Youth Forum on Foreign Policy has launched a fellowship program where we are offering young professionals/post grad students a chance to work with MP Gaurav Gogoi. The fellows will be based in New Delhi.
Work profile
1.Policy analysis and preparing research reports.
2.Coordination of parliamentary events.
3.Preparing notes for press conferences.
4.Briefs on legislative agendas and drafting private members bill.
The duration of fellowship will be for four months.The fellows will work from our office at New Delhi. Fellows will also get an opportunity to work on foreign policy projects via our foundation Youth Forum on Foreign Policy (www.yffpforeignpolicy.org). and rural development projects via our foundation Farm 2 Food Foundation.
This article is written by Ankita Sen, a student of BBA.LL.B at National Law University Odisha.
Meaning Of Marital Rape.
The word ‘rape’ has been primarily derived from the Latin term raptus which literally refers to the act by one man of damaging or destroying the property of another man.[1] Here, property primarily referred to wife or daughter of another man.
Marital rape, as the name suggests is rape caused to a spouse by her husband. It basically refers to the actual use or threat of use of force by the husband against the wife to compel her into sexual intercourse.[2] This form of rape also known as conjugal rape or wife rape is also said to have taken place when the wife is compelled to have entered into sexual intercourse in a situation when she is unable to express consent.[3] This roots back to that age of the history of mankind, when women were considered to the property of their husband. This was also covered by a legal principle of coverture which refers to the wife being covered by the spouse once married, such that she is now his property.[4] It denies a woman her bodily integrity thus striking a blow at women’s rights.[5]
The issue of marital rape is largely neglected. Patriarchal domination of the society has come up time and again and has granted to the husbands exemption in cases of marital rape basing on the assumption that the wife has given herself to the husband through the contract of marriage.[6] Modern leaders in support of the victims of marital rape, however, hold that marital rape is also a form of rape and the marital status of the woman should have no bearing on the culpability in the crime of rape.[7] It is a form of rape that lays hidden under the cover of marital privacy that gives both the husband and the wife, the right to protect the private acts that they both enter with consent: it is not a guard to hide violent acts.[8]
Theories Of Marital Rape
Various authors have over time come up with different theories regarding the occurrence of marital rape in the society:
The Feminist Theory: this theory considers marital rape as a tool in the hands of the patriarchal society that is used to exercise control over women. They consider that the exemption given in cases of marital rape is a remnant of the earlier laws regarding women that considered them to be the property of the husband.[9] The feminists are of the view that marital rape is nothing but a result of a power play by the male spouse in the marriage.[10] Radical feminists have gone to the extent of arguing that any form of heterosexual intercourse is based mainly on the desire of the man and is another form of oppression on women.[11]
The Social Constructionism Theory: the believers in the theory of social constructionism are of the view that men have dominated the society in law making and the political arena since ancient days.[12] Laws thus came as a reflection of the interest of men. Such laws considered women to be their husband’s property after marriage and hence, marital rape was considered an offence of lesser degree as compared with rape.[13] Some jurisdictions even considered that rape in a marriage is not rape at all.[14] The social constructionists believe that marital rape is a means through which men try to assert themselves over their wives so as to retain their long gained power over their property.[15]
The Sex-Role Socialization Theory: these theorists believe that it is the particular gender roles which guide the sexual interactions between the spouses in a marriage. In a marriage, women are always taught to be calm and passive, submissive whereas, men are trained to be dominant and aggressive.[16] Care and love are attributed to women. Men, on the other hand, are the major perpetrators of sexual entertainment with violent themes.[17] Sex role socialists are of the view that marital rape is nothing but an expression of the traditional perceptions of sex roles.[18]
Types Of Marital Rape
Marital rape may be broadly classified into following two categories:
Sexual coercion by non-physical means– this form of coercion involves social coercion in which the wife is compelled to enter into sexual intercourse by reminding her of her duties as a wife. This form of coercion entails applying non-physical techniques and tactics like verbal pressure in order to get into sexual contact with a non-consenting female.[19] The most commonly used non-physical techniques include making false promises, threatening to end the marital relationship, lies, not conforming to the victim’s protests to stop, etc.[20] Such acts of sexual coercion by the use of non-physical stunts though considered less severe in degree as compared with physically coercive sexual acts are widespread and pose a threat to women’s rights in the society.[21]
Forced sex– this involves the use of physical force to enter into sexual intercourse with an unwilling woman. It can be further classified into the following three categories:
Battering Rape- this form of marital rape involves the use of aggression and force against the wife. The women are either battered during the sexual act itself or face a violent aggression after the coerced sexual intercourse.[22] The beating may also occur before the sexual assault so as to compel her into sexual intercourse.[23]
Force Only Rape- in this form of rape, the husband does not necessarily batter the wife, but uses as much force as is necessary to enter into sexual intercourse with the unwilling wife.[24]
Obsessive Rape- this form of rape involves the use of force in sexual assault compiled with perverse acts against the wife.[25] It involves a kind of sexual sadistic pleasure enjoyed by the husband.[26]
click above
Historical Background
Once married, a man is bound by the duties of marriage to respect his wife and treat her with dignity.[27] The concept of matrimonial rape has evolved in the recent period. However, neither in the past nor in the present have such laws been formed which prosecute a married man for forcing her wife to have sex with him. Common law down not provide any remedy for such a torture being caused to the woman, and says that a woman is obligated by the ties of the marriage and thus has to provide her husband with everything that he asks for. Over the years however, with the growing awareness of gender equality the common law as well has been amended thereby criminalizing such activities. In the present scenario, the developed and the developing nations have taken a step forward in protecting woman against such crimes.
In India, marital rape is still not considered to be an offence. Despite many efforts put by the law commission in its reports or bills brought up before the parliament, this horrendous act which uproots the sanctity of a marriage, has not been declared as an offence. A married woman in India has absolutely no laws to protect her and everything only depends upon the interpretation of the courts.
Thus, in India we see that the present scenario with regard to marital rapes is that the offence, in a due facto manner exists in the legal regime but there has been no formal illegalisation and criminalization of such offence. In other countries across the world however, such an act has either been criminalized or the judiciary has been actively involved in bringing up reforms in their laws with regard to marital rape.
The Hon’ble Supreme Court is of the view that rape is an act against humanity as a whole.[28] However, there was no mention as to what was court’s stand with regard to the offence of marital rape. Further, women who want to raise their voices against sexual violence do not have a very strong law supporting and protecting them against the exemption that Sec. 375 of the Indian Penal Code, 1860, which specifically states that a husband cannot be prosecuted for forcing his own wife to have sexual intercourse.
However, of is not the case that there has been no progress with regard to criminalization of such activities. The addition of Sec. 376-A is a step towards protecting woman from such torture which criminalizes any sort of force to have sexual intercourse, used on wife who is living separately. The husband can be fined and imprisoned to a maximum of two years.
An Analysis Of The Present Scenario Of Marital Rape and divorce
Current Scenario of Laws In Relation To Marital Rape.
Marital rape has been hinted in the Domestic Violence Act, 2005. The Act prohibits any form of sexual abuse in a live in or marriage relationship.[29] However, this Act provides for civil remedies only. Currently, in India, marital rape is not criminalized under the Indian Penal Code, 1860 (hereinafter referred to as the Code). Section 375 of the Code specifically excludes acts of sexual violence in a marriage outside the purview of rape.[30] However, under Section 376 B of the Code, a man is punished for forced sexual intercourse without the consent of the judicially separated wife. Further, as also seen above, marital rape cannot form a direct ground for divorce under different personal laws.
The provision for rape in the Code that clearly excludes marital rape from its ambit is violative of the provisions of the Constitution of India. Art. 14 of the Indian Constitution provides for equality of all persons before the law and prohibits any kind of state discrimination. However, the Exception in Sec. 375 of the Code discriminates against married women and does not qualify as a reasonable classification. It is thus, violative of the protection granted by Art.14.
Further, Art. 21 of the Indian Constitution provides for right to life and such life includes the right to live with dignity. Marital rape infringes upon the right of a woman to live with dignity. Thus, the Exception to Sec. 375 of the Code is in clear violation of Art. 21 of the Constitution.
Modern and Traditional Theories of Exemption of Marital rape.
Various theories have been put forward time and again to justify sexual abuse of a wife by her husband and the non inclusion of marital rape as a ground for divorce:
Traditional Theories:
Contract Theory: Marriage is generally treated as a contract and one of the conditions of such a contract involves the implied consent of the wife to fulfil the sexual needs of the spouse as per his whims and fancies. This gives to the husband a marital right to enter into sexual intercourse with his wife. The contract theory, though fraught with flaws has survived for a considerable time period.[31] According to this theory, there exists no concept of marital rape because sexual intercourse between spouses is always considered consensual.
Women Treated As Property: This theory was mostly followed in the common law system. The basic presumption was that the husband was the owner of his wife and therefore could not be said to rape his own property. As women were treated as property[32], common law believed that seeking consent for sexual intercourse was violative of man’s right to property.
Marital Unity: Common law also believed that once married, the identity of a wife merges with that of her husband and hence, the husband was considered unable to rape himself. This theory considers the spouses to be a single entity.[33]
Modern Theories:
Less Serious: It is said that non-marital rape is more serious as compared to marital rape.[34] However, according to a survey by Joint Women Programme, in a group of seven married women, at least one is raped and sexually harassed by her husband. Hence, the statistics reflect a picture contrary to the belief.
Difficulty in proving: Marital rape, being a crime of personal nature is very difficult to be proved. However, the Domestic Violence Act, 2005 provides for a list of crimes that are personal in nature but are also punishable. Thus, this excuse of facing difficulty in proving marital rape cases does not hold ground for exempting the same.
Possible abuse: The criminalization of marital rape is fraught with potential chances of abuse of the law by wives with ulterior motives to cause hardship to their spouse.
Marital Rape and Divorce.
In order to break this legal deadlock, however, marital rape can be brought under cruelty and hence can act as a ground for divorce. Cruelty refers to an intentional infliction of harm, either mental or physical on a living being, especially a human.[35] Also, the Indian Penal Code, 1860 explains cruelty as any act by the husband that drives the victim woman to commit suicide or cause to her grave and serious injury, both mental and physical.[36] The landmark case of Shobha Rani v. Madhukar Reddy[37] observed that cruelty must be studied in light of the conduct of one spouse towards another in a marriage and in the respect of marital obligations.
It is herein important to note that all personal laws follow the fault theory of divorce.[38] This theory is generally opted by a spouse who desires to be absolved by way of proving the fault of the other spouse.[39] The Hindu Marriage Act, 1955 provides cruelty as a fault ground for divorce.[40] So also, the personal laws provide cruelty as a ground for divorce including the Special Marriage Act, 1954[41], the Dissolution of Muslim Marriage Act[42], the Indian Divorce Act, 1869[43] and the Parsi Marriage and Divorce Act, 1936[44]. Thus, in order to constitute marital rape as a ground for divorce one has to resort to the ground of cruelty due to the absence of a separate ground of marital rape.
Suggestions
In spite of the present situation where marital rape is given little attention by the legal fraternity, it is a serious offence which indignifies a woman. According to Indian law, a woman under sixteen years of age having consensual sex qualifies to be a victim of rape. However, a married woman even if compelled to enter into sexual intercourse is not said to have been raped. The idea that a woman cannot seek legal protection on being forced by her husband to have sexual intercourse is in itself is disturbing.
The United Nations through its Committee on Elimination of Discrimination Against Women had brought about the recommendation that India must criminalize marital rape. The Justice Verma Committee that was formed in light of the brutal Nirbhaya gang rape case criminalized various sexual offences but the opinion that marital rape should be made illegal was disregarded completely. This was solely based on the view of the parliamentarians that criminalizing marital rape would bring under stress the institution of marriage and would go against the principles of family harmony. Arguments have also been put forth that if a law criminalizing marital rape is brought forth, it will be abused greatly.
Marital rape leads to the breakdown of the marriage and also destroys the sanctity of the spousal relationship. Despite this situation, it is expected of the wife that she remains silent and continues with the marriage. The worst disadvantage in this scenario is that the woman is compelled to live with the husband, the rapist himself. Hence, there lies an urgent need to bring about substantial changes with regard to the laws relating to sexual offences. For instance, inequalities should be eliminated and gender neutral laws should be framed.
Women today who suffer from such crimes must be made aware of their rights and the remedies available to them against such heinous acts. Women should raise their voice against such mistreatment backed by support from the society. Indian culture has always emphasized on equality, strength and not on abuse, control or power. Therefore it is expedient to the need for justice for women that the Indian judicial system criminalizes marital rape and includes it as a fault ground for divorce. The researchers have come up with the following suggestions in respect of the current scenario:
Marital rape must be criminalized under the Indian Penal Code, 1860. This must be done by way of amending Section 375 of the Code, in light of the recommendations given by the Justice Verma Committee.
The punishment for marital rape should be the same as provided for rape under Section 376 of the Indian Penal Code, 1860.
The husband should not be allowed to take the plea that there was a lack of resistance on the part of the wife in a case of marital rape.
Marital rape should be included as a direct ground for divorce under all personal laws.
General awareness with regard to marital rape must be spread among the public.
The Court must carefully scrutinize the facts and circumstances of each case to find out if there were circumstances that could lead to the victim being compelled to not raise her voice against all harassment.
Conclusion
The researchers have tried to provide an understanding as to the nature of the crime of marital rape. This write up has not been restricted to the issue of marital rape as a ground for divorce. Throwing light upon the relevant provisions of different divorce laws in the country, the researchers have tried to point at the loopholes existing in the current system that follows the archaic belief of non-inclusion of marital rape as a ground for divorce. Further, another issue at hand is the non-criminalization of marital rape. These issues coupled together bring forth the intention of the Legislature that indirectly promotes patriarchal supremacy in the society. Apart from the legislative and legal justifications for the same, theorists all over the world have also come up with various theories that justify the non-criminalization of marital rape. In India, some form of progress is seen in the form of the provisions of the Domestic Violence Act that prohibits any form of sexual abuse in a marriage. However, this Act providing civil remedies only is not a sufficient tool in the hands of the women. The Legislature must look into the issue of enacting new laws and provisions for a crime as heinous as marital rape.
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References:
[1]Women And Gender In Medieval Europe: An Encyclopedia, Margaret Schaus, Taylor & Francis, 2006, 695.
[2]Marital Rape And The Indian Legal Scenario, Priyanka Rath, Indian Law Journal, 1.
[3]Sex Crimes: Perpetrators, Predators, Prostitutes And Victims, Ronald B. Flowers, Charles C. Thomas Publisher, 2006, 38.
[4]Encyclopedia Of Rape, Merril D. Smith, Greenwood Publishing Group, 2004, 122.
[5]Marital Rape- Myth, Reality And Need For Criminalization, Saurabh Mishra, Sarvesh Singh, available at http://www.ebc-india.com/lawyer/articles/645.htm, last visited on March 28, 2016.
[7]License To Rape: Sexual Abuse Of Wives, David Finkelhor, Kersti Yiio, Simon and Schuster, 1987, 3.
[8]Confronting Rape And Sexual Assault, Mary Odem, Jody Warner, Rowman & Littlefield, 1998, 81.
[9]Feminist Perspectives On Rape, Stanford Encyclopedia Of Philosophy, available at http://plato.stanford.edu/entries/feminism-rape/, last visited on March 29, 2016.
[10]Marital Rape In India: A Radical Feminist Perspective, Tamanna Khosla, Mainstream Weekly, Vol III, 2.
[11]Radical Feminism On Rape, Izvorni Znanstiveni, The Hebrew University, 507.
[12]A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.
[13]Encyclopedia Of Victimology And Crime Prevention, Bonnie S. Fisher, SAGE, 2010, 721.
[14]Encyclopedia Of Domestic Violence, Nicky Ali Jackson, Routledge, 2007, 466.
[15]Proximate And Ultimate Explanations Are Required For A Comprehensive Understanding Of Partner Rape, Aaron T. Goetz, Aggression And Violent Behaviour, Elsevior, 2.
[16]A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.
[17]Social Perspectives On Violence, Thomas W Blume, Michigan Family Review, Vol. II, 3.
[18]A Review Of Marital Rape. Aggression And Violent Behavior, Martin, E. K., Taft, C. T., & Resick, P. A. (2007). 12, 329.
[19]Understanding Perpetrators of Nonphysical Sexual Coercion: Characteristics of Those Who Cross the Line, Sarah DeGue, David DiLillo, Violence and Victims, Springer Publishing Company, 1.
[20]“You Would If You Loved Me”: Toward An Improved Conceptual And Etiological Understanding Of Nonphysical Male Sexual Coercion, Sarah DeGue, David DiLillo, Aggression and Violent Behaviour, Elsevier Ltd., 517.
[30] Sec. 375, Exception, Indian Penal Code, 1860.
[31]Spousal Rape: The Uncommon Law, ABA Journal, 1980, 1088.
[32]Confronting Global Gender Justice: Women’s Lives, Human Rights, Debra Bergoffen, Routledge, 2010, 288.
[33]Family Law, Kelly Weisberg, Aspen Publishers, 2008, 84.
[34]Domestic Violence: A Multi-Professional Approach For Health Professionals: A Multi-Professional Approach For Health Professionals, Keeling, June, Mc-Graw Hill Education, 2008, 60.
[35] Bryan A. Gaener, Black’s Law Dictionary, 9th Ed. , 2009, p.434.
India is the cynosure of global investors and corporations, as it has already become the third largest economy in the world in terms of purchasing power parity and is said to become No. 3 in the real gross domestic product by the year 2030.[1] At an accelerated pace, India is becoming an eye catcher for trade and commerce as well as international investments. The ever growing domestic consumption and growth opportunities in India are encouraging more and more foreign investors. Financial institutions, private equity funds, foreign banks are looking for investments to accelerate their growth plans.
The unprecedented growth of businesses in India has also triggered a massive amount of borrowing by Indian businesses. Indian businessmen prefer to borrow from foreign lenders as the rate of interest offered by the foreign lenders is considerably low, and this is the primary reason as to why borrowing from foreign financial institutions, foreign banks, etc is increasing at a rampant pace in India. Commercial loans in the form of bank loans, buyers credit, suppliers credit, securitized instruments (e.g., floating rate notes and fixed rate bonds, non-convertible, optionally convertible or partially convertible preference shares) availed of from non-resident lenders is referred to as external commercial borrowings.[2]
External commercial borrowings can mainly be accessed via two routes namely[3]:
Automatic Route.
In order to borrow under the automatic route, the borrower can enter into a loan agreement without the prior approval of the Reserve Bank of India. However, the said loan agreement must be registered with Reserve Bank of India. Service sector organizations, software corporations, units in Special economic zones for their own business requirements, Non-Governmental Organisations which are engaged in microfinance activities and Infrastructure Finance Companies are permitted to borrow under the automatic route.
Approval route.
In order to borrow under the approval route, the prospective borrower will first have to submit an application to the Reserve Bank of India, in the prescribed form through the authorized dealer as specified by the Reserve Bank. Generally, all the financial institutions engaged in infrastructure financing and institutions not specified in Automatic Route are supposed to borrow money under approval route.
Before sanctioning a loan to an Indian businessman or an Indian business, foreign lenders insist on the creation of some form of security, personal or corporate guarantee by the promoter or the promoting company, in order to safeguard their interests. The borrower may give a charge over the immovable assets or/and financial securities such as shares in favour of the foreign lenders, in order to secure the external commercial borrowing.
Under the Foreign Exchange Management Act, 1999, the borrower is supposed to take a no objection for the creation of charge on immovable assets, financial securities and issue of corporate or personal guarantee in favour of the overseas lender.[4] In order to obtain a no objection certificate from an authorized dealer bank, certain conditions are to be fulfilled:
The external commercial borrowing must be in strict compliance with the external commercial borrowing regulation and guidelines.
The loan agreement between the lender and the borrower must have a specific security clause that makes it mandatory for the borrower to create charge on financial securities, immovable assets, furnish personal or corporate guarantee.
The loan agreement has been signed by both the parties that are the overseas lender and the domestic borrower.
The borrower must have obtained a loan registration number from the Reserve Bank of India.
The period of charge on the immovable asset has to be in consonance with the maturity of the underlying external commercial borrowing.
A no objection should not be understood as a permit for acquiring immovable assets in India by the overseas lender.
In the event of enforcement or invocation of charge, the immovable asset must be sold only to a person resident in India and the sale proceeds shall be repatriated to liquidate the outstanding external commercial borrowing.
Banks, financial institutions, and Non- Banking financial companies are not generally allowed to issue a guarantee for securing the loan under the external commercial borrowing regulations.[5] However, the Reserve Bank of India, under the approval route may consider applications for providing guarantee or standby letter of credit or letter of comfort by banks, financial institutions relating to external commercial borrowing on merits subject to prudential norms. It is also imperative to note that the Reserve Bank of India may only consider applications for providing guarantee under the approval route in cases of small and medium enterprises, textile companies. In order to obtain a no objection certificate, small and medium enterprises and textile companies have certain conditions which are required to be fulfilled under the Foreign Exchange Management Act, 1999[6]:
A board resolution must be obtained for the issue of personal or corporate guarantee, specifying the names of the officials authorized to execute such guarantees on behalf of the company or in individual
It must be ensured that the period of such corporate or personal guarantee is co- terminus with the maturity of the underlying external commercial borrowing.
Specific requests from individuals to issue a personal guarantee in connection with the borrowing, indicating the details of the external commercial borrowing.
Further, the Reserve Bank of India has allowed individual promoters of Indian party to give their personal guarantee within the total commitment of 400% of net worth of the Indian party (financial commitment exceeding USD 1 billion or its equivalent would require prior approval of the reserve bank) in relation to the Joint Venture and Wholly Owned Subsidiaries abroad, subject to following conditions[7]:
The amount and period of guarantee should be specified up front. A guarantee must not be open-ended.
If a personal guarantee ensures the performance of the relevant party under any contract, the time specified for the completion of the terms of the contract shall be the validity period of related performance guarantee.
Such personal guarantee is required to be reported to the Reserve Bank of India.
The Foreign Exchange Management Act and the Foreign Exchange Management Act circulars do not define the term promoter, and thus, a reference to this term must be taken from the definition provided under the Companies Act, 2013.
Except in cases of external commercial borrowing transaction or a transaction relating to joint venture or wholly owned subsidies as mentioned above, there are no other instances of foreign exchange laws where the Reserve Bank of India has allowed individual promoters of an Indian party to give personal guarantees in favor of the foreign lender. Hence, issuance of personal guarantee in relation to any other international commercial transaction will require the prior permission of the reserve bank.
Conclusion
Indian companies or businesses while structuring any international commercial transaction must keep in mind that the personal guarantee of the individual promoters is not permitted in the case of every commercial international transaction except with the prior approval of the Reserve Bank of India. There is no specific provision under FEMA / FEMA Circulars, whereby, the personal guarantee given by the individual promoters in violation of the provisions of FEMA is considered as void. However, in case of violation of any provisions of FEMA including FEMA Circulars, the defaulting party shall, upon adjudication, be liable to a penalty[8] up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues.
[1] http://www.vccircle.com/byinvitation/2014/07/23/level-playing-field-foreign-lenders( March 23, 2016)
In this blogpost, Utkarsh Kumar, Advocate and a businessman by profession, who is also a student of the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about, what is partition, types of partition, procedure by which partition can be done and what is a deed of partition
Introduction
In today’s era partition is very commonly seen in between family members which result in the division of assets between them. The reasons for partition are a dispute arises among members of the family, the thinking of every family members does not match etc. In this article what is a partition, its kinds, who have rights to claim a partition and under what conditions there can be a division of a family business.
What is partition
The term partition is used in the law of real property to describe an act by a court order or to divide a concurrent estate into separate parts representing the proportionate interest of other members of the family. A practical division of property would involve not only the fractional share of family members is entitled to, but it also decides the exact boundaries of the property of Joint Family. As we all know that the partition is the severance of the status of the Joint Hindu Family, which is known as the Hindu Undivided family mentioned under law. In the joint Hindu family, the head of the family is known as the KARTA, he manages the day to day expenses of the family and looks after the family business. The Karta has limited powers; he is the one who has the authority to settle all disputes.
In the Hindu law, it is said that once the status of Hindu family is put to an end then there is a notional division of properties among the members & the joint ownership of property will come to an end. For an effective partition, it is not necessary to divide the properties in METES & BOUNDS. Here the determination of metes & bounds can be done through mutual agreement, or the court will appoint a commissioner to do the same.
Types of partition
There are 2 types of partition which are described under Hindu Law they are as follows
Total Partition
Partial Partition
In the total partition the whole property of a Hindu Undivided Family undergoes a total division of property & the same will be divided in between all the coparceners and family cease to exist as a Hindu Undivided Family, whereas the partial partition can also be made when some of the members go out on partition & other members continue as being a member of the family & in this case the remaining property will belong to the undivided family.
Who has the right to claim partition
In any family where a dispute arises, which results in the partition of the family business, any coparcener of the family has the right to claim a partition in the family business, and it is not mandatory that other coparceners should agree to the partition which was sought by one of the coparceners. Even minors can also claim for a partition in the family business & the claim can be made through their guardian until the minor reaches the age of majority.
The partition in a family business also happens on the death of the coparcener, but it cannot bring an automatic partition and on such death the other living members would continue to remain as joint. But in the Hindu Succession Act, there is a provision which says that there is a deemed partition for a limited purpose of determining the share of the deceased coparcener for the purpose of succession mentioned in the act of 1956, HINDU SUCCESSION ACT. The other clause which also arise here is the ownership of the property received by a member on a total partition of Hindu undivided family , here the property which will be received by the male member of the family on the total property will retain its character as a joint family property and if he is single then it will be Hindu undivided family property after the marriage and a Sole member has a right to constitute a Hindu undivided family on marriage . Any member can demand for the partition in the family business by entering into the DEED OF PARTITION, here parties are considered purely as a contractual in nature, but the parties have to file a suit in a Civil Court for a decree of partition, the decree is registered with the Sub-Registrar of Assurance mentioned under the INDIAN REGISTRATION ACT and after the successful registration it can obtain the loans in future as the financial institutions would accompany you more comfortably & accepting to the property as a security if there a court decree opposed to the mere contract in between the family. One thing to be kept in mind always is validity of partition between the widowed mother and sole surviving coparcener son here a mother or a wife has no right to claim for a partition but if the partition is affected then a mother or a wife will get an equal share as of the son, there is also a clause where a property is capable of physical division when the partition was made by the physical division only, if the property of Hindu undivided family does not admit the physical division. In general, the partition can be made orally also, and there is no provision in law that the said partition must be evidenced by a written agreement only, although the partition of the immovable property of the Hindu undivided family can be made through an oral agreement as well.
A business cannot be partitioned by metes and bounds in the case of partition for conversion of the family business into partnership ; it may, however, noted that a partition can be effected orally, and the claim will not be upheld, and the income generated from the business will be held assessable in the hands of Hindu undivided family itself. The validity of penalty on Hindu undivided family after a total partition gives the mandate to an assessing officer to levy penalty on Hindu undivided family provided under Section-171(8) of Income tax act.
The procedure by which the partition gets its recognition are as follows:-
The Hindu undivided family must make a claim to the Assessing officer that the Hindu undivided family property is subjected to the total partition.
Then the Assessing Officer will make an inquiry to the claim.
Then the Assessing officer will issue a notice to all the members of Hindu Undivided Family.
If he is satisfied that the claim is correct, then he will record a finding that there was a Total Partition of the Hindu undivided family, and he will also mention the date when it took place.
What is deed of partition
Deed of partition is a deed by which lands held in common, coparcener, or joint tenancy are separated into different portions and distributed among several members who takes them in severalty, and if the deed of partition is executed then there will not be any difficulty with respect to the rights of the parties under deed and with the respect to the principles of law applied in the case. The original Deed of the partition will always remain in the custody of 1st party, and the duplicate copy of deed will be in the custody of other party.
Conclusion
In India, the existence of a family business is not governed by contract; it is governed by the principles of Hindu law. A family business does not have any written partnership agreement, or it does not have any certificate of incorporation of the company though it has a great impact on the global economy too. It is really easy to carry out business in association with the family members but when a partition in the business happens any coparcener can claim for a partition in the family business and the partition can be carried out by the Deed of partition. The assessing officer plays a vital role when a total partition is claimed by the Hindu undivided family, he will make an inquiry on the given claim and after issuing a notice to all the members of Hindu undivided family and if he is satisfied with the claim which seems to be correct then he will record the finding that there was a total partition claimed by the Hindu undivided family, and he will record the date also when it took place.
This article is written by Saloni Jain, a final year student of the National Law University Delhi. She has a keen interest in academic writing and has previously published in international journals like the ‘International Journal of Human Rights and Constitutional Studies’ and the ‘American Bar Association- India Law News’.
This note sets forth a) the test for determining medical negligence in India b) the test for determining medical negligence in the UK, c) the maximum quantum of damages that have been awarded in medical negligence cases in India, d) whether or not punitive damages are awarded by Indian courts in such cases, and e) the law pertaining to vicarious liability
Introduction
It is a settled position of law that medical services (other than those offered free to all patients of the hospital) fall under the ambit of “services” under Section 2(1) (o) of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”). A suit can be filed for deficiency in services under the Act. Deficiency in service means only negligence in a medical negligence case and it would be determined under the Act by applying the same test as is applied in an action for damages for negligence in a civil court.[1]
This remedy is not barred due to the existence of alternative remedies. There are four alternative remedies, open to the consumer whose life or property is damaged by a professional person while rendering professional service namely a civil remedy for breach of contract, a tort claim for negligence, disciplinary remedy under the disciplinary tribunal of the profession and institution of a prosecution u/s 304A, 336, 337 and 338. [2]
Doctor’s Liability: Standard of Care
Negligence can either be criminal or civil. For negligence to amount to an offence, a) the element of mens rea must be shown to exist and b) the degree of negligence should be gross or of a very high degree.[3] Criminal negligence is out of the scope of this note and as negligence under the Act is determined using the same test as is applied in an action for damages for negligence in a civil court, the same will be discussed hereon.
Tort of Negligence
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.[4] Actionable negligence consists of the following three ingredients, a) duty of care b) breach of the said duty and c) consequential damage. Duty of care and causation are outside the ambit of this note.
Breach of Duty or Standard of Care in Case of Professionals
In case of professionals, the test as to whether there has been a breach of duty or not is not the test of the man on the top of a Clapham Omnibus. A surgeon does not undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill; but he undertakes to bring a fair, reasonable, and competent degree of skill; and in an action against him by a patient, the question, therefore, is as to what the legal standard of care is in the case of medical negligence.
Position in the UK
The UK currently is bound by the Bolam’s test, which was provided a ‘gloss’ in 1997, by an obiter in the Bolitho case (ratio of Bolitho concerned causation and not the standard of care). The way the Bolam’s test is interpreted is hence changing, ever since, with the court taking a more interventionist stance.[5]
According to the Bolam’s test, a doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes a contrary view. This Bolam principle has been accepted in English law as applying to treatment and diagnosis as well as ethical realms like disclosure (however, now the doctrine of consent has developed in the UK).[6]The test, however, had been perceived as being too high a burden for claimants, too deferential to doctors and lacking in external objectivity, resulting in the Bolitho standards coming up. In fact, due to heavy criticism, countries like Australia[7] rejected the Bolam’s test altogether.
Currently, as a result of the Bolitho case, a two-step procedure came to be recognized in English law as being necessary to determine the question of alleged medical breach[8]:
whether the doctor acted in accordance with a practice accepted as proper for an ordinarily competent doctor by a responsible body of medical opinion;
if “yes”, whether the practice survived Bolitho judicial scrutiny as being “responsible” or “logical”.[9]
That two-step analysis was explicitly confirmed as being the appropriate one, for example, in French v. Thames Valley Strategic H.A.[10] and has been described in other English medical cases, too, as “uncontroversial”[11] and as the “correct approach”.[12]
English courts, over the past decade, have been prepared to reject peer medical opinion (Bolam’s evidence), while deciding which evidence to pick as “logical” and “rational” in certain scenarios. These scenarios include situations where the expert testimony is a) internal inconsistent or b) hasn’t weighed the comparative risks/benefits of that medical practice as opposed to other courses of conduct or c) hasn’t taken account of a clear and simple precaution which was not followed but which, more probably than not, would have avoided the adverse outcome or d) hasn’t taken into account public/community expectations of acceptable medical practice.
Position in India
In 2001, the Supreme Court[13]said that the legal standard of care required is the same as the Bolam’s test, however, later in the judgment, the judges referred to the Bolitho test and held that it has been demonstrated by the appellant that “a doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the courts satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable or responsible.”
The Court did not reject the Bolitho gloss in this case. The Court held that the Bolitho test was not helpful to the appellants because the course of action followed by the doctor was found to be reasonable. It is interesting to note is that multiple cases have quoted the Vinitha Ashok case to cite how the Bolam’s test plainly is applicable in India[14], while some quote the above mentioned paragraph in passing.
Further, in a particular 2014 NCDRC decision[15], the commission held that “expert witnesses should be unbiased conveyers of information. The pivotal factor in the medical negligence is the integrity of the expert witness testimony. It should be reliable, objective, and accurate and provide a truthful analysis of the standard of care. Regrettably, not all medical experts testify within these boundaries. Therefore, we don’t accept the expert report issued by Dr. Koushal Kishore.”This decision seems to be tilting towards accepting the Bolitho gloss by allowing court intervention to decide on which expert testimony should be accepted.
However, the more consistent view seems to be that the Bolam’s test (minus the Bolitho gloss) is applicable in India.[16]In the Jacob Matthew’s case, the SC said, “the test for determining medical negligence as laid down in Bolam’s case holds good in its applicability in India” and there was no mention of any logical analysis required to be done by the court to decide whether to rely on the expert testimony or not.[17]
The Supreme Court in 2010[18] refused to depart from the Bolam’s test in cases of medical negligence. It acknowledged the limits and criticism of the test, but added that in view of the Jacob Matthew’s case[19] (higher bench of 3 judges), it has to abide by the test. The Court, however, commented that time has come for the Supreme Court to reconsider the parameters set down in Bolam test especially in view of Article 21 of our Constitution.
Further, a doctor has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases in cases of emergency.[20]
In 2010, the SC[21] assimilated some basic principles dealing with the cases of medical negligence in India, as follows:
The medical professional is expected must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care.
A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
Damages given by Indian Courts in Cases of Medical Negligence
Consumer Courts have the power to grant punitive damages under the Consumer Protection Act.[22]In fact, the Supreme Court[23]laid down that “while quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded… which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider.”However, the Indian Courts do not seem to be granting punitive damages in cases of medical negligence.
In the Kunal Saha case[24], the claimant sought a revised quantum of claim under separate headings of pecuniary, non-pecuniary, punitive and special damages.[25]He placed reliance upon US Court decisions awarding punitive damages in cases of medical negligence.[26]However, while his arguments were heard at length, while awarding the damages, the court does not delve into the question of punitive damages. While awarding the damages under the heads of, loss of income of the deceased; for medical treatment in Kolkata and Mumbai; Travel and Hotel expenses at Mumbai; Loss of consortium; pain and suffering; and cost of litigation, the Court expresses its discomfort at the number of medical negligence cases coming up and comments that they “hope and trust that this decision acts as a deterrent and a reminder to those doctors, Hospitals, the Nursing Homes and other connected establishments who do not take their responsibility seriously,”[27]hinting towards a potential change in practice of the courts.
The highest award in the case of medical negligence so far has been in the above mentioned case. In this case, a total amount of Rs. 6,08,00,550/- was awarded, by partly modifying the award granted by the National Commission with 6% interest per annum from the date of application till the date of payment, amounting to approximately INR 11 crores. The court revised certain amounts paid under different heads in this case, as those amounts were fixed years ago. Further the court did not use the multiplier method and computed damages according to the standard of living in the US (deceased was living in the US with her husband).
Vicarious Liability
Hospital’s Liability
A hospital can be liable either directly or vicariously. Direct liability would include situations such as administrative deficiencies[28]or a failure to provide competent medical staff.[29]
As for vicarious liability of hospitals, the ordinary principles of agency apply to companies which are consequently liable for the negligence of their servants, and for torts committed by them in the course of their employment.[30]With the change in the legal position that the control test is not decisive in all cases and it breaks down when applied to skilled and professional work, a hospital authority has now been held liable for negligence of its professional staff and the distinction earlier drawn between professional duties and ministerial or administrative duties has been disapproved.[31] It does not matter whether they are permanent or temporary, resident or visiting, whole time or part time and the Hospital Authorities are usually held responsible for all of them for the reason even if they are not their employees, they are the agents of the hospitals to give the treatment.[32]
It is to be noted, that this vicarious liability applies only to civil actions. The offense of criminal negligence requires mens rea, and hence it is the liability of the doctor alone, and not of the hospital.[33]The offense of medical criminal negligence cannot be fastened on the company since the company can neither treat nor operate a patient of its own.[34]
As for the vicarious liability in the case of independent consultants, the hospital can’t escape liability by stating that there’s no master-servant relationship. It is no defence to say that surgeon is not a servant employed by the hospital.[35]The SC decision in Santa Garg v. Director National Heart Institute[36]is also relevant. The SC quoted with approval the following proposition from DENNING L.J.’s judgment in Cassidy’s case:[37]
“The hospital authority is liable for the negligence of professional men employed by the authority under contract for service as well as under contract of service. The authority owes a duty to give proper treatment- medical, surgical, nursing and the like- and though it may delegate the performance of that duty to those who are not its servants, it remains liable if the duty be improperly or inadequately performed by its delegates”.
Director’s Liability
Directors are personally responsible for any torts which they themselves commit or direct others to commit, although it may be for the benefit of their company.[38]As is evident from this statement, a director can’t be held liable for the tort of medical negligence done by a doctor employed by the hospital, unless he directed the doctor to commit that tort. To make a person liable for a tort like negligence, it must be shown that he was himself the wrongdoer or that he was the employer or principal of the wrongdoer in relation to the act complained of, or that the tort was committed on his instructions.
Directors and the Company are two separate legal entities, so the Director has no personal liability on behalf of the Company. However, there are certain exceptions to it. Director’s can be held directly liable in situations such as when they fail to exercise reasonable care, skill and diligence. They have a duty to do so under s166 of the Companies Act 2013. They can also be held liable in cases where the corporate veil is lifted. Other than cases of fraud and improper conduct there may be other exceptional cases in which the facts or equitable considerations justify an exemption from the strict rule in Salomon vs. Salomon and Company Ltd.[39]
In the case of Daljit Singh Gujral And Others vs. Jagjit Singh Arora and Other,[40]the directors were held directly criminally liable because the doctor who was negligent was not having State Medical Council license to practice medicine as per the Medical Council of India Act, 1961 and Medical Council of India Rules under which Medical Council of India certifies the doctors/physicians and regulate competency and professional standards. There was a clear failure on the part of the director’s to evaluate the qualification of the doctor who has been inefficient. This case however is no longer good in law due to an error on the face of record (wholly unrelated to the liability of directors).
In D Mohan and Anr v. the State of Jharkhand[41], the director was complained against under sections 304, 420 and 384 of the IPC, for being vicariously liable for the acts of the doctor. The Court held that as there is no provision for any liability by way of legal fiction of vicarious liability for the said offences, they cannot be held liable for the same. The Court also held that that the directors cannot be said to have committed an offense only because they are holders of offices. In offenses such as that under s138 of the Negotiable Instruments Act, fiction has been created imputing holding directors liable.[42] Even in such offenses, directors are vicariously liable for the offense of the company only they are in charge and responsible for the conduct of the business at the relevant time.[43]
[1] Indian Medical Association v. V.P. Shantha and Others 1996 AIR 550
[2] Ram Naresh Prasad Chaudhary, CONSUMER PROTECTION LAW: PROVISIONS AND PROCEDURE, Deep and Deep Publications, 2005.
[3] Jacob Mathew (2005) 6 SCC 1 (Martin D’souza did not follow this higher bench judgment and equated a criminal complaint against a doctor or hospital with a complaint against a doctor before the Consumer Forum)
[4] Bengal Nagpur Railway Company Limited v. Tara Prasad Maity, (1926) 48 CLJ 45; Blyth v. Birmingam Waterworks Co., (1856) 11 Ex 781, 784
[5] Penney, Palmer and Canon v East Kent Health Authority [2000] Lloyds Rep Med 41; Marriott v West Midlands Health Authority [1999] Lloyds Rep Med 23
[6] Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All Whitehouse v Jordan (1981) 1 WLR 246 and Maynard v West Midland Regional Health Authority (1984) 1 WLR 634.
[7] Rogers v Whitaker (1992) 175 CLR 479; Naxakis v Western General Hospital and Another (1999) 162 ALR 540
[8] Mulheron, Rachael. “TRUMPING BOLAM: A CRITICAL LEGAL ANALYSIS OF BOLITHO’S “GLOSS”.” The Cambridge Law Journal 69.03 (2010): 609-638.
[9] The judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have reached a defensible conclusion on the risks and benefits of that opinion. if there were two differing bodies of opinion regarding the standard of care, it is for the court to scrutinise these and accept the one that is more plausible.
[11] Kingsberry v. Greater Manchester Strategic H.A. [2005] EWHC 2253, 87 B.M.L.R. 73, at [11].
[12] M v. Blackpool Victoria Hospital N.H.S. Trust [2003] EWHC 1744, at [24]; Marriott v. West Midlands Regional H.A. [1999] 1 Lloyd’s Rep. Med. 23, 35; Ball v. Wirral H.A. (2003) 73 B.M.L.R. 31, 43.
[13] Smt. Vinitha Ashok vs Lakshmi Hospital & Ors on 25 September, 2001(2 judge bench)
[14] Oriental Insurance Co. Ltd. vs Kulwinder Singh & Ors. on 29 November, 2011; Christu Jayanthi Hospital, vs Vincent Abraham, on 23 June, 2012
[15] Shrawan Kumar Jaipuriyar v Commandant, Base Hospital (MANU/CF/0854/2014) (National Consumer Disputes Redressal Commission New Delhi)
[16] Jacob Mathew v. State of Punjab(2005) 6 SCC 1; State of Haryana v. Santra, AIR 2000 SC 1888; Venkatesh Iyer v. Bombay Hospital Trust, AIR 1998 Bombay 373
[17] Para 49, Jacob Mathew v. State of Punjab(2005) 6 SCC 1; State of Punjab v. Shivram, (2005) 7 SCC 1
[18] V. Kishan Rao v. Nikhil Super Speciality Hospital and Anr. (MANU/SC/0332/2010)
In this blogpost, Tanusree Banerjee, Student, South Calcutta Law College and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about, who can file a complaint against a company, procedure to file a complaint and where a complaint can be filed.
In this blogpost, Komal Rastogi, Student, Nirma University, Ahmedabad, writes about the trade secrets and their protection, infringement of trade secrets along with the remedies provided to companies whose trade secrets has been disclosed.
The growth of markets is emerging along with the growth of information technology and business processes. The protection of company’s trade secrets has become a matter of paramount importance. There are many forms of intellectual property rights which help in protecting the company secrets such as patents, trademarks, etc., but the most emerging form is Trade Secret. Trade Secret refers to any data or information which is kept confidential and reasonable attempts have been made to keep it secret from the public. Trade Secret is defined by North America Free Trade Agreement (NAFTA) as “information having commercial value, which is not in the public domain, and for which reasonable steps have been taken to maintain its secrecy.”[1]
Trade secrets are precious for the company’s growth and help in retaining the information of company from competitors. There are three essential factors given by Trade-Related Aspects of Intellectual Property Rights (TRIPS) which are to be fulfilled in the case of a trade secret.
The information must not be readily accessible or known by the people who deal with these kinds of information.
The information must have commercial value as a secret.
The information must be subject to reasonable efforts made by the owner to maintain its secrecy.
These three principles have been applied by the Indian Courts under the purview of various other legislations to protect the information in three different circumstances:
In the case of Michael Heath Nathan Johnson v. Subhash Chandra and Ors[2]and “John Richard Brady and Ors v. Chemical Process Equipments P. Ltd. and Anr”, [3] Court took note of the contention of the counsel who defined trade secret referred from the English law.
In the case of “American Express Bank Ltd. v. Ms. Priya Puri” [4]the Court defined the trade secret as “Formulae, technical know-how or a peculiar mode or method of business adopted by an employer which is unknown to others.”[5]
In another case of “ Anil Gupta and Anr. v. Mr. Kunal Dasgupta and Ors”[6], the Delhi High Court held that the plaintiff has created a concept by using his mind, and everyone can use it, hence produced a result in the shape of concept.
Trade Secrets, although, recognized as a class of Intellectual Property (IP) but at present there is no specific legislation governing trade secrets in India. Regardless of this fact, trade secret protections are upheld by Indian Courts by principles of equity, even upon the common law action for breach of confidence known as the contractual breach of obligation. Trade secret protections are the most challenging task for the Government of India as it will enhance the foreign investment and will give further protection and security to our industries also. India, as a member of TRIPS, is under an obligation to make new laws or amend the previous laws for protecting trade secrets.
Infringement of the trade secrets
Misappropriate use of trade secrets can be called as an unfair practice. Misappropriation is defined as:
Acquiring trade secret of other companies by a person who have the high intention or belief to have the secret of the company wrongfully.
Disclosing of trade secrets to others without the implied consent of the owner.
Remedies
In India, only contractual remedy is provided. It means that only civil or equitable remedies are available for the breach of faith. The remedy includes permanent or interlocutory (temporary) injunctions to the other party. Injunctions such as (i) preventing the third party from disclosing trade secrets, (ii) or the return of all the confidential reports and information, (iii) or the compensation or damages if any loss has been suffered due to the disclosure of trade secret. According to Advocate P. Narayan, trade secret would remain confidential only for a particular or limited period. If the injunction has been given, then it must be for a particular time i.e. interlocutory. The rules which decide whether to award permanent or temporary injunction is set out in the case of Gujarat Bottling Company Limited.
To grant a temporary injunction during the proceedings is at the discretion of the judges. For deciding the injunction, a particular test was applied. “1) Whether the plaintiff has a prima facie case, 2) whether the balance of convenience is for the plaintiff, and 3) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed.”[7]The Court held that there must be a balance of convenience.
The other legislations of India which are connected with the trade secrets are:
Section 51, 55 and 63 of Copyright Act, 1957
Section 65 and 72 of the Information Technology Act, 2000
Section 408 and 416 of the Indian Penal Code, 1860
Section 27 of the Indian Contract Act
The Designs Act, 2000.
In India, many cases of trade secrets, they are protected by the principle of equity and fraud, which are solved by section 27 of the Indian Contract Act. The relief claim in these cases are the enforcements of Non-Disclosure Agreement between the employer and the employee. Although there is no uniform rule, the court has given different judgments in different cases. To make sure with the rulings, there should be a uniform standard for the trade secret protection.
Protection of the confidential information
As there are no laws to protect trade secrets, businesses can use different tools to protect their trade secrets.
Non-disclosure agreements: To protect the company’s trade secret and confidential information, the employees are required to sign the non-disclosure agreements. “Agreements should have those clauses which invalidate a grant of an implied license, confinements on disclosure, use and copy; restrictions on the use of confidential information upon termination of the employment, the return of information upon termination and right to withhold salary and emoluments till such return.”[8]
Internal processes: the employees should be educated so that if they find some confidential information, they can keep it with themselves. Strong internal controls are required to protect the confidential information.
Exit- Interview: During the interview, an employee must be reminded of the obligation towards the company’s secret or the sensitive Along with this, employees are asked to sign an agreement reaffirming his commitment.
Always keep the company’s confidential and sensitive information in a restricted and private zone.
Owner to allow the accessibility of trade secrets only to those individuals who have an official reason to know the data. The reason ought to be material and assists you in business.
The protection of trade secret in India is still in its budding stage as there are no special laws, particularly for the trade secret. The practice of the court with respect to trade secret protection is very inconsistent. There is pressure from TRIPS to have laws on trade secret protection. Therefore, there is an urgent need for the framework of laws related to trade secret protection in India. The bill was introduced in the year 2008 known as the National Innovation Bill, which was the practical step to protect the trade secret. The passing of the bill was delayed and argued upon certain issues. The status of the enactment of the bill is still unclear.
[1] Retrieved on http://www.legalserviceindia.com/article/l123-Trade-Secrets.html
This article is written by Shourya Bari, a student of Jindal Global Law School.
A school student who studied, reluctantly at best, minuscule bits of political systems across the world is bound to be surprised in law school when he is taught the process of law making. He might recollect studying; a government functioning through three organs, the executive, judiciary and legislature, whose powers are separate and independent of each other. Ideally, the legislature is responsible for framing laws and the executive for executing them. However, as with other ideals in law school, this is soon brushed aside.
Transgressing the boundary of separation of powers, the executive too possesses the power of law making. But Montesquieu’s warning still rings a bell in the political mind. That is why, a balance is sought to be created to prevent abuse of power by the executive or by any of three organs for that matter.
This paper shall first address why such a balance is required in the first place; second, whether such a balance can be achieved, at least theoretically, and finally whether Indian courts have been able to strike that balance.
Why do we need a balance between separation of power and administrative law making? To put it briefly, new demands are made on the executive to cater to complicated socio – economic needs of the contemporary society and it’s necessary to assign rule making power to the executive to efficiently accomplish such ends[1]. Further, it may not be possible for a parent legislation to foresee every practical circumstance which may arise, and the executive is required to fill in those gaps in the legislation[2]. Now, with rule making power in their hands, the executive is in a position to abuse these powers. Therefore, two conflicting interests, administrative efficiency and rule of law need to be reconciled. This need for reconciliation requires an act of balance.
Ultimately, this act of balance is required to uphold the rule of law, as Justice Khanna noted in his revolutionary dissent in A.D.M. Jabalpur v. Shiv Kant Shukla[3], arbitrariness or abuse of power is the anti-thesis of rule of law. The act of balance wraps transgressed executive power with legitimacy.
Can such a balance be achieved? In order to appreciate this question, it is imperative to understand how some of the rule making powers is exercised by the executive. First, an executive may be required by the parent Act itself to bring it into operation on a specified date[4]. This confers upon the executive the discretion to decide when the law comes into force. Second, the legislature may pass a skeletal legislation and require the executive to provide the flesh[5]. The executive is required to make rules to carry out the purpose of the Act. These are examples of how the executive enjoy rule making powers. The uncomfortable question that inevitably arises is what is the extent of this rule making power?
The most common answer to this question across systems is also the most potent and theoretically sound balancing mechanism that can be adopted. In the landmark judicial pronouncement in In Re Delhi Laws Act[6], the answer can be located, that the legislature cannot delegate its essential legislative functions to the executive. In Harishankar Bagla v. Madhya Pradesh[7], the Supreme Court defined what constitutes essential legislative function. Essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.
What happens when the legislature delegates functions which essentially belong to the domain of the legislature? The scope of judicial review allows a court to strike down such a delegation. Therefore, judicial review of delegated legislation is the most crucial balancing mechanism applied.
Before the judiciary finds a reason to interfere supervision is exercised on delegated legislation. Provisions for parliamentary control exist in order to facilitate that. The parent act may provide that the rules made by the executive be placed before the parliament for scrutiny before they come into force[8]. This mechanism allows Parliament to keep a check on whether the rules are consistent with the purpose of the parent legislation. It’s important to note that, in order to curb problems arising out of an emergency situation rules made by the executive can come into effect immediately. However, the Parliament exercises its surveillance even in such situations. Such rules are placed before the Parliament on a specified date when it can amend or modify the rules.
However, as mentioned before, the primary responsibility of creating equilibrium between executive rule making and the doctrine of separation of power lies with the judiciary. On a theoretical landscape, the judiciary’s overarching power to declare delegated legislation ultravires to the Constitution of India or the parent act is assuring. However, with great power comes great responsibility. Judicial craftsmanship decides whether a nation achieves the optimum administrative efficiency, or derogates from the aspirations of rule of law. This paper shall examine several case laws to comment on the success of the Indian judiciary in living up to this aspiration.
In Harishankar Bagla v. Madhya Pradesh[9] Section 3 and Section 6 of the Essential Supplies (Temporary Powers) Act, 1946 were brought under the judicial lens. Section 3 empowered the central government to provide by order for regulating or prohibiting the production or supply of certain essential commodities ‘so far as it appears to it to be necessary or expedient for maintaining or increasing the supplies of any essential commodities’. The court upheld the guidance to the executive present in the Act for the exercise of delegated legislation to be sufficient. The concept of sufficient guidance is critical to achieve the desired balance. Guidance provided in the parent act is a tangible form of direction provided to the executive, and any deviation from such guidance can be easily detected after mapping it against the guidance.
Section 6 of the Act said that an order issued under this section would have effect notwithstanding anything inconsistent therewith contained in any previous enactment. The court upheld this section too. The court said that the impugned section did not authorize the executive to repeal the previous laws, but declared that in case of any inconsistency between the previous law and an order issued under Section 3 of the Act, the latter would prevail. This interpretation is problematic. It’s true that the executive cannot use the powers under Section 6 to repeal any previous law, and any rule made by them inconsistent with any previous law would prevail. However, in effect, this amounts to nullifying the effect of legislation by the executive. The legislature cannot empower the executive to overpower the legislature itself. That amounts to delegation of essential legislative functions. Only the legislature has power to tamper with legislations. The Supreme Court, failed to strike a proper balance by legitimizing power which the executive should not possess.
In Harishankar Bagla v. Madhya Pradesh[10], the guidance test was appropriately applied. However the Supreme Court deviated from this when it upheld Section 3 of the All India Services Act, 1951 in DS Garewal v. Punjab[11], in spite the complete absence of any guidance in the legislation. The Act provided that pending the making of new rules, the rules existing on the date on which the law was enacted were to continue and the court observed that the policy had been indicated in such existing rules. This reasoning is absurd. The question to be raised is, if the policy is present in the existing rules is to be followed, why would the legislature come up with a provision for new rules? This provision should have struck down for a complete lack of guidance. Instead the Supreme Court stuck to its inclination to uphold the provision and turned a blind eye to legal reasoning.
A similar absurdity in judicial reasoning can be noted in Bhatnagars and Co v. Union of India[12]. The Supreme Court upheld Section 3 (1) (a) of the Imports and Exports Control Act 1947 which authorized the central government to prohibit or restrict the import or export of goods of any specified description. The Act did not contain any statement of policy. The court referred to the preamble of the Defence of India Act, 1939, which was a predecessor Act providing for similar control of imports and exports.
Now, if the Defence of India Act, 1939 was sufficient why would the legislature enact a new legislation? There must have been a change in policy which fostered a need for a new legislation. Therefore, relying on the preamble of an old legislation to provide guidance to the executive under a new legislation is as harmful to the rule of law as is administering an outdated medicine to a patient.
In Harakchand v. Union of India[13], Section 5 (2) (b) of the Gold Control Act, 1968 was held to be invalid on the ground of excessive delegation. The Section authorized the administrator ‘so far as it appeared to him to be necessary or expedient for carrying out the provisions of the Act to regulate by licenses, permits or otherwise, the manufacture, distribution, transport, acquisition, possession, transfer disposal, use or consumption of gold. The court held that power was legislative in character and was not controlled either by any guidance in the Act or by a provision for legislative supervision.
This is a fine example of the court being able to strike the right balance. The powers conferred by Section 5 (2) (b) were too wide, and was mostly colored with legislative power. Specifically in the phrase ‘regulation by license, permits or otherwise’, the ambit of the term is undefined. Further, there was no guidance in the Act to construe a reasonable meaning of otherwise.
The important element of legislative supervision was highlighted in this case. Legislative supervision is a form of legislative control, and this attaches legitimacy to executive rule making. In DK Trivedi v. State of Gujarat[14], the Supreme Court upheld Section 15 (1) of the Mines and Minerals (Regulation and Development) Act, 1957. The delegation wasn’t considered to be excessive and one of the reasons to decide so was that the rules were required to be laid before the Parliament. The scope of legislative supervision is a protective covering around delegated legislation from the claws of judicial review!
In Raj Narain Singh v. Chairman, Patna Administration Committee[15]the Supreme Court conceded that ‘exactly what constitutes an essential feature (of legislative function) cannot be enunciated in general terms. Section 3 (1) (f) of the Bihar and Orissa Act empowered the local government to extend to Patna the provisions of any section of the Act subject to such modifications as it might think fit. One of the essential features of the Act was the provisions that no municipality competent to tax could be thrust upon a locality without giving its inhabitants a chance of being heard and of being given an opportunity to object. The court invalidated the policy of the Act as it tampered with the policy of the Act. Therefore, the court laid down the mandate on the executive to act in accordance with the policy of the parent Act.
To wrap up, the author would like to note, acknowledging the judiciary’s flawed analysis in several cases that the judiciary’s job is not to be a patient mother to a naughty child. A great degree of faith has been reposed in the executive to strike the balance themselves while framing rules, by acknowledging the provisions of the constitution and the parent act. The executive must live up to this expectation. The judiciary striking down laws for excessive delegation should be an exception. In conclusion, given the socio – economic circumstances of India, the judiciary has indeed succeeded in achieving the much-debated balance, trying their best to uphold the powers of the executive.
[1] Bharat Bank. v. Employees of Bharat Bank, AIR 1950 SC 306.
[2] S. P. Sathe, Administrative Law, LexisNexis, 7th Edn., Pg 32.
This article is written by Abhishek Khandelwal, a student of Institute of Law, Nirma University.
Introduction
“The internet is a reflection of our society and that mirror is going to be reflecting what we see. If we do not like what we see in that mirror the problem is not to fix the mirror, we have to fix society.” – Vint Cerf
The debate over Net Neutrality is reverberating around the world and India with its third highest number of Internet users is no exception. In the present essay, an effort is being made to make a case for Net Neutrality in India by bringing together arguments in favour of Net Neutrality and tracing the recent developments in Net Neutrality debate which mainly stems from the tension between open innovation and monopolistic control.
What is Net Neutrality?
There is no standard definition of net neutrality. It is globally understood as a principle that promotes equality within the developing Internet and thus prevents the Internet Service Providers (ISPs) from creating a preferred or tier-levelled system controlling the order and speed of different types information that is passed over the internet. Prof. Tim Wu, who coined the term ‘Net Neutrality’ defined it as a network design principle. The idea is that a maximally useful public information network aspires to treat all contents, sites and platforms equally. This allows the network to carry every form of information and support every kind of application. Certain common principles of net neutrality in different countries include no blocking, no throttling, no paid prioritisation, freedom of access and to receive or use content, no discriminatory practices, reasonable traffic management and support for innovation.
For Promoting Innovation and Ensuring the Fundamental Right of Speech & Expression
Net Neutrality includes the ability of end-users to access lawful internet-based content or applications of their choice and the ability of content and application providers to access end users ‘‘without permission’’ from network operators. Net Neutrality has resulted in profound benefits through innovation in content and applications across a wide range of economic and social activities. The companies like Facebook and Google were all new entrants at some point and it was the power of ideas supported by de facto net neutrality that helped them to establish themselves. So, it is desirable that new upcoming content providers and app developers are also provided with the same kind of environment that promoted innovation in the nascent phase of Internet. An open internet will undoubtedly act as a catalyst for innovation and growth.
Internet has emerged as a public space where people can freely speak their mind. It has become a vibrant platform for discussions and debates and offers equal digital space for expression irrespective of age, caste, creed, religion, wealth or gender. This characteristic of internet can be affected if telecom operators become ‘gatekeepers’ gaining control of the traffic channelized through their network.
If somebody’s expression is deliberately stopped by ISPs from reaching the target audience over Internet by employing traffic management techniques such as throttling or blocking for the purpose of giving preference to some other content, then it is a violation of the right to freedom of speech and expression which is a fundamental right guaranteed by the Constitution of India. So it is the duty of welfare state like ours to check and eradicate any possible threat to the continued existence of Internet as a free public space. However, legitimate traffic management practices may be allowed but these practices must not go against the core principles of Net Neutrality. According to the DoT Committee report on Net Neutrality, following criteria should be kept in mind by ISPs while indulging in traffic management practices :
Adequate disclosures to the users about their traffic management policies to maintain transparency and to allow users to make informed choices.
2.Unreasonable traffic management, which is exploitative or anti- competitive in nature.
3.For legitimate network management, application-agnostic control may be used.
4.Traffic management techniques like DPI should not be used for unlawful access to the type and contents of an application in an IP packet.
5.Improper Prioritization may not be permitted.
6. Mechanism to minimise frivolous complaints will be desirable.
Major Developments Since 1998 till 2016
Since 1998, when for the first time ISPs were allowed to start operations in India, there had been a de facto net neutrality in India. However, in December 2006, a consultation paper published by TRAI ( Telecom Regulatory Authority of India) noted that this de facto net neutrality can be disturbed by ISPs in the future. TRAI consultation paper suggested that in the absence of Net Neutrality Regulations, ISPs can discriminate against competing applications and content providers and so TRAI invited opinions from stakeholders that whether there should be regulatory provisions for Net Neutrality or whether it should be left at the option of market forces.
As expected, Net Neutrality faced a severe attack in India with the announcements from Reliance and Airtel concerning Internet.org and Airtel Zero respectively. These two platforms aimed at providing free internet. Now, one might argue that what is wrong if someone wants to offer free internet? Free Internet is very tempting but one should be aware that you are only getting free access to services/apps which have struck a deal with telecom companies (telecos). Giant app developers and services having hefty capital will have no issues to pay telecos for data charges but this can leave small app developers, specially startups, who cannot afford Airtel or Reliance’s data rates at a definite disadvantage. All those people who supported Facebook’s Free Basics or Airtel Zero need to understand that they were actually opposing Net Neutrality by doing so. Rahul Khullar, ex- TRAI chairman, also said that what Airtel or Facebook tried to do was against Net Neutrality. He further added that it was not illegal just because India had no law enforcing net neutrality.
In the wake of these attacks against net neutrality in India, the TRAI on 27th March 2015 released a consultation paper on over-the-top-services (OTT) and net neutrality for public feedback. The last date for submission of comments was 24th April, 2015 and TRAI received more than a million e-mails. After contemplating over the feedback received from various stakeholders, the TRAI on 8th February, 2016 barred telecom service providers from charging differential rates for data services, thus debarring Facebook’s Free Basics and Airtel Zero platform by Airtel. The TRAI’s much-awaited Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 stipulated that:
No service provider can offer or charge discriminatory tariffs for data services on the basis of content.
No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that the effect of discriminatory tariffs for data services being offered or charged by the service provider for the purpose of evading the prohibition in this regulation.
Reduced tariff for accessing or providing emergency services, or at times of public emergency has been permitted.
Financial disincentives for contravention of the regulation have also been specified.
TRAI may review these regulations after a period of two years.
It should be noted that the TRAI can exercise its powers under section 36 of Telecom Regulatory Authority Of India Act 1997 (24 of 1997) to impose this order. However, the aggrieved parties can go to a High Court under Article 227 of the Constitution of India and seek a quashing of the order.
Conclusion
The publishing of ‘Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016’ in ‘The Gazette of India’ was followed by a flurry of tweets and articles to welcome the TRAI’s new regulations on Net Neutrality. Undoubtedly, TRAI has taken a bold and much-needed decision. But it should be noted that the only focal point of these regulations is that ISPs can’t charge differently for data services based on content while there are many other techniques like throttling data speeds that can still go against the core principles of Net Neutrality. Issues such as OTT services is still in need of regulations. So, technically India still doesn’t have a law that enforces Net Neutrality as a whole.
Net Neutrality is a pre-requisite to ensure user rights on the Internet and to promote innovation in the oligopolistic market ecosystem of present times and it will determine how India’s economic and communications infrastructure will grow in the near future. So it is about time that Indian Government take a rational approach and initiate action in evolving an objective policy which conclusively determines all the aspects of Net Neutrality.
References
Net Neutrality DoT Committee Report, May, 2015.
2. TRAI – The India Telecom Services Perfromance Indicators as of Sep 2014.
Solomon Porus completed the NUJS diploma in Entrepreneurship Administration and Business Laws in 2015. He has done his BA in history from Loyla College, Chennai and LLB from Central Law College,Salem. He is currently working as a Legal Consultant with GVR Reality, a real estate company based in Chennai.
We asked Solomon how the course helped him so far in his career and why he enrolled for this diploma course. He had very interesting things to talk about his experience with the course. So, we decided to share it with you all as a success story. Over to Solomon:
When I took up the course I was working as a legal consultant with a real estate company. I already had more than a decade of industry experience but I wanted to update my knowledge of corporate and business law.
I was searching the internet for a course which would give me some insight into business laws and I came across an advertisement of NUJS diploma in Entrepreneurship Administration and Business Laws on www.advocatekhoj.com. When I explored it further I found the course structure to be very extensive and apt for my needs. So I decided to enroll for this diploma course.
Content wise this course is very good. It is designed in a manner that a person who is not from a legal background can also follow it. Innovative concepts like live webinars with industry experts etc make it very interesting and easy to follow.
The module on structuring a business was very informative; I personally benefitted the most from this module.
What I learnt from this course is something I did not get to learn in my law school, this course gives you a practical insight. Unfortunately, I’m unable to apply much of my learning from the course in my current role, as I deal in civil law and land related law only. But I’ve gained a lot of practical knowledge about business laws from this course.
I have mentioned the NUJS diploma in my LinkedIn and I feel that this diploma adds value to my profile.
I have already recommended this diploma to few of my friends and colleagues. At any given point of time, I would be more than willing to recommend this Diploma to anyone.
I feel this course is for everyone, anyone seeking legal knowledge can benefit from this course.
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