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Investment strategy for startups : all you need to know

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Corporate Law

This article has been written by Angshuman Pal pursuing a Remote freelancing and profile building program course from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Introduction

The global economy is ever changing as we evolve with time. The magnitude of change is increasing more than before. We have seen a lot of happenings in recent days. Priorities like the environment, sustainability, terrorism and pandemics are changing the market dynamics of every economy. Government mandates are changing depending on priorities. Large enterprises are no longer the sole controllers of economies. Rather, medium and small enterprises are increasing in number. Startup companies are contributing a lot to this ecosystem, especially during the post-pandemic era, in recent days.  The development of startup ecosystems across various economies gave birth to a new era and became the next big thing in the industrial revolution.

Background of investment strategy for startups

Large scale enterprises, state sponsored and private, as well as enterprises with a multinational presence, have revolutionised various economies during World War I & II; they have contributed substantially to building economies in previous decades but failed miserably during recent days.

It is observed that large scale enterprises are no longer self-sustainable when ecosystems and supply chains are broken due to war embargoes, or emergency situations like pandemics, etc. We are seeing how large enterprises are lobbying for frequent bail outs, contributing to debt traps in giant economies like the United States. Policymakers are looking for stable solutions. Hence, prioritising sustainability became a key mantra in this era. This, in turn, has given birth to microenterprises and startup ecosystems. 

Policymakers across all the leading economies are showing adequate passion for startups and are very positive about them. They are helping to build special economic zones for startups, contributing further nourishment to startup ecosystems.

Individual investors, families, communities and enterprises—everyone is very much betting on startups today, expecting multifold growth in their investment kitty. Positivity about startups is floating everywhere, across the globe.

Understanding why

Let’s explore why startup investment is so lucrative.

Passionate innovators and technocrats are grouping themselves and founding startups every day. Startup enthusiasts and new age entrepreneurs are taking maximum risks and determination to achieve their dreams and entrepreneurial goals. Taking advantage of their small size, startup companies are adapting themselves quickly to market dynamics, irrespective of the situation that arises. This agility advantage brings a high possibility of growth as well as probability of a high return on investment within a very short span of time, irrespective of market conditions. 

Hence, no one can ignore startups as the most lucrative investment avenue; and it is estimated that this trend may continue for the next two decades.

Do startup investors make money

Startups are the most prioritised and lucrative investment avenue for almost every investor in today’s context. But, honestly, it can be a journey full of fun, if and only if they take the necessary precautions and can adapt themselves to a higher risk appetite. 

Ways to invest in startups

The process of investment in startup companies varies from country to country during the previous decade(s). However, in recent times, most of the startup enthusiast countries have made startup investments under a strict regulatory framework and transparent SOPs are in place. Hence, systems across all investment routes are more or less similar in most countries. In India, all startup investments are governed by the SEBI regulatory framework. 

Let’s discuss a few well-established startup investment routes investors have opted for as per their comfort, depending on size and type of investment:

Angel investing

Independent investors can invest directly in startup companies as individuals or as families and manage the investment privately, naming it Angel Investing. When availing of this type of investment route, startups are immensely benefited not only by the investment corpus but also by business expertise, expert advisory, experienced mentorship and a trustworthy network of individuals and business houses all together.  But, they have to abide by the likes-and-dislikes of individual angel investors.

Investors can gain the maximum return on investment through this channel. However, irrespective of all regulatory protections, angel investments are not at all secure in nature.

Investment through VC (venture capital) funding

A VC fund is a systematically created pool of investment corpus collected from different private investors, categorising their priorities and investment interests. Professional investors across the world, technically called venture capitalists, are generally found in this type of funding activity as they favour a streamlined process of identifying beneficiary startups,  strict governance and a private institutional framework for securing investment and maximising return on investment.

Investors can gain the maximum return on investment through this channel. However, irrespective of all regulatory protections, investments in startups through VC channels are not 100% secure by nature.

Investment through crowdfunding

Independent investors can also invest in small chunks, becoming part of a large group of investors through a crowdfunding channel. Here, they collect and compile together a large corpus and invest it into a startup company or into a specific project of a startup company. When availing of this type of investment route, startups need to abide by the terms and conditions of the crowdfunding platform or channel. Still, they are immensely benefited not only by the investment corpus but also by business expertise, expert advisory, experienced mentorship and a trustworthy network of individuals and business houses all together.

Investors can gain the maximum return on investment through this channel. However, irrespective of all regulatory protections, investments in startups through crowdfunding channels are not 100% secure by nature.

Investment through startup bonds 

Investors can also invest their corpus in startup companies, purchasing bonds from companies governed by regulatory frameworks. Startup companies pay back the borrowed money with fixed interest within a specified date, as mentioned in the bond. The bond certificate should be duly approved and signed by the specific regulator.

Investors with a lower risk appetite who look for a fixed, assured return can avail of bonds.

Investment through private equity trusts

Similar to VC funds, private equity trusts also systematically create a pool of investment corpus collected from different private investors, categorising their priorities and investment interests and managed by empaneled professional investment firms. Professional investors across the world are generally members of this type of investment trust, as they favour the streamlined process of identifying beneficiary companies. For investments, private equity trusts prefer mature businesses over startups; hence, private companies are prioritised. Similar to VC funds, private equity trusts also ensure strict governance and a private institutional framework for securing investment and maximising return on investment.

Investors can gain the maximum return on investment through private equity trusts. However, irrespective of all regulatory protections, investments in startups through VC channels are not 100% secure by nature and hence require an adequate risk appetite from investors.

Investment through pension fund

Recently, one of the largest pension firms in Britain has started putting a large percentage of investor’s corpus into various early stage startups, creating an exemplary trend. Investors, who avail themselves of self-invested personal pensions (SIPP), have better chances of multiplying their investment corpus by investing in private equity trusts. 

Investors can gain a much better return on investment through this pension fund as well. Soon, we may see a similar trend across the world, maybe also through pension regulators in India.

Risks of investing in startups

Now, let’s talk about the risks involved in investing in startups.

Compared to all other institutional investment opportunities, startups are very new avenues and investment in startup ventures is prone to higher risks and has multiple risk factors, as follows:

Insecure market risk

Many startups are working on innovative ideas with a mission to make a difference in the world. However, it is not sure whether the market, i.e., end users, will take the idea positively or not. Only a very few startups make a strong and positive impact with their social enterprises and finally generate a good return on investment. Hence, investment in an innovative startup is not secure by nature.

Credit risk with an unstable business

Many of the startup founding teams are new to business and may not know important business skills. Many startup founders are good at technology but novices in business management and entrepreneurial skills. Hence, the real performance of the business may not be stable enough to repay the principal amount or interest amount on time. Startup companies have higher default rates in general compared to companies that are already established or run by experienced businesspeople. Hence, adding startups to one’s own investment portfolio increases credit risk to a higher degree for investors.

Risk because of liquidity issues

Startup investments are not liquid most of the time, which technically means that it is difficult to sell off investments easily and quickly at any point in time. Buyers or sellers at any point are not easily available because of the limited size of the secondary market. Sometimes, rigid terms & conditions restrict investors from liquidating their investments at their own volition. These all impact investor’s ability to cash returns easily.

Non diversification related risk

When invested solely in a single startup, its performance is totally dependent on its own performance. The total investment will be lost if the specific startup fails to perform or underperforms within a specific timeframe. Planful and equal diversification of the total investment kitty into multiple startups of different emerging domains and types can balance this performance issue and mitigate the risk to a large extent.

Risk caused by reinvestments

If a specific startup generates an outperforming return within a specific timeframe, a few investors become greedy and reinvest the return in the same. This in turn can cause the risk of poor ROI (return on investment) in the long run as market conditions may change, hence the performance. Investments in earned profits with fresh, attractive avenues can be lost because of a lack of exploration. 

Risk because of a sudden inflation outburst

If the investment in startups does not grow in line with market inflation, it will end up being a capital loss for investors. Or a sudden outburst of inflation, occurring due to an unexpected situation (a geopolitical situation like a war, a sudden natural calamity or a pandemic outburst), can impact the native purchase power of the investment amount over a time-period. Startup investors need to create a portfolio taking these points into consideration; otherwise, they can end up with a capital loss on their total investment value.

Risk caused by forced selling

Forced selling of startup investments is also a primary risk factor that can be caused by multiple reasons, like:

Willful selling due to emergency

Emergency situations or unforeseen circumstances may cause investors to square off all startup investments all of a sudden, much earlier than planned. Most of the time, this type of sell out happens during unfavourable market conditions, resulting in enormous losses. This is also a huge investment risk and an experienced advisor ensures that their clients keep aside emergency funds for unforeseen situations.

Evil eye of bigger shirks

Every startup investment term & condition comes with exit clauses that investors often ignore. Because of this exit clause(s), promoters of a startup or founders of a startup can force an investor to sell their stake with specific conditions, such as an investment round or a lucrative proposal from another funding party. This is the ground reality and has been observed in many cases. Whether this is legal or ethical, it is subject to court proceedings or proceedings under specific regulators.

All exits, forced or voluntary, surely happen at a higher value than the current market price, but obviously at a much lesser price tag if compared to the actual price value that a specific investment can return in the long run.

Risk related to offshore investments

Investors can expose themselves to huge unwanted risks if they invest in offshore startups. Geo-political situation is in an unstable phase nowadays and we are hearing bad news almost every day. Country specific market economics, including inflation matrices, political instability, currency fluctuations and sudden changes in country-specific regulations, can have a negative impact on startup investment, bringing unwanted exposure to potential risk.

How to mitigate the risk factor

Like every business avenue, the success of any startup is prone to failure and perhaps most uncertain among all businesses. Directly investing in a startup without knowing the domain or analysing the experience and capabilities of the founders can be disastrous. Hence, it is advised to do adequate homework well in advance before venturing into startup investment. Greed and rumours can result in wiping out the total investment corpus rapidly; and there is a possibility of scams and bubbles. 

Hence, it is always advised to go with an experienced professional startup investment advisor with proven track record(s) during the early stage of investment. However, there are plenty of popular investment platforms available that claim a lot, but scams are happening often.

Regulators across the world are trying their best to streamline processes and help protect every investment. But, it’s always better to be cautious than to make a blunder and be sorry.

Role of a financial advisor in startup investing

Investment or management of a startup investment portfolio is a challenging job when the only key measurement parameter is performance over a longer period of time. Self investment has various advantages over other methods, but it is only fruitful when an investor is self-disciplined and devotes adequate time every day to managing the portfolio. It is prone to multiple risks if the investor is not prompt in his actions and is not thoroughly updated about every change in market conditions.

Hence, like any other investment avenues, to get maximum return on startup investment, it is always advised to go with a professional investment advisor or consultant. It is known that an adequately experienced, trustworthy, self disciplined and transparent investment advisor can make a significant impact on a startup investment portfolio.

How to find the right startups for investment

It’s a mammoth task to find the right startup to invest in. Investors need to do lots of homework and attend various workshops, awareness campaigns, help files, and everything else possible. Adequate homework, along with background verification of every founding team through professional agencies, is a must. 

However, few investment platforms and startup hubs are doing wonderful work, bringing everyone on the same platform. Hence, investors must take advantage of all these avenues.

  1. Identify your investment goals:
    • Determine your financial objectives, risk tolerance, and investment horizon.
    • Consider your long-term vision and how startups align with your investment goals. Create a clear investment strategy that outlines your objectives and guidelines for making investment decisions.
  2. Research different industries and sectors:
    • Explore emerging industries and sectors with high-growth potential.
    • Gather information on industry trends, market dynamics, and competitive landscapes. Identify specific sectors that align with your interests, expertise, and understanding to increase your chances of success.
  3. Monitor startup news and publications:
    • Stay informed about the latest startup news, funding rounds, and industry trends.
    • Subscribe to tech blogs, newsletters, and publications to stay up-to-date on the latest developments in the startup ecosystem.
  4. Attend startup events and networking opportunities:
    • Participate in startup pitch competitions, conferences, and networking events.
    • Actively network with founders, investors, and entrepreneurs to gain insights into the startup landscape. Attend events that focus on the specific industries or sectors you’re interested in to meet relevant professionals.
  5. Utilise online startup platforms and databases:
    • Explore online platforms and databases that showcase startups seeking investment.
    • Use filters and search criteria to identify startups that match your investment criteria. Leverage these platforms to research startups, compare their offerings, and connect with founders.
  6. Join startup communities and forums:
    • Engage with startup communities, forums, and online groups.
    • Connect with other investors, founders, and professionals to share ideas, experiences, and opportunities. Participate in discussions, ask questions, and seek advice from experienced investors.
  7. Conduct due diligence:
    • Thoroughly research the startups you’re interested in.
    • Evaluate their team, product, market, financials, and potential for growth. Analyse the startup’s traction, growth metrics, and competitive advantages to assess its investment potential.
  8. Seek professional advice:
    • Consult with financial advisors, investment professionals, and legal experts.
    • Obtain expert guidance on making informed investment decisions. Seek advice on tax implications, legal considerations, and other aspects related to startup investing.
  9. Diversify your portfolio:
    • Spread your investments across multiple startups to minimise risk.
    • Consider investing in both early-stage and growth-stage startups. Create a diversified portfolio that balances risk and reward potential.
  10. Monitor your investments and stay informed: Startups are inherently risky, and it’s crucial to monitor your investments regularly to make informed decisions. Here’s how you can stay informed about your startup investments:
  • Regularly review financial statements:
    • Request and review the startup’s financial statements, including the balance sheet, income statement, and cash flow statement. These statements provide insights into the company’s financial health, profitability, and cash flow situation.
  • Track key metrics:
    • Identify and track key metrics that are relevant to the startup’s industry and business model. This could include metrics like monthly recurring revenue (MRR), customer acquisition cost (CAC), and lifetime value (LTV).
  • Monitor competition:
    • Keep an eye on the startup’s competitors and their activities. Monitor their product launches, marketing campaigns, and funding rounds to assess the competitive landscape and identify potential threats or opportunities.
  • Attend investor updates:
    • Attend investor updates or calls hosted by the startup’s management team. These updates provide an opportunity to hear about the company’s progress, challenges, and future plans.
  • Seek professional advice:
    • Consider seeking advice from financial advisors, accountants, or legal professionals who have experience in startups. They can provide valuable insights and recommendations based on their expertise.

Laws governing startups in India

The legal and regulatory framework governing startups in India has undergone significant evolution in recent years, with the government recognising the importance of fostering a conducive environment for the growth of these innovative ventures. Here are key aspects of the laws governing startups in India:

Definition of a startup:

The Department for Promotion of Industry and Internal Trade (DPIIT) defines a startup as an entity that is incorporated in India, has obtained a certificate of incorporation not more than 10 years ago, has an annual turnover not exceeding ₹100 crores, and is working towards innovation, development, or commercialization of new products or services.

Startup India Initiative:

Launched in 2016, the Startup India initiative is a flagship programme of the Government of India aimed at promoting entrepreneurship and innovation in the country. It encompasses a range of measures, including:

  • Self-certification for startups: Eliminating the need for multiple registrations and approvals, startups can self-certify their compliance with various laws and regulations. This streamlined process reduces the administrative burden on startups and allows them to focus on their businesses.
  • Tax exemptions and other financial incentives: Eligible startups are entitled to a range of tax exemptions and other financial incentives, such as:
    • Tax holiday for three consecutive years
    • Reduced capital gains tax for investments in startups
    • Access to concessional loans and other financing options
    • Seed funding and venture capital support
  • Access to funding: Startups can access funding through dedicated schemes and venture capital funds, such as:
    • Startup India Seed Fund Scheme
    • Fund of Funds for Startups
    • Invest India Fund
  • Simplified compliance procedures and regulatory relaxations: Startups benefit from simplified compliance procedures and regulatory relaxations, such as:
    • Fast-track clearances for various approvals
    • Relaxation of labour laws for startups
    • Single-window clearance for environmental clearances
    • Simplified intellectual property registration process
  • A dedicated Startup India portal and mobile app: Startups have easy access to information and services through the dedicated Startup India portal and mobile app, which provide:
    • Information on government schemes, policies, and regulations
    • Access to online services, such as registration, compliance, and funding
    • Networking opportunities with other startups, investors, and mentors
    • Support and guidance from government agencies and industry experts
  1. Legal Framework:
    • The Companies Act, 2013:
      • Provides the legal framework for the incorporation and operation of companies in India, including startups.
      • Introduces the concept of “One Person Company” (OPC), making it easier for individuals to start their own businesses.
    • The Startup India Act, 2020:
      • A comprehensive legislation aimed at further streamlining the startup ecosystem in India.
      • Establishes a National Startup Advisory Council to advise the government on policies and programmes related to startups.
      • Introduces the concept of a “Startup Founders’ Cell” to provide legal, regulatory, and compliance support to startups.
    • The Foreign Exchange Management Act, 1999 (FEMA):
      • Regulates foreign exchange transactions in India, including those related to investment in startups.
      • Provides specific provisions for foreign direct investment (FDI) in startups.
  2. Investor Protection:
    • The Securities and Exchange Board of India (SEBI):
      • Regulates the Indian securities market, including the issuance of securities by startups.
      • Has introduced a framework for crowdfunding platforms, enabling startups to raise funds from the public.
    • Alternative Investment Funds (AIFs):
      • AIFs are privately pooled investment funds that are not regulated by SEBI.
      • Startups can raise funding through AIFs, subject to certain conditions and regulations.
  3. Intellectual Property Rights (IPR):
    • The Patents Act, 1970:
      • Provides protection for inventions and grants exclusive rights to the patent holder.
      • Facilitates the commercialization and licencing of startup innovations.
    • The Trade Marks Act, 1999:
      • Protects trademarks and service marks, enabling startups to establish and protect their brand identity.
    • The Copyright Act, 1957:
      • Provides protection for literary, artistic, and other creative works, safeguarding the intellectual property of startups in these areas.

Game of investing at early stage

Startups get crucial support from an early stage investor that helps them face tremendous challenges during critical times. But we know that startups, by nature, have very high levels of innovation and creativity, as well as a high level of risk. Hence, investment in a startup at the seed or pre-seed level can bring lots of risk to an investor’s portfolio. However, if invested systematically and professionally, these investments can bring a very high return with a very high risk to reward ratio, as it is an opportunity to invest in avenues before they become a big thing in front of the mainstream public.

This brings a huge uniqueness and advantage that is not possible with any other form of investment instrument available.

Importance of diversification

Startup investments are lucrative if risks can be taken care of from Day 1. But, no one is actually willing to leave it like that because it is a high-risk, high-reward game. Nowadays, everyone is excited about investment opportunities that offer great potential for returns. 

This unique problem can be solved If an investor thoughtfully plans to invest in early stage startups, equally distribute her startup investment kitty into, say, about ten startups. However, these companies should necessarily be diverse in sectors and industries. Diversification in investment kitty of this type will also spread the risks involved. If a specific startup fails to perform during a specific time period or gets evaporated, it will have a distributed impact on the total investment corpus and get adjusted.

Conclusion

The startup ecosystem has been expanding in India since 2000. But it’s happening after a decade since the Securities and Exchange Board of India (SEBI), the market regulator in India,  announced strict regulations (Alternative Investment Funds AIF Regulations) in 2012 to institutionalise investments in startups through alternate funds. It has clearly specified  the Code of Conduct in Regulations and clarified the responsibilities of managers and members of investment committees so that investors’ interests are protected. SEBI has also released the Alternative Investment Funds Regulations in 2021 and updated multiple amendments to meet the long standing demand of the Indian Private Equity and Venture Capital Association (I VCA).

We are seeing a lot of startup centric activities like startup hubs coming up across the world, including in India, even in Tier 2 and Tier 3 cities as well. A new code of conduct for AIFs, fund managers and investment committee members is already in place so that startup centric activities are regulated. A similar code of conduct for other stakeholders, like startup investors, is also in the draft phase and will soon be floated by the specific regulatory body.

Hence, the startup ecosystem in India, in line with other major economies, is growing rapidly beyond expectations. Regulatory frameworks are also being updated rapidly by regulatory bodies, visibly increasing their systematic vigilance. No one likes to miss golden opportunities. Hence, the time has come to join hands and feel free to create separate investment kitty centering startups.

References

  1. 10-Step Startup Investment Guide – Board of Innovation : https://www.boardofinnovation.com/blog/startup-investment-guide-10-steps-to-assess-whether-a-venture-is-suitable-for-investment/
  2. https://seedlegals.com/resources/how-to-invest-in-startups/
  3. https://inc42.com/glossary/startup-investors/
  4. https://www.linkedin.com/pulse/mastering-startup-investment-acquisition-starters-guide-exitsmena
  5. https://www.sebi.gov.in/sebi_data/meetingfiles/apr-2021/1619067585946_1.pdf
  6. https://seedlegals.com/resources/how-to-invest-in-startups/ 
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Mathai v. State of Kerala (2005) : case analysis

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This article is written by Upasana Sarkar. In this article, the judgement of Mathai v. State of Kerala (2005) has been discussed. This article gives a detailed understanding and an extensive analysis of this case. It deals with the facts, issues, judgement and case laws relating to this case. It also includes all the laws relating to grievous hurt under the Indian Penal Code.

Introduction

In a case, where one person hurts another person, there are certain elements that need to be taken into consideration to determine the amount of punishment that needs to be awarded to the accused person by the Court. Mathai v. State of Kerala (2005) is a case of grievous hurt, which is defined under Section 326 of the Indian Penal Code, 1860. It is an important case where the Supreme Court of India reversed the judgement of the Kerala High Court and convicted the accused under Section 325 of the Indian Penal Code. It was also observed that there is no hard and fast rule available for determining what constitutes a suitable sentence and the passage of time is not always a deciding element. It is one of the landmark cases where the opinion of the Supreme Court was that determining if a particular article can by itself cause any severe harm or not will depend upon the facts and circumstances of the case. 

This article deals with a detailed and exhaustive analysis of the case of Mathai v. State of Kerala (2005). All the aspects involved in this case are comprehensively discussed in this article.

Details of Mathai v. State of Kerala (2005)

  • Case name: Mathai v. State of Kerala (2005)
  • Equivalent Citations: AIR 2005 SC 710, 2005 (3) SCC 260, 2005 AIR SCW 368, (2005) 1 JCR 213 (SC), 2005 (1) SCALE 293, (2005) 2 JT 365 (SC), 2005 (2) JT 365
  • Act involved: Indian Penal Code, 1860
  • Important provisions: Section 320, Section 325 and Section 326 of the Indian Penal Code 
  • Court: Supreme Court of India
  • Bench: Justice Arijit Pasayat and Justice S.H. Kapadia
  • Petitioners: Mathai
  • Respondents: State of Kerala 
  • Judgement Date: 12 January, 2005

Facts of Mathai v. State of Kerala (2005)

On 27th October 1992, the victim, Krishnan Kutty, was walking down the road which was situated near Pulinchode Cruz Junction when the accused intentionally hit him with a stone causing injuries on his head and face. The victim had no idea that such an incident would occur. He was unarmed and the accused took advantage of that situation. This incident took place around 5.30 pm in the evening. The victim was then rushed to a nearby hospital named Medical Mission Hospital, Kolenchery for treatment. He was very badly injured as said by the doctor who treated him. 

A complaint was registered by the Head Constable of Puthencruz Police Station. On the basis of that FIR, the Assistant Sub-inspector of that police station, Radhakrishnan, started investigating the case. He looked into the primary evidence as well as the witnesses of the case. After completing his investigation, he submitted the charge sheet to the Court. The report showed that the accused with the intention of hurting the victim committed that offence. The injuries sustained by the victim as stated by the doctor were

  • Lacerated wound over the left posterior parietal region of the head.
  • Fracture of the left upper second incisor tooth involving the pulp and the root.

The suit for this case was first filed in the Trial Court of Kerala, where he was held guilty under Section 326 of the Indian Penal Code. It was then tried in the High Court of Kerala, where the Court upheld the decision of the Trial Court and finally to the Supreme Court when the accused filed an appeal petition against the decision of the Kerala High Court. 

Prior proceedings

Decision of the Trial Court of Kerala

The victim was taken to the hospital after being attacked by the accused. He had been treated by the doctors of Medical Mission Hospital, Kolenchery. Afterwards, the victim, who was badly injured, on being attacked by the accused, filed a complaint in Puthencruz Police Station. The Assistant Sub-inspector of that police station investigated the matter and submitted the charge-sheet in the Trial Court. The suit was filed by the victim in the Trial Court at first. The accused was held guilty in the Trial Court of Kerala under Section 326 of the Indian Penal Code. He was convicted of 2 years of rigorous imprisonment for causing ‘grievous hurt’ to the victim.

Decision of the High Court of Kerala 

The accused, on being convicted by the Trial Court, submitted his appeal petition against the judgement of the Single Judge of the Kerala High Court. The Court upheld the decision of the Single Judge Bench convicting him of ‘voluntarily causing hurt with a dangerous weapon’ and punishing him with 2 years of rigorous imprisonment. In this case, the victim was harmed by the accused with the help of a big stone that acted as a ‘dangerous weapon’ in this case as it caused severe injuries to the victim. He had been admitted to the hospital as his face and head got distorted by that big stone. Aggrieved by the judgement of the High Court, the accused filed an appeal in the Supreme Court of India.

In this case, the Single Bench Judge of the Kerala High Court affirmed the judgement of the Trial Court and upheld the accused guilty under Section 326. He was convicted with two years of rigorous imprisonment as a punishment for trying to murder a person, the victim in this instant. The Learned First Class Judicial Magistrate confirmed the sentence passed by the Third Additional Sessions Judge, Ernakulam. The Judicial Magistrate dismissed the petition that was filed by the appellant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. He upheld the decision of Justice Ernakulam stating that the accused was guilty of grievously hurting the victim on his head and face intentionally.

Issues raised

  • Whether the injuries sustained by the victim fall under the category of “grievous hurt”?
  • Whether the weapon used by the accused to injure the victim can be called a “dangerous weapon” in this case?
  • Whether the crime committed by the accused comes under the purview of Section 326 of the Indian Penal Code?
  • Whether they be sentenced to 2 years of rigorous imprisonment after already spending more than ten years in prison or not? 

Arguments of the parties in Mathai v. State of Kerala (2005)

Appellant

The accused denied the charge imposed on him by the petitioner. The appellant, in support of his appeal, stated the following arguments-

  • The injuries that were caused to the victim do not constitute “grievous hurt”, as confirmed by the doctors. 
  • He also stated that the evidence provided by the witnesses must not be relied upon. 
  • It was also contended by the appellant that the weapon, that is, the stone used cannot be termed as a “dangerous weapon” and, thus, it will not attract Section 326 of the Indian Penal Code. 
  • The appellant also argued that he has already served the majority of the sentence awarded to him in jail as more than ten years have passed. 
  • The accused, therefore, requested for suitable sentence modification as he has undergone imprisonment for the past few years.

Thus, the appellant requested the Supreme Court to overturn the judgement of the Kerala High Court.

Respondent

The respondent stated the following grounds to prove the accused responsible- 

  • The respondent, on the other hand, contended that Reji Paul, the doctor of the Medical Mission Hospital, had examined the victim and issued a wound certificate that clearly tells that the victim had sustained a major injury on his face and head. 
  • This certificate is important evidence for this case, which states that the injury faced by the victim comes under the definition of ‘grievous hurt’. 
  • It was also stated by the petitioner that an eyewitness who saw the incident also confirmed the same thing as the doctors who examined him and who issued him the Discharge Certificate. 
  • When the eyewitnesses were examined further, they also said that the accused had voluntarily attacked the victim with the intention of injuring him. 

Therefore, the decision imposed by the Kerala High Court must be upheld and the accused must face the conviction sentence.

Law discussed in Mathai v. State of Kerala (2005)

In this case, the prosecution invoked the charge that the accused had grievously hurt the victim. The term ‘grievous hurt’ has been defined in Section 320 of the Indian Penal Code, 1860. Section 320 of the Indian Penal Code deals with all the hurts that fall under the term ‘grievous hurt’, which are as follows-

  • The first one is emasculation. It means removal of male external sex organs like the penis and the scrotum.
  • The second one is the loss of vision in one or both eyes permanently.
  • The third one is permanent loss of hearing in one or both ears.
  • The fourth one is the loss of any limb or joint.
  • The fifth one is irreversible loss or impairment of any joint or member’s powers. The term ‘member’ means a limb or an organ of a body.
  • The sixth one is a permanent deformity of the face or skull.
  • The seventh one is the fracture or displacement of any bone or tooth.
  • The eighth one is any hurt that puts the victim’s life in jeopardy, renders them unable to engage in their regular activities for twenty days, or both.

Section 325 deals with the penalty that would be imposed upon the person who voluntarily causes grievous hurt to another person and Section 326 deals with the crimes of voluntarily causing hurt to a person with the help of dangerous weapons or by other methods. Section 326 states that cases where the punishment of imprisonment for life or imprisonment up to ten years along with a fine would be imposed upon the convict if the victim is grievously injured voluntarily, which are as follows-

  • an instrument that is used for cutting, stabbing, or shooting;
  • an instrument used as a weapon to presumably cause death;
  • by using fire or any other explosive substances;
  • any other corrosive substance;
  • by using explosive materials or materials that are harmful for a person to inhale, swallow, or come into contact with the blood;
  • with the help of any animals.

The only exception is Section 335 where this Section will not be applicable as in this case one person grievously hurts another person on provocation and not voluntarily. In the case of Section 335, the punishment is less as the voluntary hurt is caused by provocation. So, the accused in that case if held guilty will be imprisoned for a term of four years, or with a fine of a maximum of two thousand rupees, or both.

All these eight injuries fall under the category of grievous hurt. These kinds of hurt are more serious kinds of hurt where the person feels severe pain. In case a wound that causes severe pain, long-lasting injury, or prolonged disease to the victim and does not come under the first seven categories of hurt, falls under the eighth category. The Court, before awarding the conviction sentence to the accused, properly examines the injury that has been suffered by the victim and sees whether that injury falls under any of the eight categories of Section 320 of the Indian Penal Code, 1860. In such cases, the weapon that has been used to cause the death of a person would also be examined. It will be seen whether that instrument used for killing comes under the term ‘dangerous weapon’ or not. 

Therefore, deciding whether the accused can be convicted under Section 326 of the Indian Penal Code or not depends upon the following ingredients, which are as follows-

  • The hurt caused to a person is done voluntarily.
  • The injury caused to a person must come under the category of grievous hurt.
  • The injury caused to a person must be done with the help of some dangerous weapons or methods.

Judgement in Mathai v. State of Kerala (2005)

The judgement of this case was passed by the Supreme Court in 2005 when the appellant filed an appeal petition against the decision of the Kerala High Court. The accused was sent to jail for trying to kill the victim with the help of a big stone causing grievous hurt. The victim had suffered serious injuries in his head and face on being attacked by the accused when he was walking down the road. In order to get justice, the victim filed a complaint in the Kerala High Court against the accused. 

The High Court of Kerala stating that the accused had intentionally injured him passed the judgement in favour of the victim by sending the accused to prison for two years. So the Court awarded him two years of rigorous imprisonment under Section 326 as he committed the crime voluntarily. 

The findings of the Court were that there was no reason for the victim to charge the accused in error. The doctor who treated the victim confirmed that grievous hurt was caused to him as a big stone was used to hit him. He has shown clear and cogent evidence and there was no reason present that will justify the reason of falsely implicating the accused.

The Supreme Court after taking into consideration the evidence and witnesses of the case reversed the decision of the lower Court and observed that the stone used in this case cannot be termed as a ‘dangerous weapon’. The Court took into account its size before altering the verdict of the High Court. The accused was convicted under Section 325 of the Indian Penal Code and not under Section 326. It was also stated by the Court that the appellant had already suffered a major part of this sentence in the prison. So the appellant had already suffered the punishment. Hence, the Court ordered to release of the appellant if there were no other cases pending in his name. By stating this decision, the Supreme Court disposed of the appeal accordingly. In this case, a big stone was not considered a ‘dangerous weapon’ by the Court. 

The rationale behind this judgement

While dealing with this case, the Supreme Court took the view of the State of Uttar Pradesh v. Indrajeet Alias Sukhatha (2000), where it was observed that there is no particular thing or weapon that can be called a murder weapon, which can be used for committing murder or severe hurt that will amount to the death of a person. To determine whether a particular weapon can cause severe harm to a person which can lead to the death of a person will be determined factually by the Court looking into the circumstances of the case. In this case, the doctor, Dr. R. V. Devdas (PW5), who submitted the report, clearly stated that the injury caused to the victim falls under the expression ‘grievous hurt’ that is defined in Section 320 of the Indian Penal Code. It was inevitably concluded that the injury caused was a grievous hurt. It was stated by the Court that a stone would not be considered as a dangerous weapon in every case. It will totally depend upon the facts and circumstances of the case. It was also observed that the instrument used for murdering someone can be called a ‘dangerous weapon’ in some cases as stated in Section 324 and Section 326, while, in other cases, it can be called a ‘deadly weapon’ which is mentioned in Section 397 and Section 398 of the Indian Penal Code. While determining whether the weapon used in a case to hurt someone can be considered a dangerous weapon or not depends upon the sharpness, size, and other similar factors. These are the factors that will guide a Court to decide whether Section 325 or Section 326 will be applicable in a particular case. Thus, the Court will pass its judgement only after taking into consideration all the above factors as well as the circumstances of a particular case.

Analysis of Mathai v. State of Kerala (2005)

Criminal litigation

In this case, the Single Bench Judge of the Kerala High Court confirmed the judgement of the Trial Court upholding the convict’s two-year rigorous imprisonment sentence as he was guilty of an offence punishable by the Indian Penal Code. The appeal submitted by the accused was looked into by the High Court but it affirmed the judgement of the Trial Court as the accused was rightly found to be guilty under Section 326.

After analysing the details of this case before and after the pronouncement of its judgement by the Supreme Court of India and its implementation in recent times in India, some positive effects and a few shortcomings can be found.

Positive impact of the judgement

In India, there are three types of courts, as well all know. The first is at the district level, with District Courts, the second is at the State level, with the High Court, and the final one is the Supreme Court of India. When the Supreme Court of India pass any judgement, all the High Courts and the District Courts are bound to follow them while giving judgement in similar kinds of cases in future. 

The guidelines of this case will be referred for future similar kinds of cases. In this case, it was highlighted that if any accused suffers a major portion of his sentence, he can be released from the prison, if he is not involved in any other case. The Supreme Court observed that the accused has already got the punishment for the offence that he has committed and therefore, altered the verdict passed by the High Court of Kerala. This case has also shown how the cases go on for years and both the victim and the accused have to suffer as a result of that. In such cases, the accused could be released after taking into consideration the circumstances of the case and the condition of the accused. Since the accused had already completed a major portion of the sentence that was awarded to him, it can be said that the Supreme Court’s decision to release him from prison was correct. 

Shortcomings of the judgement

In this case, the Supreme Court while dealing with this case observed that it does not fulfil the requirements of Section 326 of the Indian Penal Code which includes the terms ‘grievous hurt’, ‘voluntarily’, and ‘dangerous weapon’. The Apex Court stated that the stone cannot be termed as a ‘dangerous weapon’ and, therefore, held the accused convict under Section 325. However, the accused knew that if any person’s head and face are crushed with a big stone, it will cause serious injury, eventually leading to the death of a person. Then also he committed that crime without giving it a second thought. He had harmed the victim voluntarily knowing the consequences that the victim had to suffer as a result. 

So, in my opinion, the Supreme Court could have taken into consideration the criminal mentality, that is, the malice behind, of the accused before altering the verdict of the lower Courts. The victim had to suffer such severe injuries at that moment. His face could have been permanently distorted. He could have lost his memories as well, or he could have even died if not been rushed into the hospital at that moment. If the Supreme Court had not overruled the judgement of the lower Courts, then in future any person with such a malafide intent coupled with such overt act would have given a second thought before committing a similar crime.

Relevance of this case in recent times

In a recent case of State of Maharashtra v. Mahadev Ramu Takkekar (2022), the petitioner on being beaten by the accused filed a suit in the Trial Court of Bombay. The petitioner and his family members were having some disputes with the accused over land. The land of the accused was adjacent to the land of the petitioner, where they used to cultivate. The petitioner and his family members had to pass through the land of the accused to go to their fields for agricultural work. The accused were not permitting them to pass through their lands and so they were having disputes regarding this matter for about 4 to 5 years. This problem had been settled at the village level. After that on 15th July, 1998, the accused went to the petitioner’s field and started abusing them. They were forcing the petitioner to leave the field and started beating causing injury. He was injured with the help of a sickle commonly known as ‘Khurpi’. He was then taken to a nearby Government hospital where his statement was recorded by the police. In the charge-sheet submitted by the police, the accused was charged with offences that are punishable under Section 323, Section 324, Section 325, Section 326, and Section 504 read with Section 34 of the Indian Penal Code, 1860. The Trial Court held him guilty of Section 325 and not Section 326 of the Indian Penal Code, 1860. He was convicted under Sections 325, 324, and 323 read with 34 of the Indian Penal Code, 1860. The accused submitted an appeal to the Bombay High Court. The Bombay High Court affirmed the decision of the Trial Court. 

The impact of judgements like Mathai v. State of Kerala case can be understood by the judgement of the concerned case. Like the ‘big stone’ was not considered a ‘dangerous weapon’ in this case, similarly, the Court in the State of Maharashtra v. Mahadev Ramu Takkekar case held that ‘Khurpi’ cannot be considered a ‘dangerous weapon’ and convicted the offender under Sections 323, 324 and 325 of the Indian Penal Code, 1860.

Conclusion

Mathai v. State of Kerala (2005) is one of the cases that held rigorous two-year imprisonment for a convict who intentionally hurt another person causing severe pain and injury. The Supreme Court altered the verdict of the Kerala High Court and held the accused guilty under Section 325 and not Section 326 of the Indian Penal Code, where it is stated the punishment can be extended up to ten years imprisonment along with a fine. The Court has examined all the witnesses properly and came to the conclusion that the accused has deliberately committed the crime and, therefore, is liable to be punished. If the accused had not been awarded this punishment of imprisonment then in the future others would have committed the same crime without any fear and the common people would have lost all hope in the Indian legal system. So, the Court scrutinised each and every factor of this case, took into consideration the circumstances of the case and came to the decision that the accused was guilty of harming the victim voluntarily and he was convicted under Section 325 of the Indian Penal Code. Hence, the Court ensured the release of the accused so that he is not wrongly convicted of an offence which he has not committed.

Frequently asked questions (FAQs)

What is the difference between Section 325 and Section 326 of the Indian Penal Code, 1860?

Section 325 of the Indian Penal Code deals with the offence of voluntarily causing hurt to a person. It deals with regular or less serious injuries. This kind of hurt is caused without using any kind of ‘dangerous weapon’. Section 326, on the other hand, deals with offences that are caused voluntarily to a person with the help of any kind of ‘dangerous weapon’. It deals with more severe kinds of injuries. In these kinds of cases, the victim suffers ‘grievous hurt’ and that hurt is inflicted upon the victim by the accused with the help of a ‘dangerous weapon’.

What is the punishment awarded in case of an offence caused under Section 325 of the Indian Penal Code, 1860?

Offence under Section 325 is considered to be cognizable and bailable offence. The punishment awarded to the convicted person who has been held guilty under Section 325 is a maximum of seven years imprisonment, along with a fine. Any Court dealing with such cases would take into consideration the circumstances as well as the criminal history of the accused before awarding him any sentence.

What is the punishment awarded in case of an offence caused under Section 326 of the Indian Penal Code, 1860?

Offence under Section 326 is considered to be cognizable, non-bailable and non-compoundable offence. The punishment awarded to the convicted person who has been held guilty under Section 326 may extend to life imprisonment along with a fine. When such a case comes before any Court, it would take into consideration the circumstances as well as the criminal history of the accused before awarding him any sentence. The punishment awarded in this case is more severe than Section 325 because this Section deals with offences that are more serious in nature and the victim suffers grievous hurt. 

Can a person get bail in either of the cases?

In case of Section 325 of the Indian Penal Code, the accused can get a bail if he executes a bond with, or without sureties in accordance with the conditions imposed by the Court. He can also be granted bail on personal bond and without sureties. On the other hand, in case of Section 326 of the Indian Penal Code, the accused may or may not be granted bail by the Court. The Court, before granting him bail, will look into the evidence that has been presented against the accused. If the evidence is not strong enough and there is no way that the accused can tamper or abscond with evidence, the bail can be granted to the accused. But if there is any chance that the accused can tamper or abscond with evidence, the bail might not be given to the accused by the Court.

References


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Section 75 of Juvenile Justice Act, 2015

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The article is written by Jyotika Saroha. The article deals with Section 75 of the Juvenile Justice Act 2015, which talks about the punishment for cruelty to children. It primarily discusses the meaning of cruelty, acts that amount to cruelty, and significant legislation providing for the protection of children. Further, it talks about the important provisions of the said Act and the ingredients laid down in Section 75. Lastly, the article addresses statistics pertaining to crimes against children in India.

“The most sophisticated people I know-inside, they are all children.” ~Jim Henson

Introduction

India is a country that consists of various religions, castes, sects, and cultures. For any country to achieve developed status, it must focus on the growth and development of its children. It is a well-known fact that the Indian government always tries to uplift children by promoting their growth and development through the implementation of various schemes and projects. Despite adopting several measures to promote their growth, there are certain factors that affect it, with cruelty being one of them. Cruelty is prevalent in the country and affects not only children but also individuals of other age groups. Nowadays, many cases of abuse and cruelty against children are being reported on a daily basis, and the data is pretty shocking. It has taken many forms, ranging from bodily injury to sexual, physical, and mental abuse.

What is cruelty

Cruelty involves the infliction of cruel, brutal, harsh, and extremely ferocious treatment upon a person. It entails administering unwarranted mental, physical, or emotional pain to a person. In Russell v. Russell (1997), the word ‘cruelty’ was defined as conduct that poses danger to health or life and causes harm to the body or mental state of a person. The element of apprehension is of utmost importance in this definition, and without the presence of apprehension, the act would not amount to cruelty. This definition, established in the 19th century, widely covers both physical as well as mental cruelty. 

Children are considered the most vulnerable section of society, and even after numerous schemes and projects aimed at uplifting children, they are still subjected to cruelty and other heinous crimes. Cruelty to children refers to the act of causing negligence towards a child, physical harm to his body, or any other harm that may endanger their life and lead to psycho-social impacts on his or her health. 

Acts that amount to cruelty to children

According to societal standards, parents often believe that behaving in a strict manner and rebuking children for small things will prevent a child from misbehaving. However, some children, after experiencing such severe treatment from their parents, take drastic measures, such as committing suicide, involving themselves in the wrong company, or leaving their homes. Following are some acts that amount to cruelty:

Scolding or beating at school

Children in schools not only face harsh treatment from their parents but also from their teachers. Scolding and beating children at school by teachers could have serious impacts on the psychological health of a child. It may cause stress, anxiety, and depression in the child. They may also show aggressive behaviour sometimes, which will indirectly cause harm to them. In order to prevent the abuse caused to children in schools, it is the duty of the teachers and other staff members to create a friendly environment rather than beating them or scolding them for minor mistakes.

Neglecting and abusive behaviour by parents

In India, it is generally seen that parents beat their children in order to make them learn something, be it discipline, etiquette, or studying, but due to such behaviour, a feeling of fear is being created, which is not good for their growth and development. It makes them emotionally vulnerable; the child may feel bad about such behaviour, and it can have a negative impact on his or her mind.

Cruelty to children is a serious phenomenon prevalent in society at present, which not only hinders their growth but also impacts their mental well-being. There are various offences committed against children that have been prevalent in society since traditional times, but now the numbers have seen a steady increase. These offences include child prostitution, child trafficking, kidnapping, child labour in factories, child begging, and involving children in the sale of drugs, etc. The most vulnerable targets are those who come from poor families or belong to the weaker strata of society. 

Legislations regarding the protection of children

There are various laws that provide protection to children, obliging states to take necessary measures to ensure the primary responsibility for the betterment of children in every sphere of their lives. The Indian Constitution provides for provisions that empower children by promoting their welfare.

Article 14 states that every citizen is equal in the eyes of the law. The word ‘citizen’ includes every man, woman, and child as equals in the eyes of law.

In Gaurav Jain v. Union of India (1997), the Supreme Court laid down that the children of a prostitute have the same rights and opportunities as those of other children. As per Article 14 of the Indian Constitution, all citizens shall be treated equally in the eyes of the law and are entitled to the same legal protections as those of others.

Article 15 provides for the prohibition of discrimination and also obliges the state to make special provisions regarding women and children. This provision has been added in order to protect and promote their welfare. The objective of this special provision is to uplift women and children through various policies and programs, for instance, by providing them with reservations in educational institutions, health facilities, etc.

Article 21A was added to the Indian Constitution by way of the 86th Amendment, making it compulsory for the state to provide free education to children between the ages of 6-14. This Amendment is considered an important step that helps in promoting the growth and development of children. In the case of Mohini Jain v. State of Karnataka (1992), it was held that the right to education is an important fundamental right and should be protected at every cost. It is the duty of the state to ensure that proper education is being provided to the children owing to their financial ability.

Article 24 provides for provisions relating to child labour and prohibits the employment of children in factories who are below the age of 14 years. In the case of People’s Union for Democratic Rights v. Union of India (1983), the petitioner organisation saw the bad working conditions of children who were below the age of 14 in various Asian projects. The Court, in its judgement, stated that the said construction activity is very dangerous for children. The Court looked into the provisions of the Employment of Children Act, 1938, which does not include the children under 14 years of age who were working on dangerous construction activities. The Supreme Court directed the states to include the said hazardous construction industries in the list of the Act. 

Article 39(f) provides that the state is under the responsibility to make sure that children are getting proper opportunities and facilities to develop in a healthy manner. It further ensures that their childhood is not affected by any kind of exploitation.

The legislation that prohibits the employment of children is the Child Labour (Prohibition and Regulation) Act, 1986. It prohibits the employment of children in hazardous factories and mines and lays down certain regulations in order to protect children from exploitation. 

Further, the legislation regarding the protection of children from sexual offences and addressing such crimes is the Protection of Children from Sexual Offences Act, 2012. It defines ‘child’ as a person below the age of 18 and outlines various forms of child abuse and sexual abuse against children. This Act is significant legislation in terms of child protection and promoting their overall growth. It is characterised by child-friendly provisions that prioritise the well-being and future of children.

In addition, the Juvenile Justice (Care and Protection of Children) Act, 2015, focuses on the proper care, development, and promotion of the social welfare of children. This legislation aims to provide a supportive environment for children’s growth while ensuring their protection and rehabilitation when necessary. 

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

The very first legislation that dealt with juvenile justice came into force in 1850, which provided for the training of children that had been convicted of different offences. Later, the National Children’s Act, 1960, came into force with the intervention of the government but was eventually replaced by the Juvenile Justice Act, 1986. In 1992, when India signed the United Nations Convention on the Rights of the Child (UNCRC), the Juvenile Justice Act, 2000 was implemented to align with the standards of the convention. Subsequently, the 2002 Act was also repealed”, and the Juvenile Justice (Care and Protection of Children) Act, 2015, came into force in order to meet the standards prescribed by international conventions. Prior to this, there was no uniformity in the laws regarding the protection and care of children and the age limitation of juveniles. 

Data from the National Crime Record Bureau (NCRB) shows that there has been an increase in crimes committed by juveniles aged between 16 and 18. In the Delhi gangrape case, one of the accused was tried as a juvenile, as he was 17 years old at the time. He had committed the most brutal act among all of them and was sentenced under the previous Juvenile Justice Act. He was sent to the rehabilitation home after committing the crime as he was below the age of 18. The case of a juvenile was one of the most controversial and debated topics at that time. Following this tragic incident, there have been demands to reduce the age of juveniles under the said Act. The juvenile was not tried as an adult at that time, but due to the public hue and cry Amendments made in the Juvenile Justice (Care and Protection of Children) Act, 2015, juveniles within the age group of 16-18 who are involved in such serious crimes can now be tried as adults.

The Juvenile Justice Act, 2015 defines ‘child’ under Section 2(12) as a person who is below the age of 18 years. The Act categorises children into two main groups: “child in conflict with law,” defined under Section 2(13) of the Act, which refers to a child who has committed an offence or is below the age of 18 years, and “child in need of care and protection” outlined under Section 2(14)”, which refers to a child:

  • Who is found without any home or is found without any means of livelihood.
  • Who is found begging, living on a street, or working in contravention to the labour laws
  • Who is living with a person or a guardian who has caused him injury or has exploited, abused, or neglected him. The said person has threatened to kill, injure, or exploit him.
  • Who is mentally incapable or mentally unsound and has no one to support him or look after him.
  • Whose parents have abandoned him and are not willing to take care of him.
  • Who has run away from his home.
  • Who seems to be vulnerable and is likely to get involved in drug abuse or trafficking.
  • Who is a victim of an armed conflict, natural calamities, or of any civil unrest.

The Act also classifies offences under the categories of petty offences, serious offences, and heinous offences.

Section 75 of Juvenile Justice Act, 2015 

Section 75 of the Juvenile Justice Act, 2015, deals with the punishment for cruelty to a child. It states that if a person who has actual control or charge of a child assaults, abandons, neglects him wilfully, abuses him, or exposes him, causing mental or physical illness to that child, the person shall be punishable with imprisonment for a term which may extend to three years and also with a fine of one lakh rupees or with both. The first proviso to this section states that if a child is abandoned by the biological parents in some unforeseen circumstances or due to reasons that are out of their control, then it shall be presumed that such abandonment is not wilful, and the provisions of this Act shall not apply in such cases.

The second proviso to this section provides for the offence of assaulting, abandoning, neglecting, or abusing the child by a person employed by an organisation entrusted with the protection and care of the child. As per this section, he shall be punished with a rigorous imprisonment that may extend up to five years and a fine that may extend up to five lakh rupees.

The third proviso to this section lays down that if, due to such cruelty committed against the child, he has become physically disabled, mentally incapable, or rendered mentally ill to perform regular tasks, or has a risk to life, such person shall be punishable with rigorous imprisonment for not less than three years, which may also extend to ten years, and he shall also be liable to a fine of five lakh rupees. 

Exceptions to the rule under Section 75 

The Juvenile Justice Act, 2015, provides for exceptions for the biological parents of a child subjected to cruelty. Section 75 of the Juvenile Justice Act, 2015, deals with the punishment for cruelty to a child, but there is an exception provided within the proviso to said section. The very first proviso to Section 75 states that if the child is being abandoned by the biological parents due to some unavoidable circumstances beyond their control, then that act would not attract the punishment laid down under Section 75 of the Juvenile Justice Act, 2015. If this were to happen, then it shall be presumed that such an act or abandonment is not willful and is totally done in some unforeseen circumstances.

Also, recently, in Kothakonda Aishwarya v. The State of Telangana (2023), the Telangana High Court held that if a juvenile works voluntarily or by his own wish, then Section 75, which deals with the punishment for cruelty to a child, and Section 79, which deals with the provision regarding the exploitation of a child employee, a punishable offence under the said section, would not come into effect. 

Further, in the case of Anurag s/o Jamnashankar Pandey v. State of Maharashtra (2022), the petitioner, a headmaster, was accused of violating Section 75 of the Juvenile Justice Act. The Bombay High Court observed that the phrase “actual charge of, or control of,” implies that the children should be under the actual charge or control of a person. The court further held that the petitioner, merely by virtue of his position, could not be held liable under Section 75, emphasising that a person must either commit the offence or contribute towards its commission to be held liable. This case highlights the requirement for real, rather than theoretical, control over children to establish liability under Section 75. 

Statistics regarding crimes against children

Criminal litigation

According to the data published by the government, one child goes missing every nine minutes. In 2011, it was shown that around 36,000 children were reported missing, and not all cases were reported to the police. The possibility exists that all the children who go missing are either trafficked or kidnapped. Trafficked kids are subjected to physical as well as mental cruelty. They are beaten, tortured, and sold in foreign countries in order to involve them in illegal activities like drugs, prostitution, etc. for money. In the recent scenario, around 1.68 lakh cases of crimes against children were booked in the year 2022, compared to 1.28 lakh in the year 2020. These crimes include cases of kidnapping and abduction. Rape is considered the most heinous crime, and between 2016 and 2022, over 96 percent of rape cases were registered, as per the National Crime Record Bureau (NCRB).

In Bachpan Bachao Andolan v. Union of India and Ors. (2011), a public interest litigation was filed under Article 32 of the Constitution in the wake of serious crimes committed against children, including physical, mental, or emotional abuse and inhumane treatment. The Court took cognizance of the said matter and issued certain directions, like mandatory registration of cases by police officials involved in cases of missing children, preparation of standard operating procedures in all states, appointment of special child welfare officers, etc. The Ministry of Women and Child Development came up with Standard Operating Procedures (SOP) regarding cases of missing children.

The World Health Organization (WHO) has provided a definition of child maltreatment as the abuse or neglected behaviour that happens to a child who is below 18 years of age. It includes all types of maltreatment that happen to a child, such as sexual abuse, beating, torturing, physical or emotional abuse, etc., that can cause possible harm to the health, development, and dignity of a child. Studies suggest that children who are prone to these types of violence do not receive sufficient nutrition, a child-friendly environment, or good opportunities. In the famous book named Bitter Chocolate, the author highlights how punishing or physically abusing children in India for minor mistakes is a cultural norm. 

Looking at the condition of children in foreign countries like the United Kingdom, various legislation dealing with child abuse has also been enacted in order to promote their welfare and protect them from harassment. Both India and the United Kingdom focus on the protection of children from any kind of maltreatment. For instance, POCSO has enabled the setting up of Special Courts to deal with cases relating to child abuse, and in the United Kingdom, there are Crown Courts to deal with such cases.

However, instances of child abuse persist worldwide. In one such case, a Norway-based Indian couple named Chandrasekhar Vallabhaneni and Anupama used to maltreat their child. When the case went to the Norwegian Court, they were charged with torturing and maltreating their child and found guilty of burning and beating him.

A recent incident in Agra, Uttar Pradesh, enraged the nation when a school teacher asked students to slap an eight-year old boy belonging to a minority community and made communal comments. Following this incident, the teacher was faced with charges under Section 504 and Section 323 of the Indian Penal Code, 1860, for intentionally insulting and with an intention to provoke children, and for voluntarily causing hurt. After a thorough investigation into the incident, the teacher was also booked under Section 75 of the Juvenile Justice Act, 2015. A separate FIR was also lodged under Section 74 of the said Act against an employee of Alt News for disclosing the identity of the minor child, as Section 74 prohibits the disclosure of the identity of children.

This incident highlights the importance of protecting children, as indicated in the ongoing case of Kriti Kishore Chavan and Anr v. The State of Maharashtra (2020), where the court, while reviewing the matter, emphasised the necessity of examining evidence before deciding whether to proceed with trial or drop the charges under the Juvenile Justice Act. In this case, the court examined the application for discharge in light of the allegations under Sections 75 and 79 of the Juvenile Justice Act. The court noted that the victim, a female child, was kept at the accused’s house for work, possibly violating this rule. As a result, the court rejected the application for discharge, emphasising the need to consider the evidence before deciding whether to proceed with the trial or drop the charges. 

Some preventive measures

Children are considered the most vulnerable section of society, and they need extreme protection and care, especially during their childhood days. Following are some preventive measures that could help in preventing abuse or cruelty to a child.

Child-friendly environment

In order to prevent children from experiencing any kind of abuse or cruelty, it is essential to create a child-friendly environment at home or at school. Parents should involve themselves with their children while talking, playing, and helping them in their studies. They should give proper time to their children. There should be a high level of understanding between children and parents, and parents should understand the unsaid or unnoticed aspects of their kids. Children should be treated gently and lovingly and should not be punished or rebuked for minor mistakes. 

Mental and physical fitness

To ensure their mental and physical fitness, proper, nutritious food should be given to them. Also, children should learn discipline from their childhood only in order to tackle any kind of difficulties that come to them in the future. Discipline is key to good etiquette and maintaining good social and emotional behaviour. 

Education and awareness

Education and awareness are also the most important facets of providing a balanced life for children. It is important for society to learn about measures to provide a better and safer environment for children. Parents should make sure that their children are spending time with the right persons and are not learning habits that can influence them badly.

Child welfare programs

Child welfare programs play a great role in lessening such crimes against children as they spread awareness about the child rights and responsibilities of adults towards them. There are various child development programs conducted by the government at different levels that focus on the growth and development of children.

Conclusion 

It can be stated that treating a child in an ill-mannered way, physically or mentally abusing them, or subjecting them to cruelty is unfortunately a dark reality in today’s world. Cruelty towards children has become a very common phenomenon not only in India but also in other countries, with an increase in criminal activities targeting children. This issue is highly sensitive, as children constitute one of the most vulnerable sections of society, and most cases of child cruelty go unnoticed and unreported due to the stigma associated with them. Often, people tend to overlook such cases due to their sensitive nature. 

Over the years, the government has taken significant steps to promote the welfare of children and protect them from any kind of abuse. However, such practices are not confined to rural or poor households but also exist in modern cities, adversely affecting the mental well-being of children. To prevent such abusive behaviour, a child-friendly environment needs to be fostered. Children rely on adults for care and guidance, and they should be treated in a friendly manner while being provided with proper care and opportunities.   

Frequently Asked Questions (FAQs) 

What amounts to cruelty?

Acts that amount to cruelty include physical and emotional abuse, abusive behaviour, willful neglect, and actions that may pose a threat to life or cause bodily harm to a person. 

What is child abuse or neglect?

Children are the most vulnerable section of society and are exposed to various forms of abuse, be it physical, mental, or emotional, from their parents, relatives, teachers, or peers. Neglecting a child means neglecting his or her basic needs, not providing him or her adequate food, clothes, study materials, and other things, including love and affection from their parents, which is a very common kind of abuse.

What could be some signs that a child is facing trauma and needs help?

If a child is looking lost, not feeling good, not playing as on usual days, showing different behaviour, feeling sad or depressed, not talking with anyone, or feeling scared to sleep without anyone, these factors might indicate that a child is facing trauma and needs support from his or her parents or from the person concerned.

What is the exception to Section 75 of the Juvenile Justice Act, 2015?

Section 75 of the Juvenile Justice Act, 2015, prescribes the punishment for assaulting, abandoning, neglecting, or abusing a child. However, according to the proviso to the section, if a child is abandoned by their biological parents due to some unavoidable circumstances that are not in their control, it shall be presumed that they have not willfully abandoned the child, and it shall not attract the punishment laid down in Section 75 of the said Act.

References 


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Jacob Mathew v. State of Punjab (2005) : case analysis

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This article is written by Harshit Kumar. It seeks to discuss in detail the case of Jacob Mathew v. State of Punjab, regarding the negligence by the doctor. It covers the important facts of the case, including the issue raised, the arguments of both parties, the law involved, and the judgement of the case, with important case laws included in this judgement. It also includes the discussion of sections such as Sections 304A and 34 of the IPC, along with Section 482 of the CrPC. Furthermore, it also includes the significance of the case and what the essentials of medical negligence are. 

Introduction 

In the landmark case of Jacob Mathew v. State of Punjab (2005), the Supreme Court of India laid down certain guidelines that are to be followed by every court while deciding the case, which involves the question of medical negligence. The concept of negligence in tort law originated in English law, and the same law plays a significant role in India in civil law and criminal law. The principle of medical negligence was not an offence in the tort law, but it was incorporated in it as a simple tort that occurs when a patient receives incorrect treatment, which may be because of the fault of the doctor or the hospital staff, which leads to the death of the patient. 

The comparison of the concerned doctor to a fellow practitioner in the same profession as opposed to an average prudent individual establishes the standard of care. In cases of medical negligence, there are two points that can happen: either the staff or the doctor acted carelessly, or both the staff and the doctor may have acted carelessly. Joint and several liabilities, which allocate obligations equally between the hospital and the doctor, are typically applicable. 

Details of Jacob Mathew v. State of Punjab (2005)

Case name – Jacob Mathew v. State of Punjab

Equivalent Citations – AIR 2005 SC 3180; (2005) 6 SCC 1; 2005 CRILJ 3710

Acts involved – Indian Penal Code (IPC) 1860, Code of Criminal Procedure 1973 (Cr. P.C), and Consumer Protection Act 1986.

Important provisions – Section 304A and 34 of IPC, along with Section 482 of Cr.P.C

Court- Supreme Court of India

Bench- CJI R.C. Lahoti, G.P. Mathur & P.K. Balasurbramanyan.

Petitioners- Jacob Mathew

Respondents- State of Punjab

Judgement Date- 05/08/2005

Facts of Jacob Mathew v. State of Punjab (2005) 

According to the case, Jeevan Lal Sharma was admitted to a private ward in a CWC Hospital, which was situated in Ludhiana. On February 22, 1995, the patient suffered from breathing problems. Vijay Sharma, who was the older brother of the informant was present there and after seeing his father in pain, he called the nurse and doctor, but even after calling them, no one arrived there for about 20-25 minutes. 

After 25 minutes, two doctors visited the patient room, named Jacob Mathew and Allen Joseph. After coming there, he immediately ordered the oxygen gas cylinder to be connected to the mouth of the patient. However, after doing so, the patient started to feel more problems because it was found that the oxygen gas cylinder was empty, and after searching all over, it was discovered that there was no other gas cylinder present in the hospital. 

Vijay Sharma started searching for another gas cylinder, but after 7 minutes, the doctors confirmed that the patient was dead. The younger son of the late Jeevan Lal Sharma, Ashok Kumar Sharma, filed an FIR under Section 304A of the IPC, read with Section 34 of the IPC. According to the FIR, it has been further stated that the informant’s father’s death was brought on by the negligence of the doctors, and nurses and the lack of availability of the oxygen gas cylinder in the hospital. The main reason for the death was the negligence in fixing an empty oxygen gas cylinder to the mouth of the patient, which caused problems in breathing and, as a result, the patient stopped breathing completely. The informant mentioned that the negligence of the hospital management led to the death of his father, and after receiving the dead body from the hospital, he sent it to his village for final cremation. 

On the basis of the statement of Ashok Kumar Sharma in the FIR, a case was made under Sections 304A and 34 of the IPC, and the investigation was started thereafter. The charges were made by the judicial magistrate of the First class of Ludhiana. Both the doctors who were the accused in this case filed a revision petition against the order of the first-class judicial magistrate of Ludhiana before the session judge of Ludhiana, which was later dismissed by the learned session judge. 

On the charges having been filed against the doctors and dismissed by the learned Session Judge, the accused doctors moved to the Hon’ble High Court of Punjab under 482 of the Cr.P.C. with a prayer to quash all the proceedings against both of them. Before the High Court, it was argued that throughout the voluminous records that made up the police’s challan filed against the accused, there was not a single specific accusation of an act of commission or omission against both of the accused doctors. 

The Hon’ble Judge of the High Court disposed off the petition vide order dated January 18, 2002. After that, a recall request for the aforementioned order was made, but it was also denied on January 24, 2003. 

After the dismissal of the application for recalling the above order by the Hon’ble High Court, the appellant moved to the Hon’ble Supreme Court. The appellant argued that the deceased Jeevan Lal Sharma had advanced cancer, and according to the evidence at hand, he had not been admitted to any hospital in the country. 

The matter came up before the Hon’ble Supreme Court, which placed it before the two-judge bench. Both the judges of the Hon’ble Supreme Court relied on the recent judgement of the two-judge bench in the case of Dr. Suresh Gupta v. Government of NCT of Delhi (2004). However, the Hon’ble Judges expressed doubts about the revision of the ruling in that case and stated via order dated 09 September 2004 that they thought the case should have been heard by a three-judge bench instead of a two-judge bench. Thereafter, after this suggestion, a three-judge bench was constituted, which was headed by CJI R.C. Lahoti, whereas Justice G.P. Mathur and Justice P.K. Balasubramanyan were the other two judges of the panel. 

Issues raised 

There were two main issues that arose in this case. The Hon’ble Supreme Court of India also asked the Medical Council of India to assist them during the proceeding. 

  1. The first issue that was asked by the Hon’ble Supreme Court was whether there is any test through which it can be determined whether the doctor acted in negligence or not while performing his/her duty.
  2. The second issue that was asked by the Hon’ble Supreme Court was whether there is any difference between civil and criminal law on the concept of negligence.

Arguments of the parties in Jacob Mathew v. State of Punjab (2005)

Petitioner

The counsel for the petitioner argued that Section 304A of the Indian Penal Code, should not be applied in this case because Section 304A of IPC deals with the case related to death caused by negligence and this medical negligence should not be involved in the same term. According to the petitioner, it should be dealt with separately under the medical ethics and professions rather than that of Section 304A of the Indian Penal Code. 

It was emphasised by the petitioner that medical professionals should be held to the standard of care and caution required from them to be followed within the field. There may be a certain chance of error in treatment, but that doesn’t mean it should be held under criminal liability. It was contended that such instancess should not be punishable under Criminal laws.

The counsel for the petitioner raised the concern about the ceiling effect on applying criminal liability to doctors and other medical professionals. According to the Petitioner, when there is a kind of fear of legal action, it may affect the risk-taking ability of the doctor while treating the patient. It will also affect the decision-making ability in emergency times because doctors will try to save themselves first while giving treatment,

Respondent

The counsel for the respondent argued that the main reason for the death of the patient was the negligence act done by Dr. Mathew, which makes him liable, and thus the case under consideration ought to have been included in the negligence in criminal law. The respondent’s counsel argued that the failure to provide the proper care and caution led to the death of the patient.

The counsel for the respondent drew attention to the point that, when any action of the medical practitioner results in the death of the patient, then he should be held liable for his actions. This will result in the doctors ensuring a high level of care to the patients while giving them treatment. 

It was asserted that the medical professional holds the duty toward his/her patient to provide utmost care and failure to do so will result in the breach of trust, which a hospital holds while admitting the patient. 

The respondent’s counsel argued that if doctors are allowed to escape from the act of recklessness or negligence, then it will lower the amount of trust in the medical field. Punishing the offender for doing such a negligent act in the medical treatment of the patient will maintain the trust of the person in the medical profession. 

Laws discussed in Jacob Mathew v. State of Punjab (2005)

Section 304A IPC

According to Section 304A of the IPC, which deals with the provision related to causing death by negligence, whoever causes the death of any person because of negligence, which may not amount to culpable homicide, will be punishable under the IPC. The term of punishment in this section may extend to 2 years with a fine, without a fine, or both. The concept of negligence is different in both civil and criminal law. If a particular act amounts to negligence under civil law, then it may be possible that the same act will not be considered an offence under criminal law. 

Essential ingredients of Section 304A of IPC

  1. The Act leads to the death of a person
  2. The death must be done due to negligent or rash acts by the accused.
  3. The act shall not amount to culpable homicide
  4. Mens rea ( Intention )

Negligence under civil law and criminal law. 

In the case of Syad Akbar vs. State of Karnataka (2019), the Supreme Court has dealt with and pointed out with reason the distinction between negligence in civil law and in criminal law.  If we are talking about the liability of a person in any offence that may come under tort law, then it will only be decided by the amount of damages incurred to them, whereas in the case of criminal law, it will not only be decided by the amount of damage received but also by the degree of negligence. In order to establish liability under criminal law, the level of negligence must be higher than the amount of negligence sufficient to establish liability under civil law for damages, meaning it must be egregious or extremely high. Whereas in civil law, negligence is neither egregious nor of a higher degree, which may give rise to a lawsuit, but it cannot be the basis for the preceding.  

Criminal negligence under the Indian Penal Code

Criminal litigation

Criminal negligence as enumerated under section 304A is the egregious and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, was the imperative duty of the accused person to have adopted. Negligence is the act of doing something that a reasonable man, guided by those considerations that ordinarily regulate the conduct of human affairs, would do or doing something that a prudent and reasonable man would do.  

Mens Rea

The element of mens rea must be proven for negligence to be considered a criminal offence. In terms of carelessness, mens rea in criminal law is determined by recklessness. Recklessness and moral responsibility are not rooted in a wish to do damage. It resides in the proximity of the reckless state of mind and the mental state that exists when harm is intended. Putting this in another way, it seems that the possible outcomes are not taken into consideration. 

Rash Acts

In the case of criminal rashness, it must be proven to have occurred, meaning that the rashness had to be such that it amounted to accepting a risk knowing that it was likely going to cause harm. The accused faced the risk of committing the crime with recklessness and disregard for repercussions, which introduces the element of criminality. If the prosecution wants to prove carelessness, it must be wilful or egregious, not just a matter of making a mistake in judgement. 

Medical Negligence 

Professional negligence is a condition that occurs when a professional, be it a lawyer, an architect, or a doctor, fails to carry out the tasks or responsibilities that they were expressly engaged to complete for their clients. When it comes to describing wrongdoing or omissions committed by medical personnel when practising medicine on patients, the term “Medical Negligence” is broad and has grown in use. It is important to note that none of the current Indian laws define or make any mention of this term.

Earlier, it was considered that medical negligence was a criminal offence and not a civil offence. But as time passed, the view of the judiciary also changed, and it was noted after some time that medical negligence started to be considered a civil wrong as opposed to a criminal law. 

The development of common law concerning medical negligence can be traced to a turning point in the case of Donoghue vs. Stevenson (1932). The landmark case has had a considerable impact on the legal framework around professional negligence, particularly in the medical industry. 

A diversified approach is required to combat the neglect in the medical field. More consideration was necessary when inferring haste or negligence, particularly in the case of medical experts. An inadvertent incidence, a careless error, or a basic lack of attention are not usually sufficient evidence of medical negligence.

It’s crucial to recognize that identifying inconsistencies alone is not sufficient to establish medical malpractice. A doctor should not be held responsible for negligence just because there may have been a better course of action or more advanced treatment alternatives available. Similarly, the selection of a particular strategy need not be deemed irresponsible just because a more experienced practitioner would have gone with a different course of action.

Whether or not the doctor followed a course of action that was considered appropriate in the medical community at the time is the primary factor in determining medical negligence. Rather than comparing the professional’s actions to hypothetical alternatives or the decisions of more experienced practitioners, the emphasis should be on whether the course of action is deemed reasonable and appropriate within the then-current standards of the medical profession. 

The BOLAM Rule embodies the fundamental concept that governs medical negligence, which has been generally accepted and upheld by the Supreme Court. This criterion is used as the benchmark for assessing medical negligence in court cases and was upheld in the landmark decision of Jacob Mathew v. State of Punjab (2005). The BOLAM rule emphasises how important it is to evaluate a professional’s behaviour in light of the recognised norms of their medical community. It offers a crucial framework for determining whether a practitioner has complied with these norms. 

Essentials of Medical Negligence

In the case of medical negligence, it involves a situation in which a healthcare professional, either doctors or hospital staff, neglects their duty of care, resulting in harm or injury to the patient. A total of 5 essential components of medical negligence can be connected as per various rulings of the courts and the concerned laws which have been discussed in the present article, which are mentioned below:

  1. Duty of care: A fundamental concept for the law relating to medical negligence is the duty of care, which highlights the ethical and legal responsibility of healthcare practitioners to fulfil the standard of care expected in their field. Once a doctor and patient establish a relationship, the medical professionals must operate in the patient’s best interest while demonstrating a level of expertise and commitment that is consistent with recognised medical standards. 
  2. Breach of Duty: This is also an important component of medical negligence, which calls for proof that a healthcare provider deviated from the accepted standard of care in a particular circumstance. This violation denotes an inability to provide the patient with the set duty of care. It entails proving that the professional’s actions or inactions fall short of the acceptable norm, highlighting the divergence from the level of expertise and diligence that is typical in their field. 
  3. Causation: Establishing a direct connection in medical negligence between the defendant’s breach of duty and the patient’s harm, is necessary to prove causation. It must be shown that the injury was directly caused by negligence, which constituted a significant contributing element. This crucial component emphasises that if there had been no breach, the harm would not have happened. By assessing whether the healthcare professional’s acts or omissions were a substantial and predictable cause of the patient’s damage, the legal examination focuses on the critical role that the healthcare professional’s breach of duty played in creating negative results for the patient. 
  4. Damages: In the case of medical negligence, the patient must present verifiable evidence of quantifiable harm brought on by the healthcare provider’s carelessness for their claim to be accepted. These losses might be in the form of physical, emotional, or financial losses as a result of the negligent act. The requirement emphasises the necessity of a distinct and direct connection between the patient’s damages and carelessness. Proof of real damages is necessary to establish the legal foundation for demanding compensation since it verifies the actual and measurable impact of negligence on the patient’s overall quality of life and well-being.
  5. Standard of care: The expected degree of competence and diligence that a fairly qualified expert in the same field would deliver is referred to as the standard of care in the healthcare industry. It emphasises adherence to accepted standards and practices and acts as the benchmark by which healthcare practitioners are judged. Expert testimony, which is frequently used in court, presents the opinion of certified professionals and aids in establishing the applicable standard.

Section 34 of the Indian Penal Code

Section 34 of the IPC, talks about the term ‘common intention’. A common intention is defined as the commencement of a certain action or doing something together, which can be considered a pre-planned act. But in order to prove a certain criminal act under common intention, the act done must be proven to have existed prior to the commission of the act, and there should be no large gap between both. 

Objective of Section 34 of the Indian Penal Code

Section 34 is there to prevent a situation where it is very difficult to discern between unlawful acts committed by one person working in a group for a common purpose or to show what role all the members played.  Any person taking part in committing a criminal offence directly or indirectly is held liable for his participation in the offence committed, even though the accused has not actively participated in the commencement of the act. There must be a specific aim, which is the ultimate common goal of all the individuals in the group. Every individual, though directly or indirectly, involved in the commission of the offence will be held liable under Section 34 of the IPC. 

In the present case, the counsel for the respondent, accused two doctors (Jacob Mathew and Allen Joseph), nurses, and other hospital staff of the death of the patient but the Supreme Court made it clear that Section 34 of the Indian Penal Code will be applied when there is a common intention of doing any act. In the present case, the Supreme Court held that the application of Section 34 of the Indian Penal Code should be limited. 

The Supreme Court also held that Section 34 of the Indian Penal Code will only be applicable where there is evidence that establishes the common intention of the accused in committing the criminal act. The court further held that invoking Section 34 to hold all the medical staff liable for medical negligence would not be correct.

Section 482 Cr.P.C

The power under Section 482 of the Cr.P.C. is available only to the High Court, but it does not contain any new power other than as mentioned; it just gives the High Court an inherent power. This section states that nothing in this code can put any effect on the inherent power of the High Court in making such an order as they think necessary to give effect to any order under this code or to prevent justice. 

In the present case, the accused used the benefit of Section 482 of Cr.P.C to seek relief in order to quash the whole criminal proceeding that was initiated against them which included medical negligence resulting in the death of the patient.

Case Laws

  1. The legal precedent established by the Privy Council in John Oni Akerele v. R, (1942), is very important. In this case, a medical professional with the necessary qualification administered an injection of sobita, which contained Sodium Bismuth Tartrate according to the British Pharmacopoeia. However, what was actually given was a Sobita overdose. The patient passed away. The doctor faced accusations of recklessness, homicide, and negligence. He received a conviction. The matter was reached in the form of an appeal before the House of Lords. After hearing the appeal, the conviction was revoked by the Court. 

The Court’s’ findings can be summed up as follows – 

  1. A doctor’s negligence or incompetence must go beyond a simple matter of compensation between subjects and demonstrate such disdain for other people’s lives and safety as to constitute a crime against the state in order for a doctor to be held criminally liable for a patient’s death.
  2. That the negligence must be gross in order to qualify as such, and that neither a jury nor a court can elevate negligence of a lower calibre to gross negligence by simply using that term.
  3. Without using examples derived from real court rulings, it is hard to define culpable or criminal carelessness or to make the distinction between actionable and criminal negligence understandable.

It is necessary to take the most positive view of an accused medical man’s actions since it would seriously harm the medical profession’s ability to operate efficiently if no one was allowed to deliver medication without wearing a halter around the neck. The Lordships rejected the idea that the mere fact that several people became extremely ill following an injection of Sobita from the appellant coupled with a finding that a high degree of care was not exercised. 

  1. In the case of Juggan Khan v. State of M.P, (1965), a leaf of datura and 24 drops of stramonium were given to the accused, who was suffering from guinea worm, a registered homoeopath. Before giving it to the patient, it was not searched by the accused as to what happens when such drugs are given to people. The prosecution failed to provide sufficient evidence in support of its claim that the datura leaf is poisonous and harmful to the human body. Section 302 of IPC was eliminated against the accused by the court. But after it was discovered that datura and stramonium leaves are toxic and that datura leaves are only used in Ayurvedic medicine, not in any other medical system, to treat guinea worms, the accused’s prescription of toxic materials without considering their effects, it was declared to be rash and negligent. 
  2. In the case of Laxman Balkrishna Joshi v. Trimbak Bapu Godbole (1969), the Fatal Accident Act of 1855 was applied. The point that was discussed in the present case was: what are the obligations that the doctors must perform while treating their patients? The court determined that an individual who presents himself as prepared to offer medical advice and treatment after completing their study implicitly commits to having the necessary expertise and knowledge for that purpose. When a patient approaches such a person, he owes him various duties, such as a duty of care while determining whether to accept the ease and a duty of care when administering that course of action. 

The patient has a right to sue for negligence if any of those obligations are not fulfilled. In addition to exercising a reasonable level of caution, the practitioner must bring to the work a fair level of competence and knowledge. Without a doubt, the doctor has some freedom in deciding what course of action to recommend for the patient, and this freedom is comparatively greater in emergency situations. But it does not mean that the doctor performs such an action negligently. They have to exercise proper care and give treatment as per the needs of the patient. In this case, the patient’s death was caused by the shock from the doctor’s effort to reduce the fracture without using the basic prudence of giving anaesthesia.  

Judgement in Jacob Mathew v. State of Punjab (2005) 

The case was brought before the Hon’ble Supreme Court, where a two-judge bench was formed. Both judges cited a decision, which was also given by a two-judge bench in the case of Dr. Suresh Gupta v. Government of NCT of Delhi, (2004), They were not quite convinced that the position stated in that case was correct. They declared in an order dated 9 September 2004, that they thought the case should be heard by the three-judge’s bench. As a result, the hearing for that matter was fixed before the three-judge bench. The Hon’ble Supreme Court issued certain guidelines, which are to be followed when there is any medical negligence in the matter.

The bench said that it was crucial to clarify that it does not mean that doctors cannot face consequences for acts of negligence or recklessness. The goal is to emphasise that, for the good of society, care and caution are essential. Doctors need to be shielded from unjust or unfounded punishment since they give some of the highest services to humanity. Criminal procedures are sometimes used by complainants to coerce medical providers into paying them unjustly or without cause. Malicious acts like these need to be stopped. 

It was further observed that the Medical Council of India should advise the Government of India and the State Government on developing and releasing executive instructions or statutory rules that include detailed instructions in order to solve this matter. The Court suggested the establishment of some rules for future instances involving the prosecution of doctors for crimes including criminal negligence or recklessness until such standards are created. A trustworthy assessment from another licensed doctor supporting the accusation of recklessness or carelessness on the part of the accused doctor is a sufficient kind of prima facie evidence that the court should consider before accepting a private complaint. 

Further, the court said, prior to taking any further action against the physician who is being accused of carelessness or recklessness, the investigating officer ought to get an unbiased and qualified medical opinion, preferably from a government doctor who has a proactive mind in the relevant medical field. Based on the information gathered from the inquiry, the doctor (Jacob Mathews) is supposed to offer a fair and objective assessment. It is not appropriate for a doctor who has been charged with recklessness or carelessness to be habitually arrested for that reason alone. The doctor should not be arrested unless it is required to be protected by the investigation, gather evidence, or is useless. There is a good reason to think that the doctor will be able to escape prosecution if they are not detained. 

The court determined that they were convinced by the argument made before them. It was said that even if they assume that all the claims made by the complainant in the complaint are true, then also it does not form a case of criminal negligence or even recklessness on the part of the accused-appellant. The complainant has taken the non-availability of oxygen gas cylinders as the main cause of death, noting that the doctors who are accused were not qualified doctors to treat the patient they agreed to treat.

According to the complaint made, this was a situation where the non-availability of an oxygen gas cylinder, which might be due to the failure on the part of the hospital to provide one or because the cylinder was found empty, was the main issue. In this case, it was possible that the hospital might be held liable for civil liability but the accused doctor cannot be held liable and be prosecuted under Section 304A and Section 34 of the Indian Penal Code which is based on the BOLAM’s test. Therefore, the charge framed under Section 304A and Section 34 of the Indian Penal Code on the accused medical professionals was dismissed.

BOLAM Test

This test was laid down in the case of Bolam vs. Friern Hospital Management Committee, (1957). In 1954, John Hector Bolam underwent Electroconvulsive Therapy (ECT) to cure his clinical depression. The medical community gave different views regarding the best ways to reduce the hazards of ECT-induced convulsions. As a result of the ineffectiveness of the physical restraint, Bolam suffered a pelvic fracture. In court, he argued that the hospital had been careless and the doctor had violated the standard of care when providing treatment. This case serves as the locus classicus for developing the legal standard of care that doctors are supposed to provide. Mr. Justice McNair gave the jury the crucial instructions that laid the groundwork for this historic case.

This test, which originated from BOLAM’s situation, has extended to become a fundamental component of legal evaluations of medical negligence and has shaped the standards by which doctors are held accountable for the care they give to their patients.

Analysis of the Jacob Mathew’s case

According to BOLAM’s test, a doctor cannot be held accountable for medical negligence if they follow the guidelines set out by the appropriate authority of the profession in a particular circumstance. Given that the doctor in question carried out their duties with diligence, they were not held accountable in the aforementioned situation. However, the hospital administration’s carelessness was the reason for the patient’s unfavourable outcome. 

In a technical sense, the hospital staff’s actions might be considered medical negligence. The hospital’s management has an obligation to offer patients high-quality services; hence, this circumstance could be covered by the consumer protection law. In this instance, they did not fulfil their obligation to provide their patients with superior care. 

Conclusion 

The concept of medical negligence is not a direct form of tort, it rather comes under the concept of negligence in tort law. The term negligence originated from English tort law and holds an important role in the Indian legal system. It emerges from the simple tort when any person admitted to any hospital receives the wrong treatment, which results in difficulties. It might be possible that the little problem leads to a serious or life-ending situation. In cases of medical negligence, it is the duty of the doctor to exercise reasonable care and caution while giving any treatment to the patient admitted to the hospital. 

Rather than comparing the doctor in question to the average sensible person, the standard of care is established by comparing them to peers in the medical field. There can be two possible causes of negligence: 

i. either the staff performed any act without taking any due care, or 

ii. the doctor performed his duty carelessly while giving the required treatment or medicine.

In some cases, both the staff and the doctors might have done the act together, which means that the doctor and the hospital will decide, based on their agreement, that how much of a liability they hold up separately.

In the cases where there are blatant procedural breaches or conduct that are judged to be reckless and irrational, courts often rely on expert testimony and evidence to decide negligence. In giving these decisions, the precision and accuracy that the law tries to find can be quite tough to accomplish, because of the substantial objectivity involved. As a result, as the Apex Court has described the law on medical negligence, therefore, a well-established legislative framework is needed for consumer protection in India, and that too not just in the medical field but in other professions as well.

Frequently Asked Questions (FAQs)

What is medical negligence?

Medical negligence refers to the failure of a healthcare provider to meet the standard of care expected in their profession, resulting in harm to a patient. It involves actions or omissions that deviate from accepted medical standards, leading to injury or death.

Who can be held liable for medical negligence?

Any healthcare provider, including doctors, nurses, surgeons, anesthesiologists, pharmacists, and hospitals, can be held liable for medical negligence if their actions or omissions result in harm to a patient.

What role does medical education and training play in reducing instances of medical negligence?

Medical education and training are crucial in equipping healthcare professionals with the knowledge, skills, and ethical standards necessary to provide safe and effective patient care. Continuous learning and professional development help healthcare providers stay updated on evidence-based practice, advancements in technology, and changes in healthcare regulations, ultimately reducing the likelihood of medical negligence.

References


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Powers and functions of the Directorate General of GST Intelligence (DGGI) in India

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This article has been written by Robin Dev pursuing a Diploma in Legal English Communication – oratory, writing, listening and accuracy course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

The implementation of the Goods and Services Tax (“GST”) in India has brought about a substantial transformation of the country’s indirect tax regime. This tax reform marked a concerted effort to make the indirect tax system more efficient by streamlining the arrangement of taxes and boosting enforcement mechanisms to curb leakages and tax evasion. In this context, nations across various jurisdictions have progressively attributed critical importance to intelligence-based enforcement, rather than random search and seizure operations by tax authorities. One of the most consequential protagonists to have emerged from this milieu, therefore, has been the Directorate General of GST Intelligence (“DGGI”).

For a law student exploring the intricacies of direct and indirect tax laws in India, it becomes imperative to understand the powers and functions accorded to the DGGI, to appreciate the agency’s seminal role in ensuring that an extremely diverse, multi-layered indirect tax system like the GST, functions smoothly and compliances are adhered to by all assessees. It is observed in law that in the realm of enforcement, effectiveness can only be obtained if such enforcement is driven by intelligence and information. This is because analysis of intelligence and information leads to the proper direction and area where effective enforcement action should be taken, thereby preserving the integrity of the tax system of any nation.

The present piece seeks to trace the genesis of the law that founded the DGGI, trace its developmental trajectory and comment upon the powers and functions that are essential to and vested in the DGGI. To keep the analysis crisp, the piece is divided into four sections and finally concluded.

Genesis of the Directorate General of GST Intelligence

The formation of the DGGI as a specialised unit under the CBIC umbrella was with the intention of tackling tax evasion and fraud in the GST regime. GST as a concept was first introduced in India on July 1, 2017, which replaced the complicated prevailing tax structure with a uniform tax system throughout the country. It has now also become apparent for the establishment of an intelligence agency to protect the revenue and make the GST mechanism proper and effective.

Governing authority and jurisdiction

The DGGI operates under CBIC administrative control, and it has zonal and regional units set up. The zonal units play a pivotal role in the coordination and supervision of the regional units under their jurisdiction. While this is the responsibility of the regional units, the goal is to have a more effective and localised approach to prevention and enforcement.

DGGI has countrywide jurisdiction and therefore spreads across the entire nation, giving it a pan-Indian presence. This wide jurisdiction is necessary to attack domestic and international tax evasion because the economic entities are spread in different countries and sectors.

The jurisdiction of DGGI is all over India and its omnipresence has been well depicted by its pan-India presence. This remarkable authority is needed to fight tax evasion, as economic activities cover-all elements of different activities.

Powers of DGGI under GST

Investigative powers

Summoning and examining persons: DGGI has the power to enquire and interrogate any person being scrutinised with respect to any inquiry undertaken by the Directorate General. These may be taxpayers, suppliers, passengers, or anyone else who has seen or listened to them.

Search and seizure: The DGGI can wield so many effective weapons, including, among others, the power to conduct searches and seizures. This power turns the control over documentary evidence acquisition for tax evasion and fraud cases. This is done through the conduct of punitive raids and the confiscation of relevant documents.

Arrest and detention: In cases of the most serious tax evasion, DGGI has the authority to arrest and detain the offenders. Nevertheless, the exercise of powers is done in a discretionary way and usually goes along with the fulfilment of certain strict requirements.

Surveillance and Intelligence

  • Data analysis: DGGI utilises advanced data analytics techniques to scrutinise bulky data generated from GST returns and other sources. This in turn allows the detection of differences and behaviours that are suggestive of tax evasion.
  • Risk profiling: Through risk profiling, the DGGI looks at the possibility of non-compliance by taxpayers. This prevention mindset helps the agency pinpoint the high-risk entities and sectors, hence strengthening the enforcement activities.

Functions of DGGI under GST

Anti-evasion activities

Identification of Evasion Schemes: The DGGI aims to thwart the use of many evading strategies likely to be utilised by taxpayers in an attempt to pay as little tax as possible. Among others that can be mentioned are schemes involving so-called “fake invoices,”  “input tax credit fraud,”  and other tricks that are used to present false information.

Coordinated Action with Other Agencies: Cooperation with other law agencies, for instance, the police and economic surveillance units, is a key factor in terminating the systems of undeclared taxpayers. DGGI interacts generally with these agencies to make sure, as far as possible, that a unitary approach is taken to tackle these issues.

Specialised training and capacity building

  • Training workshops: The DGGI organises training programmes for its employees, thus helping them improve their capabilities in the areas of intelligence data collection, analysis and investigation techniques. It is necessary that an individual do continuous learning to be on par with the changing and modern tactics of tax evasion.
  • Awareness programmes: The DGGI makes awareness granting to taxpayers on the consequences of tax evasion a significant part of its functions. The board of auditors runs an outreach programme to educate commercial and individual taxpayers on their duties within the framework of the GST regime.

Legal proceedings

  • Initiation of prosecutions: Whether there exists proof of wifful ignoring of taxation commitments, the DGGI commences prosecutions and legal proceedings against offenders. This is designed to be the avoidance of punishment and that is the deterrent to non-compliance.
  • Representation in courts: The DGGI formation or the government undertakes legal proceedings and represents the government in cases of tax evasion. This involves bringing forward the evidence, theoretically debating the legal options and seeing that the justice is fair.

Challenges and criticisms

While the DGGI, in row, makes sure of the credibility of the GST mechanism, it has not been spared problems, and it has been criticised.

  • Procedural concerns: The opponents of the provisions of the DGGI that give a lot of authority to the organ appeal to the discriminating priors of the process abuse. The agency must be committed to fair treatment in terms of obtaining information during investigations without trampling on the rights of the taxpayers, in addition to strict enforcement.
  • Need for transparency: The area of greater attention to the DGGI work involves the public demand for the heightened transparency of the DGGI functioning within the framework of the Economic Union. Designating relevant rules on investigational criteria, search warrant issuance, and arrest authorising can help bridge existing gaps of concern over arbitrary exercise of power.
  • Capacity constraints: DGGI confronts the issues of a limited resource base, considering both its staffing problem and its technological dictum. Proper investments in training and technology are a must in order to improve agency’s performance and cope with the dynamic and borderless realm of tax enforcement.

Conclusion

It is agued for the last time that the Directorate General of GST Intelligence has a great role in the implementation of India’s Goods and Services Tax (GST). In addition, it is a sizeable task for the functionaries of the DGGI—to secure revenue, bring irregular players to order and fight against those who transgress the law. An intensive understanding of the said powers and functions of DGGI for a law student definitely offers an excellent first step—a deep look into the intriguing field of the enforcement of the tax legal framework. When Brandeis J.’s words or the omnipresent government say, “government is the potent teacher…  For good or for ill, it teaches the whole people by its example, which is now greatly amplified, The role of the DGGI, the agency with such significant responsibility, also becomes greater at the same time. No doubt, the very systems that enable the administration of GST equally support national socio-economic growth by enhancing national development and revenues, yet the challenge of striking the right balance between enforcement and protection of taxpayer rights remains unresolved, and the integrity of the GST framework work is at the edge. Certain types of perception audits, close monitoring and evaluation of the actions of the DGGI, their roles and processes will be the main parts of the limiting mechanism to which the DGGI should be subjected; they will be the only way to clean up the present processes and procedures of the DGGI and to develop an effective, transparent and fair legal regulation governing Indian tax law.

References

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Internal audit in elevating ESG maturity and transparency in Indian organisations 

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This article has been written by Pradeep Gopalakrishnan pursuing a Training program on Using AI for Business Growth from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

External factors influencing ESG considerations

Climate change has become a reality. Globally, countries have become aware of and realise the need to get together and address the basic issues. The realisation has dawned that human intervention in the environment is threatening the fine balance of the ecosystem. Climate change is a fact which can no longer be ignored. This realisation has resulted in all the countries of the world meeting annually under the aegis of the United Nations Framework Convention for Climate Change (UNFCCC), commonly referred to as a Conference of the Parties (“COPx”), where “x” signifies the sequential meeting number. The first such meeting was held in Berlin in 1995 and the last meeting was held in Dubai in 2023, called as COP28

The COP 21 held in Paris is of significance. It had concluded with a “legally” binding agreement by the participating countries to contain “the increase in the global average temperature to well below 2 deg C above pre industrial levels and pursue efforts to limit the temperature increase to 1.5 deg C above pre industrial levels” by 2030.

As a result, governments have committed to meeting certain self declared goals, initially by 2030 and also by 2050. Annually, each country submits their national climate action plans, known as “nationally determined contributions.“

While environmental issues threaten the very existence of life on planet Earth, there remain vast differences within human society itself. The severe issues affecting sections of society on a daily basis are humongous. Certain basics of life, which are taken for granted by some, continue to elude a vast majority. The United Nations Foundation has come up with 17 Sustainable Development Goals, which cover various factors of human life, from basic needs to basic rights. Countries have taken up these SDGs for development and report on the progress made on an annual basis.

While the governments make the policy decisions, the actual implementation on the ground level requires business organisations to incorporate the policies into their operations. Also to be noted is the fact that in the modern world, most businesses are privately owned. Till now, businesses, have largely focused on profitability on their books rather than on environmental or social requirements. To bring about the results as per the commitments made by the governments, legislative guidelines are being passed by the governments through law and through their institutions, which bind the businesses to incorporate the changes within their own organisations.

The CSR guidelines introduced by the Government of India in 2009 and further enacted by law in 2014 sought to bind companies to take proactive action towards society.

The SEBI issued guidelines in 2021 which are mandatory to the top 1000 listed companies to report their Business Responsibility and Sustainability Report (BRSR). Essentially, this covers the ESG aspects.

Further, there are several other laws and judicial legislations which have bearing on the ESG scope on businesses for example

  • Prevention of Sexual Harassment at workplace “POSH” Act.
  • The new labour laws, comprising Code on Social Security 2020, Occupational Safety, Health and Working Conditions Code 2020, Industrial Relations Code 2020 and Code on Wages 2019.
  • The National Environmental Policy, with focus on Extended Producer Responsibility (“EPR”),

The above are just some of the various laws that have significance under the overall ESG umbrella. It has been seen that misappropriation and embezzlement in various manners have been resorted to by leaders of certain business organisations. The “Satyam” scam, The Sahara India scam, and the Nirav Modi scam on Punjab National Bank are scams perpetrated by corporations which have huge downside to the general public at large and, more specifically, to stake holders, including but not limited to shareholders.

Scams of such extent require interventions from the government and also result in laws and rules to prevent the reoccurrence of similar events.

Requirement of independent directors on board of a company and also to be the head of the audit committee within the board is one such rule enacted by law.

Thus, it can be seen that there is growing pressure from administrative side through various laws enacted to pressure the company boards to implement and report their Environmental, Social and Governance goals, status and deviations, if any.

The internal factors

Even while external factors are bringing about compliance requirements for organisations, certain companies have long realised that ESG considerations during business decision making are essential for long term sustainable operations. Such decisions clearly bring the following benefits:

  • Increased savings and thus profitability
  • Attract talent and reduce employee turnover
  • Avoid business risks related to environment
  • Positive engagement with society
  • Compliance to laws related to Pollution, labour, Corporate, safety, etc
  • Enhance brand image
  • Attract investments
  • Improve sales

Any additional investment costs are more than offset in the long term by the benefits that evolve from following an ESG compliant business. The avoidance of risks associated with environmental issues. Penalties due to non compliant behaviour are obvious. Not so apparent are the positive aspects. More and more talent is attracted to join companies that have a positive ESG footprint, quite often at a lower salary. In a globalised world, supply chains work across countries and continents. When most European Union mandates require companies to follow ESG mandated levels, the same becomes mandatory to their supply chain partner, which may be in another country, including developing countries. Many purchase decisions are made for the positive brand image of a company producing goods with ESG considerations.

Moreover, there is additional profit to be made through carbon trading and offset.

However, considering the above benefits, quite often many of the “claims” by organisations are being challenged, and “Greenwashing” as a term is getting far too common. It is against this backdrop that audit of the ESG compliance in an organisation take prominence

Role of internal audit

The stated role of Internal audit is to provide independent assurance of an organization’s adherence to the governance framework, risk management and internal controls.

The steps for implementing the above can be broadly segregated into following:

  • Design a framework along with policies and procedures.
  • Communicate the same across the organisation.
  • Implementation, along with governance oversight.
  • Periodical monitoring.

While the first and second steps are one time exercises with periodic updates and corrections, the implementation is an operational aspect.

The inherent characteristic of operations is that many regularly occurring risks get overlooked.

Also, if there are malevolent elements in the system, they would definitely be well aware of the system and its ways. They would be quite adept at finding the weak spots to carry out their misappropriation.

Further, quite often, once a system has been designed and implemented, it is left alone without the necessary timely modifications that would be required due to changing internal and external factors.

The internal audit function is uniquely positioned to provide a constant watch on the operations. Their independence in approach tends to bring out risks which need to be corrected. As they are expected to be updated on the latest compliance requirements, they can easily identify potential areas which need updating

A constant monitoring and reporting mechanism can easily and effectively be implemented through the internal audit.

A company that is part of the global supply chain of another company that is, say, based in the European Union would be under a mandate to keep their ESG thresholds under constant check. This can be effectively monitored through internal audit

Often, ESG centric aspects can be included in the non ESG focused audits. Most ESG related risks and aspects that are relevant to an organisation would already be part of various departments across the organisation. Any non conformance should immediately raise a red alert.

The internal audit reports are generally reported to the audit committee. The audit committee, by itself, is part of the board of directors and headed by an independent director. This inherent structure allows the independent directors on the board to directly feel the pulse of the organisation. They are then uniquely positioned to suggest and enforce corrective actions

Risk assessment and management

Internal audit plays a vital role in assessing and managing ESG-related risks that could have a significant impact on an organization’s reputation, financial performance, and stakeholder trust. The audit process involves identifying and evaluating ESG risks, such as climate change, resource scarcity, and social inequality, that are relevant to the organization’s industry and operating context. The audit team then assesses the effectiveness of existing internal controls and governance mechanisms in mitigating these risks. Based on their findings, the audit team provides recommendations for strengthening the organization’s risk management framework, including implementing new controls, enhancing risk monitoring processes, and improving risk reporting.

Monitoring ESG initiatives

Internal auditors monitor the implementation of ESG initiatives and programs to ensure that they are aligned with the organization’s strategic objectives and are being executed effectively and efficiently. The audit process includes reviewing the design and implementation of ESG initiatives, assessing the effectiveness of internal controls over ESG-related processes, and evaluating the achievement of intended outcomes. The audit team also provides recommendations for improving the effectiveness and efficiency of ESG initiatives.

Data integrity and reliability

Ensuring the accuracy, completeness, and reliability of ESG data is critical for effective ESG reporting. Internal audit plays a key role in reviewing data collection processes, evaluating the effectiveness of internal controls over ESG data, and identifying areas for improvement. The audit process includes assessing the design and implementation of data collection systems, testing the accuracy and completeness of ESG data, and reviewing the processes for aggregating and reporting ESG data. The audit team also provides recommendations for strengthening data integrity and reliability.

Stakeholder engagement

Effective communication and engagement with stakeholders, including investors, customers, and regulators, is essential for building trust and maintaining a positive reputation. Internal audit facilitates effective stakeholder engagement on ESG-related matters by reviewing the organisation’s stakeholder engagement strategy, assessing the effectiveness of stakeholder communication channels, and evaluating the organization’s responsiveness to stakeholder concerns. The audit team also provides recommendations for improving stakeholder engagement.

Reporting and disclosure

Internal audit plays a critical role in reviewing the organisation’s ESG reporting processes and ensuring compliance with regulatory requirements and frameworks, such as the Global Reporting Initiative (GRI) and the Task Force on Climate-related Financial Disclosures (TCFD). The audit process includes assessing the completeness, accuracy, and consistency of ESG information disclosed in the organisation’s annual report, sustainability report, and other public disclosures. The audit team also provides recommendations for improving the transparency and comparability of ESG reporting.

Ethical conduct and governance

Evaluating the organisation’s ethical culture and adherence to ESG principles is essential for maintaining a strong reputation and fostering trust among stakeholders. Internal audits review policies and procedures related to business conduct, human rights, and environmental stewardship to ensure that they are aligned with ESG principles. The audit process also includes assessing the effectiveness of the organisation’s governance structure and oversight mechanisms in promoting ethical conduct and ESG compliance.

Continuous improvement

Internal audit promotes a culture of continuous improvement in ESG performance by conducting periodic reviews to assess the effectiveness of ESG initiatives and recommend enhancements. The audit process includes reviewing the organisation’s ESG performance against established targets and benchmarks, identifying areas for improvement, and developing recommendations for enhancing ESG performance. The audit team also provides support to management in implementing ESG improvement initiatives.

In summary, internal audit plays a multifaceted role in elevating ESG maturity and transparency in Indian organizations. By providing independent assurance, monitoring ESG initiatives, and promoting ethical conduct, internal audit helps organizations enhance their ESG performance, build trust among stakeholders, and contribute to sustainable growth.

Conclusion

Internal Audit is uniquely positioned to play a pivotal role in the organization’s adherence to ESG goals. An independent, updated audit team is an essential tool for the organisation, providing the necessary reading based on which decisions can be taken to correct and take remedial action where required.

References

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Types of arbitration

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This article has been written by Ria Verma and further updated by Mehak. This article aims to illustrate the concept of arbitration and focus on the different types of arbitration, advantage and disadvantage of arbitration. In addition to this, this article also emphasises the arbitrability and non-arbitrability of the subject matter of the disputes. The Article also describes arbitral award and how it can be enforced by the parties. 

Table of Contents

Introduction 

We often hear a plethora of complaints by the petitioners or plaintiffs in a particular case. The legal fees charged are usually exorbitantly high, the dispute gets resolved after a number of hearings or even it is a usual complaint that the appropriate remedy is not provided through the verdict. But with the advent of alternative dispute resolution, we can observe a significant decrease in such complaints. Arbitration especially is seen as a recent trend in resolving the disputes relating to commercial contracts”

An increase in foreign trade has resulted in a subsequent increase in cross-border disputes giving rise to a need for an effective form of dispute resolution. Arbitration has emerged as a way to preserve the relationships between two companies and resolve a dispute amicably.  The Supreme Court in the case of Amazon v. Future Retail Limited, (2021) drew attention to the parties opting for arbitration to resolve the dispute. But what is arbitration? Is it more time-efficient and cost-saving as compared to the traditional courts? How is arbitration beneficial to parties? What are the different types of arbitration prevalent and what is their significance?  What matters can be referred for arbitration or not? All such questions will be answered in the course of this article. 

Historical background of arbitration

A number of authors have argued that the first arbitrator, King Solomon, used a procedure similar to the modern-day procedure while resolving a dispute that emerged when two women protested that they were the mother of a baby boy. 

Another influential figure, Philip the Second, had used arbitration to amicably resolve a territorial dispute that took place way back in 337 BC. In Roman law, ‘compromissum’ was used to indicate a process of dispute resolution that would draw out a compromise between the parties. Therefore, we can see that there have been a number of examples of arbitration that actually took place in the ancient era and can be seen as a trailblazer for the laws we have today. 

In India, arbitration came to be known and given recognition when the Arbitration Act 1899 was enacted, but its applicability only extended to Bombay, Madras and Calcutta. The provisions were given an extension to the remaining areas in Section 89 as well as Schedule II of the Code of Civil Procedure, 1908. However, it was observed that arbitration did not reap the expected benefits to the public at large and to meet the economic reforms in the country, the Arbitration Act was enacted in 1940. The previous Act, along with the provisions in the Code of Civil Procedure, were repealed.

The Act can be seen as a consolidation of the existing laws; however, there was no stipulated procedure pertaining to the enforcement of foreign awards. It was confined to the domestic territory and therefore, it did not achieve the purpose behind its enactment. In the case of Guru Nanak Foundation v. Rattan Singh, (1981), Justice D.A. Desai criticised the ineffectiveness and poor implementation of the Act. He explained how the complex, expensive and time-consuming court procedure involved in resolving disputes compelled jurists to switch to a more effective forum; however, the way the forum operates has invited harsh criticism from the courts. 

The Arbitration and Conciliation Act, 1996, was then introduced with the objective of providing speedy dispute resolution. The Act covered international arbitration as well and was based on the UNCITRAL Model Law on International Commercial Arbitration. The Act, however, was met with criticism due to exorbitant costs, the absence of a stipulated time period for making an arbitral award, and interference by the court beyond a reasonable limit, which went against the essence of the Act.   

Subsequently, the Arbitration and Conciliation (Amendment) Act, 2015, was passed with a number of amendments. After taking into account the recommendations made by a committee headed by Justice B.N. Srikrishna, the Arbitration and Conciliation (Amendment) Act, 2019 was enacted. The Arbitration Council of India was instituted with the goal of promoting ADR in India, boosting the established arbitration system in the country, and evaluating the functioning of the arbitral institutions and the arbitrators.

On November 4, 2020, the Arbitration and Conciliation (Amendment) Ordinance, 2020 was implemented with two major amendments. First, the enforcement of an arbitration award could be stayed unconditionally if the court can infer that the contract/agreement or award was given fraudulently or under undue influence. Second, after much scrutiny and discourse, the qualifications and experience required for approving an arbitrator were deleted from the Eighth Schedule of the said Act. 

What is arbitration

Arbitration is one of the forms of Alternative Dispute Resolution (also referred to as appropriate or amicable dispute resolution). Arbitration is one of the prominent forms of ADR and is a type of private court where parties resolve their disputes without taking them to court. This form of ADR is commonly used in disputes that are commercial in nature, especially international commercial transactions, because of its time and cost-effective nature. Contractual parties insert an “arbitration clause” in their contracts, where they specifically mention and appoint a neutral third party referred to as the “arbitrator”, to whom a dispute shall be referred if parties to the contract violate any provisions of the contract. Section 16(1) of the Act entails that an arbitration clause which acts as a surviving clause in the contract, i.e., even if the contract between the parties has come to an end or is null and void, the arbitration clause shall not be terminated. Moreover, the parties unanimously decide the jurisdiction, the language in which the proceedings shall take place, and the laws which would be applicable so as to make certain that no party gets an undue advantage. The decision made by the arbitrator with respect to the dispute is referred to as an “arbitral award,”  which shall be binding upon the parties to the contract. 

Principle characteristics of arbitration

WIPO specifically defines the principle characteristics of arbitration, which are as follows –

Consensual Arbitration

The existing matter can only be taken to arbitration if both parties have agreed upon it. Besides, the parties can insert arbitration clauses in their contract unanimously to refer their subsequent disputes to arbitration. Once a dispute is referred to arbitration, a party cannot unilaterally withdraw from arbitration.

The parties have the right to choose their arbitrator 

As per Section 10 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “Act”), the parties are free to choose the number of arbitrators to be appointed. If parties appoint more than one arbitrator, then the number of arbitrators should not be even. For instance, if there is a three member arbitral tribunal, each party will appoint an arbitrator and those two arbitrators shall decide on the third arbitrator. 

Unbiased arbitration 

Parties are free to decide upon the jurisdiction, language, and applicable laws of the arbitration, which ensures that no party gets undue advantage and that the award given by the arbitrator shall be treated as just and final.

The decision of the arbitrator shall be final 

The decision made by the arbitrator is known as an “arbitral award.” The award given by the arbitrator with respect to the ongoing dispute shall be treated as final and will be binding upon the parties to the contract.

Matters that can be referred to arbitration

Arbitration deals with cases that are right in personam, i.e., rights that can be enforced only against the individual party. Disputes that are right in rem, i.e., rights that are enforced against society, are non-arbitrable in nature and such matters cannot be referred to an arbitral tribunal for resolution. Commercial and almost all civil disputes, such as civil, labour, family disputes, IPR disputes, etc., fall under and within the ambit of arbitration. However, matters that are usually criminal or matrimonial in nature are often non-arbitrable and cannot be resolved by arbitration.

Matters referred by parties to Arbitral Tribunal

If the parties have invoked an arbitration clause or separate arbitration agreement with respect to the contract and such agreement is a valid agreement as per Section 7 and the subject matter of the dispute is arbitrable in nature, then the parties can refer their dispute directly to their arbitrator that has been decided by the parties within their agreement. 

Matter referred by judicial authority to Arbitral Tribunal

The parties can, on their own, refer their dispute to the arbitral tribunal or the judicial authority as per Section 8, which will refer the disputes of the parties that are subject matter of arbitration to the arbitral tribunal only if the parties invoke an arbitration agreement within their contract before filing the first statement. The judicial authority shall thereafter be compelled to refer the matter to arbitration, until and unless there is a prima facie case stating that no valid arbitration agreement exists between the parties. The parties cannot, in any case, add an arbitration clause and refer their contract to arbitration after filing the first statement.

Section 8 of the Arbitration Act 

Following are the essential ingredients covered under Section 8 of the Act –

  1. There must be a valid arbitration agreement between the parties.
  2. The matter must be brought before judicial authority and the matter referred to should be a subject matter of arbitration.
  3. There must be a prior arbitration agreement between the parties. The arbitration clause or agreement should be invoked by the parties before the date of submitting their first statement with respect to the dispute before judicial authority.
  4. The application made by the party to refer the matter to arbitration shall produce original arbitration agreement or its duly certified copy. 
Invoking Arbitration agreement before first statement on dispute and not later than the date of submission

Section 8 of the Act states that judicial authority can refer the matter to arbitration if parties invoke an arbitration clause or agreement in their contract before filing their first statement. But, once the first statement has been made or the date of submission has been exceeded, the parties have waived off their rights to arbitration. Parties can only invoke arbitration clauses within the time frame provided in the provision, i.e., “not later than the date of submitting their first statement on the substance of the dispute”.  

Matters that cannot be referred to arbitration

There is no specific provision under the Arbitration and Conciliation Act, 1996, that categorises matters as arbitrable or non- arbitrable. But the courts have, from time to time, interpreted through various judgements on what matters may be referred to arbitration and what matters may not be referred to arbitration. The Supreme Court in the leading case Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. (2011) has laid down that arbitrability and non-arbitrability shall be determined by the nature of disputes, i.e., whether the subject matter of dispute should be considered arbitrable or not. The court held that if the nature of the disputes operates under right in rem, i.e., rights that are enforced against society, such disputes shall be non-arbitrable in nature, whereas if the nature of the disputes operates under right in personam, i.e., rights that are enforced only against the individual party, they shall be arbitrable in nature. The Supreme Court in the case, also laid down certain examples of disputes that are non-arbitral in nature –

  1. Disputes that are criminal in nature.
  2. Matrimonial Disputes such as divorce, judicial separation, etc.
  3. Guardianship matters.
  4. Insolvency and winding up matters.
  5. Testamentary disputes such as grant of probate, letter of administration and succession certificate. 
  6. Matters related to tenancy and eviction.

The Supreme Court in Shri Vimal Kishor Shah v. Jayesh Dinesh Shah & ors. (2016) added Trust related disputes as a seventh category to the disputes that shall be considered as non-arbitrable, since disputes/matters related to trust can be amicably resolved by the Indian Trusts Act, 1882. 

The Vidya Drolia Case – Four Fold Test

Vidya Drolia v. Durga Trading Corporation (2019) is the latest case that reviews the arbitrability of the subject matter of the disputes. The Supreme Court in this case held down the four-fold test to determine when subject matter is not valid. The factors that shall be considered are as follows –

  1. When the cause of action and subject matter of the dispute operate under right in rem and do not fall under right in personam
  2. When the cause of action and subject matter of the dispute affect third party rights, such as in cases in testamentary disputes, matters related to probate, etc.
  3. When the cause of action and subject matter of the dispute are inalienable sovereign and public interest functions of the state.
  4. When the subject matter of the dispute is expressly recognised as non-arbitrable under the statutes.

A mere allegation of fraud does not make the subject matter non-arbitrable

The issue was first decided in the case namely N. Radhakrishnan v. Maestro Engineers (2009), where the Court held that if the subject matter involves “serious allegations of fraud”, then the same shall not be arbitrable. But there’s no test or scope as to what subject matter shall come under serious allegations of fraud. 

Further, the Apex Court in A. Ayyasamy v. A. Paramasivam & ors. (2016), held that mere allegation of fraud does not debar the dispute from being referred to arbitration until and unless there is any serious allegation as to fraud. The Court laid down that the serious allegations should be such that they make a virtual case of fraud and prima facie gives the implication that such a case should be decided via litigation. The Court also stated that where the fraud affects the arbitration clause/agreement or entire contract, including the agreement to arbitrate, then all such cases shall be considered non-arbitrable. 

Arbitration agreement 

Arbitration agreement has been envisaged under Section 7 of the Act. An arbitration agreement refers to an agreement that is made between the parties before any actual dispute arises between them. Through an arbitration agreement, parties can refer all or certain disputes to the arbitral tribunal rather than forwarding their dispute to litigation. An arbitration agreement can be a separate agreement or can be invoked as an arbitration clause in the contract.

Attributes of arbitration agreement 

The Hon’ble Supreme Court, in the landmark case K.K. Modi v. K.N. Modi and Ors. (1988) 3 SCC 573, laid down the following attributes that must be present in the arbitration agreement-

  1. The agreement shall expressly specify that the decision of the arbitral tribunal will be binding upon the parties.
  2. The parties must mutually decide or consent to the jurisdiction of the arbitral proceedings or this can be obtained by the directions of the court’s order that proceeding must be carried on through arbitration.
  3. The tribunal must determine the rights of the parties and ensure a fair and just judgement.
  4. The agreement on the basis of which a dispute is referred to the tribunal, must be legally valid and the terms of such agreement are enforceable by law.
  5. The agreement must state that any dispute being referred to the tribunal must be formulated before the commencement of the arbitration process. 

Arbitral award

An arbitral award, also known as an arbitration award, is a decision granted by the arbitral tribunal with respect to the disputed matter. The awards granted by tribunals procure the same legal binding force over the parties just like the decisions of normal courts do. The arbitral tribunal also passes interim, partial, additional awards with respect to the matter in dispute. Awards granted can be pecuniary and non-pecuniary in nature. Tribunal can impose injunctions, performance of work etc. as a non-pecuniary award. As per, Arbitration and Conciliation Act, 1996, tribunal can pass award with respect to disputes that are domestic in nature as well as international in nature. 

Essential characteristics of arbitral award

As per Section 31 of the Arbitration and Conciliation Act, 1996, an arbitral award –

  1. Shall be in written form and be signed by all the members of the arbitral tribunal; if there is more than one arbitrator, the signature of majority of the arbitrator shall be considered sufficient for a valid arbitral award if the reason for omitted signature is stated.
  2. Shall state the reasons as to on what basis an arbitral award has been passed by the arbitral tribunal, provided that if the parties have consensually agreed that reasons not to be stated while passing arbitral tribunal or the award has been passed as per the provisions of Section 30 of the Act.
  3. Shall state and mention its date and place, i.e., at what date and place an arbitral award has been passed by the arbitral tribunal. 
  4. Signed copy must be delivered to both parties after the arbitral award is passed and made.

Enforcement of arbitral award

Once the award is passed by the tribunal, it does not immediately get enforced on the parties. Before an award is enforced through court, a time period is given to the parties in which they can file an application for setting aside the award, correction/addition of the award, and after the elapse of said time period, parties can file an application for enforcement of the arbitral award. Arbitral awards are mainly categorised into domestic and foreign arbitral awards which are regulated and enforced by the Arbitration and Conciliation Act, 1996, where domestic arbitral awards are governed by Part I and foreign arbitral awards are governed by Part II of the Act, respectively.

Types of arbitration

Unlike civil or criminal cases, a dispute is sent to the arbitration tribunal. The tribunal resolves the dispute and the final decision cannot be appealed, making it binding on both parties. No judicial proceedings are involved to ensure the swift resolution of the disputes. The following are the different types of arbitration as per the jurisdiction of the case: 

Domestic arbitration

In domestic arbitration, both the parties must be Indians and the proceedings must take place in India itself. In the Arbitration and Conciliation Act, 1996 there is no specific definition given to domestic arbitration. A mere reading of Section 2(2) can lead us to infer that domestic arbitration is when the parties had agreed to resolve any disputes that arise in India. The proceedings must be held in the domestic territory and must be in lieu of the procedural and substantive law in India.  

International arbitration

As the name suggests, international arbitration occurs outside the domestic territory because of either a clause inserted in the agreement between the parties or the cause of action that arises from a foreign element relating to the dispute or to the parties. According to the circumstances that led to a case being filed foreign or Indian law would be applicable. 

International commercial arbitration

According to Section 2(1)(f), international commercial arbitration can be understood as arbitration that takes place because of a dispute arising from a commercial contract where either one of the parties resides in a foreign country or is a foreign national; or the core management committee of an association, company or a body of individuals is controlled by foreign individuals. 

Under Indian law, the involvement of a foreign party would attract Part I of the Act, that is, it would come under the purview of international commercial arbitration. But it would be inapplicable in case the international commercial arbitration takes place outside the territory of India.  By virtue of the 2015 Amendment Act, ‘company’ has been removed from the ambit of ICA. The Supreme Court scrutinised the scope of Section 2 (1) (f) (iii) in  TDM Infrastructure Pvt. Ltd. v. UE Development India Pvt. Ltd.,(2008) (“TDM Infrastructure”), wherein, even if a company is in foreign hands, it would be considered as an Indian company as it was incorporated in India. Therefore, companies that have Indian nationality and have been registered in India would be excluded from the ambit of foreign body corporate, regardless of the fact that the company is in foreign hands.

On the basis of the established procedure and rules, there are further three types of arbitration that have been recognized in India: 

Ad-hoc arbitration

Ad-hoc arbitration refers to when parties with mutual consent opt for arbitration to resolve the dispute. It is the most common form of arbitration used in India owing to reasonable costs and adequate infrastructure. Arbitration is conducted without having any institutional proceedings, that is, it does not comply with the rules of an arbitral institution. The parties have the option to choose the rules and procedures to be followed. This form of arbitration can be used for international commercial transactions and domestic disputes. The jurisdiction is of utmost importance since a majority of the issues are resolved in conformity with the applicable law in respect to the seat of arbitration. An example of the same would be if the parties have agreed to keep the seat in India, the dispute would be resolved in lieu of the provisions of the Arbitration and Conciliation Act. Also, As per Section 6 of the Act, the arbitral tribunal or the parties can determine whether to receive administrative assistance from an appropriate institution or individuals. Moreover, as per Section 11 of the Act, the fees of the arbitrator shall be determined by the arbitral institution as specified in Schedule 4 of the Act. In case the parties are unable to reach a consensus on the number of arbitrators, one arbitrator would be part of the tribunal after being appointed by the Chief Justice of a Supreme Court or the Chief Justice of a High Court. 

Fast track arbitration

Fast track arbitration was inserted by an amendment to the Arbitration and Conciliation Act, 2015 with the purpose of resolving disputes between the parties in less time.  The main purpose of fast track arbitration was to make commercial/trade disputes simpler and expeditious for the parties.  This can be seen as an effective solution to solving the problems faced because of delays and time-consuming proceedings in other forms of arbitration. It does not involve any procedure that takes time and upholds the main objective or arbitration, that is, to resolve a dispute in a short period of time. 

As per Section 29B of the Act, a dispute can be resolved through fast-track arbitration, if parties agree before or at the time of the appointment of an arbitrator. Parties referring matters under fast track arbitration can appoint only a sole arbitrator on the consent of the parties. The arbitrator, under fast track procedure, can only make use of the written submissions filed by the parties and there shall be no oral hearings until and unless necessary. The arbitrator has to pass the award within six months from the date of the dispute referred. 

Institutional arbitration

In institutional arbitration, the parties are free to choose a particular arbitral institution in the arbitration agreement itself. The institution’s governing body or the parties can appoint one or more arbitrators from a panel of arbitrators that had previously been agreed upon. Part I of the Act gives parties the freedom to appoint an arbitrator to deal with a specific issue. 

The institution selects one or more arbitrators who possess the skills and experience stipulated applicable in a given case when the parties do not appoint an arbitrator themselves. On the other hand, if the parties choose to appoint one themselves they can choose from the list provided by the institution. 

It is mainly used by business organisations worldwide owing to a specific procedure being deployed as well as an efficient dispute resolution procedure provided by the institutions. A few prominent arbitration centres are the Chartered Institute of Arbitrators UK, the London Court of International Arbitration, the National Arbitration Forum USA, Singapore International Arbitration Centre, and the International Court of Paris.

In M/S Nandan Biomatrix Limited v. D 1 Oils Limited, (2009), the parties had agreed to resolve any dispute arising from the agreement via institutional arbitration. The Supreme Court assessed the validity of the agreement and whether the absence of a specific institution would make the agreement invalid. It was held that the parties had expressly desired to settle the disputes through institutional arbitration, making the agreement between them valid. 

Advantages of arbitration in India 

  1. Mutual consent of both parties – Arbitration can only take place when both parties have given their consent and the contract includes an arbitration clause. 
  2. Unbiased procedure – No party enjoys an undue advantage because the parties are free to decide the relevant venue, language, and applicable law.
  3. Confidential procedure – Any disclosure made by the parties in the proceedings and when the arbitration award is given is to be kept confidential. 
  4. Cost-effective procedure – No exorbitant cost is charged from the parties making it common for parties to prefer arbitration over the traditional form of litigation. 
  5. Simple and informal procedure – The parties do not have to separately hire an attorney to represent them and the outcome of the case can be adapted in compliance with the needs of both parties. Arbitration does not follow strict rules of litigation, which makes the process much easier, less time-consuming. The tribunal follows a flexible way of proceeding to avoid unnecessary delay. 
  6. Freedom to choose arbitrator – The parties can select an arbitrator or agree to get an arbitrator with relevant exercise in the particular domain by the institution. 
  7. Stipulated time period for giving an award – The tribunal will give the award within a short tenure of twelve months from the last day of the pleadings in case of domestic arbitration. On the other hand, in internal commercial disputes, the time period is rather relaxed and no stipulated time period is allotted. Hence, there are no unnecessary delays in giving the award. 
  8. Binding decision – The arbitration awards given are enforceable, making the decision binding on the parties. 
  9. Position of control – The parties have a position to control the outcome as they can directly participate in the decision-making procedure. In this way, the dispute is amicably resolved. 

Disadvantages of arbitration in India

Arbitration has advantages that encourage parties to opt Arbitration as their mode of dispute. But with advantages, it brings disadvantages too which has been discussed below – 

  1. Limited Appeal – The awards passed within the arbitration are subjected to limited appeal and the same shall be presumed to be final and binding on the parties. The appeal cannot be made with respect to such an award unless clear misconduct or error by the arbitrator is proven. 
  2. Cost – Sometimes, choosing arbitration as a mode of dispute can be expensive for the parties. Appointing quality arbitrators demands hefty amounts of fees, unlikely in cases of litigation. Moreover, if the arbitration is non-binding upon the parties, then the arbitrator shall not pronounce the final award and parties can refer their case to traditional court, which in turn adds to the cost of litigation. 
  3. Unpredictable – Since arbitration does not follow the strict rules of evidence that are being used in the courts, the decision of the tribunal is unpredictable. In litigation, strict rules are followed to consider the documents as evidence, unlike in arbitration, where the tribunal takes an informal view of documents as reliable evidence. Moreover, if the documents or information have been presented by one party to the court, they are not being cross-examined, which affects the decision and can possibly damage one of the parties.
  4. Unfairness – In cases where there is mandatory arbitration, i.e., if there has been a clause added in the contract, if any dispute arises, the same shall be followed up by the arbitration and this mandatory arbitration leaves no option for the other party to opt for litigation.
  5. Lack of Transparency – Arbitration hearings/proceedings are held in private and have no access to the public, unlike in the case of litigation. These private hearings can lead to biassed decisions for one party.
  6. Lack of Discovery – Arbitration has no defined standards for discovery of evidence, which in turn leads to missing important information, documents and evidence related to the matter in dispute. A lack of vital information can affect the quality and decision of the case. 
  7. No Control – After passing a matter to arbitration, the parties lose their control over the matter and the decision of the tribunal. Once parties hand over their dispute to an arbitral tribunal, the decisions are in the hands of the tribunal, and they cannot withdraw or step back without the consent of the other party. 

Significance of arbitration

Arbitration is significantly growing and is highly influencing the parties to the contract, specifically those engaging in commercial contracts and other trade related contracts. Arbitration is the best alternative parties can choose to resolve their dispute effectively and amicably. 

Mostly, reputed parties choose arbitration as their mode of resolution. There are many reasons why parties prefer arbitration over litigation for the resolution of disputes. Firstly, because under arbitration, proceedings/hearings are conducted out of the gaze of the general public and are kept highly confidential, unlike in cases of litigation. For parties who prefer their disputes to be privately resolved, arbitration serves as a good option. Secondly, the other significant feature that makes arbitration preferable to parties is its flexible nature. In contrast to litigation, arbitration procedures are flexible and consensual, i.e., parties can mutually decide upon the procedure for arbitration. Not only that, arbitration is faster and takes less time than litigation procedures. This benefits parties, especially if the disputes are complex commercial/business disputes and affect their stakes, so arbitration plays a significant role in the faster resolution of disputes. Moreover, one of the most important features of arbitration is the finality of the arbitral awards, i.e., once an award is passed, it shall be treated as final and will be legally binding on the parties. An arbitral award can only be set aside within the limitation period with respect to certain grounds, as mentioned in Section 34 of the Act. After the stipulated time period, an award shall be final and binding on the parties. Also, arbitration has no provisions regarding the appeal of the award, so once the award has been made, it will be considered final. Lastly, an award passed by the tribunals has extensive enforceability, i.e., awards passed can be enforced outside of the national boundaries. Awards can be enforced in foreign countries that are signatories to the Geneva Protocol and the New York Convention. 

Important case laws

Hindustan Construction Company Limited & Anr. v. Union of India & Ors. (2019)

Facts 

  • Hindustan Construction Company Limited (hereinafter referred to as petitioner) is a construction company that undertakes large scale projects based on public utilities such as roads, buildings, bridges, hydropower, nuclear plants, etc. and is a contractor and agent of government bodies.
  • The Company was aggrieved by the fact that whenever the cost/budget overruns, the same are disputed by the government bodies, which causes delay in recovering legitimate dues by the petition and this makes them suffer losses.  The only way to recover dues is by way of arbitration proceedings or civil proceedings.
  • The arbitral award passed after the arbitration proceedings was in the favour of the petitioner, but the government authority challenged the same under Sections 34 and 37 of the Act, which imposed the automatic stay on the arbitral award because of the amendments made in the act based on the recommendations of Justice B.N. SriKrishna Committee. 
  • Moreover, the government, being the statutory body, is exempted from being prosecuted under the Insolvency & Bankruptcy Code, 2016, but the petitioner, being the private body, is not exempted from the IBC, which creates much financial burdens on the petitioner to reimburse their creditors.

Issues 

Judgment

The petitioners contend that the amendment made in the Act, based on the recommendations of the Justice B.N. Srikrishna Committee, resulted in an automatic stay on the arbitral award passed by the Tribunal if the awardee filed an application under Section 34. Moreover, Section 26 was repealed and Section 87 was inserted with the amendment and as per Section 87, the amended provisions shall only apply to cases commenced before 23.10.2015. The Supreme Court agreed with the contentions made by the petitioner that by inserting Section 87, arbitrariness has been resurrected. Moreover, the Hon’ble Court opined that the insertion of Section 87 resulted in absurd results that critically affected award holders. The Court also concurred with the contention of the petitioners, stating that the insertion of Section 87 is violative of Article 14. The Hon’ble Court also stated that there will be no automatic stay under Section 34 if an application for set aside has been filed by the award debtor. 

National Highways Authority of India v. Sayedabad Tea Estate (2019)

Facts 

National Highways of India (hereinafter referred to as the Appellant) acquired some property as per Section 3D of the National Highways Act, 1956, regarding which Sayedabad Tea Estate (hereinafter referred to as the Respondent) was not satisfied with the amount determined. Therefore, the Respondent filed an application under Section 3G(5) of the NHA, 1956 to the authority for the appointment of an arbitrator as to re-determine the amount. But the government didn’t respond within the thirty days of the time period as prescribed in the provision. Due to no response, the respondent filed an application under Section 11 of the Act, 1996 to Calcutta High Court for the appointment of an arbitrator on 7th March 2007. But in the meantime, the government appointed their arbitrator in the month of April.  

Issues 

  • Whether the appointment of arbitrator under Section 11 is maintainable if there is a special act providing provisions with respect to appointment of arbitrator?

Judgment

The High Court held that the arbitrator appointed by the government shall not be considered a valid appointment since the appointment has been made during the pendency of the case. 

Thereafter, the aggrieved party referred their case to the Supreme Court, where the Court opined that where there is a special act that comes into consideration and has overriding effect on general Act, then general Act shall not be applicable when the one fails to act as per the provisions of Special Act. The Court also held that under Section 3(G), the Central Government has the power to appoint arbitrators that cannot be replaced by Sec 11 of the Act of 1996 in case of failure on the part of the government. The Court further stated that in such cases, parties can file writ jurisdiction under Article 226 of the Constitution. 

Mahanagar Telephone Nigam Limited v. Canara Bank & Ors (2019)

Facts 

In the present case, Canbank Financial Services Ltd. (hereinafter referred to as “CANFINA”), a wholly-owned subsidiary of the Canara Bank, received bonds of Rs 200 crore from Mahanagar Telephone Nigam Limited (hereinafter referred to as “MTNL”) via a Memorandum of Understanding agreement, out of which CANFINA had paid back Rs 50 crore to MTNL, but due to a crisis in the secondary market, CANFINA had decided not to pay interest on the remaining 150 bonds where the disagreement between the parties was initiated. Canara Bank, being the parent company, purchased the Rs 80 crore bonds from CANFINA that were issued by MTNL, but MTNL disagreed to transfer the interest in the name of Canara Bank. Aggrieved by that, the Respondent, i.e., Canara Bank, moved a writ petition in the Delhi High Court, where the court directed them to refer their dispute to arbitration. Thereafter, Canara Bank drafted an arbitration clause with MTNL and referred their case to arbitration. The sole-arbitrator appointed by them, sent notices to all three parties and stated that CANFINA should be a party to the arbitration. Further, the MTNL moved a Special Leave Petition before the Supreme Court. 

Issues 

  • Whether the arbitration agreement between MTNL, CANFINA and Canara Bank is valid or not ?
  • Whether CANFINA be impleaded in the arbitration proceedings?

Judgment

The Supreme Court in SLP considered the “Doctrine of Group of Companies” for deciding the issues. The Doctrine of Group of Companies theory states that non-signatory parties/companies may also be bound by the arbitration agreement, if such company is the part/signatory/subsidiary of the same company and the signatory company has direct relation to the subject matter. The Supreme Court therefore, relying on the Doctrine of Group of Companies, held that CANFINA shall be part of the arbitration agreement and any decision passed by the arbitrator shall be legally binding upon CANFINA as well.

Conclusion

Arbitration has emerged as an appropriate forum for effectively resolving misunderstandings between the parties and amicably giving an outcome in a way that benefits both parties. The Act has been subject to a number of reforms and amendments. It has developed multifold and is still continuing to adapt to the changing needs of the public at large. 

There is a serious need for citizens to be aware of alternate ways of resolving disputes and their benefits. Many people are financially exploited and do not receive adequate relief via litigation. It can be seen as a respite from the pendency of cases and is free from any sort of bias or advantage given to one party. 

Frequently Asked Questions (FAQs)

What is the difference between arbitration and conciliation?

Though arbitration and conciliation are the modes of Alternative Dispute Resolution, they are somehow different from each other. 

In arbitration, a neutral third party, known as the arbitrator, is appointed by the parties, whereas in conciliation, a neutral third party is appointed, known as the conciliator. Under arbitration, the arbitrator, after hearing both parties, pronounces the final decision as an arbitral award which shall be final and binding on both parties, whereas the conciliator mutually settles the disputes of the parties outside the courtroom. The decision made by an arbitrator has legal binding upon the parties, whereas a decision made by a Conciliator has no binding force. Arbitration is mainly used for commercial contracts and other trade related matters, whereas conciliation is done mainly in family matters, labour related matters and other inter-personal matters.

Who is an arbitrator?

An arbitrator is an unbiased third party appointed by the parties to the contract under the arbitration clause of their contract, can be appointed by an arbitration agreement or in some cases can be appointed through court to refer their disputes in case one party breaches their contractual obligations. As per Section 11 of the Arbitration and Conciliation Act, 1996, any person, irrespective of their nationality, may be appointed as arbitrator but the same must be agreed upon by both the parties and the decision made by them shall be called an arbitration award and will be binding upon the parties.

What is the difference between arbitration and negotiation?

Arbitration: In arbitration, the unbiased third party is involved as arbitrator, who pronounces a final decision as an arbitral award, which has legal binding force over the parties.

Negotiation: In negotiation, the parties to the contract itself or through their representatives, negotiate with each other to reach a consensual settlement. During negotiation, parties communicate with each other with the aim of resolving a dispute and thereafter they draft an agreement concluding the decided solution into a written agreement that is signed by both parties, respectively.  

What is the difference between arbitration and mediation?

Mediation has its own unique features that make it different from arbitration. 

Under arbitration, a third neutral party acts as a judge, who amicably resolves the dispute between the parties by announcing its final decision, which is considered an arbitral award and legally bounds the parties. Whereas, under mediation, a third person is appointed as mediator, who only facilitates communication between the parties and assists the parties in order to reach a solution. The mediator does not act as a judge or arbitrator, also doesn’t provide any legal advice or counselling to the parties. The very main purpose of the arbitrator is to ensure better communication between the parties.

Why is arbitration important in recent times?

Since there are a number of cases that have been pending in the courts, it almost took a number of hearings to announce the verdict. But, with the concept of Alternative Dispute Resolution one can resolve their disputes outside of court without getting into the hassle of litigation. Arbitration is considered one of the most reliable forms of ADR, where parties resolve their disputes amicably through an arbitrator. Just like in litigation, the decision made by the tribunal has a legal binding force over the parties. Moreover, arbitration is more efficient in terms of cost and time. So, parties usually related to trade or commercial contracts preferably opt for arbitration as their mode of resolution.

How is institutional arbitration different from ad hoc arbitration? 

Under institutional arbitration, parties appoint their arbitrator through an established permanent institution with its own set of rules for conducting arbitration proceedings. Whereas, ad hoc arbitration is an arbitration in which the parties mutually appoint their arbitrator and are free to set their own rules of conduct for arbitration proceedings.     

References


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Improving english language skills for Judiciary exams 

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This article is written by Malika Jain. It seeks to provide a comprehensive account of all the relevant information about the significance of English language skills for judiciary exams. It not only shares insights about the frequently asked topics and questions in the judiciary exams but also suggests tips and tricks to master the language. 

Table of Contents

Introduction

The English language plays a significant role in the judiciary exams. For aspiring candidates wishing to make a career in the judicial services, the importance of knowing the English language cannot be overstated. Judicial services serve as a prolific avenue of employment for aspiring law students; however, almost all the judiciary exams in India test the candidates’ knowledge of and proficiency in the English language. Most of these judiciary exams, like those in Delhi, Arunachal Pradesh, Odisha, West Bengal, etc., generally have a separate section on the English language. The section on the English language is an extremely valuable and scoring portion of the exam and thus presents a great opportunity for the candidates to easily gain their scores by developing skills in the English language. The significance of the English language is not restricted to mere judiciary exams; command over the same also helps the candidates perform better in their professional lives after selection in the judicial services. 

However, the English language may not be the first or even second language of many judiciary aspirants. It may appear to be a daunting task for them to understand and write English. The candidates, however, need not stress too much for this English language segment in the judiciary exam since, though it might seem difficult, it is not impossible. With sincere efforts made in the right direction, the candidates can excel in this linguistic skill and ace the judiciary exam.

This article is precisely composed with the objective of assisting and guiding the candidates in their endeavour to master the English language so that they can perform well in their judiciary exams. It covers every topic, including the format and pattern of sections of English language in various judiciary exams, the types of questions asked therein, the challenges faced in attempting such questions, and important tips and tricks to prepare for both the relevant components of the English language exam, viz., reading and writing. It seeks to help the aspirants by providing guidance on the basis of the analysis of the past year question papers of the judiciary exams in various states. It also answers various FAQs that may arise in the mind of an aspirant while preparing for the English language section of the judiciary exams. Therefore, the candidates must not be afraid of the English language skills required in the judiciary exams; rather, they should mould their preparation for the same in the right shape following the tips and techniques discussed in this article.

Importance of english language in judiciary exam

Before we set on to discuss the techniques with which candidates can hone their skills in the English language, we must understand the significance of the English language in the judiciary exams and why the English language has been made a crucial component of the judiciary exams. 

Significance of the english language in judiciary exams

  • The main function of judicial officers is to interpret the law and apply it to the facts and circumstances of the case, and all the laws, rules, regulations, by-laws, etc. are in English; thus, being proficient in the English language is significant for the purposes of judicial services. Hence, until and unless the judicial officers understand the intricacies of the English language, they will not be able to understand and appreciate the language of the law. In fact, they will not be able to discharge the most basic function of their role as judicial officers, i.e., interpretation of law, if they do not know English language well. 
  • Judiciary exams ensure, at the threshold level itself, that the candidates are well-versed in the English language. Interestingly, the Supreme Court and all the High Courts in India generally use English in their daily proceedings. The same is also stipulated under Article 348 of the Constitution of India. Not only do the pleadings and arguments have to be submitted in English, but these courts also pronounce their judgements in English only. Thus, if a candidate gets selected in the judicial services as a judicial officer and later on is promoted to the High Court or even the Supreme Court, it will not only be embarrassing if he or she does not understand the pleadings and arguments presented before them in English, but it will also cause great inconvenience in the functioning of these courts. 
  • The duties of the judicial officer are complex. During the course of their duty, they might have to deal with various types of documents and records, either in the form of evidence or various legal resources. These documents would, most probably, require them to know and understand the English language. Hence, in order to be able to deal with such documentation in English, the aspiring candidates have to possess knowledge of the language.
  • It is widely accepted that legal English is more complex than the ordinary English used in common parlance. The former also involves the use of legal jargon and foreign words that might not be understandable to an ordinary person. Therefore, the judiciary exams test the English language skills of the candidates to ensure that they not only fully comprehend the ordinary English language but can also appreciate the nuances of typical legal English. 

Therefore, the judiciary exams place significant emphasis on the evaluation of the English language skills of the candidates. 

Format of english language paper in the judiciary exams

As stated above, nearly all the judiciary exams in all the states in the country include a separate and dedicated exam on the English language. However, knowledge of the English language is not only necessary for attempting the particular English language paper of the judicial services’ exams, but the same is also indispensable for the candidates in answering the descriptive questions asked in these exams in general. The marks are not only deducted when the candidates mark a wrong answer in the English language section but also when the candidates write essay-type answers in grammatically wrong or incorrect language. 

Similarly, if the candidate opts for taking the judicial services’ interview in English, it is imperative for him or her to be extremely proficient and fluent in speaking and understanding English. Speaking in incorrect or broken English in the interview would not merely result in the deduction  of the candidate’s scores but would also leave a poor impression of him or her on the interviewer. Hence, it can be seen that the judiciary exam mandates the candidates to develop comprehensive expertise in all the spheres of the English language, viz.: reading, writing, listening, and speaking. Therefore, the requirement that aspirants to judicial services have exceptional English language skills cannot be underscored enough.

As far as the separate segments of judiciary exams in the English language are concerned, these sections contain a variety of questions, which may include both multiple choice type questions and essay type questions. The evaluation of the English language skills of the candidates can be tested in judiciary exams, both preliminary and mains. The multiple choice type questions, mainly in the preliminary exam, may involve questions like synonyms, antonyms, homophones, homonyms, English grammar, vocabulary, etc. 

On the other hand, the Mains judiciary exam may require the candidates to write descriptive answers to questions involving precis writing, essay writing, reading comprehension, etc. As per the analysis of the past year question papers, sometimes, like in the case of exams for Arunachal Pradesh Judicial Services and Madhya Pradesh Judicial Services, as many as 20-25 questions have been asked on the English language in the preliminary exam. Similarly, most of the states, like the UP Judicial Services, Odisha Judicial Services, etc., have a valuably high scoring section on the English language in the Mains judiciary exams. Generally, the marks attached to these sections range from 100 to 150, which can undoubtedly have a huge impact on the overall score of the candidates. Thus, the candidates must prepare for the English language section considerably, as it has a significant role in the judicial services exams. 

Syllabus and types of questions asked in the English language section of judiciary exams

The candidates must at least prepare the following topics while preparing for the English language sections of judiciary exams in any state whatsoever:

Idioms and phrases 

English idioms and phrases form an important part of the judiciary exams. Several questions are formed out of this topic in the English language section. For instance, the candidates may be asked to identify the meaning of a particular idiom or phrase, or they may be required to complete a particular idiom or phrase by filling in the blank. Some questions may also require the candidates to choose the correct idiom or phrase according to the context provided. For example,in the Delhi Judicial Services Preliminary Exam  2017, a question was asked on the meaning of the phrase “let the cat out of the bag.” Hence, the candidates must practise idioms and phrases well to be able to answer such questions. 

Spellings

English spelling is a topic that cannot only be asked directly but may also be crucial while answering the questions generally in the judiciary exams. In the preliminary exam, the candidates may be asked to identify the correct spelling of a word, whereas in the rest of the paper, the candidates must ensure that they do not make any spelling mistakes, as the same can ruin the impression thereof.

Vocabulary 

Vocabulary is an extremely crucial component of any competitive exam, and judiciary exams are not an exception. In fact, vocabulary is a component that, once mastered, is going to help the candidates in all three levels of the judiciary exam: the preliminary exam, the mains exam and the interview. 

Vocabulary includes both English word-meaning and the synonyms and antonyms of English words within its ambit. Questions asking the candidates to specify the antonym or synonym of an English word are not uncommon in the judiciary exams, mainly in the preliminary exams. For example, in Arunachal Pradesh Judicial Services Preliminary exam 2021, questions were asked on the meaning of the words ‘incinerate’, ‘decapitate’, etc. 

Knowledge of vocabulary is also very helpful in precis writing, essay writing, paraphrasing, and translation questions, which are commonly asked in the mains exam. Even in the interview, good command over vocabulary will not only improve the expression of the candidate but will also cast a good impression on the interviewer. This, however, does not mean that the candidate should use flowery and pompous language in the interview.

Articles

Although articles may not be directly asked in the judiciary exams, a general knowledge of articles is compulsory for the candidates to write and speak grammatically correct English in the judiciary exams. 

Parts of speech

Parts of speech are probably the first step in learning the English language, and hence, the same cannot be missed by the candidates while preparing for the English language paper in the judiciary exams. In the judiciary exams, the candidates may be required to select the correct word to complete the sentence or directly identify the part of speech. The knowledge of parts of speech comes in handy in solving these types of questions, as the form of a word, i.e., whether it is a noun or an adverb, etc., can extend great hints to the candidates in selecting the right answer. Moreover, even when the candidates are asked to paraphrase a given text, they can rely on parts of speech to alter the structure of the sentences to paraphrase the same.

Subject-verb agreement

We often get confused as to which verb, singular or plural,  should be used with a particular subject, especially when there is more than one subject. This phenomenon of using the correct verb with the subject is known as subject-verb agreement, and this produces a lot of questions in the judiciary exams. For instance, questions like the following are asked quite often in the preliminary exams: Ram and his friends ______ to the temple every day. (go/ goes).

Essay writing

Essay writing evaluates the candidates’ ability to write meaningful, thoughtful, and comprehensive literary pieces in English. For such types of questions, the candidates would be required to write essays on different socio-political or legal topics. For example, in the U.P. Judicial Services Mains Written Examination 2023, essay type questions were asked on topics such as conservation of nature, the importance of social, cultural and gender equality from a global perspective, and Yoga practices and their clinical effects. 

To answer these questions, the candidates must know the nitty-gritties of the English language to be able to express their thoughts on the topic in grammatically correct, coherent, and vocabularily rich English. As much as this is an opportunity for the candidates to showcase their English language skills, which, if presented accurately, can earn great rewards thereto, this may also be a little challenging for the newcomers. Thus, knowledge of the English language together with the practise of answer writing are important for such essay type questions.

Precis writing

In questions about precise writing, the candidates have to summarise the given text while keeping intact all its essential elements. Technically, in precise writing, the summary should be one third of the total worth of the given text. However, the candidates do not actually count the number of words in the given text and the summary; rather, it is a general estimation that they should maintain this ratio. As stated earlier, wide knowledge of English grammar, sentence structures and clauses, vocabulary, parts of speech, etc. can make the activity of precis writing greatly easier for the candidates. 

Short note writing

This is largely like writing short, descriptive answers on a particular topic. Similar to essay writing, the topics of short note writing can also be based on a current relevant socio-economic or political, or legal issue. 

Reading comprehension

Questions related to reading comprehension not only test the candidates’ ability to answer questions on the basis of the given text, but they also require the candidates to have decent reading speed. The text can be sourced from any judgement or from the work of any famous jurist, and the candidates will have to answer the questions after critically analysing and reading the text. Reading speed is required because there may be a couple of questions about reading comprehension or because the given text can be lengthy and complex. Hence, good reading speed will always benefit the candidates by saving time and spending it more where needed. 

Unseen passages

The questions related to unseen passages are more or less the same as those of reading comprehension, with the only difference being that in unseen passages, the passage remains unknown to the candidates. 

Cloze test

In cloze tests, the candidates will be presented with a paragraph with certain blanks to be filled out by the candidates chosing the correct option. Notably, the blanks have to be filled out, taking the context of the paragraph into consideration. In these questions, the candidates will have to read the paragraph, understand its meaning and context, and then select the most appropriate option that could fit therein. This may require the candidates to possess a strong hold on vocabulary and parts of speech. 

Another modified version of the same can be in the form of missing words verbs, wherein certain sentences would be given with blanks and the candidates will have to choose the most suitable verb from the options to complete the sentences. 

Word formation

A peculiar feature of the English language is that many words can be created from a single root word by adding suffixes or prefixes. New meanings can be created by altering the form of the same word. In questions related to word formation, the candidates may be asked to form new words or identify the altered words or the root word of an English word, etc. To be able to answer these questions correctly, the candidates would have to build a strong knowledge base of English vocabulary. 

Translations

In translation, the candidates are required to translate into English the sentences given in Hindi or any other regional language, depending on the state of the judicial services exam at hand. Similarly, it also involves the retranslation of sentences given in English into Hindi or any other regional language, again varying according to the state of the judicial services exam.

Para jumbles

Para jumble questions are those where a number of statements are given in an arbitrary or incoherent order that have to be arranged by the candidates in a logical order to form a meaningful paragraph. These types of questions become easy when one is adept at parts of speech, particularly since they can give hints about the order of statements. 

For instance, if a sentence starts with ‘although’ or ‘while’, we understand that, firstly, the same cannot be the last statement, and secondly, that the sentence next to this one will necessarily mean contrary to it. Thus, by picking up cues from the parts of speech, we can get a sense of the order of the statement.

Sentence rearrangement

This is similar to para jumbles. In these types of questions, a number of lines, phrases, or clauses are given in an incoherent order that have to be rearranged by the candidates to make a complete, meaningful, and grammatically correct sentence. Again, the trick of parts of speech discussed for the para jumbles is useful for sentence rearrangement questions as well. 

Verbal ability

Apart from the above, the verbal ability section may involve different types of questions like error spotting or phrase replacement, fill in the blanks, match the columns, etc. 

In questions related to error spotting, the given statements will involve certain English grammar mistakes, and the candidates will have to find out the same. There may be more than one mistake in the sentences. Similarly, in phrase replacement, the highlighted phrase in the question will be incorrect, and the candidates will be required to select the most appropriate option that could replace the incorrect phrase in the question. For example, in the Madhya Pradesh Preliminary Judiciary Exam 2019, the candidates were asked to select one word that could be substituted for the sentence: “that which cannot be corrected” with the options:

  • Unintelligible 
  • Indelible 
  • Illegible 
  • Incorrigible

Grammar

English grammar, in its totality, is a very significant element of the judiciary exams because where there is a need for English, there is significance for English grammar. This is to cover those portions of English grammar that are not specifically mentioned above. The candidates, after preparing for the above frequently asked topics, must still visit the rest of the English grammar rules to ace the language section of the judiciary exams.

Therefore, the candidates have to devote ample attention to the English language to perform well in the judiciary exams. The above mentioned syllabus and types of questions are merely illustrative and not exhaustive. The candidates, thus, must try to cover all aspects of the English language in their preparation for judiciary exams. Remember that setting an ambitious goal to prepare for all the relevant topics in the English language will enable extensive learning. 

Challenges in attempting the english language section of the judiciary exams

Before the candidates start working on their English language skills for the judiciary exams, it is important that they identify the challenges they may face in attempting the English section or while dealing with the English language in general. This is the best way to start any preparation, as the cognizance of one’s own weaknesses can help a great deal in guiding the preparation in the right direction. This will allow the candidates to emphasise their potentially weak areas and prepare for them. 

The following are the main challenges that candidates may face. In other words, areas that need special attention by the candidates in grappling with the English language in the judiciary exams are:

Vocabulary 

Vocabulary can seem to be a great hurdle to the candidates in improving their English language skills for the judiciary exams, as they are endless, difficult to memorise, and confusing. So many words in the English language, despite having different meanings, may sound similar or have similar spellings, like hair and hare, pair and pare, here and heir, etc., which can make the process of learning vocabulary greatly tricky. Further, as the candidates progress towards advanced vocabulary, the pronunciation and spelling of the words get complicated. Moreover, for some candidates, basic vocabulary may appear to be advanced, and advanced vocabulary may be extremely difficult due to various reasons, like basic educational qualifications in regional languages. Admittedly, vocabulary is a difficult part; however, with repeated revisions and continuous exposure to good vocabulary, the process of learning it may become comfortable.

Legal phraseology and jargon 

As mentioned above, legal English is a bit different from the English used in common parlance. It involves foreign words, legal jargon, and formal legal phraseology. Not only are these typical legal terms spelled differently, but they also sound differently. Therefore, preparing for the same can be a little challenging and might require special efforts by the candidates.

Critical comprehension 

Comprehension means the capability to understand the text. However, on the other hand, critical comprehension means going far beyond the text and digging deeper into its unwritten implications. It not only means understanding the text but also evaluating its purpose and discovering the meaning implied in it. It is to evaluate the visible text to understand the invisibilities underlying it. To understand the text inside and out, the candidates first need to be well-versed in the English language. Without being able to comprehend the text, they will not be able to critically analyse it. 

Interestingly, legal texts are necessarily comprehended critically. Judicial officers do not just have to read and interpret the text of the law; they also have to understand and enforce the spirit thereof, which is possible only through critical comprehension. Probably this is why in the English papers in judiciary exams, questions like reading comprehension, unseen passages, answer writing, or essay type questions are included so that the candidates can be tested on the basis of their skills of critical comprehension and analysis. 

However, to develop this skill, the candidates must keep practising with a lot of patience. To hone this skill, the candidates need to have knowledge about a wide range of relevant issues so that a particular topic can be viewed from different points of view and interconnections can be highlighted. Thus, this may be a difficult challenge for the candidates in their journey of improving their English language skills for judiciary exams. 

English grammar

English grammar may prove to be challenging for the candidates as it has a plethora of rules that are very difficult to keep in mind all the time. The rules also have various exceptions, which further add to their complexity. Moreover, given the monumental significance attached to English grammar in the judiciary exams, it cannot be taken lightly. Thus, the candidates have to undertake the painstaking task of understanding and memorising the complicated web of rules and exceptions in English grammar.

Coherent English writing

Coherent English writing is the capability of being able to write in a logical manner. For the sake of clarity, it must be mentioned that it is not just writing correct English; it additionally involves the art of writing articulately to express ideas and thoughts accurately. This art of writing coherent English is vital in the judiciary exams, not only to attempt questions related to para jumbles or sentence rearrangement but also while writing essay type answers. It can be a daunting task for candidates without diligent practice.

Speaking fluently

This is a very common challenge faced by aspirants to the judiciary exam. Obviously, this challenge may crop up at the stage of the interview only. When the candidates choose to take up an interview in English, the challenge of speaking English fluently is perhaps the first thing to catch their attention. Broken or language with excessive use of fillers like ‘kind of’, ‘sort of’, ‘like’, ‘you know’, etc. too often not only damages the impression of the candidates, but it also disrupts effective communication between the interviewer and the interviewee. Thus, candidates may have to pay sincere attention and make efforts to upskill their spoken English to fetch decent marks in the interview. 

Lack of easy and credible resources

Lack of easy and credible resources is indeed a serious issue for candidates seeking to improve their English language skills for judiciary exams. It is extremely important that the candidates prepare for their judiciary exams with reliable and easy-to-understand resources. There is absolutely no use in resorting to very complicated and fancy resources if the candidates are not able to understand them or learn from them. Hence, the availability of easy and credible resources to facilitate candidates’ learning is crucial.

However, such resources are either scarcely available or there is a lack of awareness about them amongst the candidates. Therefore, to resolve this problem and bridge this gap of information, we later discuss the resources that the candidates may have recourse to for the preparation of the English language for the judiciary exams.

Hence, these are the main areas upon which the candidates must spend sufficient and special time and energy, as they may pose hurdles in their preparation of the English language for the judiciary exams.

How to improve english language skills for judicial exams 

Having discussed the significance of English language in the judiciary exams and the prominent challenges that the candidates may face in their efforts to improve their English language skills, we now come to the most important and relevant part, i.e., ways to improve English language skills for judiciary exams. 

Strategies for vocabulary enhancement

It is a general understanding of good English language skills that one should refrain from using repetitive vocabulary too frequently during communication. The relevance of vocabulary cannot indeed be stressed enough. While the same not only adds polish to one’s communication skills in the English language, it is also an infallible way to score high marks in competitive exams like those of judicial services. A strong command of English vocabulary helps the candidates in truly unexpected ways when answering questions in the judiciary exams. Right from answering direct vocabulary questions to facilitating reading comprehension and answer writing, mastery over vocabulary provides an edge to the candidates throughout. Thus, we discuss below the easy and doable techniques to combat the challenge of learning vocabulary to equip the candidates to ace the judiciary exams.

Analysis of past year question papers 

The first and foremost thing that candidates must do to flag off their journey of improving their English language skills for judiciary exams is the analysis of the past year question papers to understand the format of the paper, the topics most frequently asked, and the pattern of questions asked. This should give them a fair idea of how and from where they need to start their preparation. This analysis will also guide their preparation to take it forward in the right direction. 

Techniques for expanding vocabulary 

Vocabulary books

Reading vocabulary books is the simplest yet most effective way for judiciary aspirants to improve their vocabulary. These books not only provide different ways to memorise a wide range of vocabulary, but they also come with practice questions. One of the most famous and widely recommended books to prepare English vocabulary is the book by Norman Lewis: Word Power Made Easy. It is easily available on the market at an affordable price. It is an extremely engaging book written in a conversational style. Quite surely, this book would prove to be immensely helpful for the candidates in their journey of vocabulary learning.

Highlighting new vocabulary

While reading anything, whether a magazine, newspaper, or vocabulary book, the habit of highlighting new vocabulary would be extremely useful to draw attention to the highlighted portion. It helps us focus our attention on a particular point and also helps in memorise things faster. It is a tried and tested formula that whenever the candidates read anything and they find new vocabulary, they should highlight it, search for its meaning, and write it near the highlighted text (if it is possible). This way, they would be able to memorise the word and its meaning for longer. 

There is another modified way to practise this technique for even better results. The candidates must keep highlighters of different colours with them while reading. They should assign each colour to indicate the level of their familiarity with words. 

For instance, if a candidate has highlighters in pink, yellow, and green colours, they can use the pink colour to highlight words they do not know and whose meanings they will have to find out; they can use the yellow highlighter to mark words they know the meaning of but cannot easily recall and will have to look up again; and, lastly, they can use the green one to identify words they are very sure about.

This method is extremely effective, as firstly, the use of different colours tends to make a strong impression on the human mind, so the candidates would be able to remember the words for very long. Secondly, the candidates would be more driven to change the colour of the words from pink and yellow to green, which would help them learn more vocabulary and retain it better.

Mnemonics

Mnemonics is the technique of memorising something by attaching some thought or memory to it. It is by far the most effective method to learn something by heart. Given the vastness of English vocabulary and the transient nature of human memory, mnemonics can prove to be a great way to cram up the vocabulary by attaching some other related memory to the words. This technique is invoked by using memory aids, including patterns, associations, or other imaginative devices, so that the new words become more memorable and easier to remember.

The best part about this technique is that there is no rule to govern the way in which connections between the memory and the words are to be made. It is absolutely dependent upon the reader as to how he or she can relate the word to any of his or her memories so that whenever that word comes before him or her, its meaning strikes him or her automatically. The candidates can relate the spelling of the word to something or the sound in which the word is pronounced to something. They may also create mental and visual images and associate the same with a word to make it more memorable. The memory of the word will stick better in the minds of the candidates when the mental picture is vivid. It can literally be anything under the sun to which the candidates can relate different words in order to memorise them. 

For instance, if the candidates are trying to learn the word ‘cacophony,’ which means some harsh sound or noise, they may create a picture of a cactus in their minds with all its sharp thorns to associate the same with the harshness of the sound. This way, they might not forget the word for a very long time. 

Vocabulary journal

A vocabulary journal is the simple technique of maintaining a record of the new vocabulary, its meaning, and its usage whenever the candidates encounter any new words. However, there is much more to it than just writing down words on paper. This technique requires the active participation of the candidates in engaging with new vocabulary. The candidates should spend enough time thinking about every word that is being recorded and include as many elements in their vocabulary journal as possible. 

The candidates may write the following things in their vocabulary journal:

  • meaning of the words, 
  • the usage of the words,
  • examples of the new words, 
  • category of the parts of speech to which the word belongs, and
  • synonyms and antonyms thereof. 

The list is endless. The purpose is to make the candidate fully well-versed in the new vocabulary, its practical usage, and all its forms. 

This record will act as a bank of information for the purpose of revision at the time of the exams. The practice of writing about the new vocabulary will also reinforce the memory of the candidates, and thus, the information will be retained for longer. The same will also be helpful in bringing new words into the active vocabulary of the candidates. In other words, reading new words and their meanings and then also writing about them will make the candidates familiar with them, so they will tend to use them in daily parlance, thereby improving their spoken English as well.

Vocabulary games

Games and sports can make anything easy and fun. Even the challenging task of learning unending English vocabulary can become amusing when learnt through games. Playing vocabulary games is an enjoyable and interactive yet insightful way to improve one’s  vocabulary. These games are not only engaging but also effective in helping the acquisition and retention of new words. These games can either be played alone or with friends. The candidates can try both online and offline games and activities to learn vocabulary. The following vocabulary games can be played by the candidates:

  • English crossword puzzles, wherein a grid has to be filled with different words after reading the given hints. This is easily available in newspapers and magazines. 
  • Scrabble, which allows one to make new words and try their different forms, 
  • Word search is also a useful way to identify different English words and discover new ones. 
  • Taboo is extremely helpful in building strength in English vocabulary. In this game, the candidates have to describe a particular word without using that word itself or other words commonly related to it. The catch of the game lies in the capacity of the individuals to use different words or vocabulary to describe something. 
  • The candidates can also install applications of dictionaries like Merriam-Webster which provide an array of different vocabulary games free of cost. It also presents the word of the day every day and presents the card of a new word each day along with its meaning and usage. 
  • Vocabulary quizzes can also be played either with friends on the basis of their stock knowledge or they can play it on Google also.  

However, it is cautioned that candidates must play these games only for educational purposes. The ultimate purpose of recommending these games is to simplify and make the process of learning interesting. The candidates must not get addicted to these games, as then they may become a source of distraction.

Therefore, there are a variety of vocabulary games the candidates can play to build interest in learning vocabulary and further cultivate command over the same.

Extensive reading

Reading is a very fruitful exercise to build a grip on vocabulary. Voracious reading enables the readers to familiarise themselves with a lot of new English words along with their usage, which expands their existing stock of vocabulary. Synonyms, antonyms, spellings, etc. can be excelled at through extensive reading. Also, when we read avidly, we may come across the same words repeatedly, which can help us memorise those words subconsciously. It is not uncommon to hear from habitual readers that they know and use a lot of words and their usage, but they might not be able to define them as such. This is because when we read these words in a particular context, we can naturally assume their meaning, and hence we use them in day to day conversations. However, to be able to define these words, we may need to consult a dictionary. 

Nevertheless, even a faint idea about the meaning of words can help the judiciary aspirants big time, as we cannot, due to the limitations of human memory, memorise each and every thing. So, with an inkling about the different English words, we can surely eliminate the incorrect options. Moreover, through reading, the candidates can learn different idioms and phrases along with their usage.

Reading not only helps in improving English vocabulary, but it also elevates the comprehension skills of the candidates, which are required to understand and respond to lengthy paragraphs asked in the question paper. 

Therefore, the candidates can prepare for English vocabulary and ace their judiciary exams with these vocabulary acquisition techniques.

Mastery of grammar

The significance and value of English grammar cannot be emphasised enough. It is useful in almost every aspect of judiciary exams. Thus, it becomes crucial that candidates pay sufficient attention and devotion to improve their proficiency in English grammar. The following tips can help the candidates for this purpose.

Grammar books

Again, the simplest yet most impactful technique to learn English grammar is to resort to the old school learning method of reading a grammar book. Arguably, nothing would work better than this. Grammar books would teach English grammar in a systematic and easy manner. However, what is most important here is the choice of grammar book. There are an ample number of English grammar books available in the market; however, not every book can be referred to by the candidates to learn the subject. Rather, they must select a book whose author and publisher are credible and reputed. The candidates can refer to NCERT English grammar books, or they can also read the English grammar book by Wren & Martin. 

Extensive studying 

As stated earlier, extensive reading is a key to learning the English language. Apart from the above-mentioned ways in which reading can be useful for judiciary aspirants, it can truly teach writing skills to the candidates using different rules of grammar. It can present to the candidates the ways in which the rules of English grammar can be used most effectively to write impressively. Reading would illustrate the application of English grammar rules to them, thereby deepening their understanding of the subject. Also, extensive reading subconsciously trains our mind to grammatically correct sentences, so when we encounter any grammatically unsound sentence, we automatically tend to identify the error without even consulting any grammatical rule. So, ultimately, reading is a key to English grammar.

Writing exercises

Mere reading is not sufficient to build a grip over English grammar. The candidates must also practise the implementation of such grammar rules. It is an established fact that writing exercises complement and supplement the learning of English grammar. Writing not only enables us to implement the rules of grammar, but it also facilitates our learning of new rules. It allows us to explore the different ways in which grammar rules can be used to create a diverse variety of meaningful sentences. We truly understand the rules of grammar when we can use them to frame correct English sentences. The judiciary aspirants can practise answer writing or judgement writing, which will help them prepare for both English grammar and English writing. 

Professional courses

The aspirants can also take recourse to professional English language courses, which would formally teach them all the rules of the language. This would be a great option for those who have completely remained out of touch with the English language for a long period of time. The candidates can check out the courses offered by LawSikho, which are composed keeping in mind the factors relevant for people in the legal profession. These are comprehensive courses designed to make the process of learning the English language easy and interesting. The benefit of enrolling in such a professional course for learning the grammar of the English language is that it saves them a plenty of time and effort, which would otherwise be if the candidates decided to learn the language by themselves. Also, though self learning techniques like reading and writing may help in the long run, a professional course will ensure that the language is mastered in a limited time by limiting the consumption of resources to relevant and targeted topics.

Building reading comprehension skills

The skills of reading comprehension are developed with time and consistent effort. It is not a task that can be accomplished overnight. However, it is not an impossible task either. The candidates can cultivate the skills of reading comprehension with dedicated hard work using the following techniques:

  • Active reading: Active reading is fundamental to reading comprehension. It involves annotating alongside the text, summarising, visualising, underlining, taking notes, and questioning while reading a given text. This helps with the critical analysis of the text in the minds of the readers. Active reading is possible only when the candidates dedicate all their attention to reading the text in order to extract not only the textual but also the underlying contextual meaning of the text.
  • Initial skimming: Skimming through the text before a comprehensive reading is super useful in understanding the structure of the text and gaining prima facie insights about the same. This initial step of skimming can help the candidates a lot in situations where there is little time left to pore over the text thoroughly. This step can bring out the main argument of the text in no time. 
  • Discussion on the text: Discussion on the text after reading it can improve its understanding greatly. However, since in exams, discussion is not possible, the candidates must inculcate the habit of introspecting about the text and taking notes thereafter to gain crystal like clarity on the same.
  • Deep analysis of the text: The candidates must also try to uncover the latent meaning of the text, intention of the author, various undercurrents influencing the context of the text, etc. to develop a critical view of the given text. They can also try to identify certain binaries that the text may be establishing implicitly, which may be critically evaluated by them.
  • Practice of reading comprehension: Another way to hone one’s skills in reading comprehension is to read on a daily basis. Also, one must read a variety of texts to build familiarity with them, as the judiciary exam may ask about any particular type of text. The consistent exercise of reading actively will not only increase the reading speed of the candidates but will also shape their comprehension abilities.

Therefore, it is advisable that candidates practise reading comprehension on a daily basis to master reading comprehension using the above techniques.

Developing writing skills

The significance of writing skills in judiciary exams cannot be emphasised enough. The candidates might be required to write essays on a diverse range of topics, summarise lengthy texts into compact paragraphs, arrange jumbled sentences in a meaningful order, etc. to qualify for the judiciary exams. It is also to be kept in mind by the candidates that in judiciary exams, they are not only expected to be proficient in ordinary English but also in legal English, which is like a gloss on the foundational English language skills. The usage of legal phraseology and jargon and the formalistic style of legal writing can fetch brownie points for the candidates. However, the task of building grip over such writing skills may appear to be daunting and overwhelming. To facilitate the process of acquiring such impressive writing skills, the candidates can follow the following techniques: 

  • Extensive reading: At the cost of repetition, the candidates are implored to read extensively to be able to write well. While reading, they must pay attention to the grammar, style of writing, formalistic expressions used in legal writing, and vocabulary. They would also get to observe the different patterns or methods of writing used in legal writing. For example, a very common method of legal writing is IRAC, i.e. Issues, Rule, Application, and Conclusion. This means that whenever the candidates have to write about a legal issue, they must first state the problem, then the law governing that problem, the application of the law to the issue, and then the conclusion. There can be other methods, like an introduction, body, illustrations/ case laws, conclusion, etc., for structuring legal writing, which would improve the writing skills of the candidates.
  • Practice: Practise writing exercises daily. Simply reading is not sufficient, but the candidates must also practise their learning through writing exercises regularly.  The candidates can also get their writing reviewed by a third person, like their friend or teacher, for a third party perspective to get further suggestions and feedback to further improve their writing skills. 
  • Outlining and structuring the text: Before the candidates begin writing, they must sketch out an outline of their answer so that it is coherent. Generally, every answer starts with an introduction to the topic, and after a comprehensive analysis of the issues raised in question, it ends with a conclusion. 

In legal writing, answers must have references to provisions of law or legal concepts by various jurists, illustrations, explanations, case laws, etc. that not only back up the analysis of the candidates but also leave a refined impression on the evaluator. The candidates must also try to establish connections between legal concepts and current issues to show their relevance.

  • The candidates must remember to keep their sentences short and crisp. Lengthy and verbose sentences may not only ruin the flow of the reader but also confuse them. Also, organise your writing into paragraphs with the scheme of ‘one paragraph, one idea’. A paragraph itself must not be very lengthy, and it should be changed at appropriate places. 
  • The candidates must not use abbreviations without mentioning their full form where the word is used for the first time. For instance, if the candidates have to write about PIL in India, they should mention its full form along with the abbreviation first, like Public Interest Litigation (hereinafter referred to as PIL). The candidates must also refrain from using abbreviations that are not commonly used.
  • It is to be kept in mind that the use of flowery and flamboyant language will not make any difference if the content is not promising. Moreover, if the evaluator does not understand such language, it may take a toll on the marks of the candidates. Thus, the candidates should avoid using fancy language and instead focus on delivering solid content with easy and commonly used language and vocabulary. 

Therefore, these are a few tips that the candidates can follow to improve their English writing skills for the judiciary exams.

Tips and tricks for improving english language

Mock tests and practise 

Mock tests are an indispensable part of the preparation journey for any competitive exam. They are important because they can simulate the same experience as that of an actual exam, which works wonders in preparing strategies to excel at it. Most importantly, the analysis of these mock tests can reveal a great deal of information about the important topics that need to be revisited or prepared by the candidates. As regards the English language, the mock tests and analysis thereof can help in acquiring vocabulary and practising writing and reading comprehension skills. 

Time management 

Mock tests will also help the candidates practise proper time management for the exam. Otherwise, the candidates must also strategise the utilisation of the time. More time would be required for the essay type questions and questions relating to paraphrasing, jumbled paragraphs, precis writing, etc., and comparatively less time would be consumed in solving multiple choice questions; thus, accordingly, the time should be devoted by the candidates. A general strategy to save time and score high is that the candidates must first skim through the paper and answer all those questions that they are completely sure about, and then they must proceed to answer those questions that would require contemplation and analysis. This way, the candidates will never miss out on at least the easy questions on the paper. 

Test-taking strategies

It is advisable that the candidates strategise their mock tests to make the best use of them. They must take their mock tests for the same duration as the actual exam so that their brains will be conditioned to work efficiently during that time period. For instance, if the exam is going to take place from 9 a.m. to 12 p.m., the candidates must attempt the mock tests during this time only to get themselves accustomed to working with full concentration for this duration. Moreover, they must analyse the mocks and take notes on the questions asked therein after completion. 

Other strategies 

Reading newspapers, magazines, or novels would be instrumental in refining the English language skills of the judiciary aspirants. They will also help in updating the candidates’ knowledge of current affairs, which form a significant component of the judiciary exams. Similarly, they may take recourse to various social media platforms that facilitate the learning of the English language in an engaging and interesting manner. Even watching English movies and listening to English songs can also upgrade the English language skills of the candidates. 

However, the candidates must ensure that they are using social media or entertainment sources only for informational purposes. It should not become an addiction or a distraction for them. Thus, the bottom line of this learning process is to be in touch with the language as much as possible, so that answers to questions about the language come naturally to the candidates. 

Conclusion

The English language is not the first or second language for many of us, so it is quite natural to falter in it. However, given its importance, it is a significant constituent of many competitive exams in India, including judicial services exams. Thus, it becomes imperative for the aspirants to be proficient in the language. This learning process is time taking and challenging; however, with the right guidance and tips, one can surely ace it. As much as the English language portion of the judicial services exam is difficult, it is also a great avenue for scoring marks. Hence, the candidates must try to learn the language by following the abovementioned techniques to deepen their command of the language and earn high marks in the judiciary exams.

All the very best! 

General FAQs on improving the english language skills in judiciary exams

How much time should one dedicate to the preparation of the english language?

The candidates must set day wise goals for completing the abovementioned syllabus of the English language paper in judiciary exams and study till the goal of the day is achieved. Generally, 2-3 hours of study a day should be sufficient for preparing for this exam. This time period may vary according to the learning capacity of the candidate and the time left for the exam. 

How and from where should one start the preparation?

Starting the preparation of this exam on the right note is important. Thus, firstly, analyse the past year question papers and understand the pattern of questions and important areas for preparation. Thereafter, one should start the preparation by studying the topic one finds the most engaging. Take mock tests and practise questions to build interest first, and then engage in the rest of the preparation for the subject.

Is there any recommended source for preparing the english language?

As stated above, the candidates may refer to books like the NCERT English grammar books, the English Grammar book by Wren & Martin, and the book by Norman Lewis: Word Power Made Easy. Apart from this, they can read renowned and credible English newspapers, focusing mainly on the editorial portions thereof.

What are the important english language topics that one must cover?

Although it is recommended that the candidates cover the entire syllabus of the English language paper as mentioned above, there are certain topics that they cannot afford to miss. These topics include essay writing, precis writing, grammar, vocabulary, reading comprehensions, translations, subject-verb agreement, etc. These must be prepared comprehensively by the candidates, as they are frequently asked in the judiciary exams. 

How can I use social media to prepare for the english language?

As mentioned above, social media can prove to be useful in preparing for the judiciary exams. The candidates can rely on reliable educational and informative websites, social media pages, YouTube channels, etc. that teach vocabulary, tips for answer writing, or communication skills for the interview. There are many channels on social media that also teach non-verbal communication tips for excelling in the interview. However, the candidates should be careful not to develop an addiction to social media while using it for infotainment purposes.

Can I prepare for the english language paper of the judicial services exam by myself? 

Yes, the preparation of the English language paper for the judicial services exam can be done by following a study schedule prepared by following the above strategies. 

FAQs on the strategies to attempt the english language section in judiciary exams

How do I manage time while attempting the section on the english language?

As said above, first, the candidates must attempt those questions that can be easily answered in less time. Thereafter, the lengthy and descriptive questions must be attempted by the candidates to save time and take the exam efficiently.

How do I eliminate incorrect options?

There can be two ways in which the incorrect options can be eliminated by the candidates: 

  • first, either the candidates would directly know that certain options are clearly incorrect and so would eliminate them; 
  • second, if possible, the candidates can eliminate the options by understanding the context. If certain options are completely unfit according to the context, then they can be outright eliminated.

FAQs on the writing component of english language section in judicial exams

How do I write eloquently in the judiciary exams?

To write eloquently, the candidates must first decide on an outline for their essay or answer. An outline would determine the scope of the answer, and then the relevant content must be filled in by the candidates. The answers or any piece of writing on that matter must necessarily commence with a brief introduction of the topic and end with an encapsulating conclusion establishing the final remarks of the author on that point. Moreover, the candidates should use easy and simple language and explain the concepts through illustrations, case laws, and the relevant law. The matter should be written in grammatically correct language with proper spelling and vocabulary.

What are the things to keep in mind while attempting the writing components of the English language section in judiciary exams?

There are a couple of things that a candidate should keep in mind while attempting the writing component. For instance, the grammar must be correctly used, the spellings should not be incorrect, and the crispness, coherence, and relevance of the matter must be maintained throughout. This will ensure that the candidates fetch good marks for the writing component.

How do I prepare for the translation questions?

For translation questions, it is important that candidates prepare not only the English language but also the other language from or into which the sentences will be translated (e.g., English to Hindi) or retranslated (e.g., Hindi to English), respectively. Therefore, the candidates should study from the diglot versions (for example, bare acts both in English and Hindi) of the bare acts so that they remain in touch with both languages. They can also refer to a relevant dictionary for this purpose. 

FAQs on the reading component of english language section in judiciary exams

How do I read quickly?

Reading is an extremely important component of the judiciary exams. Reading quickly will save a lot of time, which could be used by the candidates to answer difficult or lengthy questions. However, the ability to read quickly comes after a lot of reading practice. Nevertheless, they can follow this quick tip that wherever the language is very easy, just start skimming through those portions, but as jargon or typical language starts appearing, go slow and try to understand the text deeply. 

How do I improve reading comprehension?

As stated earlier, reading comprehension can be mastered only with assiduous practise of the same. So, without any shortcuts, the candidates must build the habit of reading voraciously every day. Read different kinds of texts and adopt the practice of active reading, as explained above. These tips will surely improve the reading comprehension skills of the candidates.

FAQs on the vocabulary component of english language section in judiciary exams

How do I memorise unending vocabulary?

It is absolutely true that vocabulary is unending, and it is a painstaking task to memorise the same. It is equally true that knowing all the vocabulary is not possible. However, the candidates’ aim should be to know the commonly used vocabulary. For the same, the candidates can try different creative methods like vocabulary games, journaling, mnemonics, etc. to learn vocabulary. All such techniques have been described above.

Do I need extensive active vocabulary for judiciary exams?

The knowledge of vocabulary of any individual can be classified into the categories of passive and active. Passive vocabulary is that knowledge of vocabulary that an individual may have but does not actively use in day-to-day parlance. 

On the other hand, active vocabulary is the knowledge of vocabulary that the candidates use in their daily speech. Merely passive vocabulary is not sufficient for judiciary aspirants, and they must have extensive active vocabulary so that they can answer the questions with full understanding, read and understand the text, and also write in an articulate manner.  

How do I upgrade my active vocabulary?

Active vocabulary can be improved by conscious application of the vocabulary learnt. The candidates must practise answer or judgement writing using the bank of vocabulary information that they must have gathered by reading. While practising for the interview stage, they must also try to articulate using appropriate and accurate words. If the candidates have adopted the technique of vocabulary journaling, then they must write two to three examples of every new word to understand the same in and out and to be able to use them actively in routine communication.

Is it necessary to use advanced vocabulary in judiciary exams to score well?

It is a general myth that the use of advanced and fancy vocabulary leads to good marks and impressions. However, contrary to this popular notion, the usage of simple and easy to understand vocabulary that can fully capture the intended meaning of the author and explain the same to the readers is valued the most. It is to be remembered that judiciary exams are not creative writing competitions; they instead aim to test the knowledge of the candidates and their ability to express it. Ultimately, the judicial officers will have to deal with ordinary people who may not be very conversant with the English language; thus, if the candidates are not able to express themselves simply, their advanced vocabulary and language skills will not be much use. Thus, the candidates must focus on building vocabulary, but they should not unnecessarily complicate their writing or speech just to flaunt their vocabulary. Rather, keep it simple and meaningful.

How do I improve my english pronunciation?

Candidates should also pay attention to their pronunciation, as the same will be evaluated in the interview. To improve pronunciation, the candidates must not forget to check the same when they search for the meaning of a new word. They can also mention some other word whose pronunciation they know to indicate the pronunciation of a word.

For example, to understand the pronunciation of the word ‘bow’, we may write ‘cow’ beside it to signify that both words are similarly pronounced. 

FAQs on the grammar component of english language section in judiciary exams

How do I remember the grammar rules?

There is no shortcut to remembering the grammar rules. The candidates have to understand them, and with continuous usage thereof, they will automatically become familiar. The candidates must, however, be selective about the source from which they study English grammar. As said earlier, the sources must be credible and insightful. Some of the credible sources can be found here.

How should one understand complicated grammar questions?

Complicated grammar questions will become understandable by the candidates only when they are familiar with the grammar rules. Moreover, familiarity with such questions can also be developed through mock tests and practice worksheets. Thus, the candidates must first do the homework of studying the grammar rules, and then they must practise them over and over to gain familiarity with the types of questions asked in the judiciary exams.

What are the unmissable grammar topics for judiciary exam preparation?

As reinforced time and again in this article, the candidates must first try to complete the whole syllabus and not leave any topic. However, if there is paucity of time or the candidates need to revise certain important topics, they must definitely cover topics such as parts of speech, subject-verb agreement, tenses, word formation, sentences, and idioms and phrases. This should give them a fair idea of the grammar rules commonly asked in judiciary exams.


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Laws against corporal punishment in school

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This article is written by Shamyana Parveen. This article would enable the learners to gain a basic understanding of the problem of corporal punishment given to the children in school in the Indian context and knowledge about the legal position and legislative provisions regarding corporal punishment in India. This article would also give information about the negative effects of corporal punishment on children and the need to ban it.

It has been published by Rachit Garg.

Table of Contents

Introduction 

Corporal punishment is described as the earliest form of punishment in criminology. Corporal punishment is the conjugation of physical pain upon a person’s body as punishment for a crime or septicity. It is a form of punishment that involves physical force that causes pain or difficulty to the child. The major forms of corporal punishment are slapping, spanking, or using any object to punish a child. Some other forms of punishment involve mental torture of the child through humiliating, threatening, or using abusive language with the child. In India, corporal punishment is common in schools. This form of punishment not only takes place in government schools but also in private schools for disciplining children. 

The need for law reform to prohibit corporal punishment means ensuring that children are legally protected from assault just as adults are even when the assault is inflicted under the guise of discipline or correction. 33 countries have prohibited corporal punishment in all settings including the home government. Further, 18 countries are publicly committed to the prohibition of corporal punishment in all settings.

India seems to protect children from being subject to punishment in schools through laws laid down under the Indian Penal Code (IPC), 1860. However, several loopholes are there in the laws even in cases where brutal crimes and punishments are inflicted upon the children.

Meaning of corporal punishment

The United Nations Committee on the Rights of the Child defines corporal punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. In view of the committee, corporal punishment is invariably degrading. There is no proper definition of corporal punishment in Indian laws.

Corporal punishment is a daily routine punishment for some children. It may be in a physical form, staring, scolding, or abusing. This punishment is for children for their bad actions, bad behavior, and violence. It is believed that the punishment makes children realize that their act was unacceptable, wrong, unneeded, and/or disappointing.

Corporal Punishment is completely needless and without any goodness in it. Many cases of immoderate beating have only underlined this fact. A teacher who beats and loses his/her temperament and uses his/her stick to teach the offending a lesson eventually loses their respect in their own eyes.

Corporal punishment given in excess may damage some organs of the student’s body permanently and may create a lifelong terror in the mind of a learner. Many children abandon their studies, fall into bad company, and become hardhearted rogues due to such actions.

Some of the methods for putting an end to corporal punishment in schools include physical punishment which means any action that causes affliction, torture, injury, and strain to the child. These are provided by the National Commission for the Protection of Child Rights (NCPCR). It encompasses making children assume an unbearable position like standing on a bench, standing against the wall in a chair-like position, etc. Mental harassment is the incorporeal treatment which includes sarcasm, calling names, scolding using humiliating adjectives, etc.

Usually, punishing a child to control him/her was a culturally accepted practice in India. Similarly, using corporal punishment in schools was also considered a normal part of pedagogy. It is shocking that at this point in the 21st century, we are still fighting entrenched attitudes that hitting children is acceptable. Prohibiting corporal punishment is a fundamental human rights obligation. Humiliation and abusive treatment are not only a violation of the child’s right to protection from violence but also counterproductive to learning. Corporal punishment teaches the child that violence is acceptable and so perpetuates the cycle of violence.

Corporal punishment in school

Corporal punishment in the context of school is to beat a student in response to the student’s undesired behaviour or language. It also refers to the emotional or mental humiliation of a child.

Corporal punishment is given to children in schools to punish them because of their misbehaviour or to discipline them. Corporal punishment is very common in many countries. Different countries use different forms of corporal punishment such as spanking paddles, cane, scales, or any other objects to spank children. 

Examples of corporal punishment in school

Physical punishment

Examples of some of the common forms of physical corporal punishment in schools reported in India include the following:

Spanking with an open hand; pinching on any part of the body; pulling the ear lobes; slapping; punching on the face; pulling the hair; beating with the use of a cane, wooden scale, leather belt, or any blunt object; hitting the students head against the wall; throwing hard objects at the student; not allowing the child to sit; making the student stand on the bench; standing with a school bag on the head; making the student kneel; making the student take a crouching posture; asking the student to stand in the hot sun; forcing the student to run many rounds in the playground; forcing the student to remove the clothes sometimes in front of the school assembly or a class; not allowing the child to visit the toilet; depriving mid-day meals; seize in the library, toilet, classroom, or any closed place in the school, etc.

Mental harassment

Mental harassment is a non-physical punishment to the child who is being treated with such torture that is deleterious to the academic well-being of the child or damaging the inner mental health of the child. Some examples of mental harassment are: mockery that hurts or is beneath the child’s dignity; making jokes about a child in front of others is a type of mental torture; calling funny names or berating or humiliating and terrifying; labeling the children on their caste, on their parent’s background or their financial status; ridiculing their health issues or that of their family especially such as HIV or AIDS and Cuba closet; belittling a child in the class due to his or her incapability to perform best or to meet the teacher’s expectations of educational gaining; Most children who perform poorly in education are the children who need special care attention or such children have learning disability, hyperactivity disorder, or attention deficit, mild development delay, etc. 

Discrimination

Discrimination means an adverse opinion and behaviour towards a child because of his/her social class, gender identity, profession, colour, ethnicity, region, and non-payment of fees offered. In society, a student facing discrimination is acknowledged under the 25% reservation to be treated unfavourably. 

Discrimination includes behaving in school with social attitudes and prejudices in some communities by commenting on some children or making jokes about them based on their caste, religion, social status, or gender. For example, toilet or floor cleaning tasks assigned by caste, making a team for playing games assigned by gender, recognition through 25% of reserved seats under the Right to Education Act, 2009, or non-payment of any authorised charges. Commenting on someone’s educational ability based on his or her caste, gender, or community; or refusing to give mid-day meals or books from the library, or uniforms or any other facilities to the children because of their background, religion, gender, or social status they belong to or deliberate wanton neglect, are all examples of discrimination. 

Legal protection for children in India

  • Protection of Corporal Punishment Act, 2013 is to ensure that no child is subjected to any physical punishment or mental harassment.
  • Institutions provide education or care to children and provide a safe and nurturing environment for the children to grow.
  • Government or government-aided schools provided free and compulsory elementary education to every child.
  • Schools receiving financial assistance from the government.
  • Government-sponsored residential schools implement strict regulations and oversight to ensure a safe and nurturing environment.
  • Non-governmental schools protect children from corporal punishment by fostering a culture of non-violence and respect.
  • Madrasas have a responsibility to provide a safe environment for their students by adhering to educational policies that respect the dignity and rights of children.
  • Children’s homes, also known as orphanages or residential care homes, have a fundamental duty to protect the children in their care from all forms of violence, including corporal punishment.
  • Children being educated in home study groups that are well-informed about child rights and positive discipline strategies can ensure that children learn in a safe, supportive, and non-violent setting.

Laws against corporal punishment in school

International Laws

Article 28(2) of the United Nations Convention on the Right of the Child (UNCRC)

Article 28(2) of UNCRC necessitates the countries to “take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present conversation”.

Article 29(1)(b) of the United Nations Convention on the Right of the Child (UNCRC)

Similarly, Article 29(1)(b) of the Convention highlights that the “State parties agree that the education of the child shall be directed to the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations”.

Article 37(a) of the United Nations Convention on the Right of the Child (UNCRC)

Article 37(a) of UNCRC requires State Parties to make sure that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”.

Article 19(1) of the United Nations Convention on the Right of the Child (UNCRC)

Article 19(1) requires States to ensure all relevant judicial, executive, social, and educational measures have been taken to protect the children from all forms of torture, bodily injury or mental violence, abuse, negligent treatment, or victimization, including sexual abuse.

Some countries with a policy agenda have doubled to address violence against children. The assumption of administration prohibiting the use of brutality as a form of disciplining or penalizing is stimulus with many states having adopted a legal prohibition of inhuman punishment including life imprisonment and capital punishment. An increasing number of countries have in place an extensive veto on corporal punishment in all settings and many others have a limited prohibition. The majority of the northerly states have rules and regulations that are completely opposed to corporal punishment, including states like California, Michigan, Lava, and a few more.

India is a member of the United Nations which has ratified the United Nations Convention on the Rights of the Child, the UNCRC, and is therefore fully committed to the prohibition of corporal punishment in all settings. The CRC states the learning environment should respect and discipline children’s dignity in school and punishment should be administered in a manner consistent with the child’s dignity. 

Indian laws against corporal punishment in schools

The Government of India in 2012 had accepted recommendations of global bodies to prohibit corporal punishment in all settings. Corporal punishment in schools in India is banned for children aged 6-14. From 2007, the Juvenile Justice Care and Protection of Children Act, 2015, prohibits all forms of corporal punishment in ‘alternative care settings’ for children. The National Policy on Education 1986, modified in 1992, states that “corporal punishment will be firmly excluded from the educational systems”.

Constitutional Provisions and their Interpretations:

Article 21: Article 21 of the Constitution of India lays out the right to dignity. This article also talks about giving free and compulsory education for children up to the age of 14 years.

Article 39(e): Article 39(e) of the Constitution of India ensures that the good physical condition, and firmness of workers, men, women, and children of adolescents are maintained and they are not mistreated. This is to be executed by the state and the state is the one who needs to work gradually towards it.

Article 39(f): Article 39(f) of the Constitution of India aims to draw attention to the state that they make provisions and give children opportunities and facilities to enlarge healthy living.

The Indian Penal Code, 1860 (IPC)

Some provisions of the IPC relating to different levels of bodily injury and intimidation can be used to bring suits against offenders of corporal punishment as opposed to children in an institutional setting.

Section 83 of the IPC lays down that any act that is done by a child from the age of seven to twelve, who is of immature understanding, would not have said to have committed any offence – This means a child who has not attained the age of maturity in understanding to judge what the nature and the consequence of his conduct are on that occasion.

According to the above Section 83 IPC, it is clearly said that if any children who do not do his/her homework or does not follow the dress code between the ages of 7 to 12 years then the school should not punish the child or there should be no scope of corporal punishment.

Several other Acts also have provisions related to corporal punishment. At present, on the contrary, many cases of corporal punishment are reported, but there are many unreported cases.

In the principle of Doli Incapax, children of the age of 7 and below are prohibited from receiving any type of punishment. But, in Indian Laws, there are no provisions that cover corporal punishment and also there is nothing that penalises the offender of physical harm. As in the above-mentioned provisions, it does not make any difference between the adults and the children. In schools and other institutions, corporal punishment is considered to be broadly believed as a custom. The above provisions of the IPC can be used for corporal punishment but they are hardly ever used.

Criminal liability in India for corporal punishment requires malice on the part or from the teacher’s end. In many situations, negligence and unreasonableness can also replace malice and can create a ground for injuring a student or causing simple injury under the Indian Penal Code.

RTE Act, 2009

RTE Act, 2009: It came into force on the 1st of April, 2010. This Act prohibits any form of “physical harassment” or “mental harassment” under Section 17(1) of the Act, further making it a punishable offence under Section 17(2)

According to Section 17(1), no child shall be treated with any physical punishment or mental harassment. If anyone breaches the provisions of this subsection, they shall be liable to punitive action under the service rules applicable to such person.

Sections 8 and 9 of the RTE Act state that the child belonging to disadvantaged groups and weaker sections are not discriminated against, which the appropriate government and the local authority must make sure of.

The RTE Act does not preclude the application of other legislations that relate to the violations of the rights of the child. Thus, offenders of corporal punishment could be booked under the IPC and the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), 1989 as well. The National Commission for Protection of Child Rights (NCPCR) and the State Commissions for Protection of Child Rights (SCPCR) have been entrusted with the task of monitoring children’s right to education under section 31 of the Right to Children to Free and Compulsory Education Act, 2009. Thus, the NCPCR or the SCPCR shall have the authority to inquire into complaints regarding corporal punishments.

Though the Government has imposed a ban on corporal punishment, the practice of corporal punishment is still prevailing. The fact is that no action is taken against the erring teachers. The ultimate truth is that the concept of corporal punishment is deeply rooted in the psyche of Indian teachers. In the 21st century, we need to adhere to a new technique under which children should be effectively disciplined and taught.

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

The Juvenile Justice Care and Protection of Children Act, 2015 is an important law that criminalizes the acts that may cause a child’s mental or physical health.

Section 23 of the Act

Criminal litigation

Section 23 of the Juvenile Justice Act, 2015 states that if anyone having the actual charge of all control over the juvenile or the child physical attack, relinquishes, reveals, or intentionally neglects the juvenile or causes or procures him/her to be assaulted, relinquish, explore, revealed, or neglected in any manner, is likely to cause such a juvenile or the child unnecessary mental or physical suffering, and shall be punishable with imprisonment for a term which may extend to six months or fine or with both. The Scheduled Castes and Tribes Prevention of Atrocities Act 1989 can be used to prosecute an adult in the general category who inflicts corporal punishment upon a scheduled caste or scheduled tribe child.

Section 75 of the Act

Section 75 of the Juvenile Justice Act prescribes punishment, rigorous imprisonment of up to five years, and a fine of up to Rs 5 lakh for cruelty to children. If the child is physically incapacitated, develops a mental illness, or is rendered mentally unfit then imprisonment may extend up to ten years.

Section 82 of the Act

Section 82 of the Juvenile Justice Act states that any person in charge of or employed in a childcare institution who subjects a child to corporal punishment to discipline the child shall be liable to fine and imprisonment for repeated offences.

Role of NCPCR and SCPCR in protection from corporal punishment in schools

NCPCR guidelines about Corporal Punishment

Every school should have to constitute a monitoring cell for corporal punishment or place a drop box where the unfairly treated person can drop his complaint. Every school must develop a mechanism and frame clear-cut protocols to address the grievances of students.

The National Commission for Protection of Children’s Rights in 2007 issued very specific instructions for removing corporal punishment in schools. These instructions have identified strategies for addressing difficult situations in schools. Schools and teachers perceive some behaviours of children as problematic and the prevalent practice is to respond to them with punishment of varying degrees. Some such situations that arise in schools that invite punishment are not keeping to time and cleanliness regulations, academic-related issues, not meeting classroom expectations of school authorities, being troublesome, offensive behaviour, causing hurt or injury to others, vandalising, etc. The school should have a clear protocol to guide the teachers about which situation needs assessment and intervention by the school counsellor and which one needs immediate intimation to higher authorities at the school and parents. If an attempt at resolving the problem is not satisfactory, the parent could then be referred to a specialist, a child and adolescent psychiatrist, or a counsellor. The child and adolescent psychiatrist and counsellor should help children learn behaviours that help them develop a sense of self-discipline that leads to positive self-esteem. 

The National Commission for Protection of Child Rights has recommended that there is a need for multidisciplinary inputs and networking as no sector of child abuse can be treated as independent of the other sectors psychologists, educationists, school teachers, parents, social workers, lawyers, and the children should be involved. In its letter dated 26 May 2009 the chairperson of the National Commission for the Protection of Child Rights urged the district collectors, district magistrate, and deputy commissioners of the districts in India to take action to stop corporal punishment of children.

Negative effects of corporal punishment in schools

It is now globally recognised that punishment in any form or kind in school comes in the way of the development of the full potential of children. Children learn from adults that hitting is an acceptable means of dealing with difficult situations or conflicts. When the teachers or parents are hitting the children in continuation then the anger issues develop in them more and they also hit their children in the future in the same way as they think that this is the only way to punish or discipline a child. Corporal punishment leads to adverse physical psychological and educational outcomes including increased aggressive and destructive behavior, vandalism, poor school achievement, poor attention span, increased dropout rate, school avoidance, school phobia, low self-esteem, anxiety, somatic complaints, depression, suicide and retaliation against the teachers that emotionally scarred the children for life. Children subjected to punishment prefer aggressive conflict resolution strategies with peers and siblings and they do not consider it a violation of their rights. There is an association between corporal punishment meted out to children and maladaptive patterns in later life such as aggression and delinquency.

Corporal punishment of children with disabilities

Children with disabilities are especially likely to experience violence from adults in the home, at school, and elsewhere. An aversive intervention is the use of something unappealing to punish a child with a disability or to eliminate or reduce the maladaptive behaviour of a child with a disability. The causes or scope of the incapability of some children with disabilities to acknowledge the danger, protect themselves, or report their experiences, their dependence on others to provide care, and the disbelief they may encounter if they report violence. Children with disabilities are particularly vulnerable to violent punishment. It was found that children with disabilities were significantly more likely to experience severe physical punishment than children without disability. In some countries, children with disabilities experience extremely severe corporal punishment in institutional settings.

Corporal punishment in schools and the right to health

Corporal punishment violates children’s rights to enjoy their life of health issues through direct physical harm and mental torture, which affects children’s cognitive and mental development. It also negatively affects children’s cognitive development. It develops aggression in children and affects children’s moral values and relationships with families and other people.

Role of school administration in corporal punishment

  1. All members of the school should ensure that all children enjoy their rights as per the RTE Act.
  2. All children should be treated in school in a manner that motivates children to stay in school and learn.
  3. No physical punishment is given by anyone to the children and it is not permitted.
  4. Mental harassment should not be permitted in school.
  5. No form of discrimination should be permitted in school based on religion, caste, disability, gender, class, etc.
  6. The school environment should be kept free of any fear, trauma, or prejudice by all the members of the school.

Case laws on corporal punishment in schools

In Kolkata’s very famous school of Rouvan Rawla of La Martinier of Boys School, a 12-year-old student committed suicide. The child had been canned repeatedly by the school’s principal, and after four days of the incident, he was found hanging in his room. The investigation was related to whether the caning of the principal had led to the child killing himself and as per the maximum doubt it had been said that it was the principal who had canned the student for which he had taken such serious steps.

In the case of Ganesh Chandra Shaha v. Jinraj Somani (1965), it had been decided that if a teacher who had caned the student and had inflicted blows on the fist thus causing bodily injury and loss of a tooth was held to be criminally liable even though the defence of the teacher was that he was acting in good faith and for the benefit of the child. It is said that if the teacher exceeds their authority and inflicts bodily injuries then they would be liable under Section 88 of IPC and the defence of good faith would also not be allowed.

Kishor Guleria v. The Director of Education Directorate (2012)

The case of Kishor Guleria v. The Director Of Education Directorate (2012), revolves around the issue of corporal punishment in an educational setting.

Facts:

Kishor Guleria was employed as a Physical Education Teacher at New Era Public School, Mayapuri, New Delhi, since 1983. He was charged with gross misconduct for administering corporal punishment to students and was accused of physically touching parts of the girls’ bodies, which was considered sexual abuse. 

Judgement

The Delhi High Court upheld the decision of the Delhi School Tribunal, which dismissed Guleria’s appeal against the disciplinary action taken by the school. The court found that Guleria’s conduct was criminal in nature and attracted penalties under the Indian Penal Code. It was concluded that the punishment of removal from service, which did not disqualify him for future employment in any recognized private school, was not disproportionate to the misconduct. The case underscores the legal and ethical stance against corporal punishment and the importance of upholding the dignity and rights of students in educational institutions.

Hasmukhbhai Gokaldas Shah v. State Of Gujarat (2008)

The case of Hasmukhbhai Gokaldas Shah v. State Of Gujarat (2008), pertains to a judgement delivered by the Gujarat High Court on November 17, 2008.

The appellant, Hasmukhbhai Gokaldas Shah, was a supervisor at the school and Arvindbhai Purshottam, was a student belonging to a scheduled caste who allegedly tampered with the appellant’s scooter, which ignited. The appellant thereafter abused and kicked the student. The entire incident was considered indiscipline on the part of the student and the father of the student was made to sign an apology. The student ended up committing suicide. 

The appellant was convicted by the trial court for offences under Sections 323 and 306 of the Indian Penal Code (IPC) and Sections 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The appellant was sentenced to various terms of imprisonment for the different offences, including life imprisonment for the offence under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Additionally, the court directed that a portion of the fine collected be paid to the original complainant as compensation

Ambika S. Nagal v. State Of Himachal Pradesh (2020)

Incident:

In the case of Ambika S. Nagal v. State of Himachal Pradesh (2020), on September 24, 2012, two school girls were found to have fallen from a cliff near Navbharat at Kala Dhaank, Shimla. They were declared dead upon arrival at the hospital.

FIR:

An FIR was registered on September 30, 2012, against the mathematics teacher (Ambika S. Nagal) and the principal of the school for abetting the girls to commit suicide under Section 306 IPC.

Investigation Outcome:

The investigation concluded that no case under Section 306 IPC was made out against the Principal or Ambika S. Nagal. However, evidence suggested that Ambika S. Nagal had slapped the deceased girls, leading to charges under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and Section 323 IPC for causing mental and physical suffering by assault.

Court’s Decision:

The High Court’s judgement focused on the charges of corporal punishment and the rights of the child. The court concluded that there was no case made out under section 306 IPC for abetment of suicide against the petitioner. 

Conclusion

Punishment has always temporarily stopped behaviour. But when we punish, the thinking or learning brain of that person is not functioning. The moment an attack happens, irrespective of whether it is physical, emotional, or anything else, it affects the upper brain which is responsible for learning.

Corporal punishment usually results in some form of injury and has massive psychological effects. Corporal punishment in schools is embarrassing and shameful for children and it also includes mental torture. Some alternatives can be used instead of corporal punishment, such as detention. Detention is used in the way children and teachers spend time doing homework or providing tuition, and in this way, teachers can counsel students instead of punishing them.

Corporal punishment is an act of violence against a child that has no place in modern society. It can cause the child long-term physical and psychological damage and can lead to negative behaviour. Corporal punishment is an ineffective way to discipline a child as it does not teach them how to be responsible, it teaches them to fear their parents. It also does not provide a child with a sense of justice and fair play as they may feel that they do not have a say in their punishment if they do something wrong. If we are serious about the rights and well-being of our children, corporal punishment must be banned in all forms once and for all.

All forms of corporal punishment are a fundamental breach of human rights. Prohibiting corporal punishment is a fundamental human rights obligation. Legal measures for a total ban on corporal punishment are essential for stopping such punishments in families, schools, and caregiving institutions. It’s important that the government develops a national policy on corporal punishment and formulates and implements appropriate legislation to eliminate all forms of violence against children including a total ban on corporal punishment. Corporal punishment should no longer be perceived by parents, teachers, or caregivers as a legitimate measure of child-rearing, disciplining, or education. Such a paradigm shift alone can ensure total elimination of corporal punishment and we have a long way to go.

Frequently Asked Questions (FAQs)

What are the instruments commonly used in corporal punishment for children?

Instruments like bae hands, objects such as belts, paddles, or odeon poon.

What is physical discipline?

Physical discipline is a punishment method used by schools, parents, etc. that use force with the intention of causing physical hurt or pain.

What are the effects of corporal punishment on children?

Corporal punishment can increase children’s behavioural problems. This increases negative outcomes, including physical and mental health, and increased aggression.

Are there alternatives to corporal punishment?

Yes, many forms of nonviolent discipline can be effective, like positive reinforcement, setting clear expectations, and logical consequences.

References


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Impact of content marketing on consumer behaviour : an overview

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issue securities

This article has been written by Angshuman Pal pursuing a Diploma in Content Marketing and Strategy course from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Introduction

With the revolution and evolution of the Internet and the rapid change in information distribution systems, consumers today are much more conscious of their needs compared to previous decades. The rise of internet savvy customers and the fall of traditional consumers are changing market dynamics. Studies by various research organisations at various levels show that customers today are more aware, well-informed, and confident in their purchase decisions compared to the past. Collection of vital information about any product and related studies, comparison between various similar products, analysis of data from various web sources and vivid price or feature comparison are more common activities among customers these days. 

With this healthy behavioural shift, the Internet gave consumers the freedom to make more choices at their fingertips. With this column, we try to highlight  the impacts of content marketing on consumer behaviour across various economies for the better understanding of business owners, marketing consultants, academics and researchers.

Evolution

The unique transformation in today’s global business environment, happening due to rapid change in internetisations, gave birth to topics like ‘consumer engagement’ on every business house’s discussion table. The connection between consumers and product brands is technically tagged as ’consumer engagement’ and is thoroughly analysed as a vital point in today’s business context. A study shows that if a customer is constantly connected with any specific brand or product, she or he generally develops a passion for the brand and slowly builds a constant engagement through her/his phono or handheld device. Highly engaged customers generally demonstrate loyalty to the brand and return to buy more products again and again. Companies find a highly engaged customer easily approachable, and tag them as a first level target for promoting their brand(s) and products. Hence, constant customer engagement is found to be one of the most useful online marketing strategies.

Understanding content marketing

Primary objective(s) of content marketing

The primary objective(s) of content marketing is to build loyal customers for quick and constant revenue turnout. The process emphasises developing and maintaining constant engagement between brands and customers at a high level to develop trust and long relationships. This enablement prioritises customer education at various levels with useful information about brand products.

Content marketing involves generating and publishing useful and engaging contents in a consistent and timely sequence. It requires a good level of innovation from content experts, as the engaging content can be audio, video, informative column or article, informative white paper in pdf format, podcast interviews, a Q&A column or session, recorded or live webinars, etc. These contents must be available online, easily searchable and accessible on demand around the clock. This is achieved with the esteemed use of a wide variety of backend technologies. The objective of this range of  content(s) is to empower, enable and influence probable buyers with all relevant information they need so that they can feel confident and quickly decide on a purchase.

Further deep-down into content marketing

The word ‘content’ has a very old root and was originally used, especially in the publishing industry, back when publishing and media came into being. Columns, images, and graphics were used as ‘content’ for print media like newspapers, journals and magazines, whereas audio files, videos and motion graphics were ‘content’ for broadcasting domains like radio and television. In today’s digital era, anything and everything produced digitally and published on digital platforms is termed ‘digital content’. Hence, write ups, documents, words, images, audios and videos are tagged as ‘digital contents’.

Irrespective of platform (for old traditional content or modern digital content), the concept of producing popular, attractive and engaging content is constant and always in demand.

The concept of using content as a marketing tool for gaining the concentration of probable clients, or rather stimulating buyers to buy, has been part of active business strategy for generations.

Business organisations across the world are always in search of making quick money; and the continuous generation of engaging, appealing or stimulating content has given birth to ‘content marketing’ in this information age.

Change in market dynamics

Rapidly growing use of internet

A study shows that the number of internet users is growing rapidly across the globe, and  Asia is home to half of the internet users throughout the world. Therefore, there is a mad rush to focus on Asian consumers. Demand for high quality engaging content is ever increasing and companies are exponentially increasing their investment in understanding Asian consumers.

Lifestyle shift

With the rapid development of technology, the adoption of smartphones is ever increasing throughout the globe, especially on the Asian continent, as per the available research data. With the rapid adoption of mobile-first lifestyles in Asia, in line with phenomenally growing purchase power, the immediate need  for effective strategies to engage and tap super mobile-savvy Asians is skyrocketing among global consumer brands. That’s why, here, success is directly dependent on how robust the brand strategy is and how skilled the content creators are at engaging and converting millennial minds.

The unique situation

However, compared to other parts of the world, the Asian region is much more dense in population and super diverse in ethnicity, language and culture. This reality is prompting a huge demand for more and more creative experiments in content creation that can quickly and dynamically develop a strong understanding and precisely analyse consumer behaviour. This rapid change created a unique opportunity for the unpresidential expansion of fertility in content marketing. Other parts of the world are also not lagging behind.

Rapid expansion of e-commerce ecosystems

Where there is money, there’s a mad rush. We’re seeing it in the Asian region these days. Along with the economy, the e-commerce ecosystem in Asia  is ever expanding. Hence, there started a mad rush among global giants for penetration in the grassroots of Asia. Organically, a few determined local parties are also rapidly encashing opportunities in their homeland. Pioneer business entities across all continents are in massive engagements with innovative content marketers to tap and encash. This momentum is generating a huge flow of educational, entertaining and engaging content for all brands.

Organic growth across all platforms

Content creators are trying everything to engage consumers on YouTube and Instagram. Hence, we see organic growth in viewership across all global platforms like YouTube, TikTok, Instagram, LinkedIn, Netflix and FaceBook, as well as ever increasing viewership on local platforms like Bigo, Douyin and BiliBili. Even content marketing platforms are increasing every day. Slowly, other parts of the world, like Latin America and Africa, along with the Baltic Belt, are joining this race.

Current trends in content marketing

Since we passed the challenging pandemic era, it’s been observed that people are spending a good amount of time from their daily schedule on digital social platforms, and this trend, along with consumption time, is increasing exponentially.

Analysing this trend, dynamic corporate houses have a massive plan to encash it as soon as they can. New tools and techniques are being developed every day, facilitating better ways to engage client end users in the name of enablement.

The collection of data on purchase behaviour and deep analysis give lots of insight into customer’s mindsets. Silent observation of every change in actions and behaviour gives a huge advantage to content creators in deciding the next course of action.

The game of retaining customers across all digital platforms is going bigger and bigger, giving hype to the content marketing industry as the next big thing in the industrial revolution.

Impact of content marketing on consumer behaviour

Therefore, no organisation, irrespective of their size or nature of business, can think of business expansion without an established, fully functional content marketing department. Many industrial sharks have started thinking of content marketing as the only way to do successful business in today’s context.  

It’s giving further rise to capturing data on consumer behaviour and parallel analysis of it for better understanding so that it can be immediately effectively monetized without fail. Content marketing has a significant impact on consumer behaviour by influencing their purchasing decisions and brand perceptions. It provides valuable information, builds relationships, and creates a positive brand image, leading to increased brand awareness, engagement, and sales. Here’s a closer look at the impact of content marketing on consumer behaviour:

  1. Brand awareness: Content marketing effectively increases brand awareness by reaching a wider audience. Engaging and informative content on platforms like social media, blogs, and websites captures the attention of potential customers, creating a lasting impression and boosting brand recall.
  2. Engagement and loyalty: Content marketing fosters engagement with consumers by providing relevant and personalized content that resonates with their interests. Interactive content formats, such as quizzes, polls, and videos, encourage active participation, building stronger bonds and fostering customer loyalty.
  3. Thought leadership and credibility: Creating high-quality content establishes a brand as a thought leader in its industry. In-depth articles, whitepapers, and webinars demonstrate expertise, building credibility and trust with consumers. This positioning influences their perception of the brand as a reliable and knowledgeable source of information.
  4. Purchase decisions: Content marketing plays a vital role in influencing purchase decisions. Well-crafted content that addresses customer pain points, provides solutions, and compares products or services helps consumers make informed choices. Positive reviews, testimonials, and case studies further strengthen the brand’s credibility and increase the likelihood of a purchase.
  5. Customer advocacy: Satisfied customers who engage with compelling content become brand advocates. They share, like, and comment on content, spreading positive word-of-mouth and amplifying the brand’s reach. This advocacy helps attract new customers and reinforces the brand’s reputation.
  6. Brand differentiation: Content marketing allows brands to differentiate themselves from competitors. Unique and compelling content sets the brand apart, creating a distinct identity and positioning in the consumer’s mind. This differentiation can lead to increased brand preference and market share.
  7. Customer retention: Engaging and valuable content keeps customers connected with the brand, fostering long-term relationships. Regular newsletters, updates, and personalized recommendations nurture customer loyalty and reduce churn.
  8. Search Engine Optimization (SEO): Content marketing supports search engine optimization efforts by creating keyword-rich content that ranks well in search engine results pages (SERPs). This organic visibility drives traffic to the brand’s website, increasing brand exposure and generating leads.
  9. Social media engagement: Content marketing is integral to social media engagement. Shareable and visually appealing content attracts followers, encourages interactions, and builds a community around the brand. This engagement strengthens customer relationships and enhances brand visibility.
  10. Customer experience: Content marketing enhances the overall customer experience by providing support, answering questions, and addressing concerns. Responsive and informative content demonstrates the brand’s commitment to customer satisfaction, fostering positive emotions and building lasting relationships.

Content marketing strategies and associated impact(s) on consumer behaviour

Defining viral contents

If content is circulated by consumers spontaneously to other consumers of similar mindsets and creates power across different media platforms, resulting in generating demand spontaneously and rapidly, it is technically termed viral content by content marketers.  

Factors that lead to viral content

Content behaves contagiously when consumers or the target audience finds the information it contains, whether it is practically useful or humorous, and passes it on to others with the motive of helping to gain knowledge, enhancement or enablement. 

Impact of viral content on consumer behaviour

Viral content(s), if created with content drafting skills, will result in:

  • Free flow of content and brand information across various social media.
  • High brand visibility.
  • Spontaneous development of fan follower community for the brand.
  • Strengthening of brand image.
  • Saving vital costs and pains in brand building.
  • Rapid improvement in revenue turnout.

Why is content marketing impacting consumer behaviour

Most content marketing strategists are planning everything possible to take a hold on consumer behaviour.

In today’s context, consumers are so confident that authentic and relevant contents are only appreciated. Furthermore, brands are generating personalised content mapping with consumer behaviour with the help of technologies. The quality of content plays a vital role in building trust and credibility, empowering  customers and influencing their purchase decisions. Further extending this trust factor is fostering brand affinity, which results in loyalty as a bonus point.

With technological advancements, systematic customer segmentation with age, sex, demography, purchase power and other behavioural preferences is enabling precise targeting. These, in turn, result in better penetration and stronger connections with the target audience. The objective of better conversions is smoothly achieved as these enablements are leading to stronger customer engagements every day.

Social media and influencer marketing are also creating very strong impacts on consumer behaviour. It’s been found that consumers today  are more likely to demonstrate unpresidential trust in most of the recommendations of peers and influencers they follow while making their buying decisions.

Conclusion

As a result, we see a dramatic shift in focus from conventional stereotype advertising  to impacting content marketing that is bringing energising values and enablement to consumers.  The content marketing industry is rapidly transforming consumer behaviour and driving every band’s business success.

References

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