Corporate governance extensively defines the machine by which companies are directed and controlled. It performs an exceptionally vital function within the courtship between a corporation and its employees. Corporate governance, done properly, can help to ensure transparency and develop accountability and fairness. This provides good relations between the company-men as well. But then, of course, when corporate governance is bad, there can be problems like favouritism and unequal power relations where employee voices are not heard. This article examines how corporate governance affects inter-employee relations and points out that whether or not an enterprise achieves long term success is highly dependent upon the degree to which it implements ethical business practices and communicates with its employees in objective ways about their work needs as well as what they can expect from their employers, both materially (including benefit plans) and personnel policies, such as guidance.
Impact of corporate governance on employee relations
As is frequently said, corporate governance is the set of rules and practices by which an organisation operates and makes decisions in company affairs. It means reconciling the interests of a company’s many stakeholders, including shareholders, management, customers and suppliers alike; other financiers (such as employees who get stock options); and the government at all levels, from local communities right up to state power. Before taking a close look at corporate governance, we probably should first reflect on one of the important stakeholders in this field employees. But company governance has a completely critical effect on worker members of the family and the ability repercussions may be some distance-reaching–no longer most effective for companies, but additionally, proper for their employees.
Employer vs. employee relations may be defined as the way in which a company manages its relationship with employees. These categories cover a variety of topics, such as pay and working conditions, job stability and the right to protest. If management focuses on good employee relations, a favourable environment for employees to work in and an increase in job satisfaction can result.
One can see the influence of corporate governance in many areas, one of which is employee relations. Secondly, the board Its composition-the proportion of company directors and degree of employee representation on this governing body—can have a profound effect on labour relations. A few studies have indicated that such companies enjoy superior employee relations. Employees who work for them are generally more satisfied with their jobs than those employed where there is no staff representation on the board and tend to quit less often (in part because institutionalised channels exist through which employees can voice grievances). This is because employee representatives on the board can serve as employees ‘ambassadors. Their opinion and their concerns are always heard before business decisions (the so called “on company’s floor decision-making”) made and put into practice thereafter.
A company’s corporate governance structure also affects its compensation policies and practices. In this regard, executive compensation has been especially controversial in recent years because of the growing discrepancy between executives ‘income and that of average workers (one top bank had a CEO whose pay was 70 times greater than that of an entry-level clerk). The corporate governance structure of a company can indicate how executive compensation is decided and whether it renders shareholders’ or workers ‘interests. Indeed, firms that have well-established corporate governance practices are much more likely to implement egalitarian compensation policies and drive greater long-term value creation for all stakeholders–employees included.
In terms of employee voice, too, the enterprises adopt different standards for governance. Firms with proper corporate governance arrangements enhance employee voice and provide the necessary mechanism for employees to let their opinions be heard. This means employee surveys, suggestion boxes and formal lines of communication, such as representatives at the board or work councils. When companies allow employees to voice their opinions on matters that affect them and invite them into the decision-making process, they ensure a better relationship with staff. They create an atmosphere of trust and harmony in operations where ideas are freely shared between different levels.
And corporate governance can have an impact on employee relations too. It affects the values and culture of a company, which Kung sees as very important to how employees relate to one another every day at work. A company’s governance structure and practices influence its values and attitudes towards progress. For instance, firms with an emphasis on ethical behaviour and social responsibility in their corporate governance vary greatly in their treatment of employee relations. This is because workers working for a company that conducts business with high standards of ethics and aims to do some good in the world can take pride and feel proud to work there.
While companies with poor governance may prioritise shareholders ‘short-term interests over the employees’, this leads to an unfavourable employer image. Examples of bad corporate governance include everything from exorbitant executive compensation to a lack of transparency in how decisions are made and exercised to the practice that has evolved into unaccountability for wrongdoings. When staff believe that their interests are not being well represented or they feel upfront ignored, low morale will rule and there may even be labour disputes.
Importance of corporate governance on employee relations vs ISO 26000
It is widely accepted that the concepts of corporate governance and CSR are intimately related, playing a major role in defining relations between a company and its workers. Corporate governance is the mechanism by which authority over a company’s affairs, operations and decision-making processes is distributed both within its internal structure and still more significantly accepted as legitimate from outside. But CSR, which is a business approach aimed at sustainable development that provides economic, social, and environmental benefits for everyone involved in the chain of production-from workers to consumers-was designed by Princeton’s arms dealers. The focus of this paper is to investigate how the CG regulations affect employee relations and compare them with ISO 26000– the international standard for responsible corporate behaviour.
The links between corporate governance and employee relations When a company’s policy of affiliated agency is determined, this will directly affect the professional lives–the concerns, goals and actions-of all employees. Depending on the quality of governance practices, it is possible to have a framework for decision-making and responsibility so that employees ‘rights and interests can be protected.
Corporate governance systems organise power and decision-making processes. These good things help create a clear workplace and clearly show who is responsible. Workers can no longer hide behind confusing ideas or use more than one place to control things – they might even be suspected by others but still bring lies with them, like the terrible sin of all those years.
The idea of fairness knows that we can’t let the bosses and big shots take care of treating workers in a company without help from something like a board. A worldwide group has agreed to use rules about fair work to inspire worker groups and make companies follow good practices. So, if big bosses make sure there is protection against people who expose unfairness in their own organisations – it helps everyone do things by themselves that are helpful too.
This can make workers feel happy and eager for their jobs, which should increase work output and turnover rates. Doing what’s right in a company is pushed by good leadership rules. A good company will have strong rules and steps to stop bad behaviours, like dishonest actions or cheating.
It should also stop any inside trading and keep things steady and friendly between people. It’s against the rules for bosses to bully their workers. By doing this, businesses will be able to set up a safe and respectful work environment for their staff. This also increases workers’ motivation and the average time they stay with the company.
In the field of business management, staff pay and rewards can also be affected by this. Company rules stop businesses from giving unfairly low or high pay. This way, big businesses can give good money to their workers, which shows how much these people help the company meet its goals. They need to look at what others in similar industries are doing when it comes to paying employees fairly and competitively. Also, boss systems often give rewards to workers for doing really well. People feel proud and work harder to get these awards. This makes them improve their own skills, which raises the whole company’s standards in turn.
In the area of people matters, ISO 26000 tells us to treat workers fairly and do everything we can for their safety at work. It also encourages everyone in a company or group to work together as one team. The standard stresses the need to protect employees ‘sexual rights, ask for safe working conditions and a healthy working environment, prevent arbitrariness in decision-making, impose administrative sanctions smoothly, such as performance appraisals.
ISO 26000 requires that companies observe fair standards regarding labour and thus must obey the law on wages and working hours. They should also make sure to respect international labour conventions for both forced and child labourers under contract–both for themselves and where such employees are used in their supply chain. This means respecting the rights to freedom of association and collective bargaining for employees, paying fair wages and providing all legally required benefits in timely and adequate quantities. It also precludes forced or involuntary labour as well as child labour (i.e., work that would deprive children’s futures).
With respect to occupational health and safety, ISO 26000 requires companies to set up a system and process for identifying, reducing, or mitigating workplace risks. It requires such give and take as adequate training, protective equipment, and regular health-and-safety checks. Therefore, companies must place the welfare of their employees first. In this way, everyone wins and there are no incidents at work.
Role of staff and workers is a salient concern in ISO 26000
The standard emphasises the necessity of two-way communication between employer and employee, which will engender trust on the other’s part and encourage greater participation by workers in decision making. It stresses the importance of publicised and understandable company policies, practices, and performance. It fosters a culture of direct communication, and it allows the employees to participate in advancing the overall social and environmental goals of society.
Corporate governance and ISO 26000 also affect the way companies staff their payrolls. Guidelines for fairness and transparency, promoting ethical conduct within organisations They create a structure as well. Business governance or corporate-govern Related standards, on the other hand, are more internal in nature and only apply to a company’s own operations. In contrast with these narrower views of CSR, nonprofit organisations have resolved their concerns even further through greater involvement by business leaders worldwide beyond linguistic nuances. ISO 26000 then takes an international perspective, which is why ISO 26000 can be a useful instrument for companies to harmonise their business activities with international CSR standards and provide evidence that they are working towards worldwide sustainability.
Employee relations are also affected by corporate governance and ISO 26000. Corporate governance is fairness, openness, and responsibility within an enterprise. The ISO 26000 standard is a guide to ethical and sustainable commercial activity. The application of these principles to one’s business process creates an environment in which employees are valued and respected, ultimately leading not only towards higher productivity but also engagement.
Impact of ISO 26000 on corporate governance and employee relations
The International Organisation for Standardisation (ISO) has developed a set of standards called ISO 26000 to give guidance on corporate social responsibility. The scope of content ranges over many topics, from corporate governance down to employee relations. The impact of ISO 26000 on governance in the workplace is great and benefits employees as well as corporations.
The standard also stresses the need to respect employee rights and treat people fairly. It emphasises that organisations must respect basic worker rights, including freedom of association, equality before the law and equitable pay. In this way, companies that implement ISO 26000 encourage their employees to enjoy human rights, thereby improving work environments and increasing employee satisfaction.
ISO 26000 recommends companies create channels for employees to raise their grievances and offer suggestions. This not only gives employees a say in the decision-making process, but it also helps promote an atmosphere of openness and transparency. Experts agree that when the opinions and concerns of employees are respected, they will naturally be more enthusiastic and feel motivated to put their best efforts forward.
Employee development and employee training are the core of ISO 26000. It also gives organisations incentives to develop employees, invest in talent and cultivate skills. This approach would help companies provide a more human atmosphere, which encourages staff participation and loyalty.
One of the key aspects addressed by ISO 26000 is that organisations should assist their employees in finding a balance between work and personal life. This could include flexible hours, working from home and other programmes to improve wellbeing. However, if workplaces focus more on the welfare of their employees and eliminate stress, that leads to greater job satisfaction and loyalty.
Diversity and inclusion in the workplace are major themes of ISO 26000. This promotes equality and the treatment of all employees, regardless of their gender, race, age, or disability. Diversity, of course, gives companies an advantage in terms of getting a variety of views and opinions, which can lead to innovation and sound decision-making.
In the decision-making process, though, we still push for organisations to communicate with stakeholders (especially employees). This is what’s mandated by our own standard. In other words, they must be engaged in the formulation and execution of policies that concern them. When organisations allow employees to have a say about things that concern their working lives, they can create mutual trust and identification.
Corporate governance and employee relations both strongly influence ISO 26000. Through this standard, organisations can strengthen employees’ rights, development, and training opportunities; work-life balance policies; diversity; and inclusion. What this means is a livelier and more contented employee base, which directly affects the company’s success. The most fundamental reason why organisations want to implement ISO 26000 is because they wish to be more responsible as well as take care of their employees’ interests.
Corporate governance, stakeholder relations and human resource management
Effective corporate governance includes relations with stakeholders and human resource management. So, all these three things should be done smoothly in the organisation itself. Though the concepts are separate, there is a symbiotic relationship between them that cannot be separated.
Corporate governance is the system of procedures and structures through which a company operates. It also relates to relations between the company’s management, board of directors, shareholders, and other stakeholders. The primary focus of corporate governance is to ensure that the company is managed transparently, responsibly and ethically.
The latter is stakeholder relations, which involves the cultivation of relationships between a company and’ its diverse stakeholders, such as employees and investors. Stakeholder relations mean comprehending and handling stakeholders’ interests, demands, and conflicts.
HRM is the strategy used to manage human resources, or a firm’s most precious asset-its employees. The activities covered by human resources management include recruitment, selection, training, and development; performance evaluation; compensation systems (pay); and employee relations. In sum, HRM seeks to ensure that the organisation has what it takes–the right people with the appropriate skills and attitudes–to meet its objectives.
All three concepts—corporate governance, stakeholder relations and HRM—are closely linked to each other. Corporate governance will play an important role in encouraging good relations between the firm and its stakeholders.
If a company and its management are transparent, accountable and have ethical standards, then people will accept them, which increases the company’s goodwill and ensures long-term prosperity.
HRM is also closely tied to stakeholder relations. The goal of helping the company compete is to comprehend and seek out solutions for meeting potential stakeholder groups ‘expectations. For instance, if a company’s employees place high importance on work-life balance, the human resources department can design working mechanisms to accommodate them. In the same way, if customers seek products and services of quality, then HR can work on attracting skilled employees who can meet these standards.
Corporate governance and stakeholder relations are directly affected by HRM practices. For example, any company that focuses on diversity and inclusion in hiring is more likely to hire a wide range of people and can find the best decision-makers at the management level. All this, furthermore, can benefit the company’s corporate governance by reducing the risk of groupthink and encouraging more robust discussion.
Corporate governance and relations with stakeholders are intimately linked to human resource management. He feels that a company’s governance must be sound and open to foster stakeholder trust for its human resources practices to comply with corporate strategy. The same can be said for HRM practices, which influence corporate governance and relations with stakeholders through their provision of diverse representation at all levels. Hence, organisations must make all three aspects part of their long-term plans for survival.
Conclusion
Employee relations in a company cannot be divorced from corporate governance. She maintains that the existence of a valid corporate governance system ensures transparency, accountability, and fair treatment for employees. In turn, this increases job satisfaction, motivation, and commitment among employees. But on the other hand, an inadequate corporate governance structure may lead to a lack of trust between employees and management, unfair treatment towards employees at work or few chances for participation by workers-which ultimately influence employee relations. Thus, companies need to put emphasis on management improvement to encourage employee relations and benefit the company.
In terms of employee relations, the effect on corporate governance is considerable and will likely have far-reaching consequences. Firms that excel at corporate governance also invariably have stronger employee relations, greater job satisfaction and lower turnover rates. Moreover, their sensitive consideration for the long-term value creation of all participants is higher. On the other hand, corporations with poor governance structures will always place short-term financial considerations above those of workers.
This article is written by Kruti Brahmbhatt and is an exhaustive exploration of the functions of the International Court of Justice. The article provides in-depth research relating to various provisions, procedures and functions of the International Court of Justice. The article also mentions the composition of the International Court of Justice, the election procedure of the members, important cases and certain limitations of the International Court of Justice.
The main aim of the United Nations is to promote peace, security, harmony and the protection of human rights among its Member States. The United Nations has six main organs: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the Secretariat Council and the International Court of Justice.
The International Court of Justice is located at the Peace Palace in Hague, Netherlands. It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The International Court of Justice deals with dispute resolution between the member countries in the United Nations. It deals with various disputes regarding diplomatic relations, environmental protection, hostage-taking etc. However, it does not interfere with the state’s internal disputes or any disputes regarding nationality.
What is the International Court of Justice
The International Court of Justice is the only such organisation that works for the settlement of disputes between the two states. The International Court of Justice is established under the United Nations Charter as a principal judicial organ. The International Court of Justice works according to the Statute of the International Court of Justice. The statute of the International Court of Justice is divided into 5 Chapters and 70 Articles.
The Member States of the United Nations Charter are parties to the International Court of Justice. There are a total of 193 members of the United Nations. As per Article 35 of the Statute, if a state that is not a member of the United Nations is a party to the case, then in such a case:
The court shall decide an amount to be paid to the International Court of Justice against the expenses incurred by the court.
The state shall not pay this amount if it is already contributing to the expenses of the court.
Composition of International Court of Justice
The functions and composition of the body of judges in the International Court of Justice are established as per the statute of the Court of Justice. The International Court of Justice consists of 15 independent judges. They are elected by the United Nations General Assembly and Security Council.
Under Article 1 of the Rules of Court (1978), the members of the judges are elected according to the Statute of the International Court of Justice.
The composition of the International Court of Justice is specified in Article 2 to Article 33 under Chapter I of the statute of the International Court of Justice. The composition of the International Court of Justice is as follows:
Fifteen judges
The International Court of Justice is composed of 15 judges for a term of 9 years. These judges are elected by the United Nations General Assembly and Security Council. The candidate must get an absolute majority from both the General Assembly and the Security Council.
All parties to the statute of the International Court of Justice have a right to propose a candidate.
Ad hoc judges
When the parties to the suit of the International Court of Justice do not have their own nationality judges on the bench, in such a situation, the state has the option to select a person to sit as a judge ad hoc in that particular case.
Quorum
The minimum of nine members of the court is essential for the functioning of the court as per Article 25(3) of the statute of the International Court of Justice.
As per Article 25(2) of the statute of the International Court of Justice, the number of judges available must not be less than 11 and the rules of the court allow the absence of one or more judges on the basis of rotation and other circumstances.
President and Vice- President
The President and Vice-President are elected by the members of the Court. The election is conducted every three years by secret ballot.
There is no role of nationality; the candidate must get an absolute majority of votes. The President and the Vice-President can be re-elected.
The President has the right to cast a vote in case of a tie.
With the assistance of various committees, the President shall direct work, supervise, and administer the work of the court.
In case of absence or any kind of inability of the President, the Vice-President shall replace him/her for that time limit. Vice-President shall receive daily allowances for the days he/she acts as President.
Registrar
The registrar is the authority responsible for all the departments and divisions of the Registry.
The tenure of the registrar is seven years and can also be re-elected.
The registrar is the only authorised person to allot and direct work of the registry.
Apart from this, the registrar performs many other duties, such as judicial duties and administrative and diplomatic duties.
Election of the Members of the Court
The statute of the International Court of Justice provides a specific provision regarding the election and representation of the members of the court. The rules are as follows:
The candidate must have high moral character and have been appointed as the highest judicial officer in their respective countries.
The Secretary-General shall make a list of all the nominated persons and submit it to the General Assembly and Security Council.
The candidate can only be appointed when he/she gains an absolute majority in both the General Assembly and Security Council.
The members of the court shall be elected for a term of 9 years. The judges who are elected in the first election, those 5 judges’ terms, shall expire at the end of 3 years and by the end of 6 years, an additional 5 judges’ terms shall expire.
For instance, if today 15 judges are elected, then on completion of 3 years, 5 judges’ terms expire (they can be re-elected). After the completion of the next 3 years, the other 5 judges’ terms shall expire. This is a cycle.
Two judges of the same nationality cannot be appointed to the International Court of Justice. The judges are considered independent magistrates.
The President and a Vice-President are elected from the 15 members of the court.
Obligation of the Members of the Court
After being elected as a member of the court, the members must follow certain rules and regulations, which are as follows:
The members of the court may not perform any political or administrative functions. The members of the court cannot practise any other position of such a professional nature.
The members of the court may not act as agents, counsels or advocates in any case, and if they have participated in any such role before, they may not participate in the decision-making of any such case.
Except for judicial vacations, periodic leave or any illness, the court has to be permanently present in session.
Due to any special reason, if a member of the court feels that he should not be part of the case and if granted by the President, then he should not sit in that particular case.
The members shall make solemn declarations before making any decision or exercising their powers. The members must use their powers impartially and conscientiously.
The members of the court have to comply with the above mentioned provisions. In case of doubt regarding any such matter, the court shall settle the point of doubt by its decision.
Privileges to the Members of the Court
The members of the court are entitled to receive certain benefits and privileges under the statute of the International Court of Justice:
Members of the court are entitled to receive an annual salary.
The President shall receive a special annual allowance and on the days on which the Vice-President has acted as President for that duration, the Vice-President shall receive a special allowance for each day.
The salaries, allowances and compensation given to the members are free from all taxes.
Members of the court are entitled to diplomatic privileges and immunities while undertaking the business of the court.
Chambers and Committees
Chambers
As per Article 26 of the Statute of the International Court of Justice, the court can form chambers of one or more judges to deal with certain kinds or categories of cases. Section C of the Rules of the International Court of Justice, Articles 15–19, deals with the procedure and rules regarding the formation of the Chambers under the International Court of Justice.
Types of Chambers
Summary proceedings: As per Article 29 of the Statute of the International Court of Justice, a Chamber shall be formed of five members. These five members shall be President, Vice-President and other three members. Apart from them, there shall be two members who shall be appointed as substitutes. These summary proceedings are meant for speedy disposal of the cases, at the request of the parties to the State.
For categories of cases: these chambers, which are constituted for dealing with certain categories of cases, consist of at least three judges. Article 26(1) of the International Court of Justice mentions such kinds of cases. These types of chambers can be formed for dealing with cases relating to labour cases and cases regarding transit and communication.
For a particular case: the courts may after consulting with the parties regarding the constitution of the chamber as per Article 26(2) of the International Court of Justice may form a chamber to hear and decide on the particular case. The parties request and approval for such a chamber is necessary.
However, at present, no such chamber is in operation.
Committees
There are three kinds of committees in the International Court of Justice that deal with different objectives. The three committees are as follows:
Budgetary and Administrative Committee: This committee comprises President, Vice-President, and other four or five judges. This committee deals with the administrative functions of the full courts.
Rules Committee: The function of this committee is to advise the court regarding procedural issues and working methods.
Library Committee: This committee’s function is to look into the library’s programme for acquisition and upgrading.
These are the three committees that deal with different functions of the International Court of Justice.
Competence of the International Court of Justice
The International Court of Justice may entertain various cases involving the parties to the statute or any such matter that may fall under international treaties or conventions. Chapter II of the Statute of the International Court of Justice specifies the competence of the court with respect to the matter at hand. The provisions prescribed under the Chapter are as follows:
Parties to the cases
There are certain conditions prescribed under Article 34 of the Statute of the International Court of Justice, which says that only statesare eligible to be parties in court cases. The Member States or Non-Member States of the United Nations can be parties to the cases before the court.
This also means that if any person or individual urges justice from the International Court of Justice, then he is not competent to be a party to the suit. Article 34 of the statute of the International Court of Justice does not allow the following parties to participate in the suit.
Individual
Corporations
Non-governmental Organisations
Any group of organisations or
United Nations Organs
It restricts any such entity other than a State from becoming a party to a suit.
Non-member State parties to the case
Article 93 of the Charter of the United Nations and the statute of the International Court of Justice allow Non-Member States to be parties; however, they must abide by the following conditions:
As per Article 35(2) of the statute of the International Court of Justice, the conditions under which other countries access the International Court of Justice will be laid down by the Security Council, subject to special provisions contained in international treaties.
Then such Non-Member States may become parties to the case. The Court shall not discriminate between the Member State and Non-Member State in the case; both would be treated equally.
As per Article 35(3) of the statute of the International Court of Justice, the Non-Member State of the United Nations has to bear the expenses incurred in the case. The Curt shall decide an amount to be paid to the International Court of Justice against the expenses incurred by the court. The state shall not pay this amount if it is already contributing to the expenses of the court.
This allows the Non-Member State to become a party to a suit.
The ambit of the International Court of Justice
The International Court of Justice has the major responsibility of solving disputes between the parties that have directly approached or arisen out of any charter or treaty. The parties may approach the International Court of Justice under the matters that are provided under Article 36 of the statute.
The Court may entertain matters regarding the following matters as prescribed under Article 36(2) of the statute of the International Court of Justice:
Any legal dispute regarding the interpretation of a treaty.
Any dispute that may arise regarding any question of international laws.
The parties may approach the court if there is any such fact that may amount to breach of an international obligation, if proven.
In case of any breach of such obligation, the parties may approach for the nature or extent of the reparation against such breach.
The states are required to make a declaration regarding the acceptance of the obligations and jurisdictions of the International Court of Justice regarding the above-mentioned legal disputes.
Legislatures applicable
The International Court of Justice shall resolve the disputes or advise the council as per the international laws given under Article 38 of the Statute of the International Court of Justice.
The Court has to decide a case by applying the following provisions:
The rules that are expressly recognised by contesting states in a general or particular international convention.
The international custom is used as a piece of evidence to prove that a general practice has been accepted as law.
The general principles of the laws are recognized by civilised nations.
The courts may refer to the judicial decisions and teachings of highly qualified publicans.
Apart from this, the courts have the power to make decisions based on equitable and good conscience if parties to the suit agree.
Functions of the International Court of Justice
The International Court of Justice has two major functions, which include the settlement of legal disputes between two states and providing advisory opinions. They are as follows:
Settlement of legal disputes submitted by the state (contentious cases)
The states may agree to bring the case before the International Court of Justice for a peaceful settlement of the legal disputes between the two States. This is one of the major responsibilities vested upon the Court to decide on a particular case. The decision of the Court is binding upon both parties to the matter.
Another important fact is that this judgement cannot be further appealed; it is a final judgement as mentioned under Article 60 of the statute of the International Court of Justice. However, under certain conditions, revision applications can be made on account of new facts or factor discovery.
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
This case was regarding the dispute concerning Somalia and Kenya. In 2014, Somalia filed an application against Kenya for a maritime boundary. Both states have claimed maritime space in the Indian Ocean. Somalia applied to determine the boundary areas at 200 nautical miles. It even claimed a violation of international obligations by Kenya.
Jurisdiction of the case
Somalia had filed an application under:
Article 36(2) of the statute of the International Court of Justice.
In 2015, preliminary objections were raised by Kenya, challenging the jurisdiction of the Court and admission of the application.
In 2017, the Court rejected the preliminary objections raised by Kenya in 2015, it also held that the Court had the necessary jurisdiction to entertain the application.
From 2019 till 2021, Kenya postponed the public hearings on the merits of the case; however, in 2021, the hearings took place in hybrid mode, in which Kenya did not participate.
On October 12, 2021, the Court delivered its judgement which stated that:
Somalia and Kenya did not have an agreed maritime boundary line; hence, the Court drew a new maritime boundary line between Somalia and Kenya.
The Court rejected the claims of Somalia regarding violations of international obligations over the disputed area.
Advisory opinion
The International Court of Justice has another essential function under its advisory jurisdiction. Numerous agencies and organisations reach out to the International Court of Justice to seek its advice on various issues. They may approach for any need of advice regarding the interpretation of International Law pertaining to any issues at hand.
However, this function is limited in its opinion and does not have any binding force over parties. Chapter V of the Statute of the International Court of Justice deals with the advisory opinion under Article 65, which says that the International Court of Justice may give its advisory opinion on any legal matter whenever any such request is made. The request can be made by only such organs or states which shall be authorised or shall be in accordance with the Charter of the United Nations.
The request shall be made in written format, pointing out the direct matter on which the advice is needed; additionally, this request must be annexed with the required documents.
The organs and agencies that are authorised to make requests for an advisory opinion are as follows:
Various organs of the United Nations, which includes the General Assembly, Security Council, Economic and Social Council, etc.
Specialised Agencies such as the International Labour Organisation, World Health Organization, etc.; and
Related organisation, which includes the International Atomic Energy Agency.
These are authorised to seek advice from the International Court of Justice.
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965
In this case, according to Article 65 of the statute, the General Assembly of the United Nations had requested the advisory opinion of the Court with regard to the matter of the decolonization of Mauritius. The issue began when the United Kingdom continued its administration in the Chagos Archipelago even after Mauritius gained its independence. The advice was requested for two important aspects:
Whether the process of decolonization was completed by giving independence to Mauritius?
Whether the United Kingdom has the obligation of decolonization and is there any violation of international law by its administration?
The Court gave the opinion that it had no reason to decline the request of the General Assembly and had jurisdiction to advise. The Court opined that the decolonization was not done lawfully and that the United Kingdom had the obligation to put an end to its administration in the Chagos Archipelago.
Other functions
Apart from the above two major functions, the International Court of Justice plays a vital role in the following issues:
The International Court of Justice clears up any confusion with respect to treaties, conventions or any such international agreements.
The International Court of Justice promotes human rights and works for peace, security and safety of mankind.
These are the overall functions of the International Court of Justice.
Procedure of the Court
The International Court of Justice accepts two kinds of cases, i.e., contentious cases and advisory opinions. Both of these cases are dealt with in separate ways as established under the rules and statutes of the International Court of Justice. The official languages of the Court are French and English. As per the parties agreement, the language would be selected for a particular case in hand.
Chapter III of the statute of the International Court of Justice deals with the provisions of the procedure in the courts.
Procedure for Contentious Cases
In contentious cases, the proceedings can be instituted in two different ways. The two ways are as follows:
By way of notification in special agreements: In such cases, the two or more states jointly lodge proceedings in court for dispute resolution. This is more of an agreement for solving the dispute and hence there is no applicant state or respondent state in such cases.
By way of application: Herein, one of the parties files an application against the other party for any kind of violation.
Initiating proceedings
The first step is to open the case before the court. The parties have to notify the Court about their special agreements or file a written application addressing the registrar regarding the matter of dispute. This provision is prescribed under Article 40 of the Statute of the International Court of Justice.
Interim protection
As per Article 41 of the Statute of the International Court of Justice, the Court, in order to protect any wrong that may happen or continue with respect to the rights of either party, may order provisional protection until the final order is delivered.
Phases of proceedings
There are two phases in the proceedings under Article 43 of the statute of the International Court of Justice. These include:
Written Phase: This consists of memorials, counter-memorials, replies and all the important documentation for all the other parties to the case and the court. This shall be made through the registrar within a fixed period. Certified copies of these above–mentioned documents must be shared with the other party.
Oral Phase: The oral proceedings include the examination of witnesses, experts, counsels and advocates.
Concluding Arguments
The Court has the power under Article 48 of the statute of the International Court of Justice to order the conclusion of each party’s final arguments and ensure the form and timing of connecting and collecting the evidence.
Judgement
The judgement must include the grounds on which the decision is based. The judges are free to deliver their separate opinions. The decision is final and has no scope for appeal. However, parties may file for revision on the discovery of facts or any other matter that might change the decision. Such a revision application must be made within six months of the delivery of the new facts.
Procedure for the Advisory Opinion
In the case the organisations or states want to seek insight from the International Court of Justice for any matter in hand, they may:
Make a request
Any of the authorised bodies can request it as per Article 65 of the statute of the International Court of Justice. This request can be made in written form. The request must include all the documents relating to the question and the request must mention the question exactly, which brings clarity to the request made.
Issue of notice
The registrar shall issue a notice to all the concerned parties to appear in court regarding the request for the advisory opinion.
Written statements and oral proceedings
The parties and organisations shall be allowed to make written or oral statements within a time frame decided by the Court. The written proceedings are not as complex as in the contentious cases.
As per Article 66(2) of the statute of the International Court of Justice, the Registrar shall notify the relevant States and organisations to the case by special or direct communication to present their final written statement to the Court or shall notify for the oral statement in the open court within the time period provided by the President. The intention of the Court is to gather all the relevant information on the case.
Additionally, under Article 66(4) of the statute of the International Court of Justice, States and organisations are given a chance to express their views and opinions and comment on the comments of other states or organisations in that matter. The time limit shall be decided by the court or the President. In due course, the registrar shall also share the comments and written submissions with the parties having similar statements.
Concluding proceedings
The advisory opinions are given in the open court as per Article 67 of the statute of the International Court of Justice. However, the opinions are not binding on the parties but certain regulations and instruments do have binding effects on the parties.
To exercise the functions of the advisory opinion, if the court needs to, it may apply the provisions of the procedure for contentious cases.
Judgement
Articles 94 to 100 of the Rules of the International Court of Justice prescribe the procedure to be followed for delivery, interpretation and reviewing the judgement of the Court. The Court shall notify the parties of the dates on which it is going to read its judgement. The judgement on various subjects shall be read in the open court where the parties to the suit can have access. The public can access these deliveries through a video link created.
The judgement shall consist of the following, as per Article 95 of the Rules of the International Court of Justice:
It must be mentioned whether the judgement is given by court or by chamber.
It must contain the date on which it was read.
It must have names of the judges, parties, agents, counsel and advocates for the parties.
It must contain the summaries of the proceedings and must include the submissions made by the parties, statement of facts,and the reasons on the basis of law.
It must mention the operative part of the judgement, its decision and state details regarding any cost if imposed.
It must mention the final decision of the courts and the ratio of majority.
As per Article 95(2) of the Rules of the International Court of Justice, the judge has the liberty to attach his or her individual opinion. This opinion may or may not be in agreement with the final judgement. In case, the judge does not want to explain in detail about his opinion then he may make a declaration for the same. This declaration shall be a brief statement regarding the opinion of the judge.
As per Article 95(3) of the Rules of the International Court of Justice, a copy of the judgement must be signed and sealed. It has been stored in the archives of the Court and another shall be delivered to the parties to the suit.
The registrar shall deliver a copy of judgement to the following:
The Secretary-General of the United Nations,
Members of the United Nations,
Other States which shall be entitled to appear before the court.
Limitations on the functioning of ICJ
Despite vast rules and regulations, there are some areas in which the International Court of Justice has to face some limitations. These limitations, in a certain way, hinder the court’s efficiency and ability to become an ultimate solution against violations of international laws. A few of the limitations are listed below
Jurisdiction
The court does not entertain cases other than those of the states, which means individuals cannot seek justice under the International Court of Justice.
The International Court of Justice cannot take cognizance of any matter on its own. The Court can only deal with the matter when both parties consent to it.
The jurisdiction of the international court is narrowed as it does not include criminal cases.
Appeals
The decision of the International Court of Justice is the final judgement. It does not have appellate authority against any dissatisfaction with the judgment. This acts as a huge discouragement for the States to consent to the proceedings in the International Court of Justice. It definitely acts as a limitation for the international justice system.
Enforcement
The major drawback of the judicial mechanism regarding the International Court of Justice is its lack of ability to enforce its judgement directly on the parties.
In cases where the party fails to act on the judgement delivered by the International Court of Justice, the other party has no other option but to approach the Security Council.
A recent example of this is the case of Ukraine v. Russia, in which Ukraine filed a complaint against Russia alleging that Russia had claimed wrongful genocide in Ukraine with the objective of justifying its invasion of Ukraine.
Ukraine requested that the Court suspend the military operations of Russia in Ukraine. However, Russia refused to accept the Court’s jurisdiction and did not even agree to participate in the proceedings under the Court.
Russia had filed preliminary objections regarding the Court’s jurisdiction and claimed that the application could not be admitted in the Court.
The court delivered its provisional orders, in which the court suspended Russia’s military operations and ordered that both parties refrain from taking any such operations that may expand the dispute between them.
Russia has blocked its judgement’s enforcement via the Security Council using its veto power, which highlights the inefficiency in enforcement of the court’s decision.
India and International Court of Justice
There have been four judges of a total of Indian nationality in the International Court of Justice. The first Indian judge at the International Court of Justice was Sir Benegal Rau (1952-1953). He was followed by Nagendra Singh (1973-1988). Raghunandan Swarup Pathak served his term from 1989-1991.
Currently, Judge Dalveer Bhandari has been a Member of the International Court of Justice since 27 April 2012 and has been re-elected unanimously. His term ends in 2027. India has been involved in six different cases with the International Court of Justice. One of the most famous cases is stated below:
Kulbhushan Jadhav case (2019)
Brief facts
On March 3, 2016, in the case of Jadhav (India v. Pakistan), Pakistan arrested and sentenced an Indian national, Mr. Kulbhushan Jadhav. Pakistan claimed that he was performing acts of espionage and terrorism for India.
He was arrested on the Balochistan border, near Iran. It was claimed that he was illegally entering Pakistan. At the time of arrest, he had an Indian passport with him, as per Pakistan’s allegations.
India had filed an application against the arrest of Mr. Jadhav. According to India, Mr. Jadhav was kidnapped in Iran and transferred to Pakistan for the purpose of interrogation.
India also claimed that Pakistan did not inform about the arrest and Indian consular officers were not allowed to correspond with or arrange any legal representative for Mr. Jadhav.
Pakistan had raised three objections against the application filed by India:
The allegation of abusing process: The two main arguments of Pakistan were that, firstly, India failed to indicate the court’s provisional measures and secondly, it had other dispute settlement mechanisms under Articles II and III of the Optional Protocol.
Abuse of rights: Pakistan alleged that India failed to provide evidence as to Jadhav’s nationality.
Unlawful conduct: The Vienna Convention does not apply as the acts were related to terrorism and espionage.
The Court did not favour Pakistan on any of its objections and upheld the application of India.
Contentions of India
India’s contention against Pakistan was that it had failed following acts;
Rights of Mr. Jadhav: Pakistan did not inform Mr. Jadhav about his rights under Article 36 of the Vienna Convention.
Inform India: Pakistan did not inform India without any delay about the arrest and detention of its nationals which is again a violation of the Vienna Convention.
Consular access: Pakistan had failed to provide consular access, and the officers were not allowed to conserve or appoint legal representatives for him.
The Court held that Pakistan had breached an obligation under Article 36(1)(a) and (c) of the Vienna Convention. Further in the proceedings, India requested the Court declare the death sentence given by Pakistan to be a violation of International law and give safe passage to Mr. Jadhav.
Judgement
The International Court of Justice held that Pakistan had violated international laws but did not uphold India’s request for safe passage, on account of which the Court ordered, with a 15:1 ratio, the following:
Restraint Pakistan from enforcing the death sentence given by its military court.
Provide consular access to Mr. Jadhav.
Inform him of his rights regarding the Vienna Convention.
Effectively review and reconsider the conviction and sentence in accordance with the Vienna Convention.
Conclusion
The International Court of Justice has proven itself to be an important organ of the United Nations and has worked efficiently in dealing with both contentious and advisory matters. Despite certain limitations, it fulfils its duty to act as a peace-making organisation. There have been almost all efforts to deliver balanced and non-biased judgments and opinions.
The International Court of Justice upholds the value system of international law enforcement and has established itself as a strong international judicial body. The system can be made more effective when work is done to remove the drawbacks and loopholes.
Frequently Asked Questions (FAQs)
Which language is used in the International Court of Justice?
As per Article 39(1) of the statute of the International Court of Justice, English and French are the languages used in the Courts as per the preference of the parties to the suit.
In case the parties to the suit do not agree upon one language, then, in such a case, as per Article 39(2) of the statute of the International Court of Justice, they shall be allowed to plead in their preferred language. The Court will deliver judgment in both languages; however, it will choose one version of the judgement to be the official one.
In case any state requests to use any other language apart from English and French, then, as per Article 39(3) of the statute of the International Court of Justice, the Court shall authorise such language for the use of the party.
In case of a dispute of jurisdiction, who shall take the decision?
As per Article 36(6) of the statute of the International Court of Justice, the Court shall decide whether the Court shall settle the matter or not.
What if the party to the suit in the International Court of Justice does not appear before the Court?
As per Article 53 of the statute of the International Court of Justice, if the other party who is present may call upon it and the Court finds it well according to the facts and law, then the Court might order in favour of the present party.
Are judgments given by the Court binding on the parties?
The orders passed by the International Court of Justice are binding on the parties to the cases in contentious cases. In the case of the advisory opinion, the parties or UN organs can decide whether to implement, accept or reject the opinion given by the International Court of Justice.
Who is the current President and Vice-President of the International Court of Justice?
As of 2024, the President of the International Court of Justice is President Joan E. Donoghue from the United States and the Vice-President of the International Court of Justice is Kirill Gevorgian from the Russian Federation.
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This article is written by Sai Shriya Potla. This article elaborates on Section 143 of the Companies Act, 2013, which deals with the powers and duties of auditors, auditing standards, and auditing processes in government companies.
It has been published by Rachit Garg.
Table of Contents
Introduction
Financial statements are an essential element in the business activities of a company. The financial statement is a written record of the financial activities and performance of the company, which includes income statements, balance statements, and statements of cash flows. It enables the company to analyse the performance of the previous financial year and aids in the formulation of new plans and decisions for the company’s growth. For this reason, the role of an auditor becomes essential for the accounting needs of a company. The auditor conducts an in-depth investigation into the books of accounts and other documents of the company, verifies them with the members of the company, and prepares financial statements and reports for the company. Apart from this, auditors also provide suggestions for better management of the company. Section 143 of the Companies Act, 2013 outlines the powers and duties of an auditor in carrying out his obligations. The Section also mentions the provisions for auditing government companies and auditing standards.
Who is the auditor
The auditor is an authorised person appointed by a company to perform the audit. The audit includes a thorough examination or inspection of the books of accounts and other documents to ensure the accuracy of the financial transactions of the company. For a person to be eligible to be an auditor for a company, he must be a qualified chartered accountant.
Every company, at its first annual general meeting, has to appoint an individual or a firm as an auditor. Such a person or firm can hold the office as an auditor until the conclusion of the sixth annual general meeting. The company will prescribe the manner and procedure for the appointment of auditors. Such an appointment must be ratified by all members of the company at the annual general meeting.
Types of auditors
Auditors are broadly classified into two categories. They are:
Internal Auditors
External Auditors
Internal auditors
An internal auditor is a trained professional employee appointed by the company who works for the company management. The internal auditor must be a Chartered Accountant (CA), a cost accountant, or any such professional accepted by the Board members. The internal auditor performs a multitude of tasks, including examining financial documents and records of the company. After their review, they report to the company their concerns, risks, fraud, and data inaccuracies and provide suggestions for better management.
External auditors
An external auditor is a public accountant who performs audits and examines the books of accounts and financial statements of a company for his client. The external auditor is independent of his clients, i.e., the external auditor does not work for any company. The external auditor is appointed with the shareholders’ votes. Since the external auditor is independent of the company, his view is regarded as an impartial assessment of the company.
Powers of auditors
Section 143 of the Companies Act, 2013 provides the rights of an auditor, which empowers him to diligently perform his obligations.
Right to access books of accounts
Section 143(1) of the Act empowers an auditor of a company with the right to access books of accounts and vouchers of the company at all times, whether kept at the registered place of the company or any other place. The auditor also has access to the books of accounts and vouchers of subsidiaries and associate companies because the financial statements of the subsidiaries and associate companies merge with the financial statements of the parent company.
Section 128 of the Act requires every company to prepare books of accounts for every financial year. The books of accounts provide a record of the following:
All sums of money received and spent by the company and the subject matter on which those receipts and expenditures take place.
All sales and purchases by the company.
All assets and liabilities of the company.
All items of cost, materials, and labour utilised by certain companies engaged in the production of goods and services directed by the central government must be included in the books of accounts. (Section 148)
The term “voucher” includes all documents and agreements that assist the financial transactions of a company, directly or indirectly.
Right to obtain information and explanation
Section 143(1) provides that the auditor is entitled to seek any explanation or information from officers for the performance of his duties as an auditor. The term “officer” includes manager, director, any key managerial personnel, or any qualified person appointed by the instructions of the board of directors.
The auditor also has the right to inquire about the financial transactions of the company. The right to obtain all information and explanation from the officers enables the auditor to inspect the financial undertakings of the company and allows the auditor to remove any vulnerabilities and ensure the proper functioning of the company.
Right with respect to the branch offices
When multiple branch offices of a company are formed in different locations from the parent office, Section 143(8) provides that the company can appoint any other qualified person to audit the accounts of such a branch office.
Where the branch office is located in a foreign country, the accounts of such a branch office can be managed by the company’s auditor, an accountant, or any qualified person appointed by the company to act as an auditor. The foreign branch office must operate in accordance with the laws of the respective nation. The auditor of the branch office must send the report of the accounts to the company’s auditor. In case, no auditor is appointed for the branch office, the company’s auditor can visit the branch office and have access to the books and accounts of the branch office.
Rule 12 of the Companies (Audit and Auditors) Rules, 2014 states that the company’s auditor can enjoy all powers and duties mentioned in sections 143(1) to 143(4) regarding the branch office, including the right to access books of accounts and vouchers, the right to explanation and information from the officers, and the duty to prepare the audit report.
Right to remuneration
The auditor is entitled to receive the agreed remuneration for the services conferred by the auditor upon the company. Section 142 of the Act states that the remuneration of the auditor will be fixed by the members in the general meeting of the company. The remuneration of the auditor also includes the expenses incurred by him during the process of preparing the audit for the company and other facilities extended to the auditor in connection with his work. But the remuneration does not include services rendered by him other than the designated work of an auditor, even upon request from the company. Section 142 also states that the amount of remuneration for the first auditor of the company shall be fixed by the board of directors.
Right to lien
The right to lien, in a simpler sense, means the right to retain the possession of goods and securities of another person until the repayment of debt or performance of any promise. The general principles of law state that a person can retain goods and securities from the real owner in case of refusal or failure to pay the dues for the work done. Likewise, the auditor also has the right to lien against the book of accounts, vouchers, and other important documents of the client for the non-payment of money for the work done by the auditor. The Institute of Chartered Accountants in England and Wales provides a few conditions for the auditor to avail themselves of the right to lien:
The documents retained by the auditor must belong to the clients who owe their money to the auditor.
The documents must be in the possession of the auditor, with the knowledge and authority of the client. The auditor should not obtain documents by any illegal or non-authoritative means. In the case of the company’s auditor, he must receive documents through the board of directors.
The auditor possesses the right of lien only after the completion of the assigned work on the documents.
Only those documents can be retained by the auditor, and the client does not pay the fee.
Section 128 states that the books of accounts and documents must be kept at the registered office, and directors and other authorised officers also have the right to inspect the accounts. Considering the whole situation, the auditors’ right to lien is looked at as impractical for practical reasons.
Right to attend general meetings
Section 146 states that the auditor is entitled to attend the general meetings of the company. All the notices, information, and other communication regarding the general meeting will be forwarded by the officers to the auditor. The auditor has the right to receive all the information about the meetings that concern him as an auditor and is entitled to give his statements and explanations in the general meeting. In circumstances where the auditor cannot attend the general meetings, he has the right to send an authorised representative qualified to be an auditor to attend the meeting. Section 101 states that the notice for the general meeting must be sent 21 days before, either in writing or through electronic mode. The notice should specify the place, date, day, and hour of the meeting.
Section 145 provides that the auditor must inform the members in the general meeting of the observations or comments made on financial transactions in the auditor’s report that may have an adverse effect on the overall performance of the company. The auditor’s report will be open to the inspection of the members to discuss the situation of the company and find solutions to overcome it.
Right to sign audit reports
Section 145 determines that only an auditor has the authority to sign the auditor report and certify other documents of the company. Section 141 states that a person can be appointed as an auditor only when he is qualified as a chartered accountant. Section 141(2) of the Act discusses the eligibility of auditors to sign the audit report. When a firm, including a limited liability firm, is appointed to audit the accounts of a company, only the partners who are Chartered Accountants can be authorised to sign the audit report. Other members of the firm are not eligible to sign the report.
Duties of auditors
The auditor has a duty to verify the accuracy of the financial statements using the information provided by the company. Apart from these, an auditor has the following duties:
Duty to inquire on certain matters
Section 143(1) states that the auditors have the authority to inquire about certain matters for the proper execution of their duties as auditors. This is considered a right and an obligation of the auditor.
The auditor should ascertain the securities on which the loans and advances issued by the company must be fully or partially secured to avoid any potential risks against the company. The auditor also must check that the terms of such securities are not against the interests of the company or its members.
The auditor has to closely examine all transactions in the book entries and determine that such transactions are not prejudicial to the interests of the company.
Except for the investment company and banking company, the auditor must ensure that all assets, including the shares, debentures, and other securities of the company, must be sold off at a lesser price than the cost of acquisition of those assets benefiting the company.
The auditor must make sure that the loans and advances made by the company are shown as deposits.
The auditor should ensure that no personal expenses of the officers, including the director, manager, any key managerial personnel, and any other officers of the company, must be charged to the revenue account.
The auditor must inquire whether the shares allotted by the company for the cash in return have been received by the company. If the company does not receive the cash, it is the responsibility of the auditor to ensure that the position stated in the account books and balance sheets is correct; if not, the auditor must place the amount correctly in the account books.
Duty to prepare the audit report
The auditor is entrusted with the duty to prepare a report to the members of the company on the accounts and the financial statement examined by him in the general meeting of the company. The report should mention whether the company is in compliance with the provisions mentioned in the Act’s accounting rules and auditing standards. This report is known as the audit report. Section 143(2) states that the auditor must provide all the information to the best of his knowledge of the accounts and the financial statement in the audit report and must mention the true and fair view of the state of affairs of the company’s affairs at the end of each financial year. The report should also include the profit or loss incurred and the cash inflows of the company.
Section 143(11) mandates that the audit report should also include a general or specific order issued by the central government in consultation with the National Financial Reporting Authority with regard to the class or description of companies.
Section 143(3) requires an auditor to include the following matters in the audit report:
The auditor must disclose all the details and information he obtained for the purpose of the audit and must explain the impact of such information on the financial statements of the company. The auditor for the collection of such information can rely upon the officers of the company. The auditor must exercise reasonable skill and care and collect data from only such officers whom he can trust. If, for any reason, the auditor suspects the reliability of the information, the auditor has to inspect the data thoroughly before performing the audit. The auditor is expected to perform his duty with professional standards of diligence and care. However, the auditor is not required to perform his obligations beyond reasonable care and skill.
In the London and General Bank Ltd. (1895) case, the Court held, “An auditor, however, is not bound to do more than exercise reasonable care and skill in making inquiries and investigations. He is not an insurer; he does not guarantee that the books correctly show the true position of the company’s affairs; he does not guarantee that his balance sheet is accurate according to the books of the company; if he did, he would be responsible for an error on his part, even if he were himself deceived without any want of reasonable care on his part, by the fraudulent concealment of a book from him.”
The auditor, after a thorough examination of the books of accounts, must include in the audit report whether the company has maintained a proper record of the books of accounts for the financial year. The auditor also must examine whether all the branch offices have sent adequate returns to the company for the purpose of conducting the audit. The books of accounts should comply with the auditing standards.
The auditor should record all audited reports sent by the branch office to the main office of the company if the audit of those branch offices is performed by any other person appointed under Section 143(8) of the Act other than the company’s auditor. The company’s auditor has the power to access the books and accounts of the branch offices and visit them for the performance of his duty. Therefore, it is the responsibility of the company’s auditor to ascertain that the branch offices maintain the correct records of their accounts and financial statements and ensure that the audit of the branch offices is properly performed. The auditor must also describe the manner in which he approached the records of the branch office while preparing the company’s audit report.
The auditor must ensure that the balance sheet of the company and the profit and loss account dealt with in the audit report are consistent with the books of accounts and returns of the company. The auditor is in charge of the proper maintenance of books and accounts and other financial accounts and the performance of the company’s audit; hence, it is the auditor’s duty to verify that the audit report is in agreement with the books of accounts. However, if the auditor fails to discharge his duty and there arises any inconsistency in the company’s accounts and the books’ entries, he must record such inconsistency in the audit report.
The financial statements of a company must be in compliance with auditing standards. The auditor should make sure that the balance sheet of the company and the profit and loss account dealt with in the audit report conform to the auditing standards of the company as mentioned in Section 143(8) of the Act.
The auditors should report their observations or comments on the financial statements or any such matters that have an adverse effect on the functioning of the company. The auditor is responsible for maintaining proper books of accounts, financial statements, and financial transactions of the company. Hence, the auditor is accountable for informing the company of any matter detrimental to the financial interests of the company in the audit report.
The auditor should report whether any director of the company under the audit is disqualified under Section 164(2) in the audit report. Section 164(2) of the Act states that the director of a company can be disqualified for the following reasons:
If the director has not filed financial statements or annual reports of the company for three consecutive financial years.
If the director has failed to repay the deposits accepted by the company or the interests of such deposits or to redeem any debentures on the due date, or pay any dividend for one year.
The auditor has access to the registrar of directors to find out whether any director of the company has been disqualified under the provisions of Section 164(2). The auditor is empowered to gather relevant information from the officers of the company regarding the disqualification of the directors. The auditor is also advised to look into the books of appointment of the directors to ensure whether a director is disqualified on the basis of Section 164(2). However, the auditor cannot mention the disqualification of a director in the audit report solely based on the information supplied by the company; he is required to perform extensive research before submitting the report.
In the case of Pawan Jain v. Hindustan Club Ltd. (2005), the Court held that “from the careful perusal of Section 227 of the Act, which provides the power and duties of the auditors, the auditor cannot submit a report on the basis of the statement supplied by the company alone. He has to examine and even he has to make an independent inquiry about the collected materials from other sources to submit a report regarding Clause (f) of Sub-section (3) about the disqualification of the directors under Section 274(1) Clause (g)”.
Section 227 was changed to Section 143 and Section 274 to Section 164 after the amendment of the Companies Act in 2013.
If the auditor has any reservations or objections regarding the maintenance of the financial accounts or any other matter related to it that could be detrimental to the interest of the company, he must report such issues in the audit report.
The auditor must include his observations on whether the company possesses adequate internal financial controls with reference to the maintenance of proper financial statements and other matters related to it. The auditor is also required to comment on the maintenance and care of such financial controls. The maintenance of the financial controls is the responsibility of the company’s internal management; the auditor is only required to report any defects or weaknesses found in the management of the internal financial controls of the company.
The auditor can report any relevant information with regard to the audit report as prescribed in the Companies Act. Rule 11 of the Companies (Audit and Auditors) Rules, 2014 provides the additional matters that are to be included in the audit report. They include:
The auditor must check whether the impact of pending litigation on the financial statements of the company is mentioned in the audit report.
The auditor should inspect whether the company has made any provisions in relation to accounting standards for material foreseeable losses on long-term contracts, including derivative contracts.
The auditor is also required to report any delays that occurred in transferring the amount to the Investor Education and Protection Fund by the company.
These requirements are compulsory for all companies, including foreign companies, except banking companies, insurance companies, one-man companies, and companies that fall under Section 8 of the Act. The private companies that are holding or subsidiary companies of the public company and have a paid-up capital, reserves, and surplus less than one crore rupees on the balance sheet, which do not have total borrowings exceeding one crore rupees from any bank or financial institution at any point in time during the financial year, and which do not have total revenue exceeding ten crores as per the financial statements, are also exempted from following these requirements.
CARO requires auditors to include the following matters in the audit report:
Property, plant, and equipment
The auditor should include whether the company is maintaining proper records and showing full particulars along with quantitative details of property, plants, equipment, and other intangible assets.
Details of whether the property, plant, and equipment are physically verified by the management of the company. If the auditor finds any material discrepancies in such verification, he must ensure they are dealt with in the book of accounts.
The auditor must ensure that the title deeds of all immovable property are mentioned in the financial statements except for other properties where the company is the lessee and the lease agreements are duly executed in favour of the lessee.
The auditor must specify whether re-evaluated property, plant and equipment, and intangible assets are based on the valuation set by the registered valuer. If there is more than a 10% change in the net aggregate value of property after re-evaluation, it must be mentioned in the audit report.
The auditor must disclose any proceedings initiated against the company for holding any Benami property under the Benami Transactions (Prohibition) Act, 1988, and make sure that these details are mentioned in the financial statements of the company.
Records relating to inventories
The auditor should specify whether the physical verification of inventory is conducted by the company. If discrepancies of more than 10% are found in each class of inventory in such verification, the auditor must ensure that such discrepancies are dealt with in the books of accounts.
The auditor should mention any working capital limits exceeding five crore rupees received by the company from banks or any financial institutions.
The auditor must ensure that the quarterly returns filed by the banks or financial statements comply with the books of accounts of the company.
Investments, loans, and advances
The auditor should mention all the investments made by the company and any guarantee, security, or secured or unsecured loans granted by the company to other companies, firms, or any limited liability partnership.
The auditor should specify the aggregate amount granted by the company in the form of loans, guarantees, and securities and the outstanding balance with respect to these loans, guarantees, and securities to the subsidiaries, joint ventures, and associates. The auditor should also mention the outstanding balance with respect to these loans, guarantees, and securities to other parties other than the subsidiaries, joint ventures, and associates.
The auditor must state whether the investment was made, guarantees and security were given, and the terms and conditions on which the loans are granted by the company are prejudicial to the interests of the company or not.
The auditor must specify the nature of loans granted by the company and the schedule of repayment of principal and payment of interest for these loans. The auditor must also state whether the company took the necessary steps for recovery of interest and principal if the amount is overdue or more than ninety days.
The auditor should mention any renewed loans, extended loans, or fresh loans granted by the company to settle the overdue debt of the parties.
The auditor must mention the aggregate amount on which loans are repayable on demand and loans without specifying any terms or periods granted by the company. The auditor must also specify the total amount of loans granted to promoters and related parties as defined in Section 2(76) of the Companies Act.
Compliance with Sections 185 and 186
The auditor should check whether the investments, loans, guarantees, and securities granted by the company are in compliance with Sections 185 and 186 of the Act. Sections 185 and 186 deal with provisions relating to the loans provided to directors and the loans and investments of the company.
Acceptance of deposits
The auditor should mention whether the deposits accepted by the company are in compliance with the directives issued by the Reserve Bank of India and Sections 73, 74, 75, and 76 of the Companies Act, 2013 and other relevant Acts. The auditor should state whether the company functions in accordance with the order passed by the Company Law Board, the National Company Law Tribunal, the Reserve Bank of India, any court, or any other tribunal.
Cost records
The auditor must specify whether cost records and other records and accounts are maintained in accordance with Section 148(1) of the Companies Act.
Payment of statutory dues
The auditor must mention whether the company is regular at paying statutory dues, including provident fund, employees’ state insurance, income tax, sales tax, wealth tax, service tax, duty of customs, duty of excise, value-added tax or cess, and any other statutory dues. In cases of non-payment, the amount of outstanding statutory dues and the date from which they can be paid must be mentioned.
Unrecorded income
If any transactions are not recorded in the books of accounts but are disclosed in the tax assessments under the Income Tax Act, 1961, the auditor must ensure that the previously unrecorded income is now recorded in the books of accounts.
Loan default
If the company has defaulted in repayment of loans, borrowings, or any interest, the auditor must record it in the following format:
Nature of borrowing, including debt securities
Name of the lender
Amount not paid on the due date
Whether principal or interest
No. of days delayed or unpaid
Remarks, if any
Lender-wise details are to be provided in case of defaults to banks, financial institutions and the government
If the company is declared a wilful defaulter by any bank, it must be recorded by the auditor.
The auditor must report whether the loans are used for the purpose for which they were obtained; if not, he must mention for what purposes the amount is utilised.
If the loans obtained for a short-term basis are utilised for a long-term basis, such amounts must be reported.
If a company obtains funds for the purpose of its subsidiaries, associates, or joint ventures, the nature of such transactions must be mentioned in the report.
The auditor must include if the company has raised a loan on securities held in its subsidiaries, joint ventures, or associate companies. The auditor must also include whether the company defaulted on such loans.
Utilisation of funds raised
The auditor must specify whether the money raised through a public offering has been utilised for the purpose for which the amount was raised; if not, the auditor must mention the steps taken by the company to meet the default.
The auditor must mention whether the preferential allotment or private placement of shares or convertible debentures of the company is in agreement with Section 42 and Section 62 of the Companies Act, 2013.
Frauds
The auditor must mention the nature and amount of fraud the company committed or fraud committed against the company.
The auditor must specify any report filed by an auditor of a company under Section 143(12) in Form ADT-4 as prescribed under Rule 13 of the Companies (Audit and Auditors) Rules, 2014, with the Central Government.
The auditor must record any whistle-blower complaints during the financial year for the company.
Nidhi Companies
The auditor of the Nidhi Company (a company that borrows and lends to its members) has complied with the ratio of net owned funds to deposits in the ratio of 1:20 to meet the liability.
The auditor must mention whether the Nidhi Company keeps 10% of its unencumbered term deposits as specified in the Nidhi Rules, 2014.
The auditor should specify any default in repayment of the principal amount or payment of interest amount by the Nidhi Company.
Relevant party transactions
The auditor must mention whether the transactions between the company and the other parties are in compliance with Section 177 and Section 188 of the Companies Act, and the auditor must ensure that these details are disclosed in the financial statements as required by the applicable accounting standards.
Internal Audit
The auditor must mention whether the internal audit system is appropriate for the size and nature of the business of the company. The auditor must also state whether the reports of the internal auditors during the audit period were to be considered by the statutory auditor.
Non-cash transactions
The auditor must state, if the company enters into a non-cash transaction with the directors or any other person connected with him, whether such non-cash transaction is in compliance with the provisions mentioned in Section 192 of the Companies Act.
RBI transactions
The auditor is required to check if the company must register under Section 45-IA of the Reserve Bank of India Act, 1934, and if so, the auditor should look at whether the registration is obtained or not.
The auditor must verify if the company has conducted any non-banking financial or housing finance activities without a valid Certificate of Registration (CoR) from the Reserve Bank of India as per the Reserve Bank of India Act, 1934.
If the company is a Core Investment Company (CIC) as defined in the regulations of the Reserve Bank of India, the auditor must check whether the company fulfils the criteria of a CIC. And, if the company is an exempted or unregistered CIC, the auditor must verify if the company fulfils such criteria.
If the group has more than one CIC, the auditor must mention the number of total CICs in the group.
Cash losses
The auditor must specify any losses suffered by the company in the immediate preceding financial year in the audit report.
Resignation of statutory auditors
If the statutory auditor resigns during the year, the new statutory auditor of the company must consider issues, objections, and concerns raised by the outgoing auditor and mention them in the audit report.
Ability to meet liabilities
Based on the financial ratio, expected date of realisation of financial assets and payment of financial liabilities, and knowledge of financial statements, the board of directors, and management plans, the auditor must state his opinion on whether the company is able to meet its liabilities on the date mentioned in the balance sheet.
The unspent amount
The auditor should mention in the audit report any remaining unspent amount transferred to a fund constituted under Schedule VII of the Companies Act for an ongoing project with the power conferred on the company under Section 135(5).
The auditor should mention in the audit report any remaining unspent amount transferred to a special account under Section 135(6) for an ongoing project.
Adverse remarks on CARO reports
The auditors of their respective companies must include the paragraph numbers of the Companies (Audit’s Report) Order, 2020, containing the qualifications or adverse remarks in the consolidated financial statements of the company.
Duty to report fraud
Section 143(12) of the Act mandates the auditor of a company to report the matter to the central government of any offence related to fraud committed by the members against the company in the course of his performance involving the amount of one crore or more in not less than sixty days of his knowledge. Rule 13 of the Companies (Audit and Auditors) Rules, 2014, lays down the procedure for auditors to report fraud committed against the company:
The auditor must report this matter to the board or the audit committee, seeking their reply or observations within forty-five days of his knowledge.
Upon receiving the reply, the auditor should forward his report along with the observations of the board or the audit committee along with his comments on the observations of the board within fifteen days of receipt of the observations.
In case the auditor fails to receive any reply or observations from the Board or Audit Committee within forty-five days, the auditor is empowered to send his report directly to the central government, including a note containing the earlier report sent to the board about the fraud to which the auditor did not receive any reply.
The report must be sent to the Secretary, Ministry of Corporate Affairs, in a sealed envelope by registered post or speed post, followed by an email for confirmation. In cases where fraud involves an amount greater than one crore rupees, Section 177 of the Act states that the auditor must report such matters to the board or audit committee within two days of his knowledge. However, the auditor is only to report fraud committed by members of the company in the course of his performance and must not include his personal beliefs and opinions.
Section 143(13) of the Act states that no duty of the auditor will be considered to be violated if the auditor reports any fraud committed against the company in good faith.
Section 143(14) states that the provisions of this Act will mutatis mutandis, i.e., with the necessary changes, be applied to the cost accountant in practice conducting a cost audit under Section 148 and the company secretary in practice conducting a secretarial audit under Section 204. Section 143(15) penalises the auditors for the failure of their duties. It states that if an auditor, cost accountant, or company secretary fails to comply with the provision mentioned in Section 143(12), he will be punishable with a fine not less than one lakh rupees but which may extend to twenty-five lakh rupees.
Duty to state reasons for matters specified in the audit report
Section 143(4) provides that the auditor must include matters with qualifications or negative implications as specified in the audit report. The auditor is also required to mention reasons for such qualifications or negative implications in the audit report.
Duty to make a statement in the prospectus
Section 26(1)(b)(iii) of the Act states that the auditor is required to make a report on the prospectus of the company. It includes the profits and losses of the business of the company for every five financial years and the assets and liabilities of the company up to the last date up to which the accounts of the company are made up. It should not exceed more than one hundred and eighty days before the issue of the prospectus.
In the case of a new company, where five years have not elapsed since the date of incorporation, the report should include the profit and loss account from the date of incorporation.
Audits in government companies
Sections 143(5) to 143(7) of the Companies Act provide provisions that govern the audit of government companies. Section 2(45) of the Act defines government companies as companies where the paid-up capital owned by the government, central government, state government, or partly central government and partly state government is more than 51 percent of the total share. The Comptroller and Auditor-General of India plays a significant role in the audit of government companies.
Appointment of auditors in government companies
Both Section 139(5) and Section 139(7) of the Companies Act regulate the appointment of auditors in government companies. In a government company or company directly or indirectly owned or controlled by the Central Government, by any State Government, or partly by the Central Government and partly by one or more State Governments, the first auditor is appointed by the Comptroller and Auditor-General of India.
The Comptroller and Auditor-General of India shall appoint the first auditor of the company within sixty days from its registration. If the Comptroller and Auditor-General of India fail to appoint the auditor at the said time, the directors of the company shall appoint the auditor in the next thirty days. In the event that the directors of the company fail to appoint the auditor at the said time, the members of the company will appoint the auditor within sixty days in an extraordinary general meeting of the company. The auditor shall hold the officer till the conclusion of the first annual general meeting.
Provisions relating to audits in the government company
Sections 143(5) to 143(7) of the Act lay down provisions for audits of government companies. Section 143(5) provides that the Comptroller and Auditor-General of India can issue directions and instructions to the auditors of government companies on how their accounts are to be audited. The auditor of the government company is required to send a copy of the audit report to the Comptroller and Auditor-General of India.
Section 143(6) of the Act confers on the person authorised by the Comptroller and Auditor-General of India to conduct supplementary audits on the financial statements of the company within sixty days from the date of receipt of the audit report from the government company. For the purpose of such a supplementary audit, the Comptroller and Auditor-General of India can provide any additional information to the authorised person. The Comptroller and Auditor-General of India can add comments to the audit report, and such an audit report with comments shall be sent to every person who is entitled to receive the audit report, and it shall be placed at the annual general meeting.
Section 143(7) states that the Comptroller and Auditor-General of India can order a test audit of the accounts of the company if found necessary. The provisions under Section 19A of the Comptroller and Auditor-General‘s (Duties, Powers, and Conditions of Service) Act, 1971, provide provisions for the report of the test audit. The reports of the test audit shall be placed before the government concerned and will be placed before the House of Parliament or State Legislature by the central government or state government, as the case may be.
Auditing standards
Section 143(9) requires the audit to conform with the auditing standards as may be prescribed. Section 143(10) of the Act states that the central government will prescribe auditing standards with the recommendations of the Institute of Chartered Accountants of India, constituted under Section 3 of the Chartered Accountants Act, 1949, and with the consultation of the National Financial Reporting Authority. Until such auditing standards are notified by the central government, standards already specified by the Institute of Chartered Accountants are to be followed. The ICAI issued various auditing, review, and other standards.
Conclusion
Section 143 of the Companies Act, 2013 lays down the powers and duties of an auditor. Duties ensure auditors function in conformity with the Companies Act and other related statutes, and the powers of the auditor enable him to perform his duties without any hindrances. As a result, the auditor will do his job more effectively. Apart from these powers and duties, it also mentions the guidelines for the auditors for preparing the audit report. The Section also includes the process through which the audit is conducted at government companies. Section 143 also contains provisions related to auditing standards. Auditing standards are principles by which auditors prepare financial reports.
Frequently Asked Questions (FAQs)
What is an audit?
An audit is the official examination or inspection of the books of accounts and financial documents of a company. The primary aim of the audit is to verify the financial statements, including the income statement, balance statement, and statement of cash flows, with the information provided by the company to maintain accuracy.
What are the types of auditors?
Auditors are predominately divided into two types: internal auditors and external auditors. The internal auditor is a trained professional employee appointed by the company who works for the company management, while an external auditor is a public accountant who performs audits for his clients.
What is a prospectus?
A prospectus is a legal document issued by a body corporate offering the public and investors to subscribe to the company’s securities. The prospectus is issued by public companies to invite applications for shares and debentures. It also contains information about the company’s background.
What is an audit report?
The audit report is an analysis issued by the auditor at the end of the auditing process. The audit report contains the auditor’s opinion on whether the company followed statutory and approved accounting standards. The audit report is required by banks, financial institutions, creditors, and regulations.
References
Taxmann’s Company Law and Practice (25th Edition) 2022
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As individuals, everybody wants privacy in their lives to be able to live more fully. But what if somebody keeps an eye on you – 24 hours a day, 7 days a week? You’ll be uncomfortable and not be able to live the way you want; you cannot be yourself. For this, our Constitution has provided a fundamental right, i.e., the right to privacy. Though the right to privacy is not an absolute right and is not explicitly mentioned anywhere in the Constitution, it is a part of Article 21 of the Constitution.
But if the right to privacy becomes an absolute right, it may lead to negative consequences, as people can misuse it. Therefore, there should be an equal amount of surveillance to prevent these consequences. Public surveillance is equally important as the right to privacy, but what should be the exact amount of surveillance that will be justified to protect the right to privacy at the same time? What if there is no authority for surveillance or if there is no right to privacy? And what is the position of India regarding privacy protection laws?
Right to privacy
In simple terms, privacy means not publicising someone’s personal information without their permission. Privacy allows you to access what a person can access. It plays a vital role in building a reputation in society. Nobody wants to share their personal issues, likes, dislikes, beliefs, thoughts, feelings, communications, secrets, identities, etc. based on which people can judge them. Everybody has the right to keep their personal things private. It should be a choice of what a person wants to disclose about themselves or not. Therefore, the right to privacy has been introduced to the Constitution as a fundamental right.
Article 21 of the Indian Constitution, which is the right to life and personal liberty, implicitly mentions the right to privacy as a fundamental right. In India, the right to privacy has always been a controversial topic for many decades, as it is not explicitly mentioned in the Constitution. However, in the case of K.S. Puttaswamy v. Union of India, the nine-judge bench reaffirmed that the right to privacy is a fundamental right provided by the Constitution and is covered under Article 21 of the Constitution. But unlike other fundamental rights, it is subject to some limitations so that nobody misuses their right to privacy.
Privacy and surveillance
According to the Cambridge Dictionary, surveillance means ‘the act of watching a person or a place’, or, in simpler terms, ‘monitoring’. Whenever the words “surveillance” and “right to privacy” are heard, there will always be questions. If there is a right to privacy, then what is the need for surveillance? Why does almost every street have CCTV cameras? Why can authorised authorities access our data? Can privacy and surveillance exist together?
The answer to all these questions is that surveillance is equally important as the right to privacy to have control over terrorism and crime and to maintain the state’s integrity, sovereignty, security, etc. If citizens feel that nobody is watching them, then the rate of wrongdoing or crimes will eventually increase.
So, the question should not be “Can the right to privacy and surveillance exist together?”, the bigger question is how, when, and what kind of surveillance should be there so that the right to privacy and surveillance can still co-exist.
Privacy in the digital era
In this era of the digital world, everybody seeks privacy, but the reality is contrary to that. In this digital era, every piece of information regarding a person is stored on the computers of IT companies, which includes our search history, interests, and even our location. Then it may be used to earn revenue and offer it through advertisements. It may also include our personal conversations. Due to weak data protection laws, anybody can have access to our lives, which can be horrible for many people. Technological progress has created tension and incompatibility between the right to privacy and the extensive data pooling on which the digital economy is based. Mass collection of data and not having appropriate technology and laws to secure this data can lead to the mass destruction of the right to privacy of many individuals.
Though India has taken steps towards implementing data protection laws, as many judgements and laws have been passed for data protection and the right to privacy, these laws are not enough to protect and secure data, and India needs to adopt stronger data protection technology to secure all the data that is present in the digital form.
Laws governing right to privacy in India
There are various provisions of laws that govern the right to privacy in India, including:
Article 21 of the Constitution: The right to privacy is not specifically mentioned anywhere in the Constitution, but it is an implied fundamental right under Article 21, i.e., right to life and liberty, subject to reasonable restrictions and required safeguards.
Section 69 of Information Technology Act, 2000: Section 69 allows the central and state governments to intercept, monitor, and decrypt any information if it satisfies any of the following requirements:
to maintain the sovereignty and integrity of the Country or the State
for the security of the country or the state
to maintain friendly relation with the foreign countries
to maintain public order
to prevent incitement to the commission of an offence
to investigate any offence.
Section 43A of Information Technology Act, 2000: Section 43A provides protection to any personal data stored by any corporate body dealing with possessing or handling any sensitive data. According to this Section, any such body, if fails to take reasonable security measures to secure the data, is liable to pay damages to the aggrieved parties.
Rule 22 of the IT (Procedure and safeguard for interception, monitoring and decryption of information) Rules states that a review committee, headed by the cabinet secretary, will be conducted every two months to review all the cases of interception, monitoring and decryption.
Section 5(2) of Indian Telegraph Act, 1885: This section allows the central and state governments to intercept or detain any telegraph on the occurrence of any threat to:
The interest of public safety
Public emergency
Sovereignty and integrity of the state or country
Friendly relations with foreign countries
Preventing incitement or commission of any offence
Rule 419-A of Indian Telegraph Rules, 1951: This rule gives directions governing telephone interception or monitoring the transmission of telegraph. The required interception shall be carried out by the head or the second senior most officer of the authorised security, i.e., the law enforcement agency at the central level, and the authorised officer should not be below the rank of Inspector General of Police at the state level.
Digital Personal Data Protection Act, 2023: In 2017, central government constituted a committee of experts on data protection, headed by Justice B.N. Srikrishna. The committee submitted its report in 2018, based on which, in 2019, a bill was introduced in parliament for the protection of sensitive digital data. The draft of the Personal Data Protection Bill, 2022, has been realised for public feedback. Later, in 2023, it was introduced again in the Lok Sabha. After being passed in both houses, it received presidential assent and became the Digital Personal Data Protection Act, 2023.
Section 8(1)(j) of Right to Information Act, 2005: This section states that no personal information will be disclosed if it does not include public interest or can violate someone’s right to privacy.
Section 66 and Section 72 of the Information Technology Act, 2000: These sections of the IT Act penalise cybercrimes related to computers like hacking, fraud, etc. They provide a criminal penalty if any government official discloses any personal information without the consent of the concerned person.
Relavant cases
The right to privacy has long been a contentious issue in India. Numerous decisions have been made in this regard, some of which are in favour of the right to privacy as a fundamental right and some of which are limiting the right to privacy.
Limiting the right to privacy
M.P. Sharma and others vs. Satish Chandra: This is the first case that mentions the right to privacy. In this case, it was held that search and seizure do not violate any fundamental right, as they are only for a temporary period of time and do not infringe the right to privacy.
Kharak Singh vs. State of U.P.: In this case, it was held that the right to privacy is not a guaranteed right under our Constitution, but two of the judges dissented the said judgement, mentioning that it can be derived as a right of a person given under the Constitution.
Govind vs. State of M.P.: This is a remarkable judgement in the ambit of the purview of the right to privacy. In this case, it was held that the right to privacy is not an absolute right and that there should be some reasonable restrictions that are to be imposed on right to privacy.
R. Rajgopal & Ors. vs. State of Tamil Nadu & Ors.: This case dealt with the freedom of press vis-à-vis right to privacy, and it was held that if somebody voluntarily thrusts themselves into controversy, then right to privacy will not be available for them.
In favour of the right to privacy
People’s Union for Civil Liberties vs. Union of India & Ors.: This case mainly focused on digital privacy, where it was held that even if the right to privacy is not explicitly mentioned anywhere, it is an implied fundamental right under Article 21 of the Constitution. In this case, it was also held that telephone tapping comes under the ambit of infringement of right to privacy unless it was done in accordance with law, and the court provided certain guidelines for interception of data.
Selvi vs. State of Karnataka: This case dealt with the narcotics test vis-à-vis right to privacy, in which Hon’ble Supreme Court held that this test is violative of the right to privacy, which is implicitly given as a fundamental right under Article 21 and Article 20(3), as such a test will constitute cruel, inhuman and degrading treatment. Therefore, it was held that such kinds of tests can only be conducted with the consent of the accused.
K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.: This is a very recent and one of the most important judgements in the history of the right to privacy. In this case, the court said that the right to privacy is a fundamental right under Article 21 of the Constitution, and not just derived from it. The Court also said that the right to privacy can also be restricted when the situation meets any of the three requirements:
legality, which postulates the existence of law.
need, defined in terms of a legitimate state aim, and
proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.
Conclusion
The right to privacy has been declared our fundamental right, but with some reasonable amount of surveillance or restrictions so that nobody can take any wrongful advantage of this right. It is important to maintain the balance between the right to privacy and surveillance so that citizens have the liberty to live their lives freely and feel safe knowing that they are under surveillance. Though India already has some laws and rights regarding the right to privacy and surveillance, laws protecting data need judicial oversight for greater transparency in the system.
Women’s organisations and individuals advocating for women’s rights for decades have been trying to get legislation that can protect women’s rights enshrined in the Indian Constitution. In a patriarchal society like India, women’s rights need special protection; therefore, to protect women’s rights, various laws have been passed. One such piece of legislation is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013. This legislation was introduced to protect women from the menace of sexual harassment at the workplace.
Brief on the prevalence of workplace harassment
A distinction has been made between sexual harassment and sex-based harassment. It stresses the fact that sexual harassment doesn’t always mean sexual desire; it can also be there to assert the power of one sex over the other (Sahgal & Dang 2017). Such behaviours and actions take a toll on a woman’s emotional health, hampering her personal and professional growth. As per various studies, in a low number of women’s workforces, a significant number of women have faced sexual harassment, and a huge number of complaints are not even reported. The culture of silence that has been promoted in girls’ education has conditioned them to silently be the victim of the patriarchal onslaught (Sahgal & Dang, 2017) this is why many cases are not reported.
Unequal power dynamics that are created because of the hierarchical structure of the workplace, when added to the gender power dynamics of a patriarchal society, cause the woman who is lower in rank in this hierarchical structure to suffer as she is made to choose between filing the complaint and keeping her job. The most anticipated result of filing a complaint against the perpetrator is either losing the job or similar consequences. It does not limit here; the woman herself is blamed for the act of sexual harassment of which she has been a victim if she does not go by the societal gender norms. Going to late-night parties, drinking, or wearing short dresses is seen as outside our societal gender norms. These reasons compel the legislature to make laws to foster a safe work environment.
History of workplace harassment
The Bhanwari Devi gang rape case that occurred in 1992 can be called the juncture from which the demand for legislation on workplace harassment began. Bhanwari Devi was working under the Haryana government in the Women and Child Development Department as a social worker. She was engaged in preventing child marriage when she was gang-raped by people from the dominant and affluent Gurjar community. Thereafter, the occurrence received extensive coverage by the media when the accused were acquitted by the lower court. In response to this episode, in 1997, certain Non-Governmentalorganisationss filed a writ petition in the Supreme Court to protect the fundamental rights of women under Articles 14, 19, and 21. This petition specifically addressed the issue of sexual harassment of women in the workplace. The Supreme Court, noticing the absence of domestic law on this matter, issued the Vishakha guidelines to fill the vacuum until legislation on the subject was enacted. It took 16 years for the legislature to pass the POSH Act since the Vishakha guidelines were issued.
Key components of POSH Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) is landmark legislation that provides a comprehensive framework for addressing sexual harassment at the workplace. The Act defines sexual harassment as any unwelcome act or behaviour of a sexual nature, whether verbal, physical, or visual, that is:
A demand or request for sexual favours;
A promise of preferential treatment in exchange for sexual favours;
A threat of reprisal for refusing to submit to sexual advances; or
Any other conduct of a sexual nature that is unwelcome.
The Act also sets out a process for reporting and investigating sexual harassment complaints. Complaints can be filed by the victim or by any person on her behalf. The complaint must be filed with the Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC), depending on the size of the workplace.
The ICC, or LCC, is responsible for investigating the complaint and taking appropriate action. The action that can be taken includes:
Reprimanding the accused;
Transferring the accused to a different position;
Suspending the accused;
Termination of the accused’s employment;
Filing a criminal complaint against the accused.
The POSH Act also provides for a number of safeguards for the victim, including:
Confidentiality of the complaint;
Protection from retaliation;
Access to legal aid.
The POSH Act is a significant step forward in the fight against sexual harassment in the workplace. It provides a clear and comprehensive framework for addressing sexual harassment, and it offers a number of safeguards for victims. The Act is a valuable tool for creating workplaces that are free from sexual harassment. This kind of regulation is effective in reducing the workload of the judiciary and in providing speedy justice to aggrieved women, which will eventually give female employees confidence that they are protected and will discourage more such acts of harassment.
Provisions related to prevention of workplace harassment
Section 2(n) defines “sexual harassment” as any unwelcome physical contact and advances, sexually coloured remarks, requests for sexual favours, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. Section 2(o) defines the scope of “workplace” to include all government and private workplaces. These two terms are essential components of Section 3, which prohibits sexual harassment. Subsection (2) of Section 3 lists circumstances that may constitute sexual harassment if they are found to be related to or in connection with any act or behaviour of sexual harassment. These circumstances include: implied or express promises of preferential treatment, threats of detrimental treatment, threats about employment status, interference with work, creating an intimidating, offensive, or hostile work environment, and humiliating treatment likely to affect health or safety.
Reporting and redressal mechanisms outlined in regulations
Internal Complaints Committees under Section 4 and Local Committees under Section 6 are the main mechanisms that regulate prohibition, prevention, and redressal issues related to sexual harassment. Section 4 makes it mandatory for an employer to constitute an Internal Complaints Committee at all offices and/or administrative units, regardless of location. The section also specifies the number of people who should be part of this committee, their experience, and their knowledge, with at least half of the members being women. The tenure of such nominated members is three years, and any member found to be a violator of the law or against whom an inquiry or proceeding is pending will be removed from the committee. On the district level, Section 6 makes it mandatory for the district officer to constitute a local committee to receive complaints of sexual harassment from institutions where the internal committee has not been formed due to having less than ten workers or if the complaint is against the employer himself.
Implementation mechanisms
Filing a complaint
To activate the redressal mechanism, the aggrieved woman needs to file a written complaint with the Internal Complaints Committee (ICC) or the Local Committee as per Section 9 of the POSH Act. If, due to any reason, she is unable to file a written complaint on her own, the presiding officer or members of the ICC, or in the case of the Local Committee, the chairperson or any member of the Committee, will render her all reasonable support to file a written complaint. Within 3 months from the last date of the incident, a written complaint should be filed with the committee, and in the case of a series of events, within 3 months from the date when the last incident happened. The ICC, or local committee, has the power to extend this period if they are satisfied that the circumstances were such that they prevented the women from filing the complaint within the said time. The committee can grant such an extension by recording the reasons in writing.
Inquiry into the complaint
Section 11 empowers the ICC and the Local Committee to inquire into the complaint as per the provisions of the service rule applicable to the respondent. If such rules are absent, then the inquiry should be conducted as per the rules that may be prescribed. In the case of domestic employees, the local committee, if it believes that the case exists, should, within 7 days of receiving such a complaint, forward the complaint to the police to be registered under Section 509 of the Indian Penal Code, 1860, and any other provision of the said code.
If the aggrieved woman informs the police that any of the terms or conditions of the settlement agreed upon under Section 10(2) have not been complied with, then the committee should inquire into the complaint or forward the complaint to the police. The proviso part of this section imbibes the principle of natural justice as it mandates the committee to give a copy of the findings to both parties and to hear both parties during the inquiry.
The committee has been given the power of the civil court to conduct an inquiry under Section 11(3) when trying the suit in the following matters:
Summoning and enforcing the attendance of any person and examining him on oath,
requiring the discovery and production of documents,
any other matter that may be prescribed.
To ensure the delivery of justice in a time-bound manner, Section 11(4) mandates the committee to complete the inquiry within 90 days.
Recommendations and implementation
For the safety of the aggrieved woman and to implement the recommendations of the ICC or the Local Committee, the committee, as per Section 12 of the Act, can recommend to the employer, if the aggrieved woman gives so in writing, the following:
Transfer either the aggrieved woman or the respondent to any other workplace.
Grant leave to the aggrieved woman for a period of up to three months.
Grant any other relief to the aggrieved woman as may be prescribed by the committee.
The employer is bound under Section 12(3) to implement the recommendations given by the committee and send the implementation report back to the committee. If the allegations against the respondent are proven, then under Section 13(3), the committee should make a recommendation to the employer or the district officer to:
To take action for sexual harassment as misconduct.
To deduct the amount from the salary or wages of the respondent to pay to the aggrieved woman, the amount to be paid will be determined as per Section 15.
The proviso of clause (ii) of Section 13(3) allows the employer to ask the respondent to pay such an amount in case the employer cannot deduct such an amount from the respondent’s salary, and if the respondent fails to pay upon asking, the committee may forward the order for recovery of the amount as an arrears of land revenue to the concerned district officer. The employer and the district officer have been given 60 days to implement the recommendations of the committee.
Under Section 14, the committee may recommend to the employer or the district officer taking action against the complainant or any of the witnesses If the complaint is found to be malicious or the documents submitted are forged or misleading,. In case either of the parties is not satisfied with the recommendation of the committee or in case of non-implementation of recommendations, under Section 18, the parties are allowed to make an appeal to the court or tribunal.
Obligations of the employer and the district officer
Employers and district officers should:
Create a safe work environment.
Display the penal consequences of sexual harassment and mention the order constituting the complaints committee.
Organise workshops and orientation programmes for employees and members of the committee, respectively.
Assist the committee in bringing the respondent or the witness.
Provide necessary information in relation to the complaint to the committee.
Provide the committee with the necessary facilities for conducting its business.
Consider sexual harassment misconduct and take action accordingly.
Monitor timely submissions of reports and recommendations by the committee.
The district officer can engage NGOs to create awareness of sexual harassment and the rights of women.
Compliance requirements
Documentation and reporting obligations for organisations
The committees are required to prepare an annual report under Section 21 and submit it to the employer or the district officer. The district officer is further required to prepare a brief report on the collected annual reports and send it to the state government. The report must include the following information:
The number of complaints received by the committee during the year;
The number of complaints that were disposed of during the year;
The number of complaints that were pending at the end of the year;
The details of the action taken on each complaint;
The number of cases that were referred to the police or other law enforcement agencies;
The number of cases that were settled through conciliation;
The number of cases that were decided by the committee; and
The reasons for the decisions made by the committee.
The annual report must be submitted to the employer or the district officer within three months of the end of the financial year. The district officer is then required to prepare a brief report on the collected annual reports and send it to the state government.
The annual report is an important tool for monitoring the effectiveness of the sexual harassment prevention and redressal mechanisms in place. It provides information on the number of complaints received, the number of complaints that were disposed of, and the number of complaints that were pending. This information can be used to identify areas where improvements need to be made. The annual report also provides information on the types of complaints that were received, the action taken on each complaint, and the reasons for the decisions made by the committee. This information can be used to develop strategies to prevent sexual harassment in the workplace.
Section 25 authorises the appropriate government, upon its satisfaction that it is necessary in the interest of the general public and women employees, to:
Call upon any employer or district officer to furnish in writing any information related to sexual harassment.
Authorise any officer to inspect records and the workplace and submit a report of inspection to it within the given timeframe.
Under Subsection (2) of Section 25, employers and the district officer are bound to submit all information, records, and other documents having a bearing on the subject matter of such an investigation to the investigation officer.
Penalty for non-compliance
Section 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 imposes a penalty on the employer of 50,000 rupees if they fail to:
Provide a complaint mechanism for employees to report sexual harassment
Investigate complaints of sexual harassment promptly and impartially
Take appropriate action against the perpetrator of sexual harassment
Provide the complainant with information about the progress of the complaint
Take measures to prevent sexual harassment in the workplace
The penalty for non-compliance with Section 26 is a fine of up to 50,000 rupees. The employer may also be held liable for damages to the complainant.
It is important for employers to comply with Section 26 in order to create a safe and harassment-free workplace for their employees. By failing to comply with the law, employers are putting their employees at risk of sexual harassment and creating a hostile work environment.
If the employer is convicted again for the same offence, they will be liable for:
Punishment more severe than the first conviction.
Cancellation, withdrawal, or disapproval of their business licence.
Challenges and solutions in implementation
As per the Supreme Court of India, a survey conducted and published by a national daily newspaper on 30 national sports federations across India revealed that 16 of them have not constituted an ICC. Additionally, where ICCs have been formed, the number of members is not as per the POSH Act or lacks the mandatory external member.
Besides setting strict guidelines for accomplishing the objective of the POSH Act, there is a high priority demand to introduce programmes related to gender sensitisation at all levels of education and work. A half-heartedly implemented legislation won’t help women get the equal status provided to them under Article 14 of the Indian Constitution. Making stringent rules can be useful to some extent, but even better would be to have such programmes or education in place that teach about gender sensitization. Fostering such education would bring a generation of people in whose time legislation to protect any sex won’t be a need.
Conclusion
The endless struggle of women groups and individuals has no doubt helped in procuring legislation, which does give confidence to many working women about their safety. The Act provides comprehensive provisions for achieving the main objective, but the problem is the non-implementation of these provisions. The solution to these problems is to make stringent rules but more than that, it is to bring gender sensitive programmes and education that will not warrant such legislation in the future.
This article is written by Minhaj Nazeer. It talks about the concept of no fault divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. The difference between divorce under fault and no fault theory has also been discussed, followed by the relevant case laws and some FAQs.
Table of Contents
Introduction
In India, marriage is both a sacrament and a contract; it is based on an offer and acceptance. At the same time, it is a sacrament because of its religious ties. Divorce is the dissolution of a marriage by a competent court. Getting a divorce in India is very tiresome, with lengthy legal proceedings and intentional dragging by either of the parties. The divorce is mainly an ego battle between the partners. In certain cases, couples get divorced very late due to lengthy court battles. One of the major advancements in Hindu law is no fault divorce; this has helped reduce the legal procedures. This article looks into the concept of no fault divorce from an Indian perspective. Further, an international perspective based on a few countries has been discussed in brief.
What is a no fault divorce
In the stereotypical society, marriages dissolve with faults by either of the spouses. No fault divorce is an exception. No fault divorce is a concept when both spouses decide to divorce without blaming each other. Here, parties are not required to prove why they need a divorce, like domestic violence, adultery, etc. During the documentation in court, parties can opt for the ‘no fault divorce’ option in the reason column. Opting for a no fault divorce does not essentially mean both parties to the divorce are flawless. In certain cases, one of the parties can be abusive, but the petitioner opts for a no fault divorce. The main objective of choosing this option is that the parties do not necessarily have to prove anything to the court during the proceeding.
Difference between divorce under fault and no-fault theory
Generally, when filing a fault divorce, the person seeking the divorce has to prove the grounds of the divorce and should have valid grounds for why the marriage should end. Usually, the grounds for divorce are adultery, abandonment, bigamy, rape, sodomy, habitual intoxication, etc. Most of the couples opt for no fault divorce, even though they have the option not to, to avoid lengthy legal proceedings.
Fault theory
In this theory of divorce, one of the spouses files a petition with the court to dissolve the marriage because of the faults of the other spouse. It is a mandate to have a guilty party and an innocent party in this format of divorce. Here, only the innocent party can seek remedy. If any of the parties are guilty of committing a matrimonial offence, only the aggrieved party is entitled to divorce. The guilt theory introduced the right to dissolve a marriage in the matrimonial law.
No Fault theory
This theory of dissolution of marriage is based on the fact that marriage not only fails because of fault or guilt but also because the spouses are not willing to stay together since they are incompatible. Despite the efforts of both spouses, they have decided to part ways. The aspect of consent theory establishes that if two persons can marry by will, they should be allowed to dissolve of their own will. After the amendment of the Hindu Marriage Act, 1955, spouses can move out at their will with mutual consent. But this application includes a cooling period of six months, and divorce will be granted after 18 months.
Common grounds under Hindu Marriage Act, 1955
Adultery – One of the parties voluntarily having sexual intercourse with any person other than his or her spouse.
Cruelty – One of the spouses is treating the other with cruelty.
Insanity – One of the spouses is mentally ill and it cannot be cured to such an extent that the petitioner cannot live with the spouse.
Apart from this, other major grounds are leprosy, conversion, presumption of death, etc.
Common grounds for divorce under the Hindu Marriage Act and other personal laws.
Marriages are governed under Hindu law in India for Hindus, Buddhists, Sikhs, and Jains. Section 13B of the Hindu Marriage Act, 1955, essentially deals with Hindu marriages and divorces in India. After the recent amendment of Section 13B, no fault divorce was introduced. The amended Section allows divorce mutually when both parties agree to end the wedlock without mentioning a fault. In Muslim law, the concept of wedlock is contractual and dissolvable. Khula and Mubarat are the two types of divorce in Islamic law. Mubara is by mutual consent, and Khula is demanded by the wife to dissolve the marriage. In the Special Marriage Act, 1954, the ground for mutual divorce is dealt with in Section 28. Here, both parties are required to file a petition with the district court on the ground that they were not together for more than a year. In the Divorce Act, 1869, a post amendment in 2001 added Section 10A and included divorce by mutual consent.
Provisions of no fault divorce in India
The Hindu Marriage Act, 1955, established a number of provisions related to No fault divorce. Section 13B tells about the divorce by mutual consent of the spouses. There are four key provisions related to No fault divorce.
Mutual Consent
It is mandated that both spouses agree to the separation and file a joint divorce petition. It should be filed before the family court with a written statement that they have been separated for more than a certain period of time and have agreed to dissolve the marriage.
Reasonable period of separation
The law mandates a minimum separation period of twelve months before filing a joint divorce petition. This aims to give the spouses a chance to reconcile before the actual divorce. In certain cases, spouses change the decision and withdraw the petition.
Cooling-off period
After the filing of the joint divorce petition, the court imposed a mandatory cooling off period of six-months. During this period, the spouses can reconsider the decision of mutual divorce and confirm the decision to reconcile or not.
Consent
After the cooling-off period, spouses are mandated to appear before the court once again to reconfirm their decision of mutual divorce. If the court feels the divorce is genuine and consensual, after this, the court grants a divorce decree.
Benefits of no fault divorce
Dignity and autonomy
This type of divorce lets spouses make decisions regarding their dissolution of marriage and establish autonomy. This allows them to separate from themselves without any stigma, proving one of them is at fault. This sustains their dignity and emotional well-being.
Less conflict
No fault divorce reduces hostility and extends legal battles. This pushes the spouses to focus on dissolving the marriage by rapidly solving practical conflicts such as property division, child custody, and spousal support. It also helps to reduce the stigma and emotional and financial issues of the parties.
Efficient resolution
No-fault divorce dissolves the marriage rapidly, making it more efficient and requiring fewer legal procedures. The mutual consent and cooling off period provide the spouses with an opportunity to reconcile by ensuring that the divorce is not taken impulsively.
Child-centric approach
Mutual divorce has a child-centric approach because it encourages spouses to cooperate and maintain a cordial relationship for the sake of their kids’ well being. It gives importance to the best interests of the child and aims to reduce the impact of divorce on their lives.
Documents required for no fault divorce
The spouse must provide the necessary documents while filing a no-fault divorce petition. The parties should give essential information about their immediate family and their biodata. Also, other information such as past year IT returns, salary, and description of assets.
The spouses should give information about their families and their biodata
The spouses should provide their IT return files for previous years
Spouses are required to submit informative snippets of job life and income per annum
In the description of assets, both liquid and illiquid, the spouses should mention everything separately
Judicial pronouncements
Sureshta Devi v. Om Prakash (1991)
In this case, the Court interpreted Section 13-B of the Hindu Marriage Act and came to the conclusion that the filing of a joint petition does not allow the court to make an order for divorce. The parties will have a second thought, and a statutory waiting period of 6 to 18 months should be provided as a chance to reunite.
Facts of the case
The wedlock of the parties took place in 1985; later, a petition under Section 13B for divorce by mutual consent was filed. The statements of the parties were recorded on 9th January, 1985. Later, the appellant stated that the statement recorded earlier for the purpose of mutual consent was under pressure and threat from the respondent. It was also alleged that before filing the petition, the appellant was not allowed to accompany her during the consultation and was not permitted to go to court together. Hence, the appellant withdrew consent for the petition. Initially, the District Court dismissed the petition, but on appeal, the High Court reversed the order and granted divorce. The Supreme Court opined that consent to a petition for mutual consent cannot be unilaterally withdrawn. Hence this appeal.
Issues
Whether, under Section 13B of the Hindu Marriage Act, 1955, a party can unilaterally withdraw or if the consent is irrevocable?
Reasoning
In Jayashree Ramesh Londhe v. Ramesh Londhe (1984), the Court opined that the critical obligation for mutual consent under Section 13B is during the filing of the petition. In another case, Smt. Chander Kanta v. Hans Kumar and Anr. (1988), the Court concluded that if the consent was given voluntarily, it would not be possible for any party to nullify by just withdrawing the consent.
Judgment
Justice K. Jagannatha Shetty came to a conclusion by leaving the grant. After analysing Section 13B of the Act and the facts of the case, it was obvious that mere filing of the petition with mutual consent does not authorise a court to make an order on the same. The Section also mandates that if any of the parties is willing to withdraw their consent, the court cannot pass a decree of divorce by mutual consent. The Supreme Court admitted the appeal and set aside the decree for the dissolution of the marriage.
Shilpa Sailesh v. Varun Sreenivasan (2023)
In this case, the parties demanded a decision on the case of delivering justice as mentioned under Article 142 of the Constitution of India. In the judgement, the judges delivered certain guidelines with respect to the constitutionality of no fault divorce.
Facts of the case
In 2014, the spouses moved to the Supreme Court in order to obtain a no fault divorce, citing that their marriage had failed irretrievably. Later, after a year, the Apex Court granted the divorce under the powers of Article 142 of the Indian Constitution. The ground of the divorce was that the marriage was irretrievably broken down and dead. While clearing the case, the Apex Court found that there are several other cases pending in lower courts. There was a need for guidelines and specific scope for the Supreme Court’s power under Article 142. The case was later sent to a Division Bench of the Supreme Court, and amicus curiae were appointed to look after this case.
Issues
Whether the Supreme Court has proper scope and powers under Article 142(1) of the Constitution?
Judgement
The first issue of the case dealt with the scope and ambit of the Supreme Court’s power under Article 142(1) of the Constitution. The Apex Court gave a wide scope to the terms ‘complete justice’ and ‘necessary’. The Court was also directed to include the power of equity as a reply to the problems when it’s strictly applying procedural law. Additionally, the Bench, in this case, held that the Apex Court has the power to directly grant a divorce on grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution.
Furthermore, the Court opined that the power is wide enough to pass an order in modification or alteration of positive law, which is very clear and to the point. The order is made in the interest of justice and to do complete justice to Article 142. The Court referred to Union Carbide Corporation v. Union of India (1991) to distinguish the power of the Supreme Court under Article 142. The Court came to the conclusion that the powers under this Article are very wide and that the court can take action to achieve justice.
Ashok Hurra v. Rupa Bipin Zaveri (1997)
Facts of the case
In this case, the wedlock between the appellant and respondent was solemnised on 3rd December, 1970. The wife left the matrimonial home in 1983 due to differences. Later, a joint petition was filed under Section 13B of the Hindu Marriage Act, 1955. The parties demanded a divorce by mutual consent. Two years later, the husband alone moved to pass the decree. Later, the same petition was withdrawn by the wife. The husband argued that the wife had no right to withdraw or revoke her consent for divorce after 18 months. The husband approached the High Court with a special leave petition.
Issues
Whether a marriage can be dissolved by obtaining the mutual consent of both parties to the marriage or not?
Judgement
The appeal was allowed. Subject to the fulfilment of the following conditions, a decree of divorce for dissolution of marriage by mutual consent solemnised between the appellant and the respondent was passed under Section 13B of the Hindu Marriage Act.
Devendar Singh Narula v. Meenakshi Nangia (2012)
Facts of the case
In this case, due to superstitions, both spouses had been separated since their wedding. After three months of marriage, the appellant filed a petition under Section 12 of the Hindu Marriage Act, 1955. The case went to mediation, and the parties mutually agreed to a divorce. While the family court ordered a statutory waiting period, the parties approached the Supreme Court under Article 142 of the Indian Constitution. The Court came to the conclusion that there was a lack of marital ties and the marriage was only for name sake and the Court granted divorce to the parties before the completion of the cooling off period by filing.
Issues
Whether dissolution of marriage under Section 13B of the Hindu Marriage Act, 1955, can be granted before the statutory waiting period
Judgment
The appeal was granted, and the Court iterated that the Section itself provides for a cooling period of six months on the first motion being moved. In the event, the parties changed their minds during the said period. The Court concluded that the parties are required to wait for another six months before the second motion can be moved.
No fault divorce : a global perspective
United Kingdom
Europe showed a diversity in laws amongst its member countries with respect to divorce. In the UK, spouses can file a petition for divorce based on both fault and no fault grounds. The Divorce, Dissolution and Separation Act, 2020, lets spouses file a “no fault” divorce, ending their wedlock, without blaming each other. If the couple has been married for over 12 months, they can proceed with a no fault divorce, even if both parties do not mutually agree to it. This novel approach aimed to minimise conflict and encourage a more structural route to legal separation.
Italy
In Italy, initially, the concept of getting a divorce was complicated. After 1970, the Italian Government made divorce legal and over time, significant reforms have simplified the legal proceedings. The new approach offered both “no fault” and “fault based” divorces. But in “no fault” divorce, couples can split after the cooling period. However, in the other one, couples need to establish specific grounds like adultery, sodomy, etc. The diversity in the options enabled the spouses to pick the type that fit well with their life circumstances.
Japan
Generally, in Asia, cultural and religious aspects greatly impact the making of divorce laws. Japan offers a distinctive divorce approach, termed as “kyogi rikon”, which is for mutual divorce. Under this concept, spouses should mutually agree on the divorce and register with the local government office regarding the agreement. This process made divorce in the country very simple and effective; hence, the divorce rates in Japan are relatively high, underlining the influence of Japan’s culture and legal factors on divorce practices.
China
Unlike Japan, China has a strong connection with divorce and its cultural heritage. The country intertwines cultural values and modern legal principles. Divorce laws in China have changed a lot due to societal changes. China in 1950 made the Marriage law and it legalised divorce. The Marriage Law wanted to protect women’s rights and promote gender equality, marking a significant change from traditional values that discouraged traditional divorce. Under the present law, couples can file for divorce. China recently introduced a ‘cooling off’ period and received a lot of criticism. According to the Civil Code implemented in 2021, couples filing divorce must undergo a 30-day period to reconsider their decision before their legal separation is granted. This is to decrease the divorce rate but it has received a lot of criticism about the ongoing friction between culture and modernity in the government’s approach to divorce.
Russia
The idea of no fault divorce started in the country after the Russian Revolution of 1917 by the Bolsheviks. Before, this religious institution tended to define the family system in the state. The law of the Russian Orthodox Church controlled everything, such as family, marriage and even divorce. From the official registration of birth to death and divorce, it was considered the duty of the parish church. The laws were non-secular and divorce was considered taboo and highly restricted. The decree on divorce came in 1918 and eliminated the concept of religious marriage and the law was replaced by civil marriage which was sanctioned by the state. Spouses can acquire a divorce by filing a mutual consent with the Russian Registry Office or by the unanimous request of one spouse to the court. The divorce under Russian law never penalises the spouse with alimony, child support, etc., as they were all supported by the state anyway. The spouses were free from all legal hurdles after the divorce. After the fall of the Soviet Union, the family law of Russia was separately introduced.
Sweden
In Sweden, there is no such concept as fault divorce; the courts in Sweden do not mandate a showing of fault requirement for divorce. The spouses can file for divorce together or one party can file alone. If only one party wants to divorce and the other does not, or if the spouses have kids under the age of 16 living with them, the court will order a contemplation period. This period can be anywhere from 6 to 12 months. During this period, the spouses are instructed to stay married and requests must be confirmed after this period.
Spain In Spain, no-fault divorce is known as divorcio incausado. This was introduced in 2003 as a part of amendment to Spain’s divorce law of 1981.
Mexico
In Mexico city, a no fault divorce is called ‘divorcio incausado o sin expresion de causa’, meaning, divorce without cause or expression of cause, and is typically known as ‘divorcio expres, i.e., express divorce. The law was initially passed in Mexico city in 2008 and upheld by the Supreme Court after several years. A case existed that challenged the constitutionality of the law and it took around 7 years. Finally, in 2015, the Supreme Court of Mexico held the law to be constitutional.
Conclusion
No fault divorce in India is a remarkable step towards coping with societal needs. By recognising this breakdown of wedlock as a sufficient ground for the dissolution of marriage, we encourage the needs of society. Before the amendment, the concept of getting divorced was stigmatising. The current development ends the marriage without any hostility between the parties. The current society is fast paced, No fault divorce simplifies the complex legal proceedings and protects the interests of both parties while enhancing gender equality between the parties and helping to reach a solution. The idea of separation is a sign of peace in our current society.
Frequently Asked Questions (FAQs)
What is no fault divorce under Hindu Marriage Act?
No fault divorce means dissolution of marriage, wherein both parties are not required to prove why they need a divorce. It is explained under Section 13B of the Hindu Marriage Act, 1955, that to obtain the same, both parties should file a joint petition for mutual divorce.
What are the grounds for no fault divorce under the Act?
According to Section 13B of the Act, mutual consent is required. Both parties should jointly agree to the decision to get divorced. And the petition should state that both spouses have been living separately for more than a year and do not want to live together.
What are the procedures to be followed to obtain a no fault divorce under the Act?
A joint petition should be filed in the family court. They should contain the mutual consent to divorce and state that they have not lived together for more than a year. After a successful petition, the court proceeds with a six month cooling off period, and after that period, the court grants the divorce decree.
Whether a no fault divorce can be contested under Hindu Marriage Act?
In cases where one of the parties withdraws consent during the cooling off period or if spouses are not appearing in court, a no fault divorce can be contested. Also, if there is any dispute during the proceedings and the spouses are not mutual, the divorce may become contested. In these cases, courts consider normal grounds for divorce under the Act.
Whether counselling is mandatory prior to no fault divorce?
Counselling is a mandatory step in the proceeding. During the cooling off period, the court will be directing the spouses to undergo counselling to check whether they are still willing to get a divorce.
How is the custody of a child determined post No fault divorce?
Child custody is also part of the mutual agreement. Both parties should agree to it mutually. The court will ensure the child’s best interests and their future are protected.
How is property division handled in a no-fault divorce under mutual divorce?
During the mutual divorce, according to Section 13-B, the spouses are mandated to come to an agreement regarding the division of assets, property, and other financial matters. Both parties are required to disclose their assets and liabilities and a mutually accepted arrangement.
Can remarriage occur immediately after obtaining a no fault divorce under the Hindu Marriage Act?
After obtaining a mutual divorce, parties are legally free to remarry. There is no waiting period for remarriage after obtaining divorce, but the spouses should finish all the legal formalities of the divorce.
This article has been written by Stuti Agarwal. The article enumerates everything a Rajasthan Judicial Examination aspirant wants to know. It is your one-stop solution to learn about the syllabus, vacancies, application process, and other intricacies involved during the preparation of this coveted exam. You can also find some words of motivation and strategy building for the journey you are embarking on!
Table of Contents
Introduction
Entering the judicial services examination is one of the supreme choices in the career of law students. Judicial service is one of the dreams that law aspirants have had since the inception of their careers. With the fame gained, the law field as a career choice has been one of the popular choices of students after school. Due to an influx of aspirants in the legal field, the candidates opting for the judicial services examinations as their career options have also seen a significant increase. Thus, there exists a lot of competition in the judicial services examination, and so the aspirants need to have a study plan in place that particularly suits them and not the popular belief or notion.
In this article, we are going to discuss the Rajasthan Judicial Services Examination and the nuances associated with it. The Rajasthan Judicial Services Examination is one of the popular judicial services exam choices of law students, as its preliminary stage can be attempted even before procuring the degree; that is, candidates can sit for the exam in their final year of college. Other judicial services exams majorly require an LLB degree from the candidates in the application process, mandatorily. This is why the Rajasthan Judicial Services Examination has become a popular choice for judicial services exam aspirants, as it saves them a year for them.
Rajasthan Judicial Services (RJS) exam : an overview
The Rajasthan High Court conducts the examination for the recruitment of civil judges in the Rajasthan Judiciary. The number of posts filled each year in the exam conducted by the Rajasthan High Court varies depending on the vacancies created. The number of posts filled each year is released each year in the form of a notification by the Rajasthan High Court. The last exam conducted was in 2022, pursuant to a notification released on 22.07.2021.
The article talks about the Rajasthan Judicial Services Examination at length in accordance with the previous notifications released in respect of the same, covering each and every aspect of the same along with the guidance to prepare for the same. There are various questions and confusions in your mind regarding the Rajasthan Judicial Services Examination, which will be answered through this article.
The competition in the Rajasthan Judicial Examination is immense, keeping in mind the number of takers and the preference given to domiciled candidates. It should be kept in mind that candidates who do not belong to Rajasthan are, irrespective of their categories, treated under the general category, which puts the domiciled candidates of Rajasthan on a better footing than the others. Not only this, a preference is given to the candidates who have knowledge about the Rajasthani culture or Rajasthani traditions, as questions related to Rajasthan and its customs are put up in the interview stage to gauge a candidate’s knowledge about the same. Candidates have an edge and gain brownie points when they convince the panel of interviewers about their knowledge and familiarity with the cultural background of the culturally rich state of Rajasthan.
Rajasthan Judicial Services (RJS) designation and pay scale
What is the post for which the aspirants do so much hard work? The post of civil judge is the result of all the dedication and hard work that the students who sit for the Rajasthan Judicial Services Examination get in return. The pay scale for the same Notification No. F. 11 (3) Judi/2002, dated 7-5-2003, published in Rajasthan Rajpatra dated 17-5-2003:
S.No.
Name of Post
Grade
Scale of pay
(a)
Civil Judge (Junior Division)
III
9000-250-10750-300-13150-350-14550.
(b)
Cum-Judicial Magistrate (F.C.)
II
If found suitable by the High Court on completion of satisfactory and continuous service of five years from the date of entry and has passed the departmental examination, if any, prescribed by the High Court, then, Rs. 10750-300-13150-350-14900.
(c)
Cum-Judicial Magistrate (F.C.)
I
If found suitable by the High Court after completion of another five years of satisfactory and continuous service. Rs. 12850-300-13150-350-15950-400-17550.
If found suitable by the High Court after Five years of satisfactory and continuous service as a Civil Judge (S.D.) Grade III Rs. 14200-350-15950-400-18350.
If found suitable by the High Court after completion of another five years of satisfactory and continuous service as a Civil Judge (S.D.) Grade II Rs. 16750-400-19150-450-20500.
(g)
District Judges including additional District Judges
Entry Level
Rs. 16750-400-19150-450-20500.
(h)
District Judges
Selection Grade
Rs. 18750-400-19150-450-21850-500-22850.
(i)
District Judges
Super Time Scale
Rs. 22850-500-24850.
Rajasthan Judiciary (RJS) exam
Rajasthan Judiciary (RJS) exam Application form
The application form for enrolling in the Rajasthan Judicial Services Examination is made available online on the Rajasthan High Court’s official website. The candidates should also read the Rajasthan Judicial Service Rules, 2010 (as amended up to 01.07.2021) which came into force with effect from 19.01.2010, for a better understanding of the dos and don’ts regarding their candidature. The candidates must strictly adhere to the instructions on the admit card and the Rajasthan Judicial Service Rules, 2010 to avoid any regulatory action against them, which can lead to the rejection of their application, and they may be barred from sitting for the Rajasthan Judicial Services Examination.
The candidates must declare their eligibility with the utmost care and shall refrain from making a fake representation, as if anything declared related to eligibility is found wrong at a later stage, it may lead to the rejection of a candidate’s application altogether.
There is a nominal fee which is levied on the Rajasthan Judicial Services Examination aspirants when they fill out their enrolment form. However, the said fee varies according to the category to which a particular candidate belongs. The following chart shows the fees levied for the application form across categories as per the notification dated 22.07.2021 for the Civil Judge Cadre exam:
Category
Fee
General Category or other creamy layers of other backward categories
INR 1000/-
Non-creamy layer of other backward classes of Rajasthan / Economically weaker Sections of Rajasthan
INR 750/-
Scheduled Caste / Scheduled Tribe / Divyaang category of Rajasthan
INR 500/-
In no event can the application fee for the enrolment of the Rajasthan Judicial Services Examination be refunded to the applicants once it is paid by them. The only event in which the refund can be processed is if the candidate is not admitted to the examination by the court.
The directions to fill out the online application form were issued by the Rajasthan High Court on 30.07.2021. The candidates are mandatorily required to go through the directions specified thoroughly before filling out the online application form for the Rajasthan Judicial Services Examination.
Documents required for Rajasthan Judiciary (RJS) exam
We know that the application for the Rajasthan Judicial Services Examination may have to be submitted in physical form, that is, the printout of the online application form affixed with a recent coloured passport-size photograph, affixed with signature at the specified place, along with such other documents as asked, whenever directed by the authorities to do so.
There are some prerequisites that every candidate shall be ready to fulfill in order to apply for the Rajasthan Judicial Services Examination for the District Judge post, as per the notification dated 05.01.2023. Following is the list of documents that need to be attached to the application form compulsorily by all the candidates:
Senior Secondary (Class 12th) school passing certificate;
Senior Secondary (Class 12th) school mark sheet;
Higher Secondary (Class 10th) school passing certificate;
Higher Secondary (Class 10th) school mark sheet;
Graduation mark sheet;
LLB degree;
Birth Certificate or Senior secondary certificate for Date of birth proof;
Passport size photographs – 2;
Identity documents (either Aadhar Card, PAN card, Voter ID card, Passport, or Driving Licence);
Enrolment Certificate with a bar if practising lawyer;
*Original Certificate from District Judge concerned/ Registrar of the concerned High Court/Supreme Court in the prescribed format as ANNEXURE I or ll (with Seal of the concerned Authority) regarding character and length of actual practice of candidate (for District Judge post)
*Certified copies of those ten (10) judgments of which the candidate has furnished particulars while submitting the online application form. (for the district judge post)
Original Character Certificates as ANNEXURE lll of two responsible persons not related to him issued not prior to six months from the date of submission of the application form (for District Judge post);
Original ‘No Objection Certificate’ of the Department for appearing in the examination and proof of length of service (if any) (for District Judge post);
Attested copy(ies) of document relating to Dismissal / Removal / Termination (if any) (for District Judge post);
Certified copy(ies) of Judgement/Order relating to conviction or acquittal (if any);
Certified copy(ies) of registered FIR (if any);
Certified copy(ies) of Charge-sheet filed in a Court of Law (if any);
Certified copy(ies) of the negative final report filed in a Court of Law and order passed thereon regarding acceptance/rejection/present status, if any;
Attested copy(ies) of Order relating to permanently Debarring/Disqualifying from appearing in any Examination or interview (if any);
Attested copy(ies) of Order relating to Professional Misconduct under Advocates Act, 1961 or any other Law for the time being in force (if any);
Note- [*Every practising candidate is required to accompany their application with a certificate in the format prescribed by the Recruiting Authority, from the District Judge concerned where ordinarily the applicant is practising, as to the character and length of the actual practice of the candidate, along with such other documents as may be specified. If the applicant is practising in the High Court, the certifying authority shall be the Registrar of the concerned High Court, and if he is practising in the Supreme Court, the certifying authority shall be the Registrar of the Supreme Court.
Not only this, every candidate shall furnish particulars of 10 judgements (which they have been a part of) of the preceding seven years for the examination for the post of District Judge. He shall produce certified copies of such judgements before the Main Examination, as prescribed by the Recruiting Authority. The Candidate is required to provide particulars of final orders/judgments personally argued by him, not interlocutory orders, bail orders, orders based on compromise or orders of withdrawal of the case.]
Other specific documents required for people applying under a certain category as per the last notification of the Rajasthan Judicial Services Examination:
A married woman desirous of getting the benefit of reservation in the category of Scheduled Caste, Scheduled Tribes, Other Backward Classes and more backward classes shall have to produce a Caste/Class Certificate issued with the name of her father, parental address and parental income failing which the reservation claimed for shall not be allowed in light of Circular No. F.15(24)DOP/AIl/75 Jaipur dated 24.06.2008 of Department of Personnel (A-ll), Govt. of Rajasthan.
In the case of a widow, she will have to furnish a certificate of death of her husband from the competent authority, and in case of divorce, she will have to furnish proof of divorce.
Candidates seeking reservation under the Economic Weaker Section of the society have to produce a certificate issued to them as proof of their eligibility from a certain Authority prescribed for the same and recognized under such applications.
Persons with benchmark disabilities shall have to produce a certificate of their disability in a prescribed format duly issued by the Certifying Authority authorized by the Appropriate Government.
Candidates belonging to SC, ST, OBC or MBC shall have to produce a caste certificate for claiming the benefit of reservation in a prescribed format duly issued by the competent authority, in case OBC (NCL), not prior to one year from the last date of submission of the application form.
Proof of residency in Rajasthan if taking domicile category reservation under any category.
Rajasthan Judiciary (RJS) exam admit card
The Admit Card of the Rajasthan Judicial Services Examination is made available some days before the Prelims stage. The admit cards are to be downloaded from the Rajasthan High Court website – www.hcrai.nic.in. There is no other way in which the admit cards may be made available.
The details required by the candidate to download the admit card are:
User name (must have been created while submitting the application form);
Password (the same password as created by the candidate during submission of the application form);
Captcha code.
The candidates must carry a printout of the admit card downloaded by them. The candidates must then carry with them the physical copy of the admit card to the examination center. The candidates need to follow each and every instruction written on the admit card to avoid disqualification from sitting in the exam. They should also adhere to the norms specified for the conduct during the examination and strictly not use or attempt to use any unfair means.
Date and place of Rajasthan Judiciary (RJS) exam
The date of conducting the Rajasthan Judicial Services Examination is announced by the Rajasthan High Court through a notification. The place where the Rajasthan Judicial Services Examination takes place is in two cities in Rajasthan, namely, Jaipur and Jodhpur. However, if, in a particular attempt, the number of aspiring candidates increases beyond the limit which can be accommodated to appear in the examination in these two cities, then the same can be held in any other city as well.
The admit card released to all the candidates mentions the date and center of the particular attempt of the Rajasthan Judicial Services Examination.
Rajasthan Judiciary (RJS) exam vacancies
There are never the same vacancies released in any judicial services examination. The vacancies are the first thing checked by an aspirant of the judicial services exam because they determine the competition which the candidate has to beat by sitting in the exam.
The vacancies announced each year are divided into various categories. In 2023, the following number of vacancies are expected to be released:
Category
Number of expected posts
General
46
SC
14
ST
10
Other Backward Classes (OBC)
18
Most Backward Classes (MBC)
1
The number of vacancies can be amended and varied after the announcement, through a follow-up notification released by the Rajasthan High Court for a particular attempt at the Rajasthan Judicial Services examination.
It is important to note that for the Rajasthan Judicial Services Examination, the candidates having a domicile outside of Rajasthan are all categorized under the General Category, irrespective of the fact that they belong to any category such as Scheduled Castes, Scheduled Tribes, Other Backward Classes, More Backward Classes and Economically Weaker Sections, in any of their respective states. This means that the Rajasthan Judicial Services Examination provides preference in reservation benefits to candidates domiciled in Rajasthan itself.
In case the candidates for filling the vacancies in a particular category are not found available, then the same are filled as per the provisions prescribed under the Rajasthan Judicial Service Rules, 2010.
Past vacancies in Rajasthan Judiciary (RJS) exam
The vacancies in the past for the District Judge post as per notification dated 05.01.2021 of the Rajasthan Judicial Services Examination are enumerated in the schedule attached below:
Year
Total Vacancies Announced
General category
SC
ST
OBC
EWS
MBC
Disabled
2020-21
60
23 (out of which 6 posts reserved for women, and out of these 6 posts 1 post reserved for widow woman)
09 (out of which 2 posts reserved for women)
07 (out of which 2 posts reserved for women)
12 (out of which 03 posts reserved for women)
06 (out of which 1 post reserved for women)
03
Out of the total of 60 vacancies, 03 posts reserved for persons with benchmark disabilities)*
2019-20
02
02
–
–
–
–
–
–
Backlog vacancies 2018-19
04
–
02
02
–
–
–
–
Backlog vacancies 2016-17
02
–
01
01
–
–
–
–
Backlog vacancies 2015-16
09
–
05 (out of which 1 post reserved for woman)
04 (out of which 1 post reserved for woman)
–
–
–
–
Backlog vacancies 2011-12
08
–
05 (out of which 1 post reserved for woman)
03
–
–
–
–
*Out of the total of 03 vacancies enlisted for persons with benchmark disability, 1 post was reserved for blindness and low vision, 1 post reserved for deaf and hard of hearing persons and 1 for locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy.
The vacancies for women, including widows and divorcees, are always horizontal, that is, within the category. This means that the selected woman will be adjusted in the relevant category, that is, among the SC / ST / OBC /MBC / EWS / General categories, to which such a woman belongs. The same thing applies to the category of persons with benchmark disabilities.
Vacancies in the past in the Rajasthan Judicial Services Examination for the Civil Judge Cadre post are as follows, as per the notification dated 22.07.2021:
Year
Total Vacancies Announced
General category
SC
ST
OBC
EWS
MBC
Benchmark Disability
2020
Up to December 2020
35 (out of which 10 posts reserved for women, and out of these 10 posts 02 post reserved for widow woman)
14 (out of which 4 posts reserved for women, and out of these 4 posts 1 post reserved for widow woman)
10 (out of which 3 posts reserved for women)
18 (out of which 5 posts reserved for women, and out of these 5 posts 1 post reserved for widow woman)
8 (out of which 2 posts reserved for women)
4 (out of which 1 post reserved for woman)
4*
31
Up to December 2021
14 (out of which 4 posts reserved for women, and out of these 4 posts 1 post reserved for widow woman)
4 (out of which 1 post reserved for woman)
03
6 (out of which 1 post reserved for woman)
03
01
01*
*Out of the total of 05 vacancies enlisted for persons with benchmark disability, 1 (one) post was reserved for blindness and low vision, 1 (one) post reserved for deaf and hard of hearing persons and 1 (one) for locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy and 2 (two) for autism, intellectual disability, specific learning disability and mental illness and multiple disabilities including deafness and blindness in the posts identified for such benchmark disabilities.
The vacancies for women, including widows and divorcees, are always horizontal, that is, within the category. This means that the selected woman will be adjusted in the relevant category, that is amongst SC / ST / OBC /MBC / EWS / General categories, to which such a woman belongs. The same thing applies to the category of persons with benchmark disabilities.
Rajasthan Judiciary (RJS) exam eligibility
Each candidate who fulfills the eligibility criteria mentioned in the Rajasthan Judicial Services Examination notification becomes eligible to write and appear in the said examination. There is no relaxation in favor of any candidate who does not fulfill the eligibility criteria as mentioned in the official notification.
The following is the eligibility requirement for sitting in the Rajasthan Judicial Services Examination:
Citizenship
The candidates must be Indian citizens.
Age limit
The minimum age requirement is 23 years and the maximum age limit is 35 years. However, there is a relaxation of 5 years in the upper age limit for Scheduled Caste (SC), Schedule Tribe (ST) and Other Backward Class candidates (OBC).
Educational requirement
The applicants must hold a bachelor’s degree in law from a recognized law university.
Disqualification for Rajasthan Judicial Services (RJS) exam
In the notification for the Rajasthan Judicial Services Examination, there are some elaborate pointers regarding the disqualification from appearing in the exam. The following are such disqualification criteria mentioned in the past notification for the recruitment of District Judge dated 05.01.2021 and have generally also been notified under the Rajasthan Judicial Services Rules, 2010:
A person dismissed by the Central Government or by the State Government or convicted of an offence involving moral turpitude or any such offence, which in the opinion of the Recruiting Authority renders him unsuitable for appointment in Judicial Service shall not be eligible for appointment.
No person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. Before a candidate is finally approved for appointment by direct recruitment, he shall be required to appear before a Medical Board which will examine him and certify if he is fit for appointment to the service.
No person shall be qualified for appointment to the Service or being in Service if he has more than one spouse living.
No person shall be qualified for appointment to the service or being in service if he has been dismissed or removed from service by any High Court, government or statutory body or local authority.
No person shall be qualified for appointment to the service or being in service if he was or is convicted for any offence involving moral turpitude or has been permanently debarred or disqualified by any High Court or Union Public Service Commission or any State Public Service Commission from appearing in any examination or interview.
No person shall be qualified for appointment to the Service or being in Service if he, being an Advocate, was found guilty of professional misconduct under the provisions of the Advocates Act, 1961 (Central Act 25 of 1961) or other law for the time being in force.
No person shall be qualified for appointment to the Service or being in Service if he has accepted or accepts dowry at the time of his marriage. ln this clause, the word “dowry” shall have the same meaning as assigned it in the Dowry Prohibition Act, 1961 (Central Act 26 of 19671.
No person shall be qualified for appointment to the service or being in service if he has more than two children on/or after the date of commencement of the Rajasthan Judicial Service Rules, 2010 came into force w.e.f. 19.01.2010 (“Rules”). However, the said pointer comes with the following provisos:
8.1. the candidate having more than two children shall not be deemed to be disqualified for an appointment so long as the number of children he/she has on the date of commencement does not increase;
8.2. where a candidate has only one child from earlier delivery but more than one child is born out of a single subsequent delivery, the children so born shall be deemed to be one entity while counting the total number of children;
8.3. while counting the total number of children of a candidate, the child born from earlier delivery and having disability shall not be counted;
8.4. any candidate who performs remarriage, which is not against any law, and before such remarriage, he is not disqualified for appointment under this sub-rule, he shall not be disqualified if any child is born out of single delivery from such remarriage;
8.5. a child born within 280 days from the date of commencement of the “Rules” shall not constitute disqualification.
Phases of Rajasthan Judiciary (RJS) exam
The Rajasthan Judicial Services Examination for Civil Judge Cadre is conducted under three different stages. These stages are the Preliminary Stage (Prelims), Mains Stage (Mains) and the Interview Stage. This is a clear and go-ahead type of process to reach the final stage. Minimum cut-off marks are announced in the Prelims which the candidates are required to secure in order to move to the Mains stage. Similarly, the cut-off marks for the Mains stage are announced to reach the final Interview stage.
Rajasthan Judiciary (RJS) exam Prelims
The Prelims stage exam consists of an objective type question paper containing 100 questions, divided into 70 questions of law and 30 questions of language (English and Hindi). Each question contains 1 mark without any negative marking. The duration of the Prelims exam is 2 hours.
This exam is conducted on OMR sheets. The official answer key is published by the Rajasthan High Court after the exam is conducted before declaring the result. In various instances, answers officially announced in the key are challenged by students or other stakeholders before the High Court and the decision on the same decides the future course of action of how the answer to a particular question will be treated for evaluation.
Points to remember in the Prelims stage:
A candidate must not prepare for the Prelims only witha complete focus on Prelims per se. The syllabus for Prelims (law section) and Mains (both law papers) is the same. Not only this, there is very little time given in between the Prelims stage and the Mains stage. If a candidate only focuses on Prelims, that is, only with respect to a view of objective type questions, then it will be very difficult to cover the whole syllabus from the subjective point of view for the Mains stage, keeping in mind the time given for conducting the Mains stage after the result for Prelims is declared.
The Prelims stage is an OMR based examination. The candidates should strictly follow the instructions with respect to filling up the details in the OMR sheet as any mistake in the same can lead to rejection of the attempt.
Candidates should also take extra care while filling the answers in the bubble of the OMR sheet as it is often seen that candidates commit mistakes in filling the answers against the correct bubble number, which leads to a problem as OMR sheets are not changed by the examiners.
Rajasthan Judiciary (RJS) exam Mains
The Mains stage is the subjective exam. The candidates who qualify for the Prelims stage are eligible to sit for the Mains exam.
The Mains stage is conducted in the form of 4 separate exams, the details of which are contained herein below:
Subjects
Marks
Duration
Law Paper – I (Civil Law)
100
3 hours
Law Paper – II (Criminal Law)
100
3 hours
Hindi Essay
50
2 hours
English Essay
50
2 hours
The Committee constituted by the Chief Justice shall scrutinise the applications of the applicants who are qualified for the main examination and shall satisfy itself before granting a certificate in case the application has been made strictly in accordance with the provisions of Rajasthan Judicial Service Rules, 2010 and the decision as to the eligibility or otherwise of the candidates for admission in the Main Examination shall be final. No candidate shall be admitted to the Main Examination unless he holds a certificate of admission granted by the person authorised by the Chief Justice.
Rajasthan Judiciary (RJS) exam Interview
The interview stage of the Rajasthan Judicial Services Examination is reached by a candidate only after clearing the Mains stage. The maximum mark out of which the candidates are marked is 35 marks in the interview stage.
As per the notification released by the Rajasthan High Court, the interview stage of the Rajasthan Judicial Services Examination typically involves questions based on the personal and academic background of the candidate. Not only this, the interview also includes questions based on current affairs, general knowledge and legal knowledge of the candidate.
The candidates are also marked on the basis of their proficiency in the Rajasthani dialect and their knowledge of Rajasthani social customs. However, this is just an added feature and not the only attribute on which the candidates are marked at this stage. They are also judged on their demeanour, personality and overall knowledge of the questions put up.
After the interview, a merit list of the candidates (category-wise) shall be prepared on the basis of their aggregate marks obtained in the Main Examination and interview, considering their suitability in general.
Action in case of a tie
The general suitability for service of the candidates securing equal aggregate marks in the Main Examination and interview shall firstly be determined on the basis of higher marks obtained in the interview and in case, the candidates secure equal marks even in the interview, the merit shall be determined by giving higher preference to the candidate who was enrolled as an advocate on the earlier date.
Minimum qualifying marks in each stage
The Rajasthan Judicial Services Examination provides for the minimum marks which a candidate needs to secure for recruitment in the post of Civil Judge in order to be eligible for the merit list of the particular stage. These minimum marks required also vary across various categories, as mentioned below:
Category
Minimum Qualifying Marks (Prelims)
Minimum Qualifying Marks in each Law Paper of Mains Stage
Minimum Qualifying Marks in Aggregate in Mains Stage
General
45%
35%
40%
SC
40%
30%
35%
ST
40%
30%
35%
EWS (Economically Weaker Section)
45%
35%
40%
OBC (Other Backward Class)
45%
35%
40%
Rajasthan Judiciary (RJS) exam syllabus
The syllabus across all three stages of the Rajasthan Judicial Services Examination for Civil Judge Cadre Post is provided in the official notification issued by the Rajasthan High Court itself. Following is the syllabus segregated for the Civil Judge Cadre post under all three stages, respectively:
Rajasthan Judiciary (RJS) exam Prelims
The Prelims stage consists of just one objective type exam which is divided into two broad categories that is – (i) Section for law and (ii) Section for language. The syllabus of law for Prelims contains all the laws, whether civil, criminal or local, of Rajasthan.
The syllabus for the law section is the same as that of the syllabus of law for the Mains exam which is as follows:
The Constitution of India
Civil Procedure Code, 1908
Law of Contract & Partnership, 1872
The Indian Evidence Act, 1872
The Limitation Act, 1963
The Rajasthan Rent Control Act & Revenue Laws, 2001
The Specific Relief Act, 1963
Hindu Law
Muslim Law
The Transfer of Property Act, 1882
Interpretation of Statutes
General Rules (Civil) & Order/Judgment Writing
Criminal Procedure Code, 1973
The Indian Penal Code, 1860
Law on Narcotic Drugs and Psychotropic Substances
Law on Juvenile Delinquency, 2015
The Negotiable Instruments Act, 1881 (Chapter XVII)
Law of Probation of Offenders, 1958
Protection of Women from Domestic Violence Act, 2005
Framing of Charges (Criminal) & Judgment Writing
The syllabus for the language section (for English Proficiency) of the Prelims exam is as follows:
In all, the syllabus of law for the Prelims contains all the central legislations from both the civil and criminal sides. There is no such explicit bifurcation in the Prelims law paper though (consisting of 70 marks component) and there is no such division of marks in the paper in this stage.
Rajasthan Judiciary (RJS) exam Mains
The Mains stage consists of 4 (four) exams, which is enumerated as follows:
Law Paper – I
Law Paper – II
Hindi Essay Writing
English Essay Writing
The syllabus for Law Paper – I is as follows:
The Constitution of India
Civil Procedure Code, 1908
Law of Contract & Partnership, 1872
The Indian Evidence Act, 1872
The Limitation Act, 1963
The Rajasthan Rent Control Act & Revenue Laws, 2001
The Specific Relief Act, 1963
Hindu Law
Muslim Law
The Transfer of Property Act, 1882
Interpretation of Statutes
General Rules (Civil) & Order/Judgment Writing
The syllabus for Law Paper – II is as follows:
Criminal Procedure Code, 1973
Law of Evidence, 1872
The Indian Penal Code, 1860
Law on Narcotic Drugs and Psychotropic Substances
Law on Juvenile Delinquency, 2015
The Negotiable Instruments Act, 1881 (Chapter XVII)
Law of Probation of Offenders, 1958
Protection of Women from Domestic Violence Act, 2005
Framing of Charges (Criminal) & Judgment Writing
The other two segments, which are the Hindi essay writing and the English essay writing do not have definite syllabus for the same. As per the notification, the topics for preparation can be divided into categories such as:
Rajasthan and its culture
Legal Topics
Contemporary socio-economic issues
Current Affairs and relevant news articles
Rajasthan Judiciary (RJS) exam interview
The interview stage of the Rajasthan Judicial Services Examination contains 35 marks. Candidates who qualify for the Mains stage reach the interview stage. General knowledge, legal knowledge, general awareness, Rajasthani dialect, knowledge about Rajasthani culture and customs etc. are some of the criteria which help candidates in the interview stage. Rajasthan Judicial Services gives an edge to the candidates who know Rajasthani culture and generally about Rajasthan, therefore, good knowledge about the same can help earn brownie points.
Other important pointers as per the notification
The Rajasthan Judicial Services Examination enumerates some of the important guideline pointers to ensure hassle free and confusion free conduct of the exam. Following are some of these important pointers:
Applicability of Right to Information law on the recruitment process under Rajasthan Judicial Services Examination
Before the conclusion of the entire recruitment process, no information pertaining to this recruitment shall be provided on the application submitted under the Rajasthan Right to Information (High Court and Subordinate Courts) Rules, 2006, and the same could be provided as per rules, only after the conclusion of the recruitment process. The information shall be provided as per the rules on the application(s) submitted within 06 months from the date of declaration of the final result. However, no information shall be provided on the application submitted beyond 06 (six) months from the date of the declaration of the final result.
Prohibition of gadgets in the examination hall
No candidate shall be allowed to bring/possess/keep with them cellular phone, calculator, Bluetooth or any other electronic / communication device and purse etc. in the examination centre. Candidates are allowed to bring only a pen, pencil, admit card or any other material as specifically directed by the Rajasthan High Court in the examination room. Centre Superintendent / Rajasthan High Court shall not be responsible for the safety of the above gadgets if deposited or kept somewhere outside the examination hall and this shall be done on the candidate’s own responsibility.
Availability of writers
Every candidate shall themselves write answers to the questions in the examination. However, the facility of Scribe will be provided to such persons as per existing Rules, who are unable to write the answer on their own. Such facilities will not be provided to the persons who temporarily or accidentally get disabled.
Prohibition of the use of unfair means and consequences thereof
All the candidates shall comply with the instructions issued by the Rajasthan High Court / Centre Superintendent/Invigilator/Officer authorized by the Rajasthan High Court. lf any candidate fails to comply with the instructions given herein or is found using unfair means or actions in the exam, such candidate shall face consequences as may be taken under the Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992.
Consequences of impersonation and other offences in the Rajasthan Judicial Services Examination:
A candidate who is or has been declared by the Recruiting Authority or the Appointing Authority, as the case may be, guilty of impersonation, of submitting fabricated or tampered with documents, of making statements that are incorrect or false, of suppressing material information, using or attempting to use unfair means in the examination or interview or otherwise resorting to any other irregular or improper means for obtaining admission to the examination or appearance at interview shall, in addition to rendering himself liable to criminal prosecution, be debarred either permanently or for a specified period:
by the Recruiting Authority or the Appointing Authority, as the case may be, from admission to examination or appearing interview held by the Recruiting Authority for selection of candidates, or
by the Government from employment under the Government.
Use of external forces in selection is strictly prohibited:
No recommendation for recruitment either written or oral other than that required under the Rajasthan Judicial Service Rules, 2010, shall be taken into consideration. Any attempt on the part of a candidate to enlist support directly or indirectly for his candidature by other means shall disqualify him for recruitment herein under Rajasthan Judicial Services.
Points to remember for Rajasthan Judiciary (RJS) judgement writing
The aspiration of becoming a judicial officer is one of the key driving factors behind the hustle which the candidates sitting for the Rajasthan Judicial Services Examination accept with full might. One very important aspect of this examination is the segment regarding Judgement Writing.
The candidates should keep in mind the following pointers for better results:
The first and foremost essential quality which a judgment should possess is impartiality. It should not reflect that the judgment delivered or written has chosen a certain side, in short, it should not drip any bias on the face of it.
The judgment should be reasonable and logical, not just legally but also seem reasonable to a layman factually.
Maintaining integrity while writing a judgment should not be forgotten.
Reference to relevant laws is a sine qua non, as it makes the judgment legally sound and helps the readers comprehend the reasoning behind it.
The chronology of facts, legal provisions and previous case laws on the subject must be followed, which traces back the writer’s steps in arriving at the decision in the judgment.
The focus of the judgment should be to be justiciable to the aggrieved party, as the end goal of a judgment is to deliver justice.
The principle “justice should not only be done but also seen to be done” should be strictly followed.
The judgment should be of meaning to all the stakeholders in the legal fraternity apart from being of use to the litigant parties.
Simple sentences must be used in the judgment as a verbose and technical text of judgment has a limited reach and the goal of a judgment is to reach out to the masses to act as deterrence.
The text must be direct and precise and should not seem to be beating around the bush.
How to prepare for Rajasthan Judiciary (RJS) interview
The interview rounds of any competitive exam are to judge the spontaneity and smartness of a candidate. The panel of interviewers judge a candidate on the basis of how well a particular candidate presents a mixture of their knowledge, creativity, mindfulness and confidence with their answers to the questions put up. Bookish knowledge is not the only key to cracking the judicial services examinations, or for that matter, any competitive examination.
It is rightly said that one should be smart and not a bookworm. However, this does not in any way diminish the significance of the knowledge of the law subjects through books and bare acts. That is all important, but not JUST that can ensure one’s selection in the Rajasthan Judicial Services Examination.
The key to success in a competitive exam or any judicial services exam, like in this case Rajasthan Judicial Services Examination, is to balance one’s book knowledge of the law and the language subjects along with general awareness. Beyond general awareness, one should focus on one’s demeanour, confidence, fluency in the language, and most importantly, one’s ability to handle the pressure and stress before the panel of interviewers.
How to prepare for Current Affairs
In the Rajasthan Judicial Services Examination, we do not need to pay a very extensive attention to current affairs, as there is no such subject in the syllabus of the Prelims and Mains stages of the Examination. However, current affairs are a determinant factor in the interview stage as the panel of interviewers can delve into a recent issue and ask questions about it. For this, the candidate can prepare by reading a regular newspaper or reading about a particular issue through online articles.
Candidates can also procure material for general knowledge and read articles and other materials on the same. The candidates need to go a step ahead if they get into topics through material for general knowledge as merely knowing the answer to a particular question is not enough to talk about a certain issue in the interview. The knowledge through materials can only prepare a candidate for the questions put up in the written exam but cannot prepare a candidate to express his / her opinion on the same until and unless he/she possesses a deep understanding of the same.
The candidates should also try to prepare their opinions on certain prevalent affairs on the global and national front related to politics, the environment, sports or any social cause. This way they will learn to frame their opinions on issues. They should also practice speaking aloud on a topic and try to speak impromptu on the topics. When they practice speaking aloud, it will boost their confidence and reflect on their personality on the final day.
Rajasthan Judiciary (RJS) exam previous year question papers
Rajasthan High Court provides on its website the link which contains previous year question papers for the aspirants’ ease of reference. The link provides question papers for both the District Judge paper and Civil Judge Cadre paper under separate heads.
Books to refer for Rajasthan Judiciary (RJS) exam
There is a plethora of books and an abundance of material for all the judicial services examinations. However, since the pattern of the exam, syllabus and other nitty-gritty of the exam are different for judicial services examinations in different states, there are books dedicated to particular states’ judicial services examinations as well. Therefore, some of the famous books for the Rajasthan Judicial Services Examination are mentioned below in tabular form:
Name of Books
Authors and Publications
Subjects
Rajasthan Judicial Service (Pre.) Examination
Published by Law & Justice Publishing Co.
Solved Past Year Rajasthan Judicial Services Exam Question Papers
Any competitive exam requires a lot of mental strength and self belief, if you secure mental toughness, you have won half the battle. At this point in your career, you will find your peers to earn money through corporate jobs and it is natural human nature to have doubts and second thoughts regarding your career choices. The preparation stage, therefore, not only requires hard work and discipline but also needs the mind to be strong. Holding confidence in oneself is the most essential ingredient to sail through the preparation stage.
The aspirants must maintain a positive mindset. It is understandable that you will have your lows, you shall face moments where you feel like giving up, but what matters is how you gather yourself from that point to fight back again to achieve the goal.
How to increase concentration
The judicial services examination requires a lot of hard work, diligence, positivity and concentration throughout the preparation stage of the exam. However, the most prevalent problem which most of the aspirants to the judicial services examinations face is building concentration. These days, it has been observed that our generation is facing a lot of issues in maintaining attention span, which affects our overall concentration levels for any task we do, not just studies.
Candidates pursuing Rajasthan Judicial Services Examination or any other states’ judicial services examination must try to get into a habit of practicing meditation. Meditation is said to help in increasing one’s concentration and also helps in bringing positivity and calmness into one’s day. Not only this, meditation also helps in increasing the retention power of an individual, which also helps in the preparatory stage for competitive examinations.
Mental strength is very important to be maintained during the whole process of preparation for the competitive Rajasthan Judicial Services Examination, especially for the purpose of this article though. There is no set standard rule or process which can be followed by all the candidates for achieving and maintaining a positive approach as there are different factors which affect different people in a different manner. It is completely alright to have ones’ lows and moments of self doubt as competitive examination aspirants do not have a guaranteed result.
How to deal with distraction
Candidates have a major concern about dealing with the distractions around them during their preparation stage. The types of distractions faced by candidates can be divided as follows, along with their corresponding solutions to tackle the same:
Distractions from peers earning money and moving forward in life
It is very natural to feel low and distracted by the fact that the peers of the candidate are moving forward in their careers while on the other hand, the candidate is still preparing for an uncertain examination. It is very natural to feel that life is at a standstill and stagnant as compared to other people in the profession. However, at such a time, the candidate needs to focus on the fact that “slow and steady wins the race.” The mantra for feeling low because of uncertainty in life is to have a thought that whatever you are working towards will bring your life at par with everyone else who, at this moment, you feel is ahead of you in life. The thought that the goal you are trying to achieve and are working for will settle your life ahead. This thought itself should be motivating enough to not fall back into the depressing thought and work even harder to achieve the goal one is striving for.
Distractions related to low motivation
There might be times when a certain attempt does not go well for a candidate. This can be a mode of demotivation for them and bouncing back from that stage is a very important aspect which candidates must learn. Dealing with failures is what one needs to learn to survive in the preparation stage of competitive exams, and thus, this applies to the Rajasthan Judicial Services Examination aspirants. Surrounding oneself with people with a positive approach in life is a very important factor which impacts the psyche of an affected person immensely. It is not just a fight within oneself but a fight against people who surround us as there are a variety of people around who affect us in varied manners.
Distractions on social media
It is often seen that people crave something which is denied to them or that they do not have access to. It is, thus, not necessary to abandon one’s profiles on social media, but one should try to refrain from using it during a study schedule. Strict study schedules need to be followed by the candidates. A strong willpower is needed to adhere to one’s study plans and timetables. Abandoning smartphones or social media is no solution. One should rather use them as a treat or reward for fulfilling one’s study targets.
Distractions from not achieving study goals
While preparing for a competitive examination, every candidate sets a particular target for themselves, on a daily basis or for a few days. However, in the initial phase itself, there can be instances when an aspirant is unable to achieve its targets, which demotivates the person. In such a case, one should always review their target set. Sometimes, one should try to set those targets which they are sure of achieving. This will not only boost their confidence but will also help them to gain the zeal to even try to increase those targets gradually and achieve them.
Distraction from failing one attempt
It is very common to have re-takers of competitive examinations. Similarly, there can be instances where a candidate doesn’t get through a particular attempt and re-takes the exam. It can be seen that a person feels low on motivation because they missed out on the previous attempt. Maybe a candidate feels disheartened because of missing the attempt by a very small margin. Even after all this, the only thing that can keep one moving is the dream of seeing themselves adorning that prefix. Also, a person who has experienced one attempt is always on a better footing than freshers and should try to reap that experience for their better performance.
Strategy for preparation
It is a known fact that there cannot be a standard which can be followed for preparation for any competitive examination as the calibre, skills and grasping power of each and every individual cannot be the same and at par. No two individuals can be said to possess the same set of skills to learn a particular concept. Therefore, the strategies can only be suggestive and can be tailor-made according to one’s own set of skills as self-awareness is essential for the preparation stage of these competitive exams including the Rajasthan Judicial Services Examination.
The first and foremost question which arises is the time as to when one should start preparing for the Rajasthan Judicial Services Examination. The answer to this question is dependent upon the following two situations:
If a candidate is pursuing 5 year integrated program LLB degree
In this case, the candidate should start preparing for the exams from their 3rd year of college, at least. However, if not from the 3rd year, the candidate should definitely start their preparation from the 4th year of their law school. This is because they can extend their law school curriculum for their preparation for the judicial services examination and also strengthen their conceptual clarity for better retention. There are many candidates who appear for Rajasthan Judicial Services examination after their 5 year law school. The Rajasthan Judicial Services Examination can also be given by the aspirants before they have passed their final exams of the last year of law school i.e., when the candidate is in the last year of college and has not received the degree yet. Rajasthan judiciary is the only state which gives such a privilege to judicial exam aspirants. There are various candidates who appear for the Prelims of the Civil Judge Cadre post of the Rajasthan Judicial Services Examination and come out with flying colours as they are in the momentum of their academic force right in their law school. The candidates in this scenario take assistance from various mock tests available to strengthen their preparation.
However, there is no loss, even if you are someone who has not yet started your preparation and are in the last leg of your law school. In such a case, the candidates are in a state where they can devote their total focus on the preparation and can take assistance from online courses available to guide the preparation of the judicial services aspirants, like one offered by LawSikho. The candidates can prepare well for the Rajasthan Judicial Services Examination in a year and can sit for the attempt after one year of passing their law school.
If a candidate is pursuing a 3-year LLB degree
In this case, the candidate should start preparing for the judicial services exam from 2nd year of college for the best results. This is to make sure they do not waste their time after their law school completion and can be ready to crack the judicial services examination at the earliest possible attempt.
Candidates often also take coaching classes alongside their law school to streamline their preparation for the judicial services examination. The candidates in the last leg of their preparation also opt for test series and other mock exams to strengthen their preparation and prepare them for their exam day. Lawsikho is one of the leading platforms which provide various courses and packages to help judicial examination enthusiasts prepare for the same and make their dreams a reality.
Tips and tricks for Rajasthan Judiciary (RJS) Prelims preparation
The Prelims is the entry stage for the Rajasthan Judicial Services Examination. The determinants on which candidates are judged in this stage are:
Time management
Legal Aptitude
Hold on Hindi Language
Hold on English Language
Decision Making
There are some mantras that candidates can keep in mind for getting through the Prelims stage and coming out with flying colours:
Habit of reading bare acts: Bare Acts must be thoroughly read by the candidates at the Prelims stage itself which can help them in the following stages as well. Since Prelims is the MCQ stage, it guarantees direct questions from the bare acts itself which helps the candidates score better.
Reading between the lines: To attempt MCQs, it is very important to look for the minutest of the details. For this, the acts must be read with utmost precision. A detail oriented preparation will help candidates crack the Prelims effortlessly.
Practice mocks: The more MCQs one practices, the better prepared he/she gets for the Prelims stage exam. This is because mocks help a person to manage time and help them practice in the same format of the exam which prepares the candidate for the d-day.
Elimination method: We know that there is no negative marking in the Prelims stage of the Rajasthan Judicial Services Examination. Therefore, the candidates must attempt all the questions in the paper. It is important to go about with the elimination method when one doesn’t know the answer. This helps to make an intelligent guess in the MCQ format of the exam. The elimination method essentially means the trick to intelligibly eliminate each option in the question by putting in reasoning and arriving at a tentative guess of the option for marking as the answer to the question. This helps in making a guess even if a person is not sure of the answer.
Tips and tricks for Rajasthan Judiciary (RJS) Mains preparation
After cracking the Prelims, the Mains stage of the Rajasthan Judicial Services Examination is to be given by the candidates. The candidates are evaluated on:
Writing Skills
Legal Knowledge and Aptitude
Retention Power
Creativity
The tips to stand out on the Mains stage are:
Increase retention power: The Mains stage, as we know by now, is the subjective exam type paper, for which the candidates need to retain the law and provisions to gain better marks in the law papers.
Think beyond bare acts: For preparation in the Mains stage, candidates need to study beyond the bare acts. They should read commentaries and other books which explain a concept in detail along with the case law references so that they can write a meaningful subjective answer in the Mains law exams.
Practice essay writing: Candidates often take law subjects seriously and ignore the essay writing as they think they can write and handle the same. However, they should not do this. One should practice essay writing as it helps form the flow of thoughts, which helps the brain function on the final day.
Practice writing long answers: Studying a concept is different from attempting to write answers to the questions asked. Therefore, as mocks or as part of practising past year question papers, candidates must practice the same by writing their own answers by putting timers so that they can practice writing in a time-bound manner. Practising this helps the candidates on the final day.
Tips and tricks for Rajasthan Judiciary (RJS) interview preparation
When a candidate gets through the Mains stage of the Rajasthan Judicial Services Examination, the last and the final stage left is the interview stage. The interview stage is the mixture of questions such as law questions, general awareness, intersection of law and current affairs, Rajasthani culture and traditions and other related and incidental topics.
Following are a few important things to remember while sitting for an interview:
Ability to hear the question: It is often noticed that people when they think that they know about a particular subject/question put up to them, they rush to answer without letting the other person complete his / her question. This leaves a very bad impact on the interviewers and reflects on the personality of the candidate. Therefore, one should always let the interviewer complete his / her question or sentence before jumping to the answer or replying to the same.
Staying calm: Nervousness before such a big stage of a career is an ingredient which is natural in the recipe for competitive exams. However, being strong and confident is very important for the portrayal of a balanced personality. Therefore, a candidate should always strive to be calm and composed in front of the interviewers.
Understanding the thin line between confidence and overconfidence: The candidates in the interview round should not try to overcompensate for the nervousness they feel. It is often seen that candidates try to pretend to be confident and end up presenting themselves as over-confident. This gives a bad impression on the panel of interviewers and can be detrimental to their interview marks.
Being truthful: When a candidate tries to be pretentious, it is very well grasped by the panel of interviewers. When a candidate does not know a particular answer, he/she must never try to mislead the panel of interviewers, rather he/she should be confident enough to accept the same. Not only this, but the ability to bail oneself out of such a situation is what buys brownie points to a candidate.
Lead the panel of interviewers: The candidates should curate their answers in such a manner which initiates a question out of it. It is a skill which should be practised by the candidates and learned to ace the interview. This way one can lead from the front and channel their interview in an efficient manner.
Frequently Asked Questions (FAQs) on Rajasthan Judiciary (RJS) exam
Is there any fixed pattern which is required to follow for the preparation of Prelims?
No. The preparation for Prelims is undertaken as per the paper pattern which is notified in the notification for the exam every year. Since, the Prelims stage is a multiple choice question type stage, the preparation is done accordingly as per one’s own study pattern which suits them. There is no set number of hours or schedule as capability of each candidate varies and requires a different strategy to crack the exam.
Can the marks of Prelims secured by me be carried forward for another attempt or it expires in each attempt?
The marks in each stage of the Rajasthan Judicial Services Examination expire in each attempt and are NOT carried forward in any circumstance. Therefore, even if you crack the Prelims and move to the Mains stage in one attempt, but somehow fail to crack the Mains subsequently, then next year if you wish to sit for the Rajasthan Judicial Services Examination, you have to again sit for all the stages starting from the Prelims and thereafter advance accordingly.
How many months before should I start preparing for the Prelims?
There is no standard answer to this question. However, candidates must keep this in mind that preparation for the Rajasthan Judicial Services Examination people cannot just prepare in a few months. It should be a proper study plan with not just Prelims stage in mind but as a whole including all three stages together. Please refer to the section of the article which mentions the strategy for preparation for detailed guidance.
Is coaching important for successfully cracking the Rajasthan Judicial Services Examination?
It is advisable to take coaching or classes so as to ensure consistency in preparation.. It is advisable to enroll in a course or coaching to prepare for the Rajasthan Judicial Services Examination. It gives a systematic approach towards the syllabus and creates a regularity in preparation. Furthermore, it can be a tedious job for oneself to handle the pressure of a voluminous syllabus. Not only this, law is a subject where amendments also take place regularly. Keeping track of these amendments. That too of a voluminous legal syllabus as in judicial services examinations, is a very tedious job with chances of missing something or the other. Therefore, guidance is advisable to be taken in order to keep track of the changed and updated status of laws.
This, however, cannot be taken as universal advice, as people have different abilities and calibres. The advice given is only based on a popular opinion and after coming across the difficulties faced by the candidates actually pursuing or have pursued the preparation of the judicial services examination in the past.
Is there any limit on the number of attempts that a candidate can sit for in the Rajasthan Judicial Services Examination?
No, there is no limit in terms of the number of attempts, directly. However, there is an age bar for sitting in the Rajasthan Judicial Services Examination which is mentioned hereinabove in this article. This age bar is also different for different categories.
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Knowledge is a treasure, and education is its manifestation, which brings perfection to an individual. Gaining knowledge and acquiring new skills is a continuous process. Every individual, knowingly or unknowingly, keeps updating knowledge by gathering new information and learning new things from one’s surroundings. This way, he or she is trying to remain updated with the current world.
Meaning
Education and learning are two sides of one coin. As per the Govt. of India Education Policy of 2020, there will not only be cognitive development but also building character and creating holistic and well-rounded individuals equipped with the key 21st century skills.” According to John Dewey, “education is the process of giving a person the skills necessary to take charge of their world and fulfil their obligations”.
Purpose
While imparting education, emphasis should be placed on developing cognitive capacities and foundational capacities. Apart from cognitive capacities like critical thinking and problem-solving it should also develop non-cognitive skills like self-control, intellectual curiosity, ethical values, and emotional security. Education brings economic and social mobility. It also brings inclusion and equality to society. The main purpose of education is to develop a good society capable of rational thinking, creativity, and having high ethical values. Education should further instill compassion, empathy, courage, resilience, and a scientific approach in society. One of the aspects of education is to help acquire a variety of skills and earn a livelihood.
Types of education
Broadly, education can be classified into two parts.
Formal Education
Informal Education
In ancient times, knowledge was shared through word of mouth from generations to generations. The most common way was practical training. This can be called informal education. Formal education started only with the formation of society. Initially, education was not available for the masses. It was accessible only to a few privileged classes in society. With the invention of the printing press, books brought revolutionary changes. Education became available to most of the members of society.
In modern days, the education system is more structured. The syllabus is designed with high quality standards. The curriculum is usually set in such a way that education becomes holistic, integrated, enjoyable, and engaging. To achieve the desired results, teachers should be trained and highly skilled. Most of the time, the medium used is classroom training. Sometimes, it might differ from regular classroom studies (i.e., education through e-learning, distance learning, etc.).
Stages of education
Early childhood education mostly takes place within the family. The mother plays a very important role. Skills like communication, good food habits, cleanliness, and basic moral values are taught by families. They have a lifelong impact on the personality of an individual. Due to the nuclear family system, in modern days, kindergarten schools help children socialise with their peer group as well as with teachers and other members of society.
Primary education: The aim of primary education is to emphasise group activities, light textbooks, and interactive learning in the classroom. Reading, writing, and subjects like language, physical education, science, and mathematics are introduced at this stage.
Middle School: In middle school education, apart from the subjects mentioned above, arts, social sciences, and humanities are also taught. Techniques such as experiential learning and group discussions are also used for a better understanding of the subjects during this stage of education.
Secondary School: In secondary school education, subjects are taught in more depth, with an interdisciplinary understanding of various subjects. More attention is given to the subjects of interest and life aspirations of the students.
Benefits of education
Education helps an individual pursue one’s area of interest and gain more specific knowledge and skills. It helps to adapt to an ever-changing world. Thus, by imparting formal education, the person becomes a productive member of society. The chances of employability are greater when a person is educated. Education is an important investment in human capital for economic growth. The economic growth of any nation is directly related to the productivity of people via education and continuous upgrading of their skills. Educated people can bring more positive reforms to society. Education helps build nations by fostering equal opportunities for all. It also brings stability and growth to society. Thus, the nation progresses.
Lifelong learning
Learning is not just a formal education. It is a further enhancement of one’s life skills. Every day brings an opportunity to learn new things from daily activities and various life experiences. The term “lifelong learning” means that education varies according to individuals’ needs and is accessible all over their lives. Lifelong learning is a joyful experience where one finds satisfaction in expanding knowledge. Lifelong learning brings versatility in skills and creates new avenues in life. It helps individuals grow personally and professionally. Lifelong learning is an endless experience that opens our hearts and sharpens our minds. On-going learning and persistent efforts take us close to self-realisation.
Globalisation has brought the world closer. As technologies advance, acquiring new skills becomes necessary. Routine jobs are being automated. Upgrading the skills of employees is a challenging task as life expectancy increases. Due to rapid developments in technology and communication, it has become necessary to sharpen existing skills and acquire new ones. Lifelong learning helps improve productivity. One must recognise the importance of continuous learning and acquiring skills throughout one’s life.
Benefits of lifelong learning
There are various benefits to lifelong learning. They are:
Personal benefit: Learning enhances personal and professional development. It improves problem-solving abilities. Lifelong learning keeps an individual updated with the current world. It improves the financial growth of a person. Lifelong learning brings a sense of purpose to life. It helps to overcome monotony in the job and, thus, helps to get job satisfaction.
Professional benefits: It has become imperative to upgrade existing skills and acquire new skills with modern technologies and new developments in all fields. Career prospects are better when the latest, in-demand skills are acquired. Constantly upgrading with the latest skills is the key to getting the right opportunities in an ever-changing world.
Economic growth: A country becomes self-sufficient and economically sustainable only when it has a knowledgeable, skilled and productive workforce. A country that constantly inspires its citizens to learn advanced skills and innovation remains ahead of time.
Psychological benefits: Lifelong learning keeps the individual mentally engaged. A person becomes adaptive to the changes in their surroundings. It builds confidence and induces a general feeling of wellbeing.
Social aspect: Due to advanced medical treatment and social and economic development, ageing populations pose great challenges to the world. Longevity is a great human achievement. It is a matter of time before the older generation remains updated with the constantly evolving world, which will reduce their social isolation. Technology helps older people remain engaged and updated with the current world. Technology-enabled devices will affect the lives of the elderly population positively. Continuous learning plays an important role in ageing societies as it can help to address many of the related challenges and opportunities. Present-day’s aged population is more active, financially independent, and will have more purchasing power. According to Dr. Ramakrishnan, “Unless business and industry are proactive, they will miss the opportunity to tap the considerable value of ageing workers, resulting in a decline in workplace productivity and a negative impact on economic growth. They need to institute training policies and accommodations to ensure maximum workforce productivity. By working together, we can ensure that lifelong learning makes a full contribution across a range of interrelated agendas, including social justice, sustainable development, and global citizenship.”
UNESCO and lifelong learning
Five essential elements have been defined by UNESCOabout lifelong learning. It must encompass.
Different age groups.
All levels of education.
Various learning modalities.
Different learning spheres and spaces.
Variety of purposes.
Promoting lifelong learning means creating systems that realise the right to education for people of all ages and providing opportunities to unlock their potential for their personal development and for the sustainable economic, social, cultural, and environmental development of society. This is what UNESCO supports through its research, capacity development, policy advice, publications, and knowledge management activities. Education and lifelong learning are interlinked with each other. Their aim is to gain knowledge. Both satisfy the quest of gaining knowledge by acquiring new skills. Despite their similarities, there are key differences between lifelong learning and education.
The aim of education is to prepare individuals for their future careers and social status. On the other hand, lifelong learning helps them to continue growing throughout their lives by learning the latest skills. The motivation behind pursuing education is driven by external factors. like seeking an academic degree or getting a job. Lifelong learning is pursued with a desire to remain updated with the latest skills and overall personality development. The focus of education is on imparting knowledge that is relevant to respective fields. The aim of lifelong learning is to further upgrade skills and pursue personal and professional aspirations.
Conclusion
Education and lifelong learning go hand in hand. Lifelong learning is a progression of education. Quick adaptability to learning new skills in an ever-changing world will help us survive. Education and lifelong learning help to make the right decisions and keep individuals updated with the current world personally and professionally.
Ramachandran, Ramakrishnan, Information, Technology and its Impact on Aging Society (October 28, 2011). 4th APRU Research Symposium Gerontology, Shanghai, China, October 28-29, 2011, [Available at SSRN:https://ssrn.com/abstract=1958556].
This article is written by Monesh Mehndiratta and Sushree Surekha Choudhary. The article deals with Article 30 of the Indian Constitution. It explains the objective and importance of the Article and its impact through decided case laws.
Yes, it is indeed important not only for an individual but for the growth and development of the country as well. The importance of this can also be seen in the fact that the right to education has been made a fundamental right in the Indian Constitution. This was also done to impart quality education to poor students who cannot afford the fees of private schools and educational institutions. The Indian Constitution not only guarantees fundamental rights but also recognises the rights of minorities in India. This includes the right to established educational institutions given under Article 30, along with other cultural rights.
India is the largest democracy in the world. It has been known for its diversity since time immemorial. There are minority groups in India following different religions under the secular roof of the nation. Right from the beginning, since the drafting of the Indian Constitution, secularism has been given importance. The Preamble of the Indian Constitution has embedded in it the values of freedom, liberty, integrity, equality, and social justice, making India the secular democratic republic nation that it is. The Constitution of India protects and guarantees rights to every citizen alike, and special provisions have been made throughout the Indian Constitution and also through several other legislations to protect the rights of minorities, backward classes, etc.
Article 29 and Article 30 of the Indian Constitution grant special rights to minorities in India. It guarantees fundamental rights to minorities in India in terms of cultural and educational rights. These rights are absolute in nature and were made with the intent to protect and guarantee freedom and the right to life for these minorities. Article 30 guarantees the right to education to Indian minority communities by giving them the right to establish educational institutions for their communities and run them with the internal administration of their choice. The present article focuses on Article 30 of the Constitution and explains its importance. It also explains other relevant articles in this regard, along with important case laws on the development of such rights.
Historical background behind minorities’ rights in India
Mediaeval India marked the beginning of the formation of minority communities in the country. Muslims, Christians, Anglo-Indians, etc., started forming groups, and this is how the religious communities were recognised in India. India became a home for minorities, and this was furthered by the migrants from different parts of the world who started migrating and residing in India due to religious disturbances in their home state. As they started forming a significant population in the country, the Pandit Jawaharlal Nehru government started making policies for their betterment. He moved a resolution in 1946 in the Constituent Assembly, which was approved in 1947. It was decided to draft policies and safeguard mechanisms for minority communities, backward classes and tribals in India.
The Constitution Drafting Committee formulated several laws for minorities’ benefits in 1948. Provisions were made under Part XIV of the Indian Constitution under the heading ‘Special Provisions Relating to Minorities’ (Article 292-301). These provisions were later omitted from the final draft, and what remained was articulated under Articles 29 and 30 (Cultural and Educational Rights). The initial drafts also made provisions for reserving seats for minorities in legislative bodies. However, this was not inculcated in the final draft.
This was criticised as not providing enough protection to the minorities, as they suffered riots, threats, communal violence, a lack of representation in politics and civil services, separatism, and inequality. Thus, making provisions for minorities’ rights and benefits was always essential in a democracy like India. Articles 29 and 30 remained, making several provisions for benefits, protection, and ensuring equality for the minorities of the nation.
Article 30 of the Indian Constitution and its purpose
Article 30 deals with the right of minorities to establish and manage educational institutions in India. According to Article 30(1), the minorities in India have the right to establish educational institutions of their choice and administer them. Such minorities include religious minorities and minorities on the basis of language, i.e., linguistic minorities. The term ‘establish’ used in the article connotes the right to bring an educational institution into existence while administering means to manage the affairs of such an institution.
In the case of Re, Kerala Education Bill vs. Unknown (1958), the court held that the right given under Article 30 provides the right to minorities to establish educational institutions of their choice for two purposes:
To conserve their religion, culture, and language,
To provide education to their children according to their choice in their own language.
In the case of D.A.V. College Bhatinda vs. State of Punjab (1971), the court held that the right guaranteed under Article 30(1) of the Constitution includes the right to choose the medium of instructions to be given in the university. Thus, the use of Hindi in university circulars was held to be violative of Article 30(1), and it was declared that Punjabi would be the sole medium of instruction. Another major observation of the court was that the right would be available to institutions established pre and post Constitution.
According to Article 30(2) of the Constitution, the state is prohibited from discriminating in the grant of aid to any educational institutions only because they are managed and administered by religious and linguistic minorities. In the case of Bramchari Sidheswar Bhai vs. State of West Bengal (1995), the Supreme Court held that the Ramakrishna Mission established by Swami Vivekananda is not a minority and separate from Hindu religion but its denomination or religious sect. Thus, it cannot claim the right mentioned under Section 30 of the Constitution.
Article 30, as it is read, makes provisions for minority communities in India to establish and administer educational institutions in India. It guarantees them the right to avail themselves of aid from the government, like other educational institutions. Article 30 guarantees them equality and non-discrimination in education. Article 30 also states that, while the compulsory acquisition of land on which a minority educational institution is established must be determined in a way that does not hamper the education rights of the minority community. It facilitates the right to education for minorities in India and upholds the value of the Right to Equality guaranteed to all under Article 14 of the Indian Constitution. The right conferred under Article 30 is only guaranteed to minorities in India and not to all citizens alike. This is done with the intent of protecting the interests of the minorities in India. It also gives them the right to impart education in these educational institutions in their own language.
Minorities’ educational institutions in India are of the following kinds:
Educational institutions that seek approval, recognition, and aid from the state government where they have established their institution,
Educational institutions that seek only approval and recognition from the state government and
Educational institutions that seek neither recognition nor aid from the state government
The administration of these institutions is also varied. Educational institutions that seek recognition, aid, or both from the state government are subject to minimal state interference. These institutions have to follow the directions the state government gives in this regard on matters like manner and standard of academics, syllabus, employment of teachers in these institutions, sanitation standards to be maintained, and other rules and regulations.
On the contrary, educational institutions that do not seek recognition or aid from the state government are free to make their own rules, regulations, and standards of administration without any government interference. They are, however, subject to the reasonable standards and restrictions put in place by the states.
What is common to all three types of minority educational institutions is that all of them are bound to abide by the general laws of the state government and of the nation relating to contract laws, labour laws, taxation laws, etc.
Objectives of Article 30 of the Indian Constitution
Article 30 of the Indian Constitution aims at:
Protecting the right to education for minorities.
Empowers minorities to establish and manage educational institutions according to their choice.
Preserves their cultural and linguistic rights.
Help the minorities maintain and protect their dignity and distinct identity among other religions and sections of society.
Prohibit any kind of discrimination against the people seeking admission to such educational institutions.
Effect of the 44th Amendment Act, 1978
The 44th Amendment Act, 1978, in the Constitution had a great impact as it abolished the right to property as a fundamental right by abolishing Article 19(1)(f) of the Constitution. Apart from this, a significant amendment was made to Article 30 as well. A new clause was inserted as Article 30(1A), which provided that while making any law for the compulsory acquisition of any property of any established educational institution administered by minorities, the state must ensure that the amount fixed for the acquisition of such property is not restricting or abrogating the rights of minorities given under Article 30(1).
Relation between Article 29 and Article 30 of the Indian Constitution
Article 29 of the Constitution deals with the protection of the interests of minorities and guarantees citizens the right to conserve their language, script, or culture. Article 29(2) further provides that no educational institution, whether maintained by the state or receiving funds from the state, would deny admission to any citizen on the ground of race, religion, caste, or language. The right given under Article 29 can be further exercised by the establishment of educational institutions to preserve and conserve the language, script, and culture of minorities. This is provided by Article 30 of the Constitution, which gives minorities the right to establish and manage educational institutions. However, it must be noted that Article 29 applies only to citizens, while Article 30 applies to citizens and non-citizens both.
The interrelationship between Article 29 and Article 30 was discussed by the court in the case of Ahmedabad St. Xavier’s College vs. State of Gujarat (1974). The state in this case argued that the right guaranteed under Article 30 was not available to the college as it was not established to conserve the language, culture, or script of the minorities as mentioned under Article 29. The court observed that Article 30 is not restrictive in nature. It does not restrict minorities from establishing educational institutions only for the conservation of language, script, or culture. It was further observed that the right given under Article 29 is a general protection given to the citizens of the country to conserve their language, script, or culture, while the right under Article 30 is a special right available to minorities to establish educational institutions according to their choice.
The court also provided distinction between the two Articles:
Article 29 gives rights to any section of citizens residing in India, while Article 30 is available only to minorities.
Article 29 mainly deals with the conservation of language, script, or culture, while Article 30 is available to two kinds of minorities, i.e., religious and linguistic minorities.
The right under Article 29 provides for the conservation of language, script, and culture, while the right given in Article 30 provides the right to establish educational institutions.
Article 29 does not mention anything about education. Article 30, on the other hand, gives minorities the right to establish and manage educational institutions of their own choice.
Dual test for the applicability of Article 30 of the Indian Constitution
In Rev. Sidhajbhai Sabhai and Ors. vs. State of Bombay and Anr. (1962), the Supreme Court of India established the dual test criteria. The Court observed that an educational institution will attract the provisions of Article 30 only when it satisfies the dual test criteria. The dual test conditions are:
The educational institution must be regulatory in nature. It must not be destructive of the institution’s nature of being a ‘minority institution.’
The institution must be an effective institution for facilitating education for minorities.
Justice Lalit referred to the In Re: Kerala Education Bill Case (1957), where it was held by the Supreme Court of India that the word ‘choice’ forms an important part of Article 30. This means that every minority community has a choice of establishing, administering, and functioning their educational institution and choosing whether or not to seek recognition and aid from the government.
Justice Lalit also referred to Rev. Father W. Proost and Ors. vs. State of Bihar and Ors. (1968), which struck down Section 48A of the Bihar State Universities Act (1960), which stated that the teachers and employees of the minority educational institution could be appointed, dismissed, removed or reduced in rank without prior approval and permission of the University Service Commission. This was to facilitate the rights of self-administration in minority educational institutions. This judgement was followed by Kesavananda Bharati vs. State of Kerala (1973), popularly known as the ‘basic structure doctrine case’, which recognised the rights of minorities as a part of the basic structure of the Constitution.
Minorities in India
Who can be categorised as minority
Article 30 of the Constitution talks about only two kinds of minorities, i.e., religious and linguistic minorities. The question of whether a particular community falls under the category of minority has to be decided on the basis of the demographic composition of the state, which means the proportion of their position in the population in different states and not in the whole country. The same question was dealt with by the court in the case of T.M.A. Pai Foundation vs. State of Karnataka (2003) along with the question of the procedure for admission in such educational institutions. The Hon’ble Supreme Court held that even though the state government cannot regulate the admission policy of educational institutions administered by religious and linguistic minorities if they are not aided by them, it can specify the qualifications for admission of students, the appointment of staff and teachers, and the maintenance of academic standards.
In order to seek affiliation, such minority institutions have to follow and comply with the conditions laid down by the board or university. The court further emphasised that unaided minority educational institutions must not ignore the merits of the students seeking admission. While admission to minority educational institutions aided by the government has to be regulated by a common entrance exam.
Classification of minorities
The 2019 UN statistical report suggested that India’s population, at 136.6 crore, was divided into the following percentiles between the majority and minority communities:
Hindus formed the majority, owning up to 80.5% of the total population.
Muslims make up 13.4% of the total population.
Christians make up 2.3% of the total population.
Sikhs form 1.9% of the total population.
Buddhists cover 0.8% of the total population.
Jains constitute 0.4% of the total population, and
The rest of the communities and classes together form 0.6%.
Thus, statistically, the religious minorities of India comprise Muslims, Christians, Buddhists, Jains, Sikhs, and others. The word ‘minority’ is derived from the Latin word ‘minor’ suffixed with ‘ity’ which together means ‘small in number’. Though the Indian Constitution does not anywhere define the word ‘minority’, it is usually determined from statistical data. Article 30 talks about two categories of minorities: religious minorities and linguistic minorities. Religious minorities in India consist of the abovementioned religious communities. Apart from this statistical data, Section 2(c) of the National Commission for Minorities Act (1992) declares the following communities as minorities in India perpetually:
Muslims,
Christians,
Sikhs,
Buddhists,
Jains, and
Parsis (Zoroastrians).
Linguistic minorities of a country are those people who speak and whose mother tongue is different from those of the majority group of that country.
This classification of minorities and the classification of minorities’ educational institutions was clarified by the Supreme Court in T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors. (2002), where the Supreme Court recited guidelines on Article 29 and Article 30 of the Constitution. The Court clarified that the determination of religious minorities and linguistic minorities is to be done state-wise, not nationally. These minority communities and their educational institutions, therefore, must follow the standard rules, and regulations, and policies of their respective state governments. These rules, regulations, and policies are state-made with the supervision and guidance of the centre. These regulations are made in adherence to the public order, morality, security and sovereignty of the nation.
Importance of protecting minorities
As the largest democracy in the world and a home for diverse people, it is the primary duty of the Indian government to uphold the values of the Constitution. This includes the protection of the country’s minority communities. It is a general tendency for minorities’ interests to be sidelined due to the importance and privilege enjoyed by the majority community. Thus, to protect the interests of minorities, laws must be made in such a manner that their rights are protected on par with the majority privileges and rights. This is why special provisions are made for minorities. The Indian laws provide privileges to the majority community. Certain policies have been criticised as being discriminatory to minorities in the country. They led to protests. Mentioned below are some instances of protests in the country due to the majority-minority conflicts:
During the Delhi communal violence, several people were killed, most of whom were Muslims. This incited further protests about the lack of protection for minorities. The capital city has been known to have seen the highest number of religious protests.
The 2020 Farm Bill protests by the Sikhs were due to the community’s rights being hampered by the structure of the bill.
The 2019 Citizenship Amendment Act was violative of minorities’ rights as it had different procedural provisions for the majority and the minorities.
The anti-conversion laws that prosecute Muslim men who marry Hindu women are criticised as discriminatory in nature.
Therefore, policies, regulations, and special laws to protect minorities’ rights are essential in India.
Minorities’ Institution and Article 30 of the Indian Constitution
Empowered by Article 30(1), the minority communities in India have the right to establish and administer their own religious institutions, impart education to the children of their community, and inculcate religious values along with general education with minimum state interference. Several judicial pronouncements have shaped the interpretation of Article 30.
In S. Azeez Basha and Anr. vs. Union of India (1967), the Supreme Court interpreted the meaning of ‘establish and administer’. The Court stated that the minority education institutions that are established by such minority communities also have the right to administer their everyday affairs. Conversely, to have the right to administer an educational institution, it is necessary that that minority community establish it with an intention of imparting education as a religious educational institution. In S.P. Mittal vs. Union of India (1982), the Supreme Court spoke about the prerequisites of Article 30 as the follows:
The community has to show that they are a religious minority or linguistic minority.
The community has to show that the educational institution was established by them.
It is only when these prerequisites are met that the minority community is granted authority to run and administer the educational institution.
In Andhra Pradesh Christian Medical Association vs. Government of Andhra Pradesh and Anr. (1986), the Supreme Court held that the institution was not in fact an educational institution. It was a disguise used for running a business venture, and no educational institution was run by a minority community. The Court held that such a venture cannot avail benefits under Article 30, as it would not be applicable to them. In the State of Kerala, etc. vs. Very Rev. Mother Provincial, Etc. (1970), the Supreme Court held that even one member of the minority community is eligible to establish and administer an educational institution and impart education to the members of their community. The provisions of Article 30 shall be applicable to him/her in a similar way as they are applicable to the whole community.
In an important judgement of Ahmedabad St. Xaviers College vs. Government of Gujarat and Anr. (1974), the Supreme Court held that an educational institution established and administered by one minority community cannot deny admission to children from other minority communities or the majority community. The Court stated that educational institutions should be accessible to all, irrespective of the community that established them.
State interference
It is the obligation of the states to ensure the organisations and institutions in their state are run justly, in accordance with state-made laws, conforming to the laws of the nation, adhering to public policies, public order, health, safety, morality, security, sovereignty, and foreign relations of the country. In doing so, the states keep an observant eye and monitor the functioning of these institutions. The minority established and administered education institutions are no exception to this general rule and are, therefore, governed by state-made regulations.
The degree of state interference varies with different institutions, but the general degree of intervention is always there. The state government intervenes and instructs in the functioning of the institutions run with aid and recognition, or either, from the state government. On the contrary, the institutions that run with complete autonomy do not have to take instructions from the state government. However, they have to comply with the general standards of public policy, morality, and security.
The government intervenes in the following manner:
Regular checks on the management of the institutions.
Check the academic status and standards maintained by these institutions.
The state government has the power to take action against any misuse of power by the higher administration of these institutions.
The state government can keep an eye on the conduct of teaching and non-teaching staff of the institution.
The state government also ensures that the employees of these institutions follow the administrative regulations made by the institutions
The state government can make directive policies.
The state government can take measures for the welfare and betterment of the institutions.
Thus, the state government is empowered to take measures in a reasonably restricted manner from time to time to ensure the institutions are run in accordance with the laws. These instructions and measures are taken in a limited manner in a way that does not hamper the factors of autonomy and choice in these minority education institutions’ administration. In Bihar State Madrasa Education Board vs. Managing Committee of Madrasa (1989), the Supreme Court held that the states must not form rules and regulations and impose them on these minority educational institutions in a way that hampers the administrative rights of these institutions’ management, in the disguise of regulating to maintain standards and efficiency.
Power of government to regulate institutions run by minority
It is true that minorities have been given the right to establish, manage, or administer educational institutions of their own choice. However, this right is not absolute. It is necessary to have regulatory measures for the proper and smooth administration of such institutions. In the case of Ahmedabad St. Xavier’s College vs. State of Gujarat (1974), the court held that the right to administer implies and includes a duty to have good administration and management. Further, in the case of Re, Kerala Education Bill vs. Unknown (1958), the Supreme Court held that the right given under Article 30(1) does not mean that the state cannot prescribe reasonable regulations for such educational institutions. However, such a regulation or condition must not be the one that takes away the rights of minorities mentioned in the Article.
In the case of Rev. Sidhajbahi Sabhai vs. State of Bombay (1962), an order was issued by the government of Bombay to reserve 80 percent of the seats of teachers in educational institutions run by minorities for the people nominated by the government. It further provides that any refusal by such nominees would lead to the withholding of affiliation with such institutions, and the aid would also be stopped. The Court held that such an order is violative of Article 30. Similarly, in the case of State of Kerala vs. Very Rev. Mother Provincial (1970), the Court held Section 63(1) of the Kerala University Act of 1969, as ultra vires on the ground that it violates the rights of minorities mentioned under Article 30 of the Constitution. The Section gave power to the government to take over the management of educational institutions run by minorities in case there was any default on their part.
Minorities’ Right to Education
The minorities are guaranteed the right to education, and special provisions are made under Article 30 of the Constitution. This right is not absolute in nature. This means that the right guaranteed under Article 30 is subject to reasonable restrictions. The state is vested with the power to impose reasonable restrictions under Article 19(6) of the Constitution. The ambit of Article 19(6) extends to the imposition of reasonable restrictions on minorities’ educational institutions.
The minority institutions that are fully aided by the state government lose the right to administer their educational institutions under Article 30. They only have the right to establish these educational institutions, and when they seek complete aid and recognition from the government, their administrative rights get vested in the government funding the running of these institutions. Article 29 facilitates Article 30 since Article 29 is interpreted to define minority communities by bringing into its ambit the people having a distinct language, culture, or script from the commonly spoken language and commonly following the culture of the country. It also promotes equality for minorities by stating that nobody shall be denied admission to an educational institution in the state on the grounds of religion, caste, language, etc. Therefore, Article 29 is followed by Article 30, which allows the minority communities of India to establish and administer educational institutions of their own.
The 44th Constitutional Amendment Act (1978) removed the right to property from the ambit of a fundamental right, but it continues to be a part of Article 30 to ensure the rights of minorities to hold properties for establishing their educational institutions are not hampered.
National Commission for Minorities
In 1978, the Ministry of Home Affairs passed a resolution establishing a National Commission for Minorities. First known as the Minorities Commission, it was a non-statutory body until 1984. In 1984, the Commission was moved to the jurisdiction of the Ministry of Health and Family Welfare. As of 2020, the Commission has been renamed the National Commission for Minorities and functions under the jurisdiction of the Ministry of Minorities. The Commission’s ambit covers only religious minorities (Muslims, Christians, Sikhs, Parsis, and Jains) and excludes linguistic minorities. Formed with a chairperson, a vice chairperson and five members, the commission performs the following functions:
Evaluates the condition of minorities in India and the governments’ (central and state) efforts to improve it,
Checks the functioning of laws made for the benefit of minorities,
Makes recommendations for enacting laws that would improve the conditions of minorities in India,
Acts as the authority to take up complaints of cases of discrimination or agony of any minority community,
Works in coordination with the Central Government, studies, and submits reports to the Central Government on issues affecting minorities and plausible solutions.
Rights of non-minorities to run educational institutions
Another question that needs to be answered is whether non-minorities can run, establish, and manage educational institutions in the same way as minorities. This question can be answered with the help of Article 19(1)(g) of the Indian Constitution, which guarantees citizens the right to practise any profession and carry on any occupation or business. This also means that non-minorities can establish and administer educational institutions. However, this right is subject to reasonable restrictions or any law made by the state in the interest of the general public.
In the case of P.A. Inamdar vs. State of Maharashtra (2002), the Court dealt with the question of the reservation of admission seats in private educational institutions, whether run by minorities or non-minorities. The court held that such reservations, whether in educational institutions run by minorities or non-minorities, is a violation of Article 30 and 19(1)(g) of the Constitution as they affect their autonomy. It was further held that admission can be regulated by a common entrance exam, which enables the admission of students on the basis of merit.
Other relevant articles of the Indian Constitution
Minorities are denoted as the ‘weaker sections’ of society. Thus, several provisions are made under the Indian Constitution for their benefit and to ensure equality. Mentioned below are the Articles of the Indian Constitution that are made for minorities’ benefit:
Article 14 is a fundamental right guaranteed to all Indian citizens. This Article ensures equality among all and promotes non-discrimination.
Article 15 protects people from discrimination on the basis of caste, creed, religion, language, or sex.
Article 16 guarantees equality in opportunity, education, and employment. This Article puts an obligation on the states to ensure fair and equal opportunities for all citizens of the particular state and ensure non-discrimination.
Article 25 guarantees religious freedom for Indians. Upholding the values of secularism in the country, Article 25 states that every Indian citizen shall have the freedom to practise and profess the religion of their choice. It states that there shall be no restrictions or hindrances put by the states or the Union in the religious affairs of people. However, Article 25 is to be exercised within the ambit of public order, morality, and other fundamental rights.
Article 26 guarantees the freedom to establish and maintain religious charitable institutions,manage their affairs themselves, and acquire and maintain properties in this regard. These rights have to be practised by complying with public order, morality, and the security of the nation.
Article 28 states that state governments will not give any religious instructions to state-aided religious educational institutions. It further states that no student shall be compelled to take part in any religious instruction or arrangement without consent.
Article 29 states that no state-aided, state-recognised, or state-maintained educational institutions shall deny admission to a person on the basis of their sex, colour, creed, religion, case, or language. This Article guarantees cultural and educational rights to all communities in India.
Landmark judgements under Article 30 of the Indian Constitution
In DAV College, Bathinda, Etc. vs. State of Punjab and Ors. (1971), the Supreme Court held that though it is a right conferred on the minority communities to impart education in their educational institutions in their regional language, it cannot be absolute. Even though the institution can impart education and instructions in Punjabi, there also have to be similar instructions in Hindi. Being an educational institution, it cannot hamper, deny, or discriminate against any other community in the country by restricting educational institutions to one language. Thus, while the Punjab University was given recognition by the state, the restrictive clauses of imparting education to only Punjabis were struck down by the Court as being invalid, discriminatory, and violative of Articles 29 and 30 of the Constitution.
In P.A. Inamdar and Ors. vs. State of Maharashtra and Ors. (2005), the Supreme Court gave a landmark judgement where it held that the reservation policy during admissions would not be applicable to minority educational institutions. Rather, it shall be on the basis of merit and shall be equally open to children of all religious and linguistic groups in India.
In S. Azeez Basha and Anr. vs. Union of India (Aligarh Muslim University Case (1967), the Supreme Court held that the Aligarh Muslim University has not been ‘established’ by a minority community. Thus, the Muslim community does not have the right to administer it either. The Aligarh Muslim University does not qualify as a minority education institution recognized by the parliament. This case was followed by the Dr. Naresh Agarwal vs. Union of India case (2005), where the claimed status of Aligarh Muslim University as a minority educational institution was struck down by the Court.
In the case of Managing Board of Milli Takimi Mission Bihar and Ors. vs. State of Bihar and Ors. (1984), the Supreme Court held that the right to education conferred on minority communities under Article 30 is a fundamental right. If the state denies recognition to any minority educational institution without just and fair grounds, such denial shall be deemed to be a violation of Article 30(1).
Important case laws
Ahmedabad St. Xaviers College v. State of Gujarat and Anr. (1974)
Facts of the case
The petitioners in this case run a minority education institution to provide higher education to Christian children but children belonging to other religious groups are also given admission. It is affiliated with state legislation named the Gujarat University Act of 1972. The petitioners in this case challenged the constitutional validity of the said Act on the grounds that it is encroaching on their right to run a minority educational institution.
Issues involved in the case
Whether the above-mentioned Act is unconstitutional.
Judgement of the court
In this case, the Supreme Court reflected on the purpose and spirit behind Article 30. The Court stated that the spirit behind Article 30 is the moral obligation of the nation towards minority communities. It is to ensure that the religious minorities and linguistic minorities of the country are not restricted from establishing, administering, and imparting education of their choice. They are given the utmost respect and freedom to instill the values and beliefs of their community in their children and shape them as responsible citizens of the country and pioneers of their community.
The court further held that the Act provides measures for affiliation in order to bring uniformity, efficiency and excellence to the courses offered by the university and is not violating Article 30. It was further held that no right is free from any kind of regulation or norm, as these provide for the maintenance of educational character.
Miss. Ravneet Kaur vs. The Christian Medical College (1997)
Facts of the case
In this case, the petitioner claims to have been converted to Christianity and applied for admission to the college for the course of MBBS. The seats were reserved for the Christian Indian Nationals and she also gave the written test. She was informed that she had been provisionally selected for the courts and was asked to submit relevant documents along with a sponsorship letter. However, the bishop was out of town and the letter could not be produced. She was denied admission on this ground, even though she communicated the reasons to the college committee. The petitioner thus filed a writ petition in this regard.
Issues involved in the case
Whether the writ petition is maintainable against a college that is private, unaided and affiliated with the university.
Judgement of the Court
In this case, the Punjab-Haryana High Court held that an educational institution cannot discriminate against students of different religious or linguistic communities while giving admissions, on the ground that the institutions are not state-aided and hence not bound by the state’s instructions. The court observed that the petitioner produced the sponsorship letter; however, it was not from the concerned person. In this situation, the respondents cannot be blamed. It was further observed that she converted to Christianity only to seek admission to the college. Consequently, the writ was not granted and dismissed.
Secretary of Malankara Syrian Catholic College v. T. Jose and Ors. (2006)
Facts of the case
The Malankara Syrian Catholic College Association is a society that runs several private colleges in Kerala. These are managed by a managing council appointed by the educational agency. Mar Ivanios College is one such college. The post of principal of the said college became vacant and the manager gave this post by order to one of the lecturers. This was challenged by the vice chancellor of the college. However, the Kerala University Appellate Tribunal held that the person appointed fulfilled the eligibility criteria, which was challenged in the higher court. It was also argued that the Kerala University Act of 1974, was violative of Article 30 of the Constitution. The same incident happened at another college and the petition was heard together.
Issues involved in the case
Whether the petition is maintainable.
Judgement of the court
In this case, the Supreme Court of India spoke about the purpose behind the provisions of Article 30 in detail. The Apex Court observed that the special rights given to minorities in India are with the intent of ensuring equal rights for them as the majority community of India. The Court further clarified that granting special rights to minorities does not render them an upper hand over the majority community, as it does not give them an advantage but rather a level playing field. The general rules of the state and the union are equally applicable to them as they are to others. The court observed that Section 57(3) of the Act interfered with the exercise of rights of minorities given under Article 30 and hence held that it could not be applied to minority institutions even if they are aided privately.
Conclusion
Fundamental rights are the rights guaranteed by the Constitution of a country to its citizens. These are provided for the growth and development of every citizen without any discrimination on the basis of caste, creed, race, religion, gender, or language. However, there are chances that certain sections of citizens may be granted specific rights for example, cultural and educational rights. The Indian Constitution, under Article 30, provides the right to establish,manage, or administer educational institutions. However, this right is specifically guaranteed to minorities based on religion and language. This means that religious or linguistic minorities can establish and administer educational institutions of their choice.
The purpose is to protect the rights of minorities, which may be suppressed in some way or another. The aim is to protect the educational rights of minorities along with their freedom to conserve their culture and language. However, the right given under Article 30 does not mean that the state cannot grant aid to such educational institutions. The article also provides that the state must not discriminate while granting aid to any educational institution on the grounds that it is managed by a minority or on other grounds like religion or language.
Indian minorities have suffered several hardships in the form of violence, discrimination, hate, and a lack of representation. To curb these atrocities, the Union Government, legislators, and policymakers have come up with laws, legislation, regulations, and special rights for minority communities. One such right is guaranteed to them under Article 30. This Article facilitates minority communities in establishing and administering educational institutions of their choice. They are given administrative autonomy with minimum interference from the government. This is done with a view to ensuring equality and equal opportunities for the religious and linguistic minorities of the nation when it comes to education. Even with various governmental efforts over the years, the violence, discrimination, and hate are believed to have continued until today. Time will tell what becomes of Indian minorities and the extent to which their atrocities are reduced by the government.
Frequently Asked Questions (FAQs)
Is there any separate legislation on the right to education?
The right to education is one of the fundamental rights guaranteed under Article 21A of the Constitution, and separate legislation has been enacted for further fulfilment of the objectives of such rights. The Right of Children to Free and Compulsory Education Act, 2009, also provides for the free and compulsory education of children. This Act has been enacted in line with the right to education.
What is the difference between Articles 29 and 30 of the Constitution?
The major difference between the two articles is that Article 29 applies only to citizens, while Article 30 applies to citizens and non-citizens both.
What was the effect of the 44th Amendment Act on Article 30 of the Constitution?
As a result of the 44th Amendment Act, 1978, a new clause was inserted under Article 30 of the Constitution. Article 30(1A) provided that while making any law for the compulsory acquisition of any property of any established educational institution administered by a minority, the state must ensure that the amount fixed for the acquisition of such property is not restricting or abrogating the rights of minorities.
Can the majority community be denied admission to a minority educational institution?
No, as per Article 29(2), no community can be denied permission to attend a minority educational institution on the basis of discrimination.
Are the rights under Article 30 absolute in nature?
No. Article 30 is not absolute in nature. It is subject to state intervention and minimum reasonable restrictions to uphold public order, decency, and morals.
What are cultural and educational rights?
Cultural and educational rights are guaranteed by the Constitution to religious and linguistic minority groups in India to enable them to preserve their distinct culture, language, or script.
What is the dual test criteria?
For showing that an educational institution is in fact a minority educational institution, the dual test is taken. It is to be proved that:
The educational institution must be regulative in nature. It must not be destructive of the institution’s nature of being a ‘minority institution.’
The institution must be an effective institution for facilitating education to minorities.
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A Public-Private partnership (PPP) is a contractual arrangement between a public-sector entity (such as a government agency) and a private-sector entity for the provision of public infrastructure or services. The goal of PPPs is to harness the strengths and powers of both the public and private sectors to efficiently deliver projects and services that might be challenging for either sector to undertake alone. In other words, it is the working together of two sectors and bringing up their resources collectively for their respective goals and objectives. According to the definition given by the World Bank of PPP, “it is a long term contract between a private party and a government agency for providing public assets. In particular, the private sector has to bear significant risk and have management responsibility as well.
In the context of infrastructure projects, PPP contracts typically involve a long-term collaboration between the public and private sectors.
Why PPPs is required for infrastructure projects
Here’s a breakdown of the key aspects:
Shared responsibilities
Both the public and private sectors contribute resources, expertise, and assets to the project. The public sector often provides the necessary regulatory framework, public funds, and oversight, while the private sector brings in funding, technical expertise, and operational efficiency. In short, the expertise of both entities is collaborated upon, and further responsibilities are shared on the basis of such a collaboration.
Risk sharing
There are many risks and unknown factors that can hinder its functioning. Major risks associated with the project, such as construction delays, cost overruns, or revenue generation, are shared between the public and private partners. This risk-sharing mechanism helps allocate risks to the party best equipped to manage them. The risk sharing also helps reduce stress and results in better management.
Financing
Private partners typically contribute financing to the project, reducing the burden on public budgets. This is often done through a combination of equity investments and loans. The ideal ratio of debt and equity is a combination of both debt and personal finance and equity.
There are a number of factors that can influence the optimal debt-equity ratio for a PPP project, including:
The risk profile of the project
The availability of debt financing
The tax implications of debt and equity financing
The preferences of the public sector partner
The risk profile of the project is a key factor in determining the optimal debt-equity ratio. A project with a high risk profile will require a higher level of equity financing to protect the public sector partner from potential losses. Conversely, a project with a low risk profile may be able to support a higher level of debt financing.
The availability of debt financing is another important factor. If debt financing is not readily available, the public sector partner may need to increase the equity contribution to the project.
The tax implications of debt and equity financing can also influence the optimal debt-equity ratio. In some cases, debt financing may be more tax-efficient than equity financing. This can be a factor in determining the optimal mix of debt and equity for a PPP project.
Long-term agreements
PPP contracts are often long-term agreements, spanning several years. This lets private partners recoup their investments and generate returns over the life of the project. This is also one of the reasons why private entities invest in such projects.
Performance-based payments
Payment to the private partner is often linked to the performance and delivery of specified services. Which results in good quality project management and execution by the private sector and therefore, high standards for the projects are maintained.
Transfer of assets
At the end of the contract term, ownership or operational control of the infrastructure may revert to the public sector. This transfer can be part of the agreement, ensuring that public assets are ultimately owned by the public. As the main intention behind such projects is always public development and welfare, the contribution of private entities amongst them is to boost such projects financially or by any means and maximise profit.
Innovation and efficiency
Private sector involvement can bring innovation and efficiency to project delivery and operation, as private entities are motivated by profit and competition. So, they come up with highly skilled human resources and technology to raise the project quality.
There are other key aspects of the PPP contracts, it’s cost-effective (as once the project is announced, bidding for the tender takes place and the lowest bid is chosen for the project), it brings private expertise into the contract, and it increases productivity.
Common types of infrastructure projects under PPP arrangements include transportation (roads, bridges, and airports), energy (power plants, utilities), water and sanitation, healthcare facilities, educational institutions, etc. While PPPs have the calibre to deliver benefits, they also pose challenges, including concerns about transparency, accountability, and the potential for private profit at the expense of public interest. Successful execution requires careful planning, clear contractual arrangements, and effective oversight to ensure that the public receives value for money and that the project meets its intended public service objectives.
Model of PPPs
There are various models of PPP that can be acquired for green field PPP and brown field PPP. Due to the multiplicity of the models, the PPP contracts are flexible to execute in the best way. Such models include:
BOT model (Build Operate Transfer): This model involves a private company building a public infrastructure project, operating it for a certain period of time, and then transferring it back to the government.
BOOT model (Build Own Operate Transfer): This model is similar to the BOT model, except that the private company owns the project after it is transferred back to the government.
BOO model (Build Own Operate): This model involves a private company building and operating a public infrastructure project, but it does not transfer the project back to the government.
BLT model (Build Lease Transfer): This model involves a private company building a public infrastructure project and then leasing it to the government for a certain period of time. After the lease expires, the project is transferred back to the government.
TOT model (Toll Operate Transfer): This model involves a private company building and operating a toll road or bridge. After a certain period of time, the project is transferred back to the government, but the private company is allowed to collect tolls for a specified period of time.
DBFO model (Design Build Finance Operate): This model involves a private company designing, building, financing, and operating a public infrastructure project. After a certain period of time, the project is transferred back to the government.
OMDA model (Operation Management Development Agreement): This model involves a private company operating and managing a public infrastructure project. The private company does not own the project, but it is responsible for its day-to-day operations.
Examination of the PPP model
In order to understand the PPP model thoroughly, we first need to examine it on the basis of various factors and also look for the advantages and challenges faced by PPP in that very field. The public-private partnership (PPP) model has been subject to examination and evaluation from various perspectives to assess its effectiveness, advantages, and challenges. Here are some key areas that are often considered in the examination of the PPP model:
Efficiency and innovation
Advantage: PPPs can bring efficiency and innovation to public projects, as private sector involvement often introduces competition and a profit motive, driving improvements in project delivery and operations. And this competition helps increase the quality of the project.
Challenge: The effectiveness of efficiency gains depends on the design and management of the PPP, and in some cases, the private sector may prioritise profits over public service goals, which can lead to ill facets such as corruption, disregarding social welfare over money, etc.
Risk allocation
Advantage: PPPs allow for the allocation of risks to the party best equipped to manage them. This can lead to better risk management by sharing pressure, stress and mitigation strategies.
Challenge: If risks are not properly identified and allocated in the contract, it can lead to disputes, delays, and increased costs that will ultimately affect the degradation of public welfare.
Funding and financing
Advantage: PPPs can provide an alternative financing mechanism for public projects, reducing the burden on public budgets and leveraging private sector capital that can be invested in other useful sectors and projects as well.
Challenge: The financial viability of PPPs depends on the availability of suitable financing and the ability of the private sector to generate returns over the project’s life, which indirectly shows the incompetence and lack of funding with the public sector (the nation’s government).
Transparency and accountability
Advantage: PPP contracts often include performance statistics and transparency provisions, marketing accountability and ensuring that private partners meet specified service standards with no room for discretion or ambiguity.
Challenge: There can be concerns about transparency, especially in the negotiation and awarding of contracts, and the need for robust oversight mechanisms to prevent corruption and ensure the public interest.
Social and environmental impact
Advantage: PPPs can lead to the timely delivery of projects, benefiting communities by providing essential services and infrastructure. It helps in the overall development of society as a whole.
Challenge: There are concerns about the potential neglect of social and environmental considerations in the pursuit of profit, requiring careful regulation and monitoring. In other words, we can say it can also neglect the weaker sections of society.
Long-term commitments
Advantage: PPPs often involve long-term commitments, providing stability and continuity for the delivery of services over time.
Challenge: Long-term commitments can also pose challenges, especially if the private partner fails to meet obligations, leading to issues that persist over an extended period. Therefore, the assets are frozen( non-liquidated) and can’t be invested anywhere else for a longer period of time.
Flexibility and adaptability
Advantage: PPPs can be flexible in adapting to changing circumstances, allowing for adjustments in project scope or objectives during the contract period. It moves according to the needs and circumstances of the project and makes changes accordingly.
Challenge: Flexibility should be balanced with the need for contract stability to ensure that changes do not lead to disputes or negatively impact the project’s success.
In examining the PPP model, it’s crucial to consider the specific context, the regulatory framework, and the capacity of both the public and private sectors involved. Regular evaluation and lessons learned from previous PPPs contribute to the refinement of models and practices, ensuring that the benefits of public-private collaboration are maximised while mitigating potential drawbacks. One of the key factors to consider when evaluating the PPP model is the specific context in which it will be implemented. This includes factors such as the political environment, the economic situation, and social and cultural norms. The regulatory framework also plays an important role in determining the feasibility of a PPP. For example, a PPP may be more difficult to implement in a country with a complex and bureaucratic regulatory environment.
The capacity of both the public and private sectors is another important factor to consider. The public sector must have the capacity to manage a PPP effectively, and the private sector must have the capacity to deliver the services or infrastructure required. Regular evaluation and lessons learned from previous PPPs can help improve the capacity of both the public and private sectors to participate in PPPs.
By considering the specific context, the regulatory framework, and the capacity of both the public and private sectors, it is possible to refine the PPP model and maximise its benefits. Regular evaluation and lessons learned from previous PPPs can also help mitigate potential drawbacks. If we take an example of railway infrastructure that is based on the PPP model, it is very obvious that such a station will be equipped with facilities like cleanliness, safety measures, Wi-Fi, and surveillance performed via the Video Management System (VMS). And all these facilities mentioned above have actually been successfully completed at Rani Kamlapati Railway Station, Bhopal, and M.P.
On the other hand, if we take the same example of railway stations, then there is a very obvious problem of lack of interest in low-economic zones and last-mile connectivity because the main goal of private parties investing is profit maximisation, not providing facilities to remote areas. This causes an imbalance between the business goals of private entities and the social goals of the government.
Conclusion
In conclusion, public-private partnerships (PPPs) represent a complex and multifaceted approach to delivering public infrastructure and services. The examination of PPPs reveals both advantages and challenges, and the success of these partnerships depends on careful planning, transparent governance, and effective risk management.
In navigating the complexities of PPPs, policymakers and stakeholders must prioritise transparency, accountability, and the alignment of private and public interests. Regular evaluation, learning from experiences, and adapting models to specific contexts contribute to the continued refinement of PPP practices, ensuring that they effectively serve the public interest and contribute to sustainable development. As PPPs evolve, the focus should remain on maximising benefits for the public while addressing potential pitfalls through informed decision-making and adaptive governance.
For that, the Vijay Kalka Committee prepares a report on revisiting and revitalising the PPP model. The committee recommended checking affordability, prudent utilisation of the viability gap fund, and correct use of the Infrastructure PPP Adjudication Tribunal.
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