or visible representation or otherwise bring or attempt to bring into hatred or contempt or execute or attempt to excite disaffection towards government established by law in India”. From this we can perceive that sedition will only be charged on a person, if his/ her words incite violence and disturbs public order.

CASE LAWS

1. Shreya singhal v. union of India [1]: this is the landmark case in the history of sedition law where the word “speech” was defined. In this case, Supreme Court stated that through you spoken or written words can propagate whatever they want to but doesn’t incite people into violence. If any such act had led to affect the peace and tranquillity of public then the person who committed the offence will be charged with sedition.
2. Kedar nath Singh v. state of Bihar [2]: in this case the constitutional validity of sedition law was questioned. Here, kedar nath Singh, former communist party leader of Bihar conducted a speech and he was convicted by first class magistrate on sedition charges. And the appeal before Supreme Court stated that the sedition law curbs the right to freedom of speech. In this case Supreme Court ruled that a person can say or write whatever he/she like about Government but with a condition of not inciting violence or not without disturbing public tranquillity.

CONCLUSION

Sedition law, a law which is over 150 years old are being successfully used by our successive Government. If we are taking a year in account, there are many cases reporting but only few of them reach the conviction stage. Many cases including Disha Ravi, Arundati Roy etc. was misused by police. Right to freedom of speech being a fundamental right will have an upper hand over sedition law. But if it ever curtails a person’s right to exercise their fundamental right, then the law should be scrapped.

ENDNOTES

1. AIR 2015 SC 1523
2. 1962 AIR 955
3. https://indiankanoon.org/
4. http://www.newindianexpress.com/cities/delhi/2017/apr/28/police-question-jnu-students-in-kanhaiya-sedition-case-1598800.html
5. CONSTIUTIONAL LAW OF INDIA BY DR. JN PANDEY

This article is written by Nourien Nizar student at Government law college, Ernakulum, Kerala.

INTRODUCTION

India Is a country with a population of over 130 crores people spanning through varied culture and heritage. It is home to many religions and gives due respects to a person’s choice to propagate the religion of his/her choice.

People hailing from all religions and cultures have different perspective, Ideas and feelings hence there are various Social Institutions that are guided by the views of different groups in the Society.

Marriage is one of the social institutions that is given abundant prominence, there are various laws governing marriages, some of them are codified such as the Hindu marriage act while the other such as the Muslim marriage law are not codified.

However a major dilemma that ought to be considered is the still prevalent perception of the people against people of different groups, caste and wealth, due to which a persons’ decision in a marital situation is often altered.

LAWS GOVERNING MARIAGE

While considering the Hindu marriage act[i], It only states that in order to solemnize a marriage under the act neither party must have a spouse at the time of marriage, both the parties must not be if unsound mind while giving a consent and  must be of the age of majority

A Muslim marriage however under the Muslim marriage laws[ii] is a contract unlike a sacrament in Hindu, and the essentials required for a valid marriage are similar and includes the need for a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other party provided that the consent thus provided is a free consent. It also requires the parties to be competent and does not require for any writing or formal ceremony.

There are other laws such as the Christian Marriage act and the Parsi marriage and Divorce act which governs the institution marriage in their respective religions

INTER CASTE OR INTERFAITH MARRIAGES

While all these laws highlight the need for a free choice on behalf of the parties it is often found to be contradicted when it comes to being practiced and is more prominent in the case of Inter Caste or Interfaith marriage, Although no religion states to be against Inter-caste marriages, there are endless cases regarding acts of violence and harassment against such couples.

KHAP PANCHAYATS

“Khap Panchayat”[iii] as it is known in north India and “Katta Panchayat” as it is known in Tamil Nadu, is a group of people of a community who acts as a quasi-judicial system to take decisions on acts that take place at a particular region which are deemed offensive and It is often found to impose harsh punishments based on old customary practices.

HONOR KILLING

Honor Killing in simple terms refers to the killing of a male or female for the reason, that their act in some way has brought shame either to their family or to the caste or towards their religion, such acts often include inter caste or interfaith marriages, illicit relationship with other men, loss of a women’s virginity before marriage, etc.

Although Honor killing does not have a separate section in any of the acts criminalizing it, however the acts of the IPC are sufficient enough to punish such offenders.

They can be booked under Section 300 of murder and will be punished accordingly

In the case of Bhagwan Dass vs State (NCT) Of Delhi[iv] where a man was convicted for murdering his own daughter for leaving her husband’s and staying with her Uncle stating that she had brought shame to the house, The Supreme Court upheld the decision of the High Court convicting the girl’s father and stated that the act of Honor Killing is nothing but barbaric.

FUNDAMENTAL RIGHTS OF PEOPLE TO CHOOSE THEIR PARTNER

Article 21 in The Constitution Of India 1949 refers to the “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”[v].

The same has been held by the court in the case of Shakti Vahini vs Union Of India and states that a person has the right to choose their partner[vi]

CASE LAWS REGARDING RIGHT TO CHOOSE PARTNER

In the case of Lata Singh vs. State of U.P[vii] where a girl filed a petition against her brothers for violence against her husband and his family on the grounds of Inter caste marriage, the Court held that when a boy/girl attains majority he/she has the right to make choices and thus have the right to choose to marry whomsoever he/she likes even though the family is not satisfied by it and the most that the family can do is to cut any connection with their son or daughter. The court also directed the police to protection to such couples.

Further in the case of Salamat Ansari and others. Vs. State of U.P. [viii]. the court while considering a petition to quash an FIR filed against a man alleging him of various offences under IPC including section 366 for Abduction, The court in this case considering the submissions of the girl that it was with her will that she went to stay with the petitioner and considering the age of the girl. The Court upheld her liberty of the decision and acquitted the boy of all charges.

In a recent Judgement by the Allahabad High Court, the court while deciding a case concerned with interfaith marriage, reiterated that It cannot be disputed that two adults have right of choice of their matrimonial partner irrespective of their religion and nobody and even their Parents cannot object their relationship.

CONCLUSION

India as a country has come a long way in terms of ensuring equal and fair rights to its people, and creating good laws to govern the people. This is one step closer to this allowing people to choose their partner denotes the liberty and freedom of expression in the society.

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[i] Hindu Marriage Act, 1955, s. 5.

[ii] Muslim Marriage laws;  https://www.indiafilings.com/learn/muslim-marriage-act/#:~:text=The%20Muslim%20Marriage%20Act%20was,marriage%20of%20their%20free%20wills.

[iii] “Supreme Court declares it illegal for khap panchayats to stall marriage between consenting adults”, Times of India, available at (https://timesofindia.indiatimes.com/india/supreme-court-declares-it-illegal-for-khap-panchayats-to-stall-marriage-between-consenting-adults/articleshow/63476839.cms).

[iv] Bhagwan Dass vs State (Nct) Of Delhi, (2011)  6 SCC 396.

[v] The Constitution of India, art. 21.

[vi] Shakti Vahini v Union of India, (2018) 7 SCC 192.

[vii] Lata Singh vs. State of U.P (2006) 5 SCC 475

[viii] Salamat Ansari and others. Vs. State of U.P  (2020) SCC OnLine All 1382.

This article is written by Govind S Nair, a 2nd year BBA LL. B student at VIT School of Law, Chennai. This article expresses the right of a person either boy/girl to choose their partner for marriage and the present situation regarding the same in the Country.

INTRODUCTION

The word “Nep” of nepotism is derived from ‘Nepote’, a 17th-century variant of the Italian word ‘nipote’ which means “nephew”. Nepotism is a term that began to be used in English for the exhibition of favouritism or biased preference to any blood relative or friends by someone in a position of power and can be described as an act where a person gets unfair advantages over the others for the mere reason of his kinship and amicable association with people who wield enough power and retain status to prevail over the hierarchical structure of any particular type of domain.

^[1]India’s deep-seated history of unequality and a tapering welfare state have engraved this country’s name as one of the most unequal societies in the world, with the top 1% of the population holding four times more wealth as compared to the bottom 70%. As members of such a society, we have witnessed time and again, the prevalence of such partialities; the frustration and disappointment are feelings that never wanes, not even with time. Nepotism is not only considered a social evil but also a regressive and fatal approach towards the progress and transformation of India. Additionally, the trend is inclusive not only of Bollywood but is subsisting in every other sphere that accelerates the growth and expansion of the country. For instance, Employment, Politics, Judiciary, the Film industry, Organizations, Family Business or otherwise, etc.

Corruption goes hand in hand with nepotism. ^[2]Studies showcase and reflect the negative impacts of nepotism in biased decision-making, unfair treatment which incurs losses and affects the company’s performance in the long run. Diminishing the potential and self-confidence of the people and making them feel disheartened, demotivated, alienated due to the obvious stigma surrounding it are few of the outcomes of such disparity. Furthermore, it not only hinders competition but also stunts innovation and as such, weakens organizations and will potentially hamper the economic development of India as a whole.

NEPOTISM IN JUDICIARY

^[3]Although the Indian Judiciary is the only organ of the state that selects its candidates in a hush manner and is not elected so it stands independently without being held accountable to the Republic for its judgments and is only responsible to itself. An Allahabad High Court Judge Rang Nath Pandey wrote a letter to the Prime Minister, averring “nepotism and casteism” in the appointment of judges to the High Court as well as the Supreme Court. He even raised concerns regarding judgments delivered by judges benefiting from Nepotism to be arbitrary in nature and further alleged that it was unfortunate that the basis for the appointment of judges was “kept under wraps”.

^[4]Several High Courts and Supreme Court advocates and judges are alleged to have been appointed by the employment of casteism, nepotism, as well as favouritism. The allegation is based on the ground of the appointment process called the collegium which legally binds the President to heed the recommendation of the names of judges or advocates to be appointed or promoted to a tier higher or at the apex in the judicial hierarchy, putting a dent in the advocacy of accountability and independence of the Judiciary.

In the legal profession, nepotism also finds its way through Cronyism, where if an individual belongs to a certain chamber or is an ex-junior or intern, he/she has easy access to certain posts or cases by way of preference given through recommendations.

NEPOTISM AND POLITICS

^[5] The statement that ‘politics in India is not a vocation but a family business’ is more than accurate with the caste system still at the centre of India’s thriving democracy. Difficulty arises when one tries to completely dissever the fabric of family, and status-based discrimination. Let’s suppose, Meena’s father is a member of the Lok Sabha, then she might regard the Parliament as her heirloom. During the election season, parties tend to hand out tickets to relatives, and family members as though it is a family inheritance. The concept of nepotism and favouritism is rampant in the country, no matter the party. The Congress Party, run by the Nehru-Gandhi dynasty for more than sixty decades is one example, Farooq Abdullah and his son Omar Abdullah is another example of this infested disease that has now found its roots in the working of internal politics in India.

The system of joint families in India worsened Nepotism. With a nuclear family at play, a power position will be recommended or favoured to the wife, children, and straggling extended members of the family; uncle, aunty, nephews, sons-in-law, etc and will never be segregated fairly to deserving candidates just because blood is considered to be thicker than water. Also, for many, politics is simply a tool of self-enrichment as well as a gateway to corruption instead of utilizing their status of power and wealth for the betterment of the country. Money made out of corruption entices greedy individuals with an immoral, unscrupulous and deceitful disposition.

IMPACTS OF NEPOTISM

1. ^[6]When the internal spectrum of politics of a democratic country is filled with hereditary succession, one of the biggest affects it can have is the potential loss of faith in democracy. Dynastic governance not only demeans the democratic principles but also questions the legitimacy of democracy which can consequently result in extremist anti-government or state rebellions and movements like Maoist and Naxalite.

2. While Corruption is the outcome, nepotism is the instigator. The parasitical relationship between nepotism and corruption can be witnessed in the corruption perception index where almost all third world countries with hereditary governance perform with mediocrity.

3. The governance system of a country is affected as the paucity of distinguished administrators and policy makers at every stage and sector of hierarchy makes good governance impossible as top-notch human resources is a prerequisite of good governance.

4. The quality and quantity of leaders leading a developing country in various spheres such as socio-economic, political, entrepreneurial, religious,  global etc. deteriorate due to the fact that candidates and members of such bodies are being selected/recommended through favouritism, nepotism and bribery, the consequence of which is a hindrance to the overall progression of the country.

The other negative effects of nepotism also include the negation of talents, merits, abilities, efficiency and the consequent diminishing of self-confidence, integrity, and moralistic values. The abrogation of rules, neglecting the prevalent laws and sweeping of morality under the rug greatly affects the general credibility of public servants, breeds cynicism among the masses and leads to a perilous crisis to the well-being of society and reduces the chances of sustainability of democracy in the long term.

MEASURES TAKEN TO MODERATE NEPOTISM

^[7]As an act towards curbing nepotism, favouritism and corruption, the Central government by order of the Department of Personnel and Training (DoPT), headed by the Prime Minister, clarified the meaning of “members of family” under the Central Civil Services (Conduct) Rules, 1964. As per the rule of CCS (Conduct) Rules 4(1), the position of power or influence shall not be utilized by any Government servant, directly or otherwise, to secure employment for any of his family members in companies or firms. In addition, according to rule 4(3), “members of family” includes any person in relation to a government servant—spouse, children, parents, siblings, or any person related to them by blood or marriage whether dependent or not.

In pursuant of the recommendations by the collegiums of the Kerala and Allahabad High Courts, the Supreme Court in ^[8]consultation with the SC collegium and taking into account issues with regards to the secretariat, transparency, and complaint mechanism, directed the Centre to finalise the existing MoP and emphasized three key issues. Firstly, that the HC collegium should forward a ‘wider pool’ of names for the purpose of inclusivity and broader choice. Secondly, it emphasized the requirement for a stringent method to scrutinize the names forwarded by the HC collegium: transparent, objective and rational method is the goal. Thirdly, sources stated that the government has also deliberated the notion of setting up a permanent secretariat of the collegium for the purpose of continuity concerning the appointment of judges, even after changes in the composition of a collegium pursuing the retirement of sitting judges.

CONCLUSION

Though the concept of nepotism is unfair, redundant and unfortunately remains to be prevalent in every part of the world in variant subtleties, there are several facets to be scrutinized when it comes to examining the unfair advantages acquired through nepotism. For example, out of the five candidates who were hired to work in a well-known firm, one was related by blood to the director of the said firm. Despite fair trial and interview, without an ounce of evident favouritism, he secured the seat entirely with his sheer determination and hard work but is eventually asked to vacate or is disqualified for the sole reason of being related to a person in power. This does not only showcase the lack of proper regulation but also the failure to take into account the talent, merit and ability of the candidate and hence discriminatory. Sometimes, all that is needed to help identify the nuances of nepotism is a different pair of lens.

______________________________________________________________________________________________

^[1] The Hindu.https://www.thehindu.com/opinion/op-ed/the-politics-of-nepotism/article32072772.ece

^[2]Theconversation.https://theconversation.com/nepotism-is-bad-for-the-economy-but-most-people-underestimate-it-103909

^[3]Zeenews.India.https://zeenews.india.com/india/allahabad-hc-judge-writes-to-pm-alleges-nepotism-casteism-in-appointment-of-judges-2216289.html

^[4] Wikipedia. https://en.wikipedia.org/wiki/Nepotism

^[5] The Sydney Morning Herald.https://www.smh.com.au/opinion/nepotism-the-way-they-do-politics-in-india-20140327-zqnpg.html

^[6]IASexpress.https://www.iasexpress.net/nepotism-origin-types-ethical-issues-impacts-way-forward/

^[7]Livemint.https://www.livemint.com/Politics/1o4uHD1GCKzmqaaM0hZFEP/Govt-clarifies-rules-to-check-nepotism-by-civil-servants.html

^[8]Indianexpress.https://indianexpress.com/article/india/citing-cases-of-nepotism-government-pushes-its-mop-proposals-5287453/

This article is written by Melody Khuoltaikim Singson, a first-year law student from Campus Law Centre, Faculty of Law, University of Delhi. This article intends to highlight the meaning and negative impacts of nepotism in the functioning of a democratic country like India.

Abstract

The pay gap is an issue for our country because it prohibits the country to become a superpower
in economic areas. This article prescribes the “Equal pay for equal work” and Constitutional and
Labor legislation concepts in Acts like the Equal Remuneration Act, Contract Labor, and
Factories Act, etc. The Directive Principle of State Policy defined under Part IV of the
Constitution has provision for equal pay for equal work. It also states where can be discriminated
against or not in payment. 

Introduction

Equal pay for equal work means an equal payment to someone who has been employed in the
same place and does the same work. Even the temporary worker who has done the same work in
the same shift should get equal payment in comparison to the permanent worker.
Constitutional provisions

Article 14 – Equality before the law means every person is equal in the eyes of Law there should
not be discrimination. Everyone has equal rights and opportunities . 
Article 15(1) – Prohibition of discrimination against citizens of India on grounds of caste or sex
which means no one can be distinguished and unfavorable to the person. This means the
employer will get equal payment from an employer either from a different caste or a woman .
Article 15(3) – It is the exception of Article 15 clauses 1 and 2. The state can make laws for
women and children to improve the situations of women and children . 
Article 16 – Equal opportunity in public employment .
Article 39 – It is defined that the State should direct the policies for equal remuneration to both
men and women. This means if both the parties are doing equal work then they should be paid
equally without any discrimination. If the people are in the same post or either different place
then he should get equal payment.
Article 42 – The state should ensure and make provision for the workplace should be a humane
condition for women and make provision for maternity relief . 
Article 51(A) (e) – To abolish the practices against women’s dignity .

The term equal also includes allowances benefits and promotions. The directive principles are
not enforceable by law. The state must make legislation for the prohibition of discrimination in
payment. Also, it is a fundamental right under Articles 14, 15 and 16. Various judgments have
been decided through fundamental rights.  Equal pay for equal work was first acknowledged in
the case Kishori Mohanlal Bakshi v. Union of India , in which the Supreme Court held that the
court cannot enforce the court of law. In 1987, in the case, Mackinnon Mackenzie & Company

Limited v. Audrey D coastal & others , the woman who was a stenographer was discriminated
against based on sex she paid less than men. The court held that it is discrimination against
women. When both men and women are doing the same work in the same circumstances they
should be paid equally.
Randhir Singh v. Union of India , in this case, the court held that the equality for equal work is
mentioned in directive principles and directive states and not under the fundamental right but is
considered a Constitutional goal. The court can enforce constitutional remedies prescribed under
Article 32.
State of Punjab and Ors v. Jagjit Singh and Ors , in this case, the court held that the workers
who are doing temporary work, ad hoc and daily wages should get equal payment which is given
to the permanent worker. To refuse the equal payment is oppressive, coercive and exploitative
behavior with them.

Statute related to equal pay for equal work

Workmen’s Compensation Act, 1923

• Those workers accidentally injured during work should be compensated by companies.
• Because of differences in negotiating power, women may be exploited.

Minimum Wages Act, 1948

• The state has fixed minimum wages in the territory. This means an employer cannot give less than the fixed wages.
• Workers are poorly organized & have less negotiating power in India. Because in India there is also the problem of employment so the workers are accepting the money without negotiation.

Factories Act, 1948

• The object of this Act is to improve the conditions of laborers in factories and industries.

Contract Labour (Regulation and Abolition) Act, 1970

The object was to make this Act that there should be a separate provision for utilities and fix
working hours for the women.

Equal Remuneration Act, 1976

In 1975, this was passed as equal remuneration Ordinance, 1975 and further converted into an
Act, the Equal remuneration Act, 1976. Women were not getting equal payments and working
conditions according to them. The Act made for improvement of the women condition in
remuneration. The provision of the Act is against discrimination in the recruitment and
promotion of men and women. When this Act was enacted, they considered the physical & social
burden a woman faces or the condition of the women during their pregnancy time.

In the case, Dharwad District P.W.D. Literate Daily Wage Employees Association and
others v. State of Karnataka and others. the court in this case held that Sec. 5 of the equal remuneration Act states that there shall be no discrimination against women in their appointment,
recruitment, and promotion. It means if both men and women are working in the same condition
then women should not be discriminated on these. The employer should maintain a register or
documents to avoid unjust practices. 

Code on Wages Act, 2019 

This Act considered equal pay for equal work for all genders. Under Sec.16 of this Act has given
the power to the employer that they can fix wages based on monthly, daily, or weekly but not
more than a month.

Exceptions of equal pay for equal work

This is mentioned in our Constitution in Directive Principles and Directive States. However, it is
not an absolute right. Exceptions are not mentioned but they came from the cases.

In the case F.A.I.C and C.E.S v. Union of India 13 , the court held that employers can fix
different pay scales for employees who have a similar post and work but there is a difference
between responsibility, reliability, and confidentiality.  Equal payment depends on the work that
has been done and not the volume of work.

International Perspective 

The problem related to equal remuneration is not only limited to India but is worldwide. This has
been discussed at various conventions. The Equal Remuneration Convention, 1952 states that
there should not be discrimination against equal remuneration.
The International Labour Organization (ILO) has stated that it doesn’t matter if the labor is male
or female if they are doing equal work with equal capacity, there is no requirement of the gender
pay gap. 

Gender pay gap

This means the difference between the earnings of men and women who are involved in the same
work. India ranks the last 10 in female participation. Female participation is a very low rate in
rural areas compared to urban areas. Women are not educated. This is also the reason. 

Conclusion 

In India, we have many statutes which talk about how everyone should get equal pay for equal
work. But the inequality in recruitment still exists. Court has decided in many cases that it is the
right of the employees to get equal payment. Government should organize a campaign for
awareness towards equal recruitment to labour. 

Every individual should be equally paid there should not be discrimination but employers can
discriminate based on responsibility and volume of work done by employees.

This article is written by Prachi Yadav, a 2 nd Year student from Mody University of Science and
Technology, Laxmangarh, Rajasthan.

CITATION

(1862) 11Cb (NS) 869, EWHC CP J35; 142 ER 1037

APELLANT

Bindley

RESPONDENT

Paul felthouse

DECIDED ON

8 th July 1862

COURT

Court of Exchequer chamber

JUDGES

Willies, byles and Keating JJ

AREA OF LAW

Acceptance

BACKGROUND

Uncle felthouse was quite interested with his nephew’s horse. So, he sends a letter to his
nephew as a proposal to buy the horse which stated: “if I hear no more about him, I’ll
consider the horse is mine for 30.15 shilling”. The nephew received the letter of Mr Felthouse
and decided to sell his horse to him. But he failed to respond to the offer. Suddenly, the
nephew faced an auction of the property and told the auctioneer, Mr.bindley to auction all his
property except the horse. On the day of auction, Bindley forgot to spare the horse from the
auction. As the horse was a good breed it had a great demand in the auction and Mr. Bindley
accidently sold the horse to another person for 33 shillings. When felthouse came to know
about the incident he sued the auctioneer under the tort of conversion (usage of someone
else’s property inconsistently with their right). This made felthouse to prove the contract
valid by showing that the horse was his property. Bindley stated that Mr. Felthouse doesn’t
have any ownership over the horse even though the nephew had an interest to sell the horse.

Since it wasn’t communicated properly, the contract doesn’t seem to be valid. The major
issue raised in this case was whether the silence or failure to reject an offer amounts to
acceptance. The court finally ruled that felthouse did not have any ownership over the horse
as there was no acceptance from his nephew’s side. This is a landmark case in the history of
contract law which states that no one can necessitate anyone to make a decision on to reject
or accept an offer and it also states that mere silence does not amounts to acceptance.

FACTS

1 Paul felthouse send a proposal to his nephew John felthouse in the form of a letter to
buy his horse, which stated: “if I hear no more about him, I’ll consider the horse is
mine for 30.15 shilling”.
2 Despite having the intention to sell the horse, the nephew never had accepted the
proposal. So, he told the auctioneer, Bindley to exempt the horse from the auction.
3 Mr. Bindley forgot about the condition and sold the horse for 33 shillings to another
person.
4 Paul felthouse sued Bindley under the tort of conversion by stating the horse as his
own.

ISSUE

1. Whether there exists any valid contract between the uncle felthouse and his nephew.
2. Whether the silence or failure to convey the rejection of an offer amounts to acceptance of the proposal.

JUDGEMENT

It was held by the court was there wasn’t any valid contract existed between felthouse and his
nephew. Despite having an intention to sell the horse, there wasn’t any acceptance to the
proposal from his nephew’s side. A proposal will only get emanated as a contract where there
is an acceptance to the proposal. Hence it was stated that silence or failure to convey the
rejection of a proposal will not amounts to acceptance of the offer.

RATIO DECENDI

1. You cannot exert your decisions on an unwilling party.
2. Silence or failure to convey rejection of an offer will not amounts to acceptance.
3. You cannot assume acceptance if there is no notification of acceptance or implied acceptance through action present.

CONCLUSION

The case Felthouse v. Bindley was a turning point in the history of contract law. In this case it
was proved that there wasn’t any contract between the uncle and his nephew.it thus proved
that silence will not amount to an acceptance to a contract.

This article is written by Nourizen Nizar, student of Government Law College, Ernakulam, Kerala

What are Swap contracts?

In the year 1982, Swap Contracts were introduced when the World Bank and IBM entered into an agreement. Swap contracts are one of the four types of financial derivative contracts, where two counter-parties exchange the cash flow of one party for those of the other party’s cash flow for a fixed period.

To understand the system of swap contracts, let us assume that there are two parties. A, who lives in India, goes to the market and notes that the cost of a Samsung mobile is Rs.40000 and the cost of an iPhone is Rs.65000 and B, who resides in the USA goes to the market and notes that the same model of phone that A checked is available for Rs.65000 and Rs.40000 for Samsung and iPhone respectively. Now, these two parties decided to enter into a contract to exchange their commodities and reduce their purchasing cost. This arrangement is defined as swap agreement.

These swap agreements are useful for the financial institutions who want to convert their floating rate to a fixed rate and vice versa. These contracts are executed through a swap bank that works as a matchmaker and assists the transactions between the parties.

Types of contracts

Countless swap agreements exist in the financial ecosystem. Here, we will discuss most commonly used variations:

1. Interest Rate Swap: Interest rate swap is one of the most commonly used methods in financial derivatives. These swaps do not include the retail investors and the contracts are of an OTC nature and are executed between businesses and financial institutions.

Let us consider an example, Company A, a newly incorporated company with no financial standing in the market, approaches the bank for a loan and the bank says that they will provide the loan but at a variable rate of interest. On the other hand, Company B, which has an excellent financial standing in the market, approaches the bank for a loan. The bank agrees to give the loan at a fixed interest rate with the same time and notional principle. Now, the companies observe that the interest rate for Company A is going to increase and the interest rate for Company B is going to drop, but due to the fixed rate of interest, the Company would still be paying more. Hence, both the companies agree and swap their interest rate nature and are executed between businesses and financial institutions.

Consider another example, where Company A is newly incorporated and does not have any financial standing in the market. It approaches the bank for a loan and the bank says that they will provide the loan but at a variable rate of interest. On the other hand, Company B, which has an excellent financial standing in the market, approaches the bank for a loan. The bank agrees to give the loan at a fixed interest rate with the same time and notional principle. Now, the companies observe that the interest rate for Company A is going to increase and the interest rate for Company B is going to drop, but due to the fixed rate of interest, the Company would still be paying more. Hence, both the companies agree and swap their interest rate.

2. Currency Swap: Currency swap agreements are used by financial institutions that are planning to expand their businesses internationally and require financing. Through swap contracts, the companies get a more favourable loan rate from their local banks as compared to the banks from that country and minimise the risk associated with the currency fluctuation. It involves the exchange of the principal amount along with the interest payments from one currency to another.

For example, an India based company “X” is planning to enter the Australian market and simultaneously, an Australia based company “Y” is planning to diversify their portfolio by purchasing a company in India. For company X, the expansion would require a funding of $22 million and for Y the acquisition would require the same amount of loan. Now, the Indian banks might give Company X a loan at 9% but for Company Y, it will be at 12%. Likewise, Australian banks will give a loan to Company Y at 9% but for Company X it will be at 11%. However, both companies could have an advantage if they borrow in their domestic currencies and enter into a swap contract. In this way, the companies will receive the desired foreign currency at a cheaper loan and the risk factor for currency fluctuation will reduce.

3. Debt-Equity Swap: Debt-Equity Swap agreements are one of the recent additions. They are used to trade the debt or obligations of a company for something that has an equivalent value such as equity, bonds or stocks. This type of contract is used to maintain the debt to equity ratio of the company to keep a good credit rating in the market. The debt-Equity swap value depends on the market rates but the lender may provide a much higher exchange offer. 

For example, Company X suffers a drop in the revenue because of the economic crisis and it has the potential to avoid going bankrupt but due to cash flow problems, they will not be able to make the scheduled instalment. So they approach the bank and offer them 5% equity in exchange for the remaining loan. This swap is called the debt-equity swap.

4. Commodities Swap: Commodities swaps are used to hedge the fluctuation in the commodities pricing and set a fixed price. This will benefit both the buyer and sellers in the market as there will be a fixed selling price and buying price. Generally, it is always the cash flow that swap and not the actual commodities.

For example, if a company is purchasing 1000 gallons of oil and has agreed to pay a fixed price of $2 per gallon, then, at the time of payment if the price increased by 20 cents, the company would be paying $200 extra if the price was not fixed. Now, if the price drops by 20 cents the company will have to pay $200 more. Hence, if the price of the commodities that a company uses as input is floating then the profits of that company will also be volatile, that is the reason the companies prefer to enter into the commodities swap agreements.

Applications of Swap

There are various applications of swaps in the financial markets. Some of them are :

1. Hedging of Risk: The most important and primary application of swaps is to hedge risk. For instance, Company A is in a contract with a floating interest rate and has reasons to believe that in near future the interest rates will increase significantly. So to save themselves from higher interest rates, the company has to exchange the floating interest rate for a fixed interest rate.

Similarly to hedge against the fluctuation in currency exchange, the enterprises involved in international business enter into currency swaps.

2. Low borrowing rate: The comparative advantage that one company has is exchanged with the advantages possessed by another company. Hence, both the companies are benefitted from the swap and the purchasing cost is significantly decreased.

3. Access to the International market: The companies enter the foreign markets by using the swap system which will help them in avoiding the fluctuation in financial transactions. For instance, if a company of Canadian origin wants to invest in a business entity in the Indian market, they will enter into an interest rate swap agreement with an Indian company, as the rate of interest for a domestic company would be lower compared to that for the company itself.

4. Avoiding bankruptcy: Using the debt-equity swap, a company can save itself from declaring bankrupt. For example, if a company suffers a revenue drop due to a crisis and the cash flow is not enough to pay company’s regular expense, they can offer the bank equity in their company in exchange for the loan to get approved.

Usage

Commercial and comparative advantages are the two basic categories in which swap contracts are used. When a company enters into an agreement where they have to pay a certain interest rate which can be fixed or floating rate, then swaps can reduce the risk of fluctuation in the financial market. Companies that are planning to enter a new market can have a comparative advantage by using the currency swap agreements.

For example, if Indian company wants to expand its business in Malaysia, it is more likely for the company to get a favourable agreement in India. So, by entering into a currency swap, the company can have the finances it needs to expand its business in Malaysia without paying extra interest rates.

Exiting a Swap Agreement

There are three frequently used ways to exit a swap contract before the expiration of the term period. They are:

1. Buy-out: With the consent of the counter-party the market value of the swap agreement can be calculated and the amount can be paid by the party and this way the company can exit the swap contract.
2. Sell the Swap: With the consent of the counter-party, the company can sell the swap to a third party at the current market value.
3. Offsetting Swap: A company can nullify the effect of a swap agreement by entering into a reverse swap contract. For example, if a company is in a swap where they receive a fixed interest rate, then they can enter into another swap with a third party to exchange the fixed interest with the floating interest rate.

The blog is written by Abhinav Bansal  ), B.A.LLB student at Trinity Institute of Professional Studies.

Edited by- Deeksha Arora

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CASE NUMBER:

Suit number 597 of 1961

EQUIVALENT CITATION:

AIR 1964 CAL 239

BENCH:

Single judge bench, Judge Bijayesh Mukherji presiding.

DECIDED ON:

Friday, 10^th January 1964

RELEVANT ACT/SECTION:

1. Section 68 of the Partnership Act, 1932
2. Section 28 of the Partnership Act, 1932
3. Section 67 of Evidence Act, 1872
4. Section 114 A of Evidence Act, 1872
5. Order 14 of the Procedure Code

BRIEF FACTS AND PROCEDURAL HISTORY:

Shree Hanuman Transport Company (hereafter referred to as Transport Company) was a firm involved in the shipment business. Snow White Food Product Company Ltd (hereafter referred to as Snow White) contracted the Transport Company for the shipment of two products, namely refined groundnut oil and Balloon brand vegetable product, to Raiganj and Islampur in the district of West Dinajpur. The said delivery was to take place on 20^th April 1960. According to the facts of the case presented, the Transport Company, for the benefit of Snow White, had insured the goods to be delivered with an insurance company bearing the name of New India Assurance Co. Ltd. (hereafter referred to as the Insurance Company). The complaint filed by Snow White Company claims that while the goods were in transit, the goods were tampered with and damaged by the partners of the Transport Company, namely Sohanlal Bagla and Madanlal Poddar, also the Insurance Company. The plaintiff claimed damages of sixteen thousand for the goods to be delivered to Islampur and a subsequent amount of rupees nine hundred and thirty-one for the goods to be transported to Raiganj. This comes to a total of rupees seventeen thousand five hundred and thirty-one. Out of this, the Transport Company had already paid the plaintiff rupees four thousand and five hundred. Snow White Food Product Company Ltd brought this suit to recover the remaining damages of Rs 13031.

ISSUES BEFORE THE COURT:

The issues in question before the Hon’ble Court were:

1. Whether Sohanlal Bagla (first defendant) was ever a partner of Shree Hanuman Transport Company (third defendant)?
2. Whether Shree Hanuman Transport Company had insured the goods delivered to Snow White Food Products Ltd. from the New India Assurance Co. Ltd for the plaintiff’s benefit (Snow White Food Products Ltd.)?
3. Whether the consignment called in question were damaged or converted to benefit their use by the defendants when the goods were in transit?
4. Whether New India Assurance Co. Ltd (fourth defendant) is liable to pay the amount of the claim to Snow White Food Products Ltd.?
5. Whether the plaintiff is entitled to any reliefs, and if so, then what reliefs must be granted?

RATIO OF THE CASE:

Sohanlal presented certain evidences before the Court sufficient enough to prove that he was not a partner of Shree Hanuman Transport Co. Ltd. To corroborate Sohanlal’s statements in the Register of firm’s entries, Madanlal Poddar and Babulal Saraogl were mentioned as the partners of the Transport Company. Against this evidence, Snow White put before the Court that although the terms on paper were maybe different, Sohanlal, through his various actions, has provided a reasonable reason for Snow White to believe him to be a partner of the Transport Company. It presented before the Court, evidence of official communication between Snow White and the Transport Company through letters signed by Sohanlal on behalf of the firm. Not only this but also the surveyor of the Insurance Company, on instructions from Sohanlal, had sold the damaged good to the highest bidder and returned the proceeds of the sale (Rs 11556) to Sohanlal. Thus, this gives reasonable reason for Snow White to believe him to be a partner of the Transport Company, making him liable to pay for the loss suffered due to the non-delivery of goods.

DECISION OF THE COURT:

After careful consideration of the facts of the said case and taking into account the pieces of evidence and witnesses presented, the Calcutta High Court concluded that Sohanlal had presented himself as a partner when dealings were taking place between the Transport Company and Snow White Food Product Company Ltd. He had also signed documents it the capacity of a partner and thus is qualified as a partner by holding out of the Transport Company. Therefore he was made liable to pay the remaining amount of the claim to Snow White Food Product Company Ltd.

This case analysis is provided by Debasmita Nandi, a first year law student at CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

Edited by- Deeksha Arora

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Case Number:

CA 1903

Equivalent Citation:

[1903] 1 K.B. 81

Bench:

Collins, M.R. and Methew, J. 

Decided on:

19 November 1902

Relevant Act:

The Partnership Act 1890

Brief Facts and Procedural History:

In this case the defendant company is a partnership company with two partners, Mr Houston and Mr Strong, who represented the company. Mr Houston took care of the functioning of the company and Mr Strong was a sleeping partner. Mr Houston, acting within the scope of his authority, bribed the clerk of the plaintiff’s company and induced him to commit a breach of contract with the plaintiff as a result of which the clerk divulged some of the secret, important information of the plaintiff’s company. This act of Mr Houston was done without Mr Strong’s knowledge. The information was used by Mr Houston in a way to make the plaintiff company, his competitor, suffer the loss. Plaintiff sued both the partners of the defendant company for breach of contract under vicarious liability. The trial court said that both the partners are liable for breach of the contract. The case went to the Court of Appeal.

Contention:

• Whether or not Mr Houston acted within the scope of his authority in obtaining the details of the plaintiff company?
• Whether or not Mr Strong is liable for the wrongful act committed by Mr Houston?

The ratio of the Case:

The defendant’s counsel argued that gaining information about your competitor’s business is something that a businessman can do and hence, it is legal. So, what Mr Houston did is legal and that he is not liable for the breach of contract. The court agreed with this argument of the defence counsel and stated that Mr Houston acted as an agent and it is done within the scope of his authority, it is illegitimate and amounts to a breach of contract. This was based on the board risk principle, according to which if the principal is the one who will benefit from the acts of the agent, then he is also liable for the risks the agent goes through, while he is performing the acts delegated to him. In this case, the clerk was an agent of Mr Houston and so he is liable for the risk the clerk incurred, that is, the breach of contract, while delivering the information Mr Houston has asked for.

The decision of the Court:

The Court of Appeal upheld the order of the trial court and said that both the partners of the defendant company, Mr Houston and Mr Strong, are guilty of inducing breach of contract, even though it was committed by only one of them.

This case comment is written by Santhiya V, a 3^rd year BBA LLB (Hons.) studying at Alliance University.

Editor- Deeksha Arora

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Abstract – The article will make the readers conscious of the heinous act, i.e., the domestic violence in India. The article talks about the rising cases of domestic violence during the lockdown in West Bengal and the role of the West Bengal Women’s Commission in curbing such menace.

INTRODUCTION

In India, domestic violence against women is dominantly prevalent, that is tried to conceal. We live in a patriarchal society where one in every three women is subject to domestic violence. According to a research, 45 percent of women in India are subjected to violence by their spouses. Domestic abuse is a largely unseen crime that occurs mostly behind closed doors.

During the lockdown, West Bengal saw an increase in domestic violence cases. Many women were subjected to domestic violence and physical abuse. Women had previously faced physical assaults, but the lockdown had exacerbated and worsened the situation.

Since the imposition of lockdown, more than seventy domestic violence cases have been reported to the commission. The number of complaints received during this period was higher than in the months preceding the lockdown.

Analysis

According to the state women’s commission, domestic violence cases in West Bengal have increased during the lockdown. Since the lockdown was imposed, the commission has witnessed a surge in reports of domestic violence. The complaints came from all over the state, in both rural and urban areas, including Kolkata.

National and International laws

Protection of Women against Domestic Violence Act 2005

 This Act was promulgated to protect women against physical, sexual, and emotional abuses, all of which are widely specified under the Act. The Act not only talks about the protection of married women, but also women who are in live-in relationships with men. It is a must that woman should be free from all forms of violence. 

Section 498 of IPC

“Whoever takes or entices away from any woman who is and whom he knows or has reason to believe is the wife of another man, from that man, or any person caring for her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains any such woman with that intent, shall be punished with imprisonment of either description for a period which may extend to two years, or with fine, or with both.”

Dowry prohibition Act, 1961

 Anyone who provides, accepts or even asks dowry can be imprisoned for a half-year (i.e., six months) or fined up to Five Thousand Rupees under this rule.

CEDAW

CEDAW adopts a three-dimensional and practical approach based on the concept of substantive equality or gender equality. This goes beyond equal opportunity and legal language to consider the current state of women’s lives as the actual litmus test for whether or not equality has been attained.

The media still does not play an influential role in minimizing domestic violence against women. They fail to cover the incidents and spread those to the mass, taking place every day in the marginalized communities. Because the media serves as society’s eyes, ears, and limbs, it has the potential to significantly reduce violence against women.

ROLE OF MEDIA IN COVERING THESE ISSUES

The role of media should be to expose the shades of malice and spread awareness about the rights of the women. The media needs to be aware of the violence directed against women. Indeed, many women have said that the media’s coverage of an assault or other form of brutality resembled a second attack due to the insensitivity with which they used images, published names, and other invasions of privacy.

The media’s involvement in the issues of violence against women is essential both in terms of how it covers the matter and in terms of how it may be utilized to assist activists and governments in raising awareness and implementing necessary programme.

In general, the media lacks in instilling an extensive awareness of domestic violence in the public. As a result, many scholars believe that media portrayals of domestic violence are part of a hegemonic patriarchal worldview that obscures both the issue of domestic violence and the underlying social processes that generate it.

Case Laws

S.R Batra and Anr v. Smt. Taruna Batra

 Referring to Sec17(1), 4Sec2(S) Of Domestic Violence Act, the Supreme Court held that:

Only the wife has the right to live in a joint household.

A house owned by a husband, a house rented by a husband, or a house that belongs to a husband’s joint family is considered a shared home.

The judgement further noted that, under section 19(1)(f) of the act, the claim for alternative accommodation may only be raised against the spouse and not against his in-laws or other relatives.

As a result of the facts of the case, it was determined that the wife could not claim a right of residency in the property belonging to her mother-in-law.

Dr Velusamy v.  Patchaiammal

The court noted that the Act’s definition of “domestic relationship” in section 5 sec 2(f) includes not just marriage but also a relation “like marriage” in this case.

Because the term “relationship like marriage” isn’t defined in the Act, the court clarified its meaning. According to the court, not all living relationships qualify as “relationships like marriage,” which must meet the following criteria. In addition, the parties must have lived together in a “shared household.”

The couple must exhibit themselves as husband and wife to the rest of society. To marry, they must be of legal age. To engage in lawful marriage, they must meet all other requirements, including being unmarried.

Conclusion

The government must develop a comprehensive strategy and allocate sufficient funds to provide support services to survivors, ensure the application of domestic violence laws, and conduct public awareness campaigns emphasizing that domestic violence is a crime and that the state will take strict action against it. The judicial system must become more active and effective in bringing justice to victims and sufferers.

This blog is written by Shruti Bose, studying at Christ (Deemed to be University), Lavasa

Edited by Deeksha Arora.

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