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Protection of Whistle Blower – A Socio-Legal Perspective

Posted on March 26, 2022

Introduction

In the present time, examples of fraud, corruption, and deception are normal. The need for whistle-blower assurance couldn’t possibly be more significant in a climate where the disguise of realities is advanced, basically in light of the fact that the culprits of violations are safeguarded by those in, influential places. Whistle-blowers have confronted dangers from wrongdoers all over the world, and most state-run administrations have passed regulations to safeguard them. In any case, there is one more illustration of the legitimate regulation requirement that necessities notice.

Safeguarding whistle-blowers in the private area cultivate consistency observing as well as recognizing hostility to corruption infringement. Whistle-blower insurance techniques that are compelling give workers the necessary certainty and feeling of safety in the framework. They feel a sense of urgency to report, however they likewise get to know the framework’s detailing conventions. Subsequently, organizations are safeguarded from bribery and money laundering.¹

Whistleblowing is a term used to portray conduct in which an individual uncovered things that are respected illicit, indecent, or mischief to the general population or inside an association. In India, a whistle-blower can be a current or previous worker who uncovers data in regards to supposed corruption, offense, fraud, or a break of the organization’s strategies and regulations. In previous years, whistle-blowers have utilized the Right to Information Act of 2005 to gather relevant information in regards to any unlawful or indecent lead and make it accessible to the more extensive public. Whistle-blowers are fit for uncovering the organization’s fraudulent activities by utilizing RTI as a weapon. A considerable lot of them are RTI advocates whose intention is to make the framework more straightforward. Such data may be utilized actually to raise public information about government activities and might really be considered for the purpose of review for people.²

Then again, such activists have confronted the outcomes of an absence of insurance, with the quantity of RTI activists killed expanding in the course of the last ten years. Subsequently, the current construction of data chasing and revelation instruments uncovers various challenges. With regards to observing data, many individuals face an assortment of difficulties. One of the important basis for these issues is that, while the RTI is accessible to anybody, whistle-blowers and data locators are denied security. Individuals have threatened or even gone after them on various events in light of the fact that the data they need might make trouble the authorities they are asking about. This could likewise assume a part in the killings of truth-searchers like Rajendra Prasad Singh in Bihar, who uncovered a few dishonest practices in the neighborhood government’s police enrolling and medical care arrangements, and Amit Jethwa, who used RTI to uncover illicit mining in Gujarat’s Gir Forest. This new age of whistle-blowers has been given the last blow. While the Whistle-blowers Protection Act of 2014 states that it is the public authority’s liability to guarantee that whistle-blowers are safeguarded from exploitation and their personalities are covered up, the demonstration still can’t seem to be carried out.

The significance of having hostile to corruption whistle-blower insurance regulation set up has been perceived by instruments targeting fighting corruption on a public and worldwide level. Whistle-blower security provisos have been evoked for UN Conventions Against Corruption, the 2009 OECD Council Recommendation on Further Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Recommendation), the 1998 OECD Recommendation on Improving Ethical Conduct in Public Service, the Council of Europe Civil and Criminal Law Conventions on Corruption, the Inter-American Convention against Corruption, and the United Nations Convention against Corruption Such measures have built up the global legitimate system, making it simpler for legislatures to pass powerful whistle-blower assurance regulation.³

What is exactly “Whistle-Blowing”?

Despite the fact that the word does not appear to indicate what it means, there is no common legal definition of what actually constitutes whistleblowing. It is defined by the International Labour Organization (ILO) as the reporting of illegal, irregular, harmful, or unethical employer practices by employees or former employees. The 2009 OECD Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Recommendation) refers to public and private sector employees who report in good faith and on reasonable grounds to the competent authorities being protected from discriminatory or disciplinary action.
Any individual who discloses any facts concerning offenses established in line with the UNCAC to the competent authorities in good faith and on reasonable grounds is referred to by the UNCAC. Employees who have rational grounds to suspect corruption and who notify their suspicions to responsible authorities or individuals in good faith are attributed to in the Council of Europe Civil Law Convention against Corruption. India’s statutes do not yet include a definition of whistleblowing. National whistleblowing legislation has used similar language as well. PIDA in the United Kingdom, for example, refers to any revelation of information that, in the reasonable opinion of the worker making the disclosure, tends to show one or more of the following: (the provision continues by listing a series of acts, including in relation to the commission of criminal offenses).

The disclosure of wrongdoings related to the workplace; a public interest dimension, such as the reporting of criminal offenses, unethical practices, and so on, rather than a personal grievance; and the reporting of wrongdoings through designated channels and/or to designated persons, are all key characteristics of whistleblowing.⁴

Right to information in India and whistle-blowers

People didn’t have simple admittance to information until the 2005 execution of the Right to Information Act. Individuals couldn’t take part in any of the discussions or censure the dynamic cycle because of an absence of information, regardless of whether they were enduring because of it. The Official Secrets Act of 1923 filled in as a remnant of British imperialism, keeping everything stowed away. Normal citizens had no legitimate right to enquire about government strategies and spending. Citizens who were chosen to control the gatherings accountable for strategy making and adding to the financing of public activities were denied admittance to basic information.

The impact of this culture of mystery was the rich ground for corrupt activities to prosper. Citizens created feelings of feebleness and alienation because of limitations on the free progression of information. In these conditions, the overall population and various nongovernmental associations needed more noteworthy admittance to government-controlled information. The public authority followed the requests by enacting the Right to Information Act of 2015.

The impact of this culture of mystery was the rich ground for corrupt activities to prosper. Citizens created feelings of feebleness and alienation because of limitations on the free progression of information. In these conditions, the overall population and various nongovernmental associations needed more noteworthy admittance to government-controlled information. The public authority consented to the requests by enacting the Right to Information Act of 2015.

Individuals play a basic part in uncovering the corruption that exists inside a corrupt framework. These people accept a major gamble by uncovering corruption in their organizations. Consider the instance of Satyendra Dubey, a legitimate and genuine whistle-blower for the National Highways Authority of India (NHAI) who had committed his life.

Therefore, the Supreme Court laid out a Central Vigilance Commission to safeguard whistle-blowers. The National Campaign for People’s Right to Information, which was instrumental in the entry of the RTI Act, has mentioned that the Whistle-blowers Protection Bill 2011 be passed rapidly.

The Whistle-blowers Protection Act, 2011, is an Act of the Indian Parliament that lays out a design to explore charges of debasement and maltreatment of force by local area laborers, as well as to safeguard anyone who reports affirmed bad behavior in government bodies, activities, or work environments. Distortion, debasement, or mess up are instances of malpractices or bad behaviors. The Act was supported by the Indian Cabinet as a component of a mission to kill corruption in the nation’s organization, and it was enacted by the Lok Sabha on December 27, 2011. Whenever the Rajya Sabha passed the Bill on February 21, 2014, and the President gave his authorization on May 9, 2014, it turned into an Act.⁵

Analysis of Whistle-Blowers Protection Act, 2014

The Whistle Blowers Protection Act of 2014 (herein referred to as the “Act”) was enacted to offer a framework for investigating allegations of public servant corruption and abuse of authority, as well as to safeguard people who report wrongdoings. However, seven years have elapsed since the Act’s enactment and no changes have been made. There has been a widespread call to enhance several aspects of the Act in order to make it more whistle-blower-friendly and to provide proper protection to whistle-blowers.⁶

Salient Features of the Act

As per the Act, any individual who files a complaint under the Act about disclosure is referred to as a complainant.
Disclosure means signifies a complaint about an attempt to commit or commit an offense under the 1988 Prevention of Corruption Act; attempt to commit or commission of a criminal offense by a public servant, made in writing or by electronic mail or electronic mail message, against the public servant, and includes public interest disclosure referred to in sub-section (2) of section 4 of the Act.

The Act’s Section 11 protects the complainant from being treated unfairly. This was implemented in light of numerous incidents in India where whistle-blowers have been threatened, harassed, and even assassinated for reporting frauds. Satyendra Dubey, the man responsible for exposing the corruption case involving the Golden Quadrilateral project of the National Highways Authority of India, was killed. He joined the Indian Engineering Service (IES) and became Project Director at the National Highway Authority of India (NHAI) in Koderma, Jharkhand, in 2002. The Indian government, led by Atal Bihari Vajpayee, embarked on a massive Golden Quadrilateral Project to connect all major Indian cities by four and six-lane highways, with Satyendra Dubey in charge of a section of NH-2 (GT Road). He discovered that a subcontractor, Larsen, and Toubro, had obtained a contract from the Indian government and passed it on to smaller contract mafias incapable of handling such a large-scale project. He also saw that conventional methods and quality were not followed when constructing the roads. When he did not receive a satisfactory response from the NHAI authorities, he wrote directly to Prime Minister Atal Bihari Vajpayee. He appealed for his name to be kept anonymous, but the letter was submitted to the Ministry of Road Transport and Highways, along with his profile information. He was assassinated in Gaya, Bihar, in 2003, on his way back from a wedding in Varanasi. Three of the suspects were found guilty and sentenced to life in prison by a special CBI court led by Raghvendra Singh.

Shanmugam Manjunath, an Indian Oil Corporation officer, was murdered in Uttar Pradesh after sealing a petrol outlet selling tainted fuel. Mayawati’s government was accused of corruption and theft, and a senior police officer was transferred to a psychiatric facility. When the petrol pump started working again, he led an unannounced raid a month later to inspect the fuel quality. He was shot six times in 2005, and his body was discovered in the backseat of his car. This announcement sparked widespread outrage across the country, as well as in the media. The Trial Court found all eight defendants guilty and condemned them all, with one being sentenced to death and the other seven receiving life sentences. The High Court, on the other hand, overturned the death sentence for one of the defendants and acquitted two others. The Supreme Court upheld the life sentences given to six individuals in 2015.

Section 17 of the Act states that anyone who makes a false, wrong, or misleading disclosure with the knowledge that it is false, incorrect, or misleading is punishable by up to two years in prison and a fine of up to thirty thousand rupees.⁷

Laws related to Whistle Blower in other Countries

The primary parts of whistle-blower protection systems all over the planet are interior homegrown regulations, which fill in as models for nations needing to enact such regulation, regardless of whether the regulation isn’t yet significant. They are broad in scope. Whistle-blower protection regulation is remembered for a few homegrown regulations, for example, the Whistle-blower Protection Act (WPA) in Japan, the Protected Disclosures Act (PDA) in South Africa, and the Public Interest Disclosure Act in the United Kingdom (UK PIDA).

A country’s Criminal Code may likewise incorporate whistle-blower protection; for instance, the Canadian Criminal Code prohibits revenge against a worker who uncovered information about wrongdoing. The Sarbanes-Oxley Act (SOX Act) modified the United States Federal Criminal Code to force a fine and additionally detainment for reprisal against any whistle-blower who gives precise information to regulation requirement specialists concerning the wrongdoing or likely commission of any Federal offense.

Protections are given by regulation in different countries for explicit offenses. Corruption regulations, contest regulations, bookkeeping regulations, natural protection regulations, work regulations, and corporate and protections regulations are instances of sectoral regulation that give whistle-blower protections in these nations. Explicit people are protected by these resolutions. On the other hand, for the detailing of explicit violations. Korea’s Act on Anti-Corruption and the Establishment and Operation of the Anti-Corruption and Civil Rights Commission (ACRC Act) is one such model, as it safeguards any individual who unveils a corruption act to the Commission.

Workers who report wellbeing or security dangers, as well as episodes of lewd behavior, are protected under France’s Code du Travail. Whistle-blowers who submit information to the Securities and Exchange Commission (SEC) about an associated infringement with protections regulation that has happened, is happening, or is going to happen are protected under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

There are decisions that control the way of behaving of community workers at the international level and in a few public sectors. Workers can involve these regulations as a wellspring of whistle-blower protection. Around here, the Public Servants Disclosure Protection Act (PSDPA) of Canada safeguards local officials who report bad behaviors in or relating to the public sector against reprisal. Whistle-blower protections for community workers who uncover breaks (or claimed breaks) of the Code to an approved individual are explicitly referenced in the Australian Public Service Code of Conduct.

Maybe the private sector has stayed unaffected or unprotected. A few nations have laid out whistle-blower protection for private sector staff in their regulation. The WPA in Japan and the PDA in South Africa both give remarkable security to both public and private sector representatives under this system. Protected disclosures are permitted under the Australian Corporations Act, including for specific criminal offenses. Whistle-blowers in the business sector are likewise covered by the Dodd-Frank Act.

The Whistle-blower Protection Act was passed in 1989 in the United States, and it has since been enhanced by whistle-blower arrangements in the Sarbanes-Oxley Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act. These last two Acts are to a great extent focused on the private sector; however, they are additionally important for the system that shields central government whistle-blowers from reprisal and takes into consideration cures. Just disclosures made by the Canadian government public assistance and some bureaucratic Crown organizations are covered by the Canadian Public Servants Disclosure Protection Act of 2005.

Indeed, even while specific purviews in Australia give protection for the half-breed plot, Australia’s whistle-blower regulation solely applies to the public sector. Both public and private faculty are protected under the Japanese whistleblowing protection act for public interest disclosures. Article 7 explicitly addresses the treatment of national public representatives in the customary assistance, precluding excusal or other unfavorable treatment in view of whistleblowing.

Whistle-blower protection is found at the most significant level of international regulation. The international legitimate structure against corruption expects nations to remember – or consider including – appropriate instruments for their homegrown overall sets of laws to safeguard the people who report any facts about acts of corruption to capable experts with sincere intentions and on sensible grounds. All significant international arrangements managing corruption perceive whistle-blower protection. In international human rights regulation, the protection of whistle-blowers is accentuated, especially when they are the main individual who knows about the detailed circumstance and is additionally in the best situation to inform the business or the more extensive public in general.

For instance, the European Court of Human Rights found in 2008 that a community worker’s excusal for delivering unclassified papers demonstrating political control of the court framework comprised an infringement of article 10 of the European Convention on Human Rights. A medical caretaker working for a State-possessed firm was as of late sacked subsequent to presenting a criminal objection against her boss for purposely neglecting to give the top-notch administration guaranteed in its notice, setting patients in danger.

Conclusion

When someone puts society in jeopardy, the public has a right to know about it. Whistleblowing is a courageous act undertaken by those whose souls do not let them remain silent and to have a dim view of others’ wrongdoings. Whistleblowing protects society, fosters increased interest, and strengthens law and order by exposing corruption or any other sort of wrongdoing that causes harm to an individual. This is why their protection is crucial, and at the very least, their safety must be guaranteed.

Whistleblowing is a crucial component of a healthy society, but it’s also important to look at the other side. However, where there are serious implications for global defense, confidentiality and anonymity can be justified, as it would be in the public interest not to publish or disseminate such information. As a result, a delicate balance will be required between the two competing aims of government transparency and public safety. To maintain this balance, the government should approve the Whistle-blowers Act and build a strong regulatory framework to protect whistle-blowers.

References:

This article is written by Arryan Mohanty, a student of Symbiosis Law School.

THE MARINE AIDS TO NAVIGATION BILL 2021

Posted on March 25, 2022

ABSTRACT

The Marine Aids to Navigation Bill which was passed by the Rajya Sabha on 27 July 2021 seeks to create an integrated and comprehensive framework for the development and management of aids to the navigation systems that include assistance to vessel traffic services, by chalking out the related technicalities. Integrated and collaborative efforts of the center and the state apparatuses coupled with efficient implementation of the Act would bear fruits of success in the long run

RESEARCH METHODOLOGY

The given paper seeks to analyze the provisions of the Marine Aids to Navigation Act, 2021 with the aid of secondary and descriptive data. The data analyzed is descriptive and secondary in nature. The data is collected mostly from online repositories such as journals, gazettes, articles published by government-based organizations.

INTRODUCTION

Isn’t it common for us to see the changing traffic light signals at the crossings from red to green guiding us to stop, or the airplane traffic router managing duly the air traffic? Of course, we have!

The traffic lights, road barriers, bollards, traffic studs, GPS, routers,s, and other modern devices and signals have made our lives safer and easier by guiding us to a location, routes, and signaling prospective hazards that we might encounter on our road and air journeys. Unfortunately, these signals and devices are absent during the course of water voyages. To make the course of water navigation facile and secure, man-made devices are used to determine the water channel, position, and mark the dangers.

Technically, the aids to navigation refer to the intricated and consolidated network of devices and services such as lights, radio beacons, lightships, lighthouse, fog signals, buoys, and other visible, audible, and electronic devices that seek to enhance the safety and efficiency of the navigation system of individual vessels and vessel traffic. Traffic services refer to that system of radar and sensors that advise the vessels about their position with respect to shores. The mariners use these devices to chart the nautical miles/ marks, water depth, hazards, channel vessel positions, and other features that are not present on maps or atlas.

BACKGROUND

The Light House Act was enacted in 1927 that sought to provide assistance to the mariners and water vessels by aiding them with the necessary infrastructure and the requisite devices and signals. However, consistent progress in the field of science and technology coupled with the mushrooming globalization made the provisions of the Lighthouse Act obsolete and redundant. This forced the legislature to adopt a new course of framework so as to keep pace with the technological upgrades and global standards.

Also historically, India has been a signatory to myriad international treaties including maritime covenants and instruments such as the International Convention for the Safety of Life at Sea, 1974, Lighthouse Authorities System, etc. The constitutional mandate of our State via the instrument of DPSP i.e. directive principles of state policies casts an obligation on the state pieces of machinery to give effect to such treaties. It is in this reference that parliament sought to enforce the international treaties on maritime navigational aids and tabled the Marine Aids to Navigation Bill 2021 with a view to spur development and efficiency in the relational aspects of vessel traffic services, aids to navigation and marking of wrecks. The bill was introduced in the Lok Sabha on 15 March 2021 and was passed by Rajya Sabha on 27 July 2021. And hence the Lighthouse Act, of 1927 was repealed by the Marine Aids to Navigation Bill in 2021. The Act seeks to administer 195 lighthouses, a significant number of radio and digital aids to navigation, and a host of other vessels.

The act seeks to create an integrated and comprehensive framework for the development and management of aids to the navigation systems that include assistance to vessel traffic services, by chalking out the related technicalities. The act also provides for the certification and training of the operators who tend to aid this navigational process. Also, it emphasizes the comprehensive development of historical education and cultural values pertaining to the aid to management. It further seeks to establish a framework, providing for the levy and dues which is to be extracted from this institutionalized process of navigational aid, thereby helping the state to discharge its sovereign developmental functions.

REVIEW OF LITERATURE

JURISDICTION AND AUTHORITY
Section 1 elucidates the territorial jurisdiction of the Act. The Act extends to entire India including the maritime zones as per the territorial water limits, continental shelves, exclusive economic zones.

As per Section 2 subsection 1 (b), “aid to navigation” means a device, system, or service that is external to vessels and is designed and operated to enhance safe and efficient navigation of individual vessels and vessel traffic.
As per 2 (1) (q), vessel means and includes all the descriptions of water means and crafts that are capable of being used in the marine environment.

The authority to demarcate the districts and appoint the Director-General; Deputy Director Generals; and Directors for districts for the purposes of the act lies with the central government. The Director-General is expected to meticulously advise the Central Government on the relational aspects of the aids to navigation.

The Central advisory committee and the sub-committees appointed by the central government areas are required to establish, manage and modify the system of aids to navigation and thereby oversee the cost-effectiveness of the present and future operations and proposals respectively. The members of such committees are such persons whose interests stand affected by this said Act.

“General aid to navigation” refers to those aid to navigation that is periodically notified by the central government. The development and management of all such aids shall exclusively vest with the central government including establishment, addition, removal, alteration, and authority to an inspection of aids to navigation. Also, the central government is authorized to acquire both public and private property for furthering the developmental agenda under this Act.

MANAGEMENT OF VESSEL TRAFFIC SERVICES
The central government and its selected bodies/ officials have been entrusted with the responsibility to manage and develop vessel traffic services. It has been empowered to authorize and declare the vessel traffic services providers to operate under an authorized area; to accredit and certify the vessel traffic service provider and impart the requisite training. Further, the union government is required to appoint a competent Authority for Vessel Traffic Services so as to oversee the above-mentioned operations and maintain the benchmarks of efficiency and effectiveness.

LOCAL AIDS TO NAVIGATION
Section 14 of the Act elucidates the power to inspect any local navigation aid. “local aid to navigation” includes those aid to navigation that are not included in general aid to navigation and “local authority” includes State Government or any other authority having superintendence over a local aid to navigation.

The Central Government can authorize certain officials (the ones mentioned in Section 4(1)) to inspect and enquire about any local aid navigation. The information so collected has to be filed with the central government. The central government after analyzing the said information may pass the necessary orders, thereby directing either refraining or encouraging the required course of action to further the necessary results pertaining to aids of navigation. The Act casts an obligation upon the local authority to bring to the notice of center about its intention, at least before one month in writing, to erect or maintain; refrain from erecting any local aid to management. However, in the cases of emergency, the authority could divert from the above route of action and act on its own without serving any due notice to the center, given that after the said course of action, it has to give immediate notice to the center and if possible, to other vessels immediately.

MONETARY REIMBURSEMENTS
If the local authority fails to comply with the orders of central government; performs its duties in an inefficient or improper manner; or makes inadequate financial provisions for the satisfaction of any duty; the central government could either ask it to undertake the necessary course of action for the performance of such duties or could ask for the requisite reimbursements as may be deemed necessary.

As per Section 17, the central government is armored with the power to remove those obstructions or restrict the activities that tend to disrupt the functioning of aids to navigation.

TRAINING AND CERTIFICATION
The Central government is exclusively empowered to train and certify the operators of aids to navigation and vessel traffic services. No person is allowed to indulge in any operations of aid to navigation (including ancillary services) without a valid training certificate which is to be obtained from any centrally accredited training organization.

WRECK MARKING
Wrecks could be marked only by any centrally directed official, the cost of which shall be recovered from the vessel owner. Marking of wrecks could help to identify the stranded and sunken ships, thereby leading to effective management of vessel traffic. The central government could notify any aid to navigation under its control as a heritage lighthouse which could then be also used for educational and tourism purposes besides its use as an aid to navigation.

COLLECTION OF DUES
Marine aids to navigation dues are levied and collected by the central government. It is to be collected by the government-designated officers on arrival or departure of any ship from any port in India; the proceed of which is to be credited in the consolidated fund of India. Such marine dues are to be utilized for fulfilling the obligations of this said act.

The ship owners are required to self-assess the dues and deposit such amount into the account of the central government, thereby filing a due return before the proper officer. The number of marine dues so assessed by the vessel owners has to be approved by the designated officer in respect of the amount paid, date of payment, tonnage, and other desired information, for the purpose of granting clearance. In case of nonpayment or neglection of the said dues by the ship owners, the officer may seize the ship along with its equipment and detain the same until the amount of the marine aids to navigation dues, together with the costs of the seizure and detention is paid. Inability in payments of the said dues within thirty days of seizure could lead to the sale of the seized goods and ships by the officer for the satisfaction of the marine aids to navigation dues. The port clearance certificate would not be granted to the ships until and unless the marine aid to navigation dues along with the fines imposed therein have been duly paid.

If any ship tends to leave the said port without payment of the marine dues, the proper officer of that port would inform the proper officer at the other port towards which the ship may proceed, to recover such marine dues remaining unpaid.

In case of payment of excess dues, only those claims to refund the excess marine dues payable under this act shall be held admissible that have been claimed within six months from the date of payment.

DISPUTE RESOLUTION
Disputes and discrepancies arising between the parties, in the context of the determination and payment of the marine aids to navigation dues have to be determined by a civil court having jurisdiction at the place where the dispute arose.
The Central government can exempt those ships belonging to central or state government that do not carry any cargo or, ships from the payment of the marine aids to navigation dues.

FINANCIAL ACCOUNTS AND AUDITS
Section 35 of the Act mandates the Central government to maintain a separate account for recording the amount received via payment of marine aids to navigation dues and other receipts under this act, and expenses incurred for the purposes of this Act. Such financial statement has to be presented before the Central Advisory Committee at the end of each financial year. Such an account has to be prepared as per the guidelines and direction of the Comptroller and the Auditor General of India.

OFFENCES AND PENALTIES
As per Section 37 of the Act, Intentional commitment or omitment of any act by any person leading to obstruction or reduction in effectiveness in any aids to navigation may lead to imprisonment for a term extending up to six months or with a fine extending to Rs 1 lakh or with both whereas as per Section 38 negligent commitment or non-commitment of any impugned act may lead to imprisonment for a term extending up to three months or with fine extending to Rs 50,000 or with both. However, if the said act was undertaken to save a life or a vessel; or if reasonable steps were taken to avoid the obstruction, the person shall not be punished.

As per Section 39 of the Act, Intentional commitment or omit of any act by any person leading to the destruction of any aids to navigation may lead to imprisonment for a term extending up to twelve months or with a fine extending to Rs 5 lakh or with both whereas as per Section 40, negligent commitment or non-commitment of any impugned act may lead to imprisonment for a term extending up to six months or with fine extending to Rs 1 lakh or with both.

As per Section 41, damage or destruction of any heritage lighthouse may lead to imprisonment for a term extending up to six months or with a fine extending to Rs 1 lakh or with both.

As per Section 42, the ship owners who seek to evade the payment of marine aids to navigation dues in respect of their ships shall be made liable to pay a fine, which may extend up to five times the amount of the sum so payable.

As per Section 44, cognizance of any offense under this Act would be taken only upon a written complaint filed by any centrally authorized officer.

Offenses committed under this act shall be tried by a civil court, no lower courts to that of Metropolitan Magistrate or a Judicial Magistrate of the first class, under whose jurisdiction: the offense was committed; or such place where the offender was found or; such court notified by central government or; in any court in which he might be tried under any other law for time being in force.

MISCELLANEOUS PROVISIONS
Section 46 of the Act empowers the central government to make rules in respect of multifarious aspects of this Act that includes a listing of the duties of the director-general under Section 5 of the act; listing out the procedure and business conduct of the Central Advisory Committee and sub-committees, laying down the standards for establishment and operation of vessel traffic services; elaborating the procedure for marking of wrecks under section 21, specifying the criteria for the accreditation of training organizations providing marine aids to navigation certificates, listing out the ancillary activities under section 18(2) of the act, laying down the developmental plans for heritage lighthouses, manner of filing return under section 24(4), etc.

Section 47 of the Act empowers the Central Government to delegate functions and powers conferred upon it to any of its officers under this Act.

Section 49 bestows immunity from prosecution upon the central government and any of its officers in respect of those acts which have been purportedly done in good faith. The act prescribes for laying down of notifications and rules made under this act before both houses of parliament for seeking its validity and thereby giving effect to any modification or annulment of any rule as may be prescribed by the parliament without prejudicing the validity of any previous action done under previous rule or notification.

ADVANTAGES

The Act could unravel a host of untapped benefits that would accrue upon the marine and its allied sectors with the passage of this bill. The act could lead to a systematic appraisal of the efficiency and economy in the following ways:

The Act provides for an enhanced legal framework in the matters related to aids to navigation and vessels traffic management by specifying in length and breadth the legalities associated with the aids to navigation. The Act specifies the pecuniary liabilities for the disobedience of the rules, provides for accounting and auditing of the transactions wherein the monetary obligations regarding the transactions have been laid out systematically, providing for the legal procedures pertaining to the seizures of the goods and vessels, adjudication of the disputes and discrepancies by laying down the due jurisdiction of the civil courts and the other nuances.
The act provides for the due development, maintenance, and management of the old lighthouses having historical and cultural importance. Reforms of such sort could potentially tap and boost the tourism of the coastal areas leading to the upliftment of the economies of the coastal towns. Also, it would add to the repository of educational and cultural values, thereby adding to the enrichment of our historical heritage.
The Act facilitates training and certification of the operators of the aids to navigation and vessel traffic services at par with the international standards, by laying down the certification criteria and benchmarks of such operators and the institutions that provide such training.
The Act seeks to enhance the efficiency of the vessel traffic services and aids to navigation by laying down the detailed framework for its management and development. The act specifies the territorial jurisdictional limit and the hierarchical flowchart of the officers and employees, the formation of the central advisory committee for the consultations in the key matters relating to aids to navigation infrastructure and management, the appointment of presiding officers, and demarking of the districts for the purposes of the act, provides for marking of the wrecks so as to identify and mark the sunken or the stranded vessels which in turn would lead to efficient and effective navigation.
The Act strives to inculcate and enforce harmonized and integrated set of norms, at par with the international standards, in regards to accreditation and certification of the institutes providing training to the operators of the aids to navigations and vessel traffic services by keeping the leash of decision making under the ambit of the central government. The Act seeks to keep a close watch on the nuances associated with accreditation purposes such as authorization of the vessel traffic services provider, so as to maintain the requite index of international norms.
The Act lays down a systematic framework and guidelines for the collection of dues and revenues that could be used for the upliftment and development of the sector. Right from the specification of the dues collecting officers to the deposition, account audit, credit of funds to central accounts, dues verification, utilization of the funds, etc., the act strives to elucidate the fiscal nuances associated with the implementation of the Act.

DRAWBACKS

In the course of establishing harmonized and integrated set of procedures, the act seems to embellish and arm the central government with undue significance. The core aspects of management and development of the general aids to navigation coupled with management of vessel traffic services have been kept under the tight reign of the central government. Powers related to the establishment, alteration, addition, authorization of officials and inspection, acquisition of property, etc. rests with the center. The power to appoint competent authorities and local presiding officers in the respect of a local area also rests with the central government. Such centralization of power may lead to the disequilibrium in the effective functioning of the Act, wherein empowerment of one unit would lead to the curtailment of the powers of the other unit. Balancing the conflicting interests of the center and state by adoring proportionate decision-making power to the State government would serve the interests of the stakeholders.

CONCLUSION AND SUGGESTION

The Marine Aids to Navigation Act which repealed the Light House Act 1927 seeks to effectively manage and strengthen the infrastructure cushioning the marine aids to navigation and vessel traffic services. The legal framework laid down via this Act seeks to effectively address the discrepancies that arose in the course of adjudication of civil grievances under the regime of the Light House Act. Also, the clear-cut division of power amidst the official mechanism and authorities provides an upper edge. Further, the inculcation of penal deterrents for the breakage of the rules seeks to enhance the effectiveness of the act. However, the primary regulations of the Act such as the appointment of officers, committees, demarcation of districts, etc. have been kept under the bay of the central government, thereby, rendering the state government helpless and crippled to a certain extent. Effective functioning of the aids to navigation and management of the vessel traffic services could only be achieved with the harmonious functioning of the central and state mechanism wherein equal decision-making power is conferred upon both. Integrated and collaborative efforts coupled with efficient implementation would bear the fruits of success in the long run.

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

TRANSGENDER PROPERTY RIGHTS

Posted on March 24, 2022

Introduction

Transgender¹ or the third sex denotes those people who cannot align themselves to their given respective biological genders with their inherent biological features. They are usually born as male or female but their innate perseverance of gender turns out to be different from their bodily features. Their self-proclaimed gender identity doesn’t match with their sex leading to the discrepancy in their gender orientation. Transgender, transsexual, and hijra are synonymous with each other and are used to denote them.

Since the dawn of human civilization, the existence of transgender people has been acknowledged but they have been devoid of subsequent approval from mainstream society. Even in this 21st century, such people are viewed as taboo and are subjected to persecution and a state of constant denial. Shame and stigma still continue to characterize such subjects in both public and private spheres thus engendering grave misconceptions. They are systematically denied equal rights in spheres of education, employment, marriage, divorce, inheritance, property, adoption, etc. The rudimentary reason for their denial of equal rights is ambiguity in recognition of their gender status as most of the civil rights especially succession, inheritance, marriage, and property rights are gender-specific and the policymaking in India has been always conceived primarily in respect of only two genders i.e. male and female, thereby preventing them from exercising their civil rights in their desired gender.

National Legal Services Authority vs Union of India

The Supreme Court in its landmark judgment of National Legal Services Authority vs Union of India² declared the transgenders as the third gender and endowed them with the right of self-identification of gender as female/ male / third gender. This self-perceived gender identity forms a very crucial part of one’s right to life under Article 21 of the Indian Constitution. The two-judge bench affirmed their entitlement to the fundamental rights granted to them via the constitution of India. Any denial of their fundamental rights in the civil or criminal sphere owing to their third gender is discriminatory to them. The court held transgenders as socially and economically backward classes (OBC) who are entitled to reservation in educational institutions and public sector appointments.

Constitutional Rights

Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the law within the territory of India. The phrase “any person” includes transgender too. And article 15 prohibits discrimination against any citizen on grounds of sex. Non-recognition of the identities of transgender/hijras leads to the systematic denial of the rights of equality and equal protection of the law. Article 19 (1) (a) of the Indian Constitution describes that all citizens shall have the right to freedom of speech and expression. It guarantees one of the most basic and fundamental human rights. Expression and alignment of one’s gender is hence an obvious derivative of article 19 (1)(a). Denial of the right to express one’s sexual identity through speech and choice of romantic/sexual partner would lead to violation of Article 19

The Transfer of Property Act 1882 and Miscellaneous rights

The Transfer of Property Act 1882³ and its subsequent amendments regulate the transfer of property. The phrase ‘transfer of property’ denotes a demonstration by which a person transfers or passes the property to at least one person, or himself, and at least one different person. It basically implies the transfer of property from one person to another. The term person consists of an individual, or body of individual or company, or association. Section 5 of the Act provides that transfer of property must take place between two or more persons who are living or it must take place inter vivos. The word “person” above forth holistically includes male, female and third gender. The other property-related laws such as The Hindu Disposition Of Property Act, 1916, The Indian Easements Act, 1882, etc include the word “person” to connote and include transgender within its sphere and do not per se disqualify them from legal transactions.

Inheritance Laws

The inheritance and succession laws lay down rules pertaining to the devolution of property on the death of an individual. The property is devolved on the basis of the relationship between the deceased and the inheritor. The succession laws in India are governed by the respective personal laws of the religious communities that chiefly recognize inheritors into the watertight compartments of the male and female genders. In order to claim property rights, transgenders are required to recognize themselves as male or female.

The Hindu Succession Act 1956⁴ which governs the inheritance of properties is completely silent pertaining to the rights of transgender. It explains who is Hindu and whom all comprise the inheritance schedule (such as son, daughter, spouse, etc.) within the said definition. The Act establishes a comprehensive and uniform system of inheritance. Ownership over the property is granted only to males and females thereby excluding the third gender. Such trans people are devoid of property rights and subject to extreme prejudice and vulnerability. They have to align their genders to respective categories of either male or female in order to claim property rights. So they have to establish their gender identity as per the one assigned to them at their birth certificate. Moreover, trans people are not entitled to the status of legal heir of their parent’s separate property nor coparcener in the Joint Hindu Family with their gender identity.

Similar to the line of succession rules of The Hindu Succession Act, the personal law of Muslims i.e. Shariat too follows similar rules pertaining to transgender property rights. Indian Succession Act, 1925 governs property inheritance of Christians. Notably, Section 44 of the act has included transgender and elucidates upon their inheritance of the ancestral property.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019⁵ has made a decent effort to protect the rights of transgender and promote their welfare by prohibiting discrimination on grounds of education, employment, healthcare, movement, access to goods and services, choice of occupation, etc. The act has sought to remove discrepancies in unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property. Section 4(2) of the Act provides the right to self-perceived gender identity. Section 5 of the Act provides that a transgender person could be perceived as third gender (transgender) by making an application to the District Magistrate for issuing a certificate of identity as a transgender person. But the act does not delineate anything about property rights thereby perpetuating lacunae in the system.

Evolving Sphere

Recently States such as Uttar Pradesh⁶, Uttarakhand, etc have sought to enforce progressive laws on property inheritance of transgender people. It has successfully passed an amendment to include transgender people in the UP Revenue code wherein they will be included in the inheritance nomenclature. The transgender people will now be recognized as members of a landowner’s family and will hold an equal right to inherit agricultural property.

Conclusion

The SC judgment in the NALSA case coupled with THE TRANSGENDER PERSONS ACT, 2019 has sought to create a level playing field by endowing trans people with the right to self-identification and creation of the label of the third gender. Transgenders cannot be denied the right to property per se as they have the absolute right to inherit family property unless disqualified by law. The State must strive to ensure equality of rights and promote the holistic development of the trans community as a whole.

References:

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

DISCHARGE OF CONTRACT BY BREACH

Posted on March 23, 2022

INTRODUCTION

Section 10 of the Indian Contract Act prescribes the essentials for the formation of a valid contract which includes free consent of the parties, competency of the parties, lawful consideration, lawful object and ultimately entering into agreements that are not expressly declared void by the Act.

After the abovementioned ingredients of a valid contract are fulfilled and the object of the contract is served, it is said that the contract is discharged. There are four distinct ways by which the contract may be discharged which are as
follows:

Discharge by Performance
Discharge by Impossibility
Discharge by Agreement
Discharge by Breach

The article in hand seeks to uncover the details for the discharge of a contract by the breach and elucidates the required remedies.

MEANING OF BREACH

Breach of a contract is said to occur when either of the party to the contract renounces his liability or contractual obligations under the terms and conditions of the contract or makes the total or partial performance of the contract impossible due to his own act/ failure. The breach of a contract can be of two types:

Anticipatory Breach
Present Breach

ANTICIPATORY BREACH

Section 39 of the Indian Contract Act deals with the doctrine of anticipatory breach. The anticipatory breach is basically said to occur when the promisor rejects to perform the contract by announcing his intention of not fulfilling the contract prior to the actual date of the performance of the contract or disables himself from the performance of the contract in part or in its entirety.

Features:

Anticipatory breach absolves the innocent party from the obligation to further perform the contract and brings an end to the obligations of the original contract.

Anticipatory breach further entitles the aggrieved party to either sue the defaulting party immediately for the breach of the contract or wait till the time when the act was supposed to be done. The above principle was famously laid down in the landmark case of Hochester v De La Tour¹.

Further, anticipatory breach of a contingent contract i.e. performance of contracts on happening of any conditional event also gives a scope of action for damages.

If the defaulting party announces his intention of default and the aggrieved party decides to wait until the actual date of performance of contract so as to sue the promisor, then the contract is deemed to be alive, subject to the obligations of the contract, thereby implying that repudiation of the contract by the promisor has not been accepted by the promisee. In order to ascertain what constitutes repudiation, the entire conduct and the words of the party have to be objectively assessed on the anvil of refusal or abandonment to performance of the contract. The breach must strike the root of the contract. Silence of the aggrieved party does not lead to acceptance of repudiation.

Such condition of unaccepted repudiation enables the defaulting party either to complete the contract, thereby binding the promisee to accept the same, or else to take advantage of any supervening situation i.e. discharge by means other than repudiation. And if so happens that due to the supervening situation performance of the contract becomes impossible, then the defaulting party is absolved from his contractual obligations and stipulations.²

The date for assessment of the general damages in cases of anticipatory breach shall be the date on which the repudiation took place. If the aggrieved party does not accept the anticipatory breach of the contract, then the damages will be assessed from the date of the actual performance of the contract. In the meantime, the promise shall take all the reasonable steps to mitigate the losses to the minimum.³

It is to be noted that there lies a remedy of damages for the losses suffered due to non-performance of the contract even if the contract has been acquiesced by the promisee thereon (usually in the cases of anticipatory breach wherein the promisor is later allowed by the promisee to fulfill the contract).

Further, as per the mandate of Section 64 Indian Contract Act, the aggrieved party, on bringing an action for damages, shall be bound to restore the benefits or advantages that he might have received under the terms of the contract.

PRESENT BREACH

Present breach is said to occur when the defaulting party breaches the contract on the actual date of the performance of the subject matter of the contract. The aggrieved party, in such cases, shall be entitled to sue the defaulting party for the breach of the contract in a competent court of law and extract the requisite monetary damages.

DAMAGES FOR BREACH

Damages refer to the monetary compensation that is claimed by the injured or aggrieved party for the breach of contract. The burden of proof of the breach of contract lies upon the plaintiff. The action for damages is mainly assessed on the twin criterion of “remoteness of damages” and “measure of damages”.

The fundamental principle behind awarding damages is to place the plaintiff in the same position in which he would have been if the contract had been fulfilled or if the breach had not occurred. The damages are hence compensatory in nature and not penal. Motive and manner of a breach are not taken into account in order to ascertain the compensation.

1. Remoteness of Damages:
It was in the landmark case of Hadley v. Baxendale, that the first acceptable criteria for assessing the quantum of damages were evolved. As per it, only such damages should be considered for the purpose of computing compensation as may be fairly or reasonably be considered as arising from the natural or the usual course of actions or such as may be reasonably in contemplation of both parties while entering into a contract. The given case laid down two distinct rules for the purpose of computing damages.

General Damages: These damages are awarded in such cases of a breach that may arise naturally due to the usual course of things.
Special Damages: These arise on account of unusual or special circumstances on the part of the plaintiff and in order to recover these damages, the special circumstances should be brought to the notice of the defendant. The knowledge of special circumstances should be within the contemplation of both parties.

Provisions in Indian Contract Act:
Section 73 of the Indian Contract Act deals with monetary compensation or damages to be awarded in cases of breach of contract. The underlying principle behind the concept of damages is that the party breaching the contract must compensate the aggrieved party in respect of the direct, reasonable consequences, flowing from the breach of contract.

Section 73 of the Act underscores the twin principle laid down in the case of Hadley v Baxendale, i.e. losses that arise in the natural course of things and the losses that are within the contemplation of the parties thereto. Any such losses sustained due to remote or indirect causes shall not fall within the scope of the claim for compensation under Section 73.

It is to be noted that Section 73 casts a duty to mitigate the losses which might accrue due to the breach of the contract. The aggrieved party is expected to undertake reasonable efforts to avoid the losses and keep them to the minimum. Any unreasonable conduct on the part of the plaintiff that leads to an aggravation of the losses shall disentitle him from such aggravated losses.⁴

In the case of Madras Railway Co. v Govind Rao⁵, the court held that extent of liability in ordinary cases is what may have been foreseen by the spectrum of a reasonable man.

2. The measure of Damages:

A. Pecuniary Losses
After the determination of the general or special nature of damages, comes the next step of monetary evaluation of damages. As far as the mantra for calculating or measuring damages is concerned, the difference between the contract price and the market price forms the base for the award of damages (usually in sales transactions). For the loss of profits that may accrue upon resale, the court held that such loss was a special loss that was not recoverable unless it was communicated to the other party.⁶

The court may award nominal damages so as to recognize the rights of the plaintiff even if he suffered no losses. Besides this, the pre-contractual expenditure may also be recovered as damages if it was within the contemplation of the parties.

B. Non Pecuniary Losses
Initially the Victorian and the Indian courts were hesitant in awarding damages for non-pecuniary losses, but however slowly and gradually, it became a cult practice for the courts to award such damages. In the case of Farley v Skinner⁷, the House of Lords pointed out there was no such absolute reason as to why the non-pecuniary damages shall not be awarded. The Indian courts too made a popular practice to award damages for non-pecuniary losses such as distress and mental trauma.

Section 74
Section 74 stipulates that if the number of liquidated damages to be paid in case of breach is stated in the contract, then the aggrieved party is entitled to such compensation even if the actual loss or damage is proved or not. The party claiming compensation shall not be entitled to receive any greater amount than such stated in the contract. The compensation so awarded by the court shall be a reasonable one. In Maula Bux v Union of India⁸, SC affirmed the words of Section 74 by stating that the section dispenses the proof of actual loss or damage. However, the presence of loss or legal injury remains necessary so as to claim the monetary damages.

Section 75
Section 75 further reinstates the mandate of Sections 39, 73, and 74 by elucidating that the aggrieved party who rightfully rescinds the contract is entitled to compensation that is sustained due to the non-fulfillment of the contract.

CONCLUSION

The Indian Contract Act systematically lays down the detailed provisions for addressing the ensuing nuances of monetary compensation out of the contractual relationship. Section 39, 73, 74, and 75 provide the in-hand remedy to address the aspect of anticipatory breach, remoteness of damage, and measure of compensation.

Citations:

Court of Queen’s Bench, (1853) 2 Ellis and Blackburn 678
Avery v Bowden (1855)
Heyman v Darwins Ltd 1942 AC 356, 361
Derbishire v Warran 1963 1 WLR 1067
ILR 1898 21 Mad 172
Karandas H Thacker v Saran Engg Co Ltd AIR 1965 SC 1981
2001 4 UKHL 49 HL
1969 2 SCC 554

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

Issues and Challenges of Womens’ Career

Posted on March 20, 2022

Introduction

Women are the foundation of the general public. She assumes a crucial part in the monetary improvement of the nation and her commitment is all around as equivalent as their male partners. Without the dynamic cooperation of women in different public, social, financial, and political exercises, the advancement of the nation will be stale. Customarily, Indian women had been home-creators yet in the 21st Century, because of advanced education, better mindfulness, and expanding monetary requests of family, women likewise go out and pick professions. Albeit Indian women have begun working external their homes, there are a few issues and difficulties that functioning women face today. In some cases, they are not treated similarly in their work environment. They don’t get the very advantages as that of male workers as well. Orientation inclination, inconsistent compensation, security, mental and actual provocation, absence of appropriate family support, deficient maternity leave is considered significant issues and difficulties that functioning woman faces these days.¹

The difficulty of a woman in each phase of life is generally hard to classify as she is the main element on the planet that is confronting a particularly changing stage in her life like birth as a young lady kid, becoming spouse lastly becoming a mother. In the time of the 21st century, lady needs are equivalent to open doors as man and the first test is the way to adjust to work and home. Orientation predisposition, inconsistent compensation, mental and physical badgering, inadequate leave is a portion of the central points of contention of working ladies in the working environment. Aside from every one of these, a lady needs to manage practically all family obligations like an obligation as a mother, obligation as a spouse, household and everyday daily schedule as well as numerous social obligations. The fundamental expectation of this paper is to zero in on such key regions and difficulties looked by working ladies in the present time and to put the mental perspective on the issues, challenges, and jobs of society to help for adjusting the existence of working ladies in mental, physical, social and mental angles.

Throughout the entire existence of human turn of events, women have been as fundamental in the set of experiences making as men have been. Truth be told, higher status for women versus business and work performed by them in the general public is a huge sign of a country’s general advancement. There are many reasons and issues that constrained Indian women to work. The monetary requests on the Indian families are expanding step by step. Cost for many everyday items, costs on the instruction of youngsters, and cost of lodging properties in India raised, and these reasons force each family in India to search for available resources of expanding the family pay. Thus, women in India who were generally known as homemakers are compelled to go for occupations and take up even vocations that were thought of as just appropriate for men, for example, working in night shifts.

Working women i.e., the individuals who are in paid business, deal with issues in the work environment just by ideals of their being women. Social demeanor to the job of women lingers much behind the law. The demeanor which thinks women qualified for specific positions and not others causes bias in the people who select representatives. Along these lines, women find work effectively as attendants, specialists, educators, secretaries, or on the sequential construction system. In any event, when very capable women are free, the inclination is given to a male competitor of equivalent capabilities. An orientation predisposition makes an impediment at the enrolment stage itself. With regards to compensation, however, the law announces correspondence, it isn’t drilled all the time. The inbuilt conviction that women are unequipped for taking care of laborious positions and are less proficient than men impacts the installment of inconsistent pay rates and wages for similar work. Yet, in many families, her compensation is given over to the dad, spouse, or parents-in-law. In this way, the essential intention in looking for work to acquire monetary autonomy is invalidated in many womens’ cases.

The working and social situation in the present time is far not the same as that of twenty-thirty years prior. Progresses in innovation in addition to advancing work and the job of the family for women in India have changed the commitment to the business climate of the 21st century. The monetary requests for Indian families are rising step by step. Greater expense of residing, expanding costs on the schooling of youngsters, inflating the cost of lodging properties in India force each family in India to search for available resources of expanding family income. As a result, women in India, who were previously known for being homemakers, are being compelled to work and take on responsibilities previously reserved for men, such as working night hours in call centers or BPOs. Women are now diligently taking part in all male-dominated areas, such as medicine, sports, law, academia, the military, politics, banking, and top-level corporate roles. Working women can spend less time on household chores these days than they could thirty years ago.

Women workers in India are confronted with part a larger number of difficulties than their partners in different nations. Other than such countless endeavors from previous years, the female part of society is denied in contrast with the male area. They are not given the main goal in social and financial choices in their own loved ones. As per United Nations Development Program (UNDP) report, women are engaged with accomplishing 67% work of in the world; still, they are socially and financially denied. They are getting just 10% of the widespread pay and have a 1% part in worldwide resources. This segregation additionally endures in their workplace in sloppy areas. In the casual areas, women laborers don’t get the same wages for the same nature of work for the same hours done by men. They are taken advantage of in the work environment. They are a few demonstrations, for example, The Unorganized Workers Social Security Act, 2008, Domestic Workers Welfare and Social Security Act, 2010 and so on yet because of their ill-advised execution, women laborers are compelled to work and live in hopeless circumstances in the disorderly area.

In India, still, men are considered as the essential champ and supervisors of the family. Albeit working women handle their expert life in confronting contest and difficulties at work spot and staff life in overseeing family work, handle kids, family, cooking, social obligations are as yet considered as the obligation of women as it were. They need to require up an entire day of work, in addition, to dealing with all family exercises that they took care of as homemakers. Due to such performing multiple tasks, endeavors of woman expanded pressure becomes side-effect for her. Once in a while, the relationship with her Saul mate ends up being unequal, in the event that legitimate difficult exercise isn’t conveyed in both individual and expert life. On the off chance that we think about women’s job in the professional workplace, some of the time they need to bring their work at home likewise and it cuts not many more long periods of rest. It isn’t just about the diminished rest, yet this sort of way of life makes pressure on working women and it straightforwardly influences their loved ones. Getting up ahead of schedule, disregarding her medical problems, and preparing every one of the stuff for youngsters and her significant other is largely down to earth challenge. Along these lines, on a normal, women have lost 2 hours of rest each day and as long as 14 hours rest each day. Numerous Indian families are as yet living as joint families alongside their parents-in-law and guardians. This adds more pressure to women since they need to deal with them and satisfy all the relatives of their significant other.

The conviction of male superiority in the general public makes a few obstacles for women in their working environment. Women find that they should be obviously superior to their male partners to reach the top. Whenever she accomplishes that top situation in the organization, again it is much hard for women to work with male representatives. Likewise, on account of social and mental practice in the general public, the women associate also don’t loan backing to their own woman chief. Working in such circumstances unavoidably puts a lot more prominent strain on women than men. These kinds of issues gain women less anxious to headway in their profession. It has been seen that the family obligation grows the working women need to change their work, select temporary work or leave the work. The present circumstance makes pointless pressure for losing their employment.²

For the most part, women are more reluctant in monetary investments. They are more mindful of cash. There is a maxim for women: “The hand that stones the support controls the world”. Saving is the propensity for women. In prior days likewise, when women were just homemakers, they were utilized to set aside cash for crises as well with respect to future preparation. Back then, women didn’t know about different investment outlets. Yet, in the 21st Century, working women have become more mindful about monetary investments and they have the extraordinary potential to acquire a positive change financial state of the country. The present working women put resources into different investment roads like offers, debentures, common assets, products, and so on.

Employment Trends of Women in India

The expansion in the number of women in the work market connotes a significant pattern with respect to womens’ business. This has been happening close by expansions in the workforce and labor force, particularly for metropolitan women, albeit country ladies laborers prevail as far as interest rates and general size. The rising portion of women’s interest in the workforce and its critical commitment to family pay as well as GDP require some approach consideration to be paid to the orientation aspects of the business. The 11th Five Year Plan record without precedent for the historical backdrop of Indian arranging perceives women as equivalent residents as well as ‘specialists of supported financial development and change. A multi-pronged methodology is underscored to resolve issues concerning women workers, like the arrangement of essential privileges and fortifying of institutional systems. The expansion in the development of business seems, by all accounts, to be a lot higher for women workers contrasted with male workers. Indeed, even where the extent of working ladies as reflected in the women’s work cooperation rate might be low, the outright numbers have fundamentally expanded, given the pace of populace development over the long run.³

The rise in employment opportunities throughout the early years of the new century was 9.3 million jobs each year (from 1999-2000 to 2004-05). Women’s participation has benefited from the acceleration in employment growth from 1.25 percent per year (1993-94 to 1999-2000) to 2.62 percent per year (1999-2000 to 2004-05). Nearly 15 million women joined the workforce out of the 46 million job possibilities created from 1999-2000 to 2004-05 (compared to 24 million in the previous period, 1993-94 to 1999-2000). Women employees in urban areas nearly doubled, while women workers in rural regions rose from 9 to 12 million. This beneficial transformation is especially pronounced in the metropolitan context, where necessary educational inputs and modern thinking about women’s jobs are becoming more apparent. Women’s labor is rapidly being drawn to rural agriculture, with nearly four-fifths of women in rural regions working in agriculture. This is significant in light of the diminishing percentage of male workers (from 74 percent in 1993-94 to 66 percent in 2004-05). As a result, it appears that women in rural regions are having a harder time transitioning away from agriculture. Women are primarily involved in agriculture as cultivators/farmers and agricultural laborers. However, women’s share of agricultural laborers has decreased slightly, while their share among cultivators has increased. Women in metropolitan regions have seen a significant increase in manufacturing jobs and have been able to expand their proportion of the workforce, particularly after 1999-2000. (From 24 percent to over 28 percent in 2004-05). As a result, the proportion of female workers in manufacturing has increased significantly in metropolitan areas, whereas the proportion of male workers has remained the same. Women have acquired work in the services sector as well, particularly in the domestic and personal services category.

India’s economy has gone through a significant change since the country’s autonomy in 1947. Agriculture presently represents only 33% of the total national output (GDP), down from 59% in 1950, and a wide scope of current enterprises and backing administrations currently exist. Disregarding these changes, agriculture keeps on ruling business, utilizing 66% of all specialists. India dealt with economic issues in the last part of the 1980s and mid-1990s that were exacerbated by the Persian Gulf Crisis. Beginning in 1992, India started to execute exchange progression measures. The economy has developed the GDP development rate went somewhere in the range of 5 and 7 percent yearly over the period and significant headway has been made in slackening unofficial laws, especially limitations on private organizations. Various areas of the economy have various encounters about the effect of the changes. In a nation like India, useful business is vital to destitution decrease technique and to achieve economic fairness in the general public. However, the aftereffects of the free activity of market influences are not generally fair, particularly in India, where a few gatherings are probably going to be exposed to disservice because of globalization. Women comprise one such weak gathering.

Women have been side-lined in economic activities as a result of technical inputs introduced by globalization, while men have typically been afforded greater opportunities for learning and training. As a result, more women than ever before are entering the informal sector or casual labor force. For example, while new rice technology has boosted the usage of female labor, the increased workload for women is in unrecorded and frequently unpaid operations that fall under the category of home production activities. The weaker groups, particularly women, are denied the medical attention they require. As a result, the bulk of Indian women have little ability to undertake useful work; the “ability” to pick among alternatives is evident by its lack.

Most women in India work and add to the economy in some structure, a lot of their work isn’t archived or represented in true measurements. Women furrow fields and collect harvests while chipping away at ranches, women weave and make handiworks while working in family enterprises, women sell food and assemble wood while working in the casual area. Also, women are generally liable for the everyday family errands (e.g., cooking, getting water, and caring for youngsters). Albeit the social limitations, women face are changing, women are as yet not quite as free as men to take an interest in the conventional economy. Before, social limitations were the essential obstructions to female work now nonetheless; the lack of occupations all through the nation adds to low female work too. The Indian registration isolates laborers into two classifications: “principle” and “peripheral” laborers. Principle laborers incorporate individuals who labored for quite some time or really during the year, while negligible specialists incorporate the people who worked for a more limited period. A large number of these specialists are agrarian workers. Neglected ranch and family venture laborers should be remembered for either the fundamental specialist or minor specialist class, as fitting. Women represent a little extent of the conventional Indian workforce, despite the fact that the quantity of female fundamental laborers has filled quicker as of late than that of their male counterparts.

Challenges faced by Women in Workplace

Gender Biases
Gender biases start to occur at a beginning phase for Indian women. It is extremely challenging to acknowledge the way that women are additionally equipped for working side by side with men. Indian culture upholds male predominance in all major, significant, and testing assignments while women are viewed as frail and just fit for bearing lesser work tension at the workplace. The potential and capacities of Indian women have generally been misjudged in respect of their enrolments, pay issues, and advancements. In numerous families, regardless of whether a woman is working, her all compensations are given to her better half, father by marriage, or senior individual from the family and along these lines, her autonomy is on the shallow level. However, a woman is working, still, she needs to rely upon someone.⁴

Balancing Personal and Professional life
For Indian working women, striking a balance between work and family life is incredibly challenging. She is in charge of meeting all of the family’s demands, especially the children’s. Women’s career and professional objectives are still considered secondary in India. In the majority of households, there is a lack of emotional and moral support for working women. At the same time, there is a slew of formal requirements and dates that women must meet in order to keep their jobs. Working women are tremendously stressed in their day-to-day lives as a result of their dual obligations to become excellent in all tasks.⁵

Mental and Physical Harassment
To make progress in the corporate sector, women feel that they should show improvement over their male colleagues. This prompts better standards and productivity by their chief. This sort of condition makes strain for women. Inadequate Maternity leave is likewise the reason for pressure for working women as they need to deal with their child as well as accomplish the objectives given to them in office. Indian working women additionally feel unstable in their working environment. There are many situations where women subordinates are requested sexual blessings from their male bosses consequently of the advancement and development allowed to them. The male bosses offer that they have done some kindness or additional blessing that ought to be reimbursed with very remarkable respect from women. Incorporate sector, generally women are treated as powerless and defenseless, and henceforth male colleagues and bosses imagine that they can exploit their female colleagues and subordinates.⁶

Negligible Personnel Space
Indian working women need to keep a harmony between their families and profession if they have any desire to make freedom and progress in their lives. In this issue, women get fretful. They attempt to expand their functioning power for their work which makes them ailing in rest. They bit by bit feel baffled and defenseless on the grounds that nobody is there to help and support them. They some of the time feel secluded and because of this, they need to confront numerous enthusiastic and mental issues. A sleeping disorder and sadness are two significant mental issues that Indian working women generally experience the ill effects of. They feel a massive absence of faculty space. They are incapable of dealing with themselves. They feel incapable to talk about their thoughts with anybody since they realize that nobody will get them. Under this mental strain, they are left with just two choices: either to surrender the work or to acknowledge the downturn as a piece of their functioning life.

Issues

Inadequate maternity leave is a major issue for working mothers. This has a negative impact on both their professional and personal lives.
Another issue that working women face is a lack of family support. Housework is still considered entirely the role of women. They are against women working late in the office because it affects their performance and advancement.
Another difficulty for working women at work is a lack of security. Because of the absence of security provided to women working in business sectors and other private organizations, they are more likely to be victims of various crimes at work.
For working women, unequal remuneration is another concern. It has been noticed that female employees are paid less than male employees. Despite the fact that women are more productive than males, they are not always compensated equally. This causes despair and demotivation in them, which has an impact on her professional life as well.
Working women are unable to devote adequate time to their children’s varied activities and school functions due to their conflicting roles. Women are also stressed as a result of this.
Despite her complete devotion to her profession, their employment is still seen as secondary in the family and society. In today’s society, women’s primary obligations are still thought to be caring for their families and children. This discourages people from advancing in their careers.
If a working woman has to go on a business trip or attend a training program for her career advancement, she must first obtain permission from her spouse and family. They must also make suitable preparations for their children. In India, however, this is not the case.

Psychological Aspects of the Problem

According to the findings, the majority of working women experience stress as a result of role conflict or numerous roles. They must fulfill many duties, such as managing work at their workplace, managing the needs of their family and children, and fulfilling societal commitments, among others. Working women confront a significant issue when it comes to resolving work-family conflicts. Working women who have rigid schedules have more family problems than working women who have flexible schedules. This can lead to a variety of health problems, including regular headaches, hypertension, obesity, and so on.

Working women’s stress levels rise in direct proportion to their age, according to an analytical study. This could be due to the greater duties placed on older women both at home and at work. Working women’s stress levels are also affected by the number of hours they work. This could be related to the nature of their employment, which causes physical and mental exhaustion. Another factor that causes stress in working women is the childcare arrangement. Working women must make suitable plans for their children’s care and everyday activities, which adds to their stress.
All of these stress-inducing issues can be controlled if the institution lends a hand to working women in the form of superior and subordinate assistance, as well as a sufficient number of paid and unpaid leaves. Working women can also benefit from stress-relieving measures such as spending time with family, yoga and meditation, entertainment and music, and so on.

Conclusion

Presently a day’s women laborers are improved and advanced in their work environment and in mechanical work. Worker’s organization should attempt to work on the circumstances for woman’s laborers in many parts, for instance, maternity leave is effectively provided for women and help the woman for accomplishing higher post really women’s tendency is an advancement to acquire top-caliber in each field yet on the off chance that the condition isn’t prepared then the decrease of advancement and enhancement in work will happen and so forth Women laborers are frequently dependent upon sexual badgering then the Government should put severe principles for these sorts of violations, additionally, open vehicle framework now and then the risk for woman and Government should put more Inspection. Customarily individuals imagine that men should just work and gain cash and women should function as a household, however, the monetary requests on the Indian families are expanding which is the reason women likewise should organization in acquiring pay for families. In this way, a major change is expected from the perspectives of workers, relatives, and the public.

References:

Azadeh Barati, Rooh Ollah Arab, & Seyed Saadat Masoumi, Challenges and Problems Faced by Women Workers in India, Human Resource Management http://www.nevillewadia.com/images/Cronicle2015/Azadeh-Barati15.pdf
Aarti Verma & Mahesh Mulani, Challenges and Issues of Working Woman in 21st Century, International Journal of Research in all Subjects in Multi Languages http://www.raijmr.com/ijrsml/wp-content/uploads/2018/05/IJRSML_2018_vol06_Sp_issue_3_01.pdf
Dashora, (2013) Problems Faced by Working Women in India, International Journal of Advanced Research in Management and Social Sciences, 2(8), PP (82-94).
Kumari, V. (2014). Problems and Challenges Faced by Urban Worming Women in India. A Dissertation Submitted to the Department of Humanities and Social Sciences, (1)
Bhuvaneshwari M. (2013), “A Case Study on Psychological and Physical Stress Undergone By Married Working Women”, IOSR Journal of Business and Management, e-ISSN: 2278-487X, p-ISSN: 2319-7668. Volume 14, Issue 6.
Shobha Sundaresan (2014), “WORK-LIFE BALANCE – IMPLICATIONS FOR WORKING WOMEN”, Ontario International Development Agency International Journal of Sustainable Development, Canada, ISSN 1923-6654 (print) ISSN 1923-6662 (online)

This article is written by Arryan Mohanty, a student of Symbiosis Law School.

Tort – Recent Developments and Faults

Posted on March 17, 2022

Introduction

Tort is a civil wrong, meaning it is a wrong committed against a person. Tort comes from the Latin word “tortum,” which means “crooked” or “twisted.” It is equivalent to the English term ‘wrong’ in this sense. There are two kinds of law: civil and criminal. Tort and contract law are two subsets of civil law. It’s essentially a violation of a legal obligation. It violates the legal rights of others. A tort happens when someone intentionally or carelessly harms another person.

Civilization and law coexist. It is not possible for one to exist without the other. If one thrives, the other develops as well, and if one declines, the other suffers. As a result, tort law was created to deal with everyday offenses.

The Tort Law can be traced back to the Roman precept alterium non-laedere. The maxim means “not to harm another,” implying that no one should be harmed by their actions or words. This maxim is similar to the maxims of honesty vivere, which means “to live honorably,” and suum clique tribuere, which means “to render to every man that which belongs to him,” or “to bring fairness to every person.” The development of tort law can be traced back to these three maxims.

What is Tort according to jurists?

Salmond defined tort as, “It is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not solely a violation of contract, trust, or other essentially equitable obligation.”

Winfield mentions, “Tortious liability comes from the breach of a primary legal obligation: this duty is owed to all individuals, and its failure is redressable by an action for unliquidated damages,” Winfield says.

The definitions of Winfield and Salmond are incompatible. The practical point of view is represented by Salmond’s definition, but the theoretician point of view is represented by Winfield’s definition. Salmond’s point of view is preferred by lawyers, but Winfield’s is preferred by students. Furthermore, Salmond’s perspective is narrower, whereas Windfield’s perspective is larger.

Application of English Law of Torts in India

In India, tort law is based on English tort law.
The English Law of Torts has a significant influence on Indian tort law, despite the fact that the act has been changed to reflect Indian legislation. When the British ruled India, they established their own set of rules and procedures for administering justice. Jimha, which means crooked in Sanskrit, was believed to be akin to “tortious of fraudulent conduct” in ancient Hindu law. At the time, the scope of British tort was limited.

Because the Indians were utterly uninformed of the English laws, they were found to be unjust and inequitable. It was difficult to administer Indians in the early days of British law since there was an English Judge who had to deal with a case in a foreign language. As a result, they resolved to draught an Indian Tort Law based on English concepts in order to avoid chaos. They chose to set up courts in India in the 18th century after studying the Indian laws at the time and obtaining the necessary approval.

Mayors Courts in the Presidency Towns of Calcutta, Madras, and Bombay were the first courts established by the British in India. These courts were subject to English statutes and Acts, which were then implemented in England.
The courts established that “justice, equity, and good conscience” were the guiding principles at the time. The Privy Council understood the phrase “justice, equity, and good conscience” to include norms of English law that are suitable to Indian society and circumstances. All of this meant that the High Courts of Bombay, Calcutta, and Madras adhered to the Common Law of Torts, while the other courts applied the principles of justice, equity, and good conscience.
Also, when looking at Indian decisions, Justice Bhagwati stated in M.C. Mehta v. Union of India,

“In a highly industrialized economy, we need to develop new ideas and lay down new rules that will effectively deal with new challenges that occur.” We cannot allow our judicial thought to be shaped by the law as it currently exists in England, or for that matter, in any other country. We are absolutely open to receiving illumination from any source, but we must first establish our own jurisprudence.” We can infer from the words that Justice Bhagwati recognized the importance of having one’s own law and how it contributes to the nation’s growth.”

The main purpose of Law of Torts in India

The primary goal of tort law is to provide compensation to people who have been injured. Though, in current times, the goal is to distribute losses among those who are connected in some way.

Furthermore, some authors argue that Tort Law is more concerned with punishing than compensating. For the purpose of Torts, everyone has their own point of view. The violation of a general duty is a common ingredient in both crimes and torts. Murder, robbery, burglary, and other major crimes are all under governmental supervision. The state has power over all common wrongs in Tort Law as well. Individual harm is thought to be equivalent to societal harm.
As a result, the primary goal of tort law is to punish wrongdoers and foster social peace.

Reasons for the slow development of Law of Torts in India

In comparison to other countries, India’s tort law is not well developed. Even the Indian Tort Law does not have a codified version. There are several reasons for India’s sluggish development of tort law, some of which are stated below:

The law is ambiguous. People face a great deal of uncertainty because the legislation is not codified and is still in its early phases of development. This is why only a small number of cases are filed under Indian Tort Law. Furthermore, there are few precedents, which adds to the vagueness of Tort law. The existing precedents are from English Tort law and cannot be applied to Indian law.
There is a general lack of political awareness among the general public. Because most people are unaware of their rights, tort law is rarely employed in the country. This issue arises as a result of India’s widespread illiteracy, which also causes people to avoid going to court to exercise their rights. People who carry out their responsibilities are given more weight than those who demand their rights.
Why do people disregard their legal rights? This is due to a lack of awareness of their rights and the country’s high illiteracy rate. Because of their illiteracy, people are unaware of their rights and are hesitant to seek redress through the courts.
Poverty continues to be a factor in India’s delayed development of tort law. The majority of India’s population is economically poor, and as a result, they are unable to afford the hefty costs of litigation. This is still a major reason to avoid bringing a Tort case.
The court system is also highly expensive. The cost of going to court and hiring a lawyer is extremely significant. As a result, rather than approaching the court, the poor man chooses to suffer the torture. The cases are likewise handled in a molasses-like manner. On the other hand, in England, the administration of justice is so cheap and quick that these types of cases are resolved in under a year. All of these issues contribute to the tort law’s delayed evolution.

The number of pending cases in India as of October 13, 2018, is depicted in the graph below.

The graph was created using data from the National Judicial Data Grid. Due to the sluggish evolution of Indian legislation, a considerable number of cases are still waiting.

Have Torts been Ignored in India?

The next stage will be to see if the Indian court system has disregarded tort law. Simply said, tort law has not been forgotten. The M.C. Mehta case, which established the absolute liability rule, the Supreme Court’s direction on Multinational Corporation Liability, recognition of Governmental tort by government employees, principles on the legality of the state, the evolution of the tort of sexual harassment, a grant of interim compensation to a rape victim, and award of damages for violations of human rights under writ jurisdiction are all examples of this.

Despite the fact that most areas of law, such as crimes, contracts, property, trusts, and so on, have been systematically organized, India’s lack of a torts code is notable. The work of Indian attorneys and judges has contributed significantly to the evolution of tort law. Tort reform has been advocated for about a century and a half, with the earliest support coming from Sir F Pollock in 1886, who drafted the ‘Indian Civil Wrongs Bill.’ The bill, however, was not brought up for consideration in the legislature.

The value of code cannot be denied, but it is vital to remember that tort law is still in its infancy, and codifying it would not only be difficult but may also stifle its progress. However, the lack of a code prevents torts from becoming the dominant mode of litigation. The evolution of tort law in India pales in comparison to that of other progressive countries, where tort law is substantially more mature.

As previously stated, codification of tort law at this time would be premature. A more prudent approach would be, to begin with, enactments in areas where case law is lacking. The subject of the government’s liability when it comes to torts committed by its workers is one of the first suggestions made by the Law Commission in this regard.

In the report of the commission led by MN Venkatachaliah CJ, the National Commission for Review of the Working of the Constitution (NCRWC) has also recommended a statute that makes the state liable for the torts of its employees (2002). The small volume of tort litigation in Indian courts, on the other hand, contributes considerably to why an Indian code on this branch of law may be premature. Currently, only a small percentage of tort lawsuits are ever brought to court. However, this is a catch-22 since until a code for tort law is developed, there will be few tort cases brought in courts because people have no means of knowing what they are getting into.

Concerns with Tortious Litigation in India

Despite the fact that India is regarded as a litigious country, the number of lawsuits filed is quite modest. This is because of the limits and roadblocks that have been placed in place, including prohibitive fees, lengthy delays, and inadequate harm grants. In recent years, there has been a notable increase in the number of cases completed, particularly in cases involving the administration. This is typically linked to India’s financial development and, as a result, increased awareness of legal rights.

Common law jurisprudence shaped the Indian legal system and was introduced to the Indian people in an uncommon way. Although the English tort law served as a model for its Indian counterpart, its application is still ambiguous and limited. Several decisions and cases involving defamation and contributions between joint tortfeasors plainly illustrate that India cannot and does not adhere to English common law.

The English tort law applied differentially to Presidency towns and the mofussil throughout the colonial era. Indian citizens are exempt from the champerty and maintenance statutes. In fact, only those provisions of English tort law that suit the local conditions in India have been upheld and are valid in India. Given this situation, determining whether a given English statute also applies in India is difficult.

It was also unclear whether a specific statute remained in force in India after being abolished or changed under English law. For such a question, there is no final answer. As a result, unless a judge decided otherwise, it was difficult to know whether aspects of English law were applicable in India. Tort law remained uncodified even after the Constitution took effect. Article 372 of the Indian Constitution states that legislation in effect immediately prior to the adoption of the Constitution remains in effect. Any rulings issued by English courts, on the other hand, are no longer required to be upheld by Indian courts.

These decisions may only have persuasive power at most. As a result, the state of tort law remains unchanged. Because English tort law cannot be applied generally to the Indian setting, Indian tort law as a whole remains ambiguous. Furthermore, there is still a discrepancy in the application of laws in Presidency towns against the mofussil.
Citizens do not have a clear knowledge of their rights and responsibilities before going to court. Lawyers are likewise constrained in how much assistance they can provide in this circumstance because many areas of the law are still uncertain. The judge presiding over the case also has a difficult assignment ahead of him.

It’s simple to understand why victims often accept the wrongdoings they’ve been subjected to without pursuing legal redress. Is there always a way to stand up for one’s rights? The explanation, according to Professor Northrop, could be found in the cultural contrasts between eastern and western nations. Compromise is encouraged in Eastern societies. Furthermore, Asian tribes have a reluctance to use Western, right-wing legislation to resolve their conflicts. As a result, when it comes to torts, there is very little litigation.

People have been skeptical of such sweeping generalizations for a long time, while also urging that we reconsider the need for tort law litigation in India and its repercussions. Such recommendations strongly propose that empirical research be conducted to evaluate the validity of such reasons, which are mostly based on sociological, civilizational, and cultural elements.

If there is one thing that is certain in today’s culture, it is that quality justice is not provided; rather, it can only be purchased at a hefty cost. This is not to imply that the court is corrupt; rather, it demonstrates how a common man cannot even imagine receiving proper recompense for the damages to which he is entitled. This is true because the adversary can always use his money or influence to get around our country’s complicated judicial structure.

The commoner, on the other hand, will face a chain reaction of procedural issues as soon as he approaches the judicial system with his grievance, which will absorb all of his money, willpower, and time. The aggrieved will be obliged to pay hefty lawyer’s fees, court fees, and other incidental charges just to file his claim in court. To the uninitiated, it may not seem true, yet his legal expenses in seeking to recover his losses might sometimes much outweigh the original amount of his claim.

Unfortunately for him, if he loses at the conclusion of the trial, he may be forced to pay even more money to the court, first as costs, and then to file an appeal in a higher court. We haven’t even discussed the length of time it takes to resolve a civil case in India. According to studies, courts in tortious litigation cases take an average of nearly 6 years to reach a judgment. So far, the shortest time it has taken for a tort case to be resolved in 5 years, while the longest time it has taken is 13 years. Even severely harmed people are discouraged from resorting to civil action due to the excessive costs and lengthy decision-making process involved in tort claims.

We have highlighted a few cases that have further discouraged those who have been wronged in order to show the court attitude in such scenarios where compensations must be paid. According to precedent, in a case where the plaintiff’s claim was for Rs. 10,000/-, he was only awarded Rs. 1/- in compensation. In another case, two civil actions were valued at Rs. 500/- apiece, but the court only granted the aggrieved parties Rs. 60/- and Rs. 50/-, respectively.

The Hon’ble Nagpur Bench of the erstwhile Bombay High Court determined that in a matter where the claim was for Rs. 11,300/-, the aggrieved would be satisfied with an award of only Rs. 315/-. In a case before the Hon’ble Madras High Court, a plaintiff filed a claim for Rs. 10,000/- but was only given Rs. 650/- in compensation. It should be noted that these examples are somewhat ancient, yet they have been mentioned to emphasize the Indian judiciary’s inclination to ignore tort proceedings and award grossly disproportionate amounts when contrasted to the plaintiff’s claims.

Major Breakthroughs in Tort Law in India

UPHAR CINEMA CASE –The Gateway to Tort Law in India

The Uphaar Cinema, located in a wealthy suburb in the center of the country, New Delhi, caught fire on June 13, 1997, due to a malfunctioning generator mounted by the Electricity Board in the theatre’s basement. The exits from the balcony were clogged due to the installation of unlicensed seats years ago. As a result, the occupants inside the theatre were unable to flee, and fifty-nine people perished and another hundred were injured.

In November 1997, all of the injured’s outraged family members established an association and filed a complaint in the High Court of New Delhi, represented by a volunteer lawyer. The group sought Rs. 22.1 crore in compensation and Rs. 100 crore in punitive damages, which would be used to establish a trauma center, making it the biggest demand in an Indian tort case to date.

Following that, in 2003, the court ordered Rs. 21 crores in compensation for the families of the deceased people, as well as Rs. 1.04 crore for the 104 injured theatre-goers. In addition, a sum of Rs. 2.5 crore has been approved for the establishment of a trauma center in this regard.

The multimillionaire theatre owners were then charged with criminal offenses, and the Sessions Court found them guilty and sentenced them to two years in prison. However, the aggrieved association, dissatisfied with the penalty, went to the Supreme Court in 2007, which maintained the convictions and enhanced the sentence.

In India, the Uphaar Cinema Case was a watershed moment for tort relief in catastrophes. It had well-organized and affluent appellants represented by a dedicated lawyer who did not charge for his services, as well as a case with no evidentiary issues.

However, fourteen years after the fire, on October 13, 2011, the Supreme Court reduced the damages awarded to the deceased victims to a fraction of their original amount, from 2.5 crores to 25 lakhs, a 90% reduction, and all government agencies charged with the fire were exonerated except the Delhi Electricity Board. Even when it was a win-win case totally in favor of the appellants who had been tortured by the incompetent authorities, the future of mass tort in India appeared dismal once again.

In 2014, the Supreme Court heard a new appeal in the criminal case of Uphaar. It upheld the Ansals’ convictions, i.e. the cinema owners who had previously been found guilty, but it couldn’t agree on the amount of compensation to be paid to the victims. Justice T.S. Thakur favored restoring the Ansals’ original punishment, but Justice Gyan Sudha Mishra favored awarding Rs. 100 crore as compensation for the establishment of a Trauma Center in the Uphaar Victims’ memory. The judge’s readiness to award such a large sum for a tort law case in India, far bigger in magnitude than had previously been contemplated, demonstrated the growth of mass torts in India.

INDIAN MEDICAL ASSOCIATION VS. V.P. SHANTHA– The Saha Case

In 1986, Parliament passed the Consumer Protection Act, which established a three-tiered consumer grievance redress system to give remedies for substandard “goods and services” across the country. In 1995, the Supreme Court ruled that “medical services” would fall under the Consumer Protection Act of 1986’s “goods and services” category. As a result, medical claimants no longer have to travel to court and pay high court fees, and they began submitting claims in Consumer Tribunals, which accounted for the majority of the cases handled by the Consumer Tribunals at the time.
From 2008 to 2014, the National Consumer Dispute Redressal Service delivered 154 medical malpractice lawsuits, accounting for 8% of its total judgments. Surprisingly, the claimants won over the medical practitioner in nearly 45 percent of the cases. From the moment the lawsuit was filed until the final verdict was reached, it took an average of 11.7 years.

An Indian-American couple traveled to Kolkata a year after the Uphaar tragedy to meet their relatives. The husband was a medical doctor, and the wife was a child psychologist who was 36 years old. The wife had a treatable but uncommon skin ailment and was admitted to the AMRI hospital, where she was cared for by a number of famous medical professionals. The treatment involved the administration of massive amounts of Depomoderol, which exacerbated the wife’s condition and finally led to her death.

Dr. Kunal Saha, the dissatisfied spouse, filed a complaint with the West Bengal Medical Council, which cleared the doctors. The spouse then filed criminal charges against the doctors under section 304A of the Indian Penal Code. The doctors were convicted by the West Bengal courts, but the Calcutta High Court overruled the District Court’s decision and exonerated them. Regrettably, the Supreme Court confirmed the Calcutta High Court’s decision regarding criminal responsibility.

Dr. Saha’s wife died as a result of the negligence of the three AMRI doctors, and a claim of Rs. 77 crore was made with the National Consumer Disputes Redressal Commission (NCDRC). The National Consumer Disputes Redress Commission (NCDRC) dismissed his claim and complaint in 2006. Dr. Saha represented himself in all of these proceedings, which cost him in a number of ways: (1) He had to travel 50 times from the United States to India as the case advanced. (2) Due to legal and travel expenditures, he declared bankruptcy in the United States of America. (3) He did not take up his academic position in Cincinnati, and as a result, his academic career was cut short.

Finally, the Supreme Court of India rejected the NCDRC’s ruling in 2009, and the matter was referred back to the National Consumer Disputes Redressal Commission to determine the amount of compensation. In October 2011, the commission finally awarded Dr. Saha damages of Rs. 1.5 crore. When the matter was appealed to the Supreme Court, a sum of Rs. 6.08 crores was awarded to Dr. Saha, directed against the doctors and the hospital, plus interest of 6% per annum, more than double the compensation previously awarded.

The Saha Case is a classic example of a one-on-one case that resulted in a milestone in Indian tort law. The Supreme Court granted increased damages because of the loss of a long career with a high American income that was harmed. The Saha case is an interesting reversal of the Bhopal Gas Tragedy, in which the perpetrator was an American Union Carbide Company and the victims were Indians, whereas the Saha case involved Indian wrongdoers and an American victim. We still don’t know if the broad tort damages based on monetary losses perpetuate gaps and inequality among the general public.

The Future of Torts in India – Conclusion

There is no empirical evidence to claim that India is a litigious nation. The truth is that Indian courts move slowly not because they are inept, but because there are too many cases for too few judges. We need to increase capacity in order to make our judicial system more strong, not just for civil cases, but also for criminal proceedings. Personal harm, which is addressed by tortious litigation elsewhere in the globe, requires significant attention in India, as has been adequately portrayed in this study. Tortious responsibility claims, both against the government and private parties, abound in the country. The procedure of approaching the court, on the other hand, is so delirious for the plaintiff that they are better off not going.

In general, as things stand now, those with money and privilege are able to buy their way out of the judicial system and avoid responsibility for their own negligent behavior. With little resources, it is the poor who must fight the system and the aggressor. This deplorable state of affairs necessitates a reassessment of tort litigation in India. Perhaps there is a need to constantly issue statutes that correctly deal with diverse tort law principles, rather than codifying and therefore making the entire branch immobile. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also protecting human life and dignity. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also elevating the value of human life and dignity for all people, not just the wealthy.

This article is written by Uday Todarwal.

SHOULD GAMBLING BE LEGALIZED IN INDIA?

Posted on February 26, 2022

Abstract

Gambling, in the current time, is mushrooming at an enormous speed, thereby posing a grave threat to the stakeholders involved due to its inherent vulnerability. The vociferous and the reverberating calls for its legalization newer assume more significance given the nebulous state of gambling laws in the country. Although the legalization would bring with itself a gush of entailing benefits, the profound and the pressing issues at hand pertaining to legalization are required to be given a thorough perusal including the pricking need to overhaul enforcement mechanism rather than venturing into the question of how and when to legalize the gambling given the legal and socioeconomic intricacy of India.

Introduction

It would be apposite, to begin with, the scrutinization of the term “gambling”. Gambling is a game that involves chances of winning or losing money or possessions of bet. Cambridge dictionary defines betting as the habit of risking money and placing a wager on the outcome of sports events. Gambling is a genus while betting is a species and both function on the coefficient of unpredictability especially those of the sporting events. The modern world thrives on the perpetuities of monetary gains and gambling serves as a handy way to satiate those materialistic needs.

This article seeks to systematically articulate the advantages and disadvantages that ensued due to the legalization of gambling, thereby concluding with some apposite and congruous solutions.

Background

India and gambling have had a substantiative co-relationship since ancient times, with the Rig Veda believing to have documented its first description. Since then, gambling has been a popular choice in India among the masses when it came to quick monetary gains in the course of satisfaction with worldly needs. Initially, gambling was encouraged in colonial India due to its economic benefits, but soon, it was illegalized due to its ensuing negative consequences such as bankruptcy, criminal delinquency, etc.

Thus, the Public Gambling Act of India was passed in 1867¹ to regulate and restrict gambling practices, thereby, illegalizing gambling albeit without sufficient punitive sanctions. The Act sought to restrict most forms of gambling including sports gambling (lotteries, casinos, festive gambling, etc were allowed and regulated in a few states) that was wagering in nature involving pure chance (eg: using the roll of dice or marble to determine the outcome) baring the few games that involved “skill” and not pure chance such as horse racing; online games of skill such as rummy, poker, fantasy games, etc. In K.R. Lakshmanan v. State of Tamil Nadu², the Apex court held that “The test of the legality of gambling vis-à-vis nature of sports is dependent upon the dominance of the element of skill/chance with regard to a recognized sport.”

With the advent of the constitution, Subjects of betting and gambling were kept in the State list as entry no. 34. The States have been given the liberty to delve into their own legislation on betting and gambling, having the freedom to regulate and deregulate it. While some states such as Sikkim (which has legalized betting in the online form), Kerala (conducts State-run lotteries), Goa³ (which has legalized casinos), etc have framed their own betting laws, others continue to govern themselves via the Central legislation of 1867. In a nutshell, both online and offline sports betting baring the games involving “skill” are currently illegal in India.

In recent times, gambling has unfettered its wings, mushrooming at an enormous speed with no signs of ebbing down in near future, more so due to the advent of advanced technology, penetration, and access to the internet in even the remotest corner of the world. India, too remained at the forefront to exploit this vice opportunity, with the 2016 ICC and the 2013 IPL betting scandals that involved thousands of crores of Rupees, giving testimony to this booming trend. It was in light of such massive illegal betting markets and the large-scale flouting of the law by the masses that the Supreme Court of India, in 2016, mandated the Law Commission of India (LCI)⁴ to examine a logical way to deal with India’s illegal gambling.

The LCI mentioned in its report that– “since it is not possible to prevent these activities completely, effectively regulating them remains the only viable option” Also, a Private Member Bill was introduced by Mr. Shashi Tharoor in 2018 in this regard, which articulated the legalization of sports betting in India under strict surveillance as it would curb the illegalized betting ecosystem in India which was under the monopolistic ambit of underworld mafias. It would curb the black money market, along with the generation of massive revenues for the government which could then be utilized for funding the sports infrastructure and betterment of athletes. Some of the potential restrictions that the bill sought to introduce were barring the minors from participating and limiting the highest betting fees one can bid. The bill impeccably envisioned the regulation mechanism by introducing a 7 member committee that would be responsible for formulating the rules and regulations monitoring sports online gaming. The bill also sought to criminalize the activities of sports fraud and match-fixing to the extent of 5 years of imprisonment and hefty fines which in turn would espouse deterrence. The bill also focused on maintaining the integrity of sports and preventing any event such as manipulations or match-fixing as those current pressing issues were not dealt with by the present legal framework.

Advantages of legalizing gambling

Gambling is one of the forms that has been an inherent phenomenon in Indian society and curbing it entirely won’t be certainly possible, more so because of the willful and brazen flouting of the legal norms by masses. Hence, giving it a legal sanctity would be a desirable approach in the discourse of its regulation and fund generation thereby espousing public consent and adherence rather than remaining oblivious to its incongruous existence. Far from this realization has been the seemingly illogical approach of the legislative setup which has still kept it within the cloak of illegality. This has been further reinforced by the Indian Judiciary by keeping horse race (on the basis of predicting the winnability) under the gamut of ‘games of skill’ but not the other games involving technicality and intricacy of similar nature such as cricket or hockey.

The most popular form of gambling has been in the sporting activities involving bets, which has evolved itself as a clandestine ecosystem possessing a huge network of people and enormous amounts of money. The Drastic modernization in the sports ecosystem coupled with the digital boom has led to sweeping revolutionary changes across the spectrum. This in turn accentuated the gambling culture creating a mammoth web of individuals and finances involved in this subculture. The first step in the legalization process would involve systematic identification and acknowledgment of these prevailing entities. Next would come regulation, owing to the fact that an exorbitant amount of Rs 300,000 Crores of black money is used annually for betting and the sector involves an enormous cash flow worth 60 billion dollars which is 3.5% of India’s GDP. It will lead to transparency as the source of cash flow could be traced and tracked thereby keeping a tight check on the black money market. Licensing of the brokers would further keep a check on them by curbing the black money laundering in illegal betting which is often used to fund terrorism and related nefarious activities¹. Involving in such illegal activities could lead to the cancellation of their licenses which in turn would serve as a deterrence to them. The legalization of sports betting would also ensure the protection of the subtle interests of minors, uneducated, poor fellows with a limited income and lack of bargaining power, and the elderly with shrinking life savings, who are often cheated by brokers. They remain at disadvantage due to unregulated and unenforceable market agreements lacking legal recourse owing to the wagering nature of the contract where the interests of the weaker party lacking bargaining power is jeopardized.

Currently, the earnings under betting are not reported as a source of taxable income under the Income Tax Act, 1961, thus, creating an avenue for black money. Legalizing the same would make the disclosure of such income mandatory (paving the way for effective surveillance and regulation) along with the generation of revenue receipts for the government to the tune of a minimum of Rs 12000 crores per annum⁵. It would also check on the tax evasions by brokers and bettors. The fund generated could be used for revamping sports infrastructure and related welfare schemes of the country along with peddling the development of the tribal and conventional sports that have been grossly neglected owing to their unpopularity and lack of resources.

Legalization would also serve as the panacea for ever-rising unemployment in the country by providing jobs ranging from the post of officers (required to monitor betting transaction) to a new catena of brokers who would specialize in sports betting along with a majority of unskilled workers employed in the implementation of menial economic activity in the betting industry. India, having the required knowledge, expertise and population could also evolve itself into a niche avenue for cyber betting like Denmark, the USA, etc, thus bringing with itself valuable foreign exchange which in turn would fuel the economic prosperity of the country.

Further, policing of the current gambling laws which illegalize it becomes a major problem due to the sheer numbers of “law-breakers” and exhaust colossal time of the law keepers which could be efficiently used for other productive work. Even effective policing results in large numbers of people gaining criminal records, with all of the consequential social problems. (employment problems, social and family stigma due to criminal record, etc). Hence, legalization would serve to meet the above ends. One other argument often posed in favor of legalization/regulation is that gambling adversely affects only a minority (less than 1% of the population due to problem gambling). So depriving the majority of a harmless leisure activity when it could add to a mix of other advantages is not worth it

Disadvantages of legalizing gambling

It is argued that the job of the government is to lead the people and not to simply follow popular views, especially if there are “public interest” reasons for pursuing unpopular routes. The concept and practice of gambling have historically been frowned upon in the Indian context. The moral issues constrain the government from peruse the idea of legalization as this has been a forbidden virtue in the Indian sub context given its entailing disadvantages. Giving it a legal sanctity would go against this entrenched ideal of morality.

Legalization would entail massive social costs as various studies have revealed that adolescents engaging in such activities possess a higher rate in school and academic failure accompanied by a history of family conflict triggered by the loss of household income, erratic sexual activity, severe financial difficulties such as large debts, poverty, and even bankruptcy; conflict and breakdown in relationships and a variety of psychological illnesses including anxiety and depression and psychiatric disorders, thus, paving way for baleful tendencies to commit suicide arising out of the ensuing depression.

State-sanctioned gambling would disproportionately burden the socially and economically backward people who expend a greater portion of their income into such wagering contracts, thus, exposing them to the channels of destituteness and crimes such as fraud and embezzlement, to address the mounting financial demands of their gambling. It will also push them into the scourging avenues of alcohol and drug addiction thereby instigating a vicious cycle of economic losses. Apart from the above menaces, gambling would also seriously impact the integrity and the true sportsmanship spirit of the sports due to the money factor and instances of match-fixing.

A logical argument against gambling follows that if gambling were to be legalized, it follows that more people would gamble (due to its enticing nature), and subsequently, more would become problem gamblers who face the adverse effects of gambling. Studies corroborate the above fact showing that increased availability of and easy accessibility to 2 gambling increased the participation in gambling and also the consequent prevalence of problematic gambling that entails massive social costs. Studies show that in India, although the prevalence of gambling was low, the proportion of people who had developed problem gambling among those who did gamble was considerably higher as compared to other countries. The final argument against legalization is that, even if it were to be considered a good idea, in theory, the time for such a major policy change in India is not right, because India did not possess the infrastructure to conceive, implement, monitor, or regulate such a huge change.

Suggestions

Certain suggestions could be considered in the light of the given circumstances. First, because of India’s inherent diversity, changes should be piloted in one or few states instead of going for pan India legislations so as to evaluate the post and pre-policy changes along with avoiding the deleterious and incongruous effects. Second, sufficient research needs to be undertaken so as to generate the local and relevant empirical pieces of evidence vis a vis the Indian sub context instead of relying on foreign pieces of evidence. Third, the question of government or private ownership of gambling monopoly needs to be delved upon. Fourth, the safeguard mechanism for the stakeholders needs to be put in place along with relevant and requisite standardized norms for regulation.

Conclusion

Keeping gambling under the scope of criminal legislation in spite of its nonviolent nature has been a source of contention amidst the scholars who view this as a step to give legitimacy to State paternalism. Section 30 of the Indian Contracts Act 1872 renders such betting (wagering) agreements voidable and takes off the recourse of legal enforceability, thus, exemplifying its vulnerability to financial exploitation and illegitimate transactions. Now in recent times, with a drastic surge in online gambling, the IT Act, falls short to curb people from engrossing in illegitimate offshore gambling websites where there is the absence of the protective blanket of national laws.

Thus, the archaic legislation of 1867 and the present laws being incompetent, abruptly fail to regulate the ongoing inconsistencies pertaining to betting. Further, nonchalance concerning the present penal provisions and the recklessness of the stakeholders exacerbate the administrative incapacities and ineffective framework of government. Against this backdrop, the vociferous and the reverberating calls for newer legislations assume more significance given the nebulous state of gambling laws in the country.

Given the pros and cons of the current issue at hand, there is no unambiguous evidence to support the status quo. Although the legalization would bring with it a gush of entailing benefits, the profound and the pressing issues at hand pertaining to legalization are required to be given a thorough perusal including the pricking need to overhaul enforcement mechanism rather than venturing into the question of how and when to legalize the gambling.

References

The Public Gambling Act, 1867. http:// www.sangrurpolice.in
1996 AIR 1153, https://indiankanoon.org/doc/1248365/
https://www.scams.info/online-casino/india/#laws
Law Commission of India. Legal framework: Gambling and sports betting including in cricket in India. Report number 276. New Delhi: Law Commission of India, 2018.
http://timesofindia.indiatimes.com/business/india-business/Goa-casinos-contribute-Rs-135cr-revenue-in-2012-13/articleshow/19524670.cms

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

INTENTION, NEGLIGENCE, AND RECKLESSNESS IN THE LAW OF TORT

Posted on February 25, 2022

Whenever one’s right is wronged, it is imperative that there is always some way to remedy that sufferance or injury caused to that person, to bring back the conviction of being just in a just society. It is done to bring about that same level of equilibrium prior to the right being wronged, the damage and injury caused. One can use the imagination of a scenario where one is wronged and has suffered some type of damage but if there was no remedy, the sufferings of that person would be prolonged, contributing to lack of peace and hence rendering the society’s system as being ineffective. If there is no relief, it would only lead to pent-up frustration and a feeling of insecurity. There would be constant feelings of apprehension due to a lack of guarantee of restoration, which would have been an important tool to the path of peace and security. Hence, the concept of torts came into the practice for this very purpose; to restore the victim of the wrong to their previous position prior to that action that led to injury or damage.

INTRODUCTION OF TORT LAW

The beginning of the Law of Torts can be followed by Roman statute alterium non-laedere. The saying signifies “not to harm another” for example not to hurt anybody by deeds or words. This saying is like trustworthiness vivere which signifies “to live respectably” and suum inner circle tribuere which is disclosed as to deliver to each man that has a place with him or it is an overall articulation to give equity to every individual. This multitude of three sayings can be ascribed for the advancement of the Law of Torts.

The fundamental goals of tort law are to compensate affected parties for harms inflicted by others, to hold those responsible that caused such injury, and to deter others from harming others. Torts allow the degree of loss to be shifted from the party who was injured to the party who caused it. Typically, a person seeking remedies under tort law will seek monetary compensation in the form of damages.

Remedies that are not normally used are injunction and restitution. The common law, the system that India follows, and state statutory law set the limits of tort law. Judges have broad discretion in assessing which activities qualify as legally cognizable wrongs, which defenses may outweigh any particular claim and the appropriate measure of damages when interpreting statutes. There are variations in the tort law across states of a country. There are three types of torts- Intentional torts (e.g., purposefully hitting a person); negligent torts (e.g., creating an accident by failing to respect traffic laws); and recklessness torts (e.g., causing an accident by deliberately failing to obey traffic rules).

TORT LAW IN INDIA

Because tort law is comparable throughout common law jurisdictions, courts have frequently relied on case law from other common law jurisdictions, like the United Kingdom, Australia, and Canada, in addition to local precedent. When applying foreign precedent, however, consideration is given to local norms and conditions, as well as India’s unique constitutional framework. The legislature has also enacted legislation to address specific societal issues. Aspects of tort law have been codified, as they have in other common law countries.

The Indian Penal Code or other criminal legislation may make some behavior that gives rise to a cause of action under tort law illegal. When a tort is also a criminal offense, the aggrieved party is nevertheless entitled to seek redress under tort law. The overlap between the two domains of law is due to the different purposes they serve and the different types of remedies they offer. Tort law tries to hold a tortfeasor accountable, therefore tort proceedings are taken directly by the aggrieved party to obtain damages, but criminal law intends to punish and discourage conduct that is regarded to be against the interests of society, so criminal actions are conducted by the government.

As in other common law jurisdictions, tort law in India is primarily guided by court precedent, reinforced with statutes governing damages, codifying common law torts, and civil procedure. A tort, just like other common law jurisdictions, is a breach of a non-contractual duty that causes harm to the plaintiff and gives rise to a civil cause of action with a remedy. Because the reason for tort law is to provide a solution to the individual who has been hurt, if a remedy is not present, it will be considered that a tort has not been committed.

Despite the fact that Indian tort law is largely inherited from English law, there still are distinctions between the two systems. Indian tort law is unique in that it provides remedies for constitutional torts, which are government activities that infringe on constitutional rights, as well as an absolute liability system for enterprises involved in hazardous conduct.

So, considering that the basic rule of torts is to compensate the value corresponding to the damage or injury caused, how is such a practice calculated? In India, damages are based on the principle of restitutio ad integrum. In all circumstances, India uses a compensatory approach and argues for “full and fair compensation.”

The Indian court will seek similar cases to compare when assessing the number of damages. The multiplier approach, which awards compensation corresponded to the degree of compromise to the victim’s earning power, is used in India to calculate damages in tort cases.

The fair and just amount refers to the number of years’ purchase upon which loss of reliance is capitalized under the multiplier technique. Then, in order to account for future uncertainty, a reduction in the multiplier would also have to be made. Under the Motor Vehicle Act, the multiplier concept is enshrined in the statute for tortious proceedings that involve personal injuries that have been caused by motor vehicles. The court will, however, take inflation into consideration when determining damages.

Now, in case of calculating personal injuries, in tort lawsuits involving personal injury, Indian jurisprudence recognizes seven distinct forms of harm where damages may be awarded. These categories are known as heads of claim, and they can be separated into non-pecuniary and pecuniary, similar to the more general distinction established in other common law jurisdictions between economic and non-economic damages. The following financial grounds of claim are recognized by Indian tort law:

Earnings are lost.
Expenses for nursing care, hospital, and medical.
Matrimonial prospects are dwindling.

The following non-monetary heads of claim are recognized by contemporary Indian jurisprudence:

Loss of hope for the future.
Loss of luxuries or the ability to enjoy life.
Physiological function loss or impairment.
Suffering and pain.

INTENTIONAL TORTS

Intentional torts are harms that the defendant has had the intentions to do or should have had an expectation to occur as a result of his or her action or omissions. When the defendant’s such acts or omissions were unreasonably dangerous, they are called negligent torts. Unlike deliberate and torts of negligence, torts of strict liability are unaffected by the defendant’s level of care. Instead, in these situations, the courts look to see if a specific result or injury occurred.

Some moves should be made with a reason to submit a deliberate misdeed and wrong, for example, an intention is a must for an act to be committed. It is fundamental that there is a psychological component.

The Supreme Court declared in the State of Maharashtra versus M.H. George that criminal intent is a psychological truth that must be proven even in cases involving exceptional conduct unless it is clearly ruled out or ruled out by whatever necessary inference.

That is because Mens rea, or the purpose to commit a criminal act knowing the negative consequences, is one of the most fundamental elements of a crime. Mens rea is expressed by the use of phrases like intention, malice, fraud, irresponsibility, and so on. Before committing an offense, one must be a guilty mind. Mens rea include what the person is intending to do and the refusal to perform anything that is demanded of you. The mere intent to commit a crime is illegal in and of itself. An accused will be found guilty if it is proven that he intended to commit the crime, however, the burden of proving it is on the other side, and there must be sufficient evidence to decide that intention exists.

In Ramachandra Gujar’s case, the court held that a person’s intention may only be inferred from their actions and that the likely consequences of such actions must also be considered.

NEGLIGENCE TORTS

Negligence is a type of civil tort that occurs when a person violates his duty of care to another, causing that other person to suffer harm or face legal consequences. In tort law, negligence can take the following forms, that is, a method of committing various torts such as trespassing or causing a nuisance. It can be considered as a separate tort by itself.

Negligence’s Essentials
The plaintiff must show that the defendant had a duty of care that was owed to him and that this duty was breached. The nature of negligence liability is strictly legal, does not have to be moral or religious. ‘Duty’ might be seen as a responsibility to be cautious of others.

Duty Violation: The second stage is to prove that there was an actual breach of duty once the first criterion has been demonstrated. The defendant is expected to perform his responsibilities in a rational manner. The deciding factor is whether or not the defendant exercised reasonable caution.

Damage: The plaintiff must have suffered some loss as a result of the defendant’s breach of duty. The case of Donoghue v Stevenson represents a watershed moment in the history of the tort of negligence. The plaintiff, in this case, went to a cafe to order a ginger beer, that was sealed with an opaque cork. When the contents of the bottle were emptied, a decaying body of a snail emerged. The plaintiff became ill as a result of consuming some of the tainted contents of the bottle.

The court determined that a manufacturer that manufactures a product for the end consumer on the basis that the consumer will be injured if the manufacturer fails to exercise reasonable care, does owe a duty of care to the plaintiff.

RECKLESSNESS

A person’s actions might sometimes be so rash that they become the subject of a criminal investigation or a lawsuit. If a person acts recklessly with complete disregard for the safety of others and has the knowledge or should that his activities may cause injury to others, he may be held accountable for the injuries produced by his actions. It suggests the person was aware (or should have been aware) that his or her actions had the potential to damage others.

Recklessness is defined as behavior that is less than intentional but more than mere negligence. Unlike negligence, which occurs when a person takes an action with a risk that they should have known about, recklessness refers to taking a risk knowingly.

For example, the Supreme Court has defined what constitutes criminal culpability and differentiated between recklessness, negligence, and rashness. A person is said to have acted negligently when he or she accidentally commits an act or omission that would cause a breach of his or her legal duty, according to the law. A person who has done rashly when he or she is aware of the consequences but stupidly believes that they will not materialize as a result of his or her actions. A careless person is aware of the repercussions yet is unconcerned about whether or not they are the result of his or her actions. ‘Any behavior that is not adequate to recklessness and wilful wrongdoing shall not be subject to criminal prosecution,’ the Court stated in Poonam Verma VS. Ashwin Patel.

Many risky activities are prohibited by state law, and irresponsible actors are viewed as social risks because they jeopardize the safety of others. A person who has been hurt as a result of another’s negligence may be entitled to compensation for medical bills, rehabilitation, pain, lost wages, and suffering. Furthermore, recklessness may allow compensation from those who are normally free from liability for simple negligence, like government employees and health care providers.

Recklessness is a subjective as well as objectively defined state of mind. There are two kinds of irresponsible behavior. The first examines what the performer knew or was thought to be thinking at the time of the act (subjective test). The second evaluates what a person with a reasonable mind in the defendant’s circumstances would have believed (objective test). In all cases, the question is whether the person was aware (or should have been aware) that his acts could injure someone else.

It is dangerous, for example, for a car driver to purposely cross a highway in violation of a stop sign if traffic is approaching from both directions. In comparison, he does not stop since his attention is diverted and he is unaware that he is approaching the crossing which otherwise would be considered negligent.

CONCLUSION

Tort law allows for not only full recompense for victims, but also for the revelation of wrongdoing and the discouragement of malicious or negligent acts. A verdict of the court can be spread all over the country, if not the world, and can result in harmful practices being changed or stopped. Tort law has progressed to level the playing field, having roots in English common law. It empowers those without resources to compete with anyone on the globe, not just direct action. Any multi-billion-dollar enterprise or overreaching government agency. Besides only compensating an injured sufferer, tort law offers further advantages. Automobiles, the roads, toys, and foods are safer.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

Cause of Action under Civil procedure Code

Posted on February 20, 2022

INTRODUCTION

Any claim made in the suit flows from the cause of action, and claims made must be with respect to the cause of action from which they derive. In Om Prakash Srivastava v. Union of India and Anr., the Supreme Court stated that “Cause of Action” refers to the conditions that constitute a violation of a right or an urgent cause for a reaction in a limited sense. Due to the facts or circumstances, several causes of action may arise in some situations. Contractual actions, statutory causes of action, and torts including assault, battery, invasion of privacy, and defamation are only a few examples.

CAUSE OF ACTION, SECTION 20, CPC

“Cause of Action” as defined by section 20 of the Civil Procedure Code of 1908, is any fact that must be proven in support of the right to obtain a judgment. The term Cause of Action is mentioned in the CPC in various places. Under the Civil Procedure Code, 1908, Order II Rule 2, it is stated that a plaint must mention the cause of action if it is to be instituted as a suit. Order VII Rule 1 reaffirms the same. Further, Order I Rule 8 states in the explanation that the parties represented in the litigation do not have to have the same cause of action as the person representing them and Order II Rule 7 explains in detail whether an objection to misjoinder of the cause of action should be submitted before the matter appears in the suit if such a complaint is valued at that time.

As stated at the outset, a Cause of Action is not only an important part of a Civil Action, but it is also the cause for the civil suit’s existence. It establishes the disputed topic or the genuine nature of the parties’ relationship. If there is no cause of action, there will be no litigation. Although, inside the CPC, the cause of action has yet to be defined.

PURPOSE OF ORDER 7 RULE 11 OF CPC

Order 7 Rule 11 of CPC provides litigants with the option of seeking an independent and special remedy, allowing courts to dismiss a suit at the preliminary stage without recording evidence and proceeding to trial based on the evidence presented if they are satisfied that the action should be dismissed on any of the grounds outlined in this provision.

In the case of Dahiben v. Arvindbhai Kalyanji Bhanusali¹, the SC reviewed several precedents on the underlying goal of O7 R 11 while dealing with the appeal before it. The court would not allow protraction of the proceedings if no cause of action is disclosed in the plaint or if the suit is precluded by limitation. In this instance, it would be important to put an end to the phony litigation to avoid wasting more judicial time. It opined, citing Azhar Hussain v. Rajiv Gandhi², that the main aim of conferring such powers under O7 R 11 is to ensure that useless and bound to prove futile litigation should not be allowed to consume the time of the courts and exercise the mind of the respondent.

The Supreme Court went on to say that while considering a motion to dismiss a plaint, courts should look at the plaint’s averments in light of the documents relied on to determine if they reveal a cause of action. In this regard, it was also stated that courts would have to disregard the defendant’s pleadings in the written statement and application for dismissal of the plaint on merit when making such a conclusion. As a result, the Supreme Court stated that when deciding any application submitted under O 7 R11, the courts should limit themselves to the plaint and not delve into the specific facts outlined in the written statement or even the O7 R 11 application.

CASE LAWS

Subodh Kumar Gupta v. Srikant Gupta and Ors.³
In this case, an agreement was composed in Bhilai for the dissolution of the partnership and distribution of partnership assets. The Supreme Court held that the agreement was void and had to be ignored at the threshold to save the time of the court and to safeguard the parties from any harm. Further, it held that Chandigarh Court had no jurisdiction to hear the suit as part of the cause of action that arose at Mandsaur.

Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors.⁴
According to the Supreme Court, the cause of action encompasses those circumstances that, if present, would enable the plaintiff to provide support for his entitlement to a court judgment. That is, a set of facts that the plaintiff will use to substantiate his or her case.

M/S South East Asia Shipping Co. Ltd. vs M/S Nav Bharat Enterprises Pvt.⁵
The Supreme Court ruled that a cause of action is made up of a group of circumstances that constitute grounds for bringing a civil action for redress in a court of law. In other words, it’s a series of circumstances that gives the plaintiff the right to sue the defendant under the legislation that applies to them. The court further stated that a cause of action must include any conduct committed by the defendant because, without one, no cause of action will likely develop.

Raghwendra Sharan Singh vs Ram Prasanna Singh⁶
In this case, the cause of action arose when the injured party disputed the gift deed after approximately 22 years from the date of the equivalent’s execution. The offended party in the situation has contested the gift deed, claiming that it is a garish one that is therefore not authoritative. After hearing both sides’ perspectives on the facts of the case, the Hon’ble Supreme Court ruled that the Statute of Limitations indisputably bars this lawsuit. Furthermore, the plaint should be dismissed according to CPC Order VII Rule 11.

Rajasthan High Court Advocates Association vs Union of India & Ors.⁷
In this case, the court held that every fact that must be proved, as opposed to any piece of evidence needed to prove each fact, must have been mentioned the essential element of ’cause of action’ according to the Rajasthan High Court. In each circumstance, the location of the cause of action must be determined.

As a result, the court will only be justified in dismissing the plaint for failure to disclose a cause of action if it considers the claims in the plaint and decides that they do not reveal any cause of action, assuming the allegations are true. However, if the court finds that there is no cause of action for the suit after reviewing all evidence and materials after the trial, the suit is dismissed rather than the plaint rejected.

OBSERVATIONS

The plaintiff’s lawsuit may be dismissed at the outset if the cause of action is not adequately established just like in the recent case. In such a case, no court proceedings will be continued in the first place to save the time of the court and to prevent such malice. Further, the claims must be backed up by facts, law, and a conclusion drawn from the law’s application to the facts.

A statement of facts in a battery case, for example, might be “While walking through XYZ Store, the plaintiff was tackled by the defendant, a store security guard, who knocked him to the ground and held him there by kneeling on her back and holding his arms behind him, while screaming in his ear to open his bag. The plaintiff suffered injuries to her head, chest, shoulders, neck, and back as a result of these actions.”

However, the facts or circumstances that lead to a person seeking judicial redress may give rise to multiple causes of action. In the previous case, the plaintiff could allege assault, battery, intentional infliction of emotional distress, and violation of Civil Rights.

CONCLUSION

As for this regulation, the term “cause of action” refers to the key facts that make up the right and its infringement, which authorizes a person to sue the wrongdoer, defaulter, or anyone else who is liable for it.

However, Rule 6 of Order II of CPC states that the court may order separate trials if it appears to the court that joining causes of action in one complaint will embarrass or delay the trial or be otherwise inconvenient. It can be analyzed from the above-stated matter that a lawsuit can be dismissed if the cause of action is missing from the complaint. It is not enough to just assert that specific events or facts occurred that entitle the plaintiff to relief; the complaint must also include all of the elements of each cause of action in detail. However, if an offended party excludes any relief to which he is entitled to suit except when approved by the Court, he will not be granted such assistance later. The Court may award aid on reasons other than those specified in the plaint in exceptional situations. The aid requested by the injured party or the defendant might be broad or narrow.

Citations:

2020 SCCOnline SC 562
1986 AIR 1253, 1986 SCR (2) 782
(1993) 104 PLR 621
1994 SCC (6) 322, JT 1994 (6) 89
1996 SCC (3) 443, JT 1996 (3) 656
AIR 2019 SC 1430
AIR 2001 SC 416

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Regulation of IBC Laws in India

Posted on February 15, 2022

INTRODUCTION

One of the main changes in India’s overall set of laws is the Insolvency and Bankruptcy Code. This is on the grounds that the IBC does not just make India more grounded as far as the lawful structure, yet it additionally gives it another financial character and acknowledgment on an overall scale. If a disagreement emerges concerning bankruptcy, the debtor and the creditor have the authority to commence insolvency procedures against each other under the IBC, which is a combined study of numerous legal committees. With the President of India’s consent, the Insolvency, and bankruptcy Code 2016 became effective on May 28, 2016. Before that, there were long cycles that didn’t impressively offer a financially functional arrangement anyway as of now, this code is a one-stop reply for settling liquidations. To give a single guideline to Insolvency and Bankruptcy related issues, the Indian Insolvency framework went through a complete upgrade blending a couple of past guidelines (merging of 13 existing laws).

INSOLVENCY & BANKRUPTCY CODE, 2013

Meaning – Insolvency generally occurs when a person is unable to pay their debts to the creditor at the expected time frame. Bankruptcy, on the other hand, occurs when a court of competent jurisdiction declares a person or a business insolvent and issues necessary instructions to rectify the situation and safeguard creditors’ interests. Bankruptcy is a legal process by which an insolvent borrower seeks relief from his or her creditors.

Evolution – A statute was passed in 1828 that marked the commencement of insolvency-related law in India. In 1848, the Indian Insolvency Act established a division between traders and non-traders. There was no legislation dealing with insolvencies in non-presidency districts until 1907. The new Companies Act was approved in 2013, making several modifications to the corporate insolvency procedure.¹ Chapter XIX of the Firms Act of 2013 dealt with the resurrection and rehabilitation of ill companies. This chapter has been removed since the IB Code now covers the full revival/rehabilitation method or mechanism. The Insolvency and Bankruptcy Code, 2016 consists of 255 sections (divided into 5 parts) and 11 schedules. At this point, the IBC is the main regulation that oversees indebtedness, insolvency, and the recreation of failed organizations, reducing the job of earlier regulations.

FUNCTIONS & PROVISIONS OF IBC, 2016

The 2016 Code lays out a period-restricted strategy for settling indebtedness. At the point when a debt holder defaults on an installment, loan bosses hold onto responsibility for the debt holder’s resources and have 180 days to settle the indebtedness. To guarantee that the goal cycle chugs along as expected, the Code awards debt holders’ resistance from banks’ goal claims during this time. The Code likewise unites components from existing regulation to give a solitary scene to borrowers and lenders, all things considered, to address bankruptcy.

The IBC, 2016, specifies a Rs 1 crore least boundary for starting the pre-packaged bankruptcy goal strategy. It considers the excusal of simultaneous bankruptcy goal process and pre-packaged indebtedness goal process petitions documented against a similar corporate borrower. Punishment for starting a pre-packaged liquidation goal strategy deceitfully or malignantly to misdirect others, as well concerning the fake organization of the corporate indebted person during the cycle. Offenses including the pre-staging insolvency goal strategy are culpable.

RELATION OF NCLT WITH IBC

In contrast to concerns expressed during the IBC’s creation and later talks regarding the difficulty of quickly installing adjudicating capability, the NCLT is capable of fulfilling the job of adjudication under the IBC. While the NCLT’s present operation has defied expectations from previous insolvency cases, there are clear gaps between how the NCLT operates under the IBC and what is intended by the statute.² The empirical investigation on whether the NCLT is able to provide judgments within the timeframes required by law, as well as if the judgments are consistent with the function envisioned by the legislation, reveals that there exist gaps. From an adjudicating authority for the Insolvency redressal process of companies and individuals to the power prescribed to NCLT, it can be said that NCLT plays the most important role under IBC. It provides simplicity for financial creditors, operational creditors, and corporations to collect money from debtors.

PROCESS OF INSOLVENCY RESOLUTION

Corporate Insolvency Resolution: During the resolution of Corporate Insolvency, the creditor should record an application with the NCLT for starting bankruptcy redressal procedures. The NCLT will be expected to either acknowledge or dismiss the application within 14 days of documenting the application. When the application has been acknowledged by the NCLT, the administration of the indebted person is suspended and the transitional power, selected by the NCLT and alluded to as the ‘break indebtedness goal proficient’ assumes control over the administration of the corporate debt holder. Further, as soon the application for CIRP is conceded by the NCLT, a ban produces results on the corporate indebted person, which forbids the continuation or commencement of any legal actions against the debt holder, the exchange of its resources, or the requirement of any security interest. Within 30 days of the NCLT admitting the application for CIRP, the interim resolution expert reviews the creditors’ claims and forms the creditors’ committee. The panel of loan bosses then, at that point, names a free individual as the goal proficient, alluded to as the Insolvency Resolution Professional (‘IRP’) to assume control over the administration of the corporate borrower for the rest of the CIRP. Within 180 days of the commencement of the CIRP, the IRP is expected to draw up a goal plan for the restoration of the corporate borrower. Such an arrangement should be supported by lenders holding no less than 75% of the obligation of the corporate account holder.³

CASE LAWS – IBC

In Aditya Enterprises vs Rajratan Exim Pvt. Ltd.⁴, due to the non-payment of a debt owed to them by a corporate debtor, Aditya Enterprises applied. The adjudicating body stated that just receiving a loan cannot be considered an operational/financial obligation; nevertheless, the purpose of the loan is equally significant. Because the receipt makes no indication of the corporate debtor taking the loan for commercial purposes. The presence of a disagreement does not preclude the occurrence of a default; there is no indication that a due date exists.

In Sree Metaliks Limited and another V. UOI and Anr.⁵, The petitioner had challenged Section 7 of the 2016 Insolvency and Bankruptcy Code, as well as the provisions governing it, in the 2016 Law of Insolvency and Bankruptcy (Application to the Adjudicating Authority). In a petition lodged under section 7 of the IBC, the petitioner contended that IBC 2016 did not provide any chances to hear from a corporate debtor. The Calcutta High Court stated that the necessity for NCLT and NCLAT to follow natural justice principles may be found in Section 7(4) of the Code and Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. It was decided that the NCLT must provide the financial debtor a reasonable chance to present his or her case before admitting the petition filed under Section 7 of the Code.

In Bank of Baroda V.Rotomac Global Pvt. Ltd and Rotomac Exports Pvt Ltd⁶ The COC was suggested by the resolution professional for a 90-day extension of the CIRP. The COC, on the other hand, voted against it. As a result, the RP filed for the corporate debtor’s liquidation. The Competent authority held that the resolution to extend CIRP failed because no resolution plan was submitted within 180 days of the program’s start. As a result, the liquidation of a corporate debtor was acknowledged.

CONCLUDING OBSERVATIONS

Since the inception of the Insolvency and Bankruptcy Code in 2016, the issues relating to creditors and debtors have vastly improved. It has recognized the competent authority for the implementation of more efficient laws since the existing insolvency legislation does not demonstrate reliability due to issues such as delays in appointment and permissions, stock of non-performing assets, and so on. It needs to strengthen the process by attracting a broader variety of strategic purchasers who are prepared to bid on assets and present resolution plans following the code. It can also improve by putting in place more and more effective Asset Reconstruction Companies to help with dispute settlement.

References:

Written by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

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Analysis of Whistle-Blowers Protection Act, 2014

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REVIEW OF LITERATURE

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Major Breakthroughs in Tort Law in India

The Future of Torts in India – Conclusion

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Advantages of legalizing gambling

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TORT LAW IN INDIA

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CASE LAWS

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CONCLUSION

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FUNCTIONS & PROVISIONS OF IBC, 2016

RELATION OF NCLT WITH IBC

PROCESS OF INSOLVENCY RESOLUTION

CASE LAWS – IBC

CONCLUDING OBSERVATIONS

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