Diamond vs. Chakraborty (1980) : an analysis

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October 13, 2023

This article has been written by Poorva Joshi, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho and edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

In Diamond vs. Chakraborty (1980), a U.S. Supreme Court case that is considered a landmark case, the judges in this case expanded the application of the U.S. Patent Act, which had an impact on the biotechnology industry. This is a landmark case because the Supreme Court agreed and held on June 16, 1980, that a live, human-made micro-organism is patentable subject-matter under 35 U.S. Code §101 and that the respondent’s micro-organism constitutes a “manufacture” or “composition of matter” within that statute.

Facts of the case

Anand Chakraborty was working for General Electric as a genetic engineer. During his employment, he created a bacterium (scientifically known as “Pseudomonas putida”). This newly developed bacterium was capable of breaking down crude oil. Anand Chakraborty proposed using this bacterium for oil spills. General Electric filed a patent application for creating the bacterium in the United States, stating Chakraborty as the inventor.

The application was rejected by the patent examiner and the Board of Patent Appeals and Interferences, stating that under 35 United States Code Service (“U.S.C.”) 101, the microorganisms were not patentable. General Electric and Chakraborty appealed the decision of the Board of Patent Appeals and Interferences to the United States Court of Customs and Patent Appeals. This time, the United States Court of Customs and Patent Appeals overturned the previous judgements and held that Anand Chakraborty had created this bacterium and was entitled to a patent. The Commissioner of the Patent Office, Sidney A. Diamond, filed an appeal against the order given by the United States Court of Customs and Patent Appeals to the Supreme Court.

Judgement of the Court

The main issue in this case was whether a man-made living organism can be patented under the US Patent Act. Out of the nine presiding judges of the Supreme Court, five judges ruled in favour of Anand Chakraborty and upheld the decision given by the United States Court of Customs and Patent Appeals.

Opinions of the majority

Under 35 U.S.C. Section 101, it is stated that whoever invents or discovers any new and useful process, machine, manufacture or composition of matter may obtain a patent.

In view of the above section, Justice Warren E. Burger, along with the majority, held that the Congress intended that the words “manufacture” and “composition of matter” were to be given broad scope. Judges added that the bacterium was developed and made by Anand Chakraborty. The Court’s precedents in Funk Bros. Seed Co. vs. Kalo Inoculant Co. (1948) rejected the appeal for the patent, stating that the patentee had only discovered the existence of naturally occurring bacteria that may be used to improve crops more than 50 years prior. While Anand Chakraborty had himself created the bacterium and had evolved and changed it for a particular purpose. The U.S. Supreme Court, however, further held that the scope of the above mentioned words cannot be interpreted in a very broad sense and will not be extended to “laws of nature, actual events and conceptual ideas.” Anything under the sun that is man-made is patentable, subject to such inventions meeting the statutory requirements of being new, useful, and non-obvious.

The reason for granting the patent rights to Anand Chakraborty was that the micro-organism is not a natural phenomenon but a non-naturally occurring manufacture or composition that has a distinctive name, character and use.

Even though it was technically a living thing, the form in which it was to be patented did not occur naturally, i.e., it inherently did not possess oil-eating capabilities, which was the purpose of getting it patented.

Opinions of the dissenting judges

Out of the nine presiding judges, four judges, i.e., Justice William J. Brennan Jr., Justices Byron White, Thurgood Marshall, and Lewis F. Powell Jr., dissented from the Court’s ruling. The judges state that the courts should take into account the intent of Congress while drafting the Patent Act. Living organisms have been excluded from the scope of the Patent Act.

The dissenting judges mentioned that the Court had only one issue to decide whether Congress had the intention under the Act to give any kind of monopoly over a living organism in terms of how the living organism is produced or used. It is the role of Congress and not of the Court to broaden or narrow the scope or interpretation of a particular law or act, especially when the matter could possibly be of public concern.

Referencing the Plant Patent Act, 1930 and the Plant Variety Protection Act, 1970, the judges stated that the Congress intended to grant patent protection to certain asexually reproduced plants. In the Plant Variety Protection Act of 1970, the Congress extended the protection to certain new plant varieties that are capable of sexual reproduction. Under these two acts, Congress addressed the problem of patenting animate inventions while at the same time limiting the language in such a manner as to exclude specific other discoveries. The enactment of these acts supports the fact that Congress intends to limit bacteria’s patentability.

Impact of the judgement

In 2018, Time mentioned this decision as one of 25 important moments in American history. Professor Gerardo Con Diaz stated that the decision allowed “inventors at private and public institutions alike to obtain patents for genetically modified organisms—from plants and animals for laboratory research to many foods available in supermarkets today”—and allowed biotechnology firms to protect their developments in new ways. In IP Watchdog on the decision’s 30th anniversary, Gene Quinn called the decision a “turning point for the biotech industry” and praised the Court’s ruling as “emblematic of the need for an expansive view of what is patentable subject matter.” Likewise, the Biotechnology Innovation Organisation praised the decision as being “instrumental in spurring the creation of a dynamic and flourishing biotech industry.” Nature noted that, according to industry participants, “without Diamond vs. Chakrabarty, commercial biotechnology based on recombinant DNA technologies would not exist today.”

Criticism of the judgement

The main concern under this was the monopoly over a living organism, as there are many ethical issues around it. Many animal activists and ethics campaigners condemn the creation and patenting of genetically modified living organisms, believing that the process allows humans to manipulate a creature’s natural state and gain profit from the same. There might arise a scenario wherein the genetically modified organism could cause the destruction of nature and humans. These genetically modified organisms might also affect the balance of nature and the genetic diversity of animals.

If any micro-organism is just discovered by a person, it will not come under the purview of the patentable subject matter; it will be considered a mere discovery and not an invention. However, when the micro-organism is genetically modified to exhibit a new characteristic that is useful to humankind, it will be deemed an invention and will be patentable.

The courts continued to grant the right of biotech industry developers to claim ownership of altered biological life but provided some limits, as in Mayo Collaborative Services et al. vs. Prometheus Laboratories, Inc. (2012) and Association for Molecular Pathology vs. Myriad Genetics, Inc. (2013). However, since the Anand Chakraborty case, the courts have provided safeguards like forbidding the patenting of “limited DNA sequences”.

Position in India

India is part of the TRIPS agreement. Both TRIPS and the Indian Patent Law clearly state that micro-organisms are patentable. Previously, Section 3(j) of the Indian Patents Act, 1970, stated that plants and animals, in whole or in part thereof, including seeds, varieties and essentially biological processes for the production of plants and animals, are excluded from what can be patented. However, after the 2002 Amendment Act, microorganisms were allowed to be patented as long as they satisfied the other requirements. Indian law does not allow microorganisms that already exist in nature to be patented and considers them discoveries. It is important to note, however, that genetically modified versions of the naturally-occurring microorganisms that result in their modification or enhancement of their properties are patentable.

Analysis and conclusion

Following this case, the patent office dramatically expanded the kinds of inventions it was willing to patent, to include plants, animals, some computer technology, and business methods. Neither Congress, the Supreme Court nor other courts have stopped this expansion. “This entire patent qualification question-which was so plain and obvious, was reasonably implementable and perceived, and gave life to our whole biotech area after Chakrabarty,” as per Judge Randall Rader. Judge Rader replied as follows when he was asked whether the Congress should clarify the issue in the judgement given in this case. He said “assuming the regulation was the composed regulation that was being understood by the Supreme Court, we wouldn’t need an official correction”.

Earlier, patenting life life-forms was not allowed anywhere in the world. With the advent of technology, however, patent protection had to be given to inventions relating to micro-organisms. In the past few decades, there has been a dramatic shift in the approach to patenting in micro-organisms and biotechnological patents in general. If it were to be restricted, it would have led to a large scale economic loss to the owner as there would be unfettered duplication of the invention. What the national laws can provide in this situation is a way of limiting the patenting of micro-organisms in a way that is not injurious to public welfare or interest. The concepts of invention and discovery must be clearly distinguished in national laws.

The case of Diamond v. Chakrabarty revolutionised the field of intellectual property. Most importantly, it has given researchers, scientists and developers the right to patent their genetically modified work, thus protecting their creative output and hard-work.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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Cybercrime and its impact on the banking industry

By

Sneha Mahawar

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October 12, 2023

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This article has been written by Mrudula Kuchi pursuing a Personal Branding Program for Corporate Leaders and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The banking industry plays a crucial role in the global economy, facilitating smooth financial transactions and storing vast amounts of sensitive data. However, with the rapid digitization of banking operations, the industry has become an attractive target for cybercriminals. Cybercrime occurs when any illegal activity is committed using a computer or computer resource and it is one of the top economic crimes across the world. Cybercrime in banking includes things like stealing data, tricking people into giving away their personal information, locking up computer systems for ransom, and pretending to be someone else to steal money. Cybercrime leads to significant financial losses for both customers and banks, which also affect the economy of a country. Phishing and pharming are the most popular examples of cybercrime.

Cybercrime in the banking industry

Cybercrimes can broadly be classified into:

Hacking: Hacking refers to the unauthorised access, manipulation, or exploitation of computer systems, networks, or software. It involves the use of various techniques and tools to gain unauthorised entry, steal or manipulate data, disrupt services, or exploit vulnerabilities for malicious purposes.

Phishing: It is a technique to obtain confidential information such as usernames, passwords, and debit/credit card details. It involves imitating another person to deceive others as a trustworthy entity in an electronic communication and replaying the exact same details for malicious reasons.

Ransomware: It is malicious software that encrypts the victim’s data and demands payment in exchange for the decryption key. Ransomware attacks have surged in recent years, making them a major threat to the banking industry as well as other sectors. Cybercriminals can use ransomware to target banks and their customers, potentially disrupting operations and causing significant financial losses, in addition to damaging the bank’s reputation and customer trust.

Data breaches: Data breaches occur when sensitive or confidential information is accessed, viewed, or stolen by unauthorised individuals. While data breaches have always threatened organisations, they have become increasingly common in recent years.

with no industry being immune. Cybercriminals are constantly looking for vulnerabilities to exploit, and banks are a prime target due to the sheer amount of valuable customer data they possess. As a result, banks need to take proactive steps to protect their data and make the risk of breaches less severe.

Advanced Persistent Threats (APTs): These are sophisticated, targeted attacks aimed at gaining prolonged access to banking systems, often orchestrated by well-funded criminal organisations.

Point of Sale (POS): Point of Sale crimes refer to fraudulent activities that occur during transactions at retail establishments or businesses where customers make purchases. These crimes often involve the compromise or manipulation of payment systems, such as cash registers or card payment terminals, to steal customer payment information

ATM skimming: ATM skimming is a form of fraud where criminals use devices to steal credit card or debit card information from unsuspecting users at automated teller machines (ATMs). Skimming involves installing a small device on the ATM, typically over the card slot or keypad, that secretly captures the card’s magnetic stripe information and records the user’s PIN. These devices are designed to blend in with the ATM’s appearance and often go unnoticed by users. Criminals later retrieve the recorded data and use it to create counterfeit cards or make unauthorised transactions.

Impact of cybercrime on the banking industry

The impacts of cybercrime on the banking industry have been devastating, crippling the trust and confidence that customers have in their financial institutions. With the cost of data breaches and hacking attacks rising each year, banks are forced to invest more heavily in cybersecurity measures, diverting resources that could be better used elsewhere. Furthermore, cybercrime may lead to financial losses.

Financial losses and operational disruptions

Direct financial losses: Financial losses can have a lasting detrimental impact on a bank’s reputation and customer confidence. A recent study conducted by Accenture revealed that 36% of banking customers who were victims of cybercrime lost trust in their bank. Of those customers, 65% claimed they would consider switching to a different financial institution. This highlights the importance of effective cybersecurity measures for both mitigating financial losses and maintaining customer trust. Indirect costs: operational disruptions, reputational damage, legal expenses, and regulatory penalties.

Customer trust and reputation damage

Erosion of trust: One of the most significant impacts of cybercrime in the banking industry is the loss of trust and confidence in financial institutions. Customers rely on banks to protect their personal and financial data, and any breach of that trust can be detrimental to the institution’s reputation. Additionally, the fear of cybercrime can deter potential customers from even using banking services, leading to lost revenue for the industry. Therefore, efforts to combat cybercrime in the banking industry must prioritise building and maintaining trust and confidence among customers.

Reputational damage: Reputational damage is a critical impact of cybercrime on the banking industry. A significant case is the 2017 Equifax data breach that exposed the personal information of over 150 million customers, resulting in reputational damage and lawsuits that cost the company millions of dollars. Banks, too, face a similar risk, and the potential damage to customer trust and reputation is significant, making it critical for banks to invest in cybersecurity measures to reduce these risks.

Legal implications: One of the most pressing issues in the context of cybercrime is the legal implications that follow such illicit activities. For instance, cybercriminals may be prosecuted under various laws and regulations that govern online transactions and banking activities. Additionally, banks and their clients may be required to adhere to strict security guidelines and standards set by regulatory authorities to prevent cyber attacks and mitigate the risks of financial fraud. Hence, the legal implications of cybercrime in the banking industry are significant and require a proactive and collaborative effort from all stakeholders involved.

Systemic risks and financial stability

Contagion effects: A cyber attack on a major bank can have cascading effects, spreading to other financial institutions and disrupting the entire banking system. Cyber incidents can undermine investor confidence, leading to market volatility and potential economic outcomes.

Safeguarding the financial systems in the digital age: Preventive measures against cybercrime involve a combination of technical measures and education. Banks must invest in advanced security technologies to detect and prevent cyber-attacks before they can affect the system. Furthermore, employees must be trained regularly on best cyber security practises to avoid phishing scams, malware attacks, and insider threats.

Strengthening cybersecurity measures

Some measures for strengthening cybersecurity are:

Multi-layered defence: The installation of firewalls is an important tool for any organisation to protect its information systems from cyber threats. Banks should have a robust firewall mechanism that can prevent external access to their network and block unauthorised activities or malware. Most firewalls have functionalities like packet filtering, deep packet inspection, and traffic filtering, which can protect the network at different levels. Firewalls play a critical role in preventing cyber-attacks and securing confidential banking information.

Employee training: Employee training and awareness play a critical role in mitigating the risks of cybercrime in the banking industry. With the constantly evolving nature of cyber threats, banking institutions must ensure that their staff is equipped with the necessary knowledge and skills to identify and prevent any potential cyberattacks. Regular training programmes and simulated phishing tests can help raise awareness and reinforce best practises, enabling employees to detect and respond to online security threats effectively. Investing in employee training and awareness is thus crucial for enhancing cybersecurity resilience in the banking sector.

Continuous monitoring: proactive monitoring of network traffic and deviating activities to detect and respond to cyber threats promptly.

Collaboration and information sharing: Collaboration with cybersecurity firms can greatly benefit the banking industry as it provides a more holistic approach to combating cybercrime. The expertise and resources of these firms can augment the existing cybersecurity measures of banks, enabling them to identify and address potential threats before they develop into serious security breaches. Through this collaboration, innovative solutions can be developed, and a shared understanding of cybersecurity threats can be shared to minimise the overall risk to the banking industry.

Information sharing platforms: Establishing secure platforms for real-time sharing of cyber threat information among financial institutions.

Conclusion

Cybercrime in the banking industry has emerged as a major challenge that requires urgent attention from all stakeholders. The impacts of cybercrime on the banking industry are numerous and varied, ranging from financial loss to reputational damage. As such, banks must adopt proactive measures to prevent cyber-attacks and reduce their impacts. This includes investment in robust cybersecurity systems, employee training, and collaboration with law enforcement agencies. Failure to address the issue of cybercrime could lead to significant losses and damage to the image of the banking industry.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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

Homeschooling in India

By

Sneha Mahawar

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October 12, 2023

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This article was written by Umashankari Das pursuing Diploma in Business English Communication for International Professionals and Remote Workers and edited by Koushik Chittella.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Welcome to the world of homeschooling, where education knows no boundaries and every child’s unique potential is unleashed. Homeschooling is an educational choice wherein parents take charge of their child’s learning from the comfort of their homes. In ancient times, education was focused on hunting, pottery making, and communication, unlike today. Later, people began teaching individually to their children; knowledge was passed on from the elders. Thus, education first started for families, then became public. In this article, let us explore the facts and benefits of homeschooling in India, shedding light on why it is an increasingly viable and powerful educational option.

History of homeschooling

The modern homeschool movement began in the 1970s when John Holt, an educational theorist and supporter of school reforms, began arguing that formal schools’ focus on rote learning (a memorisation technique based on repetition) created an oppressive classroom environment designed to make children compliant employees. Holt called for parents to liberate their children from formal education and instead follow a method today known as “unschooling.”

Soon after Holt’s arguments inspired the first homeschoolers, Holt’s friend and educational theorist Raymond Moore added his voice, arguing that early schooling was detrimental to children and that children should be schooled at home until age eight or nine in order to give them a firm educational, psychological, and moral foundation. The actual practice of homeschooling can vary. The spectrum ranges from highly structured forms based on traditional school lessons to more open, free forms such as unschooling, which is a lesson- and curriculum-free implementation of homeschooling.

Homeschooling in the Indian context

Homeschooling was not a concept in modern India until the COVID pandemic. To have faith-based learning and missionaries who came to India to serve the people in remote areas and did not have access to good education for their children. So, the number of families that embarked on this journey in the past has been severely criticised by their family members and the society around them, looking down on them and even making remarks that are derogatory in nature. This was considered a very Western concept and an out of the ordinary concept, which would alienate the children from socialisation. The stigma was that children could only study and get jobs if they went to school, and home was not a place for this activity.

This concept was very alien until 2017, when the rise of homeschoolers was rapid, as the school system in India was failing to cater to all the needs of the students. The concentration on only a few students who can get good scores, marginalising the average students, the exorbitant cost of formal school education, and the need to send the children to tuition even after sending them to good schools have been a few reasons why parents have shifted their focus to homeschooling. Many parents are looking at alternative options for education.

Benefits of homeschooling

In recent years, homeschooling has gained remarkable popularity in India, offering an alternative to traditional schooling tailored to individual needs. The benefit of homeschooling is that the child can receive an education that’s tailored for the development of individual skills with no peer pressure, and it is even away from the rat race of just getting the scores. The scores the child receives are not what the child is; he/she is much more than those scores. The child is not subjected to one curriculum that fits all moulds, and each family can choose which direction they want their children to take as adults. The child has a life beyond reading and writing. They can pursue a hobby that interests them, which might be a natural talent that a parent can know better and help hone those skills.

Individualised curriculum: This teaching method caters to each child’s learning style, may it be an audio, visual, or kinesthetic learner, and is paced at their own pace without being rushed to be finished in a certain time frame, just to appear for a test. Once the foundation laid is solid, then the learning is fast as the child grows older.
Safe and supportive environment: The major advantage of homeschooling is the creation of a positive and nurturing learning environment that is free from negative influence from a teacher and bullying from peers, which can leave the child distraught and make it difficult for them to have confidence in themselves. Albert Einstein is a classic example of this type of nurturing at home.
Active parental involvement: Parents take full responsibility to educate their children and engage in their learning journey actively. The parents are fully aware of what’s happening in their child’s life and can be a positive influence to help them navigate through the struggles of growing up. This also fosters a lifelong bonding relationship, open communication channels, trust, and mutual understanding. Parents can choose the curriculum that they want to give direction to their child’s learning journey and create a meaningful learning experience. Parents can steer their children to be more independent learners in their higher education, foster a love for learning, and achieve their life goals.

Pandemic – a shift in teaching methods

When the pandemic hit, the schools had to change their modus operandi (mode of operation), from students going to a building to study to screens at home, studying from home. This changed the mindset of the parents, that children can actually learn from home and survive! This made the idea of homeschooling a possibility for many parents, and it is still received with concern.

Now, homeschooling for Indian parents is synonymous with online schooling or private tutoring at home, where a teacher is on the other side of the computer and the child is at home/someone who gives them one-on-one tutoring. They do not understand that the concept means that I, as a parent, am responsible for teaching my child and expanding their learning curve. They have the outlook that they are incapable of the task, and the fear of failure and societal pressures keep many from trying.

Homeschooling – a joy or strife

While homeschooling is a joy to many families who opt for it, they are relieved of the pressure to admit their children at a very young age. It gives them the flexibility and calmness needed to nurture the child in early education and learn through life experiences. Schooling need not be so serious and joy killing we can make it lively and foster bonding between the parents and child.

Homeschooling is more about the parent than about the child. The parent needs to have a roadmap that they are going to use to bring up their child. The best part about this is that we can always review the map, and if something doesn’t work, we can always change it and start again. There are no right or wrong paths to education. It’s just a means to help a child become independent and a responsible citizen in the community, not an end goal.

If the parent is not prepared for the task and chooses this as an option as a modern fad, then it can become a strife for them; they might become unfocused due to a lack of structure and very minimal to no support in the country.

Overcoming challenges of homeschooling in India

Since it’s just gaining momentum in India, one major concern is the socialisation of children. The lack of homeschool co-ops available in other countries, support groups for homeschoolers, and the government needing school IDs for students to participate in sporting events are some of the challenges. So, parents should enrol their children in extracurricular activities where they can engage with like-minded people and foster meaningful relationships.

Common concerns include assessment and accreditation too. Our country doesn’t have a homeschool department that can assess the equivalency of education if the parents choose to take a curriculum from a foreign board. The education department is quite unreachable, unresponsive, and not forthcoming with information, which can lead to a delay in academic year losses. It is still unclear if the children who choose a foreign curriculum to homeschool and receive accreditation from the country in which the curriculum has been accredited will be allowed to take standard undergraduate examinations for college/ universities in India. The common route is using the NIOS or CBSE open schooling curriculum for high school grades.

Conclusion

I, as a homeschooling mom for the past 7 years, strongly believe and have experienced that my children are better placed in terms of their concept understanding and retaining information of the past, as it is paced at their speed. They have had opportunities to come up with projects to engage in meaningful and creative ways to support the community by using their talents and skills. Which they were able to achieve as they did not have the pressure of the formal school system. Hence, by thriving socially and having a strong sense of service and compassion towards others, I have been able to overcome these challenges by using private sports programmes.

Hence, homeschooling is an empowering educational option that nurtures individual potential, academic excellence, and holistic development. With the freedom to tailor education to each child’s needs and the active involvement of parents, homeschooling unlocks a world of possibilities. It equips children with the skills, knowledge, and values they need to thrive in an ever-evolving world.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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

5 effective ways to boost your leadership skills

By

Vanshika Kapoor

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October 12, 2023

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Nelson Mandela? Mother Teresa? Martin Luther King Jr.? Marie Curie? These are four. There are hundreds more you can mention when the conversation about leadership gets going. But, contrary to popular thinking, leadership isn’t for the chosen few. It is for the few who choose it.

But how? Three things: time, deliberate effort, continuous learning. In the workplace? Community? School? With your loved one? Effective leadership will always count big time. And that’s why this article’s here: to give you five ways to improve these vital skills. Let’s get this show on the road.

Table of Contents

Continuous learning and self-improvement

“Learning is a process that doesn’t end until death.”

To this, leaders from the early days and even those today, nod in agreement. If you’re looking to become a leader, your learning process should never come to an end. What you were yesterday was important then. Today, you need to work towards becoming even better.

Listen to any successful leaders, and you’ll hear them speak about the tomes they read before bed, and how they’re humbled to realize that they’ll always be students till the end of the road. They know what’s up in their industry, they read what other leaders write, they’ll not miss a relevant seminar, and of course, they’ll want to hear from you about what they’re getting right or wrong.

Does that sound like you now or tomorrow? You can click here or find other reputable institutions offering courses and practical training on leadership, team management, and key decision-making.

Effective communication

It would be very difficult to get anything meaningful done when your communication’s unclear. Your instructions will fly all over the place, and your team may end up doing what they heard, which may or may not be what you said, meant, or even intended.

So, to boost your leadership skills, you’ve got no option but to learn to speak clearly, listen actively, and show interest in what your team or partner’s telling you.

And when they’re done speaking, ask genuine, clear, and direct questions. If you have to give feedback, make sure your remarks won’t leave them scratching their heads in confusion.

Emotional intelligence

Your team member has just lost a parent and work deadlines are tight. What would you do as the team leader? A brewing internal conflict might jeopardize a crucial case in court. How do you get them to toe the line without prying the team apart?

As a leader, these are common problems that’ll land on your plate now and again. How you handle them will say a lot. Luckily, you have a friend in emotional intelligence (EQ). With high EQ, you’ll find a way to control your emotions while still showing empathy in both situations.

What would that result in? A way forward that’ll give your team member the comfort they need, and a prompt resolution to team squabbles. That’s a crisis shrugged to the side, and maybe a stronger relationship in the team to boot. Self-awareness, self-control, and empathy-building exercises are what you need to bolster your EQ.

Lead by example

It’s the 1900s. Mahatma Gandhi’s out in the street protesting British colonialism in India. What’s he doing? He’s on hunger strikes, getting in and out of prison, and having all kinds of inhuman treatment visited upon him.

Now, you may not be fighting for independence, but the principles of leading by example shine just as bright. As a leader, you need to ask yourself: How’s my mindset? Am I motivating or guiding my team down the correct road? Are my actions matching my words, or is it just preaching water and drinking Vodka?

A true leader doesn’t bark orders. They lead, inspire, and motivate, and the team learns to trust them enough to follow.

Decision-making

Indeed, heavy is the head that wears the crown, but that crown’s on your head, and you have to wear it with pride and a sense of responsibility. Time to let a team member go? It’s a tough decision, but as a leader, it’s on you. Having to choose between options A and B? Again, your call.

But effective decision-making doesn’t come cheap (or easy). Critical thinking? Yes. Risk evaluation? On the menu. Also, you need to make friends with data and facts, and develop a crystal clear understanding of any situation before making up your mind.

And the best part? Leading isn’t about knowing everything. Talk to your team members and others who know more. The perks? Better decisions, and trust from the team.

Give it a shot

Leadership? It isn’t a switch that you flip on and off. It’s something you live. And to live it, you must learn, improve, and adapt every single day.

This article has provided five great tips. But it doesn’t end here. See those experts? They didn’t land there. They, too, learned from the best. It’s your turn now. Get in touch and begin the ascent to the peak.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

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

Landmark Juvenile Supreme Court cases in India

By

Vanshika Kapoor

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October 12, 2023

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This article is written by Monesh Mehndiratta. It provides a brief overview of landmark cases related to juveniles in India which have been decided by the Supreme Court. The cases are related to various issues pertaining to juveniles and their welfare.

It has been published by Rachit Garg.

Table of Contents

Introduction

The young generation is one of the most important assets for a country. Children and youth are the future of society; hence, they must be taught to serve their country by some means. The focus of every government is majorly on young minds and their development, education and training so as to make them productive citizens. However, there are times when these young minds are influenced or manipulated, as a result of which they deviate and commit crimes. Several factors may be responsible for such deviation like social factors, family issues, mental health issues, biological factors, environmental factors, etc.

The conviction of a criminal is an important principle of the criminal justice system. This means that every criminal must be punished for the crime committed. This applies to children and young offenders as well. However, a special mechanism has been created for them. Such young offenders are known as juveniles and are governed under the Juvenile Justice Act (Care and Protection of Children) 2015. They are not treated like adult offenders nor punished with them in order to prevent them from turning into dreadful and habitual offenders. The aim is to reform them with the help of the juvenile justice system and make them sober citizens.

Over the years, there have been many developments in the juvenile justice system with the help of judgements delivered by the Supreme Court. In today’s article, we will discuss landmark case laws with respect to juveniles in the country.

Juvenile Justice Act: An overview

The Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted to amend and consolidate the law related to categories of children covered under the Act. It has been enacted to keep up with the international conventions and provisions of the Indian Constitution related to care, protection, treatment and development of children. The Act recognises two categories of children, namely:

Children in Conflict with Law.
Children in need of care and protection.

Need of the Act

India adopted the United Nations Minimum Rules for Administration of Juvenile Justice, 1985, in 1986 by enacting legislation for the treatment and development of juveniles and naming it the Juvenile Justice Act, 1986. However, with the passage of time, it was realised that new legislation must be enacted, as a result of which the Juvenile Justice (Care and Protection of Children) Act, 2000, was enacted. Rehabilitation of juveniles was the main purpose of this Act.

After the horrific incident of the Nirbhaya Rape Case in 2013, the legislature felt the need to amend the Act with respect to the age of juveniles, their trial, and their treatment. Finally, the Juvenile Justice (Care and Protection of Children) Act, 2015, was enacted and enforced. The current legislation provides for a Juvenile Justice Board to be constituted and established in every district. The board has the responsibility of disposing of the cases related to juveniles and passing the required order. It also provides for the adoption of children who have been surrendered or abandoned by their parents. The Act also emphasises aftercare programs for juveniles and provides for various shelter homes for their treatment, care and development, like observation homes, special homes, children’s homes, etc.

Objective of the Act

The primary objective of the Act is to consolidate and amend the law related to juveniles and children who have been abused or harassed in any manner and need care and protection.
It aims at rehabilitation and reintegration of juveniles back into society.
It also deals with treatment and development of such children.
It provides for different machinery that hears and disposes of cases related to children covered under the Act.
It provides provisions for different shelter homes where such children are kept for their treatment, rehabilitation, and development.

Landmark juvenile cases in India

Sheela Barse v. Union of India (1986)

In this case, a petition was filed asking the court to release children under 16 years of age kept in jails in different states. Information related to the number of existing juvenile courts, shelters, and schools, along with other information related to those children in the prison. In response, the Supreme Court issued notice to the respective respondents and directed the Judicial Magistrates in districts to visit and inspect all jails, shelter homes, observation homes, etc. in their districts and make a report that must be submitted to the court within a week. The major issue in this case was whether the children under 16 years of age who are kept in jails are treated badly and abused or not.

The Supreme Court observed that it is a settled principle in law that children must not be confined to prisons like adult criminals, as it would have harmful effects on them that would affect their growth and development. The following directions were given in this regard:

All the states were asked to bring the Children Act, 1960, into motion in their respective states and ensure that it is followed.
Every prison in the country was asked to maintain jail manuals diligently.
District and session judges in every district in each state were asked to make a visit to prisons at least once every two months.
It is the duty of visiting judges to check whether the children are given benefit of jail manuals.

Pratap Singh v. State of Jharkhand (2005)

The appellant was arrested in this case for being involved in causing the death of the deceased by poisoning. When he was produced in court, he was 18 years of age, and it was alleged that he was a juvenile when the crime was committed. The case was then transferred to the juvenile court, where his certificates were examined, and it was held that he was a minor on the date the crime was committed and hence released on bail. The other party was unsatisfied with the decision, and an appeal was made to the Additional Session Judge, wherein it was held that in order to determine the age of a juvenile, the date of production in court is to be considered rather than the date on which the crime was committed.

This decision was affirmed by the High Court of Jharkhand, which stated that the school certificate is the best evidence in this regard. However, the Supreme Court held the date of occurrence of crimes as the criteria to determine the age of juvenility rather than the date on which such a person was produced before the Court.

Another issue before the Court was determining the applicability of the Juvenile Justice Act (Care and Protection of Children), 2000. The present case was filed under the Juvenile Justice Act of 1986, but by the time it reached the Supreme Court, the 2000 Act had replaced it. Relying on the case of Upendra Kumar v. State of Bihar (2004), wherein it was observed that the purpose of the Act was to help every juvenile, it was held that the 2000 Act will be applicable to the cases pending in any court or authority under the 1986 Act, and those that were still pending when the 2000 Act was enforced and in which the person had not completed the age of 18 years as of 1.4.2001 would be decided according to the 2000 Act.

The Hon’ble Supreme Court also explained the importance of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, also known as the Beijing Rules. These rules are applicable to every juvenile without any discrimination, irrespective of their nationality, caste, race, or religion.

It considers the trial procedure for adult criminals and the rules applicable to them to be unsuitable for juveniles. Imposing restrictions and penalising juveniles must be the last resort.
The rules also recognise the fundamentals of the criminal justice system as one of the rights of juveniles, i.e., juveniles must be considered innocent with respect to prosecution.
Juveniles must be informed regarding the charges and given counselling.
They have a right to remain silent during investigation or interrogation.
Their prosecution is done in the presence of their parents or guardian, according to the rules.
Their right to appeal is recognised under the convention.

Hari Ram v. State of Rajasthan (2009)

In this case, a person named Hari Ram was accused of committing many criminal offences. The issue was related to his age and whether the accused should be treated as an adult or juvenile. After the trial commenced, the Additional Sessions Judge determined the age of the accused to be below 16 years on the date the crime was committed according to the 1986 Act, and so his case was referred to the Juvenile Justice Board in Ajmer, Rajasthan. The High Court, on the other hand, relied on the testimony of his father and medical reports and held that at the time of the commission of the offence, the accused was above the age of 16 and, hence, excluded him from the ambit of a juvenile. However, the 2000 Act increased the age from 16 years to 18 years under which a child would be considered a juvenile under the Act.

The issue before the Supreme Court was which Act would be applicable to the accused. The Court held that all the pending cases would be dealt with according to the 2000 Act after its enactment, so the same Act would be applicable in the present case and the accused would be considered a juvenile.

Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012)

In this case, an appeal was made by the appellate court regarding juvenility on the date the crime was committed. The Supreme Court, on the issue of whether the plea of juvenility should be granted or not, held that the claim of juvenility can also be raised even after the final disposal of a case, which means that it can be taken up at any stage and any delay cannot be a valid ground for its rejection. The burden is on the person making the claim to support the plea of juvenility. It was further observed that the court must not give effect to any technical approach while dealing with such claims. However, the court has the power to reject false and fake claims. The court in this case also observed that the issue of juvenility was not considered at any stage in the trial court or High Court, nor was there any evidence to prove the same.

The court relied on the case of Gopinath Ghosh v, State of West Bengal (1984), wherein it was held that, even though the issue of age determination was not considered, it was mandatory for the court to discuss the question of age of the accused. In this case, one of the accused who was convicted for the offence of murder appealed that he was under the age of 18 years on the date of commission of offence, and hence falls within the ambit of “child” according to the West Bengal Children Act, 1959 and so the issue of determination of age was framed and referred to the court of the Additional Session Judge.

Jarnail Singh v. State of Haryana (2013)

In this case, the accused was charged with taking the prosecutrix away from her parents and committing forceful sexual intercourse with her. During the investigation, she was found in his house, as a result of which he was sentenced to ten years of rigorous punishment along with a fine by the sessions court. The accused, being the aggrieved party, appealed the decision and alleged that the prosecutrix allured him to do so and stayed with him with his consent. Moreover, he argued that it was proven that the accuser was a minor. The Supreme Court in this case held that the rules determining the age of a juvenile under the Juvenile Justice (Care and Protection of Children) Rules, 2007, can be applied in cases related to the Protection of Children from Sexual Offences Act, 2012, as well.

Essa @ Anjum Abdul Razak Memon v. State of Maharashtra Through STF, CBI Mumbai (2013)

This case pertains to the conviction of multiple accused under the Terrorists and Disruptive Activities (Prevention) Act, 1987 involved in the 1993 Bombay blasts. They were also charged with conspiring to commit such an offence. The evidence in this case includes confessions made by co-accused, prosecution witnesses, documents, and the confession of the accused. The major issue before the Supreme Court was to analyse which of the TADA and Juvenile Justice Acts would prevail over the other. It was observed that the Juvenile Justice Act, 2000, has an overriding effect on laws that were in force on its enactment date. On the other hand, TADA has been repealed since way back. On this ground, the Court held that there would be no overriding effect of the Juvenile Justice Act of 2000 on TADA.

Jitendra Singh @ Babboo Singh v. State of U.P. (2013)

This case pertains to a dowry death where a woman was killed and burned by three people, including her husband and father-in-law. However, her father-in-law died while the proceedings were pending in the court, and one of the accused, during appeal in the Supreme Court, claimed that he was a minor, i.e., 14 years of age, at the time of the commission of the offence. The Hon’ble Supreme Court upheld the decision of lower courts to convict the accused in this case but also observed that the accused falls into the category of juvenile under the Juvenile Justice Act, 2000. In order to determine the sentence, the case was referred to the Juvenile Justice Board under the Act. The Court further opined that the objective of the criminal justice system in this regard is to provide rehabilitative and restorative mechanisms to juveniles.

The Court gave certain safeguards that must be complied with in order to avoid such situations in the future:

The Magistrate is under an obligation to record reasons for juvenility of the accused as soon as possible.
A juvenile cannot be presumed to have knowledge about existing laws, especially with reference to socio-economic factors.
The onus is on the magistrate to decide the juvenile, as the juvenile himself cannot be expected to claim it.
In cases where juveniles are involved, their parents or guardians must be involved in the whole legal process.

Salil Bali v. Union of India (2013)

In this case, a person of seventeen and a half years was charged with the offence of rape in a moving vehicle. It was argued that the 2000 Act must be reconsidered on the basis of the gravity and seriousness of offences committed by children belonging to the age group of 16-18 years. The petitioner urged that it is necessary to consider Sections 2(k) and 2(l) and Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, in the light of criminal offences that are committed by people belonging to the age group of 16-18 years. It must also be noted that it was in the wake of the Nirbhaya case.

The Supreme Court in this case discussed two issues:

Whether a juvenile must be freed after he has attained majority even though his sentence has not been completed yet
Whether the age of juveniles under Act should be reduced to 16 years from 18 years

On the first issue, the Court held that there is a misconception under the Act that a juvenile must be freed after he has attained majority, even if his sentence remains. It must be noted that if a juvenile has attained majority during his sentence, he must not be freed because he will have to complete his sentence irrespective of his attaining the age of majority. While discussing the latter issue, the Court observed that the aim of the Act is to provide rehabilitative and restorative mechanisms and help to juveniles. The age of 18 years has been decided on the scientific and psychological grounds that, until this age, juveniles can be reformed and restored back into society.

Shabnam Hashmi v. Union of India (2014)

This case is related to the adoption of children under the Juvenile Justice Act, 2000. A petition was filed in this case by Shabnam Hashmi, a Muslim woman who adopted a girl, requesting that the court recognise the right to adopt as a fundamental right under Part III of the Constitution. She only had guardian rights with respect to the girl she adopted, as adoption is not permitted under Muslim law.

The Supreme Court in this case recognised the right to adopt as a fundamental right under Part III of the Constitution. It was held that parents intending to adopt under the Juvenile Justice Act, 2000, can do so irrespective of their religion, caste, or creed. It was also observed that Muslim law neither recognises adoption nor prohibits a couple from taking care of a child emotionally and financially.

Dr. Subramanian Swamy v. Raju, Thr. Member Juvenile justice board (2014)

This case was filed in the wake of the same Nirbhaya case, in which a woman was brutally assaulted, both sexually and physically, by five people, as a result of which she died. Out of those five people, one was a minor. His case was referred to the Juvenile Justice Board, but the petitioners argued to treat him as an adult and proceed with his trial.

The Supreme Court in this case, while interpreting the Act, observed that the language of the statute is plain and unambiguous and provides a clear legislative intention of rehabilitating and restoring juveniles. For this reason, it has classified people below 18 years of age as juveniles, whose investigation and punishment are done differently as compared to adult criminals. Moreover, the Constitution does not forbid such categorisation, which is based on intelligible differences having a rational connection with the objective sought. Thus, the Apex Court upheld the decision to treat people under 18 years of age as separate under the Act.

Parag Bhati (Juvenile) through legal guardian v. State of Uttar Pradesh (2016)

The accused in this case was arrested for the offence of murder and kept in a juvenile home. His father filed an application regarding his age, stating that he is a minor. This was also supported by various school certificates. However, the Juvenile Justice Board, after scrutinising the certificates, had some doubts regarding his juvenility, and the accused was referred to the medical board for examination and determining his age. The medical board opined that he was a major, and so his case was transferred to the court of the Chief Judicial Magistrate.

The Supreme Court, on the issue of determination of juvenility, held that the principle of juvenile under the Act would be applicable only in cases where the accused is prima facie a minor. The present case deals with a well planned serious offence that depicts the maturity of the accused, and he is not innocent. The plea of juvenility in this case was held to be of a nature to dodge the law in place.

Sher Singh @ Sheru v. State of U.P. (2016)

In this case, appellant was convicted of the offence of kidnapping and raised the plea of juvenility on the ground that, according to his High School Examination (Matriculation) Record, his age was below 18 years of age when the offence was committed. Consequently, he is entitled to the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2015, along with the Juvenile Justice (Care and Protection of Children) Rules, 2007. The said application was sent to the Juvenile Justice Board, which rejected the plea on the ground of a medical report according to which his age was recorded as 19 years at the time of the commission of the crime.

A prayer was again filed by the appellant after four years to declare him a juvenile in the Session trial. However, this was also rejected and dismissed. Subsequently, this order became final. He preferred a writ petition in 2013, which was again treated as infructuous and dismissed. However, it was observed that the right of the appellant to raise the plea of juvenility would not be affected. The court observed that Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, along with Rule 12 of the 2007 rules, puts an obligation on the court to conduct an inquiry and not any investigation or trial. It was further observed that the inquiry related to the determination of age must be completed within 30 days from the date when the application was made. With this, the court can easily seek evidence and obtain matriculation or other required certificates. The court provided a list of documents that must be referred to in this regard:

In absence of matriculation certificate, birth certificate from the school which was attended first must be referred to, or,
Birth certificate from the corporation, municipal authority, or panchayat.
A medical report is required only when the above mentioned documents are not available.

The court further held that the right of a person to raise the plea of juvenility cannot be denied by dismissing or treating the writ petition as infructuous. The plea can also be raised in the criminal appeal, even if it has been raised previously before the board.

Sampurna Behura v. Union of India (2018)

In this case, a writ petition was filed by a social activist named Sampurna Behura and highlighted the problems faced by children and juveniles in observation homes, shelter homes, etc. She directed the attention of the Court towards various provisions in the Constitution which impose a duty on the state government to ensure welfare and development of children and their failure to do so, like establishment of juvenile justice board, medical facilities for juveniles, proper living conditions, juvenile police, etc.

The Supreme Court in this case held that the Act must be implemented by state governments properly according to the needs of children and gave the following directions:

The Ministry of Development of Women and Children must ensure that the National Commission for Protection of Children’s Rights and the State Commission for the Protection of Children’s Rights work properly with adequate staff towards providing better conditions for children.
The Juvenile Justice Board and Child Welfare Committees were directed to conduct regular sessions regarding speedy delivery of justice to the children in conflict with law.
The Commission for Children’s Rights, both at state and national levels, must perform its functions and duties properly and conduct surveys at regular intervals.
The chief justices of each high court were asked to make the environment of court children friendly for the juveniles.
The state governments and union territories must ensure that all institutions for children are registered and that facilities for nutrition, health, and education are given to them.
Members or officers of the juvenile justice board, child welfare committees, special police units for juveniles, child protection units in districts, etc., must be given proper and adequate training to deal with juveniles.

In Re Contagion of COVID-19 virus in Children’s Protection Homes (2020)

A writ petition was filed in this case relating to the protection of children kept in observation homes and children in conflict with the law kept in juvenile homes and shelter homes in lieu of the pandemic during lockdown. The petition was related to the health and safety of children in juvenile homes and foster and kinship care during the spread of COVID-19. The following directions were issued by the Supreme Court in this regard:

The child welfare committees were asked to take preventive steps to maintain the health and safety of children in such homes.
They were also directed to coordinate with district child protection committees and foster care and adoption committees to keep records of children who have been sent back home.
Online help desks and support systems were to be established.
The committees were also directed to keep a check on violence and sexual harassment and ensure that no such incident occurs with children in such homes.
The Juvenile Justice Board was directed to take proactive steps to prevent the spread of the virus in juvenile homes. For this reason, children can be kept in child care institutions for their best interests, health, and safety.
Speedy disposal of cases must be done through online sittings.
Counselling sessions must be given to children in observation homes.
The government must inform the child care institutions about all the measures to be taken in this situation.
Steps must be taken to provide adequate staff in the district protection units and child care institutions on rotational basis, and trained volunteers must be given charge of taking care of children.
The government must ensure that all officers and functionaries perform their duties diligently.
Good quality face masks, sanitizers, hygiene products, etc., are provided to children, and the premises are sanitised properly.
Children must be made aware of the spread of viruses and precautions to be taken.
Social distancing must be practised all the time.
If there are symptoms of the virus, the person must be quarantined immediately.
Families who are involved in fostering children were directed to be updated regarding the prevention of the spread of viruses.
A check must be kept on the health and safety of such families and children.
Directions were issued to persuade children to divert their minds to fun and intellectual activities to avoid stress and anxiety.

Conclusion

The young generation of any country is one of its most important resources. This is the reason every government focuses more on the growth and development of children. The Juvenile Justice Act, 2015, is one such piece of legislation that works for the welfare of juveniles in order to reform them and reintegrate them back into society.

Judicial precedents in India play a major role in shaping the law and justice system. Every case brings out a loophole that may exist in the law, and the courts provide measures against it. The above-mentioned cases have helped shape the juvenile justice system by bringing out the existing loopholes for the betterment and welfare of such children. Various directions and guidelines have been given to the Supreme Court from time to time regarding any problem or guidelines that come before it, whether it is a question to determine the juvenility of such children, their age, or measures during the pandemic. The courts have been able to deal with every situation and uphold the aim and objective of the enactment.

Frequently Asked Questions (FAQs)

Which Act replaced the Juvenile Justice Act, 2000?

The Juvenile Justice Act (Care and Protection of Children), 2015, replaced the 2000 Act.

What is the purpose of the Juvenile Justice Act, 2015?

The purpose of the Act is to consolidate the law relating to children in conflict with the law and make such amendments as provide them with the care, protection, development, and treatment they need in order to rehabilitate and restore them back into society as sober citizens. For this reason, various child care institutions and observation homes have been established under the Act. The Act is based on Article 15(3), Article 39, Article 45, and Article 47 of the Constitution, which impose a duty on the state government to work for the welfare of children and their development, along with some international conventions in this regard.

Who is a ‘juvenile’ under the Juvenile Justice Act, 2015?

The definition of ‘juvenile’ is given under Section 2(35) of the Act. According to the section, a child below 18 years of age is termed a juvenile.

What are the features of the Juvenile Justice Act, 2015?

The Act has the following features:

The Act is based on Article 15(3), 39(e) and (f), 45, and 47 of the Constitution.
The definition of child is given under Section 2(12) as someone who has not completed 18 years of age.
The Act recognises two categories of children:
- Children in conflict with law are defined under Section 2(13).
- Children in need of care and protection given under Section 2(14) of the Act.
The Act provides certain fundamental principles that are the basis of the Act and must be followed under Section 3.
It provides for a juvenile justice board in every district that has the responsibility of hearing and disposing of cases related to juveniles under Section 4 of the Act.
The functions and responsibilities of the board are mentioned under Section 8 of the Act.
The provision granting bail to a juvenile is given under Section 12 of the Act.
It also provides for a Child Welfare Committee to be established in every district by the state government, as given under Section 27 of the Act. The primary responsibility of the committee is to work for the future and welfare of children who need care and protection.
It also provides provisions for rehabilitation and reintegration of children covered under the Act. (Section 39)
The provisions for adoption are given in Chapter VIII of the Act.
It also provides provision for the establishment of various homes where children covered under the Act are kept for their development, treatment, welfare, rehabilitation, and reintegration:
- Observation homes (Section 47).
- Special homes (Section 48).
- Children’s homes (Section 50).

What principles are recognised under the Act?

Section 3 of the 2015 Act provides certain principles that the state and Central governments must consider while implementing the provisions. These are:

A child under the age of 18 must be presumed to not have any malafide or criminal intent.
The Act also recognises the principle that every person must be treated with dignity.
The child under the Act has a right to participate in the proceedings that concern him.
The authorities under the Act must make decisions keeping in mind the best interest of the child.
The Act also provides the principle of responsibility of families, i.e., to care for and nurture children.
The Act provides that every child must be kept safe and not subject to any torture or harassment.
The Act recognises the principle of positive measures to promote the well being, health, and safety of children, along with their development, to reduce vulnerability.
The child must not be subjected to any abuse or harsh words.
It also provides that the rights of children under the Act cannot be waived. This is known as the principle of non-waiver.
No discrimination is allowed against the child.
The child under the Act has the right to privacy and confidentiality during the entire judicial process.
It further provides that institutional care is the last resort with respect to such children.
The Act grants the benefit of deleting all the past records of a child.
It is also based on the principle of opting for judicial process in case of a child in conflict with law.
Principles of natural justice must be complied with at any stage under the Act.

References

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Age of consent in Japan

By

Rachit Garg

-

October 11, 2023

0

This article has been written by Manya Manjari. This article will look at the age of consent in Japan in relation to the laws that exist in Japan, along with assessing the factors surrounding such a peculiar provision. This article also draws a difference between several countries relating to the laws of consent.

It has been published by Rachit Garg.

Introduction

The legal and moral threshold for sexual activity participation is the age of consent, which is a key factor in human rights and personal autonomy. It is a topic of utmost importance because laws and customs differ according to nations and civilisations. The age of consent has important consequences for individuals, families, and society. Japan, a nation recognised for its extensive history, distinctive traditions, and quick technological development, is a country that had the lowest age of consent among all the developed countries, which has now been raised by the most recent amendment in Japanese legislation.

This article explores the complexities surrounding the minimum legal age for consent to sexual activity in Japan. The aim of the article is to shed light on this complex and multidimensional subject by looking at the legal framework, historical context, worldwide comparisons, disputes, protection of minors, the criminal justice system, and cultural impacts.

What is age of consent

Consent is the permission or approval required to engage in sexual activities. In reference to the Rule 70 of the International Criminal Court (ICC), sexual activity without consent is regarded as rape or a different kind of sexual assault in many jurisdictions.

The age at which a person is said to be mentally and legally competent to consent to sexual activities is said to be the age of consent. To protect people from unwanted sexual advances, it is important to establish a legal consent age. An adult cannot claim that sexual conduct with a youngster who is not of legal age for consent was consensual. Sexual interaction may instead be considered statutory rape in many countries.

Scope of age of consent in Japan

It’s important to realise that the concept of the age of consent extends beyond the realm of sexual activity. Other areas of life, like marriage, contracts, and medical decisions, are all affected by this complicated legal concept. To further examine the age of consent in Japan, it is important to discuss the legislative and judicial modifications and significant court rulings that have influenced its interpretation and application.

According to Article 177 of the Japanese Penal Code, the legal age of consent in Japan was 13 years. However, this does not imply that having sex with someone who is 13 or older is completely legal. This is where the idea that consent is not solely limited to sexual activity comes into play. According to Japan’s Child Welfare Act, unless someone is legally married, which requires a person to be at least 16 years old with parental approval, any act of “fornication” with children (defined as anyone under 18 years old) is considered misbehaviour.

Additionally, “obscenity ordinances” have been passed by each of Japan’s 47 prefectures to safeguard children against sexual exploitation. The age of consent is often set at 18 under these legislations, which had essentially elevated the national average until the recent change. The fact that breaking these laws might result in legal action shows how the Japanese system of the age of consent extends beyond simple sexual encounters. It serves to defend children’s rights to make responsible decisions about their bodies and lives, as well as to safeguard them from various sorts of exploitation.

The age of consent has been the subject of numerous judicial and legislative changes in Japan over the years. The 1999 Nagasaki case was an important case that led to a significant reform. In this case, a 40-year-old man who had consensual sex with a 14-year-old girl was cleared of sexual misconduct charges. According to the court’s decision, the girl had given her agreement, which sparked discontent across the country and led to greater enforcement of the obscenity statutes.

The old Japanese stance on age of consent

With minors as young as 13 years old being regarded as capable of giving consent, Japan had the lowest age of consent among developed countries, preventing several incidents from being classified as statutory rape. Regardless of whether they consent, having sexual relations with someone under the age of 13 is forbidden. Furthermore, according to Japanese law, having sex with a juvenile aged 13 to 15 may result in legal repercussions if the perpetrator is at least five years older than the minor.

As per Article 176 of the Penal Code of Japan, the age of consent had been showcased as thirteen years. A person who forcibly performs an indecent act on a male or female under the age of thirteen using force or threats will receive a sentence of not less than six months nor more than ten years in jail and hard labour. The same rules applied to anybody who engaged in an indecent act with a male or female under the age of thirteen.

Evolution of age of consent overtime

The Napoleonic Code, which was introduced to Japan in the late 19th century and is still in effect today, served as the foundation for the age limit for consent. In addition, women had an average life expectancy of 44 years at the time the age of consent was first established, which was about 1907, and it was customary for them to marry and have children at an early age. The age of 13 was deemed appropriate given the prevailing social mores at the time, particularly in light of the fact that the legal marriageable age was 15. This is one of the reasons why the age of consent has not been changed.

However, until roughly 2000, there wasn’t much tight legal oversight of the matter, which resulted in a worryingly high frequency of prostitution involving high school girls. Legislators felt compelled to act after realising the gravity of the issue. As a result, new regulations and ordinances were passed, and throughout the late 1990s, the police cracked down on this problem severely.

Comparison with Asian countries

Different Asian nations have different minimum and maximum consent ages, which range from 13 to 21 years old. Many Asian nations have marriage laws that dictate that people must be married before they can engage in sexual activities. Having sex with someone who is not old enough to consent is called statutory rape and is illegal in your country.

Asia has certain nations that have very young consent ages, such as Japan at 13 at the lowest, China at 14, and Myanmar at 14. Others, such as Cambodia, Syria, and Laos, have placed it at a somewhat higher age of 15.

The age of consent has been set at 16 in a number of nations in the area, including Taiwan, Malaysia, Indonesia, Singapore, Sri Lanka, and Nepal. There are several nations, like Israel and Taiwan, that permit consensual sexual behaviour between people with an age difference of a specific amount.

On the other side, some Asian nations have raised the consent age. Bahrain set it at 21, while South Korea set it at 20. The differences in each nation’s legal, social, and cultural traditions may be seen in the age of consent.

Comparison with Western countries

In North America

The minimum and maximum ages for consent in North America range from 16 to 18, depending on the jurisdiction. The legal age of consent in the United States varies from 16 to 18 years old, with the majority of states placing the age at 16 or 17. near-in-age exemptions, which permit sexual contact between children who are near in age, such as a 16-year-old and a 17-year-old, exist in several states. There are close-in-age exemptions for sexual behaviour between kids who are near in age, ranging from 12 to 16 years old, in Canada, where the age of consent is 16.

In South America

The minimum and maximum ages for consent in South America range from 13 to 18, depending on the nation. Although there are stringent restrictions banning sexual activity with adolescents under the age of 14, Brazil’s legal age of consent is 14. The age of consent is 18 in Chile and several other South American nations.

In Africa

In Africa, the legal age of consent ranges from 11 to 18 years. The age of consent is as low as 11 years old in several nations, including Nigeria, making it one of the lowest ages in the world. Other nations, like South Africa, have a 16-year-old minimum age for consent. In Turkey, the legal minimum age of consent is 18, and having intercourse with a juvenile under 18 is against the law.

In Australia

While some jurisdictions have “close in age” exemptions that permit sexual contact between people who are close to age, the legal age of consent in Australia is 16 years.

In Europe

In Europe, the legal age of consent varies from 14 to 18, depending on the nation. The legal age of consent in the majority of European nations is 16. However, in certain nations, if the sexual partner is also a juvenile, the age of consent might be decreased to 14 from 16 years old. It is important to note that there are laws that forbid sexual behaviour with children in some situations, such as when the kid is in a dependent position or the offender is in a position of authority, even though the age of consent is lower than 18 in some nations.

In Russia

The legal age of consent in Russia is 16. However, engaging in sexual activities with a kid under 18 is punishable by law. Yet, due to a lack of funding and victim assistance, the Russian government has come under fire for not doing more to combat child sexual assault.

What brought forth the change

A Justice Ministry panel in Japan has proposed raising the age of consent from 13, which is now the lowest among the G7 nations, as part of a series of changes to the penal code. Making voyeurism a crime and defining the criteria for rape charges are two other suggestions made by the group.

Concerns regarding the limited definition of permission in Japan’s current statute have been voiced by activists and survivors for some time, prompting the suggestion to raise the age of consent. Over time, there have been instances where judges and prosecutors have used the law in a way that made it difficult for survivors seeking justice.

Various incidents that showed the faulty implementation of the existing law made the necessity for change clear. For instance, in a 2014 Tokyo case, a guy was acquitted despite having sex with a 15-year-old girl who was refusing to cooperate. The girl’s capacity to resist was not considerably hindered, according to the court, and the low age of consent regarded her as an adult. Similar to this, public uproar increased in 2019 when many sexual assault trials ended with the accused perpetrators being cleared.

In one case, a man had intercourse with an unconscious lady against her will, but the court viewed her earlier involvement in a drinking session and her brief response as indications of consent.

These incidents, coupled with intense public outrage, resulted in retrials where the perpetrators were finally convicted. The Flower Demo movement was started by activists to show support for those who had been sexually assaulted and to call for reform of the judicial system.

The One Voice Campaign organised by the Spring is only one example of the several NGOs, demonstrators, and politicians that have worked together to raise awareness and demand the required changes to the penal code. These parties have emphasised the significance of a survivor-centred strategy for combating sexual assault and fought for legislative adjustments that give survivors’ rights and safety first priority.

The proposed changes aim to fix the problems with the current legislation and redefine rape. By criminalising voyeurism and establishing more precise parameters for rape case prosecution, they hope to bring Japan’s age of consent in line with international norms. These modifications are meant to start a discourse about consent and non-consent in Japanese culture, which is the need of the hour.

Recent developments in the age of consent laws in Japan

The inconsistencies between national and local regulations not only cause confusion but also run the risk of subjecting children to abuse and exploitation. It was believed that things would change as Japan continued to struggle with these problems and that stronger and more reliable protections for kids would result.

So finally, the Legislative Council of the Ministry of Justice in Japan presented a draft proposal for the revision of the Penal Code involving sex offences during a meeting on October 24, 2022. The age of consent would be raised under the proposed plan from 13 to 16 years old, with some restrictions. According to the idea, sexual conduct involving minors between the ages of 13 and 16 would only be illegal if the offender was “five years or more” older than the victim.

According to the Ministry of Justice, this need for an age gap intends to protect consensual sexual actions between people who are close in age from being punished by the law. This part of the legislation is modelled after identical clauses in the Age of Consent statutes from other nations. For these reforms to advance, the new law was to be passed by June 21, 2023. However, it was passed on June 16, 2023. The primary changes have been brought forth relating to the definition of “rape”. It was previously defined as sexual intercourse or indecent acts performed by force, assault, intimidation or taking advantage of an individual’s unconscious state or inability to resist. The new definition however goes beyond the scope of just sexual intercourse, it also includes non-consensual sexual intercourse and this change is important at a place where consent is still not properly understood.

The new law also gives out eight scenarios of “countless sex crimes” which were before challenging for the victim to establish or prove but now, the scenarios would be assisting the victim in proving their stance in case of any confusion. These situations are forced sexual intercourse, assault, any consequence of refusal, astonishment, any violent sexual activity under the influence of alcohol, drugs, fear and intimation. The revised law would acknowledge these and hence the victims who were unable to resist previously due to shock, psychological reactions, social and economic status of their attacker now have the ability to use force to save themselves.

The maximum sentence for the crime of rape under the new legislation is 15 years of jail. It remains illegal to have sex with a minor between the ages of 13 and 15 if the offender is five years older than the victim. Furthermore, by making “upskirting” or photo voyeurism illegal, a new crime has been created. As a result, it is now illegal in Japan to take, publish, or possess images of someone’s genitalia without their express consent. Additionally, it is unlawful to take pictures of people being coerced into sexual postures without their consent. The legislation specifically forbids the sexual filming of youngsters without a legitimate purpose.

Offenders will face a maximum three-year prison sentence or a fine of 3 million Japanese yen, or around 17.20 lakh rupees. Protections for minors are also included in the modified statute. It makes “grooming,” which entails developing a bond with a youngster in order to take advantage of or control them, illegal. Additionally, it is now illegal to request to meet with juveniles under the age of 16 for sexual purposes or to obtain explicit photos from them.

Landmark cases

The Junko Furuta Case (1989)

Facts

In this case, a sixteen-year-old girl named Junko Furuta was abducted by a group of four teenagers. She was then subjected to several acts of violence, sexual assault, and prolonged torture for 44 days. She was also raped over this period several times and was eventually burned alive and her body was encased in concrete. This case gained extreme media attention and is regarded as one of the most brutal crimes of Japan. Regardless of crimes of such heinous nature, due to the laws in Japan revolving rape, the perpetrators were sentenced to imprisonment and now roam free.

Issue

There were several issues raised on this topic. The most important ones were why the victim did not try to mitigate the treatment given to her and her involvement and unstable mental capability.

Judgement

The perpetrators were sentenced to neither death sentence nor even life imprisonment as they were all under 18. The court taking the view and accepting the arguments from the defence, gave its judgement based on how there was a lack of mitigation of subjected treatment from Junko’s side and how she could have run away or was involved in this situation as she was mentally unstable. They were sentenced to five to twenty years of imprisonment as per their involvement. This judgement threw light upon the deep-rooted dogmatic and conservative laws on crime done against women. This judgement is one of the most criticised judgments of all time.

Nagoya Case (2020)

Facts

In this case, the victim was sexually assaulted for several years by her own father. This was going on since the victim was in the second year of junior high school. She could not do anything as she was under the psychological control of her father. Due to the previous incompetent rape laws, the father was acquitted by the District Court because it could not be proven by the victim that reasonable resistance was not used by the victim. The case went up to the Supreme Court.

Issue

Did the district court falter in its decision to acquit the father?

Judgement

The Supreme Court convicted the father, and he was sentenced to ten years imprisonment for “quasi-forcible intercourse” with his daughter. The court was of the opinion that the daughter had never consented to be violated and was being controlled and abused by her father. She could not do anything as there was a state of extreme fear of doing anything against her father. This decision was celebrated, and it led to several protests and campaigns, which ultimately resulted in the justice ministry of Japan rethinking the rape laws of the country.

Analysis

The cases mentioned above show an evolution of rape laws in Japan. The first case was a horrific case that is regarded as one of the most painful treatments ever subjected by a human. Despite being subjected to forty-four days of torture, the girl did not get her justice as her perpetrators roam free today. Instead, by taking the defence of the age of the perpetrators and her improper attempts to show resistance, the perpetrators were spared from their crimes with very disproportionate punishments. On the same lines, in the second case, the perpetrator himself sexually harassed his daughter for several years and was acquitted by the district court. The supreme court later overturned the decision, but the father was punished only for ten years.

This can be used to demonstrate how vague, narrow and insufficient these laws were. Apart from the Junko Furuta case to the Nagoya case, several other rape cases and movements and protests in Japan escalated the changes, which finally led to changes in the Japanese Laws for rape and the Age of Consent, which were of significant concern for the cases.

Over time, the victim blaming and social stigma related to the Age of Consent and Rape victims have decreased along with sufficient support for victims, which played a major role in bringing forth the change. From the heavy burden of proof placed on the victim, societal biases, and a lack of sensitivity, the case of Junko Furuta arose, but with the Nagoya case as a precedent and movements like One Voice Campaign, even the global #Metoo Movement, the law was finally changed to pave the way for a better, more secure, certain and comprehensive law for disposal of justice to victims.

Conclusion

In conclusion, the age of consent, also known as the legal and moral bar for engaging in sexual behaviour, is a critical component of human rights and individual freedom. The legal age of consent varies between cultures. However, this article has concentrated on Japan because of its long history and distinctive customs. Among affluent nations, Japan presently has the lowest consent age, with adolescents as young as 13 regarded as capable of providing permission. Recent events have highlighted the need for revision as concerns about the ambiguous meaning of consent were finally changed, and now Japan no longer remains a country with the lowest age of consent.

Frequently asked questions

Can minors engage in sexual activities in Japan?

Yes, minors over the age of thirteen and do not have an age gap of more than five years can engage in sexual activities with prior consent.

For instance, if a minor aged 14 has sexual relations with another aged 15 or 16, with prior consent, it will not count as rape.

When does the new law become effective in Japan?

The new bill in Japan to raise the age of consent from 13 to 16 has come into action on June 25, 2023. It has been passed by the Diet, i.e., the Japanese Parliament.

What are Japanese Prefectures?

Municipalities make up prefectures, which are regional entities in charge of more comprehensive regional governance. Japan currently has 47 prefectures.

References

Japan’s Legal Age of Consent: What You Need to Know”, Tokyo Weekender, 2018
Source: “Age of Consent in Japan”, AgeOfConsent.net, 2019
Japan’s Age of Consent Has a Problem”, The Diplomat, 2017
https://www.northeasternchronicle.in/news/junko-furutua-the-worst-murder-case/
https://www.icmec.org/wp-content/uploads/2017/08/Japan-National-Legislation.pdf
https://evaw-global-database.unwomen.org/fr/countries/asia/japan/1908/penal-code-1908
https://thediplomat.com/2023/07/after-116-years-japan-raised-age-of-consent-for-sex-to-16-what-took-so-long/
https://www.jluggage.com/blog/law/what-is-the-age-of-consent-in-japan/
https://www.icc-cpi.int/sites/default/files/Publications/Rules-of-Procedure-and-Evidence.pdf
https://www.cas.go.jp/jp/seisaku/hourei/data/PC.pdf
https://pressto.amu.edu.pl/index.php/cl/article/view/6528
https://www.moj.go.jp/EN/index.html

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All about the procedure of returning a plaint under CPC

By

Sneha Mahawar

-

October 11, 2023

0

This article has been written by Jashandeep Kaur pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

A complaint is a written statement filed by the plaintiff before a court that has jurisdiction. It is filed to claim relief by the plaintiff. Therefore, it is very essential that the complaint be filed, disclosing all the causes of the actions and filed under the accurate jurisdiction of the court. Otherwise, the appellant may face rejection or return of the complaint, as the case may be. In this article, we will discuss the return of plaint. Under Order 7 Rule 10 of the Civil Procedure (Amendment) Act, 1976, the return of a plaintiff on the basis of incorrect jurisdiction is contained.

Return of plaint

The return of the complaint is covered under Rule 10A of Order VII. Rule 10A and 10B were added to Order VII by the Civil Procedure (Amendment) Act, 1976.
There are circumstances where the plaint is filed wrongly; it may lack some legal formalities or the court under whom it is appealed may not have jurisdiction to proceed over that case.
So in these situations,the court has the power to return the complaint and may advise filing it under the correct jurisdiction.

Office Equipment vs. The Pradeshiya Industrial and… (1997)

In this case, the petitioner filed a petition before the High Court of Delhi to appoint an arbitrator from this court for adjudicating disputes between the parties.
The respondent filed a reply that the tender of the petitioner was accepted by him at his office in Lucknow so accordingly, the Delhi High Court has no jurisdiction to proceed over it.
Therefore, it was held that the court in Lucknow has jurisdiction to try and decide the proceedings. The complaint, under Order 7 Rule 11 of the Code of Civil Procedure, was returned to the plaintiff.

Grounds for returning a plaint

The court can return the complaint only on one ground, i.e., its jurisdiction.

Jurisdiction of courts

Jurisdiction means any authority conferred by the law upon the court, tribunal or judge to adjudicate the dispute between the parties. Different courts have different powers, rights, authority and territorial limits to exercise.

Section 9 of the Code of Criminal Procedure deals with the jurisdiction of the courts. It says all civil cases are triable under this section unless they are barred.

Territorial jurisdiction

Territorial jurisdiction can be explained as:

The local courts under whose further immovable property lies will deal with issues related to that property. Issues such as rent, partition, sale, redemption rights, etc
If the property is situated within more than one court’s jurisdiction, the case can be filed under either of the courts under which that property lies.
In the case of movable property, either the court under whose jurisdiction the damages have occurred can proceed with the case or the court under whose jurisdiction the defendant resides can proceed with the case.
In cases of matrimonial disputes, the particular court has jurisdiction either where the dispute arises, where the plaintiff resides where respondent resides or where the marriage was solemnised.

Pecuniary jurisdiction

Section 15 of the Code of Civil Procedure says that every case should first be filed with the lower court, which is competent to try such a case. The cost amounting to suits is tried accordingly by the court, which has the power to do so.

Subject matter

There are courts that are authorised to try some particular cases only; they can not hear all kinds of cases. Such as family courts have power to proceed over issues related to Hindu law, matrimonial cases, etc.

Jurisdiction in respect of a person amenable to military law.

Procedure for returning a plaint

Order 7 Rule 10

It describes the procedure for returning a complaint. The judge or the court can return the complaint only on the grounds mentioned under Sections 15 to 20 of the Civil Procedure Code. While doing so, the judge has to mention the following in his order.

The date on which the petition is presented and date on which it is returned should be mentioned on it.
The names of the parties presenting the complaint should be mentioned.
A brief statement is given to the plaintiff, mentioning the reasons for returning it.
The plaintiff can also be returned by the court on the request of the plaintiff if the court is satisfied.

Nanikutty Amma Devanki Amma and others vs. Krishnan Kochunarayanan Nair and Ors. (2007)

In this case, respondents 1 to 3 filed a complaint in a district of Thiruvananthapuram, showing that the court of Thiruvanthapuram has jurisdiction to exercise the suit related to their property. The petitioner, in order of protection, filed an EX.2 written statement and challenged the complaint of the respondents, stating that the properties are situated within the local limits of the court at Attingal and the valuation showed that it was only Rs. 25,000. Therefore, only the Munsiff Court has jurisdiction to exercise this suit.

Therefore, the plaint filed by respondents 1 to 3 was returned by the district court by endorsing “returned for want of jurisdiction and the written statement filed by the petitioner was also given to them.”

Shaw Wallace and Co. Ltd. vs. M.P. Beer Products Pvt. Ltd. (2008)

In this case, the plaint was also returned by the Delhi High Court on the basis of a lack of jurisdiction. The Court found that Shaw Wallace had no registered office in Delhi. Their office is in Mumbai, and M.P. Beer products are in Madhya Pradesh. Hence, no cause of action was raised in Delhi.

Rule 10A

Rule 10A of Order 7 of the CPC defines the powers of courts to fix a date for the appearance of the plaintiff in his court after he returns his/her complaint in the following cases:

1.Intimation: Where the court feels that it does not have jurisdiction to try the suit, it shall inform the plaintiff of its decision before doing so.

Application

After getting the notification for return of the complaint, the plaintiff may submit an application to the court mentioning the name of the court in which he intends to file the complaint once it has been returned.
He may pray to the court to fix a date for his appearance in the particular court.
Requesting the court to send notice of the date to both parties.

3. Court’s obligation- If the plaintiff files an application regarding date fixation and serving notice, then the court, before returning the plaintiff, should:

fix a date for both parties to appear before the court, which has jurisdiction, and
give notice of date of appearance to both parties.

Under subrule 4 of rule 10A, it is not necessary to serve summons to the defendant for appearing before the court that returned the complaint, unless there is a reason to do so.

Notices served by the court to appear are considered summonses.

Manipal University vs. Manipal Academy Of Health (2018)

In this case, the issue arises that, is it correct for the trial court to grant the plaintiff’s application for the return of the plaint without adhering to the steps outlined in Order 7 Rule 10A of the CPC? and whether the trial court has been stripped of its authority to hear the case.

Therefore, it was held that this issue of the rule of convenience can not be stretched too far to allow reliance on extraneous factors while deciding the question of geographical jurisdiction. The Apex Court says the court is invalidated because the trial court failed to follow the instructions of subrule 2 of Rule 10A of Order 7 of CPC, which amounts to procedural irregularities.

Saleem Ahmed vs. Khursheed (2016)

In this case, the trial court did not follow the procedure according to Order 7 Rule 10A of the CPC.

Rule 10B – Transfer of suit

This rule empowers the court to transfer suit to the proper court.
When the plaintiff files an appeal against the order of return, the court may direct the plaintiff to file a complaint with the court, which has jurisdiction to try that suit and may also fix an appearance date for the same.
The court shall do this without being prejudiced.

De Novo trial

Trial de novo means a fresh / new trial in the same case but before a different trial court. The whole case is retried as if it had never been tried earlier.

M/S Exl Careers vs Frankfinn Aviation Services Pvt. … (2019)

In this case, the issue was wheather the trial in the court where the complaint is now filed starts De Novo after its return under Order 7 Rules 10 and 10A or wheather it is to be continued from the same stage at which it was returned.
The plaintiff filed a suit for recovery against Frankfinn Aviation Services Pvt. at the Girgaon court. The defendant filed an application saying that the action was caused in Meerut instead of Gurgaon and that the defendant was not a resident of Gurgaon.
It was held that Gurgaon court does not have jurisdiction to try this case and parties should confer exclusive territorial jurisdiction in Delhi courts. Hence, the revision petition was allowed.

Conclusion

Therefore, from the above discussion in this article, we have learned that it is necessary to file a complaint in an accurate jurisdiction. If the complaint is filed in another court, then the plaintiff may have to face some delay in justice. If the plaintiff, without lack of knowledge, by mistake or for any other reason, falls within the wrong jurisdiction, then that court has the power to return the application at any stage of its proceedings and may direct it to the accurate court, appointing a date of appearance for the party. The jurisdiction of the court can be seen from sections 16 to 20 of the civil procedure code. The returned plaint is not considered a rejected plaint or null/void it has validity. The De Novo facto applies to the returned plaint. Any complaint that was returned by one court can be started afresh or continued from the same stage of the proceedings.

References

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An analysis of key functions of HR

By

Sneha Mahawar

-

October 10, 2023

0

This article was written by Kalpana Verma pursuing Diploma in Labour, Employment and Industrial Laws for HR Managers and edited by Koushik Chittella.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The HR department plays a vital role in any organisation, whether it is a small or a large-scale firm. It is just like the sun, and other departments are like planets that revolve around the sun. Although HR functions vary from company to company and depend on the business model of a firm, there are seven key functions that are similar in any organisation. These functions are end to end recruitment, onboarding, payroll management, policy formation, training and development, employee grievance management, and administrative responsibilities.

Seven key functions of HR

End to end recruitment

If you’re starting your career as a HR professional, you have to learn the foremost thing about this department, which is how to recruit talent for your company. Before learning how to recruit the right people at the right time, you need to build the goodwill of your company. This can be done in the following ways:

The company’s website– It is the first thing that a good candidate will search for. A company’s website must be attractive, professional, and informative. It should clearly state the company’s business model and its services, it should have a good SEO rating, and so on. Although it is the responsibility of the IT department of the company, HR must have basic knowledge of it in order to get it done from them.
The company’s GMB (Google My Business) account– The GMB must be regularly updated. It consists of the company’s address, contact numbers, working days, pictures or videos of infrastructure, employees, events, recognition, reviews, and fun activities. These are very basic things, but their impact is very beneficial for any organisation. This is to give you an edge over your competitors and attract quality people to apply to your company. In this era of digitalization, staying updated on the internet and all social media platforms is not significant, but it has become a necessity.
Social media presence– The number of active social media users in India is over 1.2 billion. It becomes very important to be present on all social media platforms for any company to enhance their business digitally.

After building a presentable online presence, HR should start the recruitment process. If one follows the steps in sequence, they will end up hiring talent for his/her company. Those steps are:

Step 1 – Designing job descriptions

Designing a job description (JD) should be done in a way that the right candidate can apply immediately after reading it. An appropriate JD consists of basic information like designation, location, salary, expected date of joining (DOJ), roles and responsibilities, and the most important element, a brief about the company’s business.

Step 2 – Selection of job portals

The right selection of job portals to post your job profiles is the next important task. It totally depends on your company’s investing capacity; otherwise, there are some free job posting options that are also available. For instance, on LinkedIn, you can post one free job post. If your account has good connections and you’re active on LinkedIn, this job posting can bring you a good number of resumes. The second most popular portal is Indeed, where you have both paid and unpaid options to post your jobs. If you use the right keywords, the algorithm will work pretty well to bring in an ample number of resumes, even for an unpaid option.
For more CVs or job postings of different profiles, you can go ahead with a paid option, which is very nominal.

Step 3 – Usage of platforms

Now don’t just wait for resumes; put your efforts into finding the right candidates. How will you do that? Use platforms like LinkedIn and Hirect. There are many other social platforms where you can directly message candidates. There are some limitations for every portal; adhere to them, and you can send 10-20 messages in a day, which eventually gives you good results.

Step 4 – Screen and schedule

Last but not least, screen the resumes you’ve received that fit your job profile parameters. And schedule an interview call either online or in-person.

Onboarding

Onboarding is the first process after hiring candidates to make them employees of the company. It includes orientation, which is the completion of paperwork and a background check on an employee, teaching them the business model of the company as well as making them aware of the company’s structure, culture, vision, mission, and values. This process can take 2 to 7 days, according to the profile, and it varies from company to company as per their business scale.

Onboarding is very important on the HR part because you, as HR, help a new employee to gel up with the new system and leave a lasting impact in order to bring enthusiasm and make them feel proud of joining your company. Many companies give welcome kits to new hires, celebrate their orientation as an event, and post it on social platforms. It helps companies enhance their goodwill at a fast pace.

Payroll management

Managing payroll is one of the significant functions of HR. It is a process of employees getting paid after calculating the wages of the month, which consist of employee database, bonus & gratuity, salary and increment, pay slip, leave & attendance, income tax, provident fund, employee state insurance, overtime pay, loans, advances, professional tax, and the National Pension Scheme (NPS). It covers everything from putting employees into payroll software to giving them their pay slips.

There are simple steps to payroll management in the system

Create employees master
Create payroll master
Create pay heads
Create salary details
Process payroll

Payroll software has been used to make payrolls comply with federal/state government taxes. Processing payroll can take a few hours; the more manual you make, the longer it will take, and the strength of the employees also matters.

Policy formation

Policies are the rules and regulations of an organisation that help run the organisation in a structured way. There are some basic policies that every company forms, such as the Leave & Time Off Policy, Recruitment Policy, Anti-Harassment & Non-Discrimination Policy, Employee Conduct Policy, Employee Safety Policy, Social Media Policy, and Disciplinary & Termination Policy. These policies should adhere to local, state, and Central Government laws. Every organisation needs policies to provide guidelines and a structured framework for its employment relationships.

Policies should be made based on the following guidelines:

Compliance with all local, state, and central government laws.
Clear, specific, and flexible enough to meet the required changes from time to time.
Keep in mind the vision, mission, and values of your organisation.
Keep in mind the purpose and objective of the organisation and form policies to attain all those requirements
Communicate the policy to the entire organisation via any mode of announcement.
Ensure the implementation and do training of employees in understanding it if required.

Training and development

Training and development is one of the most important functions of HRM. It starts right from the onboarding process and keeps on continuing to set up a systematic structure of the business, ensure policy adherence, and reunite all energies towards achieving the common goal of an organisation. It focuses on upskilling people and making them aware of all policies, work, technicalities, and so on.

The training takes place at different stages or levels; for instance, the onboarding or executive level of training will be different from the managerial level of training. We can say that training people is like introducing them to concepts for the first time, whereas development refers to upskilling the existing employees to achieve the desired goal, either behavioural or organisational. For example, training methods used for lower levels are job training,technical training, soft skills training, internship training, training via the process of job rotation, etc. and training at higher levels are lectures, group discussions, case studies, role playing , conferences, etc.

Training helps in identifying the talents within the organisation to whom higher responsibilities can be given for the further growth of individuals and the company. It reduces the habit of spoon feeding juniors, and managers can utilise time more efficiently and invest it in doing productive things.

Employee grievance management

A grievance is a formal employee complaint filed at the time of non acceptance of any policy by them, and office politics can be another reason for it. Some of the most common grievance procedures are individual grievance, group grievance, union grievance, and policy grievance.

The steps involved in handling employee grievances are:

Step 1 – Meeting with managers

It is the role of HR to suggest an employee talk to their manager before filing any formal grievance. It usually helps when people discuss over a table; it resolves the query most of the time.

Step 2 – Formal written grievance

If the grievance is not resolved after discussing it with the manager, it becomes significant to tell the employee to write a formal email to the management or higher authority about the whole matter with specifications like date, venue, incidence, etc.

Step 3 – Investigation

To conduct a formal investigation, you may need to interview the employee who filed the grievance as well as anyone else who was involved. Collect any evidence you can to help you come up with a resolution (e.g., email chains, witness testimony, receipts). You may also choose to appoint an independent investigator to conduct the investigation to keep the process fair and unbiased. Sometimes the police can also be involved in matters like sexual harassment, theft, physical fights , etc.

Step 4 – Resolution

After the investigation, the higher authority, HR, and managers announce a fair resolution verbally and in writing and try to do justice after finding the truth. If it’s still not satisfactory to the employee, matters go to an external party or with legal officers after the consent of both employee and employer.

Administrative responsibilities

Administrative role of HR vary at different levels of the position, like HR executive, who handles more ground level admin job like keeping record of employee, ensuring safety compliance at workplace, checking on basic amenities, maintaining database, compiling reports, assisting HR Managers in sorting data, assisting payroll department by providing relevant employee information, arranging travel accommodation and processing expense forms, answering employees queries about HR-related issues, etc. Whereas at the managerial level, the responsibilities are:

Preparing HR documents like employment documents, HR guides, etc.
Create an organisational chart.
Liaise with external partners, like insurance vendors, and ensure legal compliance.
Create regular reports and presentations on HR metrics.
Publish and remove job ads.
Develop training and onboarding material.

Conclusion

The importance of HR functions can be clearly seen and observed in many firms across the world. It can be said that HR is just like the sun, and other departments are like planets that revolve around it. But HR functions also depend on the type of industry and size of the firm. All the functions mentioned above are the most common and important responsibilities of HR. For the details of any functions mentioned above, refer to that single function over the internet. By following the seven steps mentioned above, any firm can successfully manage its HR functions.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Anticipatory breach of contract

By

Vanshika Kapoor

-

October 10, 2023

0

This article has been written by Sarthak Mittal. The article delves into the doctrine of anticipatory breach of contract. It focuses on the essentials, effects, and statutory provisions related to the doctrine of anticipatory breach of contract. The article also discusses the remedies available in case of an anticipatory breach of contract.

It has been published by Rachit Garg.

Table of Contents

Introduction

Lord Stowell, in the case of Dalrymple v. Dalrymple (1811), very succinctly held that “contracts should not be the sport of an idle hour, a mere matter of pleasantry and badinage, never intended by the parties to have any serious effect whatsoever.” The given statement brings out the seriousness behind the legal relationships that are created by contracts. It helps to highlight the primary object of contract law, which is to ensure that the contracting parties abide by all the duties imposed upon them by the contract and to provide for remedies in case of breach of the given duties. Contract law, being based on principles of equity, does not only provide remedies for actual breaches but also remedies where the breach of contract is anticipated by the promisee. Thereby, contract law does not expect the promisee to wait until the actual date of performance of the contract to witness the inevitable breach of contract. In such a case, an important doctrine in contract law, namely the doctrine of anticipatory breach of contract, is invoked, which empowers the promisee to seek the remedy before the actual date of performance in cases where the promisor has, due to his wilful conduct, made the contract impossible to be performed on the actual date of its performance.

What is a breach of contract

A contract consists of a promise or a set of reciprocal promises that are legally enforceable by law. Section 37 of the Indian Contract Act, 1872, provides that it is mandatory for parties to perform the promise or at least offer to perform the promise made by them in a contract. Thereby, when any of the parties refuses or fails to fulfil the promise made by him, it is said to be a breach of contract. The contract generally specifies a time period within which the promise is to be performed, and if there is no such time period provided, then the promise is to be performed within a reasonable period of time. However, on the expiration of such a period, if the act or abstinence promised in the contract remains unperformed, the contract is said to be breached.

What is an anticipatory breach of contract

The doctrine of anticipatory breach of contract is based upon equity. It enables the promisee to seek a remedy before the actual breach occurs. An anticipatory breach of contract occurs when the promisor creates a self-induced impossibility for the performance of his promise. The promisor, through his conduct, creates such circumstances that it would become obvious to any reasonable person that the contract has become impossible to be performed on or till the actual date of its performance. In the case of Hochster v. De La Tours (1853), the plaintiff engaged the defendant to accompany him on a tour commencing from 1st July, 1832. The defendant refused to accompany the plaintiff as agreed one month before the commencement of such a tour. In the suit brought against the defendant, the defendant contended that a suit for breach of contract cannot be brought before the actual date of commencement. Lord Campbell in the given case held that it cannot be laid down as a universal rule that, where a contract is for the performance of an act in the future, the suit cannot be brought until the date of the performance arrives. The suit can be brought before the date of performance if the promisor refuses to perform his part before such a date or when he creates such circumstances that disable him from performing the contract on the actual date of performance. Thereby, it was made clear that in cases of anticipatory breach of contract, the suit can be instituted before the actual date of performance has arrived.

As a general rule, to file a suit, we need a right, and that right has to be infringed to give rise to a cause of action. When such a cause of action arises, a suit can be filed. In the case of contract law, the parties create their contractual rights and obligations, which are given the force of law by the contract law. In such cases, the suit is filed when the contractual right of a person is infringed or when an obligation cast upon a person is left unfulfilled on the date prescribed by the contract for performance. The doctrine of anticipatory breach of contract is an exception to the given rule. Herein, the promisee becomes sure that the contract is going to be breached on the date of performance due to the promisor’s refusal to perform or due to his self-imposed inability to perform the contract. Equity dictates that the promisee cannot be made to sit and spectate until the actual date of performance while he incurs loss due to the promisor’s conduct. Thereby, in the case of anticipatory breach of contract, the suit is brought before there is an actual accrual of the cause of action; however, to institute a suit, it must be proved that the cause of action would have surely arisen on the actual date of performance prescribed by the contract.

Statutory provisions related to anticipatory breach of contract

In India, the doctrine of anticipatory breach of contract has been embodied in Section 39 of the Indian Contract Act, 1872, and Section 60 of the Sale of Goods Act, 1930. Both Sections provide that the consequence of the anticipatory breach of contract will be to make the contract voidable at the instance of the promisee, wherein the option of repudiating the contract can be exercised by the promisee until the actual date of performance. Section 39 of the Indian Contract Act provides that the promisor is said to have caused an anticipatory breach of contract when he refuses to perform his promise in its entirety or disables himself from performing the promise in its entirety. On such conduct by the promisor, the promisee can either repudiate the contract or continue with it. If the promisee expressly or impliedly acquiesces to the continuation of the contract, he forfeits his right to repudiate the contract.

The Indian Contract Act is a general law applicable to all kinds of contracts, whereas the Sale of Goods Act is a special law applicable only to contracts related to the sale of movable property. Section 3 of the Sale of Goods Act provides that the provisions of the Indian Contract Act will supplement the provisions of the Sale of Goods Act in so far as they are consistent with each other. Thereby, even if Section 60 were to have been omitted from the said Act, the doctrine of anticipatory breach of contract would have applied through Section 39 of the Indian Contract Act. Section 60 of the Sale of Goods Act provides that where, before the date of delivery, either party repudiates the contract, the other party has the option to wait until the date of delivery, or such party can elect to treat the contract as rescinded and sue for damages even before the date of delivery arrives. Both the provisions, namely, Section 39 of the Indian Contract Act and Section 60 of the Sale of Goods Act, are pari materia to each other.

Essentials of anticipatory breach of contract

Section 39 of the Indian Contract Act lays down the following essentials for anticipatory breach of contract:

There should be a contract with a future date for performance.
Either of the parties should either refuse to perform the promise made on their part or should have wilfully induced such circumstances that the performance of the promise becomes inevitable.
The performance of the promise should not merely be unlikely or economically infeasible; rather, it should have become impossible.
Such refusal or self-induced impossibility should occur before the actual performance date.
Refusal can be expressed or implied.

Effect of anticipatory breach of contract

It is imperative to discuss the illustrations provided by Section 39. The illustrations cogently bring out the effect of anticipatory breach of contract. In both illustrations, the terms of the contracts are the same, wherein a singer ‘A’ contracted with ‘B’ who is the manager of a theatre. The contract is for ‘A’ to sing at the theatre for two nights every week for a period of two months. It is stipulated that ‘A’ will get paid Rs. 100 for each performance. Thereby, as per the contract, ‘A’ is to sing for sixteen nights, but ‘A’ wilfully absents herself on the sixth night. In the given case, the word ‘wilful’ clearly manifests that it is a self-induced impossibility on the part of ‘A’. Thus, ‘B’ can elect to repudiate the contract by virtue of Section 39 on the sixth night itself without waiting for the end of the sixteenth night, as has been provided in illustration (a).

In Illustration (b) the circumstances are the same; however, ‘B’ here decides to acquiesce to the singing of ‘A’ on the seventh night. By allowing ‘A’ to sing on the seventh night, ‘B’ has forfeited his right to repudiate the contract as per Section 39. Herein, ‘B’ will not be able to end the contract now; however, he will be entitled to claim compensation for the damage sustained by him due to the wilful absenteeism of ‘A’ on the sixth night. It is pertinent to note that Section 39 omits to provide for compensation. However, by using illustration as an internal aid to interpretation, we can deduce that even on acquiescence by the aggrieved party to the continuance of the contract, the aggrieved party is entitled to compensation for damages caused to him due to the conduct of the promisor.

Remedies

In cases of contracts, the parties themselves carve out their rights and liabilities, and it is the Indian Contract Act that legally enforces such contracts. To effectively follow the principle of ubi jus ibi remedium, i.e., where there is a right, there is a remedy, the Indian Contract Act is read with the Specific Relief Act, 1963, for remedying cases of breach of contract. In the general case of breach of contract, the person aggrieved claims the relief of specific performance of the contract under Section 10 of the Specific Relief Act and claims compensation under Section 73 of the Indian Contract Act, alternatively or additionally.

Compensation to aggrieved party

When elects to repudiate the contract

It is clear from Section 39 that a person aggrieved by an anticipatory breach of contract can either repudiate the contract or continue the contract. If the person repudiates the contract, he will be entitled to be compensated for his loss under Section 75 of the Indian Contract. The illustration of Section 75 is based on the same facts as that of illustration (a) of Section 39. The given illustration provides that ‘B’ is entitled to claim compensation for damages sustained by him in breach of such a contract. Thereby, if ‘B’ repudiates the contract, he will not only be entitled to claim compensation for the sixth night but for all the consecutive nights on which ‘A’ was supposed to perform.

When elects to continue the contract

As per illustration (b) of Section 39, the aggrieved party, even if elected to continue the contract, will become entitled to be compensated for damages caused to him due to an anticipatory breach of contract. Thereby, even if ‘B’ allows ‘A’ to sing for all the successive nights after the sixth night, he will be entitled to be compensated for the wilful absence of the sixth night. Apart from this, ‘B’ will have no liability to pay ‘A’ for the sixth night.

Compensation to the party causing anticipatory breach

When the person aggrieved elects to repudiate the contract

In cases of anticipatory breach of contract where the aggrieved party elects to repudiate the contract under Section 39 of the Indian Contract Act, he is also simultaneously obligated to restore the benefit made to him till the date of such repudiation under Section 64 of the same Act. The same was held in the case of Muralidhar Chatterjee v. International Film Co., Ltd., (1942). The illustration regarding the same has been provided under illustration (c) of Section 65, which is a legislative error. The given illustration should be under Section 64, and it is to be read with illustration (a) of Section 39 as the former is an extension of the latter. According to the given illustration, even if singer ‘A’ wilfully absents herself on the sixth night, she will be entitled to claim compensation for all five nights she has performed in accordance with the contract.

When the person aggrieved elects to continue the contract

In the case where the aggrieved person elects to continue the contract under Section 39, he will be liable to pay compensation to the person causing the anticipatory breach as per the same terms agreed between the parties. For example, on the same facts as that of illustration (b) of Section 39, if ‘B’ agrees to continue the contract, then the singer ‘A’ will be entitled to be compensated for the five nights she sang before being wilfully absent on the sixth night and to be compensated for singing on all ten successive nights. In such a case, ‘A’ will have all the remedies provided under Section 73 of the Contract Act and Section 10 of the Specific Relief Act.

Specific Performance of the Contract

In the case Jawahar Lal Wadhwa v. Haripada Chakroborty (1989), it was held by a three-judge bench of the Supreme Court that a person who is guilty of anticipatory breach of contract cannot claim the remedy of specific performance of contract, as in the case of specific performance of contract, it is mandatory to prove readiness and willingness on the part of the plaintiff as per Section 16(c) of the Specific Relief Act.

The court also held that the other party who is aggrieved by the anticipatory breach of contract cannot claim specific performance if it chooses to repudiate the contract; however, the party can then sue for damages. The court further held that if the aggrieved party chooses to keep the contract alive and is able to prove that he is ready and willing to perform his part of the contract, he can also claim specific performance of the contract.

Invoking writ jurisdiction in cases of anticipatory breach

Generally, a suit is filed in such cases; however, in the case of Jakson Engineers Pvt. Ltd. v. Delhi Development Authority (2003), it was held by the Delhi High Court that in special cases against the government authorities, the High Courts can also exercise their jurisdiction under Article 226 of the Constitution of India. In the given case, the Delhi Development Authority, i.e., DDA, being a public authority, asked the purchaser of a successful bid to pay the purchase money in full when they themselves were not in a position to hand over possession of the auctioned plot. The Delhi High Court held that this was a special case where Article 226 could be invoked.

Important case laws

In the case of Manindra Chandra Nandy and Ors. v. Ashwini Kumar Acharya (1920), it was held by the court that anticipatory breach of contract takes effect as a premature destruction of the contract rather than failure to perform it in its terms. The court also observed that in such a case, the damages are calculated by considering what the injured party would have suffered by the continuing breach of the other party down to the actual date of performance. The court also reduced the cost of damages that are mitigated due to repudiation before the actual date of performance.

In the case of West Bengal Financial v. Gluco Series Pvt. Ltd. (1972), the plaintiff was a private limited company, and the defendant was a body corporate established under the State Financial Corporations Act, 1951, which was a financial institute. The defendant granted a loan of Rs. 4,38,000 to the plaintiff. The contract also stipulated that a loan of Rs. 1,62,000 will also be extended if the plaintiff is able to repay Rs. 60,000 every year. The plaintiff failed to make the repayment but still insisted that the loan of Rs. 1,62,000 should be extended. The defendant denied extending the loan. The plaintiff filed the suit, alleging that the defendant is liable for breach of contract as it failed to provide the loan of Rs. 1,62,000. The court in the given case held that the contract between the parties could be severed into two contracts. One contract is for a loan of Rs. 4,38,000, which was successfully granted by the defendant and accepted by the plaintiff. The court held that the second contract was to extend the loan of Rs. 1,62,000. The second contract was breached by the plaintiff as it failed to make yearly payments of Rs. 60,000. Thereby, as per Section 39 of the Indian Contract Act, the plaintiff caused the anticipatory breach of contract. The defendant, in furtherance, elected to repudiate the given contract, and thereby, the defendant was right in doing so.

Further, in the case of State of Kerala v. Cochin Chemical Refineries Ltd. (1968), the Supreme Court relied on the case of White and Carter v. McGregor (1962) and held that under Section 39, the contract does not repudiate automatically due to the mere fact that one of the parties will fail to perform the terms of the contract. Rather, it is mandatory for the other party to elect in such a case whether the contract is to be repudiated or whether it is to be continued. The given election should be succinct and clear.

Furthermore, in the case of anticipatory breach of contract, it is pertinent to note that there is disagreement between the parties regarding the interpretation of the terms of the contract. In such a case, if the party offers to perform the contract as per his interpretation, it will not amount to an anticipatory breach of contract; the same was held in the case of Lowenstein v. Federal Rubber Co. (1936).

Difference between anticipatory and actual breach of contract

Grounds	Breach of contract	Anticipatory breach of contract
Relevant Provision	Breach of contract is due to non-compliance with Section 37 of the Indian Contract Act, which requires the contract to be performed by the parties to the contract unless the obligations created can be dispensed with under the provisions of this Act or under any other law.	The doctrine of anticipatory breach of contract is embodied in Section 39 of the Indian Contract Act.
Definition	It occurs when any party to the contract fails to fulfil the promise made by him on or before the date of performance of the contract.	It is a special situation where, before the actual date of the performance arrives, the party to the contract refuses the performance of the contract or wilfully creates such circumstances that make the performance of the contract inevitable.
Remedies	Generally, the remedy in cases of breach of contract is to claim specific performance of the contract under Section 10 of the Specific Relief Act, 1963, or to claim compensation under Section 73 of the Indian Contract Act, 1872. The remedies can be stipulated in the agreement expressly as well, for example: liquidated damages can be provided in the contract, or in contracts of guarantee, the guarantor or the surety can be asked to perform the contract.	In the case of anticipatory breach of contract, Section 39 provides the aggrieved party the right to elect whether he wants the contract to be repudiated or whether he wants the contract to be continued. Where one elects to repudiate the contract, he can seek compensation, and if he elects to continue the contract, the contractual relationship will continue like any other normal case; however, the aggrieved person will still be entitled to claim compensation for anticipatory breach as inferred from illustration (b) of Section 39.
Cause of Action	In the case of a breach of contract, the cause of action arises on the actual date of performance.	In the case of anticipatory breach of contract, the cause of action arises on the date when the party expresses its refusal to perform the contract or on the date when the performance of the contract becomes inevitable. There is no need to wait until the actual date of the performance.

Conclusion

The doctrine of anticipatory breach is primarily based on the broad principles of equity, justice, and good conscience. The doctrine removes the impediment of seeking remedy only after the expiration of the actual date of performance, like in a normal contract; rather, it enables the aggrieved party to seek remedy as soon as the actual performance of the contract becomes an impossible endeavour. The doctrine does not deem that the date of performance has moved ahead of its time; rather, it deems the refusal or self-induced impossibility of the contract as non-performance of the actual contract even though it takes place before the actual date of performance. The doctrine also helps both parties prevent or reduce any loss that may be caused by an actual breach of contract. This doctrine has been followed by the Indian courts time and again to secure the ends of justice. It clearly adds to the group of laws that ameliorate the conditions of business convenience in India.

Frequently Asked Questions (FAQs)

Is there any benefit of anticipatory breach of contract?

Yes, the doctrine of anticipatory breach of contract can be helpful to both parties. The aggrieved party can mitigate its losses, take preemptory measures, and claim damages before the actual date of performance arises. It is also beneficial to the party breaching the contract, as they can be discharged of their liability to perform the contract before the actual date. The doctrine exists for the ease of doing business, as it helps in saving time and money and also provides a flexible alternative for repudiation of the contract.

What is the difference between frustration of contract and anticipatory breach of contract?

In both the doctrine of frustration and the doctrine of anticipatory breach of contract, a once possible and valid contract becomes impossible before the date of actual performance. However, the doctrine of frustration has been given under Section 56 of the Indian Contract Act, and the doctrine of anticipatory breach of contract has been given under Section 39 of the Indian Contract Act. In cases of frustration of contract, the impossibility is caused by an act not in the control of either of the parties, for example, an act of God (force majeure) or vis major like a flood or earthquake. It can also include other human-made impossibilities, like situations of war. On the other hand, the impossibility of discharging the contract by performance under the doctrine of anticipatory breach of contract occurs due to the wilful conduct of the party. Further, in cases of frustration, the contract automatically becomes void, whereas, in cases of anticipatory breach of contract, the aggrieved party has to elect whether the contract is to be repudiated or whether it is to be continued.

References

https://ssrana.in/ufaqs/anticipatory-breach-contracts/
https://blog.ipleaders.in/indian-courts-follow-doctrine-anticipatory-breach-contract/
Avtar Singh’s Law of Contract & Specific Relief (2022), 13th edition.
Indian Contract Act by Sir Dinshaw Fardunji Mulla (2015), 15th edition.

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An overview of english language proficiency exams

By

Sneha Mahawar

-

October 9, 2023

0

This article has been written by Kulin Makwana pursuing Diploma in Business English Communication for International Professionals and Remote Workers and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction

“Language is not a genetic gift, it is a social gift. Learning a new language is becoming a member of the club – the community of speakers of that language.” – Frank Smith

What is the English language proficiency exam? Can one be trained to be proficient in the English language exam? If yes, what training is required? These three questions seem separate; in fact, if you observe closely, they are one question divided into three parts. With the internet erasing the boundaries of communication and connections and making the world a truly global village, English language proficiency has been acclaimed for various reasons. The major being-

career and personal growth,
international academics and research,
global employment.

It has gained importance as an indispensable skill, registering its necessity in every walk of life. As the demand for individuals with English language proficiency is constantly rising, English language proficiency exams have consolidated their position as a standard measure of an individual’s linguistic capabilities.

The article sheds light on various aspects of training necessary to be successful in the proficiency exams, which include:

having an idea of the test formats,
the various skills to be dealt with,
the training perceived by the learner as well as the trainer.

The below comprehensive overview will bring clarity to your preparation and ensure you do not falter on your path to success.

A brief history

The roots of English language proficiency exams can be traced back more than a century. But a clear picture of English language proficiency exams emerges in Alan Davies’s book, “Assessing Academic English: Testing English Proficiency 1950–1989 – The IELTS Solution (2007).” He informs the reader that during the decade from the early 1950’s to the early 1960’s, the number of students seeking admission to universities in the United Kingdom rose five-fold. The major influx of students was from non-English speaking countries.

Moving back, after the Second World War, the US established itself as the biggest English-speaking superpower. The US, the UK and countries like Canada, Australia, and New Zealand felt the need to have a parameter to approve the assessment of the English level of the incoming students. This was felt necessary to allow a smooth dialogue between the universities and the students. Thus, the English language proficiency examination gained visible importance.

However, it truly comes as a surprise that Cambridge University Press & Assessment, a part of Cambridge University, conducted its first highest level English language proficiency examination (C2) in 1913—a century and a decade ago. Only three candidates had appeared for the examination, which was then titled the Certificate of Proficiency in English. Who would have imagined that the English Language Proficiency Exam would gain unprecedented popularity across the globe, even though it will mostly be a compulsion in the future?

The struggle to understand language proficiency exam

In the midst of an ongoing IELTS training session on a delightful Sunday morning; Vatsal, one of the learners, poured out his discomfort in very simple terms. “I have never put in so much effort studying a subject. The four years of engineering were kinder than the current three months of IELTS exam preparation. I agree, one cannot make an omelette without breaking an egg; but I did not have the faintest idea that it would be really challenging. Your reference material difficulty level is increasing day by day. Even gaining the threshold to be successful with IELTS, at times seems a distant dream. I understand why many engineers are uncomfortable with the English language proficiency exams and training.”

Should the words have shocked me or was this a sophisticated outburst, a thing to ponder upon?

It was not that I came across this kind of discomfort for the first time. But it certainly set the ball rolling towards the possibility of inventing or adapting a simpler way of training learners for the language proficiency exams. Why do the majority of students find language proficiency exam training either boring, difficult, fearful, or complicated enough to deal with? There have been major exceptions, and I have come across learners for whom the English language proficiency exam has been a cakewalk.

However, as I have observed, learners find themselves in a discomfort zone in the writing and speaking parts, perceiving them to be the most difficult. The reason, apart from weak grammar and vocabulary, is simply that they are not made familiar with the language test appropriately before as well as during the training.

Types of english language proficiency exams

Various standardised exams accepted globally

English Language Proficiency Exams do not come in a single format. They are prepared according to a specific purpose they wish to achieve. Today, one can observe around 18 English language proficiency exams across the globe. The popular ones can be listed as:

IELTS (International English Language Testing System)
TOEFL (Test of English as a Foreign Language)
PTE (The Pearson Test of English)
Duolingo English Test, and
CELPIP (The Canadian English Language Proficiency Index Program).

Each of these examinations is standardised to measure the level of English language proficiency of the individual appearing for the examination. While many examinations offer both – the pen and paper format and an online option, some only offer online-computer based test options.

What purpose do these examinations serve

The purpose of these examinations is to serve an individual or combined purpose, such as:

Admission to educational institutions: Many universities and academic institutions, especially in English-speaking countries, use proficiency exams as a criterion for admission. These exams help ensure that students have the necessary language skills to comprehend lectures, participate in discussions, and complete coursework in an English-medium academic environment.
International study opportunities: Proficiency exams are often a prerequisite for international students seeking to study abroad. Achieving a certain proficiency level is necessary to demonstrate the ability to handle academic tasks in English. This opens doors for students to pursue higher education in diverse cultural and linguistic settings.
Employment and career opportunities: In the professional world, English language proficiency is often a sought-after skill. Many employers use language proficiency exams to assess the communication skills of candidates, especially in roles requiring international collaboration, client interaction, or communication within multicultural teams.
Immigration requirements: Proficiency exams play a role in immigration processes, particularly in countries where English is the primary language. Immigration authorities may require individuals to demonstrate a certain level of English proficiency to ensure that newcomers can effectively communicate and integrate into the local community.
Standardisation in evaluation: Proficiency exams provide a standardised way to evaluate language skills. This is crucial for universities, employers, and immigration authorities to have a consistent and objective measure of an individual’s ability to use English in various contexts.
Global communication standards: As English serves as a global lingua franca (“a language that is adopted as a common language between speakers whose native languages are different”), proficiency exams contribute to establishing and maintaining communication standards. They ensure that individuals from diverse linguistic backgrounds can communicate effectively, fostering understanding and collaboration on an international scale.
Personal and professional development: For individuals, proficiency exams serve as milestones in their language learning journey. They provide tangible goals and benchmarks for improvement, motivating learners to enhance their language skills. Achieving proficiency can boost confidence and empower individuals to pursue diverse opportunities.
Quality assurance in language education: Language proficiency exams contribute to the quality assurance of language education programs. Institutions that prepare students for these exams are motivated to maintain high standards, ensuring that their students are well-prepared for academic and professional challenges requiring English proficiency.
Cultural exchange and understanding: Proficiency exams contribute to cultural exchange by enabling individuals from different linguistic backgrounds to participate in international programs. As people interact across borders, shared proficiency standards facilitate understanding and collaboration, breaking down language barriers.

Why is clarity about proficiency level important before training

When you’re training, it’s essential to know your starting point so that you can set realistic goals and track your progress accurately. If you’re clear about your proficiency level before training, you can tailor your learning experience to meet your specific needs. It’s like having a map before starting a journey—it helps you navigate efficiently and reach your destination with fewer detours.

Understanding your proficiency level allows you to choose appropriate learning materials and methods. If you’re a beginner, starting with complex or advanced topics might be overwhelming and hinder your progress. On the other hand, if you’re already advanced, focusing on basic concepts might not be challenging enough.

Setting clear goals based on your proficiency level also helps you stay motivated. Achieving smaller milestones that are aligned with your current abilities can boost your confidence and keep you engaged in the learning process. It’s like levelling up in a game; you want challenges that are just right to keep the game interesting. Knowing your proficiency level allows you to measure progress over time. You can see how far you’ve come, celebrate your achievements, and identify areas that still need improvement. It’s a way of assessing the effectiveness of your training strategy and making adjustments as needed.

The majority of the students as well as trainers are not aware of the CEFR level or Global Scale English (GSE) level before or during the training for the English language proficiency exam. In this scenario, neither the learner nor the trainer can lead the training in the proper direction. As a result, the efforts do not match the expectations of the standardised tests and the desired outcome is not achieved.

Universal standards measuring language ability

The Common European Framework of Reference for Languages (CEFR) is a global standard that displays a candidate’s language ability. It measures the ability based on six levels:

A1/A2– Beginner/Elementary
B1/B2 – Intermediate/Upper Intermediate
C1/C2 – Advanced/Proficient

The levels are represented in the form of can-do statements, which give a correct reflection of the level at which a candidate is currently at or desires to reach with regards to English language proficiency. All the Cambridge English language proficiency exams are mapped to the CEFR.

On the other hand, Pearson maps its proficiency level on a Global Scale of English. GSE is represented in the form of numerals. The PTE reference for GSE ranges from 10 to 90.

The following table will give a clear picture of the different standardised exams, mapping their scores to CEFR levels for measuring language proficiency.

PTE ACADEMIC(GSE)	IELTS	TOEFL	CEFR
N/A	9.0	118-120	Expert User
89-90	8.5	115-117	C2
84-88	8.0	110-114	C1
76-83	7.5	102-109	C1
66-75	7.0	94-101	C1
56-65	6.5	79-93	B2
46-55	6.0	60-78	B2
36-45	5.5	46-59	B2
29-35	5.0	35-45	B1
23-28	4.5	32-34	B1
10-22	No Data	0-31

The following link would provide a detailed understanding of CEFR and its mapping to various examinations: https://www.cambridgeenglish.org/exams-and-tests/cefr/

Why is the placement test necessary

Now that you have a proper understanding of the CEFR and GSE levels, you first need to decide which English language proficiency examination you wish to undergo, depending on the country and the purpose.

Learners are generally advised to take a placement test or a pre-assessment test. This has a double advantage.

It helps the learner understand his/her current level of proficiency.
It helps the trainer understand at what level the learner should be placed and what amount of training would be necessary to reach the desired level of proficiency.

How would the learner be assessed

Since the English language proficiency tests are standardised, an individual’s performance is evaluated based on certain skill sets. However, a common thread that binds the assessments are the following four parts, making the assessment complete.

Listening,
Reading,
Writing, and
Speaking.

The above four skills are categorised into productive (writing and speaking) and receptive (listening and reading) skills. Productive beings produce or give out the words, thoughts, sentences, and opinions through writing and speaking, and receptive beings receive or intake the words, sentences, thoughts, and opinions in their thought processes by listening or reading.

One may question the necessity of all four individual skills being evaluated but they are mandatory. It is because each skill examines various aspects of language competency. To achieve the desired overall score, it becomes necessary to give equal attention to all four skills individually.

Understanding the test format

Understand the language proficiency exam format clearly and you’ve won a part of your battle towards success. The standardised tests have a range of questions to evaluate the learner’s performance. However, each test under the respective skill lists the types of questions that would appear in the exam paper. The questions may vary in the form of essay writing, letter writing, multiple choice questions, describing the data, matching the heading, filling in the blanks, presenting a monologue, abstract dialogues, and listening exercises.

The detailed description of each format and question and what is expected from the learner can be found either in the candidate booklet or on the website. Having thorough knowledge beforehand helps the learner train himself/herself to handle the section with confidence and ease and hone time management skills.

Preferred strategy for training

Whether one wishes to admit it or not, disciplined training is the foundation of the English language proficiency examination. It is an undeniable fact that preparation or training can be overlooked only at one’s own peril. One can choose to undergo training in the following ways:

Self-study,
Online training, or
Classroom training.

Self-study

If one has received formal school and college education in English, it is easier for the learner to choose the self-study training option. Textbooks and online resources, including blogs, videos, articles, and authentic exam practise materials, help the learner train confidently. However, it must be ensured that the practice or reference materials are authentic. Reputable publication houses and examination boards publish and sell exam material offline as well as online for the benefit of learners on a regular basis.

Online training

Coaching institutes as well as individual trainers offer online training based on the learner’s requirements. Live classes or self-study formats are offered as a formal training option. The training is offered in a systematic manner and learners are encouraged and expected to engage in an interactive mode that is structured to help them succeed in the English language proficiency examination. Learners are provided assignments to complete in a limited amount of time. The self-study option is for busy individuals who are not able to attend the live sessions due to time constraints. Videos are either uploaded or sent to the learners for their self-paced learning. Doubt clearing sessions are generally held once a week.

Classroom training

It has usually gained more preference over the other two training options discussed above. This is because the learners have the opportunity and feel comfortable clearing their doubts face to face with the trainer. Also, they do not have to travel far since the institutions offering the classroom training are situated in close proximity to the learner’s dwelling.

Whichever option a learner prefers to go with is a matter of personal choice based on various factors, including comfort level, time constraints, and level of proficiency.

Necessary ingredients : grammar and vocabulary

Language generally consists of three parts:

Grammar,
Vocabulary, and
Pronunciation.

It is mandatory for the learners to have a solid foundation in grammar and vocabulary before attempting the English language proficiency examination. Based on the performance in the placement test, it is desirable that the learner train himself/herself to the expected level of grammar and vocabulary. The majority of the learners who fall into the L2 category (non-native speakers, English as a second language) are seen to lack the expected level of grammar and vocabulary. This impedes communication in all four skills demanded by the examination.

The proficiency examination expects the learners to have a varied vocabulary and a wide range of grammatical structures since repetitive usage of grammar and vocabulary leads to a low score. At times, it even attracts a penalty in the form of negative marking. Learners in doubt should consult the trainer or the course material to be confident before attempting the exam.

Training oneself through a disciplined, in-depth reading habit not only aids in the improvement of reading skills but also helps expand vocabulary and generate ideas for writing and speaking skills too. Attempting grammar exercises on a regular basis and using varied structures increases the learner’s linguistic competence.

Elevate the four skills through proper training

Listening and reading

Receptive skills demand a different way of thinking. Listening questions are generally adapted from day-to-day life scenarios, giving a real feel to the examination. To be in tune with listening comprehension skills, one needs to practise thorough note taking. The online world offers various choices to polish listening and comprehension skills. Podcasts, radio broadcasts, interviews, and the news offer enough material for practice.

Reading comprehension skills demand identifying the gist, locating the synonyms in the passage and speed reading. One must clearly understand that the reading passages in the English language proficiency examination do not expect the learner to read every single word. It will lead to serious time management issues. Learners should train themselves by becoming proficient in skimming and scanning techniques. Summarising passages helps to strengthen reading skills.

Writing and speaking

Productive skills need a mammoth amount of practice. Writing is the only skill that compels a learner to use the brain to its maximum level. Without thinking properly or arranging words in the mind before putting them on paper or on screen, it is not possible to give a fluent voice to one’s thoughts. The English language proficiency exam specifically demands coherence (thought processes or ideas sequenced logically in an easy – to – understand manner) and cohesion (how well the sentences and paragraphs are connected using accurate grammar and vocabulary).

Coherence and cohesion in no way underestimate the equally necessary components like grammar and vocabulary (lexical resources). At times, while attempting the writing section, the learner loses grip and gets lost as far as the topic’s relevance is concerned. In order to gain the maximum score, the learner needs to practise writing essays and letters on various topics using the proper format. The use of simple, compound, and complex sentences, conditional sentences, relative clauses, passive voice, and comparatives helps elevate the writing score.

Whereas writing in proficiency examinations expects the learner to use formal English unless instructed, speaking brings in the liberty of using informal language through contractions, phrasal verbs, collocations, and idioms. Training in fluency (natural accent and normal flow of speech) is required for the speaking section. Interaction on abstract topics, monologues, and short dialogues requires accurate vocabulary, grammar range and thought articulation. Training through online groups, peer interaction, and conversing in the speaking clubs consistently will not only boost confidence but also help improve fluency, grammar, and vocabulary.

Practice tests and feedback

Why do practise tests matter?

Now that you have a thorough understanding of what is expected of you in the English language proficiency examination, the training sets off on the right track. After being trained in grammar, vocabulary and the four skills with a proper understanding, the learner is ready to face the practice tests. These tests familiarise the learners with actual exam conditions.

Usually termed mock tests, they help the learner assess their current level, highlighting the scope for hard work and improvement. Learners strengths and weaknesses are revealed through the practice test scores. However, caution is to be exercised regarding mock tests. Those created by authentic sources only should be preferred. Practising from any random available source at hand, or those suggested by Fly by night trainers online, should be avoided completely.

Is feedback necessary?

While it is difficult to receive feedback in self-study mode, it becomes a regular process with classroom training. Feedback from trainers or instructors helps the learner identify the touchpoints and work on the weaknesses or errors. It helps the learner acknowledge the improvement areas and channel the efforts in the proper direction, ultimately leading to overall success.

Time management

Being engrossed in other aspects of training, learners often forget to train themselves in time management. For any English language proficiency test, a learner must keep in mind that time is the biggest enemy. It will be a deciding factor in one’s success or failure, depending on how efficiently it is used to one’s own advantage. The time management issues are generally visible in the writing and reading sections. Time constraints lead to being under pressure and the exam day stress complicates the matter. Through practise tests, learners gain control over time management, allocating the time properly for each section and thus attaining the desired score.

Training : a two-way lane for learners and trainers

When it comes to training for the English language proficiency examination, either the learner or the trainer occupy a prominent place. This leads to a pertinent question – Who rules the roost, the trainer or the learner? The question cannot be answered on one side. Both the learner and the trainer equally contribute to the process of training.

On the one hand, the learner pays for the training, puts in efforts to understand the examination, becomes aware of his or her strengths and weaknesses, continuously upgrades himself/herself through practice and gains insight through mentoring by the trainer.

On the other hand, the trainer or instructor puts in efforts to prepare the modules, conduct assessment tests, provide feedback, charge, and impart training, and learns from each learner how to make the training session better for future learners. It is a win-win situation for both. The learner and the trainer learn from each other in the journey towards success.

Conclusion

In conclusion, English language proficiency exams play a pivotal role in shaping the educational and professional journeys of individuals worldwide. Whether aiming to study abroad, pursue international employment opportunities, or migrate to an English-speaking country, these exams serve as gatekeepers, assessing and certifying one’s ability to navigate the linguistic challenges of the globalised world.

English language proficiency examinations in the modern world have consolidated their position on a universal scale as an important yardstick to evaluate language skills through standardisation. Training in understanding the exam format, assessment levels, language components, various skills, including time management, and what is expected to clear the exam plays a vital role in the path towards success. Through pre-exam training and improvement and adapting proper strategies involving serious commitment and disciplined practice, successfully clearing the English language proficiency exam will open the doors of success for desired opportunities based on your purpose. These tests serve as crucial resources, opening doors to educational and professional opportunities as well as fostering a global community united by the power of language as the demand for English language proficiency keeps rising.

References

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