“I measure the progress of a community by the degree of progress which women have achieved”.
–Dr. B.R. Ambedkar
From the above quote by Dr. Babasaheb Ambedkar, we will all agree that if we want a community or a country to develop, women’s empowerment is of utmost importance. India is developing rapidly in different sectors; lots of initiatives for educating the female child are being taken and we can even see the results as we have many women working today. Besides being highly educated, they have also made their careers in sports, theatre, acting, and modelling. They can be seen working in an organised as well as an unorganised sector. Efforts are being made so that women get equal opportunities, face no discrimination or sexual harassment, and have a safe workplace environment.
Background
An important piece of legislation in India The Prevention of Sexual Harassment of Women at Workplace Act 2013 aims to prevent and address sexual harassment faced by women in the workplace. So the question arises: What was the need to enact such a law? And prior to 2013, how were workplace sexual harassment cases dealt with? To gain a better understanding of this topic, we need to go back in time and understand the Bhanwari Devi case, a landmark case in India that brought attention to the prevalent issue of sexual harassment.
In the year 1992, Bhanwari Devi, a Dalit social worker in Rajasthan who was employed as “saathin” in the government’s Women’s Development Programme, was gang raped by five men for her efforts to prevent child marriage. She faced many obstacles, threats, and delays in the legal proceedings. The accused in this case were found not guilty; however, her case led to the formation of the Vishaka Guidelines (Vishaka and Ors. vs. State of Rajasthan and Ors. (1997)). The Vishaka and other women’s rehabilitation groups from Rajasthan and Delhi decided to fight for Bhanwari Devi’s justice, and they filed a Writ Petition for enforcing the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in the Supreme Court. The Supreme Court stated that the incident highlighted the dangers that working women may face as well as the depravity that can result from sexual harassment and the urgent need to protect them in the absence of legislative safeguards by alternative mechanisms to meet this social need.
The Supreme Court noted that because there was no domestic law that addressed sexual harassment of women at work, to guarantee gender equality, the right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and protections against sexual harassment, international conventions and norms are crucial.
Hence, by virtue of Article 253, which enables the Parliament to enact laws for implementing international conventions, the ‘Convention on the Elimination of All Forms of Discrimination against Women’ (CEDAW), an international legal agreement that calls for nations to end all forms of discrimination against women and girls and to advance their equal rights, played a significant role in the formulation of the Vishaka Guidelines. Prior to these guidelines, offenders were penalised through Sections 354 and 509 of the Indian Penal Code, 1860; these sections did not specify sexual harassment. The POSH Act was enacted to provide legal protection and redressal mechanisms for women facing sexual harassment at their workplace. Before the POSH Act, sexual harassment at the workplace was addressed through Vishaka guidelines.
Now that we have laws in place to regulate behaviour and protect women, does making these laws guarantee that such crimes won’t take place? The answer is no.
It is prudent, given the recent protests of our wrestlers against sexual harassment, that we create awareness and redress the issue sensitively. There are laws to regulate the crime but there is a lack of awareness among females as well as male employees regarding what behaviour can be considered sexual harassment at the workplace and about the redressal mechanisms.
What comes under sexual harassment
It is essential that every individual as well as the organisation be aware of the behaviour that is considered sexual harassment. It is the responsibility of the employer to ensure that all employees are aware of what constitutes sexual harassment, the rules to be followed and the process of redress. Experiencing sexual harassment brings mental agony to the woman subjected to it.
The Supreme Court of India, through the Vishaka Guidelines, has defined what can be considered sexual harassment at the workplace. As per the guidelines
Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
physical contact and advances;
a demand or request for sexual favours;
sexually coloured remarks;
showing pornography; or
any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
From the foregoing, it can be inferred that the following behaviour constitutes sexual harassment.
Whenever an individual touches, hugs, pinches, or brushes against a person’s body without permission, any such physical contact that is unwanted and makes a person upset, powerless or depressed can be considered unwelcome physical contact and advances.
Whenever an individual in an authoritative position demands or requests sexual favours in exchange for certain benefits, such as promotion, a rise in salary, job security, or other advantages.
Offensive and suggestive remarks, jokes or innuendos, statements or comments of a sexual nature that are inappropriate or teasing related to a person’s body, appearance, or sexual orientation are considered sexually coloured remarks.
Obscene pictures, movies, videos, and posters are considered pornographic material; showing such pornographic material that offends someone is also sexual harassment.
Sexual harassment can occur through WhatsApp messages, SMS, and official e-mails.
What is a workplace
A place where an individual works to earn his livelihood is called a workplace. As mentioned in the POSH Act, the workplace includes:
Organisations that are partially or fully owned, controlled, or funded by the government, the local authority, a government firm, a government corporation, or a cooperative society.
The organisations operating in the private sector may be an undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit, or service provider engaged in financial, commercial, professional, vocational, educational, entertainment, industrial, health services, or manufacturing goods or providing services.
Hospitals or nursing homes.
Facilities that are used for sports competitions or sports events, such as sports institutions, stadiums or sports complexes, whether residential or not, are used for training, sports or other related activities.
The locations that employees visit in the course of employment, including the transport facilities supplied by the employer for such visits.
Residential place or a house.
The workplace also includes the unorganised sector; it refers to businesses that are owned by individuals or independent workers involved in the manufacture, distribution, or provision of any form of service, and the number of employees working there is less than 10.
After the outbreak of Covid-19 pandemic, many organisations allowed their employees to work remotely. It became a new workplace for the employees; they connected with their colleagues through phone calls and video calls (Google Meet or Zoom Call); hence, we cannot deny the possibility of harassment on these platforms. Sexual harassment can take place even when the female employee is working from home through online platforms. Therefore, the Act can be applied to work from home and consider it a workplace.
In Sanjeev Mishra S/O Shri Shri … vs. The Disciplinary Authority And.., (2021), the Rajasthan High Court made some observations that we can rely on. The petitioner, Sanjeev Mishra, submitted a writ asking for the chargesheet to be overturned and set aside. Since both the petitioner and the complainant were employed in different states, the petitioner claimed that the charge sheet was filed outside of their jurisdiction.
The Court stated that, in the current digital world, the workplace for employees working in the bank who have previously worked in the same branch and then shifted to various branches that may be situated in separate states needs to be treated totally as one workplace on a digital platform. Therefore, it would fall under the definition of being harassed in a common workplace even if a person engages in harassment of a woman who may be posted in a different state through a digital platform.
The important takeaway from this verdict is that a common workplace can include digital media.
Employee awareness
Many times, not only the employer but also the employee, may it be male or female, are unaware of what constitutes sexual harassment and that action can be taken against the offender. In the year 2015, the Government of India Ministry of Women and Child Development published a “Handbook on Sexual Harassment of Women at Workplace”, the purpose of which was to provide employers with a basic understanding of sexual harassment at the workplace. It says that it is obligatory on the part of every employer to provide a safe working place for a female employee; it is their responsibility to restrain, stop and provide remedial measures for such issues.
In order to raise awareness, employers must:
Frame and properly convey the policies of the organisation to address the problem.
Organise POSH trainings for staff members once a year to advise them of the actions that constitute sexual harassment. Training helps employees gain insight into potentially harassing activity and how it affects the victim. Through training, employees are well-informed of their legal rights and obligations. It provides information about the organisation’s policies and, in the case of the victim who has to file a complaint, the procedure for doing so, i.e., a complaint process.
Women employed in the unorganised sector, however, cannot participate in such training; hence for them, information can be provided by Gram Panchayats, Panchayat Samiti, Zila Parishads, Gram Sabhas, Women’s Groups, urban local bodies like municipal corporations, or municipalities.
Grievance redressal mechanism
Having rules and regulations and their awareness does not reduce or guarantee a decline in the crime rate; that’s the reason we have a redressal mechanism. There needs to be prompt action upon receiving complaints and the process should be confidential. The Act has made provisions for the effective redressal of the issues.
Internal Complaints Committee
The Act prescribes the formation of the Internal Complaints Committee (ICC) for the organisation with 10 or more employees through written order and the Local Complaints Committee (LCC) is formed to address the sexual harassment cases of the organisations that have less than 10 employees and no Internal Complaints Committee.
The members of the ICC shall constitute:
A senior level female employee as a chairperson, and if such female employee is not available, then any female employee from another office, unit, department or workplace of the same employer can be appointed.
A minimum of two members must be employees who are devoted to the cause of women or have legal expertise or experience in social work.
One member should be from NGO or association that is devoted to the cause of women or a person who is familiar with the issues of sexual harassment.
The members of LCC shall constitute:
The chairperson of the LCC should be an eminent female social worker who is committed to the cause of women.
One member from among the women who work in the district’s block, taluka, tehsil, ward, or municipality.
Two members from among such NGO, association or persons devoted to the cause of women or knowledgeable about the problems relating to sexual harassment are required; at least one must be a woman, and one must have a background in law or have legal knowledge.
An “ex officio” member will be an officer who deals with the district’s social welfare or women and child development.
Process for filing complaints
The process for filing a complaint as per Section 9 of the POSH Act is as follows:
The complaint of sexual harassment must be filed in writing with the ICC or LCC within a period of three months from the date of occurrence of the incident and if there are a series of incidents within three months from the latest incident. The ICC or LCC, depending on the situation, can extend the deadline up to 3 months if it is satisfied that the circumstances were such that they prevented the woman from filing a complaint.
The presiding officer or any member of the Internal Committee or the Chairperson or any member of the Local Committee, as applicable, shall provide necessary support to help the aggrieved woman document the complaint in writing if she is not able to do so.
If the aggrieved woman, due to physical or mental incapacity, death or otherwise, is unable to make a complaint, her legal heir or any other person authorised by law can make a complaint on her behalf. According to the Handbook on Sexual Harassment of Women at Workplace, the following individuals may file a complaint on behalf of the aggrieved woman:
A relative, friend, co-worker, officer of the National Commission for Women or State Commissions for Women, or any person who is aware of the incident with the written consent of the victim can file a complaint if the victim is physically incapable.
If the victim is mentally incapable, her relative, friend, special educator, qualified psychiatrist or psychologist, guardian, or authority under whose care she is receiving treatment or care or any person who has information about the incident, jointly with others, can file a complaint.
A person who is aware of the incident can file a complaint on behalf of the complainant with the written consent of her legal heir in the event of her death.
If the victim, due to any other reason, is unable to file a complaint, any person who has knowledge of the incident that happened can file a complaint with her written consent.
Upon filing a complaint with the committee, the complainant has the option of an informal or formal resolution process. If she opts for an informal mode of resolution, the Act has made provision for conciliation in Section 10 for settling the complaint before the formal inquiry is initiated. The Internal Committee or the Local Committee shall take steps to settle the matter; there will be no monetary settlement in conciliation; copies of the settlement should be provided to both settling parties; and no further inquiry will be conducted. According to the provisions of the POSH Act, the inquiry will be conducted by the Internal Committee or the Local Committee if the complainant chooses a formal process of redressal. Within 90 days, the Internal Committee or Local Committee must conclude its investigation.
Punishment for sexual harassment
There needs to be some repercussions for the wrongdoing by a person. If, after the completion of the inquiry by the committees, the allegation against the respondent is proven, they must recommend to the employer:
To take action as stated in the relevant policy or service rules, the action may include a warning to terminate.
Deduction of an amount from the salary or wages of the respondent to be paid to the complainant or to her legal heirs.
Whenever there are no service rules drafted for the organisation, punishment may consist of disciplinary action, including an apology in writing, reprimand, warning, censure, withholding promotion or pay raise or increment, termination, counselling, or community service.
We cannot deny the fact that there is always a possibility of a false complaint. The Act has provisions for penalties for false or malicious complaints and false evidence. The committee may suggest taking action against the complainant in accordance with service rules if the committee’s investigation reveals that the accusations made against the respondent are untrue or malicious or if the complainant has provided any counterfeit or deceptive documents.
Conclusion
In our country, we find women from different classes (higher, middle, and lower). They may be educated or uneducated, stepping out of their houses daily for work. We are aware that we live in a patriarchal society, though it is changing, but the change is extremely slow. Managing both family and work is a difficult task, but in spite of that, she takes care of multiple things at a time and tries to do everything perfectly. This multitasking creates a huge amount of physical as well as mental stress. Hence, it is her right to have a safe workplace environment where she faces no discrimination, feels secure, has a positive atmosphere and, above all, no sexual harassment. If she is not provided with all these, it is a violation of her fundamental rights of gender equality and the right to life and liberty. We need to create awareness among the women and encourage them to come forward and complain. Society needs to change its way of thinking, and they need to support the victim and not restrain her and put restrictions on her. Most of the time, incidents are not reported due to shame, family pressure, stigma, fear and many more reason’s. Family support is the first step if she is facing harassment; secondly, the environment at work should also be supportive. It needs to be conveyed to her that it was not her fault. Prompt action in such cases is the key and never should the need arise where women have no other option other than to quit their job.
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This article has been written by Yashika Patel. In this article, the author has discussed Khula divorce in Muslim law in great detail. Further, the article also gives an overview of the procedure to initiate Khula in India. Furthermore, the difference between Khula and Talaq has also been discussed.
It has been published by Rachit Garg.
Table of Contents
Introduction
A recent judgement given by two judges of the Kerala High Court recognising a Muslim woman’s right to Khula is being celebrated extensively in the media and is being perceived as a progressive judgement advancing the cause of gender justice in Islamic law. The controversy came to light after a single bench judgement of the Kerala HC in K.C. Moyin v. Nafeesa (1972). The right of Muslim women to extra-judicial divorce was negated, and it was held that a Muslim marriage cannot be dissolved at the instance of women under any circumstances. As a result, the judgement foreclosed the modes of divorce available to women under Muslim law. Under Islamic law, the relationship between husband and wife is considered to be sacrosanct and must be protected. However, in some cases, the relationship may not be a blissful one and might even be troublesome for both of them. In such circumstances, the Quran provides an option for divorce. In India,divorce for Muslims is not governed by any statute but by Sharia law derived from the Quran and Hadith. There are four kinds of divorce under Islamic law, as recognised under The Shariat Act of 1937:
Talaq: It is the divorce at the instance of the husband that takes effect by pronouncing the word ‘Talaq’ to the wife in the presence of the witnesses.
Khula: The divorce at the instance of the wife upon the return of Mahr or any other conditions as may be prescribed.
Mubarat: The divorce by mutual consent of husband and wife.
Faskh: Divorce declared through court when approached by either of the parties.
The law of Khula has been gravely misunderstood and distorted over the years. The 1976 judgement rendered the option of extrajudicial divorce available to the woman through Khula and Mubarat under the Act illegal, which has now been overruled. The present judgement of the Kerala High Court has restored the correct position under Islamic law.
The principle behind Khula is to provide women with a way to dissolve marriage in case of an irreconcilable breakdown. Its aim is to safeguard women’s rights and protect them within the framework of Islamic law.
Muslim law gives women an opportunity to get their marriage dissolved both privately by Khula or Talaq-e-Tafweez and also by means of Faskh. In India, divorce through court is now regulated by the Dissolution of Muslim Marriages Act 1939, but this Act does not affect the principles of Muslim law on Khula and Talaq-e-Tafweez, which are wholly beyond its scope and object.
The Fatwi Alamgiri puts it thus : “When married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine law and that they cannot perform the duties imposed on them by conjugal relationships, the woman can release herself from the tie by giving some property in return, in consideration of which the husband is to give her a Khula, and when they have done this, a talaq-ul-bain would take place.”
What is Khula
Under Muslim law, the right to divorce or dissolve the marriage exists for both parties in a marriage, but it has to be exercised in extreme necessity, i.e., when the marriage is beyond any scope of reconciliation. The Quran has given equal rights to both men and women to repudiate their marriage. It does not insist that a relationship that makes it impossible to live a peaceful and harmonious life be continued indefinitely, and spouses are therefore allowed to separate from each other. The right of the wife to pronounce the divorce is known as “Khula,” and it is expressly mentioned in the Quran.
The word “Khula” is derived from the Arabic term “Khal’un,” which means extracting one thing out of another. The word Khula means taking out or taking off. According to Fatwa-I-Qazikhan, Khula means to take off your clothes. The spouses are garments to each other, and when they make Khula, each of them takes off his or her clothes. In Shariah, it signifies the relinquishment of rights and authority over the wife by her husband, dissolving the marital relationship at the desire of the wife in lieu of compensation paid by her to the husband out of her property.
In Muslim law, Khula is a way of divorce available to Muslim women through which she can get a divorce from her husband by returning the Mahr (Dower), which is the sum of money or property given to the wife by the husband in consideration of marriage. Khula is divorce at the instance of the wife, just as talaq is divorce at the instance of the husband. The court may advise reconciliation, but the last word is that of the wife.
Khula is also sometimes referred to as “Khul’”. Marriage can be dissolved by an agreement between the husband and wife for a consideration paid or to be paid by the wife to her husband. The same agreement if the wife alone is desirous is called Khula, and if both husband and wife are desirous, it is called Mubarat.
In Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa (1861), the judicial committee defined Khula as a divorce at the instance and with the consent of the wife, wherein she agrees to give consideration to the husband to get ‘Khul’’ i.e., release from marriage. It can be called ‘the right of divorce gained by the wife from her husband in lieu of compensation.’
In the Pakistan Supreme Court case of Mst. Sakina v. Uman Bukhsh (PLD 1964 SC 465), it was held that a Khula marriage is dissolved by an agreement between the parties for the consideration paid or to be paid by the wife to the husband. One of the necessities is that the desire to divorce should come from the wife.
Essentials of Khula under Muslim Law in India
Consideration
The concept of consideration is a mandatory precondition for divorce through Khula. For Khula to take place, it is mandatory for the wife to give some return consideration to her husband. A consideration can be anything that can be given as a dower, i.e., it need not be a sum of money; it can be anything that has value. The actual release of the dower or the property in consideration is not mandatory for the Khul’ to be valid. Once the husband gives his consent, the divorce becomes irrevocable. In cases where the wife agrees to pay something as a consideration but after divorce denies or fails to do so, the divorce does not become invalid on the ground that the consideration has not been paid. However, the husband can sue the wife for non-payment as a remedy.
Since Khula is initiated by the wife, it is her duty to pay consideration to her husband, which can also mean returning her mahr. However, if the wife fails to pay consideration, the husband can demand restitution of conjugal rights.
Capacity
The husband and wife must be people of sound mind and must have attained the age of puberty. A minor or a person of unsound mind cannot enter into a Khul’. According to Shafis or under Shia law, a minor or insane person cannot enter a Khul’. However, under Hanafi Law, the guardian of a minor wife may enter into Khul’ and pay consideration on her behalf, but the same is not applicable to the husband.
Under Shia law, the prerequisites for the performance of Khula are:
The person should be an adult.
He/she should be of sane mind.
Free agent
Husband has the intention to divorce the wife.
Under Sunni law, the prerequisites are as follows:
The person should be an adult.
They should be of sound mind.
Difference between Talaq and Khula
In Muslim law, dissolution of marriage takes place either on the death of either party to the marriage or at the instance of one of the parties or both parties.
Under Muslim law, divorce can be categorised into three categories:
Divorce by mutual consent.
Judicial divorce.
Unilateral divorce:
At the instance of the Husband:Talaq
At the instance of the wife:Khula
Talaq
Talaq is divorce at the instance of the husband. It happens when a husband exercises his right to pronounce divorce on his wife. Talaq is used to end a marriage or a nikah under Islamic law. All schools of Muslim law, i.e., the Shias and the Sunnis, although differing in some details, recognise it. A divorce by Talaq can only be initiated by the husband at his own pleasure. After giving talaq, the husband is bound to repay the wife’s dower and any property belonging to her.
Under Sunni law, it may be pronounced by the husband orally or in writing (talaqnama), and under Shia law, Talaq can be pronounced only orally by using prescribed words in Arabic called Seegha in the presence of two male adults.
Talaq and Khula ultimately lead to the dissolution of marriage, but they differ in their proceedings and initiation. Both of these procedures have their own specific rules. The main differences between Talaq and Khula are as follows:
Point of difference
Talaq
Khula
Right of divorce
The right to divorce is exercised by the husband.
The right to divorce is exercised by the wife.
Dower
The wife is entitled to a dower.
The wife is not entitled to the payment of the dower.
Offer
There is no offer to the wife by the husband.
There is an offer by the wife as a form of consideration.
Procedure
The husband does not have to follow any procedure.
The wife has to file a suit in court.
Remuneration
The husband does not have to give back any benefits received by the wife.
The wife has to give back the mahr or agreed amount/property as a consideration.
Completion
It is not completed by a single declaration by the husband.
Khula is at once complete and irrevocable from the moment separation takes place.
Remarriage
The wife cannot remarry her husband until she marries another man and obtains a divorce from him.
The wife can remarry her husband if they mutually agree to reconcile their differences.
Procedure to initiate Khula
The procedure of Khula varies according to different schools of Islamic jurisprudence.
In order to get a Khula, one must download the Talaq form and, after filling it, send it with a brief explanation of the application to the Islamic Sharia Council.
After reviewing the filled-out application for all relevant information, the application will be registered by the council. If any information or document is missing from the application form, it will not be registered.
The notification of Khula will be given to the wife through media such as phone, email, etc. She will be questioned on whether she wants mediation or if she has any final claims against the Mahr. The husband would then be informed of the wife’s response, and the appropriate actions would be taken.
There shall be a combined discussion with both sides as Quran-mandated mediation. Finally, in case of unsuccessful mediation and payment of Mahr, the office will issue a Talaq document to the husband, and the wife will be made aware of the signing date so she can observe iddat.
A Khula may take place orally or through written Khulanama. The general practice is to reduce the transaction to writing signed by the parties, the witnesses, and the arbiters if they have played a role in it. It is, however, not necessary to use the word Khula; the word Talaq may also be used, and if, in such a case, the divorce is initiated by the wife, it will remain a case of Khula.
Case laws
Moonshe Buzul-ul-Raheem v. Luteefut-oon-Nisha (1861)
In this case, the respondent brought up a suit against the plaintiff, to whom she had been married, to recover her “dyn-mohr” that was payable by him in the event of the dissolution of marriage. The appellant denied having divorced the respondent by talaq, that she had executed an “ikrarnamah” and had thereby released him from all claims in respect of her dower, and that she had given him a “khoola” and executed a “kaboolnamah.” The respondent alleged that two instruments by which she was alleged to have given up her dyn-mohr, had been obtained from her by force and stressed that the appellant had admitted the existence of divorce. It was held that “ikrarnamah” and “kaboolnamah” are special pleas taken by the defence and, as such, are of no avail and have no effect unless proved, and talaq is said to have been proved, and thereby, she is entitled to her dower.
Saiyid Rashid Ahmad v. Mussammat Anisa Khatun (1931)
In this case, a Sunni husband divorced his wife by pronouncing three talaqs under the undue influence of his parents in their presence when the wife was not there. Later, he continued to live with his wife without remarrying her. He had five children with her after this resumed cohabitation, and he treated them as his legitimate children. After his death, the children and his widowed wife claimed a share in his property, which was challenged before the court. The Privy Council held that there was no proof of any remarriage, and their union was void, making the children illegitimate; therefore, they had no right in the property of the deceased father.
Yousuf Rawther v. Sowramma (1970)
In this case, after the plaintiff’s marriage, the couple started living in the husband’s house, immediately after which the husband had to leave for Coimbatore to run his business. After a month of living in his house, the wife went back to her parents for a period of two years, during which he failed to maintain her. The issue before the court was whether the dissolution of marriage can be claimed by the wife on the grounds of the failure of her husband to maintain it for two years, to which the court held that a Muslim woman can sue for dissolution if she is not given maintenance by her husband, even if there is a good determination at which instance the talaq took effect upon the first utterance, in front of the witnesses, but in the absence of the wife, or when he informed her in writing in 1990, or whether it was even a valid divorce. The Court held that the written statement lacked evidence, and there were no reasons given in justification of the talaq and no proof that the effort of reconciliation was made preceding the talaq. As mentioned in the Quran, the talaq must be for reasonable cause and must be led by attempts of reconciliation. The respondent failed to provide evidence of the same and, hence,was liable to pay maintenance.
Shamim Ara v. State of UP & Anr (2002)
In this case, Shamim Ara, the appellant, and Abrar Ahmed were married and had four children together. In 1979, she filed a suit against her husband on the grounds that he deserted her and failed to support her, to which he responded in 1990 that he was under no obligation to maintain her as he had divorced her in 1987 via triple talaq but, this was done nor her presence and was neither communicated to her, there was just a filing of a written sattement. The court held that a mere plea taken in the written statement of divorce having been pronounced sometime in thepast cannot be considered a talaq.
Alungaparambil Abdul Khader Shud v. State of Kerala (2007)
In this case, the petitioner initially married a Muslim woman named Tahira, which took place according to the procedure defined under the personal law of the petitioner. Later on, he wanted to get married to another divorced Muslim woman through Khula and get it registered under the provisions of the Special Marriage Act, 1954. Under SPA, a marriage cannot be registered if another spouse is living. As a result, the marriage registrar insisted on a court decree dissolving the earlier marriage. The court held that for the registration of a divorced Muslim woman’s second marriage, Kazi’s certificate that the divorce had taken effect as per Muslim law should be accepted, and a court decree of divorce cannot be the reason for it. Hence, the appeal by the husband was dismissed.
Conclusion
Khul’ in India comes under the ambit of the extra judicial form of divorce, which makes it considerably more accessible for women to get a divorce if conditions are reasonable, but the process of obtaining Khul’ is not always simple and straightforward. Many complications arise while negotiating with the husband. The whole process is very stressful and may even fail sometimes. Along with offering consideration to the husband for releasing her from marriage, the wife also has to convince him to accept it. Some men refuse to enter into negotiations over such matters, while others take advantage of the woman’s lack of power in the marriage and ignorance of the law and coerce them into signing a Khul’ agreement with strenuous conditions.
We live in a kind of patriarchal society where women are considered inferior and are given few rights compared to men. A man is able to repudiate his wife at his own pleasure by pronouncing Talaq, while a woman faces an indefinite number of legal, financial, and societal hurdles to divorce her husband. Divorce is still considered a taboo in India and it’s considered even more shameful if a woman initiates the divorce due to the patriarchal nature of the society. There is a large segment of women whose marital status has deteriorated to the point where they have no other choice but to cut all ties with their husband. But only a few of them are able to take action on their own and take the necessary steps. They usually have little choice but to comply with their family’s wishes. However, this trend is changing, and women are now being provided with equal rights to divorce their husbands, as can be seen in the recent High Court judgement.
Now, it is clear that Khula is the right given to Muslim women by the Quran itself, and the permission or consent of the husband is not necessary for the dissolution of marriage through Khula. Where the wife demands Khula and the husband either refuses or fails to grant it, the court can make it happen after inquiring into the matter of dispute leading to this decision and after observing that the parties will not be able to observe the limits prescribed by Allah.
A veteran religious scholar of the subcontinent, Abul Ala Maudadi, has observed in Huqooq-uz-Zaujain-
“The wife’s right to Khula is parallel to the man’s right of Talaq. Like the latter, the former too is unconditional. It is indeed a mockery of the Shariat that we regard Khula as something depending either on the consent of the husband or the verdict of the kazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.”
FAQs
What are the rules for divorce under Islamic law?
Under Islam, divorce is recognised as a lawful way of ending a marriage, but marriage is considered a very sacred activity, and hence, divorce is seen as only a last resort, which should be considered only after failed efforts at reconciliation.
Is it haram to divorce your wife?
Divorce is not haram in Islam but is discouraged unless all attempts of reconciliation have failed. The Quran does recognise the necessity of divorce under certain conditions to avoid harm and encourage a new start, but this decision must be reached with wisdom and compassion.
What are the halal reasons for divorce?
In Islam, some reasons are considered halal or permissible. These may include adultery, physical or emotional abuse, and irreconcilable differences that are unresolvable.
Can I remarry my wife after Khula?
No, after Khula, the woman regains her independent status, and the man cannot reinstate the marriage in any way, even if he gives back her consideration.
Is Khula a permanent divorce?
Yes, once the Khula is finalised, the marriage is considered dissolved.
Can a husband deny Khula?
No, the husband cannot unreasonably deny the wife’s request to Khula.
Is Khula mentioned in the Quran?
Yes, the sources of the rights of Khula are the Quran and Hadis.
Does Khula need witnesses?
It depends on the jurisdiction and the school of Islamic law.
How long is the waiting period after Khula?
It is sufficient for a woman divorced under Khula to wait for one menstrual cycle.
Can a wife take Khula without her husband’s permission?
The right to terminate the marriage through Khula is an absolute right conferred on her by the Quran and is not subject to the acceptance or the will of her husband.
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RGNUL is delighted to inform you that Antara is organising ‘AAFREEN’, Inter College Virtual Music Competition, scheduled to be held from 10th- 20th November 2023. Its objective is to help facilitate the cultivation of musical zeal among the students and to bring together students from different colleges and universities, providing a platform to compete. This is complemented by cash prizes to keep the enthusiasm and the spirits high. The event aims to promote a zealous approach to Bollywood (filmy) music in its first edition. With the masses coming forward to showcase their talent, AAFREEN aims to diversify its categories in its future endeavours.
Please note that the competition will be conducted entirely in an online mode. Please refer to the brochure attached hereby for more details.
The Details of the event are as follows: Date of Competition: 10th- 20th November, 2023 Mode: Online
Registration Fee: ₹ 300 Last Date to Register: 25th October, 2023.
Have you ever been stalked by someone online? The definite presumption for this question is that the answer would be yes. Most of the time, we think of it as harmless and truth be told, we might have done it once or twice to get to know more about a person. But do you know stalking falls under the category of cybercrime? Likewise, there are a lot of things that keep happening in our day-to-day lives that we consider as innocuous but often, in their most aggravated form, they turn into crimes. In this article, we are going to focus on this subject matter, i.e., cybercrime, and we are going to delve deep into the consequences of cybercrime in Singapore.
What are cybercrimes
Cybercrime is defined as “any violations of criminal law that involve a knowledge of computer technology for their perpetration, investigation, or prosecution”. It is still a nascent area where, in certain jurisdictions, the definitions are still cropping up; what might be a crime in one country might not be a crime in another. The countries have still not reached a consensus regarding this. Moreover, Internet usage has gone over the roof everywhere around the world and this in turn raises the number of cyber crimes committed on a day-to-day basis. To contain this, a lot of legal developments have been brought into force, and international covenants have been framed to bind the countries and to bring in a level of uniformity that needs to be attached to this definition. It has taken the form of an unruly monster that needs to be tamed.
Kinds of cybercrimes
As stated above, the kinds and types of cybercrimes keep changing from one place to another, as does their criminalization. As stated below, these are the most common cybercrimes.
Internet fraud
Have you ever clicked on a link or a page and been redirected to some other website that looks a little dubious to you? Pictures and videos spawn over the website that you are not interested in looking at and you see your computer malfunctioning. Well, that’s Internet fraud for you. This is a large network which covers theft services, banking fraud, email fraud, spam, etc.
Cyberbullying
Virat Kohli’s 3-year-old daughter was subjected to rape threats on Twitter just because he lost a match. Celebrities, Cricketers and influencers are the most common victims of cyberbullying (although not limited to them). The luxury of wearing a mask on your face and threatening, bullying or teasing people about their activities and having an opinion about anything and everything, with no bar upon the freedom of the right exercised on such public platforms, has resulted in unsettling forms of cyberbullying.
Phishing
Emails and SMS’s about 1 lakh rupees being credited into your account, congratulatory messages about winning a lottery or a call from someone claiming to be an employee of your bank asking for your debit/credit card essentials are some of the forms of phishing attacks. Every other person that you know has come across these kinds of things at some point in their lives. It has become quite prevalent in our society.
Identity fraud
Nowadays, for any service that we avail, we need to provide our personal details in order to get an effective and customised service. If you have searched for anything on Google, you can see similar types of content on Instagram and Facebook. It is not a mere coincidence but rather that our data is being used by the organisations and shared with a third party. We often don’t think twice before logging into a website using our Google credentials and that particular website can access all our personal information. As scary as this thing sounds, it can get scarier if a hacker hacks into the system, takes our information and uses it to his own benefit, thereby committing fraud or identity theft.
These are some of the categories of cybercrime that we see happening around us regularly.
Cybercrimes in Singapore
Singapore, when it comes to cybercrime, has been ranked 4th in the world. This does not paint a good picture and it might worsen over time. The rise in Internet usage can be partly blamed on the establishment of Singapore, which- tried to boost it via its Intelligent Nation 2015 Masterplan. There has been a recent surge in Singapore-linked botnet devices, which are being used to hack into household devices. A botnet is a “network or collection of internet-connected devices that are infected by malware and remotely controlled by the hacker”. It infects the target computer first, and then it gets connected to the bot.
A study conducted by Microsoft last year found that 68 percent of youths aged 13 to 17 in Singapore receive unwanted sexual content online, with 45 percent of them approached by strangers—both of which are higher percentages than the global average.
There are no boundaries that one can set when it comes to the Internet. On one end of the spectrum, it can change a man’s life by teaching invaluable lessons and there’s no limit to the amount of knowledge that one can gain. On the other end, one can get entangled in it, get into the dark web and find themselves in prison for a crime they didn’t know they were committing. The government of Singapore has been enacting laws and has tried opening up various conduits to constrain the issue at hand by using various methods, which we will discuss in this article.
Legislation and regulations
The Computer Misuse and Cybersecurity Act (CMCA) is the primary legislation addressing cybercrime in Singapore. It criminalises unauthorised access to computer material, unauthorised modification of content, and other cyber offences.
The Personal Data Protection Act (PDPA) regulates the collection, use, and disclosure of personal data and includes provisions for the protection of personal information in the digital space.
Government initiatives
The Cyber Security Agency of Singapore (CSA) is the national agency overseeing cybersecurity strategy and implementation.
Singapore has launched the Safer Cyberspace Masterplan, focusing on strengthening the country’s cybersecurity posture through various initiatives, including public awareness campaigns, skills development, and collaboration with the private sector.
Incident response and reporting
The Singapore Computer Emergency Response Team (SingCERT) plays a pivotal role in responding to cybersecurity incidents. From providing timely alerts to offering guidance on best practises, SingCERT is at the forefront of the nation’s incident response efforts. Reporting mechanisms are in place to ensure that cyber incidents are promptly addressed and mitigated.
Factors that might have an impact
Here we are going to discuss Lessig’s four modalities of constraint. In his famous book, Code and Other Laws of Cyberspace, Lawrence Lessig explains that there are four key “modalities of regulation” that attempt to limit or restrain people’s behaviour. These modalities are (1) law, (2) architecture, (3) norms and (4) the market.
Law
One can sit in the United States and commit a crime in Singapore with just one click on their computer and by the time the user reports the crime, the perpetrator can easily get away with it and remove all trace of the crime committed. Evidence in cases of cybercrime is quite volatile in nature. To be able to keep up with such a high level of competency shown by the offenders is a real task in itself.
Singapore has not shied away from being a part of the global team that is helping to curb this and has signed a couple of agreements like the Wassenar Agreement that promotes the fight against terrorism and also became a member of the WIPO that promotes intellectual property rights. They have also tried to align their laws as per these agreements.
Architecture
The architecture of cyberspace can either provide a safe haven or become a gateway for invasions of privacy. A governmental organisation in Singapore named IDA has joined hands with Infocomm Security Master Plan, who in turn are planning to improve their technologies in order to prevent any kind of cyber threat. But do you know that the dark web exists because of this very architecture? It gives something very valuable to the offenders, i.e., anonymity. By staying anonymous, they can do a number of criminal activities that are very much in demand, like child pornography, cyberbullying, sending spam over emails and defrauding people. Singapore has taken a hard-headed approach to it by blocking 100+ such offensive websites and so far, it has been seen that the crime levels have lowered.
Markets
Piracy is a term that we are all quite aware of. The large majority of the population in a country is comfortable with this concept because they don’t want to pay for watching a movie or listening to their desired music. Even minimised rates do not work for them when they can easily download it without having to spend a single penny. Singapore is still trying to devise a method to contain this issue, which is so widespread. There is one organisation called the Business Software Alliance, which incentivises whistle-blowers with a reward of 20,000 dollars and it has in some way minimised piracy offences.
Social norms
We have all heard the saying “With great power comes great responsibility” from our favourite superhero movie, Spiderman. Applying the same analogy in this case, when it comes to the Internet, the world is our oyster, and there is nothing that we can’t do but remember where we should draw the line on our own. Building societal pressure, alienating people, creating social stigmas and providing education are some of the ways that can help a person come out of this dark hole if they have lost their path in this web of the Internet. The moral conscience of the people should also be tapped into, which would help them return to our society and find their place in it. Use the Internet to build your life, not to get yourself handcuffed.
Financial sector security
Given its status as a global financial hub, Singapore pays special attention to securing the financial sector against cyber threats. The Monetary Authority of Singapore (MAS) issues guidelines and requirements to bolster cybersecurity resilience in financial institutions.
In conclusion, Singapore’s proactive approach to cybersecurity reflects its commitment to safeguarding its digital future. By combining legal measures, government initiatives, public-private collaboration, international cooperation, incident response mechanisms, skills development, and a focus on critical sectors, Singapore strives to stay ahead in the ever-evolving landscape of cybercrimes. As the digital frontier expands, the city-state stands resilient, ready to face the challenges posed by an increasingly complex and interconnected digital world.
Suggestions
When it comes to finding a solution to any issue that is put in front of us, law and education go hand in hand. It can be effectively analysed as an infusion of good cops and bad cops in a difficult circumstance. The law acts as a bad cop by penalising people for the crimes that they have committed and education helps a person to know more about the limitations under which one must act to avoid going to prison. A code of conduct might help to formulate the do’s and don’ts, where the right balance can be achieved during the proliferation age of the Internet. The Singapore government must seek aid from cyber experts such as white hackers to understand the perspective of the perpetrators and frame the law accordingly.
Conclusion
Singapore, to avoid cybercrime, has very recently come up with an Online Criminal Harms Bill, which had its first reading in Parliament in the previous month. It is being touted as a proactive approach that is being taken by the government in order to address the issue of malicious activities by cybercriminals. The bill talks about swift action that will be taken by the government before any actual harm is done to users. We need to see how these new promises actually pan out in driving out the menace that has been created in the past few years.
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Alternative dispute resolution (ADR), also known as external dispute resolution (EDR), is basically a method to resolve a dispute outside the court, i.e., without any interruption from the court. At this point in time, when there are many cases pending before the court and there are not sufficient judges and time to resolve them all in court, ADR gained widespread acceptance to resolve disputes. There are many methods of ADR, like mediation, arbitration, conciliation and many more.
Negotiation is also a prominent method of ADR. When two or more parties have different interests and want to come to a mutually acceptable conclusion, they opt for negotiation as an ADR method.
What is negotiation
Negotiation is derived from the Latin word ‘negotiari’ which means ‘to carry on business, do business’. Negotiation is very prominent among Indians; we get to see it from the street while negotiating the price of anything with the big multinational companies while negotiating deals with them. Negotiation is defined as self-counseling between the parties to resolve the dispute. In negotiation, parties, with their own will, by discussing politely and patiently, try to come up with a solution that is acceptable to both parties regarding the issue.
Negotiation is a process of discussion and communication between two or more parties with the aim of reaching an agreement or resolving a dispute. It involves identifying common interests, exploring potential solutions, and finding compromises that satisfy all parties involved.
One of the key reasons why negotiation is important is its ability to preserve relationships. Unlike litigation, which often results in winners and losers, negotiation allows people to work together towards a resolution that meets everyone’s needs. This collaborative approach fosters understanding, builds trust, and maintains positive connections for future interactions.
Moreover, negotiation provides a cost-effective alternative to legal proceedings. Litigation can be time-consuming, expensive, and emotionally draining for all parties involved. By engaging in negotiations instead, individuals can save valuable time and resources while still achieving their desired outcomes.
Additionally, negotiation promotes creative problem-solving. It encourages participants to think outside the box and explore innovative solutions that may not have been considered initially. This flexibility allows for unique agreements tailored specifically to the needs of those involved.
Negotiation empowers individuals by giving them control over the outcome of their disputes. Rather than relying on judges or arbitrators to make decisions on their behalf, negotiators have the opportunity to actively shape the terms of their agreements.
Characteristics of negotiation
Characteristics of negotiation are:
Voluntary: This is one of the important characteristics of negotiation, i.e., it should be completely voluntary, and no party can be forced to negotiate with the other party. Whichever party wants to negotiate will send a letter to the other party, asking to negotiate. If the other party agrees to negotiate without any force or threat, only then can both parties take further steps to negotiate.
Bilateral/multilateral: Negotiation can be conducted between two or more parties, as many as may be required.
Non adjudicative: Negotiation is a process that includes only parties to the issue to get a solution amicably and no third neutral party takes part in the negotiation process.
Informal: unlike other alternative dispute resolutions, negotiation is an informal method. There are no rules defined for negotiation; parties to the issue make their own rules with mutual discussion and acceptance.
Flexible: Negotiation totally depends on the choice of parties, i.e., where it will take place, when it will take place, what will be the topic of negotiation, which approach they will take, etc.
Advantages of negotiation
The advantages of negotiation are:
Negotiation is a flexible process, i.e., it depends on the discretion of the parties as to whether they want to opt for negotiation to resolve the issue or not; if yes, where it should be conducted; in how many meetings the negotiation should be done; and there are no specified rules for negotiation; parties can conduct it in their own way.
Unlike other issue resolving processes (e.g., litigation, arbitration, etc.), it is more likely to come to a conclusion that can be favourable for both parties.
It is a voluntary process and can only be opted for with the consent of each party. It is the discretion of the parties whether they want to negotiate or not and the decision of any party shouldn’t be forced or manipulated by the other party.
Negotiation involves only parties to the issue and there is no interference from any third party for dispute resolution, which is a great advantage for the parties who don’t want to involve any outsiders in the issue.
Negotiation is the process that only binds the parties to an issue, unlike other processes (e.g., litigation). For example, in litigation, if a decision is passed by the court, then it will be taken into consideration or, as a in further similar cases, but in negotiation, there’s nothing like that; if somebody gets into a similar dispute with someone else, then it is not necessary to take their decision into consideration i.e., they can come to a different conclusion.
since in negotiations, disputes are resolved amicably, which enhances the relationship between the parties for future interactions.
As negotiation is a voluntary process, there will be no court fees or other expenses, which makes it a less expensive dispute resolution process compared to others.
Evidently, negotiation is a faster process to resolve any dispute, as there is no interruption by the court or any other third party to keep giving dates for the hearings to resolve the issue.
Negotiation is always a good option for any sensitive issue because this is a very private resolution process that only includes the parties to the dispute.
Disadvantages of negotiation
The disadvantages of negotiation are:
If the negotiation is conducted between the unequal parties, then there are huge chances that the stronger party will get more benefits as compared to the weaker party, which is morally wrong.
Where there are benefits to the absence of the third party, there are also drawbacks. Due to the absence of third party, there are chances in negotiation that the parties will not come to any agreement and all the time and money incurred by the parties will be a waste.
If one of the parties doesn’t know about their rights, then due to the absence of this neutral party, there are huge chances that the other party can take advantage of that party.
If any party changes its mind, backs off after initiating negotiation, and withdraws itself from the proceedings of negotiation, then the amount of time and money invested in the negotiation will become a waste.
Steps for negotiation
Steps for negotiation are:
Preparation: Before becoming a part of the negotiation process, parties need to prepare themselves for what can be the Best Alternative to a Negotiated Agreement (BATNA) and what can be the Worst Alternative to a Negotiated Agreement (WATNA). They also need to decide whether the other party is willing to resolve the dispute or not.
Discussion: Before conducting negotiation, setting ground rules for the negotiation is crucial that what will be the venue of the negotiation, timings, what will be the approach they want to go with etc.
Clarification of goals: Parties to the negotiation should have to clarify their goals and viewpoints and resolve any misunderstandings.
Bargaining and problem solving: this is the most important part of the negotiation process. Parties to the negotiation share their points of view, adjust according to the situation and come to a conclusion that is acceptable to all parties.
Agreement: after coming to a conclusion, an agreement is made according to the decided solution of the dispute and then signed by the parties to the negotiations.
Implementation: After signing the agreement, parties need to implement and operate according to the agreement.
Prepare alternatives: It’s important to consider alternative options if an agreement cannot be reached through traditional negotiations. Brainstorm potential alternatives before entering into negotiations so that you have backup plans ready if needed
Types of negotiation
Types of negotiations are:
Distributive negotiation: In this type of negotiation, parties negotiate over one topic, which creates a win-lose situation for the parties due to which one party will get the advantage.
Integrative negotiation: In this, parties negotiate over many topics, which creates chances to get a win-win situation for the parties and mutual gain.
Team negotiation: In this type of negotiation, the parties negotiate in teams.
Multiparty negotiation: In whichever negotiation there are more than two parties, that negotiation becomes a multiparty negotiation.
Conclusion
Alternative dispute resolution (ADR) includes many methods to resolve disputes; one of them is negotiation. When parties to a dispute want to resolve it amicably, they opt for negotiation. In negotiation, there are high chances to reach a conclusion that is good for both parties and get satisfaction with the solution. But sometimes, due to the absence of the third neutral party, there are chances that either party to the negotiation may not get a solution or one party will wrongly use its position or any party can back off at any time. Therefore, negotiation is a great method to resolve disputes, but there are some drawbacks to it.
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This article has been written by Priyanka Mansingh pursuing Crack NCA – Canada Examination and edited by Shashwat Kaushik. This article explores the practise of euthanasia in India from a legal and ethical point of view. It also looks at how euthanasia was viewed historically and how it is practised worldwide now. It examines the countries where euthanasia has been legalised and the situations in which it is permitted. The legal landscape in India regarding euthanasia is also examined.
Euthanasia or “mercy killing,” is the “act or practice of painlessly putting to death persons suffering from a painful and incurable disease or incapacitating physical disorder or allowing them to die by withholding treatment or withdrawing artificial life-support measures.” It has been the subject of ongoing legal and ethical debates, as those in favour of it advocate respect for every individual’s autonomy and those against it promote respect for life. In India, based on a liberal interpretation of Article 21 of the Indian Constitution, the Supreme Court has recognised that the ‘right to die with dignity’ is a fundamental right.
To begin with, let us consider the case of a patient diagnosed with a severe, incurable form of cancer. The patient may survive for up to five years, but will be bedridden and in unbearable pain without any hope for recovery. Should the patient be granted the ‘right to die with dignity’? What about a situation wherein the patient cannot make their choice known because they are incapacitated? Should the ‘right to die’ be a private matter as long as it does not harm others?
Understanding euthanasia
Historically, some cultures have shown a greater level of tolerance for suicide and euthanasia. In ancient Rome, Norse mythology and Viking culture, suicide was considered an honourable act under specific circumstances. In Japan, the act of ritual suicide called seppuku or hara-kiri was practised by samurais as a way to restore their honour, preserve dignity, or atone for failures. In ancient Sparta, a Greek city-state, a practise called ‘exposure’ was used on weak or disabled infants and elderly individuals, whereby those who were deemed unfit were abandoned or left exposed to die. In a few Eskimo or Inuit communities in the Arctic, Aboriginal Australian communities and ancient Chinese societies, where resources were scarce, older people were sometimes abandoned or left to die during times of extreme hardship or famine.
In India, traditionally, some advanced practitioners of Jainism, usually those who are old or terminally ill, sometimes undertake the practise of voluntary fasting until death called ‘Sallekhana’ or ‘Santhara’ to minimise suffering and purify their souls. Also, in some parts of southern districts of Tamil Nadu, there is a practise called ‘Thalaikoothal’ which refers to the killing of the elderly by their own family members. Although this practise of involuntary euthanasia is illegal, it has traditionally received social acceptance as a form of mercy killing.
However, the above practises are not representative of the vast majority of cultures and societies. Modern societies now endeavour to care for their weak, vulnerable and elderly populations.
Euthanasia is often considered a debatable, complicated and delicate topic nowadays because giving societal or legal approval to the deliberate act of ending a person raises a number of moral and legal issues. Some people believe that full autonomy should be given to terminally ill patients, whereas others believe that this could lead to some people being coerced to commit suicide. Also, the role of doctors in the process of ‘mercy killing’ is debateable because, inherently, doctors are trained to heal and cure rather than assist in suicide. Also, there is always a danger that euthanasia regulations may be abused by patients who are not terminally ill, as well as by carers of patients.
Euthanasia or mercy killing, remains illegal in almost all of the world’s countries. Very few countries have legalised euthanasia with varying degrees of restrictions.
Types of euthanasia
Types of euthanasia are:
Active euthanasia: Active euthanasia entails the intentional and direct administration of a lethal substance or the carrying out of an action to cause the death of a person. It is carried out under medical supervision. In countries such as the Netherlands and Belgium, active euthanasia is legal under certain circumstances.
Passive euthanasia: Passive euthanasia refers to the refusal or withdrawal of life-supporting treatment or medical interventions that could lead to the natural death of a person. For instance, by removing the ventilators, feeding tubes, or life-sustaining medications. Passive euthanasia is permitted in many countries, including India. The Supreme Court of India, in the case of Aruna Ramchandra Shanbaug vs. Union of India (2011), allowed for passive euthanasia by permitting the withdrawal of life support in certain situations.
Voluntary euthanasia: Voluntary euthanasia ensues when a person of sound mind makes an informed decision to voluntarily end their life. This form of euthanasia requires a person’s explicit consent and full participation in the euthanasia decision-making process. Two countries where voluntary euthanasia has been legalised are Canada and Colombia. In Canada, the Supreme Court’s decision in Carter vs. Canada (2015), decriminalised physician-assisted dying for competent adults with a grievous and irremediable medical condition.
Non-voluntary euthanasia: Non-voluntary euthanasia refers to situations wherein a person is unable to provide consent due to mental incapacity. For instance, in a case where a patient is in a coma or is unconscious, the decision to end the person’s life is made by a family member or legal guardian. Non-voluntary euthanasia is highly debated and restricted due to concerns about a person’s autonomy. The Netherlands and Belgium have limited provisions for non-voluntary euthanasia in exceptional cases involving minors. Whereas the Netherlands allows non-voluntary euthanasia for infants, Belgium permits it for minors of any age under certain circumstances.
International perspectives on euthanasia
To gain a broader understanding of the legality of euthanasia or mercy killing and its application, let us examine countries where it has been legalised. The following countries have implemented legislation or court rulings permitting some mode of euthanasia or physician-assistedphysician assisted suicide:
Canada
In Canada, the Supreme Court’s decision in the case of Carter vs. Canada on February 6, 2015, brought about a significant change in the legal landscape by decriminalising physician-assisted dying for competent adults with a grievous and irremediable medical condition. The unanimous ruling held that the Criminal Code’s prohibition of physician-assisted dying in cases of assisted suicide and voluntary euthanasia violated the Canadian Charter of Rights and Freedoms and would no longer be valid. This landmark decision also established a framework of safeguards and procedures to protect vulnerable individuals and ensure that their informed consent is obtained.
The subsequent 2016 law in Canada acknowledged that competent adults or Canadians aged 18 and older who have a serious and irreversible medical condition can exercise their right to seek medical assistance in dying. Since then, as of 2021, over 31,000 Canadians have died with medical assistance, as reported in the third annual report on Medical Assistance in Dying in Canada.This report highlighted the noteworthy impact and use of medical assistance in dying in the country, proving the importance of providing people with an option to end their lives when faced with a grievous and irremediable illness.
Netherlands
In 2002, the Netherlands became the first country to legalise both euthanasia and physician-assisted suicide. The legislation allows for the option of euthanasia when a patient is enduring unbearable suffering with no prospects of improvement and when the attending physician meets the statutory due care criteria. Since its legalisation, the number of euthanasia cases in the Netherlands has consistently increased. Notably, by 2019, the recorded cases had grown significantly to 6,361. While these cases represent a relatively small percentage of total deaths, they have doubled from under 2% in 2002 to over 4% in 2019.This upward trend accentuates the increasing acceptance and utilisation of euthanasia in the Netherlands.
Belgium
In 2014, the Belgian Senate expanded their legislation on euthanasia to include minors in exceptional cases involving terminally ill children. However, despite this extension, the federal commission responsible for overseeing euthanasia in Belgium reported that no minors underwent euthanasia in 2021. Since the law’s implementation in 2002, Belgium has recorded more than 29,000 euthanasia procedures.This data reflects that a significant number of people have chosen euthanasia as an end-of-life option in Belgium.
Luxembourg
Luxembourg permits euthanasia and assisted suicide under strict conditions. The law stipulates that individuals seeking euthanasia must be adults suffering from a severe and incurable condition that leads to unbearable physical or psychological pain. However, it also ensures that healthcare professionals are not obligated to perform euthanasia or assist in suicide. From 2009 to 2022, more than 70 people in Luxembourg opted for euthanasia, and a mere 4 people chose assisted suicide. These figures demonstrate the limited utilisation of euthanasia in the country.
Colombia
Colombia was the first country in Latin America where euthanasia was legally permitted. In 1997, the Constitutional Court of Colombia ruled that euthanasia is lawful under specific circumstances. It recognised the right of individuals with terminal illnesses or incurable conditions causing intolerable suffering to request euthanasia, given they provide informed consent. According to a DescLab report, from 2015 to October 31, 2022, Colombia conducted 322 medically assisted death procedures. These numbers highlight the implementation and utilisation of euthanasia as an end-of-life option in the country.
United States of America
In recent years, there has been a noticeable rise in the movement towards legalising physician-assisted suicide in multiple U.S. states. At present, physician-assisted death is only permitted in ten states, which include Maine, New Jersey, Vermont, New Mexico, Montana, Colorado, Oregon, Washington, California, and Hawaii, as well as Washington, D.C. However, the demand for compassionate and legally approved end-of-life options extends well beyond the borders of these specific jurisdictions. In the year 2023 alone, twelve U.S. states are actively considering introducing legislation to legalise physician-assisted suicide.
Legal perspectives in India
In India, the legality of euthanasia is a subject of intense debate, particularly regarding whether the ‘right to die’ can be recognised as a fundamental right under Article 21 of the Indian Constitution. Article 21 mentions that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” Thus, Article 21 guarantees the protection of life and personal liberty. Over the past decade, the judiciary in India has expanded the interpretation of Article 21 to include the ‘right to live with dignity’, the ‘right to refuse medical treatment’ and the ‘right to die with dignity’. It’s important to note that active euthanasia is still prohibited in India. The debate regarding active euthanasia continues, with differing opinions on whether it should be allowed under certain circumstances.
One poignant case that highlighted the issue of euthanasia in India was that of Aruna Shanbaug, a former nurse who spent 42 years in a persistent vegetative state following a brutal sexual assault. Aruna’s plight caught the attention of the masses and triggered a legal battle. Profound questions about euthanasia or mercy killing, the rights of individuals to live with dignity and ‘living wills’ were raised in this case. In 2011, the Supreme Court of India recognised the concept of passive euthanasia and highlighted the importance of individual autonomy and the right to die with dignity. It also laid down procedures for administering passive euthanasia in certain situations. Passive euthanasia was permitted on a case-to-case- basis, subject to the approval of the High Court after following the due process. Regrettably, Aruna did not benefit from this judgement, as she was declared not brain-dead and so the order could not be applied to her case.
In 1996, a five-judge Constitutional Bench of the Supreme Court held in the matter of Smt. Gian Kaur vs. State of Punjab that the ‘right to life’ does not include the ‘right to die’ or ‘right to be killed’, so euthanasia cannot be recognised as a fundamental right. However, the court opined that withdrawal of life-support in certain circumstances may be justified while stressing the importance of preserving human dignity.
The Supreme Court of India judgement in the matter of Common Cause (A Regd. Society) vs. Union of India (2018) was significant as it recognised the right of a person to die with dignity and laid down the framework for the concept of ‘living wills’. A ‘living will’ is a legal document that allows individuals to express their wish to refuse medical treatment or artificial life support in the event they are unable to communicate their desires in the future. It empowers people to exercise their autonomy and make personal decisions about their lives.
The Supreme Court in this case of Common Cause (A Regd. Society) held that people have the right to refuse medical treatment or life support in advance. Further, the court outlined guidelines and safeguards for the implementation of advance directives, ensuring they are valid, voluntary, and informed. In January 2023, the Supreme Court of India’s Constitution Bench, headed by Justice K M Joseph, modified this order on passive euthanasia and simplified directions by altering the existing guidelines for ‘living wills’.
The need for comprehensive legislation in India
While passive euthanasia has received legal recognition in India, the legality of active euthanasia, where a person actively participates in ending their own life or facilitates the death of another, remains uncertain. The lack of legislation governing active euthanasia has led to a legal vacuum and ethical dilemmas for medical practitioners, patients, and their families. In India, a study conducted in 2018 found that 86.2% of the respondents were in favour of legalising euthanasia, while 13.8% were against it. This study shows significant public interest and support for the legalisation of euthanasia in India.
To address this issue, the Law Commission of India, in its 241st report in 2018, recommended the enactment of legislation permitting both passive and active euthanasia under specific circumstances. The report proposed safeguarding measures to ensure that the decision to opt for euthanasia is made voluntarily, without coercion or duress. It also emphasised the importance of establishing appropriate regulatory mechanisms to prevent abuse and misuse of euthanasia laws.
Ethical considerations and public perspective
The World Medical Association, in its declaration on euthanasia, is firmly opposed to euthanasia and physician-assisted suicide. It mentioned that “euthanasia is defined as a physician deliberately administering a lethal substance or carrying out an intervention to cause the death of a patient with decision-making capacity at the patient’s own voluntary request”.On the other hand, the World Medical Association also acknowledges that individual physicians may have different views on the matter. EuthanasiaThe topic of euthanasia elicits strong opinions, and ethical considerations play a pivotal role in shaping discussions regarding its legality.
Advocates argue that euthanasia offers a compassionate choice to alleviate intolerable pain and suffering, granting individuals the opportunity to pass away with dignity and autonomy. They believe that each person possesses the right to determine the course of their life, including the manner and timing of their own death. Not only can euthanasia relieve suffering, it can save money on healthcare costs as well because it can prevent people from spending long periods of time in the hospital or in hospice care.
Pamela Bone, a journalist and columnist for an Australian newspaper, died after a long and painful battle for four years against myeloma. She said, “I’m not afraid of being dead. I’m just afraid of what you might have to endure to get there.” She, like many other terminally ill patients, wanted euthanasia to become legal and have the right to die on her own terms.
Opponents, on the other hand, believe that it is morally wrong, even if that person is terminally ill and in pain. They express concerns about potential abuse by both patients and carers, employ the slippery slope argument, and emphasise the sanctity of life. They worry that legalising euthanasia could devalue human life, create openings for involuntary euthanasia, and have detrimental effects on vulnerable populations. Religious, cultural, and moral beliefs further contribute to the diverse range of perspectives on this complex issue.
The case of Alan Nichols, a 61-year-old Canadian who underwent euthanasia despite not having a life-threatening condition, highlights the ethical dilemma associated with allowing euthanasia. Disability experts argue that Canada’s permissive euthanasia regulations, which enable individuals with disabilities to choose euthanasia, lack essential safeguards and potentially devalue the disabled individuals’ lives. Advocates also express concerns about individuals seeking euthanasia due to inadequate government support.
Canada’s approach to euthanasia is noteworthy due to the absence of regular case reviews, the involvement of nurse practitioners in the process, and the absence of restrictions on discussing euthanasia with patients. Worries arise regarding the lack of accountability for medical professionals involved in questionable cases, as well as the potential coercion faced by disabled individuals who contemplate euthanasia. The availability of euthanasia as an option has led some disabled Canadians to opt for it due to financial burdens and insufficient support. Critics argue that Canada’s euthanasia laws require further enhancements, particularly as the country plans to expand access to include mental health reasons and potentially minors.
Conclusion
Often, when a country considers legalising euthanasia or physician-assistedphysician assisted dying, the ethical and legal considerations centre around the four principles of beneficence, non-maleficence, autonomy, and justice.
Beneficence or the principle of ‘do good’ focuses on the patient’s well-beingwell-being of the patient.
Non-maleficence or the principle of ‘do not harm’, focuses on evaluating the potential risks and benefits of any intervention.
Autonomy or the principle of ‘respecting an individual’s right to make decisions about themselves, focuses on considering if the individual left any advance directives or living wills.
Justice or the principle of ‘ensuring fairness and equal treatment of all individuals,’ focuses on questions about the availability and accessibility of palliative care, support for patients and their families, and the consistency and fairness of legal frameworks surrounding euthanasia or assisted dying.
After carefully considering all these factors, they decide whether to legally permit euthanasia or not and its scope. Given the prevailing legal ambiguity with regards to active euthanasia, it would be beneficial for India to enact specific legislation that addresses euthanasia comprehensively. Learning from the experiences of countries where active euthanasia has been legalised, India can develop comprehensive laws and guidelines that strike a balance between individual autonomy and the protection of vulnerable individuals from potential abuse.
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This article is written by Adv. Komal Arora. This is an exhaustive article dealing with Himachal Pradesh judiciary exam. It covers all the relevant details on the exam, eligibility, the syllabus, exam pattern, important books, and guidance on how to clear the exam. If you are a candidate appearing in any stages of the Himachal Pradesh judiciary exam, this article will offer you immense help. It covers the important topics, tips to score better marks and also the frequently asked questions on the topic.
It has been published by Rachit Garg.
Table of Contents
Introduction
Being a part of the judicial profession entails dignity and power for your entire life. The profession is more alluring and lucrative as it includes serving the general public, helping in the administration of justice and contributing back to society. It may be termed as an intelligent and challenging career option where your study never stops. Consequently, it attracts a huge number of candidates across the country.
A judiciary aspirant appearing in any judiciary exam should commit to preparation in such a precise manner that they clear the exam in one go. Behind each attempt in any exam, there are years of hard work and dedication. So, how do you ensure that your preparation meets your expectations and lay the groundwork to become a judicial officer? This article will help and guide you on the right way to prepare for your judiciary exam.
Himachal Pradesh judiciary exam, 2023
An overview
Himachal Pradesh Public Service Commission conducts the judiciary exam for the state of Himachal Pradesh to recruit eligible candidates to be appointed as judicial officers. The exam is held in three stages and checks the candidate’s knowledge of Indian laws, the practical applicability of law, and the candidate’s ability to make lawful decisions. After going through this thorough process of selection, the candidates are then appointed as judicial officers. This year, the Himachal Pradesh Public Service Commission has invited online applications from eligible candidates to fill 17 posts. In pursuance of it, the preliminary exam has already been conducted on 9 July, 2023 and now is the time to buckle up for the mains exam. If you are a lawyer or a law student who wants to become a judicial officer in Himachal Pradesh but need the right guidance then don’t worry; this article covers everything about the Himachal Pradesh judiciary exam.
Before delving into the syllabus and scheme of the exam let’s answer a few important questions:
Some common questions answered
Who conducts the Himachal Pradesh judiciary exam?
The recruiting body for the exam is HPPSC, which stands for Himachal Pradesh Public Service Commission.
What is the official post called?
The post of lower judiciary is officially called Civil Judge.
What is the salary of a judicial officer in Himachal Pradesh?
The salary for being appointed as a civil judge in the state of Himachal Pradesh is in the pay scale of 77840-136520.
What is the selection process?
There are three stages in the exam:
Preliminary exam, Mains exam and interview.
What is the job location?
Your posting after being appointed a judicial officer will be in the state of Himachal Pradesh.Tabular representation of Himachal Pradesh judiciary exam, 2023
Recruiting body
Himachal Pradesh Public Service Commission (HPPSC)
The Himachal Pradesh Public Service Commission has invited applications from interested candidates to fill up a total 17 vacancies in 2023.
Category
Vacancy
General
7 (including 4 anticipated)
Other Backward classes
4 (including 3 anticipated)
Scheduled caste
3 (including 1 anticipated)
Scheduled tribe
3 (including 2 anticipated)
Total
17
Previous year vacancies
Year
Vacancies
2019
11
2018
4
2017
12
Eligibility criteria for appearing in Himachal Pradesh judiciary exams
In order to be eligible for appearing in the lower judiciary exams certain criterions are set:
1. The candidate must be a citizen of India.
2. The candidate must hold a degree in law from a university or college which is recognised by the Bar Council of India.
3. Minimum age required to appear in this exam is 22 years while the maximum age is 35 years.
4. For the maximum age, a relaxation of three years is provided for SC, ST and OBC category candidates belonging to Himachal Pradesh.
Essential qualification
The candidate must be a citizen of India and hold a degree in law from a university recognised by the Bar Council of India.
Desirable qualification
It is desired and not mandatory that the candidate is well versed with traditions, dialect, customs of Himachal Pradesh.
Age limit for Himachal Pradesh judiciary exam
The minimum age for appearing in Himachal Pradesh judiciary exams is 22 years while the maximum age is 35 years.
Age relaxation
For only the category of SC, ST, and OBC the maximum age is relaxed by three years.
Number of attempts
There is no explicit limit on the number of attempts but the maximum age for applying for the post of judicial officer is to be considered which is 35 years.
Modes of Appointment
There are two modes for appointment of a judicial officer in Himachal Pradesh
1. Appearing in the exam for lower judiciary which is conducted by HP Public Service Commission.
2. Appearing in exam for Higher judiciary after fulfilling the minimum requirement of practising for a period of seven years.
Grounds for ineligibility and disqualifications
If a candidate is dismissed from a previous service.
If a candidate has been convicted of an offence involving moral turpitude or is permanently debarred from taking part in any examination process.
If a candidate attempts to contact or influence the interview committee.
If a candidate is an undischarged insolvent.
If a candidate does not appear in all three preliminary exams, then he is disqualified.
Frequency of Himachal Pradesh judiciary exam
Generally, HPPSC used to conduct the exam every year, but after COVID the frequency is now disturbed. The last exam was in 2019. And now the exam is being conducted in 2023. Hopefully, the exam will now be conducted regularly every year.
How long does the Himachal Pradesh judiciary exam take to complete
The whole process of the Himachal Pradesh judiciary exam takes about a full year. There is a few months gap between each stage. However, it may vary at the discretion of the HPPSC.
How to apply for Himachal Pradesh judiciary exam
Documents required for application process
Matriculation certificate for age proof and marksheet of XII class.
Mark sheets of semesters of law degree.
Passing certificate of law degree.
Category certificate or the concerned certificate if the candidate is a widow, divorced or disabled.
Bonafide Himachali certificate in case of reserved category.
Steps to follow to apply for Himachal Pradesh judiciary exam
1.
Go to the official website of Himachal Pradesh Public Service Commission and click on the “Apply online” link on the homepage. For the official website, click here.
2.
Choose the option of “new user sign up” and create your account on one time registration.
3.
After registering the account then log into the account by using your credentials.
4.
Fill out the application form by providing the personal information as required.
5.
Upload the scanned copies of your signature and photograph. Note the size and format in which copies are required.
6.
Pay application fee. (For fee payment see below)
7.
Verify all the details. Go through each entry you have made and then submit it.
8.
After submitting, remember to print it out or save it.
Please note: The application process is online and can be done from anywhere.
What is the fee for filing the exam
S.No
Category
Fees
General
400
Candidates of other states(including the reserved category)
400
Scheduled caste, Schedules tribe or other backward class of Himachal Pradesh
100
Ex-serviceman of Himachal Pradesh
no fees
Please note : The female candidates are exempted from paying any fee for applying for the exam as per the instructions of the government.
Mode of payment
The fee can be paid through debit card, credit card or internet banking through e-payment.
Scheme of the exam
Himachal Pradesh like other states conducts its judiciary exam in three stages:
Preliminary exam (300 Marks)
This is the first stage of the exam where the candidates attempt multiple choice questions in three papers: Civil law I, civil law II and criminal. Each question carries one mark and there is no negative marking. Each paper weighs 100 marks and the duration is 1 hour. The result for Himachal Pradesh preliminary exam has already been declared and can be accessed here.
Mains/written exam (850 Marks)
The written exam is the second stage after screening the eligible candidates through the preliminary exam. It consists of five exams including 3 legal and 2 language exams. The language includes both English and Hindi. This mains exam’s total weightage is 850 marks. It is conducted over a period of 3-4 days. This year, the official date of Mains exams is 19 August to 24 August, 2023. The admit cards for it are already released.
Interview (150 Marks)
This is the final stage of the exam and it weighs 150 marks. This is the stage where the candidate’s legal acumen and personality are tested.
Code of Civil Procedure (CPC), Indian Evidence Act(IEA), Indian Stamp Act, Himachal Pradesh Courts Act,1976 and Specific Relief Act.
Civil law II
Indian Contract Act(ICA), Hindu law, Indian Limitation Act, Transfer of Property Act (TPA), Himachal Pradesh Urban Rent Control Act.
Criminal law
Indian Penal Code (IPC), Criminal Procedure Code(CRPC), Negotiable Instruments Act (Chapter XVII Sections 138 to 143), Himachal Pradesh Excise Act as applicable to Himachal Pradesh, Wildlife Protection Act and Indian Forest Act.
Duration
For each exam there is one hour duration and are conducted with a two hours gap between each exam.
Maximum marks
Each exam is of 100 marks.
Negative marking
There is no negative marking in Himachal Pradesh judiciary preliminary exam which is why you should attempt all the questions. In case there is doubt about the answer, trust your instincts and choose the one option that you think is the best possible answer.
Examination centres
For the preliminary exam, there are three centres: Shimla, Mandi and Dharamshala.
When to start preparing for the judiciary exam
Based on the candidate here is a quick look at the ideal time to start your preparation:
Remember that early rising candidates have the best shot at cracking the judiciary as it will give them more time to prepare than those who start preparing when the official date is announced.
Do not wait to get selected in the preliminary exam to start preparation for the mains exam; opt for an integrated study plan.
Do not wait for the coaching academies to start their courses. No coaching can help you crack the exam if you do not invest your time in self-reading and revising.
The students who are in their fourth or fifth year of law degree should start by dividing their time between their law school and coaching. It is the ideal time to start your preparation.
Those who are law graduates or are working professionals, if they wish to dedicate their time to judiciary preparation should follow the simple rule of working 9 to 5 in their jobs or other commitments then studying everyday diligently for two to three hours at night. And devote their weekends to reading and revising.
For candidates who are giving their second or third attempt, understand that you should also not waste time thinking that you will start preparation when the official notification comes. Use the time you have to your benefit.
How to prepare for Himachal Pradesh Preliminary exam
1. For clearing preliminary exams, make bare acts your best friends. Knowing the provisions of the legislation gives you an upper hand as some questions are directly from the bare act.
2. Choose to read and revise the major laws first. The major laws are Indian Penal Code, Indian Evidence Act, Code of Civil Procedure and Code of criminal Procedure and give them a two or three months to grasp the concepts.
3. After completing the core subjects start with the local laws and other remaining subjects.
4. Read all the illustrations of the bare Acts.
5. Go through the recent constitutional cases of the Hon’ble Supreme Court and the Himachal Pradesh High Court.
6. Read editorials everyday from newspapers which keeps you abreast of the current events.
7. Also try to learn legal words in Hindi language as it always helps in Mains examination and interview. Timely preparation for language may help to focus on other subjects in the mains exam.
8. Refer to the past question papers of at least two or three years.
9. Do regular mock tests and try to solve at least 50- 100 questions every day. Being consistent with mock tests will help you evaluate your preparation and focus on your lacunas.
Why is a personalised study plan required
Every candidate is set in his own way. Some like to study at night, some in the early mornings. Some candidates make handwritten notes, some prefer printed hard copies. Some devote ten hours to study; others do not. The point is that there is no right way to prepare for the judiciary. Each candidate should make his own study plan as preparation for a judiciary exam is no easy feat and takes almost a whole year.
How to make a personalised study plan
While making your study plan, keep in mind the following tips:
1. Devote sufficient hours to your preparation; the time of the day, whether morning or night is not material as long as enough time is given.
2. Create a well-rounded schedule by including topics from major and minor subjects on repetition. For example: Once done with Code of Civil Procedure start with Indian Evidence Act, then once done start with Code of Criminal Procedure and then Indian Penal Code. After finishing IPC, revise CPC and so follow the pattern. It allows you to relate and link one subject to the other and it plays a great role in retaining the important provisions.
3. Start your study plan at least one year before the exam approaches. It gives you enough time to conceptualise the subjects and it becomes a disciplined habit which is vital for any judiciary exams.
4. Try to find the right balance between your personal life and preparation. If you have any pending law school exams, divide your time into two parts, one for each.
5. Take frequent breaks in between your preparation to prevent burnout.
Common mistakes during preparation
1. Do not prepare for more than one state at a time. Focusing on the syllabus of only one state at a time will help in having clarity in what subjects are to be covered in how much time. Preparation for two states with different timelines and syllabus may lead to unwanted confusion.
2. Do not make the mistake of only focusing on bare acts and ignoring the textbooks.
3. Some candidates also start their preparation with the simple minor laws and leave out the major laws for the end. The major laws are very important and should be given due time to get a deeper understanding of them.
4. Not following a simultaneous approach to study for preliminary exams. Being of a mindset that mains preparation can be done only after clearing preliminary exams may not be the best approach.
5. Not limiting usage of social media apps or socialisation time.
6. Not devoting sufficient time for preparation. At least 6 hours of study every day is required to retain all the concepts.
How to memorise bare acts for preliminary exams
Many candidates have difficulties in remembering the provisions of Bare Acts. So here are a few tips that can help you memorise all the bare acts for judiciary exams:
Read the index of each subject. Many questions in preliminary exams are asked from the index itself. Make a note of important chapters, total chapters or parts. On the day of your exam just going through the index can assist you.
Focus on the recent amendments as there are higher chances of it appearing in the question papers.
Learn definitions of the subjects thoroughly.
Revise at least ten to fifteen sections every day.
Break sections into smaller parts and ingredients.
Try linking sections of one subject to other subjects. For example: Section 300 of Indian Penal Code defines what murder is, while section 300 of Code of Criminal Procedure deals with rule of autrefois acquit and autrefois convict. Article 300 of the Constitution permits the Union and state government to be sued as a juristic person.
If possible make mnemonics of sections depending on what you can easily remember.
Always concentrate on terms like and, or, shall and may as it may change the nature of those provisions.
Opt for reverse learning method
How to follow the reverse preparation method
1. Start with the major laws that carry weightage in both mains and preliminary exams. When you study any subject, focus on both the bare Acts and textbooks to get a deeper understanding of the concepts.
2. Make a habit of practising subjective answers based on the mains exam pattern. These notes are also helpful at the time of revising for the preliminary exam.
3. Simultaneously write short notes from the subjects that can be revisited before the preliminary exam. These types of notes cover a subject exhaustively resulting in integrated preparation for preliminary and mains exams.
4. Revise these notes every few days to retain the concepts.
5. Make your own tests based on your notes and evaluate and assess your preparation.
6. Divide your time effectively between preliminary and mains exam. Remember that mains preparation is more important and it covers the preliminary exam in itself.
Is self-study sufficient or do I need to attend judiciary coaching academies
What you need is a personalised study plan. It can be through any coaching academy or self-study. Remember that choosing a wrong coaching academy may derail your whole preparation. Every teacher has a method to teach and there are many features that you may get in academies nowadays. So, choose the coach that helps you grasp concepts better, with whose teaching methods you can align. Here are a few tricks on choosing the best possible coaching academy:
1. The one that values your time. Every candidate and what they offer should be treated with respect.
2. Offers a personalised study plan with details on the important topics.
3. Provides frequent guidance and interventions when the candidate requires them.
4. Provides regular mock tests and then gives essential feedback based on the candidate’s performance.
5. Intensive study materials which makes the process of learning and retaining important cases and sections easy.
6. Conducts an in-depth evaluation and analysis of your performance every month. Identifies the gaps and blind spots, treats them in time.
7. Uses technology and automation to ignite interest in tedious subjects.
8. Offers a variety of better learning techniques which can help you become aware of the intricacies of legal subjects.
Having said that, we at Law Sikho also offer a great judiciary coaching course. Let’s look at that
An analysis of preliminary paper of Himachal Pradesh judiciary, 2023
This analysis includes the subjects out of which most questions were framed for the preliminary exam.
Civil Law I:
Including Code of Civil Procedure, Evidence Act and Specific Relief Act.
Civil Law II:
Included Limitation Act, Contract Act, Hindu law, Transfer of Property Act and local laws. 9 to 10 questions were asked from the Himachal Pradesh local laws itself.
Criminal law:
Included Indian Penal Code and Code of Criminal Procedure, Protection of Children from Sexual Offences Act, Negotiable Instruments Act and Indian Forest Act.
Himachal Pradesh preliminary exam requires a deeper understanding of the concepts and legal principles. The exam also focuses on the practical application of law. And this year’s exam is an example of that, as the level of difficulty was medium.
Important pointers to remember
Carry your own transparent water bottles as the exam takes a whole day.
Reach your examination centres at least one hour before the exam and always carry extra hard copies of the admit cards.
Carry some kind of identity proof like Aadhar card, voter ID, Pan card etc.
Before marking answers in the OMR sheet, be sure of it, as correction pens will not be allowed.
Carry some extra blue or black pens.
The candidate must not disclose his or her identity on the preliminary or mains answer sheets.
For the preliminary exam give yourself enough time to revise for each paper in the last few days. On the day of the exam there is a two hour gap between each preliminary exam but don’t leave your revision for that time. Use that time to collect your thoughts and be calm.
Cooperate with the invigilators and if the seat allotted to you is not comfortable then do not hesitate to raise the issue.
Special provision for candidates with benchmark disability
If any candidate has any benchmark disability the scribe shall be provided with twenty minutes of compensatory time for every one hour.
Frequently asked questions on H.P. preliminary exam
How many exams are conducted for H.P. Preliminary exam?
There are a total of three exams in one day.
Is there a negative marking scheme in H.P. Preliminary exam?
No, in H.P. there is no negative marking.
What is the level of the exam in H.P. Preliminary exam?
The exam can be said to be easy to moderate.
How to prepare for H.P. Preliminary exam?
Start with the bare acts. Keep revising the subjects and making short notes.
Mains exam : Himachal Pradesh Judiciary
The candidates who qualify preliminary examination then sit for the mains examination and are then tested on their in-depth understanding of law and practical understanding as well. It is really important to study and practise for written exams as the candidate’s ability to write comprehensive answers in a limited time is put to test. It is not a normal university law exam and it requires more hard work and dedication.
Duration of the exam
The mains examination is divided into 5 exam papers and is conducted for a period of three days. This year the exam will be from 19 to 24 August, 2023.
Total marks
The total for mains examination is 850 marks and the candidates need to score a minimum of 45% in aggregate in all exam papers to qualify the mains examination and sit for the final stage of the examination that is the interview.
Syllabus for Mains exam
The syllabus for the examination is as follows:
Civil law I
This is the very first examination for Himachal Pradesh Mains examination and totals 200 marks. The subjects included are the Code of Civil Procedure, Indian Evidence Act, Indian
Stamp Act, Himachal Pradesh Courts Act, 1976 and Specific Relief Act.
Civil law II
This is the second leg of the civil subjects for the mains examination. It covers these subjects- Indian Contract Act, Hindu Law, Indian Limitation Act, Transfer of Property
Act and H.P. Urban Rent Control Act. This exam paper also counts for 200 marks.
Criminal law
This is the only criminal law paper for the mains examination and covers up all the essential subjects such as- Indian Penal Code, Criminal Procedure Code, Chapter-XVII (Section 138 to 143) of the Negotiable Instruments Act, H.P. Excise Act-2011 as applicable to the State of H.P., Wildlife Protection Act and Indian Forest Act. Like others, this exam paper also counts for 200 marks.
Once done with these, only language exam papers are left with. There are different exams for Hindi and English.
English composition
This exam focuses on English reading and writing skills of the candidates and totals 150 marks. The examination consists of one essay of 100 marks and a translation of Hindi passage to English of 50 marks.
Hindi
It must be noted that this examination is to test the Hindi language skills of candidates.
The Hindi in Devanagari script is put to test by the exam paper. It has one essay of 50 marks and a translation of English to Hindi of 30 marks and composition for another 20 marks making it a total of 100 marks.
Minimum qualifying marks
All these exams are for three hours. It must be noted that for every exam paper in mains examination, it is required for the candidate to score at least 40% of marks in that paper, except for paper 5. The Hindi language exam requires at least 33% marks.
Is attempting all questions compulsory
In the mains examination, each exam generally consists of two parts. The first part is the mandatory one and gives no choice whatsoever to the candidates and all the questions need to be attempted. However, for the second one, choices are usually accorded to the candidates and they are expected to attempt three questions from that part. In total 5 questions are to be attempted.
Detailed syllabus and important topics to cover for Mains exam
Let’s delve a little deeper into each exam paper to enable better understanding of the structure of each exam paper.
Civil law I
As already discussed the syllabus for this exam is as follows:
1. The Code Of Civil Procedure (CPC)
2. Indian Evidence Act (IEA)
3. Indian Stamp Act
4. Himachal Pradesh Courts Act, 1976
5. Specific Relief Act (SRA)
Tips to prepare for Civil law I
Subjects like Indian Evidence Act (IEA) and Specific Relief Act (SRA) are comparatively compact and can be properly covered in a shorter span of time. And less questions are generally expected from the Indian Stamp Act and the Himachal Pradesh Courts Act, 1976. So, allocating them less time would prove to be a good practice. Moreover, mostly direct and simple questions can be expected from these areas.
In subjects like CPC, IEA giving proper significance to illustrations is important as most of the time, questions are based on the illustrations alone. There are a few questions that are case based where the candidates are supposed to resolve the dispute and answer after weighing the various pieces of evidence in the case. To Practise such questions refer to any book for judgement writing which gives you an insight as to how in the practical world evidence can make or break a case.
There may be questions for drafting plaint and written statements. Being a judiciary aspirant, the candidate should always be prepared for questions like these and should prepare proper templates for drafting questions. Also, the candidates must understand that drafting requires consistent practice and efforts and can’t be done in a few days. To practise these questions also refer to books that guide how to write plaints, written statements and charge sheet effectively.
Remember that not only the format but also the content of the plaint and written statement is decisive for successfully clearing mains exams. Only practising leads to such perfection.
These written exams test candidates’ decision making and logical reasoning skills altogether and showcasing them in your drafting and content may score you great marks.
Civil law II
The syllabus for the exam paper consists of:
1. Indian Contract Act (ICA)
2. Hindu Law
3. Indian Limitation Act (LA)
4. Transfer of Property Act (TPA)
5. H.P. Urban Rent Control Act.
Tips for Civil Law II exam
It must be noted that not all questions are direct and simple in the mains examination. Majority of them are case based and the candidate needs to understand the concept thoroughly in order to score well. Cramming bare provisions of the subject and case laws won’t suffice. Understanding the concept in its practical application is the only way to get through the Mains exam.
This exam also covers the Limitation Act that a lot of candidates prefer to skip because no one pays much attention in law schools or in coaching institutes. However, it must be noted that it’s a brief act and requires less effort than others. It takes a few days to cover it and it is more scoreable than others. Similar is with the Transfer of Property Act. A lot of candidates prefer to skip it altogether as it is considered to be complex. But if one properly revises the subject, it can be a deal breaker in the mains examination.
Subjects like Indian Contract Act have a plethora of illustrations and a lot of the time, going through the bare act alone proves to be sufficient. Same goes for Hindu law, though it has more than a few legislations to cover, most of it is simple and easy. Subjects like contract act and Hindu law are comparatively good scoring subjects and can give the candidate lead in the written exam.
Criminal law
The exam paper for criminal law covers these subjects:
1. Indian Penal Code (IPC)
2. Criminal Procedure Code (CRPC)
3. Chapter-XVII (Sections 138 to 143) of the Negotiable Instruments Act (NIA)
4. H.P. Excise Act-2011 as applicable to the State of H.P.
5. Wildlife Protection Act
6. Indian Forest Act.
Tips for Criminal Law exam
It comes as an obvious observation that the criminal law exam has more or less practical based questions only. Questions may range from practical murder or assault-based questions to those of theft or trespass. To get good marks in this exam, it’s important to have a good grasp at the fundamental concepts of the criminal law and cater the answers with supporting cases and illustrations. For attempting questions like these, the candidate must try to follow this structure:
Issue: identify what the issue is. What the questions aim for you to decide.
Rule: state the section of the legislation and the general rule.
Analysis: delve a little deeper into the facts of the case, link it with the sections, case laws, illustrations. Give your reasons for inclining towards your decision.
Conclusion: This is the conclusion of the facts and must be summarised in a line or two.
Even in the Code of Criminal Procedure (CRPC), the majority of the questions can be expected from the important chapters such as that of arrest, investigation, trials etc. However, you should not undermine the importance of the Negotiable Instruments Act (NIA), H.P. Excise Act, Wildlife Protection Act, Indian Forest Act. These Acts are uncomplicated and won’t take much of your time. Leaving any topic in a hope that they won’t appear in the exam is a huge mistake that can cost you easy marks.
English composition
This is the first language paper for the mains examination and these are the topics covered:
1. Essay
2. Translation of Hindi passage to English
Hindi
This is the second language-based exam paper for mains examination. It consists of
these parts:
1. essay
2. translation of English to Hindi
3. Composition
Tips for language papers
It’s crucial to understand how to get more marks in these language exams as these are easy scores up for grabs. Follow the below stated tips to secure higher marks in language exams.
A lot of candidates undermine the role of these exams in the mains stage. Though it seems easy and it is, scoring well in these exams becomes the deciding factor in most of cases. So, the quality of content along with using rich vocabulary is a significant way to score good marks. Writing plain language has its benefits but writing way too simple may prove to be disadvantageous as well.
For both languages read at least ten words per day and revise the words weekly. Read editorials and daily news in English and Hindi.
Practising language daily for a few minutes is better than leaving it to be done at the last moment.
Try to use and practise these languages in your daily life as it makes you more comfortable with their nuances.
How to practise for essay writing
The most commonly committed mistake while writing essay is just plunging on writing the essay without brain-storming about it enough. The exam would give you a few options to choose your topic from. One should think about it, outline the major topics to be covered within the ambit of the essay topic, frame a structure then begin to write. Making a mental plan and jotting down the essential topics to be covered before-hand would ensure that your essay doesn’t seem disoriented to the evaluator and doesn’t lose sense along the way.
The exam paper is of duration of 3 hours. You have at least 15-20 minutes (or even more) in your hand to decide what to write and how. The choice of the topic is more significant than it seems. You should choose a topic that you are more comfortable with and are prepared with. Mere passing knowledge on a topic can’t enable you to write on a topic as extensively as the exam paper requires. Rather than focusing on the length of the essay, one should primarily focus on the content of the topic. Writing a good and well-researched essay on a general and simple topic can fetch you more marks than writing a poorly drafted essay on a highly technical topic.
The candidate should know how to write a good essay and how to connect it as well. It should not be linear but must connect with different topics and fields. For example, if the topic for essay in girl empowerment, the candidate should make it a point to include the constitutional provisions that aim for women empowerment, recent legislations that have been passed, important decisions that empowered women, the social and political aspects of it, the schemes launched in the Himachal Pradesh state for empowerment.
Always stick to the word limit and write in a consistent flow. The sheet provided is quite long and no matter how many pages you intend to write, you possibly can’t fill all the sheets so that should never be the aim. The sentences in the essay must seem logical and cogent. Writing in disconnected blocks makes the essay less comprehensible.
To write a quality essay, you should focus on your vocabulary as well. Especially in Hindi, the kind of language that is used in daily life doesn’t qualify as strict Devanagari script so it can’t get you any marks. For this, try reading articles and newspapers in Hindi and English both.
Try learning new words every day and using them as well. Keep yourself updated with all recent news and events that may help you in some topics and keep your sample essay ready for both the languages. This would help you understand the template of a good essay.
What to do before the mains examination
Where to start from
It’s understandable that one may feel confused at even the thought of reading so many subjects altogether for mains in a restricted time frame. So, it’s important to know where to start from.
Ideally one should always start with the hefty subjects such as IPC, CRPC, CPC, IEA and then bring in the smaller subjects such LA, SRA, TPA. Since it’s close to impossible to study all of them in great detail in those 2 months, it’s better to restrict yourself to your handmade notes and not read each and everything from your books. Try to focus on your notes made from books and bare acts alone. Make it a rule to go through all the past mains exams as well while you are studying a subject so that you don’t leave any important topic behind.
Whether to join a test series or not
A lot of candidates appearing for mains examination are confused whether to join test series for the exam or not. The importance of practising answer writing can’t be undermined and getting enrolled in a good test series would help you cover all the important topics in a time bound manner and also mark you as per your answer writing skills. This would help you to improve your answers and help you become familiar with the pressure that you would face in the mains examination.
But though test series might prove out to be helpful, some people and institutes tend to overstate its importance. They are beneficial as long as you are pretty much prepared to sit for the actual mains. They are not a fool proof method to attain more marks in the mains examination.
If needed, you should first focus on finishing your syllabus and revising it and then join some institute. In most of the cases, candidate’s get a maximum of one to three months (or even less) to prepare for mains. Majority of the time passes in studying and making notes. Getting enrolled in a test series when there is a paucity of time for self-preparation might end up doing more harm than good. But if you think that self-studying helps you study better then it’s best to stick to it. The gain in enrolling in some test series to give you a deeper evaluation of your answers and give feedback on your answers. So, if you aren’t willing to join an institute, make sure that you get your answers evaluated by someone, she may be a mentor or a friend. Getting proper feedback on the answers is as important as writing answers.
Is it important to practise
The candidates who qualify the mains have one thing in common, they take the part of answer writing more seriously than the others. The mains examination puts our writing and processing skills to test as well, so the trick is to practise writing answers, making structured answers while reading so that you get a deeper understanding of what has to be covered in an answer and what not.
While preparing notes, what can be preferred is that instead of making notes topic wise, start by formulating structured answers for every question that may come up in a topic. You can pick any past paper and start by preparing and writing answers for it. While making these answer writing notes, remember to put your answers in a good format that covers all essential aspects of the topic.
Make an extra effort to include all recent events respecting it to be included in your answer. If you are able to give out recent landmark decisions on the issue, it would definitely give you an edge above the others.
By practising proper answer writing you would not only get a better grasp of the underlying concept in a profound way but also you can revise them later and ensure that your revision is to the point. Revision of these answers goes on to ensure that you keep on adding new emerging topics in your answers and keep it updated.
Only after writing these answers, you should put a timer for yourself and practice writing your answers for three hours consecutively. Also, this must not be forgotten that the candidates have to attempt not only one but two exams for two days consecutively. So, writing answers in a time constrained setting assumes more significance.
Yashdeep Chahal who topped DJS in 2019 says that to score well in mains, practice is the key and you can’t substitute the answer writing for anything. You should focus on what the question is asking and then writing the material accordingly. Always make a mental plan before you start writing answers and remember to follow a uniform pattern for writing answers.
How to cover local Acts
To cover the local acts the best tip is to read the bare act many times. Focus on the important provisions and find their relevant cases online. If there is any landmark case decided by the Hon’ble High court then be sure to remember it and use it in your answer writing. There is generally no reading material, or books available on the local subject. So, for the preliminary exam just keep revising the bare act. For mains add a few cases to it, if possible.
Answer writing tips for mains examination
No matter how well one scores in the college exams, one can’t really compare that experience with that of writing answers in the mains examination for judiciary. Candidates need not only to know how to finish the writing in enough time but also how to write a well framed answer with sufficient clarity and precision.It is said that answer writing is an art. The statement stands true as not everyone can answer these long questions well in time to complete the exam and also write the relevant material with proper case laws and sections with sufficient depth and coherence.
These are a few tips to keep in mind while writing for the mains examination:
1. Questions should be answered in the sequence they are asked. Each answer must be limited and must not go on for a slew of pages. Do not write so long answers that the sheets remaining for other questions are less.
2. The answers must be to the point and not beat around the bush. One should be able to answer the questions asked directly.
3. The answers must be framed in such a way that is clear and concise. Using complex language makes checking the answers a gruelling task for the evaluators.
4. Don’t directly jump at writing the answers to save time. One should first read the question thoroughly, frame a structure in mind and then start answering.
5. A lot of questions test the candidates’ analytical skills as well. They demand a little time to frame the answer in a finer way. Allot some of your time on such questions but don’t take more than that.
6. Because of the length of the paper, candidates may find it difficult to complete the exam paper. In such situations, instead of leaving a whole question, make it a point to draw a flowchart or table to cover it up. It not only makes the answers look better but also consumes less time and you won’t leave questions unattended.
7. Time should always be the key factor while writing answers.The candidates should not disregard the time ticking away while answering. You should know how to allocate your time to questions in the exam paper. Allocating more time than required for a 5 or 10 marker question could lead to mismanagement of time and resultantly a few questions might even get missed.
To manage time much more effectively, try to write in the flow, because once the flow of writing answers gets disrupted, it takes time to get back into the groove. If you are unable to remember a section or a case law, leave the space for it and come back when you remember it or you have the time to remember it. The same should be followed when you get stuck on a question that you are not sure about.
8. Try to put legal maxims in your answers wherever you can. For example, if the question is in relation to infancy, the maxim of Malitia Supplet Aetatem becomes immensely relevant. For another example, in the mistakes of fact and mistakes of law, these become important: ignorantia juris non excusat, or ignorantia legis neminem excusat. While it’s important to use basic and simple terms, do not forget to use ample legal terminology.
9. You should always avoid using abbreviations. It makes it appear less formal. Sometimes, the evaluator might not be able to understand what you want to convey.
10. Sometimes when the candidate is writing answers the mind goes blank, to avoid such situations it is best to practise your daily dose of questions. Because while sitting and writing for the mains examination, the candidates won’t have the time to remember the sections and cases. One should be able to remember them in a nick of time.
Structure of answers in mains exams
Each answer must be accurately structured. Generally, each answer must follow this structure:
For case study-based questions
Issue
Rule
Analysis
Conclusion
For direct and straight-forward questions
For questions that are not hypothetical and are direct conceptual questions, it is on the candidate to get as many marks as possible. One should follow this format for answering:
Introduction: Write a fitting introduction to the question. The introduction should give a brief into the topic asked. For example, in 2017, one of the questions that were asked was “what is plea-bargaining? Explain the process of plea bargaining?” To answer this, one has to state what the term means in layman’s terms, its sections and chapters in the Code of Criminal Procedure, its role in the criminal justice system etc. It must be remembered that the introduction part is crucial for any good answer as it sets out the correct composition for an answer. So, it must not be way too lengthy. It must be 4-8 lines depending on the marks allotted to the question.
Legal provisions: After the introduction, if the questions ask for a concept to be explained, one should focus on the key provisions related to it. It’s always better if you know the chapter and other details such as the amendment year and the date of the enforcement of the amendment.
Then, the second step calls for an elaboration of the major provisions. One can’t remember the exact words in the section. So, it’s better to remember the key words of the provisions and put it in pointers or bullets. Doing this, makes sure that our answers are comprehensive and easy to understand and also that it doesn’t seem crammed.
Wherever one provision is completed, it makes sense to switch to a new paragraph as it would help the evaluator to check different provisions easily. It doesn’t make the answer crammed into a sheet. Writing answers in such a way gives a clear-cut and comprehensible outlook to answers.
Using bullets or pointers though is useful, one should be careful not to put in a lot of bullets as well. Not everything should be written as pointers. The topics such as provisions, essential requirements, reasons for arriving at a decision, positive and negative things to be considered etc. could be condensed into bullet points.
Landmark decisions: After the major provisions, one should focus on the landmark decisions respecting the concerned topic. One need not remember the whole citations for these cases, just the name is sufficient. But making up new cases, thinking that the evaluator won’t notice it is something that has proven to be fruitless effort.
After bringing up, the important cases, one should make sure to cover all other important aspects of the question, for example, going back to the plea-bargaining example, after giving a brief introduction, mentioning about the chapter and provisions, and then the cases, one needs to go in detail about the process of plea bargaining and this could be well explained in a flow chart as well.
Conclusion: After making sure that every aspect of the question asked has been answered, it’s time to wrap up the answer. Writing 2-3 lines to conclude the answers gives a good finish to the answer. Always remember to put proper spacing in your answers. This not only makes your paper look clean and tidy but because you are short on time, you can’t put in lines to let the evaluator know where the answers start and end. Keeping proper space will make the evaluator’s task easy. When it’s easy to locate answers on your answers sheet, it would possibly give you more marks.
Bonus tip
One golden tip to remember while writing for the mains is that the question papers in the main examination tests one’s speed, writing and thinking skills as much as they test one’s understanding of the law. Finishing the exam in three hours is a big enough deal for any candidate. So, instead of aiming for a far-fetched dream of jotting down everything you know about the concerned topic, focus on what is asked. The mains exam is a crucial stage and performing well above others requires consistent effort and practice. Maintaining the quality of all the answers are what puts one candidate well above the rest.
Though the exam papers are lengthy, the candidate should always revise the answers before submitting. If you are able to maintain a good speed for writing answers then, even getting a window of 2-3 minutes to go through your answers is sufficient. You can fill in the blank space, if left. And underline the important parts of your answers.
It must be remembered that the priority is to finish the exam paper first and then to recheck. Because, if you leave a number of questions unanswered then you would automatically get less marks than your competitors and that would result in less chances of qualifying the mains. Mains examination is a crucial stage and to get a score in the exam revision is the key. Keep on revising your bare acts and notes and keep yourself updated with the recent case laws. If you keep on doing this, the mains examination is going to be a lighter deal.
How many hours should I devote for my mains preparation
All the candidates who are selected for appearing in the mains examination have this doubt that how many hours of study will be enough to crack the written exam. Let it be clear that there is no strict rule of studying ten hours a day to clear any exam. Indeed, the number of hours matters but more than that what matters is your focus and state of mind. When you study, always make sure to sit with a clear head as it helps to grasp the concepts faster. If you are not able to concentrate, then the best idea is to give it some rest. Go out and return with a better mindset. When you are preparing for competitive exams it may raise some insecurities or doubts, it is recommended to talk to someone as if you have these thoughts at the time of your study then even if you sit for eight hours you may not be able to understand what you are reading. Having said that, ideally seven to ten hours should be devoted to your preparation.
Books to refer for the exam
Paper
Subject
Books
Paper 1
Civil law I
KD Gaur for evidence law (IEA)Takwani for code of civil procedure (CPC)For local acts and Specific relief Act refer to bare acts and judgments.
Paper 2
Civil law II
RK Bangia for Contract actParas diwan for family lawAvatar Singh for transfer of property act (TPA)for local law refer to bare act and for limitation act Takwani.
Paper 3
Criminal law
Kelkar for code of criminal procedure(CRPC) Ratanlal for Indian penal code (IPC)for NI act and local laws refer to bare act
Paper 4
English
English grammar and composition
Paper 5
Hindi
Samanya hindi
Centres for exam
For the mains and interview process Shimla is the only centre.
Cut off for preliminary and mains exam
This table shows the cut off of preliminary and mains exam for the general category in Himachal Pradesh judiciary exam over the last few years:
2017
Preliminary exam -208
Mains exam- 422
2018
Preliminary exam -197
Mains exam- 424
2019
Preliminary exam- 243.75
Mains exam -444
Frequently asked questions on H.P. mains exam
How many exams are conducted for H.P. Mains exam?
There are a total of five exams in three to four days.
What are maximum marks in H.P. Preliminary exam?
The mains exams all combined weigh 850 marks.
What are minimum marks in H.P. Preliminary exam?
The candidate should score 45% in aggregate of all mains exams.
What is the timing of the exam?
Generally, the exam is from 10 a.m. to 1p.m.
How to prepare for H.P. Mains exam?
Start with the important major subjects and refer to textbooks to get a better understanding of it. Keep updating your notes with recent amendments and laws.
Interview process
Introduction
Interview is the last and the final stage to get into Himachal Pradesh Judicial Services. For judiciary aspirants, getting a chance to appear in the interview is a dream come true. It takes us another step closer to our dream. So, putting your absolute best in preparing for an interview is of immense importance. As the judiciary competition gets tougher every passing year, it’s crucial that you take the advantage of this opportunity and put the nip in the bud and clear the examination.
It is famously said that the first impression is the last impression. The statement holds true as the impression you create on the interview panel when you enter the interview room is going to be a deciding factor in you and your goal. Interview plays a great role in deciding the ranks of the candidates who get through. Its importance can’t be undermined because every single mark matters.
Remember that an interview is all about the impression that you are creating on the interviewing panel. This is the interview of your personality where the panel might ask you questions ranging from your background, internship experiences, personal questions to legal questions as well. So, this needs utmost attention and preparation.
Syllabus
There is no specific syllabus to dive in for the purpose of the interview. However, one should not make a silly mistake of not going through the syllabus of the mains. The subjects which are covered in mains mostly become the basis for interview questions as well. So, it is recommended that you don’t stop your revision once you are done with your mains exam. A lot of candidates stop studying once they get done with mains. No doubt, the mains examination is stressful and it drains the energy out of the candidates and the results for mains examination take at least a month or two, but the candidate should not lose the grip on the important laws and the bare provisions. Because once the concepts vanish from your memory, it’s going to be more difficult for you to get back in that zone and study all the subjects again in less than a month. Once the mains results are out, candidates get a maximum a month to prepare for the interview. So, the wise thing to do is to stay connected to your subjects and continue reading, even though you devote less time to it in a day.
Tips to prepare well for the interview
What to read
Read all important recent happenings, current affairs. Revise the constitutional law and all the landmark judgments.
Prepare your opinions on the more controversial topics. Such as the hijab issue, Manipur crisis, passing of personal data protection bill, mediation bill, Uniform civil code etc.
Read about the recent high court decisions and if possible, try to remember the names of the judges for the landmark decisions as well. This will definitely give you an edge above the other candidates.
You should stay updated not only on legal developments in your state, but also throughout the country and impact the world.
Practice answering basic questions such as your introduction, law school experience, internships experiences, research papers that you published, why do you want to join the state judiciary etc.
Make it a habit to read a particular newspaper every day. This will not only help you to stay up to date on recent developments around the world but also help you learn new words and articulating answers in a much better way. Our recommendation would be to read the Hindu or the tribune every day.
The importance of reading local laws also should not be undermined. Prepare well for the local laws of Himachal Pradesh.
Read a little bit about the customs and traditions of Himachal Pradesh.
Communication skills
Try working on your communication skills and practice speaking with more confidence.
Try giving mock interviews. This will help boost your self-confidence and prepare you for random questions coming your way.
Even if you don’t want to give mock interviews, you can always stand and answer the questions in front of the mirror. Observe yourself more closely, maintain good posture, focus on the use of language, practice answers to hypothetical questions that the panel may ask you.
You can try answering simple personal questions in front of your parents or friends as well. The purpose of this exercise is so that you are able to articulate your thoughts right at the spot and don’t get confused as to what and when to say.
What else can be done to ace the interview
Watch videos of previous toppers to know what is needed to be done at the interview stage and prepare accordingly.
Enhance your vocabulary and use your words carefully.
Be confident and believe in yourself.
Prepare for general knowledge questions of Himachal Pradesh and your state. Expect questions such as the capital of the state, what is your district famous for, the municipal chairman of your city etc.
Points to remember before the interview
Always check your documents before-hand and put all of the documents in a file or folder.
Carry a black and a blue pen, pencil, extra photos as well.
Don’t pay much attention to the rumours or how the interview of other people went. Every interview is different and there is no use in comparing them. This would only stress you and not serve any good purpose.
Prepare for what your hobbies are. State only the authentic hobbies. Don’t say things that you aren’t interested in only to sound better. This may backfire. Some candidates say that their hobbies include yoga or meditation, if you intend to use these as your hobbies then read thoroughly about it in detail.
What to do in the interview
Maintain eye contact with the interview panel. This conveys your confidence but always keep a smiling face. Otherwise confidence might be taken to be arrogance.
Answer the questions honestly. We have always heard that honesty is the best policy. That needs to be followed here as well.
Be confident. Believe that you can be selected as a judicial officer and that you deserve to be appointed to this post. If you don’t believe in yourself, how can the interview panel believe in you?
The interview panel is not only to judge your legal awareness but also the demeanour that you have while answering questions asked.
You have to showcase your knowledge but if you are unaware about something, simply say so. Never lie to the interview panel.Do not give them any answer that you are not sure about. Everything you answer should be true and authentic to yourself.
Dress appropriately. Follow the uniform code strictly and if there isn’t a dress code provided, wear only formal clothes. Prefer wearing black and white formal pants and shirt with black blazers and black formal shoes for men and black and white salwar kurta or saree for women.
Try to arrive at least 15-20 minutes prior to your scheduled time. Punctuality is always rewarded.
Maintain a good posture and don’t slouch while waiting for your call and especially in the interview room.
Listen quite carefully to the question that has been asked and then try to formulate an answer. Don’t answer right-away without understanding the question.Giving wrong answers appears worse than giving a late but correct answer.
Show the interview panel why you are the perfect fit for the position and why you are passionate about it.
Never talk when the interviewer is asking you some questions. Let them finish and then with their permission, start answering.
If you don’t agree to whatever they are saying, disagree but with utmost respect. They would never consider an arrogant candidate for a judicial position.
Don’t forget to thank the panel for sparing their time for the interview.
Don’t answer the questions that you are not aware about. Rather than giving wrong answers or incomplete answers, politely tell the panel that you don’t know the answer. You are a human and you can’t know everything. But always apologise for not knowing the answer and add that you will go and read about it.
A lot of times, the interview panel asks a lot of random questions just to confuse the candidate and check how he/she reacts to pressure and stressful environments. So, it is important that you don’t lose patience while answering.
Don’t repeat yourself time and again, instead take a minute to think calmly and then Respond and speak slowly, don’t rush to answer the questions. Take your time and think about what you want to say and then answer the question.
Use a pleasant and polite tone while answering. Don’t sound rude or abrupt.
Pay attention to your facial expressions, sit up straight and maintain a posture that conveys your confidence.
Validate the opinions of the interviewers on the panel and avoid being dismissive to their opinions or concerns.
Don’t be adamant. If the interviewer is persistent on you to agree on his opinion on something, rather than being adamant, respectfully submit that the interviewer having more experience and expertise in the matter is certainly right.
Choose a language that you are fluent in. It’s not a necessity to speak in English if you aren’t comfortable in that. Politely ask the panel in the beginning to switch to Hindi.
Expected questions
Some common questions asked to the judiciary candidates are:
Kindly introduce yourself to the panel.
(The introduction should be simple and short. The candidate should mention their name, occupation of parents, where they are from, from where they did their LLB and what they are currently doing.)
Why do you want to become a judge?
(It is a very common question and candidates are advised to prepare their customised answers for this.)
What are your strengths and weaknesses?
What are your hobbies?
Your opinion on the recent legal developments in the state and the country.
(It may include any recent legal issue, try to make a viewpoint instead of dodging the question.)
Who are your biggest inspirations? (in your personal life and also in the legal field)
What can you do to make the system better? Or How would you deal with the rising pendency of cases?
(To this the general answer is to give timely judgments, not pass many adjournments, follow the duration within which the trial is to be completed etc.)
How would you maintain a balance in your personal and professional life?
What are your favourite subjects?
(A lot of candidates prefer to answer that the evidence act is their favourite as it is compact and can be thoroughly covered up, however, answer this question carefully. Choose a subject that you are comfortable with and that you know by heart. It Is recommended to avoid subjects like the Constitution or Code of Criminal Procedure as they are not exhaustive and you won’t be able to cover all of it up.)
Have you done your LLM? If yes, what was the topic of your dissertation?
How important is judicial independence?
What do you think are traits that a good judge should possess?
Frequently Asked Questions on Himachal Pradesh judiciary Interview
How many marks does the interview stage carry?
It weighs 150 marks.
How to prepare for the interview?
The best tip to prepare for the interview is to revise all laws again and practise mock interviews.
What should I wear for an interview?
The candidate should wear a formal saree for females and coat, pants for males.
How to check results and answer key
For the candidates who appear in the Himachal Pradesh judiciary exam the answer key of the preliminary exam 2023 has already been released. And the Mains exam is now due in August, follow the following steps to check the result:
On getting there click on the result of the civil judge post.
Fill in details, if required and print the result.
Minimum qualifying marks
Paper
Minimum qualifying marks
Mains exam
40%
Hindi language exam
33%
All mains papers combined
45%
interview
45%
After selection
Probation period
When a candidate is selected as judicial officer in Himachal Pradesh then the requirement is to undergo a probation period starting from the date of joining. The probation period lasts for a period of two years.
Do I get an allowance while on probation
Yes, the candidate when once selected gets the allowance of a civil judge even during the probation period.
Responsibilities of a civil judge
1. As a civil judge they handle the proceedings of the court, supervise their impartiality and legality.
2. They are in charge of their court and are responsible to maintain decorum.
3. They also control the way their court functions, including legal research behind any judgement, filing of cases etc.
4. They are in direct communication with lawyers, witnesses, researchers to ensure that justice is served.
Perks and allowances of a judicial officer in Himachal Pradesh
1. House rent allowance
2. Medical allowance
3. Dearness allowance
4. Leave travel allowance
5. Travel allowance
In Hand Salary of a judicial officer in Himachal Pradesh
A civil judge in Himachal Pradesh is entitled to a salary based on Level J-1 Rs. 77840-136520.
A note on mental and physical health
Appearing in any competitive exam can take a toll on your mental and physical health if you let it. This note is essential to every judicial aspirant. The journey to successfully becoming a judicial officer in any state is very long as clearing these exams is no mean feat. Some candidates keep studying incessantly for years and never crack any exam, while others study just for one year and clear the exam in their first attempt. There is no one size fits all approach to your preparation. Also no one can guarantee your success in the judiciary exams. So, be sure to not be lost in this journey.
Physical wellness toolkit
Follow the principle ‘you are what you eat’. Focus on healthy foods and skip junk foods.
2. Remember that what you eat is just as important as when you eat. Always take your meals on time.
3. Go for walks or runs, go to gyms or do yoga.Be sure to do some type of physical activity each day.
4. Have seven or eight hours of sleep.
5. Choose foods that are rich in omega 3 fatty acids, vitamin C, Vitamin B12, Magnesium, Calcium and zinc. You can also have supplements based on your doctor’s recommendations.
6. Drink enough water based on your weight. Also have fruits to stay hydrated.
7. Step out in fresh sunlight. It helps increase your cognitive performance.
Mental health survival toolkit
Appreciate yourself when you achieve your daily goal or attain good marks in your mock tests. It releases dopamine that may affect your productivity positively.
2. Try meditation or yoga for mental peace.
3. Use mirror work or affirmations for creating a sense of confidence.
4. Have a strong mental regime. If you fail at something, understand why it happened and start working on it again. Do not waste much time on rebuking yourself.
5. Motivate yourself every day. Wake up and sleep with your dream as otherwise you may lose sight of it.
6. Try visualising. It is an important aspect of the law of attraction that directs us to visualise what our life will look like once we have achieved our dream.
7. Find a place where you can study. Some candidates are not able to study at home. Go to the library or any other place where there are no disturbances and distractions.
8. Have a community of friends who understand what you go through daily. Create a sense of belongingness by communicating with other candidates.
9. Do not let feelings of jealousy or resentment arise. If they do ,do not let them be bottled up. Talk to your family or friends who understand your concerns. Understand that it is normal to compare yourself with others, but remember that others have worked hard for their success as well.
What is the eligibility criteria for the Himachal Pradesh judiciary exam?
To be eligible to appear in the exam, the candidate must be a citizen of India and must have a degree in law as recognised by the Bar Council of India.
What is the age required to appear in the Himachal Pradesh judiciary exam?
The minimum age is 22 years while maximum age is 35 years.
Can a practising lawyer appear in the Himachal Pradesh
judiciary exam?
Yes, any candidate with passion in law can apply.
Is it mandatory to clear the All India Bar examination to appear in the Himachal Pradesh judiciary exam?
No, passing the All India Bar exam is not a prerequisite for any judiciary exam. Though the exam may offer its own benefits in the legal profession.
What are some very important subjects to start preparation for the Himachal Pradesh judiciary exam?
Some important subjects are:
Code of Criminal Procedure(CRPC)
Indian Penal Code(IPC)
Indian Evidence Act (IEA)
Code of Civil Procedure(CPC)
Transfer of Property Act(TPA)
Indian Contract Act(ICA)
Limitation act.
What is the pattern of the Himachal Pradesh judiciary exam?
The exam is conducted in three stages: Preliminary, Mains, and interview.
Is there any negative marking in the preliminary exam
of Himachal Pradesh judiciary exam?
There is no negative marking in the exam.
What is the allocation of marks in the Himachal Pradesh judiciary exam?
Preliminary exam is for 300 marks, mains is for 850 marks while interview is for 150 marks. Which in total is 1300 marks.
Words of motivation
Every year, thousands of candidates appear in the Himachal Pradesh judiciary exam with the dream of being a judge, but only a few can achieve it. This is a fact, and it leads to the conclusion that what makes a candidate successful is the ability to juggle all the things going on , coaching, self study, personal life, physical and mental health. In this long journey there are some ups and downs, remember what matters is to get that one post for yourself. No matter what your age is, how many attempts you have already given, how much time you devote, in the end the post is all that matters. Some become a judicial officer in the first year of preparation, while others take years to get that post. It doesn’t matter, as both are called judicial officers. Remember that consistency is the key.
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This article has been written by Simran Ajmani and edited by Shashwat Kaushik. This article talks about the concept of social security and its evolution over time. It speaks of the relevance of social security in labour legislation and its growth with time. Lastly, it talks about the schemes and measures adopted by the Central and state governments for the welfare of labourers and the measures that can be further taken.
Around 53% of all salaried workers do not have social security benefits in India, as per the Periodic Labour Force Survey Annual Report 2021-2022. Effectively, it means that these employees have no access to health care, pension funds, disability insurance, or provident funds. Meanwhile, gig workers are one of the most prevalent concepts emerging in developing countries like India, which rarely have access to these social security measures.
The ILO defines social security as the protection that a society provides to individuals and households to ensure access to healthcare and guarantee income security. These risks are essentially contingencies against which an individual of small means cannot effectively provide by his own ability or foresight alone or even in private combination with his fellows. In fact, social security means security against giants of “squator,” meaning security against all those evils that come through the unplanned and unorganised growth of cities. It is to protect the poor and ensure that they have an acceptable standard of living.
Indian social security system
If we go back to history, then in the past, social security as a crude form of social protection was made available to the needy and unfortunate under the joint family and caste system. Though the joint families suffered from shortcomings and deficiencies, the members received a crude form of protection from various difficulties. The problems of unemployment, old age, and economic hardships were not suffered by individuals alone. In such prevailing situations, the problem of providing social security was taken up by joint families. The members of a particular caste were also offered safeguards such as financial help to widows, medical aid, educational assistance for children in need through scholarships and financial support for orphans. But the advent of urbanisation and industrialization made their own contribution to the disintegration of these systems and then the concept of social security evolved in India in obedience to the impact of western influence and of the modern industrial unit.
The evolution of social security laws in India dates back to the time of Dr. Babasaheb Bhim Rao Ambedkar. Dr. Ambedkar was the first Labour Minister of India. Enormous initiatives were made by Dr. Ambedkar himself. His efforts led to a reduction of working hours from 14 to 8 hours, insurance for workers, the creation of the Employees Provident Fund Law and amendments to the Workmen’s Compensation Act, 1923 and the Factories Act, 1934. The efforts made by Dr. Ambedkar will always be a guiding light for the future.
Article 43 of the Constitution of India talks about the responsibility of the state to provide social security to the citizens of this country by effective legislation, economic organizations or in any other appropriate way to all workers, industries, a living wage, a decent standard of living, time for leisure and social and cultural opportunities. Social Security policies cover various types of social insurance, maternity benefits, pensions, gratuity, disability benefits, etc.
The scope of social security for both organised and unorganised workers is very wide. It includes but is not limited to, the concepts of :
Medical care is provided by health insurance, sickness benefits, and employment injury benefits under Workmen Compensation Act of 1923 and Employees State Insurance Act of 1948.
Maternity Benefits Under the Maternity Benefit Act of 1961, providing prenatal and postnatal care and hospitalisation if required is a legal provision under the Act. A fixed periodical payment for six months of maternity leave is compulsory and an additional leave can be taken without remuneration if required. Work from home facilities and opportunities also help pregnant women continue their work with ease.
Family benefits, including health insurance and gratuity in case of death of bread earners in the family and facilities for the wives and children of deceased persons, are provided.
Survivor’s benefit- refers to the benefits to the affected family in form of periodical payments to a family following the death of a breadwinner and continues during the entire period of contingency.
Indian legislation on social security
Indian legislations on social security are listed below:
Workmen Compensation Act of 1923- This Act, later renamed the Employees Compensation Act of 1923, provides compensation for losses brought on by accidents or occupational diseases occurring during the course of and arising from employment, including death, permanent total disability, permanent partial disability and temporary disability. It provides compensation based on the seriousness of the injury suffered while performing duty.
The Employees State Insurance Act of 1948- This Act created a fund to provide medical care to employees and families, as well as cash benefits during sickness and maternity and monthly payments in case of death or disability for those working in establishments with ten or more employees.
Maternity Benefit Act of 1961-Article 42 of the Indian Constitution, confers duty on the state to guarantee just and humane working conditions and maternity leave. This Act was passed to ensure social justice for female workers. The Act was amended in 2017 and increased some of the key benefits. The amended law provides women in the organised sector with paid maternity leave of 26 weeks. India now has the third most maternity leave in the world, following Canada and Norway.
The Payment of Gratuity Act of 1972- Gratuity is a lump sum amount paid by a company. The Act directs establishments with ten or more employees to provide 15 days of additional wages each to employees who have worked for five years or more.
The Code on Social Security, 2020- The Code replaces nine existing laws relating to social security, including the Employees’ Provident Funds and Miscellaneous Provision Act, 1952 and the Employees’ State Insurance Act, 1948. The Act was introduced as a light of good hope towards this unregulated industry as it covers employees in both organised and unorganised sectors, provides for retirement provision , provident fund, life and disability insurance, healthcare and unemployment benefits, sick pay and leaves, and paid parental leaves. The Code aims to improve the portability of social security benefits. It provides creation of a unique portable number for all workers, which will be linked to their Aadhaar number, helping them to avail of social security benefits from any part of the country. Furthermore, the Social Security Code also provides discretionary power to the Central Government and state governments to formulate schemes for the benefit of gig workers, self employed and other industrial labourers. Some of the existing social security policies in India are EPFO, National Pension Scheme, National Social Assistance Programme, etc.
Issues and challenges
The legislation listed above holds a lot of relevance in labour laws and the evolution of the concept of social security has definitely improved the condition of both organised and unorganised labourers as well as self employed people in India. But there are many issues and challenges that we are still facing in the implementation of these laws and policies in India. A few of them are-
Lack of adequate budgetary allocation- The National Security Fund was set up for unorganised workers with an initial allocation of just Rs. 1000 crore, which is far below the expected requirement.
Poor fund utilisation and management- The funds allocated under the schemes have not been used effectively and efficiently. The CAG audit reveals that 1927 crore accumulated in the National Society Fund since its inception has not been utilised.
Informal labour sector- Approximately 91 percent of India’s workforce works in the informal sector, which often lacks job security benefits, application of labour laws and access to formal social security programmes.
Concentration of powers with Central Government- The Central Government has been given wide power in order to establish social security schemes through the National Social Protection Board under the Code on Social Security but labour law is a state subject so such power can hamper the object of the Act.
Technology and digital divide- Most of the social security schemes provided are transitioning to digital platforms for registration and the disbursement of benefits. However, a large section of these labourers reside in villages or lack education, so they lack access to technology and internet , leading to a digital divide that hampers their participation.
Suggestions
Social security measures are an important aspect of labour legislation in India, but there are several challenges to the effective implementation of these schemes. The government must address these issues to ensure that the benefits of the scheme reach the targeted beneficiaries. These can be done through increased awareness campaigns, better funding and government support for vulnerable workers, reducing administrative costs and simplifying administrative procedures, universal social security by consolidating its existing social security schemes and providing social security to the entire labour force. There should be mandatory social security for employees, enforced by employers; this would foster formalisation and accountability in the employer employees relationship. Introducing a nationwide labour force card will simplify the registration process and expand the scope of social security coverage beyond the construction and gig worker sectors. By addressing these challenges and taking the necessary steps, Indians can create a more equitable and inclusive society where citizens can lead a dignified life.
Conclusion
I will conclude this article by quoting Mahatma Gandhi Ji , Father of the Nation “Obedience to the law of bread labour will bring about a silent revolution in the structure of society”. Labourers are a crucial part of society and providing them with a secure and dignified environment has been a high priority for a long time. Our Constitution makers incorporated this as a directive for the state to work upon in the future and the government has taken several steps to make this directive a legal obligation. The social security schemes provided by the government and the laws made by Parliament play a vital role in ensuring that the basic needs of citizens are met and that they can lead a dignified, just and equitable life. Definitely, there are enormous challenges in the effective implementation of these schemes, and these challenges need to be overcome to provide benefits to the last strata of the intended beneficiaries. The government is committed to addressing these issues and ensuring that social security measures are provided to all citizens of the country.
This article is written by Satyanshu Kumari. This article elaborates on Section 148 of the Companies Act, 2013, which states about cost accounting and audit requirements of certain companies. The section is read along with the Companies (Cost Record and Audit) Rules, 2014. The cost records help the companies keep detailed records of the utilisation of labourers, materials, etc. in the companies engaged in production, manufacturing, or processing activities.
It has been published by Rachit Garg.
Table of Contents
Introduction
India became the first country in South Asia to make cost audits mandatory for certain business sectors. When India gained independence and the development of industrialisation took place, a lot of effort was put into facilitating the industrialists to promote manufacturing, but the only problem was the monopolistic practice and other ulterior reasons. In a situation where the price of the manufactured goods or products was found to be excessive, the manufacturer would justify such pricing by relying on the higher cost of inputs. While procuring raw materials or any other goods, there would be under-invoicing of the imports to evade customs duties or over-invoicing of the exports to avail of the export benefits. It was during that time, when India was building its industrial base, that price control or checks on imports and exports were imperative for certain industries from the point of view of public benefit.
Under Section 209(1)(d) of the Companies Act, 1956, the provision related to maintaining the cost accounting records was introduced. For certain classes of businesses, it was mandatory to maintain cost accounting records, get them audited by a cost auditor, and follow the regulatory provisions provided by the Act. With the passage of time and development in technology, there was a dire need for the amendment to the current Companies Act of 1956, which is related to the maintenance of the cost accounting records, which further led to the amendment in 2013, and the provisions relating to the cost accounting records were put under Section 148 of the Companies Act, 2013.
The provision relating to the auditors has been discussed in various reports at length, such as the JJ Irani Committee’s Report and the report presented by the Standing Committee on Finance on the Companies Bill, 2009. Based on these reports, some major changes relating to audits and auditors were introduced in the Companies Act of 2013.
Companies that have been engaged in multiple activities like production, processing, manufacturing, or mining must maintain records of all the particulars related to the utilisation of material, labour, and other cost items as prescribed by the Central Government. These records include books of account that detail the utilisation of the labourers, material things, and other things.
The Companies (Cost Records and Audit) Rules, 2014, read with Section 148 of the Act, apply to all the companies registered under the Companies Act that are engaged in producing goods or providing the services listed under Table A or Table B of the Rule.
Section 148 : an overview
Audit of the annual account of any company is one of the important and inseparable parts of any incorporated business, and it is always carried out and managed by a specialised skill set, which is the reason why the shareholders of the company appoint auditors.
Section 148(1): The Central Government, may, by order, in respect of the class of companies engaged in the production of goods or provide services, and maintain particulars related to raw materials, or labours or any other items of cost, also including them in the books of account kept by the class of the company.
Proviso of Section 148(1): The Central Government, before they issue any such order concerning any such class of the companies regulated by a Special Act, consults the regulating body established under this Special Act.
Section 148(2): Every company specified in Item A of Rule 3 of the Companies (Cost Record and Audit) Rules, 2014, shall get their cost record audited by following these rules during the immediately previous financial year:
The overall annual turnover of the company should be Rs. 50 crore or more.
The aggregate turnover of the individual product(s) or service(s) for which the cost record is required to be maintained should be Rs. 25 crore.
Every company specified in Item B of Rule 3 of the Companies (Cost Record and Audit) Rules, 2014, shall get their cost record audited by following these rules during the immediately previous financial year:
The annual turnover of the company from all the products and services is Rs. 100 crore or more.
The aggregate turnover of the individual product(s) or service(s) for which the cost record is required to be maintained should be Rs. 35 crore or more.
The cost audit under these rules shall not apply to a company that is covered in Rule 3 (General Exceptions for certain companies to which the rule would not apply):
The revenue from exports and foreign exchange exceeds 75% of the total revenue.
The company operates in a Special Economic Zone.
The company is engaged in the production of electricity for captive consumption through a generating plant.
Section 148(3): Appointment and Remuneration of the Cost Audit
The audit shall be conducted by the cost accountant, who shall be appointed by the Board on such remuneration as may be determined by the members in such manner as may be prescribed:
Provided that under Section 139, no statutory auditor shall be appointed as a cost auditor of the company.
It is further provided that the auditor conducting the cost audit shall comply with the cost auditing standards.
Section 148(4): States that an audit conducted under this section shall be in addition to the audit conducted under Section 143 (Power and duties of auditors and auditing standards).
Section 148(5): The cost auditor appointed under this section has all the obligations like qualification, disqualification, rights, and duties that shall be applicable and it shall be the duty of the company to give all the assistance and facilities to the cost auditor to audit the cost records of the company.
Provided that the report is prepared by the cost accountant on the audit of the cost record, which shall be submitted to the Board of Directors.
Section 148(6): After the submission of the audit of the cost record report to the company, the company shall, within 30 days from the date of receipt of a copy of the cost audit report prepared in pursuance of the direction of the Central Government under sub-section (2), furnish all the information and explanation on every reservation or qualification contained therein.
Section 148(7): Filing of the Cost Audit Report to Central Government
Within 30 days from the receipt of the copy of the cost audit, the company shall furnish the Central Government with full information and explanation on every reservation or qualification contained therein. The Central Government may demand the classification of the same
Section 148 (8): Any default is made in complying with the provisions of this section:
(a) The company and every officer shall be punishable in the manner provided in subsection (1) of Section 147.
(b) The cost auditor who is in default shall be punishable in the manner provided in subsections (2) and (4) of Section 147.
Legislative history
Right after independence, large-scale industrialisation took place. A lot of privileges and facilities were provided to entrepreneurs to establish industrial undertakings. The main issue was the excessive price, which encouraged smuggling and other malpractices such as under-invoicing of imported goods to save on customs duties or over-invoicing of exports to get a higher export benefit. This is the reason why Section 209(1)(d) (Section 209 provides that the company needs to maintain books of account and penalties can be imposed if not complied with) of the Companies Act, 1956 was introduced. Information on the input cost of products, machine utilisation, unit selling price, profitability of the individual products, etc., was required to be maintained. The main objective of the cost audit was to introduce the provision of the Companies Act 1956 that regulating pricing mechanisms in key industries like cement, sugar, textiles, and consumer goods is necessary to ensure fairness and transparency and meet consumer needs. Implementing regulations promotes stability, sustainability, and economic growth.
The Companies Act of 1988 introduced changes related to the maintenance of cost audits and the appointment of qualified persons to conduct them. The Act also imposed a ceiling on the number of cost audits a firm of cost accountants can perform, similarly to the ceiling for a firm of chartered accountants. The provision of Section 224(B) that applies to statutory auditors regarding the audit ceiling also applies to cost auditors. In the Companies Act of 2013, the audit should be under the Companies (Cost Record and Cost Audit) Rules, which are set by the Central Government under Section 469. All the manufacturing sectors are now linked to their respective Central Tariff Codes for easy and accurate identification.
Scope of Section 148
The section relates to Section 233B of the Companies Act, 1956. It seeks to empower the Centre government, after consultation with the regulatory body, to direct the class of companies engaged in the production of such goods or provision of such services as may be prescribed to include in the book of account particulars relating to the utilisation of material or labour or such other cost items. The central government could require the audit of the company’s cost records by the cost accountant chosen by the Board and on the terms established by the members.
The Board has to appoint a cost accountant in practice who shall conduct the audit.
No person appointed under Section 139 of the Act as an auditor of the company shall conduct the audit of the cost record.
The auditors have to comply with the cost auditing standards issued by the Institution of Cost Accountants of India while conducting cost audits.
The company has to provide all the assistance and facilities to the cost auditors for conducting the auditing of the company.
The cost audit could be ordered only concerning a company engaged in production, processing, manufacturing, or mining activities. The Central Government framed rules in respect of industries of the nature referred to above, providing maintenance to particulars relating to the utilisation of material or labour or other items of costs in the books of account.
Categories of companies for which central government may specify audit of cost of items
The class of companies, including the foreign companies, engaged in the production of the goods or providing the service specified in Annexure A (mentioned below), having an overall turnover from all the products and services of Rs. 35 crores or more during the immediately preceding financial year, shall include cost records for such products or services in their book of account.
Applicable rules to be read with Section 148 of the Companies Act, 2013
As mentioned above, the legal provisions regarding the cost audit are laid down in Section 148 of the Act, read with the Companies (Cost Records and Audit) Rules, 2014 (Cost Audit Rules).
For the company and its officers: According to Section 147(1), the firm is penalised with a fine of not less than Rs. 25 thousand but not more than Rs. 5 lakhs, and each officer of the company who is in default is obliged to pay Rs. 10 thousand but can be extended up to Rs. 1 lakhs. Before the modification, the company’s officers were subject to imprisonment. According to the most recent revision, officers can now only be fined for any infringement.
For the cost auditor of the company: As per Section 147(2) to (4), the cost auditor shall be punishable with a fine not less than Rs. 25 thousand but which may be extended to four times the remuneration of the auditor, whichever is less. It is provided in the section that if the auditor has the intention, whether knowingly or willingly, to deceive the company, its shareholders or the creditor, shall be punishable with imprisonment of one year and a fine which shall not be less than Rs. 50 thousand but which may be extended up to Rs. 25 lakhs or eight times the remuneration of the auditor, whichever is less. Further, in addition, the auditor who has been convicted shall be additionally liable to i) refund the remuneration of the company and ii) to pay for the damages to the company, statutory bodies, or the authorities for the loss arising out of the misleading statement of the particulars made in his audit.
Major key issues
Cost audit may not be applicable to all the companies: As per Section 148(1) of the Act read with Rule 3 of the Cost Audit Rules, the Central Government may by order ask for the cost accounting of records of certain companies providing goods and services only, especially the company engaged in the manufacturing of the goods and providing the service. This forms the only basis for the concept of the cost audit, i.e., only the manufacturing companies or the companies providing the service are to be cost audited. Hence, all companies are optional to maintain cost audit records.
Further, Rule 3 of the Cost Audit Rules lays down a turnover of Rs. 35 crore, and if any company has a more significant turnover in the immediately proceeding financial year, it would be required to maintain the cost records. Such companies have been further categorised and tabulated in Table A (Regulated Sector) and Table B (Non-Regulated Sector) of the code.
Rule 4(3)(i) provides for the general exceptions for certain companies for which the cost audit is not applicable:
The revenue exceeds the exports; in the foreign exchanges, exceeds 75% of its total revenue, or,
Which are operating from a special economic zone
The company engaged in the generation of electricity for captive consumption through the Captive Generating Plant. For this purpose, the term “Captive Generating Plant”, shall have the same meaning as assigned in Rule 3 of the Electricity Rules, 2005.
Effects of the decriminalisation by the 2020 Amendment Act: In the Companies (Amendment) Act, 2020, the word “with the imprisonment for a term which may be extended to one year” was omitted from Section 148. Thus, in short, the punishment was decriminalised. This flows directly from the application of Section 6 of the General Clauses Act of 1897, which provides that in case any law is repealed, anything that was not in force or existing at the time of such repeal cannot be revived.
Limitation under Section 468 of the Criminal Procedure Code, 1973 (CrPC): Section 468 of the Criminal Procedure Code provides for a limitation period of six months from the commission of the offence in cases where the offence is punishable with a fine only. In this case, in any proceeding under Section 148 of the Act, wherein a person is sought to be punished, such limitations would have to be respected. In the case of Vikram Kapur v. Deputy Registrar of Companies (2022), it was held by the Madras High Court that since the complaint was filed in 2018 for the contravention of Section 148 of the Act, the proceedings under Section 468 were beyond the limitations of the Code.
Judicial pronouncements
M/S.Jindal Steel & Power Ltd v. Commissioner of Central Excise, Raipur (2013)
Background of the case
In the present case, the respondent was the manufacturer of the sponge iron and other iron and steel-producing products chargeable to the Central Excise Duty. During the period of dispute, i.e., from November 1999 to August 2000, they installed additional machinery to enhance the power generation capacity and availed capital goods. The department is of the view that since the electricity is non-excisable and since the bulk of the electricity was sold to the State Electricity Board during the period of dispute, the power generated by the captive power plant was more than the respondent’s actual requirement, which issued the show cause notice for denying Cenvat credit along with interest and the imposition of a penalty.
Held
It was held in this case that if the company has not been determined as per the CAS-4( Cost Accounting Standards) method of valuation, the respondent should have fulfilled the condition for claiming the excise duty exemption. However, it was subsequently corrected, and differential duty was paid by way of issuing supplementary invoices to the recipients.
RAD-MRO Manufacturing Pvt. Ltd v. Commer. Of C.Ex., Bangalore (2009)
Background of the case
In this case, a show cause notice was issued on the ground that M/s. RAD-MRO Manufacturing Pvt. Ltd. and M/s. MRO TEK Ltd. are to be treated as related persons since MRO TER utilises all the Populated Printed Circuit Boards purchased from the RAD-MRO for captive consumption, The value has to be determined as per Central Excise Valuation (Determination of Price of Excisable Goods), 2000, following the CAS-4. The Commissioner has upheld the demand as proposed in the show cause notices and also imposed a penalty equal to the amount u/s 11AC of the Central Excise Act, 1944, and demanded interest.
Held
In this case, it was held that the related party’s transaction was intended to evade excise duty payment, as the price declared for the sale was mutually agreed upon and was lower than the CAS-4 (Cost Accounting Standard) for a particular portion of the time. Since it is revenue-neutral, the buyers can take cenvat credit, and no evidence is brought out for evasion of duty, the decision was set aside.
Conclusion
Cost audit provisions are regulatory and report-seeking in nature, and so far as they are complied with, there is no impact or restriction resulting from them. However, many companies that are covered under the cost audit, have not complied and, till lately, have never been questioned. The MCA may have recently been issuing SCNs and trying to ensure stricter compliance, but with the decriminalisation (which is, of course, welcome) that has been recently done and with the passage of time and limitations as explained above, the fate of these proceedings now initiated by the MCA is yet to be determined.
Annexure A
The companies, including foreign companies, engaged in the production of the goods or providing services specified in the table below, having an overall turnover from all their products and services of Rs. thirty-five crore or more during the immediately preceding financial year, shall include cost records for such products or services in their books of account, namely:
Non-Regulated Sector: Turbo jet and propeller, Arms and Ammunition and Explosive, Radar apparatus, Iron and steel, etc.
Frequently Asked Questions (FAQs)
What is the difference between a statutory auditor and a cost auditor?
The statutory auditor cannot be appointed as the cost auditor of the company, whereas the cost auditor will be appointed by the board, and in the case of such companies’ audit committees, the appointment and remuneration will be recommended by the audit committee.
What is the due date for filing the cost audit report, and to whom should it be submitted?
As per Rule 6(5) of the Companies (Cost Records and Audit) Rules, every cost auditor is required to submit his report to the Board of Directors of the company within 180 days from the closure of the financial year.
Brazil’s economy is currently facing an inflection point where purchasing power is comparatively slow and growth is stagnant. The current challenge for the economy is to prevent a recession. Also, Brazil’s economic conditions are challenging for corporations too, as due to the policy uncertainty prevailing in Brazil, it discourages corporate firms from making long term investments, further making it difficult to create stable investment relationships between the investor and the corporate entities. Economic uncertainty, however, spread due to sudden changes in input output, employment, interest rates, oil prices, and exchange rates in the country. Further Government decisions have a huge impact on economic uncertainty if there is mismanagement and the wrong economic decisions are taken. Further, elections also impact market conditions, which affect stock prices and corporate decisions.
Economic history of Brazil
The economic history of Brazil involves many different economic changes throughout the country’s history. Initially, during the colonial rule of the Portuguese from the 1500s to the 1930s, the Brazilian economy primarily relied on domestic products and exports. This had stopped the country’s development. After 1930, the Brazilian economy had become stable, and the textile industry was primarily booming. Fast economic growth took place during World War II in the 1940s. Major industrial development took place from 1940 to 1970, along with the steel and automobile industries; the service industry of the country also took off due to industrialization and new industrial policies. Until 1974, Brazil’s GDP was the highest in the world. However, an economic crisis hit in 1980, during which the country experienced inflation and slow economic growth. During the economic crisis, the Brazilian government came up with many economic plans; however, they didn’t turn out to be fruitful. The country also faced economic debt during this period.
However, the Brazilian economy started facing a slow economic boom in 2004. In the later half of 2008, the world economy hit a rise to a decrease in exports, a credit squeeze, and many companies cut their operations due to losses, which led to the declaration of such companies as bankrupt. To tackle this situation, new economic policies were implemented, wherein various fiscal policies were implemented and subsidised credit was given to the productive sectors.
This situation was hit due to low levels of investment, inflated and inefficient public spending, high social security costs, low labour productivity, and poor infrastructure. These issues are still prevalent in Brazil. To resolve the issues, the Nova Matriz Econômica (new economic matrix) was implemented, which includes expanded state intervention in the economy, currency devaluation, and interest rate reduction. However, this matrix was a failure, which downgraded the country’s sovereign debt rating in March 2014. Between 2014 and 2016, the Brazilian economy faced one of its worst recessions in history. Further, in 2020, when the COVID pandemic hit, it posed a threat to the country’s growth potential.
Realm of corporate governance in Brazil
Corporate governance is the system whereby organisations are run, overseen, and encouraged. It involves relationships between the shareholders, the Board of Directors, the officers, and regulatory bodies. The principles and practices of good corporate governance apply to any kind of organisation, regardless of size, legal nature, or type of ownership. Corporate governance is based on four pillars–transparency, fairness, accountability, and corporate responsibility.
The Brazilian Institute of Corporate Governance (IBGC) defines corporate governance as the practices and relationships among shareholders, the board, the CEO, independent audit members, etc. that seek to optimise a company’s performance and facilitate access to capital. Brazil’s economy has gone through major changes, which include economic growth, macroeconomic stability, and changes in investment patterns. Since the 2000s, Brazil has seen relatively weak corporate governance.
The corporate governance structure in Brazil applicable to listed companies is established on the basis of Brazilian Corporation Law, regulations issued by the Securities and Exchange Commission of Brazil (CVM) , and listing rules issued by the Brazilian Stock Exchange to each of its listing segments. Moreover, Brazilian corporations are controlled by the majority of shareholders, who own the majority of voting shares.
Implementing corporate governance practices has become an important task and mandatory for Brazilian companies, be they state-owned entities, listed, private, or family-owned. However, companies that have access to capital markets attract local and foreign investors who invest in their stocks.
Economic uncertainty affects the capital markets and also affects the investor selection portfolio. Government policies shape the business environment, and the uncertainty of economic policies has a direct impact on the market and its liquidity. Changes in government policies have a direct impact on economic conditions, giving rise to risky investment decisions. Investors are also cautious during such uncertain conditions, which has a negative impact on stock prices.
Finance plays an important role and is linked to corporate governance and economic development. Good corporate governance structures assist in capital market development and thus provide the private sector with greater access to long term funding. Currently, the major concern for Brazil’s economy is the availability of long term finance at competitive rates for private sector development. Thus, lack of finance has become a concern for the expansion of corporations, especially for locally owned enterprises that face difficulties in accessing foreign capital markets. Brazil’s private sector faced financial problems during the 1980s, wherein there arose funding issues in the country and the state could no longer provide enough funding.
The crisis of public finance is still prevalent in the economy even today. Local capital markets are also underdeveloped, particularly in the area of equity finance. Since the early 1980s, local business groups have been relying practically entirely on retained earnings and on foreign capital markets to finance growth.
To sum up, Brazil’s corporate structure is fragile and faces the following problems that need to be resolved –
Financial vulnerability results in high capital costs.
Long term domestic financing results in a delay in the centralization of capital, as in Brazil there are many corporations that are family owned.
Weak competitive performance in all sectors.
Loss of national ownership in many sectors.
Coping up with policy uncertainty in investment patterns
Financial development plays an important role in economic growth and stability. If we check in terms of investment, liquid capital markets increase the supply of differentiated assets, facilitating investment choices. Capital market development in Brazil is a key policy issue going forward to foster savings and investment. Brazil’s savings and investment levels as a share of GDP are still low by international standards. Local investors in Brazil have been less active in the equity market when it comes to investment in pension funds and mutual funds.
Brazil’s financial sector is dependent on natural capital to support economic growth and ensure future returns for investors. Nature’s assets are abundant in Brazil, from its farmland, forests, and energy reserves to its ecosystem services, such as the rainforest, which helps regulate weather patterns. Brazilian financial systems are at capital risk because the sectors that banks and pension funds finance are heavily reliant on Brazil’s natural capital. Growing business demand for natural capital and falling supply due to environmental degradation are contributing to changes in investment patterns.
Thus, it is important for investors to consider the future potential risks that a company may face, depending on the current valuation of the investment. Thus, if there is a rise in the cost of natural capital, it will have a direct impact on the repayment of credit or shareholder return on investment. Brazil’s complex regulations and bureaucratic systems make it difficult for businesses to venture into the Brazilian market. As of 2023, Brazil’s economy is experiencing a period of moderate growth following several years of economic uncertainty. The country rebounded strongly during the global financial crisis, but the financial challenges are leading to a decline in GDP. The Brazilian government has implemented several measures to reduce the deficit; however, the country is still facing major challenges. Investment in the Brazilian market is severely impacted due to stringent government norms, tax complexity, corruption, unemployment, hindrance in the local labour force, inflation, infrastructure shortage, import barriers, sensitive fiscal position, Volatility of the local currency and its significant depreciation, Volatility in foreign direct investment (FDI), etc.
With the resources available, the challenge in Brazil is no longer how to increase production but how to export what is being produced, thus reviving the economic condition and changing investment patterns. Brazil also has severe domestic problems that are affecting the currency’s valuation. The volatility is disturbing for businesses as it raises debts, creates uncertainty, and also affects investment decisions, such as how much a company should export or import.
On the other hand, investment patterns that are predominantly seen are-
Brazilian investors prefer to invest in something tangible, like real estate.
Brazilians are still afraid of inflation. Hence, they tend to spend their wages as soon as they receive them.
High taxes and expensive prices reduce the purchasing power and investment capacity of Brazilians. Energy, food, clothes, and electronic goods are more expensive than in many other countries.
Several companies left the public market and are no longer listed.
Conclusion
Doing business in Brazil can be complex and challenging, as companies must navigate various obstacles to succeed in this market, which include Brazil’s complex tax system, high labour and slow process of judicial review. Brazil’s complex regulatory system hampers foreign investment, which is hampering the economic growth of the country. Brazil is in the early stages of the development of small and medium- size businesses. It is necessary to view foreign investment as a broader way to review economic difficulties. Further, Brazil’s capital markets are still facing a number of challenges, which include prevalent short-term indexation, investors’ risk aversion to long-term fixed rate bonds, and low liquidity in the secondary market.
Thus, Brazil must reduce its fiscal complexity and the costs of public administration and invest in efficient education and income distribution projects in order to increase productivity and competitiveness on a global scale.
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