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Union Budget 2023 : exemptions for agricultural land in the Income Tax Act

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Budget

This article has been written by Sandra Jim, pursuing a Diploma in US Contract Drafting and Paralegal Studies from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

A farmer is constantly battling the issues of low yield, poor farming infrastructure and technology, decreasing soil fertility, etc.; burdening him further with the liability of income tax on any capital gain arising from the sale of his agricultural land would only add to the misery. The Income Tax Act, 1961, under Section 54 gives a hand-holding to the farmers by way of exemption from the tax liability on the sale proceeds of agricultural land if invested in another agricultural land. This article aims to understand and demystify the concept of exemption for agricultural land and its implications or changes, especially in exemptions, if any, within the Union Budget 2023.

Exemption for agricultural land under Section 54b

The exemptions under this provision are provided on agricultural land depending on where it is situated, i.e., in a rural area or an urban area. The location of the land is determined to be rural or urban by aerially measuring the distance, which ranges from two to eight kilometres from the boundaries of the municipality. All capital gains arising from the sale of rural agricultural land are exempt without any condition but that is not the case for urban agricultural land. To avail of this exemption, the proceeds from the sale of the urban agricultural land should be reinvested in the new agricultural land itself.

There are a few basic conditions that need to be observed while claiming the benefit of the exemption on the sale of agricultural land under this section:

  1. The assessees should be a person or a HUF; this provision excludes companies, LLPs, and trusts.
  2. The land is to be agricultural land; it can be either a short-term or long-term capital asset but should have been used for a minimum of two years before the transfer by the individual, his family (parents) or member of the HUF. If the land is used for more than 2 years, it will be taxable at the rate of 20%, as it would be considered a long-term capital gain, whereas if used for a shorter period, it would be taxable at the slab rate and considered a short-term capital gain.
  3. After the sale of the agricultural land, new agricultural land in India has to be purchased within a period of two years.
  4. Claiming of “capital gains exemption” is to be done through filing of ITR – 2 (Income Tax Returns) for the particular financial year

What amount of exemption can be claimed

The exemption shall be the lower amount of:

  • Amount arising from the sale of agricultural land as capital gains, or
  • amount invested in the new agricultural land, including the amount in the “Capital Deposit Account Scheme”. This scheme comes in handy in a situation when the new land has not been purchased on the date of filing the returns; thus, in order to avail of the exemption, the unused amount can be deposited in this account in any public sector bank and withdrawn when purchasing the land within the prescribed time period. If this deposited amount is not utilised within the said period, it would be taxable as income.

Restriction on claiming exemption

In order to avoid the misutilization of the exemption by transferring agricultural lands on a roll, a restriction is placed on the sale of the new agricultural land. A streak of three years is to be maintained before selling the new agricultural land, and if the land is sold before this period, the exemption granted shall be withdrawn. In a simpler sense, when the assessee sells his newly purchased agricultural land within three years, the amount already claimed as an exemption would be deducted from the cost of acquiring the new land while calculating the capital gain on the sale.

Union Budget 2023 : interception

The Union Budget of 2023, with its objective of uplifting the Indian economy into a robust one through technology and knowledge. It is aimed at achieve the same through a core focus on infrastructure, inclusive development, youth, finance, etc. An unforgettable change has been brought to the tax regime of personal tax by raising the exemption limit in the tax slab. Among others, the Union Budget has brought about reductions, exemptions, funds, etc.

When observing the budget’s take on the exemptions on capital gains, it has put a cap on the exemptions available under Sections 54 and 54F, i.e., now there is a limit on the exemption that can be availed of on capital gains.

Limiting the benefit claimed under Sections 54 and 54F

Contract drafting

Sections 54 and 54F enable the claiming of deductions on the gains from long-term capital assets such as house property, gold, and other capital assets, respectively, and reinvestment through the purchase of residential property. These provisions allow the assessee to claim the deduction when the sale of the long-term asset has been done and a residential property has been purchased within two years, one year before the sale or if he has constructed a residential house within three years.

The initial objective of these provisions was to address the issue of acute housing shortages and stimulate house building. Throughout the years, it has been observed that wealthy assessees and those of high net worth have claimed deductions of a shedload while purchasing expensive and luxurious housing properties.

The Union Budget 2023, to put a halt to the misuse of these provisions to the advantage of the assessees, has brought about a limit on the maximum deduction that can be claimed by the assessee. Now, the maximum deduction that can be allowed is ten crore rupees. Thus, when the property is of a value higher than ten crores, the cost of such property would be deemed to be ten crore rupees. Further, the provision for deposit into the Capital Gains Account Scheme would only apply to a net consideration of up to ten crores.

This cap will apply in relation to assessment years from 2024-25 onwards. As mentioned earlier, the cap was placed so as to reduce the undermining of the purpose of these provisions and ensure tax liability arises from the hefty purchase or construction of housing properties.

Comparison of Section 54B and 54 and 54F of the Income Tax Act, 1961

While comparing the three provisions, it can be observed that Section 54B has not attracted any changes or amendments through the Union Budget 2023. While Sections 54 and 54F have placed limitations on the exemptions to be claimed, the Budget did not create such a condition in the case of capital gains arising from the sale of agricultural land.

Though not explicitly explained, by analysing the objective of the provision of Section 54B, it is to be understood that the objective is to act as a relief to agriculturists in shifting their land of agriculture or promoting their house-building activities. Thus, placing a limit on this exemption would drastically impact the whole objective and vision of the provision.

If a limit had been placed, the provision would demotivate farmers and agriculturists and negatively impact agricultural continuity. Further, it would hinder the facilitation of the transition from one agricultural land to another, the reduction of a significant tax burden, and investments in other agricultural land. If a limit is placed, the farmers would be disheartened to further invest in new pieces of land or housing activities, fearing the additional burden of tax and other liabilities that might fall upon them. This tax relief is an encouraging factor for farmers amidst the various hardships they face in making a living through agriculture.

Further, another main difference among these provisions is that Sections 54 and 54F sanction the purchase of new land even prior to the transfer of the old one, while Section 54B strictly prohibits this practice and mandates the purchase of new land after the transfer of the old. Thus, the provision under Section 54B seems less flexible and stringent, as alleged by various scholars and legal professionals. It is also argued that the provision under Section 54 is not in line with other provisions of the Act and creates disparities within the statute.

Though the provision is inconsistent with the provisions under Sections 54 and 54F and creates difficulty for the taxpayers in claiming the exemptions, it is done to serve the whole objective of the provision. In order to ensure that the reinvestment is genuinely done on a new agricultural land itself and also prevent the manipulation of the provision of exemption to the needs of any individuals. The provision aims to serve the purpose of development and continuity in agricultural activities; thus, certain elements of flexibility might affect and destroy it.

Paras Chinubhai Jani vs. Principal Commissioner of Income-tax (2019)

The case law adjudged in the year 2019 is one where the Assessing Officer has disallowed the exemption under Section 54B on part of the capital gain from the sale of the agricultural land that was invested in a new one prior to the transfer of the capital asset. The Tribunal has reiterated the provision to be clear and unambiguous; thus, claiming deduction under the provision in respect of land acquired before the transfer of the capital asset is clearly opposed to the mandates stretched out under the provision and is in violation of the language and intent of the Act. Therefore, it is not sustainable and is invalid.

This case highlights the mandate of the provision and ensures it is not manhandled to satisfy the convenience of taxpayers.

Conclusion

The Union Budget 2023 has not touched on the provisions under Section 54B while bringing changes and amendments to a majority of tax provisions and exemptions. Opinions on this matter seem to differ from the perspective of the government, as professionals point out the need for the provision under Section 54B to be in line with the provisions under Sections 54 and 54F, thereby eliminating disparities and, moreover, reducing the administrative burden on taxpayers. By doing so, the tax system would bring equality, fairness, and efficiency.

The government, on the other hand, opines the legislative point of view and intent of the legislation, which is not to be structured to fit the convenience of taxpayers. Further, it believes such an amendment would make the provisions more flexible, attracting misuse of the provision at a rate higher than the present.

Finally, the Tax Department has always created an incentive to the agricultural sector, be it agricultural income or exemptions on the sale of agricultural land, etc. Thus, the non-limitation of the exemption under Section 54B is in furtherance of this incentive and objective of facilitating growth and development for farmers and agriculturalists. Apart from these, the Union Budget has brought about the “Agriculture-Accelarator Fund” and an increase in agriculture credit, all to develop the agricultural sector. Thus, the government is acting in furtherance of the development of the economy and also aiding the agricultural sector and its stakeholders to contribute to the same.

References


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All about Bihar judiciary exam

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Insolvency of parties

This article is written by Zehra Jamal, a student of Dr. Ram Manohar Lohiya National Law University. The article deals with multi-dimensional aspects of Bihar Judicial Services Exam, including but not limited to the scope, eligibility, syllabus, books, tips & tricks to qualify the exam, etc. The article tries to cover the maximum information present in public domain on the Bihar Judicial Services Exam in an analytical manner.

It has been published by Rachit Garg.

Table of Contents

Overview of Bihar judiciary exam

The Bihar Public Service Commission recently conducted the preliminary examination for the 32nd Bihar Judicial Services Exam, also known as the Bihar PCS J exams. The results of the exams have been published by the BPSC recently and the timeline for the second stage of the paper, which is the Mains paper of the Bihar Judicial Services Exam has also been released. The mains examination of the Bihar Judicial Services Examination is expected to be held from 25th November 2023 to 29th November 2023. The dates are however tentative and can be changed due to unavoidable or unforeseeable circumstances. 

The Bihar Public Service Commission body conducts the exam every year to recruit candidates for various posts in the courts in Bihar. There are two ways to become a judge in the State of Bihar. One is by qualifying for the examination for higher judiciary after practising for seven years in any district or High Court. The second way is by cracking the Bihar Judicial Services Examinations (PCS J), which the Bihar Public Service Commission conducts. By cracking it, you’re appointed as a civil judge in the lower judiciary in Bihar.

In this article, we will discuss everything about the Bihar PCS J exams and try to answer any doubts the aspirants have in their minds. 

What is Bihar judiciary exam

The Bihar Judicial Services Exam is conducted to recruit candidates for the vacancies in various posts in the civil courts in Bihar. The Bihar Public Service Commission is the body that conducts the Bihar Judicial Services Examination.

When is Bihar judiciary exam conducted

The papers of the Bihar Judicial Services Exam are usually conducted when the vacancies for the civil judge post arise in the state of Bihar, and the same is notified to the public through a notice by the Bihar Public Service Commission. The preliminary papers of the PCS J are conducted three to four months before the Mains, and the interview stage is followed by the exam results, which are usually declared a few months after the Mains examination. This year, the preliminary examination of the 32nd Bihar Judicial Services Exam was conducted on Sunday, 04 June 2023, and the result was recently released in the last week of September 2023. The tentative dates for mains examination is the last week of November 2023. The dates of the interview shall be notified later on, after the successful conduction of the mains exam and issuance of its result. 

Where is Bihar judiciary exam conducted

The preliminary papers of the Bihar Judicial Services Examination are conducted across various centres (1000+) in the 38 districts of Bihar. The Mains paper on the same is conducted mainly in the city of Patna. The interview of the selected candidates is held at the office of the Bihar Public Service Commission, located at Jawaharlal Nehru Marg, in Patna.

How is Bihar judiciary exam conducted

The Bihar Judicial Services Examination is conducted offline (pen-paper mode) across various centres in the state of Bihar. The interview stage of the Bihar Judicial Services Examination is conducted at the office of the Bihar Public Service Commission, which is located in the city of Patna.

Important details of Bihar judiciary exam

Even during the phase of preparation, a candidate has so many doubts on the details of the examination they are preparing for; the most important of them, of course, includes the details of the post on which they will be appointed, their designation, remuneration, allowances, etc. So, in this part of the article, we will discuss important things associated with the Bihar Judicial Services Examination. 

Brief details on the post of civil judge for Bihar judiciary exam

According to the official notification of the Bihar Public Service Commission body, present on its website, there are a total of 155 vacancies for the post of civil judge in the State of Bihar.  

The minimum educational qualification of a candidate to become a civil judge in the State of Bihar is graduation in law (5 years or 3 years). 

Designation

When a candidate successfully clears all three stages of the Bihar Judicial Services Exam and qualifies for the merit list, he/she joins the Bihar Judicial Academy situated in Patna – the capital city of Bihar, which is the apex training institute for the judicial officers of Bihar Cadre. After the training period, the candidate is appointed as a civil judge in a lower court of the state. 

Salary and allowances after getting selected for Bihar judiciary exam

The Bihar state gives allowances and salaries to judges based on their ranking. For a junior civil judge, the salary ranges from Rs. 27700 to Rs. 44700; for a senior civil judge, it ranges from Rs. 39530 to Rs. 54010, and so on. The state also provides several allowances, including but not limited to:

  • Medical allowance.
  • Conveyance allowance.
  • Child education allowance.
  • Travel allowance.
  • House rent allowance.
  • Electricity and medical charges.
  • Specific location allowance.

The position also offers various other allowances. The allowances also increase with promotion and years.

Tabular representation of Bihar judiciary exam 2023-24

Name of the ExamBihar Judicial Services Exam
Name of the exam conducting examBihar Public Service Commission (BPSC)
Official website of the conducting bodyhttps://www.bpsc.bih.nic.in/ 
Minimum qualificationGraduation in law from any college recognised by the Bar Council of India.
NationalityIndian
Minimum age to appear in the exam
General category – 22 years
Reserved category – 22 years
Maximum age to appear in the exam
General category – 35 years
Reserved category – 40 years
Any bar on number of attemptsNo, except for the maximum age as prescribed 
Stages of the exam3 stages – prelims exam, Mains exam and viva voice/interview
Designation of the postCivil Judge
Total number of vacancies 155 (One hundred and fifty-five)
Official notificationhttps://bpsc.bih.nic.in/Advt/NB-2023-02-20-04.pdf 
Date of notification issuedFebruary 20, 2023
Date of opening of online application window (preliminary examination)February 27, 2023
The last date to apply for the application (preliminary examination)March 27, 2023
Correction window period for the online formTill May 05, 2023
Date of admit card releaseMay 31, 2023
Date of prelims examJune 03, 2023
Date of issuance of prelims exam resultSeptember 26, 2023
Date of opening of online application window (Mains examination)October 05, 2023
The last date to apply for the application (mains examination)October 25, 2023
Date of Mains examNovember 25, 2023 to November 29, 2023 (tentative date)
Date of viva voice/personal interviewYet to be declared
Date of issuing the final resultYet to be declared
Registration fees (preliminary examination)
General and OBC category – 600 Rupees
SC and ST category – 150 Rupees
Registration fees (mains examination)
Scheduled caste and scheduled tribes of Bihar, women residents of state of Bihar, PWD candidates – 750 Rupees
General category and all other category candidates which are left – 200 Rupees
Mode of applicationOnline 
Mode of examinationOffline (pen – paper based)
Types of questions in prelims examObjective (Multiple choice questions)
Negative marking in prelims examNo 
Types of questions in Mains examSubjective questions 
Total number of papers in prelims examTwo papers
Total number of papers in Mains examFive papers
Total number of optional papers03 out of 05 options
State Bihar
Credentials of the job Bihar Government Job (Judiciary department)

Vacancies for Bihar judiciary exam 2023-24

According to the official notification for the Bihar Judicial Services Exam 2023-24, which has been released by the Bihar Public Service Commission, there is a total vacancy of 155 seats for the posts of civil judge in the state of Bihar. The distribution of the seat matrix for these 155 seats is given as below:

Category of the CandidateNo. of seatsSeats reserved for women candidates’
General Category61 23
OBC Category3010
SC Category2907
ST Category0201
EWS Category1504
BC Category1806
Total 155 51 

An important point to note is that the benefit of reservation based on caste will be given only to those candidates who are permanent native residents of the state of Bihar. 

Previous year vacancies in Bihar Judiciary

The vacancy for the post of civil judge in the state of Bihar keeps fluctuating according to the need in the judicial department. The schedule of the exam was also interrupted for a few years because of the deadly pandemic. Let us have a look at the vacancies for the post of civil judge in the state of Bihar for the past few years:

Vacancies in the year 2020

For the year 2020, there were a total of 221 vacancies for the post of civil judge in the state of Bihar. Out of these 221 vacancies, a total of 79 seats were reserved for women (including the caste based reservation), 47 seats for OBCs, 35 seats for SCs, 2 seats for STs, 26 seats for BCs and 23 seats were reserved for the EWS. 

Vacancies in the year 2018

For the year 2018, there were a total of 349 vacancies for the post of civil judge in the state of Bihar. Out of these 349 vacancies, a total of 123 seats were reserved for women (including the caste based reservation), 73 seats for OBCs, 56 seats for SCs, 3 seats for STs, and 42 seats for BCs. At that time, there was no reservation for candidates belonging to the EWS category. 

Vacancies in the year 2017

For the year 2017, there were a total of 194 vacancies for the post of civil judge in the state of Bihar. Out of these 194 vacancies, a total of 70 seats were reserved for women (including the caste based reservation), 41 seats for OBCs, 31 seats for SCs, 2 seats for STs, and 23 seats for BCs. At that time, there was no reservation for candidates belonging to the EWS category.

Criteria for reservation in Bihar judiciary exam 

The vacancies in the Bihar Judicial Services Exam provide reservations to Bihar native candidates belonging to the following categories:

Category of the candidatesPercentage of reservation 
Other Backward Castes (OBCs)27%
Scheduled Caste (SC)15%
Scheduled Tribe (ST)7.5%
Economically Weaker Section (EWS)10%
Total 59.5%

Some important points regarding reservation in Bihar judiciary exam

The following important points are also needed to be kept in mind while applying for the above reservation in the Bihar Judicial Services Exam:

  1. The reservation is given to only native residents of the state of Bihar and therefore, while applying for the reservation, only permanent addresses will be accepted.
  2. For candidates belonging to the Scheduled Caste, Scheduled Tribe, Other Backward Caste or Backward Caste, the caste certificate is also required, apart from the permanent address and domicile certificate.
  3. For the candidates belonging to the Other Backward Caste and Backward Caste, the non – creamy layer certificate is also required, apart from the caste certificate, permanent address and domicile certificate.
  4. A candidate will not be allowed to take advantage of the reservation criteria if they fail to produce all the above certificates (as required) during the initial phase of the interview.
  5. For the benefit of reservation under the disability criteria, the candidate is required to furnish the disability certificate in the prescribed form approved by the competent authority. Failing to do so will lead to the non applicability of the reservation to the candidature. 
  6. Once the appointment process is started/ongoing, the reservation criteria can not be modified or altered. 

Eligibility criteria for Bihar judiciary exam 

The eligibility for the Bihar Judicial Services Examination is categorised into the following parts:

  • Eligibility criteria for the Unreserved category
    • Maximum age criteria for males
    • Maximum age criteria for females
  • Eligibility criteria for the Reserved category

Eligibility criteria for the Unreserved category

For the candidates belonging to the unreserved category, the following criteria are common for both males and females:

  1. The candidate must be a citizen of India.
  2. The candidate must be a law graduate from a college or university recognised by the Bar Council of India.
  3. The candidate must be 22 years of age or older.

Maximum age criteria for males – The maximum age criteria for unreserved males is 35.

Maximum age criteria for females – The maximum age criteria for unreserved females is 40.

Eligibility criteria for the reserved category

For candidates belonging to the reserved category, these are the criteria for the Bihar Judicial Services Exam:

  1. The candidate must be a citizen of India.
  2. The candidate must be a law graduate from a college or university recognised by the Bar Council of India.
  3. The candidate must be 22 years of age or older.
  4. The candidates must be at least 40 years old.

Stages of Bihar judiciary exam

The examination pattern of the Bihar Judicial Services Exam is divided into the following subtopics:

  1. Preliminary Examination – paper 1 and paper 2
  2. Mains Examinations
  3. Viva Voice/Personal Interview

Preliminary stage of Bihar judiciary exam

The preliminary examination of the Bihar Judicial Services Exam is objective in nature and is divided into two papers, which are as follows:

Paper 1 – The first preliminary paper of the Bihar Judicial Services Examination is based on general knowledge and current affairs. It is an offline, multiple-choice paper consisting of 100 questions. The duration of the paper is one and a half hours.

Paper 2 – The second preliminary Bihar Judicial Services Examination paper is based on legal topics. It is an offline, multiple-choice paper consisting of 150 questions. The duration of the paper is two hours.

Criteria for negative marking – There are no criteria for negative marking in the Bihar Judicial Services Examination. So, if you mark an answer as incorrect or leave the question unattempted, no marks will be deducted for the same.

Both the preliminary papers of the Bihar Judicial Services Examination are qualifying in nature. Each correct answer in the paper will award you one mark and zero marks for wrong/unattempted answers. The minimum qualifying score for the unreserved category candidates is 45%, and for the reserved category, the score is 40%.

Tabular representation of the Bihar judiciary preliminary exam

                               Paper 1Paper 2
SyllabusGeneral studies and current affairsLegal topics
ModeOfflineOffline
Total number of questions/marks100150
Marks for the correct answer0101
Marks for incorrect/unattempted0000
Type of questionMCQMCQ
Time limit1.5 hours (90 minutes)2 hours (120 minutes)
Qualifying marks40% for reserved categories and45% for the unreserved category

Mains examination stage of the Bihar Judicial Services Exam  

The main examination of the Bihar Judicial Services Exam is subjective in nature and is divided into the following papers:

Five mandatory papers:

  1. General Knowledge and Current Affairs
  2. Elementary General Science
  3. General Hindi
  4. General English
  5. Law of Evidence and Procedure

Three optional papers out of the following papers:

  1. Constitutional and Administrative Law of India
  2. Hindu Law and Mohammedan Law
  3. Transfer of Property, Principal of Equity, Law of Trust, and Specific Relief Act
  4. Law of Contracts and Torts
  5. Commercial Law

All these papers are subjective in nature. Amongst the five compulsory papers, the papers of General English and General Hindi are qualifying, and their marks need not be added to prepare the final merit list of Bihar Judicial Services Examinations. The qualifying marks of these papers are 30% of the total marks. Before moving forward, we can sum up the exam pattern of the Mains examination of the Bihar Judicial Services as follows:

Tabular representation of Bihar judiciary mains exam 

For compulsory papers

S. No.SubjectsPaper CodeMode of ExaminationType of QuestionsTime LimitMax Marks
1.      General Knowledge and Current Affairs01Offline  Subjective  03 hours150
2.      Elementary General Science02OfflineSubjective  03 hours100
3.      General Hindi03OfflineSubjective  03 hours100
4.      General English04OfflineSubjective  03 hours100
5.      Law of Evidence and Procedure05OfflineSubjective  03 hours150

For optional papers

S. No.SubjectsPaper CodeMode of ExaminationType of QuestionsTime LimitMax Marks
1.      Constitutional and Administrative Law of India06Offline  Subjective  03 hours150
2.      Hindu Law and Mohammedan Law07OfflineSubjective  03 hours150
3.      Transfer of Property, Principal of Equity, Law of Trust, and Specific Relief Act08OfflineSubjective  03 hours150
4.      Law of Contracts and Torts09OfflineSubjective  03 hours150
5.      Commercial Law10OfflineSubjective  03 hours150

Viva-voice or the personal interview stage

The candidates who successfully clear the Mains examination of the Bihar Judicial Services Examination are called for a viva voce or personal interview. The interview is held at the office of the Bihar Public Service Commission, which is located in the city of Patna. The interview consists of a total of 100 marks. The final merit list will be prepared based on the applicant’s marks in the Mains examination (except for the qualifying paper) and the personal interview. For a candidate to make it to the final merit list, they must score at least 35% of the total marks allocated to the viva voce/personal interview.

Syllabus of Bihar judiciary exam

The syllabus of the Bihar Judicial Services Examination is divided into the following subparts:

  1. Syllabus of the Preliminary Examination
  2. Syllabus of the Mains Examination
  3. Syllabus of Viva Voice or the Personal Interview

Syllabus of Bihar judiciary prelims exam

The preliminary Bihar Judicial Services Examination has two papers, as discussed above. Let us now have a look at the syllabus for both papers:

Paper 1: General Knowledge and Current Affairs:

For the current affairs part, you must read a newspaper daily, preferably the Indian Express or any other newspaper that keeps you updated with current affairs. You can also follow some good weekly/monthly magazines for current affairs. It would be best if you also focused on recent developments around you.

The preparation for the general knowledge part should focus on history, geography, politics, economy, and general science. The important topics to be studied in the following arts are summarised below:

History

  1. Particular focus is on broad aspects of the history of Bihar and the important nationalist movements arising out of the State of Bihar, their important freedom fighters, etc.
  2. History of Ancient, Mediaeval, and Modern India.
  3. History of Indian Independence and important independence heroes.
  4. Important Indian national movements and how they created an impact.
  5. World War I and World War II.
  6. The impact of the World Wars on India.
  7. Important peace pact involving India.
  8. History of the Constituent Assembly and Constitution of India.
  9. History of India after independence and the consolidation of states.
  10. Cultural and social history of India.

Geography

  1. Emphasise the geography of India and the State of Bihar.
  2. Major rivers in Bihar and geographical division of the State of Bihar.
  3. Geography of India and the division of resources.
  4. The focus should also be on Indian natural and agricultural resources.
  5. Physical geography of Earth, atmosphere, solar system, climatology, Geomorphology, Oceanography, etc.
  6. Essential geographical techniques like latitude, longitude, surveying, fieldwork, statistical methods, geographical information systems, etc.
  7. Essential aspects of cartography include map projections, map reading, map making, map marking, types of maps, remote sensing, etc.
  8. Human geography and important sustainable factors, including all kinds of geography such as economic, social, cultural, political, urban, rural, etc.
  9. Environmental geography, like pollution, biodiversity, sustainable development goals, environmental hazards, etc.

Polity

  1. Panchayati Raj, political system, community development, etc., in Bihar and India.
  2. Constitution of India, union and states, fundamental rights, directive principles of state policy, fundamental duties, etc.
  3. Executive, judiciary, and legislature.
  4. Interstate relations and center-state relations.
  5. Constitutional amendments and emergency provisions.
  6. Indian political system and political parties.
  7. Public administration and local self-governance.

Economy

  1. Basic concepts of the Indian economy and the economy of Bihar.
  2. GDP, GNP, population growth, national income, etc.
  3. RBI monetary policy, fiscal policy, Indian banking system, and nationalisation of banks.
  4. International trade and balance of payments.
  5. Indian agriculture, industry, and service sector.
  6. Important world organizations, world policy developments, etc.

General Science

  1. Origin and evolution of life on Earth.
  2. Biological classification and five kingdom classification of plants and animals.
  3. Development in science and technology.
  4. Communications and space, magnetic field, gravity, etc.
  5. University, solar system, stars, sun, etc.
  6. India’s nuclear programs.
  7. Carbohydrates, proteins, vitamins, fats, minerals, etc.
  8. Cells and tissues.
  9. Human digestive systems, respiratory systems, neural systems, excretory systems, etc.
  10. Glands, muscular, and skeletal system.
  11. Diseases, blood group, circulatory system, immunity, etc.
  12. Drug and alcohol abuse.
  13. Sex determination, laws on inheritance, genetic disorders, etc.
  14. Atomic theory, biotechnology, etc.

Paper 2: Legal topics

In paper 2 of the preliminary examination of the Bihar judicial service examination, questions are asked about the following topics of law:

  1. The law of evidence and procedure.
  2. Constitutional and administrative law of India.
  3. Hindu law and Mohammedan law.
  4. Law on the transfer of property, principles of equity, law of trusts, and specific relief act.
  5. The law of contracts and the law of torts.
  6. Commercial law.  

Syllabus of Bihar judiciary mains exam

The Mains exam of the Bihar Judicial Services examination has five compulsory papers and three optional papers to be chosen from five subjects, as already discussed above. Let us now have a look at the syllabus for these papers.

Compulsory papers

The syllabus for the compulsory papers in the Bihar Judicial Services Exam is as follows:

Paper 1: General Knowledge and Current Affairs

  1. Current events of national and international importance
  2. The history and Culture of India and Bihar
  3. The geography of India and Bihar
  4. The economy of India and Bihar
  5. The polity of India and Bihar

The candidates must remember that the above-given topics must be read in detail with the subtopics already provided with the preliminary examination syllabus. They have to be read more broadly than the preliminary syllabus. The questions in this subject will test a candidate’s common knowledge of general knowledge and current affairs, and no specialised questions will be asked.

Paper 2: Elementary general science 

This paper will check the candidate’s ability to understand and observe scientific aspects in their everyday experiences. It will not be asking such advanced questions, which are expected to be known by a person who has done advanced studies in science. The following subtopics will be asked, mainly:

  1. Origin and evolution of life on Earth.
  2. Biological classification and five kingdom classification of plants and animals.
  3. Development in science and technology.
  4. Communications and space, magnetic field, gravity, etc.
  5. University, solar system, stars, sun, etc.
  6. India’s nuclear programs.
  7. Carbohydrates, proteins, vitamins, fats, minerals, etc.
  8. Cells and tissues.
  9. Human digestive systems, respiratory systems, neural systems, excretory systems, etc.
  10. Glands, muscular, and skeletal system.
  11. Diseases, blood group, circulatory system, immunity, etc.
  12. Drug and alcohol abuse.
  13. Sex determination, laws on inheritance, genetic disorders, etc.
  14. Atomic theory, biotechnology, etc.

Paper 3: General Hindi 

The level of this paper will be equivalent to the level of Hindi language of those students who are continuously studying Hindi from the fourth grade in the schools of Bihar. The paper will check the abilities of the candidates to convey their thoughts clearly and nicely in Hindi. The paper will also check the intuitive understanding of the candidates on various simple topics. The paper will mainly comprise the following things:

  1. Essay writing in Hindi
  2. Basic hindi grammar
  3. Reading comprehension
  4. Precise writing

Paper 4: General English 

The purpose of this paper is to judge a candidate’s understanding of the English language. The questions in this paper will primarily be on the following topics:

  1. Synonyms and antonyms
  2. Reading comprehension
  3. Summary or precise writing
  4. Spotting errors in phrases and sentences
  5. Spelling test
  6. Word analogies
  7. Letter writing
  8. Idioms and phrases
  9. Rearranging sentences
  10. Usage of propositions

Paper 5: Law of evidence and procedure 

The paper on the law of evidence & procedure will broadly cover the following topics:

  1. Indian Evidence Act, 1872
  2. Civil Procedure Code, 1908
  3. Arbitration and Conciliation Act, 1996
  4. Code of Criminal Procedure, 1973
  5. Provincial Small Cause Courts Act, 1887

Optional papers

The syllabus for the compulsory papers in the Bihar Judicial Services Exam is as follows:

Paper 1 – Constitutional and administrative law of India 

The following topics will be covered in this paper:

Constitutional law:

  1. The Constitution of India, 1950Article 1 to Article 395
  2. Schedules of the Constitution of India

Administrative law:

  1. Delegated legislation
  2. Control of delegated legislation – judicial & legislative 
  3. Fair hearing; Rules of natural justice; Rules against bias; Audi Alteram Partem
  4. Tribunals and quasi-judicial authorities; Judicial control over them
  5. Judicial review of administrative action
  6. Writ jurisdiction and statutory judicial remedies, scope, extent and distinction
  7. Public Interest Litigation (PIL)
  8. Tortious liability of state and compensation
  9. Promissory Estoppel, Legitimate Expectation and Doctrine of Proportionality
  10. Government contracts
  11. Ombudsman 

Paper 2 – Hindu law and Mohammedan law 

The following topics will be covered in this paper:

Hindu law:

  1. Two Hindu schools of law – Mitakshara School and Dayabhaga School
  2. Hindu law on marriage
  3. Hindu law on adoption
  4. Hindu law on impartible state
  5. Hindu law on endowment

Mohammedan law:

  1. Mohammedan law on marriage
  2. Mohammedan law on adoption
  3. Mohammedan law on wills
  4. Mohammedan law on the legitimacy
  5. Mohammedan law on acknowledgement
  6. Mohammedan law on guardianship

 Paper 3 – Transfer of property, principal of equity, law of trust, and Specific Relief Act 

The following topics will be covered in this paper:     

  1. The Transfer of Property Act of 1882
  2. History of the court of equity, maxims, origin of use, etc.
  3. Definition of trust and development of trust.   
  4. Types of transactions, including express transactions, implied transactions, public transactions, private transactions, constructive transactions, benami transactions, etc.
  5. Advancement of trust, determination of trusts, and remedies for breach of trusts.
  6. The Indian Trust Act of 1882.
  7. The Specific Relief Act of 1963.                                 

Paper 4 – Law of Contracts and Torts 

The following topics will be covered in this paper:     

  1. The Indian Contract Act of 1872.
  2. The law of torts.
  3. General principles of liabilities.
  4. Injuries to persons, public nuisance and private nuisance, remedies, etc.
  5. Injuries to domestic and contractual obligations and relations.
  6. Assault
  7. False imprisonment.
  8. Negligence and its remedies.
  9. Defamation – slander and libel.
  10. The rule in Rylands vs. Fletcher (1868).
  11. Conspiracy and malicious prosecution.

Paper 5 – Commercial law 

The following topics will be covered in this paper: 

  1. Negotiable instrument
  2. Sales of goods
  3. Company law
  4. Partnership

Marking scheme for Bihar judiciary exam 2023 – 24 

For preliminary examination 

The preliminary examination of the Bihar Judicial Services Exam 2023-24 consists of two papers. Paper 1 was based on general studies and current affairs, while Paper 2 was based on legal topics. 

Paper 1 contained a total of 100 questions of one mark each, while Paper 2 had 150 questions of one mark each. There were no criteria for negative marking for the unattempted and wrong question. The preliminary examination of the Bihar Judicial Services Exam is qualifying in nature and for a candidate to qualify the preliminary examination, they have to score a minimum of 45% (for candidates belonging to the general category) and 40% (for candidates belonging to the reserved category). 

For Mains examination

The Mains examination of the Bihar Judicial Services Exam 2023-24 consists of two types of papers – compulsory papers and optional papers. 

There are a total of five compulsory papers in the Bihar Judicial Services Exam 2023-24, of which the two papers of general English and general Hindi (of 100 marks each) are qualifying in nature. The candidates have to score a total of 30% of the total marks in both of these papers to qualify. The other three compulsory papers are general knowledge and current affairs (150 marks), elementary general science (100 marks), and law of evidence and procedure (150 marks). The marks from these three papers are added to the final merit list. 

There are a total of five optional papers in the Bihar Judicial Services Exam 2023-24, of which a candidate has to choose three papers. The papers are – constitutional law and administrative law of India; Hindu law and Mohammedan law; transfer of property; principle of equity; law of trusts and Specific Relief Act; law of contracts and torts; and commercial law. All these papers are of 150 marks each and the marks of all the optional papers are added to make the final merit list.

The marks of the three compulsory papers (total – 400 marks) and the marks of the three optional papers (450 each) will be added to the final merit list for the preparation of the results of the Bihar Judicial Services Examination 2023-24. 

For viva voice or the personal interview

Once a candidate successfully qualifies for the merit list of the Mains examination of the Bihar Judicial Services Examination 2023-24, they are eligible to appear for the viva voce or the personal interview.

The viva voce or personal interview, of the Bihar Judicial Services Examination 2023-24 consists of a total of 100 marks and to qualify for the viva voce, the candidate has to score at least a minimum of 35% of the total marks allocated to the interview part. 

Thus, the final merit list of the Bihar Judicial Services Examination 2023-24 comprises a total of 950 marks, of which 400 marks are for the compulsory paper of the main examination, 450 marks for the optional papers of the Mains examination and 100 marks for the viva voce or personal interview.

How to start your preparation for Bihar judiciary exam 2023-24

This part will discuss how to kickstart your preparation for the Bihar Judicial Services Examination. We will bifurcate this part into the following three sub-parts:

  1. How to prepare for the preliminary examination
  2. How to prepare for the Mains examination
  3. How to prepare for the viva voice/personal interview

But before we move forward to these three sub-parts, we will discuss a few crucial points that a candidate should follow before kick-starting their preparation for all three phases of the Bihar Judicial Services Examination. These points include but are not limited to:

  • Make up your mind for the competition – Before starting any new work, one has to make up their mind for the same, which applies more accurately when it is about a competitive exam. Ensure you understand the amount of patience, diligence, time, dedication, perseverance, and hard work it requires to crack the exam. Understand the positive and negative aspects of the competition. And then, make sure that you are ready for everything.
  • List down your reasons for giving the exam – This may sound a little unnecessary now, but once you start the preparation, the amusement fades away. The competition’s colour becomes darker, and then you need a reason to stand by your decision to take the exam. In hard times, these reasons will give you the hope and power to work hard to achieve your goal. So, pen down your reasons for the same and stick to them always.
  • Get the hang of the syllabus and the exam pattern – Now that you have decided to move forward with the preparation, get the hang of the syllabus of the examination first. It is the first and foremost thing when preparing for any examination. Identify the syllabus and crucial topics for your study. Save a picture of the syllabus and the exam pattern in your mind, and always abide by it.
  • Know your study resources – After understanding the syllabus and the exam pattern, identify the vital book, online and offline resources, etc.—that will help you and guide you in preparation for the examination. Collect all the essential resources and study them regularly.
  • Make your strategy and timetable – After finalising the study resources and materials, devise a timeline that is comfortable for you to follow and then follow it regularly. Ensure that your timetable gives time to every subject of the examination according to their weightage.
  • Make a revision strategy – All your studies and preparation will go in vain if you do not regularly revise what you are studying, so make a revision strategy and give sufficient time to revise everything you learn. This will make things easier for you when the exam is nearby.
  • Be disciplined – If you are not disciplined in your approach, studying and preparing for your exam will mean nothing and be wasted. So, remember to always be disciplined in your approach. Remember to abide by your timetable and the revision strategy you made.
  • Interact with people who have already qualified for the examination – This is very important, as they must have been in your place at some point. They successfully managed to crack the examination. Try to understand how they did what they did. Do not copy exactly what they did, as it might not work for you, but try to devise a feasible strategy for yourself.

Now we will move forward with how to start a specific phase of preparation. We will begin with the first part, that is, the preliminary examination:

Bihar judiciary Preliminary exam 2023 – 24 

To start your preparation for the preliminary examination, the following points should be kept in mind and followed for a better and more effective result and to qualify for the examination.

For Paper 1

  • Identify your current affairs resources – Since it is crucial for Paper 1 to be updated with current affairs, identify the resources you will be studying current affairs from.
  • Read daily newspapers and editorials – Make sure you read an English newspaper daily and, more importantly, analyse the critical articles in the newspaper. This will enhance your current affairs and help with reading comprehension and other topics in the general English paper.
  • Identify books and other vital resources for the general knowledge part – Paper 1 tests your current affairs and general knowledge, so make sure to identify your resources for general knowledge and stick to it.
  • Analyse the previous year’s papers – Find out the important topics and repeated questions from the previous year’s papers and focus more on them. Prepare those topics and questions more thoroughly.
  • Give time-bound tests and mock papers – Side by side of your preparation, keep giving time-bound tests and mocks to provide you with an actual taste of how the exam will be. After giving tests, analyse your performance and find out your strong and weak areas.
  • Focus more on your weak parts – Focus more on topics you score less on and try to improve them. Give more tests on those topics.

  For Paper 2 

  • Boost your legal knowledge – Paper 2 consists of questions on legal topics, so boost your legal knowledge.
  • Be up to date with current legal affairs – Since you will be taking the judiciary exam, you should be updated with every recent legal development and legal knowledge. They can also be asked in the exam. One of the best ways to grab them is to read newspapers daily.
  • Identify important books and legal resources – Identify the essential books needed to qualify for the exam and other vital resources that prepare you for the examination. Make sure to collect and save the materials in a place or a folder and prepare from them religiously.
  • Give time-bound tests and mock papers – Side by side of your preparation, keep giving time-bound tests and mocks to provide you with an actual taste of how the exam will be. After giving tests, analyse your performance and find out your strong and weak areas. Focus more on learning the concepts of your weak areas and focus more on increasing the efficiency of your strong areas. 
  • Prepare the topics broadly – Remember that some of the topics of preliminary papers come in the Mains examination as well, so prepare the topics likewise.

Bihar judiciary Main exam 2023-24 

To start your preparation for the Mains examination, the following points should be kept in mind and followed for a better and more effective result and to score better than others:

  • Choose your optional subjects – You should choose your optional subjects at the beginning of your preparation only to get more time to study and prepare them thoroughly. Choosing your optional subject wisely is crucial, and we will discuss later in this topic what parameters you should select for your optional subjects.
  • Answer writing practice – Since the Mains examination is subjective, practise the answer writing frequently along with your preparation. We will discuss how to effectively write answers in the Mains examination later in this article.
  • Mark important areas and ace them up-  Analyse the previous year’s papers and carve out the essential sections, topics, and areas that come up in the examination. Make yourself a master of those topics.
  • Refer to your preliminary notes and other identified resources for general knowledge and current affairs – Since several topics of the preliminary exam and the Mains exam overlap, you can refer to your preliminary notes and add whatever is required.
  • Do not give more than the required time to papers that are qualifying in nature – The two papers of general English and general Hindi out of the five compulsory papers are qualifying in nature, so do not give more than the required time to them, as it will be compensated for by your other subject’s time, whose marks will be added to the final merit list.
  • Define your weak and strong areas – Give more time to the areas where you score comparatively lower than others and try to improve them because that might prove detrimental to your selection. 

Viva-voice or personal interview of Bihar judiciary exam 

  • Give mock interviews – Nothing will help you more than giving mock interviews. You will learn it better when you are in the situation. Enrol in a mock interview programme and give as many interviews as possible.
  • Analyse your mock interviews – Take pointers on which parts you are lacking in your mock interviews and try to improve them. Take help from mentors, friends, and people who have already qualified for it. Make sure you do not lack in those areas in the final interview.
  • Try personality development courses – You can also try some courses if you want. It will help you outshine others and create a positive impact.
  • Remain up to date with recent legal developments and current affairs – Ensure you get the hang of every topic in the national media that is of national importance, including all the legal developments.

When to start your preparation for Bihar judiciary exam

In this part, we will discuss when to start your preparation for the Bihar Judicial Services Examination. Although there is no perfect time, it varies from person to person. Still, to gain an advantage over others, one should start their preparation at least a year or two years before attempting the examination. We will try to answer it concerning all three stages below:

For the Preliminary examination 

To prepare thoroughly and nicely, one should start preparing for Bihar Judicial Services Examinations during their college days only, preferably in their penultimate year or maybe before, if the candidate has already decided to pursue judiciary as their career. In the first year of their preparation, they can focus more on general knowledge, general science, and law subjects. During the second year of their preparation, they can focus more on current affairs, mocks, and answer writing, and thereby, when they graduate, they will also be fully prepared to take the exams.

For the Mains examination 

One can start preparing for the Mains papers of the Bihar Judicial Services Examinations once they are done with the general knowledge part, preferably in the second semester of their penultimate year in law school. This will give them a hang on law subjects as well. And then, in the final year of law school, they can practise answer writing and mock papers and give a final touch to their preparation. Although they can leave the qualifying paper for the Mains examination in Bihar Judicial Services for the last three months as those papers do not require much time.

For the viva voce or the personal interview 

One should start preparing for the viva voice/personal interview only after they clear their Mains examination. There is enough time given to candidates to prepare themselves for the viva voice/personal interview. Also, preparing for the viva voice/personal interview from the beginning isn’t a good option because the important part in the beginning is to get through the Mains examination. If one doesn’t pass it, the viva voice/personal interview preparation will have no meaning.

Important tips and tricks for Bihar judiciary exam 

Tips for Bihar judiciary Preliminary exam 

  • Make sure to attempt all the questions in the preliminary examination, as there is no negative marking. Even in the case of a wrong answer or an unattempted question, you will be awarded zero, and no marks will be deducted, so do not leave any question unattempted.
  • Use the elimination techniques, as they work best for the multiple-choice questions.
  • Make sure to read and analyse the editorials daily, as many questions are asked based on the information provided in the editorial.
  • For the general knowledge and current affairs part, focus more on the social, economic, geographic, political, and cultural information on the state of Bihar.
  • Learn all the important articles and sections from the syllabus of legal topics.
  • Focus more on the recent legal developments in Bihar.
  • Learn the leading case laws and important constitutional landmark judgements.

Tips for Bihar judiciary Mains exam

  • Choose your optional subjects wisely. The marks of the optional subjects play a vital role in reaching the final merit list of the Bihar Judicial Services Examination.
  • Analyse the previous year’s papers. Many questions are repeated from past years.
  • Practise answering frequently. See the topper’s answer copies and try to understand their way of writing.
  • Be concise and clear while writing your answers, and try to present your answer neatly.
  • Focus more on your optional subjects, as they are scoring in nature. Try to achieve the maximum in those papers, as they will help you make it to the merit list.
  • Only spend a little time on general English and Hindi preparation as their paper is easy and also qualifying in nature. Their marks are not added to the preparation of the final merit list.
  • Remember to add case laws and legal maxims to your answer in the Mains paper of the Bihar Judicial Services Examination.

  Tips for viva-voice or the personal interview

  • Remain updated with current affairs and recent legal developments, specifically concerning the state of Bihar and other news of national and international importance.
  • Try not to be critical of any government scheme or speak very negatively on a particular issue.
  • Be confident, as it makes a lot of positive impact before the panel that takes the viva voice or personal interview.
  • Improve your critical thinking skills and develop positive thinking. Try to give positive views about court controversies.
  • Research profoundly and be versed in the role of civil judge, court proceedings, etc.

Mistakes to avoid while preparing for Bihar judiciary exam 

  • Not analysing the mock tests properly. It is very crucial to analyse your mock tests properly.
  • Not focusing on your weak part. It is vital to concentrate on your vulnerable parts and improve them.
  • Leaving complex topics for the end. Always try to cover complex topics during the initial stage of your preparation.
  • Never keep the preparation of prelims aside for the last few months. Keep them prepared side by side with the syllabus of the Mains examination.
  • Focus on a few resources rather than trying many resources and being confused amongst them.

Sources to refer for Bihar judiciary exam 

In order to prepare thoroughly and qualify for the Bihar Judicial Services Examination, one needs to study from the best set of books and resources available on the market. The following are the best sets of books and resources available on the market:

Books

The following books are the best available in the market for the preparation of the Bihar Judicial Services Examination 2023-24:

Preliminary examination  

Subjects Books 
General knowledge and current affairsLucent’s General Knowledge by Vinay Karna
Indian Contract ActIndian Contract Act by R. K. Bangia
Indian Penal CodeIndian Penal Code by Ratanlal & Dhirajlal
Indian Evidence ActIndian Evidence Act by Vepa P. Sarathi
JurisprudenceJurisprudence by J.G. Riddall
Hindu LawModern Hindu Law by Paras Diwan
Mohammedan LawMulla’s principles of Mohammedan Law
Constitutional LawConstitution of India by MP Jain
CrPCCriminal Procedure Code by R.V. Kelkar
Transfer of Property ActTransfer of Property Act by S.N. Shukla 
Practice papersSinghal’s Multiple Choice Questions for Judicial Services 

Mains examination

Subjects or areas Books 
Practice guideGuide for Bihar Judicial Services (Mains) Examination by Rajiv Ranjan Sahay
Practice papersSinghal’s Bihar & Jharkhand Judicial Service Examinations: Solved (Pre.) Papers Unsolved (Mains) Papers by Sandeep Kumar
General EnglishWren & Martin High School English Grammar and Composition Book
General HindiEncyclopaedia of Samanya Vigyan (Hindi)
Elementary general science General Awareness by Manohar Pandey

Other resources 

Apart from the above best available books in the market, the following resources can also be accessed for better preparation for the Bihar Judicial Services Exam 2023-24:

LawSikho’s course on judiciary preparation 

Also known by the name of ‘Lord of the courses – judiciary test prep’, it is one of the best available courses on judiciary preparation, with features like personal guidance, top-notch and unique presentation of content, best strategies, smart study techniques, live online classes, problem discussion sessions, regular tests, personal evaluation and many other features that make it one of the best online courses on judiciary preparation. 

It is a one-year course, with 8 to 10 classes a week so that students can accommodate accordingly. Also, it has a refund policy of 100% if the candidate does not benefit from the course after 30 days of full participation. The link to the judiciary preparation course at LawSikho can be accessed here

LawSikho’s Youtube channel

This is a free of cost resource for acing in your preparation for Judicial Services Examination. The YouTube channel of LawSikho provides various videos like how to start and shape your preparation for the judicial services examination, how to crack judicial services examinations in the first attempt, how to practise answer writing for the Mains part of the judicial services examinations, insights and strategies on cracking various judicial services examinations, and many more videos that are significant for the preparation of the judicial services examination. The link to the YouTube channel of LawSikho can be accessed here

How to write answers effectively for the Mains paper of Bihar judiciary exam 

There are three main factors that help you write an effective answer in the Mains paper of the Bihar Judicial Services Examination: the structure of your answer, the content of your answer, and the presentation of your answer. Let us discuss these:

The structure of your answer

The structure of your answer should be very definitive and precise. You need to be very clear in your approach as to what you want to tell the examiner reading your answer scripts. The structure should be precisely divided into topics, subtopics, and sub-subtopics.

The content of your answer

The most important part of your answer is the content you write. It has the highest weight. It would be best if you corresponded precisely to the point content and did not try to fool the examiner. Just stick to the question asked while writing the answer, and there is no need to write unnecessary things not asked in the question.

The presentation of your answer

The way in which you present your answer determines your impression on the examiner. Try to write your answer in a very neat and tidy manner, as it will have a very positive impact on the examiner. Try to use lines and borders to highlight important points and facts.

Importance of giving mock tests for Bihar judiciary exam

  • Giving mock tests helps you track your progress and identifies the areas in which you need to work.
  • The mock tests are based on current important topics and previous year’s questions and thus help you to strengthen your concepts.
  • They also help you make an effective strategy that suits you and enables you to manage your time effectively.
  • Mock tests boost your confidence and help you prepare for the actual exam.
  • Analysing mocks helps you understand your mistakes and work on them.

Importance of optional subjects in Bihar judiciary exam

The optional subjects play a very vital role in the Bihar Judicial Services Examination, and it is therefore equally important that we choose our optional subjects for the Bihar Judicial Services Examination very wisely. Thus, in this part, we will discuss the importance of selecting optional subjects wisely and how to choose the right one.

The importance of choosing optional subjects wisely

  • The marks of the optional subjects (450 marks) comprise 47%-48% of the total marks on the merit list, and some optional subjects score more than others, making a massive difference in the marks of the candidates in the final merit list.
  • There is usually very little difference in marks in the compulsory papers of the students who qualify for the Mains examination of the Bihar Judicial Services Examinations. However, the difference in the marks of their optional subject is sometimes very huge because of the option they choose. This difference in marks sometimes leads to the selection and rejection of the candidate in the Bihar Judicial Services Examination.
  • Sometimes, the difference in the marks of the optional subject also becomes the deciding factor of the rank of the selected candidates in the Bihar Judicial Services Examination.

How to choose the right optional subjects

  • One should choose the subject that is their strong point as it becomes easy to prepare for that subject thoroughly.
  • The success rate of the optional subject should also be kept in mind while choosing the subject, as some subjects have a very high success rate and others have a shallow success rate.
  • Before selecting the optional subjects, suggestions, and advice can also be taken from toppers and mentors.
  • Before selecting the optional subjects
  • Previous years’ papers and their toughness level should also be considered. 

Last 30 day strategy for Bihar judiciary exam

  • Revise the important current affairs of each month.
  • Revise important topics in each subject.
  • Go through your handouts and notes for last-minute revision.
  • Refrain from starting any new topic, and do not try to change your strategy.
  • Stick to the strategy you have followed during the entire preparation.
  • Study a little during the last week. Just keep revising whatever you have learned.
  • Give only a few mocks in the last month. Try to analyse the previous mock you have given.

Application process for Bihar judiciary exam

In this section, we will discuss how to fill out the form for the Bihar Judicial Services Examination and what the required documents are for the same. We will also be discussing the procedure to submit the application and other important details.

Pre-requisites to fill the Bihar Judiciary’s application form

In order to fill the Bihar Judicial Services Examination application for, the following must be present:

Valid email address and contact number

While filling the form, the candidate will be asked for a valid email address and contact number so as to communicate all the necessary information regarding the examination. If the candidate does not have a valid email address and contact number, they will not be able to register on the portal. 

Valid payment method 

The candidate needs to ensure that they have a valid payment method before submitting the application form for Bihar Judicial Services Examination. The payment method accepted for the application fees are credit card/debit card & internet banking services. 

Stable internet connection 

For filling the application form of the Bihar Judicial Services Examination, the candidates need to have a stable internet connection with good connectivity. Without the same, it will be hard to access the official website of the Bihar Public Service Commission. 

Personal details and other scanned documents 

It is advised to the candidates filling the application form to have all your personal details like name, parents’ name, date of birth, place of residence, etc. (with correct spelling) at one place to fill the form correctly and smoothly. The candidate is also required to have the scanned copies (in the specified format) of their educational certificates, caste or any other reservation certificate, if applicable, passport sized photos etc. before filling out the application form. 

Eligibility criteria 

Before filling out the application form, the candidate must ensure that they fulfil all the eligibility criteria of the Bihar judicial Services Examination as specified by the Bihar Public Service Commission. Failing to do so will lead to the rejection of the candidature of the applicant. 

Documents required to fill out the application form for Bihar judiciary exam 

In order to fill out the form for the Bihar Judicial Services Examination, the candidates are required to have the following documents ready beforehand:

  • Their marksheet of X standard or matriculation certificate, which is required as a proof of date of birth of the candidate. 
  • Certificate of graduation in law from a college recognised by the Bar Council of India. 
  • Marksheet of graduation for the minimum percentage eligibility criteria. 
  • Conduct certificate for the candidate from the college they last attended.
  • If the candidate belongs to backward class or other backward class, they need to produce non-creamy layer certificates for the same. In case of a female candidate, there needs to be the father’s name and address on the certificate.
  • If the candidate belongs to backward class or other backward class, they need to produce non-creamy layer declaration letters.
  • If the candidate belongs to a scheduled caste or scheduled tribe, they need to produce caste certificates for the same. In the case of a female candidate, there needs to be the father’s name and address on the certificate.
  • Candidates claiming the benefit of caste need to produce a permanent address proof in the state of Bihar to avail themselves of the same.
  • For the candidates claiming reservation under the economically weaker section (EWS) criteria, they need to submit the economically weaker section (EWS) certificate issued by the competent authority in the prescribed format in accordance with the Bihar Government’s Notification No. – 2622, dated – 26.02.2019. Only those certificates that were issued in the last financial year in this format will be valid.
  • The candidate must also have valid identity proof, a few recently taken photographs and a copy of their filled online application for the Bihar Judicial Services Examination.   

Steps to fill out the Bihar judiciary exam application form

Follow the following steps to fill out the online application form for the Bihar Judicial Services Examination:

  1. Visit the official website of the examination conduct body, the Bihar Public Service Commission. Click here to open the website. 
  2. On the extreme left side of the website, you will find several options. Click on the “apply online” option. 
  3. When the new window appears, click on “BPSC Online Application”.
  4. In the next window, select the “Civil Judge (Junior Division)” option. The registration window will open next. Register on the website using your basic details, such as name, date of birth, email address, phone number, gender, etc.
  5. After successfully registering on the website, login to your account using the email address and password you used during registration.
  6. Fill out the application form provided on your portal with all the details. Ensure that the details you enter are correct.
  7. Upload the already scanned copies of all the documents in the prescribed format.
  8. After uploading the requisite documents, review your application and pay the fees for the application form.
  9. After paying the fees, submit the form and take out a print of the same. 

Fees for the Bihar judiciary exam application form

The application fees for the Bihar Judicial Services Examination vary for different categories across the different stages of the examination. The fees for general category candidates and other candidates is INR 600, while for candidates belonging to SC and ST communities, women candidates belonging to the Bihar domicile and physically handicapped candidates, it is INR 150 for the preliminary examination. 

For the Mains examination of the Bihar Judicial Services Examination, the fees for general category candidates are INR 750, while for candidates belonging to SC and ST communities, women candidates belonging to the Bihar domicile and physically handicapped candidates, they are INR 150.

Tabular representation of fees of Bihar judiciary exam

Category of the candidateApplication fees 
FOR THE PRELIMINARY EXAMINATION 
General category and other category candidatesINR 600
Candidates belonging to the SC and ST communities INR 150
Both reserved and unreserved category women candidates  belonging to the Bihar domicileINR 150
Physically handicapped students INR 150
FOR THE MAINS EXAMINATION
General category and other category candidatesINR 750
Candidates belonging to the SC and ST communities INR 200
Both reserved and unreserved categories of women candidates  belonging to the Bihar domicileINR 200
Physically handicapped studentsINR 200

Details which can be edited in the application form of Bihar judiciary exam

The following details can be edited after filling out the form for the Bihar Judicial Services Examination (when the correction window of the form opens):

  • Name of the candidate
  • Name of parents of the candidate
  • Gender of the candidate
  • Spouse name of the candidate, if any
  • Date of birth of the candidate
  • Photograph of the candidate
  • Signature of the candidate 
  • Category, if any, of the candidate
  • Optional paper of the candidate
  • Mobile number of the candidate
  • Email address of the candidate

Documents required at the examination centre of Bihar judiciary exam

The following documents are required to be carried by the candidate at the examination centre for the Bihar Judicial Services Examination 

  1. A printed admit card for the candidate.
  2. Aadhar card of the candidate.
  3. Any other identity proof may also be valid, like a driving licence, a passport, etc.

Some important points to be noted while filling the application form for the mains examination of the Bihar Judicial Services Examination 2023 – 24  

According to the latest notification released by the Bihar Public Service Commissions, the candidate should take a note of the following things while filling the form for the mains examination of the Bihar Judicial Services Examination 2023 – 24: 

  • While filling the form for the mains examination of the Bihar Judicial Services Examination 2023 – 24, the candidates will come across various details in the form which will already be filled. Those details will be the same details which the candidate has already filled while filling the online application form for the preliminary stage of the Bihar Judicial Services Examination and the candidates will be having no option to edit those details. 
  • The candidates are requested to fill the form as early as convenient. The server failure issue, payment declined issue, etc. will not be entertained by the BPSC during the last days of the filling of the form of the Bihar Judicial Services Examination 2023 – 24. 

Selection process of Bihar judiciary exam

The Bihar Judicial Services Examination consists of a total of three stages. However, the marks of not all the stages are added for the selection process, nor are the marks of all the papers in any particular stage added for the selection process. 

Both the papers of the preliminary examination of the Bihar Judicial Services Examination are qualifying in nature and hence, the marks of both of these papers aren’t required for the selection process of the Bihar Judicial Services Examination.

In the Mains paper of the Bihar Judicial Services Examination, the marks of three compulsory papers (except the papers of general English and general Hindi, as they are qualifying papers in nature) plus the marks of three optional papers (total – 400 + 450 = 850 marks) are required for the selection process of the Bihar Judicial Services Examination.

The personal interview or viva voce, of the Bihar Judicial Services Examination is of 100 marks and the marks of the same are required for the selection process of the Bihar Judicial Services Examination.

So, in total, for the selection process of the Bihar Judicial Services Examination, the marks of three compulsory papers of the Mains examination plus three optional papers of the Mains examination plus the marks of viva voice or personal interview are calculated and the merit list is formed. The top 155 candidates (or as the vacancy requires every year) will be selected for the Bihar Judiciary (along with the reservation criteria).

Number of attempts in Bihar judiciary exam

There is no limit on how many times an aspirant can attempt the Bihar Judicial Services Examination. However, the age criteria are there, which restricts a general category male to attempt the exam only until 35 years of age, and females and reserved category candidates can attempt the same until 40 years of age.  

How to check the results of Bihar judiciary exam

Follow the following steps to check the results of the Bihar Judicial Services Examination:

  1. Visit the official website of the examination conduct body, the Bihar Public Service Commission. Click here to open the website. 
  2. On the extreme left side of the website, you will find several options. Click on the “marks sheet” option. 
  3. When the new window appears, click on “Bihar Judicial Services Examination (preliminary paper)”.
  4. In the next window, login to your account using the email address and password you used during registration.
  5. After successfully logging in, the result will be on your student portal. 
  6. Take a printout of the result sheet for future reference.

How to check the answer key for Bihar judiciary exam

Follow the following steps to check or match the answer key of the Bihar Judicial Services Examination:

  1. Visit the official website of the examination conduct body, the Bihar Public Service Commission. Click here to open the website. 
  2. On the homepage of the website, the new notifications will be displayed.
  3. Click on the notification of the official answer key for the Bihar Judicial Services Examination.
  4. Download the answer key from the set of your question paper.
  5. Match your answers and calculate your score. Each correct answer will earn you one mark, while the wrong or unattempted answer will earn you zero marks. 

Analysis of the preliminary examination of Bihar judiciary exam 2023 – 24

The preliminary examination of the Bihar Judicial Services Examination 2023-24 was held on June 04, 2023. The results of the same have been declared in the last week of September 2023. Here’s an analysis of the question paper of the preliminary examination of the Bihar Judicial Services Examination 2023 – 24:

Analysis of paper 1

The first paper of the Bihar Judicial Services Examination is on general studies and current affairs. It was held during the timings of 11.30 am to 1 pm. The in-depth overall analysis of the paper leads to the following conclusions:

  • The difficulty level of the paper was from easy to moderate. Any candidate who has a grasp on basic current affairs and a solid foundation of general knowledge will be able to solve the paper easily.
  • The maximum number of questions were asked from the history section, followed by the science and technology section.
  • A total of 35 questions were asked from the history section – dividing further, 15 questions were asked directly from ancient history and 10 questions each from medieval history and modern history.
  • A total of 30 questions were asked from science and technology, followed by 20 questions from current affairs.
  • A total of 15 questions were asked from the geography part.
  • No sudden deviation from past year papers was seen and mostly the questions were direct. Not many tricky questions were found in the paper. 

Analysis of Paper 2

The paper 2 of the preliminary examination of the Bihar Judicial Services Examination 2023 – 24 was of legal subjects. It was held during the timings of 2 pm to 4 pm. The in depth analysis of the paper leads to the following conclusions:

  • The overall difficulty level of the paper was from moderate to difficult, with some sections being easy to other sections moderate and difficult. A deep understanding of the subjects is required to answer the question effectively.
  • The majority of questions were based on constitutional law, followed by contracts and torts. Only two questions were asked from the Indian Penal Code.
  • A total of 14 questions were asked from procedural laws like Civil Procedure Code and Code of Criminal Procedure. Most of the questions were direct. 
  • In Civil Procedure Code, most of the questions were easy and directly based on important orders. No unusual orders were asked. The questions of the code of criminal procedure were also not very complex.
  • A total of 20 questions were asked on personal laws. The focus was more on recent developments and changes in the personal laws.
  • A total of 16 questions were miscellaneous in nature and they were of easy to moderate difficulty. Basic foundation knowledge of the subjects would have sufficed for such questions.
  • Questions of Constitutional law and Transfer of Property Act ranged from moderate to difficult. The questions were based more on doctrines and case laws. Case laws became a deciding factor for the paper and anyone with good grasp over case laws had an upper hand over others.
  • The questions on minor laws were more basic in nature. However, the Administrative Law section was a little bit tricky for aspirants.
  • The number of questions for each subject of the paper was as follows: Constitutional law – 40, Law of Contracts and Torts – 31, Personal Laws – 20, Transfer of Property Act – 14, procedural laws – 14, Indian Evidence Act – 5 and Indian Penal Code – 2. Close to 15 questions were miscellaneous in nature.

Analysis of the results of Bihar judiciary exam 2023

The results for the preliminary examination of the Bihar Judicial Services Examination 2023 – 24 has been issued by the Bihar Public Service Commission in the last week of September 2023. The result has been uploaded on the official website of the BPSC. The link to the official website of the BPSC can be accessed here. An analysis of the results and cutoff for the preliminary examination of the Bihar Judicial Services Examination 2023 – 24 can be summed up as follows:

  • The results have been declared on the official website of the BPSC in PDF format. 
  • A candidate has cleared the cut-off for the examination if their roll no. appears on the list published by the BPSC. If a candidate has successfully cleared the cut-off, they are eligible for writing the mains paper of the Bihar Judicial Services Examination 2023 – 24. 
  • In order to qualify the preliminary examination, a candidate has to score at least a minimum of 45% in the paper (for general category candidates) and 40% in the paper ( for candidates belonging to reserved category).
  • The cut-off list for the Bihar Judicial Services Examination 2023 – 24 has not yet been officially released by the BPSC. The BPSC however, has released the answer key on its official website. The candidates can match their scores with the help of the answer key issued by the BPSC.
  • Though the official cut-off list has not yet been declared but an analysis of the results can lead to the conclusion of the following expected cut-offs: 
Category of the candidate Expected cut-offs 
General (male)Around 180
General (female)170 – 174
EWS130 – 140
OBC142 – 145
STAround 140
SC131 – 135

Exam centres for Bihar judiciary exam

The preliminary papers of the Bihar Judicial Services Examination are conducted across various centres (1000+) in the 38 districts of Bihar. The Mains paper on the same is conducted mainly in the city of Patna. The interview of the selected candidates is held at the office of the Bihar Public Service Commission, located at Jawaharlal Nehru Marg, in Patna.

Things allowed inside the exam centres of Bihar judiciary exam

A candidate can carry the following things with him inside the examination centre of the Bihar Judicial Services Examination:

  1. Pen, pencil, and other stationery items.
  2. Admit card of the candidate.
  3. Aadhar card of the candidate, along with any other identity proof.

Things disallowed inside the exam centres of Bihar judiciary exam

A candidate can carry the following things with him inside the examination centre of the Bihar Judicial Services Examination:

  1. No other paper apart from the required documents. The candidates will be given space to do rough work.
  2. Any electronic device, including mobile phones, bluetooth devices, etc. 

Contact details for Bihar judiciary exam

For any information or query regarding the Bihar Judicial Services Examination, the candidate can contact the Bihar Public Service Commission, which is the exam conducting body of the Bihar Judicial Services Examination. The contact details for the same are given below: 

Name of the Body Bihar Public Service Commission
Website https://www.bpsc.bih.nic.in 
Email address [email protected] 
Office address 15, Jawahar Lal Nehru Marg (Bailey Road), Patna, Bihar, 800 001 
Contact number of IT (online) section9297739013
Contact number of the inquiry section 2237999 and 8986422296
Office number of the secretary2215187
Office number of the controller of examination 2215368

Important pointers to note regarding Bihar judiciary exam

The candidates should keep the following important pointers for the Bihar Judicial Services Examination in mind before attempting the paper:

  • The candidate must not exceed the age of 35 years (in the case of a general category candidate) and 40 years (in the case of 40 years of age).
  • The candidates must attach their caste certificate, residence certificate or any other certificate, as applicable, during the time of filling out the form.
  • The candidates must cross check all of their details before submitting the application form.
  • The candidates must upload all of the required documents in the format prescribed by the Bihar Public Service Commission.
  • The candidates must regularly visit the official website of the Bihar Public Service Commission so that they don’t miss out on any important information regarding the examination.
  •  The candidates must carry their admit card to the examination hall on the day of the examination.
  • The candidates should arrive at least one hour prior to the opening of the gates of the centre or examination hall. 
  • The candidates should carry the required stationery items with them to the examination hall.

Frequently Asked Questions (FAQs)

These are some of the most frequently asked questions on the Bihar Judicial Services Examination:

Where is the notification of the Bihar Judicial Services Examination 2023-24 published?

The notification of the examination can be accessed through the official website of the Bihar Public Service Commission. This is the link to the notification. 

What are the timings of the preliminary examination of the Bihar Judicial Services Examination 2023-24?

Paper 1 11.30 AM to 1 PM
Paper 22 PM to 4 PM

What is the date of the preliminary examination of the Bihar Judicial Services Examination 2023 – 24?

The preliminary examination of the Bihar Judicial Services Examination 2023 – 24 was held on June 4, 2023.

When will the  result of the preliminary examination of the Bihar Judicial Services Examination 2023-24 be declared?

The results of the  preliminary examination of the Bihar Judicial Services Examination 2023-24 has been declared on September 27, 2023.

Are the marks of the preliminary examination of the Bihar Judicial Services Examination 2023-24 added to the final merit list?

No, the marks of the preliminary examination of the Bihar Judicial Services Examination 23-24 are not added to the final merit list and the two papers are just qualifying in nature.

What is the minimum percentage of marks required to qualify for the preliminary examination of the Bihar Judicial Services Examination 2023 – 24?

The minimum percentage of marks required to qualify for the preliminary examination of the Bihar Judicial Services Examination 2023-24 is 45% for the candidates belonging to the unreserved category and 40% for the candidates belonging to the reserved category. 

What is the nature of questions asked in the preliminary examination of the Bihar Judicial Services Examination 2023-24?

Multiple questions are asked in the preliminary examination of the Bihar Judicial Services Examination 2023 – 24.

What is the mode of the preliminary examination of the Bihar Judicial Services Examination 2023 – 24?

The preliminary examination of the Bihar Judicial Services Examination 2023-24 was held in the offline (pen – paper) mode. 

What is the date of the Mains examination of the Bihar Judicial Services Examination 2023-24?

The Mains examination of the Bihar Judicial Services Examination 2023-24 will be conducted on 08th October 2023.

What are the timings of the Mains examination of the Bihar Judicial Services Examination 2023-24?

The timings of the Mains examination of the Bihar Judicial Services Examination 2023-24 are  yet to be declared.

How many compulsory papers are there in the Mains examination of the Bihar Judicial Services Examination 2023-24?

There are a total of five (05) compulsory papers in the Mains examination of the Bihar Judicial Services Examination 2023-24.

How many optional papers have to be given by a candidate in the Mains examination of the Bihar Judicial Services Examination 2023-24?

There are a total of five (05) optional papers in the Mains examination of the Bihar Judicial Services Examination 2023-24, of which a candidate has to give three (03) optional papers. 

Are the marks of all the papers in the Mains examination of the Bihar Judicial Services Examination 2023-24 added for the preparation of the final merit list?

No, only the marks of three (03) compulsory papers and three (03) optional papers are added for the preparation of the final merit list of the Mains examination of the Bihar Judicial Services Examination 2023-24. 

Are there any qualifying papers in the Mains examination of the Bihar Judicial Services Examination 2023-24?

Yes, the papers of general English and general Hindi, in the compulsory papers of the Mains examination of the Bihar Judicial Services Examination 2023-24 are qualifying in nature. 

Who is eligible to give the viva voice or the personal interview for the Bihar Judicial Services Examination 2023-24?

The candidates who qualify for the Mains examination of the Bihar Judicial Services Examination 2023-24 are eligible to sit for the viva voice or the personal interview.

What is the date of the viva voice or the personal interview for the Bihar Judicial Services Examination 2023-24?

The dates for the viva voice or the personal interview for the Bihar Judicial Services Examination 2023-24 are yet to be declared.

What will be the venue for the viva voice or the personal interview for the Bihar Judicial Services Examination 2023-24?

The personal interview or viva voce of the selected candidates will be held at the office of the Bihar Public Service Commission in Patna. 

What is the application fees for the Bihar Judicial Services Examination 2023-24?

The application fees for the Bihar Judicial Services Examination 2023-24 is INR 600 for general category candidates and INR for reserved category candidates.

What are the available means to submit the fees of the Bihar Judicial Services Examination 2023-24?

The fees for the Bihar Judicial Services Examination 2023-24 can be submitted through internet banking, debit cards, credit cards, etc.

The Bihar Judicial Services Examination 2023-24 will be conducted in which language?

The Bihar Judicial Services Examination 2023-24 will be conducted in English as well as Hindi language.

Where will the Bihar Judicial Services Examination 2023-24 be held?

The Bihar Judicial Services Examination 2023-24 will be held across 100+ centres in the 38 cities of Bihar state. 

Is there any work experience required to give the Bihar Judicial Services Examination 2023-24?

Work experience is optional for the Bihar Judicial Services Examination 2023-24. Freshers’ with no work experience can also take the exam.

Can we prepare for Bihar Judiciary while working a part time job?

Yes, we can give the Bihar Judicial Services Examination 2023-24 while working at a part time job. 

Is reading a newspaper crucial for preparation for the Bihar Judicial Services Examination 2023-24?

Yes, reading a newspaper is crucial for preparation for the Bihar Judicial Services Examination 2023-24 as it helps to grasp current affairs and also helps with our reading speed & vocabulary.  

How frequently is the Bihar Judicial Services Examination conducted?

The Bihar Judicial Services Examination is usually conducted once a year or as per the vacancy.

How many vacancies are there in the Bihar Judicial Services Examination 2023 – 24?

According to the official notification of the Bihar Public Service Commission, there are a total of 155 vacancies in the Bihar Judicial Services Examination.

Is there any relaxation given to the candidates belonging to the reserved category for appearing in the Bihar Judicial Services Examination 2023 – 24?

Yes, the reserved category candidates are given an age relaxation of five (05) years appearing in the Bihar Judicial Services Examination. They can appear in the examination till the age of 40 years. 

Is there any seat reserved for the candidates belonging to the economically weaker section in the Bihar Judicial Services Examination?

Yes, a total of 10% of the seats are reserved for the candidates belonging to the economically weaker section in the Bihar Judicial Services Examination. 

What is the minimum education qualification for a candidate to take the Bihar Judicial Services Examination?

In order to take the Bihar Judicial Services Examination, the candidate must possess a degree in bachelor of law from a college recognized by the Bar Council of India. 


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All you need to know about deceptive similarity of trademarks

0

This article has been written by Tannu Gogia, pursuing a Diploma in International Business Law from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

“A   trademark   is   a   company’s   persona   and   identity   in   the   marketplace” 

-Dr. Kalyan C. Kankanala

The Trade Marks Act, 1999, was enforced keeping in mind the various objectives. I find two objectives very relevant to the deceptive similarity, one, providing effective protection to trademarks, and the second, preventing the fraudulent use of marks. One of the best examples of fraudulent use of marks is making a deceptively similar trademark with the purpose of attracting one’s customers towards himself for economic benefits. In the recent case of Hamdard National Foundation (India) vs. Sadar Laboratories Pvt. Ltd. (2022), or to relate this case to every household, we can call this as ‘Rooh Afza vs. Dil Afza’, in this case, it was alleged that the plaintiff’s mark ‘Sharbat Rooh Afza’ had been infringed by the defendant’s deceptively similar Mark ‘Sharbat Dil Afza’ but in January 2022, the single-judge bench of the Delhi High Court had refused to grant an interim injunction, but in January 2023, the division bench has set aside the judge of the single-judge while holding that the mark ‘Rooh Afza’ has been functioning as the identifier of the appellant’s products since 1907, resulting this mark holds a high degree of importance and granted an injunction to the plaintiff/appellant by stating that the defendant would gain an undue advantage if allowed to continue using the ‘Sharbat Dil Afza’ mark.

This article will discuss in detail the different aspects related to the deceptive similarity found in trade marks, a) meaning and scope; b) provisions in the Trade Mark Act and other legislation or treaties; c) what will be the consequences of making a deceptively similar trademark; d) are there any circumstances where a trade mark still being a deceptively similar mark can be registered; e) remedies; f) how to avoid a trademark from being deceptively similar; and some recent and important cases.

Meaning and scope 

Section 2(zb) of the Trade Mark Act, 1999, defines the term trade mark as  a mark that is capable of distinguishing the goods and services provided by one person from those of another. In other words, a trade mark works as an identifier, which means, for example, that when you look at a product, you will be able to trace its origin or the person/company who manufactures such products, so one is able to identify the person responsible for such a product or service. In general, the purpose of having a trade mark is to easily recognise the product or service or to stand out from the groups of other manufacturers or service providers.

But managing a trademark and its protection proves to be  very strenuous The more a product or service or its related trademark is prominent and well known, the greater the chances or risks of it being copied, so a trademark is vulnerable to being misused by other individuals. One such misuse is making deceptively similar trade marks and thus exploiting the name and goodwill of the well-known trade marks for economic gain. 

Section 2(h) of the Trade Mark Act, 1999, defines deceptively similar and in simple terms, it means that a mark need not be identical to be called deceptively similar to that of another, but if it so nearly resembles the other mark, there is a high chance that it will deceive the general public or cause confusion in their minds. 

Nature of deception in trademarks

  • Deception concerning the goods: When a deceptively similar mark is applied to the goods which don’t belong to the registered trademark owner, a person may purchase such goods thinking that it belong to the brand which he had in mind while purchasing the goods;
  • Deception about the trade origin: Under this, a person may purchase the goods after recognising the mark, thinking that they have the same source as some other goods bearing a similar mark, with which he is familiar;
  • Deception concerning the trade connection: Under this, the goods bearing the marks may not be identical, but they share the same similarity with the mark bearing different goods. Here,  a person purchasing the goods may not think that the goods belong to the same brand that he had in mind, but due to the similarity between the marks, he may believe that both marks are connected in some way or that they have some kind of association with each other.

Different types of similarity found in the marks

  • Visual similarity: The first similarity which is considered for comparison between the marks is the visual similarity and under this, all visual aspects like any common syllables, suffixes, prefixes, shapes, length, etc. of the mark are compared with the other mark;  
  • Phonetic similarity: To determine whether there is any kind of similarity between the two trademarks, the phonetic similarity in sound is one of the relevant factors to consider, as phonetic similar trademarks can create confusion in the minds of the public. To understand phonetic similarity, let’s consider a few examples: Zegna (an Italian brand pronounced as Zen-Yah) and Zenya; Fevikwik and Kwikheal; Xceed and Xseed;
  • Conceptual similarity: In this, the similarity is judged based on the message a mark is trying to convey, and this type of similarity comes under both phonetic and visual similarity, as it refers to the eyes as well as the top of the ears, for example, Gluvita and Glucovita or Lakme and Likeme. 

Historical aspects of Trademark Law

The first trademark law in India was the Trade Mark Act of 1940. Before this legislation, there was no law related to trademarks in India and to fill the legal vacuum related to the actions of infringement of registered and unregistered trademarks, assistance was taken from Section 54 of the Specific Relief Act, 1877 and for registration related aspects were resolved through the Registration Act of 1908. So, after a hard struggle to get assistance from other legislation for such important matters, the Trade Mark Act of 1940 was enforced. After passing the Act of 1940, as trade and commerce grew, this demand for trade mark protection also increased. After the independence of India, the Trade and Merchandise Act of 1958 was passed, which replaced the Trade Mark Act of 1940.

The extension of trade, commerce and interaction with the world economy led to the advent of globalization and with globalisation intellectual property attained world-level recognition, which gave rise to the need for uniform standard laws, policies, and rules that are accepted globally for the protection and enforcement of trademarks. All this set the path for TRIPS agreements. This 1958 legislation came to an end and the Trade Mark Act of 1999 was enforced, which was in line with the TRIPS Agreement obligations.   

Also, there is no need to go through the concept of deceptive similarity in the Trade Mark Act of 1940 and 1958, as they follow the requirements laid down in TRIPS; hence, the 1999 Act stuck to the same definition of deceptive similarity. 

The Trade Marks Rules of 2017 also came into effect, which repealed the earlier Trade Marks Rules of 2002. Therefore, the Trade Marks Act of 1999 and the Trade Marks Rules of 2017 are currently in effect and regulate trademark legislation in India.

  • TRIPS Agreement: Article 16.1, this article doesn’t specify what rights an owner of a registered trademark enjoys regarding the trademark itself but mentions how he will be able to protect it instead. It confers an exclusive right on the owner that third parties, who don’t have the consent of the owner, won’t be able to use the identical or similar signs on the identical or similar goods or services in respect of those trademarks that are registered if such use results in the likelihood of confusion.

Let’s understand it more clearly, if signs and products are identical, then there is a presumption of the existence of the likelihood of confusion, but if signs and products are similar, then the likelihood of confusion will be decided on a case-by-case basis and on the basis of individual market situations.

  • Trade Marks Act, 1999: Sections 2(h) and 2(zb), which define deceptive similarity and trademarks, have been referred to above in the meaning and scope section. Now let’s try to understand two provisions where deceptive similarity is one of the grounds for refusal to register trademarks.

Section 11 of the Trademark Act specifies some relative grounds for refusal of registration and according to Section 11(1)(a) and (b) of the Trade Marks Act 1999 – a trade mark shall not be registered if, because of its identity or similarity with earlier trademark(s) and because of the identity or similarity of goods or services covered by such trademarks, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark. 

The similarity of marks: The term similarity of trademarks is to be interpreted as “deceptively similar,” and this expression has been defined in Section 2(h) of the Trademark Act as “so nearly resembling the other mark as to be likely to deceive or cause confusion.”

Likelihood of confusion: For the likelihood of confusion to exist, it must be probable; it is not necessary that actual confusion has arisen or should arise in the mind of the public.

  • Trademark Rules, 2017: Rule 33 – This rule mentions that the registrar shall be liable to examine the application for registration of a trademark, and for this purpose, the registrar shall search the earlier trademarks, whether registered or applied for registration; both will be considered for examination. The purpose of conducting such thorough examination is to ascertain whether there is on record any trademark that is identical or deceptively similar to the trademark applied for in respect of the same or similar goods or services. But one must not lose sight of the fact that this rule is silent about what kind or type of searches or what a registry should keep in mind while examining the application of a trademark, and this vacuum or omission, whether intended or not, might create problems for the trademark applicant.
  • Trademark Manual: Let’s take a look at the trademark manual, as it contains a very important point that helps to avoid registration of any mark that is deceptively similar to the earlier trademarks. Though the Trademark Act and Rule do not specify the exact nature of the searches that the Registry should undertake for examination purposes, these searches are important to determine whether there is any Trademark deceptively similar to the earlier well-known trademark, but the Trademark Manual does mention it under Chapter II, point 11.1 “The search for the same/similar trademarks is performed through the Trade Marks System. With the help of this system, the examiner will be able to make searches with three modes-word mark search, phonetic search and device mark search”. But the stumbling block is that though the trademark manual aligns with the trademark laws, it doesn’t hold the same legal standing. To put it briefly, the need to establish a trademark manual is not legally binding, but it is highly recommended to follow it to avoid any confusion and unnecessary infringement suits.

When can a trademark be considered deceptively similar

Criminal litigation

The factors to determine the deceptive similarity between the two marks have been given in many cases, but all these factors are based on the English case of Justice Parker in the Pianotist case. One such case where such factors are provided is Cadila Healthcare Ltd. vs. Cadila Pharmaceuticals Ltd. (2001) and some of the important points are given below:

  • Nature and kind of the marks;
  • The degree of likeness, similarity or resemblance, for example, phonetic, visual or conceptual similarity between the marks;    
  • The kind or class of goods for which the trade mark has been used; 
  • Different class or types of purchasers who are likely to buy the goods, their educational qualification, use of intellectual property, or care in buying goods or services;   
  • The mode of purchasing or acquiring the products or services;  
  • The similarity in the nature, performance and character of goods of the rivals.

This case also laid down the Rule of Anti, which emphasises the need to judge a mark as a composite whole rather than breaking it into parts for comparison. The rationale of this rule is based on the presumption that the average consumer would judge the mark in its totality and not in parts.

In the case of Corn Products Refining Company vs. Shangrila Food Products Limited (1959), the Supreme Court of India, taking into account the facts of the case and all things considered, came up with a test to ascertain the similarity between the two marks: i) to judge a mark as a whole instead of breaking it apart and comparing each part with the other mark; ii) to take into account the ordinary intelligence of the general public; iii) imperfect recollection from past incidents instead of comparing the two marks by placing them side by side.

All the given above points are broad and considered essential features for determining the similarity between the marks to summarise this, it is not necessary to compare the marks by placing them side by side and deciding whether a person can tell the differences and similarities between the two. This test is not sound and proper because a person may not have the product to compare it with the product bearing a similar mark. The prudent thing to do is to determine whether, from his past recollection, a person can confuse a deceptively similar trade mark with the earlier genuine trade mark.

Deceptive similarity and intention

Intention to deceive is not a deciding or guiding factor to know if a mark can confuse or deceive the general publication, be it deception related to goods, origin or trade connection. What matters is that the mark is such that it can confuse. It is irrelevant whether a person wants to mislead or not; to prove that he had no intention to deceive will not work in the favour of the defendant, so it needn’t be proved.

In the case of Kirloskar Diesel Recon Pvt. Ltd. vs. Kirloskar Proprietary Ltd. And… (1995), the Bombay High Court held that to have the plaintiff prove the defendant’s deceitful purposes is a bootless errand, once the reputation and goodwill of the plaintiff are established, the intention loses its purpose. In the case of Mahendra and Mahendra Paper Mills Ltd. vs. Mahindra & Mahindra Ltd. (2001), the Supreme Court has repeatedly highlighted the need to prove likely deception before this test intention seems insignificant. So, strictly speaking, it is enough to establish likely deception and not divulge the intention.

In K. R. Chinna Krishna Chettiar vs. Sri Ambal & Co., Madras and Anr. (1970), it was held by the Supreme Court that to find out that the trade mark may be found deceptively similar to another, it does not need to be intended to deceive or to cause confusion. It is the probable effect on the ordinary kind of customer that one has to prove.

Why should a trademark not be deceptively similar

The trademark Act is consumer friendly as it takes into account the interests of the public and also focuses on protecting the interests of the registered trademark owner. In other words, one of the substantial purposes of the Trademark Act is to protect the general public from confusion and deception caused by making a deceptively similar trademark, because the inherent nature of the trademark is to work as an identifier, that is, to tell the public through their mark that, among the plethora of products, this particular product belonged to the trademark owner. But if the practise of making a deceptively similar trade mark is not stopped, the trademark will lose its nature and another purpose is to safeguard the trademark owner’s trade and his goodwill from being stolen away that is attached to the trademark. 

In the case of Cadbury India Limited and Ors. vs. Neeraj Food Products (2007), the Delhi High Court held that the true meaning and intention of the trademark is to shield the consumer and trader from the wrong and deceitful activity of adopting the identical or making a deceptively similar trade mark with the intention of cashing in the reputation and goodwill of the trade mark familiar to the public.

Consequences of provisions of the Trademark Act

  • As per Section 29(2), a registered mark shall be deemed infringed if any person/entity without the consent of the registered trademark owner, uses, in the course of trade, a mark identical or similar to or goods and services under such mark that are identical or similar to those covered by the registered trademark, and the result is that it is likely to confuse the minds of the public or people who wrongly associate such mark or goods or services with the owner of the registered trademark.
  • Section 28(1) gives the registered owner of the trademark an exclusive right to use the trademark concerning goods and services and  he can obtain remedy in respect of infringement of such exclusive right.
  • According to Section 102(1)(a) and (b), a person shall be deemed to falsify a trademark if he makes any addition, alteration or otherwise to any genuine trademark or if he makes a trademark that is identical or deceptively similar without the consent of the trademark owner, and if such person applies such a trade mark (identical or deceptively similar) to goods or services or any package containing goods, he shall be deemed to be liable for falsely applying any trade mark to goods or services.
  • According to Section 103, any person who falsifies any trademark or falsely applies to goods or services any trademark or any other act that confuses the eyes of the public shall be punished with imprisonment for a term not less than 6 months but which may extend to 3 years and with fine not less than Rs. 50,000 but which may extend to Rs. 2,00,000. 

Remedies

Section 134 of the Trademark Act authorises a person, in case of infringement of the registered mark or if there is any dispute regarding a right in the registered mark or dispute in respect of an unregistered mark that is passing off, to institute a suit in a court not below the district court.

Section 135 of the Trademark Act talks about the reliefs or remedies a court can grant in a suit for infringement and in an action for passing off, like i) an injunction, ii) damages or an account for profit (profits gained by selling/providing goods or services using a deceptively similar mark), iii) an order for the destruction of goods, and iv) the court can also order the defendant to cover the cost of the proceeding.

Exception to having a deceptively similar mark

Section 11 of the Trademark Act gives us the relative grounds for a refusal to register a trademark that is identical or similar to the registered trademark or whose goods or services are covered by the earlier registered trademark. Sometimes provisions are provided in their expressed form and sometimes, when there is a need to combat a legal situation, we have to look closely into the other provisions of a statute to find the solution One such example is section 11, even though this provision provides the grounds on which the registration can be refused,  but if we analyse section 11(1), “its identity or similarity with an earlier trade mark and identity or similarity of goods or services covered by the trade mark”,  we find that it contains 2 parts that are connected with the conjunction ‘and’, so both the conditions needed to be fulfilled. The marks, one already registered and the other having been applied, need to be similar or identical and both marks should cover the same goods or services. But if one condition is not fulfilled, let’s say both marks cover different goods or different services or one mark covers goods or the other covers services, then it can be registered as per the conditions, if any, imposed by the registrar.

We can understand the above exception with the help of an example, there is an earlier registered trademark ‘PUMA’ for sports goods, and now assume there is another mark ‘TUMA’ that also deals in sports goods; then it will be termed a ‘deceptively similar’ mark. But if ‘TUMA’ deals with any other class of goods, let’s say tuna fish restaurant services, then it may not be considered a deceptively similar mark to ‘PUMA’.

How to avoid a trademark from being deceptively similar

While creating a trademark, a person should keep in mind the grounds for refusal of registration mentioned in Section 9 and Section 11 of the Trade Mark Act and avoid all those things that can create hurdles in the registration of the mark.

Business owners, individuals or entities should do market research about what kinds of trademarks are considered well known and why, how they are perceived by the general public, whether people can differentiate a particular mark from the other marks available in the market, what they think about confusing or deceptively similar marks, how strong their ability to recollect the previously available trademarks is, and whether their intelligence or educational qualifications play any role in recognising and differentiating a mark from other marks.

While designing a trade mark, a person should be aware of their rivals’ or competitors’ marks and the kind or class of goods or services covered by their marks. They should do a thorough examination of all the registered or unregistered trademarks and identify any phonetic, visual or conceptual similarity between their marks and the earlier registered or well-known trademarks.

By considering these above-mentioned activities or doing preliminary research, one can save time, energy and resources by escaping the grounds for refusal of registration, infringement suits or actions for passing off.

Conclusion

The object of the Trademark Act is to protect trademark owners and consumers from deception and confusion, but deceptively similar marks in the market defeat these purposes, so people should refrain from doing such activities as they have dire consequences like confusion among the general public, infringement of trademarks, economic or financial loss to traders, undue advantage to the infringers, and risk to market integrity. To put an end to this practise, one should research the market thoroughly, study the well-known trademarks, understand how the general public distinguishes one mark from the other, analyse the marks of your rivals and last but not least, stay true to your corporate ethics.  

While reading this article, you can realise that even though the Trademark Act and the Trademark Rules are binding, they only mention the duty of the registrar to examine the marks, but they are silent about the types of searches a registrar needs to carry out, except the Trademark Manual, which mentions the different types of searches a registrar can undertake, yet it is non-binding, which means the registrar is not obliged to follow them. The result is that the registry sometimes only considers work mark search or visual search but not phonetic search, which leads to the registration of marks that are deceptively similar to the earlier registered/ unregistered trademarks and later infringement suits, which only burdens the judiciary. So, the legislature should make amendments to the respective provisions, as there are abundant precedents like the Cadila Healthcare Ltd. case, which emphasises the phonetic similarity while comparing two similar marks. As Primo Angeli said “A great trademark is appropriate, dynamic, distinctive, memorable and unique”, so one should endeavour for better protection of the trademark and to prevent fraudulent use of the mark.

References


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Cinematograph Amendment Bill, 2023 : adapting to the changing needs of filmmakers and society

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This article has been written by Tannu Gogia, pursuing a Diploma in International Business Law from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

There are many ways one can relate to movies or films. For someone, they are there to make you laugh or cheer, to entertain, to escape from the harsh realities of our lives, to learn the culture of different worlds and to work as a time machine to relive past events and see what the future has to offer. But films can also invoke negative emotions in a person, like anger, hatred, vengeance, violence, rape, etc., as the film has the power to change perceptions, beliefs or opinions. As a matter of course, the Cinematograph Act, 1952, was enacted by the parliament to filter out those movies that appeal to strong emotions and give green light to those that are socially acceptable.

Aside from invoking happy emotions in individuals, inspiring them, teaching them the importance of love, friendship, and the sacrifice made by the war heroes, the movies also contribute to the fundamental aspects like supporting the economy, igniting spirit of innovation and filling up the employment gap, but piracy or making of infringing copies of films triggers harm to the economy, widening of employment gap, dampening of innovative spirit, loss of income, etc. Though India may not have ranked top in the IP index, ever-present pirating activities made India rank 3rd globally based on the number of visits made to illegal video streaming websites in 2022.

One of the reasons for the increased activities of IP theft or piracy is lenient punishment for such actions, so to curb this menace, many amendments have been proposed and accepted by both houses of parliament in the Cinematograph Act, 1952, in the form of the Cinematograph Amendment Bill of 2023.  

Changes which have been made to stop such illegal actions

Extending the protection of the Copyright Act to the 2023 Bill

The bill introduced two more sections, Sections 6AA and 6AB. These two sections prohibit a person from not only using an audio-visual recording device to make, transmit, or exhibit an “infringing copy” of a film or any part of it from a place that has been licenced to exhibit the film but also from attempting or abetting such acts.

The words “infringing copy”, which have been defined under Section 2 (ddd) of the Bill, have been given the same meaning as “infringing copy” under Section 2 (m) (ii) of the Copyright Act.

Infringing copy means a copy of the film made on any medium using any means

Punishment for piracy

As per Section 7 (1A) of the Cinematograph Amendment Bill, any person who contravenes Sections 6AA and 6AB shall be punished for a term which shall not be less than 3 months, but it may extend to 3 years, and it shall be accompanied with a fine which shall not be less than three lakh rupees, but it may extend to 5% of the film’s gross production cost, against those found making pirated movies, which shall not be less than a few crores.

How do movies get pirated

To answer this, there are two simple ways: the first is when someone goes into the theatres with their phone, as phones are not restricted, and films it, and another way is when someone after the production of a movie steals a copy of the film or when a copy of the movie is sent to reviewers or the sensor board for certification purposes and gets leaked by someone.

But the question is: how will it be proven which person made and distributed the pirated or infringing copy of the film? Is consumption of such infringing content also punishable?

Invisible watermarks: I came to know that every single copy of the film that is distributed to theatres contains an invisible watermark. If someone records the cinematograph film from a theatre and later distributes the recorded content online, then the producer can check the recorded version, and after analysing it, he can figure from which cinema or theatre the particular ‘infringing copy’ has been recorded. This process makes the investigation much easier, and the punishment is to send a message that this kind of IP theft will not be tolerated.

Punishment for consumption of pirated content

As far as the consumption of the illegally copied version, the leaked copy of the film, or unlicensed content is concerned, consuming it or watching it online is not punishable, but downloading such content has the effect of making you the distributor of that film. The Bombay High Court has also confirmed that watching pirated content is not illegal.

Age-based certification

Criminal litigation

The purpose of providing age-based certification under Section 5A is to distinguish which audio-visual content is suitable for different categories of people, Section 5A, under the Cinematograph Act of 1952, provides 4 categories of ratings they are, category U, which means that the content of the film is suitable for everyone, whatever will be the age of a person, he can go the cinema and watch it, another category is U/A, it means that file can be viewed by everyone but for children or minors it can only be watched under adult supervision, next is A category, under this only adult, who are above the age of 18, are allowed to enter into the cinema, where the film is being exhibited and another category is S category, it means the film is not for public exhibition but restricted to a specialised audience, the suitable example for this can, the videos for doctors for very advanced surgery. 

But, in 2016, a committee was set up to create a comprehensive structure for film certification under the guidance of Shri Shyam Benegal, hence the Shyam Benegal Committee. The two of many objectives set for the committee were to protect children and adults from damaging or inappropriate content and to provide such age-based classification so that parents would be able to make effective viewing decisions. It recommended making the categorization of the film more specific by splitting the U/A category into sub-categories of U/A 12+, U/A 15+, and A to further break into A and AC (Adult with Caution).

Later in 2021, people from different arenas, be it civil society, trade organizations and associations, or filmmakers, demanded that OTT platforms like Netflix, Amazon Prime, or Hotstar classify their content or movies into different categories and demanded government intervention, so the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, required the OTT platforms such as Netflix, Amazon Prime, or Hotstar to self-classify their movies into U, U/A 7+, U/A 13+, U/A 16+, and A. These rules were framed in light of the difference in viewership of a movie in theatres or on television in comparison to watching the content on the Internet.

So, under the current Cinematograph Amendment Bill, 2023, the four categories, U, A, S, and U/A, are split into U/A 7+, U/A 13+, and U/A 16+. This move has been made keeping in mind the IT Rules, 2021, on age-based certification provided for streaming platforms.

Separate certification for the exhibition of films on TV and ‘other media’

The newly substituted Section 4(3) of the Cinematograph Amendment Bill, 2023, empowers the board to sanction a film whose public exhibition is restricted to adults or specific members of any profession with a separate certificate for exhibition on television or such other media as may be prescribed.

Certificate period amendment under Section 5A(3)

Under the Cinematograph Act 1952, any certification that will be provided by the board to make the film audience worthy shall be valid throughout India ‘for 10 years’ as provided under Section 5A(3), but in the new Cinematograph Amendment Bill of 2023, after the amendment of Section 5A(3), the term ‘for a period of 10 years’ has been omitted from the 1952 act, so it conveys that now there will be no time limit for the expiry of the certificate granted to the films; it shall remain valid for an indefinite period.

Removal of the revisional power of the Union Government

The Cinematograph Amendment Bill, 2023, has omitted Section 6 (1) of the Cinematograph Act, 1952, which provided revisional power to the Union Government, means permitting the government to take decisions related to the certification of the film, which threatens to weaken the independent status of CBFS by subjecting a quasi-judicial body to the scrutiny of the executives.

But if you rifle through the previous Cinematograph amendment bills like those of 2019 and 2021, then you will observe that even after the judgement of the Apex Court in Union of India vs. K.M. Shankarappa (2000), which held Section 6(1) as unconstitutional, repeated attempts have been made time and again to suppress the decision of a quasi-judicial body regarding certification without appropriate legislation.

Case laws

Pratibha Naitthani vs. Union of India and Ors. (2006)

In the case of Pratibha Naitthani vs. Union of India and Ors. (2006), the petitioner filed a writ petition before the Bombay High Court, stricken by the telecast of adult and obscene films telecasted on electronic media, and even after an order passed by the court to restrain such activities, TV channels continued to telecast films rated ‘A’ by the CBFC.

So, the issue raised here was whether cable operators have the liberty and free will to telecast movies that were certified as ‘A’ by the CBFC.

Rule: Section 6(1)(o) of the Cable Television Network Rules, 1994, states that no programme should be carried out in the cable service that is not suitable for ‘unrestricted public exhibition’ (universal exhibition); this expression ‘unrestricted public exhibition’ has the same meaning as used in Section 4(1)(i) of the Cinematograph Act, 1952, so it means that the films that don’t have the sanction for ‘unrestricted public exhibition’ can’t be telecasted by cable service providers.

Here, the Bombay High Court held that by Rule 6 (1)(o) of the Cable Television Network Rules, 1994, the adult viewer’s right to view adult films is not taken away; he will always have a choice to view such films in a cinema hall or on private TV using DVD or VCD, as there is no restriction on these modes under the law. So, the court directed the cable operators and cable service providers that they shall not provide cable service for films that are not sanctioned for ‘unrestricted public exhibition’ by the CBFC. So, the SC passed an injunction order stating that all TV channels are prohibited from telecasting any adult TV programme without a suitable certification from the CBFC.

K.A. Abbas vs. The Union of India & Anr. (1970) 

In the case of K.A. Abbas vs. The Union of India & Anr. (1970), the petitioner is a journalist, writer, and director of cinematograph films. In the year 1968, he made a documentary named A Tale of Four Cities, depicting the contrasting behaviour of the rich and the poor, as well as a few scenes of a woman receiving money for sexual favour and another person snatching money from the woman, depicting the exploitation of a woman by a man, etc. The petitioner applied for a ‘U’ certificate for his documentary to the Board of Film Censor for ‘unrestricted exhibition’ of the film, but he received an ‘A’ certificate as the film was not suitable for ‘unrestricted public exhibition’, but it was suitable to exhibit the film for adult viewers. Later, the revising committee also gave the same decision, but the petitioner explained that the reason behind the film is just to depict the stark contrast between the living standards of rich and poor and also the agony of women, who become prey to desperation and poor circumstances, and asserted that there is no obscenity in the film. The board didn’t alter its decision, and the petitioner appealed to the central government, but the central government ordered the petitioner to make some modifications if he wanted to receive the ‘U’ certificate.

He challenged the constitutional validity of the Cinematograph Act, 1952, and Section 62, under which the central government could revise the decision of the CBFC, among other issues related to the pre-censorship of a movie and the absence of an appeal against the decision of the CBFC to a court or tribunal.

Here, SC rejected all other contentions of the petitioner except one, which is that the Central Government can’t be the final authority to decide the fate of the certification of the film. As K.A. Abbas had appealed to the Central Government to get ‘U’ certification for his film, the SC held that only experts sitting as tribunals deciding matters quasi-judicially would be eligible to hear the appeal, not the Union Government, functioning through one of its secretaries.

But, even after introducing the appeal provision and constitution of the Film Creation Appellants Tribunal (FCAT) through the amendment with effect from 1983, the Union Government still retained its revisional power under Section 6 over the certification decisions already taken or which were still pending before the CBFC or FCAT.

Later, to eradicate this problem permanently, the amended Section 6 of the Cinematograph Act, 1952, was challenged in the case of K.M. Shankarappa vs. Union of India. In this case, the Karnataka High Court held the revisional power of the government as unconstitutional because it breaches the concept of separation of power under the constitution of India; otherwise, it would lead to the executive rendering judgement on a problem, which is not the task of the executive, and it would amount to a violation of the basic structure of the constitution. So, if CBFC refuses to grant a certificate or directs an applicant to make certain modifications as a condition for certification, then the appeal against the decision of the board lies with the Appellate Tribunal.

Later, when the case went in appeal, Union of India v. K.M. Shankarappa (2000), the SC upheld the decision of the Karnataka High Court and held that once a film has been given a certificate, the power of revision would no longer be exercisable by the government in respect of such a film; otherwise, it would amount to a review of a decision of a quasi-judicial body by the executive.

Conclusion

With the ever-changing environment, the needs of society also change, which aspires to create different inventions and innovations to satisfy those ever changing and growing needs. Until 2005, when sales of films used to take place through cassettes and optical discs, it has now shifted to online streaming platforms. Similarly, earlier, piracy was carried out by way of CD or DVD, but now, with the emergence of the Internet, things have switched to piracy being executed in cyberspace. Henceforth, to suppress such illicit conduct, the change in the Cinematograph Act of 1952 was long overdue. So, keeping our fingers and toes crossed, we hope that this change can put the fear of God in pirates and aid our film industry in producing content without the fear of losing income to piracy.

References


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:

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Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Implementing learning theories in a classroom

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This article has been written by Manju Sharma pursuing Personal Branding Program for Corporate Leaders and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

No two students are the same; their learning skills can be different. Every person’s brain is unique. Learning theory can be better explained by how the student receives the information, processes it and understands it. So there are five different learning theories that can be implemented by a teacher in their classroom.

Five learning theories:

  1. Behaviorism
  2. Cognitivism
  3. Constructivism
  4. Humanism
  5. Connectivism

So let’s learn about each theory and its impact on our teaching.

Behavioural learning theory

This theory was founded by B. Watson in 1913. Behaviourism learning theory mainly focuses on how the student interacts with their environment and how they react to it. In this theory, we basically learn how their environment influences their behaviour. It also postulates that learning can be completed if any changes in their behaviour reflect that. Basically, every person is influenced by their environment and they behave according to that. People’s behaviour depends on the stimuli they get from their surroundings, and they respond according to that. According to the theory, a learner is born without influences. His behaviour can be influenced by positive or negative reinforcement. Positive reinforcement is when a trainer wants a particular behaviour from the trainee and then provides a positive stimulus to prompt the particular behaviour. Negative reinforcement is when the trainer wants to stop a particular behaviour and then provides a negative stimulus to stop the behaviour.

Types of behaviourism

Classical conditioning 

The concept of classical conditioning was first introduced by a Russian physiologist named Ivan Pavlov in his experiment on dogs’ digestive systems. He saw that in his experiment, the dog salivated whenever he saw the white coat of the lab assistant before being fed. 

So according to classical conditioning, principal learning happens through the collaboration of natural stimulus and neutral stimulus occurrence. For example, in his experiment, Pavlov joined the natural stimulus food with the neutral stimuli sound of a bell. The dog started to salivate whenever he saw the food, but after some collaborations, the dog would start to salivate in response to the sound of the bell alone. 

Operant conditioning 

Operant conditioning, also called instrumental conditioning, is a behavior modified method used to shape the learner’s behaviour by giving positive or negative reinforcement. It was first introduced by Edward Thorndike in 1898 but later developed by the behavioural psychologist B.F. Skinner. 

When a behaviour leads to a desirable outcome, it is believed that they will repeat the same behaviour in the future as well. If the action leads to negative consequences, it is most likely that the behaviour will not repeat itself in the future. We can implement operant conditioning in the classroom when we want a positive or negative outcome from the learner through repetition and want to stop negative behaviour. For example: when a student does his homework properly, neat and cleanly, the teacher can give him a very good grade and give him a star.

Observational conditioning 

Albert wrote a book in 1977 “Social Learning Theory”. They believed that learning could not be possible without collaboration and direct reinforcement.

In place of this, they said learning is basically done by observation. Learners observe the acts of the people around them, like their parents, their siblings, or their friends and follow their behaviour. For example: when a 10 or 11 month baby sees his or her sibling saying bye to his parents while going somewhere, the baby watches and observes all the activities and copies them. When their parents ask the baby to say bye, he imitates. Observation happens in classrooms as well, like when a student observes how the teacher talks to him, the dressing sense of each teacher, and the behaviour of every teacher. 

Strengths      Weakness
Students are positively reinforced to get that work done again and negatively reinforced to stop the task the teacher doesn’t want them to do and this is the key to behaviourism. For example, I give positive reinforcement, like giving some points for doing homework properly, and I deduct some points for not doing homework properly. So next time, students should get prepared to do their homework properly.Teachers also get satisfaction because they know how to manage the student’s behaviour by giving rewards or punishments. For example, if a teacher now knows what punishment to give to naughty students or super active students, he can say, “Okay, make five rounds of playground,” and then students will start behaving properly in class.Students get motivation when they get rewarded for their good work. For example, when a student does their assignment properly with all the rubrics following, the teacher says “Good Job” or writes “excellent work” on his assignment. Students get motivated by doing these small thingsIt is Teacher – centered as the teacher stimulates the student and gives a response according to that. For eg. If teacher says you have to do this work properly, otherwise you will not be allowed to attend sports activities,   will follow teacher’s commands, whether it is positive reinforcement or negative reinforcement.Students’ thought processes and emotions are ignored as they practise what the teacher says. For example, if the teacher says to do this work ten times, otherwise you will not be allowed to sit with friend for next ten days, then he will do that work. In any case, no student’s emotions are taken care of.Students can get bored by repetitive reinforcement activities. For example, if a teacher rewards a student by saying “good job” every time the student gets habitual and starts getting bored, teachers need to change rewards.

Cognitivism learning theory

Cognitivism theory is basically focused on how information is received, organised, stored and processed by the mind. In this theory, our brain not only observes things but also analyses and processes them. It is basically a mental process. In this way, learners are actively involved in the way information is processed. Cognitivism rejects behaviourism; it says the complex behaviour of a person is the result of stimulus and response. Cognitive theory focuses on understanding the internal mental process. Cognitivism theory was developed as a reaction to behaviourism in the 1950s by John Piaget. 

StrengthWeakness
It increases the understanding of learners because of brain storming activities. For example, I give students some topics to research at home and allow them to ask questions.It develops problem-solving skills in students because they analyse things. For eg. If a student learns to write a C++ sum of  two variables next time, he can also subtract two variables.It promotes long-term storage of understanding because students get the information, analyse it and store it. For eg. In our childhood, we learned alphabets, counting, and addition. We remember those things today as well.The learner learns a way to complete a task best suited to him, which may not be best suited to him in all situations.For example: the process of logging into one computer may be different for another computer.Learners can start to learn the things that are not good for them. For example, when a learner learns cyber security or hacking, he can use that in negative way as well.

Constructivism learning theory

Constructivism theory says that learners construct their understanding and knowledge of the world through experiencing things, which they then relate to their prior knowledge and experience. According to this theory, the learner is not blank; he has some prior knowledge. Constructivism is somewhat similar to cognitive theory, but the difference is that cognitivism is when a teacher uses group activities or brainstorming to add on new knowledge or remove prior knowledge he has learned from somewhere and that is wrong. 

Constructivism theory evolved in the 18th century. Before that, behaviourism theory ruled the world. Giambattista Vico-coined the term “constructivist.”.                   

StrengthWeakness 
Most remembering experience a learner gets Because learner learn by simulations For example: when I teach my students CPU, I show them CPU by opening a black box or by showing them videos of CPU working.Group involvement because group activities are performed by students. For example, I give students the opportunity to make a project in groups that they make in collaboration with each other and learn new ideas.Allows learners to draw on their own experiences and opinions. For example, when students are provided with problem solving activities, they do brain storming to solve the problem and do their research work. They also create their own experiences and draw their own opinions.It is very difficult to relate to new subject if he has no prior knowledge. For example, when I have to teach my students any programming language, like JavaScript, they are unable to relate their own concepts to that new language.Some students may not have the ability to do work in groups. For example, when I make groups to do a JavaScript programme, some students sit still and just look at what is happening. Because not every student’s learning is same.It is very difficult for a teacher to control the whole class when they are in groups. 

Humanism learning theory

The learning theory of humanism is closely related to constructivism. In humanism, the teacher is primarily concerned with the students’ self-actualization. Every person has some requirements and he functions under the hierarchy of these requirements. Self-actualization is at the top of this hierarchy of needs. It is the moment when he feels all his needs are full-filled then he feels at the top of self-actualization and they feel it is the best version of them. Everyone struggles with this, and the learning environment can move forward if it meets these needs or not.

Teachers can create environments for students to make them feel self-actualized. A teacher can help students fulfil their emotional and physical needs by giving them a secure and comfortable environment to learn in, plenty of food and the support they require to succeed.

StrengthWeakness 
It focuses on the overall development of the learner instead of focusing on unconscious behaviour, their genes or their mind. Sometimes in my class, I ask students what they want to become in life; they share their thoughts, and they feel so important that the teacher wants to know about them.Unorthodox methods of learning-It highlight the importance of individualistic methods of learning. Teachers take care of every student’s emotions and practises. Like when my students practise on computers, I check every student’s progress by visiting everyone’s workstation.Learner centered counseling- learner feels more comfortable sharing his feelings in a counselling session.A teacher has to take care of individual’s feelings and needs. It is time taking task. For example, to check my student’s progress, I will have to visit every student’s workstation.Limited solutions are generated as every learner presents their unique problem and gets only limited solutions because teacher may not have solution to everyone’s problem. For example, if I am teaching programmes in JavaScript and the student’s minds are clicking on different questions related to programme, then I will have to search for their answers sometime.It is considered unscientific because of lack of objective methods.

Connectivism learning theory

This learning theory focuses on the fact that students learn and grow by making connections with their environment. Today is the digital age; every person is connected through technology. If a teacher wants to search for a question, he can find it on Wikipedia, Google assistant or Alexa. If a person is in doubt about any concept, he can chat with his friends or colleagues. Today, every person is connected through the internet. It’s clear that a student not only learns from their teacher or their textbooks but also from technology. He has lots of options to solve his problems. In fact, a study from 2015 found that 87% of college students used their laptops for their schoolwork every week and 64% used their smartphones for schoolwork.  

The increasing use of technology in teaching as an educational tool has changed the way people learn. The gap between traditional teaching and modern teaching methods has been filled by connectivism theory. 

Connectivism was first launched by two theorists, George Siemens and Stephen Downes. Siemens article Connectivism: Learning as a Network was published online in 2004 and Downes’s article: An Introduction to Connectivism was published in the following years.  

StrengthsWeaknesses 
It creates an association because learners learn from their peers by communicating their ideas and viewpoints and sharing their knowledge through their association.It entitles facilitator and learner, as it transfers the responsibility from trainer to trainee for how they acquire knowledge from their environment. Seize the divergence, as it supports the opinion of every learner and the divergence of their viewpoints. Students are grouped according to their ability level and they feel distinguished from the others.All responsibilities are transferred to learners so they learn according to their level.Learners feel demoralised and alone according to their capabilities when they are divided into groups according to their abilities. 

Impact of learning theories in the classroom

Behaviorism 

The impact of this theory is that students remain positive and do their work enthusiastically. Giving them rewards encourages them to do their work to their full potential.

I use behaviourism in my classroom. I teach grade nine students. I appreciate the student in front of all students when he does good assignment work. By doing this, other students are encouraged to do good work next time. I use negative reinforcement for the students who do not do their homework regularly. I instruct them that if you do not do your work next time, you will not be allowed to visit on a school trip. Then they come with their complete homework for the next class and they do it neatly and cleanly. So it is good practise to use this theory in the classroom. 

Cognitivism 

The impact of implementing this theory in class is that by relating the topics to their prior knowledge, they better understand all concepts, and the knowledge remains for a longer period of time in their memory. Their confidence increases because when they see that the teacher is asking them questions personally, they feel their importance in front of the class.

I teach structure of computer system, like input and output devices, processors, storage devices, etc. I relate my topic to our body structure, like a computer processor, which is just like our brain because the brain manages each and every task of our body, like how to manage the workload in the morning, which task to do first, then second and so on. So the computer processor manages the multiple tasks it receives and completes them in proper sequence. 

Humanism

When I enter the classroom, I start with some activities to relax them, like standing up and sitting down ten times, then they become more active and then concentrate on their topic in a better way. Even they start enjoying the class afterward. The learner observes everything in his classroom, from their teacher to their peers. The teacher should behave with students by considering their emotions, feelings, and self-esteem. A student’s behaviour is the reflection of their teacher, their parent, their neighbor and their peers. So teachers should behave like role models for them; they should speak politely .The impact of this can be seen in their behaviour.

Sometimes I give them a self –evaluation sheet after mid-term exam and ask them to evaluate themselves. This allows them to feel self-reflection on their performance and feel more confident. When we give them value, they give value to us. I don’t use harsh words for my students; I speak politely and my politeness reflects on my students. 

Constructivism

Before starting a new topic, I start asking questions to check their prior knowledge, and then I teach them according to that. I use some activities like brainstorming and discussion, and I also conduct guest lectures to give them new knowledge and experience. For example, I give them some topics to research from home. The next day, they come with their answers and present their experience in front of the class through a presentation. So lots of brain storming happens in these kinds of activities.  

The impact of this theory on students is that they get new ideas by doing brain storming activities and doing group discussions. The other impact of this theory is that sometimes it becomes difficult for a teacher to remove a student’s prior learning from their mind. Teachers have to put in lots of effort.

Connectivism

Connectivism is a learning theory in which learning is done through the inclusion of technology. Through technology, it has become possible to share thoughts, ideas, Google Forms, and other activities with people.

In my classroom, I teach 9th and 10th grade students. To connect them with technology, I usually use PowerPoint presentations and YouTube videos to get them to connect with technology. I give them some questions to search for answers on the Internet and ask them in the classroom. I ask them to make an Excel sheet of your daily household expenses and use a formula to calculate total expenses. 

The impact of implementing connectivism in the classroom is that students become more high-tech and explore new ideas. There is also a bad impact on students, like when they start to play games and use other websites, etc. So we have to take into account these aspects as well.

Comparison between all learning theories

BehaviorismConstructivism HumanismCognitivism
Role of learnersIn this theory, learners only respond to stimuli. Here, the learner is not active. In this theory, the learner is in an active process because all focus is on the learner as new knowledge is constructed based on their prior knowledge.The curriculum is also designed according to learners’ requirements. The learner is in an active process because, while making curriculum, they are kept in mind and their feelings and emotions are considered first. The teacher asks learners what they want to learn in the next session; assignments are also designed according to their level of understanding. In this theory, learners receive, process and store the information, organise it and recall it whenever required.
Role of teacherIn this theory, the teacher is active because he facilitates stimulus to get a response from the child.
For example: when teacher wants class to be managed, he can saying, “class be seated properly,” and then students will sit properly.
The role of the teacher here is to focus on making curriculum by considering the prior knowledge of learners and having to remove standardised curriculum. The role of the teacher here is to create a threatening free environment so that children can learn with a positive mindset. The teacher has to take care of individual learner’s needs.Teachers make their learners perfect at self-reflection by providing them with a self-reflection worksheet. It is the responsibility of teachers to give proper guidance to their students for their development.In this theory, the role of the teacher is to relate the students’ prior knowledge to the current concepts. Teacher give problem solving tasks or make their groups analyse any problem and do brain storming.
Key ideasThis theory stress only on observations but does not on internal mental processingIt is nothing more than to acquire new behaviours through conditioning.Conditioning is of two kinds:Classical conditioningIt is a natural response to a stimulus, like when we salivate when we see good food of our choiceOperant conditioningIt happens when a response is generated by reinforcement. Like when we want to make it a habit for our child to wash their hands, then we will instruct them again and again, and then it will become their habit.
A teacher plays an important role in guiding their students, motivating them and monitoring their activities.Learners themselves are the creators of their learning. The learner’s prior knowledge plays an important role in building their new concepts.The role of the teacher here is to create a threatening free environment so that children can learn a positive mindset. A teacher has to take care of individual learner’s needs.Teachers make their learners perfect at self-reflection by providing them with a self-reflection worksheet.
This theory focuses on a person’s brain activity, how he is responding to any task, how our brain processes information and how it retrieves it when required. The focus is only on brain processing.For example computer program in C++ language , if we do not practice of writing, it will remain in our mind for short period.For example: counting is practised in our childhood multiple times, we can recall that instantly because we are memorising it regularly.

Judgements on learning theories

Behaviorism

By using behaviourism, a teacher becomes more confident because he knows how to manage naughty students and how to encourage them to do their work appropriately. The whole class gets managed as teachers take care of everything, like their behaviour with students, chart paper pasting on the classroom board and other factors. Because teachers know that students are learning from their environment, what they see, they observe and learn. The outcome of using behaviourism is awesome, because some students in my class showed a massive improvement in their performance and efforts.

Cognitivism

My judgement on using cognitivism in the classroom is that it is a good way to make learners understand all topics clearly. Teachers relate concepts to their prior knowledge to make learners understand the topic. For example, if my students are not understanding what input devices are in a computer system, I will try to find some real life examples for them. In our body, our hands, mouth, ears, and nose are all used to give input to our brain. Just like that, in a computer system, a keyboard, scanner, and webcam are used to give input to our computer system. From this example, my students will understand input devices in a clear manner, which they will store in their minds for future knowledge. But sometimes it becomes a time taking task to make students understand everything by connecting class teaching topics with their prior knowledge because it is very difficult to move with every student’s understanding.

Constructivism

My judgement on this theory is that students become more confident when teachers ask them questions related to their current lesson and they give the answer. For example, when I teach networking to my 10th grade students, I ask them questions and sometimes I give them a pre assessment test to test their knowledge. By doing assessments, they come to know their level of understanding about the upcoming topic and they become more enthusiastic.

Humanism

My judgement on humanism is as follows:

  • Students feel more confident as teachers give them importance in selecting their topic for next session. 
  • Students and teachers both enjoy their teaching and learning because teachers work according to children’s feelings and emotions and students follow the instructions of their teacher.
  • Students can analyse their performance using self-evaluation worksheets. 
  • Students can select assignments according to their level, which makes them more energetic.  

Connectivism

My views on connectivism are that it is a great idea to connect people through technology because people learn more by connecting them with their peers , friends , and technology. The main task of the teacher here is to guide them, determine which path they have to follow to complete their task, and determine what they should and should not do. So every teacher must include this theory in their teaching. But the cons of this theory are that the teacher must be familiar with technology and must be updated accordingly so that he can guide students in a proper way. The other drawback of using this theory is that the learner can become addicted to technology and he can try to use other useless tasks like playing games on his laptop or using other websites that are not of his or her use and then he can go deeper and deeper. So we have to monitor their activities.

References


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Unleashing innovation through Indian startups

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This article has been written by Nagesh H. Karale, pursuing a Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction 

A startup is an entrepreneurial venture in the early stages of operations with limited resources, generally created to solve real-life problems.

An entity shall be considered a startup if it satisfies the following conditions:

  • It is incorporated/registered as any of the following: a private limited company, a partnership firm, a limited liability partnership, or a one person company.
  • The entity is not formed by splitting up or reconstructing an existing business.
  • It has not completed ten years since incorporation/registration.
  • Its turnover for any financial year has not exceeded INR 100 crore.
  • It satisfies any of the following conditions:
  1. Working towards innovation of new products/processes/services or development of existing ones.
  2. Working towards improvement of existing products/processes/services.
  3. It has a scalable business model with high potential for employment generation or wealth creation.

Rise of Indian start-ups

Startup India is a flagship initiative programme of the Government of India. The main objective of this programme is to promote   startup culture and build a strong and inclusive ecosystem for innovation and entrepreneurship in India. It was launched on January 16, 2016, to build a strong ecosystem for nurturing innovation and startups in the country. In the future, it will lead to sustainable economic growth and generate large scale employment opportunities.

India has observed a significant start-up boom in recent years and seeks attention from around the world. The Indian startup ecosystem has seen an increase in the number of startups, from 452 in 2016 to 84,012 in 2022, according to the Indian Economic Survey Report 2022-23.

Impact of Indian startups on the nation’s economy

India’s start-up ecosystem is considered the third largest in the world (as per the Economic Survey 2021-22) after the US and China. Presently, startups are contributing about 3% to the overall GDP and that is likely to become 10% in the next decade. By 2025, we expect Indian startups to contribute at least 4-5% of the country’s GDP, employing ~3-4 million people.

By 2025, India is expected to have 62,000 startups, according to a report by TiE-Delhi and Zinnov cited by Mint. And the combined valuation of India’s startups is expected to reach $1 trillion in 2025, according to 3one4 Capital, cited by Mint.

The startups have created more than 9 lac direct jobs, according to the report presented by the Department for Promotion of Industry and Internal Trade (DPIIT). The country has observed a 64 percent increase in new jobs in 2022 relative to the last three years. Tier 2 and Tier 3 cities are emerging as hotspots, as they are home to about 48 percent of startups.

India has some 1,000 agritech startups and more than 500 startups are working in the millet value chains when the year 2023 is declared the International Year of Millets.

The Unified Payment Interface (UPI) has encouraged startups and e-commerce players in the country to provide innovative solutions for customers. Between the financial years 2019-2022, UPI-based transactions grew in value by 121 percent and volume by 115 percent, the report stated.

Government initiatives and support

To strengthen the startup Ecosystem, Indian government had announced an action plan to accelerate growth from the digital/technology sector to many important sectors like agriculture, manufacturing, social sector, healthcare, education, etc. The Startup India Action Plan was announced on January 16, 2016. It consisted of 19 action items spanning across three key areas of ‘simplification and handholding’, ‘funding support and incentives’, and ‘industry-academia partnerships and incubation’. Some other key benefits that the Action Plan included were entitlement to an 80% rebate in patent registration fees as well as a 50% rebate in trademark filing. Startups also benefit from faster exit norms and free of cost assistance provided by patent and trademark facilitators in filing for intellectual property rights (IPRs).

Salient features of the action plan

Salient features of the action plan are:

  1. Regulatory formalities requiring compliance are based on Self-Certification to reduce the regulatory burden on startups, thereby allowing them to focus on their core business and keep compliance costs low.
  2. Startup India Hub to create a single point of contact for the entire startup ecosystem and enable knowledge exchange and access to funding.
  3. Rolling-out of an App and Portal to serve as a single platform for startups to interact with Government and Regulatory Institutions for all business needs and exchange information among various stakeholders
  4. Legal support is needed to promote awareness and adoption of IPRs by startups and facilitate their protection and commercialization by providing access to high quality intellectual property services and resources, including fast-track examination of patent applications and rebates in fees.
  5. Relaxed norms to provide an equal platform to startups (in the manufacturing sector) vis-à-vis experienced entrepreneurs/ companies in public procurement.
  6. Faster exit for startups to make it easier for startups to wind up operations within a period of 90 days from making an application for winding up.
  7. Providing funding support through a fund of funds with a corpus of INR 10,000 crore to provide funding support for the development and growth of innovation driven enterprises.
  8. The Credit Guarantee Fund for Startups aims to catalyse entrepreneurship by providing credit to innovators across all sections of society.
  9. Tax exemption on capital gains to promote investments in startups by mobilising the capital gains arising from the sale of capital assets.
  10. Tax exemption on investments above fair market value to encourage seed-capital investment in startups.
  11. Organising startup fests to showcase innovation and provide a collaboration platform to galvanise the startup ecosystem and provide national and international visibility to the startup ecosystem in India.
  12. Harnessing private sector expertise for incubator setup to ensure professional management of government sponsored / funded incubators, the government will create a policy and framework for setting-up of incubators across the country in public private partnership.
  13. Building innovation centres at national institutes to propel successful innovation through augmentation of incubation and R&D efforts.
  14. The setting up of seven new research parks, modelled on the Research Park Setup at IIT Madras, will propel successful innovation through incubation and joint R&D efforts between academia and industry.
  15. Promoting startups in the biotechnology sector to foster and facilitate bio-entrepreneurship.
  16. Launching of innovation focused programmes for students to foster a culture of innovation in the field of science and technology amongst students.
  17. The annual incubator grand challenge is to support the creation of successful world class incubators in India.

10 startup accelerators and incubators in India

  1. ‘500 Global’ is primarily a global venture capital firm that began in 2010 and has Indian headquarters situated in Bangalore. It is primarily interested in startups from the tech industry.
  2. TLabs is a startup accelerator that was founded in 2011 in Bangalore. Apart from the mentors, TLabs provides weekly catch-ups across the different verticals of the business from an in-house team in the 16-week programme.
  3. CISCO Launchpad is a corporate accelerator programme that specialises in helping deep-tech startups that work in disruptive technologies. The Cisco Launchpad programme accepts 2 batches of 6-8 startups a year, which are mentored by over 100 industry experts.
  4. Indian Angel Network is an accelerator/incubator programme, but it provides not only connections with investors and successful entrepreneurs but also their mentoring, investment and advice in the long run.
  5. DevX Accel’s 90 programme focuses on startups that solve problems using a combination of artificial intelligence and the Internet of Things.
  6. ICreate (the International Centre for Entrepreneurship and Technology) is situated on the outskirts of Ahmedabad. The Icreate startup accelerator looks for startups in the fields of information technology, electronics, biotechnology, nanotechnology, robotics, non-conventional green energy generation, food processing, Bio-Medical Equipment and devices.
  7. Prime Venture Partners, formerly known as Angel Prime, is an early-stage venture capital firm that helps entrepreneurs and operators grow in their chosen vertical.
  8. CIIE- IIM Ahmedabad Startup Incubator programme provides training and mentoring programmes, along with connecting startups with like-minded collaborators and partners, investment opportunities, and learning resources and insights for entrepreneurs.
  9. DLabs’s pre-incubation program is supported by the Department of Science and Technology.
  10. GSF Accelerator provides a personalised accelerator programme and intensive mentoring in a 13-week long programme. It is located in Gurgaon.

India’s startup hubs and success stories

Bangalore has been raised as the Silicon Valley of India and the IT capital of India, which is the centre of India’s tech industry. In the 2019 report, Bangalore had the third-highest number of tech startups in the world. Delhi and Hyderabad are also racing alongside Bengaluru to become hubs of innovation. Alphabet, the parent company of Google, announced a $36 million investment in Bengaluru-based space startup Pixxel.

Following are the few startups that have survived incredibly over the years and are looking to expand their reach further:

  1. PharmEasy is an online pharmacy and medical store founded in 2015 in Mumbai, India, that specialises in OTC products, diagnostic tests, and medical instruments. This health tech startup has raised a massive $350 million, becoming the first E-pharmacy unicorn in India.
  2. Meesho is the ecosystem that was founded by IIT-Delhi graduates and enables small businesses to perform on the online platform. Meesho connects sellers with customers in an online marketplace and offers management of logistics, orders, and payments to the sellers.
  3. Swiggy is the largest food delivery platform, headquartered in Bangalore, India, and serving 27 cities. It has partnered with more than 40,000 restaurants.
  4. Delhivery is a supply chain management firm that specialises in transportation, warehousing, freight, and order fulfilment.
  5. PhonePe is a popular digital payments and financial services platform in India, founded in 2016. It allows users to transfer money, pay bills, recharge mobile phones, buy insurance, and invest in mutual funds, among other financial services.
  6. Licious is a food tech company founded in 2015 that operates an online meat and seafood delivery platform in India.
  7. Policybazaar is an Indian online insurance aggregator and financial technology company that was founded in 2008. It provides a digital platform to compare and purchase insurance policies across various categories, including health, life, motor, travel, and home insurance.
  8. Paytm is an Indian financial technology company that provides a wide range of digital payment and financial services to its customers. It was founded in 2010. It offers services like mobile recharges, bill payments, ticket booking, money transfer, and online shopping through its platform.
  9. BigBasket began as a tech startup company, founded in October 2011. Today, it is a large online grocery headquartered in Bangalore, India, and currently owned by Tata Group.
  10. Ola is the first Indian cab aggregator company, launched in December 2010.

Challenges and opportunities

According to the report prepared by a market data intelligence platform, Tracxn noted that in Q1 2023, Indian startups have raised a total of $2.8 billion in funds to date, which is 75% lower compared to the same period in the previous year ($11.9 billion). The drop in funding can be attributed to rising inflation and interest rates impacting investments significantly. FinTech, retail, and enterprise applications were the top-performing sectors in Q1 2023. There were no new unicorns created in Q1 of 2023, compared with 14 unicorns in Q1 of 2022. Bangalore is leading in the total funds raised, followed by Delhi and Mumbai.

India, the second-most funded country after the US in Q1 2023, witnessed a 63% decline in the number of funding deals in the first quarter of 2023 compared to 2022. Inflation and the war in Ukraine are blamed for the slowdown in funding.

According to Tracxn’s research, more than 80 percent of the top ten investors in seed-stage rounds are from India. But the top ten investors in early and late-stage rounds are dominated mainly by US investors.

In the past, the availability of capital and skilled professionals contributed to the growth of entrepreneurship in India.

Following are the main challenges for Indian startups:

  • Many Indian startup founders have a technical background and lack business knowledge like hiring and managing a team, dealing with customers, and developing a marketing strategy.
  • At the early stages, many startups are bootstrapped or self-funded through the founders’ savings or capital from friends and family. But in the later stages of expansion, they face difficulty finding the right investor to raise funds.
  • Building up a pan-Indian startup is difficult due to the diversity of cultures, languages, ethnicities and religions, which creates problems in understanding customers in other regions.
  • Most of the startup founders are well-educated and belong to urban metropolises, so due to different living environments, startups often have an insufficient understanding of rural customers and their needs.
  • Indian markets appear difficult to penetrate due to competition from the presence of similar products.
  • Startups are less capable of dealing with bureaucratic regulations. The government prefers to sign contracts with established companies to purchase products.
  • Communication with and retention of customers for innovative products/services or new market segments is difficult and time consuming.
  • Due to the price sensitive nature of Indian customers, they expect discounts or buy cheaper versions from China. So many businesses are volume driven, with marginal returns and compromised quality. For those startups that do not charge customers through digital payment, collecting and ensuring timely payment can be another issue.
  • higher. Indian startups face difficulty attracting international talent due to higher payments, bureaucracy, and visa requirements.
  • The present regulatory framework in which startups operate is widely seen as difficult, inefficient, and unpredictable.
  • The legal incorporation and registration of a startup, as well as the closing of a business, are lengthy and costly.
  • The Technology Incubation and Development of Entrepreneurs (TIDE 2.0) Scheme will promote tech entrepreneurship through financial and technical support to incubators engaged in supporting 4000 ICT startups primarily engaged in using emerging technologies such as IoT, AI, Block-chain, robotics, etc. in pre-identified areas of societal relevance. The scheme will be implemented by empowering 51 incubators in India and handholding close to 2000 tech start-ups over a period of 5 years. 

Conclusion

India’s startup revolution has witnessed significant growth and success, contributing to the country’s economy and employment opportunities. The government’s initiatives and support, along with the presence of startup hubs and success stories, have fueled innovation and entrepreneurship. However, challenges such as funding, market penetration, and regulatory hurdles need to be addressed for sustained growth. The TIDE 2.0 Scheme aims to further promote tech entrepreneurship and support emerging technology startups.

References


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:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Legal analysis of punishment for customs violation

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This article has been written by Surabhi Gupta, pursuing a Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

The entry and exit of commodities and passengers into and out of the country are governed by law, in compliance with international practice. The Customs Act of 1962 is the foundational law that rules and regulates the entry and exit of various types of vessels, crafts, products, persons, and other items into and out of the country. The Department of Customs strives to ensure compliance with a variety of additional national and international rules and regulations in addition to the Customs Act. Customs is responsible for efficiently and effectively handling international traffic while ensuring that all goods and passengers crossing national borders are in compliance with the laws of the state.

Essentially, all goods brought into or taken out of the country must pass through authorised entry/exit points and be reported to Customs, and importers/exporters must comply with the legal and procedural requirements set forth in the Customs Act of 1962 and related laws, including payment of any applicable duties. As a result, the Customs Act spells out in detail rules for dealing with illegal acts and omissions, as well as penalties that can be imposed by departmental authorities and penalties that can be imposed by courts of law. The statute also gives customs officers the authority to conduct searches, make arrests, and prosecute people who commit such crimes. The impositions of various provisions related to penalties in cases of violations require certain procedural requirements to be followed to ensure that legal processes are followed before action against offenders, offending goods, and conveyances involved in violations is taken. 

Punishments mentioned in the Customs Act

There are two types of punishments mentioned in Customs Act-

  • Civil liability- Penalty for violating enacted provisions, which can include monetary fines and the confiscation of goods as applied by departmental authorities. The Customs Act’s Chapter XIV (Sections 111 to 127) deals with the seizure of goods and conveyances, as well as the enforcement of penalties.
  • Criminal liability- A criminal sentence consists of a period of jail and a monetary fine, which can only be imposed following a trial in a criminal court. For the same offence, both a penalty and a punishment might be applied. Other violations under the Act are dealt with in Chapter XVI (Sections 132 to 140A).

Penalties for violation of customs

Punishments for improper imports of goods are laid down in Section 112 of the 1962 Customs Act. The nature of punishment depends upon the gravity of the offence. 

  1. When any prohibited goods under Customs Act or any other law in force presently are imported, the penalty imposed shall be Rs. 5000/- or not exceeding the value of goods, whichever is greater. 
  2. The penalty for the import of dutiable goods other than prohibited goods is not exceeding the duty to be evaded on such dutiable goods or Rs. 5000/- whichever is greater. 
  3. In case of the import of those goods for which the declared value is greater than the value thereof, the penalty should not be more than or exceed the difference between the declared value and the value thereof or Rs. 5,000, whichever is greater.
  4. If the sanctions for the import of goods fall under the categories of (a) and (c), then the punishment should not be more than the value of the goods or the difference between the declared value and the value thereof, or Rs. 5000/-, whichever is greater. 
  5. When it comes to the import of goods that fall under (b) and (c), then the sanction should not exceed the duty that is  to be avoided in case of such goods or the difference between the declared value and the value thereof or Rs. 5,000/-, whichever is the highest.

Punishments for improper export of goods are mentioned under Section 114 of the Customs Act of 1962

Criminal litigation
  1. When any prohibited goods under Customs Act or any other law in force presently are exported, the punishment imposed shall not exceed three times the value of the goods declared by the exporter or the value as determined under the Act, whichever is greater
  2. The penalty for the export of dutiable goods other than prohibited goods shall not exceed the duty that is supposed to be evaded on such goods or Rs. 5,000/-, whichever is greater.
  3. In case of the export of any other kinds of goods, the penalty imposed is not to exceed the value of the goods as declared by the exporter or the value as determined under the Customs Act, whichever is greater.

In the case of both Sections 112 and 114 of the 1962 Customs Act, an amendment has been made by inserting a new clause that states that a penalty shall be imposed, which is up to ten percent of the duty that is to be evaded or Rs. 5000/-, whichever is greater as per the Finance Act, 2015. 

The imposition of penalties on evasions of the service tax and central excise duty through fraud and other means has also been rationalised by the ministry. If the central excise duty is knowingly evaded, then the penalty payable shall be equal to the duty evaded, and if the central excise duty is avoided, then the penalty charged or levied shall be 100 percent of the amount of service tax. If the service tax, interest and reduced penalty are paid within 30 days of the service notice in this regard, then a reduced penalty equal to 15 percent of the amount of service tax is to be paid. And if those amounts combined with interest are paid within 30 days of the issuance of show cause notice, then no penalty will be imposed upon the assessee. 

Mandatory penalty

Section 114A of the Customs Act, 1962, states that a compulsory penalty shall be imposed in the following circumstances- 

  • non levy of duty or
  • short levy of duty or
  • interest has not been charged, has been partially paid or
  • Duty or interest has been mistakenly refunded due to conspiracy involved, misrepresentation, or suppression of facts by the said person, as envisaged therein.

It has been stated that such duty or interest would be as per Section 28(2) of the Act, as mentioned in Section 114A of the Customs Act of 1962, that an individual who is under obligation to pay duty or interest shall be obligated to pay a penalty equal to the duty or interest as determined. However, if such an amount, along with interest and penalties, is given within a period of 30 days, the penalty gets reduced to 15% of the duty or interest, according to the recent amendment. However, there was confusion regarding whether the penalty imposed under Section 114A of the Act would be equal to the amount of duty or it would be equal to duty plus interest due to the use of the conjunction “or” that tends to create confusion. Hence, for this, the board has consulted the Ministry of Law, which stated that for understanding and interpreting the conjunctions ‘or’ and ‘and’,’ Maxwell interpretation of the Statutes shall be considered. 

To solve this confusion, two most important cases were considered that is The State of Bombay vs. R. M. D. Chamarbaugwala (1957) and Tilkayat Shri Govindlalji … vs. The State of Rajasthan and Ors. (1963), in which the Supreme Court observed that ‘or’ and ‘and’ must be used one for another to understand the clear intention of the legislature. 

Keeping in mind the above observation made by the Supreme Court in both cases, it was clarified that the penalty under Section 114A of the Customs Act, 1962, should be equivalent to both duty and interest. 

In cases where such an amount combined with interest and penalty is paid within a period of 30 days, there is a reduction in the duty or interest by 25 percent. 

One more important thing is that no penalty shall be charged under Section 112 or 114 of the Act if the penalty has already been charged under section 114A of the Act

Penalty for purposely using wrong material

In the performance of any business for the purposes of this Act, a person who knowingly or purposely uses false and wrong material shall be liable to a penalty not exceeding five times the value of the goods, according to Section 114AA of the Customs Act, 1962.

The Finance Minister has reduced the penalty by ten percent in situations of fraud in customs duty.

Punishments on individual in charge of conveyance

If any goods loaded in a conveyance for being imported into India, or goods shipped under the provisions of the said Act, are not unloaded at their place of terminus in India, or if the quantity unloaded is less than the quantity to be unloaded at that terminus, and if the failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant/Deputy Commissioner of Customs, the person in charge of the conveyance is liable to the penalty, which should not be more than twice the duty that would have been levied on the goods not unloaded or the substandard goods if such goods were imported. And when it comes to coastal goods, then the penalty should not exceed the export duty that would have been levied on the unloaded or substandard goods if such goods were exported.  

Penalty for those provisions for which there is no prescription or express penalty

Section 117 of the Customs Act of 1962 is a blanket clause that states that the person guilty can be fined up to one lakh rupees for any other violation of the Customs Act for which no express punishment has been given elsewhere.

Conclusion

In conclusion, the primary law that controls the importation and exportation of products and people into and out of the country is the Customs Act of 1962. Compliance with this law and other national and international laws is the responsibility of the Department of Customs. All merchandise entering or leaving the country must do so through authorised entry/exit ports, report to Customs, and follow all applicable laws and regulations, including paying any customs that may be due. Infractions are also subject to civil and criminal fines, according to the Customs Act. Criminal liability can result in incarceration and financial penalties, while civil liability can result in monetary fines and the seizure of property. The nature of the punishment depends on the gravity of the offence, with penalties for improper import or export of goods outlined in Sections 112 and 114 of the Customs Act. Overall, the Customs Act plays a crucial role in regulating international traffic and ensuring compliance with national laws.

References


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.

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All about extradition of criminals from foreign countries

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This article has been written by Jayant Singh, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

What happens to a person who is accused of or convicted of a crime in one country but is currently residing in or has escaped to another country? Will he not be tried in a court of law where he has committed or has been alleged to have committed an offence? Or how will this situation be dealt with? How can he be brought to justice? Well, to deal with such issues, we have the concept or process of extradition. In this article, we will see in detail about what extradition is,  what the procedure is for it, who can file for it, if there are any prerequisites or essentials for successful extradition, how much time it takes, if it is a time-consuming process, etc. Let’s get started!

What is extradition

Extradition is the process in which a person accused or convicted of committing an offence is transferred from the country where he might be at that moment to the country where he has been accused or convicted of committing a criminal offence. He/she undergoes the trial or serves the punishment, whichever is applicable as per the situation.

As defined by Oppenheim, “extradition is the delivery of an accused or a convicted individual to the state on whose territory he is alleged to have committed or to have been convicted of a crime, by the state on whose territory the alleged criminal happens to be for the time”.

The Hon’ble Supreme Court of India defines extradition as the delivery on the part of one state to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the courts of the other state.

For E.g.- ‘A’ commits the offence of murder against ‘B’ in country ‘Y’ and escapes to country ‘Z’ to avoid arrest, then in this situation, country ‘Y’ will formally request the country ‘Z’ to detain ‘A’ and send or bring him back to country ‘Y’.

Of course, there are some essentials for extradition, which we’ll see in this article.

What are the prerequisites or essentials for an extradition to take place

Some essential conditions for extradition to take place are:

  • Extradition treaty: An extradition treaty is a pact between two nations stating the conditions under which they will extradite criminals to one another. Not all nations have extradition agreements in place with one another.
  • Clear case: The requesting country must provide the asking country with sufficient proof that the person sought has committed a crime that qualifies for extradition in accordance with the treaty.
  • Double criminality: Both the requesting and the requested countries must have laws against the crime for which the person is sought.
  • Fair trial: The country making the request must guarantee the sought-after person a fair trial. 
  • Political refugee: A person who has left their nation due to their political ideas or actions is referred to as a political refugee. As there is a risk that these people would face persecution if extradited back to their home country, many nations have laws that forbid the extradition of political refugees.
  • Death penalty: Though contentious, the death sentence is nonetheless used in some nations. Many nations have abolished the capital penalty, and they may decline to extradite anyone who would be put to death in the receiving nation.

What is an extradition treaty

An extradition treaty is an agreement between two countries laying down the conditions for extradition, i.e., mainly the offences for which any individual may be extradited.

There are two types of extradition treaties. The most common kind of extradition treaty is a list treaty. They identify particular offences for which a person may be extradited from one nation to another. As an illustration, a treaty between the US and Canada would list extraditable offences, including drug trafficking, rape, and murder. The US can ask Canada to extradite a suspect to the US so they can prosecute them if they are charged with one of these offences in the US and then flee to Canada.

A dual criminality treaty is another kind of treaty under which the extradition of a criminal suspect is allowed only if the offence committed by him/her is punishable by imprisonment for more than a year in both countries involved. The offences for which extradition is being sought are not specifically listed; rather, they must constitute crimes in both the country making the request and the one where the suspect is located. If the US and Canada have a dual criminality treaty, for instance, and someone is charged with murder in the US, the US may ask Canada to extradite the suspect even though murder is not particularly mentioned in the treaty. To be eligible for extradition, the murder still needs to be a crime in Canada.

An extradition treaty is a treaty that is made between India and any country and relates to the extradition of fugitive criminals. Any treaty or agreement regarding the same that was made before August 15, 1947, that applies and is binding on India is also included in the definition of an extradition treaty. As per Section 2(d) of the Indian Extradition Act, 1962, no country has an extradition treaty with all the countries in the world, ex: India does not have an extradition treaty with China. India has extradition treaties with 48 countries.

What are extradition arrangements

An extradition arrangement is an agreement that is made between the country requesting the extradition of a person and the country that will grant the extradition upon the request. It is agreed upon in this arrangement that the extradition of a person from a country shall take place according to the local laws of that country itself and international regulations instead of the local laws of the country that is requesting the extradition.

A requesting state is one that requests the extradition of an accused or convicted person or where the accused or convicted person is to be extradited. A territorial state is the one from which the accused or convicted person is to be extradited.

India has extradition arrangements with 12 countries. These are as follows:

  1. Sweden – 1963
  2. Tanzania – 1966  
  3. Singapore – 1972
  4. Sri Lanka – 1978
  5. Papua New Guinea – 1978
  6. Fiji – 1979
  7. Antigua & Barbuda – 2001
  8. Italy – 2003
  9. Croatia – 2011
  10.  Peru – 2011
  11. Armenia – 2019
  12. New Zealand – 2021

What if there is no extradition treaty or arrangement between India and the other country involved

When there is no extradition treaty or arrangement between India and the other country that is involved, then any convention to which these two countries are parties can be treated as an extradition treaty between the said countries by the Central Government, which provides for the extradition in respect of the offences mentioned in that convention.

For instance, India has extradition agreements with Italy and Croatia because these countries are signatories to the 1988 UN Convention against illicit traffic in narcotics, drugs, and psychotropic substances. Extradition under these agreements is limited to crimes covered by this Convention, such as the illicit trafficking of narcotics, drugs, and psychotropic substances.

Additionally, extradition might be possible in cases where the international agreement allows for it. For instance, India was successful in getting the extradition of the wanted felon from Portugal back to India in the case of Abu Salem Abdul Qayoom Ansari, who was charged with the 1993 Bombay terrorist bombings. Despite the lack of an extradition agreement between Portugal and India at the time, India requested extradition on the grounds of reciprocity under international law, particularly the International Convention for the Suppression of Terrorist Bombings, to which Portugal and India are both signatories. When the state parties to the Convention do not make extradition dependent on the existence of a treaty, the Convention allows for extradition for a number of extraditable offences. 

Extradition offences

Criminal litigation

Extradition offences are defined as:

  • The offences that are mentioned in the extradition treaty (in case of countries having such treaty).
  • The offences for which the punishment is at least one year of imprisonment under the laws of any of the countries involved (in case there is no treaty).
  • Any offence that is committed either wholly or partly in India or any other country involved and that will amount to an extradition offence in India is said to be a composite offence.

Who can request an extradition

As per the Indian Extradition Act, a requisition for the surrender of an accused or a person who is convicted of committing an offence and is currently in a foreign country may be made by the Central Government through diplomatic channels.

An overview of the Extradition Act, 1962

In India, the Extradition Act, 1962, is the law that lays down the process of extradition in different situations, like when an accused is to be extradited to India from foreign countries or when an accused is to be extradited from India to foreign countries. The procedures in the Act are applicable when there is an extradition treaty or arrangement between India and other countries. The Act imposes some restrictions on the surrender of the accused or convicted person (Section 31 of the Extradition Act, 1962). The Act also talks about how the apprehended person is to be dealt with (Section 17 of the Extradition Act, 1962). Such a person can also apply for bail in accordance with the provisions of the Code of Criminal Procedure, 1973, if he/she is apprehended or detained under the Extradition Act, 1962 (Section 25 of the Extradition Act, 1962). Further, this Act states that everything discovered to be in the possession of the accused or convicted person at the moment of his capture that would be relevant to proving the extradition offence may be delivered up with that person on his surrender or return, subject to any rights that third parties may have with regard to it (Section 28 of the Extradition Act, 1962). It is also mentioned in the Act that the Central Government has the power to discharge or release any such accused or convicted person under certain conditions. These conditions are as follows: 

  • The case against the said person is of trivial nature. 
  • The application for extradition of such a person is not made in good faith, in the interests of justice or for political reasons. 
  • It is unjust to surrender or return such a person. (Section 29 of the Extradition Act, 1962)

There is no restriction imposed explicitly by the Act on the extradition of Indian nationals to a country requesting their extradition but the bar on extradition differs from one treaty to another.  

It is clearly mentioned under Section 33 of the Extradition Act, 1962, that nothing in this act shall affect the Foreigners Act, 1946.

Procedure for extradition from India to a foreign state

The process for the extradition of an accused or convicted person from India is initiated when the country requesting the extradition sends a formal request with supporting evidence through proper diplomatic channels to the Consular, Passport and Visa division of the Ministry of External Affairs, Government of India. The government, after the request has been received, requires the magistrate of extradition (generally a 1st Class Magistrate) to issue an arrest warrant. The magistrate, on the basis of the evidence presented before him, issues an arrest warrant if he concludes that:

  • The identity of the accused or convicted person has been ascertained.
  • The person accused or convicted of being talked about can be extradited.
  • The crime that is committed or alleged to have been committed is extraditable.

After the arrest of the said person, he/she undergoes a judicial inquiry, the report of which is then submitted to the government. If satisfied, a warrant for the custody and removal of the said accused or convicted person may be issued by the government. The said person is then sent to the country, requesting his extradition, with the time and place being in accordance with the warrant. 

Procedure for extradition from a foreign state to India

The process of extradition of an accused or convicted person is initiated by a juridically competent magistrate sending a request to the Consular, Passport and Visa division of the Ministry of External Affairs, Government of India, when there is a prima facie case against the said accused or convicted person. A request and an open dated arrest warrant are also sent by the magistrate.

The request is then formally sent to the territorial state (the country from which an individual is to be extradited) through diplomatic channels and then it is forwarded to an inquiry magistrate, who ascertains:

  • The identity of the said person.
  • Whether the offence was committed or said to have been committed is extraditable.
  • Whether the said person (accused or convict) is extraditable.

After the above process, the Inquiry Magistrate of the other country (territorial state) may issue a warrant for the arrest of the accused or convicted person. The arrest of the said person is then intimated to the CPV/ Indian Embassy. Then the concerned officer from India travels to that country and escorts the accused or convicted person back to India.

Is it a time-consuming process

Now comes the main question of this article: whether the extradition process is time consuming or not. The answer to this question is yes. The extradition process is highly time consuming as it requires various paperwork to be done. Sometimes the process might get delayed due to errors/discrepancies in any document submitted. It may take extra time to solve the errors causing delays in the process. Also, the lawyers of the accused or convicted person may try to delay the process by raising arguments again and again.

In the case of India, one major problem is that India has extradition treaties or agreements with a limited number of countries.

Some examples regarding delays in the process

Vijay Mallya case

 Vijay Mallya was the owner of the now-defunct Kingfisher Airlines. He is charged with missing payments on loans to a group of banks totaling over Rs. 9,000 crore. He left India in 2016 and is currently in the United Kingdom. Although the Indian government has been attempting to return him there for prosecution, the process has been slowed down by legal issues. The Indian government informed the Supreme Court in 2021 that while it is taking all necessary measures to extradite Mallya, the procedure is taking longer than expected because of the legal complications surrounding the situation. The matter is marked as confidential, and its resolution was required in order for the procedure to move forward.

Nirav Modi case

In 2022, the extradition of Nirav Modi to India was delayed as his lawyer raised new arguments to delay the process. It was also argued that there was a risk of him committing suicide if he were extradited to India from the United Kingdom. Nirav Modi, a diamond merchant, is accused by India of swindling PNB (Punjab National Bank) of approximately Rs. 6498 crores through his companies, as well as laundering the proceeds of that fraud and of interference with evidence and witnesses. He fled India in 2018. He is currently in the United Kingdom.

Mehul Choksi case

Fugitive Mehul Choksi has been bribing corrupt government officials, judges, police officers and law enforcement agents to delay the extradition proceedings. He is to be extradited from Antigua and Barbuda to India. He is wanted in India in connection with Rs. 13000 crore fraud in PNB (Punjab National Bank). He fled India in 2018.

The above examples show the different scenarios that can cause delays in the extradition process, thereby making it more time consuming than it needs to be.

Some challenges resulting in a delay in the extradition proceedings are:

  • The principle of dual criminality states that if an act should be an offence in both countries involved, then only extradition can happen. The accused or convicted persons usually flee to countries where the act done by them is not considered an offence. This complicates the extradition process and causes delay.
  • The accused or convicted persons who are involved in or connected to politics often cite this as an excuse to avoid extradition because many countries refuse to extradite such persons. These people are known as political offenders.

Is it mandatory to grant extradition

No, it is not mandatory to grant extradition. Extradition is not usually granted for:

  • Offences relating to politics.
  • Nationals of the other country (from which the person is to be extradited)
  • Offences punishable by the death penalty
  • Double jeopardy
  • Where there is a chance of discrimination on the basis of race, religion or nationality.

Political considerations and extradition

Extradition is not solely a legal matter; it is also influenced by political considerations. Governments may weigh the potential diplomatic implications of surrendering an individual to another country. Political asylum, public opinion, and the perceived fairness of the legal system in the requesting state can all influence the decision-making process. In high-profile cases, the political ramifications may lead to delays as authorities carefully navigate the intricate balance between legal obligations and diplomatic concerns.

Human rights and extradition

Respect for human rights is a critical aspect of extradition proceedings. Many jurisdictions, as well as international law, prohibit the extradition of individuals to countries where they may face torture, cruel or inhuman treatment, or the death penalty. As a result, extradition requests often involve meticulous assessments of the human rights situation in the requesting state. These considerations can lead to prolonged legal battles and appeals, further contributing to the time-consuming nature of the extradition process.

Extradition and the role of Interpol

Interpol, the International Criminal Police Organisation, plays a crucial role in facilitating international cooperation in law enforcement. While Interpol itself does not have the authority to arrest or extradite individuals, it issues notices (such as Red Notices) to alert member countries about individuals wanted for extradition. The reliance on Interpol adds an additional layer of bureaucracy to the process, potentially contributing to delays.

Dual Criminality Principle

Many extradition treaties are based on the principle of dual criminality, meaning that the alleged offence must be a crime in both the requesting and requested states. Establishing dual criminality requires a careful examination of the legal definitions and elements of the alleged crime in each jurisdiction. The need to align these definitions can lead to time-consuming legal arguments and debates during extradition proceedings.

Is extradition good or bad

The question of whether extradition is good or bad is complex and depends on various factors, including the context, the legal systems involved, and the specific circumstances of each case. Here are some arguments for both sides:

Arguments in favour of extradition

Ensuring accountability: Extradition allows individuals accused or convicted of crimes to be held accountable for their actions, irrespective of where they may have committed the offence. This is crucial for maintaining a just and fair global legal system.

Deterrence: The existence of extradition treaties and the possibility of facing justice in another country can serve as deterrents for individuals contemplating engaging in criminal activities across borders. It sends the message that fleeing to another jurisdiction does not guarantee escape from legal consequences.

International cooperation: Extradition fosters international cooperation in law enforcement. It is a mechanism through which countries can collaborate to combat transnational crime, terrorism, and other offences that cross national borders.

Human rights protections: Extradition treaties often include provisions that safeguard human rights, preventing individuals from being extradited to countries where they may face torture, inhumane treatment, or unfair legal processes.

Arguments against extradition

Abuse of process: In some cases, extradition may be used for political purposes, leading to the persecution of individuals based on their political beliefs or affiliations. This raises concerns about the abuse of the extradition process for non-criminal motives.

Divergent legal systems: The differences in legal systems and standards of justice between countries can pose challenges to ensuring a fair trial for the accused. Extradition may be seen as unfair if the individual faces a legal system that does not adhere to internationally recognised human rights standards.

Risk of injustice: There is a risk that individuals extradited to another country may face unfair treatment, including biassed judicial systems, a lack of due process, or discriminatory practices. This risk is especially pronounced in cases where there are significant disparities in legal standards.

Complex and time-consuming: As discussed in the previous article, the extradition process can be complex and time-consuming, involving legal, diplomatic, and political considerations. Delays in the process may impact the rights and well-being of the individuals involved.

Conclusion

Extradition is a great tool to deal with absconded criminals trying to evade arrest or punishment. If done timely, it can save a lot of time, but often that’s not the case. Extradition is a highly time-consuming process due to various factors, as discussed above. For a successful extradition, it is advisable to have an extradition treaty in place. An extradition treaty or arrangement makes the entire process clear and straightforward but the involvement of so many formalities and the delay in completing these formalities make it a very time-consuming process. Everything related to extradition has been laid down in the Indian Extradition Act, 1962, to avoid confusion.

References


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:

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An insight into top 5 mergers in India

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This article has been written by Peddada Sivadattha pursuing Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

A merger is a strategic alliance between two companies where one of them gets submerged into another or they combine to form a new entity. Mergers have been an integral part of the Indian corporate landscape. The Indian corporate world has seen many mergers over the years that have had a significant impact on the companies merging, at a micro level, on the sector in which the concerned companies operate and also on the economy as a whole, at a macro level.

Benefits of mergers 

  • Increased market share: Mergers help companies increase their market share and expand their customer base.
  • Synergies: It means teamwork or alliance. Mergers allow companies to combine their resources and expertise and in turn, they can reduce costs and increase efficiency.
  • Diversification: Mergers enable companies to diversify their business and enter new markets and new industries, which otherwise wouldn’t have been possible.
  • Financial benefits: Mergers provide increased revenue, higher profits and better access to capital.

Some other benefits of mergers include tax benefits, economies of scale, access to better personnel, etc.

In order to reap the numerous benefits that mergers provide, many companies have made mergers in India over the years and in recent times, this activity has even increased. In this article, we will look into the top 5 mergers in India. These mergers are big not only in terms of value but also in terms of the impact they have created on the industry and the economy.

Vodafone – Idea merger

It is the largest merger in the Indian telecom industry. Reuters reported that the Vodafone-Idea merger value was $23 billion. The reason behind the merger is the entry of Reliance Jio into the Indian telecom industry and the rise of Jio as a leader in the telecom sector in no time, putting behind veteran players in the industry like Airtel, Idea and Vodafone. To combat this situation, Vodafone and Idea came up with the idea of merging the companies to combine their resources and customer bases.

Idea and Vodafone had a successful deal, with Vodafone gaining a 45.1% stake in the merged company, the Aditya Birla Group holding 26% and the public holding the rest of the share. The integration of the two companies was completed when they unveiled their brand new identity, ‘Vi’, on September 7, 2020.

Situation of Vodafone-Idea post-merger

After the merger, ‘Vi’ became the market leader with a customer market share of 35% and a revenue market share of 40%, serving 400 million subscribers. However, its market share has now dropped to 15.4%, standing in third place due to various reasons.

‘Vi’ owes more than Rs. 44,000 crores to the government. It has been fighting legal battles over the issue of what adjusted gross revenue means and its regulatory-related dues. Despite its efforts to reconcile with the government for a moratorium of 2 years, the company could not resolve the issue. 

Further, the company needed to keep up with its competitors by introducing new technologies and plans. Added to that, the long standing legal challenges have resulted in a more than 94% decrease in share prices. As of now, its share price on the National Stock Exchange (NSE) stands at a mere Rs. 7.45.

So, the companies got into a merger, thinking they could improve the situation but the situation seems to be deteriorating. Only time will tell whether ‘Vi’ can make a comeback.

Impact of the Vodafone-Idea merger on the telecom sector in India

The merger of Vodafone and Idea has caused a shift in the telecom market dynamics. Many smaller companies were forced to exit the market due to increased competition and adverse market conditions. Customers will have fewer options and must adhere to the prices set by the dominant players. Following the Vodafone-Idea merger, other companies such as Telenor and Reliance Communication were acquired by Bharti Airtel, while Tata Teleservices customers moved to Airtel’s network through Intra Circle Roaming. The merger has had a significant impact on the quality of service provided by various service providers in the telecom sector.

Zee Entertainment – Sony India meger

Zee Entertainment and Sony India, two of India’s largest media companies, plan to merge, creating a $10 billion combined entity. After the Walt Disney Group acquired Star India Media, it arose as a leader in the entertainment industry in both channel and OTT viewing. Zee was looking for funds to fuel expansion plans, while Sony was seeking an Indian partner to regain market share lost to Disney-Star. Zee had an extensive network viewership through regional channels where Sony needed more presence; the partnership just made perfect sense.

After the completion of merger formalities, Sony Pictures Limited will hold a 50.86% share, the Essel family (promoters of Zee) will hold a 3.99% share, and the other shareholders of Zee will hold a 45.15% share in the merged entity.

Benefits of the Zee-Sony merger

The merger of Sony and Zee is set to benefit both companies as they have complementary strengths, such as Sony’s substantial presence in sports broadcasting and Zee’s expertise in regional content. This will expand the current portfolio and channel offerings while having minimum overlap in terms of audience, channels and viewership. Zee’s wider pan-India footprint, particularly in rural India, and Sony’s stronghold in the urban market will allow both Zee and Sony to fill the white spaces in their respective portfolios. The combined entity will wield significant power in the film industry, with Zee’s influence in Bollywood and Sony’s reputation in Hollywood.

Impact of this merger on the entertainment industry in India

The merger of Zee Sony will create the largest diversified television network in India, straddling news, current affairs, sports, regional and Hindi entertainment. This benchmark merger will raise the stakes in India’s media and entertainment sectors, resulting in stronger competition. With a combined TV viewership share of 26.7% and an increased number of channels, the network will enjoy higher advertisement sales and better bargaining power with distributors and DTH operators, thereby resulting in higher prices or commissions or a refusal to deal with distributors and advertisers. This merger will be good for the media and entertainment industries as it will provide an impetus for growth in content generation and distribution both nationally and internationally, across TV  and cinemas.

Arcelor – Mittal merger

The Arcelor-Mittal merger is the biggest merger ever for an Indian company, valued at $38.3 billion. The world’s largest steel company, ArcelorMittal, merged in 2006. The steel industry is highly fragmented, with the top 5 companies controlling only 20% of the business. The top players as suppliers of raw materials and buyers to these steel companies often control 70% of their respective industries, thereby causing exploitation for the steel companies. Hence, both companies viewed consolidation as the critical success factor for the global steel market. In the merged entity, Arcelor would hold 50.5% of the shares and Mittal Steel would hold the remaining 49.5%. 

Situation of Arcelor-Mittal post merger

ArcelorMittal has emerged as one giant, standing at No. 1 position both in terms of producing values and revenues as well as in the global steel industry, with a steel making capacity of 120 million metric tonnes and a revenue of $105.2 billion a year. It produces almost 10% of the steel in the world. The company is a leader in the global market in various fields, including automobile construction, household appliances and packaging. 

Impact of this merger on the steel industry

This merger is believed to contain the volatility of prices and is expected to bring price stability to the steel industry. It is also anticipated to alter the steel industry globally, prompting other players to pursue growth through mergers and acquisitions. ArcelorMittal, the resulting powerhouse from the merger, is hinting at growing not only horizontally but also vertically, from mining to distribution. It is therefore possible that there will be numerous hostile takeovers in the global steel market. Though mergers are current trend in the steel industry, in the future it could lead to imperfect market conditions such as oligopoly or skewed monopoly

Indus Tower – Bharti Infratel merger

Indus Towers is a joint venture between Bharti Infratel, UK-based Vodafone Group Plc, and Vodafone Idea, which merged with Bharti Infratel Limited on November 19, 2020, to create the world’s largest telecom tower company outside China. Bharti Infratel also had a 42% stake in Indus Towers before the merger. Post-merger, Bharti Airtel holds a 36.7% stake in Indus Towers, with Vodafone Group holding 28.12% and Providence Equity holding 3.1% and remaining with the public.

Benefits of the Indus Tower-Bharti Airtel merger

The merger will allow Indus Towers to offer a wider range of services to its customers, including 4G, 5G, and fibre optic connectivity. It will also help the company reduce costs and improve its operational efficiency. The combined entity possesses an extensive tower portfolio, estimated to exceed 163,000 towers. A larger asset base promotes economies of scale. The merger helps in collaboration between telecom infrastructure giants and will provide access to advanced technologies, infrastructure and financial support, allowing Indus Towers to stay at the forefront of the rapidly evolving telecommunications industry.

Impact of the Indus Tower-Bharti Airtel merger on the telecom industry

The merger is expected to have a significant impact on the telecom industry in India. It represents a significant step towards industry consolidation. As telecom operators in India continue to focus on profitability and streamlining operations, this consolidation may catalyse future mergers and acquisitions, leading to a more stable and efficient telecom sector. The merger’s impact extends beyond the telecom industry. By fostering better connectivity, the unified entity will contribute to India’s digital transformation, bolstering economic growth and supporting the government’s initiatives such as Smart Cities, Digital India, and Make in India.

HDFC – HDFC bank merger

The merger of HDFC Bank and HDFC Limited will create one of the largest financial institutions in India, combining the largest private bank and the largest housing finance company. This will result in the 63rd most valuable company in the world, valued at $190 billion, surpassing big names like Morgan Stanley with $153 billion and HSBC with $140 billion in terms of valuation. HDFC Bank is currently focused on retail banking, while HDFC is focused on housing finance.  The merger is driven by the desire to achieve economies of scale and create a more diversified institution offering a wider range of products and services. Post-merger, HDFC Limited’s existing shareholders will own 41% of shares in HDFC Bank and the remaining 59% shall vest with the public shareholders.

Situation of HDFC Bank post merger

After the merger, the loan book of the combined HDFC entity will become more diversified, with a larger portion consisting of mortgages. The home loan segment in HDFC Bank’s loan book will increase from 11% to 33%. As a result, the merged entity will not only become the largest bank in India in terms of assets and market capitalization. Still, it will also have a dominating presence in the mortgage and retail banking sectors. Additionally, the merger will significantly strengthen the financial position of HDFC Bank, with a 50% increase in assets and a capital adequacy ratio exceeding 18%. This enhanced financial strength will give the bank greater flexibility to expand and grow its operations.

Impact of the HDFC-HDFC Bank merger on the banking industry

The merger of HDFC Bank is set to create a strong presence in the banking industry, challenging both public and private sector banks. HDFC Bank currently holds a dominant position in private banking and is the second-largest bank overall. This merger poses a significant threat to public sector banks, forcing them to improve efficiency and compete with large private banks. Along with the HDFC merger, the acquisition of Citi Bank’s consumer banking business by Axis Bank has contributed to the growth and share of private players in the banking industry. This trend may lead to more mergers and acquisitions as banks aim to expand and face increased competition. Overall, this merger and acquisition activity within the banking industry is expected to positively impact productivity and competition as players strive to enhance their offerings and stay relevant in the market. 

Conclusion

A substantial merger in any industry changes the dynamics of the whole industry. In particular, the biggest mergers like these have the ability to impact the market to a great extent, either positively or negatively, depending on the nature of the merger and the circumstances prevailing in the market. This article dealt with the top 5 mergers in India while looking into aspects like the reasons for the merger, the benefits of the merger and the impact of the merger on the industry. Most of these mergers had a positive impact, like improvements in efficiency and productivity, consolidation of resources, competition with rival companies, etc. However, sometimes it may result in adverse outcomes like monopolies or abuse of dominant positions.

References


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All you need to know about succession under Hindu Law

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Rights of Outgoing Partner

This article has been written by Sowbhagyalaxmi Hegde, pursuing a Paralegal Associate Diploma from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

Succession in Hindu law simply means the transfer of ancestral property from one generation to another, and it is envisaged under the personal laws of Hinduism. The Hindu law of succession governs the rules and regulations that govern the inheritance, partition, and distribution of property among family members. Succession under Hindu law holds significant importance in Hindu society’s social, cultural, and economic structure as it gives systematic strength to the family structure.

In India, the Hindu Succession Act, 1956, governs succession and inheritance among Sikhs, Jains, Hindus, and Buddhists. The succession law clarifies the diverse and complex law that prevails among the Hindu communities. The Act has undergone several amendments, including the landmark Succession (Amendment) Act, 2005, which has given significant changes in gender equality and also removed a discriminatory provision in the matter of inheritance of property. This article deals with the historical background of Hindu succession laws, the basic principles of succession under Hindu law, and recent amendments and exceptions under Hindu succession law.

Historical background and evolution of Hindu succession law

Hindu Succession Laws in India have a complex history, dating back to ancient times when traditional society followed patrilineal inheritance. Over time, religious texts and customs influenced inheritance practices. The codification and modernisation of Hindu Succession Laws began during the British Colonial era, with legislation like the Hindu Wills Act of 1870 and the Hindu Disposition of Property Act of 1916. After India gained independence in 1947, the government recognised the need for social and gender equality and implemented reforms. The Hindu Succession  Act of 1956 provided equal rights to male and female heirs in succession and inheritance, while subsequent amendments expanded the rights of women, daughters and other disadvantaged sections. 

The Hindu Succession (Amendment) Act 2005 removed gender-based discrimination, granting daughters equal rights as sons are ancestral property. The evolution of Hindu succession laws reflects a progressive shift towards gender equality and individual rights within traditional Hindu inheritance practices.

Basic principles of Hindu succession

Mitakshara school

Most India follows the Mitakshara school, inspired by the historic legal work “Mitakshara” authored by Vijnanesvara. It acknowledges the idea of coparcenary, which describes the shared property ownership of the male members of a Hindu Undivided Family (HUF). According to the Mitakshara school, male descendants get birthright inheritance of ancestral property, constituting a coparcener. `The property is divided equally among the male coparceners and is passed down without being divided through the generations. The joint family structure, in which several generations live together and own property collectively, is valued at this school.

Dayabhaga school

West Bengal and some areas of Assam are the main centres of the dayabhaga school, which was founded by a scholar named Jimutavahana. The dayabhaga school does not acknowledge coparceners, in contrast to the Mitakshara school. The emphasis is instead placed on individual ownership and succession based on the closeness of kinship. According to the Dayabhaga school, there is no shared ownership among male family members and both male and female descendants can inherit property. This institution favours a more individualistic view of property rights and succession.

In the case of Danamma @ Suman Surpur vs. Amar (2018), the Supreme Court, in this decision, reviewed the Mitakshara School’s definition of partition and found that a coparencer’s simple demand for partition is sufficient to end the joint status and start the partition procedure. The Court stresses that the breakdown of joint family status does not require a real physical partition of the property. 

Succession of the property

Testimonial succession and importance of wills

In simple words, testimonial succession means the property transferred by the deceased individual by a will. Here, the individual only makes a valid will so that there will be no dispute in distributing the property among the blood kin after his demise. 

Creating a will is very important. In other words, we can say that the control of the individual over the property continues if he makes a will. In a will, the individual mentions who should hold his property after his tenure. It is also important that when there is any minor child or need to appoint a guardian, minimising the disputes over the property, etc.  So, the creation of the will plays a vital role in the Succession Act.

  1. Intestate succession and the Hindu Succession Act application:

When the person dies without any valid will, Section 3 of the Hindu Succession Act 1956,  or if the will doesn’t dispose of all the property of possession, then in such a case, intestate succession comes into the picture to distribute the property of the descent among the family members. 

The Hindu Succession Act of 1956 determines the rules for Hindus, Jains, Sikhs, and Buddhists. This Act provides for the order of succession, such as Class I heirs and Class II heirs, after the amendment’s equal rights for female heirs. It also excludes some of the relatives from being heirs through this act, such as stepdaughters, stepmothers, and step-siblings through intestate succession.

  1. Class I and Class II heirs and their entitlement to the property:

Class I and Class II heirs are groups qualified to inherit property without a will under Hindu succession laws in India.  Depending on the particular relationship to the deceased person, different parties may be entitled to different property. An outline of class I and Class II heirs and their rights is given below:

  1. Class I:
  • Sons and daughters: Whether they are married or not, every son and every daughter have an equal portion of the land.
  • Widow: Besides the children, the widow of the dead is also entitled to a portion of the property.
  • Mother: The widow, children, and mother of the dead are all entitled to a part of the property.
  • Widow of a predeceased son: If a deceased son left behind a widow, she is entitled to that portion of the estate.
  • Children of a predeceased son or daughter: If a deceased son or daughter has died, their children (deceased grandkids) are entitled to their parent’s portion of the estate.
  1. In the absence of any Class I heirs, the property will pass to Class II heirs. They  consist of the following people:
Contract drafting
  • Father: In the absence of Class I heirs, the dead person’s father receives the property.
  • Brother and sister: In the absence of Class I heirs or a father, the deceased’s brothers and sisters inherit the property, with each sibling receiving an equal part. 
  • Nephews and nieces: The deceased’s property is inherited by the nephews and nieces (children of predeceased brothers and sisters), with each receiving an equal share if there are no Class I heirs, such as the deceased’s father, brothers or sisters.

The Hindu Succession Act has been modified, particularly by the Hindu Succession (Amendment) Act of 2005, which significantly altered the inheritance regulations and enhanced the rights of daughters. These changes guarantee that females, regardless of whether they are Class I or Class II heirs, have the same rights to ancestral property as sons.  

  1. Rights of widows to the deceased husband’s property:

If widows come under the class I heirs, then the widow of the deceased husband has a right over the property.  Under Hindu Succession 1956, the Act gives a certain entitlement and protection to the widows. 

Absolute ownership rights vest with the widow of the deceased husband’s property, as she has the right to sell, manage and dispose of the property. She has full authority to deal with the further use of the property.  

This principle of succession in the Hindu Succession Act gives a prescribed framework for the distribution of property in testamentary and intestate succession.

Amendment for gender equality

The Hindu Succession Act of 1956 underwent essential changes in 2005, i.e., the Act got amended, and it was a landmark change. This amendment focused on gender equality and the rights to ancestral property. This amendment also had a significant effect on female felicity because, after the amendment, females could also claim their rights over ancestral property, which was also one of the reasons for female felicity.  

When we look into the amendment, there are some of the key provisions, which are.:

  1. Removal of gender bias: By giving daughters equal rights to inherited property, the amendment attempted to remove gender equality in Hindu inheritance laws. Before the amendment, daughters’ rights to coparcenary property, which mainly belonged to male heirs, were severely restricted. Regardless of when they were born before or after the 2005 amendment, daughters were granted the same rights as sons.
  2. Equal and coparcenary rights to the daughters: The amendment explicitly addressed the ideas of coparcenary, which denoted that the male members of a Hindu Undivided Family (HUF) shared ownership of ancestral property. In addition to their sons, females were given the right to become coparceners and receive an equal portion of the property. The ancient system of patriarchal rules that favoured male lineage, which was significantly altered by amendment, gave strength to women in the home and society.  
  3. Retrospective effect: The amendment’s retrospective applicability was one of the main factors. It made it clear that rights granted by the amendment would be retrospective, meaning daughters would still have an equal claim to ancestral property irrespective of the father’s death before the amendment. This made up for an injustice done to the daughters, who were denied their portion of property as there was discrimination against women. 
  4. Social and economic empowerment: The amendment had a significant effect on women’s social and economic advancement. It gave daughters a feeling of safety, acceptance, and financial independence. It closed the gender gap, advanced gender equality and gave women more authority within the family and society by giving them equal rights to ancestral property.

This Hindu Succession (Amendment) Act 2005 brought about a drastic change among the communities, and it strived for Article 14 of the Constitution, which is “equality.”. It just overlooked previous gender-based discrimination, questioned conventional patriarchal conventions, and acknowledged daughters equal rights to inherit familial property. The whole Hindu society accepted the changes by giving equal rights to the daughters in the ancestral property. It also brought significant changes to society. 

Exceptional circumstances in the Hindu Succession Act

The Hindu Succession Act provided a legal framework for the distribution of property. There will be certain special cases, so some exceptions have also been inserted in the Act. So, some of the exceptional cases are:

  1. Adoption: When the couple doesn’t have any biological children, they don’t lose their rights over their ancestral property. If the childless couple adopts a child in legal form, i.e., a legally adopted child, then such a child will have the same rights and obligations over the ancestral property of the adoptive parents.
  2. Illegitimate children: An illegitimate child is a child born out of wedlock. In the 1956 Act, the illegitimate child couldn’t claim any rights over the parental property. But the 2005 Amendment Act gave an illegitimate child a right over their mother’s property and even he can claim the father’s property if parental consent is proven.
  3. Women’s property (stridhan): Stridhan is a property or an asset that women have acquired in the way of gifts, inheritance, and self-acquisition. This gives an exclusive right to the women and it is not combined with joint family property. Women have a complete right over the Stridhan property regarding its disposal. 
  4. Conversion: When a person gets converted, they lose their rights over the ancestral property. The 2005 Amendment Act said that the conversion doesn’t take away the rights to ancestral property, but it has some restrictions over the coparcener or heirs.

Even in exceptional cases, the Hindu Succession Act gave protection to the individual and also gave rights and obligations to the individual over ancestral property. 

Relevant case laws

V. Tulasamma and Ors. vs. Sesha Reddi (dead) (1977)

In this case, the whole decision is very noteworthy because it made the rules for how the Hindu Succession Act should be interpreted to promote gender equality clear. The court highlighted that the act must be construed broadly in order to promote gender equality and prevent further gender-based discrimination. This ruling established a standard for similar instances in the future and affected how the court should address gender inequalities in succession rules.

Ms. Gita Hariharan and Anr. vs. Reserve Bank of India (1999)

In this case, the Supreme Court addressed the problem of discrimination against daughters concerning succession. According to the judge, the daughter’s claim to her father’s properties was unaffected by whether or not she was still living with her father at the time of his passing. It confirmed that girls, regardless of their marital status, have equal rights to inherit family property. This ruling helped establish the daughter’s equal and autonomous standing under succession rules.

Prakash vs. Phulavati (2016)

In this case, under the Hindu Succession (Amendment) Act, 2005, retroactive applicability was addressed in the Supreme Court decision. The Court decided that even if the father had gone away before the amendment took effect, the amendment guaranteeing daughters equal rights in coparcenary property would still apply to him. This decision made it very clear that daughters had an equal claim to inherited property.

Vineeta Sharma vs. Rakesh Sharma (2020)

This case established how the Succession (Amendment) Act, 2005, should be interpreted. No matter whether the father was still living or not at the time of the amendment, the court ruled that daughters have rights to coparcenary property by birth. Additionally, it was decided that the change is retroactive and supersedes any norms, practices, or previous rulings. The equal rights of daughters to inherited property were confirmed in this instant case.

Conclusion

This article gives an overview of the Hindu Succession Law. It traced its existence from the ancient period until 2005. Succession law evolved along with society. The enactment of Hindu Succession Law 1956 was amended in 2005, which gave gender equality to society. It abolished gender bias in the rights to property. Hindu succession law is an important law that governs the family and society. However, succession laws continue to evolve as required by society. Even the law takes care of individuals in their particular circumstances by giving them protection. Hindu succession law upholds individual rights, continuously preserving harmony in society.

References


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:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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