The word arbitration is of Latin origin. In a literal sense, the English word arbitration originates from the Latin word ‘arbitrari’, meaning “to judge.” Generally, arbitration is defined as a procedure in which a dispute of a specific nature is submitted, by agreement of the parties, to one or more arbitrators (certainly in odd numbers), who then adjudicate over that dispute that is binding on the parties.
According to Section 2(1)(a) of the Arbitration and Conciliation Act of 1996, “arbitration” means any arbitration, whether or not administered by a permanent arbitral institution. Arbitration is a method to resolve disputes outside of courts and the judicial system. Parties may refer the dispute(s) for arbitration only when an arbitration agreement exists between the relevant parties to the agreement.
Arbitration is mostly commonly used in disputes that are of a commercial nature. Arbitration is usually a quicker process than court litigation, which is why high-stakes matters of commercial nature are referred for arbitration.
Types of arbitration
The following are the types of arbitration:
Voluntary and mandatory arbitration
Sometimes arbitration may be invoked by including mandatory arbitration clause in an agreement. When the parties have agreed in a contract that they will resolve dispute(s) through arbitration only and they will not prefer litigation as a dispute resolution mechanism, and in case a dispute arises between said parties, if one party is reluctant to arbitrate the matter, then in such circumstances, the other party, with the intervention of the court, can compel the other party to resolve such dispute(s) through arbitration. While agreeing to the mandatory arbitration clause, the relevant parties have to waive off certain rights.
In voluntary arbitration, parties, on their own initiative, move to submit their dispute(s) to be resolved through arbitration to an impartial third party. In this type of arbitration, parties do not waste the time of the courts and also save their costs and time. In voluntary arbitration, parties may have a pre-dispute arbitration agreement or enter into an arbitration agreement to submit their dispute to arbitration after that dispute arises.
Binding and non-binding arbitration
In a binding arbitration agreement, parties give up their right to sue or appeal against the arbitral award, while such is not the case in a Non-Binding agreement. Comparatively, binding arbitration is more favourable to both parties as it saves valuable time for parties and, at the same time, courts, and it also saves the cost of legal professionals for both parties. In a non-binding arbitration agreement, parties are free to go to court if they have any contention with the arbitral award.
Institutional arbitration
Institutional arbitration is done under the umbrella of a specialised arbitration institution. The arbitration institution that is approached in this type of arbitration plays a vital role in the proceedings of arbitration. These arbitration institutions have set rules for the proceedings to be conducted for the resolution of disputes. These rules provide a basic framework for the process of arbitration, including timelines and procedures to be followed. Disputed parties in institutional arbitrations submit their dispute by agreement to an arbitration institution, which then administers the proceedings of arbitration. It appoints arbitrator(s) from its panel and then provides case management services, secretarial services, supervision of proceedings, deciding the venue, and holding the arbitration hearings.
Ad-hoc arbitration
Ad-hoc arbitration simply means a type of arbitration that an arbitration institution does not manage. Comparatively, ad-hoc arbitration is less expensive than institutional arbitration. In ad-hoc arbitration, parties are more or less responsible for all aspects of the proceedings, like deciding the arbitrators, applicable law, and the smooth conduct of the proceedings.
Domestic and international arbitration
Domestic arbitration is a type of alternative dispute resolution mechanism that takes place within a single jurisdiction, having parties on both sides from a single jurisdiction. In this type of arbitration, the arbitration laws of the particular country in which the proceedings are being conducted apply. To cut a long story short, if all aspects of an arbitration proceeding are concerned with a specific single jurisdiction, then such proceedings are to be identified as domestic arbitration proceedings.
On the other hand, if any aspect of an arbitration proceeding is connected with a foreign territory, then such arbitration proceedings are considered international arbitration proceedings.
Advantages of arbitration
The advantages of arbitration are:
Cost-effective proceedings: In most cases, the cost of arbitration proceedings gets split between the parties to the arbitration. It also saves on the heavy costs involved in litigation. As you save a lot of time, you can make more money while focusing on business activities rather than wasting time in court and litigation.
Arbitration is a fast process: If you go for arbitration instead of litigation, your disputes will get resolved faster in comparison to litigation. It saves a lot of time for the parties involved, and they can invest this time in more productive tasks.
Control of the proceedings: Control of the proceedings in the case of arbitration stays more in the hands of the parties, which is not possible in the case of litigation. In litigation, the courts and procedural legislation of the land have more control over the proceedings to resolve disputes.
Binding decision over the dispute: The decision over a dispute that is given by an arbitral tribunal is called an award. And such an award, if had been agreed upon before by the parties, is a binding decision and enforceable.
Mutual consent of parties involved: Arbitration proceedings can not be initiated until and unless an arbitration agreement exists between the parties relevant to the agreement. Due to such consent, the probability of disputes getting resolved increases.
Free to choose arbitrator and conduct of procedure: Parties in an arbitration proceeding are free to choose the arbitrator, which would minimise the chances of partiality with the parties involved.
Simple procedure involved: Arbitration does not involve so many difficult procedures in comparison to litigation. Compared to litigation, arbitration proceedings are more informal and simple.
Confidentiality is intact: Arbitration proceedings are not reported and published as in litigation. Confidentiality of matter is kept intact in arbitration proceedings.
Fix the time limit for the arbitral award: According to the provisions laid down in Section 29A of the Arbitration and Conciliation Act of 1996, the time limit for making an award by the arbitral tribunal is twelve months from the date of completion of pleadings. And such a time limit can be extended only for six months, subject to the consent of the parties.
Disadvantages of arbitration
The disadvantages of arbitration are:
No appeal lies: No appeal lies against an award given by an arbitral tribunal. After getting an award, if a party to the dispute is discontent with the award or thinks that decision is not accurate and judicious, then it can’t do anything about it.
Too easy proceeding and rules of evidence: It could also be said to be an advantage that proceedings and rules of evidence in arbitration proceedings are too easy, informal, and simple, and cross-examination and examination of witnesses are not done on oath, as according to the Indian Evidence Act of 1872, this sometimes leads to inaccuracy in the arbitral awards.
There are not many disadvantages to arbitration, as parties agree and give their consent to resolve disputes amicably.
What is an arbitral tribunal
An arbitral or arbitration tribunal is a panel of arbitrators or sole arbitrators that adjudicate upon dispute(s) and resolve the dispute(s) between the contracting parties according to arbitration laws. An arbitral tribunal may include a sole arbitrator, or it may include a larger number of arbitrators depending on the choice of parties, provided that such a number shall not be an even number. If parties fail to determine the number of arbitrators, then the arbitral tribunal shall consist of a sole arbitrator.
A person of any nationality may become the arbitrator, subject to the agreement of the parties. Parties are free to decide the procedure to appoint the arbitral tribunal. If parties do not agree on a procedure to select an arbitral tribunal, then in a tribunal with three arbitrators, each party shall select one arbitrator, and those selected arbitrators shall select the third arbitrator, who will then act as the presiding officer of the tribunal.
Jurisdiction of arbitral tribunal
The arbitral tribunal may adjudicate under its own jurisdiction, and it may make rules over the validity or existence of the arbitration agreement. The arbitral tribunal may decide if a plea is made to it for exceeding its authority. A party may apply for interim relief while continuing the arbitral proceedings. A party aggrieved by the decision of an arbitral tribunal may make an application for setting aside such a defective arbitral award as per the provisions laid down in Section 34 of the Arbitration and Conciliation Act of 1996.
Procedures in arbitration
Arbitration proceedings are not bound by the Code of Civil Procedure, 1908, or the Indian Evidence Act, 1872. The law of limitation applies to arbitration in the same manner as it applies to court proceedings.
There is ample freedom to agree on the procedure to be followed by the arbitral tribunal. Parties to the arbitration are free to choose the place of arbitration. The parties have also been given freedom regarding agreeing on the language of the arbitration proceedings.
If parties do not agree on a procedure, then the tribunal may conduct the proceedings in the manner it thinks proper in the concerned case.
If the parties fail to choose the place to conduct arbitration proceedings, then the arbitral tribunal shall select an appropriate place to conduct the proceedings in consonance with the parties.
If the parties do not have any agreement on the language of the proceedings, then the arbitral tribunal shall determine the language(s) of the proceedings.
The arbitral tribunal can determine the admissibility, relevance, materiality, and weight of any evidence.
The arbitral tribunal has the discretion to order that any documentary evidence shall be accompanied by a translation into the language(s) that have been agreed upon by the parties or have been determined by the arbitral tribunal.
Subject to the agreement of the parties, arbitral proceedings in relevance to a particular dispute shall start on the date on which a request for a concerning dispute to be referred to an arbitral tribunal is received by the respondent.
Within a stipulated time, agreed upon by the parties to the arbitration or determined by the tribunal, the claimant shall present the facts in writing supporting his claim, including the points at issue (something similar to what the plaintiff presented in court as per CPC, 1908) and relief or remedy sought. The respondent shall present a document containing the facts in his defence in respect of the claims (something similar to the written statement presented in court as per CPC, 1908).
The parties may submit all documents or evidence they consider relevant to support their claim or defence.
During the course of arbitral proceedings, the respondent may also submit a counterclaim in support of his case or he may plead set-off. Parties may amend or supplement pleadings, subject to certain conditions. The statement of claim or defence shall be submitted to the arbitral tribunal within six months from the date of appointment of the arbitral tribunal.
The arbitral tribunal shall decide whether to hold an oral hearing for the submission of evidence, for oral argument, or whether the proceeding shall be based on the documents.
The arbitral tribunal shall not grant any adjournment without sufficient cause and, at discretion, may impose costs on parties seeking adjournment without showing sufficient reason.
The parties shall be given advance notice of hearing being conducted or meeting of the arbitral tribunal for the inspection of documentary evidence, goods, or any other assets. Every material, document, evidence, information supplied, or application presented before the tribunal shall be communicated to another party.
Everything on which the arbitral tribunal relies to make the decision shall be communicated to all parties.
If the claimant fails to present his statement as per the provision laid down in Section 23(1), then the arbitral tribunal shall terminate the proceedings, but if the respondent fails to present his side of defence as per the above stated provision in paragraph, then the tribunal shall continue the proceedings, considering such failure as admission of allegations in the statement of claim.
The arbitral tribunal may appoint one or more subject-matter experts to report to it on specific issues to be determined by the tribunal.
It may direct any party to provide any material about the matter in issue.
It may also direct the expert witness to be present at oral hearings so that relevant questions may be put to them to conclude.
The arbitral tribunal or any party with the approval of the arbitral tribunal may apply to the court to seek assistance in taking evidence. The court may make orders to issue the same processes as it generally issues in a trial of suits before it.
Laws/rules applicable to proceedings
If the place of arbitration is situated in India, then, other than international commercial arbitration, all other proceedings are governed by laws in force in India for the time being. In international commercial arbitration, the tribunal shall decide the dispute in accordance with the laws that have been explicitly agreed upon by the parties to the contract.
Forms and contents of arbitral award
As per provisions laid down in Section 31 of the Arbitration and Conciliation Act of 1996, any arbitral award shall necessarily be in writing and shall be signed by all the panellists of the tribunal. If the signature of any arbitral panellist is omitted for any reason, then such reason shall be recorded in writing. The arbitral award shall state the reasoning on which it is based. The arbitral award shall also contain the place in which it is made. After the arbitral award is concluded, a signed copy of it shall be handed over to each party. If the arbitral award is for the payment of money, then it shall contain the amount, along with interest and rates, and the period for which it is to be paid and during which it has to be paid.
The cost of arbitration shall be fixed by the arbitral tribunal according to the provisions laid down in Section 31A of the Arbitration and Conciliation Act, 1996.
Remedy against faulty arbitral award
A remedy against an arbitral award that a party feels is faulty may be sought by applying for setting aside the award in Section 34 of the Arbitration and Conciliation Act, 1996. There are some grounds given in Section 34 to set aside the award:
A party making the application shall establish, based on the record of the arbitral tribunal, that the other party was under some kind of incapacity;
The arbitration agreement was not valid under the law applicable to the proceedings;
The arbitration tribunal was not appointed by the laws applicable, or the party making the application was not given proper notice of such appointment;
The arbitral award contains judgement on a matter outside the scope of the Submission to arbitration;
The matter under arbitration is not capable of getting adjudicated by arbitration under the law for the time being in force; and
The arbitral award is in contravention of the public policy of India.
Enforceability and finality of award
Subject to the provisions laid down in Part 1 of the Arbitration and Conciliation Act, 1996, an arbitral award shall be final and binding on the parties to the arbitration.
If the time for applying to set aside an arbitral award under Section 34 of the Arbitration Act has lapsed, then such an award shall be enforced as per the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court. Even if such an application to set aside the award has been filed, such an application does not make the award ineligible to be enforced without the court granting an order to stay the execution of the arbitral award as per the provisions of a separate application made for that purpose.
Upon filing the stay application, the court may, at its discretion, grant stay on the operation of the concerned arbitral award.
Appeals
According to Section 37 of the Arbitration and Conciliation Act, 1996, an appeal shall lie to the court authorised to entertain appeals from the court passing the said order or decree in cases where the subordinate court refuses to refer the parties to arbitration under Section 8 of the act, grants or refuses to grant any interim relief to parties under Sections 9 and 17, sets aside or refuses to set aside the arbitral award as per Section 34, in jurisdiction related issues.
No second appeal is allowed from orders passed in appeals under Section 37 of the Arbitration and Conciliation Act, 1996 but there is no bar on appeal to the Supreme Court of India.
Foreign awards
Part II of the Arbitration and Conciliation Act, 1996, talks about foreign awards. Foreign awards in this part are defined as awards on disputes between individuals arising out of legal relationships, whether contractual or not and considered commercial under the law in force in India.
Any foreign award would be enforceable as per Indian laws and compulsorily be treated as binding in the whole territory of India on all the relevant parties to the arbitration. To enforce a foreign award, the party shall produce, along with the application, the original award or a copy of the original award certified as per the laws of the country in which it was passed, the original arbitration agreement or a certified copy of the same and other evidence as may be necessary to prove the arbitration agreement and award.
Conclusion
Arbitration has lots of scope as it is time saving, cost-saving and convenient for the entity that prefers it as a dispute resolution mechanism. More and more arbitration is happening around the globe and parties prefer arbitration as it is less technical in comparison to litigation. From start to finish, it’s a quick process so parties, without being engaged in a dispute for a long time, can focus on business activities.
Arbitration is a confidential process that remains intact unless an appeal is made against an arbitral order. Unlike court proceedings, in arbitration, parties have more control over the proceedings. Arbitration, as it is a time-bound process, is preferred over litigation.
As a career, arbitration has just started to grow as a choice and in the future, more and more people will choose arbitration law as a career field.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
In this article, the objective is to introduce the importance of a Uniform Civil Code (UCC) in protecting the interests of women belonging to the diverse religious communities residing in India in matters pertaining to the right of inheritance and succession. The current personal laws are gender-biassed and patriarchal and do not consider women worthy of an equal share of immovable property. The Apex Court has often emphasised the feasibility of implementing a uniform code for everyone, which is also backed by the spirit of the Indian Constitution, in order to eliminate the current gender imbalances.
What is Uniform Civil Code
There has been an increasing uproar regarding the Uniform Civil Code (UCC)- a common personal code for all that would replace the religious personal laws of various communities in India that surround the domains of marriage, divorce, adoption, maintenance, succession, and the right to inheritance. In recent news, the Law Commission of India has reopened talks regarding UCC, understanding the growing significance of the subject and its impact on various stakeholders at large. Thus, the 22nd Law Commission of India has decided to solicit the views and ideas of the public at large and recognised religious organisations about the Uniform Civil Code. Just after this, Prime Minister Narendra Modi made a pitch for the Uniform Civil Code (UCC) and hit out at the opposition parties for inciting minority communities against it. After Ram Mandir’s construction and abrogation of Article 370, UCC is the BJP’s third major poll promise. Throughout the media, an exchange of comments and retaliatory remarks from the opposition and ruling government have been seen regarding UCC, along with the concerns raised by the tribal regions of the country.
Keeping aside politics for a moment, there is a growing need of the hour to consider whether the UCC, which speaks of providing a common law that would govern the myriad religious customs and, most importantly, its impact on the inheritance laws of various communities, could be of any relief to the female members of any given family. Property like land, a home, etc. gives a person a sense of security and is considered to be a substantial asset that increases in value over time and is handed on through inheritance to the next generation. Throughout the realm of personal laws, women across communities have been denied their rightful share of property. The purpose of this paper is to forward the notion that, if adopted, UCC would ensure that both sexes are equally entitled to inheritance. We will shed light on the gender disparity in the current personal laws, the evolution of the code and the significant Supreme Court decisions that place emphasis on the adoption of a single civil code.
UCC and the ‘rigid’ personal laws
The primary goal of the UCC is to replace the existing system of personal laws and to create uniformity in the applicability of civil laws. Many of the existing personal laws in our country are inherently patriarchal in nature and are gender discriminatory in the sense that women are not entitled to a fair share of their share when it comes to inheritance. From times immemorial, the framing of laws has been such that it is exclusive prerogative of men, which they used to their advantage and extracted unquestioned subservience from women. Consider the Hindu Joint Family (HJF), where property is jointly owned by the family and each member has some claim to it. The Hindu Succession Act of 1956, codifies the prevailing law of inheritance for HJFs. Originally, only the male coparceners up to the third generation were considered the ‘legal heirs’ to the joint family property and daughters were disregarded. The rationale being- “Upon marriage, a daughter ceases to belong to the father’s joint family and becomes part of her husband’s joint family as his wife.” Under classical law, no female could be a coparcener and consequently, the owner of the coparcenary property and her rights over the joint family property were therefore reduced to the right to maintenance. The 2005 revision to Section 6 of HSA legislation, which accorded girls coparcenery rights to joint family property equal to those of a son, ended this gender discrimination. The same was reaffirmed in the historic decision of Vineeta Sharma vs. Rakesh Sharma (2020), where it was held by the Supreme Court that “there is no dispute with the proposition that a coparcenary right accrued to males under the prevalent law by birth or adoption; in the same manner a right is accrued by birth to daughters under the provisions of Section 6, the claim based on birth is distinguishable and is different from modes of succession.”
One of the primary issues with the HSA is that only daughters have become coparceners (either married or unmarried), so only “partially” granting gender equality with regard to inheritance. What about the other female members of the family, like the mother and daughter-in-law? Their right to inheritance is nowhere mentioned in the Act unless either of them becomes a ‘widow’. The 2005 Amendment Act has nothing in store for female heirs who enter the family through marriage and are such Class I female heirs’ shares have dwindled as the available property of the male Hindu is now divided between the daughters and sons.
Now, if we look at the Muslim Sharia laws and their practise of inheritance, the gender bias becomes more prominent. The Shia and Sunni religions have various kinds of heirs where partition is done in accordance with Quranic principles; however, Muslims do not subscribe to this idea. There are several loopholes through which children, wife and other family members can be denied their justified property rights. Under the Ithna- Ashari law of Shia Muslims, a childless widow is not entitled to inherit immovable property, such as the land of her husband, whereas on the death of a woman, the childless husband does not suffer from such a disability. Due to the uncodified nature of these personal laws and their inherent practise throughout the community, nothing substantial has been done to alleviate the condition of Muslim women. A similar situation for Christians is seen under the Indian Succession Act of 1925. Section 33 of the Act talks about devolution of property when an intestate has left a widow; clauses (a) and (b) clearly put a great limit on her share of the property in the presence of lineal descendants and kindred of the late husband. Therefore, hypothetically speaking, it could be that any far-fetched distant relative of the primary family that has nothing to do with them could rightfully ask for a share. The widow only then gets the full property of her husband when both kindred and lineal descendants are absent.
It becomes fairly clear to us that the present personal laws are arbitrary in the sense that all of them are patriarchal in nature with zero disregard for the female members of the family. The gender gap would be eliminated, and all family members would have equal access to inheritance and property, thanks to the necessity of a uniform civil code. In the next section, we shall see what the Supreme Court has to say in this area.
The Supreme Court and UCC implementation
In our Constitution, there is an Article 44 that states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Ever since this, many debates have been seen in the Constituent Assembly after independence. While only a few, like Dr. B.R. Ambedkar, supported the UCC, many were against this code for being violative of the secular nature of the country and not being considerate of minorities like the tribal communities who follow a matrilineal inheritance. Finally, the members added UCC as one of the Directive Principles of State Policy, hoping that the country would one day implement UCC in matters of personal law. But it has been many years since UCC found mention in DPSP yet no hopes of its implementation have been seen in India apart from Goa and the recent talks of it being showcased in the state of Uttarakhand. Highlighting this aspect, the Supreme Court on Friday frowned on the failure of governments to heed Article 44 of the Constitution to promulgate a UCC for the entire country, despite it being 63 years since the codification of Hindu law in 1956. In various instances, the SC has stressed the implementation of the UCC. In the case of Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (1985), the SC lamented the fact that the state is currently doing nothing for the framing of a common civil code for the country. It reiterated that- “a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”
Additionally, in Smt. Sarla Mudgal, President, … vs. Union of India & Ors. (1995), where the husband converted to Islam in order to marry a second time and was penalised for bigamy, the Supreme Court stated that Article 44 is based on the concept that there is no necessary connection between religion and personal laws in civilised society. With the codification of Hindu laws under which a substantial Indian population is considered, why is there a delay in the introduction of a UCC that would clearly benefit the citizens of the territory? is an open question thrown by the SC. Yet again, in Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira and Anr. (2019), which dealt with the properties of Goan domicile situated outside Goa and the Portuguese Civil Code, 1867, the SC, while praising Goa as a shining example of UCC applicable to all regardless of religion, indicated the state’s inactivity for UCC implementation throughout the territories of India.
Inheritance of immovable property remains deeply gender unequal, especially in practise but also in law; removing gender anomalies within existing personal laws is quite feasible. Once the UCC is implemented, it would drastically affect the inheritance and succession laws of various communities, providing an even ground where women have equal access to property, which, in the light of the views of the Supreme Court, would be appreciated as it reduces gender discrimination. A modern UCC will inculcate the best practises from all religions and create a non-biased and equality driven form of personal law that concurs with the spirit of the Constitution. Inheritance laws, which currently vary across religious communities, would be unified under the UCC; this would foster a sense of social cohesion.
Is UCC part of the Indian Constitution
Yes, the UCC has always been a part of the Indian Constitution. Part 4 of the Indian Constitution states that “the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” This clearly denotes that the framers of the Constitution always had the notion of a uniform set of laws for every religion and to remove the personnel laws with regard to inheritance, adoption, marriage and divorce because personnel laws often lead to ideological conflicts. UCC is a part of DPSP, which can’t be enforced in court but is foundational for the country’s proper governance.
Suggestions
Suggestions for the implementation of UCC are:
Consulting people of every religion: The makers of the policy must consult with the people of every religion, their legal experts/scholars. Taking diverse perspectives is crucial before the implementation of the UCC to properly craft each and every provision that respects cultural and religious diversity.
Gender equality: The UCC must make gender neutral laws to promote gender equality and also protect the rights of women. Gender centric laws must be abolished from personnel as well as common laws.
Partial implementation: The UCC must be brought about in phases; first, the makers must start where consensus is more easily achievable. This approach should be staged rather than bringing about the changes altogether.
Public awareness camps: Awareness programmes must be launched to educate people and make them understand the objectives and benefits of the UCC. Talking to the public and addressing their questions and misunderstandings is a vital factor in gaining public support.
Considering the international perspective: Researching and evaluating the outcomes of other nations that have implemented similar reforms.Learning from other countries and addressing the potential problems and threats is important before implementing UCC in India.
Conclusion
At present, debates circling around UCC have been immensely growing, with the emphasis that it would break the diverse culture of our nation, which the code does not intend to do. In essence, the UCC would provide us with a common framework for how personal laws should operate where citizens are still free to practise their religion. It would streamline the process of legal disputes and provide a codified version of the law for communities that did not have access to it earlier. Most importantly, in matters pertaining to inheritance, it would guarantee equality for all genders and have a reforming tendency towards the patriarchal aspect that various personal laws have.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Shivani. A. This article deals with the various provisions on the Tamil Nadu Apartment Ownership Act, 2022. It also sheds light on the history, objectives, important definitions, rights of the apartment owners, penalties, among other things. This article consists of an in-depth analysis of the Tamil Nadu Apartment Ownership Act, 2022.
It has been published by Rachit Garg.
Table of Contents
Introduction
In today’s era, when the apartment culture is prevalent throughout India, there are many problems faced by apartment owners. For instance, there are conflicts between the owners and the builders regarding the ownership of common areas and also regarding the authority that needs to be approached in order to resolve the conflicts between the owners. In order to provide an effective solution to all such problems faced by the people of Tamil Nadu, the Tamil Nadu Apartment Ownership Act, 2022, hereinafter referred to as the ‘Act’ was brought into effect by the government of Tamil Nadu.
The Tamil Nadu Apartment Ownership Act, 2022, is a new law that is enacted in order to protect the interests of apartment owners and to improve the administration and issue of ownership of common areas and facilities. On 15th December 2022, President Draupadi Murmu gave her assent in order to repeal and re-enact the Tamil Nadu Apartment Ownership Act, 1994.
History of Tamil Nadu Apartment Ownership Act, 2022
The people living in the urban areas of the country, especially in Madras, faced an acute shortage of land for housing purposes. This led to an enormous increase in the price of land, which could not be afforded by lower and middle income groups. Therefore, the need to construct multi-story houses for people of these groups became a necessity, and such need was also felt by the government. But the people dwelling in such settlements faced a problem, namely, the individual buyers couldn’t secure any effective mortgageable title to such apartments so as to enable them to raise loans under any scheme or from the financial institutions.
In order to provide solutions to the aforementioned problems and to make a uniform law regarding the ownership of undivided interest vested in the common areas and facilities as heritable and transferable immovable property, the state government introduced the “Tamil Nadu Apartment Ownership Bill” in the Legislative Assembly during the year 1981. This Bill was referred to a Joint Select Legislative Assembly, but it lapsed due to the dissolution of the State Legislative Assembly in November 1984. Hence, this Bill was reintroduced by the government with suitable modifications in 1994. This Bill was passed and was later enacted as the Tamil Nadu Apartment Ownership Act 1994.
One of the biggest issues with the Act enacted in 1994 was the difficulty in registering associations under the Act. There was no authority constituted for registration, and hence, the associations were being formed under the Tamil Nadu Co-operative Societies Act, 1961, or the Tamil Nadu Societies Registration Act, 1975. Also, another problem with the Act was the issue regarding the registration of the deed. Once a sale deed for the apartment and the proportionate undivided share of the land were registered in the owner’s name, he became the absolute owner of the property. Under Section 10(2) of the 1994 Act, the deed has to be filed with the competent authority, but no authority was notified. Hence, in order to rectify these problems, the Tamil Nadu Apartment Ownership Act, 2022, was finally brought into force in December 2022.
Purpose and objectives of Tamil Nadu Apartment Ownership Act, 2022
The main purpose of this Act is to eliminate the limitations present in the Tamil Nadu Ownership Act 1994 and to offer practical solutions to the existing problems pertaining to the said Act. Section 1 of the Act states that the Act applies to the entire state of Tamil Nadu and shall come into force on such date as the State Government, by notification, declares.
Also, Section 23 of the Act states that this Act is applicable to:
All the owners of the apartment,
Tenants of the apartment owners,
Employees of the apartment owners or their tenants,
Any other person who uses the property or any part of it to which this Act or even its by-laws or rules apply also comes under this Act.
Also, the apartment owners are supposed to follow all agreements, decisions, and determinations made by the association as per the provisions given in this Act or the bylaws.
Important definitions
Section 2 of the Act consists of various definitions, which are essential in order to understand the meaning of various terms in the same manner as intended by the legislature when drafting this Act. Some of the essential terms whose definition is important for understanding the Act are given below.
Apartment
The word ‘apartment’ is defined under Section 2(a) of the Act. This section, first of all, mentions the essentials for a property to be termed an ‘apartment’ and, secondly, discusses various other words that can be used to denote the term ‘apartment’. The essentials required to consider a property as an apartment are:
It should be a separate and self-contained part of any property.
It should include one or more rooms or enclosed spaces.
The rooms can be located on one or more floors, or any part thereof, in a building.
It can be used or intended to be used either for residential or commercial purposes.
The various words that can be used instead of the term ‘apartment’ are block, chamber, dwelling unit, flat, office, showroom, shop, premises, suite, tenement, unit, etc.
Carpet area
The term ‘carpet area’ has been defined under Section 2(h) of the Act. It states that the term ‘carpet area’ literally refers to the net usable floor area of an apartment and also the area covered by the internal partition walls of the apartment. However, some of the areas are excluded from the definition of the term. They are:
the area covered by the external walls,
areas under service shafts,
verandah area and an open terrace area.
Common areas and facilities
Section 2(i) of the Act defines the term ‘common areas and facilities’. The common areas and facilities refer to those areas of a property that do not belong to a single person and whose ownership is shared among all the owners of the apartment.
It includes common apparatus used by all the owners, like:
Staircase
Lifts
Emergency/ fire exits
Common entry or exits
Parks and play areas
Basement and common storage areas
Parking space
The places which have been designated for the accommodation of persons who have been employed for the management of the property like watchmen, ward staff or other service personnel etc.
It also includes the common services used by the owners like:
Electricity
Gas
Water and sanitation
Air-conditioning
Fans, compressors, ducts, etc.
Even though the Act has defined the meaning of the term ‘common area’, it is silent regarding the ownership of this area. This led to a conflict between the flat owners and the builder of the flat. It was held by the Madras High Court in the case of Abbotsbury Owners’ Association v. The Member Secretary (2014), “When a land is shown as a common area and is developed as a common amenity, it belongs to the flat owners of the building.”
Rights of owners
The term ‘apartment owners’ is defined under Section 2(c) of the Act. This section specifies two kinds of people who are considered to be ‘apartment owners’. The term includes:
a person owning an apartment and
a person who has taken an apartment on lease for a period of not less than thirty years.
The owners of the apartment have the following rights:
Right to exclusive ownership and possession of an apartment [Section 3(1)]
Every apartment owner has the right to exclusive ownership and possession of his apartment. An apartment, along with its undivided interest in the common areas and facilities, is considered to be an immovable property that is heritable and transferable. However, this Act doesn’t allow the ownership of the common areas and facilities of any apartment to be diluted or partitioned in any sort of circumstance.
Right to an undivided interest in common areas and facilities [Section 8(1)]
Every apartment owner has the same rights and interests with respect to the ownership and usage of common areas and facilities. However, it should be in proportion to the carpet area of his apartment to that of the total carpet area of the project. However, the undivided interest in the common areas and facilities shall not be separated from the apartment, or partitioned or divided under any circumstance.
However, all apartment owners are supposed to use these common areas for the purposes for which they are entitled without encroaching upon the rights of the other apartment owners. The work relating to the maintenance, repair, and replacement of the common areas and facilities will be carried out in accordance with the bylaws.
Formation of an association of apartment owners
Section 7 of the Act deals with the formation of an association of apartment owners. But, before understanding the formation of the association, it is important to understand the meaning of the term ‘association’. Section 2(e) of the Act defines the term ‘association’. It states that the term ‘association’ consists of apartment owners, who are competent to contract in their own name, and also that the association must be formed in accordance with the bylaws.
Also, Section 6 of the Act lists the contents that should be present in the by-laws. As per this section, the bylaws shall consist of the manner in which the association is to be formed, the election of the board members, the number of members constituting the board, the appointment and removal of members from the board, the powers and duties of the board, etc. After the bylaws are ready, they should be submitted as soon as possible to the competent authority, who shall register them.
Section 7 of the Act talks about the formation of an association of apartment owners. It states that an association of apartment owners can be formed by registering the bye-laws with the competent authority. Also, the association should abide by the bylaws so framed. Also, in the case of buildings that were in existence on the date of the commencement of this Act and have a single association for that building, such association will be considered as the association of that building.
In the case of Cosmo Towers Owners’ Association vs. Chennai Metropolitan Water Supply and Sewerage Board and Ors. (2009), the Petitioner AOA (Association of Apartment Owners) formed under the Act was not letting some apartment owners be a part of the AOA, Hon’ble Madras High Court while deciding the issue held that the “contention of the learned counsel for the petitioner is that the bylaws of the petitioner Association give discretion to the association to permit or not to permit any apartment owner to become a member, cannot be accepted as the same is contrary to the Act, rules and model by-laws and in view of the fact that only one society/association can be formed for an apartment and every apartment owner automatically becomes a member of that Society/association. Thus, the action of the petitioner association in not permitting respondents 3 and 4 to become members, who are also apartment owners of “Cosmo Towers,” is illegal and a statutory violation.”
Rights of association
Section 17 of the Act deals with the various rights of the association. As per this section, the association has the right to access any apartment during reasonable hours for maintenance, repair, or replacement of any of the facilities that are present there. It also has the right to make emergency repairs to prevent any damage to the common areas or facilities or to any other apartments.
Formation of a federation
Section 10 of the Act deals with the formation of a federation. But, before proceeding with the process of the formation of a federation, it is necessary to understand the meaning of the term ‘federation’. Section 2(o) of the Act states that ‘federation’ means the body formed by two or more societies or associations as per bylaws.
As per Section 10 of the Act, if a building has more than one project and has two or more associations of owners or societies, then such societies and associations shall come together to form a federation. In the case of a property consisting of more than one project, and there are two or more societies or associations on the property, then such societies or associations can come together to form a federation in order to maintain and manage the common areas and facilities. However, the federation should perform its functions as per the bylaws.
The federation should declare which parts of the apartment shall be considered common areas and shall also submit a declaration along with the prescribed fee and in the manner prescribed to the competent authority. The competent authority shall then conduct an inquiry to check if the activities and decisions of the federation were in line with the bylaws, and if they are satisfied, the authority will make an endorsement on the declaration and put its seal and signature on it. The authority will then return the declaration to the federation and retain a copy of it for record.
If the competent authority, on examination, finds that the declaration of the federation is against the Act, against the rules made, or against the bye-laws, it should return the declaration to the federation in order to rectify the defects in it and also issue directions to the federation to resubmit the same after the required changes and resubmit the same within a period of 30 days.
Penalties
Penalty for Non-Compliance with bye-laws [Section 9]
Each apartment owner shall comply with the conditions and restrictions set forth in the bylaws. When an apartment owner doesn’t comply with any of the bylaws, action can be taken against him by the association or the apartment owner in the form of recovery of the sums due, damages or injunctive relief, or both.
Penalty [Section 24]
If rules, orders, or directions issued under the Act or under the bylaws are not followed by the association of apartment owners, competent authorities or any other person, he shall be liable, on conviction, to pay a fine that may extend to one lakh rupees. In case, the person continues to contravene the rules, he shall be liable to pay an additional fine, which may extend to five hundred rupees for every day during which such contravention continues after the conviction.
Conclusion
The main object of enacting the Tamil Nadu Apartment Ownership Act, 2022, is to re-enact the Tamil Nadu Apartment Ownership Act 1994 and to provide effective solutions to the lacunae which were there in the previous Act. The new Act does solve some of the problems regarding the ownership of common areas and facilities, and exhaustive provisions regarding the same have been provided in the Act and have also been explained in the article. However, the Act fails to solve one of the major problems, i.e., constituting an authority exclusively for dealing with issues related to the Act. Though the Act mentions that a ‘competent authority’ shall be established, there is no information regarding who exactly this competent authority is, and the same has not been specified yet. The Act came into effect in December 2022, yet there is no information regarding the competent authority even after the passage of a year. Hence, it is high time that an authority be designated for the same. With the regulation of apartment living under the Apartment Ownership Act, it is time that the residents realise the usefulness of living together, shed their parochial attitude, and work for the betterment of living conditions for all.
Frequently Asked Questions (FAQs)
Is there any remedy available in the Act for people who are not satisfied with the decision of the competent authority?
If a person is not satisfied with the decision given by the competent authority, he may file an appeal against the order of the competent authority under sub-section (4) of section 4, sub-section (2) of section 5, and sub-section (4) of section 10 to such appellate authority which is specified by the government.
This appeal has to be filed by the person within a period of thirty days from the date on which the order is received by him. It is left to the discretion of the government to appoint as many appellate authorities as they feel like. However, the appellate authority has been conferred a discretionary power under the Act to admit any appeal after the period of 30 days if it is satisfied that the appellant had a sufficient cause that prevented him from filing the application for appeal on time.
Is the Act applicable to any state other than Tamil Nadu?
No, as per Section 1(2) of the Act, the Act extends to the entire state of Tamil Nadu. Hence, it is not applicable to any other state.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Shashank Singh Rathor. This article is all about the layoffs covered under the Industrial Disputes Act, 1947, and the Industrial Relations Code, 2020, which assure certain rights to the workmen and employers subject to certain restrictions.
It has been published by Rachit Garg.
Table of Contents
Introduction
Have you ever heard of the term ‘Lay Off’’? Imagine you get up early in the morning to get ready for your office but unfortunately receive an email notification that says that the company decided to lay you off. What will your reaction be in the first place? Recently, many of the national and multinational companies laid off large chunks of people. According to a report by the Economic Times-Tech, Microsoft, Amazon, Meta, Dell, HP, Twitter, etc., are some of the famous names that laid off their employees in the recent past. As per the data available on Layoffs.fyi, a real-time layoff tracking platform, in 2022, globally, around 1,64,969 employees had been laid off. Aren’t the numbers shocking? But the more shocking thing is that these people were laid off on short notice. So, now the first question that pops up in mind is, how can these national and multinational companies do this to these people without facing any legal consequences? And now, what will happen to all these people? And how will they survive without getting paid for the next few months? Also, for the period when they will be jobless?
Let all your queries get resolved through this article, and let’s understand the Indian perspective on laying off an employee.
Layoff under the Industrial Disputes Act, 1947
Layoff is defined under Section 2(kkk) of the Industrial Disputes Act, 1947 (“Act”), which says that a workman is said to be laid-off when an employer fails, refuses or is unable to provide employment to the workman whose name is mentioned in the muster roll of an industrial establishment due to reasons beyond the employer’s control, such as insufficiency of coal, power or raw material, the accumulation of stocks, the breakdown of machinery, a natural calamity or any other same or correlated reason. That workman has not been retrenched due to the above-stated reasons.
In simple terms, a layoff is the incapacity of the employer to provide employment to the employee for a temporary period so that the employer can keep his business operational even in a time of scarcity. If the employer ends up shutting down the industrial facility and announces the lock-out of the industrial establishment, then the concept of layoff becomes irrelevant. Layoffs are not permanent, and they do not end the contractual relationship between the employer and employee. Layoff does not mean full termination of the employees; it means that they will not receive their full wages during that period.
In the case of Priya Laxmi Mills Ltd v. Mazdoor Mahajan Mandal (1976), the term ‘Lay Off’ is interpreted in accordance with the dictionary “in its etymological sense” as a period in which the workers are temporarily discharged from doing their work. Thereafter, the Apex Court in Workmen of Firestone Tyre and Rubber Co. of India Ltd v. Mgmt (1973)ruled that ‘Lay Off’ is neither a full dismissal of a workman nor the temporary suspension of the contractual relation between the employer and employee; rather, it is constituted as temporary unemployment for the workmen. The Supreme Court further added that ‘Lay Off’ means the failure, unwillingness, or inability of the employer to provide employment to the workmen due to the reasons listed in the definition under the Section. The definition under the Act is explicit in nature and distinct from the Western understanding of layoff; there is no need to resort to other definitions.
Essential Conditions for layoffs
There are certain essential conditions that must be taken into account before laying off workers. The conditions are as follows:
The employer’s inability, failure, or refusal to provide the work to the workmen.
Such inability, failure, or refusal must be there due to the insufficiency of coal, power, raw materials, accumulation of stocks, breakdown of machinery, a natural calamity or any other relevant reason.
A workman who has been laid off or deprived of employment must be someone whose name is on the record of the muster roll of his industrial establishment.
The workmen must not have been retrenched from the work.
Failure, refusal, or inability
As per the definition provided in the Act, when the employer fails, refuses, or is unable to provide work due to the insufficiency of coal, power, raw materials, accumulation of stocks, breakdown of machinery or natural disaster, and any other situations that are beyond the control of the employer in his industrial establishment, the layoff done due to all these circumstances will be legally valid in itself. In a landmark judgement, Central India Spinning, Wearing and Manufacturing Co. Ltd., Nagpur v. State Industrial Court (1959), the Bombay High Court held that the key terms in the definition, i.e., “the failure, refusal, or inability of an employer” make it apparent that the unemployment caused to the workmen is irrespective of their action or inaction.
For any other reason
The expression ‘for any other reason’ that is in the definition under Section 2(kkk) of the Act must be interpreted as ejusdem generis. In a landmark judgement,Management of K. Estate v. Rajamanickam (1960), the Apex Court elaborated that ‘Any other reason’ as defined under Section 2(kkk) of the Act, must be similar to the reasons that are explicitly mentioned in the clause that are insufficiency of coal, power, raw materials, accumulation of stocks, breakdown of machinery or natural disaster. The common feature of all these reasons has to be something that is beyond the control of the employer, which led to the layoff of the workmen. Accordingly, the expression ‘for any other reason’ must have similar characteristics.
When are workmen considered laid off
As per the explanation attached to Section 2(kkk), the workman whose name is mentioned in the muster roll of the industrial establishment and is willing to work and is present during the normal working hours of the day for the specific purpose he has been allotted with, but he doesn’t get the work within the two hours of his presence at the workplace then such workman is deemed to be laid off for that day within the context of this clause.
If the workman, instead of being given employment at the start of the shift of any day, is asked to be present at the workplace in the second half of the shift for the purpose of work, then such workman is considered laid off only for one-half of that day.
Provided that if the workman has not been given work in any half of the day even after presenting himself at the workplace, then such workman is considered laid off for the whole of the day, and thereafter he shall be entitled to the full basic wages and dearness allowance for that part of the day.
Compensation to laid-off employees
Under the Industrial Disputes Act, 1947, there are provisions regarding compensation to the workman in certain circumstances that allow the workman to avail compensation from the employer, subject to some restrictions. The workman is allowed to take compensation from his employer if he has been laid off under the ambit of Section 2(kkk) of the Act, subject to certain conditions that need to be fulfilled. The conditions are as follows:
Industries permitted to layoff workmen without any compensation: Section 25A, Industrial Disputes Act, 1947
Section 25A of the Act lays down certain industry establishments to which the provisions related to the workmen’s compensation shall not apply. Those industrial establishments are as follows:
Industrial establishments in which, on average, less than 50 workmen were there on any day in the preceding calendar month.
Industrial establishments of such nature in which the work is done either seasonally or intermittently.
Industrial establishments that come under the ambit of Chapter V-B of the Industrial Disputes Act, 1947.
Section 25B of the Act, lays down the definition of continuous service. As per the Section, a workman is said to be in continuous service if he has completed at least one year with that particular industrial establishment without any interruption; only then will that workman be entitled to take the compensation. The interruption of the continuous service is not affected by any kind of authorised leave, sickness, accident, legal strike, lock-out or cessation of work due to the fault of workmen.
There are two exceptions provided therein in the Section where even if the workman is not in continuous service, he shall be considered to be in continuous service. They are as follows:
If the workman was employed for the preceding 12 months from the date on which the calculation is being made.
If the workman is employed in the mine for a period of 190 days or more, and in case of any other employment served for a period of 240 days.
As per the explanation attached to this Clause, the following days shall be taken into consideration to determine the number of days the workman worked for the employer:
The number of days during which the workman had been laid off under a standing order, agreement, this Act, or any other law relevant to the industrial establishment.
The number of days during which the workman was on paid leave.
The number of days during which the workman was on rest due to any temporary disability caused during his course of work at the job.
In the case of a female employee, the maximum number of days she spent on maternity leave was up to 12 weeks.
Conditions to comply with for getting Compensation: Section 25C, Industrial Disputes Act, 1947
According to, Section 25C of the Act, the workman who has been laid off is entitled to receive 50 percent of his total basic earnings and a dearness allowance for the duration of the layoff.
However, this compensation right given to the workman is subject to the following conditions:
The workman is not a badli or a casual worker. A badli worker is someone who has been hired in place of another worker whose name is borne on the muster roll of the industrial establishment. However, such a worker won’t be considered a badli worker if he completes the duration of one year with that particular industrial establishment.
Workman’s name must be on the muster roll of the industrial establishment.
The workman must have computed the duration of one year at that particular establishment as an employee.
In one of the landmark judgements, Veiyre v. Fernandes (1956), the question before the court was whether the law only confers the right to compensation to the employee and there is no right given to the employer to lay off the employee. The Bombay High Court ruled that the legislature, while making the law, intended to grant the right to employers to lay off employees, and there is no binding obligation on their part to keep employment and give full year’s wages to employees. Hence, the retrenchment of the employees after giving them layoffs and retrenchment compensation was held to be legitimate.
Conditions where a worker is not entitled to lay off compensation
Section 25E of the Act lays down certain circumstances where the workman is not entitled to receive any lay-off compensation from the employer; those conditions are as follows:
If the workman refuses to accept the alternate work given to him, provided that:
The alternate employment given to him is in the same establishment he was working in. Also, the alternate employment given to him is in the alternate establishment but under the same employer within a radius of 5 miles from the establishment where he was working before.
The new work assigned to the workman by the employer does not require any special skill set or previous experience in comparison to the work the workman can do. Provided that there will be no deduction in the wages, the workman will be entitled to the same wages he was getting in his previous employment for the employer.
If the workman does not present himself at the appointed time and workplace once a day.
The workman is not entitled to layoff compensation if he has been laid off due to a strike or slowdown in another part of the industrial establishment.
Duty of employer to maintain muster roll: Section 25D, Industrial Disputes Act, 1947
Section 25D of the Act, states that it is the duty of the employer to maintain a muster roll and keep a proper record of the workmen who present themselves during the working hours of the establishment. It is important to note that the workmen have to be present at the workplace during the working hours of the establishment; otherwise, they won’t be eligible to receive compensation. The employer should maintain the muster roll properly; otherwise, he cannot take the defence under Section 25E, for not providing compensation to the workmen.
Prohibition of lay off: Section 25M, Industrial Disputes Act, 1947
During the 1970s, there was a major lay-off which led to mass unemployment at that time. This led the government to introduce provisions prohibiting unhealthy lay-offs by employers. A new chapter, Chapter V-B was introduced in the Industrial Disputes Act, 1947, by the Industrial Disputes Amendment Act, 1976.
Section 25M of the Act puts certain restrictions on the employer while laying off the workman. It is important to note that these restrictions are only applicable to industries that have more than 100 workmen and do not operate seasonally. Moreover, the employer cannot lay off an employee whose name is mentioned in the establishment’s muster roll except when the cause of that layoff is a lack of power or a natural disaster. If the work is related to mining, then the cause can also be an explosion, fire, an excess of inflammable gas, or a flood.
As per Section 25M, the employer can lay off the employee after obtaining permission from the concerned government or the authority as specified by the government. The procedure for the same purpose is as follows:
The employer has to write an application to the concerned authority specified by the government or government itself, citing the reason for the lay-off of the workman and a copy of the application must be provided to the workman.
After obtaining the application, the concerned authority or government itself can inquire about and investigate such lay-off.
After such investigation, the order of the concerned authority or the government shall be communicated to the employer and the workmen being laid off.
Thereafter, the order of such concerned authority or the government shall be deemed conclusive and will be binding for a period of one year from the date of such order.
It is important to note that if the concerned authority or the government does not communicate its decision regarding lay-off within 60 days from the date of filing the application, then such an application for lay-off will be deemed granted. Moreover, the order of the concerned authority or the government can be referred to the tribunal for adjudication, or it can be reviewed by its own motion or through the application given by the employer or workman.
If the employer refuses to comply with the order given by the concerned authority or the government and lay-off his employees even after the refusal of the concerned authority or the government, then such non-adherence will be considered illegal, and the workman who is the victim of such a layoff will be entitled to the benefit provided in the law. However, a workman will not be considered laid off if the employer provides alternate employment for him.
In the landmark judgement, Papanasam Labour Union v. Madura Coats Ltd. (1995), the question before the division bench of the Apex Court was whether Section 25M is constitutionally sound or not? The Supreme Court, while upholding the constitutional validity of the Section, held that the basic objective of the Section is to avoid the hardship faced by workmen due to the unhealthy lay-off and to encourage the industrial amity. Further, the Apex Court specified that there is no requirement of taking prior approval in extreme cases, as mentioned under Sub-Section (3). For the purpose of avoiding illegal or unhealthy lay-offs and industrial peace, such a provision was held not to be unconstitutional and arbitrary in nature. The same view was adopted in the case of Ashok Kumar Jain v. State of Bihar (1995), it was held that the constitutional validity of the provision was already decided by the Supreme Court, and that is sound in itself.
Consequences of violation of law: Section 25Q, Industrial Disputes Act, 1947
Section 25Q of the Act lays down that when an employer violates the provisions mentioned under Section 25M in such circumstances, he will be held liable for the punishment under this Section 25Q, which is imprisonment, which may extend to one month, a fine, which may be extendable up to one thousand, or both.
Section 2(t) of the Industrial Relations Code, 2020, defines layoff, which is more or less similar to the definition that is provided under Section 2(kkk) of the Industrial Disputes Act, 1947. Section 2(t) of the Code states that layoff means the failure, refusal or inability of an employer, on account of the shortage of coal, power or raw materials or the accumulation of stocks or the break-down of machinery or a natural calamity or for any other connected reason, to give employment to a worker whose name is mentioned in the muster rolls of his industrial establishment and who has not been retrenched.
The Industrial Relations Code majorly deals with the by-laws related to layoffs and various other industrial laws as mentioned herein above. The Code in itself mentions that the aim of this code is to “consolidate and amend the laws relating to Trade Unions, conditions of employment in industrial establishments or undertakings, the investigation and settlement of industrial disputes, and matters connected therewith or incidental thereto.”
Critical analysis of the Industrial Relations Code, 2020
Chapters XI and X of the Code specifically deal with the laws related to layoffs, retrenchment and closure. Surprisingly, the makers of the Code made minimal changes in the laws when they had the opportunity to universalise the application of laws to every industrial establishment, so the rights of the employer and workman remain unharmed in every type of industrial establishment. However, the makers left the provisions the same as in the existing laws. The only major and troublesome change that has been amended is that the threshold limit for the applicability of the labour laws as per the Industrial Disputes Act, 1947, is increased from 100 or more workmen to 300 or more workmen. This means that the employers need not obtain prior approval from the concerned authority specified by the government or the government itself for layoffs, retrenchments, and closures if the employees in their particular industrial establishments are less than 300. The Central Government’s take was already defensive, regarding the official approval procedure as unnecessary. It explicitly maintained that the tedious procedure of obtaining official approval from the concerned authority specified by the government or the government itself adds to the losses and liabilities of the firms. Although the focus should have been to make the approval-taking procedure speedy and hassle-free. Easing the norms related to layoff, retrenchment, and closure may lead to the misuse of the law by the employer and ultimately the sufferer will be a workman.
Suggestions
The current laws, including the new Indian Relations Code, 2020, are efforts made to improve labour welfare, but there are still chances of improvement.
There are a few suggestions that can lead to the betterment of the laws pertaining to the layoff of the workman and safeguard the rights of vulnerable workmen against exploitation and unhealthy layoffs by employers. The suggestions are as follows:-
Firstly, the Parliament shall bring the necessary amendments to the present laws to protect the rights of the workmen irrespective of the type of industrial establishment they belong to, as the workmen of every type of establishment are vulnerable to exploitation by their employers.
The government must protect the workmen during the pandemic period from layoffs in the industries through timely economic and policy intervention.
Civil society groups and trade unions need to strengthen the workmen for timely compensation and reinstatement of workmen.
The agencies need to collect data regarding layoffs of workmen on a regular basis and in a definite time interval that will lead to more effective policymaking for the benefit of the vulnerable workman.
Last but not least, besides the industry-awarded compensation, the government should also produce more welfare schemes for laid-off and retrenched workmen to support themselves for the deficit of 50% wages to some extent.
Conclusion
It is very clear that every workman out there working in any industrial establishment is the backbone of it. Industrial establishments must not ignore their workmen just for the sake of profit and strictly avoid unhealthy layoffs just to gain a little more. Inter alia, the government should also bring the necessary amendments into force to protect the rights of workmen as there are still various loopholes in the current provisions of labour protection laws. Our country has one of the largest workforces in the world. As per the data provided by the Ministry of Education, Skill Development and Entrepreneurship, India has a population of more than 600 million people who are aged between 18 and 35, with almost 65% of people below the age of 35. As per the report, the demographic dividend of India is speculated to persist at least until 2055-56 and will peak around 2041, when the portion of the working-age population, i.e., the 20–59 age group, is expected to hit 59%, which is huge in itself. Considering the above-mentioned data, the government should better take care that the laws must be of such nature that won’t lead to the exploitation of workmen due to unhealthy lay-offs by the employer, and they must also ensure that the provisions pertaining to the labour laws provide equal protection to the employer and the workman.
Frequently Asked Questions (FAQs)
What is the difference between layoff and retrenchment?
The termination done due to the layoff is temporary, while in the case of retrenchment, the termination of the employee is permanent.
In case of a layoff, the workmen are appointed back after the layoff time period ends. On the other hand, in cases of retrenchment, the employment of the employee gets terminated with immediate effect; thereafter, there is no further relation between the employer and the employee.
What is the difference between layoff and lockout?
Lock-out is the act done by the employer to pressurise or coerce the labour, on the other hand, layoff is for trade reasons that are beyond the control of the employer.
Lock-out occurs due to the industrial dispute and continues during the period of dispute; on the other hand, layoff is done irrespective of any dispute between the employer and the workmen and is not concerned with the dispute with the workmen.
What is the difference between lockout and closure?
Lock-out is temporary; on the other hand, closure of the industrial establishment is permanent.
Lock-out is a condition generally used by an employer to pressurise or coerce the employee; on the other hand, closure is done due to heavy losses or trade reasons.
Lock-out generally occurs due to industrial disputes; on the other hand, in cases of closure, there need not be any dispute.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Anjali Yadav, pursuing a Diploma in US Corporate Law and Paralegal Studies from LawSikho and edited by Shashwat Kaushik. In this article, we are going to talk about the role of the article of association in company affairs, how it is different from a memorandum of association and the two doctrines given for the same.
It has been published by Rachit Garg.
Table of Contents
Introduction
According to Section 2(5) of the Companies Act, 2013, ‘article’ means an article of association of a company as originally framed or altered from time to time and applied in pursuance of any previous company law or of this Act.
Basically, an Article of Association is an important document of a company that tells about the rules, regulations and bye- laws according to which the company runs, how it will function in the future and the purpose for which the company is established. The Article of Association is not made only by keeping the present situation in mind but also the future expecting/necessary situations. A proper AOA document should be made with different paragraphs and consecutive numberings and must be signed by all the subscribers of the company.
Contents of articles
Anything contained in the Article of Association shall be in accordance with the Companies Act, 2013 and it must not conflict with the provisions of the Act. On the contrary, such a clause will become null and void or inoperative. This may contain :
Such regulations are deemed fit and expedient by the subscribers of the company.
Stipulations made between members and company and between members themselves
It cannot sanction anything that is prohibited by the act.
The company can pay dividends only out of profit, not otherwise.
Signed by all the subscribers.
Articles and memorandum
The memorandum states the purpose for which the company is established,while the article states the manner in which the company functions and its proceedings are disposed of. This is the main difference between the two.
Articles are subordinate to memorandum as a result, if there is any conflict between the two, the contents of the memorandum will prevail and the article must give way.
Some clauses of memorandum require authoritative sanction for their alteration, while the articles can be altered by a special resolution.
According to Bowen LJ, a memorandum contains fundamental conditions that include the benefit of creditors, public, and shareholders as well. But the article of association only deals with internal regulations of the company.
If a company does something contrary to the provisions of its memorandum, it becomes void and ratification shall not be allowed. But if the same happens with articles, this can be confirmed by the shareholders.
Effects of articles
Section 10 of the Companies Act says, “the memorandum and articles, once registered, will legally bind the company and its members to comply with their provisions.”
This means that once the memorandum or article is registered,it legally binds the company and its members, like signed agreements.
These effects may be as follows:
Binding on members regarding their relation with the company as the article constitutes a contract between each member and the company.
Binding on company pertaining to its relations with its members. It is the right of members that there should not be any breach of the article and it is the duty of the company to not breach the article.
Neither the company nor the members are bound to outsiders. There is no clause that constitutes a contract between the company and a third party. An outsider can be anyone who is not a member of the company but a member can be an outsider too.
How far the article is binding on members depends upon what is mentioned in the article.
Alteration of articles
A statutory power under Section 14 of the Companies Act is given to the company for altering its article and it cannot be cancelled by any contract.
The altered article will be binding on members in the same way as it was binding in the original article but this cannot give the alteration a retrospective effect. The power under Section 14 is absolute, with two conditions that the alteration must be in accordance with the Act and that it must also be subject to the conditions contained in the memorandum. Proviso to Section 14(1) says alteration pertaining to the conversion of a public company into a private company will take place only after it is approved by the tribunal. Any changes to the memorandum or articles must be noted in all copies. Failure to do so may result in a penalty of ₹1000 per copy issued without alteration. Any alteration cannot be such that it increases the liability of any member without his consent in writing, e.g. purchase of more shares, etc. The alterations must not be constituted in such a way that they are committing fraud against minorities.
Constructive notice
A constructive notice is also known as a fabricated notice. The article is registered with the Registrar of Companies and the offices of the same are public offices, so the document, i.e., the article of association, is a public document. So, before dealing with the company, the party can inspect the document, article and memorandum, as they are open to all. But whether the person has read the document or not, he will be in the same position as if he had read it, as it is a public document accessible to all. This is known as constructive notice or presumed notice.
By inspecting these documents, the person can know who the director, manager and secretaries of the company are for the time being.
Doctrine of indoor management
Indoor management is just opposite to that of constructive notice or we can say it is an exception to the doctrine of constructive notice. The constructive notice is for the protection of the company from outsiders, while the indoor management doctrine is for the protection of outsiders from the company.
The doctrine of indoor management states that an outsider who acts in good faith and enters into a transaction with a company can presume that all internal procedures have been followed. This provides protection for the outsider. However, it is important for the outsider to be familiar with the company’s memorandum and articles of association to seek remedies if needed.
Exceptions to the doctrine of indoor management
Knowledge of Irregularities
If an outsider is aware of an irregularity in a company’s internal management, they cannot seek remedy under the doctrine of indoor management. This also applies if the outsider is part of the internal procedure. In the case of T.R. Pratt (Bombay) Ltd. vs. E.D. Sassoon and Co. Ltd. and Anr. (1936), the lender’s awareness of the irregularity made the transaction non-binding.
Suspicion of irregularities
If an outsider could have discovered irregularities in a company’s management through proper inquiries, they could not seek remedy under the doctrine of indoor management. The doctrine does not apply when the circumstances surrounding the contract are suspicious and invite inquiry, but the outsider fails to make efficient inquiries. In the case of Anand Bihari Lal vs. Dinshaw and Co. (1945), the Bombay High Court ruled that the transfer of the company’s property by the accountant was void since it was beyond their authority. The plaintiff should have checked the power of attorney executed in favour of the accountant by the company.
Forgery
When an outsider relies on a forged document from a company, the doctrine of indoor management does not apply. The company is not liable for the forgeries committed by its officers. In the case of Ruben and Ladenberg vs. Great Fingall Consolidated and Co. (1906), the United Kingdom House of Lords held that the doctrine does not cover forgery. Outsiders dealing with companies are not obligated to inquire about internal management and are not affected by unknown irregularities.
Representation through Articles
This exception is the most confusing kind of exception. In the case of Lakshmi Ratan Cotton Mills and Co. … vs. J.K. Jute Mills Co. Ltd. (1956), Director B borrowed money based on the authority granted in the Articles of Association, even without a specific resolution to delegate the borrowing power. The Allahabad High Court held that the company was bound by the loan.
Acts outside apparent authority
If an officer of a company acts beyond their apparent authority, the company would not be held responsible for any defaults caused by the officer. The outsider can only sue the company under the doctrine of indoor management if the officer has delegated power. In the case of Kreditbank Cassel vs. Schenkers Ltd. (1927), the Court of Appeal ruled that the company wasn’t bound when the branch manager endorsed bills of exchange without proper authority. However, if the officer commits fraud under their apparent authority, the company will be held liable for the fraudulent act.
Conclusion
An article of association is an important document of a company that tells about the rules , regulations and bye-laws of a company . Tables of different model forms of different articles are provided under Schedule 1 of the Companies Act, 2013. The article may contain rules, regulations, and stipulations made between the members and the company. And it should also contain the signatures of all the subscribers. It is different from a memorandum of association. The memorandum states the purpose for which the company is established and the article states the manner in which the company functions. The article is binding on members and the company both regarding their relationship with each other. But it is not binding in relation to a third party or outsider. An article can be altered by passing a special resolution. There are two doctrines that exist, i.e., constructive notice and indoor management. Constructive protection protects the company from outsiders and indoor management protects the outsider from the company.
Fashion is a form of art that is used by individuals to express themselves. To adapt to what is trending in society, the emergence of fashion law has taken place. It is a form of protection provided to fashion designers, wholesalers, photographers, media agencies, and retailers. It comprises a broad range of duties such as dissolving business entities, advertising on brand development, IP Monetization, franchising, merchandising, etc. The fashion has also piqued interest in the Indian Legal Fraternity as it started to set roots in the Indian soil.
Fashion laws
According to Coco Chanel, fashion can be described as:
“Fashion is not something that exists in dresses only. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, what is happening.”
Fashion law is often described as an amalgamation of various laws such as contract law, employment law, consumer protection law, corporate law, real estate law, tax law, business law, and IPR law. It is also known as Apparel Law, as it protects the life of a garment from conception to brand protection. Fashion law often includes safety, sustainability, and consumer protection. The fashion lawyers advise their clients on legal issues related to the fashion, textile, apparel, luxury, footwear, jewellery, and cosmetics industries. They assist in drafting and negotiating contracts, as well as litigating trademark, copyright, and other intellectual property rights.
History of fashion laws
Fashion law can be traced back to French history. With the evolution of designs and fabrics circulated worldwide, fashion has been an intrinsic part of French colonialism since the 17th century. Traces of fashion law can also be observed in mediaeval Europe, where sumptuary laws related to clothes were used to regulate social status and wealth through clothes. These laws put restrictions on what type of fabrics, colours, and designs one should be wearing if one belongs to a particular class. Another significant change in fashion law history was the emergence of intellectual property rights. France established the Chambre Syndicale de la Haute Parisienne in 1868 to protect the rights of fashion designers. The organisation also established the concept of original design and protected the designs against copycats. The emergence of labour law took place in the 20th century, which protected the labourers in the fashion industry. One of the laws initiated in the US was the Fair Labour Standard Act, which was established in 1938. The law helps regulate working conditions, which include minimum wage and maximum working hours. In the 21st century, fashion law started to expand globally as designers and retailers started to work across borders. The World Trade Organisation was formulated in 1995 to encourage and promote free and fair trade around the world. Environmental regulations started to emerge as one of the intrinsic parts of the fashion industry.
Emergence of fashion laws in india
The emergence of fashion law in India could be observed due to the availability of protection for traditional textile designs and crafts. Traditional textile designs and crafts have been the pride of Indian culture since ancient times. It was observed that there were around 1,000 handloom weavers in the early 1990s but that number significantly declined to 30 in 2002. The major reasons for such a decline were:
The decline in demand for traditional Indian clothing with the rise of Western clothing in India.
The usage of synthetic materials increased in India. Due to this, there was a decline in demand for clothes.
The lack of funds and skilled personnel was also one of the reasons for the decline.
Since India was one of the largest producers of cotton, jute, and silk across the world, there was a need to have statues to protect the textile industry in India. Moreover, the fashion sector also provides a significant contribution to the Indian economy and helps to generate employment. Due to these reasons, the emergence of fashion law in India took place. Though it is still evolving in the country.
Laws related to fashion
Fashion is an integral part of modern society. Since the industry comprises a broad range of occupations, fashion law is governed by multiple laws to protect designers, photographers, retailers, wholesalers, and even consumers. Fashion law can be further divided into two parts:
Fashion and IPR
Fashion and other rights
Moreover, a legal right has also been provided to the aggrieved person against the act of copying or counterfeiting. They can file a suit for injunction against the wrongdoer who has used the copied material. Even retailers can protect their stocks under Indian Laws
Fashion and IPR
Intellectual property rights often protect the creation of the human intellect. It can include paintings, literary inventions, etc. Any person who has created a novel or unique creation can have his rights protected. Being a creative industry, the fashion industry involves designing, manufacturing, and dealing with new and unique designs for clothes, accessories, or jewellery. Thus, IPR plays a significant role in the fashion industry. In India, intellectual property rights are comprised of the Copyright Act 1957, the Design Act 2000, and the Geographical Indications Act 1999 and apparently govern the apparel and design industry.
Copyright and fashion
Copyright is protected under the Copyright Act of 1957. It is a legal right that protects any work that involves originality and creativity. Section 2(c) of the Copyright Act of 1957 protects such creations from being exploited or made into copies. The Copyright Act does not protect the ideas or facts of the creators but it does protect their creation, which happened through the idea. The purpose of the copyright is to protect society as a whole as well as to provide consumers and creators with the opportunity to benefit from both past and present creators. In the fashion industry, the copyright can be textile designs or graphic designs of the designers. However, it does not extend its protection to useful articles.
Design and fashion industry
The Design Act, 2000, significantly protects designs in India. Design can be defined as any shape, pattern, colour, or combination that is unique and makes the garments distinguishable from each other. It is protected under classes 2, 3,5, 10, and 11 of the third schedule of Design Rules 2000. It has been enacted to protect the nonfunctional part of the product which may have an aesthetic appeal, such as the arrangement of shapes, decorations, lines, etc. Moreover, the act also protects designs against piracy. This has been mentioned in Section 22(4) of the Act, which states that in cases of piracy, the infringer shall be liable to pay a sum not exceeding Rs 25,000 to the registered proprietor. Also, the registered proprietor can be awarded an injunction against the infringer.
However, damages cannot be claimed if the design is not registered. To be registered as designs under the act, the following conditions need to be met:
The creation should be original
The creation should not be disclosed anywhere in India or in any country in any manner prior to the date of filing the registration.
The creation should be distinguishable from other designs or combinations of designs
The creation should not contain scandalous or obscene material.
Patents and fashion
In the case of patents, fashion designers do not go for protection under the Patent Act. But with the rise of technology, designers have started to use new technologies to manufacture shoes, jewellery, fabrics, etc. One such example of technology and artistic innovation can be observed in the Spring Summer 2023 Paris Fashion Week show, where a brand named Coperani sprayed liquid fibre on the model. The liquid fibre later turned into a beautiful dress. To register the innovation under the patent, it is important that the innovation be novel and nonobvious in nature. Aside from this, it should be useful and original. The patent holder gets the sole right to his or her creation, whether it is a product, design, or process related to the fashion business.
Trademarks and fashion
A trademark is protected under the Trademark Act of 1999. A trademark can be referred to as any word or symbol that enables a brand or organisation to distinguish itself from others. It is created for the goodwill of a product, guarantees the quality of the product, approves its originality, and distinguishes it from other copied products. However, it must be noted that in order to avail trademark protection, there should be uniqueness in the product to gain consumer attraction. In India, both unregistered and registered trademarks are protected against infringers. These two conditions must be met to register a trademark. These are:
It should be distinctive in nature.
It should not be confusingly similar. It can be through sound, meaning, appearance, etc.
Fashion and other laws
Despite the major significance of intellectual property rights, fashion law is also comprised of other laws to protect the rights of the aggrieved person. These laws include consumer protection, Competition law, Corporate law, labour law, international law, international trade, etc. Some of them are discussed below:
Consumer protection and fashion
Consumers play a significant role in every business today. According to one report mentioned, it has been observed that the Indian clothing market will be around Rs 25 trillion by 2030. Due to the rapid change in trends as well as the emergence of fast fashion, the demand for clothes has increased significantly among consumers. Therefore, in order to protect them from unfair practises, the Consumer Protection Act of 2019 was implemented by the government to protect consumers from unfair practises done by owners. Moreover, the Consumer Protection (E-Commerce) Rules, 2020, were introduced in India to protect consumers against flash sales and unfair trade practises done by online websites.
Labour law and fashion
The fashion industry has helped generate millions of jobs for people. Yet, it has been subjected to unregulation in the employment industry. It has been found out that the subsidiaries remain unregulated, due to which many people lose their jobs easily. Moreover, the textile industry is known for encouraging child labour. Therefore, in order to protect the employees of the fashion industry, various legislation comes into play. These are the Industrial Dispute Act of 1947, the Factories Act of 1948, and the Payment Wages Act, which talk about the basic standards that need to be followed to keep a check on factories’ health and safety. Recently, the government formulated three codes, which are consolidations of the three previous acts. These are:
The Indian Industrial Relations Code 2020: It mentions the relations among workers, layoffs, retrenchment, and industrial dispute settlement.
The Indian Code of Social Security 2020: The code contains provisions related to funds, employee insurance, gratuity, maternity benefits, etc.
The Indian Code of Wages for 2019: The Code focuses on providing minimum wages, bonuses, and the payment of wages.
Foreign trade and fashion
With the rise of globalisation as well as India’s liberalisation in 1991, foreign trade has increased significantly. The textile industry contributes around 8-9 % of India’s total merchandise exports. According to T. Rajkumar, Chairman of the Confederation of the Indian Textile Industry, new policies will bring transformative changes to India and impact trade positively.
Advertisements are considered one of the major channels through which vendors or businesses convey their information to consumers. It is referred to as one of the forms of media and can either be in digital or printed form. The Advertising Standards Council of India governs advertising in India. The ASCI is a self-regulatory body. Moreover, the Prevention of Misleading Advertising as well as the Advertisement Standards Council of India’s Code for Self-Regulation in Advertising were initiated. It was a guideline to impose penalties on influencers who engage in misleading advertisements.
Fashion federations in India
The Fashion Design Council of India, also known as FDCI, is a non-profit organisation to encourage fashion business in India to the “next level”. It promotes and encourages the members of the council to represent themselves at a global level. It currently consists of 400 members. Some of the eminent designers who are part of this council are Anamika Khanna, Raghavendra Rathore, Varuna Sardana, Gaurav Gupta, Hemant Sagar, Priyadarshini Rao, Malini Ramini, Rohit Bal, and Tarun Tahilini. The Council has collaborated with the Ministry of Textile, the Ministry of Commerce and Industry, and other countries and organisations.
Some major case laws
Micolube India Ltd. vs. Rakesh Kumar Trading as Saurabh.. (2013)
The case was related to the scope of trademark protection for designs. The Delhi High Court held that designs that are registered under the Design Act will not get protection but the registered holder can institute an action against the infringer if the design was registered as a trademark. This judgement expanded the scope of trademark protection in India.
Louis Vuitton Malletier vs. Atul Jaggi
The present case focuses on the applicability of the trademark. The Delhi High Court held that the designers can not only protect the logos or brand names but they can also protect the distinct features of the product. In this case, the court passed an order against the defendant and restrained him from using the Louis Vuitton symbol.
Conclusion
Fashion has always been a form of expression and art for people. Yet, at the same time, it has been subjected to piracy and counterfeiting. These acts often discourage creative people, so effective legislation and regulations are a must to protect them. India, being a pioneer of fashion, is slowly evolving itself to bring effective rules and regulations to the fashion industry.
This article is written by Aaron Thomas. This article primarily deals with the age of consent relating to sexual offences. This is done in concurrence with the study of the age of consent or age of majority in the primary Acts in India.
It has been published by Rachit Garg.
Table of Contents
Introduction
When one comes across the term ‘age of consent’, if it is an updated person, his mind will immediately go to POCSO. Although a normal citizen may not even be aware of the expansion of the abbreviation that is accorded to the “Protection of Children from Sexual Offences Act, 2012”, the term POCSO has become known everywhere in society. There has been a recent boom in the coverage that POCSO has been getting, and this is because of various factors. The judiciary also plays a part in this boom in coverage. The Chief Justice of India, D.Y. Chandrachud, himself vehemently urged the Parliament, and subsequently, the Law Commission of India, to revisit the provisions of POCSO that criminalise consensual intercourse among those aged between 16-18.
In this article, we shall also look into the history of the establishment of the age of consent in India and how the age of consent changed from millennia to millennia. We shall also look into the stance of the judiciary on the topic. The article will explore the differing age of consent in various Indian statutes, such as the Contract Act and others. This article shall look into the relationship between the age of consent and the age of marriage, and above all, this article aims to make the reader understand the delicate position of the age of consent by providing the historical and current situation of POCSO.
What is the age of consent in India
The expected answer to the question posed above would be “18 years”, nothing more, nothing less. This is not wrong or right. To clearly understand the current age of consent in India, we have to first take a look back at the implementation of the original Age of Consent Act, 1891 in India. This exercise is imperative as it helps us draw parallels regarding the socio-cultural issues that initially and inherently plague the age of consent.
History
Since the primary religion in India is Hinduism, it was logical that the customs that society practices would be based upon Hindu literature and beliefs. This is evident in the practices that were prevalent at the time. This includes but is not limited to Sathi, child marriage, etc. The initiation of the social reform movement was, in fact, to increase the legal age of marriage for Hindu girls. It was no secret that the majority of the opposition stemmed from the fear of an attack on Hinduism by reformists.
In 1884, it was Mr. Behram Balaji who took on the responsibility of taking action on the deplorable age of consent that was prevailing in India. He felt the dire need for action on the matter, and hence he published his famous “Notes” on “Infant Marriage in India” and “Enforced Widowhood” on August 15, 1884. These documents, although pure in intention, were hardly well reasoned. Malabari was heavily criticised for the extreme views he wrote on the matter and faced a lot of criticism for the baseless allegations he made.
But these issues did bring to the forefront the issues of child marriage and widowhood. Widowhood and child marriage were related for many reasons, some of which are listed below:
The groom’s family desired to have a daughter-in-law young enough to adjust to the groom’s family (i.e., her new domestic surroundings).
Some grooms were willing to pay a huge ‘bride price’. These were typically grooms who were old or generally considered unsuitable men.
In some regions (Bengal), it was commonly believed that a girl should be married off at the first signs of puberty so that intercourse with her husband would happen before she became sexually active.
All these reasons led to the prevalence of child marriage, and this subsequently led to widowhood as the husbands of these young wives would be much older and, as a result, would die much earlier. The alarming statistics of widowhood were also showcased in the Census of 1881.
Even though Malabari issued such issues of grave significance, the efforts to implement the notes into legislation were rejected by an attendant resolution of His Excellency in Council. They stated that none of the injustices that he claimed were happening fell under existing civil or criminal crimes. They said that his notes should lead to the gradual increase in sensitisation that is imparted to students through education. As his pleadings fell on deaf ears, he decided to seek help from outside India, i.e., the British. When Malabari was in Britain, many other social reformers wanted to raise their issues in congruence with Malabari’s. In a desperate bid to make his ‘Notes’ more practical, it was Dayaram Gidumal, Malabari’s chief propagandist, who carried the Telang prescription to its logical conclusion; this ultimately became the ‘Age of Consent Bill’.
Dayaram was successful in incorporating the earlier age of consent that was already included in the Indian Penal Code (IPC). The IPC already had an age limit of 10 years of age, below which sexual activity was considered rape. The government, based on the recommendations of the ‘Notes’, considered increasing the age limit to 12. This was criticised on a national level. Never before had a social issue gained this much attention; even the meetings of the INC (Indian National Congress) could not get this much attention. The opposition, led by Lokamanya Tilak, contended that education was the primary and most efficient deterrent tool, not legislation. Another compelling contention was that the government should not interfere in a religious matter. The debate surrounding the Age of Consent Bill reached unprecedented proportions in the year 1890. When the proposal came up before the Governor General, Lord Lansdowne fittingly declared that “in cases where religious practices are inconsistent with individual safety and public peace and is unilaterally condemned by every legal perspective, it is religion and not morality which must give way.”
Present scenario
As is evident from above, the age of consent is a dynamic topic that is subject to extensive deliberation and legislation every now and then. The age of consent for engaging in legal sexual activity as of right now in India is 18. Any sexual activity that takes place between individuals under the prescribed age constitutes an offence. The age bar for engaging in sexual activity is in line with the age of marriage for girls, but the age of marriage for boys is 21. Though there is an amendment pending, which is the Prohibition of Child Marriage (Amendment) Bill, 2021, it has not yet borne fruit as it has seen many delays that have been caused by the Parliamentary Committee that has been reviewing it. This committee has been repeatedly asking for time extensions.
The age of consent at which an individual can independently enter into a contract is 18 years old. The right to vote and many other privileges are conferred on a citizen at the age of 18. As for other statutes, the age of consent plays an enormous role in determining the modus operandi of proceedings and the repercussions of breaking the law. This is evident in the latter part of this article.
Age of consent under the Criminal Law
The age of consent is dealt with extensively in criminal and civil law. This shall be discussed below about statutes concerned with the age of consent, with the help of landmark judgements.
Indian Evidence Act, 1872
Any individual who acts as a source of evidence before the court can be classified as a witness. The test of veracity and admissibility of the source of evidence is what is dealt with extensively in the Indian Evidence Act (hereinafter referred to as the Act).
Under Section 118 of the Act, any individual can be a witness to the court, provided they comprehend the questions put forth and provide rationale answers for the same. As is evident from reading this Section, it is clear that no minimum age has been set for an individual to be classified as a witness. However, an oath cannot be administered to a child under the age of 12, as per Section 4(1) of the Oaths Act, 1969.
In the landmark case of Suresh v. the State of UP (2001), the SC held that the testimony of a 5-year-old can be admitted as evidence as the girl was able to comprehend the questions put forth to her and understood the underlying principle behind asking such questions to the girl. In another landmark judgement, Himmat Sukhadeo v. State of Maharashtra (2009), the SC said that the child should be able to differentiate between what is right and what is wrong. If the child is capable of giving the evidence under oath, he must understand his obligation to the state and the sanctity of the court to which he is testifying. The SC has also very recently stated that a preliminary examination of child witnesses should also be taken before taking their evidence.
Under Section 114 of the Act, it is mandated that the evidence provided by a child witness be assessed with much greater caution than regular evidence, as a child witness is easily persuadable. The Supreme Court, in the case of M.P. v. Ramesh (2011), held that the deposition of a child witness may require corroboration. However, in the case of Suryanarayan v. State ofKarnataka (2000), the SC stated thatthe corroboration requirement mandated in M.P. v. Ramesh was a mere suggestion to exercise caution. If there are no material discrepancies in the child’s deposition, no corroborative evidence is required, and the evidence can be admitted.
Indian Penal Code, 1860
The Indian Penal Code (hereinafter referred to as the IPC) lays down separate age categories under which an underage individual is prosecuted.
As per Section 82 of the IPC, nothing is a crime that is done by a child who is below 7 years of age; the latin maxim of doli incapax in the Indian context is squarely a product of this provision. Furthermore, as per Section 83 of the IPC, nothing is an offence which is committed by a child between the ages of 7 and 12, who has not attained sufficient maturity to comprehend the gravity of the crime he has committed and subsequently cannot comprehend the consequences of his actions. Section 361 of the IPC mandates that whoever entices any minor under the age of sixteen years of age for a male and under 18 years of age for a female or any individual of unsound mind from the care of their legal guardian is said to be committing kidnapping. The discrepancy in the ages in the above mentioned Section is bad. Section 363 provides punishment for the above Section. Section 366 of the Act explicitly deals with inducing a minor girl to accompany any individual to a place or go from one place to another on her own, or undertaking any activity with her that is likely to force or seduce her into illicit sexual intercourse, which shall be punishable with imprisonment up to 10 years.
Criminal Procedure Code, 1973
After the passing of the Juvenile Justice (Care and Protection of Children) Act, 2000, a slew of measures have been introduced to resolve the offences of juvenile delinquents in an amicable manner. Section 27 of the Code of Criminal Procedure (CrPC) establishes jurisdiction in the case of juveniles. It states that any offence that is not punishable with capital punishment or imprisonment for life, committed by a person who, at the date when he is brought before the court, is under the age of sixteen, may be tried by the Court of Chief Judicial Magistrate, by any court empowered under the Children Act, 1960, or by any other law for the time being in force providing for the treatment, training and rehabilitation of juvenile delinquents. The Juvenile Justice (Care and Protection of Children) Act 2015, succeeded the existing Juvenile Justice (Care and Protection of Children) Act 2000. The aim of the Act is to prosecute adolescents between the ages of 16-18 as adults for heinous crimes. The 2015 Act will also permit a Juvenile Justice Board, which would incorporate analysts and sociologists into deciding whether an adolescent criminal will be tried as an adult or not.
Age of consent under the POCSO Act, 2012
Before delving into the POCSO Act, we have to first understand the current problems caused by the said Act. The POCSO Act has criminalised consensual sex among adolescents, whose nature it is to sexually experiment. As a result, the number of juvenile incarcerations has skyrocketed, and most of these are for consensual relationships.
The enactment of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) has seen an increase in the age for consenting to sexual activities from 16 to 18 under Section 375 of the IPC. The age of consent had been 16 since the 1940’s. The Criminal Law Amendment (CLA Act) of 2013 saw the expansion of the definition of rape from penile to vaginal penetration to a range of penetrative and non-penetrative sexual assaults without consent, including penetration of the vagina, anus, and urethra by the penis, objects or other body parts; penetration of the mouth with the penis; and application of the mouth to the vagina, urethra or anus without consent. The idea of the age of consent was brought to India from Britain through the implementation of the IPC. A further amendment was brought to the Act in 2019, where the minimum mandatory sentence for penetrative sexual assault and aggravated penetrative sexual assault was increased to ten years and twenty years, respectively and for aggravated sexual assault, the punishment for the remainder of the natural life of that person, fine or death. This functioned as a catalyst for the deterioration of the sexual rights of adolescents.
Data as reflected in Crime in India 2011, shows that 7112 instances of rape against children (Section 376 IPC) were reported at the all-India level, whereas data as reflected in Crime in India 2019, shows that 4977 instances of rape against children were reported at the all-India level. This decrease in numbers is attributed to the fact that Crime in India 2019 had a separate table for sexual offences committed under the POCSO Act. Crime in India 2019 denotes that 26,192 incidences of penetrative sexual assault (Section 4 of the POCSO Act) and aggravated penetrative sexual assault (Section 6 of the POCSO Act) were reported in 2019. The data clearly points to the manifold interest in sexual offences committed against minors; this could also be because of the wider definition of rape as compared to earlier.
The harsh age limit implemented in India is in stark contrast to other developed democracies like Canada and Japan. In Canada, the age of consent is 16 years, and in Japan, it is 13. In Uganda, the age of consent was raised from 14 to 18 in the 1990’s to prevent rich people from having sex with young girls, as this was believed to be fueling the HIV epidemic.
All hospitals are mandated to report sexual offences to the police. Failure to do so is treated with 2 year imprisonment. This has resulted in doctors becoming hesitant to provide the necessary treatment to pregnant adolescents and victims of rape; the same goes for hospitals. This is just one of the implications of the downright deplorable provisions of POCSO that have stigmatised society to such an extent against sexual intercourse between adolescents that it has become extremely difficult for them to seek any form of help if any mishap happens.
The reasoning for increasing the age from 16 to 18 has not been explicitly mentioned in the Statement of Objects and Reasons of the POCSO Act. The government blatantly stated that they were just following the United Nations Convention on the Rights of the Child (UNCRC), which requires the State parties to undertake all appropriate measures to protect the children from any sexual assault, harrasment or pornography and should protect the child from being induced into engaging in any unlawful sexual activity. A proper reasoning should have been provided for such a salient legislation that affects the lives of millions of adolescents, but all of them are left wanting.
Age of consent under Contract Law
The minimum age for entering into a contract in India is 18 years. Section 11 of the Indian Contract Act stipulates the requirements for parties to enter into a contract that is not void. The very first mandate under Section 11 is that both of the contracting parties should have attained the age of majority. Section 11 lays down certain exceptions as to who cannot enter into a contract; these are minors, persons of unsound mind, and those the law specifically qualifies as exceptions. The age of majority in India has been set down in the Indian Majority Act, 1875. In it, a person is said to have attained majority when they reach 18 years of age. If a minor has a guardian or court of ward supervising him, they will have to attain the age of 21 to attain majority.
The contract entered into with a minor is no contract at all. No contractual obligations can be imposed upon the minor. There is no question of specific performance, as the contract will be void-ab-initio. Even if a minor commits perjury regarding his age and claims to be 18 at the time of entering into a contract, he cannot be implicated for any legal obligations arising out of the contract, i.e., the rule of estoppel would not apply to a minor. Needless to say, a minor cannot be a partner at a firm; they can, however, receive the benefits of the partnership. The same principle applies when minors are named in contracts by their parents or guardians; they can only reap the benefits of the contract and not be held liable. A minor cannot transfer property as per the Transfer of Property Act, 1882, but can receive property from another individual under a legal contract.
To better understand the relationship between the age of consent in POCSO and the age of majority in the Contract Law, we must understand the fundamental principle that backed the enforcement of the age bar in the Contract Act and subsequently the Indian Majority Act. The age of consent varies from time to time and region to region. Upon a glossary probe into the past of the age of consent, we see that the Barbarians set the age of majority at 15 because children were considered old enough to carry a weapon, but in ancient Sparta, it was 31. The reason for mandating the minimum age of 18 when entering a contract is to ensure that the parties to the contract understand the obligations of the contract. This principle is also applied to the mentally handicapped, as they do not have the requisite mental capacity to assiduously fulfil the obligations of the contract. The age of consent should ideally change with time. With the advent and rapid spread of internet services, kids are being exposed to the world much quicker than before. They are receiving education and gaining knowledge about various things that they did not have access to earlier. The Government of Japan approved lowering the age of consent in 2022. This Bill is aimed at building a much stronger youth section in the country.
The same reasoning could be applied for the age of consent in POCSO too. The application of the same justification for age of consent to the POCSO Act would be totally false. This is because basic human biology plays into the POCSO Act and not the Contract Act. It is completely natural for adolescents to experiment with various sexual activities. This is not confined to the human race, as many species begin to copulate at their respective adolescent ages. On the other hand, it is unlikely for adolescents to develop an incessant need to undertake a business venture that would be legally binding or enter into any agreement that would legally implicate them.
Age of consent for marriage
The age of consent in India as of the date of writing this article is 18 for females and 21 for males, as per the Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006. These Acts are unlike the Indian Majority Act as they are not gender-neutral. But there is a grey area on this subject. If a man has sexual intercourse with his wife (consensual or not), who is aged 15 years or more, it does not come under the purview of rape as it is marital rape and, as such, does not come under Section 375 of the IPC. This may seem bewildering, but the reason for the discrepancy mentioned above is because of personal laws that govern marriage. In Muslim personal law, a girl can enter into the contract of marriage after attaining puberty, which is generally considered to be 15. A discrepancy in the age of marriage and the age of consent for engaging in sexual activity has always existed. A contract of marriage that took place when a girl was below 18 but above 15 is not void but is voidable on the wish of the girl before she reaches the age of 18. The same can be applied in the case of boys, i.e., if the boy marries before he reaches 21. In the case of Prema Kumari v. M. Palani (2011), the family court held that the marriage was not a valid one as the wife had not completed 18 years of age, as per Section 5(iii) of the Hindu Marriage Act, 1955. The parties were hence required to nullify their marriage as per Section 13(2)(iv) of the Hindu Marriage Act. The difference in rights of a girl in seeking nullification of marriage is mentioned in Section 13(2)(iv) and is reproduced as under :
“A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age, but before attaining the age of 18. The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.”
The SC has reiterated that marriage with a minor girl is not void but voidable, and upon reaching the age of maturity, it becomes a valid contract of marriage in the recent case of Yogesh Kumar v. Priya (2021), decided on August 26, 2021.
Recently, a Bill was introduced in Parliament, which stirred up much controversy nationwide. This was the Prohibition of Child Marriage (Amendment) Bill, 2021, which proposes increasing the age from 18 to 21 for girls. This Bill has been subject to extensive deliberation, and hence there has been much delay in its passing. The delay has been largely attributed to the examination delay by the parliamentary committee that has been constituted to examine it. The government has stated that the bill will come into force 2 years after its notification.
Views of the Law Commission on age of consent in India
Over the decades, starting in 1980, the Law Commission of India (LCI) has given various opinions on this matter. The Law Commission, in its latest report, has also given its opinion on the matter, as was required of it. The mounting pressure on it to reconsider the age of consent was too much from the side of the courts. To understand the most recent stance of the Law Commission, we have to first examine the opinions of the Law Commission in the previous decades.
The Law Commission, in its 84th Report, recommended increasing the age of consent to 18 through the following dictum:
“2.20 The question to be considered is whether the age (of consent) should be increased to 18 years. The minimum age of marriage now laid down by law (after 1978) is 18 years for females, and the relevant clause of Section 375 should reflect this changed attitude. Since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law), sexual intercourse with a girl below 18 years should also be prohibited.”
This opinion was given for the discrepancy in the age of consent and marriage laws to be levelled, as has been mentioned above. The commission was criminalising the sexual intercourse of adolescents with or without their consent.
Although not a law commission report, it is important that we analyse the Justice Verma Committee Report that was set up after the Nirbhaya incident in 2012 with the explicit aim of studying the position of women in different sectors of society, understanding the challenges they face, and recommending remedies through legislation or otherwise. The Justice Verma Committee was vehemently opposed to the idea of the age of consent being 18 years, as stated in the POCSO Act. This was done through the interpretation of Article 34 of the United Nations Convention on the Rights of the Child. This was rightly done, as the aim was to not criminalise consensual sex between two individuals but to stop sexual assault on children.
This brings us to the latest report of the Law Commission, which is the 283rd Report. The Report talks about bringing amendments to the POCSO Act, but it advises against altering the age of consent. The cause for it to even consider amending the existing age of consent is the urging of several high courts for improvement on the matter regarding consensual sex. The Karnataka High Court (Dharwad Bench) asked the Commission to rethink the age gap as the number of girls eloping with boys and having consensual sex was too many for the court not to take cognizance. The Madhya Pradesh High Court asked the commission to rethink the mandatory imposition of the statutory minimum sentence in cases where de facto consent is present on the part of the girl. The Commission, in consultation with many stakeholders, including the National Commission for Protection of Child Rights, held that in the current scenario of child abuse, child trafficking and child prostitution plaguing our society, it was best to leave the age of consent debate alone, at least on the age bar. A slew of other measures were also introduced. These measures are:
Amendment to Section 4 and Section 8 of POCSO Act: The Commission suggested providing discretion to the courts in imposing the minimum mandated imprisonment in POCSO cases provided a plethora of factors, which include but are not limited to; approval of the child, the age gap between the accused and child should not exceed 3 years, etc.
Amendment to Section 18 of Juvenile Justice (Care and Protection of Children) Act, 2015.
Amendment in Section 375 or 376 of the Indian Penal Code.
The vital need to spread awareness about the laws of POCSO and the repercussions of not abiding by the law for the betterment of students has to be recognised.
The hesitance of the Law Commission, even after the repeated urging of many High Courts and even the Chief Justice of India to reconsider the age of consent, is worrying. The Law Commission remains unperturbed on the matter and has missed the opportunity to take action on a matter of vital importance to society.
Difference between age of consent and age of marriage
The age of consent and the age of marriage in the current Indian scenario may seem interchangeable, as there is no discrepancy in the age, at least for girls. But this is not a black and white matter as such, and there exist subtle nuances that spoil the entire idea behind the equity in the ages of consent and marriage that has been brought through by extensive legislation. There is not much to substantiate on this topic, as it has already been mentioned above, as to how personal laws play a predominant role in the age of consent conversation and how the age of consent and the age of marriage are linked to each other. Recently, the Bombay High Court remarked:
“The mere apprehension that adolescents would make an impulsive and bad decision, cannot classify them under one head and by ignoring their will and wishes. The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only in society, but the judicial system must take note of this important aspect.”
This clearly shows the wish of the courts to have an explicit demarcation between the age of consent and the age for marriage, or at the very least, all of the legal loopholes should be closed. The Bombay High Court was also of the opinion that ultimately this is a topic for the parliament to ponder upon, but cognizance should be taken of the cases that come before the courts, of which a huge chunk are about romantic relationships. Another trend that is on an upward slope is that fathers or relatives of the underraged girl would file a case against the girl’s partner when a mishap occurred, and by the time the case came to court, the couple would already be happily married after the parents reconciled their differences. This is because the girls that are usually ‘victims’ of these cases are usually on the verge of attaining majority, and by the time they attain majority, the proceedings of the case will begin. Therefore, sudden decisions by the relatives (primarily the father) would only work to the detriment of the girl and her family. It is clear from the lines above that the need to decrease the age of consent is of paramount importance in the pursuit of an egalitarian society.
Landmark judgments vis-à-vis age of consent in India
There is a relative scarcity in the number of cases that have touched upon the topic of age of consent with regard to sexual intercourse. The reason for this is the nature of the age limit. As it is a subject with severe national implications and affects the lives of millions of adolescent teens, it is best left to the parliament to ponder and the court to opine on the same. There exist a lot of HC decisions on the matter, some of which are given below.
Varadarajan v. State of Madras, 1964
This case, which is a landmark case in the realm of kidnapping, does not directly deal with the POCSO Act in any way; at least that’s what a basic perusal of the judgement and ratio would suggest. This judgement was unequivocally linked to the ‘enticement’ factor that continues to affect minors. This case has by and large laid down the independence of a minor girl in taking decisions of her own. This case also clarifies the degree of persuasion that has to be carried out to formulate in the young mind of an underage individual the intent to leave her house.
In this case, the youngest daughter of S. Natarajan (the Assistant Secretary in the Department of Industries and Cooperation of the Government of Madras), called Savitri, developed close relations with a neighbour named Varadarajan. They were talking on a regular basis, and their friendship had transcended into something more. The parents, realising the gravity of the situation, sent their minor daughter to their relatives house. While at her relatives house, Savitri, on her own volition, called Varadarajan with the intent to elope. It is to be noted here that Varadarajan did not induce her to come to this decision. They both eloped and registered their marriage with the witness of Mr. P.T. Sami. Mr. Natarajan immediately lodged a complaint at the police station for kidnapping his minor daughter. The police found them, and subsequently, the case went to Madras High Court. Through a special leave petition, Varadarajan appealed the guilty verdict handed to him by the Madras High Court. The Supreme Court was staunchly of the opinion that this was not a case of kidnapping. The SC made the following remarks; that the girl was on the verge of attaining the age of majority, was a senior college girl, and she had lived her life in a big city for her whole life and, as such, could not be equated to an unlettered girl.
This is of consequence to POCSO and age of consent in today’s scenario, as the Varadarajan judgement is being used more frequently in acquitting POCSO accused’s as the ‘victim’ would be on the verge of attaining majority and the relationship would be wholly consensual.
Recent judicial pronouncements vis-à-vis age of consent in India
Sabari v. State of T.N, 2019
This was a case where the accused was prosecuted for consensual relations with a 17 year old girl. Upon the girl not supporting the prosecution’s case, the Madras HC, while acquitting the accused, stated;
“Relationship invariably assumes the penal character by subjecting the boy to the rigours of the POCSO Act”, and “the boy involved in the relationship is sure to be sentenced to 7 years or 10 years as minimum imprisonment, as the case may be”, and suggests to the legislature that “on a profound consideration of the ground realities, the definition of “Child” under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.”
Atul Mishra v. State of U.P, 2022
In a similar case, the Allahabad High Court, while dealing with an elopement case in which a child was born out of wedlock, noted that “the applicability of statutory provisions is not a mathematical exposition or its theorem. If the mathematical application of these statutes leads to disastrous effects, the onus falls upon the courts to mellow down the rigours of the provision to achieve a more meaningful and swallowable application of the statute.”
“If these teens decided to enter into a nuptial knot and now they have a baby out of this relationship, certainly the rigours of the POCSO Act would not come in their way. The girl is not sexually abused; no sexual assault was made upon her, nor has she been sexually harassed by the applicant, as contemplated by the object of POCSO Act.”
“Unfortunately, the statute does not distinguish between the conservative concept of the term “rape” and the “sexual interactions” arising out of pure affection and biological changes. The statutes do not contemplate the biological inquisitiveness of adolescence and treat all “intrusions” on bodily autonomy, whether by consent or otherwise, as rape for certain age groups of victims.”
Conclusion
As is evident from the data presented above, the age of consent in India is a burning topic. Why the government hastily increased the age from 16 to 18 for consensual sexual relationships is unclear. The harsh sentences handed down to unsuspecting, innocent adolescents are deplorable. As is evident from the Indian Evidence Act and other Acts, a strict age bar to distinguish between what is permitted and what is not is not feasible. The principle of proportionality has to be kept in mind not only when sentencing the offender but also when enacting substantive criminal legislation. The socio-cultural issues that plagued our nation millenia ago are still influencing our nation today. The onus lies upon each and every one of us to educate the officials on the grave injustice that is happening in society in the form of violations of the rights of adolescents. It is natural for adolescents to be inquisitive and act accordingly. The High Courts have been lately taking a step in the right direction, and the author sincerely wishes the SC or the Government took immediate cognizance of the matter and did so appropriately.
Frequently Asked Questions (FAQs)
Is consensual intercourse among adolescents under the age of 18 punishable in India?
Yes, even consensual sex is prohibited under the POCSO Act of 2012.
Is POCSO gender neutral?
Yes, POCSO is gender neutral, and if both parties are minors, the one older shall be the accused.
What is the procedure for recording statements of a victim under POCSO Act?
The child’s statement must be recorded at his/her place of residence or at a place of the child’s choice. The statement must be recorded in the presence of the child’s parents or another person of the child’s choice.
Has the age of marriage been raised to 21 for girls?
The Bill to raise the age of marriage for girls to 21 years has not been passed yet.
Can a minor be obligated to perform under a contract?
A minor cannot be obligated for performance but can reap the benefits of the contract he enters into.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Yashika Patel. In this article, the author provides an exhaustive analysis of the doctrine of constructive notice. Further, the article also gives an overview of the effects and exceptions to the doctrine. Furthermore, the evolution of the doctrine, as shaped by judicial precedents, has also been elaborated in this article.
It has been published by Rachit Garg.
Table of Contents
Introduction
Businesses and companies function within the framework of guidelines, protocols, and regulations to guard agency’s management from outside elements and minimise their legal liabilities. These measures ensure that everyone is aware of the company’s regulations, guidelines, and operations. The concept of constructive notice is crucial, as it establishes the need to take measures to shield the company from potential harm caused by third parties.
The doctrine has developed over time through judicial interpretations. According to this doctrine, individuals who engage with or intend to enter into an agreement with the enterprise are responsible for inspecting and being aware of some public documents. These public documents include documents such as the Memorandum of Association (MOA) and Articles of Association (AOA). Constructive notice refers to an indirect form of notification that is generally communicated in a manner which assumes that individuals have received it.
What is constructive notice
Constructive notice is a legal term which means that someone is informed of the case that could affect their interest whether or not they truly received it, i.e., if certain procedures established by the law have been followed, it would be deemed that the person has received the notice, even if in fact they did not. Whart defines constructive notice as “the knowledge which law implies the party to have had, whether he actually had it or not.”
A notice is defined as a formal communication with the intent to inform a person about important facts and records, thereby enabling them to take suitable actions on that behalf.
Notices are of two types-
Actual
The actual notice, as the name suggests, is the information and records which are provided in the ‘written form’. They are, preferably, written with the help of paper and ink. These kinds of notices are sent to individuals or institutions to get them to know about the enclosed information.
Constructive or deemed
Constructive notices or deemed notices do not exist physically. These kinds of notices are generally meant to be comprehended in order to convey a particular fact.
The Doctrine of constructive notice falls under the second category, i.e. constructive or deemed. It serves as an official notification of unique data concerning the MOA and AOA.
This Doctrine is formed on the principle of presumption of knowledge and holds utmost importance within the domain of laws relating to companies. Every enterprise is obliged to formally register their company’s MOA and AOA with the registrar under Section 7(1)(a) of the Companies Act, 2013 who acts as a public office.
MOA and AOA are the documents that outline the goals and authority of a company and upon registration, these files become accessible to the general public and are assumed to be ‘Public documents’ under Section 399 of the Companies Act, 2013. These Public documents are available for everyone to read either for free or for a nominal fee. Outsiders who wish to enter into a contract with the company can read essential information about the company such as its capabilities and shares through these documents. In Oakbank Oil Co. v. Crum, it was established that anyone dealing with a company is expected to have gone through these documents and have comprehended them entirely.
Section 17 of the Companies Act read with Rule 34 of the Company (Incorporation) Rules, 2014 provides that a company shall on payment of a prescribed fee send a copy of MOA or AOA to the member within seven days of the request. It can be said that the company is obligated to provide copies of these registers and reports to its shareholders, within a fixed period of time. However, if the company provides false information in its documents, it would be subjected to penalties as mentioned under Section 448 of the Act.
It is presumed that anyone willing to or engaging with the company has very well examined and comprehended these files. This process of being aware of the documents is generally referred to as the doctrine of constructive notice.
If an individual engages with a business enterprise in violation of the company’s MOA or AOA or partakes in a transaction exceeding the business enterprise’s authorised scope and power, they may no longer be given any legal protection and be held completely responsible for the resulting consequences.
This doctrine serves as a preventive measure rather than an affirmative doctrine, as it provides a safeguard to the company from the outsider person and vice versa. It helps in the prevention of unfair and wrongful trade practices. The main aim of the doctrine is to disallow claims of any individual that he was unaware of the company’s regulations, in case he files a suit against the company. Consequently, it would become the duty of the contracting party to thoroughly go through the files and recognise their implications.
Connection of doctrine of constructive notice with the company
Whenever a person is dealing with a company, it is presumed that he has all the required information about the company and has gone through all the public documents such as AOA and MOA. Anybody dealing with the company is required to have this information in order to better understand the limitations and drawbacks of the company and to what extent the directions of the company can contract.
In a suit of liability against the company, it will be considered the fault of the contracting party for not going through the MOA and AOA, and they cannot blame the company for not providing the information.
MOA i.e., Memorandum of Association is defined under Section 2(56) of the Companies Act, 2013. MOA contains the object for which the company is formed. It also defines the scope of the company’s operations and its boundaries. It provides details regarding the powers and rights of the company. The contents of MOA include-
Name clause
Liability clause
Registered Office clause
Object clause
Capital clause
Association clause
AOA i.e., Articles of Association is defined under Section 2(5) and Section 5 of the Companies Act, 2013. It is a legal document with the purpose of outlining the rules and regulations governing the operations of the company. It defines the procedures and rules for a company’s shareholders, as well as the company’s relationship with them. The Article of Association also defines the procedure for dispute redressal in case of a dispute between the company and the shareholders and between shareholders themselves.
Relevant provisions under the Companies Act, 2013
The realm of commercial enterprise necessitates safeguarding the interests of all concerned parties. While this doctrine initially appears to be favouring individuals contracting with enterprises, its paramount goal is to foster funding in business endeavours, thereby sustaining the overall financial system.
Section 399 of the Companies Act, 2013 deals with inspection, production, and evidence of the files sustained by the Registrar of Companies (RoC). This Section outlines the provisions regarding the protection of enterprise records by using the RoC.
Inspection of documents
Section 399 of the Companies Act, 2013 permits people to look at the files retained by RoC during regular working hours. These documents may include the AOA, MOA, annual returns, financial statements, etc.
Production
RoC has the responsibility to send a notice to any person responsible for the possession or management of any report that ought to be submitted to the Registrar. This notice may be submitted to produce such files within a targeted time.
Evidence
The documents or the licensed copies issued via RoC hold admissibility as proof in legal proceedings, thereby confirming their validity and usability in court proceedings.
While the Companies Act allows the general public to inspect AOA and MOA, some files and information can be prohibited from public view. This confined material can also encompass sensitive information pertaining to a corporation’s secrets and techniques, intellectual property, or personal information, which are safeguards against public disclosure. Moreover, the Registrar of Companies has the authority to impose appropriate restrictions on document inspection so as to keep confidentiality and guard other legitimate pursuits.
It’s vital to be aware that the approaches and pointers for examining, generating and imparting evidence of documents can vary according to the rules mounted by the Registrar of Companies and authorities responsible for overseeing corporate affairs.
Effects of the doctrine of constructive notice
The doctrine makes external parties aware of the information contained in publicly available documents. Consequently, when a document is submitted and is officially recorded by the appropriate bodies, it is presumed that the document has been read and acknowledged by the parties in the contract.
The principle establishes that registered documents carry legal importance for all the parties involved. It supposes that parties must have possessed knowledge concerning the information present in the registered documents.
Death of the doctrine of constructive notice
The doctrine of Constructive notice is more or less an unreal doctrine. It does not take notice of the realities of business life. People know a company through its officers and not through its documents.
In many instances, this doctrine has been extended to cases outside its jurisdiction. The effect of constructive notice can be harsh on an outsider who is contracting with the company because he is supposed to have all the information provided in the public documents. In case of any default, he cannot even claim relief on the grounds that he was unaware of some information provided in these documents.
As a result, many countries like the UK have abrogated this doctrine in the UK Companies Act, 1985. UK Court stated that before this enactment came into force, any person dealing with the company needed to look at the memorandum and articles of the company to satisfy himself that the transaction was within the corporate capacity, but the new sub-section i.e Section 9(1) of the Act states that the good faith has to be assumed and the outsider dealing with the company need not inquire.
There is a decrease in reliance on the doctrine of constructive notice, or it can be said that various abovementioned problems have led to the ‘death of the doctrine’. Although the principle of constructive notice shields the corporation from outsiders, it has proven to be extremely cumbersome for commercial transactions. Many times the information provided in the Public documents is ambiguous and susceptible to a company policy. When the doctrine is applied in such situations, it results in unfair treatment of outsiders. Thus, an exception, the ‘Doctrine of Indoor management is established and the reliance is now mostly put in the Doctrine of Indoor Management, which seeks to protect outsiders against the company and is, therefore, more convenient for outsiders contracting with the company.
Exceptions to the doctrine of constructive notice
The principle of indoor management serves as an exception to the doctrine of constructive notice. The doctrine of Indoor management restricts external parties from having access to information or awareness of a company’s internal affairs. Consequently, if a particular action is sanctioned by the company’s MOA or AOA, external parties may reasonably assume that all necessary formalities have been diligently followed while executing that action. This legal principle, commonly referred to as the Doctrine of Indoor Management or the Turquand Rule originated from a significant case of Royal British Bank v. Turquand (1856).
The principle of Indoor management means that a company is responsible for its own internal affairs. This rule is essential for individuals who are working with a company through its directors or other personnel. It provides them with the assurance that the company’s members are performing their duties within the boundaries of their explicit authority. Consequently, when a legitimate action, as defined in the company’s AOA, is executed in a specific manner, external parties collaborating with the company can reasonably infer that the directors and other officers have acted within their authorised capacity.
Difference between the doctrine of constructive notice and the doctrine of indoor management
Serial No.
Basis of Difference
Doctrine of Constructive Notice
Doctrine of Indoor Management
Definition
It acts as a safeguard for the company against third parties contracting with it.
It acts as a safeguard for the outsiders dealing with the company.
Scope
It is limited to the external functioning and affairs of the company.
It is limited to the internal functioning and affairs of the company.
Application
The company’s AOA and MOA are considered and are available for the public to read. It is crucial to get it registered with the registrar of the company, and they are made accessible to the general public.
Documentation of the internal affairs of the company is not mandatory. It is not accessible to the general public or outsiders.
Eligibility
According to this doctrine, to be eligible for protection under this doctrine, the third party must be fully aware of the AOA and MOA of the company. It does not protect parties who are unaware of these documents due to their carelessness.
The parties that are unaware of the internal affairs of the company shall also be protected, as they are not permitted to inquire into the company’s private business in the first place.
Purpose
It acts as a protective measure against outsiders, for the benefit of the company.
It acts as an exception to the Doctrine of Constructive Notice and lessens its impact.
Important cases
DehraDun Mussorie Electric Tramway Co. Ltd. v. Jagmandar Das (1931)
In this case, according to the corporation’s established regulations, the board of directors had the power under AOA to borrow money for the purposes of the company and to secure a loan by mortgage. However, they were expressly prohibited from delegating their power to borrow money. The managing agents disregarded this restriction and obtained an overdraft, i.e. they withdrew more cash than available with the company in order to pay for the machinery urgently required.
The issue before the court was whether the agents had the authority to borrow money on behalf of the company. The respondent contended that the power of entering into a contract would include the power of contracting loans, but this contention was not accepted, as the company restricted the Board from delegating its power of borrowing money. However, the loan was urgently required, and an agent has, under the Contract Act, extensive powers in case of an emergency, to do acts necessary for protecting the business. The Supreme Court ruled in favour of this action and considered it legally binding, stating that such temporary loans should be considered separate from applicable provisions and regulations.
Kotla Venkataswamy v. Chinta Ramamurthy And Ors. (1934)
In this case, the enterprise’s AOA stipulated a demand that every important legal document ought to undergo the signatures of the managing director, secretary, and director involved in the company’s work. In accordance with this provision, the company secretary and a working director signed a mortgage deed, officially moving ownership to the plaintiff. Subsequently, the corporation voluntarily initiated liquidation lawsuits and proceeded to promote the mortgaged assets to the defendant. Eventually, the company approached the court for legal recourse.
The Madras High Court denied the validity of the sale of the property under mortgage, basing its decision on the fact that the organisation’s AOA explicitly required the presence of three officer’s signs, which was well-known information. However, because of the plaintiff’s failure to exercise due care and negligence in not reading the documents, the Doctrine of constructive notice came into play, deeming the mortgage deed incomplete.
Rama Corporation v. Proved Tin and General Investment Co. (1952)
In this particular case, the director of the company entered into an agreement with Rama Corporation, acting on behalf of the company, and in the process took a check from this corporation. However, the director was not authorised to do so and the articles of the company did not provide the director with any power to make such a contract for the company. The defendant repudiated the contract. The plaintiff company sued the defendant on account of breach of contract. It was held that a person who at the time of entering into a contract had no notice of the company’s article of association, later on, cannot rely on the remedy of the indoor management.
MRF Ltd. v. Manohar Parrikar (2010)
In this case, the Supreme Court analysed the doctrine of Indoor management in great detail. A notification was issued by the State government granting a 25% rebate in tariff. The legality of these notifications was challenged on the grounds that they were not issued in compliance with the Constitution and the business rules of the state as the decision was taken without seeking concurrence of the finance department and therefore could not be treated as the decision of the state government as a whole. The respondent tried to take the defence of the doctrine of indoor management.
The court held that the doctrine of indoor management is an exception to the doctrine of constructive notice which protects the insiders of a company. However, suspicion of irregularity has been recognized as an exception to this doctrine. It is not applicable where surroundings invite inquiry. Therefore, it cannot be applied in the present scenario as there are doubts with regard to the conduct of the minister in the issuance of notifications, i.e. there is a definite suspicion of irregularity rendering the doctrine of indoor management inapplicable to the present case.
Conclusion
The realm of business necessitates safeguarding the interests of all involved parties, as it is through thriving businesses that the economy and commerce can flourish. While this doctrine seemingly serves to protect individuals involved in transactions with a company. The primary objective of this doctrine lies in fostering investments in business, ensuring the continuous growth and stability of both the business sector and the overall economy.
The doctrine of constructive notice is a very important legal concept which has been developed over time with the help of various court judgements. It is often called an unreal doctrine, for it has been created through various judicial pronouncements. This doctrine makes it necessary for every outsider to have knowledge of all the legal documents for the company before dealing with it for the effective functioning of the business world.
Throughout the course of time, this doctrine has evolved to great lengths leading to the development of the doctrine of indoor management which implies that though an outside party has the means to examine the documents of the company, all the inner functioning remains the company’s private matter, and the outsider has no right to inquire if the company is functioning according to its MOA and AOA.
The doctrine of constructive notice is an important tool which fosters growth and development in the corporate world we live in. It stays a timeless guideline in a world driven by continuous development.
Frequently Asked Questions (FAQs)
What is the difference between the doctrine of constructive notice and the doctrine of indoor management?
The doctrine of Indoor management is an exception to the doctrine of constructive criticism. According to the doctrine of indoor management, all the internal functioning of the Company remains its private matter.
What is the need for the doctrine of constructive notice?
It removes the onus of liability from the company in case an external party dealing with the company denies having knowledge of the AOA and MOA of the company.
What is the limitation of the doctrine of constructive notice?
It does not provide protection to the company regarding internal matters.
Where did the doctrine of constructive notice come from?
The doctrine of constructive notice emerged from the case of Oakbank Oil Co. v. Crum (1881).
What is constructive notice under Transfer of Property Act?
Under Section 3 of the Transfer of Property Act, 1882, if the circumstances indicate that a reasonably prudent person ought to have known a particular fact related to the transaction of transfer, then he will be deemed to know it.
Who can invoke the doctrine of constructive notice?
Any outsider dealing with the company can invoke this doctrine.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
“Custodial violence” is not just a word; behind this word, there is a lot of pain and cry of a human being who has lost their life in prison due to the “third-degree torture” done by the police officer, basically to extract the truths of such offences, which may or may not be done by the accused.
Custodial death is a universal problem, and it has been considered the cruellest form of violation after the heinous crime of rape. Police are considered safeguards or guardianships of the prisoners, and here the saver is only violating the laws and rules that are made for the welfare of the citizen and the protection of humankind.
The truth about custodial violence in India
A death that takes place in a correctional facility or while a person is under the care of law enforcement is referred to as a custodial death. It can occur due to various causes, such as excessive use of force, neglect, or abuse by the authorities.
Custodial death is not just a case in Indian society; it is practised around the world. In the custodial death case of the USA, on May 25, 2020, George Floyd, a 46 year old black American man, was murdered in Minneapolis by Derek Chauvin, a 44 year old white police officer. Floyd had been arrested after a store clerk alleged that he made a purchase of cigarettes using a counterfeit $20 bill. Their was a huge protest in the USA due to the fact that Congress introduced a Police Reform Bill, and along with that, a National Database for Police Conduct was made to maintain the police register. In India, an Anti-Torture Bill was talked about but never passed.
What are the reasons behind custodial death
There are various reasons behind custodial death; some of them are:-
Absence of strong legislation- India does not have anti-torture legislation and is yet to criminalise custodial violence.
Excessive force- The police use excessive force and torture the victim brutally in order to make him talk or to give them the information they want.
Lengthy judicial processes- Due to the lengthy and expensive formal processes followed by courts, they deter the poor and the vulnerable.
Psychological aspects- this is one of the aspects in which prisoners are completely neglected, and there is no psychiatric help available to these inmates to cope with the trauma they face.
Other factors:
Medical neglect or lack of medical attention, and even suicide.
Poor training or a lack of accountability among official employees like police officers or government servants.
Inadequate or substandard conditions in detention centres.
Provisions regarding custodial deaths
Constitutional Provisions
Article 21
Article 21 states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian Constitution.
Article 22
Article 22 provides “protection against arrest and detention in certain cases”. The right to counsel is also a fundamental right under Article 22(1) of the Indian Constitution.
Other provisions
Code of Criminal Procedure (CrPc)
In 2009, amendments were made to Section 41 of the Code of Criminal Procedure of 1973 to include protections against arbitrary arrests and detentions for questioning; documented procedures and reasonable grounds for the detention; transparency regarding the arrest process for family, friends, and the public; and access to legal representation for protection.
Section 302 of the Indian Penal Code: If a police officer is liable for the death of a suspect in the course of custody, he or she will be charged with murder and punished.
History of custodial deaths
Custodial deaths are not a recent problem or concept for countries like India. The first time it was raised was in the UN Convention on Torture of 1975. India is a signatory member of the UN, so to apply any law by the UN in India, firstly, our parliament has to make a law for it. So, in Lok Sabha, a Prevention of Torture Bill 2010 was introduced. Under this Bill, if any public servant is seen doing any torture, punishment is provided. Here, ‘Torture’ means if any public servant pulls out the information from any individual or third party by grievous hurt to life, limb, or mentally torture, then punishment for ten years will be provided.
The Bill was passed to the Rajya Sabha Select Committee. Their recommendations were the following:
Expanding the definition of torture
Torture against woman or child should have severe punishments
And set up an independent authority.
But still, after many changes, the bill was not passed by the Rajya Sabha. In 2017, the law commission said, “We are seriously considering the bill and looking into it.” Changes will be required in IPC, CrPC, and evidence.
Landmark judgements on police violence and custodial deaths
Rudal Shah vs. State of Bihar and Anr. (1983)
In this case, the Supreme Court said for the first time that if there is a violation of the basic rights of an individual by a state, then he/she should be liable for a fine.
Facts of the case
Rudal Shah, the petitioner, was arrested for the murder of his wife. After serving his sentence, he was acquitted by the session court of Muzaffarpur, Bihar. However, he was not set freed from prison; after serving 14 years more, he was freed from jail. So, a petition for Habeas Corpus was filed before the Supreme Court (to have a body) on the ground that the petitioner was detained beyond the period of imprisonment.
Issues raised
The court was faced with the question of whether the petitioner is entitled to compensation under the ambit of Article 32 of the Indian Constitution?
Does the right to compensation for illegal detention fall under the purview of Article 21 of the Indian Constitution?
Judgement by the Court
The judges issued the petition, saying that the imprisonment of Mr. Rudal Shah (the petitioner) beyond the term of imprisonment was completely illegal. Moreover, he also added that someone could not be detained for a longer period of time if he had been mentally ill just at the time he was freed. So, a compensation of Rs. 30,000 in addition to the sum of Rs. 5000 was awarded to the petitioner.
D. K Basu vs. State of West Bengal and Ors. (1997)
Facts of the case
In this case, D.K. Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organisation, wrote to the Supreme Court of India, drawing his attention to news about deaths in police custody published in the Telegraph Newspaper. The petitioner requested that his letter be accepted as Writ petition under the “Public Interest Litigation” category.
While the petition was still being considered, Mr. Ashok Kumar Johari wrote to the Chief Justice about Mahesh Bihari of Pikhana’s death in Aligarh Police custody. Both of these letters were deemed Writ petitions. The Court sent notices to India’s law commissions and all state governments, demanding that they come up with suitable measures to deal with the situation within two months.
Issues raised
Why are there more crimes against people in custody or in lockups every day?
Is it necessary to give specific guidelines in order to make an arrest?
Guidelines issued
The guidelines issued by the Apex Court are as follows:
To maintain an arrest memo regarding all the details of the arrest, for example, witness signature, time, date, and place of arrest.
Relatives should be informed about the arrest of the person.
Police must notify a detainee’s time of detention and place of custody where he is being kept to the detainee’s next friend.
The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detained.
The arrestee must also be examined at the time of his arrest, and all major and minor injuries , if present on the body, must be recorded. And the inspection memo must be signed by both the detainee and the arresting police officer.
Their should be a medical examination of an arrested person by a trained physician every 48 hours.
Copies of all this should be sent to the magistrate.
During interrogation, the arrested person can meet with his/her lawyer.
There is a police control room in every state or district headquarters.
Conclusion
India’s police force interrogates suspects and extracts information from them using force or third-degree torture. As a result, the accused committed suicide by severing his nerves, hanging himself, poisoning himself,or burning himself. Lack of proper training and preparation for interrogations and bias-based harassment of the accused led to a day by day increase in custodial violence every year.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article is written by Adv. Komal Arora. It is a comprehensive guide to the international LLM in Business Law, which includes the universities, entrance exams, admission requirements for universities, and career options. Though the article discusses international LLM in Business Law, there is also a brief guide for those who are interested in pursuing LLM in Business Law in India.
It has been published by Rachit Garg.
Table of Contents
Introduction
Done with your undergraduate law degree and confused about what to choose for your LLM specialisation? Think no more. Opt for business law. The world of business law is getting more extensive with cutting-edge technology, start-ups, smart contracts, and virtual legal firms; it has created a massive need for competent legal practitioners who can navigate through complex laws. It is a career that is in high demand and will only get more interesting in the coming years. The curriculum of the postgraduate degree in international LLM in business laws will provide you with in-depth knowledge and expertise on topics like trade, contract law, corporate law, trademarks, etc. in an international context.
This article covers a comprehensive guide to pursuing an international LLM in Business law. Read along to learn how to make an international career in business law!
What exactly is an international LLM degree
LLM is short for Master of Laws. The term is taken from the Latin term Legum Magister. It can be defined as an advanced level postgraduate course that gives better knowledge of the specialisation chosen. An international LLM in business law is a postgraduate course from an international university abroad that focuses on understanding the nuances of business law and equips you with the skills required to excel in global business competition.
Is LLB mandatory for an international LLM
In India, students are admitted to any LLM course only after they have completed their LLB degree. It is considered a prerequisite for a master’s degree, as an undergraduate degree sets the groundwork for studying the specialisation. Some universities allow non-law graduates to pursue an LLM. The Universities abroad also allow candidates without a law degree to pursue an LLM. The requirement in such a case is to showcase your interest in the field through previous work experience it. Obviously, these Universities expect you to have a basic understanding of the law or to undergo such a short course so that you can be on par with other students.
As an example, here are some Universities in the U.K. where candidates can do an LLM in business law without an LLB degree:
1. Cardiff Metropolitan University (UWIC) offers courses in international business law
2. Bournemouth University offers courses in International commercial law
3. University of Derby offers courses in commercial law.
How international LLM in Business Law might be a game changer
Pursuing an international LLM in business law can be termed a game changer, as the future belongs to it. It is a transformative educational experience that will provide you with the right career opportunities to set you apart from others. Here are some reasons why studying business law at international universities is the right choice:
1. It is an international master’s degree, which is different from the standard LLM in India. The corporate world needs to comply with several legal requirements. There are laws like intellectual property, taxation, insurance, capital markets, mergers and acquisitions, and others that have cross-country legal complexities. This degree covers all subjects concerning international borders.
2. An international LLM in business law provides a global perspective on the implications of business law and is a specialisation that leads to various career opportunities. Having knowledge of the business laws of other developed countries will advance your career trajectory.
3. Business law is a field where, in one way or another, there are several opportunities for cross-cultural issues. It is a competitive environment, and there are unlimited resources available in this field. Studying international LLM in business law at the right time and in the right place may lead to valuable job opportunities.
4. The versatile skills acquired in studying business law abroad play a very important role in establishing a global career. It can build strong international networks, which can pave the way for a wide range of opportunities.
Who should pursue an v
An international LLM in business law is a specialisation that provides a conceptual understanding of a wide range of business-related legal issues. Primarily, the LLM programme is beneficial for anyone who is inclined to study business law, has a passion for it, or wants to explore a distinct field of law. Let’s look at who can study an international LLM in business law:
Students: Students with the curiosity to dive deep into the intricacies of business law should do their international LLM in business law. It is definitely a great career opportunity, but along with it, the exposure it gives can positively alter your personality.
International legal practitioners: Lawyers who are already practising on cross-country business legal matters can also benefit from studying business law. They can use this advanced knowledge to gain better opportunities to work and expand their legal services.
Aspiring start-up founders: Start-up founders or business owners who want to establish their business internationally should study business law to make informed choices about their legal matters. They can always rely on their own knowledge and not be dependent on others to resolve legal disputes and ensure that their businesses adhere to international business laws.
In-house counsels: Lawyers who work as in-house counsels generally work for big multinational corporations, companies, or law firms; they can study business law to derive a thorough understanding of the complexities of their recruiting company’s operations and regulations. It is an additional set of legal skills that can always be useful.
International compliance professionals: Those who work as compliance professionals always need to be updated with the current international laws like the back of their hand. The international LLM programme can be highly beneficial to them as they can manage their roles better.
Specialisations available for international LLMs in Business Law
Business law can be said to be an umbrella term that encompasses different subjects like commercial law, corporate law, insolvency and bankruptcy laws, banking laws, taxation, and many more. There is some confusion among the students about what business law is and how it differs from commercial and corporate laws, so let’s sort that out first.
Business law is also sometimes referred to as corporate law, which covers fields such as corporate governance, management, financing, regulations, etc. Business law starts with the formation and incorporation of businesses, capital requirements, acquisitions and mergers, corporate governance, and the rights of shareholders to the dissolution of businesses. Commercial law, on the other hand, covers subjects relating to trade, industry, commerce, etc. These laws are relevant to ensuring the smooth functioning of businesses. It is definitely a part of business law but also covers some additional subjects.
The types of LLM specialisations in business law can be summarised as follows:
Commercial law: This term covers laws like contract law, negotiable instruments, labour laws, etc.
Corporate law: This term includes laws such as corporate governance, mergers and acquisitions, banking, and others.
International business law: This field gives exposure to different countries and their business legal frameworks, trade agreements, and international trade law.
Competition law: The term competition law includes antitrust regulations, monopolies, and fair competition within the market.
Tax law: Taxation is an important technical field concerning types of tax, corporate tax, international tax, and its rules.
Banking, finance and securities laws: This specialisation focuses on banking operations, securities regulations, investment funds, etc.
Environment law: This field deals with energy, environment, sustainable development, and their laws.
Fintech law: It is an emerging field of law which covers services like blockchain, cryptocurrencies, digital payments, etc.
Learning outcomes of international LLM in Business Law
The International LLM in business law is a programme that enhances the knowledge of students by aiming to fulfil these learning objectives:
A deeper understanding of laws affecting business and principles and doctrines relevant to business law.
Conduct research and provide solutions to improve the functioning of a business. Research methods are a very important subject in any LLM course. It guides you as to how to research and draft the policies following the research methods.
As a part of business law, the students are required to make contracts from scratch, negotiate as lawyers, and review contracts for their client’s best interests. Thus, contract drafting and negotiations are another important part of the LLM course.
Students will learn how to incorporate the strategies and policies of businesses into their legal framework. Learning how to make sound legal basis for the rules and regulations of a business is essential when working in the business law field.
Students will gain an international legal perspective. It means that the students doing an international LLM in business law also equip themselves with comparative studies of business-related laws and how different jurisdictions favour business, giving them a wide view of how business is carried on around the world.
Students are required to engage with their faculty, researchers, scholars, and professionals in their field and create their own space through building professional networks and opportunities. Making a strong network is also an important part of learning.
What skills are gained from international LLM in Business Law
The skills that the students will learn from their time in an international LLM in business law will prove helpful for their entire careers. After all, a great set of skills is essential to survive in this competitive market. After completing their postgraduate programme in business law, here are some skills that the students will gain:
Legal expertise, as the master’s course aims to provide expert knowledge on every subject.
Contract drafting is the basic skill required in business law. Understanding how contracts are drafted in different countries is an excellent skill.
Compliance with international regulations and laws.
Critical thinking is a skill earned when there is an analysis of international laws, case studies, judgements, etc.
Legal research proficiency is essential for any legal profession, and the master’s course is also based on researching and developing reports based on it.
Dispute resolution and negotiation are other skills acquired after learning about dispute resolution laws.
Global perspective of laws
Multidisciplinary knowledge of laws as this course offers a variety of subjects and how they all impact each other
The skill of time management is gained, as the course is generally hectic and requires intelligent and productive use of time
Effective communication skills are needed to share the discrepancies after researching the problem
Potential career options
After completing an international LLM in business law, many career opportunities can be pursued based on your interests. Here are a few common career opportunities after an international LLM in business law:
Corporate lawyer
The first career option after graduating with a degree in business law is to work as a corporate lawyer. A corporate lawyer works for companies, domestic and international.
Roles of a corporate lawyer
As a corporate lawyer, you will work on ensuring compliance with the laws and policies of the company, handle legal issues of mergers and acquisitions, preparing legal documents for the business, represent the business, and give legal advice to the company. To become a corporate lawyer, you need to first qualify for the Bar examination in that country.
Corporate Paralegal
A paralegal is a trained professional who assists the business in doing its legal and court-related work. The difference is that paralegals are not required to pass the Bar exam in that country. So, after an international LLM, you can still work as a corporate paralegal after obtaining a paralegal certificate.
Roles of a corporate paralegal
As a corporate paralegal, the work is mostly the same as that of a general paralegal, but it is about business law. They must draft legal documents and contracts, do case management, do legal analysis, search for precedents, etc.
Compliance officer
A compliance officer is a very important part of the business. They work with management to comply with the rules of business and the laws. Their work is to manage and minimise exposure to risk and penalties. To become a compliance officer, you can opt for business, financial, or environmental compliance.
Roles of a compliance officer
A compliance officer must make sure that the client’s business follows the state’s rules and regulations. They must regularly update the client’s policies and find out the inconsistencies between the law and their policies.
In house counsel
An in-house counsel is different from a corporate lawyer in that he works for just one client and works collectively in almost all fields. Being employed as in-house counsel is becoming more tempting with its benefits over litigation. You can read why in-house counsel jobs are more attractive here.
Role of an in-house counsel
As an in-house counsel, your role consists of dealing with all the legal issues of the company. They do everything that other legal professionals do, but just for the company they work for. It includes ensuring legal compliance, drafting documents, researching legal developments, providing legal advice to businesses, corporate social responsibility aspects, etc.
Banking and finance lawyer
Banking regulation, securities, and investment funds are all covered by the job of a banking and finance lawyer. It is a difficult subject, which is why there is more demand for it.
Roles of a banking and finance lawyer
A banking and finance lawyer is responsible for ensuring tax compliance, dealing with insolvency and banking rules, commercial rules, etc.
Arbitrator or mediator
It is another interesting job choice nowadays. As an arbitrator or mediator, you have the responsibility of settling disputes out of court, following the arbitration rules. An international LLM in business law also gives you an insight into the career prospects of arbitrators and mediators around the world.
Roles of an arbitrator or mediator
An arbitrator settles the disputes between the parties by hearing both sides, evaluating evidence, and then passing an arbitration award. The mediator, on the other hand, doesn’t pass any judgment or award. Their role is to guide the parties towards a settlement.
Legal departments of government organisations
After an international LLM in business law, one can take up the job of working with the government as policymaker and legal advisor to make laws that actually affect the business and its growth.
Roles of a government legal officer
The role of a government legal officer includes drafting legislation and policies, analysing the data, conducting consultations with stakeholders, etc. You may work as a policy advisor, legal advisor, securities officer, etc.
Technology lawyer
As a technology lawyer, you will work at the crossroads of law and technology. Business law graduates are taught about the latest emerging technology and its potential implications for the traditional legal world.
Roles of a technology lawyer
A technology lawyer specialises in smart upcoming technologies, smart contracts, information technology rules and their compliance, etc. The role of a technology lawyer is fundamental due to the fast pace of changes in technology, and pursuing it is a very wise choice.
Academic scholar or researcher
Being a part of academia or a researcher in any organisation is a safe career option that has attracted many graduates over the years. Pursuing a career in academia is a good choice, as in business law there is always scope for research and finding loopholes.
Roles of an academic scholar or researcher
Being in academia, your responsibilities depend on your role. You can opt to be a professor of business law, academic researcher, academic writer and analyst, research assistant, etc.
Career
Expected average pay per month (in India)
Corporate Lawyer
The job pays as per experience and location: it can be between Rs. 30,000 to 50,000. Check here.
Corporate Paralegal
The job also pays as per experience and job location: it can be around Rs. 30,000
Compliance officer
The average pay can be between Rs. 30,000 to 50,000.
In house counsels
Rs. 45,000 to Rs. 50,000.
Banking and finance lawyer
Rs. 30,000 to 50,000.
Arbitrator / Mediator
Rs. 40,000 to 60,000
Government official
Rs. 30,000 to 60,000 depending on the state.
Technology lawyer
Rs. 30,000 to 50,000.
Academic scholar or researcher
Rs. 20,000 to 50,000.
Please note: The figures stated above are only the average expected pay for the jobs. These figures go up when there is a change in experience and job location. This comparative analysis can be used only to find the salary variance between these jobs.
Requirements for pursuing an international LLM in Business Law from the USA
Essentials for admission
Previous academic transcripts, which include LLB from a recognised university English proficiency score or IELTS score Statement of purpose SoPTwo letters of recommendation The candidate must have GPA on a scale of 3
Duration of the course
The term for an LLM programme in the USA is generally one or two years, depending on the university.
Cost of LLM
On average, the cost ranges between 66,924 USD and 75,572 USD per year
Requirements for pursuing an international LLM in Business Law from UK
Essentials for admission
Academic records of LLB and previous studies Score in IELTS, TOEFL, or PTELSAT is applicable for some universities Letter of recommendation Statement of purpose (SoP)
Duration of the course
The term for an LLM programme in the UK is one year.
Cost of LLM
The cost of LLM is between 19,500 GBP to 45,655 GBP.
Requirements for pursuing an international LLM in Business Law from Germany
Essentials for admission
Academic records of LLB and previous studies Score in IELTS of 6.5 German language proficiency test (DAF or DSH) Latest ResumeLetter of motivation
Duration of the course
The term for an LLM programme in Germany is one or two years
Cost of LLM
The cost of studying in Germany is between 5,000 EUR and 18,000 EUR.
Requirements for pursuing an international LLM in Business Law from Australia
Essentials for admission
Academic records of LLB and 10th and 12th marks Score in IELTS of at least 6.5 Letter of recommendation Statement of purpose SoP Latest resume
Duration of the course
The term for an LLM programme in Australia is one or two years.
Cost of LLM
The cost of studying in Australia may fall between 35,000 and 54,000 AUD
Requirements for pursuing an international LLM in Business Law from Canada
Essentials for admission
Bachelor’s degree with a good score Score in IELTS or TOEFLLSAT is applicable for some universities Letter of recommendation Statement of purpose SoP
Duration of the course
The term for an LLM programme in Canada is one or two years.
Cost of LLM
The cost of studying in Canada is between 10,000 and 40,000 CAD.
How to choose the right university for an international LLM
LLM is a reputable degree that helps law students gain in-depth knowledge about the field that they want to pursue. With billions of new businesses thriving across the world, students across the globe have started showing interest in the study of business and commercial laws. In its short duration, business law has proven to be quite a popular course in the legal fraternity. The international LLM programme in business law focuses on the establishment and setting up of businesses in different parts of the world, deals with taxes and finances, how to enter into contracts, and that too, what contacts to enter into. It also deals with mergers and acquisitions, corporate governance, investments, dispute resolution, business ethics, etc.
It must be noted that not every institute has the same course outline. The details of the course keep changing, depending on the institute. There may be universities that focus more on one aspect of business law than another. Several institutes offer international LLMs in business law. However, instead of going by some report on the ranking of the universities that offer the programme, a candidate should always focus on what works for them and what does not. Every institute has a different programme, so before deciding on the institute, thorough research should be done, not only as to its rank but also as to its course structure, fee, placement opportunities, scholarships, etc.
The relevant factors to be considered in choosing the right university for pursuing an international LLM are:
Quality of education: A university that offers a high standard of education should be preferred.
Networking: The major reason why students opt for LLMs from international universities is to make contacts and create a valuable networking community. This network is beneficial for finding better jobs and building professional relationships.
Tuition fee: The fee is an important factor in determining which university should be chosen. Scholarships and grants are also counted to find the right university that doesn’t burn a hole in their pockets.
The geographical location: The location of the country, the city, and its familiarity should also be taken into consideration. Sometimes a student prefers going to a particular university, as it offers some sense of familiarity and comfort.
Recruitment offers: The career opportunities that the universities provide after LLM are a very important factor, as every student who comes to university is in search of better career prospects.
Top international universities for LLM in Business Law
In the international scenario, many universities are offering international LLM courses in business law. Let’s look at that:
United States of America
Harvard Law School
Harvard is an institute that needs no introduction. With its incredible reputation and stunning academic staff, Harvard is one of the most sought-after schools in the world. They offer a one-year degree programme that includes 180 students from various parts of the world. The course offers various specialisations such as constitutional, business, finance, legal theory, human rights, etc. The link for the institute can be accessed from here.
Stanford University
Stanford Law School is another great institute for students. It offers an LLM degree in four fields, namely corporate governance, environmental law, economic and business law, and science and technology. The business law programmes of the university cover a wide variety of subjects such as taxation, securities litigation, mergers and acquisitions, finance, investment law, corporation reorganisation, contract drafting, etc. The link for the institute can be accessed from here.
Berkeley School of Law
This is another great institute to get your postgraduate degree from. It offers a bunch of LLM courses. The students, however, have to complete mandatory coursework in the fundamentals of the USA and legal research and writing, and then they may customise their studies by choosing courses from the courses offered. The elective courses offered include business law and economics, amongst others. It covers contracts, employment law, drafting of contracts, taxation, negotiations, insurance, insider trading in the courses offered. The link for the institute can be accessed from here.
Yale University
Yale University is ranked as one of the best universities in the world. Even though the university offers only one LLM course, which is general LLM. The course offered is elective and depends on what subjects the students take. The link for the institute can be accessed from here.
Columbia Law School
The institute is well regarded for its varied programmes. The LLM offered by the institute is for one year and provides boundless growth opportunities. They have a lot of specialisations to offer the students. One of them is business and transactional law. The institute provides opportunities to learn and participate in many workshops, attend conferences, serve as research fellows, and also gain real-world life experiences in business law. The link for the institute can be accessed from here.
New York University
The institute is known for its diverse offerings in various fields. Though NYU doesn’t offer an LLM in business law exclusively. It has the most robust reputation in the legal world. It offers a bunch of strong LLM programmes. The university offers a “design your own LLM” programme where the students get to choose from 300+ courses and design their own curriculum. Instead of sticking to a structure that has been created by the university for all students alike, students get to plan their programmes on their own. This will make sure that the students opt for those subjects that truly interest them and that they want to pursue. They also have a graduate learning programme that helps students from countries other than the USA develop skills that will help them settle there. The link for the institute can be accessed from here.
Georgetown University
The University has a stellar reputation for its courses. The LLM programmes offered by the university are in taxation, security law, global health law, technology, environment law, and international business and economic law. Their degree in international business and economic law is a flexible degree programme for students who are interested in cross-border business activities. It allows students to gain exposure to the fundamentals of international business law. The link for the institute can be accessed from here.
UCLA School Of Law
It is one of the premier law schools in the world. It provides a dynamic, flexible curriculum that appeals to a wide range of interests. It provides specialisations in various fields such as business law, comparative law, media, entertainment, and technology law. It offers amazing courses on transactional law, tax law, finance law, mergers and acquisitions, etc. The link for the institute can be accessed from here.
University of Chicago
The Law School at the University of Chicago offers a great course for students. The courses offered range from administrative law, clinical courses, constitutional courses, environmental law, jurisprudence, taxation, and business and commercial law. The LLM in commercial and corporate law focuses on advanced contracts, business strategy, and contract governance; it also provides for state-specific corporate laws. The link for the institute can be accessed from here.
United Kingdom
Oxford University
Oxford University is one of the most respected universities in the world. It provides LLMs in fields such as criminology, intellectual property, human rights, finance, taxation, etc. It doesn’t offer a specialisation in business law but covers a lot of important facets of international business law. They provide students with practical exposure to equip them with skills to stand out from the crowd. The link for the institute can be accessed from here.
King’s College, London
This institute provides a respected LLM course that is recognised throughout the world and across legal disciplines. Aside from the general LLM, it provides nine specialisations to choose from. The specialisations are competition law, European law, intellectual property, international business law, financial law, dispute resolution, taxation law, law and technology, and transnational law. The link for the institute can be accessed from here.
Queen Mary University Of London
Queen Mary University is an institute with an impeccable reputation, and it offers a good variety of LLM programmes for its postgraduate students. Their LLM in international business law is structured in such a way that the students are able to gain knowledge of business regulations around the world and tailor the course according to their own career path. The link for the institute can be accessed from here.
London School Of Economics and Political Science
The school set up in London offers LLM in international business law, which delves into various fields such as taxation law, competition law, banking law, etc. Their LLM course focuses on transactions in the international business regime, conflicts of laws, global governance, contracts and property, etc. They have more than 30 courses that also include international business law. The link for the institute can be accessed from here.
University Of Edinburgh
The university provides an LLM programme to be taken full-time over one year or part-time for two years. It offers a wide range of subjects for students to choose from. Out of the many specialisations offered by the university, there is a specialisation in commercial law courses as well. It provides subjects such as company law, comparative corporate governance, corporation law, commercial arbitration, international trade, contract law, and applied corporate law. The link for the institute can be accessed from here.
Canada
University of Toronto
Canada’s University of Toronto has a popular LLM course with a specialisation in business law. The institute offers a flexible full-time academic programme with concentrations in various fields such as: business law, criminal law, legal theory, health law, ethics, and policy. The university offers a rich curriculum in business law that offers more than 10-15 courses to concentrate on business law. The university has brilliant teachers and actual business law practitioners to help students gain real-world experience. The link for the institute can be accessed from here.
Australia
The University of New South Wales (UNSW Sydney)
The LLM offered by the institute is highly regarded and recognized. It has an LLM course for a year that has a wide array of subjects to choose from. In international business law, the institute offers LLMs in Chinese international business and economic law, corporate, commercial, taxation law, and dispute resolution. The link for the institute can be accessed from here.
Australian National University
The university provides for a one-year full-time LLM and up to five years of part-time LLM. It offers specialisation in private and commercial law as well. The university offers a lot of career opportunities for the students, not just in the area of law, but also in international business, diplomacy, banking and finance etc. The link for the institute can be accessed from here.
Singapore
National University of Singapore
The National University of Singapore (NUS) also offers an LLM in international business law. The course is offered along with the East China University of Political Science and Law, which is among China’s top law schools. The course is partially taught in Singapore and then partially in Shanghai. The institute is staffed with academicians from leading law schools in more than a dozen jurisdictions. The link for the institute can be accessed from here.
Netherlands
Leiden University
Leiden University, established in the Netherlands, is also a quite popular institute for students pursuing an LLM. It offers a bunch of specialisations, including labour law, civil law, European law, financial law, company law, public international law, and constitutional law. Though the university doesn’t explicitly mention the business law degree, it Is covered in company law. The program prepares its students for a career in international business law, commercial legal practice, or legal consultancy. However, it should be noted that the course is offered only in Dutch, so if students know the language, they can pursue it. The link for the institute can be accessed from here.
Switzerland
University of Zurich
The University of Zurich also provides a good variety of LLM specialisations. It provides the students with an opportunity to learn not only in English but also in German. The university has been offering the courses in international business law for more than 20 years. It flaunts more than 200 years of experience. The link for the institute can be accessed from here.
It must always be remembered that admission to these programmes can be cut-throat. These institutes have a limited number of seats in programmes, so timely application is crucial to getting a seat in any of these institutes.
Top Indian universities for LLM in Business Law
Our country is filled with numerous great institutes that are well respected throughout the world for their legal programmes. Though the article deals with International LLMs in business law, for students who are willing to explore LLMs in business law while being in India, we are hereby providing you with a list of the 20 best colleges that provide LLMs in business law. Here is the list:
National Academy Of Legal Studies And Research (NALSAR)
The university is one of the top-rated universities in India and gives students a wide array of specialisations to choose from. Instead of taking a strict approach, the university allows the students to structure their own specialisations and choose subjects that they are interested in. They have three mandatory courses, such as research methods, law and justice in the globalising world, and comparative public systems of governance. Except these, the students get to choose from fields such as criminal law, constitutional law, intellectual property rights, trade laws, corporate law, etc. The admissions process for the programme at the institute is determined by the Common Law Admission Test (CLAT) PG score. The website of the institute is available here.
National Law University, Jodhpur
It is one of the most respected National law universities in the country. It provides a one-year LLM programme in two specialisations. One is that of corporate laws, and another is that of intellectual property rights. The programme consists of two semesters, and along with the chosen specialisation, the students are expected to study research methods, law, and justice in the globalising world as well. The corporate laws specialisations aim to focus on investment law, taxation, corporate governance, financial law, competition law, corporate restructuring, etc. The admissions process for the programme at the institute is determined by the Common Law Admission Test (CLAT) PG score. The website of the institute is available here.
National Law Institute University, Bhopal
It is an amazing institute that offers LLMs in three distinct fields. These are intellectual property and business law; constitutional and administrative law; and lastly, human rights and criminal law. The admissions process for the programme at the institute is determined by the Common Law Admission Test (CLAT) PG score. The website of the institute is available here.
Indian Law Institute, New Delhi
It is a well-established institute in the country that is distinct from the National law universities. It not only offers LLM, but also a wide range of postgraduate diploma programmes to choose from. The options include alternative dispute resolution, corporate law and management, cyber law, intellectual property rights laws, and labour laws as well. The website of the institute is available here.
Symbiosis Law School, Pune
Even though the institute isn’t a national law university, it has all the aspects of one. It has an LLM for one year in various specialisations such as business and corporate law, constitutional and administrative law, technology law, criminal and security law, family law, European law, and international law. It provides the students with an opportunity to choose elective subjects from their chosen specialisation and allows them to curate their own specialisation. The website of the institute is available here.
National Law University, Odisha
Another premier institute in India that offers LLM programmes to students is the National Law University Odisha (NIU). It focuses on legal teaching for students who want to explore that career path. It provides for specialisation in corporate law and commercial law, and another in constitutional law and administrative law. The course comprises three compulsory papers and six optional ones. The admissions process for the programme at the institute is determined by the Common Law Admission Test (CLAT) score. The website of the institute is available here.
Indian Law Society, Pune
The Indian Law Society, more popularly called ILS, Pune, is a very old law school that was established in 1924. The institute provides a lot of courses for students to choose from. Among other courses, they offer postgraduate degree courses. The LLM programme offered by this institute deals explicitly with specialisation in business law. It offers a varied list of subjects to choose from, such as alternative dispute resolution, insurance, media laws, intellectual property rights, corporate finance, etc. The website of the institute is available here.
Christ University, Bangalore
It is another great institute that offers LLM degrees to students in corporate and commercial law. The course is structured in such a way that students get the skills to practise in the area of corporate law. It aims to align the objectives of a corporate lawyer with the aims of the business itself. The subjects included in the specialisation range from international trade law, and commercial arbitration to corporate governance. The website of the institute is available here.
Hidayatullah National Law University, Raipur
The university offers a one-year LLM programme that is spread over two semesters. The programme is designed to inculcate in the students’ research skills and analytical abilities. It offers three specialisations to choose from: corporate law, intellectual property rights, technology, and law. The admissions for the programme at the institute are determined by the Common Law Admission Test (CLAT) PG score. The website of the institute is available here.
Ramaiah College of Law, Bengaluru
The institute was established in 1995, and it offers some great programmes for students. It gives the students the opportunity to take business and trade law as their specialisations. However, the student intake for the course is restricted to 20 only. So, a timely application should be made. The website of the institute is available here.
Kalinga Institute of Industrial Technology (KIIT), Odisha
The KIIT School of Law also offers students a one-year LLM degree programme. It consists of two semesters. It has three compulsory subjects for the students, and the rest are optional. Among the optional subjects are: international and comparative law, corporate and commercial laws, criminal and security law, family and social security law, constitutional and administrative law, legal pedagogy, and research. The website of the institute is available here.
Amity University, Noida
The institute offers a one-year LLM programme to students in corporate banking and insurance laws, taxation laws, medical and health law, media and entertainment laws, international trade and economic laws, environmental laws, and intellectual property laws. The specialisation on international trade laws focuses on WTO agreements, the development of international trade laws, competition law, commodity agreements, intellectual property rights, investment, and foreign collaboration law. The website of the institute is available here.
Lovely Professional University, Phagwara, Punjab
Lovely Professional University (LPU) offers students the opportunity to select their LLM degree from five legal fields. This covers business laws, intellectual property law, international law, constitutional law, and criminal law. The degree spans one year, which is two semesters. The website of the institute is available here.
ICFAI Hyderabad
The institute provides the students with the opportunity to do their LLM for one or two years, depending on what they want. They offer LLMs in international law and business law as well. It is offered with an innovative curriculum, an emphasis on theoretical learning, and an extensive practical approach through projects and internships. The website of the institute is available here.
Lloyd Law College, Greater Noida
The college has a popular LLM course in international and commercial law. It reflects the global curriculum, and the degree programmes are open to Indian and SAARC students. It aims to provide a distinctive edge to law students by providing an LLM that prepares them to gain practical experience. The website of the institute is available here.
The Tamil Nadu Dr. Ambedkar Law University, Chennai
The university provides a wide array of specialisations to choose from. These are business law, constitutional and human rights law, environmental law, labour law, taxation, maritime law, etc. The specialisation in business law covers the legal framework of corporate management and governance, banking law, competition law, industrial intellectual property, insurance law, cyber law, etc. The website of the institute is available here.
Guru Gobind Singh Indraprastha University (GGSIPU), Delhi
Another leading institute that offers students an LLM in varied fields such as criminal, corporate, and even alternative dispute resolution. Their specialisation in corporate law covers the regulation of capital markets, corporate taxation, insurance laws, laws of corporate finance, and securities regulations, aside from the compulsory subjects to be taken by the students. The website of the institute is available here.
IMS Unison University
The university set up in Dehradun also offers an LLM for one year spread across two semesters. It is designed to provide extensive knowledge to the students to enable them to face challenges in their professional careers. It offers specialisation in constitutional and administrative law, criminal and security law, corporate and commercial laws, international and comparative laws, family laws, and social security laws as well. The website of the institute is available here.
Kalinga University, Raipur
The institute offers an LLM for a term of two years with dual specialisation. The students are expected to select any two specialisations out of these: business and corporate law, constitutional and administrative law, crime and torts, cyber law, intellectual property, and labour law. The website of the institute is available here.
Geeta University, Panipat
The university offers the students a two-year LLM course that spans two semesters. It offers only two fields to choose from: constitutional law and business law. The website of the institute is available here.
Entrance exams for admission to Indian universities
To be admitted for postgraduate courses at any of the Indian universities, there are a few entrance examinations that the candidate needs to pass. Here is a list of the entrance exams for different law schools in India.
CLAT (PG)
The term stands for the Common Law Admission Test. It is the most common national-level entrance exam for admission into any of the 26 National Law Universities of India (NLUs).
Eligibility
Students who wish to pursue their postgraduate course after CLAT-PG must clear the cutoff. The minimum marks required in their undergraduate course are an aggregate of 55%. There is no upper age limit for the students appearing for CLAT PG. The CLAT exam is conducted separately for LLB and LLM courses. The duration of the exam is 2 hours. The registration for the CLAT exam in 2024 is now open, and the exam is due on 3rd December, 2023. Click here for the official website.
LSAT
The term stands for Law School Admission Test. It is another very common exam that is accepted by over 76 law schools in India. Some popular choices after qualifying for the LSAT exams are OP Global Jindal University, UPES, Sharda University, and Lovely Professional University. The duration of the exam is 2 hours and 20 minutes. It has several sections divided into reading comprehension, an experimental section, essay writing, logical reasoning, and analytical reasoning.
Eligibility
The students should have scored an aggregate of 55% in their undergraduate course. Their undergraduate course must be completed at an institution that is recognised by the Bar Council of India. The LSAT 2024 will be conducted in January and May of 2024. Click here for the official website.
DU LLM
The Delhi University LLM entrance test is an exam especially made for entrance to LLM courses. The exam is conducted by the National Testing Agency.
Eligibility
The students should have completed their undergraduate course with an average score of 50% in the general category. The official notification will be released in May 2024.
AILET
The term stands for All India Law Entrance Test. It is conducted by the National Law University, Delhi, for securing admission to the NLU for the LLM course.
Eligibility
The students should have scored an aggregate of 55% in their undergraduate course. The students must have completed their LLB degree from a recognised institute. The registration for AILET is now open, and the exam is due on 10th December, 2023. For the official website, click here.
Fees for these entrance exams
Entrance exam
Fee
CLAT PG
Rs.4000
LSAT
Rs. 3999
DU LLM
Rs. 750
AILET
Rs. 3500
Documents required for admission process for international LLM
Documents that are required in order to apply for the LLM in business law are as follows:
The student’s resume or CV
The student’s passport
Visa documents
Statement of purpose
LSAT scores, if applicable
Letter of recommendation
University diploma
Transcripts from the previous university or law school
English language proficiency scores like IELTS, TOEFL, etc.
Graduate Record Exam scores, if applicable.
Benefits of pursuing LLM abroad vs. LLM in India
The debate on which is better: LLM in India or LLM at International universities, is still up for discussion. Both have their own advantages and disadvantages. To make the right decision, students have to weigh many important factors. Here are some factors that may make studying at an international university or in India seem like a better option.
Let’s discuss the benefits of pursuing an LLM at international universities:
Global exposure: The paramount reason why students prefer going abroad for higher studies is to get international exposure. This perspective leads to a deeper understanding of the legal systems around the world.
Better networking: When the students go and study at places that are outside their own comfort zone, they rely on creating a strong network. It also opens up doors to different career prospects.
Numerous jobs: Pursuing LLM from an internationally recognised institute may have a huge impact on your ability to land a great job. Many firms, companies, and employers prefer employees who come from a well established university.
Specialisation: Sometimes students choose to go to an international university as it is the only place where they can study the specialisation of their choice and make the most of it. For example, students who want to study international law generally prefer to go abroad, as not many institutes in India provide it.
On the other hand, here is how the Indian universities have their own advantages:
Cost effective: International universities may fall out of the budget of some students, and that is a fact that will always be in the favour of Indian universities. In India, the universities have lower tuition fees, and the living costs are way lower. It is true that many international universities offer scholarships, but they may not always cover the entire expenses.
Familiarity: The feeling of being close to home and knowing that adjusting in India is easier is an important factor that makes students opt for Indian universities.
Career prospects: In India, there is a surge in career opportunities. It cannot be denied that India is making its place among the top countries in the world, and it may prove to be the right time to study here and gain from the upcoming career opportunities.
Well known legal system: Pursuing postgraduate studies in India allows the students to work in a familiar legal system. This time is valuable to understand the legal intricacies of the legal system, and instead of learning about some other country’s system, it is better to invest this time where the students want to settle.
Tabular representation of LLM in India vs. LLM abroad
The comparative table given below compares some important factors of the LLM degree in India and abroad. Please note that the information here is just for general comparison.
Factor
LLM from India
LLM from Abroad
Tuition fees
Generally lesser
Generally Higher
Duration
Now, one year LLM is scrapped. And the duration of LLM is set at two years.
Some countries (like in the UK) offer a one year course, while others offer one to two years depending on the university.
Cost of living
Low cost of living
Comparatively higher cost of living
Scholarships
Not many scholarships
Several scholarships
Work opportunities
Limited jobs
Many potential jobs
Exposure
Limited exposure
Global exposure
Quality of education
The quality of education is subjective to the university.
Generally, it is considered that universities abroad may offer better education.
Networking
Limited network
Better network
How much does international LLM in Business Law cost
LLM fees in India range somewhere from Rs. 1,00,000 to Rs. 4,00,000 for one year. However, the fee varies according to the college. The government colleges charge comparatively less; however, the top-ranked colleges in the country charge anywhere from Rs. 2,00,000 to Rs. 5,00,000.
Let’s take a look at the costs of pursuing an LLM in India at different universities:
It is strictly advised that before finalising your institute, you run the costs of pursuing your LLM from that institute. Since the fee changes every year, it is important to get in touch with the authorities before you make your decision.
Fees of LLM from international universities
A lot of students prefer to pursue their master’s degrees abroad because getting their LLM from an institute that has global recognition and presence makes it easier to get opportunities to grow professionally. It helps them develop a broader skill set and a much wider client base. This not only allows them to associate with like-minded people from different parts of the world but also helps them gain more confidence. Indian students who have done their LLB here mostly go abroad to pursue their LLM. However, it must be remembered that there is a material difference between getting a degree from India and one from anywhere outside India. One of the major factors in that regard is cost.
The cost of doing an LLM at a university abroad largely depends on the university and country you choose. But on average, pursuing an LLM from globally recognised universities might cost somewhere between ₹15 – 30 lakhs.
Qualifications required for Indian lawyers to work abroad
To practise in foreign countries, Indian lawyers must possess the following qualifications:
A law degree from university recognised by the Bar Council of India.
Pass the bar exam of the state or country where you wish to practise.
Generally, work experience of two or three years is preferred to be able to practise.
Obtain required score in IELTS or TOEFL.
Pass the qualifying law exam for international students (if applicable).
Bar exams in other countries
In the UK, Indian lawyers have to qualify for the Solicitors Qualifying Examination (SQE). Visit here for the Law Sikho course on SQE.
In the USA, the requirement for Indian lawyers is to qualify for the bar exam, which gets easier after pursuing LLM in the USA, but if the candidate is from a common law country and has experience of two or more years, they can submit their degree for evaluation.
In Canada, Indian lawyers need to pass the National Committee on Accreditation. Visit here for the Law Sikho course on NAC.
In Germany, you must qualify for the German proficiency test, the first legal state exam, and the bar exam.
Skills required for an international career
Businesses around the world are growing at a rapid rate. Whether it’s a start-up or a well-established business, every company needs legal services to continue with their business. From the drafting of various contracts to negotiating with different parties to representing clients in court, every legal aspect of the business has to be handled by a lawyer who has expertise in international business law. Here is a set of skills that you would need in order to succeed as an international business lawyer:
Fluency in English and communication skills
To establish yourself in the field of business law, that is, international business law, the most basic requirement is fluency in English. A lawyer has to enter into contracts, negotiate with parties, and also represent the client; all of this is difficult, if not impossible, without proficiency in the English language. To be heard, one must know how to make an argument. An international LLM degree also helps in this regard by helping you gain communication skills.
Business know-how
As a lawyer in the international business law landscape, you are expected to have knowledge about business laws around the world. You should know the various types of business setups, the type that would most suit your client, and the place to establish them. You should have a broader understanding of business laws. The skills that you acquire in your international LLM in business law will help you gain legal business awareness. As business laws around the world are never static, aspiring lawyers are required to always be updated about legal events.
Negotiation skills
For every lawyer, no matter the field, the art of negotiating is crucial to survival. You should know how to negotiate with different parties on behalf of your client and then help your client resolve disputes and conflicts that may arise in business.
Business ethics
For every legal professional, whether in India or any foreign country, knowing and practising business ethics is significant. These rules direct the lawyers as to what to do and how to do it within the legal framework. Similarly, the lawyer is expected to know not just legal but also business ethics. Maintaining a good reputation in society, amongst the competition, and among the workers is all essential in the field of ethics. Lawyers should support the interests of their clients through moral means.
Knowledge of contract and competition law
Another essential skill that you need to possess to succeed in business law is knowledge of contract and competition law. You should know about the legislation that affects businesses or that might impact the businesses of your clients. Contract and competition law are significant pieces of legislation that heavily affect the workings of businesses.
Contract drafting
Another crucial skill that is required is the drafting of contracts. As an international lawyer who is working in the business law regime, you will more often come across opportunities where your client’s business enters into different contracts with other parties. It may be a manufacturing licence agreement, franchise agreement, founder’s agreement, or any other agreement. The responsibility of drafting a precise contract to deal with such cases is the utmost skill that an international business lawyer must possess.
Other know-how
Other than the above-mentioned skills, a lawyer practising business law should also know about the following:
Taxation laws in the places where your client has business or is setting up business are also important.
Intellectual property applications and laws;
Investment laws;
Employment laws;
Consumer protections laws;
Mergers and acquisitions;
Trade regulations.
Scholarships for Indian students
Chevening scholarship
This scholarship is for Indian students studying a master’s programme in the United Kingdom. The term of the scholarship is one year. It offers full awards and includes tuition fees. Click here to learn more.
Eligibility criteria
The candidate must be a citizen of India.
The candidate must return to India for a minimum of two years after their award ends.
The candidate must have completed undergraduate study to be eligible for postgraduate study in the UK.
The candidate must have at least two years or 2800 hours work experience
Felix scholarship
This scholarship is also for Indian students who wish to pursue their postgraduate studies in the United Kingdom. It covers some prestigious universities like: the University of Reading, the University of Oxford, the University of London, and the School of Oriental and African Studies. It covers the course fees, living costs, and one return flight from India to the UK. Click here to know more.
Eligibility criteria
The candidate must be applying for a full-time master’s course or DPhil course at Oxford.
The candidate must not have previously studied the same course at the same level.
The candidate must need financial assistance to study at these universities.
Tata Trust scholarship
This scholarship is for Indian students who want to pursue their LLMs or PhDs abroad. It is a kind of loan of Rs. 10 lakh that is repayable within seven years and collected in five equal instalments from the end of the third year. Click here to know more.
Eligibility criteria
The candidate should be Indian.
The candidate must not be over 45 years of age.
The candidate must have graduated from a university with at least 60% marks.
The course for which scholarship is applied for must be a postgraduate course.
Aga Khan Foundation Scholarship Programme
This scholarship is for postgraduate studies for students who have no financial means to pay for their studies. It prepares the students for employment opportunities, including the Aga Khan Development Network (AKDN). The scholarships are on a 50% grant and 50% loan basis at 5% annual interest. The period to pay back the 50% loan is five years, which starts after six months of study. Click here to know more.
Eligibility criteria
The candidate does not possess any other financial means to pay for their studies
The candidate must be from a developing country
The candidate must be under 30 years of age.
Commonwealth scholarship
This scholarship is for students from Commonwealth countries who want to do a master’s programme in the United Kingdom. The students apply through the Ministry of Human Resources and Development. The scholarships cover the tuition fees, living allowance, study-related travel, airfare from your country to the UK, and the return thesis grant. Click here to know more.
Eligibility criteria
The candidate must be a citizen of a Commonwealth country.
The candidate must qualify as an undergraduate.
The candidate must need financial assistance.
Rhodes scholarship
This scholarship is for Indian students pursuing postgraduate study at the University of Oxford in the United Kingdom. Being a Rhodes scholar is considered an achievement of its own kind. Click here to learn more.
Eligibility criteria
The candidate must have completed their undergraduate studies with first grade.
Oxford and Cambridge society of India scholarship
The Indian societies of these universities, Oxford and Cambridge, have launched scholarships for Indian students. Click here to learn more.
Eligibility criteria
The candidate must be less than 30 years of age.
The candidate must have completed undergraduate study at an Indian university.
Great Wall Programme
This scholarship is for admission to China, where UNESCO can choose any 75 students for undergraduate or postgraduate studies in China. The scholarship includes a fee waiver of the tuition fee, cost of textbooks, accommodation fee, and living allowance. Click here to know more.
Eligibility criteria
The candidate must not be over 45 years of age.
The candidate must have completed at least two years of undergraduate study.
The candidate must be proficient in English.
New York University scholarship
This scholarship is for doing master’s of law courses at New York University. It specifically covers five scholarships for the field of taxation law. In addition, it also offers three generic LLM scholarships for students. Depending on the type of scholarship, it may cover the tuition fee completely or partially. Click here to know more.
Fulbright – Nehru scholarship
This scholarship is for Indian students who want to do their master’s degree course in the United States. It covers the duration of one or two years and the benefits of grants for visa support, air travel in economy class, tuition fees, accident, and sick fees. Click here to know more.
Eligibility criteria
The candidate must have completed undergraduate studies.
The candidate must have at least three years of full-time professional work experience relevant to their field of study.
University of Queensland
This university in Australia offers four scholarships for international students. The course for scholarships is Master of Laws, Master of International Commercial Law, or Master of International Law. The scholarship includes tuition fee only. Click here to learn more.
Eligibility criteria
The candidate must be an international student.
The course of study must be for a master’s degree.
The candidate must not hold any other scholarships.
Erasmus Mundus joint master’s degree
This scholarship is for students who wish to pursue an LLM from a European Higher education institute. It covers the cost of participation, travel, and a living allowance. Click here to know more.
Eligibility criteria
The candidate must have a bachelor’s degree with recognised credentials.
The candidate must not have stayed for more than 12 months over the last 5 years in any eligible European country at the time of application submission.
The candidate should not have received any similar scholarships.
University of Vienna scholarship
This scholarship is for LLM courses at the university. It covers the tuition fee only. Click here to know more.
Eligibility criteria
The candidate must have a degree in law from any university abroad.
The candidate must be good at academics.
Jagdish Bhagwati fellowship
It is a scholarship from Columbia Law School that is underwritten by the Indian government. It is generally for students pursuing human rights, international trade, and trade law. It funds the academic sessions of three students. In order to be eligible for this scholarship, the candidate must be enrolled at Columbia Law School. Click here to know more.
What next
If you acquire the relevant skills and experience, you can become a corporate lawyer, taxation lawyer, policy advisor, legal advisor, mediator, or anything else you choose to become. You can get employment with non-governmental organisations (NGOs) or even inter-governmental organisations. Organisations like the United Nations also take people who are experienced in business law and search for UN jobs in commercial law. There are many diverse career prospects available for business law lawyers, as discussed above. Where the person lands a job depends on their skills, legal knowledge, experience, and networking.
Major recruiters for business lawyers
We have already discussed what career opportunities are available after the student graduates with an international LLM degree in business law. Now let’s dive into the major recruiters in the world and how to approach these professions.
Law firms
It is perhaps the most obvious recruiter of lawyers. Many law firms specialise in mergers, acquisitions, trade law, and other areas. These firms have a demand for employees who are well versed in the concepts of commercial law.
Financial institutions
Banking, securities, and finance institutions have their own job openings for law officers. It is an excellent job opportunity, as with the background in these laws, business lawyers find it easier to adapt.
In house departments
Large corporations and multinational companies have their own in-house departments. This is an exciting job that is gaining popularity quickly compared to that of a litigator. In order to become an in-house counsel, skills, knowledge, and experience are the three pillars needed to get the desired job. Taking up more internships before completing your course may help you land a job as soon as the degree is done.
Consulting firms
Consulting firms that specialise in legal and regulatory compliance are a good place to work after studying business law. The major work to be undertaken by them is to advise or ensure that the companies comply with the rules.To be employed in a legal consulting firm or to start your own, experience gained through entry level consulting or internships is required. As with any other job, experience makes the chances of getting the job easier. An international LLM in business law will equip you with the business laws to assist you in your career.
Tech companies or start-ups
Tech companies, entrepreneurs or start-ups are often in need of legal expertise on issues like intellectual property, data protection, contract drafting, etc. The best way to establish yourself as a lawyer for startups or companies when working independently is through an online presence on Upwork, LinkedIn, or cold mail. Start ups are generally in need of a lawyer, use this opportunity to establish your career in technology law.
International organisations
International organisations like the United Nations, the International Monetary Fund, and the World Trade Organisation are some popular choices. There are job openings in these international organisations. You can also refer to their career pages to find relevant internships or jobs.
Arbitration and mediation centres
Those students who have a keen interest in dispute resolution methods can work as arbitrators or mediators. It is a profession often referred to as the future of dispute settlement, with many judges making statements about preferring arbitration over court settlement. In order to work as an arbitrator or mediator, you are required to complete the essential requirements under the licence or certificate course. Every state has different rules for the eligibility of arbitrators. In some states, a person can be appointed as an arbitrator only after certain years of expertise. For example, the USA requires 10 years of experience.
Government agencies
Government agencies and regulatory bodies also hire legal experts to draft contracts, regulations and ensure compliance with their laws. To be employed in government agencies, experience, certificates, and knowledge are required.
Non-profit organisations
Non-profit organisations that work in the business sector or have business oriented goals may also have a need for legal expertise for drafting contracts, compliance, or governance. Even if working for non profit organisations may not always pay as much as other jobs, it is an opportunity that will enhance your resume. Taking a fellowship with any such organisation and doing some pro bono work may add to your experience.
Academics or research organisations
Many LLM graduates become professors or researchers in organisations and universities. It is definitely an interesting option, as there are not many professors for commercial subjects. To work in academia, you need to clear certain exams, like in India, where we have the UGC NET or PHD from a reputed university.
Future scope of international LLMs in Business Law
If you have done an international LLM in Business Law, then the opportunities for your growth are immense. From law firms to the government, there is space for lawyers to learn and grow. Your specialisation is what sets you apart from others. The future scope of studying international LLM in Business Law looks promising, as with its diverse legal landscape, it offers higher salaries, academic excellence, higher demand in the market, and better job profiles. After pursuing international LLM law, you are well equipped with expertise to tackle issues of contract drafting, dispute settlement, research proficiency, and intellectual property rights. This is a very unique combination, which may prove beneficial in the coming years.
Frequently asked questions on international LLMs in Business Law
What is the course duration of an international LLM in Business Law degree?
Generally, the duration of an LLM is one to two years.
What factors should be considered to decide the right university for an international LLM in Business Law degree?
Some important factors to be considered when deciding on the university are:
The reputation of the university
The duration of course
Cost of living
Type of specialisation
Fees of the course
What are some of the top countries offering an international LLM in Business Law degree?
If your plan is to go abroad and then do your LLM degree, here is a list of countries with the best LLM programmes:
UK
USA
Germany
Australia
Canada.
What is the benefit of doing an international LLM in Business Law outside India?
An LLM degree abroad can give you a better perspective on the laws of different countries, international networking, and job opportunities.
Can scholarships cover the entire cost of an international LLM in Business Law degree?
Yes, it may depend on the cost of the LLM programme and the scholarships you have availed of. Scholarships can bring down the cost of the degree to a minimum level that can be easily paid.
‘
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Allow notifications
