Cryptocurrency, one of the most popular forms of digital currency, is a kind of decentralised block chain technology that ensures a secure mode of transactions in the current scenario. One of the most popular mediums of transactions, cryptocurrency adds pace to the business by ensuring flexibility for investors in the purchase of goods and services. Being one of the decentralised forms of currency, cryptocurrency is outside the ambit of any financial bodies or governments. The details of all transactions are completely recorded based on a systematic procedure for computer networks, making them less susceptible to manipulation by systems.
Technology related to cryptocurrency
One of the popular forms of virtual currency based on the BlockChain technology capable of encrypting codes helps to remain safe against online fraud and breaches. It has been seen that most countries are devoid of accepting cryptocurrency as a legal form of transaction, despite the fact that cryptocurrency is one of the financial assets, which implies that cryptocurrency can hardly be used for the process of purchasing or selling, irrespective of the fact that crypto currency is a form of financial asset. Although cryptocurrency is not created by a single entity, it cannot be considered a legal form of tender, thus making it difficult to use for any form of transaction.
Block chain technology explained
One of the improved forms of financial transactions that crypto currency refers to is the list of transactions that happened in the past that have been recorded systematically in the network, which ensures the authenticity of the recorded information in the network. The process demands the activity of all the participating members to work with the same information that is assumed to be derived from a single source of fact. The most notable feature of this technology is that recorded information cannot be deleted from the network, making communication more authentic and fact and ensuring a secure mode of transactions.
Types of crypto currency
The various practices of different forms of cryptocurrencies in the present scenario are created at regular intervals. The following are some of the popular forms of cryptocurrency available on the market.
Bitcoin (BTC): One of the widespread currencies generated in 2009 is commonly used by the masses.
Ethereum (ETH): The second largest cryptocurrency after Bitcoin was generated in 2015 by Vitalik Buterin. One of the decentralised applications, Ethereum, is known for its smooth contract.
Litecoin (LTC): Charlie Lee, a former Google Engineer who generated this form of crypto currency in 2011, is considered a substitute of Bitcoin
Ripple (XRP): Ripple Labs, which was generated in 2012, is widely used as the payment mode for cross border transactions to speed up the cost of international transactions, making it more effective.
Bitcoin Cash (BCH): Once generated in 2017, this has solved the problems of scalability associated with Bitcoin crypto currency.
Cardano (ADA): Once created in 2015 by Charles Hoskinson, one of the co founders of Ethereum, is mainly used for academic research and peer review.
Dogecoin (DOGE): It was created by Billy Markus and Jackson Palmer in 2013 and is one of the playful substitutes for Bitcoin.
These were some of the examples of various types of crypto currency available in today’s world, each with its own unique features and prices that can turn out to be highly volatile.
Are cryptocurrencies legal
The legitimacy of cryptocurrencies differs from country to country, and there is no global harmony regarding their legal status. Some countries have fully embraced cryptocurrencies and have sanctioned laws to standardise them, while others have banned them altogether. Here are some examples of the legal status of cryptocurrencies in different countries:
United States- Cryptocurrencies are legal and treated as property for tax purposes
China– Cryptocurrencies are illegal, and the government has banned cryptocurrency exchanges and initial coin offerings.
Japan- Cryptocurrencies are legal and controlled under the Payment Services Act.
India- Cryptocurrencies are not prohibited, but the Reserve Bank of India has debarred banks from providing services to cryptocurrency exchanges.
Russia- Cryptocurrencies are legal, but the government has proposed guidelines to control their use.
South Korea- Cryptocurrencies are legal, but the government has introduced regulations to control illegal activities of money laundering, fraud, etc.
It is important to remember that even in nations where cryptocurrencies are acceptable, their parameters might be complicated and their use may be controlled. As the government and financial sectors continue to consider the ramifications of cryptocurrencies, the lawful position of these technologies is continuously changing, and authorities are adjusting their rules accordingly.
Are cryptocurrencies a safe investment
Cryptocurrencies are highly volatile and speculative investments, and their safety as investments may be a matter of debate. Here are some of the factors that need to be considered while assessing the safety of investing in cryptocurrencies:
Volatility: Cryptocurrencies are well known for their wildly fluctuating prices, which can be influenced by a variety of causes, including market mood, breaking news, and legislative changes. There is risk involved with this investment because of its volatile nature, as its value might fluctuate quickly and unexpectedly.
Lack of regulation: With no central body in charge of overseeing cryptocurrencies and no government-backed insurance or security available for investors, it may be challenging for investors to value the risks associated with investing in cryptocurrencies.
Risks associated with cyber security: Cryptocurrencies are vulnerable to cyber-attacks that could result in the loss of money or personal data. Because cryptocurrencies are decentralised with no central authority regulations, it is difficult to resolve any issues in the event of a security breach.
Market liquidity: Cryptocurrencies are still quite a new and niche asset class, and their liquidity can vary broadly depending on the specific cryptocurrencies and the government regulations. This lack of liquidity can make it difficult for investors to buy or sell cryptocurrencies at a desired price.
Overall, the well-being of investing in cryptocurrencies depends on individual circumstances and the risk tolerance of the investors. While some investors have made significant gains from investing in cryptocurrencies, others may have suffered losses due to market volatility or security breaches. As with any investment, it’s important to carefully consider the risk and benefits before making a decision.
Advantages of cryptocurrency
Cryptocurrencies are a decentralised method of payment; hence, many centralised intermediaries like banks and financial organisations lack the power to implement trust between the two parties and regulate business dealings between them. Thus, the cryptocurrency system avoids the chance of a single point of failure, such as a bank failure, triggering a chain reaction of crises around the globe, similar to the 2008 financial crisis, which was caused by an institutional failure in the United States.
Security: Cryptocurrencies are safer than conventional payment methods because they utilise sophisticated cryptography to secure and verify transactions.
Accessibility: Cryptocurrencies may be manageable by anybody with an internet connection, wherever they may be, making them location-neutral.
Cheaper transaction fees: Transaction fees are typically low-priced than those associated with standard payment methods. This is especially true when transactions involve foreign currency.
Speed: Transaction times can be greatly reduced by using cryptocurrency because transactions can be handled rapidly without the use of intermediaries.
Transparency: Because cryptocurrency transactions are recorded on a public ledger, they are more transparent and accountable.
Possibility of huge returns: Since cryptocurrencies are a volatile class of investments, their prices are susceptible to big swings in a short period of time. For those prepared to take the risk, this volatility may offer the potential for large profits.
Overall, most individuals and businesspersons are attracted to cryptocurrencies as they offer several advantages. However, it is also important to evaluate the risks associated with investing in cryptocurrencies before making any investment decisions.
Disadvantages of cryptocurrency
The disadvantages of cryptocurrencies are:
Volatility: Being highly volatile, cryptocurrency prices/value and values fluctuate considerably in a short period of time, which makes them a risky mode of investment, and this can lead to significant losses for investors.
Zero regulation: Because any government or financial organisation does not rule cryptocurrencies, they are more susceptible to fraud and swindles.
Limited acceptability: Although more companies are beginning to accept cryptocurrencies as payment, their utility as a medium of exchange is still constrained by their limited acceptance.
Complex technology: Using and investing in cryptocurrencies can be challenging for some people due to the complexity and difficulty of the technology that underlies them.
Security risk: The vulnerability of cryptocurrencies to hacking and other security flaws might lead to money loss.
Environmental impact: The mining process for some cryptocurrencies requires significant amounts of energy, which can have a negative impact on the environment.
Irreversible transactions: Once a transaction has been made with a cryptocurrency, it cannot be reversed. This can be problematic in the case of fraudulent or mistaken transactions.
Cryptocurrency from an Indian perspective
In order to get the correct perspective, we need to have an overview of the boarding of crypto currency in the Indian ecosystem since 2008 and its journey thereafter.
2008- The very concept of cryptocurrency was introduced in the Indian financial and legal system during this period through the journal in the paper titled “Bitcoin: A Peer to Peer Electronic Cash System,” written by Sir Satoshi Nakamoto, a pseudonymous developer.
2010- Two years later, the first Bitcoin transaction was recorded, in which a good was purchased using Bitcoin. As soon as this monetary value was tied to the cryptocurrency, it gained popularity, and the emergence of other cryptocurrencies like Litecoin, Namecoin, and Swiftcoin started to appear.
2013- As cryptocurrency investments began to gain popularity, the market showed the emergence of new exchanges, including ZebPay, Pocket Bits, Coinsecure, Koinex, and Unocoin. The RBI has to circulate a circular warning the stakeholders of the potential inherent risk involved with virtual money as a safety measure. This was the RBI’s first cryptocurrency-related circular.
2016–2020- This period witnessed demonetisation, a preference for digital payments and an unintended enhancement towards crypto investments. With banks green lighting transactions on crypto exchange, RBI had to use another circular in 2017, notifying concerned stakeholders of its apprehension. Subsequent to the end of 2017, another circular was issued by the RBI and the Ministry of Finance, stating that virtual currencies are not legal tender. In March 2018, CBDT sent a recommendation to the finance ministry to ban virtual currency. This was followed by a circular from the RBI to banks and the NBFC restraining them from dealing with virtual currency and providing services for virtual currency exchange. This dealt a heavy blow to the crypto exchanges and trade on these exchanges plummeted by 99%. However, the Internet and Mobile Association of India (IAMAI) appealed before the Supreme Court and this ban was declared unconstitutional on March 20, 2020, as it infringed Article 19(1)(g) of the Indian Constitution, which guarantees every citizen of India the freedom to practice any legitimate profession to earn a living. Towards end of 2018, founder of WazirX, started a crypto campaign by the name #IndiaWantsCrypto, this campaign subsequently gained momentum with lakhs of crypto enthusiasts joining the campaign.
2021- On January, 2021, a bill was introduced by the GOI to create sovereign digital currency and put a blanket ban on private cryptocurrency. On November 20, 2021, the committee on finance had a meeting with various cryptocurrency representatives and a decision was taken not to ban but to regulate the circulation of cryptocurrency. On December 20, 2021, Prime Minister Narendra Modi also conducted a meeting on cryptocurrency.
2023- It has been recommended that the government of India (GOI) levy a 30% tax on the profits produced by crypto assets and introduce the digital rupee in the Union Budget of FY 2022–23. A virtual currency called the “Digital Rupee” was created in response to the government of India’s hesitant and uneasy stance towards cryptocurrencies. While this has created uncertainty over the future of cryptocurrency on the one hand and among crypto enthusiasts on the other, there is a growing perception that cryptocurrency may soon be legalised in our nation. Although cryptocurrency has been around since 2009, it has only recently experienced an extraordinary increase because of its rising popularity among millennial investors who are risk-averse. According to the “Global Crypto Adoption Index” of 2021, published by the block chain analysis business “Chain Analysis,” there has been an 880% increase in crypto use globally. India came in second place in the “Global Crypto Adoption Index” of 2021, after Vietnam, as the Indian cryptocurrency market expanded by 641% in a single year.
In response to the government of India’s cautious approach towards cryptocurrencies, a notification was released on March 7th, 2023, placing transactions involving crypto assets under the Prevention of Money Laundering Act. The following types of transactions would be covered under this law:
Exchange between virtual digital assets and fiat currencies.
Exchange between one or more forms of virtual digital assets.
Participation in and provision of financial services related to an issuer’s offer and sale of a virtual digital asset.
Safekeeping or administration of virtual digital assets or instruments.
Transfer of virtual digital assets.
Conclusion
In today’s dynamic world, cryptocurrencies being secured by cryptography are a relatively new technology; they are highly hypothetical, so it is essential to understand the risk involved in such assets before making an investment. Speculative risk is high when investing in cryptocurrencies and other initial coin offerings. A lot of awareness and knowledge are required before acquiring any crypto asset and it is suggested to only invest what you can afford to lose and to diversify your investment portfolio to curtail risk. The exciting prospects offered by cryptocurrencies need to be availed with caution, as this asset may not be suitable for everyone.
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:
Carrefour made its entrance into the market in 1991 by acquiring two hypermarkets of Euromarché, which was a French hypermarket chain. In 2007, Carrefour was doing its business in Portugal under two banners, namely Carrefour-Portugal (hypermarkets) and Minipreço (discount chain).
Around 2007, Carrefour was the biggest retail chain globally in size, and it was the second biggest retailer in terms of revenues. In 2007, Carrefour had annual sales of around 100 billion Euros and Carrefour’s operations at the time of the acquisition were primarily focused in Europe, Asia and Latin America. Carrefour had more than 15,000 stores in around 30 countries. It was Carrefour who introduced the model of hypermarkets, i.e., everything will be made available at a single stop.
Carrefour focused on adjusting its stores and products to different locations and markets. Although it has a presence worldwide, it still focuses on catering to markets and products as per local needs and demands, and in doing so, it aims to ensure that the majority of the products it offers in its retail stores come from nationwide suppliers of that explicit market.
Sonae Distribuição is a retail branch of Sonae. Sonae Distribuição was the final creation of a joint venture between Sonae and Promodés in 1995. But in the year 1998, Carrefour and Promodés were merged and Sonae Distribuição started facing difficulty as 22.37% of the equity of the company was now owned by Carrefour and Carrefour was a competitor of Sonae Distribuição. Sonae Distribuição found the solution to this problem in 2004, when it was successful in buying the rights held by Carrefour in the company. After buying the rights to Carrefour, the company Sonae Distribuição decided to get out of the stock market to avoid any such difficulties in the coming future.
By 2007, Sonae Distribuição had become the top player in the food retail and non-food retail markets. It generated annual sales of 3.4 billion Euros, and it covered around 70% of the Portuguese market.
Why this acquisition
The process of mergers and acquisitions (M&A) is chosen by entities for the reason that it adds value for the shareholders, and it is also chosen because the worth of both entities together is greater than when they were conducting their business individually and separately. Through the process of M&A, companies can gain knowledge and improve their operational capabilities and resources and the scope of economic growth increases at a greater pace than before. And this acquisition by Sonae Distribuição of Carrefour-Portugal was no different.
This acquisition first gave Sonae Distribuição a chance to expand its market, increase its sales and capture a larger market share. That means less competition for Sonae Distribuição in terms of price. It also favoured Sonae Distribuição as it increased its bargaining capabilities with the company’s suppliers because Sonae was now capturing around 30% of the market share post-acquisition. It helped Sonae beat its competition, as even after reducing its profit margin, the sales figures were high and ultimately, the competitor’s profits were taking a continuous hit. Sonae also got access to the exclusive range of products offered by Carrefour-Portugal before the acquisition.
As the companies were operating in the same sector and targeting the same group of people in the same market area, no issues were faced after the acquisition process was complete. The position of the company only strengthened and it achieved a stronghold in the market. In addition, there was knowledge transfer and employees or managers were not required to learn to deal with the business and could focus mainly on achieving the most profitability out of the business. There was also no risk of any pushback from a cultural perspective, as both of them were following the French way of doing business and its retail tradition.
After any acquisition, one of the main concerns faced by the employees of both companies involved in the acquisition process is job security. Sonae Distribuição improved its productivity by managing its human resources and by announcing no layoffs, and instead of laying off any employees of Carrefour or itself, it decided to hire additional employees to improve its service. Sonae Distribuição formed a team especially focused on improving the cooperation among employees of both Sonae Distribuição and Carrefour-Portugal post-acquisition through proper communication and planning. It focused on minimising conflict and improving the seamless sharing of knowledge.
Sonae decided to provide training to its salespersons for informing and making the customers aware of the benefits of the acquisition and telling them how this acquisition would be beneficial for them in terms of quality services, a wider range of products and cost-effectiveness when compared with previous companies separately.
The acquisition
Carrefour in 2007 had negotiations with Sonae Distribuição and in the month of July of the same year, a deal broke between them and as a result, Carrefour agreed to sell its Portuguese business to Carrefour for a sum of 662 million Euros. This deal helped Sonae Distribuição increase its business area, which included 105 Modelo stores (1,87,000 sq. m.) and 19 Continente stores (1,62,000 sq. m.), as well as the Carrefour business (83,000 sq. m.). Before the deal was finalised, Auchan and Jerónimo Martins were the competitors of Sonae Distribuição for this deal. As per Carrefour in 2006, its sales were 530 million Euros, excluding VAT (Value Added Tax). Sonae Distribuição’s CEO stated in a press conference that this acquisition would be financed 100% by debt already incurred.
Sonae Distribuição had several reasons for moving ahead with the acquisition of Carrefour-Portugal; one of them was that both had the same portfolio and hence it was a perfect fit. The deal focused only on the hypermarket business and it was of the same nature as the Continente stores. This deal was a path for Sonae Distribuição to re-achieve its position as the market leader in the food segment. This deal would also be fatal to the competitors of Sonae Distribuição, and additionally, it would also help Sonae Distribuição safeguard its position in the market from interested foreign competitors by restricting their entry into Portugal. This deal would also help Sonae Distribuição make an entry into specific regional markets like Aveiro and Braga, where it had no presence but Carrefour-Portugal did because of legal constraints.
To avoid any failure Sonae Distribuição and Carrefour decided to move ahead with the acquisition process in the very next month of August 2007, way before getting approval from the appropriate authorities. The aim was to find the most favourable and fastest manner of acquiring Carrefour-Portugal and to also win the trust of the stakeholders.
The 12 hypermarkets of Carrefour-Portugal along with 11 licences to open new stores and 8 gas stations, were part of the deal with Sonae Distribuição and Sonae bought these operations for 600 million Euros.
What happened after the acquisition
Sonae Distribuição integrated every Carrefour store into its own portfolio and hence the same organisational processes and procedures were followed by the Carrefour stores. The extra space with Sonae Distribuição after the acquisition was used by it for opening new non-food retail stores like Modalfa, SportZone and Worten stores.
To create a stronger portfolio, the existing portfolios of the products offered by both companies before the acquisition were analysed. The acquisition helped Sonae Distribuição improve its service towards its customers and ultimately increase customer satisfaction and for that, Sonae Distribuição hired a couple of extra hundred employees.
Risks related to the acquisition
The acquisition was horizontal in nature, as the products were similar. The work of employees was somewhat similar but the main difference was in the culture of Sonae Distribuição and Carrefour-Portugal, which could be tough for the employees to adjust to. Carrefour-Portugal’s work environment had an impression of being more independent and autonomous, which could be a major factor in dissatisfaction with its employees while working for Sonae Distribuição post-acquisition. The expected returns were also a concern for Sonae Distribuição as it was paying 662 million Euros for the acquisition when, at the same time, in 2007, its competitors like the Auchan Group invested a global investment of 337 million Euros, which was half the amount paid by Sonae Distribuição. This was a big and risky decision for Sonae Distribuição to make, considering the deal only focused on one region while its competitors were investing in other markets globally in the same year.
Conclusion
Sonae Distribuição’s decision to acquire Carrefour-Portugal Carrefour was a strategically correct one. It helped Sonae improve its visibility and reach in markets, which it could not normally achieve due to legal restrictions. This deal improved the sales numbers and reach of Sonae in food as well as non-food stores and Sonae was able to re-achieve its dominant position in Portugal’s market. The business of Sonae Distribuição got diverse and improved cash flow in the business, and additionally, it also improved the bargaining competency of Sonar. With the acquisition, Sonae improved its ability to innovate a new range of products, target new clients, and serve its customers better. Funds were specifically allotted for the same purposes by Sonae.
In the first year after the acquisition in 2007, Sonae Distribuição was able to achieve growth in the stores that Carrefour-Portugal earlier owned by Carrefour-Portugal, The efficiency was improved, operational margins were surpassed as compared to the previous year in the food division and it was able to retain the levels of total EBITDA margin [EBITDA margin = (earnings before interest and tax + depreciation + amortisation) / total revenue], excluding fuel and thus it attained equilibrium between operational profit and growth.
In the year 2008, there was a reduction in private consumption, which impacted primarily the non-food segment, but the total turnover achieved by the company improved by around 25% and if we will not consider the petrol stations, then also the turnover improved by around 20%, whereas other stores or products with similar characteristics only reported an increase of 1%, which pointed out that the acquisition of Carrefour-Portugal was a right decision by Sonae Distribuição.
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:
“You can dream, create, design and build the most wonderful place in the world, but it requires people to make the dream a reality.”
Nothing could have explained the benefits of recruitment and selection processes in an organisation better than this quote by Walt Disney.
Recruitment is the first step in an employee’s life cycle. It is essential to find those awesome individuals who will bring their skills, enthusiasm and maybe a quirky mug to your workplace.
It’s an organized method where the hiring teams try to attract the best people in the industry.
The selection process, on the other hand, is the systematic approach to identifying, evaluating and choosing the most suitable candidates from a pool of applicants for a specific position.
Recruitment is like inviting people to a party, and selection is picking the perfect guest to join the celebration!
In today’s crazy and fast-paced business world, recruitment and selection processes cannot be ignored if businesses want to stay ahead of the curve. These processes are crucial for drawing, assessing and choosing the right individuals who will contribute to the organization’s growth and profitability.
Irrespective of the size or nature of the business, hiring the right people for the right job is one of the most hardcore challenges HR departments are facing today.
By using slick recruitment and selection methods, businesses can onboard the most qualified, competitive and well-matched individuals in their domains.
Role of recruitment and selection processes in business success
If you think the recruitment and selection processes are just about filling vacancies in the organisation, you are wrong. These strategic tools ensure that an organisation has the right human resources with appropriate skills and qualities that align with its vision and propel its success. These processes help companies identify and attract top talent in the market. High-performance teams are built only by hiring the right people who help organisations achieve business goals in the long run. It won’t be an exaggeration to say that recruitment and selection processes contribute to the overall organisational culture. When you adopt the best screening and evaluation techniques while recruiting, it promotes the values of excellence and professionalism within the workforce. This leads to healthy competition amongst the employees. They feel valued when they see that they’re working with some of the brilliant minds in the industry. This further enhances their performance levels.
A strong recruitment and selection process enhances the reputation of a business organisation. It not only adds to but also evaluates the credibility of job opportunities and reflects the company’s professionalism and genuineness. Implementing an effective application method can win the trust of job applicants, thereby attracting highly qualified candidates for the position.
Hiring new faces also means getting new ideas and fresh perspectives on problems. Not just that, they help maintain your company’s culture. They’re the ones who’ll keep those office traditions alive, from Taco Tuesdays to Friday dance-offs.
How to optimise recruitment and selection procedures
Crafting an effective recruitment and selection process is no joke. Adequate planning, strategic thinking and a whole lot of effort are required to meet the hiring goals.
Let’s dive in and explore the crucial steps needed to help organisations find the perfect fit for vacant positions.
Identification of job requirements
At this point, the hiring team should craft a detailed job description. Before beginning to search for the right candidates, HR teams should understand and analyse each and every aspect of the qualifications, skills and experience needed for the role. This is achieved by conducting a job analysis and discussing it with relevant stakeholders, while also considering technology and industry trends. This process will filter irrelevant candidates from competitive ones.
Recruitment process
Once the job requirement is set up, the recruitment process begins. This involves advertising the vacancies through different online and social media platforms and professional networks.
Additionally, companies may also avail themselves of the services of recruitment agencies or headhunters to identify potential prospects who may not be actively seeking jobs and build a talent pipeline for the future.
Selection process
As candidates start applying for the positions, the selection process kicks into gear. This involves screening resumes, conducting interviews and taking assessments to evaluate the candidates’ suitability for the role. Apart from gauging technical skills, a lot of emphasis is also placed on behavioural and soft skills.
Reference checks and background screening are done to ensure the authenticity of the candidates who clear different stages of the recruitment and selection process.
Once the selection process is complete, the HR department releases the offer letter to the candidates finally selected. This stage involves salary discussions, compensation, the terms and conditions of employment, or any other concerns the candidate might have.
Measuring the significance of hiring processes
This can be done by analysing key metrics at different stages of hiring.
For example: at the resume screening level, if the right candidates are not applying for the job, maybe you need to reassess the job description. Or, if you are conducting a lot of interviews but not selecting anyone, maybe you need to tweak your interview questions.
Or, if the candidates you’ve hired do not perform well or stay long-term, maybe your decision-making is wrong.
Recruitment and selection processes, therefore, play a significant role in shaping an organization’s success. To attract bright talent for the job, companies need to invest time and effort. This fosters a culture of excellence and high-performing teams, without which organisational growth cannot be achieved. Also, the business landscape is ever-evolving, so it’s important for organisations to continuously refine their recruitment and selection strategies to adapt to changing market dynamics.
Understanding the benefits of recruitment and selection processes
Recruitment and selection processes have some pretty awesome perks that benefit both employers and employees in the long run.
Good hiring practises pay off big time and should be embraced with open hearts.
For employers, having the top talent ensures reduced turnover rates, minimised training costs and improved productivity levels.
Furthermore, effective recruitment and selection strategies help employers build a diverse workforce. When people from diverse backgrounds team up, it makes for a really inclusive vibe in the workplace. This leads to innovation and creativity, as these employees bring unique insights to the table.
For employees, joining an organisation that aligns with their career goals ensures job satisfaction. This is possible only if the companies they are interested in have their recruitment and selection processes in place. The candidates get a fair idea of the level of excellence that is expected of them and how much they can learn and improve from the experienced people in the organisation. This boosts their morale, driving increased engagement and dedication towards their work.
Analysing the cost of recruitment and selection methods
Optimal recruitment strategies should be cost-effective both in terms of time and money. Benefits should never outweigh expenses.
The cost of placing ads, doing background checks, and training the new hires should be taken into account while analysing the cost of hiring. The costs can be minimised by leveraging technology like applicant tracking systems, video interviews and online assessments.
Employer branding through social media platforms will attract a wider pool of candidates without burning a hole in the employer’s pocket.
Job portals like Naukri.com, Indeed and Internshala are great ways to reach out to candidates faster.
Social media sites such as LinkedIn, Facebook, and X (Twitter) have over the years become valuable tools for screening candidates.
Employers, however, need to avoid being judgmental about the online presence of the candidates. Decisions should be based on job-related criteria rather than personal information or analytics on their personal social media profiles.
Recruitment and selection trends in 2023 and beyond
Artificial intelligence, like in every other field, for sure takes the spotlight in recruitment and selection processes. All the aforesaid steps that are manually done by recruiters will be done by AI-powered tools in the future. However, it’s unlikely that humans will be completely replaced by AI. They will act as recruitment buddies in the initial stages of recruitment while the recruiters focus on building connections with prospects or tapping into professional networks.
Diversity and inclusion take centre stage, as organisations would be more open to hiring people from diverse backgrounds to create a more innovative work environment where everyone is valued.
Data analytics has already revolutionised many industries, and by deploying these tools in recruitment and selection, employers can use and analyse vast amounts of data to understand hiring patterns. This would help them make data-driven decisions and up their hiring game. Some of the HRM data analytics tools are Power BI, SmartRecruiters, Tableau, BambooHR and TBE.
How having a robust recruitment and selection process helped an Indian startup – Nykaa
Founded in 2012 by Falguni Nayar, Nykaa has become India’s leading e-commerce platform for beauty, personal and wellness products.
While there are several factors that can be attributed to Nykaa’s success, its recruitment and selection processes have given the company an edge over other competitors.
These processes have enabled Nykaa to establish a highly competitive product development team that is consistently creating and introducing new products. This team consists of exceptionally skilled and seasoned professionals who possess a strong passion for beauty and personal care.
Recruitment and selection process at Nykaa
Nykaa’s recruitment and selection processes are designed to identify and hire the most talented and passionate individuals.
The recruiters are always on the hunt for candidates who not only have the skills and experience but also match their core values, like being customer-centric, innovative and honest.
In the sourcing phase, the recruiters scout for candidates from all sorts of places, like job websites, employee referrals and even college campuses.
The identified prospects are then invited to participate in a phone screen interview, which is a brief interview designed to assess the prospects’ basic qualifications and fit for the role.
Candidates who clear the phone screen are invited for an in-person interview, which is more in-depth. It also conducts a number of other assessments, such as coding and written assignments, and reference checks wherever necessary.
Nykaa’s recruitment and selection process plays a significant role in the milestones being achieved by the company.
It ensures that Nykaa hires the most talented and passionate teams.
It helps Nykaa reduce turnover and build a great team culture.
It helps Nykaa maintain its competitive edge in the market.
Conclusion
The importance of effective recruitment and selection strategies cannot be denied in HR as well as in organisations. Whether it’s finding the right fit for teams, building a strong workforce, saving time and resources for the organisation, or retaining top talent, these processes impact the organization’s culture and success in a big way. So next time you think recruitment and selection are some bureaucratic steps not contributing to profits, think again. They are the keys to unlocking the real potential of your organisation.
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 Sarthak Mittal. The article aims to explain what are the various procedures through which any married person can claim divorce in India, it includes a discussion regarding both secular and personal laws. It also delves into various customs that are legally recognised modes to entail severance of marital relations. The article also deals with the Indian perspective on the significance of marital ties and their effect on the laws relating to divorce.
The Hon’ble Justice Krishna Iyer very elegantly confined the significance of conjugal relations and the ideal situation for its severance in the following words “While there is no rose which has no thorn but what you hold is all thorn and no rose, better throw it away”, in the case of Yousuf Rawther v. Sowramma (1970).
Procedure for divorce under the Hindu Marriage Act, 1955
Petition for divorce based on fault grounds
Any two persons who belong to the Hindu, Jain, Sikh or Buddhist religion can get married as per the Hindu Marriage Act, 1955 by solemnization of marriage as per Section 7 of the Act. On fulfilment of all the requirements provided under Section 5 a marriage is said to be a valid marriage. Divorce can only be sought in cases of a valid marriage. In the Hindu religion, marriage has a sacramental value and it is believed that the marital bond once made can never be undone, rather, it is believed to subsist even after the death of the parties. Therefore, the concept of divorce was non-existent in traditional Hindu law. The Hindu Marriage Act brought radical changes in traditional Hindu law as it for the first time provided for the remedy of divorce which could be sought only on the basis of succinct grounds provided under Section 13 of the Act. The following grounds which are based on conjugal guilt are available to both parties under Sections 13(1) and 13(1A)of the Act:-
Where the respondent has committed adultery or,
where the respondent has committed mental or physical cruelty or,
where the respondent has deserted the petitioner for a continuous period of 2 years or,
where the respondent is suffering from an unsound mind to such an extent that it will not be reasonable to expect the petitioner to live with the respondent or,
where the respondent is suffering from any venereal disease which is communicable in nature or,
where the respondent has renounced the world or,
where the respondent has not been heard of for a period of 7 years or more by those people who naturally would have heard of him, had he been alive or,
when there has been no cohabitation between the parties for a period of one year or upwards after the passing of a decree of judicial separation under Section 10 of the Act or,
when there has been no cohabitation between the parties for a period of one year or upwards after passing of a decree of restitution of conjugal rights under Section 9 of the Act.
The Act also provides 4 grounds that are specifically available to women under Section 13(2), these grounds are as follows:-
The husband entered into a polygamous marriage before the commencement of the Act and such wife is still living after the commencement of the Act or,
the husband is guilty of rape, sodomy or bestiality after the solemnisation of marriage or,
where a decree or an order of maintenance has been passed under Section 18 of the Hindu Adoption and Marriage Act, 1956 or Section 125 of the Code of Criminal Procedure, 1973 against the husband and the cohabitation has not resumed between the spouses from the date of such decree or order or,
the woman can repudiate the marriage before attaining the age of 18 years when the marriage has been solemnised before she attained the age of 15 years.
Instead of filing a plaint like in a normal civil suit a petition is presented to the district court as per Section 13 read with Section 19 of the Hindu Marriage Act. In the petition, the petitioner alleges the facts to show that grounds of divorce exist hence, making the petitioner entitled to divorce, the burden of proving the existence of the ground of divorce lies on the petitioner. Preservation of the institution of marriage is the duty of the state and thereby, marital ties are always tried to be preserved wherever possible thence, they are not allowed to be easily severed.
Divorce based on mutual consent
Procedure
Hindu Marriage Act, 1955 also allows the parties to seek divorce under section 13B based on the mutual consensus of both parties. The provision was added by the 1976 Amendment Act and the given provision applies both retrospectively and prospectively. The provision directs that parties have to file a joint motion on the grounds that they have been living separately for one year or more and that they have mutually agreed to seek divorce. The parties will then file a second motion within 6 to 18 months from the date of the first motion. This 6 to 18 months period is also recognized as a cooling-off period wherein, parties will try to solve their differences. The rationale behind the cooling-off period is to obviate any cases wherein, the motion of divorce is filed as an impulsive act, fad or a brain wave. If the motion is withdrawn by either of the parties within 6 to 18 months or wherein, the second motion has not been filed within the given period the petition will fail as a general rule. However, if the second motion is again made within the cooling-off period the court shall inquire into the truthfulness behind the matters averred in the petition and on being satisfied by the truth of such matters pass a decree of divorce.
Meaning of living separately
In the case of Sureshta Devi v. OM Prakash (1991), the words “living separately” in section 13B were interpreted by the Supreme Court to mean that the parties should not be living as husband and wife that is to say that they are not performing any of their marital obligations, the court clarified that the given words do not refer to the place of living thereby, parties may live under the same roof however, they should not be performing any of their conjugal duties for a period of one year or more immediately preceding presentation of the petition.
Withdrawal of consent
In the case of Hitesh Bhatnagar v. Deepa Bhatnagar (2011), the Supreme Court delved into the issue that till when can a party be allowed to withdraw its consent while filing a petition under section 13B of the Act. The court in the given case held that the consent can be withdrawn during the cooling-off period also and even after the expiry of such period however, it should be before the passing of the decree. The court observed that one of the jurisdictional facts which confer jurisdiction on the court to entertain the petition under section 13B is the mutual consensus of both parties. Thereby, if any withdraws its consent before the decree is passed the court will lose its jurisdiction to entertain the petition.
In the case of Rajat Gupta v. Rupali Gupta (2018), the Delhi High Court held that wherein parties to a settlement agreement agree to the fact of taking divorce through mutual consent and one of the party breaches the said agreement, the court can hold the defaulting party for civil contempt if the opposite party is able to prove that there has been a wilful breach and that the aggrieved party has been placed at a disadvantageous position because of such breach. The Court also held that in no case the court compels any party to give consent for divorce by mutual consent as it would go against the basic objective of section 13B. In the latest case of Anurag Goel v. Chhavi Agarwal (2023), the Delhi High Court has held the wife to be guilty of contempt on wilful breach of the settlement agreement filed in the family court. The wife in the given case was sentenced to a fine of Rs.2,000 and to simple imprisonment for a period of one month. The court gave the wife a period of two weeks to tender in the court an unconditional apology for her defiance and to undertake to perform all the conditions mentioned in the settlement agreement. The court held that if the wife is able to tender the apology and perform all the conditions agreed by her in the settlement agreement the order of imprisonment against her will be recalled.
Waiving off of cooling period
Another procedural ambiguity which used to persist during the adjudication of petitions under section 13B was whether the statutory period of 6 to 18 months to present the second motion, is a mere formality which can be waived off or whether it is substantial and mandatory. The Supreme Court in the case of Anil Kumar Jain v. Maya Jain (2009)held that the given period can be waived off only by the Supreme Court in the exercise of its inherent powers under Article 142 of the Constitution of India. In the later case of Amardeep v. Harveen Kaur (2017)the Supreme Court again laid down that the statutory period of 6 to 18 months can be waived off not only by the Supreme Court but also by any other court adjudicating the petition under section 13B and the same was reiterated by Supreme Court in the recent case of Shilpa Sailesh v. Varun Sreenivasan (2023) by a constitutional bench of the Supreme Court.
Presentation of divorce petition in Hindu Marriage Act
When can a divorce petition be presented
The petition for divorce under the Hindu Marriage Act can only be presented before the competent court after a period of one year has elapsed from the date of solemnization of marriage by virtue of section 14 of the Act. The proviso to section 14 allows the court to waive off the period of one year in exceptional cases. The leave to present the petition before the expiration of one year can be granted only when the petitioner is able to prove exceptional hardship being caused to him or when there is exceptional depravity on the part of the respondent. In the case of Bowman v. Bowman (1949), Lord Denning observed that the word “exceptional” is to be understood by holding an inquiry on a case-to-case basis into the degree of hardships suffered by the petitioner due to the conduct of the respondent.
Forum before which a divorce petition is to be presented
Apart from this requirement, it should be kept in mind that the petition is to be presented in front of a court of competent jurisdiction. As per the Hindu Marriage Act, section 19 provides that district courts within the limits of whose original civil jurisdiction the parties have solemnised their marriage, the respondent resides during the presentation of the petition, the parties last resided together, the wife resides or where the petitioner resides at the time of presentation of the petition in cases where the respondent is outside the territory of India or has not been heard of as being alive for last 7 years is the court of competent jurisdiction. It is also pertinent to note that the parties have to present a petition before a family court established as per Section 3 of the Family Courts Act, 1984 if the party falls within the jurisdiction of a family court. Section 7(1) clause (a) of the explanation confers jurisdiction over the family court to dissolve a marriage between the parties. Family court is the forum through which parties irrespective of their religion, seek the remedy of divorce.
Transfer of petitions
The parties generally file petitions under the Hindu Marriage Act at such places where it will be inconvenient for the respondent to attend the proceedings. Thereby, section 21A of the Act provides that where two separate petitions have been filed before two separate courts wherein, one petition is to seek the relief of judicial separation under section 10 and the other is to seek the relief of divorce under section 13, it is better that both the petitions are heard and disposed of together by the same court. Thereby, as per the procedure prescribed in the Civil Procedure Code, 1908 the appropriate court will transfer the petition from the court to which the petition was presented later in time to the court where the earlier petition was filed. In the case of Shruti Kaushal Bisht v. Kaushal R Bisht (2020), the Supreme Court held that only petitions filed under section 10 or 13 of the Act can be transferred under section 21A of the Act and all the other petitions and applications filed under the Hindu Marriage Act has to be transferred by filing an application under section 24 and 25 of the Civil Procedure Code, 1908.
The duty of courts to make all endeavours for reconciliation
It is the duty of the court to make all necessary efforts in the first instance to reconcile the differences between the parties in divorce petitions as preservation of marital ties is in the best interest of the society. Section 23(2) of the Act provides that courts should make every endeavour to reconcile the parties before granting any relief under the Act. Section 13A of the Act on the other hand provides that in a petition of divorce, the court can pass a decree for judicial separation instead of a decree of divorce, this is to allow parties to reconcile their differences by living apart. In the case of Jagraj Singh v. Birpal Kaur (2007), the Supreme Court read section 23(2) of the Act with various provisions of the Civil Procedure Code, 1908 and held that the court can issue non-bailable warrants to secure the attendance of a party in divorce cases so that the court can try to get the parties to reconcile with each other.
The court observed and highlighted the importance of the duty of courts to make efforts for reconciliation of parties in family disputes and also observed that personal attendance of the parties in such cases becomes mandatory. In the case of Santhini v. Vijaya Venkatesh (2018), the Supreme Court held that video conferencing generally cannot be allowed to be done in divorce proceedings as it becomes difficult to reconcile parties through such a mode. The court observed that the conduct, consent, sensitivity and emotional bond being portrayed by a person can not be sensed through video conferencing and due to this judge will not be able to communicate effectively with the parties and thus, the reconciliation between the parties will become difficult. The court also held that in cases wherein the court is of the opinion that it would be in the interest of justice to allow the proceedings to continue through the mode of video conferencing, it can allow the same.
Divorce through customary Hindu practices
In the case of Shakuntala Bai v. Kulkarni (1989), the Supreme Court on the conjoint reading of sections 29 and 4 of the Hindu Marriage Act held that ancient and unbroken customs of divorce are still valid given that they are not against the public policy and are moral in nature. The court also held that there is no need to file a separate divorce petition under Sections 13 or 13B of the Act for dissolution of marriage if the same has been done through a validly recognized customary practice. Recently, in the case of Duleshwar Deshmukh v. Kirtilata Deshmukh (2022), the Chhattisgarh High Court declared a divorce through the customary practice of “chod-chutti” valid, it is a customary practice wherein, divorce can be sought through a simple execution of document. The court held that customary divorce practices like “chod-chutti” can be resorted to but they can be effective only if it is proved that the given practice is in consonance with public policy.
Procedure to claim divorce based on irretrievable breakdown of marriage
Divorce is usually believed to be taken on the basis of guilty conduct of the spouse or on the basis of mutual consent. However, there can be a situation where there exists no guilty conduct on the part of any spouse nor exists a mutual consensus between the parties. Such marital tie is a mere empty shell which may exist de jure however, it fails to exist de facto. In cases where the consortium and comfort between the spouses exhausts and there remains nothing in the name of the marriage but just a mere empty shell, it is better to sever such a marital tie. It is pertinent to note that such unworkable and emotionally dead marriage is not in the interest of society as it may not have yielded due to the guilty conduct of any spouse but if it is forced to be continued due to lack of availability of remedies on the part of the state then it may have high chances to yield guilty conducts like adultery, cruelty or desertion by one of the spouse.
The concept of irretrievable breakdown of marriage was first introduced in the New Zealand Divorce and Matrimonial Causes Amendment Act, 1920 wherein, the main consideration to test the ground of irretrievable breakdown of marriage between the spouses was to see whether they have been living separately or not for the past 3 years. Later in the case of Lodder v. Lodder (1921), it was held by the court of New Zealand that it is neither in the interest of parties nor in the interest of the public that a man and a woman remain bonded together as husband and wife if such relation has actually ceased to exist in fact. It was also held that the purpose of marriage gets frustrated and its continuance becomes useless and mischievous.
The same points were discussed in the 71st law commission report and the concept of irretrievable breakdown of marriage was suggested in the given report. The report was not acted upon by the legislature however, the Supreme Court heavily relied upon the given report in the case of Samar Ghosh v. Jaya Ghosh (2007), while discussing the relation between the concept of the breakdown of the marriage. On the basis of the report a Bill was introduced in Lok Sabha however, it was not passed.
In India, the given ground was first recognized in the case of Yousuf Rawther v. Sowramma (1970), wherein, Hon’ble Justice V.R.Krishna Iyer held that there can be a situation wherein the ground of divorce is the breakdown of marriage and not conjugal guilt. Later, in the case of Naveen Kohli v. Neelu Kohli(2006), the court observed that the parties have been living separately for a considerable amount of time and where in such a case relief of divorce is sought, it is safe to presume that the marriage is broken down and that it is beyond repair and hence, the marriage between the parties can be dissolved. Finally, in the case of Anil Kumar Jain v. Maya Jain (2009), the division bench of the Supreme Court held that when courts are faced with such a situation wherein the marriage between the parties has become unworkable, emotionally dead and beyond salvage but there exist no statutory grounds to dissolve the marital tie, then the court can by the inherent powers which are recognized under Article 142 of the Constitution of India dissolve the marriage to do complete justice to the parties. The Marriage Law (Amendment) Bill, 2013 was also introduced which proposed to insert Section 13C in the Hindu Marriage Act, 1955. This particular provision provided irretrievable breakdown of marriage as a ground for divorce, However, the bill was never passed in the Lok Sabha.
In the recent case of Shree Rakesh Raman v. Smt. Kavita (2023), It was again held by the courts that were in the court’s opinion the marital relation between the parties has grown only more acrimonious and bitter and where cruelty is inflicted by both the spouses on each other, it will be an injustice to the parties to keep the facade of such marriage alive. The court observed various compelling circumstances before dissolving the marriage in the given case like the long separation between the parties without cohabitation, multiple pending court cases between the parties, breakdown of all relations with each other’s families and bitterness against each other. Again, in the latest judgement pronounced by the constitutional bench of the Supreme Court in the case of Shilpa Sailesh v. Varun Sreenivasan (2023), held while discussing the use of Article 142 in matrimonial cases that, it can not be used to derogate the principles of any statute or to contravene any fundamental right and hence clarified that such inherent powers of the court will only be invoked wherein, there is no remedy available in the statute and it becomes necessary for the courts to do complete justice. The court clarified that it is only the Supreme Court that can grant the relief of divorce on the ground of irretrievable breakdown of the marriage between the parties till the time legislature comes up with an expressed provision regarding the given ground.
The procedure of divorce under Muslim Law
Legislation or Practice
Judicial or extrajudicial forms of divorce
Who can seek relief through given practices
The Dissolution of Muslim Marriage Act, 1939
Statutory Provisions
Relief can be sought only by the wife only
Talaq-e-Tafweez
Muslim personal law
Relief can be sought only by the wife only
Khula
Muslim personal law
Relief is sought by mutual consent
Mubarat
Muslim personal law
Relief is sought by mutual consent
Talaq-ul-Sunnat which can be categorised as (Talaq-e-Ahasan and Talaq-e-Hasan)
Muslim personal law
Relief can be sought by the husband only
Talaq-ul-Biddat which can be sought through single declaration or triple declaration
Muslim personal law
Relief can be sought by the husband only
Ila
Muslim personal law
Relief can be sought by the husband only
Zihar
Muslim personal law
Relief can be sought by the husband only
Lian
Muslim personal law
Relief can be sought by the husband only
The Dissolution of Muslim Marriage Act, 1939
The Hanafi Code of Muslim law provides no remedy in favour of women seeking a divorce. However, the Hanafi Jurists clearly lays down that in the case of application of Hanafi law if hardship is caused then it will be permissible to apply provisions of Maliki, Shafi or Hambali Law. The Dissolution of Muslim Marriage Act, 1939 is based on the Maliki School of Law which safeguards the interest of Muslim women regarding their right to seek divorce. Before the implementation of this Act, it was Section 5 of the Muslim personal law (Shariat) Application Act, 1937 through which the women were able to dissolve the marriage in certain circumstances through a judicial remedy. This particular remedy was also known as “Faskh”. It was the only judicial remedy which existed before the Dissolution of Muslim Marriage Act, 1939. It was granted on the ground of cruelty, discretion, impotence and other grounds recognized under muslim law. The practice of “Faskh” was repealed by the Dissolution of Muslim Marriage Act, 1939. However, now judicial remedy for divorce is given under Section 2 of the Dissolution of Muslim Marriage Act, 1939 that provides a total of nine grounds for a Muslim woman to seek a decree of dissolution of marriage, these grounds are as follows:-
The whereabouts of the husband have not been known for a period of 4 years immediately preceding the presentation of the plaint, Section 3 of the Act also requires serving of a notice on the legal heirs of the husband if the dissolution of marriage is sought on this ground. The notice should be served on the parental uncle and brother even if they are not legal heirs. As per Section 2(ix)(b), if the decree is passed on the given ground it shall not take effect till a period of 6 months within which the husband can appear in court and start performing his marital obligations. or,
the husband when fails to maintain his wife for a period of 2 years or,
the husband when sentenced to imprisonment for a period of 7 years or more, however, in this case, it is imperative that the sentence should have become final as declared in section 2(ix)(a). or,
the husband has failed to perform his marital obligations for a period of 3 years without any reasonable cause or,
the husband is impotent at the time of marriage and continues to remain so. On the application of husband under section 2(ix)(c), he will be given a period of one year to prove that he has ceased to be impotent or,
the husband when is insane for a period of 2 years or when he is suffering from a virulent venereal disease or,
the wife is entitled to repudiate her marriage before attaining the age of 18 years if she was given in marriage by her father or guardian before she attained the age of 15 years, this is also known as the “option of puberty”. The proviso to the provision provides that the marriage should not have been consummated or,
the husband treats her with cruelty. The Provision also provides six specific illustrative circumstances which may constitute cruelty. These circumstances relates to assault, association or comparison with a woman who leads an immoral life or when the wife is forced to lead an immoral life, if the wife is not treated equally in comparison to other wives, if she is obstructed from exercising rights over her property and if she is obstructed from professing her religion. or,
the Act also allows divorce on any other ground which is a valid ground for dissolution of marriage under Muslim law. This is a residuary clause.
Further, it is imperative to point out that section 4 of the Act provides that conversion of the wife into another religion or renunciation of the Muslim religion will not ipso facto dissolve the marriage. However, if she re-converts to her former faith then in such case marriage will be dissolved automatically. It is pertinent to note that if the husband renounces the Muslim religion or converts to another religion the marriage automatically stands dissolved.
To obtain relief of divorce under the 1939 Act a civil suit will be filed by way of presentation of plaint where the burden of proof will remain on the wife to prove the given grounds to obtain the relief of divorce. The court on being satisfied will pass a decree of dissolution of marriage in the given case. It is also pertinent to note that the wife can also seek relief through a family court where it falls within the jurisdiction of a family court.
Talaq-e-Tafweez
Talaq-e-Tafweez is also known as delegated divorce. The given form of talaq is governed by Muslim Personal law which is applied to Muslims as per Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. In this form of talaq, there should be a pre-existing agreement between husband and wife made either before or after marriage, which provides the delegation of power of divorce to wife by husband where the wife will be at liberty to divorce herself from the husband in certain situations. It is pertinent to note that the given conditions in the agreement should be reasonable and in consonance with public policy, for example: wife can enter into an agreement with husband that she will be entitled to pronounce talaq in case he contracts a second marriage, or if he performs an act that is forbidden by Islam. Delegation of the right to divorce through contract is generally revocable but if such delegation is made for a temporary period of time then it is irrevocable. The husband will have equal and simultaneous right to divorce even after such delegation.
When the dissolution of marriage is sought through the given form of talaq the marriage gets dissolved on the date on which the talaq is sought even if there is no decree by the court. However, it is not mandatory but advisable to seek a decree of declaration from a civil court or a family court regarding the parties’ marital status. To seek a declaration that the marriage has been dissolved, the party has to present a plaint under section 34 of the Specific Relief Act, 1936 or under section 7(1) clause (b) of the explanation of the Family Courts Act, 1984.
Khula
Khula is again a form of divorce which is applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. The Holy Quran also gives recognition to Khula as a form of divorce in Chapter II Verses 228-229. In the given form of divorce, the dissolution of marriage takes place by the consent of the wife wherein she is also bound to give some kind of consideration to the husband so that he also severs the marital tie. The following are the essentials for a valid khula:-
There should be an offer by the wife.
The wife should agree to pay consideration to the husband. Generally, the wife foregoes her right to claim the unpaid dower as a consideration in the given case.
The wife should not have retracted the offer before the husband accepts it.
The husband should have accepted the offer of the wife. Acceptance can be both written and oral. The husband on acceptance will be bound to divorce the wife irrevocably.
In the case of Shia Muslims, the offer and acceptance should be in the presence of a witness however, in the case of Sunni Muslims, the presence of a witness is not required.
In the case of Shia Muslims, the wife can revoke the khula during the iddat period however, in the case of Sunni Muslims, revocation can be done only before the acceptance of the offer by the husband.
In the case of XXX v. XXX (2021), the Kerala High Court has held that husband’s acceptance is immaterial in the case of Khula and the husband will be bound to pronounce divorce irrevocably if the wife demands dissolution of marriage through Khula. The Court also held that Khula is a valid form of divorce and that the Holy Quran requires attempts of reconciliation as a prerequisite to a valid Khula. In the given form of divorce also it is not mandatory but advisable to seek a declaration from the courts regarding their marital status.
Mubarat
Mubarat is also a form of divorce applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. The word ‘Mubarat’ literally means ‘mutual release’. The given form of divorce requires mutual consensus by parties for divorce. In the case of Mrs Saba Adnan Sami Khan v. Adnan Sami Khan (2010), the Bombay High Court held that Mubarat acts as a single irrevocable divorce through which mutual rights and obligations come to an end between the parties. It is not mandatory but advisable to seek a declaration from the court regarding the parties’ marital status.
Ila or vow of continuance
Ila is a form of divorce applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Only a husband can seek divorce through this form of divorce if he has obtained the age of puberty and is of a sound mind. There is no need for the pronunciation of the word ‘Talaq’ in such a case but the husband has to swear and takes a vow to not maintain a physical relationship with the wife for a period of 4 months. In the case of Hanafi Sunni Muslims, such conduct will amount to a single irrevocable divorce whereas, in the case of Shia and Shafi Muslims, no dissolution of marriage takes place through this conduct rather wife gets the right to seek divorce under section 2(ix) of the Dissolution of Muslim Marriage Act, 1939. It is pertinent to note that Ila is not practised in India, the same has been observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).
Zihar or inchoate divorce
Zihar is also a form of divorce that is applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Only a husband can seek divorce through this form of divorce if he has obtained the age of puberty and is of a sound mind. In such a form of divorce, dissolution is affected when the husband expresses his dissatisfaction towards his wife by comparing her to his mother, sister or any other female relative falling within the degree of prohibited relation. The husband can revoke the dissolution by doing penance like feeding sixty poor people or by fasting for two months. The given conduct will also entitle the wife to seek divorce under section 2(ix) of the Dissolution of Muslim Marriage Act, 1939. It is pertinent to note that this form of divorce is also not practised in India, the same has been observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013).
Lian
Lian is also a form of divorce that is applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Dissolution of marriage through Lian happens when the husband accuses his wife of a false charge of adultery. If the charges are levied in a court of law then the husband can withdraw the charges or prove adultery. The husband will take four oaths regarding the truthfulness of allegations and the wife will also take four oaths regarding her innocence. In such a case if the husband is unable to prove the charges the court can dissolve the marriage and subsequently, the wife also gets entitled under section 2(ix) of the Dissolution of Muslim Marriage Act, 1939 to seek divorce. The given force of divorce still exists in India and the same has been observed in the case of Masroor Ahmed v. State (NCT of Delhi) (2013). In the given form of divorce, a decree of court is necessary.
Talaq
Talaq was best described in the case of Moonshee Buzloor Rahim v. Luteefutoon Nissa (1861), by the Calcutta High Court, where, it was held that talaq is a unilateral act of the husband by which he can dissolve the marriage. The right to pronounce talaq rests only with the husband and there is no specific reason needed for talaq thereby, it is always recognized as an unruly horse. Talaq can be classified as Talaq-ul-Sunnat and Talaq-ul-Biddat. Talaq-ul-Sunnat can be further classified as Talaq-e-Ahasan and Talaq-e-Hasan. Talaq-ul-Biddat on the other hand can be classified into Talaq by single declaration and talaq by triple declaration, which is also commonly known as triple talaq. All forms of talaq are applied as per section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. In case of dissolution of marriage by talaq it is not mandatory but advisable to seek declaration from the court regarding the parties’ marital status.
General rules of Talaq
Under Muslim law, the husband should have attained the age of puberty and should have a sound mind to seek divorce. In Shia Muslim law divorce should be done in the presence of a witness, however, the same requirement does not exist in Sunni Muslim law. In Shia Muslim law the talaq is generally done in oral form unless the husband is unable to communicate verbally and it is mandatory to pronounce certain words to effect talaq; however, in Sunni Muslim law no such requirement exists rather, it is only the intention to dissolve the marriage which is paramount. In the case of Masroor Ahmed v. State (NCT of Delhi) (2013), it was held that it is necessary to communicate talaq to the other party because various rights accrue on the dissolution of marriage which can only be exercised on effective communication of talaq. The court also held that talaq pronounced in extreme anger will not be valid. The court also held that, generally, in Shia and Shafi law, talaq pronounced under intoxication will be void whereas, in the case of Sunni and Hanafi law a talaq pronounced under compulsion, fraud, or intoxication will also be an effective talaq.
The Holy Quran suggests as a first step, that the husband talks to his wife to set aside their differences. It is also called ‘fa’izu hunna’.
Further, it is suggested that if the differences between the parties continue to exist then they should physically distant themselves from each other temporarily. This step is taken with a view that physical separation will encourage the parties to work the differences out amongst themselves. It is also called ‘wahjuru hunna’.
Furthermore, The husband as a third step is suggested to again talk to his wife and try to reconcile their differences, this is also called ‘wazribu hunna’.
At last, on the failure of ‘wazribu hunna’ it is suggested that the matter is put before two arbitrators wherein one arbitrator is chosen from both the family of the husband and the family of the wife. It is only on the failure of the fourth step that the Holy Quran suggests the pronunciation of talaq.
Talaq-e-Ahasan
Talaq-e-Ahasan is the most approved form of talaq. In this form of talaq, the husband has to pronounce the words ‘I talaq thee’ during the period of ‘tuhr’. Tuhr is considered as a period of purity as per the Muslim personal law which means the period during which the wife is not menstruating. The time of 3 lunar months or 3 menstrual cycles is followed after the given declaration which is called the ‘iddat’ period. If the parties are not able to reconcile during the iddat period, the marriage is considered as dissolved on the date of its expiration. The dissolution becomes irrevocable at the expiration of the iddat period. If the wife has passed the age of menstruating, then the requirement of pronouncement during the period of tuhr does not apply. The husband in Talaq-e-Ahasan has an opportunity to reconcile with the wife and revoke the talaq during the iddat period. It is a unique form of talaq as only in this form of talaq the marriage subsists during the iddat period whereas, in other forms of talaq, the iddat period begins after the dissolution of marriage.
Talaq-e-Hasan
In Talaq-e-Hasan the husband has to first pronounce talaq two times in two consecutive months during the period of tuhr and then has to make a third and final pronouncement during the successive period of tuhr. The marriage dissolves automatically on the third pronouncement and the period of iddat begins from the same date. The physical relationship between the spouses should come to an end after the first pronouncement itself. The husband is given an opportunity to revoke the talaq anytime before the third pronouncement. Where a single pronouncement of talaq is made by the husband during the period of tuhr, the wife has no way to determine whether it is the single pronouncement for Talaq-e-Ahasan or one of the three pronouncements of Talaq-e-Hasan.
Talaq-ul-Biddat
In such a form of Talaq, the Husband has to make a single irrevocable pronouncement of talaq or has to make three consecutive pronouncements of talaq which will result in irrevocable dissolution of the marriage. In the case of Shayara Bano v. Union of India (2017), the constitutional bench of the Supreme Court of India put an end to the long-lasting controversy about the legality of triple talaq in India. The bench consists of Hon’ble Justice Kurian Joseph, U.U. Lalit, R.F. Nariman, J.S. Khehar and Abdul Nazeer. The majority opinion was given by Hon’ble Justice Kurian Joseph, U.U. Lalit, R.F. Nariman that the practice of triple talaq is illegal and void whereas, Hon’ble Justice J.S. Khehar and Abdul Nazeer gave a dissenting opinion. However, the opinions of judges were distinct from each other thereby it is important to understand the opinion of each judge, which are as follows:-
As per Justice Kurian Joseph, section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 applies to all forms of talaq due to which all such practices should be in line with Shariat. Shariat is the source of Muslim personal law which includes within it the Holy Quran, Hadis, Ijma and Qiyas and it is the Holy Quran which is the primary source of Islamic law. Any practice which goes against the teachings of the Holy Quran violates Shariat and hence, is not permissible. After discussing various passages from the Holy Quran, it was observed that the Holy Quran demands the requirement of reconciliation before the pronouncement of talaq, however, triple talaq does not give time for reconciliation. The Hon’ble Justice concluded by laying down that what is held to be bad in the Holy Quran is bad in Shariat and hence bad in theology and what is bad in theology is also bad in law.
Hon’ble Justice U.U. Lalit and R.F. Nariman opined that triple talaq is not a practice which forms an integral part of the religion thereby, the practice will not get the protection of Article 25(1) of the Constitution of India. Further, the judges tested the word ‘talaq’ used in section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 on the anvil of Article 14 and Article 21 and held that the practice of triple talaq is manifestly arbitrary, whimsical and capricious as it is a unilateral decision of the husband and it does not provide for any opportunity of reconciliation. On the basis of the given opinion, the Judges held the word ‘talaq’ in section 2 to be void and illegal to the extent to which it embodies triple talaq.
Hon’ble Justice Khehar and Hon’ble Justice Abdul Nazeer gave a dissenting opinion wherein, the judges discussed the history of triple talaq in great detail and opined that the practice forms an integral part of religion and is hence entitled to the protection of Article 25.
Further, the Muslim Women (Protection of Rights on Marriage) Act, 2019 was implemented which makes the act of pronouncement of instant and irrevocable talaq a punishable offence under section 3 of the Act. The practice of triple talaq has thus become a cognizable, non-bailable and compoundable offence which is punishable with imprisonment of up to 3 years and a fine.
Procedure for divorce in the Divorce Act, 1869
The Divorce Act, 1869 applies when any one of the spouses professes Christian religion. Generally, it is the district courts that have jurisdiction to entertain petitions regarding divorce by virtue of section 4 of the Act. Section 10 provides that either party can seek relief of divorce on the basis of various grounds provided by the presentation of a petition to the district court. The grounds given under section 10 are also based on the fault theory wherein, one party gets entitled to divorce due to the presence of conjugal guilt or due to the fault on the part of the other party. The following are the grounds provided under section 10:-
The respondent has when committed adultery or,
the respondent when ceases to be a Christian by converting to another religion or,
the respondent is when suffering from unsoundness of mind for a continuous period of 2 years or more or,
the respondent is when suffering from a venereal disease that is communicable in nature for a period of 2 years or more or,
when the respondent has not been heard of for a period of seven years by those people who naturally would have heard of him had he been alive or,
when the marriage has not been consummated due to wilful refusal by the respondent or,
where a decree for restitution of conjugal rights has been passed but the same has not been complied with by the respondent for a period of 2 years or more or,
the respondent has when deserted the petitioner for a period of 2 years or,
the respondent has treated the petitioner with cruelty. Cruelty here can be both of physical and mental nature or,
Section 10(2) additionally provides that if the husband is found to be guilty of rape, sodomy or bestiality then the wife will be entitled to seek divorce. It is necessary to establish any one of the given grounds in the petition presented before the distinct court, it is the petitioner on whom the burden of proof to prove the existence of the ground lies. Section 10A of the Act provides for the dissolution of marriage on the basis of mutual consent, the given provision is pari materia to section 13B of the Hindu Marriage Act, 1955.
Procedure for divorce in the Special Marriage Act, 1954
The Special Marriage Act, 1954 is a secular law which was introduced to regulate inter-religious marriages and to devise a proper procedure for the registration of marriages under any other law. When parties from different religions get married under the Special Marriage Act, 1954 the divorce among the parties is governed by Chapter VI of the Act. It is pertinent to note that any marriage solemnised under the Foreign Marriage Act, 1969 is also dissolved as per The Special Marriage Act, 1954 by virtue of section 18 of the Foreign Marriage Act, 1969. The divorce under the Act is sought by the presentation of a petition to the district court on the basis of grounds given under section 27 of the Act. The following grounds are as follows:-
Respondent has when committed adultery or,
respondent has when deserted petitioner for a continuous period of 2 years or,
when the respondent has been sentenced to the punishment of imprisonment for a period of 7 years or more or,
respondent when has treated the petitioner with cruelty or,
when the respondent has been suffering from an unsound mind to such an extent that the petitioner can not be reasonably expected to live with the respondent or,
when the respondent has been suffering from a communicable venereal disease or,
when the respondent has not been heard of for a period of seven years by those people who naturally would have heard of him had he been alive.
section 27(2) provides that when the cohabitation between the spouses has not been resumed for a period of one year or upward after the decree of judicial separation or restitution of conjugal rights has been passed by the court.
The wife has been given the exclusive right to claim divorce under section 27(1A) on the following grounds:-
The husband is guilty of rape, sodomy and bestiality after the solemnisation of marriage or,
The Act provides for divorce by mutual consent under section 28 which is pari materia to section 13B of the Hindu Marriage Act, 1955 as explained above. Section 29 of the Act regarding the bar on presentation of the petition is pari materia to section 14 of the Hindu Marriage Act, 1955 as explained above. The jurisdictional facts regarding the presentation of the petition also remain to be the same as the Hindu Marriage Act, 1955.
Divorce procedure under Parsi Marriage and Divorce Act, 1936
The Parsi Marriage and Divorce Act, 1936 was implemented to regulate marriages and divorces among Parsis. The Act provides for the creation of special courts at the district level dealing exclusively with Parsi marriages however, after the creation of family courts there is no specific need for such forums. The relief of dissolution of marriage under this Act is claimed through the institution of a suit by the presentation of a plaint. In the given Act the courts must intimate the registrar under section 10 regarding the dissolution of marriage. The marriage can be dissolved on the basis of the fault grounds given under section 32 of the Act which are as follows:-
When marriage is not consummated for a period of one year after its solemnization due to wilful refusal by the defendant or,
when the defendant suffers from unsoundness of mind. Here, divorce can be sought if the defendant was of unsound mind at the time of marriage given that the plaintiff was unaware of the fact at the time of marriage and that he has presented the plaint within a period of three years from the date of solemnization of marriage. Divorce can also be sought on the ground of unsoundness if the condition of unsoundness is developed after the date of marriage and it continues to continue for a period of two years or more or,
if the defendant was pregnant at the time of the marriage due to someone other than the plaintiff or,
if the defendant commits adultery, unnatural offence, rape or bigamy. The provision also provides for a limitation period of two years for the presentation of the plaint on the given ground or,
if the defendant treated the plaintiff on the grounds of cruelty or,
if the defendant causes voluntary grievous hurt to the plaintiff or,
if the defendant is sentenced to the punishment of imprisonment for a period of seven years or more or,
if the defendant has deserted the plaintiff for a period of two years or,
if there has been no cohabitation between the parties for a period of one year after an order of separate maintenance has been passed by the courts or,
if the defendant ceases to be Parsi or converts to another religion.
Section 31 of the Act provides that, the marriage can also be dissolved on the grounds of the defendant not being heard of for a period of seven years or more by those people who would have heard of him naturally had he been alive. Section 32A of the Act provides that the marriage can be dissolved on the ground of non-resumption of cohabitation between the spouses for a period of one year or more after the decree of restitution of conjugal rights or judicial separation has been passed by the courts. Section 32B of the Act provides for divorce by way of mutual consent and it is pari materia to section 13B of the Hindu Marriage Act, 1955. The jurisdictional facts regarding the presentation of the petition also remain to be the same as the Hindu Marriage Act, 1955.
Conclusion
In India, strong belief is placed in the institution of marriage as it is a great source of harmony and confidence among people but irrespective of the given belief a very just system of divorce has been devised by the legislature. All the Acts related to divorce take into account the sentiments of the respective religious groups and mandates the efforts of reconciliation. On reading all the various legislations related to divorce, it can be concluded that divorce can prominently be sought in three ways that are, on the basis of fault grounds, on the basis of mutual consent and on the basis of well-recognized customs. It is also imperative to note that in contemporaneous times divorce can also be sought on equitable grounds wherein, parties inspire the confidence of the court that the continuation of marriage will be unjust for the parties and for the people related to them. At last, we can conclude that the law relating to marriage and divorce will keep on changing along with society’s changing conceptions regarding marriage and divorce.
Frequently Asked Questions (FAQs)
What are women’s rights after divorce in India?
Generally in India, women get the right to maintenance from their husband. Women can claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. The women can also get maintenance and other reliefs like protection orders and residence orders under the Protection of Women from Domestic Violence Act, 2005.
In all the cases of divorce the divorcee has the right to her ‘streedhan’ which usually consists of all the properties and ornaments gifted to her at the time of her marriage.
Where the divorcee is a Hindu she can seek interim maintenance under Section 24 and permanent maintenance or alimony under Section 25 of the Hindu Marriage Act, 1955. Apart from this, a Hindu divorcee can also claim maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956.
Where the divorcee is a Christian, she can claim relief of maintenance under Sections 36 to 38 of the Divorce Act, 1869. Where the divorcee is a Parsi she can get relief of maintenance under Sections 39 to 41 of the Parsi Marriage and Divorce Act, 1936.
If the divorcee belongs to Muslim religion she is entitled to recover unpaid dower and also entitled to maintenance during and after the iddat period under Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. If a Muslim woman has been divorced through an irrevocable form of talaq she can also prosecute the husband as it is a criminal offence under Section 3 of the Muslim Women (Protection of rights on Marriage) Act, 2019.
In the case of Badshah v. Urmila Badshah Godse (2013), it was held that the object of granting maintenance is to obviate the possibility of destitution. In the case of Bhuwan Mohan Singh v. Meena (2015), It was held that the maintenance is given for sustenance of the wife however, here in this context the word ‘sustenance’ will not mean mere animal existence rather, it would mean to accommodate the wife to the same status of living which the wife was enjoying while living with the husband.
Can reluctance to sexual intercourse be a ground for divorce ?
Where the other spouse denies to have sexual intercourse without any reasonable excuse and the pattern of behaviour continues for a long time, it comes under a valid ground for divorce. In such cases, the reluctance on part of the spouse can be seen as an act of cruelty, which can form a ground for divorce. Same was held by the Supreme Court in the case of Vidhya Vishwananth v. Kartik Balakrishnan (2015). It is pertinent to note that in all religions, one of the main objectives behind marriage is procreation thereby, total reluctance on part of the spouse can be considered as cruelty. It is also imperative to understand that it does not give any of the spouses an unfettered right over the body of the other as they are expected to respect each other’s wishes and bodily autonomy.
What are the documents required for divorce ?
Generally, the parties are required to submit the proof of marriage like marriage certificate, photographs of marriage or documents like Nikah Nama.
Apart from these, parties are required to submit their identification proofs to ascertain the identity of the party and relation to the other spouse as various identification proofs also mention the name of the wife or husband.
The parties are also expected to file address proof through which the jurisdiction of the court will be adjudged.
Parties also have to submit their passport size photographs for the purpose of record.
In the case of Rajnesh v. Neha (2020), it was held by the Supreme Courts that it is mandatory for the parties to submit an affidavit disclosing their assets and income so that the court can decide the amount of maintenance to be granted.
If the parties are seeking divorce through mutual consent they also have to present the agreement disclosing the arrangements regarding custody of child, maintenance and streedhan.
If the parties seek divorce on any of the fault grounds then a petition or a plaint as the case may be should be filed. Such a petition or plaint should disclose the ground on which the divorce is being sought.
Can divorce be sought without the signature of the other spouse ?
In cases where divorce is being sought by mutual consent the signature of the other spouse is mandatory. However, in other cases where divorce is being sought on fault grounds the petitioner or plaintiff can present the petition or the plaint as the case may be and it is upon the court to secure the appearance of the respondent or the defendant. Thereby, if the aggrieved spouse has sought relief from the court and the other spouse is reluctant to take part in the proceedings and wilfully avoids the summons then in such case the court can pass an ex-parte decree after hearing the aggrieved spouse. In the case of Seema Devi v. Rajnit Kumar Bhagat (2023), it was held by the Delhi High Court that even an ex-parte divorce decree is as efficacious as a bi-parte divorce decree. It is imperative to note that the court will pass ex-parte decree as a last resort because it is mandatory for the court to make every endeavour for reconciliation of parties in divorce matters.In the case of Jagraj Singh v. Birpal Kaur (2007), it was held by the Apex Court, that the courts can even issue non-bailable warrants to secure the attendance of the parties to strike conciliation between them.
References
Paras Diwan’s Law of Marriage and Divorce, VII edition, 2020
Principles of Mahomedan Law by Sir Dinshaw Fardunji Mulla, XXIII edition, 2021
Hindu Law by Sir Dinshaw Fardunji Mulla, XXI edition, 2013
Independent Thought vs. Union of India (2017), a landmark decision by the Apex Court that caused a significant and extensive change in Indian society. In this decision, the Apex Court provides protection to the lives of various girls who are married off at a young age and are subject to physical and mental abuse by their husbands. Also, the Apex Court upholds the rights of a girl child and defends the bodily integrity of every girl child. This article makes an effort to provide exhaustive knowledge about the findings of this decision in a simplified manner.
Facts of the case
The petitioner is a registered society and a non-profit organisation registered on August 6, 2009, working in the area of child rights. He filed a writ petition in the public interest under Article 32 of the Indian Constitution before the Supreme Court. The NGO is involved in various matters related to children, including but not limited to legal assistance, research, and training. It also provides technical and hand-holding assistance to various governmental organisations and multilateral bodies in several states.
The petitioner claims that the Indian Constitution’s Articles 14, 15, and 21 are violated by Exception 2 of Section 375 of the Indian Penal Code of 1860 (hereinafter referred to as the “IPC”). And therefore, the petitioner filed this writ petition and challenged the statutory provision, which violates the rights of married girls between the ages of 15 and 18 years.
The petitioner claimed that, as per Section 375 of the IPC, a man who has sexual intercourse with a girl under the age of 18 is committing rape, whether with or without her consent. But unfortunately, by virtue of Exception 2 of Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband has non-consensual sexual intercourse with her and has not been criminalised under the IPC, only because she is married to him and for no other reason.
Legal issues raised before the Supreme Court of India
Whether sexual intercourse between a man and his wife, a girl between 15 and 18 years of age, would be rape?
Whether Exception 2 to Section 375 of the IPC is unreasonable and creates an unnecessary distinction between married girls.
Arguments by the petitioner
The learned counsel of the petitioner argued that since Section 375 of the IPC makes it clear that sexual intercourse with a girl under the age of 18 constitutes rape, it is irrelevant whether she gives consent or not. But when girls between the ages of 15 and 18 automatically get psychologically and physically capable of engaging in sexual behaviour, only because “she is married.”
The learned counsel further claimed that the Child Marriage Restraint Act, 1929, prohibited the marriage of girls under the age of 18 and that it prohibited having sexual relations with girls under the age of 18 as well. And therefore, the minimum age of marriage as laid down by law (after 1978) is 18 years.
In addition, learned counsel stated that Exception 2 to Section 375 of the IPC is not only arbitrary but also discriminatory in light of Article 15(3) of the Constitution, which instructs the Parliament to make special provisions for women and children but instead of making provisions for uplifting them, the girl child is placed at a great disadvantage, which is contrary to the vision and beneficiaries offered in Article 15(3) of the Constitutional Law.
According to the petitioner, there is apparent discrimination between married and unmarried girls between the ages of 15 and 18. In the case of a married girl, if a man has sexual intercourse with his wife even without her consent, it does not count as rape, but in the case of an unmarried female, if a man has sexual intercourse with a girl even with her consent, it amounts to rape.
The learned counsel of the petitioner further argued that if a girl child faces forced sexual intercourse by her husband, it violates her liberty and dignity and does amount to a violation of the human rights defined under Section 2(d) of the Protection of Human Rights, 1993.
The counsel further emphasises that under the Prohibition of Child Marriage Act, 2006, a male who has not completed the age of 21 and a female who has not completed the age of 18 are considered children. Additionally, the child marriage may be dissolved at the discretion of either party. In addition, child marriage has negative effects on one’s health, such as early pregnancy, maternal and neonatal death, education losses, etc. Although it does not violate human rights, child marriage is seen as a barrier to young people’s growth.
Arguments by the respondent
The learned counsel of the respondent argued that child marriage is still a problem in the country, as the country’s economic and educational advancement are both staging and not improving. In order to safeguard the rights of husband and wife in criminalising sexual actions between them, they agreed to maintain the age of 15 years specified in Exception 2 of Section 375 of the IPC.
According to the National Health Survey Report, in India, 46% of the women between the ages of 18 and 29 were already married before turning 18. It is also estimated that there are 23 million child brides in the country. Since rape is such a horrific and heinous crime, criminalising marriage completion and linking it to it would be wholly incorrect and impractical.
While considering India’s socioeconomic situation, it would be inappropriate to punish child marriage as per Exception 2 to Section 375 of the IPC because it has long been a common practise that is based on social norms and basic facts as well as tradition.
The Law Commission of India recommended in their report that the age be raised from 15 to 16 years old, but it was agreed to keep it at 15 years old following extensive debate with various stakeholders.
According to Exception 2 of Section 375 of the IPC, if the marriage is solemnised at the age of 15 out of custom, it should not be a justification to charge the husband with rape under the IPC. Because it is required that laws be developed in accordance with standards that do not negatively impact a particular class or community, taking into account social and historical traditions and norms, the 15-year limit should remain in Exception 2 to Section 375 of the IPC.
Further, the learned counsel of the respondent argued that child marriages have historically taken place in many regions of the nation, and as a result, these traditions should be upheld rather than shattered. In addition, by marriage, the girl consents expressly and impliedly to having sexual intercourse.
Ratio decidendi
Justice Madan B. Lokur
The Apex Court held that a child below the age of 18 is entitled to the protection of her human rights, including the right to live with dignity and she must be safeguarded from domestic violence as well. He cited the Law Commission of India’s 172nd report, the Human Rights Council, the Protection of Human Rights Act of 1996, and the Juvenile Justice (Care and Protection of Children) Act of 2015.
According to the Protection of Children from Sexual Offences Act, 2012, it is a crime for a girl’s husband to engage in sexual behaviour with her and engage in penetrative sexual assault. Exception 2 of Section 375 IPC, which is not rape as defined under this exception, is found further in the framework of pro-child legislation. In order to empower women and stop their socioeconomic adversity, which might lead to gender equality, Article 15(3) of the Constitution was introduced.
Furthermore, women have the right to reproductive choice as a personal liberty defined under Article 21 of the Indian Constitution. He also highlights that if a man has sexual intercourse with a girl child between the ages of 15 and 18, he has not committed rape as defined under Section 375 of the IPC but he is said to have committed aggravated penetrative sexual assault under Section 5(n) of the POCSO Act.
Justice Deepak Gupta
According to him, Articles 14 and 21 of the Indian Constitution are key topics. The legislative history is explicit in stating that a person below the age of 18 is a child who is not fully developed and who is otherwise unable to give consent to have sex with her husband. Additionally, the court is always makes a presumption of the constitutionality of the legislation
He further highlighted that Parliament has the power to raise the age of consent under clause 6 of Section 375 of the IPC and determine the minimum age of marriage as well. And emphasise that a person under the age of 18 is considered a child unable to look out for his or her own interests under the Protection of Children from Sexual Offences Act of 2012, the Juvenile Justice (Care and Protection of Children) Act of 2015, the Child Marriage Restraint Act of 1929, the Protection of Women from Domestic Violence Act of 2005, the Majority Act of 1875, the Guardians and Wards Act of 1890, the Indian Contract Act of 1872, and many other laws.
In addition, he also laid down that, after examining the numerous data and reports presented before him, it is evident that child marriage not only violates the child’s human rights but also impacts their health.
He further ruled that the state would not take a defence of tradition and customary marriage in respect of a girl child, which would be totally a violation of Articles 14, 15, and 21 of the Indian Constitution. As a result, this Court believes that Exception 2 to Section 375 IPC is arbitrary since it violates the values entrenched in Articles 14, 15, and 21 of the Indian Constitution.
Analysis of the judgement
The Apex Court ruled that child marriage is an abhorrent practise and that it violates the child’s human rights. It does not imply that more child marriages are occurring, and the act would not be made illegal. Additionally, it was stated that since the age of consent is statutorily and unquestionably set at 18. An act that is per se illegal and a criminal offence cannot be legitimised and made legal only because it has been occurring for a long time. The same point was addressed by the Law Commission of India in its 172nd report, noting that a customary practice that is permitted under the IPC contradicts a girl child’s right to protect her physical integrity, health, and development.
The Supreme Court further emphasised that while engaging in sexual activity with his female spouse does not necessarily constitute rape under the IPC, it does constitute a criminal offence under the POCSO Act. The Supreme Court ruled that Exeception 2 of Section 375 of the IPC is discriminatory and unlawful, and that it grants immunity to the husband. If the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for the other offences (IPC, etc.), but he cannot be charged with rape. It is illogical to offer such immunity to the husband exclusively in cases of rape, especially when the “victim wife” is under the age of 18 years.
Therefore, it is seen that Exeception 2 of Section 375 of the IPC is arbitrary and discriminatory, and it violates the rights of a girl child under Articles 14, 15 and 21 of the Indian Constitution. It means that if any law or rule violates any provision of the constitution, it will obviously be repealed or declared unconstitutional.
Conclusion
In order to protect the bodily integrity and dignity of a girl’s child, the Supreme Court passed a landmark decision on August 11, 2017, upholding that any sexual intercourse between a man and his girl wife before the age of 18 constitutes rape. Additionally, it should be noted that this decision will have prospective effects, meaning that it is now a serious crime to engage in such behaviour. By quashing Exception 2 of Section 375 of the IPC, the Court established the principle of equality and granted girls the same rights as boys. In this historic judgement, the Supreme Court saved the lives of numerous young girls. The Apex Court also appreciates the petitioner who presented this bigger social issue before them, which infringes on the rights of numerous girls.
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:
Is it just pink or baby pink, hot pink, bright pink, pale pink, or cherry pink? A similar controversy comes into play when it comes to “whether it is the law of tort or whether it is the law of torts”. Some jurists are of the opinion that it is the law of torts, and some support the opinion that it is the law of torts. Salmond falls into the second category and to support this opinion, he gave the ‘Pigeon Hole Theory.’
The word ‘tort’ is made up of the word ‘tortum,’ which is a word of Latin origin and means to twist. It implies conduct that is twisted or tortious. The term tort is similar to the English term ‘wrong’ and the Roman law term ‘delict’. Hence, tort can be expounded as a civil wrong that is not a breach of contract or breach of trust for which the suitable remedy is an action for unliquidated damages, i.e., damages that are not fixed and are decided on the basis of damage or liability.
Salmond’s pigeon hole theory
Salmond was a legal scholar, public servant and judge in New Zealand and he was of the opinion that it was the “law of torts”. According to Salmond, there are specific kinds of civil wrongs that fall under the category of the law of torts and for the purpose of supporting this opinion, Salmond promulgated this Pigeon Hole Theory.
According to Salmond, there are a number of pigeon holes and each of the pigeon holes is labelled as a specific and well defined tort. These pigeon holes may be slander, malicious prosecution, assault, etc. If anything wrong fits in these specific and well defined pigeon holes, then it should be considered a tort. According to this theory, there is no scope for the evolution of a new tort. Salmond was of the opinion that the burden of proof lies on the plaintiff, and if he fails to discharge this burden, no remedy would be available to him. In other words, we can say that it is the duty of the plaintiff to prove that the wrong from which he /she is suffering lies in a pigeon hole. Therefore, according to Salmond, there is no general principle of liability; specific wrongs have already been decided and labelled as torts, and the cases falling into these particular, previously decided classes of wrongs would have remedy under the law of torts. If the defendant’s act cannot be put in any of the pigeonholes labelled as tort, then there is no tort committed by the defendant. Salmond was of the view that, just like criminal law consists of rules, according to the act of the offender, those rules decide which offence has been committed by the offender. If we give this theory a holistic view, it seems like a closed and inexpensible system, which gives a narrow interpretation of tort.
In the legal world, few supported Salmond’s Pigeon Hole Theory and few opposed it.
In support of Salmond’s pigeon hole theory
Dr. Jenks supported Salmond’s Pigeon Hole Theory but not entirely. According to Dr. Jenks, it is wrong to interpret Salmond’s Pigeon Hole Theory as saying that new torts cannot be created by courts; rather, courts can create new torts but such new torts should show a certain level of similarity to the torts that have already been recognised as torts by the courts. In the 17th edition, Salmond’s editor expressed his concern that the theory of Salmond is misunderstood and misinterpreted by the critics.
Professor Glanville Williams said that every person has the right not to be damaged This statement is accepted all over the world. According to him, it imposes a certain level of liability on the wrongdoer or the defendant. This liability is based on certain rules that have evolved out of fundamental legal principles of justice, equality, and good conscience. The courts always seem to expand the area or ambit of liability by expanding the scope of the tort law. This can easily be seen in English jurisprudence as well as in Indian jurisprudence. On the one hand, the English courts took strict measures and evolved the concept of strict liability; on the other hand, Indian courts also expanded the ambit of liability and propounded the principle of strict liability. It has been observed that the concept of liability in tort law is not fixed and is continuously evolving with time. The courts have such revisionist powers at the time of deciding liability related matters that these courts are able to redraw or redefine the boundary of liability by propounding new principles. We can say that there is no hard and fast rule for deciding liability. Liability is an evolving concept and courts contribute to the evolution of the concept of liability according to the needs of society.
Criticism of Salmond’s pigeon hole theory
Winfield was one of the prominent critics of Salmond’s pigeon hole theory. According to him, every wrongful act for which there is no justification available can be treated as a tort; hence, he was of the opinion that there should not be only a few categories of torts but that they should be thrown open to create new categories of tort. Winfield supported this view that this is the law of torts and not the law of torts.
In the case of Constantine vs. Imperial London Hotel Ltd. (1944), the Court of Law acted on the principle of Winfield and followed his theory that where there is a right, there is a remedy. In this case, a West Indies cricketer was the plaintiff, and he filed a suit against the hotel. In this case, though the cricketer had not suffered any monetary loss nor did he suffer any physical setback, the court was of the view that since the rights of the cricketer had been breached by the hotel, the hotel should be punished for its act. The Court in this case relied on the principle that where there is a right, there is a remedy; hence, the Court awarded damages to the cricketer. In this case, the Court enlarged the ambit of the tort law.
In the case of Nixon v. Herndon (1927), the Supreme Court of America applied the same principle of injuria sine damnum, which means injury without damage. When the plaintiff suffers an injury, the cause of action arises and since the courts mostly rely on the principle that where there is a right, there is a remedy, they give relief to the plaintiff in the form of unliquidated damages.
These cases showed the application of ubi jus ibi remedium and injuria sine damnum. These courts showed their inclination towards the theory of Winfield, according to which every wrongful act without justification is a tort.
The law of torts is a product of common law jurisprudence and innovations in this product were done through the application of the judicial mind. This is why most jurists are of the view that the concept should not be confined and should be allowed to evolve.
In the case of Rooks v. Barnard (1964), the House of Lords observed that the tort of intimidation existed but did not cover the threat to break the contract. The Court further observed that a threat to break a contract, like a threat to commit a tort, is the foundation for an action of intimidation. In this case, the court did not confine itself to the described and well defined torts but explored a little bit and covered this tort of threat to break contract under a well defined tort of intimidation.
India’s position
The Supreme Court of India observed in the case ofUnion of India vs. M/S. Union Carbide Corporation (2023) that Section 9 of the Civil Procedure Code, 1908, enables the civil courts to try all the suits of civil nature, implying the authority to impose the law of tort as a fundamental principle of justice, equity and good conscience. India follows the common law system; hence, the law of tort in India is inspired by the English law of tort but India has twisted these principles according to its needs. It can be easily seen that India deviates from Salmond’s pigeon hole theory and the legal system of India is of the view that it is “the law of torts and not the law of torts.” The Indian legal system has left room for evolution, though the tort law in India is quite underrated and less evolved.
In the case ofM.C. Mehta and Anr vs. Union of India & Ors. (1986), Justice P.N. Bhagwati evolved the concept of absolute liability. Before this case, India was following the principle of strict liability, which evolved in the 19th century in the case of Rylands vs. Fletcher. In this case, the Indian Supreme Court expanded the horizons of tort law and went beyond Salmond’s Pigeon Hole Theory. In this particular case, the Hon’ble Supreme Court of India analysed that the principle of strict liability that was evolved in the case of Rylands vs. Fletcher (1868) was justifiable according to the demands of that time but the time has changed the needs of society, hence the law should be evolved accordingly. Therefore, the Apex Court of India introduced a new principle of absolute liability. This particular case shows the inclination of the Indian Supreme Court towards Winfield rather than Salmond.
Conclusion
Though it is claimed by the supporters of Salmond that the pigeon hole theory is misunderstood and overlooked by the critics, it is further claimed that Salmond’s theory does not restrict the evolution of the law of tort by stating it as the law of torts. Winfield emerged as one of the prominent critics of this theory and supported the view that new torts can be added according to the need of the hour. Winfield stated that every wrongful act without justification is a tort. The Indian legal system also deviates from Salmond’s Pigeon Hole Theory and believes in the continuous evolution of tort law. In the famous Oleum gas leak case, the Apex Court of India evolved a new concept of absolute liability rather than relying on strict liability.
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 Susanna Sharma. This article will discuss all about the Solicitors Qualifying Exam 2, eligibility criteria, fee to be paid, date of the exam, the syllabus, exam centres, tips and tricks to pass the exam, preparatory course, and frequently asked questions on exemptions from SQE 2, number of resits, passing marks, etc. An effort has been made to provide exhaustive details about the SQE 2.
Table of Contents
Introduction
If you are dreaming of becoming a solicitor in England and Wales, this is your cue to start your preparations and achieve your dream. The path to becoming a solicitor is definitely long and testing, however, the right information, strategy and preparation will go a long way towards helping you.
To become a solicitor in England and Wales, a candidate has to appear for an exam known as the Solicitors Qualifying Exam or SQE. The Solicitors Qualifying Exam is conducted in two stages- SQE 1 and SQE 2. Those candidates who successfully qualify the first round of the exam, i.e., SQE 1, can sit for SQE 2. All the candidates, whether they are natives of England and Wales or any other part of the world, must sit for this exam to qualify and work as a solicitor. This exam ensures that the solicitors have the necessary qualifications and meet the standards required to perform their duties.
This article will help you with all the necessary details regarding the second stage of the qualifying exam, which is SQE 2.
Solicitors Qualifying Exam 2 (SQE 2) : brief overview
The Solicitors Qualifying Exam is conducted by the Solicitors Regulation Authority in England and Wales. This exam is essential to starting your career as a solicitor. Candidates from all around the world, including the United Kingdom, have to sit for this exam to qualify as solicitors. The exam has been divided into two phases to test the functioning legal knowledge and practical legal skills, respectively. The second phase is known as the Solicitors Qualifying Exam 2 (SQE 2).
The SQE 2 tests your practical legal skills, since functioning legal knowledge is already tested through the SQE 1. The SQE 2 consists of oral and written assessments to test your legal skills.
Ultimately, those who can successfully clear SQE 2 are qualified to practise as solicitors. They are highly esteemed and respected legal professionals and can work on a plethora of legal matters.
Tabular representation of SQE 2 exam (October Cycle 2023)
Date of booking for SQE 2 (October cycle 2023)
21st June 2023 (10:00 AM) to 11th September 2023 (5:00 PM)
Number of assessments
Oral assessmentWriting assessment
Fee for SQE 2
£2493(pounds)
Exemption from SQE 2
For qualified lawyers from specific jurisdictions
Number of attempts
3 attempts to be taken within 6 years of the first attempt
First sitting- 6th to 7th February 2024Second sitting- 8th to 9th February 2024
30th January to 1st February, 2024
29th May 2023
April 2024
10th January 2024 to 20th March 2024
First sitting- 7th to 8th May 2024Second sitting- 9th to 10th May 2024Third sitting- 14th to 15th MayFourth sitting- 16th to 17th May
30th April to 2nd May, 2024
28th August 2024
July 2024
24th April 2024 to 19th June 2024
First sitting- 31st July to 1st August 2024Second sitting- 6th to 7th AugustThird sitting- 8th to 9th August
13th to 15th August 2024
26th November 2024
October 2024
10th July 2024 to 18th September 2024
First sitting- 23rd to 24th October 2024Second sitting- 29th to 30th October 2024Third sitting- 31st October to 1st November 2024
5th to 7th November 2024
To be notified
Eligibility criteria for Solicitors Qualifying Examination 2 (SQE 2)
In order to be eligible to write the SQE 2, a candidate must fulfil the following essential criteria:
The candidate must have cleared Solicitors Qualifying Exam 1 successfully. Those who do not clear SQE 1 cannot sit for SQE 2.
The candidate must have a level 6 degree (undergraduate degree) as per the UK in any subject, not limited to law only.
The candidate must have two years of qualifying work experience.
The candidate must be fit and suitable as per the character and suitability requirements set out by the Solicitors Regulation Authority to be able to qualify as a solicitor.
Steps for non-law graduates to qualify SQE 2 exam
To become a solicitor in England and Wales, it is not necessary that the candidate have a law degree. Even those who do not have a law degree can sit for the SQE 2. Here are the steps for non-law graduates to sit for the SQE 2-
Complete a degree in any subject, which should be a level 6 degree.
Study for the SQE after going through the syllabus, it is advised to take a preparation course.
Sit for SQE 1
Sit for SQE 2
Gather the two year qualifying work experience
Satisfy the character and suitability requirements set up by SRA
Finally, qualify as a solicitor.
Exemption from Solicitors Qualifying Examination 2 (SQE 2)
While it is necessary to qualify for SQE 2 to be able to practise as a solicitor in England and Wales, there are also a few exemptions given to candidates who fulfil the specific criteria. Those who fall under these exemptions do not have to sit for the SQE 2.
According to the Solicitor Regulation Authority, qualified lawyers can apply for exemptions in the SQE assessment. This exemption is provided to qualified lawyers who already have the skills and knowledge that are assessed in this exam. For this purpose, the qualifications and work experience of the candidate are looked into.
Please note: Not all qualified lawyers are given exemptions under SQE 2. Only qualified lawyers from specific jurisdictions are guaranteed exemption, and lawyers from other jurisdictions will either be individually assessed for exemption or will not be entitled to any exemptions.
Therefore, in order to be eligible for exemption from SQE 2, a candidate must fulfil the following criteria-
Must be a qualified lawyer with the same practice rights as a solicitor of England and Wales
Must have qualified from any of the 25 jurisdictions eligible for agreed exemption, or
Must have qualified from any of the 60 jurisdictions that are eligible for individual exemption.
Who are qualified lawyers for exemption in SQE 2 exam
A qualified lawyer is someone who has a professional degree in law and has the right to practise in England, Wales or other jurisdictions. The legal qualification should be of the same level as that of a solicitor in England and Wales.
Agreed exemption
There is a list of 25 jurisdictions available on the official website of SRA, which states that qualified lawyers from these jurisdictions do not have to sit for SQE 2. This is an agreed exemption. These 25 jurisdictions are mentioned here.
Individual exemption
Apart from the 25 jurisdictions, qualified lawyers from the other 60 jurisdictions are entitled to individual exemptions. This means that although they are not guaranteed the exemption, after careful consideration of their legal qualifications and work experience, they can get an exemption. The SRA will assess each individual application for exemption and decide if an exemption is to be given or not.
To be eligible for individual exemption, the candidate has to fulfil the following criteria-
Must have the same practice rights as a solicitor of England and Wales
Must have completed their degree in one of the 60 specific jurisdictions entitled for individual exemption
Must have two years of full-time professional legal work experience or equivalent experience.
Please note: Indian lawyers are entitled to individual exemption for SQE 2 as India falls under the 60 jurisdictions mentioned in the list. For your reference, the list is here.
Application for exemption
Candidates must follow the following steps to avail the exemption-
Update your jurisdiction in your SRA account by adding it to the “My Profile” section
Update your legal qualifications as an advocate or legal practitioner in your profile.
Then go to ‘Start new applications’ on the homepage
Choose the ‘Apply for qualified lawyer exemption from the SQE Assessments’ option,
Tick on the two year’s work experience box if you already have the work experience.
Return to mySRA to upload your form.
Fee for Solicitors Qualifying Examination 2 (SQE 2)
The cost of the exam is to be paid separately for both stages, which are SQE 1 and SQE 2. The cost of SQE 2 is £2493 (pounds). Indian candidates who qualify to sit for this exam have to pay the fees as per the current exchange rate.
For example, if the current exchange rate of 1 £ in Indian rupees is 105.87 Rs, then the total amount to be paid for the exam will be 2,63,911.22 rupees.
This fee for SQE 2 is paid for both the written and oral assessments, and it must be paid at the time of booking. Unpaid exam bookings are not considered by the authorities.
Revised fee for SQE 2
The Solicitors Regulation Authority has notified that the fees for the Solicitors Qualifying Exam will be changed and will take effect from September 2023. Thus, those candidates who will appear for SQE 2 in October 2023 and thereafter have to pay the revised fee.
The revised fee is£2766. Indian candidates have to pay the fee as per the current exchange rate in India while filling out the form.
There has been an 11% increase in the fee for SQE 2. According to the SRA, the reason behind the increase in fees is ongoing inflation.
Syllabus for Solicitors Qualifying Exam 2 (SQE 2)
The SQE 2 is conducted to assess the practical legal skills and knowledge of the candidate.
Subject and practice area
The subject and practice areas of the exam are-
Criminal Litigation, which also includes advising clients at the police station
Dispute Resolution: Contract Law and Tort
Property Practice: Land Law, Taxation
Wills and Intestacy, Probate Administration and Practice: Trusts, Taxation
Business Organisations, rules and procedures: Contract Law (including money laundering and financial services), Taxation.
Please Note: Professionalism and ethics are also core parts of SQE2. All assessments under SQE2 will have questions relating to ethics. The candidates have to identify the ethical problems and solve them.
Details of functioning Legal Knowledge for SQE 2
Each of the subject and practice areas has been chosen to evaluate the candidates as a Day one solicitor. These subject areas are vast in themselves, so they have been narrowed, and specific sections and topics from each subject are important. Here is a detailed description of what is important in each subject for functioning legal knowledge in SQE 2.
Core principles of Criminal Liability
Functioning legal knowledge in criminal liability includes-
Calculating the limitation periods for claims in contract and tort
Practise direction- Pre-action conduct
The principles and purpose of pre-action protocols governing particular claims and consequences for failure to follow their terms
Applicable law: mechanism to determine which country’s laws apply to contractual or tortious claim issued in the courts of England or Wales
Jurisdiction: mechanism to determine jurisdiction over an international contractual or tortious claim.
Where to start proceedings
Allocation of business between the High Court and the Country Court
Jurisdiction of the Specialist Courts
Issuing and serving proceedings
Issuing a claim form
Adding, removing or substituting the parties
Service of a claim form within the jurisdiction
Procedure for service of a claim form outside the jurisdiction with or without the court’s permission and mechanism for effecting valid service in another jurisdiction
Deemed dates of service and time limits for serving proceedings
Service by an alternate method.
Responding to a claim
Admitting the claim
Acknowledging service and filing a defence and / or counterclaim
Disputing the court’s jurisdiction
Entering and setting aside judgement in default
Discontinuance and settlement
Time limit for responding to a claim
Statements of case
Purpose, structure and content of a claim form, particulars of claim, or defence relating to a claim in contract or tort
Purpose, structure and content of a reply, Part 20 claim, or defence to Part 20 claim
Request for further information about statements of case
Amendments
Interim applications
Procedure for making an application
Purpose, procedure and evidence required for particular applications
Summary judgements
Interim payments
Interim injunctions
Case management
The overriding objective
Track allocation
Case management directions for cases proceeding on the fast or multi-tracks
Procedure and mechanism for effecting valid enforcement in another jurisdiction
Core principles of Contract Law
Formation of contract
Offer and acceptance
Consideration
Intention to create legal relations
Certainty
Capacity
Parties
Probity of contract
Rights of third parties
Contract terms
Express terms
Incorporation of terms
Terms implied by common law and statute
Exemption clause
The inter[pretation of contract terms (conditions, warranties and innominate terms)
Variation
Vitiating factors
Misrepresentation
Mistake
Unfair contract terms
Duress and undue influence
Illegality
Termination of contract
Expiry or other specified event
Breach of contract
Frustration
Basic principles of restitution and unjust enrichment in the context of termination of contract
Remedies
Damages
Liquidated sums and penalties
Specific performance
Injunctions
Duty to mitigate
Indemnities
Guarantees
Causation and remoteness
Core principles of Tort
Negligence
Duty of care [standard(general and professional)] and breach
Causation (single and multiple)
Remoteness and loss
Principles of remedies for personal injury and death claims
Claims for pure economic loss arising from either a negligent act or misstatement
Claims for psychiatric harm
Employer’s primary liability (operation and effect of common law principles)
Defences
Consent
Contributory negligence
Illegality
Necessity
Principles of vicarious liability
Occupier’s liability
Legal requirements for a claim under the Occupier’s Liability Act 1957(in relation to visitors) and the Occupier’s Liability Act 1984 (in relation to non-visitor’s)
Matters that do not require express planning permission
Building regulation control
Enforcement: time limits and the range of local planning authority’s enforcement powers.
Taxation – property
Stamp Duty Land Tax and Land Transaction Tax
Basis of charge in both England and Wales for:
1. Residential property
2. Non-residential freehold property
Value Added Tax
Basis of charge
1. What constitutes a taxable supply
2. Differences between standard, exempt and zero-rated supplies
Reasons why a client would make an option to tax and the effect that has.
Capital Gains Tax
Basis of charge
Principal private dwelling-house exemption
Core principles of land law
Nature of land
Distinction between real property and personal property
How to acquire and transfer legal and equitable estates
How to acquire and assume legal and equitable interests in land
Methods to protect and enforce third party interests
Different ways in which land can be held
Legal formalities required to create and transfer interests and estates in land
Title to land:
Registration of title to land:
1. Estates that can be substantively registered
2. How to protect interests
3. Interests that override registration and interests that need to be protected on the register
Core principles of unregistered title to land:
1. Role of title deeds
2. Land charges
Continuing role of doctrine of notice.
Co-ownership and trusts
Differences between joint tenants and tenants in common in law and in equity
Rule of survivorship
Severance of joint tenants and tenants in common in law and in equity
Rule of survivorship
Severance of joint tenancies
Solving disagreements between co-owners by reference to sections 14 and 15 of Trusts of Land and Appointment of Trustees Act 1996.
Proprietary Rights
Essential characteristics of easements
Methods for creation of easements
Rules for the passing of the benefit and burden of freehold covenants
Mortgages, including enforceability of terms, priority of mortgages, lender’s powers and duties, and protection of mortgagors and other third parties with an interest in the land.
Leases
Relationship between landlord and tenant in a lease
Essential characteristics of a lease including the difference between a lease and licence
Privity of contract and privity of estate
Rules for the passing of the benefit and burden of leasehold covenants and enforceability
Purpose and effect of an alienation covenant
Remedies for breach of leasehold covenants (including forfeiture)
Different ways a lease can be terminated.
Wills and Intestacy
Validity of wills and codicils
Testamentary capacity
Duress and undue influence
Formal requirements
Personal representatives
The appointment of executors
Renunciation and reservation of power
Alterations and amendments to wills
Effect of alterations made to wills both before and after execution
The distinction between charitable trusts and non-charitable purpose trusts
Resulting trusts
How they arise and when they are (or are not) presumed
Trusts of the family home
Establishment of a common intention constructive trust
1. Legal title in the name of both parties/sole party
2. Express declaration or agreement as to equitable ownership
3. Direct and indirect contributions
Requirements to establish proprietary estoppel.
Liability of strangers to the trust
Establishing recipient liability
Establishing accessory liability
The fiduciary relationship and its obligations
Duty not to profit from fiduciary position
Trustees not to purchase trust property
Fiduciary not to put himself in a position where his interest and duty conflict.
Trustees
Who can be a trustee; appointment, removal and retirement of trustees
Trustees’ duty of care
Trustees’ duty to invest ( and powers in relation to investment)
Trustees’ statutory powers of maintenance and advancement
Trustees’ liability
Breach of trust
Measure of liability
Protection of trustees
Limitation period
The nature of equitable remedies and the availability of tracing in equity
Business organisations, rules and procedures
(Excluding the Listing, prospectus, disclosure guidance and transparency rules and any other FCA, London Stock Exchange, market rules or codes)
Business and organisational characteristics (sole trader/partnership/LLP/private and unlisted public companies)
Legal personality and limited liability
Procedures and documentation required to incorporate a company/form a partnership/LLP and other steps required under the companies and partnerships legislation to enable to commence operating:
Constitutional documents
Companies House filing requirements
Finance
Funding options: debt and equity
Types of security
Distribution of profits and gains
Financial records, information and accounting requirements.
Corporate governance and compliance
Rights, duties and powers of directors and shareholders of companies
Company decision-making and meetings: procedural, disclosure and approval requirements
Documentary, record-keeping, statutory filing and disclosure requirements
Appointment and removal of directors
Minority shareholder protection.
Partnership decision-making and authority of partners
Procedures and authority under the Partnership Act 1890
Common provisions in partnership agreements.
Insolvency (corporate and personal)
Options and procedures – CVA/IVA, bankruptcy, administration, fixed asset receivership, voluntary and compulsory liquidation
Claw-back of assets for creditors – preferences, transactions at an undervalue, fraudulent and wrongful trading, setting aside a floating charge
Order of priority for distribution to creditors.
Taxation – business
Income Tax
Chargeable persons/entities (employees, sole traders, partners, shareholders, lenders and debenture holders)
Basis of charge (types of income/main reliefs and exemptions)
The charge to tax: calculation and collection
The scope of anti-avoidance provisions.
Capital Gains Tax
Chargeable persons/entities (sole traders, partners, and shareholders)
Basis of charge (calculation of gains/allowable deductions/main reliefs and exemptions)
The charge to tax: calculation and collection
The scope of anti-avoidance provisions.
Corporation Tax
Basis of charge
Calculation, payment and collection of tax
Tax treatment of company distributions or deemed distributions to shareholders
Outline of anti-avoidance legislation.
Value Added Tax
Key principles relating to scope, supply, input and output tax
Registration requirements and issue of VAT invoices
Returns/payment of VAT and record keeping.
Inheritance Tax
Business property relief
Money laundering and financial services
Money laundering
Purpose and scope of anti-money laundering legislation including the international context
Circumstances encountered in the course of practice where suspicion of money laundering should be reported in accordance with the legislation
The appropriate person or body to whom suspicions should be reported, and the appropriate time for such reports to be made and the appropriate procedure to be followed
Direct involvement and non-direct involvement offences, and defences to those offences under Proceeds of Crime Act 2002
Due diligence requirements
Financial services
The financial services regulatory framework including authorisation, and how it applies to solicitors’ firms
Recognition of relevant financial services issues, including the identification of specified investments, specified activities and relevant exemptions
Application of the financial services and Markets Act 2000 and related secondary legislation to the work of a solicitor
Appropriate sources of information on financial services.
Ethics and professional conduct
Candidates are required to demonstrate their ability to act honestly and with integrity, and in accordance with the SRA Standards and Regulations, as follows:
The purpose, scope and content of the SRA principles
The above mentioned subjects will be tested through a series of assessments. The candidates have to sit for the following assessments to showcase their legal skills. The legal skills include:
Client interview, attendance note or legal analysis
Advocacy
Case and Matter Analysis
Legal research
Legal writing
Legal drafting
Negotiation (It is not officially mentioned in the assessment skills, however, negotiation skills are tested in each of the assessments.)
These assessments are carefully designed to test the candidates and their legal skills and see if they are fit to carry out their duties as solicitors or not.
This exam is divided into two kinds of assessments-
Oral assessment
Written assessment.
Oral assessment
In the oral assessment, the candidate is tested on the basis of these skills-
Advocacy
In this test, each of the candidates are given a case study based on which they have to conduct a courtroom advocacy before an evaluator.
They have to study a case which will be given to them via email
Prepare their statements, and present their case before a judge in any of the courts as directed.
The judge for the case will be played by a solicitor only.
The candidates will also be asked various questions about the law during the advocacy.
Indian students can understand it as conducting a moot court. The judge will test the ability of each candidate to apply the relevant law and their skills to present their arguments.
Preparation time for Advocacy
The candidates are given 45 minutes to prepare their case before the actual presentation.
Time for making the oral submission
The candidates are given 15 minutes to present their submissions before the judge in a courtroom. It must be remembered that the judge is played by a solicitor, who will evaluate the submission.
Client interviewing and completion of attendance note/ Legal Analysis
The second test in the oral assessment is client interviewing and the completion of attendance note/ legal analysis. For this test, an email will be sent to the candidate stating that a client has to discuss a legal matter with the solicitor. It may be a specific legal issue which the candidate must discuss with the client to help him. The candidates may or may not be provided with documents for clarification in the email.
The candidate must interview the client, who has a legal issue and is in a vulnerable situation at the time of the interview
The candidate has to address the client’s issue and give some advice to solve it
The candidate also has to win the client’s trust so that the client chooses the said candidate for further advice and help with the issue.
The role of the client is played by an evaluator.
Please note: In client interviews, the candidates are judged only on the basis of their skills to conduct the interview well, their application of the law is not tested.
After the completion of the interview, the candidates have to write an attendance note or legal analysis of the interview. It must be written by hand.
The analysis of the legal issue of the client has to be done
Note down the advice given by the candidate to the client
Mention further steps that must be taken to help the client in the long run
Mention any strategies of negotiation if applicable in the situation
If any specific legal issue had been mentioned, all those issues must be addressed in the note
Please note: While evaluating the attendance note/legal analysis, the evaluator will judge the candidate on the basis of both the skill of the candidate and the appropriate application of the law.
Preparation time for client interview
The candidates will be given the required information for the interview via email. Each candidate will have 10 minutes to read through the email and all the documents provided to conduct the interview.
Time for client interview
Each of the candidates is provided 25 minutes to conduct the interview with the client. The role of the client is played by an assessor, who will be assessing the candidate based on the interview and their skills to conduct it.
Time for writing the attendance note
Each candidate is provided 25 minutes after the completion of the interview conducted by them to write the attendance note or the legal analysis. It will be evaluated by the assessors.
Points of assessment of Attendance Note/Legal Analysis For SQE2
In order to score well in the attendance note/ legal analysis assessment, the candidates must be mindful of the following points-
Recording important information of the case in the note
Correctly identifying and writing the next steps that must be taken
Providing advice to clients to help them achieve what they want does not have to be limited to legal perspective only
Applying the correct laws to the specific legal issue of the client
Applying the law comprehensively as well
To identify any ethical issues involved in the case or any professional conduct issues and apply your judgement to solve them.
Writing Assessment
After the oral assessment, the candidates have to sit for the writing assessment to successfully qualify the SQE2. The writing assessment is computer based. The components of the writing assessment are-
Case and Matter Analysis
The case and matter analysis is computer based. Here, the candidates are provided a case study with all the important documents. They have to read the case and the documents and write a report to a partner. The report must include the analysis of the case and the matter involved, along with some advice focusing on the issue of the client. It is always advisable to also include strategies for negotiation in your advice.
Time for Case and Matter Analysis
Each candidate is given 60 minutes to complete the case and matter analysis, within which the candidate has to prepare the analysis. They must be able to adequately demonstrate their ability to write a good report.
Points of assessment of case and matter analysis for SQE 2
To write a good case and matter analysis, the candidates must take notes of the following points-
Read the case carefully and find out the relevant facts of the case
Provide good and effective legal advice to the client regarding the issue which shows that you adequately understand the problem and have the capability to solve it
Write the analysis in clear, precise, concise and acceptable language that is easily understandable
Apply the relevant laws to the legal issue in hand
Apply the law in a comprehensive manner, find out if there are any ethical or professional issues related to the case and use your best judgement to solve them.
Legal Research
Another component of the writing assessment of SQE2 involves legal research. This is also computer based. An email is sent to the candidates by a partner with details about the issue or many issues of a client. The candidate has to research the issue and write a note to the partner explaining their understanding of the case, their legal reasoning for the case and what sources they have relied on for their research.
This is done to test the ability of the candidate to conduct good research through various sources and write a good report for the partner to communicate with the client. The subject of the research will be within the practice areas mentioned by the SRA. The candidates will also be provided the sources to conduct their research, these sources may be both primary as well as secondary sources.
Time for conducting legal research
The candidates will be given a total of 60 minutes each for conducting the research and writing a detailed report to the partner. The partner who will be the evaluator will then evaluate the report.
Points of assessment of legal research for SQE 2
While conducting legal research for the purpose of SQE2, the candidates have to follow the following important points for good assessment-
The candidates must find good and relevant sources for the purpose of the research
Write a good report which focuses on the client’s problem and adequately deals with it
The report must be written in clear, concise, precise and acceptable language
The laws must be applied appropriately to the issue in hand
Apply the laws comprehensively to the client’s issue and identify any ethical or professional issues related to the matter, and solve them wisely.
Legal Writing
The next component of the writing assessment under SQE2 is legal writing. As the name suggests, this assessment is based on writing legal opinions. This is computer based. In legal writing, the candidates have to write a letter or an email as a solicitor. The letter must discuss the legal issue of the client and correctly address it by applying the relevant laws. It can also be in the form of a negotiation to solve the issue. This letter will be received and read by the partner, the client, any third party, or the opposite team involved in litigation with your client.
The candidates will be provided the details of the issue of the client via email by a partner and also what needs to be done by the candidate acting as a solicitor. This is done to test the ability of the candidate to accurately and comprehensively write a letter as a solicitor dealing with the issues of the client.
Time given for legal writing
Each candidate is given 30 minutes to read the email provided by the partner and write the letter or email as directed on the issues of the client. Within 30 minutes, the candidate must be able to adequately showcase his reading and writing skills.
Points of assessment of legal writing in SQE2
The candidates must follow these points for good assessment in legal writing-
Read the issue of the client carefully
Identify the relevant facts and address them in your writing
The letter or email must be well-structured and logical
The advice written must be focused on the issue of the client appropriately and should not be vague
The language of the writing must be clear, concise, precise and acceptable to the clients and all those who will read it
The candidate must apply the law correctly to the issue in hand
The application of the law must be comprehensive as well, any ethical or professional issues must be identified and resolved using good judgement by the candidate
The candidate must think and act like a solicitor only.
Legal drafting
The next assessment is legal writing, which is also computer based. In this part of the exam, the candidate is asked to draft a legal document or any part of the legal document.
The candidates may be asked to either draft by looking at former sample precedent documents or make changes to an already existing legal document, or it may happen that the candidate might have to draft a new legal document on their own. The ability to adequately draft a legal document is tested.
Time given for legal drafting in SQE2
Each candidate is provided 45 minutes to complete the legal drafting. Within this time, the candidates have to draft a well written document or any part of it. No extra time is provided.
Points of assessment of legal drafting under SQE2
The legal drafting of the candidate is assessed on the following points, which must be adequately dealt to score good-
The drafting must be done using clear, concise, precise and acceptable language
The structure of the document must be good and logical
Accuracy of the legal points mentioned in the drafting
The document must be legally comprehensive, and all ethical and professional issues must be identified and resolved with honesty and integrity.
Marking scheme for Solicitors Qualifying Exam 2 (SQE 2)
The oral and written assessments under SQE2 are marked collectively and not separately. All six skills required for the SQE2 are marked according to this scale. They are marked on a scale of A to F.
Scale
Evaluation
A
Superior Performance: The candidate has performed well above the required level of competency.
B
Clearly Satisfactory Performance: The candidate has clearly met the required level of competency to qualify
C
Marginal Pass: On balance, the candidate has just passed the required level of competency
D
Marginal Fail: On balance, the candidate has just failed to pass the required level of competency
E
Clearly Unsatisfactory: The candidate clearly does not meet the required level of competency to qualify the exam
F
Poor Performance: The candidate is very below the required level of competency.
These grades are then converted into marks, where A = 5 marks and F =0 marks.
Please note: The candidates are marked separately on two factors-
Skills, and
Application of Law in each assessment.
Later, these marks are given equal weightage in the final assessment. This means the final assessment for each criterion would include = Marks obtained in skills + Marks obtained in Application of law.
Steps to book the Solicitors Qualifying Exam 2 (SQE 2) assessment
Candidates willing to sit for the SQE 2 must book the assessments when the booking window is open. Candidates can follow these steps to book their assessment:
Complete the monitoring and maximising diversity survey on the SRA website, it is compulsory
If you have applied for any exemption, then you may confirm your exemption by entering the exemption number
If you need any reasonable adjustments in case of disability, request for the adjustment
Fill in the required boxes for assessment during the booking window
Choose your location for the assessment.
It is always advised to book your assessments as early as possible because there may be instances when your preferred test centres may already have been chosen by other candidates. It is allotted on a first come-first-served basis.
Timeline of Solicitors Qualifying Exam 2 (SQE 2)
The SQE 2 is conducted within a well distributed timeline for each of the assessments. SQE 2 is completed within 5 days. The oral assessment and written assessment are conducted separately, and adequate time is provided for each of them. A total of 16 stations of assessment are conducted, of which 4 are oral and 12 are written. For further clarity, refer to their individual timeline below-
Timeline for Oral Assessment
The oral assessment is completed within a time frame of two days. A total of four oral legal skill assessments are done, on each day, the candidate can choose the order of their assessment.
Day 1
Day 2
Advocacy (Dispute Resolution)
Advocacy (Criminal Litigation)
Interview and attendance note/legal analysis (Property Practice)
Interview and attendance note/legal analysis (Wills and Intestacy, Probate Administration and Practice)
Please Note: This order of distribution of assessments is not compulsory, the candidate can choose to give the interview first and then proceed to advocacy, or vice versa.
Timeline for Writing Assessment
The writing assessment is completed over a period of three days. The candidates have to take 12 writing assessments within this time frame to qualify for the exam.
Day 1
Day 2
Day 3
Case and Matter Analysis
Case and Matter Analysis
Case and Matter Analysis
Legal Drafting
Legal Drafting
Legal Drafting
Legal Research
Legal Research
Legal Research
Legal Writing
Legal Writing
Legal Writing
Note- Any two of these exercises can be on dispute resolution and any two on criminal litigation.
Note- Any two of these exercises can be on dispute resolution and any two on criminal litigation.
Note- Day 3 assessments are done in the context of Business Organisation, Rules and Procedures.
Please Note: This order of distribution of assessments of each day is not binding, the candidates are free to shuffle the order of assessments. So, a candidate may first choose to test legal writing or legal research followed by others, or vice versa as well.
Exam centre for Solicitors Qualifying Exam 2 (SQE 2)
The SQE 2 exam is conducted in Pearson VUE test centres in different locations all over the world. Generally, the list of locations remains the same; however, it may be affected by the unavailability of the location or other factors, in which case candidates will have to travel to another nearby test centre to take their exam.
Exam centres for Oral Assessment of SQE 2
The oral assessment of SQE 2 is held only in these particular test locations-
Manchester in the Marriott Manchester Piccadilly Hotel
London in the Spring House, Holloway Road, London
Cardiff in the Mercure Cardiff Holland House Hotel and Spa
Birmingham in the Leonardo Royal Hotel Birmingham, B1 2HQ.
Candidates may choose their location, but it will be subject to availability.
Exam centre for Writing Assessment of SQE 2
The writing assessment of SQE 2 is conducted in the United Kingdom as well as in other countries around the world. For Indian students, the written assessment is also conducted in various Pearson VUE test centres in India. They are-
Ahmedabad
Allahabad
Bangalore
Bhopal
Calcutta
Chandigarh
Chennai
Cochin
Gurugram
Hyderabad
Jaipur
Mumbai
New Delhi
Patna
Pune
Ranchi
Indian students can choose any of these centres for their writing assessment. There are various other test centres in different countries, the information for which can be found here.
Selection process for Solicitors Qualifying Exam 2 (SQE 2)
To successfully qualify SQE 2, the candidates have to obtain the necessary overall pass mark. One cut off or pass mark will be announced after the exam on the basis of the number of candidates and the level of exam, and the collective marks obtained in the Oral and the Writing assessments will be calculated to determine the result. So, there is only one pass mark in SQE 2, unlike in SQE 1, where the candidates have to individually qualify in Functioning Legal Knowledge 1 (FLK 1) and Functioning Legal Knowledge 2 (FLK2).
Number of attempts for Solicitors Qualifying Exam 2 (SQE 2)
The SRA has prescribed a limited number of attempts for each candidate to pass the SQE 2 exam. Each candidate will have three attempts to pass SQE 2.
Please note: These three attempts have to be taken within 6 years of the first attempt. So, if a candidate gives their first attempt in October 2023, they have two more attempts left which need to be completed within the next 6 years, i.e., within 2029.
Result of Solicitors Qualifying Exam 2 (SQE 2)
The result for SQE 2 is published after the completion of the 4 oral assessments and 12 writing assessments. The result is generally published 14 to 18 weeks after the completion of all the assessments. A date for the result will also be published after the exam.
How to check your result of SQE 2
The candidates will receive an email stating that their results have been published. The candidates have to visit their SQE Account and view the result which is contained in a pdf.
Open the email sent from SRA
Click on the link in the email
You will be directed to your result page
Please note: The result is not emailed to the candidate, only a notification that the result has been published is sent via email.
The result page will include the following details-
Date of the SQE 2 oral assessment
Date of the SQE 2 writing assessment
Date of the release of result
Number of attempts taken by the candidate
Pass Mark
Your Mark
Job profile after qualifying Solicitors Qualifying Exam 2 (SQE 2)
Practising law is not restricted to one territory, and it is no longer country specific. Lawyers who study law in one jurisdiction can practise law in other international jurisdictions as well, provided they meet the basic minimum requirements.
The Solicitors Qualifying Exam has made this process of international practice by law students and lawyers in the United Kingdom and other international countries like India easier. Lawyers are talented and ambitious professionals who wish to expand their clientele and working area as vastly as possible. So, all the graduates, whether they have studied law or not, can sit for the Solicitors Qualifying Exam to qualify as a solicitor in England and Wales.
The job profile as a solicitor would include-
The ability to work as a solicitor in London.
Join a law firm in England or Wales and continue your practice there.
Work as an in-house counsel in any of the organisations
Join or open a law firm in India and provide legal services.
Provide legal advice to clients on English laws.
Become a professor of law at any University.
When a candidate qualifies as a solicitor in England and Wales, it opens up their network to a large client base, big international companies and the ability to deal with special cases fit for a solicitor. It is also a matter of great honour to be qualified as a solicitor, and it will add merit to your legal career with the possibility of higher earnings.
When to start preparing for Solicitors Qualifying Exam 2 (SQE 2)
The path towards becoming a solicitor in England and Wales is a long one and candidates must fulfil various eligibility criteria. The preparation for SQE 2 must begin along with SQE 1.
A candidate must be aware of the syllabus for SQE 2 and accordingly start preparing. It is advised by many experts that each candidate should at least dedicate 12 months or 1 year for their preparation for SQE which includes both SQE 1 and SQE 2. The time taken can be subjective depending on the ability of each candidate and whether or not they are taking any special courses.
Top tips and tricks for Solicitors Qualifying Exam 2 (SQE 2)
Here are some tips and tricks to help you qualify the SQE 2-
Go through the syllabus
The syllabus is very specific about the parts that will be tested. Kindly remember that the test is designed to make it suitable and at par with the level of a Day one solicitor only. Candidates are not expected to be experts in all fields of law.
Go through the sample papers
They are provided by the SRA on their website here. It will provide clarity regarding the pattern of the questions and will provide familiarity to those appearing for the exam. They can also act as great mocks to solve and test yourself.
Revise your legal knowledge of SQE 2
Although it is stated that SQE 2 mainly focuses on practical legal skills of the candidates, most of the evaluation in SQE 2 is done on functioning legal knowledge like SQE 1. So, keep your notes of SQE 1 handy and go through them on a daily basis.
Practice writing
Out of the 16 stations of evaluation, 12 are written and 4 are oral. It may not be possible to write well if you are writing analytical and practical answers for the first time during the exam. Keep on practising your legal drafting skills and familiarising yourself with various kinds of writing.
Have Qualifying Work Experience
It is always better to have some qualifying work experience before sitting for the SQE 2. This experience will help you in dealing with the client interviewing and giving focused advice to them in the assessment, and it may also help you in getting exemptions if you are a qualified lawyer.
Practise speaking
For the advocacy assessment, it is helpful if the candidates practice speaking and record themselves to see how they are speaking and what needs to be improved. This will also give you an idea of how you can complete the assessment within the stipulated time.
Be welcoming with the client in the interview
For the client interview, it is always better to prepare a general introduction of yourself, and be welcoming to the client. The client should feel that you are willing to listen to his issues and also provide legally accurate solutions. This interview is judged only on the basis of your skills of conducting it, so speak clearly, confidently and precisely. The client must feel confident that you are capable of solving their issue.
Act professional
During the interview and the advocacy, treat your clients and your judges with respect and courtesy. Be polite and try to maintain a good relationship with the client.
Pay attention to details provided during evaluation
For assessments relating to drafting, writing and research, pay close attention to all the important details provided to you. Be very clear about the laws applicable, and always structure your writing in a logical manner. Your advice and notes must be understandable and helpful.
Take mock tests
Mocks prepare you for the main exam; treat them seriously and try to perform better in every mock test. They will also help you identify your weak links and brush up on those fields. It will also be helpful to track your timing.
Work hard
Commit yourselfto the exam. It is a rigorous exam, but with the right preparation, one can easily clear it. Follow your routine and be consistent. You decide your limits and always think that the exam is just around the corner.
Re-sitting the Solicitors Qualifying Exam 2 (SQE 2)
While we all hope for success in everything we do, it might happen that the results do not always go in our favour. Similarly, candidates may not be able to clear SQE 2 in their very first attempt due to various reasons. Do not be disheartened, as you will still have two more attempts left at it.
If you do not qualify the first time, you will have to book another assessment in the upcoming batch. For example, if you failed to qualify in the SQE 2 conducted in April 2023, you have the choice of sitting on the SQE 2 that will be conducted in October 2023.
The candidates will have to prebook for the exam and pay the fee.
Frequently Asked Questions (FAQs) on Solicitors Qualifying Exam 2 (SQE 2)
Why was SQE introduced?
The Solicitors Qualifying Examination was introduced in September 2021. Before this, candidates had to get a degree or diploma in law, and then take up the Legal Practice Course (LPC), after which they would have to complete a two-year training contract. This process was longer and costlier.
After the introduction of SQE, the process has become simpler and all candidates whether they are from the UK or other countries of the World have to sit for this exam to qualify as a solicitor.
How many sittings of SQE 2 are held every year?
Till 2023, SQE 2 is held in 3 sittings every year, which is April, July and October. However, the SRA has announced its plan for the year 2024.
From 2024, SQE 2 will be held in a regular pattern of four sittings each year. They will be in January, April, July and October.
Can I become a solicitor without a law degree?
Yes, it is possible for non-law graduates to become solicitors of England and Wales. In fact, non-law graduates also have to follow the same procedure and write the same exam as law graduates. This ensures that all the candidates are tested in a unified manner.
Can I resit the exam if I do not qualify once?
Yes, candidates can re-sit the SQE 2 if they fail to qualify on the first chance. They have a total of three attempts.
When are the SQE 2 re-sits conducted?
The SQE 2 resits are conducted at least six months apart.
Are there any adjustments for Persons with Disabilities appearing for SQE 2?
Yes, reasonable adjustments are provided to candidates who are persons with disabilities. The candidates must mention that they require a reasonable adjustment while booking the assessment.
Candidates may be provided following adjustments on a case by case basis-
Additional time and breaks
Separate room to autistic or deaf candidates
The facility to bring and take medicine
Use Job Access With Speech (JAWS)
Have a reader or a recorder
Have a separate room
Use a computer or laptop for written assessment, etc.
A detailed list of reasonable adjustments can be found here.
Please note: Proper and necessary evidence must be shown by the candidates claiming reasonable adjustments.
Frequently Asked Questions on eligibility for Solicitors Qualifying Exam 2 (SQE 2)
Is it necessary to have a law degree to become a solicitor of England and Wales?
No, it is not necessary to have a law degree in order to be a solicitor. Candidates having non- law degrees can also apply for the SQE 2. However, it is important that the candidates must have a level 6 degree or more from the UK or such equivalent degree from other nations.
What is a level 6 degree requirement?
A level 6 degree includes the following-
Degree apprenticeship
Bachelor’s degree with honours such as BA Hons or BSc Hons.
Graduate certificate
Graduate diploma
Ordinary degree without honours as well
So, Indian candidates who possess these degrees in any subject can apply for the SQE 2.
What are the character and suitability requirements as per the eligibility criteria?
The Solicitors Regulation Authority determines the character and suitability of the candidates who want to appear for the SQE exam. Anything that can be a hindrance to carrying out the duties of a solicitor is evaluated. The SRA will look into various information to determine that all requirements are fulfilled, these can be pointed out as-
Any criminal history or conduct of the candidate
Any kind of behaviour which reflects poorly on the integrity and independence of the candidate, such as dishonesty, violence, discrimination against others, harassment, corruption etc.
Any kind of assessment offence like copying someone else’s work and presenting it as your own, cheating, etc
Any kind of financial conduct that reflects your poor financial accountability, such as not paying debts, a bankruptcy, failure to pay your mortgages, or failure to run your financial account smoothly.
Any kind of disciplinary action has been taken against you by any disciplinary body.
Why is qualified work experience important for the SQE?
It is important for candidates to have work experience so that they can effectively carry out their functions as a solicitor with the help of their prior experience. Candidates can learn a lot about law and its working during their experience.
Also, candidates who belong to specific jurisdictions, like India and who have two years of work experience as a lawyer are exempted from having to write the SQE 2. So, it is always beneficial to have work experience.
What is considered as Qualifying Work Experience for SQE?
Not all kinds of work experiences in any random field can be counted as work experience for the purpose of SQE. The candidates must have worked full time in a wide range of organisations which provide legal services. This work experience can be acquired through up to four organisations.
It may include-
Work done through placement during a law degree
Working in a law clinic or firm
Working at a voluntary or charitable organisation or law centre
Working as a paralegal
Working on a training contract.
Please note: The work can either be paid or volunteer work as well.
Frequently Asked Questions on exemptions from Solicitors Qualifying Exam 2 (SQE 2)
Which jurisdictions are entitled to agreed exemption from SQE 2?
Qualified lawyers from these jurisdictions, do not have to sit for SQE 2:
Austria,
Belgium
Brazil
Bulgaria
Croatia
Czech Republic
Denmark, Faroe Islands and Greenland
Finland
Germany
Hongkong
Hungary
Indonesia
Jersey
Kazakhstan
Luxembourg
Montenegro
Netherlands
Norway
Poland
Romania
Scotland
Slovakia
Slovenia
Sweden
Ukraine
Which jurisdictions are entitled to individual exemptions from SQE 2?
Candidates belonging to these 60 jurisdictions can apply for individual exemptions. Although these jurisdictions do not meet all the required standards of SQE 2, a candidate can get an exemption if they have at least two years of legal work experience.
These jurisdictions are-
Argentina
Australia
Bangladesh
Belarus
Cameroon
Canada (British Columbia)
Canada (Ontario)
Canada (Quebec)
Canada (Saskatchewan)
Chile
Columbia
Cyprus
Dominican Republic
Egypt
Fiji
France
Georgia
Ghana
Greece
Hongkong
Hungary
India (Assam)
India (Delhi)
India (Goa)
India (West Bengal)
Iran
Israel
Italy
Japan
Jersey
Jordan
Kenya
Korea
Lebanon
Macau SAR, China
Malaysia
Malta
Mexico
Moldova
New Zealand
Nigeria
Pakistan
Peru
Philippines
Portugal
Russia
Rwanda
Saudi Arabia
Singapore
South africa
Spain
Sri Lanka
Switzerland (Geneva)
The People’s Republic of China
Trinidad and Tobago
Turkey
Uruguay
USA (all states)
Venezuela
Zimbabwe
What is the fee for the exemption application?
Candidates applying for exemption from SQE 2 have to submit the application along with a fee of £ 265.
Do Indian lawyers have exemption from SQE 2?
Yes, Indian lawyers are entitled to exemption from writing the SQE 2, provided they fulfil the following essential criteria-
Indian Lawyers must be enrolled with the Bar Council of India
Have 2 years or more full time legal work experience
Having a certificate of good standing from the Bar Council of the State, exemption for lawyers enrolled with the Bar Council of Assam, Delhi, Goa and West Bengal has been specially mentioned
A reference letter, from a senior stating your work experience, the time period of work, the type of work and the remuneration.
Will I be entitled to an exemption if I am not enrolled in the Bar Council of Assam, Delhi, Goa or West Bengal?
Lawyers who are enrolled with the Bar Council of Assam, Delhi, Goa and West Bengal are entitled to exemption from SQE 2 if they have a qualifying work experience of 2 years or more. If you are not enrolled in any of these states, do not worry. If you have 2 years of work experience then you can apply for a fresh exemption.
In addition to the criteria mentioned for other lawyers, they also have to provide evidence of work experience in any one of the following areas:
Dispute Resolution
Criminal litigation Practice, which includes representing clients at police stations
Property practice
Wills and probate
Business laws
Will I get an exemption if I do not have work experience?
One of the conditions for obtaining exemption from SQE 2 is that the candidate must already possess the necessary skills and knowledge that is tested by SQE 2. The work experience ensures that the candidate is eligible to practise as a solicitor. Hence, it is important that one have at least 2 years of qualifying work experience in the subject areas mentioned in the syllabus.
In case of candidates who do not have the work experience, the SRA considers it on a case by case basis. You can always acquire work experience after qualifying for the exam and before enrolling as a solicitor.
How long does it take for the exemption application to be considered?
After the submission of the exemption application, the decision is taken by the SRA usually within 180 days or 6 months time. In case of agreed exemption, the decision process is faster and in case of individual exemption, it is a little longer since it has to be decided on a case by case basis.
Frequently Asked Questions on Oral Skill Assessments
Which skills are tested in the Oral Assessment?
The oral skills include-
Advocacy in dispute resolution
Advocacy in criminal litigation
Interview and attendance note or legal analysis on Property Practice
Interview and attendance note or legal analysis on wills and intestacy, probate administration and practice.
Who is the evaluator in Oral Assessments?
The advocacy part of the assessment is evaluated by a solicitor of England and Wales on the basis of skills and application of law.
The client interview is evaluated by an assessor acting as the client on the basis of skills to interview only and not on the basis of application of law.
The attendance note/ legal analysis will be judged by the client on the basis of both skills and application of law.
Frequently Asked Questions on Written Skill Assessments
What are the components of writing assessment of SQE 2?
The writing assessment has the following components-
Case and matter analysis
Legal research
Legal writing
Legal drafting
When is the date for the exam announced?
The specific dates for each exam are published 12 months prior to the exam or even sooner if it is possible. The next SQE 2 is to be held in October 2023.
SQE 2 Oral assessment will commence from 23rd October 2023
SQE 2 Written assessment will commence from 30th October 2023.
Frequently Asked Questions on the exam centre of Solicitors Qualifying Exam 2 (SQE 2)
Are the oral assessments only held in the UK?
Yes, the oral assessments are only held in the United Kingdom in specific locations currently, however, it is expected that more locations for oral assessments will be available in the near future.
Why are there only specific locations available for taking the writing assessment of SQE2?
For the purpose of the writing assessment too, only specific locations around the world are chosen because the different time zones may make it impractical for the assessment to be carried on at a similar time as other time zones. Thus, to protect the security of the assessment some locations are not used as test centres.
Will I be allotted the test centre that I choose in my application?
Mostly candidates are allotted the same test centre that they choose in their application. However, candidates must remember to register as soon as possible because the seats for the centre are allotted on a first come-first serve basis. So to ensure that you get your desired and convenient centre, kindly register early.
Frequently Asked Questions on the cost of Solicitors Qualifying Exam 2 (SQE 2)
When will the revised fee for SQE 2 be applicable?
The revised fee of SQE will be applicable in September 2023. So any bookings for the exam which will be conducted after September 2023 will be as per the revised notified fee only, which is £2766. The old fee structure will no longer be applicable.
What payment methods are available for SQE 2?
Candidates paying their fee for the SQE 2 can use either a debit or a credit card for payment. There are no payment plans available and the fees have to be paid in full. The major cards which are accepted are- Visa, Mastercard, Visa Debit, Maestro and American Express. The payment takes place via WorldPay.
Candidates can also pay the fee through the prepaid voucher purchased by their training provider or employer.
Frequently Asked Questions on the result of Solicitors Qualifying Exam 2 (SQE 2)
Is the result of the oral and written assessments published together?
Yes, unlike SQE 1 where the result is published separately for FLK 1 and FLK 2, here in SQE 2 the result is published together, Equal weightage is given to both oral and written assessment for the purpose of final marking.
How long does it take for the result to be published?
The result for SQE 2 is generally published within 14 to 18 weeks after the assessment is completed. For the cycle of October 2023, the result will be published on 20th February 2024.
What is the passing mark for SQE 2?
There is no one passing mark announced by the SRA for qualifying SQE 2. Each assessment has its own passing mark which is decided by the SRA after consideration of the number of candidates and the examination.
Frequently Asked Questions after qualifying Solicitors Qualifying Exam 2 (SQE 2)
What happens after I qualify the SQE 2?
After qualifying the SQE 2, the candidate can enrol and take admission as a solicitor of England and Wales. But before taking admission as a solicitor, the candidate must complete the screening process. This screening process helps the authorities to determine the character and suitability of the candidate. The candidates must apply for the screening process through their mySRA account. After successful screening, candidates can apply for admission through their SRA account.
How is the screening carried out?
The screening process is carried on to check the following information about the candidate-
Identity of the candidate
Financial information including bankruptcy, insolvency and county court judgements
A standard criminal records check.
The checks must be recent and should not be more than 6 months old.
How will I be informed of my admission to the role of the solicitors?
After your application for admission is granted, you will receive an email asking you to pick your date for admission. On the date of the admission, the candidate will be issued an Admission Certificate, which can be downloaded from the SRA website on mySRA account.
Following which, there will be an admission ceremony at the Law Society Hall in Chancery Lane, London. It is not compulsory to attend the admission ceremony.
Words of motivation
Becoming a solicitor is a matter of great pride and it adds feathers to your accomplishments as a lawyer. It opens up new doors in new jurisdictions for those who can qualify the exam. Whether you are a law graduate or not, hard work and consistency will be key in qualifying this exam and becoming a solicitor. Do not give up and continue your preparation.
All the very best for the exam!
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 Rupsa Chattopadhyay. This article discusses important details related to Solicitors Qualifying Examination 1 (SQE 1), the first assessment step of the Solicitors Qualifying Examination. It also provides tips and tricks to crack the Solicitors Qualifying Examination 1 (SQE 1) examination. This article also covers important information about the Solicitor Qualifying Examination (SQE 1) as a whole and important details concerning the examination.
The Solicitors Qualifying Examination is an examination that is attempted by those who wish to qualify as solicitors in England or Wales. All aspiring solicitors, whether United Kingdom University law graduates, non-law graduates or graduates from other nations, can appear for this examination. This examination is for all aspiring solicitors who wish to work in the jurisdictions of England and Wales, irrespective of their qualifications, background, or designation.
Solicitor Qualifying Examination 1 (SQE 1) is the first assessment step of the Solicitors Qualifying Examination to become a solicitor in the jurisdictions of England and Wales. It tests the competence that a newly qualified solicitor is expected to have in the jurisdictions of England and Wales.
In this article, important details will be provided on SQE 1, the first step to becoming a solicitor in the jurisdictions of England and Wales. So without further ado, let’s get started!
Overview of the Solicitors Qualifying Examination (SQE)
The SQE is a qualifying examination to practise in the jurisdictions of England and Wales. Earlier, to become a solicitor in these jurisdictions, one had to sit for the Graduate Diploma in Law (GDL). In September 2021, the Solicitors Regulation Authority (SRA) of the United Kingdom made it mandatory to crack this examination to become a solicitor in these jurisdictions. Those candidates interested in practising in the jurisdictions of England and Wales have to clear the SQE.
Please note : Those who started their law degree or graduated before September 2021 have the option of opting for the traditional route of practise.
The change has been introduced to maintain the uniformity of standards for all solicitors in the jurisdictions of England and Wales. Also, the SQE is designed to be cheaper and more accessible than the former path of opting for the Legal Practice Course (LPC).
Legal Practice Course (LPC) vs. Solicitors Qualifying Examination (SQE)
The Legal Practice Course (LPC) is the last step to becoming a solicitor. The Legal Practice Course (LPC) route involves both active participation and theoretical knowledge. Qualifying for the Legal Practice Course (LPC) means that one will be able to adapt to the work involved, as expected from a solicitor. One can study the LPC after the successful completion of a qualifying law degree or other recognised qualifications.
The SQE path offers more flexibility. The Legal Practice Course (LPC) course takes one or two years and also involves a training contract of two years. The SQE takes eight months (if one has work experience) to six years if one lacks such experience. The SQE is slowly replacing the Legal Practice Course (LPC).
The SQE is the new process of becoming a solicitor conducted by the Solicitors Regulation Authority (SRA).
Many law students can still opt for the path of the Legal Practice Course (LPC), though the SQE is a viable option. If one has started a Qualifying Law Degree (QLD), Common Professional Examination (CPE), Graduate Diploma in Law (GDL), MA Law, or training law, one can qualify as a solicitor under the Legal Practice Course (LPC) path until December 31, 2032.
A candidate can continue the Legal Practice Course (LPC) route if they have started, finished, accepted an offer, or paid a non-refundable deposit for any of the following by August 31, 2021:
Graduate Diploma in Law (GDL) or the Common Professional Examination (CPE),
Legal Practice Course (LPC),
MA Law or the Masters of Arts in Law,
A period of training ( also called training contract).
The Masters of Arts in Law is a postgraduate course for graduate non-law students who want a general level qualification. This course makes graduates from non-legal backgrounds eligible for the SQE. This degree helps to develop basic legal skills as well as a strong development of areas of legal knowledge and legal reasoning, as well as a broad range of careers. A training contract is mandatory practical training for law graduates before they qualify as solicitors in England and Wales. The average training period is two years.
The following must be kept in mind when opting for the alternate paths to the SQE :
For a Qualifying Law Degree (QLD) and Exempting Law Degree (ELD), one must have started, completed, accepted an offer, or paid a non-refundable deposit by September 21, 2021.
For the Qualifying Law Degree (QLD), Exempting Law Degree (ELD) and Common Professional Examination (CPE), the course must have begun by December 21, 2021.
If a candidate has started a full time Graduate Diploma in Law (GDL) or MA Law in September 2021, one usually becomes eligible to start the Legal Practice Course (LPC) in September 2021 after successfully completing the course.
Candidates going through the Legal Practice Course (LPC) path who have not yet acquired a training contract can mix the SQE route’s Qualifying Work Experience (QWE) and Solicitors Qualifying Examination 2 (SQE 2) assessment. After one completes this, one can be admitted as a solicitor under the Legal Practice Course (LPC) path.
If one has started their law degree before 31 August 2021, they can opt for either the Legal Practice Course (LPC) or the SQE. If they started their law course after the said date, they need to opt for the SQE.
Overview of Solicitors Qualifying Examination 1 (SQE 1)
The SQE 1 is the first step to clearing the SQE. The examination is generally conducted in the months of January and July, though the specific dates are revealed before the examination. There are various test centres, both in India and internationally. This is discussed in greater detail later.
To appear for the SQE 1, one has to be a graduate or have an equivalent certification.
Closed book examination
SQE 1 is a closed book examination. One is not allowed to bring any notes or study material. Whatever one will require during the course of the examination will be provided to the candidate. Such items will have to be returned at the end of the examination.
Number of attempts
One is allowed three attempts, which have to be taken within a period of six months. One cannot apply for another attempt until the result of their first attempt is declared.
Purpose behind the Solicitors Qualifying Examination 1 (SQE 1)
Understanding the motive behind an examination will help us understand what the examiners look for. This knowledge will, in turn, help in preparing in the right direction and not learning things that are not necessary from the point of view of the SQE 1.
What is tested in Solicitors Qualifying Examination 1 (SQE 1)
It tests both practical and theoretical knowledge. Qualified lawyers may be exempted from some of the assessments conducted during the course of the examination. This has been discussed in detail later.
The SQE 1 is divided into:
Functioning Legal Knowledge Assessment 1, and
Functioning Legal Knowledge Assessment 2.
These two stages take place over a period of two days. Ethics and professional conduct are tested in both of these stages.
One needs to prepare for the SQE 1 keeping in mind what the examiner expects from the candidates. The candidates are expected to have the same level of knowledge and competence that a newly appointed solicitor is expected to have. If the candidates keep this in mind, this will facilitate more efficient preparation.
Objectives of questions framed in Solicitor Qualifying Examination 1 (SQE 1)
The objectives of the questions in SQE1 are as follows:
Test how the aspirant applies the fundamental legal rules and principles.
Assess whether the candidates can apply it at the level required by a newly qualified solicitor.
Aim to test the core areas that Functioning Legal Knowledge (FLK) covers.
FLK, or Functioning Legal Knowledge, is the depth of knowledge of English and Welsh law that candidates require to function as solicitors in those jurisdictions. The areas tested by Functioning Legal Knowledge (FLK) have been explained in detail in the previous section.
Testing of legal principles
The questions asked in these examinations test the application of legal principles that will be required to function as a newly appointed solicitor without reference to law books or notes. However, the detailed matter will not be tested, that a newly qualified solicitor of England and Wales will be expected to search the books.
Code of conduct
Candidates will be expected to know the law that would exist on the date of the examination, not any further developments. On the date of the examination, aspirants are expected to act with honesty and integrity, according to:
State of Solicitor Competence,
The Solicitors Regulatory Authority Principles,
Code of Conduct.
Pattern of Solicitors Qualifying Examination 1 (SQE 1)
According to the official source, there are 360 objective questions asked in the Solicitors Qualifying Examination 1 (SQE 1). This includes:
Functioning Legal Knowledge 1 (FLK 1)
There are 180 Multiple Choice Questions divided into two exams, each with 90 Multiple Choice Questions. Equal weightage is given to all the subjects in Functioning Legal Knowledge 1 (FLK 1) but relatively lesser weightage is given in Legal Services.
Functioning Legal Knowledge 2 (FLK 2)
In the Functioning Legal Knowledge too, there are 180 Multiple Choice Questions divided into two exams, each has 90 Multiple Choice Questions. In the case of Functioning Legal Knowledge 2 (FLK 2) , equal weightage is given to all the subjects.
On both days, there are two periods of 2 hours and 33 minutes with 90 multiple choice questions, with a 60 minute break.
This is a strenuous examination, and one must be prepared for it accordingly. Mocks and sample papers are to be solved in a similar environment and in similar time blocks. This will help them perform better in the actual examination.
Schedule of Solicitors Qualifying Examination 1 (SQE 1) in 2023-2024
The official website of SQE provides the following schedule for the SQE 1
Assessment
Dates
BookingOpens
Booking Closes
Assessment window – Day 1
Examinable law and practice cut-off date
Result Date
January 2024
FLK1: 15, 16, 17, 18, 19 January 2024FLK2:January 22, 23, 24, 25, 26 January 2024
October 4, 2023, at 10 am
November 15, 2023, at 5 pm
January 15, 2024
September 15, 2023
March 14, 2024
July 2024
FLK1 : July 15 and 16 FLK2: July 22 and 23, 2024
April 10, 2024
May 22, 2024
July 15, 2024
March 15, 2024
September 10, 2024
The SQE 1 has a pattern of being conducted in the months of January and July. The actual dates are revealed 12 months before the relevant assessment.
Why write the Solicitors Qualifying Examination (SQE)
The SQE is an examination that will enable us to practise in the jurisdictions of England and Wales. One can avail of the various benefits after clearing the SQE.
Distinction
When one clears this examination, the lawyer is distinguished from average lawyers. It becomes a symbol of distinction on an international scale. The examination is widely recognised and garners respect.
Facilitates career
The kind of training given in England and Wales is top-notch and will help facilitate their careers in other places as well.
Scope in home country
Qualification through this examination will add an additional feather to the cap for young lawyers. Even if one wishes to practise in India, this additional qualification will increase their credibility and help them attract clients.This will be particularly helpful for young lawyers who find it difficult to build their client base.
Comprehensive solution
Clients look for lawyers that can provide a comprehensive understanding of their clients’ needs and provide a one-stop solution to all their problems. Dual qualified lawyers have an advantage in terms of their qualifications and provide a more comprehensive solution to problems faced by their clients. Hence, they are often preferred.
Thus, this examination opens multiple avenues. They are discussed below:-
Career paths after clearing the Solicitors Qualifying Examination (SQE)
After clearing the SQE and getting admitted as a solicitor in England and Wales, one has various career options, like:
Work as in-house counsel for a company and cater to the legal needs of clients
In house counsel solicitors work in the legal department of a company. They need to be able to deal with various aspects of the law. Qualification in the SQE permits one to work in the legal department in the jurisdictions of England and Wales.
Practise privately
One can practise privately in the jurisdictions of England and Wales after clearing the SQE.
Work in law firms that cater to the legal requirements of numerous clients
One can work in law firms in England or Wales after clearing the SQE. In such a work, they will have to understand the legal problems their clients face and solve them with a clear understanding of the same.
Teach at a law school or university as a law professor
One can teach in a law school or university in England or Wales after they clear the SQE.
Some important points on the Solicitors Qualifying Examination (SQE)
Some important pointers are to be noted regarding the SQE:
A candidate has to take both sets of Functioning Legal Knowledge (FLK): Functioning Legal Knowledge 1, and Functioning Legal Knowledge 2 of the SQE 1 in a single setting. If one fails either Functioning Legal Knowledge 1 or 2, they will have to retake only that part.
SQE 1 has to be attempted before Solicitors Qualifying Examination 2 (SQE 2), unless one has been exempted from that.
One has an exemption from clearing the SQE if one is a “Qualified Lawyer”. Qualified lawyers have both the legal knowledge and skills required of solicitors. This is explained in greater detail later.
The SQE can be attempted thrice within a six year period.
The SQE is not an open book examination. Hence, a candidate is not allowed to bring any study material with them.
Eligibility criteria for the Solicitor Qualifying Examination (SQE)
A candidate aspiring to crack the SQE needs to have a graduate or equivalent degree, whether in law or some other field. The university or college from which such a degree or certification is received is immaterial. The official website provides that to become a solicitor through SQE 1, one has to fulfil the following criteria:
Hold a degree level qualification (not necessarily a law degree)
To appear for the SQE, one requires a degree level qualification. Such a qualification does not need to be a law degree.
Appear in both stages of the Solicitors Qualifying Examination, Solicitors Qualifying Examination 1 (SQE 1) and Solicitors Qualifying Examination 2 (SQE 2)
An aspirant of the SQE needs to clear both levels of the examination – SQE 1 and SQE 2. If one fails to qualify at any level, it will be considered a failed attempt. They can go for another attempt if they have not exhausted their maximum number of attempts, which is three.
Have two years of qualifying work experience (QWE)
To become a solicitorin England, one needs to have two years of qualifying work experience (QWE). It means that a candidate for the SQE needs to have real life work experience.
Satisfy the Solicitors Regulation Authority’s character and suitability requirements
One has to satisfy the character and suitability requirements provided by the Solicitor Regulation Authority (SRA) if one wishes to be a solicitor in the territories of England and Wales. Before one is considered qualified as a solicitor, they need to provide all matters related to the character and suitability requirements.
Character and suitability requirements for the Solicitor Qualifying Examination (SQE)
The Solicitors Regulation Authority (SRA) considers the character of the candidates to be extremely important to becoming solicitors. The said authority states clearly that a candidate who fails to meet such requirements will not be admitted as a solicitor. This is required for clearing the SQE.
When one is admitted as a solicitor or obtains a practising certificate, one has to disclose all matters relevant to character.
Criminal conduct, which includes a conviction in a court of law for a criminal offence;
Offences relating to assessment of education;
Behaviour which has a bearing on integrity and independence;
Conducts and events that are financial in nature;
Regulatory and disciplinary findings;
Health issues.
Such requirements are applicable for both SQE1 and SQE 2.
Age requirements for Solicitor Qualifying Examination (SQE)
There are no age requirements mentioned for appearing for the SQE. One merely needs to have the educational requirements and Qualifying Work Experience of two years as required.
Qualifying Work Experience (QWE) is real work experience that is required from prospective solicitors. The experience is to be in real life, not virtual. This experience will help to shape them as solicitors. The experience need not be from any specific place but may be from anywhere. Without such experience, one will not be able to become a solicitor. Qualifying Work Experience (QWE) is discussed later.
Nationality requirements for Solicitor Qualifying Examination (SQE)
One does not need to be from any specific nation to appear for the SQE The said examination has been introduced for the sake of creating a uniform path for anyone desiring to work as a solicitor in the jurisdictions of England and Wales.
Qualifying work experience
Candidates desiring to be solicitors in the jurisdictions of England and Wales through the SQE are required to have two years of Qualifying Work Experience (QWE). One can get this experience before or after they appear for the SQE.
This helps the aspirants acquire real life work experience and develop the competence required to work as solicitors. Providing legal services is to be included in qualifying work experience. It must be a real life experience, not simulated.
Qualifying Work Experience (QWE) may include the following:
On placement during a degree
When one gets placed during their law course and works there, it is counted as qualifying work experience (QWE) for the purpose of SQE.
Working in a legal clinic
When one works in a legal clinic, such experience is considered qualifying work experience (QWE) for the SQE.
Paralegal works
Paralegal work, whether done during the law course or after its completion, falls under the category of qualifying work experience (QWE) for the SQE.
Training contract
A training contract is often considered a period of recognised training. In the duration of the training contract, trainee solicitors put the skills they have learnt to practical use. This is one of the ways one can fulfil the criteria of qualifying work experience (QWE) required for the SQE.
Working in voluntary, charitable organisations
Candidates may work in voluntary, charitable institutions. Such experience will qualify as the qualifying work experience (QWE) required for the SQE.
Work in a law centre
A law centre is a kind of not-for-profit legal practise in the United Kingdom that grants legal aid to people who are ordinarily unable to access commercial legal support. Law centres are accountable to the communities they are committed to. Experience of working in such law centres is considered qualifying work experience (QWE) for the SQE.
Such experience can be gained in England, Wales, or overseas. It does not need to be limited to English or Welsh law experience. However, the experience has to be signed by a solicitor in England or Wales stating that the requirements are met. Also, the work done to gain Qualifying Work Experience (QWE) may be paid or unpaid.
It is recommended that a candidate develop a large number of competencies. This will help them utilise their Qualifying Work Experience (QWE) in the best possible manner. Competence means the skills that are expected from prospective candidates.
Aspirants can register Qualifying Work Experience (QWE) with the Solicitors Regulation Authority (SRA) by the time they apply to be admitted as solicitors.
Exemption from the Solicitors Qualifying Examination (SQE)
Qualified lawyers are allowed exemption from SQE assessments. It is also referred to simply as “exemption.”
For an exemption, one has to show that they have the requisite skills and legal knowledge tested and applied to the same standard as candidates for the SQE. This may be done through qualifications, experience, or a mix of both.
Qualified lawyers
Qualified lawyers are those who have a legal professional qualification. Such qualifications must allow them to practise in the United Kingdom or an international jurisdiction.
Exemption from the SQE is provided only to such qualified lawyers.
Exemption from Solicitors Qualifying Examination 1 (SQE 1)
Exemption from the SQE means that the candidate is not required to write one or more of the assessments. To be qualified for an exemption, one needs to demonstrate that they have the skills and legal knowledge assessed and applied to the same extent.
Exemption from Solicitors Qualifying Examination 1 (SQE 1)
The following proof the candidates provide to the Solicitor Regulation Authority (SRA):-
The areas of law assessed in the SQE1 (in the Functioning Legal Knowledge 1 or Functioning Legal Knowledge 2) are to be covered in the qualifications and work experience of the candidates.
The qualifications and the experience of the candidates are to be in the same level as the SRA Threshold Standard.
The law in which one is qualified or has work experience should not be fundamentally different from the English and Welsh law.
The candidate has detailed reference from their supervisors to validate their work experience.
The aspirant needs to have samples of their work in various forms like attendance notes, letters to clients etc.
Qualifications with an agreed exemption
Agreed exemptions are applicable only to lawyers who have qualified through the full legal qualification route of a jurisdiction and are not cross qualified from another jurisdiction. Those who have qualified through this path can apply for exemptions. However, the application is to be assessed on an individual basis.
Qualifications considered for exemptions
These qualifications are such qualifications that have been looked into. They do not meet the requirements for an agreed exemption. However, if their qualification is seen here, the candidate can apply for the SQE 2 exemption. This is only if a minimum of two years’ worth of legal work experience has been gained in the course of qualification or post.
There is a quiz in the official page that will help to determine if one meets the eligibility criteria for exemption. One needs to answer the questions asked according to their level of qualifications and jurisdictions. This will help them to determine if they are eligible to meet such exemption.
Qualifications in England and Wales
If one has additional work experience over the England and Wales legal qualification, one can apply for an individual exemption. Such exemption may extend to the following qualified lawyers:
Barrister who has completed pupillage,
Chartered Legal Executive,
Licensed Conveyancer,
Patent Attorney,
Trade Mark Attorney,
CILEx Practitioner,
Cost Lawyer.
Exemption one can opt for
SQE 1 tests Functioning Legal Knowledge 1 (FLK1) or Functioning Legal Knowledge 2 (FLK 2). Exemptions In the case of the SQE 1, exemption can be made from either Functioning Legal Knowledge 1 (FLK1) or Functioning Legal Knowledge 2 (FLK 2).
Examination format of the Solicitors Qualifying Examination 1 (SQE 1)
The SQE 1 is divided into Functioning Legal Knowledge Assessment 1 and Functioning Legal Knowledge Assessment 2. These two stages take place over a period of two days. Ethics and professional conduct are tested in both of these stages.
Functioning Legal Knowledge Assessment 1
FLK 1 is tested by a single best Multiple Choice Question (MCQ) over the period of two days. It broadly covers the following areas:
Business law and practice;
Legal system of England and Wales;
Constitutional and administrative law;
European Union law and legal services;
Dispute resolution;
Contract;
Tort;
Functioning Legal Knowledge Assessment 2
FLK 2 broadly covers the following aspects:
Property practice;
Criminal Law and practice;
Land law;
Trusts;
Will and the administration of estates;
Solicitors Accounts;
Principles of Taxation in the limited context of:
Business Law and practice;
Property Law and practice;
Wills and administration of estates.
A detailed view of the Solicitor Qualifying Examination 1 (SQE 1) assessments
The SQE 1 has two Functioning Legal Knowledge (FLK) in the following subjects:
Functioning Legal Knowledge 1 (FLK 1):
Business knowledge and Practice;
Contract;
Tort;
Dispute Resolution;
Legal system of Wales and England;
Constitutional and Administrative Law;
European Union Law;
Legal Services.
Functioning Legal Knowledge 2 (FLK 2):
Wills and the Administration of Estates;
Solicitors Accounts;
Land law;
Trusts;
Criminal law and practice.
Questions may also be asked from a combination of the above subject matter as required in practice. The topics in these can be accessed from the official website.
Functioning Legal Knowledge
Functioning Legal Knowledge tests knowledge of English law and Welsh law in great depth. The candidates are required to possess as well as apply such knowledge at the same level as expected from a newly qualified solicitor in England or Wales.
The core legal principles and rules a candidate is asked to apply are in the subject areas mentioned above. An aspirant must have the ability to apply such fundamental principles and rules on the same level as a newly appointed solicitor in real life situations. There are six possible answers, and the candidate has to choose the single best answer. The single best answer is followed by five probable answers. The candidate has to choose the former.
The SQE 1 Functioning Legal Knowledge (SQE 1 FLK) is a closed book examination. They do not test matters of detail, which a newly qualified solicitor will not know. They merely assess the application of legal principles and rules which a young solicitor will be expected to know without reference to books and notes.
The candidates will be tested on legal matters up to four calendar months before the date of assessment. One will be tested on the current law that exists until that date. The development of the law will not be assessed. A candidate will not be required to know about an amendment that is made at a later date.
Statement of solicitor competence
The competence statement is made of three parts which are :-
A Statement of Solicitor competence,
Threshold Standard, and
A statement of Legal Knowledge.
The Statement of solicitor competence provides what the solicitors are expected to do to fulfil their role satisfactorily. It states clearly what is expected from the solicitors. The aspiring candidates for the SQE are tested based on this. The competence statement needs to be read as a whole to be understood properly.
The Statement of solicitor competence defines competence broadly as “the ability to perform the roles and tasks required by one’s job to the expected standard”.
This definition recognises that needs and expectations differ depending on the job role and context. It upholds that competence evolves and a person may work competently at various levels. This may be at different stages of their careers or on different days of work, depending on the kind of work they do.
Application of legal principles and rules
The following types of questions may be asked in Functioning Legal Knowledge (FLK):
Questions that identify the legal principle or rule; such questions may require the candidate to state how it should be appropriately applied and the outcomes of such applications.
Questions that require the candidates to identify and apply the main legal rule or principle.
Questions that require candidates to show whether they can grasp whether their client can achieve their desired goal and provide legal advice regarding the same.
Questions that require candidates to perform some form of calculation by applying rules, rates, percentages, and thresholds to pinpoint the correct figure. This may be seen, particularly in the case of taxation candidates. They may be required to remember certain rates of tax.
The list is simply to provide an idea of the questions that may be asked. It is not intended to be exhaustive.
Legal authorities
In the course of legal practice, a case name or a statutory provision may be used to describe a legal principle or area of law, rule or a procedural step. In such cases, aspirants are required to know and be competent to use such names or provisions. Some examples of such names or legal provisions are:
Rylands v. Fletcher (1868)
Rylands v. Fletcher (1868) is leading English case law. It established the rule of strict liability. The case demonstrated that when a non-natural use of land by one person causes damage to another person’s land, the former is held strictly liable. This doctrine was enhanced further by the English courts. This doctrine facilitated the advancement of tort law.
Section 25 Notice
Section 25 Notice is discussed under the Landlord and Tenant Act, 1954. To end a lease under the said Act, a landlord has to serve a Section 25 notice. If the lease does not end when the fixed term comes, the lease will keep rolling on based on the terms continuing under the said lease.
It must be noted that a lease is a document under which one party rents their asset to another.
In other situations, the aspirants are not required to recall specific case names or cite authorities. This is to say that the candidates must know common legal facts that a newly appointed solicitor is required to know.
Ethics and professional conduct
The solicitors, as well as aspiring solicitors, need to keep in mind the ethical and professional conduct expected from them. Ethics and professional conduct state the high standards of ethical behaviour that solicitors in the jurisdictions of England and Wales are supposed to meet.
Solicitors need to act ethically, as they have a unique relationship of trust with their clients within the framework of the legal system. Failure to act ethically denotes the trust of the public deposed on the entire legal system. Professional conduct’ is a term that defines the rules and regulations that a solicitor needs to comply with.
Test centres in India for Solicitors Qualifying Examination 1 (SQE 1)
The international centre of the SQE is a Pearson VUE test centre. A Pearson VUE test centre is an examination conducting institution that is involved in conducting examinations globally.
Such centres are situated in the following locations in India:
Ahmedabad,
Allahabad,
Bangalore,
Bhopal,
Chennai,
Chandigarh,
Cochin,
Delhi,
Hyderabad,
Jaipur,
Kolkata,
Mumbai,
New Delhi,
Patna,
Pune,
Ranchi.
Method of booking test centres
The following steps are to be followed to book test centres:
The candidate has to log into their SQE and look at the assessments available for them.
They have to book their assessment through PearsonVue (accessed through SQE account).
The candidate needs to return to their SQE to pay to book the assessment.
Once booking opens, the aspirant needs to book the assignment.
The booking page provides a list of centres closest to the address the candidate registers with. The search field can be changed to search by a different passcode or city instead. Then a list of centres will be displayed. If the seats are available at the test centres one prefers, then they may book that test centre.
Payments are to be made mandatory to complete the booking. This can be done with the help of a credit or debit card.
For SQE 1, one has to book Functioning Legal Knowledge 1 (FLK1) and Functioning Legal Knowledge 2 (FLK 2) separately.
Syllabus
The official website provides the syllabus for the SQE. This can be discussed in the following table:
Paper
Syllabus
Number of MCQs
Functioning Legal Knowledge 1 (FLK 1)
Business Law and PracticeDispute ResolutionContractTortLegal System of England and WalesConstitutional and Administrative Law and European Union Law and Legal ServiceEthics and Professional Conduct
180
Functioning Legal Knowledge 2 (FLK 2)
Property PracticeWills and the Administration of EstatesSolicitors AccountsLand LawTrustsCriminal Law and PracticeEthics and Professional Conduct
180
This has been mentioned in the detailed view segment. Viewing it in a tabular format makes it easier to visualise and understand.
When to start preparing
It takes around 9-12 months to prepare for the SQE.
One can begin the preparation in the fourth or fifth year of the law school for a five year course. One can begin the course in the third year of a three year course.
The earlier one starts their preparation, the more advantageous it is. The candidate will be able to prepare more smoothly and understand the concepts better in such situations.
A typical plan that would work for everyone would be to begin their preparation at least 5-6 months before attempting the SQE 1. Practising advocates can follow this plan as well.
However, it must be noted that the needs of candidates may vary. Each aspirant has to understand their own circumstances and prepare accordingly. There is no “one size fits all” plan for individuals. Different strategies work for different individuals.
Top tips and tricks to prepare for the Solicitors Qualifying Examination (SQE)
Solving previous years’ question papers
The first step in preparing for any examination is understanding the format of the examination and the types of questions asked. This will help them grasp the kind of preparation needed. Solving past years papers is helpful in that regard.
Understanding own strengths and weaknesses
One needs to understand their strengths and weaknesses with respect to the examination. After such understanding, one needs to hone their strengths and counter their weaknesses for a good result in their examination.
Watch videos of successful candidates
Aspirants are advised to watch the videos of successful candidates on YouTube. This will help them understand the experiences of such candidates and predict the problems they may face in the course of their preparation. Such videos may also inspire them and help them build their own strategy in the process.
Build a strategy by yourself
One must build a strategy to crack the examination. The strategy needs to take into account the strengths and weaknesses of the candidates in the different domains of the examination.
Have a structured plan
Having a structured plan will help the aspirants cover the entire syllabus within the time available. It will be helpful for the candidate to divide the entire preparation into various phases according to their convenience and prepare accordingly. It will also help them revise properly and as required.
Make a proper timetable and follow it
A proper timetable is imperative to cracking this examination. Aspirants need to carve out a timetable. They need to follow the timetable religiously. This will help them stay on track.
Use scientific methods for learning
The SQE involves studying a considerable amount of information. Spaced repetition and active recall are two useful methods for covering such a voluminous course.
Spaced repetition is a method of studying where the learner studies a subject and revises it after some time. Then they will revise the material again after some time based on their own requirements. The periods of study sessions are spaced, and this will prevent the learners from forgetting the material. This will save their time. This is preferable to the ordinary method of studying, where one studies something well and completely forgets it when they try to revise it after a long period. They have to learn the material all over again.
Active recall is a helpful method of learning that can complement spaced repetition. Instead of passively rereading and highlighting the study material in the revision sessions, the learner needs to actively recall what they had studied in the previous session. This will help them remember better, and they can study more in less time.
Preparation of flash cards and using them for studying will be helpful for restating the information studied in a systematic manner.
Commitment to the Solicitors Qualifying Examination (SQE)
The candidate must be diligent and committed to the examination they are preparing for. A half-hearted preparation is not sufficient to clear this examination.
Mock tests
Mock tests are needed to understand where they stand and where they are lacking. They play a crucial role in the preparation of the SQE, and their importance cannot be underestimated. This will also provide an understanding of their strengths and weaknesses.
Recommended books for preparation of the Solicitors Qualifying Examination 1 (SQE 1)
The following are the books one can refer to for the SQE 1 :
Book
Author
Publisher
Topics Covered
Skillfully Passing the Solicitors Qualifying Examination
Neeta Halai
Bloomsbury Professional Law
This book provides useful tips for the entire process of the SQE. This is the most recommended book for the SQE.
Legal System of England and Wales
Frederick Price
The University of Law Publishing Limited
This book provides an understanding of the legal system of England and Wales.
Business Law and Practice
Liz Jones
The University of Law Publishing Limited
This book provides a comprehensive understanding of how different types of businesses are set up.
Dispute Resolution
Amanda Powell
The University of Law Publishing Limited
This book provides a complete and helpful view of all stages of civil litigation.
Contract
Alison Smith
The University of Law Publishing Limited
This book provides an updated view of the involvement of solicitors in providing advice regarding the formation and change of contracts . It also provides remedies in case of breach as well as methods of their termination
Land Law
Helen Avis
The University of Law Publishing Limited
“Land Law” presents information about the complicated knowledge that has crept up since the Norman Conquest. This is extremely important for the purpose of the SQE 1.
Tort
Carl Price
The University of Law Publishing Limited
“Tort Law” provides a comprehensive and current view of the law of tort. It focuses on the tort of negligence, nuisance, employers’ liability, product liability and occupiers’ liability.
Criminal Practice
Sean Hutton
The University of Law Publishing Limited
“Criminal Practice” provides a complete view of the work of solicitors in the practical field. It views adults and juvenile defendants as well as the appeal processes covered by both.
Wills and Administration of Estate
Jacqueline Kempton, Gill Williams
The University of Law Publishing Limited
“Wills and Administration of Estate” provides a complete view of devolution property after death, inheritance tax and administration of estates.
Ethics and Professional Conduct
Jacqueline Kempton
The University of Law Publishing Limited
“Ethics and Professional Conduct” provides an idea of the standards of professional behaviour desired from the solicitors. It includes an extensive examination of the principles of the Solicitors Regulation Authority. This will be extremely helpful for candidates in understanding the expectations from the new solicitors.
Constitutional and Administrative Law and EU Law
Trevor Tayleur
The University of Law Publishing Limited
“Constitutional and Administrative Law and European Union Law” gives a systematic and updated view of the basic principles of the Constitution of the United Kingdom.
Revise SQE: The Legal System of England and Wales: SQE 1 Revision Guide
Amy Sixsmith
Fink Publishing Ltd.
This book provides an outline of the legal system and the legal services of England and Wales. It helps the candidates with the revision of the legal system of England and Wales for SQE 1.
Revise SQE Property Practice : SQE 1 Revision Guide
Benjamin Jones
Fink Publishing Ltd.
This book provides a comprehensive understanding of Property Law and its Practice for SQE 1.
Revision SQE Criminal Law : SQE 1 Revision Guide
Mark Thomas, Samantha Pregg
Revise SQE
In this book, a clear understanding of core legal concepts and postulates tested in the SQE is given. It helps with the revision of the legal system of criminal law for SQE 1.
Note: The books are not sponsored and are for the benefit of the candidates.
Registration process for Solicitors Qualifying Examination (SQE)
Steps involved in registration
The official website provides the following steps to register for the SQE. The following steps are involved:
Creation of a SQE account,
Activation of such account,
Logging in the account,
Verification of identity.
One has to register here by creating an account. Before registering, one has to create the account first.
To create an account for the SQE, one has to enter their email address to see if they have previously registered.
If one has registered, they will be notified regarding the same. They can reset the password to log in to the existing account.
Otherwise, they can create a new account and then log in.
Verification of identity
An interested candidate is required to verify their identity through a valid official government photo ID.
For this purpose, the following documents can be used:
Passport,
Driving licence,
Any photo ID issued officially by the government.
Reasonable adjustments for the Solicitors Qualifying Examination (SQE)
After the verification of identity, the candidate has to inform the Solicitor Regulatory (SRA) if any reasonable adjustments are needed while taking the assessments. This is to ensure that no candidate has to suffer due to their disability or any other condition.
The Solicitors Regulation Authority (SRA) tries to ensure that every candidate has the opportunity to take the Solicitors Qualifying Examination (SQE). Under the Equality Act 2010, the authority is bound to make any reasonable adjustments for such conditions.
The following table shows the kind of reasonable adjustments that are made by the Solicitor Regulation Authority (SRA):
Condition or disability
Reasonable adjustment
Arthritis
Additional use of timeUse of computer for written assessments Bringing of medicines.
Attention Deficit Hyperactivity Disorder
Additional time and breaksUse of ear plugs
Autistic Spectrum Conditions
Additional time and breaksA separate roomA reader
Chronic pain
Additional timePermission to bring and take medication
Blind or partially sighted
Additional time and breaksSeparate roomReaderRecorderColoured overlaysLarge print copiesAdjustable fontAdjustable contrastzoomtext
Deaf and hard of hearing
Additional time and breaksSeparate roomReaderRecorder
Cerebral palsy
Additional time and breaksSeparate invigilation
Depression
Additional time and breaksUse of computer for assessments
Dyscalculia
Additional time and breaksSeparate roomReaderAdjustable fontZoomed textRecorder
Dyslexia
Additional time and breaksenlarged/coloured assessmentsUse of computer for written assessmentsSeparate roomReaderAdjustable fontsAdjustable contracts
Epilepsy
Additional time and breaksSeparate room.
Food intolerance
Permission to bring and take medication
Hypoglycemia
Permission to bring snacks
Migraines
Permission to bring water and medication
Post Traumatic Stress Disorder
Additional timeUse of computer for written examinations
Spondylitis
Additional timeUse of candidate’s own back support
Tendonitis
Use of computer for written examinationsUse of candidate’s own wrist braceUse of own pen
Visual impairment
A readerRecorderAdditional time and breaksSeparate room and invigilationLarge printed formatAdjustable contrast
Mobility issues
A personal assistantAdditional timeUse of computer for written examinationsElevated monitor
Neurodiverse candidates
Additional time and breaksSeparate roomReaderRecorderAdjustable fontAdjustable contrastZoomtext
This is not an exhaustive list. If the kind of disability a candidate has is not listed, it can be applied for. The Solicitor Regulation Authority (SRA) will look into it and may provide a reasonable adjustment for the candidate.
The candidate has to ensure that their employment or training provider has nominated the Kaplan SQE as their End Point Assessment Organisation. This means Kaplan will conduct the SQE.
Steps for requesting reasonable adjustments
One can book for reasonable adjustments in the following way:
Register for the Solicitors Qualifying Examination (SQE)
One has to register for an SQE account.
They need to click “Yes” when asked if reasonable adjustments are needed.
The candidate has to complete the form, adding the details of requirements, when and where one wishes to assessment
Contact
Solicitors Regulation Authority (SRA) will contact the candidate to deal with the request for reasonable adjustments.
If the request extends to an open booking window, the Solicitors Regulation Authority (SRA) will try to reserve a seat for the candidate at their preferred location.
One does not need to book online if one is requesting reasonable adjustments.
Receipt of named liaison
The candidate will be provided their named liaison within five working days.
They will be asked if they need any clarification at their request or further information.
The candidate will be sent a proposal for their reasonable adjustment plan if the Solicitors Regulation Authority (SRA) has sufficient information.
Booking in after candidate accepts and pays
If the candidate accepts the proposed reasonable adjustment plan, they confirm by accepting it in their candidate account.
If the booking window is open, the candidate will be contacted for details on how to pay.
When the assessment fee is paid, their reserved seat will be booked. The candidate will get a confirmation email.
Fees for the Solicitors Qualifying Examination 1 (SQE 1)
The official site for the SQE states that the fees for assessment in the case of the SQE 1 are as follows:
The total fee for the SQE 1 is £1798 or Rs. 1,81,844.43.
The fee for FLK 1 is £899 and the fee for FLK 2 is £899 or Rs. 90,915.96.
Functioning Legal Knowledge 1 (FLK 1) and Functioning Legal Knowledge 2 (FLK 2) have to be booked separately but must be paid for in a single booking at the time of booking. Functioning Legal Knowledge 1 and Functioning Legal Knowledge 2 have to be taken in the same assessment window. One has to book Functioning Legal Knowledge 1 (FLK 1) and Functioning Legal Knowledge 2 (FLK 2) separately. They need to pay for both in a single payment. The fees are exempt from Value Added Tax.
Cancellation fees
If one chooses to cancel the examination after paying the fees for it, they will be charged a cancellation fee. Such cancellation fees will be charged based on when they choose to cancel the examination.
The Solicitor Regulatory Authority (SRA) has to be informed in writing or email when one wishes to cancel the booking for the examination.
Types of questions asked in the Solicitors Qualifying Examination 1 (SQE 1)
SQE 1 is divided into two more stages that test functioning legal knowledge:
Functioning Legal Knowledge 1 (FLK 1), and
Functioning Legal Knowledge 2 (FLK 2).
180 multiple choice questions are asked in both Functioning Legal Knowledge 1 (FLK 1) and Functioning Legal Knowledge 2 (FLK 2). The tests are taken on two separate days. These tests are further divided into two blocks of 2 hours and 33 minutes. 90 questions are present in each block.
One has to pass both Functioning Legal Knowledge 1 (FLK 1) and Functioning Legal Knowledge 2 (FLK 2) to clear SQE 1. If one fails either, it means they have failed to pass SQE 1. They may decide to go for another attempt.
Multiple Choice Questions (MCQs) will be asked, in which one has to choose the single best answer. One mark is awarded for every correct answer. No mark will be deducted for a question left blank. The good news is that there is no negative marking for wrong answers!
Number of attempts
As per the official website, the SQE permits only three attempts at SQE 1 and SQE 2.
These attempts must be made within six years. The said time period starts from the day one sits for the first SQE assessment. It must be noted that one cannot resit for an assessment till one gets the results of their previous attempt at the said assessment.
How to check results
Results are usually available 5-6 weeks after appearing for the SQE 1. The exact date will be notified after the examination.
Approximately 5-6 weeks after sitting for the SQE 1, the candidate will get an email from the Solicitors Regulation Authority (SRA).
The email will notify the candidate that the results are available in their SQE account on the SQE website.
The results will not be sent to the candidate. They need to view it on the website. They will be able to save the result in a PDF format.
Marking scheme for the Solicitors Qualifying Examination (SQE)
Solicitors Qualifying Examination is a Multiple Choice Question examination. Each question awards 1 mark on answering it correctly.
The good news is that there is no negative marking in the SQE!
Multiple responses will not be counted.
The total score is assessed based on the proportion of correct responses on the assessment.
In Functioning Legal Knowledge 1 (FLK 1), equal weightage is given to all the subjects but less weightage is given to legal services.
In Functioning Legal Knowledge 2 (FLK 2), uniform weightage is given to all the subjects.
Job profile
So are you curious what you can do after clearing the SQE? If yes, keep reading!
The examination can facilitate several career paths. But first, let’s understand who a solicitor is and what he does.
Solicitors are legal practitioners who may cover several different areas of law. Usually, they do not represent clients in court of law. However, they may do so in special circumstances.
Differences between solicitors, advocates and barristers
A solicitor is a lawyer who is involved in transactions, drafts documents, and provides legal advice. They do not usually practise in the courts but may do so in special circumstances. They are often the first point of contact for clients. Solicitors are employed in the jurisdictions of England, Wales, Australia, Canada, etc.
An advocate is a lawyer who represents a client in any court of law. This may not be used in civil jurisdictions. They offer legal advice and represent clients in legal matters. The term is commonly used in the jurisdictions of India, South Africa, Scotland, etc.
A barrister is a kind of lawyer who practises in courtrooms. Such lawyers do drafting, pleading, and providing legal opinions. They only deal with clients through solicitors. The term is used in common law jurisdictions like England, Wales, Australia, Canada etc.
A solicitor in England and Wales may perform some of the following roles:
Representation of clients in court;
Research case laws and legal records;
Keep up with the changes and amendments to the law;
Participate in negotiations with clients;
Drafting of confidential documents.
A solicitor may work in offices, prisons, police stations or courts
A solicitor may become a partner in a firm of solicitors after they acquire the requisite experience. They can also become a commercial solicitor to manage an in-house legal department.
Skills required by a solicitor
The following are some of the skills required by a solicitor:
Ability to notice details,
Ability to uphold confidentiality when required,
Commendable computer focussed skills,
Good communication skills,
Negotiation skills,
Flexibility,
Good time management,
Ability to work under pressure,
General awareness,
Networking skills.
Basic income of a solicitor
A solicitor usually starts with a salary of £25000 or Rs 2,529,851.83 per annum.
This may be higher (around £40000 or Rs. 4,048,997.89) with more qualifications or those starting in commercial firms and cities.
The salary may also vary according to their area of expertise. It may even reach £90,000 or Rs. 9,109,565.45 for a senior solicitor. The salary may even be around £1,000,000 or Rs. 101,217,393.90 for partners in big law firms and in-house legal departments.
Frequently Asked Questions (FAQ) on the Solicitors Qualifying Examination 1 (SQE 1)
Generalised Frequently Asked Questions (FAQs) about Solicitors Qualifying Examination (SQE)
What is Solicitors Qualifying Examination (SQE) about?
The Solicitors Qualifying Examination (SQE) is a qualifying examination to become a solicitor in the jurisdictions of England and Wales. This examination can be attempted by anyone who wishes to practise law in these jurisdictions, including graduates with non-law degrees. This examination is also required if one wishes to work as a law professor in these jurisdictions.
Who conducts Solicitors Qualifying Examination (SQE) ?
Kaplan SQE Limited (Kaplan SQE) has been appointed as the sole provider of the Solicitors Qualifying Examination (SQE) by the Solicitors Regulation Authority (SRA).
Is the Solicitors Qualifying Examination (SQE) a computer based examination?
The Solicitors Qualifying Examination (SQE) is a computer based examination and hence has to be taken online.
Is The Solicitors Qualifying Examination (SQE 1) difficult?
The Solicitors Qualifying Examination (SQE 1) is indeed a difficult examination. However with a proper plan and guidance, one will increase their chances of clearing the examination considerably.
Is there negative marking in the Solicitors Qualifying Examination (SQE)?
There is no negative marking involved in the Solicitors Qualifying Examination (SQE).
When is the Solicitors Qualifying Examination (SQE) conducted?
There are multiple sittings of the Solicitors Qualifying Examination (SQE) per year. One can register as a Solicitor Regulatory Authority (SRA) candidate account any time throughout the year.
Following are the assessment dates of SQE 1 in the year 2023-2024:
Assessment
Dates
BookingOpens
Booking Closes
Assessment window – Day 1
Examinable law and practice cut-off date
Result Date
January 2024
FLK1: 15, 16, 17, 18, 19 January 2024FLK2:January 22, 23, 24, 25, 26 January 2024
October 4, 2023, at 10 am
November 15, 2023, at 5 pm
January 15, 2024
September 15, 2023
March 14, 2024
July 2024
FLK1 : July 15 and 16 FLK2: July 22 and 23, 2024
April 10, 2024
May 22, 2024
July 15, 2024
March 15, 2024
September 10, 2024
The bookings for both SQE 1 and SQE 2 generally close around five weeks before the examinations are conducted.
What is the pass rate of Solicitor Qualifying Examination 1 (SQE 1)?
As per the Solicitor Qualifying Examination 1 (SQE1) Statistical Report 2022, the pass rate was 53% which is just above average.
What is Functioning Legal Knowledge (FLK)?
Candidates are required to have a deep and wide knowledge of English and Welsh law to become solicitors in those jurisdictions. This is known as Functioning Legal Knowledge (FLK).
This implies that candidates need to apply their knowledge of the law to demonstrate the competence expected from a newly qualified knowledge in these jurisdictions.
Frequently Asked Questions (FAQs) on the eligibility for Solicitor Qualifying Examination (SQE)
Who is eligible for the Solicitor Qualifying Examination (SQE)?
Any person with a graduate degree or equivalent certification is eligible for the Solicitor Qualifying Examination (SQE). There are no specific requirements aside from this to be considered an eligible candidate for the SQE.
Can non-law graduates appear for the Solicitor Qualifying Examination?
Graduates of any field can appear for the Solicitor Qualifying Examination as long as they fulfil the other requirements to appear for this examination.
Is a good academic record required to clear the Solicitor Qualifying Examination?
One has to fulfil certain qualifications to appear for the Solicitor Qualifying Examination (SQE) and needs to clear it. Aside from this, one’s academic qualifications are not important. However, one has to be a graduate and have a law degree or some other degree to appear for the exam.
Is work experience required to clear this examination?
The candidates require two years of full time or equivalent Qualifying Work Experience (QWE) to clear this examination. Such experience provides the real life experience of real-life work experience and develops some of the official competence required to become a solicitor. Legal services need to be provided within the scope of Qualifying Work Experience (QWE). Qualifying Work Experience (QWE) is mandatory to become a solicitor in the jurisdictions of England and Wales. Graduates of any field cannot become solicitors without acquiring such experience.
Does internship experience count as Qualifying Work Experience (QWE)?
Yes, an internship experience, whether paid or unpaid counts as Qualifying Work Experience (QWE) in the following instances:
The internship experience provides the chance to develop at least two competencies required in the Statement of Solicitor Competence.
The experience can be confirmed by a solicitor with direct knowledge of the work of the interested candidate.
What is the Statement of solicitor competence?
The Statement of solicitor competence is a document that provides an open ended definition of competence as the competence to perform the roles and tasks required by the job of solicitor to expected standards. This document may help aspirants understand the level of competence that is expected from newly appointed solicitors, and such understanding may help them prepare accordingly.
The merit of such a definition is that it recognises that needs and expectations from a job vary depending on the job role and context. Also, competence is an evolving concept. A candidate may work differently at different levels or stages of their career, depending on the nature of their work.
Frequently Asked Questions (FAQs) about preparation for Solicitor Qualifying Examination 1 (SQE 1)
How do I clear the Solicitor Qualifying Examination (SQE) if I am not good at English?
The Solicitor Qualifying Examination (SQE) is conducted in English. If one is not good at English or is not confident in their English, they need to brush up their English. They can take a course in English to improve their English. One can certainly clear this examination even if they are not good at English, as long as they strive to improve it.
How long should one prepare to clear Solicitor Qualifying Examination 1 (SQE 1)?
A solid preparation of 9-12 months will be sufficient to clear the Solicitor Qualifying Examination 1 . One should make a structured plan and follow the plan religiously. This will vastly increase their chances of clearing the examination.
Frequently Asked Questions (FAQs) about exemption
Who is granted exemption from the Solicitor Qualifying Examination (SQE)?
Qualified lawyers are granted exemption from the Solicitor Qualifying Examination (SQE). A qualified lawyer is someone who has a legal professional qualification that allows them to practise in England, Wales or any other place. For more details, please check this.
Who decides whether one gets an exemption to the Solicitor Qualifying Examination (SQE)?
The Solicitors Regulation Authority (SRA) decides whether one gets an exemption from the Solicitor Qualifying Examination (SQE) assessments.
Frequently Asked Questions (FAQs) about question pattern
What types of questions are asked in the Solicitor Qualifying Examination 1 (SQE1)?
Solicitor Qualifying Examination 1 (SQE1) asks questions that test how well a candidate can apply functioning legal knowledge.
What is the pass mark for Solicitor Qualifying Examination 1 (SQE1) ?
The pass marks for Solicitor Qualifying Examination 1 (SQE1) depends on the difficulty of the questions. This is to ensure that standards of the SQE1 are maintained.
Frequently Asked Questions (FAQs) about fees and registration
Is it true that the candidate fee for Solicitor Qualifying Examination 1 (SQE 1) has increased?
Yes, the candidate fee hasincreased to £1,798 from £1,622. In terms of Indian Rupees, the candidate fee has increased from Rs. 181,832.11 to Rs. 164,052.76. Such a hike will take effect in September 2023. Such a rise in fees is due to inflation.
Is the fee for Solicitor Qualifying Examination 1 (SQE) paid in a lump sum?
Yes, the fees for Solicitor Qualifying Examination 1 (SQE 1) have to be paid in a lump sum. A candidate has to book for FLK 1 and FLK 2 separately. However, they need to pay for both in a single payment while booking. One has to pay in full while booking the assessment.
How can a candidate pay the fees for Solicitor Qualifying Examination 1 (SQE 1)?
A candidate can pay the fees for Solicitor Qualifying Examination 1 (SQE1) through the following methods:
A debit card or credit card.
If the candidate has been provided a prepaid voucher by their employer , they can redeem it by entering the code while booking.
The payment is made via WorldPay.
How do I register if I am an apprentice for the Solicitor Qualifying Examination (SQE)?
An apprentice must follow the following steps to register:
An apprentice has to create a Solicitor Qualifying Examination (SQE) account, activate and log in.
Then they must fill in the profile. This includes verifying your identity and informing them about any reasonable adjustments as may be needed.
They also need to ensure that their employer or training providers has nominated Kaplan SQE as their End Point Assessment organisation.
Frequently Asked Questions (FAQs) about test centres
What are the items one can use in the test centres?
Candidates will be provided the following items in the test centres:
Erasable whiteboard notepad,
Marker pen.
These items are only for the purpose of the examination and are to be handed out after the examination ends. One is not allowed to carry their own equipment. They will be provided with all their requisite equipment.
What is the dress code to be followed in the test centres?
There is no dress code that one needs to follow for the Solicitors Qualifying Examination 1 (SQE 1).
Frequently Asked Questions (FAQs) about results
How long does one have to wait after taking the Solicitor Qualifying Examination 1 (SQE1 ) to get their results?
One gets their results around 5-6 weeks after taking the Solicitor Qualifying Examination 1 (SQE 1). The actual date of the results is confirmed later, after the date of their assessments.
How does one know if the results for Solicitor Qualifying Examination 1 (SQE 1) have been declared?
The Solicitors Regulation Authority (SRA) sends an email notifying that results are available in their Solicitor Qualifying Examination (SQE) account. Results will be visible on the SQE website and will not be sent to the concerned candidate. They will be able to save their results in the form of a PDF.
Frequently Asked Questions (FAQs) about next steps after Solicitor Qualifying Examination 1 (SQE 1)
What does one need to do after clearing the Solicitor Qualifying Examination 1 (SQE 1)?
After clearing the Solicitor Qualifying Examination (SQE), one needs to take Solicitor Qualifying Examination 2 (SQE 2) unless one is a Qualified Lawyer and has been granted an exemption.
Where can I practise after clearing this examination?
A candidate can practise in the jurisdictions of England and Wales after clearing this examination.
Conclusion
The SQE provides a course of action differing from what law students in India ordinarily aspire for. SQE 1 is an important step in clearing this examination. Most law students and lawyers lack information about this examination. If one wishes to work as a solicitor in the jurisdictions of England and Wales, one has to pass this examination. With proper guidance and dedication, one will be able to clear this examination with flying colours.
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 the world of mergers and acquisitions (M&A), there are various legal aspects that companies must adhere to in order to ensure fair competition and protect the interests of shareholders and consumers at large and one such aspect is ‘gun jumping’.
The term itself actually originates from 1900s track and field races where the athlete starts racing before the signal gun is fired. Gun jumping in the field of merger control regimes represents a situation that happens either when merging entities complete a deal without obtaining necessary regulatory approvals or where merging entities fail to comply with the waiting period/statutory notice period from the date of taking a binding decision to merge under the merger control rules and regulations. This is considered a violation of merger control regulations and this act can lead to significant fines and legal consequences.
The focus of regulatory authorities all around the world has increased on such violations by merging entities, as such infringements are increasing with time. Therefore, it becomes relevant to understand the term and the issues that it creates. So, this article will provide a comprehensive analysis of gun jumping, its significance in merger control, and its implications for antitrust laws.
What is gun jumping
Gun jumping refers to the premature implementation of a merger or acquisition before obtaining the necessary regulatory approvals. In the context of antitrust and merger control laws, when companies engage in the process of merging or acquiring another business, they are required to seek approval from relevant regulatory authorities to ensure that the transaction complies with competition laws.
The term “gun jumping” is used because the involved parties metaphorically “jump the gun” by proceeding with integration or operational changes before receiving official approval from regulatory bodies. This premature action can take various forms, including the sharing of commercially sensitive information, combining resources, or implementing operational changes.
The primary rationale behind regulatory approval is to assess whether the proposed merger or acquisition could result in anti-competitive practices, such as creating a dominant market player that might harm fair competition. Regulatory authorities, such as the Federal Trade Commission (FTC) in the United States or the European Commission in the European Union, review these transactions to ensure they comply with antitrust laws.
Engaging in gun jumping is considered a violation of merger control regulations, and it can lead to legal consequences for the parties involved. Such consequences may include fines, the unwinding of the transaction (reverting to the pre-merger status), and reputational damage.
To avoid gun jumping, companies typically work closely with legal counsel, follow best practices in merger planning, and maintain transparent communication with regulatory authorities throughout the process. Understanding and adhering to the specific requirements of antitrust laws in different jurisdictions is crucial to navigating mergers and acquisitions successfully without running afoul of regulatory authorities.
Understanding merger control
Merger control is a regulatory process with the purpose of preventing anti-competitive practises and ensuring healthy competition in the market, benefiting the end consumer. It involves a detailed assessment of the potential impact of a merger and acquisition on market competition, consumer welfare, and other relevant factors under the antitrust or competition law of the country.
A term often heard in competition law cases is ‘mandatory and suspensory regime’ which basically is a merger control regime where filing of a transaction is compulsory and that the parties to a transaction are indefinitely prevented from closing the deal until they have received a merger clearance. Mechanisms may vary across jurisdictions, but their primary objective is to strike a balance between promoting economic efficiency and safeguarding fair competition.
The primary objective of merger control is to prevent anti-competitive practices and ensure that mergers do not harm fair competition in the marketplace. Here’s a comprehensive understanding of the key aspects of the merger control regime:
Regulatory authorities: Regulatory authorities responsible for merger control vary by jurisdiction. In the United States, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) handle antitrust enforcement. In the European Union, the European Commission oversees merger control. Other countries have their own regulatory bodies.
Antitrust and competition laws: The basis of the merger control regime lies in antitrust and competition laws. These laws are designed to promote fair competition, prevent monopolistic behaviour, and protect consumers. Mergers that could substantially lessen competition or create a dominant market player may be subject to scrutiny.
Thresholds and notification requirements: Not all mergers trigger the need for regulatory review. Many jurisdictions have specific thresholds based on the size of the transaction, the market share of the merging parties, or other relevant factors. Transactions that exceed these thresholds typically require notification to the regulatory authorities.
Pre-merger notification and review: Parties involved in a merger that meet the specified criteria are usually required to submit a pre-merger notification to the relevant regulatory authority. The regulatory body then reviews the transaction to assess its potential impact on competition.
Substantive assessment: During the review process, regulatory authorities conduct a substantive assessment to determine whether the merger would result in a substantial lessening of competition. This involves analysing factors such as market concentration, entry barriers, and the potential for anti-competitive behaviour.
Remedies and conditions: If the regulatory authority identifies concerns regarding competition, it may impose remedies or conditions on the merger. This could include divestitures of certain business units or the implementation of specific measures to address anti-competitive effects.
Significance of gun jumping in merger control
There are a number of reasons why merger control authorities have strict rules against gun jumping, some of which can be:
First, by implementing the merger before it has been approved, the merging parties can lock in customers, suppliers, and other strategic assets. This can make it more difficult for authorities to assess the impact of mergers and for other companies to compete, and can ultimately lead to higher prices and less choice for consumers.
Second, give the merging entities an unfair advantage over their competitors by gaining access to confidential information about their competitors or locking in customers of merging entities.
Finally, gun jumping can undermine public confidence in the merger control process. When companies are seen to be flouting the rules, it can erode public trust in the system and make it more difficult for competition authorities to do their job.
Rules and regulations surrounding gun jumping
The rules and regulations governing gun jumping vary from country to country. However, there are some common elements that can be found in most merger control regimes. This may include:
Sharing competitively sensitive information, such as customer lists, pricing data, or marketing plans.
Integrating operations, such as merging sales forces or combining IT systems.
Changing prices or terms of sale.
Appointing directors or officers to the merged entity.
The merging parties take steps that are preparatory to implementing the merger, even if they do not have a direct impact on the market.
Let’s look at various laws applicable in countries to control M&A
India
The principal legislation governing mergers in India is the Competition Act of 2002 (the Act) and Section 5 of the Act describes the types of transactions that constitute a combination and Section 6 of the Act requires the filing of a pre-merger notice with CCI in respect of a proposed combination.
The Competition Commission of India (CCI) has the authority to restrict enterprises from entering combinations or arrangements that will have an appreciable adverse effect on competition (AAEC) or abuse their dominant position in the relevant market.
The expression “gun-jumping” has not been defined anywhere in the Act or Regulations framed thereunder. Though it includes instances relating to: (i) failure to notify and (ii) violation of the standstill obligation. Till date, the Commission has found multiple violations from combinations of entities and imposed penalties under Section 43A of the Act.
Recently, the Competition Act of 2002 was amended and the CCI scope was widened. The highlights of the amendment are:
CCI can regulate M&A based on the value of transactions exceeding INR 2000 crores.
Smooth framework for settlement and commitment for faster resolution of investigations of anti-competitive agreements and abuse of dominant position.
Entities engaged in non-similar businesses are also covered and earlier only entities engaged in similar businesses could be held to be part of anti-competitive agreements.
European Union
The legal basis for EU merger control is Council Regulation (EC) No. 139/2004, the EU Merger Regulation and the authority to deal with it is the European Commission. The regulation prohibits M&A, which would significantly reduce competition in the single market, for example, if they created dominant companies that are likely to raise prices for consumers.
The Commission in principle only examines larger mergers with an EU dimension, meaning that the merging firms reach certain turnover thresholds. There are two alternative ways to reach turnover thresholds for the EU dimension.
The first alternative requires:
a combined worldwide turnover of all the merging firms over €5000 million, and
an EU-wide turnover for each of at least two of the firms over €250 million.
The second alternative requires:
a worldwide turnover of all the merging firms over €2500 million, and
a combined turnover of all the merging firms over €100 million in each of at least three Member States,
a turnover of over €25 million for each of at least two of the firms in each of the three Member States included under ii, and
EU-wide turnover of each of at least two firms of more than €100 million.
In both alternatives, an EU dimension is not met if each of the firms archives more than two thirds of its EU-wide turnover within one and the same Member State.
United States of America
In the USA, the premier merger control legislation is the United States Code, Title 15 – Commerce and Trade, Chapter 1- Monopolies and Combinations in Restraint of Trade, also called the “Clayton Act,” and Section 7a prohibits gun jumping and requires companies to maintain separate operations until the expiration of a waiting period following merger notification. Further, the statutory waiting period specified in Section 18a of the Clayton Act is to allow time to review proposed mergers before the assets become too difficult to unscramble.
Other legislation that bars gun jumping is the Sherman Act, 15 U.S.C. 1, and Section 1 prohibits agreements between competitors that harm competition. Thus, during the pre-consummation period, competing firms may also be liable for agreements that violate Section 1.
Also, Section 5 of the Federal Trade Commission Act declared unlawful “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce”.
The premier merger control authorities are the US Federal Trade Commission (USFTC) and the Antitrust Division of the Department of Justice (DOJ), which can enforce Section 7a of the Clayton Act. Further, the DOJ has provided guidelines for antitrust enforcement agencies for international operations, covering all applicable laws, issues that may arise regarding jurisdiction and procedural rules applicable in the situation.
Israel
The law applicable in Israel that controls M&A is Economic Competition Law 5748-1988 (the Law) and any merger that crosses the required threshold shall proceed after ex ante approval from the Director General of the Israel Antitrust Authority (IAA).
In Israel, IAA follows the “Bright Green” route for merger examinations to expedite the approval process for M&As that do not raise competitive concerns. Under this process, mergers that clearly raise no serious concerns about harm to competition or the public as per Section 21 of the law can be clearly approved. The decision is taken based on prima facie information provided by merging parties within 30 days.
Section 19 of the law covers the term ‘gun jumping’ to describe cases in which the parties to a merger that are subjected to the reporting obligation begin to carry out the merger before receiving the Director General’s approval but act contrary to the provision.
Identifying actions that may constitute gun jumping
The specific actions that may constitute gun jumping will vary depending on the specific merger control regime. The main purpose of the regime is to ensure that entities remain independent until they obtain regulatory approvals. There are some common types of activities that are often prohibited, which include:
Premature implementation of a merger: This is one of the most common forms of gun jumping and can occur when the merging parties take steps to integrate their operations or to change prices or terms of sale before the merger has been approved.
Sharing competitively sensitive information: This can include information about customers, suppliers, pricing, or marketing plans.
Coordinated actions before clearance: This occurs when the merging parties coordinate their competitive behaviour before the merger has been approved and includes agreeing on prices, dividing markets, or allocating customers.
Negotiating contracts on behalf of another party: An executive of either of merging entities cannot negotiate contracts or accept settlements on behalf of the other merging entity
Though major activities are prohibited before approvals are obtained, before that, the concerned entities can perform transition planning so that the purpose of M&A is not adversely affected due to conduct outside the course of business. Therefore, some permitted actions may include:
Information publicly available can be shared among the merging entities.
Sharing of information that is pro-competitive in nature or is required for due diligence.
Exercise of veto rights over decisions outside the ordinary course of business that do not result in decisive influence of the acquirer entity over the entity being acquired
Examining the potential ramifications for companies involved
The penalties for gun jumping can be severe. In some countries, companies that engage in gun jumping may be fined up to 10% of their global turnover. In addition, the merger may be voided, and the merging entities may be liable for damages to competitors or consumers while damaging their reputations all together.
Fines and penalties: The amount of the fine will vary depending on the specific merger control regime, but it can be significant. In some cases, fines have been imposed that are equal to 10% of the global turnover of the merging parties.
Reputational damage: When a company is found to have engaged in gun jumping, it can be seen as being untrustworthy and unethical. This can make it more difficult for the company to attract customers and investors in the future.
Voidability of the transaction: In some cases, a merger that has been implemented in violation of merger control laws may be voided.
Potential lawsuits: Companies that engage in gun jumping may also face potential lawsuits from competitors or enforcement actions by competition authorities.
Analysing real-life examples of gun jumping cases and their outcomes
All over the world, there have been many high-profile ‘gun jumping’ cases in recent years. Let’s take a look at important cases from various jurisdictions where the courts have found companies guilty of gun jumping.
India
A large number of gun-jumping cases before CCI were Suo-Motu inquiries, primarily based on information gathered through media and market intelligence. Several procedural gun-jumpings were unearthed on the basis of voluntary belated filings by the parties or information provided in combination notices regarding other transactions pursued by the parties. Some of the important cases are mentioned below:
Amazon-Future Group Deal case: In 2021, CCI, while exercising its extraordinary jurisdiction, suspended the 2019 approval order granted in favour of Amazon NV Investment Holdings LLC (Amazon) for the acquisition of Future Coupons Private Limited (FCPL) and fined Rs. 202 crores on Amazon on the ground that Amazon was found jumping the gun by giving false information to CCI about the reason for the combination, which in reality was to by-pass FDI restrictions, which violates Section 6(2) read with Section 43A of the Competition Act of 2002 (the Act) and Regulation 9(4) of the Combination Regulation. Further, the order was upheld by NCLAT.
Chhatwal Group Trust/Shrem Roadways Private Limited: In 2018, CCI imposed a penalty of Rs.10 lakh on Chhatwal Group Trust for violation of Section 6 read with Section 43A of the Act, on the ground that pre-payment of consideration by the acquirers in the form of ‘token money’ in advance of signing definitive transaction documents amounts to consummating a part of the combination before filing notice of the combination with the Commission and resulted in gun-jumping.
European Union (EU)
In the EU, the legal implications of ‘Gun Jumping’ are severe, with heavy sanctions imposed for procedural merger control infringements. In 2022, a total of €113.8 million in fines were imposed in 70 decisions across various jurisdictions, marking a 7% increase from 2021.
Canon Inc. vs. European Commission (2022): In 2022, the EU General Court upheld the European Commission’s order against Canon, which imposed a fine of €28 million for gun jumping on the ground that, in this case, the interim transaction and the ultimate transaction are to be considered as a single transaction because the interim transaction was a necessary step in the implementation of the overall transaction and a direct functional link with the change of control over the acquired entity before the acquisition was approved by the regulatory authority.
Altice Europe vs. Commission (2021): In 2021, the EU General Court upheld the European Commission’s 2018 order against Altice Europe, imposing a penalty of €124.5 million on grounds of gun jumping, violation of the obligation to notify and failure to comply with the standstill obligation before approval was obtained for the acquisition.
United States of America
United States vs. Gemstar-TV Guide International, Inc. & TV Guide, Inc. case (2003): An executive from TV Guide led negotiations to settle a patent dispute between Gemstar and another market player only because the discussed terms were against TV Guide interests. The Court found entities were in violation of Section 1 of the Sherman Act and Section 7a of the Clayton Act and imposed a penalty of $5.676 million on the ground that the negotiations reflected that the entities had aligned economic interests before the expiration of the waiting period or regulatory approval.
In the Re Insilco Corp. case: The court found Insilco in violation of Section 1 of the Sherman Act and Section 7a of the Clayton Act on the ground that during the pre-consumption period of the acquisition of a competitor by Insilco, there was an illegal information exchange of customer specific data.
Israel
Michlol-Berman Merger Case: In this case, the IAA found that the merging entities were in violation of the law due to gun jumping on the ground that they had carried out certain actions like the exchange of ‘token money’, revenue sharing, etc. in the period between signing the merger agreements and receiving the Director General’s approval.
Imagine Media-Kardan Israel Merger case: In parallel to signing an SPA, the merging entities also signed a loan transfer agreement, which the IAA found to be in violation of the law on the ground that the purchase of debt and the SPA should be viewed as consideration transfers for the merger before regulatory approval.
Conclusion
Gun jumping is a serious violation of merger control laws that can have significant consequences for the companies involved. By understanding the rules and regulations governing gun jumping and taking steps to avoid it, companies can help protect themselves from the potential penalties and other negative consequences of gun jumping. The rules and regulations governing gun jumping can change from time to time, so it is important to stay up-to-date on the latest developments.
Further, merging companies can follow safeguards to avoid gun jumping. These include:
After the acquisition process begins, adopt the ‘antitrust protocol’ to address the risk of gun-jumping by drafting a clause in the M&A agreement clearly providing parties conduct and obligations during the stand-still period.
Conducting thorough due diligence. Conduct thorough due diligence on the target company before entering into a merger agreement. This will help to assess target value and identify any potential antitrust issues that could lead to gun jumping.
Safeguard exchange of commercially sensitive information by maintaining data rooms, having clean teams of persons not involved in day-to-day business operations, redacting documents and having all persons involved sign non-disclosure agreements
The entity being acquired should perform all acts in the ordinary course of business to preserve the asset value of the target, which can be ensured by including covenants in the merger agreements.
Maintaining open communication with competition authorities during the process. Companies should keep competition authorities informed about their merger plans and should cooperate fully with any investigations.
Implementing effective internal controls and compliance programs. Companies should implement effective internal controls and compliance programs to ensure that they are in compliance with merger control laws.
Additionally, competition authorities should continue to enforce the rules against gun jumping and raise awareness about its implications to foster fair competition and protect the interests of shareholders and consumers.
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 Kunal Sinha and edited by Shashwat Kaushik pursuing MBA with Specialisation in Data Protection and Privacy Management (From Swiss School of Management). This article will analyse the current privacy laws in India in and how it stands in comparison with the EU’s GDPR. There are indisputable concerns which may arise with respect to following both the Personal Data Protection Bill (PDPB) vis-à-vis the General Data Protection Regulation (GDPR).
Privacy has been topic of debate in the Indian parliament the bill to regulate privacy of people in the age of technology has reached the fourth draft, therefore, this showcases the attempt of the Indian legislators to lay down a law which is all-encompassing with the ever evolving privacy concerns in today’s age of technology.
The other pillar of democracy, i.e the Judiciary, has in a catena of judgments has held the recognition of privacy as a fundamental right protected by the Constitution of India, close. The Apex Court of India has been steadfast in their approach to protect the privacy of people in India. Although one may argue that the European Union vide GDPR has been the torchbearer and has shown little tolerance to businesses who have taken the aspect of privacy with a grain of salt and has paid a heavy price in the form of penalties for violations.
On the other hand, the social and economic atmosphere is different in both EU and India. EU which is largely developed is easier to regulate than India which is still a developing country. Additionally, the lawmakers have to balance the interests of both companies and individual. India has shown to be the promise land for entrepreneurs and stringent privacy laws may act as a deterrence for companies to function as it will be an additional statutory burden for the companies to comply with. The autonomy of the individual to conduct a trade protected by Article 19(1)(g) of the Constitution of India and the Article 16 of the Charter of Fundamental Rights of the EU may ultimately be reticent with stringent legislation as proposed by both GDPR and PDPB. For example, a duty to obtain express consent imposed by the said regulations notwithstanding the contractual agreement between the Data subjects and Processors is an infiltration into the contractual terms between the parties.
The current scenario
The Regulatory Framework as it stands today in the current scenario is governed by the Information Technology Act of 2000 and the Information Technology Rules of 2011 (I.T Act). The current Act contains both criminal and civil sanctions/liabilities for unauthorised use of personal data. The compliance with the IT Act is not exhaustive and exclusive as compared to GDPR. The said Regulations have commonalities such as requirement for consent from the data subjects, specifically for any given purpose. Additionally, the concept of withdrawing consent is also present in both regulations.
When it comes to distinctions between the regulations, the GDPR is an extremely comprehensive framework for unauthorised processing, safeguarding, and creating accountability and transparency. Article 5 Rule 5 categorically ensures adherence to certain provisions and entitlements, such as erasure, restriction of processing and profiling. The same is not present in the Indian IT Act, which has led to the drafting of the Personal Data Protection Bill (PDPB).
The amount of data that is shared and collected today is massive and still, one may argue that it is barely the beginning or just the tip of the iceberg of the way data is collected, used and processed. An example of data theft is when personal data is used without the consent or knowledge of the individual. Therefore, it’s important for companies that act as controllers and processors to comply with the laws.
The area of privacy laws in India is still in a nascent stage so the execution and compliance of data laws in India still have a long way to go, but undoubtedly in the right direction.
To answer the issue at hand, i.e., will complying with India’s privacy law mean violating GDPR? It is critical to analyse the broad distinctions and similarities that exist between the GDPR and the PDPB.
Personal Data Protection Bill (PDPB) resembles, in essence, the GDPR
The notion of data controllers who bear the onus of safeguarding the personal data of people is present in both PDPB and GDPR. The principle of consent from the data subjects (people whose data are being used) The consent of consent is the most important aspect of data protection laws worldwide, as it has multifarious implications and can curb the misuse of data. For example: Details of bank accounts that may be collected by hackers to commit thefts.
The PDPB does not lay down the implications and executions for contractual performance as opposed to GDPR. The exclusion of contractual performance as a basis for data processing may act as a potential conflict for companies that conduct business in both India and the EU. Therefore, again, the onus is on the data officers of the company to comply with both of these laws. As a company, being compliant in India may not be in compliance with laws in the EU.
As per the guidelines of GDPR, there is an obligation on the controllers to make all efforts necessary to authenticate the consent from the parents when they are in the process of acquiring data from a minor (under 16 years old). On the other hand, the PDPB’s definition of a minor is in accordance with Indian law, which is below the age of 18. The PDP B is also silent on the rights and entitlements of the data subject with respect to the acquisition of the set data by the data controller. Moreover, the PDPB does not encompass the right of erasure under the right to be forgotten, in comparison with the GDPR.
Lastly, the GDPR requires that controllers appoint a DPO, who is a data protection officer, when there are activities undertaken that involve monitoring and controlling large amounts of data. On the other hand, the PDPB experience requires that all entities appoint a data protection officer, even if the core activity does not involve the processing of data. Additionally, for compliance with cross-border data flows arising from India, it is imperative to take into account the GDPR’s applicable restrictions.
Lack of uniformity with GDPR
Different countries have different goals and demographics, and the “one size fits all” approach may not be beneficial to the implementation and enforcement of privacy laws. The PDPR has a striking resemblance to the GDPR, and they both guarantee to provide a robust standard of data protection. The GDPR’s fundamental aim to guarantee a concrete plan of data protection for persons within the EU has not come without its downsides.
It has been calculated by the European Commission’s Impact Assessment that although there are overall benefits, the UK Ministry of Justice has stated that the expenses made in execution surpass the advantages. As per the European Centre for International Political Economy (ECIPE), implementation of GDPR has resulted in lower productivity and has created trade impediments, which in turn may have an adverse impact on the GDP as well. The drawbacks are noticeable, especially as the compliances between different jurisdictions may be constraining for trade and commerce.
The ease of doing business under uniform regulations globally is an attractive concept for businesses, but the same may not occur as priorities change from state to state. The research evaluating the impact of GDPR has revealed increased expenses, such as implementation, that would adversely impact small and Medium sized enterprises (SMEs). Additionally, the potential expenses that may be incurred for execution and adherence to laws similar to GDPR for a country like India are difficult to assess as India still has a substantial portion of businesses that are unregulated.
Conclusion
The EU has been a torch-bearer when it comes to legislation around privacy. India, on the other hand, has taken it’s due time and consideration to come up with privacy regulations. There are certain provisions in the IT Act of India that are similar to those in the GDPR, such as the need for consent, which has to be obtained from the data subject before the data controller can use the data. Furthermore, the need for specifically mentioning what that data will be used for is also a requirement under the IT Act and likewise under the GDPR. The same necessitated the creation of PDPB, as the IT Act was comprehensive and incapable of addressing the present issues arising with the changes in the world of technology. However, provisions such as the right to erasure and severe sanctions for non compliance are not present in the IT Act of India. This necessitated an exclusive law pertaining to privacy, which led to the PDPB. India’s PDPB bears a stark resemblance to GDPR and bridges the gap in compliance for companies. An examination of the differences between the PDPB and GDPR helps to evaluate the plausible scenarios when one endeavours to adhere to either of them. There are commonalities between the aforesaid regulations, such as necessitating obtaining consent from data subjects for data processing, along with notable differences. The GDPR provides a more structured method for handling protection and establishing accountability and openness. To summarise, it can be argued that there are potential risks of a breach of GDPR in adherence with the proposed PDPB and the current IT Act of India.
References
BURMAN, A. (2019). Will a GDPR-Style Data Protection Law Work for India? CARNIGIE, INDIA.
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
