Patent Cooperation Treaty (PCT)

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January 16, 2024

This article has been written by Aadrika Malhotra. It talks about the patent cooperation treaty in intellectual property rights in detail. This treaty is duly administered by the World Intellectual Property Organization (WIPO). It is an international patent application for people who are registering patents at the same time.

Table of Contents

Introduction

A patent plays a significant role in protecting the inventions of the inventors by restricting any other person or organization from using the particular invention for their own good except the inventor himself. What makes the protection of the invention even more robust is that the inventor patents it at an international level for added protection. This signing of an international patent for inventions is governed by the Patent Cooperation Treaty, which was concluded in 1970. This treaty provides a process for all its member states to sign patent protection agreements at an international level through international applications. PCT simplifies the procedure for obtaining patent protection in many countries, which makes it more economical and beneficial for (a). The users of the patent system or the applicants; and (b). National Offices.

The motive behind the PCT was to reduce the burden on the applicant to file several applications for patents in every country. Washington hosted the Washington Diplomatic Conference from May 25 to June 19, 1970, for the signing of the treaty, after which it has garnered 156 total contracting states.

What is Patent Cooperation Treaty (PCT)

The Patent Cooperation Treaty (PCT) provides us with an overview of an international treaty which is duly administered by the World Intellectual Property Organization (WIPO). PCT is an international treaty with more than 148 Contracting States. The PCT is an international treaty which provides a system for filing a patent application and allows us to obtain patents in multiple countries around the world on the basis of a single patent application. The PCT simplifies the patent filing process for applicants, and the ultimate decision to grant a patent vests exclusively with each national or regional Patent Office.

This treaty was established to help people seek patent protection for inventions in developed countries at the same time by filling out one international patent application. A resident or a national of a PCT member country can apply at the patent office of the State or at the applicant’s option at the International Bureau of WIPO in Geneva. A single PCT application has the same legal effect as a national Patent application in each of the PCT Contracting States. Without the PCT, we would have to file a separate patent application in each country separately and independently. PCT saves applicant time, effort, and expense of preparing separate applications in various languages and filing them in different signatory states.

Need for introducing Patent Cooperation Treaty (PCT)

PCT provides users a worldwide system for the effective filing of patents and their usability and advertisement to facilitate the filing of patents in a better manner. There are several reasons that the PCT was needed by the WIPO as follows:

To bring the world within reach.
Removes major costs and provides users with additional time to consider their various Patent granting options.
Provides a strong basis to the user for Patenting decisions.
Is effectively used by the world’s major corporations, universities, and research institutions when they seek international patent protection.
Providing an unified procedure to all the member countries to file patents, rather than filing them in every country manually by their individual patent offices.

There arose a strong need to introduce the PCT in the patent filing system by the WIPO because of plenty of factors. Innovators throughout the world did not have access to such a simpler filing process before the introduction of the PCT as utility patents are difficult to file and hard to achieve in one national office let alone in multiple at the same time. The filing process individually can be time-consuming, costly, difficult, and the complexity can be difficult to understand as well. PCT has now enabled inventions to be patented without taking the risk to file them in every state and it also has facilitated the issue with the manual filing process. There arose a strong need for the PCT because it enables inventors to file for patents electronically for all contracting states of the PCT regime.

Features of Patent Cooperation Treaty (PCT) system

Let’s understand the basic features of the PCT before diving deep into it:

It is a formal examination carried out by one office itself.
The retrieval process is also carried out by one office that overlooks everything associated with the filing process.
The international publication is done by one office that is responsible for the advertisement of the PCT as well.
The examination and authorization is finished by the national office itself before moving on to the international phase.
It is a single application with legal effect in all PCT countries.
There are a total of 148 countries and 4 regional patent systems in the PCT.

There are several ways in which you can file a patent based on commercial strategy and cost considerations. If you are going to file the patent in a fixed number of countries, you shall directly go to that country’s patent applications and get the patent filed. The treaty regulates all the requirements that the applicants must comply with to file a patent. Each contracting state is intimidated about the patent by a fixed date and its particular effects on all states. The applications are always subject to an international search by the ISA (International Searching Authorities) under the PCT. The results are compiled along with citations of all published documents necessary for the approval of the patents, after which a non-binding written document is issued stating whether the inventions are capable of a patent with search reports. The applicant may decide to revoke their application after the content disposal of the written statements, where the patent registrations might be unlikely. If the application is withdrawn, the procedures will be discarded, whereas if the application moves forward, it will be published on Patentscope. Patentscope is a database that holds all patents published by the WIPO to share, search, and securely examine documents.

From the priority date, the treaty will mark the expiration date prior to twenty two months. The applicants can go to the Supplementary International Searching Authority to access several relevant documents. An applicant might opt for an optional international preliminary examination if there are amendments that might be made to the applications to resolve the written submissions and documents and increase the patentability of the reviewed applications. These give the applicant a stronger basis for them to amp up their applications for the patents, and for a PCT application to be successful, you must register them properly at the selected patent offices.

Advantages of Patent Cooperation Treaty (PCT)

The PCT simplifies the application process for international patent applications, which allows it to have several advantages over filing patents at those patent offices separately.

Applicants can file for a single application to register their patents in all countries in a single language simultaneously, which reduces the burden of filing several applications.
It provides a strong basis for patenting decisions to the users by harmonizing formal requirements.
This single application has the effect of filing simultaneously in different countries (designated countries), meanwhile protecting applicants from certain inadvertent errors to meet user needs.
Applying for the PCT application helps you examine procedures at national patent offices and waive or reduce the patent application fees, as well as the associated legal and transactional fees. This way, you can explore the commerciality of the inventions and reduce the deferral costs, which will help pay the costs of prosecution in countries where the patents are applicable.
You have a streamlined procedure with the help of PCT to file applications in each country simultaneously, which also provides wide technological knowledge and data related to these inventions to the public.
The PCT increases the likelihood of the patent protection grant being given to people, and it reduces the objections that would be raised later in the filing of the patents.
The PCT application process might be costlier in the fore runs, but the cost reduces significantly with this patent filing method in the later runs. Let’s say an invention that was filed was later found to be unpatentable. People can still make early decisions about whether to withdraw those patents or not to avoid the national phase costs.
The PCT application system is really flexible, and it allows you to raise funds or assess the potential of the inventions prior to the priority claims, which can be withdrawn as close as the deadline for the national phase entries, which can also be further extended.
All applicants have up to eighteen months more to file for the PCT to reflect their desire to seek protection in specific countries and to also appoint patent agents in those countries to facilitate transactions, which can also not be rejected on the grounds of any designated officers. This helps them facilitate the process for filing of patents at their own pace and retain their applications with their own terms.
The PCT gives out search reports and warrants for the people to validate and reason out their requirements for the patents for the applicants to evaluate whether their inventions will get patented or not, which helps them amend the international applications as well. It adds an advantage as the workload on patent offices is significantly reduced by the PCT because they do not have to look into every application and can go through the search reports and preliminary international reports sent by the PCT.
The PCT gives fast-track examination procedures to all the contracting states in the national phase, which helps them give third parties a better formulated opinion of whether the patents will be passed or not, with international publications on Patentscope to advertise their patents further.

Disadvantages of Patent Cooperation Treaty (PCT)

There are several disadvantages, in contrast to the several advantages of the PCT, that you might want to consider with the uniform formality requirements:

The system is best for utility patents, though non-design related patents might not benefit from the PCT. The process is lengthy and creates examination delays.
The PCT applications go through all national and regional patent offices separately, which makes it a more costly process because the applicants must prosecute the applications, which would require them to pay for their attorneys as well.

Patent Cooperation Treaty (PCT) application fees and phases

Inventors and utility inventions can be patented through the PCT, which is processed in two international phases:

A mandatory novelty search is undergone in Phase 1, which determines the report to be sent for the international phase.
At Phase 2, a preliminary patentability assessment is filed, which gives details about the novelty value of the inventions and their applicabilities. The final examination is for each of the patent states, which have their own patent laws.

The main fee requirements for the PCT include the application, novelty, forwarding assessment, and processing fees. If you are looking for discounts, you can obtain them in the novelty search fee, which might be refunded if a novelty search was already conducted in the pre-applications phase. If there are previous applications of the same patent inventions on which novelty searches have been conducted by the national patent office of the country, the fees will still be refunded.

Types and amount of Patent Cooperation Treaty (PCT) fees

When applying for the international phase, the PCT fee is incurred and is payable to the receiving officers (ROs) or the International Preliminary Examining Authorities (IPEAs). The amount and the currencies of the fees will depend on the choices you make while choosing the ROs and IPEAs in addition to the International Search Authority (ISA). The reduction or addition of costs depends upon case to case basis and the general fees for the application is charged as follows:

Transmittal fees: This is for the processing and the transmittal of the application by the ROs.
Search fees: This is for the international search that is carried out by the ISA.
International filing fees: This is for the several tasks that are performed, including the publications of the patents.

Modes of payment of Patent Cooperation Treaty (PCT) fees

The Receiving Officer (RO) is responsible to collect the filing fees from the applicants after they file for the preliminary applications. This search fee is then passed to the International Search Authority and the international filing fees to the International Bureau (IB), while the other fees is payable only in specific circumstances to specific authorities. If you are filing your application directly with the RO or IB, you might have to pay in Swiss Franc, US dollars, or Euros. The PCT Applicant’s Guide (Annex C(IB)) sets out the required amounts and procure for the submission of these fees. There are certain circumstances where the applicant must pay the IB directly which include the early publication fees, priority claims fees, and rectification fees. To know more about respective amounts and currencies, applicants may visit the PCT Fees Tables.

There are several ways in which you can pay your fees to the WIPO and get a follow-up as well because the WIPO does not accept payments through checks. The options for the payments are listed below:

- Opening a Current Account at WIPO: This payment method requires you to open a ePCT, which is an online e-filing portal that was made in 2011. It gives services for both the office as well as the applicants, and also maintains applications filed with the IB through electronic modes.

Debit and Credit card: This payment option is only applicable for the payment of fees to the IB or RO and the supplementary search fees which will be confirmed by email itself because the WIPO does not issue any receipts.

PayPal: This payment option is only applicable for the payment of fees to the IB or RO and the supplementary search fees which will be confirmed by email itself because the WIPO does not issue any receipts.
Sofort: This payment method secures your bank transfers with the WIPO.
Bank or postal transfer: While doing bank or postal transfer, you must provide your name, purpose of payment, file reference, and international application number. This information is crucial for the fees submission and failure to submit these will end up in your payment getting rejected.

Patent Cooperation Treaty (PCT) filing process

The PCT applications are filed in two phases:

International Phase
National Phase

To begin with, the applicant has to file an international application with the patent office to the receiving officer. This application is filed in the language that the jurisdiction of the country follows where you reside or want the patent in, for which the translation is given at the international phase. If any applicant is not a native of the country in which they are filing the national phase application, the application will be rejected. Such applications will be withdrawn by the receiving officer within four months, with the exception of the location being changed after the application is filed. Once you file the patent, it is communicated to all the contracting states and is compiled with the national patent laws.

The international patent applications and search warrants are published after eighteen months from the date of the applications. To continue the applications further, you must decide the course of action you want to continue the applications with. Chapter 1 of the PCT describes the default course of action, where the application will automatically go to the national phase. Under Article 19 of the treaty, every applicant is entitled to a claim for revisions to make modifications.

Chapter 2 of the PCT deals with the other way to get patents under the PCT by filing a 401 form, which is called a demand, as discussed above. The process of demand will be followed, and the states will get the notifications by the PCT about your patent examinations. The states will then want the published copies of the applications and search reports from the International Bureau. This is done by request through the intellectual property offices.

How to file the international application

Article 3 of the PCT lays down certain requirements for the international application:

The application must be in the prescribed manner.
It should comply with the prescribed physical requirements of the treaty.
The application must comply with the requirements of the unity of the invention or its novelty.
It should be subject to the specific fees.

The filing of the international application is divided into six phases by the PCT:

The application is filed with the regional patent office or the receiving officer. Simultaneously, the application can also be filed with the WIPO. The formality requirements must be fulfilled by all applications before the other processes at the preliminary stages.
The next step is followed by a patent search conducted by the International Searching Authority, which will be selected by the applicant. There is a prior art search that examines other pre-existing patents related to the inventions and other requirements for the inventions. A written opinion is also passed, which tells whether or not the patent will be possibly published and what all costs will be incurred for the patent to be filed.
Next, the application is published by the WIPO after eighteen months in any language permitted by the PCT. if the priority date is exceeded by twenty-eight months, any third party can file observations on the application anonymously.
The fourth stage in the PCT process is the national stage, which is initiated thirty months after the filing of the applications. The applicants can obtain patents in the national or regional phases of the specific countries and can also request expeditions. If the applicant is not able to pursue the national phase within the time set by the national laws, the patent will not be filed in that country.
This optional step is not a requirement for the PCT applications, though an additional international search apart from the main international search can help the applicant with the patent filing because it lessens the risks of any art popping up after the patent is filed.
The international preliminary examination, as discussed above, is an optional step that gives the applicants a patentability analysis.

Defects in international applications

As per Article 14 of the PCT, there are certain defects that can occur in the international applications, such as:

The signatures are not adequate as per the guidelines registered.
The application does not have the appropriate qualifications or data required for the applicant.
The application does not contain a title.
The application does not contain an abstract.
The application does not comply with the physical requirements.

These defects are to be corrected by the RO itself and it can call the applicant to correct the application within the time limit, failing which the application will be withdrawn. If the application does mention the existence of drawings and the said material is not available in the application, the applicant may be called to rectify those within the said limit, failing which the application will move forward without the consideration of the drawings. If the fees mentioned under Article 3(4)(iv) and Article 4(2) have not been paid, the office will declare that the application is withdrawn. If the fees are paid for less than that of the designated states, the application for the designated states for which the fees have been paid will be forwarded. If the requirements mentioned in Article 11 have not been fulfilled, the office will declare that the application is withdrawn.

How is international search conducted

Each international application that is filed under the PCT goes through an international search with the objective to discover relevant prior art. This search is based on the basis of the claims provided and the description of the inventions or the drawings. As per Article 16, if the International Searching Authority (ISA) discovers the relevant prior art and its facilities for documentation purposes and if the national law of the contracting states so permit, the applicants can also get a search similar to the international search for those national states as well. If the search is not in the prescribed language, the ISA will translate the search reports and make them accessible at both the national and international searches. The ISA may be a search authority which can either be a national office or an intergovernmental search authority with the objective to generate reports of inventions, keeping in record the other applicable inventions.

As per Article 16 (3)(a), ISA will be appointed by the national assembly to any office that fulfils such requirements. This appointment will be conditional depending upon the consent of such office, approval by the assembly, and the IB and RO. The agreement will specify the rules and obligations of the designated office and the formal undertaking of the office, which include the minimum manpower requirement and documentation which have to be fulfilled by the office during the term of its appointment.

According to Article 17, the ISA has to follow a certain procedure for its conduct, which is governed by the treaty. If the international application relates to some subject matter that is not required by the ISA to conduct search on or if something mentioned in the application does not qualify as per the requirements of the PCT, the search would not be conducted. If the ISA finds out that the novelty or unity requirement is not fulfilled by the application, the applicant might have to pay additional fees. The parts that comply with the requirements will be published earlier, and the inventions that require additional fees will be published later. According to Article 18 of the PCT, the international search report will be prepared in the specified way and time itself. It will be transmitted to the IB and the applicant through ISA, and will also be translated into languages specified. According to Article 19, the applicant can amend the search report once, though the IB ad also files brief statements explaining the amendments and impacts of those amendments. Though, these amendments cannot add something beyond the search report or the application until and unless the particular contracting states agrees to it.

National requirements and publications

According to Article 21 of the PCT, the PCT will publish the international publication in accordance with all contracting states of a specific invention in about eighteen months after the application is filed. The international search report will be published with the invention through WIPO in the form as prescribed by the regulations. If any application is withdrawn before the fulfilment of the technical requirements, the publication would not be completed. If the ISA finds something that is disparaging in the application, it may omit such materials and publish the invention without it. According to Article 29, the international publication will give the applicant protection for his inventions in the manner as prescribed under the national laws of the contracting states. The national state can issue the translations of the publications in their state and make it open for the public as provided by the national laws of the country.

The national requirements of the PCT have been listed under Article 27 stating that there are o additional requirements that the states need in addition to the international requirements. The rules do not exclude the states from obtaining crucial data and furnishing facts, such as the legal identity of the applicant and the officer entitled to the case. The states can also request for documents that were not part of the international application like the proofs of the materials present in the application, signatures, confirmations, and more. If an applicant feels that the requirements as subjected by the states are more favourable than the treaty itself, the former requirements will be put into place unless the applicant wants the requirements by the treaty to uphold. The states can apply any criteria they want to the concepts mentioned in the applications or the novelty criteria itself or the unity or the prior art requirements. The treaty does not pose any restrictions for the national phase and all contacting states are free to put their own requirements, which means that the national states are not construed to something.

Preliminary examinations and its benefits

Preliminary examinations are used to obtain preliminary reports or non-binding opinions where the applicants or the PCT raise questions about the novelty and application of the inventions. An International Preliminary Examining Authority is set up to give applicants the chance to evaluate whether or not they will get the patent. This examination is called Demand, and it helps the applicants check their possibilities for patents in several countries before incurring the expenses and getting to the national phase.

The Demand is filed within a certain time limit with the fees, followed by a response from the World Intellectual Property Organisation. This examination is preliminary because the final opinion will be formulated in the regional phases only. If the objections raised to the WIPO are about the inventive steps of the inventions, then the applicant can choose not to respond, which would also allow the applicant to deal with these issues separately with the national offices.

There is no particular way or choice in the criteria of these examinations; rather, it is based on the international requirements laid down by the PCT. The criteria can be termed on the basis of novelty, inventiveness, and applicability, as well as on secondary characteristics such as the appearance of defects, charity claims, multiple inventions, inconsistencies in the descriptions, several claims, or any other criteria the PCT may deem fit.

A favourable report in these examinations will help in the prosecution of the applications filed by the inventors. Several countries also use this as a preliminary stage for the grant of patents, such as the US, China, Europe, or Japan. Some issues that were raised in the preliminary examination would already be discussed prior to the national phases, which also helps expedite the process and reduce costs.

Provisions in Patent Cooperation Treaty (PCT)

Article 31 of the PCT gives you the provision for the demand of the preliminary examination by the RO whose demand must be made separately from the international applications. Article 33 lays down the objectives of the examination in a detailed form which serves the purpose of the preliminary enquiries. The basic objectives of it are as follows:

Formulate a non-binding opinion upon whether the claimed inventions are novel or not, involve an inventive step, or are industrially applicable.
The examination determines whether the invention is something unique to the inventor or is a basic skill that somebody in the industry sector already has.
The examination determines whether the claimed invention has some technological sense to it or is in the benefit of the protection of something beneficial in the industry it is for.
The examination takes into account all the documents cited and the interracial search reports that are relevant to the invention.

Article 34 of the PCT talks about the procedure to be followed for the examination, and the applicant has the right to communicate orally or in a written form with the treaty. At any point of the examination, the inverter can amend the claims, description, drawings, and anything in between for which the rules have been stated in Article 41. The applicant will receive a written statement from the authority if the invention clarifies the requirements set forth in Article 33(1) or if the invention qualifies the requirements for the treaty. If these requirements are not fulfilled during the examination, the authority can call the inventor to amend the claims.

Comparison between PARIS Convention and Patent Cooperation Treaty (PCT)

Intellectual property laws are different for different nations and conventions depending upon the type of intellectual property and the countries. The filing of patents on an international level is done by two major treaties, i.e. the Paris Convention and the Patent Cooperation Treaty. The PCT has been discussed above, already, but let’s dive into the Paris Convention further. It is one of the first intellectual property treaties for filing of industrial patents or intellectual property. The convention is further divided into three categories:

National Treatment: Every contracting state to the convention is liable to give the same protection for all intellectual property as they give at the national level to the people of its own state. This way, the treaty prevents the regulation of different rules for the protection of patents at the national level by putting the legal remedies for every state in a unified form.
Right to Priority: Further, the treaty protects utility patents, trademarks, designs, and patents by establishing a right to priority. The applicants while filling the first application are assured that they can file the applications for other contracting states as well, in a set period of time. Generally, industrial designs have a limit of six months for the filing of patents, whereas utility models have around twelve months to do that. Whichever application you file in this period and whatever contracting state it may be in, the invention will not lose its novelty because the latter filed applications are treated as if they were filed on the date of the first application.
Common Rules: There are common rules for all intellectual property under the convention, though while focussing on patents, let’s have a look at a few of them.

When it comes to individuality of patent applications, the treaty ensures that if you have a patent in one country, it does not mean you will have that patent in another country as well. If a patent is rejected in one country, it does not mean that it is rejected from the other one as well.

The inventor of an invention has the right to be named when the compulsory licence is duly obtained. The compulsory licence will only be obtained after three years from the date of grant of the patent or four years from its application filing date.

The Paris Convention has several benefits when it comes to international filing. Inventors can file for the broadest range of intellectual property out there under a single convention, including patents, trademarks, utility inventions, industrial designs, etc. no matter what the circumstances, an applicant cannot be refused patents in another country if a country has previously denied them. There is a lot of constitutional freedom given to applicants that may not be national of a country they are filing applications in. The twelve-month convention cycle also gives the applicants an edge over filing applications with other treaties because it reduces the costs of funding. The Indian Patent Office does not deny any amendments or claims at the time of the national phase applications under the convention, nor does the convention look to enact the national laws of a set fixed country.

Let’s have a look at the comparison for the PCT and the Paris Convention in this table:

S.NO.	BASIS	PCT	PARIS CONVENTION
	Applications	All applicants can file one international application for the filing of patents in all contracting states.	The applicants need to file separate applications for all countries they want to obtain patents within twelve months from the filing of the first patent application for obtaining the right to priority.
	Requirements	The formality requirements are already stated in the PCT along with search reports and the preliminary requirements that the applicants need to go through in a standardized form published at the PCT’s centralized publications’ system. Though, applicants still need to meet the requirements for every contracting state they want to file patents for at the national phase.	The applicants must comply with the formality requirements of each contracting state he wants to obtain patents for.
	Provisions	Rule 20(1) of the Indian Patent Rules, 2003 states that an applicant may delete any claims he has for his inventions during the national phase filing itself without paying any additional fee or filing any requests for modifications. Though, the office will not allow any other merger, amendment, revision, or additions in the patent applications.	Indian Patent Act, 1970 or the Indian Patents Rules, 2003 do not lay down any specific provisions for the convention applications for amendments of modifications at the national phase.
	Duration	The PCT allows an applicant to prepare for the national phase during the filing of international applications for up to eighteen months.	The convection cycle is up to twelve months, during which the applicant can seek funding or develop their products or inventions into commercial or utility patent materials by filing only a single application.
	Expenses	The PCT is a more cost-effective method of filing international patents, and it also reduces the cost of inventions and international search.	The convention can be hectic and a lot more expensive considering that you have to file for patents in every single country.

Conclusion

Patent Cooperation Treaty brought great revolution in the field of invention and innovation for the inventor due to this PCT enjoyed great success and continued growth across the world. It has a near global membership of 148 Contracting States with millions of inventors, big and small, who aid the world’s technological advancement through the use of the PCT and national patent systems. The PCT brought revolution in the way through which patents are obtained across the world. The time delay feature of the PCT preserves user patent options, delays costs, giving users an additional time to obtain financing and assess commercial, licensing and partnership opportunities.

The PCT is a revolutionary step in the filing of international patents and will be the easiest way to get foreign utility patents which are otherwise difficult to obtain. There have been several amendments that have been made to the PCT system and are being made every year as well. The motive of the PCT system is to simplify the filing process and regulate the national phase applications with ease as well.

Frequently Asked Questions (FAQs)

What is the difference between the Patent Law Treaty and PCT?

Patent Law Treaty or PLT is a treaty established by the World Intellectual Property Organisation (WIPO) in the year 2000 to streamline the patent filing process at the national or regional level and make the procedures more effective. This treaty mainly deals with the procedures required to file patents in member countries and address formal requirements. The PCT on the other hand is a treaty also established by the WIPO to file international patents simultaneously in several countries. It allows applicants to file a single patent for all countries they want their patent to be recognised from and conduct search examinations as well to examine the validity of the patents.

Who can file an application for the PCT?

Anyone who is a national or a resident of a contracting state can file the PCT to obtain patents on their inventions. However, if there are more than one person who owns a particular invention, then only one of them must fill the application.

Where do I file my PCT applications?

You can file your PCT application at the national level at your national patent office or you can directly approach the WIPO to file it. The PCT receiving offices are the only ones that take applications for your inventions and if you are a member of a contracting state that is also a party to the following, you may file your application with their regional patent offices as well:

ARIPO Harare Protocol
OAPI Bangui Agreement
Eurasian Patent Convention
European Patent Convention

What is the benefit of claiming priority in the PCT?

If applicants want to obtain patents for their inventions, they file their national forms before filling out their international forms with a gap of twelve months as per Article 8 of the PCT. Here, the applicants can claim priority on any such earlier applications so that if anything else happens in between the interval of the applications or another patent is filed, it would not affect or invalidate that patent already applied for.

What is Patentscope?

Patentscope is developed by the WIPO to keep the records for all the patents that are filed using international applications. It is a database that provides free and open access to all the data you might need for a particular patent like the technical information, dates, granted patents, and patent applications. You can search for patents in all languages authorized by the WIPO that can be selected in the navigation bars. There are several search criteria such as keywords, the intellectual property, types, categories, numbers, letters, and much more.

What is the PCT International Search and Preliminary Examination Authority?

An international preliminary examination determines the preliminary view upon whether an invention to be patented is novel or not. The PCT International Preliminary Examining Authority as per Article 32 extends a top-up search at the start of the examination processes. The authority goes through all the relevant documents in order to criticize a patent for its novel nature under Rule 64 of the guidelines. If the authority thinks that the search will yield nothing, it can choose not to go further with the search as well.

References

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Feminism and its advancement

By

Sneha Mahawar

-

January 15, 2024

0

This article has been written by Rupsa Chattopadhyay pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Gender justice is the right of every person in this world. Gender justice is a basic human right for all individuals. Every individual deserves to be treated with respect and dignity, irrespective of their gender.

Feminism is equality and equal rights for all genders. This means equal treatment for men, women and people of other genders, like non-binary, agender, and transgender people. To provide for equal rights for women and remove the disadvantages faced by them in various spheres of existence to bring them to par with men. The rights of other gender identities also come within their sphere and are being discussed.

Historical background of feminism

Historically, the existence of other genders has not always been formally acknowledged. However, it has been seen that women face certain specific kinds of disadvantages that men do not face. Hence, in the initial years, feminism traditionally catered to women and their empowerment. Feminism is often described as an economic, political, and cultural movement that aims to establish equal rights and legal practises for women ‘s rights and well-being.

Dr. Laura Robert, a Gender Studies professor, says, “Feminism is a political movement against sexism.” It basically tries to create a more inclusive and equal world for all. At the present stage, though women face some specific disadvantages and difficulties, the scope of feminism has expanded to provide equal treatment for all, irrespective of gender.

There are different strands of feminism. All strands of feminism believe that the difference between men and women is not due to biological factors but to social and cultural differences in the ways in which men and women are treated.

Feminism through the ages

Feminism advanced through the ages in the form of waves. The different waves of feminism can be understood as:

First wave of feminism

This wave of feminism occurred simultaneously with the Industrial Revolution. The first wave of feminism mainly concerned itself with women’ s voting rights and the women’s suffrage movement. It also involved other aspects, like:-

Right to good education
Right to property
Right to earn wages
Right to be recognised as a separate entity
Right to bodily autonomy

In the first wave of feminism, there was a struggle for the very legal identity of women.

The doctrine of coverture states that by marriage, the husband and wife are one person in the eyes of the law. The legal existence of a woman is suspended after marriage or at least is incorporated and consolidated into that of the husband. Thus, women ceased to exist after marriage in many ways This wave of feminism was largely dominated by upper-class, cis-gendered white women. By 1919, by virtue of the 19^th Amendment of the Constitution of the United States, women had acquired the right to vote. The right to vote granted a form of identity to women

Second-wave feminism

The second wave campaigned for basic social and legal rights for women. During this time, there was an abysmal condition among women.

Job segregation of the genders was common. In the advertisement column of the newspaper, there were separate openings for men and women. Women were fired from jobs when they got pregnant. Besides, there was no protection from sexual harassment. This created an impediment to the participation of women in the workplace.

Third-wave feminism

It is the continuation of and an attempt at rectifying the failures of the second wave. This wave was less characterised by a specific political agenda but was governed by a general ideology. The third wave of feminism witnessed the emergence of new ideas of feminism like intersectionality, vegetarianism, transfeminism and post-modern feminism.

The biggest challenge of the third wave of feminism is to emphasise the importance of feminism as well as to ensure that the gains of the second wave of feminism are not taken for granted. This wave of feminism attempted to bring light to the fact that women of the generation were still affected by patriarchy.

Fourth-wave feminism

The fourth wave of feminism is concerned with breaking down boundaries and subverting oppressive power structures.

In this wave of feminism, there is a heavy use of the Internet to call out misogyny in culture and politics. The #MeToo movement was created as women on a large scale called out unacceptable behaviour like sexual harassment by powerful icons. The #MeToo movement was controversial and there were two sides to it. On one side, perpetrators of women-specific crimes learned that they would not get away with their predatory behaviour simply because of their power. On the other hand, the reputation of innocent men was ruined because of false allegations from women.

The #MeToo movement gave feminism a bad reputation because of the false allegations. Several women began to disassociate from the label of feminism.

The major aspect of this wave of feminism is that gender identity and sex positivity were embraced. The fourth wave of feminism was inclusive of other gender identities. There was greater inclusivity compared to the other waves of feminism. Several amendments in criminal law have been made in India.

Impact on criminal laws

With the increase in violent crimes against women, the safety of women is also a major concern of the fourth wave of feminism. Several amendments were made in response to such violent crimes.

The Criminal Law (Amendment) Act, 2013 was passed in response to the Nirbhaya rape case. The said amendment made several changes to the Indian Penal Code of 1860, the Code of Criminal Procedure of 1973 and the Indian Evidence Act of 1872. Notably, new crimes were introduced under Section 354 of the Indian Penal Code, 1860. Section 354A of the IPC punishes sexual harassment with rigorous imprisonment for a maximum period of 3 years. Section 354B of the IPC makes acts of assault or criminal force with the intention of disrobing a woman an offence punishable with imprisonment for a maximum term of 7 years and a fine. Section 354C of the IPC makes voyeurism or the act of viewing a woman engaged in private moments, a punishable offence. Section 354D of the IPC punishes the act of stalking a woman, whether through electrical means or physical means.

Similarly, the Criminal Law (Amendment) Act, 2018 was passed in response to the Kathua rape case. Several changes were made in the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act. The said Act changed the maximum punishment for rape from seven years to ten years. The punishment for rape for girls below 16 years of age ranges from a term of 20 years to life

imprisonment. Similarly, the rape of a girl under 12 years has been changed from a maximum term of 20 years to life imprisonment.

The Protection of Women from Sexual Offences Act of 2012 was also introduced. It went a long way towards ensuring the well-being of working women.

The changes made to the existing criminal laws showed that the issues affecting women were being taken seriously. Victim blaming had reduced significantly and the culprits were held accountable.

Issues of LGBTQ+

In the case of National Legal Services Authority vs. Union of India and Ors. (2014), the issue of legal identity and the rights of transgender people were considered. In this landmark judgement, the Supreme Court held that transgender people were to be considered the third gender. The Apex Court further held that a transgender person is entitled to the rights granted by the Constitution, including the fundamental rights granted under Part III of the Constitution.

The Court also declared that transgender people fall under the category of third gender. They are to be granted complete legal identity. Hence, they are to be given education and health care without any form of discrimination.

In 2018, the Supreme Court passed a landmark judgement for the LGBTQ+ community. In Navtej Singh Johar vs. Union of India Ministry of Law And…..(2018), the Supreme Court partially decriminalised Section 377 of the Indian Penal Code. Consensual sexual acts between adults were declared legal even if they were between persons of the same sex. This judgement went a long way granting equal rights to sexual minorities.

In Supriyo @ Supriya Charkaborty vs. Union of India (2023), the Apex Court of India refused to grant legal recognition to same sex marriage, stating that it was out of the ambit of its power. Only Parliament and state legislatures can reliably grant such legal recognition. This was a unanimous verdict of the Constitution Bench, composed of five judges- the Chief Justice of India, Justice DY Chandrachud and Judges Sanjay KIshan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha. The judges held that they could not change the Special Marriage Act of 1954 to include homosexual couples within the ambit of marriage. However, queer couples have the right to cohabit.

Though this may appear to be a setback in the rights of same sex marriage, it started the conversations on the subject of same sex marriage.

Misconceptions about feminism

There are various misconceptions surrounding feminism. Due to such misconceptions, several celebrities distance themselves from the label “feminist.”

The term “feminist” is often misunderstood and misrepresented. Many people believe that feminists are angry women who hate men, or that they believe women are superior to men. However, this is not true. Feminism is simply the belief that women should have the same rights and opportunities as men.

Feminism is a movement that has been fighting for gender equality for centuries. It was born out of the need to address the injustices and inequalities that women faced in society. In the early days of feminism, women were fighting for the right to vote, to own property, and to have access to education. Today, feminists are still fighting for these same basic rights, as well as for other issues such as equal pay, reproductive rights, and an end to violence against women.

Feminism is not about female dominance. It is about equality. Feminists believe that all people, regardless of their gender, should be treated with respect and have the same opportunities. They believe that women should not be held back by social or cultural norms and that they should be able to reach their full potential.

Feminism is a positive movement that is working to make the world a better place for everyone. It is a movement that is about equality, not dominance. If you believe in equality, then you are a feminist.

Conclusion

Feminism is an ideology that deals with the rights of different genders and sexualities. There have been different waves of feminism that deal with various issues. In the initial years, feminism dealt with the issues of women primarily. Currently, feminism is concerned with the equality of all genders.

Feminism is the belief in social, political, and economic equality between the sexes. It has been a driving force for progress for women for centuries and has helped to achieve many important milestones, such as the right to vote, the right to own property, and the right to equal pay for equal work. However, there is still much work to be done. Women continue to face discrimination in many areas of life, such as the workplace, the media, and the criminal justice system. Feminism is still needed to address these issues and create a more equitable world for women.

One of the most important things to understand about feminism is that it is not about hating men. Feminism is about equality for all genders, and it recognises that the patriarchy hurts men as well as women. For example, the traditional gender roles that are enforced by the patriarchy can be harmful to men by limiting their opportunities and making it difficult for them to express their emotions. Feminism seeks to break down these harmful gender roles and create a more egalitarian society where everyone can thrive.

Another important misconception about feminism is that it is only for women. In fact, feminism is for everyone. Men can be feminists too, and in fact, many men are active in the feminist movement. Feminism is about creating a more just and equitable world for everyone, regardless of gender. Men as well as persons of other genders need feminism as much as women do.

Feminism is still needed because there is still much work to be done to achieve gender equality. Women continue to face discrimination in many areas of life, and feminism is the only movement that is working to address these issues. If you believe in equality for all genders, then you are a feminist.

References

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Section 36 of Arbitration and Conciliation Act

By

Rachit Garg

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January 15, 2024

0

This article was written by Mohammed Fardeen Yusuf. This article provides readers with an overview of Section 36 of the Arbitration and Conciliation Act of 1940. Following an overview of the significant provisions, it provides a detailed explanation of the provisions of the other included statutes. The article also discusses the important cases and pronouncements relating to this Section.

Table of Contents

Introduction

The procedure in the Indian judicial system for achieving vital justice in society, like the enforcement of the arbitral award, plays a very crucial role. One needs to enforce this award with the court’s help, or else it would remain in papers only. Several questions stand as a barrier to approaching the right court that has jurisdiction for the enforcement of the said award. To pass an order of execution, one must approach the court as directed under the Code of Civil Procedure of 1908. Section 36 of the Arbitration and Conciliation Act of 1996 talks about enforcing an award that shall stand similar to a decree passed by the court. This article shall give the reader an in-depth analysis of the provisions governing the aspect of the award, along with related provisions and case laws.

It is all about enforcement as provided under Section 36 of Arbitration and Conciliation Act

The term “Enforcement” is defined under Section 36 of the Arbitration and Conciliation Act as:

As an application is made to set aside the arbitral award under Section 34, which gets expired, it shall be subjected to sub-section (2), and the award shall be further enforced in compliance with the Code of Civil Procedure of 1908, as it will be done in the same manner as a decree of the court.
Section 34 talks about setting aside the arbitral award that is filed in court, and if filed, it shall not make the award enforceable until and unless the court gives direction in the form of a stay on the arbitral award in compliance with the sub-section (3), which talks about an application that is made separately for the said purpose.
Suppose the said application is filed under sub-section (2) for putting a stay on the arbitral award. In that case, the Court can further give directions upon the stay for the award concerning the reasons to be recorded in writing.

Provided that the court grants further the said application for put stay upon the arbitral award regarding the payment of money in compliance with the grant of the stay, including the decree of money under the Code of Civil Procedure, 1908.

As provided, the satisfaction of the court is upon the prima facie case, which states:

The basis of the awards concerning the contract or the agreement.
And the making of the award.

In case the awards were affected due to certain acts of corruption or fraud, the award shall stay upon the pendency for disposing of the challenge to the award under Section 34.

Explanation: The above-mentioned provision is only applicable to cases that are concerned with arbitral proceedings, and it does not affect the proceeding of court proceedings, which was only when the Arbitration and Conciliation (Amendment) Act, 2015, commenced.

To know more about enforcement of award, click here.

National Aluminium Company Ltd v. Presstel & Fabrications (P) Ltd. & Anr. (2003)

In this case, it was held that the enforceability of an award can only be made as it is similar to a decree passed under the Civil Procedure Code of 1908. It functions only if the application made under Section 34 has expired or been refused. The SC further stated the language of Section 36 as it allowed, and no discretion is to be made by the court to place parties on the terms that might significantly defeat the aspect of Alternative Dispute Resolution.

Malwa Strips Private Limited v. Jyoti Limited (2008)

In this case, it was held by the court that there should be valid reasoning made for a stay upon the money decree, as the stay must not be imposed only upon asking for the condition mentioned under Order XLI Rule 5(3)(a) of CPC. The decree of money can only be stayed in extraordinary circumstances, including the deposit of the amount as security, under which the respondent does not face any hardships due to the application of such specified conditions.

Amendments to Section 36 of Arbitration and Conciliation Act

Concerning the amendment that was made under the Arbitration and Conciliation (Amendment) Act of 2015 from the Arbitration and Conciliation Act of 1996, it has played a significant role in uplifting the aspect of arbitration in the Indian context.

The most prominent change was made regarding Section 36 of the Act, which previously talked about removing the stay in executing the arbitral award if an application was filed under Section 34 of the Act and is only applicable when there is a refusal made on the said application. However, this led to questions about its applicability on its original or amended form towards the appeals that are still pending and were filed before the date of amendment, i.e., October 23, 2015.

Retrospective application of Section 36 of Arbitration and Conciliation Act

Even though the amendment of 2015 was to be prospective in its applicability, it came out differently as applications were made under Sections 36 and 34 before the commencement of the Amendment Act. Below are the reasons under which Section 36 can be applied retrospectively:

The concept of enforcement and execution must be dealt with simultaneously, as enforcement stands out substantively and procedurally with its execution. Section 36 refers to the execution of the award that is made like a decree by the court under Order XXI and Order LXI, Rule 5 of the Code of Civil Procedure of 1908, and will be regarded as the only provision for the execution of the awards as a consequence of arbitration.
If the decree of execution is part of the procedure, then it shall not attract any substantive right that is vested in the award.
The application made under Section 34 with Section 36(2) is to be an attractive factor and is in the amended form, which is to be regulated according to the amended provisions only.
The proceeding that is made concerning the arbitral proceedings is to be an independent form of proceeding and should not be considered an arbitral proceeding.
If an automatic stay is taken upon an execution order, then the old Act might be a restriction for the decree-holder, and will not be able to follow the procedure as mentioned under Section 36 of the old Act. This will not signify an action towards the corresponding right concerned with the arbitral award for putting a stay on the execution of the award.
It was also highlighted by the court that the stay that was made previously was unfair and could not do justice towards the essence of achieving the objective of arbitration.

Notion of an unconditional stay in the Act of 2021

As highlighted in the column of the statement of objects and reasons, the Act of 2021 refers to the amendment as it was only brought into action to eradicate the aspects of corruption and illegal measures that affected the enforcement of the Arbitral Award. The amendment to Section 36 was made in the Act of 2021, which further introduced sub-section 3 under Section 36, and it states that the court, on having prima facie evidence, has the power to put an unconditional stay on being executed for arbitral awards made from fraud or corrupted acts. This states that the amendment made under Section 36 has defeated the sole structure of the arbitral agreement, which is concerned with the separation of the arbitration agreement from the contract.

This is the vital principle of a contract under which the agreement of arbitration can be completely severed from any form of contract. The 2021 Act refers to an “arbitration agreement or contract that is the basis of the award” and conflicts with the settled legal agreements, as the invalid contract does not affect the arbitration agreement, which can be severed under law.

The provision states the use of the phrase “it shall stay,” because of which the discretion of the courts does not have a vital effect. Ultimately, cases in which there is a prima facie assumption concerning arbitral awards made with the assistance of fraud and corruption give the court the power to impose an unconditional stay on that specific award that is pending to be disposed of under Section 34 of the Act.

If an award is made to be set aside under Section 34, it is on the parties who challenge the said award during the process of adjudication. The court can only grant a stay upon the prima facie contention that leads to the circumstances that would attract such a stay. It is then the responsibility of the court to further examine the aspect arising from prima facie contention, which is done on the presented grounds. It also includes the case made by the award-debtor in compliance with Section 34 of the Act, which further grants a stay in execution of the award.

One of the landmark cases to discuss this aspect is the case of United Commercial Bank v. Bank Of India (1981). It was held in this case that facts and circumstances lead to a bona fide contention between the parties and is to be decided by the party itself. It highlights the low standards of proof that are required to be obtained for an unconditional stay and the stay can only be made after the enforcement of an award under Section 34 of the Act.

Role of Section 34 of Arbitration and Conciliation Act

The final decree will only be implemented if the other side does not apply, setting aside that arbitral award. The setting aside of an arbitral award is only possible to comply with Section 34 of the Act. The only purpose of setting aside the arbitral award is to modify the said award either wholly or in part.

Features of Section 34 of Arbitration and Conciliation Act

Any recourse made towards the arbitral award is prohibited except as provided under sub-section (1) of Section 34.
It restricts the grounds under which the award can be acquired under sub-section(2) of Section 34.
The time limit stays very short, as in sub-section(3) of Section 34, under which an application is made for setting aside the award.
If there is any remission concerning the award, then it shall be cured by the arbitral tribunal.

The time limitation, as mentioned under sub-section(3) of Section 34, is that the application for setting aside the arbitral award is to be filed within three months from the day on which the applicant receives the award. As provided under sub-section if the applicant shows sufficient reason under which he/she was not able to apply within three months, then an additional 30 days shall be provided for applying to set aside the arbitral award.

Union of India v. Popular Construction Company (2001)

In this case, a conflict arose concerning the applicability of Section 5 of the Limitation Act with the award under Section 34 of the Act. The Court focused on the historical aspect and the objective of the Act, including the intention of the legislature. The Act’s sole purpose is to limit the intervention made by the Court in matters of the arbitral process and the various provisions of the Act. The intention of the legislature can be referred from the phrase “But not thereafter” under Section 34(3). This expression is taken into express exclusion under Section 29(2) of the Limitation Act and would significantly limit the aspects of Section 5. If the court is satisfied with the application made after the expiry of the limitation period to set aside the arbitral award in compliance with the Act, further will be equivalent to the phrase “but not thereafter” as serving no purpose.

Effect of Section 36 of Arbitration and Conciliation Act

The very perception that is made under Section 36 of the Arbitration and Conciliation Act is that the enforcement of the arbitral award that is in the domestic form of arbitration shall be implemented in the same manner as a decree is passed by the court.

If the limitation for further proceeding with the objection petition has expired or been dismissed under Section 34 of the 1996 Act, the execution process can also be initiated. The Act gives validity to a domestic arbitral award only if an Objection Petition is not filed under Section 34 of the Arbitration Act.

The rule of automatic stay came from the Arbitration and Conciliation (Amendment) Act of 2015. Only the filing of a challenge in compliance with Section 34 will not affect the enforceability of the arbitral award. The application for stay is required to be made for the operation of the arbitral award, which is to be only granted by the relevant court.

If the court had made a stay upon the arbitral award, then the award holder shall further enforce it in compliance with the Arbitration Act.

The enforcement of the domestic awards can only be done by the courts but there comes the proceedings of the court which attract more time and several procedures and the amendments of 2015 and 2019 were a huge leap in the Arbitration Act. As stated earlier, the domestic award will be regarded as an award passed by a civil court only when the period of setting aside the arbitral award has expired or the application has been refused. Another confusion involved whether the operation of an arbitral award will stay on challenge under Section 34 of the Arbitration Act.

This was significantly held in the National Aluminium Company Ltd v. Presteel & Fabrication in which the domestic award will not get executed as it is challenged under Section 34 of the Arbitration Act and the notion of “Automatic suspension” can only be applied once the challenging proceeding gets dismissed.

As the amendment made in 2015 concerning the automatic stay rule, it was amended under Section 36 as it does not make the arbitral award unenforceable and the stay concerning the award can only be demanded from a relevant court. This amendment was being pro-arbitration and was in huge controversy, challenging the retrospective effect to the proceeding about the arbitration matters. It led to further interpretation of Section 26 as stating that it shall not affect the arbitral proceedings before the date of commencement and would certainly be applied only on the arbitral proceeding which was on or after the date of commencement. This conflict was finally settled in the below-mentioned case.

Judicial pronouncements

BCCI v. Kochi Cricket Pvt. Ltd (2016)

Facts

In this case, a challenge was filed before the amendment of 2015 came into force followed by the execution petition which was filed after the 2015 amendment came into force. It was challenged by the appellants that the execution of the application made under Section 36 which is still yet to be amended already had an automatic stay on the award. But it was ruled by the single judge bench that the amended Section 36 would apply and no automatic stay would be granted and further ordered execution.

Issues

What is the validity of challenging the arbitral award made under Section 34 before the 2015 amendment came into force?
What is the validity of challenging the arbitral award made after the 2015 amendment including the proceeding and commencement of the award?

Judgement

The court held that the application filed under Section 34 after the 2015 amendment then the amended Section 36 will apply towards the proceeding and is a court proceeding which is made concerning the arbitral proceeding.

The stay which was made on the operation of the award under the 2015 amendment of Section 36 is not vested as a whole right, as Section 36 is only an execution petition and there are ocean of cases available to highlight that there is no substantive right in a judgement debtor to resist the part of the execution. The stay made under Section 36 before the 2015 amendment curtailed the rights of the decree holder which also opposes the right granted to the award debtor.

Finally, it was held by the court that the intention to take away the aspect of vested right is clear from Section 36 only when it is interpreted in compliance with the objects and purpose for which the Act was enacted.

As a consequence, the award debtors were required to file an application followed by the amended Section 36 of the Arbitration Act for getting a stay on the operation of the award, if not then the award holder will be entitled to proceed further for the enforcement of the award.

Satyawati v. Rajender Singh and Another (2013)

Facts

In this case, the plaintiff is entitled to the possession of the land measuring 80 sq. yards, which is in Khasra no. 95/24/2 which is in the municipal limit of the town. As the execution application was filed, it was rejected by the executing court as the decree was not in a position to be executed due to certain circumstances. One more highlighting aspect is that the judgement was given in favour of the plaintiff on September 17, 1989, because the executing court considered some of its reports, and it hence came to a conclusion on March 16, 2009, stating that the decree is not executable. Because of this, the plaintiffs appealed to the HC for the revision, but it was still rejected by the HC on May 25, 2011.

Issues

Does the judgement given by the HC concerning the execution of the decree stand as a valid point that affects the procedure of the Executing Court to give its judgement on the same decree?

Judgement

The SC allowed the appeal that was made and further quashed and set aside the judgement given by the HC. The SC further directed the Executing Court to do the required things to execute the decree. The SC also highlighted that “it is agonizing to learn that the appellant-decree holder is unable to enjoy the fruits of her success even today, i.e., in 2013, though the Appellant-Plaintiff had finally succeeded in January 1996.” Hence, the appeal was allowed.

There were further observations made by the court as to the execution of the decree; even though it was passed, it remained on paper only, and the plaintiff refrained from enjoying the fruits of the decree. The purpose of the Code is to make sure that not only the party gets a decree, but it shall also ensure that relief is provided quickly. The position has not seen any improvements till today, as there are still delays made for the decree to be executed, because of which the decree-holder is not able to enjoy the fruits of success, and the efforts of the successful litigant remain in vain.

Siliguri Jalpaiguri Development Authority v. Bengal Unitech Siliguri Projects Limited (2019)

Facts

In this case, a petition filed under Section 34 and Section 36(2) of the Act further demanded a stay on the award made by the arbitral tribunal on December 27th, 2021. The award required the petitioner to pay a pendent lite interest and the future interest from the date of declaration of award till the date of payment with a 9% rate of simple interest per annum. If the award was not paid within 3 months from the date of passing of the award then the pendent lite interest will be imposed. The payment of Rs 25,00,000 was also made by the Arbitral Tribunal to cover all the legal and arbitral fees.

Issues

Whether the award holder has the right to hold the entire sum of an arbitral award under Section 36 of the Act during the application for setting aside is pending.

Judgement

It was held by the court that the award holder is fully liable for the sum to be paid as decided by the Arbitral Tribunal including the interest and the other fees. The court also directed the petitioner to deposit 50% of the arbitral award to satisfy the registrar of the High Court of Calcutta including interests in the form of cash security or its equivalent.

Later the petition was dismissed by the court specifying the directions which were to be achieved within four weeks.

Conclusion

The aspect of the arbitral award that is to be enforced stands as a right towards the individual. One talks about the stay orders on the award; one defines the finality of the award; and another refers to the enforcement of the award. The recent amendments show a significant impact on arbitral court proceedings and the enforcement of the arbitral award, and the aspect of stay is be granted after enforcement under Section 34 of this Act, which certainly deprives the rights of the award holder. Further, the arbitral award can only be set aside on limited grounds or declared invalid under Section 30 of the Act. The only objective is to lessen the burden on the court with minimal interference in the settlement of disputes and provide smooth and stable functioning.

Frequently Asked Questions (FAQs)

How shall the award be enforced as per Section 36?

When an application to set aside the arbitral award expires under Section 34, it will be subjected to the provisions under sub-section(2) and the award will be enforced in compliance with the Code of Civil Procedure of 1908.

What is Section 34 of the Arbitration Act’s limitation period?

Section 34(3) highlights 90 days for further challenging the award. The three-month limitation period is intended to ensure that the finality of an arbitral award is not unduly delayed.

How do you execute an arbitration award?

Only upon receiving the stage of finality, and in the absence of any stay on execution granted by the court under Section 36(3) of the Arbitration Act, does the award-holder knock on the doors of the appropriate executing court to execute the award as if it were a decree of the court.

References

Haryana Judicial Services exam

By

Vanshika Kapoor

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January 15, 2024

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This article is written by Tinkle Chawla and edited by Vanshika Kapoor (Senior Managing Editor, Blog iPleaders).

This article is an attempt to make the reader know all the important facts regarding the Haryana Judicial Services exam. This will include the important dates, steps to fill in the application fees, procedure to submit the fees, eligibility criteria, syllabus, recommended books, and all the necessary guidelines in an exhaustive manner for the convenience of the judicial aspirants.

Table of Contents

Introduction

One who studies law aspires, at least once, to become a civil judge, for this is a highly prestigious government position one can ever dream of. It comes with a lot of benefits and perks, along with the major responsibility of serving justice to the aggrieved people. Therefore, thousands of aspirants prepare and, hence, appear for such an exam with full focus and dedication. However, before beginning with the preparation, an aspirant always looks for proper and correct information regarding that particular state’s exam in which he/she is interested.

Now with that motive, this article has been written in an attempt to provide you with all the information and guidelines under one roof, including the eligibility criteria, the exam pattern, syllabus, recommended sources to prepare, selection criteria, along with frequently asked questions which will help all the way more in clearing out your doubts (if any) as a judicial aspirant, especially, the Haryana Judicial Services aspirant.

The Haryana Judicial Services Exam is one of the most sought after competitive exams in the Northern States of India. The Haryana Public Service Commission is on the verge of announcing the much anticipated Haryana Judiciary Vacancy 2023. So without any further ado, let’s dive right into the important points you need to know for acing in the Haryana Judicial Services!

Haryana Judicial Services exam 2023-2024

The High Court of Haryana conducts the Haryana Judicial Services Exam annually to fill various posts of Civil Judge in the Haryana Civil Service (Judicial Branch). The selection process for the Haryana Judicial Services Exam (HJS) goes through three main stages, i.e., the preliminary stage, mains stage, and the viva voice (or interview).

Last year i.e. in the year 2022, the High Court announced 256 vacancies for civil judge posts. Out of which, 156 are reserved for the General category, 40 for SC (Schedule Caste), 21 for BC-A, 11 for BC-B, 11 for EWS, 20 (ESM+ESP), and 10 for the PwD category, via notification announced in January, 2021. The final results were announced in October 2022.

Salary of the recruited candidates for the post of Haryana Judicial Services

The recruited candidates will be paid according to the 7th Pay Commission.
The Haryana Judicial Services officers salaries in 2023 will range around 27100-710-33090-920-40450- 1080-44770.
However, it will be revised from time to time by the Government.
The annual package for the Haryana Judicial Services officers post 2023 will vary from 3.3 lakh to 5.3 lakh per annum with some allowance. For reference, here are a few allowances mentioned below:

Dearness Allowance
House Rent Allowance
Travel Allowance

The candidates can gain some perks and additional benefits associated with the post, as mentioned below:

Insurance coverage,
Medical insurance,
Housing benefits,
Increments and incentives,
Post-retirement pension,
Professional development.

The Haryana Judicial Services Exam is an examination conducted by the HPSC to recruit eligible candidates for several posts in the Judicial Services Department of Haryana. The candidates who successfully clear all the stages of the exam are then appointed as judicial officers in the state of Haryana. The job roles of a judicial officer include:

Hearing cases
Presiding over court proceedings
Announcing judgments
Maintaining court records and many other administrative duties

Tabular representation of Haryana Judiciary application form dates 2023-2024

The table below has information pertaining to the Haryana Judicial Services Exam:

Events	Timeline
Official Notification release date	01.01.2024
Opening date for submission of online applications	05.01.2024
Closing date for submission of online applications	31.01.2024 till 11:55 PM
Haryana Judicial Services Exam 2023-2024 (Prelims)	Yet to be announced
Haryana Judicial Services Exam 2023-2024 Mains Exam	Yet to be announced

The dates will be updated as soon as they are officially declared on their official website.

Haryana Judicial Services exam : let’s get cracking

If something needs blood, sweat, and tears, then it is a hard thing to do and requires a lot of effort and consistency. But having said that, tough or easy is just a mindset.

Nothing is impossible if approached with proper guidance and preparation on a regular basis. If you want to clear your exam in your first attempt, then you have to focus on a single strategy, and that is hard work and dedication, for there is no alternative to that, and hence it is the prime strategy of success.

Considering this, LawSikho has come up with Lord of the courses (judiciary test prep), for the aspiring candidates. They offer insights on every topic that is important to pay attention to, from strategies to crack the exam to past year papers with solutions and thousands of MCQs.

Moving ahead, let us know about the Haryana Judicial Services Exam 2023-2024 in detail.

Name and category wise bifurcation of the posts:

Haryana Public Service Commission invites online application forms for recruitment to 174 posts (129 actual + 45 anticipated vacancies) of Civil Judge (Junior Division) in the cadre of Haryana Civil service (Judicial Branch).

Category wise bifurcation of the vacant posts is as under:

Categories	Vacancies
General/ Unreserved	77
Scheduled Castes of Haryana	30
Backward Classes-A of Haryana	11
Backward Classes-B of Haryana	01
Economically weaker section of Haryana	10
Total	129
Ex Servicemen (Gen./UR) of Haryana	04
Ex Servicemen (SC) of Haryana	01
Ex Servicemen (BC-A) of Haryana	01
Persons with Benchmark Disability	VH-03HH-03OH-01MD-02

Category wise bifurcation of Anticipated posts is as under:

Categories	No. of posts
General/ Unreserved	24
Scheduled Castes of Haryana	09
Backward Classes-A of Haryana	06
Backward Classes-B of Haryana	02
Economically weaker section of Haryana	04
Total	45
Ex Servicemen (Gen./UR) of Haryana	01
Persons with Benchmark Disability	OH-01MD-01

Eligibility criteria for the Haryana Judicial Services Exam 2023-2024

In order to successfully apply for the Haryana Judicial Services Exam, a candidate must check that he meets the eligibility requirements before filing the form. The requirements are as follows:

Nationality

For this examination, a candidate must be either:

The candidates must be a citizen of India, or
A subject of Nepal, or
subject of Bhutan, or
A Tibetan refugee who came to India before 1st January 1962 with the intention of permanently settling in India; or
a person of Indian origin who has migrated from Pakistan, Burma, Sri Lanka, Uganda, Kenya, Zabia, Tanzania, Malawi, Zaire and Ethiopia, with the intention of permanently settling in India.

Provided that a candidate belonging to categories (b), (c ), (d) and (e) shall be a person in whose favour a certificate of eligibility has been issued by the Government of India.

Age limit

As per the Haryana Judicial Services Exam Notification, your minimum age should be 21 years, while the maximum is 42 years, on or before 31.01.2024.
However, there is age relaxation for some categories, as discussed below in the article, such as, there is a 5 years age relaxation for SC/ST/BC of candidates belonging to Haryana only (wherever posts are reserved for them), a 5 year age relaxation for the unmarried female candidate, rest is discussed in detail in the article afterwards.

Educational qualification

You must have a Bachelor of Law degree from any institute or university recognized by the Bar Council of India;
You must be an Advocate enrolled under the provisions of the Advocate Act, 1961, entitled to practise in the High Court or Courts subordinate to it.
A certificate confirming that the college, university, or institute is accredited with the Bar Council of India, New Delhi, must be provided. This certificate must be signed by the college head, the principal of the college, or the relevant university authority.
Also, there is no mention of the experience required to be eligible for the post. However, the eligibility criteria as mentioned in the article are necessary to be met.

Eligibility criteria for Haryana Higher Judicial Services exam 2023

The candidate must have attained the age of 35 and must not have crossed the age of 45 as of the date of notification.

For SC/ST candidates in Haryana State, the upper age limit is relaxable by 5 years, and for Persons with disabilities, it is relaxable by 10 years and 15 years for SC/BC.
Upper age limit relaxation is available to candidates belonging to the reserved categories as per instructions issued by the Government of Haryana from time to time in this regard.

Age limit for Haryana Judicial Services exam

A candidate must be above the age of 21 and under the age of 42, on or before 31.01.2024.
Age relaxations are applicable for candidates belonging to the reserved category, as shown in the table below:

Tabular representation of the age limit for Haryana Judicial Services Exam

Category	Age Relaxation
SC/ST/BC of Haryana	Relaxation of 5 years
Divorced women of Haryana; women whose husbands have remarried; widows; women living separately from husbands for over 2 years; wives of serving disabled military personnel	Relaxation of 5 years
Unmarried women	5 years
Disabled persons who are covered under the Rights of Persons with Disabilities Act, 2016	5 years relaxation in age (+5 years if PwD applicant belongs to SC/ST/BC/EWS category) subject to maximum 52 years, for Group A & B posts where recruitment is made through open competitive examination.
Ex- serviceman including Short Service Commissioned Officers and Emergency Commissioned Officers	Relaxation in age to the extent of his military service added by three years subject to a maximum of 5 years provided-He has rendered continuous military service for a period of not less than six months before hi release; andHe was released otherwise than by way of dismissal or discharge on account of misconduct or inefficiency.
Persons who have already worked or presently working on adhoc/ contract/ work charged/ daily wage basis in any Department/ Board/ Corporation of Haryana Government including Government aided Institutions under Haryana Government.	Relaxation in age equal to the number of completed years only on equivalent post on adhoc/contract/work charged/ daily wage basis excluding the period of break, if any, including any other age relaxation admissible, if any, subject to maximum age of 52 years and also subject to the condition that if once a person has been appointed on regular basis in any Department/ Board Corporation etc. of Haryana Government with the benefit of relaxation in age, he will not be entitled to avail the same again for any subsequent appointment.

Note: the upper age limit of an applicant of any category shall not exceed 52 years who is entitled to avail the benefit of relaxation in age of one or more of the categories mentioned above.

Also, the age concession to SC/ BC-A/ BC-B/ ESM is admissible only where the posts are reserved for these categories.

FAQ 1: What is PwD, and who all are included under the list of PwD candidates?

There are several categories of PwD candidates, namely:

PwD (Blind and low vision),
PwD (one arm, one leg, both legs, leprosy cured, dwarfism and acid attack victims),
PwD (Specific Learning Disability),
PwD (Multiple Disabilities involving blindness and low vision, one arm, one leg,both legs, leprosy cured, dwarfism, and acid attack victims).

Please note: The bifurcation stated above may change from time to time depending on the category of the officers of HJS to be promoted. In the notification, there will always be a note for everyone in case of changes.

FAQ 2: What will be evidence of age?

The Matriculation certificate or equivalent academic certificate thereto is the only age acceptable document for evidence of age.

Haryana Judicial Services exam: selection process and syllabus

The selection process is divided into three stages, namely, Prelims, Mains, and Viva Voce/Interview for the position of Haryana Judicial Services Exam.

The candidates must go through the detailed syllabus of the Haryana Judicial Services Exam to understand each topic in detail and plan their preparation accordingly. The Haryana Judicial Services Exam pattern will help you know about the weightage allotted to each topic or section in the exam.

Syllabus for the Haryana Judicial Services exam – Preliminary Exam

There will be objective type questions with multiple choice answers for the Preliminary Exam. The candidates are expected to have a general overview and basic knowledge of the Mains subjects and are also expected to have the knowledge to answer the questions on the topics mentioned below:

General aptitude

Profit and loss,
Simple and compound interest,
Ratio and proportion,
Sequence and series,
Probability,
Arithmetic, geometric and harmonic progression,
Area and volume,
Distance and time,
Percentage,
General statistical analysis,
Indices and numbers.

Analytical skills

Arithmetic ability,
Date, time and arrangement,
Business computations,
Data analysis,
Sequence series,
Quantitative analysis.

Reasoning

Permutations and combinations,
Blood relations,
Data sufficiency,
Alphanumeric problems,
Puzzle problems,
Syllogism,
Coding and decoding.

General knowledge

Current affairs,
Names of governors,
Sports,
Domestic and foreign policy knowledge,
Abbreviations,
Books and authors,
Science and technology,
Currencies and capitals,
Names of ministers,
Economic terminologies.

English

Words and phrases,
Synonyms and antonyms,
Active and passive voice,
Direct and indirect speech,
Idioms,
Modal expressions,
Tenses,
Coordination and subordination.

Pattern of Haryana Judicial Services Preliminary Exam (500 marks)

The Haryana Judicial Services Preliminary Exam consists of 125 MCQs (multiple choice questions).
The examination shall be of two hours duration.
Each correct answer carries 4 marks.
For every wrong answer, 0.80 marks, i.e., 20%, or, say, 1/5th mark, shall be deducted.
Each question shall have five options (A, B, C, D, and E). If a candidate is attempting a question, he shall have to darken the appropriate circle (A, B, C, or D) and if he/she is not attempting the question, then he shall have to darken ‘E’. If none of the five circles is darkened, one fifth (0.8 mark) mark shall be deducted.
Any candidate not darkening any of the five circles in more than 10% of the questions (13 questions) shall be disqualified.
The Haryana Judicial Services Preliminary Exam will consist of 500 marks in total.

Tabular representation of Haryana Judicial Services Preliminary Exam

Subject	No. of questions	Marks	Exam Duration
Law subjects, National and International Affairs
Indian Legal and Constitutional History	125	500	2 hours
Analytical Skills, Reasoning and Aptitude
Total	125	500

Strategy for the Haryana Judicial Services Preliminary Exam

The strategy for the Preliminary Examinations should be started at least a year prior to the date of the exam.

A proper study plan must be adopted to ace the exam:

The subjects should be revised first.
Read the Bare Act thoroughly and make your notes concurrently.
Keep your focus entirely on Bare Acts right from the beginning, including the index.
After that, solve multiple choice questions from books such as Singhal’s, Universal’s, and previous year papers.
Revisit the errors you made and mark them for future revision.
At the end, try an objective test on that subject with 100-200 questions.
Make sure you improve every time you solve questions, this will help you keep a check on your preparation.
If not, go back and revise once again by reading the Bare Act.

If the score is more than 80%, then proceed with other subjects in the same manner.

The Preliminary Exam marks the beginning of your success, and if approached in a strategic manner, it’s not so difficult to crack.

Having taken multiple tests and with revision, it will definitely help you breeze through the Preliminary Exam with ease and great results.

Syllabus for the Haryana Judicial Services exam – Mains Exam

The Haryana Judicial Services Mains Exam consists of 5 papers that are subjective in nature. The candidates are expected to have deep knowledge and understanding of the mains subjects as mentioned below:

Paper I: Civil Law I

Code of Civil Procedure, 1908;
The Punjab Courts Act, 1918;
The Indian Contract Act, 1872;
The Indian Partnership Act, 1932;
The Sale of Goods Act, 1930;
The Specific Relief Act, 1963;
The Indian Evidence Act, 1872;
Haryana Urban (Control of Rent and Eviction) Act, 1973.

Civil Law II

Hindu Law;
Mohammedan Law and Customary Law;
The Registration Act, 1908;
The Limitation Act, 1908.

Criminal Law

The Indian Penal Code, 1860;
The Code of Criminal Procedure, 1973;
The Indian Evidence Act, 1872.

English

English essay (1000-1100 words),
Precis,
Words and phrases,
Comprehension,
Corrections.

Language

Hindi (Devanagari),
Translation of an English passage into Hindi,
Explanation of Hindi passages in prose and poetry in the same language,
Composition (essay),
Idioms,
Corrections.

Pattern of Haryana Judicial Services Mains Exam (900 marks)

The exam will be subjective in nature.
It will be 900 marks in total.
Each written paper will be conducted for 3 hours.
Candidates appearing for the Mains Exam shall score at least 50% of the total marks in the written exam to be qualified for the viva voce/ interview stage.
It is 45% for physically disabled candidates, veterans/ ex-servicemen, or those belonging to SC, ST, or backward class categories.

Tabular representation of Haryana Judicial Services Mains Exam

Paper	Marks	Duration
Paper I- Civil Law I	200	3 Hours
Paper II- Civil Law II	200	3 Hours
Paper III- Criminal Law	200	3 Hours
Paper IV- English	The english paper will be of 200 marks and will consist of following:English essay (100 marks)Precis (25 marks)Words and phrases (25 marks)Comprehensions (25 marks)Corrections (25 marks)	3 Hours
Paper V- Hindi Language	Hindi language paper shall comprise the following:Translation of English passage into Hindi (20 marks)Explanation of Hindi passage in prose and poetry (30 marks)Composition (essay, idioms, corrections etc.) (50 marks)	3 Hours
Grand Total	900 marks

Strategy for the Haryana Judicial Services Mains Exam

A specific strategy is to be followed to prepare for the Mains Exam. There is no straightjacket strategy; it differs from person to person. So whatever suits you, must be your preparation plan. For convenience, a general strategy is explained below:

Start with two subjects – one minor (such as Limitation Act, Registration Act, etc.) and one major (such as CPC, CrPC, IPC, etc.).
Make a time table to ensure completion of each subject within a certain number of days.
With regards to the subject you have taken up, analyse the previous year’s question papers of the State you are preparing for and make a list of topics that you find recurring and important.
Make another list of topics that are not that important but can be asked about.
Now start revising your notes in light of the list you made.
Keep in mind the weightage a topic could carry and its probability of being asked in the exam. Remember, revise everything, but give more time to the topics on the list.
Make your own handwritten notes, and if any of the previously asked topics are not in your notes, read from a standard textbook and make notes on it.

Important: Do not leave any topics!

Once you are done with a subject, take a timed subjective test on it.
Evaluate and correct your mistakes. It could be lack of content, not so good writing skills, insufficient time management, etc., whatever it is, work on it.
Similarly, proceed with another subject and follow the same strategy.

Gradually, you will observe that you will gain confidence as you develop command over subjects, and this is exactly what is needed to ace the exam.

Viva Voce/Interview

Candidates who pass the written exam are qualified to appear in a viva voce/interview.

The interviewer’s main concern is to judge candidates’ alertness, knowledge of the subject and application of the same to real life situations, general outlook on law and order, interpersonal skills, and intelligence.

The viva voce/ interview will be of 200 marks.

How to make notes for the Haryana Judicial Services exam

This is the most crucial task, which one needs to know and learn before beginning with the preparation. You need your notes throughout the preparation, starting from the preliminary stage until the interview. So make sure they are worth it, and here are a few tips on preparing the notes for your exams:

First reading

Complete the first reading of the subject to get a brief understanding of it without worrying about making notes. Just give a normal reading initially.

When to make notes

Once you become familiar with the subject after initial reading, you can fairly distinguish the relevant matter from the irrelevant. Now, you can begin your notes.

How much is enough to begin

Your comprehension after the initial reading does not need to be perfect. If you understand 70%-80% of the concept, then you begin writing your notes. Eventually, you will understand everything on the subject.

Content of notes

If you are unclear about how to make your notes, you will end up writing all the content down, and sooner or later, you will realise that it was a waste of time.
So you must start with the section numbers and the inter-related sections.
Object and purpose of the section/topic.
Ingredients of each section and their meaning or interpretation.
You can even make flowcharts for quick revision later on.
Any additional points in regard to a particular must also be written; you can use a different colour pen or a highlighter.
Similarly, you can proceed with all the other sections.

And, voila, you have the notes for the Haryana Judicial Services Exam!

How to start preparing for Haryana Judicial Services exam : plan of action

Basics of law

The basic requirement for the post of judicial services preparation is to have a degree of law from a recognised university/ college by the Bar Council of India, which indicates that one should be well versed with the basics of law and have a deep understanding of the Bare Acts and the topics or subjects. This can be achieved by keeping your graduation level notes, the post graduation notes in proper condition and handy.

Whichever State judicial services exam you are preparing for, once you become a judge, you must have a strong grasp of Constitutional law because every judgement has some reference to the Constitutional law. Thus, even before preparing for the Haryana Judicial Services Exam, the aspirants must learn Constitutional law by heart. This will help you to write the subjective exam, i.e., the Mains Exam, well and will boost your confidence during the viva voce/ interview as well.

Which State to prepare for

Whenever you decide to opt for becoming a judge, the very first question that arises, besides the preparation and all, is the State. In such a situation, you must always go for those states that have similar exam patterns. There are some states that allow a limited number of attempts, whereas there are a few that offer an unlimited number of attempts. There are some states that are considered tough to crack (for example, the Delhi Judicial Services Exam is considered one of the toughest and most competitive judicial services exams), whereas a few states are considered comparatively easy to ace (for example, Madhya Pradesh).

Therefore, one must decide upon this point very carefully, as this will impact your preparation strategy.

Now that we are discussing the details of the Haryana Judicial Services Exam, the candidates might become curious about the states that have a similar syllabus to Haryana Judicial Services. This way, they can appear for those state exams as well while preparing for the Haryana Judicial Services Exam.

States with a similar syllabus as that of Haryana Judicial Services Exam

If we look at the Judicial Services exam syllabus of the state of Punjab, it seems to be similar to the syllabus of the Judicial Services exam of the state of Haryana. Also, Himachal Pradesh Judicial Services Preliminary Exam has similar syllabus as that of the state of Haryana (provided the Mains Exam for HP Judicial Services Exam has many additional acts to study).

Current affairs

To prepare yourself for national and international current affairs, the major source is to make a habit of reading at least two national newspapers and one regional newspaper daily. This will not only help you in the first stage of the exam but in the language paper as well, where you will be asked to write an essay on any current event happening around you. Also, this will give you an edge over the civil and criminal law questions.

Reference material

There is a plethora of material available in the market. So which one is good or understandable may vary from person to person, and for that, you have to refer to as many textbooks and sources as you can before you find that perfect book for yourself. You may contact your local library or check for online archives to find a soft copy of the books.

Revision

Once the preparation is over, to get hold of the concepts and factual data, you must do revision. For revision, you must attempt as many questions as you can because:

Firstly, it will help you memorise the facts.
Secondly, you will know your mistakes and learn from them.
Thirdly, your fear of appearing for such a prestigious and competitive post will be lowered by the confidence that you will gain from such practice.

Thus, the more mock tests you give, the more confidence you develop for the exam.

Books to refer for Haryana Judicial Services exam

Let’s have a look at the table below to know some of the best books for the Haryana Judicial Services Exam.

Books for Preliminary Exam

Subjects	Books	Author/ Publication	Description
General Knowledge	Haryana Samanya Gyan	Spectrum	This book is a whole new style of presenting understandable content. Available in Hindi.
General Knowledge	Know Your State	Arihant Publications	The book is divided into six units that cover all topics related to Haryana state.
Aptitude	Quantitative Aptitude for Competitive Examinations	Abhijit Guha, R.S. Aggarwal	Provides a modern approach to quantitative aptitude.
Aptitude	Shortcuts in Quantitative Aptitude	Disha Publications	Packed with simple tricks and tips for solving aptitude questions.
Analytical Skills	Analytical Skills	Showick Thorpe	This book is written with a detailed analysis of analytic skills.
Analytical Skills	Analytical Reasoning	M. K. Pandey	Reliable study material to work on logical and reasoning skills.
Reasoning	A Modern Approach to Logical Reasoning	R.S. Aggarwal	Revised edition, retaining the key strengths and structure of the previous edition.
Reasoning	A New Approach to Reasoning	B.S. Sijwali & S. Sijwali Arihant	Guide to help aspirants to master reasoning-type questions.
Indian Legal & Constitutional History	Outlines of Indian Legal & Constitutional History	M.P. Jain	It’s the 7th edition, written in a narrative format for easy understanding.
Indian Legal & Constitutional History	V.D. Kulshreshtha’s Landmarks in Indian Legal & Constitutional History	Sumeet Malik	One of the popular books on the Legal and Constitutional History of India.

Books for Mains Exam

Subject	Books	Author/ Publication	Description
Criminal Law	The Indian Penal Code	Ratanlal & Dhirajlal	It is a topic commentary with a section-wise content flow.
	Textbook on the Indian Evidence Act	K.D. Gaur	This Law of Evidence textbook applies to both civil and criminal cases.
	Criminal Procedure Code	R.V. Kelkar	The book provides a topic-wise treatment of the subject and makes the study of criminal procedure meaningful and understandable.
Civil Law – I	Law of Sale of Goods	Avtar Singh	This book is the revised and updated edition with the latest relevant rulings in India.
	Introduction to Law of Partnership	Avtar Singh	It is a popular and authoritative work on partnership law, including Limited Liability Partnership.
	The Law of Torts	Ratanlal & Dhirajlal	This book is the most authoritative, well-acknowledged, and comprehensive commentary on the subject.
	Property Law	Poonam Pradhan Saxena	The book is a systematically organised coverage of the Transfer of Property Act, 1882.
Civil Law – II	A Textbook of Jurisprudence	Autar Krishen Kaul	This textbook is written primarily for all those students who appear for competitive examinations offering law as a subject.
	Indian Constitutional Law	Prof. M.P. Jain	This book is a thematic presentation of the complex and multi-dimensional subject in a lucid, comprehensive, and systematic manner.
	Law of Marriage & Divorce	Dr. Paras Diwan	It includes the matrimonial laws of all the Indian communities, including Hindus, Muslims, Christians, Parsis, and Jews.
English	High School English Grammar and Composition	Wren and Martin	Best book that provides ample guidance and practice in various concepts of English Grammar and Composition.
	Objective General English	S. P. Bakshi	One of the best selective books for any kind of competitive exam.
	General English for All Competitive Examinations	S.C. Gupta	Contains questions related to Grammatical concepts, word power, and Compositional English.
Hindi Language	Hindi Core Class 12 CBSE	Full Marks Publication	Deals with concepts of Hindi based on Class 12.
	Samanya Hindi	Mani Shankar Ojha	Have clear and structured basic concepts for all competitive exams.
	General Hindi	Hardev Bahri	Specially designed and updated version for various competitive exams.

Haryana Judicial Services – Viva Voce/Personal Interview

Candidates who qualify in the Mains Exam are called for the viva voce, also referred to as the personal interview. This stage assesses the candidate’s personality, interpersonal skills, knowledge of the law subjects, and awareness of the current national, international issues going around. Thus, it is checked whether the candidate is suitable for the role of a judge or not and can work calmly and attentively under extreme situations and pressure.

The interview is conducted for a total of 100 marks. You have to score a minimum of 50% marks in the aggregate of the Mains and Interview to make it to the final merit list.

Tips to improve score in Viva Voce/Personal Interview

Communication skills

Proper use of words and speaking clearly are the key ingredients to present yourself in an interview. Use of slang or jargon is not advisable. The candidate should practise enunciation.

Tone

Using a pleasant and polite tone is the right approach. Maintain your calm and composed demeanour. Avoid sounding aggressive or having a nervous shaky voice. Be confident about your preparation.

Listen first

Always listen to the question carefully and completely. Do not interrupt the interviewer in between. Show interest and engagement, and then answer.

Vocabulary

Use appropriate and precise language. One must avoid using repetitive phrases. So you should work on your vocabulary by reading legal texts, regularly, reading articles, and practising new words and phrases.

Confidence

You have been aspiring to become a judge and preparing for it very hard, so you must believe in yourself, and maintain a positive attitude. Always focus on your strengths and accomplishments. Visualise a goal to achieve success and do not deviate from it.

Application process for Haryana Judicial Services exam

Before we understand the whole process of filling out the Haryana Judicial Services Exam, let us first know the documents and other requirements that are needed while filling out the form without any hassle.

Documents required to fill out Haryana Judicial Services application form

Valid and active email address

You must have a valid email address, as this will be used for any and all kinds of communication regarding the exam, starting from filling out the form until the final merit list. Thus, any information that the Commission would want to convey to the candidates will be conveyed via this email address only. So you must mention that email address, which you use often, to avoid forgetting the email address and its password later on.

Scanned passport size photographs

The candidate must keep a scanned copy of a recent passport size photograph either in .jpg or .jpeg format to upload in the documents. It must be a recent photograph, as this will appear on your admit card, which will be checked while you enter the examination centre. Keep extra photographs as backup (at least 2).

Scanned signature

The candidate must keep a scanned copy of a signature either in .jpg or .jpeg format to upload in the documents. It must be a recent photograph, as this will appear on your admit card, which will be checked while you enter the examination centre.

Educational qualification certificates

It is advisable that the candidate keep all the scanned copies of educational certificates handy. In case they are asked to upload them, it will be easier to upload them and complete the submission on time.

PwD certificate or caste certificate

It is advisable that the candidates keep the PwD certificate or the caste certificate handy for the smooth submission of the form.

Details of debit card, credit card or internet banking

It is advised that the candidates keep their banking details, such as debit card/ credit card details or internet banking details, handy for making the online payment and submit the form in one go without any delay.

To fill out the form, the candidate has to visit the official website of HPSC i.e., @hpsc.gov.in. Now let us understand each step one by one.

General Instructions to fill Haryana Judicial Services exam 2023

You must follow the following general Instructions while filling out the Application Form for the Haryana Judicial Services Exam 2023:

You must go through the official advertisement for the Haryana Judicial Services Exam 2023 before applying. This is to ensure that you fulfil the eligibility criteria, the educational qualifications, are enrolled as an advocate under Advocates Act, 1961, and so on.
You must start filling out the application form by entering a valid and active email address, as any sort of communication by the HPSC will be communicated through the registered email address and mobile number only. Therefore, you must make sure that the details you enter are correct.
For uploading all the documents, you must go through the format that is specified in the official notification regarding the size, background colour and so on.
Please note that once you have submitted your name, date of birth, educational qualifications, category, and so on, you cannot make any changes after the final submission of the form.
After filling out the details, a pop up menu shows the above mentioned warning, so make sure that you go through the details once again before final submission of the form. Check all the details twice before hitting the Submit button.
The details have to be mentioned in the English language only.
One candidate has to submit one form only. If you submit multiple forms with the same mobile number and email address,

Firstly, it will not be accepted;
Secondly, even if submissions happen, the last filled form will be considered, and no previous application fees will be refunded.

To avoid any kind of hustle, fill out the application form before the last date.

Thus, it can be concluded that you must be extra careful while applying for the Haryana Judicial Services Exam 2023, as any amendments will not be made later on.

Also, you can use the following web browsers while filling out the application form:

Google Chrome,
Mozilla Firefox,
Internet Explorer.

Latest versions of these search engines are preferable.

Steps to fill out the form for Haryana Judicial Services exam 2023

The Haryana Judicial Services Application Form is a four-step process, as mentioned below:

Registration,
Filling out application form,
Uploading documents,
Payment of application fees.

Step I:

The primary step is registration. The first step in appearing for the exam is to submit the application. So fill out the application form and submit it within the time and date constraints.
The new candidates, i.e.,the candidates who are filling out the application for the first time, have to register themselves as “Fresh Candidate” on the official website of HPSC.
The candidate has to select the option “Click here to Apply” on the official website.
After this, few common details, such as name, mobile number, and email address, will appear on the screen.
Upon successful registration, you will receive a User ID and password for future reference. The mobile number and email address that you provide will be connected with this User ID and password, so make sure that you provide correct details and note them down.

Step II

Re-login to the website and click the “Go to Application Form”.

Step III

After the application form appears, you have to fill in the mandatory fields (marked with an asterisk), such as qualification details, communication details, date of birth, category, etc.

Step IV

Now, you are required to upload the photograph and signature as per the size specifications given in the official notification of the Haryana Judicial Services Exam 2023.

Step V

The final and last step is to make the fee payment, for which you should keep your debit/credit card details or your internet banking details handy, as mentioned earlier.

Please note: Be extra careful while making the payment, as the application fee is not refundable.

Haryana Judicial Services Exam 2023: application fee

As mentioned above, you can pay the application fee using a credit card, debit card, or internet banking.

Tabular representation of fees for Haryana Judicial Services exam

The application fee for all the different categories for the Haryana Judicial Services exam 2023 is mentioned below in the table:

Category	Application fee
General category Male, including Dependent Son of Ex-Serviceman of Haryana	Rs. 1000/-
For the Male General category and all reserved categories of other states	Rs. 1000/-
For all Female General category, including Female Dependants of ESM of Haryana, only	Rs. 250/-
For the Female General category and all reserved categories of other states	Rs. 250/-
For the Male and Female categories of SC/ BC-A/ BC-B/ ESM categories of Haryana only	Rs. 250/-
For all PwD, i.e., the Persons with Disabilities category (with at least 40% disability) of Haryana only	NIL

Number of attempts for Haryana Judicial Services exam

The Haryana Public Services Commission has not set any limit on the number of attempts that a candidate can make to give the exam for the recruitment of the post of Haryana Judicial Services, as stated in the Haryana PSC eligibility criteria.

Also, there is no mention of experience for the Haryana Judicial Services Exam 2023. However, the candidate must meet all the eligibility criteria before applying for the position.

Haryana Judicial Services admit card

The Haryana Judiciary Admit Card is a crucial document that you must carry with you to the examination centre on the day of the exam. It contains essential information such as your name, roll number, exam centre, and exam time.

How to download the admit card

To download your Haryana Judicial Services Admit Card, follow these simple steps:

Visit the official website of the Haryana Public Service Commission (HPSC).
Look for the link that says “Haryana Judiciary Admit Card” and click on it.
Enter your registration number, date of birth, and other required details.
Click on the “Submit” button.
Your Haryana Judicial Services Admit Card will appear on the screen.
Download and take a printout of the admit card.

Make sure to check all the details mentioned on the admit card. If you find any discrepancy, contact the concerned authorities immediately.

It is essential to carry the admit card to the examination centre along with a valid photo ID proof. Without these documents, you will not be allowed to enter the examination hall.

Examination centres

The candidates must keep the following things in mind, before they fill the exam centres of their choice:

While filling the form, candidates will be able to select three preferred examination centres.
Based on availability, HPSC will allocate each candidate to one of these three centres.
Candidates will be required to take the exam only at the allotted centre and will not be allowed to take it anywhere else.
The Commission will not consider any request for a change of examination centre.
The tentative exam centres for Haryana Judicial Services is as follows:

Ambala,
Faridabad,
Gurugram,
Hisar,
Kaithal,
Karnal,
Kurukshetra,
Panchkula,
Panipat,
Rewari,
Sirsa,
Sonepat,
Yamunanagar.

In the year 2022 also, the centres list were as mentioned above in the list. However, the Commission has all the right to make a change in the exam centres. They may either add a new place or cancel any of it.

Reporting time

It is important to note that you need to report to the exam centre at least 30 minutes before the scheduled exam time. This will give you enough time to complete the registration process and get settled in before the exam begins.

Prohibited items

You are not allowed to carry any electronic devices such as mobile phones, calculators, or smartwatches to the exam centre. Additionally, you are not allowed to carry any books, notes, or other study material with you. If you are found carrying any prohibited items, you may be disqualified from the exam.

How to check results for Haryana Judicial Services exam

After appearing for the Haryana Judicial Services Exam, the next step is to check your results. The Haryana Judicial Services Results of the Preliminary Exam and Mains Exam are always released on the official website of the Haryana Public Service Commission (HPSC).

Candidates can check the final result by visiting the official website of the HPSC and following the following steps:

Step I

Visit the website of the Haryana Public Services Commission.

Step II

Search for the “Result” option on the homepage and click on it.

Step III

On the “Result” page, search for Haryana Judicial Services Exam Result 2023 and click on it.

Step IV

A PDF file will open. Search for your Roll Number. You can download the file for future reference.

Tips and tricks to prepare for Haryana Judicial Services exam 2023

It is important to follow a certain strategy in order to prepare well for the Haryana Judicial Services exam 2023. To perform well, you should follow some of the following tips:

Start your preparation early

A competitive exam for which thousands of aspirants are preparing already carries with it a lot of stress and anxiety. So in order to ace such an exam, it is important to keep calm throughout the preparation journey. The most important part of strategy is to start your preparation as soon as you can.

It is suggested to start preparing for the Mains Examination before even planning to prepare for the Preliminary Examination as it will help you cover all the topics exhaustively. Moreover, you will get immense time for revision at the end. Even before your targeted judiciary exam is notified, you should invest time in preparing for the Mains Exam. This strategy will help you clear the exam in the first attempt.

Once you make yourself familiar with all the concepts thoroughly, then you can start your Preliminary Examination preparation at least three to four months prior to the state of the exam. Practise as many mock tests as you can, for this is the only key to clear the Preliminary Exam in the first attempt.

So in totality, if we make an estimate, a whole year is an appropriate period to keep your preparation strong. This takes us to the second important point, i.e., time management.

Time management

The management of time is very crucial for this exam. Every subject’s study approach is different. For example, procedural laws such as CrPC, CPC take around three months each to understand and learn completely. Similarly, lighter subjects such as the law of registration and the law of limitation need much less time in comparison to the major subjects. Thus, it is mandatory to assign appropriate time to each subject and try to complete it within the time frame.

Also, the candidate must practise mock tests and practise in a way as if they are real tests. Keep a timer with you so that you would know how much time you are supposed to give to each answer and complete the paper because even if one question is left unattempted, consider yourself to be out of the race already.

This way the candidate will know where and how to improve. Always remember, ‘Practice makes a man perfect’. So solve as many mock tests as you can.

Note down the syllabus

Make sure that you are thoroughly familiar with the syllabus for both the preliminary and Mains Exams. You can write it down clearly and pin it to your study table.

Language

Language papers, i.e., Papers IV and V, should never be ignored or kept for the end. This is the most scoring paper that can keep you on par as compared to others. You should read English as well as Hindi newspapers daily to get a hold of good vocabulary.

While reading the newspaper, prioritise sections relevant to the judiciary exam preparation. Pay special attention to national news, international affairs, legal updates and editorial. Do not waste your time in reading unnecessary topics such as sports and entertainment, as they are less likely to appear in the exam questions.

Always try to keep your focus on the relevant topics as one can easily get carried away while reading politics or entertainment or other such news.

Make sure you practise the syllabus of the language papers regularly, such as essays, precis, translations, and so on. The books recommended for the same are mentioned earlier in the table.

Past year papers

“Practice makes a man perfect” is the perfect idiom that fits here. Unless you practise as many past year papers as possible, you will not know your mistakes, and hence you will not work on improving. To do revision, solving thousands of papers is the only key.

You must solve each subject’s past years once you are done with its syllabus. This will not only ensure that you know your mistakes but will also help with time management per question and ultimately boost your confidence.

Stay updated

Keep yourself informed about the latest news and updates related to the exam to stay ahead of the competition.

Final selection

The final selection will be based on your performance in the Mains Exam and viva voce/personal interview. The marks obtained in the Preliminary Exam are just qualifying marks for the Mains. They will not be considered for the final selection. The final merit list will be based upon the marks secured in Mains as well as viva voce/personal interview.

Appointment

After you have successfully completed your training, you will be appointed as a Civil Judge (Junior Division) in the Haryana Civil Service (Judicial Branch). You will be posted in one of the districts of Haryana and will be responsible for adjudicating civil and criminal matters.

Some Frequently asked Questions (FAQ’s) on Haryana Judicial Services Exam

FAQs on Haryana Judicial Services Preliminary Exam

What is the format of Haryana Judicial Services Preliminary Exam?

There are 125 questions in the GK, Current Affairs, Aptitude, Reasoning, and Analytical Skills sections of the Haryana Judicial Services Prelims.

Is there negative marking in Haryana Judicial Services Preliminary Exam?

Yes, there is negative marking in the Haryana Judicial Services Preliminary Exam. 0.80 marks are deducted for every incorrect answer.

How many questions are asked in the Haryana Judicial Services Preliminary Exam?

There are 125 questions asked in the Haryana Judicial Services Preliminary Exam.

Is the syllabus and exam pattern of Preliminary Judicial Services Exam same for all the states in India?

The exam pattern differs from state to state. There is no one single exam yet, such as the All India Judicial Services Exam for all the states, just like UPSC. Therefore, it is advised that the candidate go through the notification available on the official website issued by the high courts of those states.

Do all the states conduct Preliminary Exams as the first stage of Judicial Services selection?

Yes, the Preliminary Exam is the initial stage, like a gateway to entering the judicial services exam race. All the state’s judicial services exams take place in three stages: prelims, mains, and viva voce/personal interview.

How to prepare for the preliminary Haryana Judicial Services exam?

The key elements for the preliminary preparation are:

Bare acts: To clear any Judicial Services Exam, Bare acts are the key ingredients. The candidate must know the object of the Act, the sections, the index, the purpose of bringing this law into action by the Parliament, etc. If you are not well versed in these topics, your chances of clearing the first stage, i.e., the Preliminary Exam, are slim to none.
Mock Tests: Without practise, it is much more likely that you will tend to forget the facts. Therefore, practice is a must, and that can only be done by solving thousands of questions via mock tests.
General knowledge and Current affairs: To secure your seat in the Mains Exam, you must prepare the current affairs and general knowledge sections well, as one wrong answer will deduct 0.80 marks. Any kind of deduction makes a lot of difference, so you must be careful and take it easy, specifically when there is negative marking in the paper, unlike in the Rajasthan Judicial Services Exam, where there is no negative marking. In such exams, you can attempt all the questions, but in the former situation, making a wrong guess will result in losing the seat.

FAQs on Haryana Judicial Services Mains Exam

How many papers are there in the Mains Exam?

The Mains Exam is the second stage of the Haryana Judicial Services Exam. It has five papers, out of which three papers are of law and two papers are of English and Hindi. Refer to the discussion above for more information.

What are the subjects in the Haryana Judicial Services Mains Exam?

The Haryana Judiciary Mains Exam comprises five subjects with descriptive, narrative, or essay-type questions.

These subjects are Civil Law-I, Civil Law-II, Criminal Law, English Language, and Hindi Language. Refer to the discussion above for more information.

What are the marks allotted to each Mains paper?

Each subject carries a weightage of 200 marks, and the Hindi Language carries 100 marks. In total, the Haryana Judicial Services Mains Exam comprises 900 marks.

What is the syllabus for the English language paper in the Haryana Judicial Services exam?

The English language paper covers the following topics:

English essay (100 marks),
Precise (25 marks),
Words and phrases (25 marks),
Comprehension (25 marks),
Corrections (25 marks).

What is the syllabus of the Hindi language paper in Haryana Judicial Services exam?

The Hindi language paper covers the following topics:

Hindi (in Devnagri Script),
Explanation of Hindi passage in prose and poetry in the same language,
Composition (essay)

What to read in the newspaper daily for the language paper of the Haryana Judicial Services exam?

The candidate must read the following topics to ace the language paper:

The editorial, important government schemes related news,
Major national and international events,
Sports related events and awards,
Important personalities,
Science and Tech related news, etc.
Also, reading weekly special issues on science and technology, environment, art and culture, and others is immensely helpful.
The candidates should pay special attention to the Haryana state news because direct questions can be asked in the state news.

Which subjects of law are mostly asked in the Haryana Judicial Services Mains Exam?

There are majorly five subjects that will take most of your time, regardless of the state. These are CPC, IPC, CrPC, Evidence, and customary laws. Not only are these four subjects scoring, but most questions are asked from them. Especially in the Haryana Judicial Service Examination, Hindu Law plays a vital role. While preparing for the customary laws, know the leading case laws on essential topics. The reason is that the questions based on customary laws require the aspirants to illustrate the answer with the support of leading case laws.

Important tip: Try to co- relate the answers to Constitutional law, as it is the primary source of these laws. Study the bare acts with at least one textbook by any author that you find easy to understand. This will clarify your concepts more, and you will have good content to write about in the Mains Exam.

How much time should be given to each question in the Mains Exam?

Generally speaking, three to four minutes is the ideal time to finish one question in order to complete the Mains Exam without any hassle.

For this, you must practise writing answers on a regular basis. For example:

Solve one mock test every weekend or twice a week;
Keep a stopwatch handy when you attempt an answer.
Note down the timing once you finish.
If it takes ten to fifteen minutes, that means you need to write a lot faster and bring the time down to three to four minutes.

Time management is the key to completing the Mains Exam. In case you miss even one answer, consider yourself out of the race already. So make sure you get that speed before the exam and maintain it throughout the exam.

FAQs on Haryana Judicial Services viva voce/personal interview

What are the tips to prepare for viva voce/personal interview?

You must score a minimum of 45% in the written exam if you belong to the SC/ST/PwD/Backward Class/Ex-Servicemen category.
You will get selected as a civil judge only if you score more than 50% (for the general category) and 45% (for SC/ST/PH/ESM) for mains and viva.

Mentioned below are some of the best tips that will help you ace the viva voce round:

Keep yourself updated with current affairs, legal issues, amendments, and bills, if any.
Apart from the core law subjects, you must also have a good command over the local laws, as they will help you not only from the exam perspective but also when dealing with the cases as a judge.
The panel never misses out on testing your knowledge of the local laws.
Usually, you can claim any subject as your favourite, so make sure you have a good grip on that subject, as there is a possibility that the experts will ask you questions based on the subject.
Body language plays a key role too. Your body posture and your expressions while you are delivering the answers matter a lot. So practise on the postures is also a must.
If you are a practising lawyer, the interviewer might show interest in the details of your practice, such as your practice area, any details about that area, etc., so your knowledge might be tested this way too.

Work on grooming yourself and your etiquette, conduct, and appearance. Dress smartly and neatly!
Make eye contact throughout and keep a smile on your face at all times. Don’t let the stress show on your face. Remain calm and confident.
If you are not sure about an answer, don’t try to answer it wrong; instead, you can apologise politely that you don’t know the answer. This will prevent negative marking, as one man cannot know everything.

How to know about the interview schedule?

Steps to download the interview schedule

Visit the official website @hpsc.gov.in
Go to the Announcements tab
Click on “Interview Schedule for the posts of HCS (Judicial Branch) Examination – 2023”
The schedule will appear on the screen
Download and take a printout for future reference.

What should the candidate wear for the viva voce/ personal interview?

The candidate should wear something that is decent enough and not flashy, revealing, or casual. One should dress formally and conservatively. Appearance is really important and gives the interviewer an impression of your personality. The first impression is the last impression.

How can the candidate showcase his personality and character during the interview?

The candidate should be authentic.
You should be enthusiastic, not dull.
You should highlight your strengths and accomplishments.
You should be confident enough to answer any sort of question.
Be empathetic.
You should be polite and smile unless the situation demands otherwise.

How can the candidate improve his communication skills for the interview?

You can prepare by taking numerous mock interviews. You can record yourself while speaking an answer or look into the mirror and see for yourself any improvements. You can also share it with your mentors for evaluation and work on it.

What are some subject-based questions one can expect during the viva voce round?

An interviewer or the interview panel may ask the following subject-based questions:

Under Section 151 of the Criminal Procedure Code, who can be arrested?
Which provisions are applicable to a Magistrate’s trial?
What does the term XYZ mean?
Explain the term ‘suit’.
Explain the term ‘injunction’.
Can a foreign judgement be applied in India? Kindly justify your answer.
Name any two Directive Principles of State Policy.

FAQs on Haryana Judicial Services exam result

How to check the result if the candidate has lost his ID and password?

Login credentials are not needed to check the result.

When to expect the Haryana Judicial Services Exam result?

To know about the latest update on the result of the Haryana Judicial Services, the candidate must keep an eye on the official website of the HPSC.

Where can the candidate download the Haryana Judicial Services Exam result?

The candidates who have appeared for the Haryana Judicial Services Exam can download it from the official website of the Commission, i.e., HPSC.

How is the Haryana Judicial Services Exam result merit list curated?

The merit list depends upon the marks secured by the candidate, the cut-off marks, the number of applicants, the difficulty of the exam, and the number of vacancies in the Commission.

Can a candidate check his result if he has not secured minimum qualifying marks?

Yes, the candidate can still check his result by visiting the official website of the Commission, i.e., HPSC.

General FAQs on Haryana Judicial Services exam

On what factors does the eligibility depend on the post of Haryana PSC Judicial Services?

The eligibility for the post of Haryana PSC Judicial Services depends on a number of factors, such as age, educational qualification, experience, nationality, and number of attempts.

What is the minimum age limit for Haryana PSC Judicial Services?

The minimum age limit for Haryana PSC Judicial Services is 21 years.

What is the maximum age limit for Haryana PSC Judicial Services?

The maximum age limit for Haryana PSC Judicial Services is 42 years.

What does the term eligibility criteria for Haryana PSC Judicial Services mean?

The Haryana PSC Judicial Services Eligibility Criteria are some prerequisite conditions specific to the Haryana Public Service Commission that must be satisfied by the applicants before appearing for the exam.

What are the qualifications required for Haryana PSC Judicial Services?

The candidate must possess a Bachelor of Laws degree from a University established by law and recognized by the Bar Council of India.

What is the frequency of the Haryana Judicial Services exam?

The Haryana Judicial Services Exam occurs once a year.

What is the marking scheme for all three stages of the Haryana Judicial Services exam?

The marking scheme for the Haryana Judicial Services Exam is as follows:

Preliminary Exam: Each correct answer carries four marks, and each wrong answer carries a penalty of 0.8 marks.
Mains Exam: Each paper carries 200 marks, and you need to secure a minimum of 45% marks in aggregate to qualify for the interview.
Interview: The interview carries 200 marks, and you need to score a minimum of 50% marks to qualify for the selection.

What is the strategy for all three stages of the Haryana Judicial Services exam?

For the Preliminary Exam, reading bare acts till you get a good hold of them is a must. You can always check your preparation by solving mock tests at night on the topics you studied during the day. This way, you will learn from your mistakes, and revision will happen simultaneously.

For the Mains Exam, understanding the concepts is an essential requirement.

It is important not only for Mains but for Interview as well.

While you prepare, don’t focus on memorization of concepts or finishing the syllabus.

First, filter your syllabus into three areas. These are very important, important, and not too important. Then, make specific notes on important topics. It will help you with your answer writing.

Secondly, study properly, revise topics, and understand the concepts rather than memorising them. Take help from previous years’ question papers, as they will tell you the pattern of the examination.

Important Tip: Do not forget to revise everything studied during the day.

FAQs on career, scope and pay scale in Haryana Judicial Services

What are the career prospects when it comes to Haryana Judicial Services? Is there any scope for growth in this field?

Entering the field of judiciary offers amazing career prospects with several opportunities ranging from personal growth to professional growth. These opportunities also include being promoted to higher judicial roles and having the ability to make a substantial impact in the field of law and justice.

How much salary and allowances are paid to lower court judges?

All candidates who get selected for a post in the Haryana Judicial Services are eligible for a specific allowance and salary as decided under the Judicial Services of the PSC in Haryana. Some of these allowances are specified in the following list.

Dearness Allowance (DA),
House Rent (HRA),
Travel Allowance (TA).

Haryana Civil Judge Salary in-hand (2022):

The candidates will also get their basic pay plus allowances and be eligible to receive an increased in-hand salary.
The salary in-hand for the Judicial Services of the PSC of Haryana 2021 falls between a minimum of Rs.27,700 to a maximum limit of Rs.44,700, when calculated based on the pay commission (7th).

Haryana Civil Judge – Benefits and Perks

All candidates who get selected for the post of Civil Judge Haryana are eligible for certain additional benefits and perks that come along with the specific post. Along with the salary, some of the specific perks provided to the persons recruited are listed below. Along with the salary of the Judicial Services of PSC, also check some of these perks and benefits below:

Professional development,
Post-retirement pension,
Medical insurance,
Insurance coverage,
Increments and incentives,
Housing benefits.

Words of motivation

No one is a better judge than yourself. You know what is right for you and when. It’s never too late to fulfil your dreams. The path may not be easy, but anything can be manifested if done with the right approach. The approach should not be just to clear the exam but to comprehend the subjects so well that you develop a sincere fondness towards them, for you will have to deal with them on a daily basis after becoming a Judge.

Always remember that struggle always teaches us something. So learn from your mistakes and don’t be disheartened. Never lose hope, for there is a sunrise after every sunset. It won’t be easy, but it will be worth it!

All the best!

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All you need to know about Nidhi Companies

By

Sneha Mahawar

-

January 14, 2024

0

This article has been written by Rupsa Chattopadhyay pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

According to the Nidhi Rules, 2014, the term “Nidhi” means a company that has been incorporated with the objective of encouraging the habit of thrift and savings among members. It involves accepting deposits as well as lending to members. This is done with the objective of mutual benefit.

To be a Nidhi company, the Central Government has to notify the corporation as a “mutual benefit society.” The company is notified as such when their transactions are restricted to shareholders and members. A Nidhi company is not compelled to receive a licence from the Reserve Bank of India (RBI). Hence, it is not difficult to form. A Nidhi company has to be registered as a public company. It needs to have “Nidhi Limited” in the last part of its name.

What are Nidhi companies

Nidhi companies form an important concept under company law. A Nidhi Company is a company that falls under the non-banking sector. Nidhi is a type of non-banking financial company (NBFC) in India. They are cooperative societies that provide loans to their members. Nidhi companies are not allowed to accept deposits from the public.

To become a Nidhi company, an organisation must have at least 10 members and a minimum paid-up capital of INR 10 lakh. The organisation must also have a board of directors and a set of bylaws. Nidhi companies are regulated by the Reserve Bank of India (RBI).

Nidhi companies offer a variety of financial products and services to their members, including loans, deposits, and insurance. Loans are typically used for business purposes or to meet personal expenses. Deposits are offered as a way for members to save money. Insurance products are offered to protect members from financial risks.

Nidhi companies are a popular choice for small businesses and individuals who need access to affordable financial products and services. They are also a good option for people who want to save money or protect themselves from financial risks.

Legal framework and regulatory bodies governing the functioning of Nidhi Companies

Nidhi Company is seen under Section 406 of the Companies Act, 2013. This provision is to be read with the Nidhi Rules 2014 and Amendment Rules 2022.

The main venture of such companies is lending and borrowing money among members. They fall into the non-banking financial sector. Such companies are regulated by the Minister of Corporate Affairs (MCA). Nidhi companies fall under the category of Non Banking Financial Companies (NBFC). Normally, NBFCs are completely regulated by the Reserve Bank of India (RBI). Unlike other NBFCs, these companies are only partially regulated by the Reserve Bank of India (RBI). This regulation relates to deposit acceptance activities.

Composition and membership of Nidhi company

A Nidhi company can be incorporated when there are a minimum of seven members. Out of the 7 members, 3 must be the directors of a company.

The following are the membership rules of a Nidhi company:

A body corporate or trust cannot be admitted as a member
A minor cannot obtain membership in a Nidhi company. Deposits may be admitted on behalf of the minor in their name. This is done only if they are made by a natural or legal guardian who is a member of a Nidhi company

Within a year of its incorporation, a Nidhi company needs to ensure that its membership comprises a minimum of 200 members.

Features of Nidhi company

The following are the characteristics of a Nidhi company:-

A Nidhi company facilitates savings in the middle and lower class
Term deposits are accepted for occasional returns in case of Nidhi companies
A loan is provided against collateral in case of Nidhi companies
Nidhi companies become an easy source of loan
Saving and loans are given with minimal documentation
The rigid membership structure of Nidhi companies becomes a secured means of investment.

Object of Nidhi companies

The main objects of Nidhi companies are as follows:-

The acceptance of Nidhi deposits and loans that may be applicable to members only
Grant loans to the members at a reasonable rate of interest on certain immovable properties, on deposits with company and valuable metal as well as jewellery
Encourage the members to save money
Restrict the business to only the members, as well as transact with only them

Benefits of a Nidhi company

The following are the benefits of a Nidhi company:-

No third party: There is no third party member involved. One is able to manage the financial aspects more easily. The members can help each other. But there are certain guidelines issued by the RBI that are to be followed
No need for a licence: A Nidhi company is to be registered as a public company and does not require any licence from the Reserve Bank of India.
Limited liability owned: The liabilities of the members of a company extend only to their share capital.
Low credit rate: Loans can be taken at low credit rates. The money can be invested in income sources that are very profitable.
Transferable ownership: The ownership of a Nidhi company is held in shares. Ownership is not dependent on people.
Funding venture: Raising funds from Nidhi Company members is easier as all members follow a limited liability policy where the primary goal is to create a policy of savings.
Easy to manage: The financial processes at Nidhi Company can be followed easily. Simply put, one has to follow the guidelines and ensure that they lend or narrow accordingly. The government becomes lenient about the minimum equity shares, credit rates or more.
Savings: When one becomes a member of a Nidhi company, they will be determined to save income for beneficial investments. The members will be motivated to increase their savings. This will enable them to invest and lend their money as well.

Post incorporation requirements of Nidhi company

The following compliances are required to be met by a Nidhi company within a year of its incorporation:-

The minimum number of members has to be 200.
The Net Owned Funds(NOFs) should be Rs. 20 lakhs.
The minimum equity share capital of Rs. 5 lakhs must be present.
A Nidhi company has to issue shares for a minimum value of Rs. 10. However, it must not levy an added service charge.
The maximum balance in a savings account has to be Rs. 1 lakh.
The Net Owned Funds (NOFs) have to be in a ratio of at most 1:20.
Unencumbered term deposits should be at least 10% of outstanding deposits mentioned in Rule 14 of Nidhi Rules and Amended Rules of 2022.

Process of registration of a Nidhi company

The following are the steps involved in the registration of a Nidhi company:-

One needs to file an application at the RUN facility in the Ministry of Corporate Affairs (MCA) Portal. This helps to check the availability of names.
One needs to obtain Class 2 Digital Signature Certificate (DSC) of all proposed directors.
Then the person who is applying needs to fill out and submit the SPICe 32 Form in the form and manner prescribed.
One has to annex the said form with these:

Articles of Association (AoA);
Memorandum of Association (MoA);
PAN Card;
ID Proof;
Address Proof of the First Directors;
Consent of the proposed Directors to act as Directors in the form DIR-2;
Self Declaration in the form INC-9;
Address Proof of the Registered Office of the Company;
No Objection Certificate from the Owner of the Premises of the Office of the company; and
Latest Utility Bills of the Registered Office;

After these steps are followed, an incorporation certificate is granted by the Ministry of Corporate Affairs (MCA) before 15-20 days pass. Such a certificate is conclusive evidence that all the requirements have been complied with.

Restrictions applicable to the NIDHI company

The following are the restrictions that are applicable to Nidhi companies:-

Nidhi companies should only conduct businesses related to borrowing and lending in their name. Nidhi companies cannot carry any other businesses in their names
Nidhi companies cannot carry on businesses such as chit funds.
Nidhi companies should not issue preference shares, debentures or any other debt instrument in any manner, name or form.
Nidhi companies should not open current accounts with their members.
The Nidhi companies should not obtain any other company’s securities unless special resolution and Regional Director approval are obtained at the correct time.
A Nidhi company should not control the composition of the Board of Directors unless it receives special resolution and Regional Director approval for the same.
A Nidhi company cannot be involved in the following:

Hiring of purchase finance.
Leasing finance, insurance or acquisition of securities issued by any body corporate.

Annual statutory compliance

The following forms need to be filed on an annual basis:

NDH-3

This form has to be filed on a half yearly basis with the Registrar of Companies. This provides information about the members with deposits, loans and reserves every six months. This form has to be certified by practising Chartered Accountants, Company Secretary or Certified Management Accountants.

AOC-4

This is an annual financial statement form. It has to be filed within 30 days of holding the annual general meeting with the Registrar of Companies.

MGT-7

This is an annual return form. It has to be filed within 60 days of an annual general meeting or the due date of the annual general meeting to be filed with the Registrar of Companies.

DIR-3 KYC

This form has to be filed on September 30 of every year with the Registrar of Companies.

MBP-1

This form is for disclosure of interest by the director to the company. This has to be done when the first board meeting is held in each financial year.

DIR-8

This form is for the disclosure of non-qualifications to the company made by the director. This is done at the first board meeting in every financial year.

ADT-1

This form is submitted to the Registrar of Companies for the reappointment of an auditor or the casual vacancy of an auditor.

BEN-2

This form is submitted to the Registrar of Companies for the disclosure of Significant Beneficial Owner within 30 days of the receipt of BEN-1 from the shareholder.

MSME-1

This form was submitted to the Registrar of Companies for the Pending Payment to Vendor in the case of MSME. This is a return to be made every 6 months. The following are the due dates:

For the filing done from April 1 to September 30, the return is to be made on October 30.
For the filing done from October 1 to March 31, the filing is to be done on April 30.

Loans on NIDHI companies

The following loans can be given in Nidhi companies:-

A loan of Rs 2 lakhs may be given for a deposit of Rs 2 crores
A loan in the amount of Rs 7.5 lakhs may be given for a deposit in the range of Rs 2 to Rs 20 crores
An amount of Rs 12 lakhs may be given for a deposit in the range of Rs 20 to Rs 50 crores
A loan of Rs 15 lakhs may be given if the deposit is more than Rs 50 crores

Conclusion

Nidhi companies are a special feature of the Companies Act, 2013. Nidhi companies have been introduced to encourage savings among the members of the Nidhi company. Nidhi companies are not difficult to incorporate. Nidhi companies have several advantages. In this article, various aspects concerning a Nidhi company have been discussed.

References

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Difference between patent and trademark

By

Rachit Garg

-

January 14, 2024

0

This article attempts to differentiate between two major intellectual property rights, i.e., patents and trademarks on the point of difference in laws, registration process, degree of protection, types, international treaties, etc.

Table of Contents

Introduction

The protection of intellectual property rights has become a necessity more than a luxury for businesses in the present day. This provides security to the existence of the business. Intellectual Property (IP) has become a vast field, providing various kinds of opportunities to businesses and individuals. The major types of IP functional in the present day are, inter alia, patents, trademarks, copyright, and geographical indications. Although the overall scenario might seem similar, each kind of IP right protects a completely different type of property. This article focuses on the key differences between a patent and a trademark.

Definition of patents and trademarks

Patent

A patent is a right granted to an invention to prevent any other person from manufacturing, processing, or distributing the invention for a limited time. In simpler terms, a patent is a legal document that grants the patent-holder (inventor) the right to exclusively manufacture, process, and distribute the invention. Invention can be both, a process or a product, as is discussed in the further sections. This proves to be an incentive for the inventor to enjoy the fruit of his investment, both monetary as well as time invested, in the development of an invention. However, this right is provided for a limited time, as the invention is necessary for the public interest as well.

Various definitions of ‘Patent’

● Section 2(1)(m) of the Patents Act, 1970 defines a Patent as –

“”Patent” means a patent for any invention granted under this Act”

● The Cambridge English Dictionary defines a Patent as –

“the official legal right to make or sell an invention for a particular number of years”

● Definition of Patent as per dictionary.com is –

“a government grant to an inventor assuring him the sole right to make, use, and sell his invention for a limited period”

Trademark

A trademark is a graphical representation that helps differentiate the goods or services of one proprietor from those of others. In other words, it is any mark, label, logo, name, trade dress, device, brand name, word, signature, or even the shape of goods, that indicates the connection of trade between the goods or services and the proprietor who has produced it. It includes everything that a buyer or consumer can relate to the manufacturer. For example, a single colour is also capable of protection under trademark law if it acquires an image in the minds of the consumers that helps them choose the particular product only. For instance, Cadbury uses a specific shade of violet colour and has won a dispute against Nestle.

Various definitions of ‘Trademark’

● As per Section 2(1)(zb) of the Trade Marks Act, 1999,

“Trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and—

(i) …

(ii) in relation to other provisions (except Section 107) of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trademark or collective mark;

● According to Section 1127 of Title 15 in the United States Code,

The term “trademark” includes any word, name, symbol, or device, or any combination thereof-

(1) used by a person, or

(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,

to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

Types of patents and trademarks

Patents

There are various types of patents that are granted in various parts of the world. However, one must note that the patents are territorial in nature and a patent would grant protection only in the territory it is granted in. The different types of patents are as follows:

Product Patent – A product patent is a type of patent that is granted to the final invention. In such a patent, the patent holder has a right to prevent any other person from making the invented product through available lawful procedures. This allows her to exercise complete monopoly on the product for the period of the patent. A patent is generally granted by the patent office for one or more claims made in a single invention if it meets the conditions necessary (as discussed in the next section). Thus, in a product patent, one or more claims can be granted protection only if the patent office deems it fit. However, an application may be rejected if multiple inventions are claimed under one single application.

Generally, a product patent is applied for inventions that require extensive research and investment for the product itself. In such a scenario, usually, the end product can be obtained through more than one process. A patentee, who has been granted a product patent has the right to prevent any other person from making, using, offering for sale, selling, or importing for those purposes that product in India.

Process Patent – A process patent is a type of patent that is granted to the process of obtaining a desired result. The purpose of granting a process patent is to extend protection to such processes where multiple end products can be derived from a single process. In such a scenario, a patentee has the right to prevent any other person from using that process, and from using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India.
Plant Patent – A plant patent is a type of patent that grants protection to a new and unique variety of plants from being copied by others. A plant patent is generally granted in the United States of America. In India, a unique plant variety is protected under the Protection of Plant Varieties and Farmers’ Rights Act, 2001, and is usually referred to as a plant patent.
Provisional Patent – As the name suggests, a provisional patent grants a right that is provisional in nature and would be confirmed only after all the requirements of patentability of an invention are fulfilled by the applicant. Section 9 of the Patents Act, 1970 provides a twelve-month window for the applicants to file the full specification after filing a provisional specification. If the applicant fails to fulfil the specifications, the application is deemed as ‘abandoned’. It is pertinent to note that the applicant has to mention the provisional nature of the application at the time of filing it (twelve months would not be allowed in the case of a conventional application or a PCT application).

Trademark

In India, a separate provision of ‘mark’ is provided to enlarge the scope of the types of trademarks. Section 2(1)(m) of the Trade Marks Act, 1999 provides the definition of a mark, which includes device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination of one or more of these. Thus, as discussed above, anything and everything that performs the basic function of a trademark can be granted protection under the trademark law. Trademarks can be distinguished as conventional and non-conventional marks. Conventional marks include words, devices (figurative elements), labels, headings, letters, numerals, logos, etc. Thus, a mark as defined under Section 2(1)(m) of the Act, consists of conventional trademarks. On the other hand, non-conventional marks are those marks that perform the function of a trademark and do not fall under the category of a conventional mark. Non-conventional trademarks include smell marks, sound marks, taste marks, shape marks, and colour marks. Each of these marks is described below:

Smell Marks – A ‘smell mark’ can be defined as an olfactory mark, which uses the smell of the product to distinguish it from other products. It is pertinent to note that in order to protect a smell mark, it should not be a technical result of the product, as it would become descriptive. For example, if perfumes are allowed to be protected as a smell mark, a few brands would have a monopoly over all the perfumes in the world. Hence, if the smell is not the result of the product, it may be granted protection (a tennis ball with the smell of freshly mown grass is protected as a trademark; tyres with floral fragrance are protected as a smell trademark).
Sound Marks – A ‘sound mark’ can be defined as a mark that uses audio notes to distinguish brands. An example is the tune of the well-known brand ‘Britannia’ or the ‘Yoodle’ by ‘Yahoo!’. The Indian Trade Mark Office allows a maximum of 30 seconds of tune to be registered as a trademark.
Taste Marks – A ‘taste mark’ is a mark that distinguishes the products based on the taste. However, it is a very unique type of mark as due to the functionality test, the Courts do not allow the registration of any taste mark. If the product is edible, the mark would be its function, and if it is not edible, the taste mark would become redundant.
Shape Marks – A ‘shape mark’ is a mark that allows the unique shape of the product or its packaging to be protected as a trademark. Sometimes, businesses use innovation in providing a shape to any product so as to ensure resemblance to their product itself. For example, the Coca-Cola Company has a registration for its unique glass bottle; Toblerone has a shape mark registration for its triangular chocolate, etc. Shape marks also include 3D marks, which extend protection to holograms etc.
Colour Marks – Another non-conventional trademark is a ‘colour mark’. To grant protection to a colour mark, the Pantone colour system is accepted worldwide. As discussed above, Cadbury has been able to protect the shade of purple colour used in its packaging against Nestle, which is the perfect example of a colour mark.

International treaties and agreements under patents and trademarks

Patents

Paris Convention

The Paris Convention for the Protection of Industrial Property, 1883 is considered to be the dawn of protection of intellectual property worldwide. The Paris Convention applies to industrial property in the widest sense, including patents, trademarks, industrial designs, utility models, service marks, trade names, geographical indications and the repression of unfair competition.

The Paris Convention envisages three basic principles to be followed: national treatment, the right of priority, and the guarantee of a certain minimum protection to the contracting parties. One of the key aspects of the patent law under the Paris Convention is the provision for the grant of compulsory license, in cases where the invention was not being exploited with maximum efficiency and the patentee was not ready to grant the license on agreeable terms. Another crucial aspect is the right to claim priority, which allows an inventor to protect his or her rights more efficiently.

Patent Cooperation Treaty (PCT)

Under the Paris Convention, if an inventor had to obtain patent rights in multiple countries, they had to go through a cumbersome process of individual applications in each of the countries. There was no single application system wherein an inventor could obtain a patent in multiple countries. To overcome this, the Patent Cooperation Treaty (PCT) was signed in 1970. The PCT allows an inventor to file a comprehensive application for registration of a patent in two or more jurisdictions through a single application simultaneously. This helps the inventor to save time and money.

The PCT system has 155 contracting parties. As per this Treaty, an application for patent registration can be filed at the national office of the country of origin, which shall then notify all the designated contracting parties. The designated contracting parties would then process the application in accordance with international and municipal laws, and accordingly accept or reject the application.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement)

The Agreement on Trade Related Aspects of Intellectual Property Rights, 1994 (TRIPS Agreement) was adopted in 1994, to ensure that all the contracting parties to the World Trade Organization (WTO) follow a minimum standard of protection for various types of intellectual property. Firstly, the TRIPS Agreement ensured that the provisions of the Paris Convention were strictly complied with. Secondly, the minimum duration for the protection of patents for the WTO parties was set to 20 years. Thirdly, the principles of national treatment were made mandatory. A harmonised procedure for the protection of patents allowed an increase in the number of applications worldwide, boosting innovation.

Patent Law Treaty (PLT)

The Patent Law Treaty (PLT) was adopted by the World Intellectual Property Organization (WIPO) in 2000 and came into force in 2005. The objective of the PLT is to harmonise and streamline formal procedures with respect to national and regional patent applications and patents and, thus, to make such procedures more user-friendly. This allowed the international patent system to operate in a more structured and systemized manner.

Trademarks

The Paris Convention

Under the trademark law, as discussed above, the Paris Convention is the first international instrument. The Paris Convention provided a broad standard of protection for all types of intellectual property, except for copyright. Thus, the principles of national treatment, minimum protection etc. are applicable here too as applicable under the patent laws.

The Madrid System

The Madrid Agreement Concerning the International Registration of Marks, 1891 and the Protocol Related to the Madrid Agreement Concerning the International Registration of Marks, 1989 together form the Madrid System for international registration of trademarks. The Madrid System allows an applicant to file a comprehensive application for the registration of a trademark. The application can contain the designated parties (countries) where the applicant wishes to protect the trademark, accompanied by the required fee. The system also allows the proprietor of a trademark (registered under the Madrid System) to renew the mark in all the designated states with a single application form.

The application has to be submitted to the IP office of the originating state, which shall notify the WIPO regarding the application details and the designated states. The WIPO would notify all the designated States, which would then treat the application under their municipal trademark law, and either grant protection or reject the application.

The Nice Agreement

The Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, 1957 establishes an international classification of goods and services. The ‘Nice Classification’ comprises 45 classes of goods and services, 35 for goods and 10 for services. It allows uniformity in the classification of goods and services for the purpose of registration of trademarks. Each of the countries party to the Nice Agreement is obliged to apply the Nice Classification in connection with the registration of marks, either as the principal classification or as a subsidiary classification, and has to include in the official documents and publications relating to its registrations of marks the numbers of the classes of the Classification to which the goods or services for which the marks are registered belong.

Vienna Agreement

Just like the Nice Agreement, the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks, 1973, known as the Vienna Agreement establishes a classification for figurative elements used in a trademark. The purpose of the classification is essentially to facilitate trademark anticipation searches and obviate substantial reclassification work when documents are exchanged at the international level. What is more, the countries party to the Vienna Agreement no longer need to draw up their own national classification or keep an existing one up to date. It is divided into 29 sections, which are further divided into subsections. The ‘Vienna Classification’ aids the search of device marks for the purpose of registration of a trademark.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, as discussed above, provides the minimum standard to be followed by the members of the WTO for the protection of intellectual property rights, including trademarks. As per the TRIPS Agreement, the minimum protection to be provided for trademarks is seven years, with the option for perpetual renewal. Moreover, the TRIPS Agreement left it at the discretion of the contracting parties to extend protection to well-known trademarks. The Agreement also defines the scope of the subject matter that could be protected under the trademark laws.

Laws in India for patents and trademarks

Indian laws governing patents

In India, the first law to govern patents was introduced under British colonial rule. During the colonial period, the British made laws based on the law applicable in Great Britain. The same is evident under the patent system as well. The first legislation in India governing the patent law was the Act VI of 1856, which was based on the British Patent Law of 1852. It was enacted to provide exclusive privileges to inventors for a period of 14 years. Thereafter, it was replaced by the Act XV of 1859, which allowed exclusive privileges as well as the right to the patentee to grant licenses to others. Another important change that was brought through this Act was the increase in the date of priority from six months to twelve months.

The Indian Patents and Designs Act, 1911 was the next statute enacted to govern the patent law. It replaced all the previous laws and provided protection both to patents and designs. It was amended a few times to cope with international law. However, after independence, it was felt that the 1911 Act was not fulfilling its objective. Thus, the Patents Act, 1970 replaced the 1911 Act.

The Patent Act, 1970 lays down the substantial law for the protection of patents on inventions in India, whereas the Patents Rules, 2003 provides the procedural law regarding the registration and protection of patents in India. As a member of the World Trade Organization, India has to comply with the TRIPS Agreement, 1994. The TRIPS Agreement provides for the minimum threshold that the member nations of the WTO have to follow in their municipal laws.

For the protection of patents in India, the patentee has to mandatorily register the patent with the patent office. This is envisaged under the provisions of Section 48 of the Act, which provides that the exclusive right to use the invention is granted to the patentee only after the patent is registered. For registration in India, the invention has to pass the ‘NUNS test’, which stands for ‘Novelty, Utility, Non-obviousness, and Subject Matter Eligibility’. This is to ensure the balance between the rights of the patentee and the public interest.

The period of protection under the Patents Act is 20 years from the date of filing of the application or provisional application, as the case may be. This is similar to the minimum threshold set by the TRIPS Agreement, as mentioned above.

The subject matter of patents is inventions. A patent is granted to a person who invents a new (novel) product or process, that has an industrial application (utility) that could not have been anticipated (non-obvious) by a person of ordinary skill in the art and is not barred by the law (subject matter eligibility). If an invention meets the criteria, then an exclusive right to manufacture, distribute, sell, license, and import the said invention in India is granted to the patentee, as a reward.

Indian laws governing trademarks

The trademark law in India, like the patent law, has a history from the colonial period. The first formal legislation on the subject was the Trade Marks Act, 1940. The statute provided the conditions for the registration of a trademark and its use. Prior to the statute, the trademark law was governed by the provisions of the Specific Relief Act, 1877 and the Indian Registration Act, 1908. The two Act governed the trademark law in the country for almost eighteen years, when the need for a new law was observed after independence. This led to the enactment of the Trade and Merchandise Marks Act, 1958 which replaced the 1940 Act. The 1958 Act consolidated the provisions relating to trademarks in other statutes such as the Indian Penal Code, 1860, etc.

The 1958 Act also had certain shortcomings. It was not developed keeping in mind the various economic advancements that took place in the 1990s, one of the most crucial ones being the adoption of the Liberalisation, Privatisation, and Globalisation (LPG) policy. With the entry of MNCs in India, there was a need to review and amend the trademark law as well. Moreover, India being a member of the WTO, had to comply with the provisions of the TRIPS Agreement. Consequently, the Trade Marks Act, 1999 was enacted. Another major difference brought in by the 1999 Act was the introduction of the concept of ‘well-known trademarks’.

Presently, the substantive law is covered by the provisions of the Trade Marks Act, 1999 and the procedural law is covered by the Trade Marks Rules, 2017. The registration of trademarks is not necessary as it does not confer any additional rights to the trademark proprietor. The trademarks are protected under the common law rights, against the tort of passing off. However, by opting for registration, the law enables a proprietor to access the right of remedy of enforcing a trademark, in case of infringement.

Summary of difference between patents and trademarks

Point of difference	Patent	Trademark
Definition	A patent is an exclusive right granted to an invention that is novel, has an industrial application and is non-obvious in nature.	A trademark is a mark (word, sign, brand name, device, or any other mark), which is capable of distinguishing the goods or services of one proprietor from those of others.
Protection under law	In India, a patent is granted protection under the provisions of the Patents Act, 1970. The protection is granted for 20 years from the date of application, with no provision for renewal.	In India, trademarks are governed by the Trade Marks Act, 1999. It grants protection for 10 years with the option to renew the marks as long as they are in commercial use.
Nature	The nature of a patent is an exclusive right to an invention, so as to incentivise the efforts of the inventor.	The nature of a trademark is to protect the reputation of a mark, which is associated with it in the minds of the consumers.
Registration	Registration of a patent is necessary and no common law right on the basis of use can be granted.	Registration of a trademark is not necessary, as the use of the mark is the primary concern. A trademark may build a reputation without being registered. The law of passing off governs unregistered trademarks.
Objective	The objective of a patent is to incentivise the inventor for the efforts. There is a balance between the incentive and the public interest. The law is required to encourage innovation and development.	The objective of a trademark is the protection of the goodwill of the mark/brand. It is concerned with the reputation of the proprietor. The law is required to encourage proprietors to maintain the quality of goods and services.
Infringement	The infringement of a patent takes place when a person other than the patent-holder or permitted user, manufactures, distributes or imports the patented product without authorization by the patent-holder.	The infringement of a trademark takes place when a person other than the trademark proprietor or a permitted user, uses such registered mark without the authorization of the trademark proprietor and passes off goods as having originated from the original proprietor.
Example	Patents are granted in pharmaceutical industries (such as medicines of Cipla Pharmaceuticals), telecommunication industries (such as Micromax), technological industries (such as Microsoft, and Apple) etc.	Brands such as Apple, Nike, Adidas, McDonald’s, Domino’s, and Supreme are examples of trademarks. More examples include the famous Nike Swoosh, the bitten Apple etc.

Conclusion

Two of the most important intellectual property rights are patents and trademarks. While patent deals with inventions (products as well as processes), trademark law deals with the marks distinguishing products and services of different proprietors. As discussed hereinabove, the law regarding patents is a much technical one, granting restricted monopoly and balancing between the public interest and incentives to the inventor. On the other hand, trademark law protects the reputation of the proprietor attached to a mark, which helps the product with a specific mark stand out in the market.

Thus, the protection granted to a patent is for a much less period than that for a trademark. However, it is balanced by the threshold adopted during infringement proceedings, as can be seen in various cases under patent and trademark law. Nevertheless, both aspects of intellectual property are very crucial for industrial development, and hence the economy.

Frequently Asked Questions (FAQs)

How can one acquire a certification as a Patent or TM agent/attorney?

In India, to obtain a certificate to practice as a Patent or Trademark agent, a person has to clear the Patent or Trademark Agent Exams conducted by the CGPDTM. Additionally, to practice as a Patent or Trademark Attorney, a person needs a degree in law along with registration in the respective bar council.

How long does the process of registration take?

For patents, the procedure for registration usually takes around 3-4 years from the date of filing, as it requires extensive examination of the claims made. However, this is not a mandatory timeline and it may differ on a case-to-case basis.

Whereas, for trademarks, it usually takes around 18 months from the date of application to registration of the mark. The registration procedure includes the examination of the mark, followed by objections from the public. If the trademark is not objected to by the Registrar or the public, it may be registered within 6-12 months. The time period for the registration process would depend on a number of factors, and thus, a time period is not prescribed in law. For additional information, one can visit the IPIndia website.

How do the disclosure requirements for patents and trademarks differ?

Disclosure requirements for patents and trademarks differ in gravity. The underlying principle of patent law is to provide the public the advantages of research and development, or inventions. While doing so, to promote more innovation, patent law grants a limited monopoly to the inventor. Thus, while granting such a monopoly, the patent office needs to publish all the crucial information to the public, so that the public is aware of the same. Moreover, it would also help in further innovation.

On the other hand, disclosure requirements in a trademark application occur only when the trademark proprietor claims goodwill for the mark, established before making the application. This would be limited to sales figures, spending on advertisements, date of use of the mark etc. A trademark application would not require crucial information relating to the product to be published for the public.

Are there any restrictions on the types of words, symbols, or designs that can be used as trademarks, and do similar restrictions exist for patents?

Yes, the Indian trademark law, i.e., the Trade Marks Act, 1999, imposes restrictions on what kind of marks can be registrable. Such restrictions are enlisted under Section 9 of the Act. Examples of such marks could be the Indian flag, the map of India, the generic name of the product itself, etc.

Restrictions are also imposed on inventions. Sections 3 and 4 of the Patents Act, 1970 lay down the inventions which are not protectable under the Act. These include a mixture of available substances, mathematical equations, methods of agriculture or horticulture, atomic energy etc.

References

Corporate governance in renewable fuels industry

By

Sneha Mahawar

-

January 13, 2024

0

This article has been written by Hemang Mohanlal Doshi pursuing Diploma in Intellectual Property, Media and Entertainment Laws and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Corporate governance can be defined as “the combination of rules, processes or laws by which businesses are operated, administered, regulated or controlled.” These are the ways in which companies are directed and controlled. All the internal and external factors that directly or indirectly affect positively or negatively the interests of stakeholders, customers, suppliers, government acts, and regulation or management itself are primarily the key areas of corporate governance. In short, corporate governance is a system created by a set of rules and practices for operating a company.

Corporate governance is the responsibility of the company’s board of directors. The basic principles of governance are accountability, transparency, fairness and responsibility.

Good governance helps to build trust and long-lasting relationships in the market, while bad governance not only jeopardises a company’s brand name but also destroys profitability in the long run.

The Ministry of Corporate Affairs (MCA) and the Securities and Exchange Board of India (SEBI) are responsible for the corporate governance of the listed companies in India.

The Corporate Governance (for fuel/energy industries) Code was approved by the Securities Exchange Board of India (SEBI) and implemented with a new Clause 49 in the listing guidelines for the stock exchanges. This clause has made it mandatory for the listing companies to follow the requirements of Clause 49, effective January 1, 2006. Clause 49 for the renewal energy (fuel) sector focuses on the appointment of independent directors, audit committees, risk reports, legal compliance reports, certification of account and code of conduct. It enforces strict rules and regulations to avoid any major frauds and scams in the growing industry.

The primary need of corporate governance is to provide long-term economic value to all stakeholders. Secondary reasons can vary from boosting companies efficiency and productivity to avoiding frauds and scams, better monitoring of financial ratios, etc.

Current governance status in India for renewable fuels industry

Governing bodies in India

Currently, we use electricity as a renewable fuel across 36 states and Union territories in India. The Ministry of New and Renewable Energy (MNRE) and State Nodal Agencies (SNAs) are the government agencies for the promotion of grid-connected and off-grid renewable energy in the country. The MNRE is responsible for the overall policy and planning of renewable energy development in India, while the SNAs are responsible for implementing renewable energy projects at the state level.

The MNRE has a number of programmes and initiatives to promote renewable energy, including:

The Jawaharlal Nehru National Solar Mission (JNNSM), which aims to install 100 GW of solar power capacity by 2022.
The National Wind Energy Programme (NWEP), which aims to install 60 GW of wind power capacity by 2022.
The National Biomass Power Programme (NBPP), which aims to install 10 GW of biomass power capacity by 2022.

The SNAs are responsible for implementing these programmes and initiatives at the state level. They work with state governments, local communities, and private developers to develop renewable energy projects.

The MNRE and SNAs have made significant progress in promoting renewable energy in India. In the past decade, India has become one of the world’s leading renewable energy markets. The country has installed over 50 GW of renewable energy capacity and is on track to meet its 2022 targets.

However, there is still much work to be done. India needs to continue to invest in renewable energy to meet its climate change goals and ensure energy security. The MNRE and SNAs will play a key role in this effort.

“India stands 4th globally in renewable energy installed capacity (including large hydro), 4th in wind power capacity, and 4th in solar power capacity (as per the REN21 Renewables 2022 Global Status Report). The country has set an enhanced target at COP26 of 500 GW of non-fossil fuel-based energy by 2030.”

The world’s largest wind-solar hybrid power plant, AGEL, now has the largest operating renewable portfolio in India with 8,024 MW.

Rules and regulations for corporate governance

The Companies Act of 2013 introduced many provisions to support and facilitate governance by providing the composition of Board of Directors, including women directors, independent directors, training and evaluation directors, an audit committee, risk management reports, internal audit reports, compliance centre, etc.

A few sections provided by the Companies Act 2013 are as follows

Section 134- As per this Section, the board of directors has to attach reports for the financial statements made for the matter, which include the following:

A statement of directors’ responsibilities, which sets out the responsibilities of the directors in relation to the preparation of the financial statements.
A declaration by the directors that they have taken all reasonable steps to ensure that the financial statements are true and fair.
A statement by the auditors that they have conducted an audit of the financial statements in accordance with the standards of auditing.

The board of directors is also required to attach a report on the company’s corporate governance practices. This report should include information on the company’s board structure, its audit committee, its risk management framework, and its whistleblowing policy.

Section 177- As per this Section, the audit committee is to have a minimum of three directors. The committee should comprise a majority of independent directors and at least one member should have financial expertise. The term of office of the members of the audit committee should be for a period of two years and they can be re-appointed. The audit committee should meet at least four times a year and the quorum for a meeting should be two members.
Section 184- As per this Section, directors are to disclose their interest in companies, body corporate, firms, etc. Interest is to be disclosed in the first meeting, and changes are to be reported in subsequent meetings thereafter.

Disclosure of interest by directors is important for the following reasons:

It helps to prevent conflicts of interest.
It ensures transparency and accountability in the management of the company.
It protects the interests of the shareholders and other stakeholders of the company.

Section 178- This Section details the formation of Nomination and Remuneration Committee and the Stakeholder Relationship Committee. The Nomination and Remuneration Committee is responsible for proposing candidates for election to the board of directors and for determining the remuneration of directors. The committee is composed of at least three independent directors, and the chairman of the committee must be an independent director.
Section 135- This Section details the formation of the Corporate Social Responsibility Committee. The National Wind Energy Programme (NWEP)

Penalties for violating rules and regulations mentioned in Sections 177 and 178 would be fines and penalties of INR 1 lacs to 5 lacs for the company and 1 year imprisonment or fines of INR 25000 to 1 lacs for the defaulting officer. In addition to the above penalties, the company may also be liable to pay compensation to any person who suffers loss or damage as a result of the violation.

The penalties for violating the rules and regulations mentioned in Sections 177 and 178 are intended to deter companies from failing to maintain proper books of account and other records. These records are essential for the proper functioning of a company and for the protection of the interests of its shareholders and creditors.

Besides the above, the Central Government of India has set up the National Company Law Tribunal (NCLT) to check for mismanagement in the functioning of a company. NCLT has 11 benches to handle the disputed matters.

Rating agencies have developed indices to measure corporate governance performance. A few agencies are ISS (Institutional Shareholder Services), Corporate Governance Indices, Standard & Poor’s Corporate Governance Scores, etc.

Future of governance status in India for renewable fuels industry

We can see the Renewable Energy sector growing massively and even supporting the entire needs of our country through solar power, wind mills, hydropower, etc. But we are exposed to the bigger question of e-waste and by-products generated, which would be harmful or even pose threats to mankind. We would face challenges in the disposal of e-waste and by-roducts as we might again land up in a catastrophe of climate and environmental change after 25 years.

As per the Central Pollution Control Board (CPCB), for the years 2021-22, only 33% of total e-waste generated in India was collected and processed. In total, 16.01 lakh metric tonnes of e-waste were generated in the years 2021-22. This means 67% of e-waste remained unprocessed and uncollected. If policies are not adequate to collect and process this huge amount of e-waste, it might cause tremendous environmental impact in the coming decades.

“India’s PV (photovoltaic) waste volume is estimated to grow to 2,00,000 tonnes by 2030 and around 2 million tonnes by 2050.”

With the current trend and evolution of generative AI, robotics, chatbot and digitalization, it is possible in the near future to have provisions and sections lawfully allotted to monitor and govern companies for mismanagement and frauds/scams.

Today we have the Information Technology Act 2000 and the Electricity Act of 2003 to handle e-governance, digitalization and the distribution and management of electricity.

We would see changes from the Central Government in the Information Technology Act 2000 to have software and robots act as members of the board to enforce rules and strict regulations on the operation of the board and the corporation as a whole. The Electricity Act, 2003, may soon see digitalization and AI automation governing the regime of renewable energy in India. Transparency and fairness in corporate governance will improve with reforms in law as we move more towards technology driven e-governance.

“India does not have a solar waste management policy, but it does have ambitious solar power installation targets. “

Policies to enforce strict rules and regulations for the safe disposal and processing of e-wastewould be implemented in anticipation. The Central Government of India will modify reforms and empower existing authorities like NCLT and rating agencies to audit disposed e-waste.

Suggestions

The suggestions and recommendations would be to focus more on emerging technologies and incorporate those changes lawfully into the system. The Companies Act of 2013 should be modified to have the following sections as provisions and mandates

Section XXX:- As per this section, AI, Robotics and digitalization should be part of the corporate governance board. Government approved systems are to be configured and installed in renewable energy sector companies mandatorily to collect necessary data and information related to operation, finance and control.

Section XYZ:- As per this section, a matrix, indicators, acceptable Tolerance and more authorities are to be created to monitor and control the E-Waste and By-Products generated by the renewable energy sector. The report should provide mandatory updates on the risk and mitigation of E-Waste and BY-product details to avoid threats in the future.

Section 135 :- This section should be modified and the Corporate Social Responsibility Committee’s role should be defined at a broader level to control the effects of Section XYZ.

The National Company Law Tribunal (NCLT) and Rating Agencies should be allowed to conduct necessary audits related to e-waste and BY-product disposables to ensure safe handling, processing and maintaining safe tolerance limits. Biogas as a renewable fuel should be explored and utilised more as it is produced from organic matter, such as food or animal waste.

The Four P’s of Corporate Governance People, Purpose, Process and Performance should focus more actively on purpose and performance to ensure the existence of corporate governance and its benefits.

Conclusion

This article has covered, in a nutshell, corporate governance for the renewable energy sector in India and has posed a few questions on potential environmental threats that may arise due to massively generated E-Waste and By- Products. A question is raised about adding strict regulation to the renewable energy sector to control and regulate the safe disposal of E-Waste and By-Products.

References

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Consideration in Business Law

By

Rachit Garg

-

January 13, 2024

0

This article has been written by Dhriti Thingalaya. It discusses in detail the meaning, importance, and elements of consideration in business law. Its significance and relevant judicial precedents are the same.

Table of Contents

Introduction

According to Section 11 of the Indian Contract Act, 1872 (hereinafter referred to as “the Act”):- Every person who has attained the age of majority, is of sound mind, is prohibited from entering into a contract needs to have attained the legal age as per the law of the land. He or she should be mentally sound and capable of making decisions for entering into a contract and not be prohibited by any law from entering into a contract. In our lives, we have entered into contracts and agreements with each other at some point in time or another. However, the nature of these agreements may vary from a simple borrowing of math notes in return for lending science notes to something complex like the sale of a valuable property like a car, flat, gold, or machinery for the setting up of a factory or any other asset, either to an individual or a corporation.

The term ‘contract’ has a very wide ambit and can include complex commercial agreements as well as simpler agreements. However, the law does not recognise and protect all the possible agreements between the parties. For any agreement to become a contract, it needs to fulfil certain conditions laid down in the Act, to be called a contract that is enforceable by law. One such essential condition of a contract is ‘Lawful Consideration’ which refers to any tangible or intangible thing that has some value in the eyes of law. Consideration simply means something in exchange for something, i.e., ‘Quid pro Quo’.

Consideration being the foundation of every valid contract helps in ensuring a fair exchange of value between the parties involved. It prevents gratuitous promises backed by some reciprocal obligation, and agreements with consideration are further strengthened by legal formality, demonstrating the parties intent to be bound by the terms of the agreement. Lawful consideration also helps in preventing unfair treatment by allowing for flexibility in negotiations and ensuring that one party doesn’t benefit unfairly at the expense of the other. Let us dive deep into the details of the necessity of consideration in business law.

What is consideration in Business Law

Consideration in business law is something of value being exchanged between the parties. So, for a promise to be enforceable, there has to be some form of benefit or gain involved on both sides. In recent times, the basic requirement of consideration is that one party to an agreement must not be bound by it if the other party is not similarly bound by the contract. The parties to a contract, whether oral or written, cannot enforce it if there is no consideration. The concept of consideration is an essential element in forming a contract, requiring the parties to give something in exchange for something as the price of their respective promises.

Section 2(d) of the Act defines consideration as an Act or abstinence, which is to be a consideration for the promise, that must be done at the desire of the promisor and that the promisee or any other person should do it; and lastly, that the act or abstinence may have been executed is in the process of being done or maybe still executory, that is to say, to be performed in the future.

Illustration

Company A agrees to buy raw materials from Supplier B by paying Rs. 50000; here A’s promise to buy the required raw material for a certain amount from B is a valid consideration for A’s and B’s promise to sell the required raw materials in exchange for the value of the amount to be paid by A.

Types of consideration in Business Law

Past consideration in Business Law

This means that voluntary action is already done by an individual, and the party to whom such voluntary help or action is directed makes a promise to compensate another in return for what the latter had done for the promisor in the past; such promise is said to be past consideration.
Past consideration is more of a moral responsibility that an individual executes without any expectation in return. It is restitution made by the promisor, who has received a benefit in the past and tries to compensate it later on, forming a good ground for valid consideration.

Illustration

P is a legal consultant who provides legal advice and drafts a letter and an affidavit for Q, helping him with his legal issues. P commits this act purely with the intention to offer help to his dearest friend; however, Q promises P that he shall pay the due amount within a week. Despite the fact that P was not lawfully needed to help Q, he felt morally committed, and his satisfaction in itself was a reward of the ethical duty that he performed. This constitutes a valid contract, as the work done by P and Q assuring him to compensate for his action is of the nature of past consideration.

Note: Under English Law, past consideration is no consideration. But under Indian Law past consideration is a good consideration because of the use of the words “has done or abstained from doing” in the definition of consideration.

Past voluntary service

Past voluntary service means to make a promise to compensate wholly or partially an individual who has already helped the promisor in the past by doing something voluntarily that benefited or solved the problem of the promisor; this constitutes a valid and enforceable consideration. As per Section 25(2), an agreement without consideration is void, unless it is a promise to compensate, wholly or in part, to the person who has already at his own will done something for the promisor or something which the promisor is compellable to do.

Illustration: A child is caught in a fire, and a passerby B immediately rescues that child by putting his own life at stake. Later on, the child’s parents decide to reward the person for his bravery in some form or another. This is covered under Section 25(2) of the Indian Contract Act.

Past service at request

This concept emphasises the fact that when a request is made by somebody to do something for you and, in return, you provide them with monetary charges at a later stage, there will be a binding agreement. However, there is no clear instruction on whether the person needs to be paid in case the request is made, and there is no upfront promise to pay.

Present (executed) consideration in Business Law

Executed consideration refers to those promises or agreements that have been completed in their entirety in response to the promise made. Also, there is a very clear distinction between past considerations and present considerations. In past consideration, voluntary action is committed without any promise, and in present consideration, an act is done in response to a positive promise.

Future (executive) consideration in Business Law

Executory consideration refers to future consideration, which will be carried out later since the promisor is making an offer for a date after that and if the promisee is willing to perform the contract after the later date. The promise here is not yet complete, and the contract is not fully executed.

Illustration: Suppose A decides to buy makeup products from an e-commerce website and pay for the charges incurred at the time of delivery, but the product has not yet been delivered. In that case, mutual promises made to each other are considered for future consideration.

Essential elements of consideration in Business Law

Consideration must proceed at the desire of the promisor

If an act or abstinence is done by an individual voluntarily without the desire or request of the promisor, such an act shall not come under the definition of consideration. Similarly, if an act or abstinence is done at the instance of any third party other than the promisor, then such an act shall not be a good consideration.

Illustration

A sees that B has fallen into a huge pit and decides to rescue him. Here, A cannot demand payment or any reward for his act as he did it out of his own moral and ethical obligation and not with an expectation of getting any reward, and B never requested or asked for help from A, so it is not considered as a good consideration.

Case law

In the case of Durga Prasad v. Baldeo (1879), Durga Prasad chose to construct several shops following the collector’s direction. Those who subsequently occupied these shops committed to paying Durga Prasad a commission based on their sales but failed to fulfil this promise. Hence, Durga Prasad decided to take legal action against the shopkeeper. The Allahabad High Court ruled the consideration to be invalid This was because Durga Prasad had constructed the shops based on the collectors’ order and not at the request of the shopkeepers.
It is important to note, however, that it is not mandatory that the promisor has to benefit from the act or abstinence; it is only necessary that it be done at his desire. This was held in the case of Kedarnath Bhattacharji v. Gorie Mahomed (1886)

Consideration may proceed from the promisee to any other person

Another essential element for consideration is that an act or abstinence that will then lead to forming a valid consideration for a contract can be given not only by the promisee but by any other person as well. This means that as long as a promise carries a consideration, even the third party can give the consideration as long as it fulfils the other essentials of consideration. This is a concept of ‘consideration from the third party’.

Illustration

If A asks for a loan from the bank and assures to repay the loan as per the due date, B acts as the guarantor of the loan. Then the consideration for the loan comes not only from the borrower (A) but also from the third party (B), constituting a valid consideration and making the contract more robust, as B’s act of being the guarantor here adds to the level of security.

Case law

In this case, an old lady owned some estate that she wanted to transfer to her daughter (the respondent, Venkata Ramayya Garu) before her death. The transfer was to be made by means of a ‘Gift Deed’ on the condition that Ramayya would pay an amount of Rs 653/- every year to the sister (the appellant, Venkata Chinnaya Rau) of the old lady. The elderly lady asked her daughter to come to her home and convert her final wish before passing away. The daughter (Ramayya) agreed to the condition and committed to fulfilling the annuity payments to her aunt (Chinnaya). Ramayya and Chinnaya strengthened their contract through mutual consent and confirmation, making it a valid contract.

Facts of the Case

This principle was held in the case of Chinnaya v. Ramayya, ILR (1876-82). In this case, A gave property to her daughter in the form of a gift deed with the explicit instruction that the daughter would give her brother an annuity.

This daughter agreed to give the annuity amount to her uncle and sign the written agreement on the very same day. However, the daughter chose not to keep her word, which resulted in the brother filing a lawsuit to get back his money. The sister, the defendant, contended that her brother lacked the right to sue as there was no consideration from his side and there was no direct involvement in the agreement because he was not a party to the consideration.

Held

It was ruled that consideration does not necessarily have to come directly from the promisee The brother was therefore permitted to proceed with the lawsuit.

Similarly, in the case of S. Pre Malatha v. Mysore Minerals Ltd. and Anr. (1992), it was held that Section 2(a) of the Indian Contract Act 1872 includes the words ‘promisee or any other person’, which implies that even a third party or a stranger to the contract can sue. The Karnataka High Court in the present case also emphasised that when a statute specifies who can provide consideration, no precedent is required for the same.

Consideration is an act, abstinence, forbearance or detriment

The legal term consideration is often believed to be value in exchange for money, but the term consideration is not just restricted to that. According to the Act, consideration can be in the form of an act, abstinence, forbearance, or detriment.

Consideration as an Act

An act is a moral or ethical duty that one performs without any legal obligation to do something.

Illustration

If S sees D drowning in the water without giving it a second thought, S jumps into the water to save D from drowning. Here, neither did D request S to help nor was it a legal obligation on the part of S to do such a dangerous act, but it was out of humanity that he did it.

Consideration as an abstinence

To constitute abstinence, one must refrain or promise to refrain from doing something that he or she has a legal right to do.

Illustration

Tanvi owns a unique vintage car, which is highly valuable. Rishabh is eager to buy that car. Tanvi abstains from selling the car to anyone else for a specified time, and in return, Rishabh promises her to pay a premium amount. Here, Tanvi’s abstinence from selling the cars to others is the consideration for Rishabh’s promise to pay a premium

Consideration as forbearance

Forbearance means giving up one’s legal right or a claim to perform such an act that he is entitled to do.

Illustration

Nisha owes money to her friend Riya but is facing financial difficulties, so Riya agrees not to ask for repayment of the loan for one year, and in return, Nisha helps Riya with her computer issues. Here, Riya’s forbearance (delay in seeking repayment) acts as a consideration for Nisha’s promise to provide technical assistance.

Consideration as detriment

A detriment suffered by the promisee or the third party, whether actual or prospective, constitutes a good consideration

Illustration

Ankita needs her car repaired and asks her friend Sushant, who is a mechanic, to do the same. She promises to pay his fees after the work is done. Now Sushant invests his time and resources in fixing the car, so here time, resources, and efforts spent act as the detriment and serve as a valid consideration for Ankita’s promise to pay for the repair.

Note: The promisor doesn’t need to receive any benefit as long as the promisee or someone else suffers any sort of detriment.

In all these situations, consideration takes 4 different forms: an act, abstinence, forbearance or deteriment. But as long as it fulfils the essential condition for a valid consideration, i.e., something of value being exchanged in return for something, it forms a valid contract between the parties

The consideration should be mutual

Consideration means something for something, constituting a reciprocal relationship between the two parties, the offeror and offeree, where both parties act or abstain from doing something that results in the benefit of the opposite party. This results in the establishment of a mutual relationship between both parties.

Illustration

Riva promises to tutor Zaid in dancing for six months, and in return, Zaid agrees to teach Riva to play the guitar. Here, the parties are providing something of value to each other, creating a mutual exchange of consideration.

The consideration must be real

Consideration must be real, which means it must be in the form of a right, interest, profit, or benefit accruing to one party or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. Thus, consideration is essentially the price of a promise.

Illustration

Beena promises to sell one of her authentic pieces of art to Janvi, and in return, Janvi pays her Rs. 2000. Here the consideration is real, as Beena is giving up something valuable and tangible (her authentic painting) and Janvi is providing her with a monetary payment

The consideration must have some value in the eyes of law

Consideration must have some value in the eyes of the law. It is not necessary for the price of the consideration to be proportional to the market value, but it should have some tangible value. However, the courts cannot assume the authority to determine what would be an appropriate consideration for the parties because the adequacy of consideration is up to the parties to decide.

Illustration

Shivani promises to pay Jay Rs. 10,000 if he quits smoking until he attains the legal age. Jay agrees to this offer and quits smoking and drinking. Jay’s act of forbearance is a legal detriment and has value in the eyes of Law. Shivani’s promise to pay Jay a certain amount constitutes a valuable consideration.

Case law

In the case of Chidamabara Iyer v. P.S. Renga Iyer (1966) the Supreme Court stated that consideration “shall be ‘something’ which not only the parties regard but the law can also regard as having some value.”

When is consideration invalid in a contract

Performance of pre-existing duty is not a consideration

If an individual is already under a legal obligation to do something, then performance or execution of that pre-existing duty is not a relevant consideration for a new contract. This implies that if a person is already bound by a contract or a legal obligation, performing that duty cannot be used as a consideration for a new contract.

Promise to pay less than the amount due

If a person agrees to accept payment less than the amount due to him, such a promise is not a valid consideration. This implies that if a person had earlier agreed upon paying a certain amount but later, due to some reason, paid a lesser amount in settlement, that itself would not be considered a valid consideration for a contract.

Consideration must be real

Consideration between the two parties must be real; it should not be physically or legally impossible to carry out. If the consideration is not considered to be real and comes with a level of uncertainty, then it would be impossible to carry it out. Following are the instances where consideration will be unreal and hence void in the eyes of the law.

Physical impossibility

Physical consideration refers to those promises or acts that, due to their very nature, cannot be carried out. This type of consideration is not enforceable here because it involves a practically and physically impossible task. For example, if A promises to sell a car to B in exchange for a magic carpet that can fly, this is a physically impossible consideration, according to our current understanding of physics and reality. There is no such thing as a magic carpet that can fly without any external aid.

Legal impossibility

A promise to do an act that is forbidden by the law or is of such nature as to go against the rules and regulations. For example, if a person asks you to murder his enemy and then, as a consideration, provides you with 5 lakh rupees, this will constitute an unlawful consideration.

Uncertain consideration

Consideration must be certain; if it is not, then it would lead to an ambiguous situation, and uncertain consideration will be held invalid as it becomes uncertain as to what exactly the trade-off is between the parties to form a valid contract. For example, if you go to a shop and ask the price of a dress whose price tag is missing and the shopkeeper is unsure about the price and says that it might be 2000 or 4000, this will be called an uncertain consideration because there is no certain price of the dress that you can surely pay to the shopkeeper.

Illusionary consideration

Illusionary consideration, as the name suggests, is something that does not have any value in the eyes of the law because it is a promise to give something that does not impose a real obligation.

Unlawful consideration

According to Section 10, consideration must be lawful, without which an agreement is void. Section 23 states that a consideration is unlawful if it is:

Forbidden by law
Or is it of such nature that, if allowed, it would defeat the law of the country,
If it is fraudulent,
It involves injury to the property or person of the other
If Courts regard it as immoral or opposed to public policy

In all these cases, the consideration or object of an agreement is said to be unlawful. Every agreement in which an object or consideration is said to be unlawful is considered void.

Case law

In the case of Fisher v. Bridges (1854), the defendant agreed to buy the land from the plaintiff. According to Bridges, before the official agreement was made, the plaintiff knew that the land would be exposed to a sale illegally through a lottery, which goes against the law. Even though part of the purchase money was unpaid and the defendant made a covenant for payment, the Court ruled against that enforcing promise. The Court found that a promise was made to secure payment of the part of the purchase money for the land that was involved in an illegal agreement. Since the main deal was tainted with legality, the Court decided not to enforce the promise to pay, considering it security because it originated from and was connected to an illegal agreement.

Section 24 of ICA

Section 24 of the Act states that the agreement is considered void if the considerations or the objects are unlawful. There may be cases where one part of the consideration is lawful and the other is not. In such cases, the entire agreement is void if the unlawful part cannot be separated from the lawful part.

A promises to work for B, who runs both illegal and legal businesses, for a sum of Rs. 4,000 per month, and B agrees to pay this amount to A. The business can be separated from illegal business; the part of the salary pertaining to legal business is lawful consideration. In the above case, if legal and illegal businesses cannot be separated, the whole salary of A will constitute unlawful consideration.

Case law

In Alice Mary Hill v. William Clarke, a woman agreed to live with a man in adultery in lieu of a monthly consideration of Rs. 50. The agreement was declared void as the lawful part cannot be separated from the unlawful part.

Exceptions and limitations to consideration requirement in Business contracts

Promissory Estoppel

The doctrine of promissory estoppel is rooted in equity, aiming to prevent injustice between parties. The true principle of promissory estoppel is to avoid injustice to the party. It operates on the principle that if one party makes an unequivocal promise to another intending for it to create legal relations or affect future legal dealings and knowing or intending that the promise will be acted upon by the other party, the promisor cannot go back out of the promise once it becomes binding. In simple terms, it involves a unilateral promise made by one party without receiving a reciprocal commitment from the other party. The promisee is not obligated to act upon the promise, but if they do, the promisor is bound by their original commitment. The act of the promisee becomes both an acceptance of the promise and a form of consideration. For the doctrine to apply, certain conditions must be fulfilled, including a clear promise from one party, the intention to create legal relations, and the knowledge that the other party would act in reliance on the promise. Essentially, promissory estoppel holds parties accountable for their promises when it would be unjust allow them to go back on their words. The following are essential conditions for promissory estoppel:

That the promise was intended to affect the legal relationship of the parties and to be acted upon accordingly
That it is one on which the other side has acted to its prejudice

Existing legal obligations

When a party is already under a pre-existing legal obligation, that act cannot be used as a consideration for a new contract. This means that if you’re already legally bound to do something, it is not counted as a valid consideration. However, if a party promises to go above and beyond what you are obligated to do, this might constitute a sufficient consideration. This fresh consideration should be offered freely without any threat.

Illustration

If a contractor agrees to complete a construction project for a fixed amount according to the industry standard and later on an additional payment, this will not be enforceable as there is no new consideration. Nevertheless, if the contractor agrees to complete additional work beyond their original obligation, this consideration of providing an additional payment is enforceable.

Nominal considerations

In certain circumstances, a token or nominal consideration may be deemed sufficient to support a contract. This implies that a value of exchange that is very minimal or of little value can still be considered valid consideration because the adequacy of consideration depends on the parties to the contract. For example, if a painter sells his top-notch painting for just Rs. 100, it will still be considered a valid contract because there is mutual consideration between both parties.

Statutory exceptions

Certain statutory obligations may modify the essential requirements of consideration. For instance, charitable pledges and donations are often enforceable without consideration. Section 25 of this Act recognises this special concept. As long as the consideration fulfils the given purpose or criteria of a charity under the law.

Part-payment by the third party

In the Indian Contract Act, 1872, there’s a specific exception to the usual requirement of consideration. This exception applies when a third party makes a partial payment on behalf of the debtor. If the creditor accepts this partial payment, it is viewed as a valid consideration for the creditor’s promise to release the debtor from the obligation to pay the remaining debt This exception is based on the idea of “benefit conferred upon a third party,” wherein the creditor gains an advantage through partial payment made by the third party as consideration for the promise to alleviate the debtor’s obligation.

Payment before time

Another exception to the general rule of consideration is found in cases where a debtor makes a payment to the creditor before the debt’s due date. In such situations, if a debtor willingly settles a debt before it is officially due, the creditor has no authority to any form of consideration. The debtor can rightfully consider the debt discharged. Once the creditor accepts this early payment, the debtor is entitled to claim a valid discharge of the debt, and they are not allowed to demand any additional payments related to that particular debt.

Section 25 of the Act

Section 25 of the Act states that an agreement to which the consideration of the promisor is freely given without any threat or influence is not void merely because the consideration lacks the adequate value of exchange, but the inadequacy of the consideration may be taken into account in determining whether consent or approval was given by the promisor in making the consideration.

Case law

In Tweddle v. Atkinson (1861), the father of the groom and the father of the bride agreed that each of them shall pay a sum of money to the boy, and after marriage, the boy shall have full power to sue for such a sum. After the deaths of both contracting parties, the husband sued the executors of the wife’s father upon the execution of the agreement, but the action was held not to be maintainable because the husband was not a party to the contract.

Exception to Section 25

Section 25(1): Promise made on account of love and affection

In this kind of consideration, the parties to the contract are in close relation to each other, which means that the agreement is based on love and affection. Here, the contract is enforceable even without consideration because the parties are related by blood or marriage.

Section 25(2): Promise to compensate for voluntary services

In such a contract, an agreement is enforced based on the consideration of compensation, wherein a person has already done something for the promisor, something that the promisor was compliant to do. Such an act should be done voluntarily without having any knowledge of the promisor and should be solely done for the promisor.

Section 25(3): Promise made to pay a time-barred debt

The promise of a time-barred debt is enforceable without any additional consideration if the debtor makes a promise to pay it. The time-barred debt is signed by the debtor, and the creditor may enforce the payment under the limitations of the suit.

Complete gifts

The term complete gifts has not been exclusively given under the Indian Contract Act However, the concept of certain types of “gifts,” wherein parties are involved with each other without making any consideration, is valid. For a gift to be legally effective, it often needs the following elements:

The donor must have a clear intention to make a gift.
The gift must be delivered to the donee, and the donee must accept the gift.

Formation of an agency

There is no need for consideration in the creation of any agency.

Privity of consideration in Business Law

The doctrine of privity of consideration states that a person is not a party to the contract but rather is a stranger to the contract, and according to the Indian Contract Act, a contract can be enforced against the parties involved in the agreement. Hence, neither a stranger can sue nor sue upon it. However, if the party to the contract is a stranger to the consideration, it does not affect its legal rights Another implication of this is that according to the Indian Contract Act, a contract is said to be valid when the consideration may move from the promisee to any other person. In this case, when the consideration moves from a person other than the promisee, the promisee can be categorised as a stranger to the consideration. The privity of consideration does not confer any right on the party providing consideration to enforce the contract at the court of law.

Exceptions to the Doctrine of Privity of Consideration

Trust

Even though an individual is not a party to the contract, a trust was created by the promisor, and thus the beneficiary can enforce the rights given to him under the trust.

Family settlement

When an arrangement or agreement is made in connection to marriage, partition, or any other family arrangement, and if the provision is made for the benefit of a third person. Being the beneficiary of it, he or she is entitled to sue if her rights are being infringed.

Case law

On the partition of a joint Hindu family property, an agreement was entered among its male members to make provision for the marriage expenses of a female member. It was held in this case that the female member was entitled to sue the parties to the partition deed to enforce the provision in her favour – Sunder Raja Aiyengar v. Laxmi Ammal, 1915, 38 Mad. 788.

Two brothers on a partition of the family property agreed to pay Rs. 300 in equal share to their mother for maintenance. It was held that the mother, though a stranger, could enforce the provision in her favour even though she is a stranger to contract – Shuppu Ammal v.Subramanian (1910).

Promissory estoppel

The above-mentioned doctrine holds that both parties must be treated fairly and equally. To be more precise, under this doctrine, if a person makes a promise to the other and the person incurs a detriment relying upon the promise, in such a scenario, the promisor is estopped from going back on his promise to the extent the promise has incurred a detriment based on such a promise. However, courts at times, will enforce gratuitous promises.

Agency

When contracts are entered into by an agent, the principal can be held liable for the actions of his agent even if the principal is not in direct contact with the party.

Practical application of consideration in contracts

In the business world, consideration is fundamental to commercial transactions. It helps to establish a framework for fair business dealings and protects parties from arbitrary changes or challenges. To safeguard the interests of all the parties involved in the contract and avoid potential disputes and legal issues, careful drafting and negotiation of consideration clauses are necessary.

Drafting and negotiating consideration clauses

While drafting or negotiating consideration for a contract, all the essential ingredients of a valid consideration must be kept in mind and framed accordingly. It must ensure that the terms of the contract are clear and unequivocal and leave no space for ambiguity. Failure to do so may lead to disputes in the future.

Identify the consideration

Understanding the intention and purpose of the parties while framing the contract is of utmost importance. Specifying the nature of the exchange of value, i.e., either goods and services, monetary payment, or any other valid promise mutually benefitting the parties to the contract. This helps to avoid ambiguities and misunderstandings.

Ensure sufficient consideration

While framing the consideration, both parties must ensure that the consideration has some legal value, and more than being sufficient, the value of the exchange should be adequate. It is up to the parties to ensure whether the consideration is fair or not.

Avoid past consideration

Past considerations are generally not considered valid or good consideration. Be mindful enough to ensure that any act or promise relied upon as consideration is either present or future, rather than an already existing legal obligation or previously performed promise.

Ensure the legality of the consideration

The consideration agreed upon by both parties must be legal and have some value in the eyes of the law. Promising something illegal, unlawful or invalid will not serve as a fresh consideration

Be acquainted with the parties involved

This principle must be paid heed in case of multiparty agreements or contracts, be careful and aware of who provides obligations to whom. Each party’s obligation must be clear and very well defined to constitute a legally valid and enforceable consideration in a court of law.

Appropriate drafting

Be specific and avoid vague and ambiguous language while drafting a consideration clause. In cases of complex or unique consideration arrangements, try consulting a legal expert while drafting such consideration clauses accurately and in a precise manner.

Negotiation process

Both parties must be open to discussions regarding the terms of the agreement; a clear mutual understanding of the terms of consideration can help avoid disputes in the future.

Relevance of consideration in Business Law

Equitable exchange of value

Consideration ensures a fair exchange of value between the parties involved. This reflects the principle that both parties need to mutually benefit from the contract and that both sides should give and receive something in return, which would make the consideration valid and the contract more robust.

Prevents unfair treatment

Consideration prevents unjust enrichment, ensuring that one party doesn’t benefit unfairly at the expense of the other. As we know, consideration attempts to mutually benefit both parties. In a real sense, this implies that consideration would only promote fair and just treatment among the parties involved in the contract.

Prevents gratuitous promises

Consideration helps prevent gratuitous promises or one-sided commitments. It is backed by some form of legal obligation on both parties. If the consideration is valid and has fulfilled all the essential elements, then it would further strengthen the trust between the parties regarding the value that is going to be exchanged.

Flexibility in negotiations

Consideration allows for flexibility in negotiations. Both party members can form considerations depending upon the sufficiency and adequacy of the value of a product to be exchanged between the parties.

Legal formality

Consideration in a contract makes it enforceable because there exists a legal obligation on the part of both parties. It also helps in understanding the parties’ intent on the terms of the agreement and how strongly both parties agree to the terms of the contract.

Key highlights for consideration in valid contracts

The importance of clearly stating considerations in contractual agreements

Being clear in business contracts and agreements is a crucial criterion for understanding the considerations involved. Consideration is a value or a benefit that each party receives on entering into the contract. It is an essential element in making the contract legally enforceable, and thus stating clearly the considerations would make it easier for the parties to know what they are giving and receiving in return. If the terms of the agreement are not clear, ambiguity, confusion, disputes, and potential legal issues may arise. Clearly stating consideration would help prevent misunderstandings and ensure that both parties are aware of their obligations.

Tips

To ensure that considerations are clear enough to avoid potential disputes in contractual agreements:

Be precise

Being specific about the consideration, which might be in various forms, whether it be money or the nature of goods or services, and clearly defining things for both parties may avoid any misinterpretation.

Use simple and clear language

Using vague or ambiguous language could only lead to false impressions and misconceptions. Hence, it is recommended to use concise language to accurately convey their feelings

Consider future contingencies

Anticipate unforeseen circumstances that might be a potential threat to the consideration and address such contingencies to avoid any disputes.

Case law

In Hamer v. Sidway (1891), an uncle promised his nephew a sum of money if he refrained from drinking, smoking, and gambling until the age of 21. The nephew complied with the conditions, but the uncle later refused to pay. The Court upheld the agreement, emphasising that the nephew’s refraining from vices constitutes a valid consideration. The clear statement of consideration in the contract played a pivotal role in enforcing the agreement.

Requirement of adequate and sufficient contractual agreements

Adequate and sufficient consideration is necessary to enforce legally enforceable contracts.

Adequate consideration implies that each party must provide something of value to each other. This means that the consideration exchanged must be fair and reasonable
Sufficient consideration refers to the requirement that each party must provide something valuable in a contract that is not only adequate but also legally sufficient.

Tips

Consider non-monetary exchanges

Consideration can be of any form; it doesn’t always have to be monetary; it can be like goods or services or even forbearance from doing something. However, when no monetary consideration is involved, it is essential to ensure that the value is still fair and reasonable.

Avoid nominal consideration

Nominal consideration means a small-value item given as consideration. Courts are often sceptical of contracts with nominal considerations; this indicates a lack of interest and a weak intent toward the contract. It instead needs to provide consideration according to the value that is being exchanged.

Case law

One of the notable cases that highlights the significance of consideration is Carlill v. Carbolic Smoke Ball Co. (1893). In this case, the Carbolic Smoke Ball Company advertised that if anyone contracted influenza after using their product as directed, they would pay 100 pounds. Mrs. Carlill purchased and used the smoke ball but still contracted influenza. When she claimed the reward, the company argued that it was not a legally binding contract as there was no consideration. However, the Court ruled in favour of Mrs. Carlill, stating that the purchase and use of the smoke ball constituted sufficient consideration as per the company’s advertisement.

Consideration and its impact on the enforceability of contracts

Consideration is a vital element in business contracts as it ensures fairness, mutual obligations, and ultimately the enforceability of agreements in the court of law. Without consideration, a contract is not enforceable in a court of law

Case law

Legal cases have highlighted the importance of consideration in determining the enforceability of business contracts. One such case is Hamer v. Sidway (1981) , where an uncle promised his nephew a sum of money if he refrained from drinking, smoking, gambling, and swearing until he reached the age of 21. The nephew successfully refrained from these activities, and upon reaching 21, sued his uncle for the promised amount. The Court held that the nephew’s abstinence from these activities constituted valid consideration, and he was entitled to the promised sum.
Another notable case is Stilk v. Myrick (1806), where sailors on a ship demanded additional wages for their journey after several crew members deserted. The Court ruled that the sailors were not entitled to the extra wages as their continued performance of their existing duties did not amount to valid consideration.

Case laws

Valuable insights, complexities, and nuances were answered through some of the unique instances where the legal concept of ‘Consideration’ was applied. Significant cases relating to consideration in UK Contract Law have been discussed below. These are some of the key cases that delve into the intricacies and clarify the legal position of this concept of law.

Williams v. Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1

Facts of the Case

In this case, the appellants, Roffey Bros., were builders who were contracted to refurbish 27 flats belonging to a housing corporation. The contract had a penalty clause for late completion. The appellants subcontracted some work to Williams, a carpenter. When Williams fell behind with his work, the appellants offered him a bonus payment to finish on time. Williams carried on working until the payments stopped. He sued the appellants for breach of contract.

Decision

The Court of Appeal held that the doctrine in Stilk v. Myrick had been refined since then. Goldwell LJ said a promise to make bonus payments to complete work on time was enforceable if the promisor obtained a practical benefit and the promise was not given under duress or by fraud. It was the appellants’ idea to offer the extra payment. Therefore, there was no duress. The appellants also gained a practical benefit by avoiding the penalty clause. Russel LJ said that the Court would take a pragmatic approach to the true relationship between the parties. Consequently, the promise of extra pay was enforceable.

Chappell & Co Ltd v. Nestle Co Ltd [1960] AC 87

Facts of the Case

In this case, the defendants, Nestlé, contracted with a company manufacturing gramophone records to buy several recordings of music. The plaintiffs, Chappell & Co., held the copyright to these recordings. Nestlé offered to sell these records at a discount to anyone presenting three wrappers from their chocolate bars. The wrappers themselves were worthless and were thrown away by Nestle. The plaintiffs sought an injunction restraining the manufacture and sale of the records because they breached copyright.

Decision

The court held that the chocolate wrappers had some value and constituted valid consideration, as they encouraged customers to buy the chocolates.

Notable consideration cases under Indian Contract Law

Kedarnath Bhattacharji v. Gorie Mahomed [1886]

Facts of the Case

In the case of Kedarnath Bhattacharji v. Gorie Mahomed (1886), the plaintiff was a municipal commissioner of Howrah and was also one of the trustees of the Howrah city council fund. A town hall was planned to be built in Howrah. After gaining enough membership to support the funds required to build a town hall, the commissioners, including the plaintiff, agreed with the defendant to build a town hall. The plans and proposed structures for the same were submitted and also passed. Later, because of the expansion in the membership list, the plans also expanded. Therefore, the expected construction cost increased from Rs. 26,000 to Rs. 40,000. The defendants made a subscription to pay 100/- for the construction of the town hall, which he later refused. The commissioner sued the defendant for the same.

Decision

The Court held that even if the defendant does not benefit from the promise he made, he is liable to pay. The defendant was responsible for the promise he made and could not step back or take it back after its commencement. Therefore, the suit was successful.

Durga Prasad v. Baldeo [1875]

Facts of the Case

In this case, the District Authority of Etawah proposed establishing a two-grain market in Etawah, one known as Hume Ganj and the other as Ram Ganj, with the plaintiff and extended a significant amount of rupees for constructing shops and purchasing land for the same. The defendants acted as commission agents for a 6-anna commission in 1875, as documented in a contract. Upon municipal advice, the plaintiff sought registration for legal validity. However, the defendant refused, leading to a dispute. The plaintiff filed a lawsuit, initially leading to a dispute. The plaintiff filed a lawsuit initially in the lower court and later appealed to the higher court, seeking enforcement of the agreement’s terms. The core issue revolves around the defendant’s refusal to consent to the agreement and registration upon the plaintiff’s; hence, the plaintiff filed a lawsuit to enforce the terms of the agreements first in the lower court and later in the higher court after an unsatisfactory response from the lower court.

Decision

The claims of the plaintiff were denied, and the case was dismissed by the Judge. According to Section 2(d) of the Indian Contract Act, 1872, the arrangement was rejected as a contract because there was no significant and well-known consideration involved in this case. According to Section 25 of the Act, the transaction was deemed defective because there was no consideration. The judges also determined that there was no option for an appeal because the Act stipulates the significance of consideration as a necessary component of a contract, and the appeal was rejected by the court.

Conclusion

This article gives an overview of all the important judgements, essential elements, practical application of the legal concept of consideration, and a lot more. In this article, the author attempts to provide readers with an all-inclusive understanding of various aspects of consideration in contract law. Both parties need to ensure that whenever a person is entering into a contract, he or she should be aware of all the requirements of consideration while forming a valid contract, and hence this article benefits its readers in gaining an all-round perspective of different concepts and legal backing received in various situations.

Frequently Asked Questions (FAQs)

Is consideration necessary for every commercial contract?

For a contract to be valid, it needs specific elements to make it a robust contract, and one of them is having a lawful consideration. In a business contract, if there’s no consideration, i.e., something of value being exchanged between the parties, then the contract is unlikely to be enforceable.

Can there be contracts without any consideration?

Even though consideration is an essential element, there are certain cases where you can enter into valid contracts without consideration. These are agreements out of natural love and affection, voluntary services.

Is it necessary for a consideration to be monetary?

While consideration is often money, it doesn’t always have to be that. It must still be valuable to the parties involved if something of value is being exchanged between them. where money is not involved. For instance, non-monetary consideration might involve, instead of cash, one party providing goods to get service from the other. Imagine working at a hotel and, in return, getting food and accommodation. This serves as a non-monetary form of consideration.

References

AI in legal research and document review

By

Sneha Mahawar

-

January 12, 2024

0

This article was written by Bhavana Kakad pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and edited by Koushik Chittella.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Today’s youth are very familiar with the term artificial intelligence, i.e., AI. In this generation, where everything is tech-driven, AI has also played an important role in the legal field. AI has become an integral part of almost every industry, and the legal field is no exception to this. AI basically means performing tasks that require intelligence; it includes:

Maps and Navigation
Facial detection
Chatbots
E-payments
Social media, etc.

Large Language Models (LLM)

Large Language Models are basically deep learning methods that recognise, summarise, translate, and generate great content using large datasets. AIs that depict human intelligence are to be known as LLMs. They help in data analysis, learn patterns, and connect through words and phrases using statistical models. An example of LLM can be customer service automation (CSA).

LLM is simply a machine learning model that performs various natural language processing (NLP) tasks, such as answering questions in a conversation.

How can lawyers use AI

AI can reduce work time and build accuracy in various areas, including legal documentation, legal advice, and analysis. It helps lawyers reduce paperwork. It can also help in streamlining and accelerating aspects of e-discovery document review and can be applied to cases ranging from large to small. The lawyers can actually get things done through AI, which is really monotonous in nature.

With the help of AI technology, lawyers can complete administrative tasks, such as filing and maintaining legal documents. E-Discovery finds and reviews electronically stored information (ESI).

Tasks with the help of AI

The following are the types of tasks that can be done with the help of AI:

Repetitive tasks: The work related to meetings, preparing evidence, and negotiating, which are more human-centric and time-consuming, can be done through AI.
Administrative tasks: Time-consuming tasks can be done through AI, such as arranging meetings and appointments, which can be tedious, and lawyers can focus more on important tasks.
Contract Review (Document Review): Streamlining documents, reviewing contracts, and identifying common clauses become easier.
Create Documents: Proceedings require a lot of clerical work where AI can be really beneficial, such as in creating pleadings and even some applications.
Legal Research: AI can be used for legal research when we have to go through thousands of documents, which can be very time-consuming. AI can do the same task within a few minutes and obtain accurate and relevant information.
Document Count: AI drastically reduces the document count.

AI for legal document review has the capacity to connect dots and find correlations between them; it leaves no stone unturned. AI sometimes identifies the most crucial fact that goes unnoticed by humans.

Strengthen productivity and reliability with AI technology.

AI for law professionals is for strengthening the productivity and reliability of the tasks done through AI rather than just computerised tasks. Developed AI tools can not only make the best decision but also recognise possible legal risks and develop effective strategies for their clients.

One of the primary reasons why people have adapted to AI in the law sector is due to its capability to analyse and process large amounts of data in the shortest time and with the highest accuracy. AI-mechanised platforms can find the law officer’s most relevant case laws and statutes through vast data to make better-informed decisions.

AI in document review

Human-centred AI for e-discovery workflows helps law firms and in-house counsel get insights into document review. AI legal document review uses AI technology for analysing and reviewing legal aspects of documents in a more inch-perfect and error-free manner. This sort of technology originated to aid the legal profession with tasks such as reviewing contracts, performing due diligence, conducting legal research, and staying updated with the latest amendments and developments in the legal field. This tool analyses new cases, statutes, rules, and regulations, ensuring that lawyers have access to the most recent information available.

This actually saves professionals a vast amount of time, allowing them to concentrate more on judicious pieces of work. Through AI, the documentation review process and its quality are greatly improved. It does so by analysing past documents and adapting their structure, language, and content. They can also help make drafts that are more proficient and legally sound.

Email Threading: Email threading is an AI tool that identifies and organises all emails in a single conversation for reviewing purposes. By doing this, it is easy to review and improves speed and consistency across data. They can connect dots on long conversation stings.

AI for legal research

Legal research involves the process of researching relevant legal information that supports legal arguments and decision-making. It was a standard practice before AI that lawyers would do legal research manually, which is eventually time-consuming and could also lead to probable errors. Hence, the use of AI, machine learning, and natural language processing has built up a strong foundation for legal research and improved efficiency and accuracy for results. AI tools such as research databases, chatbots, and document review software can very well resolve our queries. There are various AI applications for legal research; some of them are:

Due Diligence for Legal Research: For legal research, accurate facts and figures are needed, which are quite impossible for a human-centred mind, but AI machine learning technology has streamlined various aspects of it by improving accuracy. Due to this, lawyers are able to take proper action by assessing situations.
Kira System: Kira System was established by Noah Waisberg, who is an M&A lawyer. This system offers accurate information for due diligence in contract reviews. The advanced algorithms to search for and extract relevant information can also help in document reviews. This accelerates the process up to 90% for experienced users and 40% for new users.
Leverton: This is used for data extraction and document management, which can be used by lawyers for the research process. It can read contracts in various different languages by extracting vital information from them.
eBravia: This tool was established to extract vital textual data from contracts and other documents. This copied text can be converted into searchable text. The information can be extracted and summarised into comprehensive text that is downloaded and again used for research purposes.
JP Morgan: This was developed by in-house legal technology tools; this tool extracts information from commercial credit agreements and contracts in a matter of seconds, which is mostly used by bank lawyers for their research analysis.
Thoughtriver: This focuses on risk management by maintaining contract reviews, portfolio assessments, etc. Users can explore content extracts and gain insights from them.
Ross Intelligence: This AI tool supports lawyers in their legal research by offering natural language; it allows lawyers to ask any questions and receive vital relevant information, which includes:

Case laws
Relevant information
Headings
Secondary source

The algorithms analyse large amounts of data, trying to improve the responses. They go through millions of documents to provide us with accurate, informed answers.

Casetext: This AI tool helps analyse opposite counsel’s arguments by finding previously used legal opinions. Lawyers can identify cases that have been negatively treated as unreliable.
DoNotPay: This is also known as the ‘world’s first robot lawyer’. This AI tool helps guide through legal issues, e.g., filing for small causes in court, making it more accessible for people who cannot afford lawyers.
LawGeex: This tool employs machine learning, text analytics, and statistical benchmarks to review documents that are based upon predefined policies. If the document fails to meet standards and policies, then it suggests edits.
Legal Robot: This AI tool converts legal content into numeric form. It helps raise issues within the document.

Hon’ble Supreme Court on using AI tools

Since 2021, the Hon’ble Supreme Court has been using an AI tool designed for processing information and making it available to judges for reviewing decisions. It does not participate in the decision-making process.

The other tool used by the Supreme Court is SUVAS, i.e., Supreme Court Vidhik Anuvaad Software, which is used for translating legal papers from English into any regional language and vice versa.

Jaswinder Singh vs. State of Punjab and Anr. (2022)

In this case, the Punjab and Haryana High Court rejected a bail petition due to allegations from the prosecution that the petitioner was involved in a brutal fatal assault. The presiding judge requested input from ChatGPT, which is an AI-powered tool. This tool does not express an opinion on a case’s matter, and the trial court is not considering these comments. ChatGPT does not give opinions; it just gives information on the topic asked. The AI tools cannot think like humans; they are more neutral in nature. They also do not confer any decisions; it is just a model that provides us with answers to the questions asked.

Suggestions

AI in the legal field can be used for document analysis, legal research, and document review, which has improved efficiency and accuracy. Implementation of natural language processing, i.e., NLP, has enhanced legal information useful for law professionals to access relevant case laws, statutes, rules, and regulations. It can also predict case outcomes based on historical data, helping lawyers make more informed decisions. Therefore, it is suggested that there must be an integration of AI into the legal field.

Conclusion

Artificial intelligence is transforming the legal field with respect to legal research and document review by enhancing research, scanning, and pre-programmed tasks, which support lawyers. But AI cannot think smart like humans and cannot have the expertise and judgement of law professionals, but it can improve the efficiency and accuracy of the data provided.

We should embrace these technological advancements, as they have really made our tedious work easy, and adapt to the changing landscape of the legal industry. AI continues to evolve, and thoughtful consideration can be made.

References

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Marital rape : power dynamics and the right to reproduction

By

Sneha Mahawar

-

January 12, 2024

0

This article has been written by Tina Pali pursuing Diploma in Corporate Litigation and edited by Koushik Chittella.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

This article attempts to understand marital rape in addition to the societal impact of forcing a woman to give birth to a child or suffer the trauma and pain that is caused due to her doing something against her consent, as it is violative of her fundamental rights. Additionally, this article also attempts to understand the need for the criminalisation of marital rape. The purpose of diving into this issue is to draw inspiration for our Indian legislature to create guidelines regarding the same and also to provide the lawmakers with some suggestions to formulate provisions over the same.

Are all women safe in their homes

John Stuart Mill, in Chapter 4 of his book “The Subjection of Women”, describes that “marriage is the only actual bondage known to our law, where there are no legal slaves except the mistresses of every house”. In some situations, women are more unsafe in their own homes than in the outside world. Being at home, they do not complain about the wrongdoings of their in-laws or husbands and if they gather the courage to lodge an FIR, they will end up facing mental trauma that is gifted by our society. Sexual harassment and rape are the biggest hurdles that a victim faces from the time of reporting the matter till it goes to trial. Marital rape is an even more sensitive issue, as it does not have any legislation penalising the wrongdoers. In India, it is not seen as a crime. In most divorce cases, sexual violence is seen during pregnancy, at the early ages of marriage and even between 18 to 49 years of age, i.e., about 29.3% of women were experiencing spousal violence.

Historical timeline of marital rape

The issue of criminalising marital rape came before the Delhi High Court for the first time in 2015 and the Central Government was of the view that criminalising marital rape may destabilise the institution of marriage. The Delhi High Court started hearing petitions related to marital rape again in January 2022, where a two-judge bench arrived at a split verdict, one stating that it violates women’s right to consent and another supporting that marriage necessarily implies consent. This judgement was controversial in the eyes of the general public.

Moreover, the Law Commission of India rejected the need for the removal of the marital rape exception cited in Exception 2 of Section 375. Parliament is also of the view that the removal of the Exception cannot be done, as marriage is for the purpose of procreation, they thus wished to protect the conjugal rights of the parties and the consummation of marriage. But the Supreme Court, in September 2022, ruled on women’s right to safe abortions regardless of marital status, reflecting the signs of marital rape. Even the Justice JS Verma Committee in 2012 provided some suggestions to criminalise marital rape.

Current status of women in the rural and urban areas of India

It can be noted that 32 percent of women who have ever been married have experienced physical, emotional and sexual violence at the hands of their spouse. Under the age group of 18 to 49 years, about 24.2% and 31.6% of women ever married have experienced spousal violence in urban and rural areas respectively. Whereas, it is noted that the percentages of women under the age group of 18 to 49 experiencing violence during pregnancy to give birth to a male child are as follows:

2.5% in urban areas and
3.4% in rural areas
3.9% in total.

Right to not have a child

It can be seen in India that women, immediately after their marriage, are not ready to have children due to some insecurities, i.e., providing a better life to their child, etc. and they are forced by their husbands and in-laws to have a male child. Sometimes, due to the violent nature of the husband, women have to face bodily sexual injuries too.

Although, as per the doctrine of coverture under the British law, the husband and wife are treated as one under marriage laws, with no individual legal identity after their marriage, women still have the right to live with human dignity and privacy. So when dignity, privacy and the right to make choices for their reproductive decisions are in question, then they will not be seen as one in the eyes of the law merely due to their marriage.

The applicability of word “Consent”

The word consent in the sense of sexual intercourse is very important to understand, but in the real application of it, for a long time, it was considered by the law that consent is implied and given at the time of marriage by both parties. This assumption fails to take into account the fact that a human being can withdraw consent. This forms the basis of the question of whether sexual consent is necessary or not in a marriage.

Criminalisation of marital rape : is it necessary

It is necessary to be criminalised, as it is against the basic rights of women. It violates the fundamental rights to equality, freedom of speech and expression and, more importantly, the right to life and personal liberty. Due to exception 2 of Section 375, married women do not have the right to protect their own bodies. It is very strange to say that women being raped by strangers have a legal remedy, but the woman being sexually assaulted by her husband has no right to claim remedy or to seek protection in this regard.

Why is marital rape still not criminalised

There are various reasons for this. Firstly, proving that marital rape has happened is very difficult. Secondly, there are higher chances of possible misuse of the rape laws if they are formulated for marital rape. Women can misuse it, just like with the rape laws currently available, in order to take a step back from the marriage. Thirdly, it destabilises the institution of marriage, whose sole purpose is the procreation of children, if, after solemnisation, consummation does not happen. Fourthly, it was mentioned by the Delhi High Court that a marriage means implied consent; the husband gets the right to marital intercourse as per his wish because he got the implied consent of his wife, which was given as soon as the marriage took place. These are the biggest hurdles before the judiciary and legislature due to which marital rape is not criminalised in India till date.

Current status of marital rape as an offence overseas

Out of 195 countries in the world, 77 have criminalised marital rape and others do not classify it as an offence. The United States, Canada, South Africa and the United Kingdom are those countries that set the example of criminalising marital rape by providing certain guidelines and laws in this respect.

The United Kingdom, in the case of R v. R (1991), changed the landscape for marital rape completely. In this case, the husband was convicted of attempting to rape his wife and Lord Emilie upheld the husband’s conviction for rape and said that marriage does not make a wife submit herself irrevocably to sexual intercourse in all circumstances.

As per “A guide to marital rape law”, to prove marital rape and sentence the convict, the prosecution must prove that when penetration occurred intentionally but the victim did not consent to it and some sexual coercion or assault happened, the sentence can range from 4 to 19 years, depending on the specifics of the case.

Recommendations

A rapist remains a rapist regardless of his relationship with the victim. Merely due to the possibility of the law being misused or that it is unable to be proven, the judiciary as well as the legislature can’t deny making a legal remedy regarding it. As it can be said, proving anything in a court of law related to marital rape seems impossible due to the lack of evidence. It is right that any rule or provision made may be misused, but in current parlance, we see many things being misused. That does not mean they are not regulated by the law or on the grounds of morality. So, there is a need for clear guidelines with regards to dealing with such matters and a need for creating awareness of how freely the woman can register her complaint without any future repercussions. One possible solution is that the police force can be sensitised to this issue and a special police force is created for addressing allegations of marital rape. The administration must ensure that women facing such issues can be given access to psychological help. This department must conduct a background check of the husband against whom the complaint has been registered, but this needs to be done in a secretive manner so that no harm is caused to the complainant and misuse on grounds of marital rape as a defence cannot be claimed. Though the Domestic Violence Act, 2005 hints at marital rape as sexual abuse in a live-in or marital relationship, the only remedy available is civil in nature. Additionally, marital rape falls under the category of cruelty and can be a ground for divorce. Thus, we see that there is a need for an amendment of existing laws or the enactment of a new law by the legislature criminalising marital rape.

Conclusion

In 1860, when the offence of rape (Section 375) of the Indian Penal Code, 1860, came into being, the understanding of marriage was different. And since that time, society evolved and new issues have come into existence like marital rape, gender equality, feminism, etc. This led to a better understanding of the terms marriage, privacy and consent, which state that consent is required. No means No, even after the marriage,consent can’t be taken for granted. It is necessarily required to be addressed in both social and legal terms, where rules regarding burden of proof and evidence should be framed strategically as marriage in today’s time is regarded as a partnership of equals. So, there is a genuine need to make regulations that provide women with rights related to this and protect their right to live their lives freely with human dignity and liberty, right to sexual privacy and the right to a reproductive choice as guaranteed under Article 14 and Article 21 of the Indian Constitution.

References

John Stuart Mill, The subjection of Women, Chapter 4 (1869) https://www.marxists.org/reference/archive/mill-john-stuart/1869/subjection-women/ch04.htm
Pratiksha Baxi, PUBLIC SECRETS OF LAW: RAPE TRIALS IN INDIA (2014)
Ministry of health and family welfare, national family health survey (fifth round) phase –II report
Debate: Isn’t It Time India Makes Marital Rape a Criminal Offence?”, The Quint
Marriage, intimate relationship not a defence for rape: Justice J S Verma, THE ECONOMICS TIMES, Jan 24,2013 https://economictimes.indiatimes.com/news/politics-and-nation/marriage-intimate-relationship-not-a-defence-for-rape-justice-j-s-verma/articleshow/18165197.cms
Bhodhisathwa Gautam v. Subhra Chakraborthy ,1996 AIR 922
K.S. Puttuswamy v. Union of India (2017) 10 SCC 1
Suchita Srivastava & anr v Chandigarh Administration, SC (Appeal no. 5845 of 2009)
Indian Constitution, 1950 art.14, 21.
R v R (1991) UKHL 12
https://www.noblesolicitors.co.uk/about/a-guide-to-marital
The Hindu Marriage Act, 1955, Section 13(1)(ia)
Indian Penal Code, 1860 section 498A
Priya Jain, is marital rape a crime in India?, https://www.youtube.com/watch?v=SfI8Y5fxBPY
Indian Penal Code,1860, section 375 exception 2
https://www.legalserviceindia.com/legal/article-3295-marital-rape-no-means-no-even-after-marriage.html
Uday v State of Karnataka (2003) SC
Manjima Bhattacharjya, a law won’t end marital rape-but it’s needed all the same, Indian Express, https://indianexpress.com/article/opinion/columns/manjima-bhattacharjya-marital-rape-law-needed-8343646/

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