In this article  Suyash Sahai of Faculty of Law, University of Allahabad discusses whether a lawyer can hold on to my court documents or papers demanding to be paid more.

“Lawyers throughout the world are specialized professionals who place the interests of their clients above their own, and strive to obtain respect for the Rule of Law. They have to combine a continuous update on legal developments  with service to their clients, respect for the courts, and the legitimate aspiration to maintain a reasonable standard of living.”

-International Bar Association’s International Principles on Conduct for the Legal Profession

Introduction

Lawyer’s profession has been regarded as an honourable or noble profession by the world for several centuries. An advocate is be regarded as the most privilege, trustworthy and erudite person of the society and by complying himself with the professional ethics and conduct, an advocate/lawyer is supposed to heal the problems of his clients with best of his knowledge and experience.

Legal Profession has a huge responsibility within society as upholders of the rule of law, and protectors of individual rights against abuses of power thus a lawyers is supposed to take care of the principles of justice, fairness, equity. lawyer-client relationship is considered to be a fiduciary relationship and thus the ethical obligation owed by a lawyer to his clients also includes client care, conflict of interest, confidentiality, dealing with client money, and fees.

Who is a lawyer?

A lawyer is a person who practices law, as a paralegal, advocate, barrister, attorney, counselor, solicitor, or chartered legal executive.] Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services. The role of the lawyer varies greatly across legal jurisdictions, and so it can be treated here in only the most general terms.

Can a lawyer keep to himself the papers of his client in case the client does not pay his fees?

A lawyer can take the lien of client court’s documents only if the client has not paid  or refuse to pay the fixed fees but contrary to this above statement judgements has shown that even on failing to give the fees to the lawyer a lawyer does not has right to hold client’s court documents as held  in R.D. Saxena vs. Balram Prasad Sharma (AIR 2000 SC 3039) that while it was a moral obligation and professional duty of the lawyer to return the brief when the client is required to change his counsel but also declared that not returning the file would be considered as professional misconduct on the part of erring lawyer  hence it can be clearly said that lawyer cannot hold on the client court’s documents and papers for serving his ulterior motive by demanding extra or more money from the client apart from the fixed fees already paid.

What is retainment of Client’s Document?

Lawyers and Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice. Retainment of Client’s documents is holding on to the client’s document which means having it or taking it into grasp. The general practice says that if a client fails to pay the fees then the lawyer can take client’s court document into lien and hold it with himself but Rules of professional responsibility allow valid liens to prevail against a lawyer’s obligation to return papers and property to a client when a representation ends.

Section 171 of Indian Contract Act, 1872 states that retaining the property for security in absence of the contract to the contrary which means that Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect but goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party. Hence, the reliance placed on Section 171 of the Contract Act has no merit.

The law of the retaining lien displays a certain amount of ambivalence. On the one hand, the lien is well established. On the other, various anomalies and exceptions suggest some underlying disquiet, for which it will later appear there are good reasons. India’s Supreme Court recently forbad retaining liens on litigation files but on the other hand some other nations allow retention of funds or of documents when reasonable in the circumstances. Halsbury laws of England suggests two types of remedies to the lawyer if the client has not paid him the fees he may retain his court documents or he may appeal to the court for such retention order. Hence, their lies the conflict on status of holding on or retention of Client’s Court documents.

Demand for an additional amount from the client is unethical and amounts to legal malpractice

Demand of extra amount apart from the fixed amount in my view should be considered as bribery and is to be put under the category of corruption. It must be the sole decision of the client whether to provide a lawyer with extra sum or not and must be given to him out of grace, respect towards him as perquisite and bonus but in now way a client is to be suppressed by a lawyer or come under pressure in anyway or to be compelled to pay to lawyer more than the amount already fixed by them in a contract.

An agreement between a client and lawyer is considered to be a fiduciary relationship which is based on trust, thus any compulsion to pay an additional amount to the lawyer must not be in between such relationship. Such demand for more fees than the fixed is thus considered to be unethical and is regarded as misconduct and legal malpractice.

A lawyer is obligated to comply with a code of ethics that is adopted by the state in which the lawyer practices. These rules, typically known as the Model Rules of Ethics, or Ethical Rules, address a lawyer’s conduct in various situations. A lawyer has a duty, in all dealings and relations with a client, to act with honesty, good faith fairness, integrity, and fidelity. He or she must possess the legal skill and knowledge that is ordinarily possessed by members of the profession. A lawyer should not take any action that is improper under these rules or that which even suggests the appearance of impropriety and any undue influence on part of a lawyer towards his client is to be treated as legal malpractice.

Undue Influence by a Lawyer on his client

When a lawyer demands more to be paid by retaining client’s court documents and files, the undue influence comes into role where a client is not left with any option apart from paying additional fees to his lawyer. Here undue influence means where it is established that a plaintiff was induced to enter into a contract or transaction by the undue influence of the defendant, the contract may be rendered voidable. If undue influence is proved in a contract, the innocent party is entitled to set aside the contract against the defendant, and the remedy is rescission  as the law of undue influence was applied and developed by the Court of Chancery, it developed into two distinct classes: ‘actual’ undue influence and ‘presumed’ undue influence while in jurisprudence undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. This inequity in power between the parties can vitiate one party’s consent as they are unable to freely exercise their independent will.

Thus, a lawyer always stands in a position to dominate the will of his client and always make use of them for serving their ulterior motives. And if such undue influence lies this makes the contracts of lien or retaining of client’s property voidable at the ption of client which is an affected party. Hence, Section 16 of Indian Contract Act which is read as:

1. A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
2. In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another

• Where he holds a real or apparent authority over the other, or
• Where he stands in a fiduciary relation to the other.

makes such contracts which are resulted from an undue influence voidable at the option of affected party i.e client.

What actions can be taken against the lawyer for holding on to the documents?

Section 35 of Advocates Act, 1961 talks about punishment of advocates for misconduct where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. In the case Noratanmal Chaurasia vs. M.R. Murli the Supreme court has held that misconduct has not been defined in the Advocates Act, 1966 but misconduct envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute misconduct and indiscipline which, however, is wide enough to include wrongful omission or commission, whether done or omitted to be done intentionally or unintentionally.

Here professional misconduct includes ill treatment to his client by demanding more and holding on of client’s documents and papers unless the client pay an additional fee to the lawyer. Disciplinary committee has power to reprimand the advocate,  suspend the advocate from practice for such period as it may deem fit or remove the name of the advocate from the State roll of advocates.

What is Lawyer’s Responsibility towards his client?

Section 49 (1) (c) of Advocate Act, 1961 even grants general power to The Bar Council of India to make rules relating to the standards of professional conduct and etiquette to be observed by advocates. The rules formed by Bar Council of India is given in Chapter – II of Part IV of the Bar Council of India Rules tells the duty of an Advocate to the Court, to the client, to opponent, to colleagues etc.

An Advocate shall not do anything whereby he abuses or takes advantages of the confidence reposed in him by his client. It is the responsibility of a lawyer not to demand more than fixed by the contract. and must inform about the fee structure sooner as possible and no alteration or addition can be made unless to the contract to contrary by client and lawyer.

Where to complain when your lawyer holds your document?

Each state has a bar association or similar organization that is empowered to discipline attorneys. The purpose of such discipline is to prevent the misconduct from happening again so client can complain to the bar association against such lawyer. And the client can also complain to Bar Council of India and As per Section. 36 of Advocates Act, 1961  the Disciplinary Committee of Bar Council of India may may either of its own motion or on a report by any State Bar Council or an application made to it by any person interested withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same. Thus, you may complain to State Bar Counsel or if the name of the lawyer is not enrolled then you may directly complain to BCI.

Conclusion

Client-Lawyer relationship is considered to be a fiduciary relationship and consists of obligation of lawyer towards his clients and vice versa. Undue Influence may lie in fiduciary relationship where a lawyer stands on a position to dominate the will of his client and thus compelling his client to pay more otherwise lawyer will hold on client’s court documents is concluded to be and considered as legal misconduct and violation of principles of professional ethics and conduct and such unethical practices by lawyer is to be considered as corruption.

In this article, Deepanshi Sharma discusses the significant changes in Labour Law that happened in 2017.

Maternity Benefit Amendment Act, 2017

Increased period of maternity leave

Women are now entitled to claim maternity leave for up to twenty-six weeks, instead of a period of twelve weeks assured earlier. The benefit can be availed from up to eight weeks before the expected delivery date, instead of the earlier limit of six weeks in advance.

However, this benefit is available only if the woman has none or one other living child. Women who have two or more living children are entitled to a leave of only twelve weeks which can be availed from up to six weeks prior to the expected period of delivery.

Maternity benefit for adoptive mothers and commissioning mothers

The maternity benefits are now extended to the mothers who adopt children below the age of three months and commissioning mothers who have a child through surrogacy. Such mothers are entitled to a maternity benefit of twelve weeks from when the child is handed over to them.

Mandatory créche facility and breaks

Every establishment having fifty or more employees is now mandated to have a créche nearby. Along with this, the mother has the right to visit the créche four times, including the intervals of rest allowed to her.

Mandatory informing of the maternity benefits available

It has also been made mandatory for the employer to inform every woman of the maternity benefits available to her under the Act at the time of initial employment.

Work from home option

The recent amendment also provides a possibility of the employer allowing mothers to work from home beyond the maternity leave period if the nature of the work permits such an arrangement. The period and conditions regarding it are to be based on mutual agreement between the employer and the woman.

Child Labour (Prohibition and Regulation) Amendment Rules, 2017

Awareness measures to be undertaken by the government

The government is now required to undertake measures to make people aware of the laws against child labour. This is to be done through the following measures-

• • Public awareness campaigns by using folk and traditional media, mass media

• Promote reporting of the cases of child/adolescent employment which are against the law through development and advertisement of easy means to reporting such incidents to the authorities

• Displaying of the provisions of the law and the rules regarding them at various public places and the offices of all the authorities under the Act 

• Promote inclusion of the provisions of the Act in learning materials and syllabus in school education through appropriate measures 
• Promote inclusion of training and sensitisation material on the provisions and responsibilities of various stakeholder under the Child Labour Act in Central Labour Service, police, judicial and civil service academies, teachers training and refresher courses and arrange sensitization programmes for other relevant stakeholders.

Conditions in which child may work without breaking the Child Labour laws

The new amendment to the rules adds additional conditions satisfying which a child may work without failing the child labour laws.

A child may help the family or family enterprise after school hours or in vacations but such help shall-

• Not be in any hazardous occupation and process (as listed in the part A & B of the Schedule of the Act);
• Not be work, occupation, or process at any stage of the manufacturing, production, supply or retail chain that is remunerative for the child, her/his family, or the family enterprise;
• Only be in the family or family enterprise, where the family is the occupier;
• Not be during school hours or between 7 p.m. and 8 a.m.;
• Not be any work that hinders or interferes with the child’s right to education, attendance in school, or education (including essential activities like homework), or extracurricular activities assigned to the child by her/his school;
• Not be continuously or without breaks for rest and refreshment;
• Not be more than three hours (excluding the period of rest in the day);
• Not include substitution of the child for an adolescent or an adult while helping; and
• Not be in contravention of any law.

The child may also assist her/his family in any manner which is not incidental to any occupation, work, profession, manufacture or business for which the child (or any other person exercising control over the child) is paid. Such child may also not do any work which is detrimental to the growth, education and overall development of the child.

It is important to note that for the purpose of this rule only the following people are considered to be the family of the child-

• Biological brother or sister of the child;
• Brother or sister of the child through lawful adoption of the child; and
• Biological brother and sister of the parents of the child.

Conditions of work for child artists

A child is allowed to work as an artist, without breaking the prohibition laws, only if-

• she/he does not work for more than five hours in a day;
• she/he does not work for more than three hours without rest;
• One responsible person (who handles no more than five children) is appointed in a production or event who looks after her/his protection, care, and best interest;
• Producers of an audiovisual media production or any commercial event which involves the participation of a child have taken special permission from the District Magistrate before starting the event (discussed ahead). A disclaimer that all measures were taken to ensure that no abuse, neglect or exploitation of child took place in anytime during the shooting also has to be made before its screenings;
• Appropriate measures are taken to ensure that there is no discontinuity of the child’s education and lessons in school;
• No child is made to work consecutively for more than twenty-seven days;
• At least twenty percent of the money earned by the child through production or event is directly deposited in a fixed deposit account in a nationalised bank, and to which the child has access to on attaining majority; and
• The child is not involved in audiovisual or sports activity, including informal entertainment activity, against her/his will and consent.

To get permission, an application to the magistrate has to be made with an undertaking, a list of child participants, consent of their parents/guardians, and the name of the individuals who are responsible for the safety and security of the child.

The mentioned undertaking is valid only for six months. It should clearly state the provision of education, safety, security, and reporting of child abuse which should be in agreement with the guidelines made by the Central government, including the guidelines ensuring-

• Facilities for physical and mental health of the child;
• Timely nutritional diet of the child;
• Safe and clean shelter with all the daily necessities; and
• Compliance with all the laws for the protection of children.

Responsibility of school headmaster or principal

The amendment also places responsibility on the school principal or headmaster to inform the nodal officer in case a child misses school continuously for more than 30 days without intimation. Nodal officers are decided by the District Magistrate [Rule 17C(1)(i)]

To know all the changes in the child labour rules, click here.

The Employee’s Compensation Amendment Act, 2017

Employer’s duty to inform the employee of her/his rights

The amendment places a responsibility on the employer to inform every employee of her/his rights to compensation under the Act. This has to be done at the time of the employment. Such information should be given in writing as well through electronic means in English, Hindi, or the official language of the place of employment (whichever is understood by the employee).

The Payment of Wages Amendment Act, 2017

Wages can be paid directly into the bank account or by a cheque

Along with the payment of wages in cash or currency, it is now also possible to pay wages to the worker by crediting the amount in her/his bank account or by a cheque.

Moreover, the government (central or state) may now come up with a list of industries or other establishments in which wages must be paid only by crediting it in the bank account or through a cheque.

Ease of Compliance to Maintain Registers under various Labour Laws Rules, 2017

Combined registers for various labour laws

In an effort to ease the compliance requisites of a number of labour laws, the ministry of labour and employment has issued rules to maintain combined registers for the below-mentioned acts-

• Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996;
• Contract Labour (Regulation and Abolition) Act, 1970;
• Equal Remuneration Act, 1976;
• Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979;
• Mines Act, 1952
• Minimum Wages Act, 1948;
• Payment of Wages Act, 1936;
• Sales Promotion Employees (Conditions of Service) Act, 1976;
• Working Journalists and Other Newspaper Employees (Conditions of Service); and Miscellaneous Provisions Act, 1955

In place of the different registers for these different acts and the rules under them, five combined registers are to be kept for all purposes. This can be done electronically or on paper. These registers include-

• Employee register (form A)
• Wage register (form B)
• Register of loans/recoveries (form C)
• Attendance register (form D); and
• Register for rest/leave/leave wages (form E) [for The Mines Act; The Sales Promotion Employees Act, The Working Journalists and Miscellaneous Provisions Act]

The format of these registers can be found in the schedule to the Rules. (click here)

In this article, Akanksha Vidyarthi discusses the legality of private detective agencies in India.

Introduction

Private Detective Agencies conduct private investigations and inquiry in cases like divorce matters, insurance matters, criminal cases for the specific Individual or group. Presently, the Private Detective Agencies are not required to be registered or to have a licence in order to operate in India as there is no such law in order to regulate the activities of Private detective agencies and the private detectors hired by such agencies. However, bill to provide a system of licensing for such Agencies and to regulate their conduct has been introduced as Private Detective Agencies (Regulation) Bill, 2007 but is still pending in the parliament.

This Article discusses some frequently asked questions like whether Private Detective Agencies (PDA) is Legal in India, whether there is any limitation on their powers? Whether they can be held liable for violation of privacy of any person?

Are Private Investigating Agencies legal in India?

• In India, the Private Investigation agencies are Legal but there is no law to regulate the conduct of such agencies. Government hardly have any control over these agencies. They are free to operate in India without any restrictions because of absence any law to regulate them.
• The Private Detective Regulation Bill, 2007 is still pending in the Parliament. The proposed bill seeks to bring the Private detective Agencies within the scope of Legal ambit in order to prevent the Agencies to get involved in illegal Activities like terrorism, Naxalism etc.

Can I hire a Private Detective For Investigating any Matter?

Currently, the Private Detective Agencies in India and there is no Law to regulate their Conduct. Therefore, any person can hire a Private Detective for investigating any matter. But before hiring any Private Detective one should take following things into consideration-

• Make sure that Private Detective Agency is Licensed & Insured;
• Enquire about the Educational qualifications, training, experience of Private Detective;
• Enquire about the Character of Private Detective. Before revealing any personal information to him make sure that he will maintain the confidentiality;
• Make sure that the Private Detective has not been barred by the court in any case to investigate the matter;
• Before giving any amount of money to a private detective the person should enter into a written contract which is to be signed by both the parties

What is the Fee Structure of Private Detective Agencies in India?

The Fee Structure of Private Detective Agencies in India depends upon following Factors-

• The Location of Investigation;
• The Type of Service;
• The Time Frame
• Taking these Factors into Consideration the Average fee charged by these Agencies are-

How does a Private Detective Agencies work

The Private Detective Agencies work through the Private Detectives hired by them. The work of Private Detective Agencies can be classified into 2 categories-

1. Private Investigation – The Private Detectives conduct an investigation for particular Individual. They do not have the power to arrest or detain any person like the police. The Private Detectives conduct the Investigation by various highly advanced technological products like-

• Spy Camera and Transmitters;
• Private Investigation Software;
• Mobile surveillance software;
• Spy Microphone and Transmitters;
• GPS device to track the person, vehicle etc;
• Mobile phone Jammer;
• Microscope; hidden cameras
• Other Innovative Devices.

2. Private Security – No training is provided to the Private Securities in India. Some of the Main cases which generally comes within the ambit of Private Detective Agencies are-

• Matters Relating to Pre-Marital affairs;
• Matters Relating to pre and post-employment affairs;
• Matters Relating to Marital Disputes;
• Matters Relating to Kidnapping;
• Monitoring the Activities of Children.

Private Detective Agencies (Regulation) Bill, 2007

The Private Detective Agency (Regulation) Bill, 2007 is proposed to be introduced to regulated the conduct of such Agencies. Some of the Key points that are proposed in this Bill are-

1. Licensing – The Bill seeks to introduce the system of Licensing for all Private Detective Agencies that have been operating in India. It would be mandatory for such agencies to take the License from the Regulation Board which is established at Central or State level.
2. Qualification for Private Detectives – The Bill has proposed for the qualifications of Private Detectives hired by such Private Detective Agencies in India. The Qualification of Private Detectives are-

• They must be Citizen of India;
• They must have attained at least 21 years of age;
• Some Specified requirements regardings
• Physical Fitness;
• Training;
• Experience.

3. Register by Agency- The Bill provides for maintenance of a register by The Private Detective Agencies which shall contain following particulars-

• Address of-
• Private Detectives hired by the Agency;
• Their Staff Members;
• Their Clients,
• The Salary payable to the private Detectives and their Staff;
• The cases which are undertaken by them for their Clients.

4. Punishment for Private Detectives – The Bill provides the punishment for the Private Detective, hired by Private Detective Agencies. Where any Private detective violates any person’s Right to Privacy and personal freedom, then he shall be held liable and punishable with-

• Imprisonment;
• Fine.

5. Barred from Investigating the Matters related to State Affairs – The proposed bill limits the scope of Activity of Private detective Agencies to non-government sector, As they cannot investigate the matters relating to State Affairs or interfere with the Matters dealt by RAW, CBI that comes within the ambit of State Agencies.

Which Activities do not come within the Scope of Private Detective Agencies under the Proposed Bill, 2007

As per the New proposed Bill, 2007 the Private Detective Agencies cannot deal or investigate the following Matters-

• Matters Relating to Anti-Counterfeiting Security;
• Any kind of Marital Discords for which the complaint is pending before the police;
• Doing any Activity which infringes the Right to privacy of a person;
• Matters Relating to Technology;
• Matters Relating to Theft of Valuable Assets;
• Matters Relating to Environment;
• Matters Relating to Finance and Accounts;
• Matters Relating to forensic, Fingerprints analysis;
• Matters Relating to Insurance claims of government Companies;
• Matters Relating to Intellectual Property Rights;
• Matters that are pending in Courts;
• Matters Relating to Archeological Records;
• Matters Relating to White Collar Crimes.

How to file a Complaint against Private Detective Agencies in case of cheating

Where the person has hired a private detective for an investigation into the Matter and during the course of his business if he cheats that person, then the person can approach the police to file a complaint against such agency u/s 420 (Punishment for Cheating) of IPC.

Definition of Cheating

Cheating (Section 415) – Any person Fraudulently or Dishonestly-

• Induces any person to deliver any property; or
• Induces any person to Retain the property; or
• Induces any person to do or omit anything which he would not have done if he was not so deceived

Then the person is Liable for Cheating. Therefore if the Private Detective commits any of the following act, the complaint can be filed u/s 420 of IPC.

Does the Evidence found by a Private Detective have an Evidentiary Value in the Court of Law?

As the demand of hiring the private detective is increasing particularly, in

Some Sensitive and Sensational cases, the question which arises in the mind of People is whether the evidence found by Private Detective have any Evidentiary value in the court of law or not?

In General terms, the Evidence collected by the Private Detectives are admissible in the Court of Law. Such evidence help the judges in reaching a decision. But, the Evidence so gathered by the Private Detectives need to fulfill certain requirements-

1. The Private Detective Agency hiring such Private Detectives must be having Licence to operate in India;
2. The Evidence must have been legally obtained;
3. Such Evidence has been obtained without violating any procedure of Law.
4. It Should not violate the people’s right to Privacy.

In the case of P v. Mrs P & Mr R, It was held that in case of Adultery or Cruelty, the very high degree of probability of evidence is required. Therefore, while accepting the evidence of Private Detective due care and diligence must be shown by the Judges and parties.

In J. P. Gupta v. National Insurance Company Ltd. In this case, the vehicle of Appellant was insured with respondent, the trial court held that as the vehicle has not been used for domestic purpose, therefore the Insurance Company is not liable to pay compensation.

In an appeal to the High court, it was held that trial court has wrongly relied on the report of detective, and the detective has also not been examined before the trial court. Therefore, the evidence given by detective was held to be inadmissible.

What kind of Evidence can be Collected by Private Detectives?

The Private Detective plays an important role in resolving the cases. The Evidence found by Private Detective help both the judges in deciding the case and the lawyers in strengthening their client’s case with the help of that evidence, as highly technical equipment are used by them to collect such evidence. The Kinds of Evidence that can be collected by the Private Detectives are-

1. Testimonial Evidence – Evidence given by the witness under an oath before a court of law either in-

• Written; or
• Oral.

Therefore, where the Private detective observed or hear anything said by any person, it is admissible as a Testimonial Evidence.

2. Documentary Evidence – The Evidence in the form of Document found by a Private Detective either in the form of-

• Real;
• Original; or
• Hearsay

Are admissible in the court of law.

3. Physical Evidence – Real evidence that exists in the form of physical objects like Fingerprints. Such Physical evidence collected by Private Detectives can be validly produced before the court of law in the form of-

• Image; or
• Video; or
• Document

In Lingegowda Detective and Security Chamber (P) Limited Vs. Mysore Kirloskar Limited and Ors. It was held that detective services did not form part of the scheduled employment as detailed in the schedule of Minimum wages Act, 1948. Thus, there was no employee-employer relationship and no liability to pay minimum wage.

In Emperor Vs. Chaturbhuj Sahu, In this case, it was held that a detective who conspired with the wrongdoer for the disclosure and discovery of an offence, then his evidence cannot be taken into Consideration without collaboration.

Whether the Private Detective can be held liable for violation of privacy of a person under the Information Technology Act?

As discussed above, till now there is no specific law for Private Detective Agency to regulate their Conduct, but the question which arises is that if a Private Detective violates the privacy of a person, then whether there is any law under which he can be punished or there is no remedy for the victim?

So, Law never spare the violators. If a private detective violates the Right to Privacy of any person, then he can be held liable under the IT Act. The Private Detective would be held liable under the IT Act if he does any of the following Act-

• Downloading, copying, or stealing any data from Computer, Laptop or Mobile Phone;
• Introducing the virus in the Computer;
• Damaging the Computer or data stored in it;
• Disrupting the data;
• Denying the Access to such Data;
• Facilitating the access of unauthorized person to such data;
• Diminishing the value of Data;

Civil Liability – Where any Private detective breaches the Privacy of any person by doing any of these activities, then Civil Liability would be imposed on him to pay the compensation to the victim for damages caused.

Criminal Liability – Where any Private detective breaches the Privacy of any person by doing any of these act fraudulently or dishonestly then Criminal Liability would be imposed upon him and he would be liable for-

• Imprisonment which may extend to 3 years; or
• Fine which may extend to 5 lakhs; or
• Both

What to do when these agencies violates your right to privacy

The Right to Privacy has been recognized as a Fundamental right under Article 21 of the Constitution in various judgments. If a private detective violates the Right to Privacy of any person, the victim can file a writ under Article 32 before Supreme Court or under Article 226 of Constitution before High Court to enforce his fundamental rights.

In Kharak Singh v. The State of U.P, where police surveillance was being challenged on account of violation of the right to privacy, the Supreme Court held that domiciliary night visits were violative of Article 21 of the Constitution and the personal liberty of an individual.

In PUCL v. UOI, which is popularly known as the wiretapping case, the question before the court was whether wiretapping was an infringement of a citizen’s right to privacy. The court held that an infringement on the right to privacy would depend on the facts and circumstances of a case.

Legal status of Private Detective Agencies in other jurisdictions

Conclusion

From the above discussion it can be Concluded that presently, there is no law to regulate the conduct the Private Detective Agencies because of which the limits of Private detective agencies and its Private detectives have not been defined, therefore it results into the number of fake Private detective Agencies. Because of lack of any law to regulate these agencies they are operating in India without License. Therefore, they have lost their credibility in the eyes of the general public as there is no set form of rules or regulation which can define their scope of power, functions etc.

These Private Detective Agencies can make a very fruitful contribution in our Legal System if some law is made to regulate their Activities. As they use innovative and advanced technology in conducting the investigation, therefore it can be of great help for the parties, lawyers, and judges in resolving the case. But because of the absence of any law, such Agencies more of being used are misused to a very great extent by fooling the innocent People.Therefore, the government should immediately pass the proposed Bill,2007 in order to regulate the conduct of these Agencies so that they can develop and can make some fruitful contribution to our Legal System.

References

1. In P v. Mrs P & Mr R,(1987) 89 BOMLR 588.
2. J.P. Gupta v. National Insurance Company Ltd, 2006ACJ652; 2004(3)MPHT 344; 2004(3)MPLJ 308.
3. Lingegowda Detective and Security Chamber (P) Limited Vs. Mysore Kirloskar Limited and Ors, AIR2006SC1967.
4. Emperor Vs. Chaturbhuj Sahu, (1911)ILR38Cal96.
5. Kharak Singh v State of U.P., AIR 1997 SC 568.
6. PUCL v. UOI, AIR 1997 SC 568.

In this article, Sushant Pandey of Vivekananda Institute of Professional Studies, Delhi, discusses the Indian Institute of Management Bill, 2017.

Introduction

Indian Institute of Management (IIMs) are the educational institutions registered under the Societies Registration Act, 1860 as societies. Currently, there are 20 IIMs, each of them has a memorandum of association and rules specifying its objectives and system of governance.These IIMs offer the diploma courses of Post Graduate Diplomas in management (PGDM) which is equivalent to MBA and  Fellow programmes in management (FPM) which is equivalent to PhD. The association of Indian Universities provides as an equivalence of these qualifications as MBA and a PhD respectively.

In order to govern these institutions by a single Act, Minister of HRD, Mr Prakash Javadekar, introduced the Indian Institute of Management Bill, 2017 in the Parliament.

Why did legislature felt the need of the Indian Institute of Management Bill, 2017

The bill aims to declare the Institute of management to be national importance with a view to empowering these institutions to attain the standard of global excellence in the management, management research and allied areas of knowledge and to provide for certain other matters connected therewith or incidental thereto.

What are “Institutions of National importance”?

Institutions which serves as a pivotal player in developing highly skilled personnel within the specified region of the country or state are called “Institute of National Importance”. This status may be conferred to a premier public higher education institution in India by an Act of Parliament. These institutions receive special recognition and funding. After Passing the IIM Bill, all the IIMs will get the status of the Institute of National Importance. As per Ministry of HRD’s website, there are 91 institutions which fall under this category.

Institutions as a body corporate

According to section 3 of IIM Bill, 2017 the institutions will be from the date of passing of the bill, become the body corporate having perpetual succession and a common seal with powers to hold and dispose of property both movable and immovable and to contact anyone, and can sue and can be sued in his own name.

Objectives of IIMs

Sections 6 of IIM bill,2017, talks about the objectives of IIMs which includes:

• Carrying out research publications, consultancy and advisory work to advance new technology and innovation.
• Developing educational programme that advances the causes of education, teaching and learning across disciplines.
• Collaborating with management institutions and other educational institutions in India.
• Educating and supporting leaders who can contribute as professional manager and entrepreneurs.
• To provide the higher quality and to promoting the allied area of knowledge as well as interdisciplinary studies.
• Promote the social and gender equity

Powers and functions of IIMs

Under the Bill, IIMs will have powers and functions as mentioned in section 7, which include:

1. Management and administration of the institutes;
2. Regulating the admissions;
3. Conduct the examination and Examination evaluations;
4. Granting of degrees or titles;
5. Regulation of fees and other charges levied by the institutes.
6. Specify and conduct courses of study, training and research.
7. Evolve the innovative management education.
8. Take steps lower the cost of education and enhance the reach of education.
9. To deal with the property of the Institute.
10. To create the posts other than directors.
11. To appoint the committee for disposal of the business of the Institute.
12. To receive grants and other funds.
13. Create partnership etc.
14. Other necessary functions as may be necessary.
15. Other activities which are incidental to the attainment of the above all function.

Nature of the institutes after passing of the bill

Section 8 and 9 talks about the nature of institutes. Every institute will be a not for profit organisation and any surplus of the organisation will be used only for the growth and development of such institute or conducting the research. The Institute on the other side shall not discriminate among any student, teachers, workers, members etc. and will be open to all, irrespective of sex, race, caste, or class.

The institutes are barred from taking any kind of donations or any kind, which is as in the opinion of the board is opposed to spirit and object of the rule of non-discrimination. The admission in every institute’s academic course will be made through a merit assessment through criteria which shall be transparent Be transparent disclosed in the prospectus.

But the proviso added to the section says that the institute can make any special provision irrespective of being the specific provision can make special provisions for the employment or admission of women, persons with disabilities or for persons belonging to any socially and educationally backward classes of citizens and, in particular, for the Scheduled Castes and the Scheduled Tribes.

Board of Governors

Section 10(1) states that the principal executive body of each institute will be Board of Governors. The Board is responsible for the general superintendence, direction and control of the affairs of the institute. The powers of the Board include:

1. Policy-making;
2. Anually estimated budget approvals;
3. Formulation of development plans; and
4. Creation of academic, administrative, technical and other posts, etc.

Section 10(2) of the bill states that the Board shall comprise 19 members including:

1. A Chairperson, who is a distinguished person in the field of management or another such field;
2. Nominees from central and state governments;
3. Faculty members;
4. Eminent persons; and
5. The director of the Institute.  

Academic Council

Section 14 of the bill mentioned that principal academic body of each institute shall be called the Academic Council.

Composition of Academic Council

According to section 14, the composition of the Academic Council will include:

1. The Director,
2. Deans in charge of academics, research, and such other functions of the Institute;
3. Chairs and coordinators of various departments and schools; and
4. Full-time faculty at the level of professors; and
5. Such number of another full-time faculty as determined by the Board.

Functions

Sections 15 mentions the Functions of academic council, which will include:

• Specification of the academic content of the academic programmes and the criteria and process for admission to courses;
• Specification of the academic calendar and guidelines for the conduct of examination; and
• Recommendations for the grant of degrees, diplomas and other academic distinctions.

Director

Section 16 of the bill mentions that the director shall be the leader of the institute who shall be Chief Executive officer of the institute and will be responsible for the implementation of the decision of the board. He shall be appointed out of the search cum selection constituted the committee which shall be constituted by the board and that panel will recommend the name of the director.

The panel shall be consist of:

• Chairperson of the Board( ex officio),
• 3 member  from amongst eminent administrators, industrialists, educationists, scientists, technocrats and management specialists.

The director shall have the power and the functions that shall be assigned to him from time through regulation or provided under the law or delegated by the board. The director shall be usually held for the five years except in the case in cases of resignation or removal.

Funding

Under section 21 which mentions that the IIMs will discharge their functions on the basis of the grants received from the central government. On the other hand section, 22 says that the IIMs will have to maintain a fund which will be credited with funds received by it from the central government, fees charged by the institutes, grants or gifts, money received by the institute from the utilisation of intellectual property or any other money received by the institute. The money received by the institute shall be deposited to a bank account.

Section 22(3) mentions that every institute have to create a corpus fund for long-term sustainability of the Institute, to which shall be credited such percent of the net income of the Institute and donations made specifically towards such corpus fund as the Central Government may in accordance with the provisions of the Income-tax Act, 1961.

According to section 23, every institute have to maintain accounts as per standard a may be specified by the notification by the Central Government.

The accounts of the every IIMs will be audited by the Comptroller and Auditor General.

Annual report

Section 28 talks about the annual report which shall be made by the institute. Every institute shall prepare an annual report under the direction of the board, which shall include, among other matters, steps taken by the institute towards the fulfilment of its objects and outcome-based assessment of the research being undertaken in such institute. The report shall be submitted to the board, which will be published by the board on the website and shall also to Central Government who shall lay that before both the house of Parliament.

Coordination forum

Under section 29, a coordination forum will be set up to discuss matters that are of common interest to all the 20 IIMs which shall facilitate the sharing of experience, ideas and concern with the view to enhance the performance of all institutes.

The forum consists of persons including:

1. Chairperson;
2. Four Chairpersons from IIMs, by rotation for two years;
3. The Director of each IIM;
4. Five persons of eminence from the fields of academia or public service;
5. The secretary to the central government, from the ministry or department related to management education;
6. Two government secretaries from the states in which the IIMs are located, by rotation, each year.

Functions of coordination forum

Coordination forum shall have the powers as specified under section 30 of the Bill. which are as follows:

• Recommend to the Central Government, the institution of scholarships including for research and for the benefit of students belonging to the Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes of citizens;
• Deliberate on such matters of common interest to Institutes as may be referred to it by any Institute;
• Promote necessary coordination and co-operation in the working of the Institutes;
• Review the achievement of policy objectives; and
• perform such other functions as may be referred to it by the Central Government.
• The forum shall meet at least once in a year and submit its report on its function to central Government.

Analysis of the Indian Institute of Management Bill, 2017

The bill after passing will extends the autonomy of IIMs in various ways such as the appointment of the Chairperson of the Board of Governors, the Director, using the institute’s funds and providing variable pay to the Director. The existing IIMs were governed by the MOA and rules and IIM Bangalore. The existing functioning of IIMs and IIM Bill, 2017 have the following difference.

10 Key changes if this Bill receives the assent

• After passing the bill, the premier management Institution of India would now become an institution of national importance.
• The IIMs would have the power to grant degrees instead of diplomas and fellowships.
• Institutes will become the body corporate having perpetual succession and a common seal with powers to hold and dispose of property both movable and immovable and to contact anyone and can sue and can be sued in his own name.
• The board of each institute will be the principal executive body.
• The board of the institutions as per bill will be vested with the full autonomy including the power to appoint chairman as well as director and power to remove the director.The chairman of the board will be appointed for a period of four years, while the directors of each IIM will be appointed by the board for a period of five years through search cum selection panel.
• Accounts of IIMs will be audited by Comptroller and Auditor General of India.
• There will be an IIM coordination Forum to be notified by the Central Government which shall function as the advisory board and will be headed by the eminent person.
• Central Government can frame rules to give additional powers and duties to the IIM board, it will decide the terms and conditions of services of directors although the appointment will be made by the board.
• All the rules and regulations made by the Central Government or the Board will be tabled in Parliament.
• The board is vested with the power to review the performance of each IIM.

In this article, Sushant Pandey of Vivekananda Institute of Professional Studies, Delhi, discusses the legal action to take when your spouse is cheating on you.

Introduction

Commitment is the soul of a matrimonial bond. In a diversity of religions, marriage has always been given a pious position. To dishonour the relationship of a marriage, by being involved in an affair outside the marriage would not only be religiously wrong but morally as well. However, our concern in this article is limited to the legal remedies available to a spouse, if his or her wife or husband is cheating on the spouse. In such a situation, preparation and collection of evidence before you take any step is very important, as the burden of proof will fall upon you. Moreover, if you fail to prove your case, you may find yourself in more trouble than you already were.

Collecting Evidence – What qualifies as a valid evidence under law

Evidence that can be used by you are:

• Birth of an illegitimate child.
• Contraction of a venereal disease by the unfaithful spouse.
• Witnesses, photographs and videos (solely for the purpose of evidence, without violating any law of the land at the time being) of the commission of the cheating on spouse.
• Evidence of visit(s) to a brothel.
• Confession of the spouse of committing adultery.
• WhatsApp messages or email exchanges that come to your knowledge or possession.
• Paternity test report of a child, etc.

Since it is very hard to obtain direct evidence in a case pertaining to a cheating on a spouse, circumstantial evidence is sufficient. However, such evidence should be such, that if regarded together, leads to an irresistible conclusion of the commission of adultery. Intention to commit adultery is an essential element. Being a victim of rape or pre-marital sex cannot be held to be an adulterous act.

The Indian Penal Code, 1860

To understand the legal position of India with respect to the extra-marital affairs, it is important to understand the position of the Indian Penal Code, 1860 (IPC).

The IPC in the Section 497 states:

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.

Therefore, in case, your wife is cheating on you, you can make no step against her under this section, or so far as that is concerned in any section of the IPC. Hence the law says that only a man can be punished for the offence of adultery.

Then what remedy are you entitled to? As evident from the aforementioned section, the only person who has a criminal liability in an act of adultery is the man who has had sexual intercourse with your wife, if he did so with the knowledge of her being married or had reason to believe that she is married.

If you are the wife, and it is your husband who is involved in a cheating, you too have no provision in this code to hold your husband criminally liable for his disloyalty. Unlike in the above scenario, where at least the outsider had a criminal liability, in your case, not even the woman with whom your husband establishes a sexual relationship outside the marriage can be prosecuted under this code.

The Hon’ble Supreme Court has opined this as a favourable discrimination towards women, as the law doesn’t envisage punishment for any of the spouses involved but additionally, not even for a woman outsider. Only an outsider man to the marriage is to be punished under Indian adultery law. It is for this favourable discrimination, the section has defeated the challenges questioning its constitutional validity (valid vide Article 15(3) of the Indian Constitution) in the apex court.

We can conclude from the above discussion, that in the eyes of the adultery law as it stands in India, a man is always the seducer and a woman always the victim.

Regarding why neither of the spouses can be dragged to a criminal court for having a cheating on the spouse, the supreme court has explained the philosophy behind it:

“The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social good will be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing a divorce. They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent.”

Therefore, you can either fix your relationship with your spouse if he or she has been involved in a cheating, or you may opt for the remedies provided by the personal law under which your marriage has been solemnized.

Spouse cheating on you – How personal family law deals with such situation

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954

• Divorce

The Hindu Marriage Act (HMA) under Section 13(1)(i) and the Special Marriage Act (SMA) under section 27(1)(a) have mentioned in a very precise manner, that any marriage may be dissolved by a decree of divorce on filing of a petition by you on the ground that your husband or wife has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than you.

• Judicial Separation

If you don’t want a divorce, you can file a petition in the court to obtain a decree of judicial separation on the ground of adultery committed by your husband or wife. After obtaining the decree, you will no longer be required to cohabit with your spouse. This will give you time to think over the situation and decide whether or not you want a divorce. If you fail to cohabit with your spouse within a period of one year, you or your spouse can file a petition for dissolution of the marriage.

• A Ground of Opposition of Relief Sought

Any relief sought for by your husband or wife (petitioner) in a proceeding of divorce or judicial separation may be opposed by you (respondent) on the ground of adultery committed by him or her. In fact, you may counterclaim for any relief under the Act (HMA or SMA, as applicable) on such ground; and if his or her adultery is proved, the court may give you any relief under the Act to which you would have been entitled if you had presented a petition seeking such relief.

It should be noted that

• Anything short of a sexual intercourse cannot be used as a ground for divorce or judicial separation.
• Unlike the stand of the law in past, where adultery had to be proved beyond reasonable doubt, the Supreme Court has opined in the case of Dastane vs. Dastane, that proving beyond the reasonable doubt is applicable in criminal cases only, not in civil cases, especially not in those relating to matrimony.
• Always implead the adulterer as a co-respondent in the suit against your spouse. Failing to do so may become a ground for rejection of your suit. Different courts have been of the different opinion regarding this. However, it is always better to be on the safer side.
• If you condone the acts of your adulterous spouse, and after that, he or she doesn’t commit any act of adultery, you lose your ground for divorce or judicial separation.

Muslim Personal Laws

• Husband

A Muslim husband can divorce his wife at his will, without providing any reason for such divorce. It can be executed by triple talaq, i.e. uttering three times, in clear and unequivocal words, ‘I divorce you’ or any other phrase having a similar meaning. The method of triple talaq differs, depending upon the sect of the husband (Shia or Sunni). Therefore, you can divorce your wife if she is involved in a cheating on spouse by exercising triple talaq.

• Wife

If your husband has delegated to you the power to divorce, you may use such power to divorce him. This is known as talaq-i-tafweez.

If not, you can file a petition for divorce in the court of law under Section 2 (viii) (b) of the Dissolution of Muslim Marriage Act, 1939. The section provides a ground of divorce if your husband associates with women of evil repute or lead an infamous life, considering such an act as mental cruelty.

If your husband has falsely accused you of committing adultery and doesn’t retract his words, it becomes a ground for you to divorce him under the concept of Lian.

Christian Law

•  Divorce

Divorce for Christians in India is regulated by The Divorce Act, 1869. Section 10(1)(i) of the act reads:

“Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery.”

Under Section 11 of the Act, it is a requisite that the adulterer must be impleaded as a co-respondent in the suit, unless

1. The respondent is leading the life of a prostitute and the petitioner does not know with whom the adultery has been committed.
2. The petitioner is not aware of the name of the adulterer though efforts have been made.
3. The adulterer is dead.

• Judicial Separation

You can alternatively file a petition of a judicial separation under Section 22 of the Divorce Act, on the ground of adultery committed by your spouse.

Parsi Law

• Divorce

The statutory provisions for marriage and divorce of Parsis have been provided for by the Parsi Marriage and Divorce Act, 1936.

As per Section 32(d) of the Act, adultery is a ground for divorce, if a suit for divorce is filed within a period of two years after the plaintiff came to know of the fact.

• Judicial Separation

Section 34(d) of the Act makes all the grounds for divorce, grounds for judicial separation as well. Therefore, adultery is a ground for judicial separation under the Parsi Law.

The Code of Criminal Procedure, 1973 (CrPC)

It is worth noting the provisions of the CrPC regarding a cheating on spouse. These are:

• A wife is not entitled to get maintenance from the husband if she lives in adultery. If an order has been passed to pay maintenance and later a proof is presented of her living in adultery, such order shall be cancelled by the magistrate. Note that living in adultery is different than merely committing adultery once.
• If a person commits house-breaking by day with the intent to commit adultery, and commits, in the house so entered, adultery with your wife, he may be separately charged with, and convicted of, offences under sections 454 and 497 of the Indian Penal Code.
• If a person entices your wife away from you, with an intent to commit adultery with her and then commits adultery with her, he may be separately charged with, and convicted of, offences under sections 498 and 497 of the Indian Penal Code.

Does cheating on spouse amounts cruelty?  

Supreme Court of India in K.V. Prakash Babu vs State Of Karnataka (2016) cited the case Pinakin Mahipatray Rawal v. State of Gujarat, which will clear the picture.

The court was of the opinion that “the marital relationship means the one legally binding and one partner has a martial interest of one to another. The extra marital relationship is no where defined. Court further held that under section 498A, mere facts that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge its martial obligation, as such would not amount to Cruelty, but it must of a nature that drives a women to commit suicide to fall under Section 498A. Mental cruelty would vary from person to person. The court also ruled that Section 306 refers to abetment of suicide which says that If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment which may extend to 10 years. The action of committing suicide is also on account of mental disturbance caused by mental and physical. To constitute this offence, first the suicide need to be established which shall be abetted by another and the prosecution must establish the case beyond reasonable doubt. But for alleged extra marital relationship which if proved could be illegal and immoral and nothing under is brought out by the prosecution to show that the accused has provoked, incited or induced the wife to commit the suicide”.

Survey

According a survey conducted by Gleeden.com, a dating site for married individuals, that the cheating on spouse is not a taboo anymore. The survey was conducted by the site among the Indians which shows following:

Thinking about hiring private detective agents -Legality of spying agencies

In marriage when one spouse has doubt about the his/her spouse, they want to know whether their spouse is meeting someone else at what place and address and they want to test the loyalty of their loved ones. So in order to find out the realities they hire a spying agency to spy on their significant other. These agencies claim to provide comprehensive investigation report at an affordable rates. Hiring these agencies are legal but if these crossed the thin grey line between the legality and illegality they become illegal. These agencies work in dark which sometimes amount to violation of right to privacy which is now guaranteed by Article 21 of the Constitution of India as Fundamental right. Phone tapping, spying through use of various technologies etc. may amount to violation of right of privacy. When these agencies cross the thin line between the privacy and open world, here it becomes illegal. Violating the right to privacy may attract the punishment or penalty as the case may be.

There is no law in India which govern these agencies but a new bill is proposed by the Central Legislature which is called Private Detective Agencies (Regulation) Bill, 2007 which seeks to regulate these.

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